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Free Speech

Cantwell v. Connecticut

https://supreme.justia.com/cases/federal/us/310/296/

U.S. Supreme Court Cantwell v. Connecticut, 310 U.S. 296 (1940) Cantwell v. Connecticut No. 632 Argued March 29, 1940 Decided May 20, 1940 310 U.S. 296 APPEAL FROM AND CERTIORARI TO THE SUPREME COURT OF ERRORS OF CONNECTICUT Syllabus 1. The fundamental concept of liberty embodied in the Fourteenth Amendment embraces the liberties guaranteed by the First Amendment. P. 310 U. S. 303 . 2. The enactment by a State of any law respecting an establishment of religion or prohibiting the free exercise thereof is forbidden by the Fourteenth Amendment. P. 310 U. S. 303 . 3. Under the constitutional guaranty, freedom of conscience and of religious belief is absolute; although freedom to act in the exercise of religion is subject to regulation for the protection of society. Such regulation, however, in attaining a permissible end, must not unduly infringe the protected freedom. Pp. 310 U. S. 303 -304. 4. A state statute which forbids any person to solicit money or valuables for any alleged religious cause, unless a certificate therefor shall first have been procured from a designated official, who is required to determine whether such cause is a religious one and who may withhold his approval if he determines that it is not, is a previous restraint upon the free exercise of religion, and a deprivation of liberty without due process of law in violation of the Fourteenth Amendment. P. 310 U. S. 304 . So held as it was applied to persons engaged in distributing literature purporting to be religious, and soliciting contributions to be used for the publication of such literature. A State constitutionally may, by general and nondiscriminatory legislation, regulate the time, place and manner of soliciting upon its streets, and of holding meetings thereon, and may in other respects safeguard the peace, good order and comfort of the community. Page 310 U. S. 297 The statute here, however, is not such a regulation. If a certificate is issued, solicitation is permitted without other restriction; but if a certificate is denied, solicitation is altogether prohibited. 5. The fact that arbitrary or capricious action by the licensing officer is subject to judicial review cannot validate the statute. A previous restraint by judicial decision after trial is as obnoxious under the Constitution as restraint by administrative action. P. 310 U. S. 306 . 6. The common law offense of breach of the peace may be committed not only by acts of violence, but also by acts and words likely to produce violence in others. P. 310 U. S. 308 . 7. Defendant, while on a public street endeavoring to interest passerby in the purchase of publications, or in making contributions, in the interest of what he believed to be true religion, induced individuals to listen to the playing of a phonograph record describing the publications. The record contained a verbal attack upon the religious denomination of which the listeners were members, provoking their indignation and a desire on their part to strike the defendant, who thereupon picked up his books and phonograph and went on his way. There was no showing that defendant's deportment was noisy, truculent, overbearing, or offensive; nor was it claimed that he intended to insult or affront the listeners by playing the record; nor was it shown that the sound of the phonograph disturbed persons living nearby, drew a crowd, or impeded traffic. Held, that defendant's conviction of the common law offense of breach of the peace was violative of constitutional guarantees of religious liberty and freedom of speech. Pp. 310 U. S. 307 et seq. 126 Conn. 1; 8 A.2d 533, reversed. APPEAL from, and certiorari (309 U.S. 626) to review, a judgment which sustained the conviction of all the defendants on one count of an information and the conviction of one of the defendants on another count. The convictions were challenged as denying the constitutional rights of the defendants. Page 310 U. S. 300 MR. JUSTICE ROBERTS delivered the opinion of the Court. Newton Cantwell and his two sons, Jesse and Russell, members of a group known as Jehovah's Witnesses and claiming to be ordained ministers, were arrested in New Haven, Connecticut, and each was charged by information in five counts, with statutory and common law offenses. After trial in the Court of Common Pleas of New Haven County, each of them was convicted on the third count, which charged a violation of § 294 of the General Statutes of Connecticut, [ Footnote 1 ] and on the fifth count, which charged commission of the common law offense of inciting a breach of the peace. On appeal to the Supreme Court, the conviction of all three on the third count was affirmed. The conviction of Jesse Cantwell on the fifth count was also affirmed, but the conviction of Newton and Russell on that count was reversed, and a new trial ordered as to them. [ Footnote 2 ] By demurrers to the information, by requests for rulings of law at the trial, and by their assignments of error in the State Supreme Court, the appellants pressed the contention that the statute under which the third count was drawn was offensive to the due process clause of the Fourteenth Amendment because, on its face and as construed and applied, it denied them freedom of speech and prohibited their free exercise of religion. In like manner, Page 310 U. S. 301 they made the point that they could not be found guilty on the fifth count without violation of the Amendment. We have jurisdiction on appeal from the judgments on the third count, as there was drawn in question the validity of a state statute under the Federal Constitution and the decision was in favor of validity. Since the conviction on the fifth count was not based upon a statute, but presents a substantial question under the Federal Constitution, we granted the writ of certiorari in respect of it. The facts adduced to sustain the convictions on the third count follow. On the day of their arrest, the appellants were engaged in going singly from house to house on Cassius Street in New Haven. They were individually equipped with a bag containing books and pamphlets on religious subjects, a portable phonograph, and a set of records, each of which, when played, introduced, and was a description of, one of the books. Each appellant asked the person who responded to his call for permission to play one of the records. If permission was granted, he asked the person to buy the book described, and, upon refusal, he solicited such contribution towards the publication of the pamphlets as the listener was willing to make. If a contribution was received, a pamphlet was delivered upon condition that it would be read. Cassius Street is in a thickly populated neighborhood where about ninety percent of the residents are Roman Catholics. A phonograph record, describing a book entitled "Enemies," included an attack on the Catholic religion. None of the persons interviewed were members of Jehovah's Witnesses. The statute under which the appellants were charged provides: "No person shall solicit money, services, subscriptions or any valuable thing for any alleged religious, charitable Page 310 U. S. 302 or philanthropic cause, from other than a member of the organization for whose benefit such person is soliciting or within the county in which such person or organization is located unless such cause shall have been approved by the secretary of the public welfare council. Upon application of any person in behalf of such cause, the secretary shall determine whether such cause is a religious one or is a bona fide object of charity or philanthropy and conforms to reasonable standards of efficiency and integrity, and, if he shall so find, shall approve the same and issue to the authority in charge a certificate to that effect. Such certificate may be revoked at any time. Any person violating any provision of this section shall be fined not more than one hundred dollars or imprisoned not more than thirty days or both." The appellants claimed that their activities were not within the statute, but consisted only of distribution of books, pamphlets, and periodicals. The State Supreme Court construed the finding of the trial court to be that, "in addition to the sale of the books and the distribution of the pamphlets, the defendants were also soliciting contributions or donations of money for an alleged religious cause, and thereby came within the purview of the statute." It overruled the contention that the Act, as applied to the appellants, offends the due process clause of the Fourteenth Amendment because it abridges or denies religious freedom and liberty of speech and press. The court stated that it was the solicitation that brought the appellants within the sweep of the Act, and not their other activities in the dissemination of literature. It declared the legislation constitutional as an effort by the State to protect the public against fraud and imposition in the solicitation of funds for what purported to be religious, charitable, or philanthropic causes. The facts which were held to support the conviction of Jesse Cantwell on the fifth count were that he stopped Page 310 U. S. 303 two men in the street, asked, and received, permission to play a phonograph record, and played the record "Enemies," which attacked the religion and church of the two men, who were Catholics. Both were incensed by the contents of the record, and were tempted to strike Cantwell unless he went away. On being told to be on his way, he left their presence. There was no evidence that he was personally offensive or entered into any argument with those he interviewed. The court held that the charge was not assault or breach of the peace or threats on Cantwell's part, but invoking or inciting others to breach of the peace, and that the facts supported the conviction of that offense. First. We hold that the statute, a construed and applied to the appellants, deprives them of their liberty without due process of law in contravention of the Fourteenth Amendment. The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment. [ Footnote 3 ] The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus, the Amendment embraces two concepts -- freedom to believe and freedom to act. The first is absolute, but, in the nature of things, the Page 310 U. S. 304 second cannot be. Conduct remains subject to regulation for the protection of society. [ Footnote 4 ] The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case, the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. No one would contest the proposition that a State may not, by statute, wholly deny the right to preach or to disseminate religious views. Plainly, such a previous and absolute restraint would violate the terms of the guarantee. [ Footnote 5 ] It is equally clear that a State may, by general and nondiscriminatory legislation, regulate the times, the places, and the manner of soliciting upon its streets, and of holding meetings thereon, and may in other respects safeguard the peace, good order, and comfort of the community without unconstitutionally invading the liberties protected by the Fourteenth Amendment. The appellants are right in their insistence that the Act in question is not such a regulation. If a certificate is procured, solicitation is permitted without restraint, but, in the absence of a certificate, solicitation is altogether prohibited. The appellants urge that to require them to obtain a certificate as a condition of soliciting support for their views amounts to a prior restraint on the exercise of their religion within the meaning of the Constitution. The State insists that the Act, as construed by the Supreme Court of Connecticut, imposes no previous restraint upon the dissemination of religious views or teaching, but merely safeguards against the perpetration of frauds under the cloak of religion. Conceding that this is so, the question remains whether the method adopted by Connecticut to Page 310 U. S. 305 that end transgresses the liberty safeguarded by the Constitution. The general regulation, in the public interest, of solicitation, which does not involve any religious test and does not unreasonably obstruct or delay the collection of funds is not open to any constitutional objection, even though the collection be for a religious purpose. Such regulation would not constitute a prohibited previous restraint on the free exercise of religion or interpose an inadmissible obstacle to its exercise. It will be noted, however, that the Act requires an application to the secretary of the public welfare council of the State; that he is empowered to determine whether the cause is a religious one, and that the issue of a certificate depends upon his affirmative action. If he finds that the cause is not that of religion, to solicit for it becomes a crime. He is not to issue a certificate as a matter of course. His decision to issue or refuse it involves appraisal of facts, the exercise of judgment, and the formation of an opinion. He is authorized to withhold his approval if he determines that the cause is not a religious one. Such a censorship of religion as the means of determining its right to survive is a denial of liberty protected by the First Amendment and included in the liberty which is within the protection of the Fourteenth. The State asserts that, if the licensing officer acts arbitrarily, capriciously, or corruptly, his action is subject to judicial correction. Counsel refer to the rule prevailing in Connecticut that the decision of a commission or an administrative official will be reviewed upon a claim that "it works material damage to individual or corporate rights, or invades or threatens such rights, or is so unreasonable as to justify judicial intervention, or is not consonant with justice, or that a legal duty has not Page 310 U. S. 306 been performed. [ Footnote 6 ]" It is suggested that the statute is to be read as requiring the officer to issue a certificate unless the cause in question is clearly not a religious one, and that, if he violates his duty, his action will be corrected by a court. To this suggestion there are several sufficient answers. The line between a discretionary and a ministerial act is not always easy to mark, and the statute has not been construed by the state court to impose a mere ministerial duty on the secretary of the welfare council. Upon his decision as to the nature of the cause the right to solicit depends. Moreover, the availability of a judicial remedy for abuses in the system of licensing still leaves that system one of previous restraint which, in the field of free speech and press, we have held inadmissible. A statute authorizing previous restraint upon the exercise of the guaranteed freedom by judicial decision after trial is as obnoxious to the Constitution as one providing for like restraint by administrative action. [ Footnote 7 ] Nothing we have said is intended even remotely to imply that, under the cloak of religion, persons may, with impunity, commit frauds upon the public. Certainly penal laws are available to punish such conduct. Even the exercise of religion may be at some slight inconvenience in order that the State may protect its citizens from injury. Without doubt, a State may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent. [ Footnote 8 ] The State is likewise free to regulate the time Page 310 U. S. 307 and manner of solicitation generally, in the interest of public safety, peace, comfort or convenience. But to condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution. Second. We hold that, in the circumstances disclosed, the conviction of Jesse Cantwell on the fifth count must be set aside. Decision as to the lawfulness of the conviction demands the weighing of two conflicting interests. The fundamental law declares the interest of the United States that the free exercise of religion be not prohibited and that freedom to communicate information and opinion be not abridged. The State of Connecticut has an obvious interest in the preservation and protection of peace and good order within her borders. We must determine whether the alleged protection of the State's interest, means to which end would, in the absence of limitation by the Federal Constitution, lie wholly within the State's discretion, has been pressed, in this instance, to a point where it has come into fatal collision with the overriding interest protected by the federal compact. Conviction on the fifth count was not pursuant to a statute evincing a legislative judgment that street discussion of religious affairs, because of its tendency to provoke disorder, should be regulated, or a judgment that the playing of a phonograph on the streets should in the interest of comfort or privacy be limited or prevented. Violation of an Act exhibiting such a legislative judgment and narrowly drawn to prevent the supposed evil would pose a question differing from that we must here answer. [ Footnote 9 ] Such a declaration of the State's policy Page 310 U. S. 308 would weigh heavily in any challenge of the law as infringing constitutional limitations. Here, however, the judgment is based on a common law concept of the most general and undefined nature. The court below has held that the petitioner's conduct constituted the commission of an offense under the state law, and we accept its decision as binding upon us to that extent. The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts, but acts and words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot, or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order appears, the power of the State to prevent or punish is obvious. Equally obvious is it that a State may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions. Here we have a situation analogous to a conviction under a statute sweeping in a great variety of conduct under a general and indefinite characterization, and leaving to the executive and judicial branches too wide a discretion in its application. Having these considerations in mind, we note that Jesse Cantwell, on April 26, 1938, was upon a public street, where he had a right to be and where he had a right peacefully to impart his views to others. There is no showing that his deportment was noisy, truculent, overbearing or offensive. He requested of two pedestrians permission to play to them a phonograph record. The permission was granted. It is not claimed that he Page 310 U. S. 309 intended to insult or affront the hearers by playing the record. It is plain that he wished only to interest them in his propaganda. The sound of the phonograph is not shown to have disturbed residents of the street, to have drawn a crowd, or to have impeded traffic. Thus far, he had invaded no right or interest of the public, or of the men accosted. The record played by Cantwell embodies a general attack on all organized religious systems as instruments of Satan and injurious to man; it then singles out the Roman Catholic Church for strictures couched in terms which naturally would offend not only persons of that persuasion, but all others who respect the honestly held religious faith of their fellows. The hearers were, in fact, highly offended. One of them said he felt like hitting Cantwell, and the other that he was tempted to throw Cantwell off the street. The one who testified he felt like hitting Cantwell said, in answer to the question "Did you do anything else or have any other reaction?" "No, sir, because he said he would take the victrola, and he went." The other witness testified that he told Cantwell he had better get off the street before something happened to him, and that was the end of the matter, as Cantwell picked up his books and walked up the street. Cantwell's conduct, in the view of the court below, considered apart from the effect of his communication upon his hearers, did not amount to a breach of the peace. One may, however, be guilty of the offense if he commit acts or make statements likely to provoke violence and disturbance of good order, even though no such eventuality be intended. Decisions to this effect are many, but examination discloses that, in practically all, the provocative language which was held to amount to a breach of the peace consisted of profane, indecent, or abusive remarks directed to the person of the hearer. Resort to epithets or Page 310 U. S. 310 personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument. We find in the instant case no assault or threatening of bodily harm, no truculent bearing, no intentional discourtesy, no personal abuse. On the contrary, we find only an effort to persuade a willing listener to buy a book or to contribute money in the interest of what Cantwell, however misguided others may think him, conceived to be true religion. In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained, in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy. The essential characteristic of these liberties is that, under their shield, many types of life, character, opinion and belief can develop unmolested and unobstructed. Nowhere is this shield more necessary than in our own country, for a people composed of many races and of many creeds. There are limits to the exercise of these liberties. The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the States appropriately may punish. Page 310 U. S. 311 Although the contents of the record not unnaturally aroused animosity, we think that, in the absence of a statute narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State, the petitioner's communication, considered in the light of the constitutional guarantees, raised no such clear and present menace to public peace and order as to render him liable to conviction of the common law offense in question. [ Footnote 10 ] The judgment affirming the convictions on the third and fifth counts is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. Reversed. [ Footnote 1 ] General Statutes § 6294, as amended by § 860d of the 1937 supplement. [ Footnote 2 ] 126 Conn. 1, 8 A.2d 533. [ Footnote 3 ] Schneider v. State, 308 U. S. 147 , 308 U. S. 160 . [ Footnote 4 ] Reynolds v. United States, 98 U. S. 145 ; Davis v. Beason, 133 U. S. 333 . [ Footnote 5 ] Compare Near v. Minnesota, 283 U. S. 697 , 283 U. S. 713 . [ Footnote 6 ] Woodmont Assn. v. Milford, 85 Conn. 517, 522; 84 A. 307, 310; see also Connecticut Co. v. Norwalk, 89 Conn. 528, 531; 94 A. 992. [ Footnote 7 ] Near v. Minnesota, 283 U. S. 697 . [ Footnote 8 ] Compare Lewis Publishing Co. v. Morgan, 229 U. S. 288 , 229 U. S. 306 -310; New York ex rel. Bryant v. Zimmerman, 278 U. S. 63 , 278 U. S. 72 . [ Footnote 9 ] Compare Gitlow v. New York, 268 U. S. 652 , 268 U. S. 670 -671; Thornhill v. Alabama, ante, pp. 310 U. S. 98 -105. [ Footnote 10 ] Compare Schenck v. United States, 249 U. S. 47 , 249 U. S. 52 ; Herndon v. Lowry, 301 U. S. 242 , 301 U. S. 256 ; Thornhill v. Alabama, ante, p. 310 U. S. 88 .

In Cantwell v. Connecticut, the Supreme Court ruled that a state law prohibiting the solicitation of money for any alleged religious cause without a government-issued certificate is unconstitutional. The Court held that this law violated the Fourteenth Amendment, which includes the liberties guaranteed by the First Amendment, such as freedom of religion and speech. The Court also affirmed that while states can regulate the time, place, and manner of soliciting and holding meetings, they cannot unduly infringe on these protected freedoms. Additionally, the Court discussed the common law offense of breach of the peace, which can include acts and words likely to produce violence in others. In this case, the defendant's actions, though arousing animosity, did not pose a clear and present danger to public peace and order, and thus did not constitute a breach of the peace.

Free Speech

Chaplinsky v. New Hampshire

https://supreme.justia.com/cases/federal/us/315/568/

U.S. Supreme Court Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) Chaplinsky v. New Hampshire No. 255 Argued February 5, 1942 Decided March 9, 1942 315 U.S. 568 APPEAL FROM THE SUPREME COURT OF NEW HAMPSHIRE Syllabus 1. That part of c. 378, § 2, of the Public Law of New Hampshire which forbids under penalty that any person shall address "any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place," or "call him by any offensive or derisive name," was construed by the Supreme Court of the State, in this case and before this case arose, as limited to the use in a public place of words directly tending to cause a breach of the peace by provoking the person addressed to acts of violence. Held: (1) That, so construed, it is sufficiently definite and specific to comply with requirements of due process of law. P. 315 U. S. 573 . (2) That, as applied to a person who, on a public street, addressed another as a "damned Fascist" and a "damned racketeer," it does not substantially or unreasonably impinge upon freedom of speech. P. 315 U.S. 574 . (3) The refusal of the state court to admit evidence offered by the defendant tending to prove provocation and evidence bearing on the truth or falsity of the utterances charged is open to no constitutional objection. P. 315 U.S. 574 . 2. The Court notices judicially that the appellations "damned racketeer" and "damned Fascist" are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace. P. 315 U.S. 574 91 N.H. 310, 18 A.2d 754, affirmed. APPEAL from a judgment affirming a conviction under a state law denouncing the use of offensive words when addressed by one person to another in a public place. Page 315 U. S. 569 MR. JUSTICE MURPHY delivered the opinion of the Court. Appellant, a member of the sect known as Jehovah's Witnesses, was convicted in the municipal court of Rochester, New Hampshire, for violation of Chapter 378, § 2, of the Public Laws of New Hampshire: "No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation." The complaint charged that appellant, "with force and arms, in a certain public place in said city of Rochester, to-wit, on the public sidewalk on the easterly side of Wakefield Street, near unto the entrance of the City Hall, did unlawfully repeat the words following, addressed to the complainant, that is to say, 'You are a God damned racketeer' and 'a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists,' the same being offensive, derisive and annoying words and names." Upon appeal, there was a trial de novo of appellant before a jury in the Superior Court. He was found guilty, and the judgment of conviction was affirmed by the Supreme Court of the State. 91 N.H. 310, 18 A.2d 754. By motions and exceptions, appellant raised the questions that the statute was invalid under the Fourteenth Amendment of the Constitution of the United States in that it placed an unreasonable restraint on freedom of speech, freedom of the press, and freedom of worship, and because it was vague and indefinite. These contentions were overruled, and the case comes here on appeal. There is no substantial dispute over the facts. Chaplinsky was distributing the literature of his sect on the streets Page 315 U. S. 570 of Rochester on a busy Saturday afternoon. Members of the local citizenry complained to the City Marshal, Bowering, that Chaplinsky was denouncing all religion as a "racket." Bowering told them that Chaplinsky was lawfully engaged, and then warned Chaplinsky that the crowd was getting restless. Some time later, a disturbance occurred and the traffic officer on duty at the busy intersection started with Chaplinsky for the police station, but did not inform him that he was under arrest or that he was going to be arrested. On the way, they encountered Marshal Bowering, who had been advised that a riot was under way and was therefore hurrying to the scene. Bowering repeated his earlier warning to Chaplinsky, who then addressed to Bowering the words set forth in the complaint. Chaplinsky's version of the affair was slightly different. He testified that, when he met Bowering, he asked him to arrest the ones responsible for the disturbance. In reply, Bowering cursed him and told him to come along. Appellant admitted that he said the words charged in the complaint, with the exception of the name of the Deity. Over appellant's objection, the trial court excluded, as immaterial, testimony relating to appellant's mission "to preach the true facts of the Bible," his treatment at the hands of the crowd, and the alleged neglect of duty on the part of the police. This action was approved by the court below, which held that neither provocation nor the truth of the utterance would constitute a defense to the charge. It is now clear that "Freedom of speech and freedom of the press, which are protected by the First Amendment from infringement by Congress, are among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state Page 315 U. S. 571 action." Lovell v. Griffin, 303 U. S. 444 , 303 U. S. 450 . [ Footnote 1 ] Freedom of worship is similarly sheltered. Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 303 . Appellant assails the statute as a violation of all three freedoms, speech, press and worship, but only an attack on the basis of free speech is warranted. The spoken, not the written, word is involved. And we cannot conceive that cursing a public officer is the exercise of religion in any sense of the term. But even if the activities of the appellant which preceded the incident could be viewed as religious in character, and therefore entitled to the protection of the Fourteenth Amendment, they would not cloak him with immunity from the legal consequences for concomitant acts committed in violation of a valid criminal statute. We turn, therefore, to an examination of the statute itself. Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. [ Footnote 2 ] There are certain well defined and narrowly limited classes of speech, the prevention Page 315 U. S. 572 and punishment of which have never been thought to raise any Constitutional problem. [ Footnote 3 ] These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words -- those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. [ Footnote 4 ] It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. [ Footnote 5 ] "Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument." Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 309 -310. The state statute here challenged comes to us authoritatively construed by the highest court of New Hampshire. It has two provisions -- the first relates to words or names addressed to another in a public place; the second refers to noises and exclamations. The court said: "The two provisions are distinct. One may stand separately from the other. Assuming, without holding, that the second were unconstitutional, the first could stand if constitutional." We accept that construction of severability and limit our consideration to the first provision of the statute. [ Footnote 6 ] Page 315 U. S. 573 On the authority of its earlier decisions, the state court declared that the statute's purpose was to preserve the public peace, no words being "forbidden except such as have a direct tendency to cause acts of violence by the persons to whom, individually, the remark is addressed." [ Footnote 7 ] It was further said: "The word 'offensive' is not to be defined in terms of what a particular addressee thinks. . . . The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. . . . The English language has a number of words and expressions which, by general consent, are 'fighting words' when said without a disarming smile. . . . [S]uch words, as ordinary men know, are likely to cause a fight. So are threatening, profane or obscene revilings. Derisive and annoying words can be taken as coming within the purview of the statute as heretofore interpreted only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace. . . . The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitutes a breach of the peace by the speaker -- including 'classical fighting words,' words in current use less 'classical' but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats." We are unable to say that the limited scope of the statute as thus construed contravenes the Constitutional right of free expression. It is a statute narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace. Cf. Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 311 ; Thornhill v. Alabama , Page 315 U. S. 574 310 U. S. 88 , 310 U. S. 105 . This conclusion necessarily disposes of appellant's contention that the statute is so vague and indefinite as to render a conviction thereunder a violation of due process. A statute punishing verbal acts, carefully drawn so as not unduly to impair liberty of expression, is not too vague for a criminal law. Cf. Fox v. Washington 236 U.S. 273 , 236 U. S. 277 . [ Footnote 8 ] Nor can we say that the application of the statute to the facts disclosed by the record substantially or unreasonably impinges upon the privilege of free speech. Argument is unnecessary to demonstrate that the appellations "damned racketeer" and "damned Fascist" are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace. The refusal of the state court to admit evidence of provocation and evidence bearing on the truth or falsity of the utterances is open to no Constitutional objection. Whether the facts sought to be proved by such evidence constitute a defense to the charge, or may be shown in mitigation, are questions for the state court to determine. Our function is fulfilled by a determination that the challenged statute, on its face and as applied, doe not contravene the Fourteenth Amendment. Affirmed. [ Footnote 1 ] See also Bridges v. California, 314 U. S. 252 ; Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 303 ; Thornhill v. Alabama, 310 U. S. 88 , 310 U. S. 95 ; Schneider v. State, 308 U. S. 147 , 308 U. S. 160 ; De Jonge v. Oregon, 299 U. S. 353 , 299 U. S. 364 ; Grosjean v. American Press Co., 297 U. S. 233 , 297 U. S. 243 ; Near v. Minnesota, 283 U. S. 697 , 283 U. S. 707 ; Stromberg v. California, 283 U. S. 359 , 283 U. S. 368 ; Whitney v. California, 274 U. S. 357 , 274 U. S. 362 , 274 U. S. 371 , 274 U. S. 373 ; Gitlow v. New York, 268 U. S. 652 , 268 U. S. 666 . Appellant here pitches his argument on the due process clause of the Fourteenth Amendment. [ Footnote 2 ] Schenck v. United States, 249 U. S. 47 ; Whitney v. California, 274 U. S. 357 , 274 U. S. 373 (Brandeis, J., concurring); Stromberg v. California, 283 U. S. 359 ; Near v. Minnesota, 283 U. S. 697 ; De Jonge v. Oregon, 299 U. S. 353 ; Herndon v. Lowry, 301 U. S. 242 ; Cantwell v. Connecticut, 310 U. S. 296 . [ Footnote 3 ] The protection of the First Amendment, mirrored in the Fourteenth, is not limited to the Blackstonian idea that freedom of the press means only freedom from restraint prior to publication. Near v. Minnesota, 283 U. S. 697 , 283 U. S. 714 -715. [ Footnote 4 ] Chafee, Free Speech in the United States (1941), 149. [ Footnote 5 ] Chafee, op. cit., 150. [ Footnote 6 ] Since the complaint charged appellant only with violating the first provision of the statute, the problem of Stromberg v. California, 283 U. S. 359 , is not present. [ Footnote 7 ] State v. Brown, 68 N.H. 200, 38 A. 731; State v. McConnell, 70 N.H. 294, 47 A. 267. [ Footnote 8 ] We do not have here the problem of Lanzetta v. New Jersey, 306 U. S. 451 . Even if the interpretative gloss placed on the statute by the court below be disregarded, the statute had been previously construed as intended to preserve the public peace by punishing conduct the direct tendency of which was to provoke the person against whom it was directed to acts of violence. State v. Brown, 68 N.H. 200, 38 A. 731 (1894).

Here is a summary of the Supreme Court case Chaplinsky v. New Hampshire (1942): The case concerned a New Hampshire law that prohibited individuals from using offensive or derisive language towards others in public places. The appellant, a member of Jehovah's Witnesses, was convicted for violating this law after calling someone a "damned Fascist" and a "damned racketeer" on a public street. The Supreme Court upheld the conviction, ruling that the law, as interpreted by the state court, was sufficiently clear and did not violate the appellant's freedom of speech rights. The Court agreed with the state court's interpretation that the law only prohibited words that directly incited violence or a breach of the peace. The Court also held that the specific words used by the appellant were likely to provoke a violent response and cause a breach of the peace. Evidence of provocation or the truth of the appellant's statements was deemed irrelevant to the charge and posed no constitutional issue. In conclusion, Chaplinsky v. New Hampshire set a precedent for regulating speech that is likely to incite violence, establishing the "fighting words" doctrine, which exempts such speech from First Amendment protection.

Free Speech

Feiner v. New York

https://supreme.justia.com/cases/federal/us/340/315/

U.S. Supreme Court Feiner v. New York, 340 U.S. 315 (1951) Feiner v. New York No. 93 Argued October 17, 1950 Decided January 15, 1951 340 U.S. 315 CERTIORARI TO THE COURT OF APPEALS OF NEW YORK Syllabus Petitioner made an inflammatory speech to a mixed crowd of 75 or 80 Negroes and white people on a city street. He made derogatory remarks about President Truman, the American Legion, and local political officials, endeavored to arouse the Negroes against the whites, and urged that Negroes rise up in arms and fight for equal rights. The crowd, which blocked the sidewalk and overflowed into the street, became restless; its feelings for and against the speaker were rising, and there was at least one threat of violence. After observing the situation for some time without interference, police officers, in order to prevent a fight, thrice requested petitioner to get off the box and stop speaking. After his third refusal, and after he had been speaking over 30 minutes, they arrested him, and he was convicted of violating § 722 of the Penal Code of New York, which, in effect, forbids incitement of a breach of the peace. The conviction was affirmed by two New York courts on review. Held: The conviction is sustained against a claim that it violated petitioner's right of free speech under the First and Fourteenth Amendments. Pp. 340 U. S. 316 -321. (a) Petitioner was neither arrested nor convicted for the making or the content of his speech, but for the reaction which it actually engendered. Pp. 340 U. S. 319 -320. (b) The police cannot be used as an instrument for the suppression of unpopular views; but, when a speaker passes the bounds of argument or persuasion and undertakes incitement to riot, the police are not powerless to prevent a breach of the peace. P. 340 U. S. 321 . 300 N.Y. 391, 91 N.E.2d 316, affirmed. The case is stated in the first paragraph of the opinion. The decision below is affirmed, p. 340 U. S. 321 . Page 340 U. S. 316 MR. CHIEF JUSTICE VINSON delivered the opinion of the Court. Petitioner was convicted of the offense of disorderly conduct, a misdemeanor under the New York penal laws, in the Court of Special Sessions of the City of Syracuse and was sentenced to thirty days in the county penitentiary. The conviction was affirmed by the Onondaga County Court and the New York Court of Appeals, 300 N.Y. 391, 91 N.E.2d 316 (1950). The case is here on certiorari, 339 U.S. 962 (1950), petitioner having claimed that the conviction is in violation of his right of free speech under the Fourteenth Amendment. In the review of state decisions where First Amendment rights are drawn in question, we, of course, make an examination of the evidence to ascertain independently whether the right has been violated. Here, the trial judge, who heard the case without a jury, rendered an oral decision at the end of the trial, setting forth his determination of the facts upon which he found the petitioner guilty. His decision indicated generally that he believed the state's witnesses, and his summation of the testimony was used by the two New York courts on review in stating the facts. Our appraisal of the facts is therefore based upon the uncontroverted facts and, where controversy exists, upon that testimony which the trial judge did reasonably conclude to be true. On the evening of March 8, 1949, petitioner Irving Feiner was addressing an open-air meeting at the corner of South McBride and Harrison Streets in the City of Syracuse. At approximately 6:30 p.m., the police received a telephone complaint concerning the meeting, and two officers were detailed to investigate. One of these officers went to the scene immediately, the other arriving some twelve minutes later. They found a crowd of about seventy-five or eighty people, both Negro and white, filling the sidewalk and spreading out into the street. Petitioner, Page 340 U. S. 317 standing on a large wooden box on the sidewalk, was addressing the crowd through a loud-speaker system attached to an automobile. Although the purpose of his speech was to urge his listeners to attend a meeting to be held that night in the Syracuse Hotel, in its course, he was making derogatory remarks concerning President Truman, the American Legion, the Mayor of Syracuse, and other local political officials. The police officers made no effort to interfere with petitioner's speech, but were first concerned with the effect of the crowd on both pedestrian and vehicular traffic. They observed the situation from the opposite side of the street, noting that some pedestrians were forced to walk in the street to avoid the crowd. Since traffic was passing at the time, the officers attempted to get the people listening to petitioner back on the sidewalk. The crowd was restless, and there was some pushing, shoving, and milling around. One of the officers telephoned the police station from a nearby store, and then both policemen crossed the street and mingled with the crowd without any intention of arresting the speaker. At this time, petitioner was speaking in a "loud, high-pitched voice." He gave the impression that he was endeavoring to arouse the Negro people against the whites, urging that they rise up in arms and fight for equal rights. The statements before such a mixed audience "stirred up a little excitement." Some of the onlookers made remarks to the police about their inability to handle the crowd, and at least one threatened violence if the police did not act. There were others who appeared to be favoring petitioner's arguments. Because of the feeling that existed in the crowd both for and against the speaker, the officers finally "stepped in to prevent it from resulting in a fight." One of the officers approached the petitioner, not for the purpose of arresting him, but to get him to break up the crowd. He asked petitioner to get down Page 340 U. S. 318 off the box, but the latter refused to accede to his request and continued talking. The officer waited for a minute and then demanded that he cease talking. Although the officer had thus twice requested petitioner to stop over the course of several minutes, petitioner not only ignored him, but continued talking. During all this time, the crowd was pressing closer around petitioner and the officer. Finally, the officer told petitioner he was under arrest and ordered him to get down from the box, reaching up to grab him. Petitioner stepped down, announcing over the microphone that "the law has arrived, and I suppose they will take over now." In all, the officer had asked petitioner to get down off the box three times over a space of four or five minutes. Petitioner had been speaking for over a half hour. On these facts, petitioner was specifically charged with violation of § 722 of the Penal Law of New York, Mc.K.Consol.Laws, c. 40, the pertinent part of which is set out in the margin. [ Footnote 1 ] The bill of particulars, demanded by petitioner and furnished by the State, gave in detail the facts upon which the prosecution relied to support the charge of disorderly conduct. Paragraph C is particularly pertinent here: "By ignoring and refusing to heed and obey reasonable police orders issued at the time and place mentioned in the Information to regulate and control said crowd and to prevent a breach or breaches of the peace and to prevent injury to pedestrians Page 340 U. S. 319 attempting to use said walk, and being forced into the highway adjacent to the place in question, and prevent injury to the public generally." We are not faced here with blind condonation by a state court of arbitrary police action. Petitioner was accorded a full, fair trial. The trial judge heard testimony supporting and contradicting the judgment of the police officers that a clear danger of disorder was threatened. After weighing this contradictory evidence, the trial judge reached the conclusion that the police officers were justified in taking action to prevent a breach of the peace. The exercise of the police officers' proper discretionary power to prevent a breach of the peace was thus approved by the trial court, and later by two courts on review. [ Footnote 2 ] The courts below recognized petitioner's right to hold a street meeting at this locality, to make use of loudspeaking equipment in giving his speech, and to make derogatory remarks concerning public officials and the American Legion. They found that the officers in making the arrest were motivated solely by a proper concern for the preservation of order and protection of the general welfare, and that there was no evidence which could lend color to a claim that the acts of the police were a cover for suppression of petitioner's views and opinions. Petitioner was thus neither arrested nor convicted for the Page 340 U. S. 320 making or the content of his speech. Rather, it was the reaction which it actually engendered. The language of Cantwell v. Connecticut, 310 U. S. 296 (1940), is appropriate here. "The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts, but acts and words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot, or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious." 310 U.S. at 310 U. S. 308 . The findings of the New York courts as to the condition of the crowd and the refusal of petitioner to obey the police requests, supported as they are by the record of this case, are persuasive that the conviction of petitioner for violation of public peace, order, and authority does not exceed the bounds of proper state police action. This Court respects, as it must, the interest of the community in maintaining peace and order on its streets. Schneider v. State, 308 U. S. 147 , 308 U. S. 160 (1939); Kovacs v. Cooper, 336 U. S. 77 , 336 U. S. 82 (1949). We cannot say that the preservation of that interest here encroaches on the constitutional rights of this petitioner. We are well aware that the ordinary murmurings and objections of a hostile audience cannot be allowed to silence a speaker, and are also mindful of the possible danger of giving overzealous police officials complete discretion to break up otherwise lawful public meetings. "A State may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions." Cantwell v. Connecticut, supra, at Page 340 U. S. 321 310 U. S. 308 . But we are not faced here with such a situation. It is one thing to say that the police cannot be used as an instrument for the suppression of unpopular views, and another to say that when, as here, the speaker passes the bounds of argument or persuasion and undertakes incitement to riot, they are powerless to prevent a breach of the peace. Nor, in this case, can we condemn the considered judgment of three New York courts approving the means which the police, faced with a crisis, used in the exercise of their power and duty to preserve peace and order. The findings of the state courts as to the existing situation and the imminence of greater disorder, coupled with petitioner's deliberate defiance of the police officers, convince us that we should not reverse this conviction in the name of free speech. Affirmed. [For opinion of MR. JUSTICE FRANKFURTER, concurring in the result, see ante, p. 340 U. S. 273 .] [ Footnote 1 ] "Section 722. Any person who, with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct: " "1. Uses offensive, disorderly, threatening, abusive or insulting language, conduct or behavior;" "2. Acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others;" "3. Congregates with others on a public street and refuses to move on when ordered by the police. . . ." [ Footnote 2 ] The New York Court of Appeals said: "An imminent danger of a breach of the peace, of a disturbance of public order, perhaps even of riot, was threatened . . . ; the defendant, as indicated above, disrupted pedestrian and vehicular traffic on the sidewalk and street, and, with intent to provoke a breach of the peace and with knowledge of the consequences, so inflamed and agitated a mixed audience of sympathizers and opponents that, in the judgment of the police officers present, a clear danger of disorder and violence was threatened. Defendant then deliberately refused to accede to the reasonable request of the officer, made within the lawful scope of his authority, that the defendant desist in the interest of public welfare and safety." 300 N.Y. 391, 400, 402, 91 N.E.2d 316, 319, 321. MR. JUSTICE BLACK, dissenting. The record before us convinces me that petitioner, a young college student, has been sentenced to the penitentiary for the unpopular views he expressed [ Footnote 2/1 ] on matters of public interest while lawfully making a street corner Page 340 U. S. 322 speech in Syracuse, New York. [ Footnote 2/2 ] Today's decision, however, indicates that we must blind ourselves to this fact because the trial judge fully accepted the testimony of the prosecution witnesses on all important points. [ Footnote 2/3 ] Many times in the past, this Court has said that, despite findings below, we will examine the evidence for ourselves to ascertain whether federally protected rights have been denied; otherwise, review here would fail of its purpose in safeguarding constitutional guarantees. [ Footnote 2/4 ] Even a partial Page 340 U. S. 323 abandonment of this rule marks a dark day for civil liberties in our Nation. But still more has been lost today. Even accepting every "finding of fact" below, I think this conviction makes a mockery of the free speech guarantees of the First and Fourteenth Amendments. The end result of the affirmance here is to approve a simple and readily available technique by which cities and states can, with impunity, subject all speeches, political or otherwise, on streets or elsewhere, to the supervision and censorship of the local police. I will have no part or parcel in this holding, which I view as a long step toward totalitarian authority. Considering only the evidence which the state courts appear to have accepted, the pertinent "facts" are: Syracuse city authorities granted a permit for O. John Rogge, a former Assistant Attorney General, to speak in a public school building on March 8, 1948, on the subject of racial discrimination and civil liberties. On March 8th, however, Page 340 U. S. 324 the authorities cancelled the permit. The Young Progressives, under whose auspices the meeting was scheduled, then arranged for Mr. Rogge to speak at the Hotel Syracuse. The gathering on the street where petitioner spoke was held to protest the cancellation and to publicize the meeting at the hotel. In this connection, petitioner used derogatory but not profane language with reference to the city authorities, President Truman, and the American Legion. After hearing some of these remarks, a policeman, who had been sent to the meeting by his superiors, reported to Police Headquarters by telephone. To whom he reported or what was said does not appear in the record, but, after returning from the call, he and another policeman started through the crowd toward petitioner. Both officers swore they did not intend to make an arrest when they started, and the trial court accepted their statements. They also said, and the court believed, that they heard and saw "angry mutterings," "pushing," "shoving and milling around" and "restlessness." Petitioner spoke in a "loud, high-pitched voice." He said that colored people "don't have equal rights, and they should rise up in arms and fight for them." [ Footnote 2/5 ] One man who heard this told the officers that, if they did not take that "S . . . O . . . B . . ." off the box, he would. The officers then approached petitioner for the first time. Page 340 U. S. 325 One of them first "asked" petitioner to get off the box, but petitioner continued urging his audience to attend Rogge's speech. The officer next "told" petitioner to get down, but he did not. The officer finally "demanded" that petitioner get down, telling him he was under arrest. Petitioner then told the crowd that "the law had arrived, and would take over," and asked why he was arrested. The officer first replied that the charge was "unlawful assembly," but later changed the ground to "disorderly conduct." [ Footnote 2/6 ] The Court's opinion apparently rests on this reasoning: the policeman, under the circumstances detailed, could reasonably conclude that serious fighting or even riot was imminent; therefore, he could stop petitioner's speech to prevent a breach of peace; accordingly, it was "disorderly conduct" for petitioner to continue speaking in disobedience of the officer's request. As to the existence of a dangerous situation on the street corner, it seems far-fetched to suggest that the "facts" show any imminent threat of riot or uncontrollable disorder. [ Footnote 2/7 ] It Page 340 U. S. 326 is neither unusual nor unexpected that some people at public street meetings mutter, mill about, push, shove, or disagree, even violently, with the speaker. Indeed, it is rare, where controversial topics are discussed, that an out-door crowd does not do some or all of these things. Nor does one isolated threat to assault the speaker forebode disorder. Especially should the danger be discounted where, as here, the person threatening was a man whose wife and two small children accompanied him, and who, so far as the record shows, was never close enough to petitioner to carry out the threat. Moreover, assuming that the "facts" did indicate a critical situation, I reject the implication of the Court's opinion that the police had no obligation to protect petitioner's constitutional right to talk. The police, of course, have power to prevent breaches of the peace. But if, in the name of preserving order, they ever can interfere with a lawful public speaker, they first must make all reasonable efforts to protect him. [ Footnote 2/8 ] Here, the policemen did not even pretend to try to protect petitioner. According to the officers' testimony, the crowd was restless, but there is Page 340 U. S. 327 no showing of any attempt to quiet it; pedestrians were forced to walk into the street, but there was no effort to clear a path on the sidewalk; one person threatened to assault petitioner, but the officers did nothing to discourage this, when even a word might have sufficed. Their duty was to protect petitioner's right to talk, even to the extent of arresting the man who threatened to interfere. [ Footnote 2/9 ] Instead, they shirked that duty and acted only to suppress the right to speak. Finally, I cannot agree with the Court's statement that petitioner's disregard of the policeman's unexplained request amounted to such "deliberate defiance" as would justify an arrest or conviction for disorderly conduct. On the contrary, I think that the policeman's action was a "deliberate defiance" of ordinary official duty, as well as of the constitutional right of free speech. For, at least where time allows, courtesy and explanation of commands are basic elements of good official conduct in a democratic society. Here, petitioner was "asked," then "told," then "commanded" to stop speaking, but a man making a lawful address is certainly not required to be silent merely Page 340 U. S. 328 because an officer directs it. Petitioner was entitled to know why he should cease doing a lawful act. Not once was he told. I understand that people in authoritarian countries must obey arbitrary orders. I had hoped that there was no such duty in the United States. In my judgment, today's holding means that, as a practical matter, minority speakers can be silenced in any city. Hereafter, despite the First and Fourteenth Amendments, the policeman's club can take heavy toll of a current administration's public critics. [ Footnote 2/10 ] Criticism of public officials will be too dangerous for all but the most courageous. [ Footnote 2/11 ] This is true regardless of the fact that, in Page 340 U. S. 329 two other cases decided this day, Kunz v. New York, 340 U. S. 290 ; Niemotko v. Maryland, 340 U. S. 268 , a majority, in obedience to past decisions of this Court, provides a theoretical safeguard for freedom of speech. For whatever is thought to be guaranteed in Kunz and Niemotko is taken away by what is done here. The three cases, read together, mean that, while previous restraints probably cannot be imposed on an unpopular speaker, the police have discretion to silence him as soon as the customary hostility to his views develops. In this case, I would reverse the conviction, thereby adhering to the great principles of the First and Fourteenth Amendments as announced for this Court in 1940 by Mr. Justice Roberts: "In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields, the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy." Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 310 . I regret my inability to persuade the Court not to retreat from this principle. [ Footnote 2/1 ] The trial judge framed the question for decision as follows: "The question here is what was said and what was done? And it doesn't make any difference whether whatever was said was said with a loudspeaker or not. There are acts and conduct an individual can engage in when you don't even have to have a crowd gathered around which would justify a charge of disorderly conduct. The question is, what did this defendant say and do at that particular time, and the Court must determine whether those facts, concerning what the defendant did or said, are sufficient to support the charge." There is no suggestion in the record that petitioner "did" anything other than (1) speak and (2) continue for a short time to invite people to a public meeting after a policeman had requested him to stop speaking. [ Footnote 2/2 ] There was no charge that any city or state law prohibited such a meeting at the place or time it was held. Evidence showed that it was customary to hold public gatherings on that same corner every Friday night, and the trial judge who convicted petitioner admitted that he understood the meeting was a lawful one. Nor did the judge treat the lawful meeting as unlawful because a crowd congregated on the sidewalk. Consequently, any discussion of disrupted pedestrian and vehicular traffic, while suggestive coloration, is immaterial under the charge and conviction here. It is implied in a concurring opinion that the use of sound amplifiers in some way caused the meeting to become less lawful. This fact, however, had nothing to do with the conviction of petitioner. In sentencing him, the trial court said: "You had a perfect right to appear there and to use that implement, the loudspeaker. You had a right to have it in the street." See also 340 U.S. 315 fn2/1|>note 1, supra. [ Footnote 2/3 ] The trial court made no findings of fact as such. A decision was rendered from the bench in which, among other things, the trial judge expressed some views on the evidence. See 340 U.S. 315 fn2/11|>note 11, infra. [ Footnote 2/4 ] In Norris v. Alabama, 294 U. S. 587 , the evidence as to whether Negroes had been discriminated against in the selection of grand juries was conflicting. Chief Justice Hughes, writing for the Court, said at pages 294 U. S. 589 -590: "The question is of the application of this established principle [equal protection] to the facts disclosed by the record. That the question is one of fact does not relieve us of the duty to determine whether, in truth, a federal right has been denied. When a federal right has been specially set up and claimed in a state court, it is our province to inquire not merely whether it was denied in express terms, but also whether it was denied in substance and effect. If this requires an examination of evidence, that examination must be made. Otherwise, review by this Court would fail of its purpose in safeguarding constitutional rights. Thus, whenever a conclusion of law of a state court as to a federal right and findings of fact are so intermingled that the latter control the former, it is incumbent upon us to analyze the facts in order that the appropriate enforcement of the federal right may be assured." This same rule has been announced in the following cases, as well as in numerous others: Truax v. Corrigan, 257 U. S. 312 , 257 U. S. 324 ; Hooven & Allison Co. v. Evatt, 324 U. S. 652 , 324 U. S. 659 ; Chambers v. Florida, 309 U. S. 227 , 309 U. S. 228 ; Pierre v. Louisiana, 306 U. S. 354 , 306 U. S. 358 ; Pennekamp v. Florida, 328 U. S. 331 , 328 U. S. 335 ; Patton v. Mississippi, 332 U. S. 463 , 332 U. S. 466 ; Craig v. Harney, 331 U. S. 367 , 331 U. S. 373 ; Oyama v. California, 332 U. S. 633 , 332 U. S. 636 ; Pollock v. Williams, 322 U. S. 4 , 322 U. S. 13 ; Fay v. New York, 332 U. S. 261 , 332 U. S. 272 ; Akins v. Texas, 325 U. S. 398 , 325 U. S. 401 ; Kansas City Southern R. Co. v. C. H. Albers Comm'n Co., 223 U. S. 573 , 223 U. S. 591 ; First National Bank v. Hartford, 273 U. S. 548 , 273 U. S. 552 ; Fiske v. Kansas, 274 U. S. 380 , 274 U. S. 385 ; Great Northern R. Co. v. Washington, 300 U. S. 154 , 300 U. S. 165 -167. This Court has used varying phraseology in stating the circumstances under which it would review state court findings of fact, but it has not hesitated to make such review when necessary to protect a federal right. Compare Great Northern R. Co. v. Washington, supra, with Taylor v. Mississippi, 319 U. S. 583 , 319 U. S. 585 -586. [ Footnote 2/5 ] I am accepting this although I believe the record demonstrates rather conclusively that petitioner did not use the phrase "in arms" in the manner testified to by the officers. Reliable witnesses swore that petitioner's statement was that his listeners "could rise up and fight for their rights by going arm in arm to the Hotel Syracuse, black and white alike, to hear John Rogge." The testimony of neither of the two officers contained the phrase "in arms" when they first testified on this subject; they added it only after counsel for the prosecution was permitted by the court, over petitioner's objection, to propound leading and suggestive questions. In any event, the statement ascribed to petitioner by the officers seems clearly rhetorical when read in context. [ Footnote 2/6 ] "A charge of using language likely to cause a breach of the peace is a convenient catchall to hold unpopular soapbox orators." Chafee, Free Speech in the United States 524. The related charge of conducting a "disorderly house" has also been used to suppress and punish minority views. For example, an English statute of 1799 classified as disorderly houses certain unlicensed places ("House, Room, Field, or other Place") in which "any Lecture or Discourse shall be publickly delivered, or any publick Debate shall be had on any Subject . . . " or which was used "for the Purpose of reading Books, Pamphlets, Newspapers, or other Publications. . . ." 39 Geo. III, c. 79, § 15. [ Footnote 2/7 ] The belief of the New York Court of Appeals that the situation on the street corner was critical is not supported by the record, and accordingly should not be given much weight here. Two illustrations will suffice: the Court of Appeals relied upon a specific statement of one policeman that he interfered with Feiner at a time when the crowd was "getting to the point where they would be unruly." But this testimony was so patently inadmissible that it was excluded by the trial judge in one of the rare instances where the defendant received a favorable ruling. Secondly, the Court of Appeals stated that, after Feiner had been warned by the police, he continued to "blare out his provocative utterances over loudspeakers to a milling, restless throng. . . ." I am unable to find anything in the record to support this statement, unless the unsworn arguments of the assistant district attorney are accepted as evidence. The principal prosecution witness testified that, after he asked Feiner to get down from the box, Feiner merely "kept telling [the audience] to go to the Syracuse Hotel and hear John Rogge." And this same witness even answered "No" to the highly suggestive question which immediately followed, "Did he say anything more about arming and fighting at that time?" [ Footnote 2/8 ] Cf. Hague v. CIO, 307 U. S. 496 ; Terminiello v. Chicago, 337 U. S. 1 ; Sellers v. Johnson, 163 F.2d 877; see also summary of Brief for Committee on the Bill of Rights of the American Bar Association as amicus curiae, Hague v. CIO, supra, reprinted at 307 U.S. 678-682. [ Footnote 2/9 ] In Schneider v. State, 308 U. S. 147 , we held that a purpose to prevent littering of the streets was insufficient to justify an ordinance which prohibited a person lawfully on the street from handing literature to one willing to receive it. We said at page 308 U. S. 162 , "There are obvious methods of preventing littering. Amongst these is the punishment of those who actually throw papers on the streets." In the present case, as well, the threat of one person to assault a speaker does not justify suppression of the speech. There are obvious available alternative methods of preserving public order. One of these is to arrest the person who threatens an assault. Cf. Dean Milk Co. v. Madison, 340 U. S. 349 , in which the Court invalidates a municipal health ordinance under the Commerce Clause because of a belief that the city could have accomplished its purposes by reasonably adequate alternatives. The Court certainly should not be less alert to protect freedom of speech than it is to protect freedom of trade. [ Footnote 2/10 ] Today the Court characterizes petitioner's speech as one designed to incite riot, and approves suppression of his views. There is an alarming similarity between the power thus possessed by the Syracuse (or any other) police and that possessed by English officials under an act passed by Parliament in 1795. In that year, Justices of the Peace were authorized to arrest persons who spoke in a manner which could be characterized as "inciting and stirring up the People to Hatred or Contempt . . . " of the King or the Government. 36 Geo. III, c. 8, § 7. This statute "was manifestly intended to put an end forever to all popular discussion, either on political or religious matters." 1 Buckle, History of Civilization in England (2d London ed.) 350. [ Footnote 2/11 ] That petitioner and the philosophy he espoused were objects of local antagonism appears clearly from the printed record in this case. Even the trial judge in his decision made no attempt to conceal his contempt for petitioner's views. He seemed outraged by petitioner's criticism of public officials and the American Legion. Moreover, the judge gratuitously expressed disapproval of O. John Rogge by quoting derogatory statements concerning Mr. Rogge which had appeared in the Syracuse press. The court approved the view that freedom of speech should be denied those who pit "class against class . . . and religion against religion." And, after announcing its decision, the court persistently refused to grant bail pending sentence. Although it is unnecessary for me to reach the question of whether the trial below met procedural due process standards, I cannot agree with the opinion of the Court that "Petitioner was accorded a full, fair trial." MR. JUSTICE DOUGLAS, with whom MR. JUSTICE MINTON concurs, dissenting. Feiner, a university student, made a speech on a street corner in Syracuse, New York, on March 8, 1949. The purpose of the speech was to publicize a meeting of the Page 340 U. S. 330 Young Progressives of America to be held that evening. A permit authorizing the meeting to be held in a public school auditorium had been revoked, and the meeting shifted to a local hotel. Feiner delivered his speech in a small shopping area in a predominantly colored residential section of Syracuse. He stood on a large box and spoke over loudspeakers mounted on a car. His audience was composed of about 75 people, colored and white. A few minutes after he started, two police officers arrived. The speech was mainly devoted to publicizing the evening's meeting and protecting the revocation of the permit. It also touched on various public issues. The following are the only excerpts revealed by the record: "Mayor Costello [of Syracuse] is a champagne-sipping bum; he does not speak for the negro people." "The 15th Ward is run by corrupt politicians, and there are horse rooms operating there." "President Truman is a bum." "Mayor O'Dwyer is a bum." "The American Legion is a Nazi Gestapo." "The negroes don't have equal rights; they should rise up in arms and fight for their rights." There was some pushing and shoving in the crowd and some angry muttering. That is the testimony of the police. But there were no fights and no "disorder," even by the standards of the police. There was not even any heckling of the speaker. But after Feiner has been speaking about 20 minutes, a man said to the police officers, "If you don't get that son of a bitch off, I will go over and get him off there myself." It was then that the police ordered Feiner to stop speaking; when he refused, they arrested him. Public assemblies and public speech occupy an important role in American life. One high function of Page 340 U. S. 331 the police is to protect these lawful gatherings so that the speakers may exercise their constitutional rights. When unpopular causes are sponsored from the public platform, there will commonly be mutterings and unrest and heckling from the crowd. When a speaker mounts a platform it is not unusual to find him resorting to exaggeration, to vilification of ideas and men, to the making of false charges. But those extravagances, as we emphasized in Cantwell v. Connecticut, 310 U. S. 296 , do not justify penalizing the speaker by depriving him of the platform or by punishing him for his conduct. A speaker may not, of course, incite a riot, any more than he may incite a breach of the peace by the use of "fighting words." See Chaplinsky v. New Hampshire, 315 U. S. 568 . But this record shows no such extremes. It shows an unsympathetic audience and the threat of one man to haul the speaker from the stage. It is against that kind of threat that speakers need police protection. If they do not receive it, and instead the police throw their weight on the side of those who would break up the meetings, the police become the new censors of speech. Police censorship has all the vices of the censorship from city halls which we have repeatedly struck down. See Lovell v. City of Griffin, 303 U. S. 444 ; Hague v. CIO, 307 U. S. 496 ; Cantwell v. Connecticut, supra; Murdock v. Pennsylvania, 319 U. S. 105 ; Saia v. New York, 334 U. S. 558 .

The Supreme Court upheld the conviction of a petitioner who was arrested and charged with inciting a breach of the peace during a speech that criticized political figures and encouraged African Americans to rise up in arms to fight for equal rights. The Court found that the petitioner's right to free speech under the First and Fourteenth Amendments was not violated because he was arrested and convicted based on the reaction his speech engendered, which included unrest and a threat of violence. The police are responsible for maintaining peace and order during public assemblies and have the authority to intervene when a speaker incites a riot or breach of the peace.

Free Speech

Curtis Publishing Co. v. Butts

https://supreme.justia.com/cases/federal/us/388/130/

U.S. Supreme Court Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967) Curtis Publishing Co. v. Butts No. 37 Argued February 23, 1967 Decided June 12, 1967 388 U.S. 130 ast|>* 388 U.S. 130 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Syllabus In No. 37, respondent brought a diversity libel action in federal court seeking compensatory and punitive damages for an article which was published in petitioner's magazine accusing respondent of conspiring to "fix" a football game between the University of Alabama and the University of Georgia, where he was privately employed as the athletic director. The article was based upon an affidavit concerning a telephone conversation between respondent and the Alabama coach which the affiant, Burnett, had accidentally overheard. Respondent challenged the truth of the article and claimed a serious departure by the magazine from good investigative standards of the accuracy of its charges amounting to reckless and wanton conduct. He submitted evidence at the trial showing, inter alia, that petitioner's magazine, which had instituted a policy of "sophisticated muckraking," knew that Burnett was on criminal probation but had published the story without any independent support for his affidavit; that it did not, before publication, view his notes (the information in which, if not valueless, would be readily available to any coach); that the magazine did not interview a person with Burnett when the phone call was overheard, view the game films, or check for any adjustments in Alabama's plans after the information was divulged, and that the magazine assigned the story to a writer not a football expert and made no effort to have such an expert check the story. The jury was instructed on the issue of truth as a defense and was also instructed that it could award punitive damages and could assess the reliability and the nature of the sources of the magazine's information and its care in checking the assertions, considerations relevant tn determining whether the magazine had proceeded with "wanton and reckless indifference." The jury returned a verdict of general and punitive damages which was reduced by remittitur. The trial court rejected the defense's new trial motion based on New York Times Co. v. Sullivan, 376 U. S. 254 (which was decided after the filing of the complaint in and trial of this case), holding that decision Page 388 U. S. 131 inapplicable to one like petitioner not a public official. It also held the evidence amply supported the conclusion that the magazine had acted in reckless disregard of whether the article was false or not. The Court of Appeals affirmed on the merits. It did not reach the constitutional claim based on New York Times, holding that petitioner had waived the right to make that challenge, since some of its lawyers had been involved in the latter case, yet the defense was based solely on the issue of truth. In No. 150, petitioner, a news association, published a dispatch about a massive riot on the University of Mississippi campus attending federal efforts to enforce a court decree ordering a Negro's enrollment. The dispatch stated that respondent, a politically prominent figure whose statements on federal intervention had been widely publicized, had taken command of the violent crowd and led a charge against federal marshals trying to enforce the court's decree, had encouraged violence and given technical advice to the rioters. Respondent brought a libel action in the Texas state courts for compensatory and punitive damages. Petitioner's defense was based on truth and constitutional rights. The evidence showed that the dispatch had been made on the scene and almost immediately reported to the petitioner by a competent correspondent. There was no significant showing of improper preparation of the dispatch, or any prejudice by petitioner or its correspondent. The jury was instructed that compensatory damages could be awarded if the dispatch was not substantially true and that punitive damages could be added if the article was actuated by ill will or entire want of care. The jury returned a verdict for both compensatory and punitive damages. The trial court refused to enter an award for the latter. The court held New York Times inapplicable, but that, if applicable, it would require a verdict for the petitioner, since there was no evidence of malice. Both sides appealed. The Texas Court of Civil Appeals affirmed, and the Texas Supreme Court denied review. Held: The judgment in No. 37 is affirmed. The judgment in No. 150 is reversed, and the case remanded. Pp. 133-174. No. 37, 351 F.2d 702, affirmed; No. 150, 393 S.W.2d 671, reversed and remanded. MR. JUSTICE HARLAN, joined by MR. JUSTICE CLARK, MR. JUSTICE STEWART, and MR. .JUSTICE FORTAS, concluded that: 1. Petitioner's failure in No. 37 to raise the constitutional defense before trial constituted no waiver of its right to do so after New York Times was decided. Pp. 388 U. S. 142 -145. Page 388 U. S. 132 2. The New York Times rule prohibiting a public official from recovering damages for defamatory falsehood relating to his official conduct absent actual malice as therein defined, though necessary there to protect against prosecutions close to seditious libel for criticizing official conduct, should not be inexorably applied to defamation actions by "public figures" like those here, where different considerations are present. Pp. 388 U. S. 148 , 388 U. S. 152 -154. 3. A "public figure" who is not a public official may recover damages for defamatory falsehood substantially endangering his reputation on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers. P. 388 U. S. 155 . 4. In view of the court's instructions in No. 37, the jury must have decided that the magazine's investigation was grossly inadequate, and the evidence amply supported a finding of the highly unreasonable conduct referred to above. Pp. 388 U. S. 156 -158. 5. In No. 150, where the courts found the evidence insufficient to support more than a finding of even ordinary negligence, respondent is not entitled to damages. Pp. 388 U. S. 158 -159. 6. Misconduct sufficient to justify compensatory damages also justifies punitive damages; the same constitutional standards apply to both. Pp. 388 U. S. 159 -161. THE CHIEF JUSTICE concluded that: 1. The New York Times standard applies to defamation actions by "public figures" as well as those by "public officials." Pp. 388 U. S. 162 -165. 2. The judgment in No. 150, being in clear conflict with New York Times, must be reversed. P. 388 U. S. 165 . 3. Retrial of No. 37 is not necessary, since the jury's verdict therein, in view of instructions which invoked the elements later held necessary in New York Times, most probably was based on the requirement of reckless disregard for the truth enunciated in that case. Pp. 388 U. S. 165 -167. 4. The overlapping of counsel in No. 37 with counsel in New York Times and in a libel action against petitioner by the Alabama coach, in which a First Amendment defense was also made, compels the conclusion that the failure to defend on those grounds here was deliberate. Pp. 388 U. S. 167 -168. 5. The evidence shows that petitioner in No. 37 acted in reckless disregard for the truth. Pp. 388 U. S. 168 -170. Page 388 U. S. 133 MR. JUSTICE BLACK, joined by MR. JUSTICE DOUGLAS, concluded that, in order to dispose of No. 150, he concurs in the grounds stated by THE CHIEF JUSTICE which are summarized in paragraphs 1 and 2, supra, of THE CHIEF JUSTICES conclusions, but does not recede from his previously expressed views about the much wider press and speech freedoms of the First and Fourteenth Amendments. P. 388 U. S. 170 . MR. JUSTICE BRENNAN, joined by MR. JUSTICE WHITE, concluded that the grounds stated by THE CHIEF JUSTICE which are summarized in paragraphs 1 and 2, supra, of THE CHIEF JUSTICE's conclusions in No. 150 govern that case. P. 388 U. S. 172 . MR. JUSTICE HARLAN announced the judgments of the Court and delivered an opinion in which MR. JUSTICE CLARK, MR. JUSTICE STEWART, and MR. JUSTICE FORTAS join.* In New York Times Co. v. Sullivan, 376 U. S. 254 , 376 U. S. 279 -280, this Court held that "[t]he constitutional guarantees Page 388 U. S. 134 [of freedom of speech and press] require . . . a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not." We brought these two cases here, 385 U.S. 811, 385 U. S. 385 U.S. 812, to consider the impact of that decision on libel actions instituted by persons who are not public officials, but who are "public figures" and involved in issues in which the public has a justified and important interest. The sweep of the New York Times rule in libel actions brought under state law was a question expressly reserved in that case, 376 U.S. at 376 U. S. 283 , n. 23, and while that question has been involved in later cases, Garrison v. Louisiana, 379 U. S. 64 ; Rosenblatt v. Baer, 383 U. S. 75 ; Time, Inc. v. Hill, 385 U. S. 374 , it has not been fully settled. The matter has, however, been passed on by a considerable number of state and lower federal courts, and has produced a sharp division of opinion as to whether the New York Times rule should apply only in actions brought by public officials or whether it has a longer reach. Compare, e.g., Pearson v. Fairbanks Publishing Co., 413 P.2d 711 (Alaska), with Clark v. Pearson, 248 F. Supp. 188 . [ Footnote 1 ] Page 388 U. S. 135 The resolution of the uncertainty in this area of libel actions requires, at bottom, some further exploration and clarification of the relationship between libel law and the freedom of speech and press, lest the New York Times rule become a talisman which gives the press constitutionally adequate protection only in a limited field, or, what would be equally unfortunate, one which goes far to immunize the press from having to make just reparation for the infliction of needless injury upon honor and reputation through false publication. These two libel actions, although they arise out of quite different sets of circumstances, provide that opportunity. We think they are best treated together in one opinion. I No. 37, Curtis Publishing Co. v. Butts, stems from an article published in petitioner's Saturday Evening Post which accused respondent of conspiring to "fix" a football game between the University of Georgia and the University of Alabama, played in 1962. At the time of the article, Butts was the athletic director of the University of Georgia, and had overall responsibility for the administration of its athletic program. Georgia is a state university, but Butts was employed by the Georgia Athletic Association, a private corporation, rather than by the State itself. [ Footnote 2 ] Butts had previously served as head Page 388 U. S. 136 football coach of the University, and was a well known and respected figure in coaching ranks. He had maintained an interest in coaching, and was negotiating for a position with a professional team at the time of publication. The article was entitled "The Story of a College Football Fix," and prefaced by a note from the editors stating: "Not since the Chicago White Sox threw the 1919 World Series has there been a sports story as shocking as this one. . . . Before the University of Georgia played the University of Alabama . . . , Wally Butts . . . gave [to its coach] . . . Georgia's plays, defensive patterns, all the significant secrets Georgia's football team possessed." The text revealed that one George Burnett, an Atlanta insurance salesman, had accidentally overheard, because of electronic error, a telephone conversation between Butts and the head coach of the University of Alabama, Paul Bryant, which took place approximately one week prior to the game. Burnett was said to have listened while "Butts outlined Georgia's offensive plays . . . and told . . . how Georgia planned to defend. . . . Butts mentioned both players and plays by name." The readers were told that Burnett had made notes of the conversation, and specific examples of the divulged secrets were set out. The article went on to discuss the game and the players' reaction to the game, concluding that "[t]he Georgia players, their moves analyzed and forecast like those of rats in a maze, took a frightful physical beating," and said that the players, and other sideline observers, were aware that Alabama was privy to Georgia's secrets. It set out the series of events commencing with Burnett's later presentation of his notes to the Georgia head coach, Page 388 U. S. 137 Johnny Griffith, and culminating in Butts' resignation from the University's athletic affairs, for health and business reasons. The article's conclusion made clear its expected impact: "The chances are that Wally Butts will never help any football team again. . . . The investigation by university and Southeastern Conference officials is continuing; motion pictures of other games are being scrutinized; where it will end no one so far can say. But careers will be ruined, that is sure." Butts brought this diversity libel action in the federal courts in Georgia seeking $5,000,000 compensatory and $5,000,000 punitive damages. The complaint was filed, and the trial completed, before this Court handed down its decision in New York Times, and the only defense raised by petitioner Curtis was one of substantial truth. No constitutional defenses were interposed, although Curtis' counsel were aware of the progress of the New York Times case, and although general constitutional defenses had been raised by Curtis in a libel action instituted by the Alabama coach who was a state employee. Evidence at trial was directed both to the truth of the article and to its preparation. The latter point was put in issue by the claim for punitive damages, which required a finding of "malice" under Georgia law. The evidence showed that Burnett had indeed overheard a conversation between Butts and the Alabama coach, but the content of that conversation was hotly disputed. It was Butts' contention that the conversation had been general football talk, and that nothing Burnett had overheard would have been of any particular value to an opposing coach. Expert witnesses supported Butts by analyzing Burnett's notes and the films of the game itself. The Saturday Evening Post's version of the game and of the players' remarks about the game was severely contradicted. Page 388 U. S. 138 The evidence on the preparation of the article, on which we shall focus in more detail later, cast serious doubt on the adequacy of the investigation underlying the article. It was Butts' contention that the magazine had departed greatly from the standards of good investigation and reporting, and that this was especially reprehensible, amounting to reckless and wanton conduct, in light of the devastating nature of the article's assertions. The jury was instructed that, in order for the defense of truth to be sustained, it was "necessary that the truth be substantially portrayed in those parts of the article which libel the plaintiff." The "sting of the libel" was said to be "the charge that the plaintiff rigged and fixed the 1962 Georgia-Alabama game by giving Coach Bryant [of Alabama] information which was calculated to or could have affected the outcome of the game." The jury was also instructed that it could award punitive damages "to deter the wrongdoer from repeating the trespass" in an amount within its sole discretion if it found that actual malice had been proved. [ Footnote 3 ] The jury returned a verdict for $60,000 in general damages and for $3,000000 in punitive damages. The trial court reduced the total to $460,000 by remittitur. Soon thereafter, we handed down our decision in New York Times, and Curtis immediately brought it to the attention of the trial court by a motion for new trial. The trial judge rejected Curtis' motion on two grounds. He Page 388 U. S. 139 first held that New York Times was inapplicable because Butts was not a public official. He also held that "there was ample evidence from which a jury could have concluded that there was reckless disregard by defendant of whether the article was false or not." Curtis appealed to the Court of Appeals for the Fifth Circuit, which affirmed the judgment of the District Court by a two-to-one vote. The majority there did not reach the merits of petitioner's constitutional claim, holding that Curtis had "clearly waived any right it may have had to challenge the verdict and judgment on any of the constitutional grounds asserted in Times, " 351 F.2d 702, 713, on the basis of Michel v. Louisiana, 350 U. S. 91 . It found Curtis chargeable with knowledge of the constitutional limitations on libel law at the time it filed its pleadings below because of its "interlocking battery of able and distinguished attorneys" some of whom were involved in the New York Times litigation. This holding rendered the compensatory damage decision purely one of state law, and no error was found in its application. Turning to the punitive damage award, the majority upheld it as stemming from the "enlightened conscience" of the jury as adjusted by the lawful action of the trial judge. It was in "complete accord" with the trial court's determination that the evidence justified the finding "that what the Post did was done with reckless disregard of whether the article was false or not." 351 F.2d at 719. Judge Rives dissented, arguing that the record did not support a finding of knowing waiver of constitutional defenses. He concluded that the New York Times rule was applicable because Butts was involved in activities of great interest to the public. He would have reversed because "the jury might well have understood the district court's charge to allow recovery on a showing of Page 388 U. S. 140 intent to inflict harm or even the culpably negligent infliction of harm, rather than the intent to inflict harm through falsehood. . . ." 351 F.2d at 723. Rehearing was denied, 351 F.2d at 733, and we granted certiorari, as indicated above. For reasons given below, we would affirm. II No. 150, Associated Press v. Walker, arose out of the distribution of a news dispatch giving an eyewitness account of events on the campus of the University of Mississippi on the night of September 30, 1962, when a massive riot erupted because of federal efforts to enforce a court decree ordering the enrollment of a Negro, James Meredith, as a student in the University. The dispatch stated that respondent Walker, who was present on the campus, had taken command of the violent crowd and had personally led a charge against federal marshals sent there to effectuate the court's decree and to assist in preserving order. It also described Walker as encouraging rioters to use violence and giving them technical advice on combating the effects of tear gas. Walker was a private citizen at the time of the riot and publication. He had pursued a long and honorable career in the United States Army before resigning to engage in political activity, and had, in fact, been in command of the federal troops during the school segregation confrontation at Little Rock, Arkansas, in 1957. He was acutely interested in the issue of physical federal intervention, and had made a number of strong statements against such action which had received wide publicity. Walker had his own following, the "Friends of Walker," and could fairly be deemed a man of some political prominence. Walker initiated this libel action in the state courts of Texas, seeking a total of $2,000,000 in compensatory and punitive damages. Associated Press raised both the Page 388 U. S. 141 defense of truth and constitutional defenses. At trial, both sides attempted to reconstruct the stormy events on the campus of the University of Mississippi. Walker admitted his presence on the campus, and conceded that he had spoken to a group of students. He claimed, however, that he had counseled restraint and peaceful protest, and exercised no control whatever over the crowd, which had rejected his plea. He denied categorically taking part in any charge against the federal marshals. There was little evidence relating to the preparation of the news dispatch. It was clear, however, that the author of this dispatch, Van Savell, was actually present during the events described, and had reported them almost immediately to the Associated Press office in Atlanta. A discrepancy was shown between an oral account given the office and a later written dispatch, but it related solely to whether Walker had spoken to the group before or after approaching the marshals. No other showing of improper preparation was attempted, nor was there any evidence of personal prejudice or incompetency on the part of Savell or the Associated Press. The jury was instructed that an award of compensatory damages could be made if the dispatch was not substantially true, [ Footnote 4 ] and that punitive damages could be added if the article was actuated by "ill will, bad or evil motive, or that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person to be affected by it." A verdict of $500,000 compensatory damages and $300,000 punitive damages was returned. The trial judge, however, found that there was "no evidence to support the jury's answers that there was actual malice" Page 388 U. S. 142 and refused to enter the punitive award. He concluded that the failure further to investigate the minor discrepancy between the oral and written versions of the incident could not "be construed as that entire want of care which would amount to a conscious indifference to the rights of plaintiff. Negligence, it may have been; malice, it was not. Moreover, the mere fact that AP permitted a young reporter to cover the story of the riot is not evidence of malice." (Emphasis in original.) The trial judge also noted that this lack of "malice" would require a verdict for the Associated Press if New York Times were applicable. But he rejected its applicability, since there were "no compelling reasons of public policy requiring additional defenses to suits for libel. Truth alone should be an adequate defense." Both sides appealed, and the Texas Court of Civil Appeals affirmed both the award of compensatory damages and the striking of punitive damages. It stated without elaboration that New York Times was inapplicable. As to the punitive damage award, the plea for reinstatement was refused because, "[i]n view of all the surrounding circumstances, the rapid and confused occurrence of events on the occasion in question, and in the light of all the evidence, we hold that appellee failed to prove malice . ." 393 S.W.2d 671, 683. The Supreme Court of Texas denied a writ of error, and we granted certiorari, as already indicated. For reasons given below, we would reverse. III Before we reach the constitutional arguments put forward by the respective petitioners, we must first determine whether Curtis has waived its right to assert such arguments by failing to assert them before trial. As our dispositions of Rosenblatt v. Baer, 383 U. S. 75 , Page 388 U. S. 143 and other cases involving constitutional questions indicate, [ Footnote 5 ] the mere failure to interpose such a defense prior to the announcement of a decision which might support it cannot prevent a litigant from later invoking such a ground. Of course, it is equally clear that even constitutional objections may be waived by a failure to raise them at a proper time, Michel v. Louisiana, supra, at 350 U. S. 99 , [ Footnote 6 ] but an effective waiver must, as was said in Johnson v. Zerbst, 304 U. S. 458 , 304 U. S. 464 , be one of a "known right or privilege." Butts makes two arguments in support of his contention that Curtis' failure to raise constitutional defenses amounted to a knowing waiver. The first is that the general state of the law at the time of this trial was such that Curtis should, in the words of the Fifth Circuit majority, have seen "the handwriting on the wall." 351 F.2d at 734. We cannot accept this contention. Although our decision in New York Times did draw upon earlier precedents in state law, e.g., Coleman v. MacLennan, 78 Kan. 711, 98 P. 281, and there were intimations in a prior opinion and the extrajudicial comments of one Justice [ Footnote 7 ] that some applications of libel law might be in conflict with the guarantees of free speech and press, there was strong precedent indicating that civil libel actions Page 388 U. S. 144 were immune from general constitutional scrutiny. [ Footnote 8 ] Given the state of the law prior to our decision in New York Times, we do not think it unreasonable for a lawyer trying a case of this kind, where the plaintiff was not even a public official under state law, to have looked solely to the defenses provided by state libel law. Nor do we think that the previous grant of certiorari in New York Times alone indicates a different conclusion. The questions presented for review there were premised on Sullivan's status as an elected public official, and elected officials traditionally have been subject to special rules of libel law. [ Footnote 9 ] Butts' second contention is that whatever defenses might reasonably have been apparent to the average lawyer, some of Curtis' trial attorneys were involved in the New York Times litigation, and thus should have been especially alert to constitutional contentions. This was the argument which swayed the Court of Appeals, but we do not find it convincing. First, as a general matter, we think it inadvisable to determine whether a "right or privilege" is "known" by relying on information outside the record concerning the special legal knowledge of particular attorneys. Second, even a lawyer fully cognizant of the record and briefs in the New York Times litigation might reasonably have expected the resolution of that case to have no impact Page 388 U. S. 145 on this litigation, since the arguments advanced there depended so heavily on the analogy to seditious libel. We think that it was our eventual resolution of New York Times, rather than its facts and the arguments presented by counsel, which brought out the constitutional question here. We would not hold that Curtis waived a "known right" before it was aware of the New York Times decision. It is agreed that Curtis' presentation of the constitutional issue after our decision in New York Times was prompt. Our rejection of Butts' arguments is supported by factors which point to the justice of that conclusion. See Hormel v. Helvering, 312 U. S. 552 , 312 U. S. 556 -557. Curtis' constitutional points were raised early enough so that this Court has had the benefit of some ventilation of them by the courts below. The resolution of the merits of Curtis' contentions by the District Court makes it evident that Butts was not prejudiced by the time at which Curtis raised its argument, for it cannot be asserted that an earlier interposition would have resulted in any different proceedings below. [ Footnote 10 ] Finally, the constitutional protection which Butts contends that Curtis has waived safeguards a freedom which is the "matrix, the indispensable condition, of nearly every other form of freedom." Palko v. Connecticut, 302 U. S. 319 , 302 U. S. 327 . Where the ultimate effect of sustaining a claim of waiver might be an imposition on that valued freedom, we are unwilling to find waiver in circumstances which fall short of being clear and compelling. Cf. New York Times Co. v. Connor, 365 F.2d 567, 572. Page 388 U. S. 146 IV We thus turn to a consideration, on the merits, of the constitutional claims raised by Curtis' in Butts and by the Associated Press in Walker. Powerful arguments are brought to bear for the extension of the New York Times rule in both cases. In Butts, it is contended that the facts are on all fours with those of Rosenblatt v. Baer, supra, since Butts was charged with the important responsibility of managing the athletic affairs of a state university. It is argued that, while the Athletic Association is financially independent from the State and Butts was not technically a state employee, as was Baer, his role in state administration was so significant that this technical distinction from Rosenblatt should be ignored. Even if this factor is to be given some weight, we are told that the public interest in education in general, and in the conduct of the athletic affairs of educational institutions in particular, justifies constitutional protection of discussion of persons involved in it equivalent to the protection afforded discussion of public officials. A similar argument is raised in the Walker case, where the important public interest in being informed about the events and personalities involved in the Mississippi riot is pressed. In that case, we are also urged to recognize that Walker's claims to the protection of libel laws are limited, since he thrust himself into the "vortex" of the controversy. We are urged by the respondents, Butts and Walker, to recognize society's "pervasive and strong interest in preventing and redressing attacks upon reputation," and the "important social values which underlie the law of defamation." Rosenblatt v. Baer, supra, at 383 U. S. 86 . It is pointed out that the publicity in these instances was not directed at employees of government, and that these cases cannot be analogized to seditious libel prosecutions. Id. at 383 U. S. 92 (STEWART, J., concurring). We are Page 388 U. S. 147 told that "[t]he rule that permits satisfaction of the deep-seated need for vindication of honor is not a mere historic relic, but promotes the law's civilizing function of providing an acceptable substitute for violence in the settlement of disputes," Afro-American Publishing Co. v. Jaffe, 125 U.S.App.D.C. 70, 81, 366 F.2d 649, 660, and that: "Newspapers, magazines, and broadcasting companies are businesses conducted for profit, and often make very large ones. Like other enterprises that inflict damage in the course of performing a service highly useful to the public . . . , they must pay the freight, and injured persons should not be relegated [to remedies which] make collection of their claims difficult or impossible unless strong policy considerations demand." Buckley v. New York Post Corp., 373 F.2d 175, 182. We fully recognize the force of these competing considerations and the fact that an accommodation between them is necessary not only in these cases, but in all libel actions arising from a publication concerning public issues. In Time, Inc. v. Hill, 385 U. S. 374 , 385 U. S. 388 , we held that "[t]he guarantees for speech and press are not the preserve of political expression or comment upon public affairs . . .", and affirmed that freedom of discussion "must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period." Thornhill v. Alabama, 310 U. S. 88 , 310 U. S. 102 . This carries out the intent of the Founders, who felt that a free press would advance "truth, science, morality, and arts in general," as well as responsible government. Letter to the Inhabitants of Quebec, 1 Journals of the Continental Cong. 108. From the point of view of deciding whether a constitutional interest of free speech and press is properly involved in the resolution of a libel question, a rational Page 388 U. S. 148 distinction "cannot be founded on the assumption that criticism of private citizens who seek to lead in the determination of . . . policy will be less important to the public interest than will criticism of government officials." Pauling v. Globe-Democrat Publishing Co., 362 F.2d 188, 196. On the other hand, to take the rule found appropriate in New York Times to resolve the "tension" between the particular constitutional interest there involved and the interests of personal reputation and press responsibility, Rosenblatt v. Baer, supra, at 383 U. S. 86 , as being applicable throughout the realm of the broader constitutional interest would be to attribute to this aspect of New York Times an unintended inexorability at the threshold of this new constitutional development. In Time, Inc. v. Hill, supra, at 385 U. S. 390 , we counseled against "blind application of New York Times Co. v. Sullivan ", and considered "the factors which arise in the particular context." Here we must undertake a parallel evaluation. [ Footnote 11 ] The modern history of the guarantee of freedom of speech and press mainly has been one of a search for the outer limits of that right. From the fountainhead opinions of Justices Holmes and Brandeis in Schenck, Abrams, and Whitney, [ Footnote 12 ] which considered the problem when the disruptive effects of speech might strip the protection from the speaker, to our recent decision in Adderley v. Florida, 385 U. S. 39 , where we found freedom of speech not to include a freedom to trespass, the Court's primary concern has been to determine the extent of the right and the surrounding safeguards necessary to give it "breathing space." NAACP v. Page 388 U. S. 149 Button, 371 U. S. 415 , 371 U. S. 433 . That concern has perhaps omitted from searching consideration the "real problem" of defining or delimiting the right itself. See Freund, Mr. Justice Black and the Judicial Function, 14 U.C.L.A.L.Rev. 467, 471. It is significant that the guarantee of freedom of speech and press falls between the religious guarantees and the guarantee of the right to petition for redress of grievances in the text of the First Amendment, the principles of which are carried to the States by the Fourteenth Amendment. It partakes of the nature of both, for it is as much a guarantee to individuals of their personal right to make their thoughts public and put them before the community, see Holt, Of the Liberty of the Press, in Nelson, Freedom of the Press from Hamilton to the Warren Court 18-19, as it is a social necessity required for the "maintenance of our political system and an open society." Time, Inc. v. Hill, supra, at 385 U. S. 389 . It is because of the personal nature of this right that we have rejected all manner of prior restraint on publication, Near v. Minnesota, 283 U. S. 697 , despite strong arguments that, if the material was unprotected, the time of suppression was immaterial. Pound, Equitable Relief Against Defamation and Injuries to Personality, 29 Harv.L.Rev. 640. The dissemination of the individual's opinions on matters of public interest is for us, in the historic words of the Declaration of Independence, an "unalienable right" that "governments are instituted among men to secure." History shows us that the Founders were not always convinced that unlimited discussion of public issues would be "for the benefit of all of us," [ Footnote 13 ] but that they firmly adhered to the proposition that the "true liberty of the press" permitted "every man to publish Page 388 U. S. 150 his opinion." Respublica v. Oswald, 1 Dall. 319, 325 (Pa.). The fact that dissemination of information and opinion on questions of public concern is ordinarily a legitimate, protected and indeed cherished activity does not mean, however, that one may in all respects carry on that activity exempt from sanctions designed to safeguard the legitimate interests of others. A business "is not immune from regulation because it is an agency of the press. The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others." Associated Press v. Labor Board, 301 U. S. 103 , 301 U. S. 132 -133. Federal securities regulation, [ Footnote 14 ] mail fraud statutes, [ Footnote 15 ] and common law actions for deceit and misrepresentation [ Footnote 16 ] are only some examples of our understanding that the right to communicate information of public interest is not "unconditional." See Note, Freedom of Expression in a Commercial Context, 78 Harv.L.Rev. 1191. However, as our decision in New York Times makes explicit, while protected activity may, in some respects, be subjected to sanctions, it is not open to all forms of regulation. The guarantees of freedom of speech and press were not designed to prevent "the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential. . . ." 2 Cooley, Constitutional Limitations 886 (8th ed.). Our touchstones are that acceptable Page 388 U. S. 151 limitations must neither affect "the impartial distribution of news" and ideas, Associated Press v. Labor Board, supra, at 301 U. S. 133 , nor because of their history or impact constitute a special burden on the press, Grosjean v. American Press Co., Inc., 297 U. S. 233 , nor deprive our free society of the stimulating benefit of varied ideas because their purveyors fear physical or economic retribution solely because of what they choose to think and publish. The history of libel law leaves little doubt that it originated in soil entirely different from that which nurtured these constitutional values. Early libel was primarily a criminal remedy, the function of which was to make punishable any writing which tended to bring into disrepute the state, established religion, or any individual likely to be provoked to a breach of the peace because of the words. Truth was no defense in such actions, and, while a proof of truth might prevent recovery in a civil action, this limitation is more readily explained as a manifestation of judicial reluctance to enrich an undeserving plaintiff than by the supposition that the defendant was protected by the truth of the publication. The same truthful statement might be the basis of a criminal libel action. See Commonwealth v. Clap, 4 Mass. 163; see generally Veeder, The History and Theory of the Law of Defamation, 3 Col.L.Rev. 546, 4 Col.L.Rev. 33. The law of libel has, of course, changed substantially since the early days of the Republic, and this change is "the direct consequence of the friction between it . . . and the highly cherished right of free speech." State v. Browne, 86 N.J.Super. 217, 228, 206 A.2d 591 , 597. The emphasis has shifted from criminal to civil remedies, from the protection of absolute social values to the safeguarding of valid personal interests. Truth has become an absolute defense in almost all cases, [ Footnote 17 ] and privileges designed to foster free communication are almost universally Page 388 U. S. 152 recognized. [ Footnote 18 ] But the basic theory of libel has not changed, and words defamatory of another are still placed "in the same class with the use of explosives or the keeping of dangerous animals." Prosser, The Law of Torts § 108, at 792. Thus, some antithesis between freedom of speech and press and libel actions persists, for libel remains premised on the content of speech and limits the freedom of the publisher to express certain sentiments, at least without guaranteeing legal proof of their substantial accuracy. While the truth of the underlying facts might be said to mark the line between publications which are of significant social value and those which might be suppressed without serious social harm, and thus resolve the antithesis on a neutral ground, we have rejected, in prior cases involving materials and persons commanding justified and important public interest, the argument that a finding of falsity alone should strip protections from the publisher. New York Times Co. v. Sullivan, supra, at 376 U. S. 272 . We have recognized "the inevitability of some error in the situation presented in free debate," Time, Inc. v. Hill, supra, at 385 U. S. 406 (opinion of this writer), and that "putting to the preexisting prejudices of a jury the determination of what is true' may effectively institute a system of censorship." Our resolution of New York Times Co. v. Sullivan, in the context of the numerous statutes and cases which allow ideologically neutral and generally applicable regulatory measures to be applied to publication, makes clear, however, that neither the interests of the publisher nor those of society necessarily preclude a damage award Page 388 U. S. 153 based on improper conduct which creates a false publication. It is the conduct element, therefore, on which we must principally focus if we are successfully to resolve the antithesis between civil libel actions and the freedom of speech and press. Impositions based on misconduct can be neutral with respect to content of the speech involved, free of historical taint, and adjusted to strike a fair balance between the interests of the community in free circulation of information and those of individuals in seeking recompense for harm done by the circulation of defamatory falsehood. In New York Times, we were adjudicating in an area which lay close to seditious libel, and history dictated extreme caution in imposing liability. The plaintiff in that case was an official whose position in government was such "that the public [had] an independent interest in the qualifications and performance of the person who [held] it." Rosenblatt v. Baer, supra, at 383 U. S. 86 . Such officials usually enjoy a privilege against libel actions for their utterances, see, e.g., Barr v. Matteo, 360 U. S. 564 , and there were analogous considerations involved in New York Times, supra, at 376 U. S. 282 . Thus, we invoked "the hypothesis that speech can rebut speech, propaganda will answer propaganda, free debate of ideas will result in the wisest governmental policies," Dennis v. United States, 341 U. S. 494 , 341 U. S. 503 , and limited recovery to those cases where "calculated falsehood" placed the publisher "at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected." Garrison v. Louisiana, 379 U. S. 64 , 379 U. S. 75 . That is to say, such officials were permitted to recover in libel only when they could prove that the publication involved was deliberately falsified, or published recklessly despite the publisher's awareness of probable falsity. Investigatory failures alone were held insufficient to satisfy this standard. See New York Page 388 U. S. 154 Times, at 376 U. S. 286 -288, 376 U. S. 292 ; Garrison v. Louisiana, supra, at 379 U. S. 73 -75, 379 U. S. 79 . In the cases we decide today, none of the particular considerations involved in New York Times is present. These actions cannot be analogized to prosecutions for seditious libel. Neither plaintiff has any position in government which would permit a recovery by him to be viewed as a vindication of governmental policy. Neither was entitled to a special privilege protecting his utterances against accountability in libel. We are prompted, therefore, to seek guidance from the rules of liability which prevail in our society with respect to compensation of persons injured by the improper performance of a legitimate activity by another. Under these rules, a departure from the kind of care society may expect from a reasonable man performing such activity leaves the actor open to a judicial shifting of loss. In defining these rules, and especially in formulating the standards for determining the degree of care to be expected in the circumstances, courts have consistently given much attention to the importance of defendants' activities. Prosser, The Law of Torts § 31, at 151. The courts have also, especially in libel cases, investigated the plaintiff's position to determine whether he has a legitimate call upon the court for protection in light of his prior activities and means of self-defense. See Brewer v. Hearst Publishing Co., 185 F.2d 846; Flanagan v. Nicholson Publishing Co., 137 La. 588, 68 So. 964. We note that the public interest in the circulation of the materials here involved, and the publisher's interest in circulating them, is not less than that involved in New York Times. And both Butts and Walker commanded a substantial amount of independent public interest at the time of the publications; both, in our opinion, would have been labeled "public figures" under ordinary tort rules. See Spahn v. Julian Messner, Inc., 18 N.Y.2d 324, 221 N.E.2d 543, remanded Page 388 U. S. 155 on other grounds, 387 U. S. 239 . Butts may have attained that status by position alone, and Walker by his purposeful activity amounting to a thrusting of his personality into the "vortex" of an important public controversy, but both commanded sufficient continuing public interest and had sufficient access to the means of counterargument to be able "to expose through discussion the falsehood and fallacies" of the defamatory statements. Whitney v. California, 274 U. S. 357 , 274 U. S. 377 (Brandeis, J., dissenting). These similarities and differences between libel actions involving persons who are public officials and libel actions involving those circumstanced as were Butts and Walker, viewed in light of the principles of liability which are of general applicability in our society, lead us to the conclusion that libel actions of the present kind cannot be left entirely to state libel laws, unlimited by any overriding constitutional safeguard, but that the rigorous federal requirements of New York Times are not the only appropriate accommodation of the conflicting interests at stake. We consider and would hold that a "public figure" who is not a public official may also recover damages for a defamatory falsehood whose substance makes substantial danger to reputation apparent, on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers. Cf. Sulzberger, Responsibility and Freedom, in Nelson, Freedom of the Press from Hamilton to the Warren Court 409, 412. Nothing in this opinion is meant to affect the holdings in New York Times and its progeny, including our recent decision in Time, Inc. v. Hill, [ Footnote 19 ] Page 388 U. S. 156 V Having set forth the standard by which we believe the constitutionality of the damage awards in these cases must be judged, we turn now, as the Court did in New York Times, to the question whether the evidence and findings below meet that standard. We find the standard satisfied in No. 37, Butts, and not satisfied by either the evidence or the findings in No. 150, Walker. The Butts jury was instructed, in considering punitive damages, to assess "the reliability, the nature of the sources of the defendant's information, its acceptance or rejection of the sources, and its care in checking upon assertions." These considerations were said to be relevant to a determination whether defendant had proceeded with "wanton and reckless indifference." In this light, we consider that the jury must have decided that the investigation undertaken by the Saturday Evening Post, upon which much evidence and argument was centered, [ Footnote 20 ] was grossly inadequate in the circumstances. The impact of a jury instruction "is not to be ascertained by Page 388 U. S. 157 merely considering isolated statements, but by taking into view all the instructions given and the tendencies of the proof in the case to which they could possibly be applied." Seaboard Air Line R. Co. v. Padgett, 236 U. S. 668 , 236 U. S. 672 . This jury finding was found to be supported by the evidence by the trial judge and the majority in the Fifth Circuit. Given the extended history of the case, the amount of the evidence pointing to serious deficiencies in investigatory procedure, and the severe harm inflicted on Butts, we would not feel justified in ordering a retrial of the compensatory damage issue, either on the theory that this aspect of the case was submitted to the jury only under the issue of "truth," [ Footnote 21 ] or on the very slim possibility that the jury finding regarding punitive damages might have been based on Curtis' attitude toward Butts, rather than on Curtis' conduct. The evidence showed that the Butts story was in no sense "hot news," and the editors of the magazine recognized the need for a thorough investigation of the serious charges. Elementary precautions were, nevertheless, ignored. The Saturday Evening Post knew that Burnett had been placed on probation in connection with bad check charges, but proceeded to publish the story on the basis of his affidavit, without substantial independent support. Burnett's notes were not even viewed by any of the magazine's personnel prior to publication. John Carmichael, who was supposed to have been with Burnett when the phone call was overheard, was not interviewed. No attempt was made to screen the films of the game to see if Burnett's information was accurate, and no attempt was made to find out whether Alabama had adjusted its plans after the alleged divulgence of information. Page 388 U. S. 158 The Post writer assigned to the story was not a football expert, and no attempt was made to check the story with someone knowledgeable in the sport. At trial, such experts indicated that the information in the Burnett notes was either such that it would be evident to any opposing coach from game films regularly exchanged, or valueless. Those assisting the Post writer in his investigation were already deeply involved in another libel action, based on a different article, brought against Curtis Publishing Co. by the Alabama coach and unlikely to be the source of a complete and objective investigation. The Saturday Evening Post was anxious to change its image by instituting a policy of "sophisticated muckraking," and the pressure to produce a successful expose might have induced a stretching of standards. In short, the evidence is ample to support a finding of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers. The situation in Walker is considerably different. There, the trial court found the evidence insufficient to support more than a finding of even ordinary negligence, and the Court of Civil Appeals supported the trial court's view of the evidence. Ordinarily we would, under the governing constitutional standard, reverse the decision below on the concurrent findings rule. Graver Tank Mfg. Co. v. Linde Air Products Co., 336 U. S. 271 , 336 U. S. 275 . But, as in New York Times, we think it better to face for ourselves the question whether there is sufficient evidence to support the finding we would require. In contrast to the Butts article, the dispatch which concerns us in Walker was news which required immediate dissemination. The Associated Press received the information from a correspondent who was present at the scene of the events and gave every indication of being trustworthy and competent. His dispatches in this instance, Page 388 U. S. 159 with one minor exception, were internally consistent, and would not have seemed unreasonable to one familiar with General Walker's prior publicized statements on the underlying controversy. [ Footnote 22 ] Considering the necessity for rapid dissemination, nothing in this series of events gives the slightest hint of a severe departure from accepted publishing standards. We therefore conclude that General Walker should not be entitled to damages from the Associated Press. VI We come finally to Curtis' contention that, whether or not it can be required to compensate Butts for any injury it may have caused him, it cannot be subjected to an assessment for punitive damages limited only by the "enlightened conscience" of the community. Curtis recognizes that the Constitution presents no general bar to the assessment of punitive damages in a civil case, Day v. Woodworth , 13 How. 363, 54 U. S. 370 -371, but contends that an unlimited punitive award against a magazine publisher constitutes an effective prior restraint by giving the jury the power to destroy the publisher's business. We cannot accept this reasoning. Publishers like Curtis engage in a wide variety of activities which may Page 388 U. S. 160 lead to tort suits where punitive damages are a possibility. To exempt a publisher, because of the nature of his calling, from an imposition generally exacted from other members of the community would be to extend a protection not required by the constitutional guarantee. Associated Press v. Labor Board, 301 U. S. 103 . We think the constitutional guarantee of freedom of speech and press is adequately served by judicial control over excessive jury verdicts, manifested in this instance by the trial court's remittitur and by the general rule that a verdict based on jury prejudice cannot be sustained even when punitive damages are warranted. See, e.g., Minneapolis, St. P. & S.S.M. R. Co. v. Moquin, 283 U. S. 520 , 283 U. S. 521 . Despite this conclusion, it might be argued that an award of punitive damages cannot be justified constitutionally by the same degree of misconduct required to support a compensatory award. The usual rule in libel actions, and other state-created tort actions, is that a higher degree of fault is necessary to sustain a punitive imposition than a compensatory award. And it might be asserted that the need to compensate the injured plaintiff is not relevant to the issue of punitive damages in libel, since an award of general damages compensates for any possible pecuniary and intangible harm. Thus, the argument would be that the strong speech and press interest in publishing material on public issues, which we have recognized as parallel to the interest in publishing political criticism present in New York Times, must be served by a limitation on punitive damages restricting them to cases of "actual malice" as defined in New York Times and Garrison v. Louisiana, supra. We find the force of any such argument quite insufficient to overcome the compelling contrary considerations, and there is, moreover, nothing in any of our past cases which suggests that compensatory and punitive damages are subject to different constitutional standards of misconduct. Page 388 U. S. 161 Where a publisher's departure from standards of press responsibility is severe enough to strip from him the constitutional protection our decision acknowledges, we think it entirely proper for the State to act not only for the protection of the individual injured, but to safeguard all those similarly situated against like abuse. Moreover, punitive damages require a finding of "ill will" under general libel law, and it is not unjust that a publisher be forced to pay for the "venting of his spleen" in a manner which does not meet even the minimum standards required for constitutional protection. Especially in those cases where circumstances outside the publication itself reduce its impact sufficiently to make a compensatory imposition an inordinately light burden, punitive damages serve a wholly legitimate purpose in the protection of individual reputation. We would hold, therefore, that misconduct sufficient to justify the award of compensatory damages also justifies the imposition of a punitive award, subject, of course, to the limitation that such award is not demonstrated to be founded on the mere prejudice of the jury. As we have already noted ( supra, pp. 388 U. S. 156 -158) the case on punitive damages was put to the jury under instructions which satisfied the constitutional test we would apply in cases of this kind, and the evidence amply supported the jury's findings. [ Footnote 23 ] The judgment of the Court of Appeals for the Fifth Circuit in No. 37 is affirmed. The judgment of the Page 388 U. S. 162 Texas Court of Civil Appeals in No. 150 is reversed, and the case is remanded to that court for further proceedings not inconsistent with the opinions that have been filed herein by THE CHIEF JUSTICE, MR. JUSTICE BLACK, and MR. JUSTICE BRENNAN. It is so ordered. * Together with No. 150, Associated Press v Walker, on certiorari to the Court of Civil Appeals of Texas, 2d Supreme Judicial District. * Five members of the Court, while concurring in the result reached in No. 150, would rest decision on grounds other than those stated in this opinion. See separate opinions of THE CHIEF JUSTICE ( post, p. 388 U. S. 162 ), of MR. JUSTICE BLACK ( post, p. 388 U. S. 170 ), and of MR. JUSTICE BRENNAN ( post, p. 388 U. S. 172 ). [ Footnote 1 ] See also Afro-American Publishing Co. v. Jaffe, 125 U.S.App.D.C. 70, 366 F.2d 649; Washington Post Co. v. Keogh, 125 U.S.App.D.C. 32, 365 F.2d 965; Pauling v. Globe-Democrat Publishing Co., 362 F.2d 188; Pape v. Time, Inc., 354 F.2d 558; Pauling v. News Syndicate Co., Inc., 335 F.2d 659; Fignole v. Curtis Publishing Co., 247 F. Supp. 595 ; Walker v. Courier-Journal & Louisville Times Co., 246 F. Supp. 231 ; United Medical Labs v. CBS, Inc., 258 F. Supp. 735 ; Klahr v. Winterble, 4 Ariz.App. 158, 418 P.2d 404; Walker v. Associated Press, ___ Colo. ___, 417 P.2d 486 ; Powell v. Monitor Publishing Co., Inc., 107 N.H. 83, 217 A.2d 193; Eadie v. Pole, 91 N.J.Super. 504, 221 A.2d 547 ; State v. Browne, 86 N.J.Super. 217, 206 A.2d 591 ; People v. Mager, 25 App.Div.2d 363, 69 N.Y.S.2d 848; Gilberg v. Goffi, 21 App.Div.2d 517, 251 N.Y.S.2d 823; Krutech v. Schimmel, 50 Misc.2d 1052, 272 N.Y.S.2d 261; Cabin v. Community Newspapers, Inc., 50 Misc.2d 574, 270 N.Y.S.2d 913; Pauling v. National Review, 49 Misc.2d 975, 269 N.Y.S.2d 11; Block v. Benton, 44 Misc.2d 1053, 255 N.Y.S.2d 767; Fegley v. Morthimer, 204 Pa.Super. 54, 202 A.2d 125; Tucker v. Kilgore, 388 S.W.2d 112 (Ky.). [ Footnote 2 ] In Allen v. Regents of the University System of Georgia, 304 U. S. 439 , this Court described the Athletic Association as a body carrying on "a business comparable in all essentials to those usually conducted by private owners." Id. at 304 U. S. 451 . Section 32-153 of the Georgia Code specifically provides that athletic associations are not to be considered agencies of the State. [ Footnote 3 ] Actual malice was defined by the charge as encompassing "the notion of ill will, spite, hatred and an intent to injure one. Malice also denotes a wanton or reckless indifference or culpable negligence with regard to the rights of others." The jury was told that whether "actual malice or wanton or reckless indifference has been established must be determined from all of the evidence in the case." The trial court then directed the jury's attention to the circumstances of preparation. The impact of the charge is considered in more detail at 388 U. S. 156 -158, infra. [ Footnote 4 ] Two particular statements were at issue, the remark that "Walker assumed command of the crowd," and the accusation that Walker led a charge against the marshals. [ Footnote 5 ] See Tehan v. Shott, 382 U. S. 406 , 382 U. S. 409 , n. 3; Linkletter v. Walker, 381 U. S. 618 , 381 U. S. 622 -629; Griffin v. California, 380 U. S. 609 ; White v. Maryland, 373 U. S. 59 . [ Footnote 6 ] See also Ackermann v. United States, 340 U. S. 193 , 340 U. S. 198 . [ Footnote 7 ] In Beauharnais v. Illinois, 343 U. S. 250 , the Court had upheld an Illinois group libel statute, but the majority had warned that, "'While this Court sits,' it retains and exercises authority to nullify action which encroaches on freedom of utterance under the guise of punishing libel." Id. at 343 U. S. 263 -264. There were also four vigorous dissenters to the holding in that case. An article appearing in the June, 1962, New York University Law Review had quoted MR. JUSTICE BLACK as believing that "there should be no libel or defamation law in the United States. . . ." Cahn, Justice Black and First Amendment "Absolutes": A Public Interview, 37 N.Y.U.L.Rev. 549, 557. [ Footnote 8 ] In Robertson v. Baldwin, 165 U. S. 275 , 165 U. S. 281 , the Court said: "Thus, the freedom of speech and of the press (art. 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation. . . ." That sentiment was repeated in a number of cases, including Beauharnais v. Illinois, supra, n 7. See Near v. Minnesota, 283 U. S. 697 , 283 U. S. 715 ; Chaplinsky v. New Hampshire, 315 U. S. 568 . [ Footnote 9 ] See, e.g., Sweeney v. Patterson, 76 U.S.App.D.C. 23, 128 F.2d 457; Hendrix v. Mobile Register, 202 Ala. 616, 81 So. 558. [ Footnote 10 ] Even after our decision in New York Times was before him, the trial judge held it inapplicable. It is almost certain that he would have rebuffed any effort to interpose general constitutional defenses at the time of trial. See Comment, Waiver of a Previously Unrecognized Defense: Must Lawyers Be Seers?, 114 U.Pa.L.Rev. 451. [ Footnote 11 ] The majority opinion in Time, Inc. v. Hill, 385 U. S. 374 , was limited to the consideration of nondefamatory matter. Id. at 385 U. S. 391 . [ Footnote 12 ] Schenck v. United States, 249 U. S. 47 (Holmes, J.); Abrams v. United States, 250 U. S. 616 , 250 U. S. 624 (Holmes, J., dissenting); Whitney v. California, 274 U. S. 357 , 274 U. S. 372 (Brandeis, J., concurring). [ Footnote 13 ] See Levy, Legacy of Suppression. The phrase is from the Court's opinion in Time, Inc. v. Hill, supra, at 385 U. S. 389 . [ Footnote 14 ] E.g., 48 Stat. 82, as amended, 15 U.S.C. § 77k (penalizing negligent misstatement). [ Footnote 15 ] 18 U.S.C. § 1341. [ Footnote 16 ] See Traylor Engineering & Mfg. Co. v. National Container Corp., 45 Del. 143, 70 A.2d 9; Restatement, Torts § 525 (deceit); Nash v. Minnesota Title Ins. & Trust Co., 163 Mass. 574, 40 N.E. 1039 (negligent misrepresentation). [ Footnote 17 ] See 1 Harper & James, The Law of Torts § 5.20. [ Footnote 18 ] Some privileges, such as the one pertaining to reports of judicial proceedings, are recognized as absolute. Others, such as the fair comment privilege, are recognized only as conditional privileges, and may be vitiated by proof of actual malice. See generally Prosser, The Law of Torts §§ 109, 110. [ Footnote 19 ] Nor does anything we have said touch, in any way, libel or other tort actions not involving public figures or matters of public interest. [ Footnote 20 ] Counsel for Butts continually pressed upon the jury in argument that the defendant had failed to exercise a minimum of care. He did not seriously contend that the Saturday Evening Post was actuated by preexisting animosity toward Butts. Arguing that the misquotations which were shown to be present were proof of malice, he stated: "I say that is not fair journalism; I say that is not true, careful reporting." After reviewing the failure of Curtis to interview Carmichael ( see p. 388 U. S. 157 , infra ) or to check the game films, he asked the jury: "Again, is that good reporting? Is that what the field or the profession of journalism owes you and owes me . . . when it is getting ready to write an article which it knows and which it states therein that it is going to ruin us. . . ." The gist of Butts' contention on "actual malice" was that Curtis had been anxious to publish an expose, and had thus wantonly and recklessly seized on a questionable affidavit from Burnett. It is this theory which we feel that the jury must have accepted in awarding punitive damages. [ Footnote 21 ] It is inconceivable that the jury might have treated the "investigatory" evidence differently if it had been presented with respect to compensatory damages, rather than with regard to punitive damages. [ Footnote 22 ] On September 26, 1962, Walker had made a statement on radio station KWKH at Shreveport, Louisiana, urging people to "[r]ise to a stand beside Governor Ross Barnett at Jackson, Mississippi." He contended that the people had "talked, listened and been pushed around far too much. . . ." He promised that he would "be there," on "the right side." The next morning, in a television appearance in Dallas, he repeated the same sentiments, and he set out his views once again from New Orleans on the evening of September 28, 1962. On September 29, 1962, Walker arrived in Jackson, Mississippi, and held another press and television conference in which he called for "violent vocal protest." On the afternoon of September 30, 1962, Walker held a final press conference at which he again urged defiance of court orders and federal power. [ Footnote 23 ] It should also be noted that, prior to publication, the Saturday Evening Post had been notified both by Butts and his daughter that the material about to be printed was false. Despite these warnings, and the fact that no member of the staff had ever even seen Burnett's crucial notes, no further efforts at investigation were undertaken prior to publication. It might indeed be argued that this conduct would have sufficed, under proper instructions, to satisfy even the "actual malice" standard of New York Times, the notice to the Saturday Evening Post being considered as furnishing the necessary "mental element." New York Times, supra, at 376 U. S. 287 . MR. CHIEF JUSTICE WARREN, concurring in the result. While I agree with the results announced by MR. JUSTICE HARLAN in both of these cases, I find myself in disagreement with his stated reasons for reaching those results. Our difference stems from his departure from the teaching of New York Times Co. v. Sullivan, 376 U. S. 254 (1964), to which we both subscribed only three years ago. I In the New York Times case, we held that a State cannot, consistently with the First and Fourteenth Amendments, award damages to a "public official" for a defamatory falsehood relating to his official conduct unless the verdict is based on proof of "actual malice" -- that is, proof that the defamatory statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not." 376 U.S. at 376 U. S. 280 . The present cases involve not "public officials," but "public figures" whose views and actions with respect to public issues and events are often of as much concern to the citizen as the attitudes and behavior of "public officials" with respect to the same issues and events. All of us agree that the basic considerations underlying the First Amendment require that some limitations be placed on the application of state libel laws to "public figures" as well as "public officials." Similarly, the seven members of the Court who deem it necessary to pass upon the question agree that the respondents in these cases are "public figures" for First Amendment purposes. Page 388 U. S. 163 Having reached this point, however, MR. JUSTICE HARLAN's opinion departs from the standard of New York Times and substitutes in cases involving "public figures" a standard that is based on "highly unreasonable conduct" and is phrased in terms of "extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers" ( ante, p. 388 U. S. 155 ). I cannot believe that a standard which is based on such an unusual and uncertain formulation could either guide a jury of laymen or afford the protection for speech and debate that is fundamental to our society and guaranteed by the First Amendment. To me, differentiation between "public figures" and "public officials" and adoption of separate standards of proof for each have no basis in law, logic, or First Amendment policy. Increasingly in this country, the distinctions between governmental and private sectors are blurred. Since the depression of the 1930's and World War II, there has been a rapid fusion of economic and political power, a merging of science, industry, and government, and a high degree of interaction between the intellectual, governmental, and business worlds. Depression, war, international tensions, national and international markets, and the surging growth of science and technology have precipitated national and international problems that demand national and international solutions. While these trends and events have occasioned a consolidation of governmental power, power has also become much more organized in what we have commonly considered to be the private sector. In many situations, policy determinations which traditionally were channeled through formal political institutions are now originated and implemented through a complex array of boards, committees, commissions, corporations, and associations, some only loosely connected with the Government. This blending of positions and power has also occurred in Page 388 U. S. 164 the case of individuals, so that many who do not hold public office at the moment are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large. Viewed in this context, then, it is plain that, although they are not subject to the restraints of the political process, "public figures," like "public officials," often play an influential role in ordering society. And surely, as a class, these "public figures" have as ready access as "public officials" to mass media of communication, both to influence policy and to counter criticism of their views and activities. Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of "public officials." The fact that they are not amenable to the restraints of the political process only underscores the legitimate and substantial nature of the interest, since it means that public opinion may be the only instrument by which society can attempt to influence their conduct. I therefore adhere to the New York Times standard in the case of "public figures" as well as "public officials." It is a manageable standard, readily stated and understood, which also balances to a proper degree the legitimate interests traditionally protected by the law of defamation. Its definition of "actual malice" is not so restrictive that recovery is limited to situations where there is "knowing falsehood" on the part of the publisher of false and defamatory matter. "Reckless disregard" for the truth or falsity, measured by the conduct of the publisher, will also expose him to liability for publishing false material which is injurious to reputation. More significantly, however, the New York Times standard is an important safeguard for the rights of the Page 388 U. S. 165 press and public to inform and be informed on matters of legitimate interest. Evenly applied to cases involving "public men" -- whether they be "public officials" or "public figures" -- it will afford the necessary insulation for the fundamental interests which the First Amendment was designed to protect. II I have no difficulty in concluding that No. 150, Associated Press v. Walker, must be reversed since it is in clear conflict with New York Times. The constitutional defenses were properly raised and preserved by the petitioner. The trial judge expressly ruled that no showing of malice in any sense had been made, and he reversed an award of punitive damages for that reason. The seven members of this Court who reach the question agree with that conclusion, and all agree that the courts below erred in holding the First Amendment inapplicable. Under any reasoning, General Walker was a public man in whose public conduct society and the press had a legitimate and substantial interest. III But No. 37, Curtis Publishing Co. v. Butts, presents an entirely different situation. There, no First Amendment defenses were raised by the petitioner until after the trial. Because of this failure and because the case was tried before our decision in New York Times, the trial judge did not instruct the jury in terms of the precise formulation we adopted. In connection with the issue of punitive damages, however, the trial judge did give an "actual malice" instruction which invoked the elements we later held necessary in New York Times. He instructed the jury that it would have to find "actual malice" before awarding punitive damages, and he continued by defining "actual malice" as denoting "wanton or reckless indifference or culpable negligence with regard Page 388 U. S. 166 to the rights of others" and as including notions of "ill will, spite, hatred and an intent to injure one." Under the Georgia law of defamation which governed the case, the jury was also specifically required to find that the defamatory statements were false before it could award any damages, and it was so instructed. With the jury's attention thus focused on this threshold requirement of falsity, the references in the instructions to wanton or reckless indifference and culpable negligence most probably resulted in a verdict based on the requirement of reckless disregard for the truth of which we spoke in New York Times. [ Footnote 2/1 ] Although the "actual malice" instructions were not also given in connection with the compensatory damage issue, it is difficult to conceive how petitioner could have been prejudiced by that failure in view of the fact that the jury, guided by "actual malice" instructions, awarded $3,000,000 in punitive damages. [ Footnote 2/2 ] Unquestionably, in cases tried after our decision in New York Times, we should require strict compliance with the standard we established. We should not, however, Page 388 U. S. 167 be so inflexible in judging cases tried prior thereto, especially when, as here, the trial judge -- unaided by advice or objections from counsel -- recognized the essential principle and conformed with it to a substantial degree. Moreover, after the New York Times rule was brought to the trial judge's attention in a post-trial motion, he reviewed the record in light of that precise standard and held that the jury verdict should not be disturbed, since "there was ample evidence from which a jury could have concluded that there was reckless disregard by the [petitioner] of whether the article was false or not." An additional factor leads me to the conclusion that we should not insist on the financial and emotional expenses of a retrial here merely because the trial judge's instructions were not given in the precise terms of the present constitutional standard. [ Footnote 2/3 ] That factor, to which I briefly adverted above, was the choice of the petitioner in this case to raise only truth as a defense, and to omit in its pleadings and at the trial any reference to possible First Amendment defenses, or even to the conditional privilege provided by Georgia law for "[c]omments upon the acts of public men in their public capacity and with reference thereto." [ Footnote 2/4 ] I use the word "choice" in this Page 388 U. S. 168 connection, because the facts lead me, as they did the Court of Appeals, to the firm conclusion that the omissions were deliberate. Although this trial occurred before our decision in New York Times, we had granted certiorari to review that case even before the complaint here was filed. [ Footnote 2/5 ] The Alabama law firm which had represented the New York Times in the state courts was involved in the trial of this case. Lead counsel in the cases conferred periodically, and one of the members of the Alabama law firm referred to above sat at the counsel table throughout this trial. The same Alabama law firm was retained to represent petitioner in a lawsuit filed by Coach Paul Bryant, who was also libeled by the magazine article here in question. First Amendment defenses were raised both at the trial of the New York Times case and by the pleadings in the Bryant lawsuit, which was settled for a substantial sum of money. But counsel did not raise such defenses here. Given the importance of this case to petitioner and the interplay between overlapping counsel aligned on the same sides of related lawsuits, I can only conclude that tactical or public relations considerations explain the failure here to defend on First Amendment grounds. IV Satisfied, as I am, that, under the circumstances of the Butts case, no retrial should be ordered merely because of the instructions, I turn now to the final duty which this Court has when violations of fundamental constitutional Page 388 U. S. 169 principles are alleged. We must review the evidence to ascertain whether the judgment can stand consistently with those principles. New York Times Co. v. Sullivan, 376 U. S. 254 , 376 U. S. 285 (1964); Speiser v. Randall, 357 U. S. 513 , 357 U. S. 525 (1958). The petitioner in this case is a major factor in the publishing business. Among its publications is the Saturday Evening Post, which published the defamatory falsehoods here in question. Apparently because of declining advertising revenues, an editorial decision was made to "change the image" of the Saturday Evening Post with the hope that circulation and advertising revenues would thereby be increased. The starting point for this change of image was an announcement that the magazine would embark upon a program of "sophisticated muckraking," [ Footnote 2/6 ] designed to "provoke people, make them mad." Shortly thereafter, and as an apparent implementation of the new policy, the Saturday Evening Post purchased the rights to the article which formed the subject matter of this case. The slipshod and sketchy investigatory techniques employed to check the veracity of the source and the inferences to be drawn from the few facts believed to be true are detailed at length in the opinion of MR. JUSTICE HARLAN. Suffice it to say that little investigative effort was expended initially, and no additional inquiries were made even after the editors were notified by respondent and his daughter that the account Page 388 U. S. 170 to be published was absolutely untrue. Instead, the Saturday Evening Post proceeded on its reckless course with full knowledge of the harm that would likely result from publication of the article. This knowledge was signaled by the statements at the conclusion of the article that "Wally Butts will never help any football team again," and "careers will be ruined, that is sure." I am satisfied that the evidence here discloses that degree of reckless disregard for the truth of which we spoke in New York Times and Garrison. Freedom of the press under the First Amendment does not include absolute license to destroy lives or careers. [ Footnote 2/1 ] We held unconstitutional in Garrison v. Louisiana, 379 U. S. 64 (1964), a criminal defamation statute which authorized conviction on proof that a defamatory statement had been motivated by ill will. The statute did not require that the defamatory statement be false to sustain such a conviction. [ Footnote 2/2 ] In the New York Times case, "actual malice" instructions were given in connection with punitive damages. However, we noted: "While Alabama law apparently requires proof of actual malice for an award of punitive damages, where general damages are concerned, malice is 'presumed.' Such a presumption is inconsistent with the federal rule. . . . Since the trial judge did not instruct the jury to differentiate between general and punitive damages, it may be that the verdict was wholly an award of one or the other. But it is impossible to know in view of the general verdict returned. Because of this uncertainty, the judgment must be reversed, and the case remanded." 376 U.S. at 376 U. S. 283 -284. (Emphasis added.) The jury in the present case was required to separate compensatory and punitive damages. [ Footnote 2/3 ] Cf. Time, Inc. v. Hill, 385 U. S. 374 , 385 U. S. 411 (1967) (dissenting opinion of MR. JUSTICE FORTAS). [ Footnote 2/4 ] Ga.Code Ann. § 105-709(6) provides: "Privileged communications. -- The following are deemed privileged communications: " " * * * *" "6. Comments upon the acts of public men in their public capacity and with reference thereto." This privilege is qualified by Ga.Code Ann. § 105-710, which provides: "Malicious use of privilege. -- In every case of privileged communications, if the privilege is used merely as a cloak for venting private malice, and not bona fide in promotion of the object for which the privilege is granted, the party defamed shall have a right of action." [ Footnote 2/5 ] Certiorari was granted in New York Times Co. v. Sullivan on January 7, 1963. 371 U.S. 946. The complaint in this case was filed approximately 2 months later, on March 25, 1963. Counsel here could not have anticipated the precise standard we announced in New York Times. In the Bryant lawsuit and, of course, in the New York Times case itself, counsel did, however, raise general First Amendment defenses. No reference whatever to the First Amendment was made by defense counsel in the trial of this case. [ Footnote 2/6 ] Webster's New International Dictionary (2d ed., unabr.), p. 1606, reports the source of the term "muckrake" as follows: "On April 14, 1906, President Roosevelt delivered a speech in which he used the term muckrake in attacking the practice of making sweeping and unjust charges of corruption against public men and corporations. . . ." Roget's International Thesaurus § 934(3) lists the following as synonyms: muckrake, throw mud at, throw or fling dirt at, drag through the mud and bespatter. MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring in the result in No. 150, and dissenting in No. 37. I concur in reversal of the judgment in No. 150, Associated Press v. Walker, based on the grounds and reasons stated in Parts I and II of THE CHIEF JUSTICE's opinion. I do this, however, as in Time, Inc. v. Hill, 385 U. S. 374 , 385 U. S. 398 , "in order for the Court to be able at this time to agree on [a disposition of] this important case based on the prevailing constitutional doctrine expressed in New York Times Co. v. Sullivan, 376 U. S. 254 . [THE CHIEF JUSTICE's] . . . opinion [would decide] the case in accordance with this doctrine, to which the majority adhere. In agreeing to . . . [that] opinion, I do not recede from any of the views I have previously expressed about the much wider press and speech freedoms I think the First and Fourteenth Amendments were designed to grant to the people of the Nation. See, e.g., New York Times Co . v. Sullivan, 376 U.S. at 376 U. S. 293 ( concurring opinion); Rosenblatt v. Baer, 383 U. S. 75 , 383 U. S. 94 (concurring and dissenting opinion)." I would reverse the judgment in No. 37 for the reasons given in my concurring opinion in New York Times Co. v. Page 388 U. S. 171 Sullivan, 376 U. S. 254 , 376 U. S. 293 , and my concurring and dissenting opinion in Rosenblatt v. Baer, 383 U. S. 75 , 383 U. S. 94 , but wish to add a few words. These cases illustrate, I think, the accuracy of my prior predictions that the New York Times constitutional rule concerning libel is wholly inadequate to save the press from being destroyed by libel judgments. Here, the Court reverses the case of Associated Press v. Walker, but affirms the judgment of Curtis Publishing Co. v. Butts. The main reason for this quite contradictory action, so far as I can determine, is that the Court looks at the facts in both cases as though it were a jury, and reaches the conclusion that the Saturday Evening Post, in writing about Butts, was so abusive that its article is more of a libel at the constitutional level than is the one by the Associated Press. That seems a strange way to erect a constitutional standard for libel cases. If this precedent is followed, it means that we must, in all libel cases hereafter, weigh the facts and hold that all papers and magazines guilty of gross writing or reporting are constitutionally liable, while they are not if the quality of the reporting is approved by a majority of us. In the final analysis, what we do in these circumstances is to review the factual questions in cases decided by juries -- a review which is a flat violation of the Seventh Amendment. It strikes me that the Court is getting itself in the same quagmire in the field of libel in which it is now helplessly struggling in the field of obscenity. No one, including this Court, can know what is and what is not constitutionally obscene or libelous under this Court's rulings. Today, the Court will not give the First Amendment its natural and obvious meaning by holding that a law which seriously menaces the very life of press freedom violates the First Amendment. In fact, the Court is suggesting various experimental expedients in libel cases, Page 388 U. S. 172 all of which boil down to a determination of how offensive to this Court a particular libel judgment may be, either because of its immense size or because the Court does not like the way an alleged libelee was treated. Again, I suggest ( see Time, Inc. v. Hill, 385 U. S. 374 , 385 U. S. 399 ) that we are rapidly but surely getting ourselves in the dilemma we found ourselves in when we were compelled to overrule the ill-starred case of Betts v. Brady, 316 U. S. 455 ,* in order that the state courts of the country might be able to determine with some degree of certainty when an indigent person was entitled to the benefit of a lawyer and avoid the spawning of hundreds of habeas corpus cases that finally raised questions that a lawyer could and would have raised at the trial. I think it is time for this Court to abandon New York Times Co. v. Sullivan and adopt the rule to the effect that the First Amendment was intended to leave the press free from the harassment of libel judgments. *Gideon v. Wainwright, 372 U. S. 335 . MR. JUSTICE BRENNAN, with whom MR. JUSTICE WHITE joins, concurring in the result in No. 150, and dissenting in No. 37. I join-Parts I and II of the opinion of THE CHIEF JUSTICE and the disposition in No. 150, Associated Press v. Walker. In No. 37, Curtis Publishing Co. v. Butts, insofar as THE CHIEF JUSTICE's opinion demonstrates that the evidence unmistakably would support a judgment for Butts under the New York Times standard, I agree. I would, however, remand for a new trial, since the charge to the jury did not comport with that standard. [ Footnote 3/1 ] The charge on compensatory damages directed that the jury find Page 388 U. S. 173 liability on a finding of mere falsehood. And the trial court stated that punitive damages might be awarded on a finding of "actual malice," which it defined to encompass "the notion of ill will, spite, hatred and an intent to injure one," and also to denote "a wanton or reckless indifference or culpable negligence with regard to the rights of others." The court detailed some factors the jury could consider in applying this standard. It said, for example, that "[a] publication may be so extravagant in its denunciation and so vituperative in its character as to justify an inference of malice," and that "proof that the plaintiff did demand a retraction, but that the defendant failed to retract the article, may be considered by you on the question of punitive damages." But "[d]ebate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth." Garrison v. Louisiana, 379 U. S. 64 , 379 U. S. 73 . The "good motives" of the publisher can be no more relevant in the context of "public men" than in the context of criticism of "public officials." See Garrison, supra. The court added that the Post could show in mitigation of punitive damages that "it in good faith relied upon certain matters which had come to its attention." This makes crystal clear that the standard announced authorized the jury to award punitive damages even though it found that the Post had in good faith relied on matters which had come to its attention. The charge undoubtedly fails to comport with New York Times. [ Footnote 3/2 ] Page 388 U. S. 174 That the evidence might support a verdict under New York Times cannot justify our taking from the jury the function of determining, under proper instructions, whether the New York Times standard has been met. The extent of this Court's role in reviewing the facts, in a case such as this, is to ascertain whether there is evidence by which a jury could reasonably find liability under the constitutionally required instructions. See New York Times Co. v. Sullivan, 376 U. S. 254 , 376 U. S. 284 -292; Time, Inc. v. Hill, 385 U. S. 374 , 385 U. S. 391 -394. When, as in this case, such evidence appears, the proper disposition in this federal case is to reverse and remand with direction for a new trial. See Time, Inc. v. Hill, supra. [ Footnote 3/1 ] For the reasons expressed in the opinion of MR. JUSTICE HARLAN, I agree that petitioner did not waive his contentions under New York Time. [ Footnote 3/2 ] The statement by the trial court that "[m]alice also denotes a wanton or reckless indifference or culpable negligence with regard to the rights of others" could reasonably have been regarded by the jury to relate not to the truth or falsity of the matter, but to the Post's attitude toward Butts' reputation, akin to the spite and ill will in which terms the court had just defined "malice." See Time Inc. v. Hill, 385 U. S. 374 , 385 U. S. 396 , n. 12.

In Curtis Publishing Co. v. Butts (1967), the Supreme Court considered a libel case brought by a college athletic director, Wally Butts, against Curtis Publishing Co. for an article accusing him of conspiring to fix a football game. The Court extended the constitutional protections for free speech established in New York Times Co. v. Sullivan (1964) to cases involving public figures, not just public officials. The Court held that while the First Amendment protects free speech and press, it does not protect reckless falsehoods that harm others. The jury was instructed to consider the magazine's reliability, sources, and care in checking assertions when determining if it acted with "wanton and reckless indifference." The Court of Appeals affirmed, finding that Curtis Publishing Co. had waived its right to challenge the constitutional claim. The Supreme Court's decision clarified the standard for awarding punitive damages in defamation cases involving public figures, emphasizing the need for proper jury instructions and evidence to support liability under constitutionally mandated instructions.

Free Speech

Brandenburg v. Ohio

https://supreme.justia.com/cases/federal/us/395/444/

U.S. Supreme Court Brandenburg v. Ohio, 395 U.S. 444 (1969) Brandenburg v. Ohio No. 492 Argued February 27, 1969 Decided June 9, 1969 395 U.S. 444 APPEAL FROM THE SUPREME COURT OF OHIO Syllabus Appellant, a Ku Klux Klan leader, was convicted under the Ohio Criminal Syndicalism statute for "advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform" and for "voluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism." Neither the indictment nor the trial judge's instructions refined the statute's definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action. Held: Since the statute, by its words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action, it falls within the condemnation of the First and Fourteenth Amendments. Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Whitney v. California, 274 U. S. 357 , overruled. Reversed. PER CURIAM. The appellant, a leader of a Ku Klux Klan group, was convicted under the Ohio Criminal Syndicalism statute for "advocat[ing] . . . the duty, necessity, or propriety Page 395 U. S. 445 of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform" and for "voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism." Ohio Rev.Code Ann. § 2923.13. He was fined $1,000 and sentenced to one to 10 years' imprisonment. The appellant challenged the constitutionality of the criminal syndicalism statute under the First and Fourteenth Amendments to the United States Constitution, but the intermediate appellate court of Ohio affirmed his conviction without opinion. The Supreme Court of Ohio dismissed his appeal sua sponte "for the reason that no substantial constitutional question exists herein." It did not file an opinion or explain its conclusions. Appeal was taken to this Court, and we noted probable jurisdiction. 393 U. S. 94 (196). We reverse. The record shows that a man, identified at trial as the appellant, telephoned an announcer-reporter on the staff of a Cincinnati television station and invited him to come to a Ku Klux Klan "rally" to be held at a farm in Hamilton County. With the cooperation of the organizers, the reporter and a cameraman attended the meeting and filmed the events. Portions of the films were later broadcast on the local station and on a national network. The prosecution's case rested on the films and on testimony identifying the appellant as the person who communicated with the reporter and who spoke at the rally. The State also introduced into evidence several articles appearing in the film, including a pistol, a rifle, a shotgun, ammunition, a Bible, and a red hood worn by the speaker in the films. One film showed 12 hooded figures, some of whom carried firearms. They were gathered around a large wooden cross, which they burned. No one was present Page 395 U. S. 446 other than the participants and the newsmen who made the film. Most of the words uttered during the scene were incomprehensible when the film was projected, but scattered phrases could be understood that were derogatory of Negroes and, in one instance, of Jews. [ Footnote 1 ] Another scene on the same film showed the appellant, in Klan regalia, making a speech. The speech, in full, was as follows: "This is an organizers' meeting. We have had quite a few members here today which are -- we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio, Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any other organization. We're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken." "We are marching on Congress July the Fourth, four hundred thousand strong. From there, we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you. " Page 395 U. S. 447 The second film showed six hooded figures one of whom, later identified as the appellant, repeated a speech very similar to that recorded on the first film. The reference to the possibility of "revengeance" was omitted, and one sentence was added: "Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel." Though some of the figures in the films carried weapons, the speaker did not. The Ohio Criminal Syndicalism Statute was enacted in 1919. From 1917 to 1920, identical or quite similar laws were adopted by 20 States and two territories. E. Dowell, A History of Criminal Syndicalism Legislation in the United States 21 (1939). In 1927, this Court sustained the constitutionality of California's Criminal Syndicalism Act, Cal.Penal Code §§ 11400-11402, the text of which is quite similar to that of the laws of Ohio. Whitney v. California, 274 U. S. 357 (1927). The Court upheld the statute on the ground that, without more, "advocating" violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it. Cf. Fiske v. Kansas, 274 U. S. 380 (1927). But Whitney has been thoroughly discredited by later decisions. See Dennis v. United States, 341 U. S. 494 , at 341 U. S. 507 (1951). These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. [ Footnote 2 ] As we Page 395 U. S. 448 said in Noto v. United States, 367 U. S. 290 , 367 U. S. 297 -298 (1961), "the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action." See also Herndon v. Lowry, 301 U. S. 242 , 301 U. S. 259 -261 (1937); Bond v. Floyd, 385 U. S. 116 , 385 U. S. 134 (1966). A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control. Cf. Yates v. United States, 354 U. S. 298 (1957); De Jonge v. Oregon, 299 U. S. 353 (1937); Stromberg v. California, 283 U. S. 359 (1931). See also United States v. Robel, 389 U. S. 258 (1967); Keyishian v. Board of Regents, 385 U. S. 589 (1967); Elfbrandt v. Russell, 384 U. S. 11 (1966); Aptheker v. Secretary of State, 378 U. S. 500 (1964); Baggett v. Bullitt, 377 U. S. 360 (1964). Measured by this test, Ohio's Criminal Syndicalism Act cannot be sustained. The Act punishes persons who "advocate or teach the duty, necessity, or propriety" of violence "as a means of accomplishing industrial or political reform"; or who publish or circulate or display any book or paper containing such advocacy; or who "justify" the commission of violent acts "with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism"; or who "voluntarily assemble" with a group formed "to teach or advocate the doctrines of criminal syndicalism." Neither the indictment nor the trial judge's instructions to the jury in any way refined the statute's bald definition of the crime Page 395 U. S. 449 in terms of mere advocacy not distinguished from incitement to imminent lawless action. [ Footnote 3 ] Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. [ Footnote 4 ] Such a statute falls within the condemnation of the First and Fourteenth Amendments. The contrary teaching of Whitney v. California, supra, cannot be supported, and that decision is therefore overruled. Reversed. [ Footnote 1 ] The significant portions that could be understood were: "How far is the nigger going to -- yeah." "This is what we are going to do to the niggers." "A dirty nigger." "Send the Jews back to Israel." "Let's give them back to the dark garden." "Save America." "Let's go back to constitutional betterment." "Bury the niggers." "We intend to do our part." "Give us our state rights." "Freedom for the whites." "Nigger will have to fight for every inch he gets from now on." [ Footnote 2 ] It was on the theory that the Smith Act, 54 Stat. 670, 18 U.S.C. § 35, embodied such a principle and that it had been applied only in conformity with it that this Court sustained the Act's constitutionality. Dennis v. United States, 341 U. S. 494 (1951). That this was the basis for Dennis was emphasized in Yates v. United States, 354 U. S. 298 , 354 U. S. 320 -324 (1957), in which the Court overturned convictions for advocacy of the forcible overthrow of the Government under the Smith Act, because the trial judge's instructions had allowed conviction for mere advocacy, unrelated to its tendency to produce forcible action. [ Footnote 3 ] The first count of the indictment charged that appellant "did unlawfully by word of mouth advocate the necessity, or propriety of crime, violence, or unlawful methods of terrorism as a means of accomplishing political reform. . . ." The second count charged that appellant "did unlawfully voluntarily assemble with a group or assemblage of persons formed to advocate the doctrines of criminal syndicalism. . . ." The trial judge's charge merely followed the language of the indictment. No construction of the statute by the Ohio courts has brought it within constitutionally permissible limits. The Ohio Supreme Court has considered the statute in only one previous case, State v. Kassay, 126 Ohio St. 177, 184 N.E. 521 (1932), where the constitutionality of the statute was sustained. [ Footnote 4 ] Statutes affecting the right of assembly, like those touching on freedom of speech, must observe the established distinctions between mere advocacy and incitement to imminent lawless action, for, as Chief Justice Hughes wrote in De Jonge v. Oregon, supra, at 299 U. S. 364 : "The right of peaceable assembly is a right cognate to those of free speech and free press, and is equally fundamental." See also United States v. Cruikshank, 92 U. S. 542 , 92 U. S. 552 (1876); Hague v. CIO, 307 U. S. 496 , 307 U. S. 513 , 307 U. S. 519 (1939); NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 , 357 U. S. 460 -461 (1958). MR. JUSTICE BLACK, concurring. I agree with the views expressed by MR. JUSTICE DOUGLAS in his concurring opinion in this case that the "clear and present danger" doctrine should have no place Page 395 U. S. 450 in the interpretation of the First Amendment. I join the Court's opinion, which, as I understand it, simply cites Dennis v. United States, 341 U. S. 494 (1951), but does not indicate any agreement on the Court's part with the "clear and present danger" doctrine on which Dennis purported to rely. MR. JUSTICE DOUGLAS, concurring. While I join the opinion of the Court, I desire to enter a caveat. The "clear and present danger" test was adumbrated by Mr. Justice Holmes in a case arising during World War I -- a war "declared" by the Congress, not by the Chief Executive. The case was Schenck v. United States, 249 U. S. 47 , 249 U. S. 52 , where the defendant was charged with attempts to cause insubordination in the military and obstruction of enlistment. The pamphlets that were distributed urged resistance to the draft, denounced conscription, and impugned the motives of those backing the war effort. The First Amendment was tendered as a defense. Mr. Justice Holmes, in rejecting that defense, said: "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." Frohwerk v. United States, 249 U. S. 204 , also authored by Mr. Justice Holmes, involved prosecution and punishment for publication of articles very critical of the war effort in World War I. Schenck was referred to as a conviction for obstructing security "by words of persuasion." Id. at 249 U. S. 206 . And the conviction in Frohwerk was sustained because "the circulation of the paper was Page 395 U. S. 451 in quarters where a little breath would be enough to kindle a flame." Id. at 249 U. S. 209 . Debs v. United States, 249 U. S. 211 , was the third of the trilogy of the 1918 Term. Debs was convicted of speaking in opposition to the war where his "opposition was so expressed that its natural and intended effect would be to obstruct recruiting." Id. at 249 U. S. 215 . "If that was intended, and if, in all the circumstances, that would be its probable effect, it would not be protected by reason of its being part of a general program and expressions of a general and conscientious belief." Ibid. In the 1919 Term, the Court applied the Schenck doctrine to affirm the convictions of other dissidents in World War I. Abrams v. United States, 250 U. S. 616 , was one instance. Mr. Justice Holmes, with whom Mr. Justice Brandeis concurred, dissented. While adhering to Schenck, he did not think that, on the facts, a case for overriding the First Amendment had been made out: "It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country." Id. at 250 U. S. 628 . Another instance was Schaefer v. United States, 251 U. S. 466 , in which Mr. Justice Brandeis, joined by Mr. Justice Holmes, dissented. A third was Pierce v. United States, 252 U. S. 239 , in which, again, Mr. Justice Brandeis, joined by Mr. Justice Holmes, dissented. Those, then, were the World War I cases that put the gloss of "clear and present danger" on the First Amendment. Whether the war power -- the greatest leveler of them all -- is adequate to sustain that doctrine is debatable. Page 395 U. S. 452 The dissents in Abrams, Schaefer, and Pierce show how easily "clear and present danger" is manipulated to crush what Brandeis called "[t]he fundamental right of free men to strive for better conditions through new legislation and new institutions" by argument and discourse ( Pierce v. United States, supra, at 252 U. S. 273 ) even in time of war. Though I doubt if the "clear and present danger" test is congenial to the First Amendment in time of a declared war, I am certain it is not reconcilable with the First Amendment in days of peace. The Court quite properly overrules Whitney v. California, 274 U. S. 357 , which involved advocacy of ideas which the majority of the Court deemed unsound and dangerous. Mr. Justice Holmes, though never formally abandoning the "clear and present danger" test, moved closer to the First Amendment ideal when he said in dissent in Gitlow v. New York, 268 U. S. 652 , 268 U. S. 673 : "Every idea is an incitement. It offers itself for belief, and, if believed, it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration. If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way." We have never been faithful to the philosophy of that dissent. Page 395 U. S. 453 The Court, in Herndon v. Lowry, 301 U. S. 242 , overturned a conviction for exercising First Amendment rights to incite insurrection because of lack of evidence of incitement. Id. at 301 U. S. 259 -261. And see Hartzel v. United States, 322 U. S. 680 . In Bridges v. California, 314 U. S. 252 , 314 U. S. 261 -263, we approved the "clear and present danger" test in an elaborate dictum that tightened it and confined it to a narrow category. But in Dennis v. United States, 341 U. S. 494 , we opened wide the door, distorting the "clear and present danger" test beyond recognition. [ Footnote 2/1 ] In that case, the prosecution dubbed an agreement to teach the Marxist creed a "conspiracy." The case was submitted to a jury on a charge that the jury could not convict unless it found that the defendants "intended to overthrow the Government as speedily as circumstances would permit.'" Id. at 341 U. S. 509 -511. The Court sustained convictions under that charge, construing it to mean a determination of ""whether the gravity of the evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." [ Footnote 2/2 ]" Id. at 341 U. S. 510 , quoting from United States v. Dennis, 183 F.2d 201, 212. Out of the "clear and present danger" test came other offspring. Advocacy and teaching of forcible overthrow of government as an abstract principle is immune from prosecution. Yates v. United States, 354 U. S. 298 , 354 U. S. 318 . But an "active" member, who has a guilty knowledge and intent of the aim to overthrow the Government Page 395 U. S. 454 by violence, Noto v. United States, 367 U. S. 290 , may be prosecuted. Scales v. United States, 367 U. S. 203 , 367 U. S. 228 . And the power to investigate, backed by the powerful sanction of contempt, includes the power to determine which of the two categories fits the particular witness. Barenblatt v. United States, 360 U. S. 109 , 360 U. S. 130 . And so the investigator roams at will through all of the beliefs of the witness, ransacking his conscience and his innermost thoughts. Judge Learned Hand, who wrote for the Court of Appeals in affirming the judgment in Dennis, coined the "not improbable" test, 183 F.2d 201, 214, which this Court adopted and which Judge Hand preferred over the "clear and present danger" test. Indeed, in his book, The Bill of Rights 59 (1958), in referring to Holmes' creation of the "clear and present danger" test, he said, "I cannot help thinking that, for once, Homer nodded." My own view is quite different. I see no place in the regime of the First Amendment for any "clear and present danger" test, whether strict and tight, as some would make it, or free-wheeling, as the Court in Dennis rephrased it. When one reads the opinions closely and sees when and how the "clear and present danger" test has been applied, great misgivings are aroused. First, the threats were often loud, but always puny, and made serious only by judges so wedded to the status quo that critical analysis made them nervous. Second, the test was so twisted and perverted in Dennis as to make the trial of those teachers of Marxism an all-out political trial which was part and parcel of the cold war that has eroded substantial parts of the First Amendment. Action is often a method of expression, and within the protection of the First Amendment. Suppose one tears up his own copy of the Constitution in eloquent protest to a decision of this Court. May he be indicted? Page 395 U. S. 455 Suppose one rips his own Bible to shreds to celebrate his departure from one "faith" and his embrace of atheism. May he be indicted? Last Term, the Court held in United States v. O'Brien, 391 U. S. 367 , 391 U. S. 382 , that a registrant under Selective Service who burned his draft card in protest of the war in Vietnam could be prosecuted. The First Amendment was tendered as a defense and rejected, the Court saying: "The issuance of certificates indicating the registration and eligibility classification of individuals is a legitimate and substantial administrative aid in the functioning of this system. And legislation to insure the continuing availability of issued certificates serves a legitimate and substantial purpose in the system's administration." 391 U.S. at 391 U. S. 377 -378. But O'Brien was not prosecuted for not having his draft card available when asked for by a federal agent. He was indicted, tried, and convicted for burning the card. And this Court's affirmance of that conviction was not, with all respect, consistent with the First Amendment. The act of praying often involves body posture and movement, as well as utterances. It is nonetheless protected by the Free Exercise Clause. Picketing, as we have said on numerous occasions, is "free speech plus." See Bakery Drivers Local v. Wohl, 315 U. S. 769 , 315 U. S. 775 (DOUGLAS, J., concurring); Giboney v. Empire Storage Co., 336 U. S. 490 , 336 U. S. 501 ; Hughes v. Superior Court, 339 U. S. 460 , 339 U. S. 465 ; Labor Board v. Fruit Packers, 377 U. S. 58 , 377 U. S. 77 (BLACK, J., concurring), and id. at 377 U.S. 93 (HARLAN, J., dissenting); Cox v. Louisiana, 379 U. S. 559 , 379 U. S. 578 (opinion of BLACK, J.); Food Employees v. Logan Plaza, 391 U. S. 308 , 391 U. S. 326 (DOUGLAS, J., concurring). That means that it can be regulated when it comes to the "plus" or "action" side of the protest. It can be regulated as to Page 395 U. S. 456 the number of pickets and the place and hours ( see Cox v. Louisiana, supra ), because traffic and other community problems would otherwise suffer. But none of these considerations is implicated in the symbolic protest of the Vietnam war in the burning of a draft card. One's beliefs have long been thought to be sanctuaries which government could not invade. Barenblatt is one example of the ease with which that sanctuary can be violated. The lines drawn by the Court between the criminal act of being an "active" Communist and the innocent act of being a nominal or inactive Communist mark the difference only between deep and abiding belief and casual or uncertain belief. But I think that all matters of belief are beyond the reach of subpoenas or the probings of investigators. That is why the invasions of privacy made by investigating committees were notoriously unconstitutional. That is the deep-seated fault in the infamous loyalty security hearings which, since 1947, when President Truman launched them, have processed 20,000,000 men and women. Those hearings were primarily concerned with one's thoughts, ideas, beliefs, and convictions. They were the most blatant violations of the First Amendment we have ever known. The line between what is permissible and not subject to control and what may be made impermissible and subject to regulation is the line between ideas and overt acts. The example usually given by those who would punish speech is the case of one who falsely shouts fire in a crowded theatre. This is, however, a classic case where speech is brigaded with action. See Speiser v. Randall, 357 U. S. 513 , 357 U. S. 536 -537 (DOUGLAS, J., concurring). They are indeed inseparable, and a prosecution can be launched for the overt Page 395 U. S. 457 acts actually caused. Apart from rare instances of that kind, speech is, I think, immune from prosecution. Certainly there is no constitutional line between advocacy of abstract ideas, as in Yates, and advocacy of political action, as in Scales. The quality of advocacy turns on the depth of the conviction, and government has no power to invade that sanctuary of belief and conscience. [ Footnote 2/3 ] [ Footnote 2/1 ] See McKay, The Preference For Freedom, 34 N.Y.U.L.Rev. 1182, 1203-1212 (1959). [ Footnote 2/2 ] See Feiner v. New York, 340 U. S. 315 , where a speaker was arrested for arousing an audience when the only "clear and present danger" was that the hecklers in the audience would break up the meeting. [ Footnote 2/3 ] See MR. JUSTICE BLACK, dissenting, in Communications Assn. v. Douds, 339 U. S. 382 , 339 U. S. 446 , 339 U. S. 449 et seq.

In Brandenburg v. Ohio, the Supreme Court ruled that the First and Fourteenth Amendments protect freedom of speech and prohibit states from punishing mere advocacy of ideas, even those promoting lawlessness or violence. The Court overturned a conviction under Ohio's Criminal Syndicalism statute, which criminalized advocating for crime or violence as a means to achieve reform. The Court established that speech can only be regulated when it incites imminent lawless action and is likely to produce such action. This case set a precedent for protecting speech, even when it may be controversial or unpopular.

Free Speech

Tinker v. Des Moines Independent Community School District

https://supreme.justia.com/cases/federal/us/393/503/

U.S. Supreme Court Tinker v. Des Moines Sch. Dist., 393 U.S. 503 (1969) Tinker v. Des Moines Independent Community School District No. 21 Argued November 12, 1968 Decided February 24, 1969 393 U.S. 503 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT MR. JUSTICE FORTAS delivered the opinion of the Court. Petitioner John F. Tinker, 15 years old, and petitioner Christopher Eckhardt, 16 years old, attended high schools in Des Moines, Iowa. Petitioner Mary Beth Tinker, John's sister, was a 13-year-old student in junior high school. In December, 1965, a group of adults and students in Des Moines held a meeting at the Eckhardt home. The group determined to publicize their objections to the hostilities in Vietnam and their support for a truce by wearing black armbands during the holiday season and by fasting on December 16 and New Year's Eve. Petitioners and their parents had previously engaged in similar activities, and they decided to participate in the program. The principals of the Des Moines schools became aware of the plan to wear armbands. On December 14, 1965, they met and adopted a policy that any student wearing an armband to school would be asked to remove it, and, if he refused, he would be suspended until he returned without the armband. Petitioners were aware of the regulation that the school authorities adopted. On December 16, Mary Beth and Christopher wore black armbands to their schools. John Tinker wore his armband the next day. They were all sent home and suspended from school until they would come back without their armbands. They did not return to school until after the planned period for wearing armbands had expired -- that is, until after New Year's Day. This complaint was filed in the United States District Court by petitioners, through their fathers, under § 1983 of Title 42 of the United States Code. It prayed for an injunction restraining the respondent school officials and the respondent members of the board of directors of the school district from disciplining the petitioners, and it sought nominal damages. After an evidentiary hearing, the District Court dismissed the complaint. It upheld [505 ] the constitutionality of the school authorities' action on the ground that it was reasonable in order to prevent disturbance of school discipline. 258 F. Supp. 971 (1966). The court referred to, but expressly declined to follow, the Fifth Circuit's holding in a similar case that the wearing of symbols like the armbands cannot be prohibited unless it "materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school." Burnside v. Byars , 363 F.2d 744, 749 (1966). [ Footnote 1 ] On appeal, the Court of Appeals for the Eighth Circuit considered the case en banc. The court was equally divided, and the District Court's decision was accordingly affirmed without opinion. 383 F.2d 988 (1967). We granted certiorari. 390 U.S. 942 (1968). I The District Court recognized that the wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment. See West Virginia v. Barnette , 319 U. S. 624 (1943); Stromberg v. California , 283 U. S. 359 (1931). Cf. Thornhill v. Alabama , 310 U. S. 88 (1940); Edwards v. South Carolina , 372 U. S. 229 (1963); Brown v. Louisiana , 383 U. S. 131 (1966). As we shall discuss, the wearing of armbands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it. It was closely akin to "pure speech" [506 ] which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment. Cf. Cox v. Louisiana , 379 U. S. 536 , 555 (1965); Adderley v. Florida , 385 U. S. 39 (1966). First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years. In Meyer v. Nebraska , 262 U. S. 390 (1923), and Bartels v. Iowa , 262 U. S. 404 (1923), this Court, in opinions by Mr. Justice McReynolds, held that the Due Process Clause of the Fourteenth Amendment prevents States from forbidding the teaching of a foreign language to young students. Statutes to this effect, the Court held, unconstitutionally interfere with the liberty of teacher, student, and parent. [ Footnote 2 ] See also Pierce v. Society of Sisters , 268 [507 ] U.S. 510 (1925); West Virginia v. Barnette , 319 U. S. 624 (1943); McCollum v. Board of Education , 333 U. S. 203 (1948); Wieman v. Updegraff , 344 U. S. 183 , 195 (1952) (concurring opinion); Sweezy v. New Hampshire , 354 U. S. 234 (1957); Shelton v. Tucker , 364 U. S. 479 , 487 (1960); Engel v. Vitale , 370 U. S. 421 (1962); Keyishian v. Board of Regents , 385 U. S. 589 , 603 (1967); Epperson v. Arkansas, ante , p. 97 (1968). In West Virginia v. Barnette, supra , this Court held that, under the First Amendment, the student in public school may not be compelled to salute the flag. Speaking through Mr. Justice Jackson, the Court said: "The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures -- Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes."319 U.S. at 637. On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools. See Epperson v. Arkansas, supra , at 104; Meyer v. Nebraska, supra , at 402. Our problem lies in the area where students in the exercise of First Amendment rights collide with the rules of the school authorities. II The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, [508 ] to hair style, or deportment. Cf. Ferrell v. Dallas Independent School District , 392 F.2d 697 (1968); Pugsley v. Sellmeyer , 158 Ark. 247, 250 S.W. 538 (1923). It does not concern aggressive, disruptive action or even group demonstrations. Our problem involves direct, primary First Amendment rights akin to "pure speech." The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners' interference, actual or nascent, with the schools' work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students. Only a few of the 18,000 students in the school system wore the black armbands. Only five students were suspended for wearing them. There is no indication that the work of the schools or any class was disrupted. Outside the classrooms, a few students made hostile remarks to the children wearing armbands, but there were no threats or acts of violence on school premises. The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago , 337 U. S. 1 (1949); and our history says that it is this sort of hazardous freedom -- this kind of openness -- that is [509 ] the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society. In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school," the prohibition cannot be sustained. Burnside v. Byars, supra at 749. In the present case, the District Court made no such finding, and our independent examination of the record fails to yield evidence that the school authorities had reason to anticipate that the wearing of the armbands would substantially interfere with the work of the school or impinge upon the rights of other students. Even an official memorandum prepared after the suspension that listed the reasons for the ban on wearing the armbands made no reference to the anticipation of such disruption. [ Footnote 3 ] [510 ] On the contrary, the action of the school authorities appears to have been based upon an urgent wish to avoid the controversy which might result from the expression, even by the silent symbol of armbands, of opposition to this Nation's part in the conflagration in Vietnam. [ Footnote 4 ] It is revealing, in this respect, that the meeting at which the school principals decided to issue the contested regulation was called in response to a student's statement to the journalism teacher in one of the schools that he wanted to write an article on Vietnam and have it published in the school paper. (The student was dissuaded. [ Footnote 5 ]) It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance. The record shows that students in some of the schools wore buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the wearing of armbands did not extend to these. Instead, a particular symbol -- black armbands worn to exhibit opposition to this Nation's involvement [511 ] in Vietnam -- was singled out for prohibition. Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible. In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school, as well as out of school, are "persons" under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. As Judge Gewin, speaking for the Fifth Circuit, said, school officials cannot suppress "expressions of feelings with which they do not wish to contend." Burnside v. Byars, supra , at 749. In Meyer v. Nebraska, supra , at 402, Mr. Justice McReynolds expressed this Nation's repudiation of the principle that a State might so conduct its schools as to "foster a homogeneous people." He said: "In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and State were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a [512 ] State without doing violence to both letter and spirit of the Constitution." This principle has been repeated by this Court on numerous occasions during the intervening years. In Keyishian v. Board of Regents , 385 U. S. 589 , 603, MR. JUSTICE BRENNAN, speaking for the Court, said: "'The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.' Shelton v. Tucker , [ 364 U.S. 479 ,] at 487. The classroom is peculiarly the 'marketplace of ideas.' The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, [rather] than through any kind of authoritative selection.'" The principle of these cases is not confined to the supervised and ordained discussion which takes place in the classroom. The principal use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types of activities. Among those activities is personal intercommunication among the students. [ Footnote 6 ] This is not only an inevitable part of the process of attending school; it is also an important part of the educational process. A student's rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on [513 ] the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without "materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school" and without colliding with the rights of others. Burnside v. Byars, supra , at 749. But conduct by the student, in class or out of it, which for any reason -- whether it stems from time, place, or type of behavior -- materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech. Cf. Blackwell v. Issaquena County Board of Education. , 363 F.2d 740 (C.A. 5th Cir.1966). Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists in principle, but not in fact. Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots. The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to permit reasonable regulation of speech-connected activities in carefully restricted circumstances. But we do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school classroom. If a regulation were adopted by school officials forbidding discussion of the Vietnam conflict, or the expression by any student of opposition to it anywhere on school property except as part of a prescribed classroom exercise, it would be obvious that the regulation would violate the constitutional rights of students, at least if it could not be justified by a showing that the students' activities would materially and substantially disrupt the work and discipline of the school. Cf. Hammond [514 ] v. South Carolina State College , 272 F. Supp. 947 (D.C.S.C.1967) (orderly protest meeting on state college campus); Dickey v. Alabama State Board of Education , 273 F. Supp. 613 (D.C.M.D. Ala. 967) (expulsion of student editor of college newspaper). In the circumstances of the present case, the prohibition of the silent, passive "witness of the armbands," as one of the children called it, is no less offensive to the Constitution's guarantees. As we have discussed, the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred. These petitioners merely went about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder. In the circumstances, our Constitution does not permit officials of the State to deny their form of expression. We express no opinion as to the form of relief which should be granted, this being a matter for the lower courts to determine. We reverse and remand for further proceedings consistent with this opinion. Reversed and remanded. MR. JUSTICE STEWART, concurring. Although I agree with much of what is said in the Court's opinion, and with its judgment in this case, I [515 ] cannot share the Court's uncritical assumption that, school discipline aside, the First Amendment rights of children are coextensive with those of adults. Indeed, I had thought the Court decided otherwise just last Term in Ginsberg v. New York , 390 U. S. 629 . I continue to hold the view I expressed in that case: "[A] State may permissibly determine that, at least in some precisely delineated areas, a child -- like someone in a captive audience -- is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees." Id. at 649-650 (concurring in result). Cf. Prince v. Massachusetts , 321 U. S. 158 . MR. JUSTICE WHITE, concurring. While I join the Court's opinion, I deem it appropriate to note, first, that the Court continues to recognize a distinction between communicating by words and communicating by acts or conduct which sufficiently impinges on some valid state interest; and, second, that I do not subscribe to everything the Court of Appeals said about free speech in its opinion in Burnside v. Byars , 363 F.2d 744, 748 (C.A. 5th Cir.1966), a case relied upon by the Court in the matter now before us. MR. JUSTICE BLACK, dissenting. The Court's holding in this case ushers in what I deem to be an entirely new era in which the power to control pupils by the elected "officials of state supported public schools . . ." in the United States is in ultimate effect transferred to the Supreme Court. [ Footnote 1 ] The Court brought [516 ] this particular case here on a petition for certiorari urging that the First and Fourteenth Amendments protect the right of school pupils to express their political views all the way "from kindergarten through high school." Here, the constitutional right to "political expression" asserted was a right to wear black armbands during school hours and at classes in order to demonstrate to the other students that the petitioners were mourning because of the death of United States soldiers in Vietnam and to protest that war which they were against. Ordered to refrain from wearing the armbands in school by the elected school officials and the teachers vested with state authority to do so, apparently only seven out of the school system's 18,000 pupils deliberately refused to obey the order. One defying pupil was Paul Tinker, 8 years old, who was in the second grade; another, Hope Tinker, was 11 years old and in the fifth grade; a third member of the Tinker family was 13, in the eighth grade; and a fourth member of the same family was John Tinker, 15 years old, an 11th grade high school pupil. Their father, a Methodist minister without a church, is paid a salary by the American Friends Service Committee. Another student who defied the school order and insisted on wearing an armband in school was Christopher Eckhardt, an 11th grade pupil and a petitioner in this case. His mother is an official in the Women's International League for Peace and Freedom. As I read the Court's opinion, it relies upon the following grounds for holding unconstitutional the judgment of the Des Moines school officials and the two courts below. First, the Court concludes that the wearing of armbands is "symbolic speech," which is "akin to pure speech,'" and therefore protected by the First and Fourteenth Amendments. Secondly, the Court decides that the public schools are an appropriate place to exercise "symbolic speech" as long as normal school functions [517 ] are not "unreasonably" disrupted. Finally, the Court arrogates to itself, rather than to the State's elected officials charged with running the schools, the decision as to which school disciplinary regulations are "reasonable." Assuming that the Court is correct in holding that the conduct of wearing armbands for the purpose of conveying political ideas is protected by the First Amendment, cf., e.g., Giboney v. Empire Storage & Ice Co. , 336 U. S. 490 (1949), the crucial remaining questions are whether students and teachers may use the schools at their whim as a platform for the exercise of free speech -- "symbolic" or "pure" -- and whether the courts will allocate to themselves the function of deciding how the pupils' school day will be spent. While I have always believed that, under the First and Fourteenth Amendments, neither the State nor the Federal Government has any authority to regulate or censor the content of speech, I have never believed that any person has a right to give speeches or engage in demonstrations where he pleases and when he pleases. This Court has already rejected such a notion. In Cox v. Louisiana , 379 U. S. 536 , 554 (1965), for example, the Court clearly stated that the rights of free speech and assembly "do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time." While the record does not show that any of these armband students shouted, used profane language, or were violent in any manner, detailed testimony by some of them shows their armbands caused comments, warnings by other students, the poking of fun at them, and a warning by an older football player that other nonprotesting students had better let them alone. There is also evidence that a teacher of mathematics had his lesson period practically "wrecked," chiefly by disputes with Mary Beth Tinker, who wore her armband for her "demonstration." [518 ] Even a casual reading of the record shows that this armband did divert students' minds from their regular lessons, and that talk, comments, etc., made John Tinker "self-conscious" in attending school with his armband. While the absence of obscene remarks or boisterous and loud disorder perhaps justifies the Court's statement that the few armband students did not actually "disrupt" the classwork, I think the record overwhelmingly shows that the armbands did exactly what the elected school officials and principals foresaw they would, that is, took the students' minds off their classwork and diverted them to thoughts about the highly emotional subject of the Vietnam war. And I repeat that, if the time has come when pupils of state-supported schools, kindergartens, grammar schools, or high schools, can defy and flout orders of school officials to keep their minds on their own schoolwork, it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary. The next logical step, it appears to me, would be to hold unconstitutional laws that bar pupils under 21 or 18 from voting, or from being elected members of the boards of education. [ Footnote 2 ] The United States District Court refused to hold that the state school order violated the First and Fourteenth Amendments. 258 F. Supp. 971 . Holding that the protest was akin to speech, which is protected by the First [519 ] and Fourteenth Amendments, that court held that the school order was "reasonable," and hence constitutional. There was at one time a line of cases holding "reasonableness," as the court saw it, to be the test of a "due process" violation. Two cases upon which the Court today heavily relies for striking down this school order used this test of reasonableness, Meyer v. Nebraska , 262 U. S. 390 (1923), and Bartels v. Iowa , 262 U. S. 404 (1923). The opinions in both cases were written by Mr. Justice McReynolds; Mr. Justice Holmes, who opposed this reasonableness test, dissented from the holdings, as did Mr. Justice Sutherland. This constitutional test of reasonableness prevailed in this Court for a season. It was this test that brought on President Franklin Roosevelt's well known Court fight. His proposed legislation did not pass, but the fight left the "reasonableness" constitutional test dead on the battlefield, so much so that this Court, in Ferguson v. Skrupa , 372 U. S. 726 , 729, 730, after a thorough review of the old cases, was able to conclude in 1963: "There was a time when the Due Process Clause was used by this Court to strike down laws which were thought unreasonable, that is, unwise or incompatible with some particular economic or social philosophy." * * * * "The doctrine that prevailed in Lochner, Coppage, Adkins, Burns , and like cases -- that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely -- has long since been discarded." The Ferguson case totally repudiated the old reasonableness-due process test, the doctrine that judges have the power to hold laws unconstitutional upon the belief of judges that they "shock the conscience," or that they are [520 ] "unreasonable," "arbitrary," "irrational," "contrary to fundamental decency,'" or some other such flexible term without precise boundaries. I have many times expressed my opposition to that concept on the ground that it gives judges power to strike down any law they do not like. If the majority of the Court today, by agreeing to the opinion of my Brother FORTAS, is resurrecting that old reasonableness-due process test, I think the constitutional change should be plainly, unequivocally, and forthrightly stated for the benefit of the bench and bar. It will be a sad day for the country, I believe, when the present-day Court returns to the McReynolds due process concept. Other cases cited by the Court do not, as implied, follow the McReynolds reasonableness doctrine. West Virginia v. Barnette , 319 U. S. 624 , clearly rejecting the "reasonableness" test, held that the Fourteenth Amendment made the First applicable to the States, and that the two forbade a State to compel little school children to salute the United States flag when they had religious scruples against doing so. [ Footnote 3 ] Neither Thornhill v. Alabama , 310 U. S. 88 ; Stromberg v. California , 283 U. S. 359 ; Edwards [521 ] v. South Carolina , 372 U. S. 229 ; nor Brown v. Louisiana , 383 U. S. 131 , related to school children at all, and none of these cases embraced Mr. Justice McReynolds' reasonableness test; and Thornhill, Edwards , and Brown relied on the vagueness of state statutes under scrutiny to hold them unconstitutional. Cox v. Louisiana , 379 U. S. 536 , 555, and Adderley v. Florida , 385 U. S. 39 , cited by the Court as a "compare," indicating, I suppose, that these two cases are no longer the law, were not rested to the slightest extent on the Meyer and Bartels "reasonableness-due process-McReynolds" constitutional test. I deny, therefore, that it has been the "unmistakable holding of this Court for almost 50 years" that "students" and "teachers" take with them into the "schoolhouse gate" constitutional rights to "freedom of speech or expression." Even Meyer did not hold that. It makes no reference to "symbolic speech" at all; what it did was to strike down as "unreasonable," and therefore unconstitutional, a Nebraska law barring the teaching of the German language before the children reached the eighth grade. One can well agree with Mr. Justice Holmes and Mr. Justice Sutherland, as I do, that such a law was no more unreasonable than it would be to bar the teaching of Latin and Greek to pupils who have not reached the eighth grade. In fact, I think the majority's reason for invalidating the Nebraska law was that it did not like it, or, in legal jargon, that it "shocked the Court's conscience," "offended its sense of justice," or was "contrary to fundamental concepts of the English-speaking world," as the Court has sometimes said. See, e.g., Rochin v. California , 342 U. S. 165 , and Irvine v. California , 347 U. S. 128 . The truth is that a teacher of kindergarten, grammar school, or high school pupils no more carries into a school with him a complete right to freedom of speech and expression than an anti-Catholic or anti-Semite carries with him a complete freedom of [522 ] speech and religion into a Catholic church or Jewish synagogue. Nor does a person carry with him into the United States Senate or House, or into the Supreme Court, or any other court, a complete constitutional right to go into those places contrary to their rules and speak his mind on any subject he pleases. It is a myth to say that any person has a constitutional right to say what he pleases, where he pleases, and when he pleases. Our Court has decided precisely the opposite. See, e.g., Cox v. Louisiana , 379 U. S. 536 , 555; Adderley v. Florida , 385 U. S. 39 . In my view, teachers in state-controlled public schools are hired to teach there. Although Mr. Justice McReynolds may have intimated to the contrary in Meyer v. Nebraska, supra , certainly a teacher is not paid to go into school and teach subjects the State does not hire him to teach as a part of its selected curriculum. Nor are public school students sent to the schools at public expense to broadcast political or any other views to educate and inform the public. The original idea of schools, which I do not believe is yet abandoned as worthless or out of date, was that children had not yet reached the point of experience and wisdom which enabled them to teach all of their elders. It may be that the Nation has outworn the old-fashioned slogan that "children are to be seen, not heard," but one may, I hope, be permitted to harbor the thought that taxpayers send children to school on the premise that, at their age, they need to learn, not teach. The true principles on this whole subject were, in my judgment, spoken by Mr. Justice McKenna for the Court in Waugh v. Mississippi University , 237 U. S. 589 , 596-597. The State had there passed a law barring students from peaceably assembling in Greek letter fraternities and providing that students who joined them could be expelled from school. This law would appear on the surface to run afoul of the First Amendment's [523 ] freedom of assembly clause. The law was attacked as violative of due process and of the privileges and immunities clause, and as a deprivation of property and of liberty under the Fourteenth Amendment. It was argued that the fraternity made its members more moral, taught discipline, and inspired its members to study harder and to obey better the rules of discipline and order. This Court rejected all the "fervid" pleas of the fraternities' advocates and decided unanimously against these Fourteenth Amendment arguments. The Court, in its next to the last paragraph, made this statement which has complete relevance for us today: "It is said that the fraternity to which complainant belongs is a moral and, of itself, a disciplinary, force. This need not be denied. But whether such membership makes against discipline was for the State of Mississippi to determine. It is to be remembered that the University was established by the State, and is under the control of the State, and the enactment of the statute may have been induced by the opinion that membership in the prohibited societies divided the attention of the students and distracted from that singleness of purpose which the State desired to exist in its public educational institutions. It is not for us to entertain conjectures in opposition to the views of the State and annul its regulations upon disputable considerations of their wisdom or necessity." (Emphasis supplied.) It was on the foregoing argument that this Court sustained the power of Mississippi to curtail the First Amendment's right of peaceable assembly. And the same reasons are equally applicable to curtailing in the States' public schools the right to complete freedom of expression. Iowa's public schools, like Mississippi's university, are operated to give students an opportunity to learn, not to talk politics by actual speech, or by "symbolic" [524 ] speech. And, as I have pointed out before, the record amply shows that public protest in the school classes against the Vietnam war "distracted from that singleness of purpose which the State [here Iowa] desired to exist in its public educational institutions." Here, the Court should accord Iowa educational institutions the same right to determine for themselves to what extent free expression should be allowed in its schools as it accorded Mississippi with reference to freedom of assembly. But even if the record were silent as to protests against the Vietnam war distracting students from their assigned class work, members of this Court, like all other citizens, know, without being told, that the disputes over the wisdom of the Vietnam war have disrupted and divided this country as few other issues ever have. Of course, students, like other people, cannot concentrate on lesser issues when black armbands are being ostentatiously displayed in their presence to call attention to the wounded and dead of the war, some of the wounded and the dead being their friends and neighbors. It was, of course, to distract the attention of other students that some students insisted up to the very point of their own suspension from school that they were determined to sit in school with their symbolic armbands. Change has been said to be truly the law of life, but sometimes the old and the tried and true are worth holding. The schools of this Nation have undoubtedly contributed to giving us tranquility and to making us a more law-abiding people. Uncontrolled and uncontrollable liberty is an enemy to domestic peace. We cannot close our eyes to the fact that some of the country's greatest problems are crimes committed by the youth, too many of school age. School discipline, like parental discipline, is an integral and important part of training our children to be good citizens -- to be better citizens. Here a very small number of students have crisply and summarily [525 ] refused to obey a school order designed to give pupils who want to learn the opportunity to do so. One does not need to be a prophet or the son of a prophet to know that, after the Court's holding today, some students in Iowa schools -- and, indeed, in all schools -- will be ready, able, and willing to defy their teachers on practically all orders. This is the more unfortunate for the schools since groups of students all over the land are already running loose, conducting break-ins, sit-ins, lie-ins, and smash-ins. Many of these student groups, as is all too familiar to all who read the newspapers and watch the television news programs, have already engaged in rioting, property seizures, and destruction. They have picketed schools to force students not to cross their picket lines, and have too often violently attacked earnest but frightened students who wanted an education that the pickets did not want them to get. Students engaged in such activities are apparently confident that they know far more about how to operate public school systems than do their parents, teachers, and elected school officials. It is no answer to say that the particular students here have not yet reached such high points in their demands to attend classes in order to exercise their political pressures. Turned loose with lawsuits for damages and injunctions against their teachers as they are here, it is nothing but wishful thinking to imagine that young, immature students will not soon believe it is their right to control the schools, rather than the right of the States that collect the taxes to hire the teachers for the benefit of the pupils. This case, therefore, wholly without constitutional reasons, in my judgment, subjects all the public schools in the country to the whims and caprices of their loudest-mouthed, but maybe not their brightest, students. I, for one, am not fully persuaded that school pupils are wise enough, even with this Court's expert help from Washington, to run the 23,390 public school [526 ] systems [ Footnote 4 ] in our 50 States. I wish, therefore, wholly to disclaim any purpose on my part to hold that the Federal Constitution compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students. I dissent. MR. JUSTICE HARLAN, dissenting. I certainly agree that state public school authorities, in the discharge of their responsibilities, are not wholly exempt from the requirements of the Fourteenth Amendment respecting the freedoms of expression and association. At the same time, I am reluctant to believe that there is any disagreement between the majority and myself on the proposition that school officials should be accorded the widest authority in maintaining discipline and good order in their institutions. To translate that proposition into a workable constitutional rule, I would, in cases like this, cast upon those complaining the burden of showing that a particular school measure was motivated by other than legitimate school concerns -- for example, a desire to prohibit the expression of an unpopular point of view, while permitting expression of the dominant opinion. Finding nothing in this record which impugns the good faith of respondents in promulgating the armband regulation, I would affirm the judgment below. Footnotes [ Footnote 1 ] In Burnside , the Fifth Circuit ordered that high school authorities be enjoined from enforcing a regulation forbidding students to wear "freedom buttons." It is instructive that, in Blackwell v. Issaquena County Board of Education , 363 F.2d 749 (1966), the same panel on the same day reached the opposite result on different facts. It declined to enjoin enforcement of such a regulation in another high school where the students wearing freedom buttons harassed students who did not wear them, and created much disturbance. [ Footnote 2 ] Hamilton v. Regents of Univ. of Cal. , 293 U. S. 245 (1934), is sometimes cited for the broad proposition that the State may attach conditions to attendance at a state university that require individuals to violate their religious convictions. The case involved dismissal of members of a religious denomination from a land grant college for refusal to participate in military training. Narrowly viewed, the case turns upon the Court's conclusion that merely requiring a student to participate in school training in military "science" could not conflict with his constitutionally protected freedom of conscience. The decision cannot be taken as establishing that the State may impose and enforce any conditions that it chooses upon attendance at public institutions of learning, however violative they may be of fundamental constitutional guarantees. See, e.g., West Virginia v. Barnette , 319 U. S. 624 (1943); Dixon v. Alabama State Board of Education , 294 F.2d 150 (C.A. 5th Cir.1961); Knight v. State Board of Education , 200 F. Supp. 174 (D.C. M.D. Tenn.1961); Dickey v. Alabama State Board of Education , 273 F. Supp. 613 (D.C. M.D. Ala.1967). See also Note, Unconstitutional Conditions, 73 Harv.L.Rev. 1595 (1960); Note, Academic Freedom, 81 Harv.L.Rev. 1045 (1968). [ Footnote 3 ] The only suggestions of fear of disorder in the report are these: "A former student of one of our high schools was killed in Viet Nam. Some of his friends are still in school, and it was felt that, if any kind of a demonstration existed, it might evolve into something which would be difficult to control." "Students at one of the high schools were heard to say they would wear armbands of other colors if the black bands prevailed." Moreover, the testimony of school authorities at trial indicates that it was not fear of disruption that motivated the regulation prohibiting the armbands; the regulation was directed against "the principle of the demonstration" itself. School authorities simply felt that "the schools are no place for demonstrations," and if the students "didn't like the way our elected officials were handling things, it should be handled with the ballot box, and not in the halls of our public schools." [ Footnote 4 ] The District Court found that the school authorities, in prohibiting black armbands, were influenced by the fact that "[t]he Viet Nam war and the involvement of the United States therein has been the subject of a major controversy for some time. When the armband regulation involved herein was promulgated, debate over the Viet Nam war had become vehement in many localities. A protest march against the war had been recently held in Washington, D.C. A wave of draft card burning incidents protesting the war had swept the country. At that time, two highly publicized draft card burning cases were pending in this Court. Both individuals supporting the war and those opposing it were quite vocal in expressing their views." 258 F. Supp. at 92-973. [ Footnote 5 ] After the principals' meeting, the director of secondary education and the principal of the high school informed the student that the principals were opposed to publication of his article. They reported that "we felt that it was a very friendly conversation, although we did not feel that we had convinced the student that our decision was a just one." [ Footnote 6 ] In Hammond v. South Carolina State College , 272 F. Supp. 947 (D.C. S.C.1967), District Judge Hemphill had before him a case involving a meeting on campus of 300 students to express their views on school practices. He pointed out that a school is not like a hospital or a jail enclosure. Cf. Cox v. Louisiana , 379 U. S. 536 (1965); Adderley v. Florida , 385 U. S. 39 (1966). It is a public place, and its dedication to specific uses does not imply that the constitutional rights of persons entitled to be there are to be gauged as if the premises were purely private property. Cf. Edwards v. South Carolina , 372 U. S. 229 (1963); Brown v. Louisiana , 383 U. S. 131 (1966). [ Footnote 1 ] The petition for certiorari here presented this single question: "Whether the First and Fourteenth Amendments permit officials of state supported public schools to prohibit students from wearing symbols of political views within school premises where the symbols are not disruptive of school discipline or decorum." [ Footnote 2 ] The following Associated Press article appeared in the Washington Evening Star, January 11, 1969, p. A-2, col. 1: "BELLINGHAM, Mass. (AP) -- Todd R. Hennessy, 16, has filed nominating papers to run for town park commissioner in the March election." "'I can see nothing illegal in the youth's seeking the elective office,' said Lee Ambler, the town counsel. 'But I can't overlook the possibility that, if he is elected, any legal contract entered into by the park commissioner would be void because he is a juvenile.'" "Todd is a junior in Mount St. Charles Academy, where he has a top scholastic record." [ Footnote 3 ] In Cantwell v. Connecticut , 310 U. S. 296 , 303-304 (1940), this Court said: "The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus, the Amendment embraces two concepts -- freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society." [ Footnote 4 ] Statistical Abstract of the United States (1968), Table No. 578, p. 406.

Here is a summary of the case: In *Tinker v. Des Moines Independent Community School District* (1969), the United States Supreme Court ruled that public school students have the right to express their political views on campus as long as it does not cause any disruption. The case involved several students who wore black armbands to school to protest the Vietnam War and were subsequently suspended. The Court held that the students' First Amendment rights were violated as their actions did not cause any substantial disruption to school operations. This case established the "material and substantial interference" test, which allows schools to regulate student speech if it interferes with the educational process.

Free Speech

U.S. v. O'Brien

https://supreme.justia.com/cases/federal/us/391/367/

U.S. Supreme Court United States v. O'Brien, 391 U.S. 367 (1968) United States v. O'Brien No. 232 Argued January 24, 1968 Decided May 27, 1968 391 U.S. 367 ast|>* 391 U.S. 367 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT Syllabus O'Brien burned his Selective Service registration certificate before a sizable crowd in order to influence others to adopt his anti-war beliefs. He was indicted, tried, and convicted for violating 50 U.S.C.App. § 462(b), a part of the Universal Military Training and Service Act, subdivision (3) of which applies to any person "who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any such certificate . . . ," the words italicized herein having been added by amendment in 1965. The District Court rejected O'Brien's argument that the amendment was unconstitutional because it was enacted to abridge free speech and served no legitimate legislative purpose. The Court of Appeals held the 1965 Amendment unconstitutional under the First Amendment as singling out for special treatment persons engaged in protests, on the ground that conduct under the 1965 Amendment was already punishable, since a Selective Service System regulation required registrants to keep their registration certificates in their "personal possession at all times," 32 CFR § 1617.1, and willful violation of regulations promulgated under the Act was made criminal by 50 U.S.C.App. § 462(b)(6). The court, however, upheld O'Brien's conviction under § 462(b)(6), which, in its view, made violation of the nonpossession regulation a lesser included offense of the crime defined by the 1965 Amendment. Held: 1. The 1965 Amendment to 50 U.S.C.App. § 462(b)(3) is constitutional as applied in this case. Pp. 391 U. S. 375 , 391 U. S. 376 -382. (a) The 1965 Amendment plainly does not abridge free speech on its face. P. 391 U. S. 375 . (b) When "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. P. 391 U. S. 376 . (c) A governmental regulation is sufficiently justified if it is within the constitutional power of the Government and furthers Page 391 U. S. 368 an important or substantial governmental interest unrelated to the suppression of free expression, and if the incidental restriction on alleged First Amendment freedom is no greater than is essential to that interest. The 1965 Amendment meets all these requirements. P. 391 U. S. 377 . (d) The 1965 Amendment came within Congress'."broad and sweeping" power to raise and support armies and make all laws necessary to that end. P. 391 U. S. 377 . (e) The registration certificate serves purposes in addition to initial notification, e.g., it proves that the described individual has registered for the draft; facilitates communication between registrants and local boards, and provides a reminder that the registrant must notify his local board of changes in address or status. The regulatory scheme involving the certificates includes clearly valid prohibitions against alteration, forgery, or similar deceptive misuse. Pp. 391 U. S. 378 -380. (f) The preexistence of the nonpossession regulation does not negate Congress' clear interest in providing alternative statutory avenues of prosecution to assure its interest in preventing destruction of the Selective Service certificates. P. 391 U. S. 380 . (g) The governmental interests protected by the 1965 Amendment and the nonpossession regulation, though overlapping, are not identical. Pp. 391 U. S. 380 -381. (h) The 1965 Amendment is a narrow and precisely drawn provision which specifically protects the Government's substantial interest in an efficient and easily administered system for raising armies. Pp. 391 U. S. 381 -382. (i) O'Brien was convicted only for the willful frustration of that governmental interest. The noncommunicative impact of his conduct for which he was convicted makes his case readily distinguishable from Stromberg v. California, 283 U. S. 359 (1931). P. 391 U. S. 382 . 2. The 1965 Amendment is constitutional as enacted. Pp. 391 U. S. 382 -385. (a) Congress' purpose in enacting the law affords no basis for declaring an otherwise constitutional statute invalid. McCray v. United States, 195 U. S. 27 (1904). Pp. 391 U. S. 383 -384. (b) Grosjean v. American Press Co., 297 U. S. 233 (1936) and Gomillion v. Lightfoot, 364 U. S. 339 (1960), distinguished. Pp. 391 U. S. 384 -385. 376 F.2d 538, vacated; judgment and sentence of District Court reinstated. Page 391 U. S. 369 MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. On the morning of March 31, 1966, David Paul O'Brien and three companions burned their Selective Service registration certificates on the steps of the South Boston Courthouse. A sizable crowd, including several agents of the Federal Bureau of Investigation, witnessed the event. [ Footnote 1 ] Immediately after the burning, members of the crowd began attacking O'Brien and his companions. An FBI agent ushered O'Brien to safety inside the courthouse. After he was advised of his right to counsel and to silence, O'Brien stated to FBI agents that he had burned his registration certificate because of his beliefs, knowing that he was violating federal law. He produced the charred remains of the certificate, which, with his consent, were photographed. For this act, O'Brien was indicted, tried, convicted, and sentenced in the United States District Court for the District of Massachusetts. [ Footnote 2 ] He did not contest the fact Page 391 U. S. 370 that he had burned the certificate. He stated in argument to the jury that he burned the certificate publicly to influence others to adopt his anti-war beliefs, as he put it, "so that other people would reevaluate their positions with Selective Service, with the armed forces, and reevaluate their place in the culture of today, to hopefully consider my position." The indictment upon which he was tried charged that he "willfully and knowingly did mutilate, destroy, and change by burning . . . [his] Registration Certificate (Selective Service System Form No. 2); in violation of Title 50, App. United States Code, Section 462(b)." Section 462(b) is part of the Universal Military Training and Service Act of 1948. Section 462(b)(3), one of six numbered subdivisions of § 462(b), was amended by Congress in 1965, 79 Stat. 586 (adding the words italicized below), so that, at the time O'Brien burned his certificate, an offense was committed by any person, "who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any such certificate. . . ." (Italics supplied.) In the District Court, O'Brien argued that the 1965 Amendment prohibiting the knowing destruction or mutilation of certificates was unconstitutional because it was enacted to abridge free speech, and because it served no legitimate legislative purpose. [ Footnote 3 ] The District Court rejected these arguments, holding that the statute, on its face, did not abridge First Amendment rights, that the court was not competent to inquire into the motives of Congress in enacting the 1965 Amendment, and that the Page 391 U. S. 371 Amendment was a reasonable exercise of the power of Congress to raise armies. On appeal, the Court of Appeals for the First Circuit held the 1965 Amendment unconstitutional as a law abridging freedom of speech. [ Footnote 4 ] At the time the Amendment was enacted, a regulation of the Selective Service System required registrants to keep their registration certificates in their "personal possession at all times." 32 CFR § 1617.1 (1962). [ Footnote 5 ] Willful violations of regulations promulgated pursuant to the Universal Military Training and Service Act were made criminal by statute. 50 U.S.C.App. § 462(b)(6). The Court of Appeals, therefore, was of the opinion that conduct punishable under the 1965 Amendment was already punishable under the nonpossession regulation, and consequently that the Amendment served no valid purpose; further, that, in light of the prior regulation, the Amendment must have been "directed at public, as distinguished from private, destruction." On this basis, the court concluded that the 1965 Amendment ran afoul of the First Amendment by singling out persons engaged in protests for special treatment. The court ruled, however, that O'Brien's conviction should be affirmed under the statutory provision, 50 U.S.C.App. § 462(b)(6), which, in its view, made violation of the nonpossession regulation a crime, because it regarded such violation to be a lesser included offense of the crime defined by the 1965 Amendment. [ Footnote 6 ] Page 391 U. S. 372 The Government petitioned for certiorari in No. 232, arguing that the Court of Appeals erred in holding the statute unconstitutional, and that its decision conflicted with decisions by the Courts of Appeals for the Second [ Footnote 7 ] and Eighth Circuits [ Footnote 8 ] upholding the 1965 Amendment against identical constitutional challenges. O'Brien cross-petitioned for certiorari in No. 233, arguing that the Court of Appeals erred in sustaining his conviction on the basis of a crime of which he was neither charged nor tried. We granted the Government's petition to resolve the conflict in the circuits, and we also granted O'Brien's cross-petition. We hold that the 1965 Amendment is constitutional both as enacted and as applied. We therefore vacate the judgment of the Court of Appeals and reinstate the judgment and sentence of the District Court without reaching the issue raised by O'Brien in No. 233. I When a male reaches the age of 18, he is required by the Universal Military Training and Service Act to register with a local draft board. [ Footnote 9 ] He is assigned a Selective Service number, [ Footnote 10 ] and within five days he is issued a Page 391 U. S. 373 registration certificate (SSS Form No. 2). [ Footnote 11 ] Subsequently, and based on a questionnaire completed by the registrant, [ Footnote 12 ] he is assigned a classification denoting his eligibility for induction, [ Footnote 13 ] and, "[a]s soon as practicable" thereafter, he is issued a Notice of Classification (SSS Form No. 110). [ Footnote 14 ] This initial classification is not necessarily permanent, [ Footnote 15 ] and if, in the interim before induction, the registrant's status changes in some relevant way, he may be reclassified. [ Footnote 16 ] After such a reclassification, the local board, "as soon as practicable," issues to the registrant a new Notice of Classification. [ Footnote 17 ] Both the registration and classification certificates are small white cards, approximately 2 by 3 inches. The registration certificate specifies the name of the registrant, the date of registration, and the number and address of the local board with which he is registered. Also inscribed upon it are the date and place of the registrant's birth, his residence at registration, his physical description, his signature, and his Selective Service number. The Selective Service number itself indicates his State of registration, his local board, his year of birth, and his chronological position in the local board's classification record. [ Footnote 18 ] The classification certificate shows the registrant's name, Selective Service number, signature, and eligibility classification. It specifies whether he was so classified by his local board, an appeal board, or the President. It Page 391 U. S. 374 contains the address of his local board and the date the certificate was mailed. Both the registration and classification certificates bear notices that the registrant must notify his local board in writing of every change in address, physical condition, and occupational, marital, family, dependency, and military status, and of any other fact which might change his classification. Both also contain a notice that the registrant's Selective Service number should appear on all communications to his local board. Congress demonstrated its concern that certificates issued by the Selective Service System might be abused well before the 1965 Amendment here challenged. The 1948 Act, 62 Stat. 604, itself prohibited many different abuses involving "any registration certificate, . . . or any other certificate issued pursuant to or prescribed by the provisions of this title, or rules or regulations promulgated hereunder. . . ." 62 Stat. 622. Under §§ 12(b)(1)-(5) of the 1948 Act, it was unlawful (1) to transfer a certificate to aid a person in making false identification; (2) to possess a certificate not duly issued with the intent of using it for false identification; (3) to forge, alter, "or in any manner" change a certificate or any notation validly inscribed thereon; (4) to photograph or make an imitation of a certificate for the purpose of false identification, and (5) to possess a counterfeited or altered certificate. 62 Stat. 622. In addition, as previously mentioned, regulations of the Selective Service System required registrants to keep both their registration and classification certificates in their personal possession at all times. 32 CFR § 1617.1 (1962) (Registration Certificates); [ Footnote 19 ] 32 CFR § 1623.5 Page 391 U. S. 375 (1962) (Classification Certificates). [ Footnote 20 ] And § 12(b)(6) of the Act, 62 Stat. 622, made knowing violation of any provision of the Act or rules and regulations promulgated pursuant thereto a felony. By the 1965 Amendment, Congress added to § 12(b)(3) of the 1948 Act the provision here at issue, subjecting to criminal liability not only one who "forges, alters, or in any manner changes", but also one who "knowingly destroys, [or] knowingly mutilates" a certificate. We note at the outset that the 1965 Amendment plainly does not abridge free speech on its face, and we do not understand O'Brien to argue otherwise. Amended § 12(b)(3), on its face, deals with conduct having no connection with speech. It prohibits the knowing destruction of certificates issued by the Selective Service System, and there is nothing necessarily expressive about such conduct. The Amendment does not distinguish between public and private destruction, and it does not punish only destruction engaged in for the purpose of expressing views. Compare Stromberg v. California, 283 U. S. 359 (1931). [ Footnote 21 ] A law prohibiting destruction of Selective Service certificates no more abridges free speech on its face than a motor vehicle law prohibiting the destruction of drivers' licenses, or a tax law prohibiting the destruction of books and records. Page 391 U. S. 376 O'Brien nonetheless argues that the 1965 Amendment is unconstitutional in its application to him, and is unconstitutional as enacted because what he calls the "purpose" of Congress was "to suppress freedom of speech." We consider these arguments separately. II O'Brien first argues that the 1965 Amendment is unconstitutional as applied to him because his act of burning his registration certificate was protected "symbolic speech" within the First Amendment. His argument is that the freedom of expression which the First Amendment guarantees includes all modes of "communication of ideas by conduct," and that his conduct is within this definition because he did it in "demonstration against the war and against the draft." We cannot accept the view that an apparently limitless variety of conduct can be labeled "speech" whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O'Brien's conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that, when "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; [ Footnote 22 ] substantial; [ Footnote 23 ] subordinating; [ Footnote 24 ] Page 391 U. S. 377 paramount; [ Footnote 25 ] cogent; [ Footnote 26 ] strong. [ Footnote 27 ] Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression, and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. We find that the 1965 Amendment to § 12(b)(3) of the Universal Military Training and Service Act meets all of these requirements, and consequently that O'Brien can be constitutionally convicted for violating it. The constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping. Lichter v. United States, 334 U. S. 742 , 334 U. S. 755 -758 (1948); Selective Draft Law Cases, 245 U. S. 366 (1918); see also Ex parte Quirin, 317 U. S. 1 , 317 U. S. 25 -26 (1942). The power of Congress to classify and conscript manpower for military service is "beyond question." Lichter v. United States, supra, at 334 U. S. 756 ; Selective Draft Law Cases, supra. Pursuant to this power, Congress may establish a system of registration for individuals liable for training and service, and may require such individuals, within reason, to cooperate in the registration system. The issuance of certificates indicating the registration and eligibility classification of individuals is a legitimate and substantial administrative aid in the functioning of this system. And legislation Page 391 U. S. 378 to insure the continuing availability of issued certificates serves a legitimate and substantial purpose in the system's administration. O'Brien's argument to the contrary is necessarily premised upon his unrealistic characterization of Selective Service certificates. He essentially adopts the position that such certificates are so many pieces of paper designed to notify registrants of their registration or classification, to be retained or tossed in the wastebasket according to the convenience or taste of the registrant. Once the registrant has received notification, according to this view, there is no reason for him to retain the certificates. O'Brien notes that most of the information on a registration certificate serves no notification purpose at all; the registrant hardly needs to be told his address and physical characteristics. We agree that the registration certificate contains much information of which the registrant needs no notification. This circumstance, however, does not lead to the conclusion that the certificate serves no purpose, but that, like the classification certificate, it serves purposes in addition to initial notification. Many of these purposes would be defeated by the certificates' destruction or mutilation. Among these are: 1. The registration certificate serves as proof that the individual described thereon has registered for the draft. The classification certificate shows the eligibility classification of a named but undescribed individual. Voluntarily displaying the two certificates is an easy and painless way for a young man to dispel a question as to whether he might be delinquent in his Selective Service obligations. Correspondingly, the availability of the certificates for such display relieves the Selective Service System of the administrative burden it would otherwise have in verifying the registration and classification of all suspected delinquents. Further, since both certificates are in the nature of "receipts" attesting that the registrant Page 391 U. S. 379 has done what the law requires, it is in the interest of the just and efficient administration of the system that they be continually available, in the event, for example, of a mix-up in the registrant's file. Additionally, in a time of national crisis, reasonable availability to each registrant of the two small cards assures a rapid and uncomplicated means for determining his fitness for immediate induction, no matter how distant in our mobile society he may be from his local board. 2. The information supplied on the certificates facilitates communication between registrants and local boards, simplifying the system and benefiting all concerned. To begin with, each certificate bears the address of the registrant's local board, an item unlikely to be committed to memory. Further, each card bears the registrant's Selective Service number, and a registrant who has his number readily available so that he can communicate it to his local board when he supplies or requests information can make simpler the board's task in locating his file. Finally, a registrant's inquiry, particularly through a local board other than his own, concerning his eligibility status is frequently answerable simply on the basis of his classification certificate; whereas, if the certificate were not reasonably available and the registrant were uncertain of his classification, the task of answering his questions would be considerably complicated. 3. Both certificates carry continual reminders that the registrant must notify his local board of any change of address, and other specified changes in his status. The smooth functioning of the system requires that local boards be continually aware of the status and whereabouts of registrants, and the destruction of certificates deprives the system of a potentially useful notice device. 4. The regulatory scheme involving Selective Service certificates includes clearly valid prohibitions against the alteration, forgery, or similar deceptive misuse of certificates. Page 391 U. S. 380 The destruction or mutilation of certificates obviously increases the difficulty of detecting and tracing abuses such as these. Further, a mutilated certificate might itself be used for deceptive purposes. The many functions performed by Selective Service certificates establish beyond doubt that Congress has a legitimate and substantial interest in preventing their wanton and unrestrained destruction and assuring their continuing availability by punishing people who knowingly and willfully destroy or mutilate them. And we are unpersuaded that the preexistence of the nonpossession regulations in any way negates this interest. In the absence of a question as to multiple punishment, it has never been suggested that there is anything improper in Congress' providing alternative statutory avenues of prosecution to assure the effective protection of one and the same interest. Compare the majority and dissenting opinions in Gore v. United States, 357 U. S. 386 (1958). [ Footnote 28 ] Here, the preexisting avenue of prosecution was not even statutory. Regulations may be modified or revoked from time to time by administrative discretion. Certainly, the Congress may change or supplement a regulation. Equally important, a comparison of the regulations with the 1965 Amendment indicates that they protect overlapping but not identical governmental interests, and that they reach somewhat different classes of wrongdoers. [ Footnote 29 ] The gravamen of the offense defined by the statute is the deliberate rendering of certificates unavailable for the various purposes which they may serve. Whether registrants keep their certificates in their personal Page 391 U. S. 381 possession at all times, as required by the regulations, is of no particular concern under the 1965 Amendment, as long as they do not mutilate or destroy the certificates so as to render them unavailable. Although as we note below we are not concerned here with the nonpossession regulations, it is not inappropriate to observe that the essential elements of nonpossession are not identical with those of mutilation or destruction. Finally, the 1965 Amendment, like § 12(b), which it amended, is concerned with abuses involving any issued Selective Service certificates, not only with the registrant's own certificates. The knowing destruction or mutilation of someone else's certificates would therefore violate the statute, but not the nonpossession regulations. We think it apparent that the continuing availability to each registrant of his Selective Service certificates substantially furthers the smooth and proper functioning of the system that Congress has established to raise armies. We think it also apparent that the Nation has a vital interest in having a system for raising armies that functions with maximum efficiency and is capable of easily and quickly responding to continually changing circumstances. For these reasons, the Government has a substantial interest in assuring the continuing availability of issued Selective Service certificates. It is equally clear that the 1965 Amendment specifically protects this substantial governmental interest. We perceive no alternative means that would more precisely and narrowly assure the continuing availability of issued Selective Service certificates than a law which prohibits their willful mutilation or destruction. Compare Sherbert v. Verner, 374 U. S. 398 , 374 U. S. 407 -408 (1963), and the cases cited therein. The 1965 Amendment prohibits such conduct and does nothing more. In other words, both the governmental interest and the operation of the 1965 Amendment are limited to the noncommunicative Page 391 U. S. 382 aspect of O'Brien's conduct. The governmental interest and the scope of the 1965 Amendment are limited to preventing harm to the smooth and efficient functioning of the Selective Service System. When O'Brien deliberately rendered unavailable his registration certificate, he willfully frustrated this governmental interest. For this noncommunicative impact of his conduct, and for nothing else, he was convicted. The case at bar is therefore unlike one where the alleged governmental interest in regulating conduct arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful. In Stromberg v. California, 283 U. S. 359 (1931), for example, this Court struck down a statutory phrase which punished people who expressed their "opposition to organized government" by displaying "any flag, badge, banner, or device." Since the statute there was aimed at suppressing communication it could not be sustained as a regulation of noncommunicative conduct. See also NLRB v. Fruit & Vegetable Packers Union, 377 U. S. 58 , 377 U. S. 79 (1964) (concurring opinion). In conclusion, we find that, because of the Government's substantial interest in assuring the continuing availability of issued Selective Service certificates, because amended § 462(b) is an appropriately narrow means of protecting this interest and condemns only the independent noncommunicative impact of conduct within its reach, and because the noncommunicative impact of O'Brien's act of burning his registration certificate frustrated the Government's interest, a sufficient governmental interest has been shown to justify O'Brien's conviction. III O'Brien finally argues that the 1965 Amendment is unconstitutional as enacted because what he calls the "purpose" of Congress was "to suppress freedom of Page 391 U. S. 383 speech." We reject this argument because under settled principles the purpose of Congress, as O'Brien uses that term, is not a basis for declaring this legislation unconstitutional. It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive. As the Court long ago stated: "The decisions of this court from the beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted." McCray v. United States, 195 U. S. 27 , 195 U. S. 56 (1904). This fundamental principle of constitutional adjudication was reaffirmed and the many cases were collected by Mr. Justice Brandeis for the Court in Arizona v. California, 23 U. S. 423 , 23 U. S. 455 (1931). Inquiries into congressional motives or purposes are a hazardous matter. When the issue is simply the interpretation of legislation, the Court will look to statements by legislators for guidance as to the purpose of the legislature, [ Footnote 30 ] because the benefit to sound decisionmaking in Page 391 U. S. 384 this circumstance is thought sufficient to risk the possibility of misreading Congress' purpose. It is entirely a different matter when we are asked to void a statute that is, under well settled criteria, constitutional on its face, on the basis of what fewer than a handful of Congressmen said about it. What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork. We decline to void essentially on the ground that it is unwise legislation which Congress had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a "wiser" speech about it. O'Brien's position, and, to some extent, that of the court below, rest upon a misunderstanding of Grosjean v. American Press Co., 297 U. S. 233 (1936), and Gomillion v. Lightfoot, 364 U. S. 339 (1960). These cases stand not for the proposition that legislative motive is a proper basis for declaring a statute unconstitutional, but that the inevitable effect of a statute on its face may render it unconstitutional. Thus, in Grosjean, the Court, having concluded that the right of publications to be free from certain kinds of taxes was a freedom of the press protected by the First Amendment, struck down a statute which on its face did nothing other than impose Page 391 U. S. 385 just such a tax. Similarly, in Gomillion, the Court sustained a complaint which if true, established that the "inevitable effect," 364 U.S. at 364 U. S. 341 , of the redrawing of municipal boundaries was to deprive the petitioners of their right to vote for no reason other than that they were Negro. In these cases, the purpose of the legislation was irrelevant, because the inevitable effect -- the "necessary scope and operation," McCray v. United States, 195 U. S. 27 , 195 U. S. 59 (1904) -- abridged constitutional rights. The statute attacked in the instant case has no such inevitable unconstitutional effect, since the destruction of Selective Service certificates is in no respect inevitably or necessarily expressive. Accordingly, the statute itself is constitutional. We think it not amiss, in passing, to comment upon O'Brien's legislative purpose argument. There was little floor debate on this legislation in either House. Only Senator Thurmond commented on its substantive features in the Senate. 111 Cong.Rec.19746, 20433. After his brief statement, and without any additional substantive comments, the bill, H.R. 10306, passed the Senate. 111 Cong.Rec. 20434. In the House debate only two Congressmen addressed themselves to the Amendment -- Congressmen Rivers and Bray. 111 Cong.Rec.19871, 19872. The bill was passed after their statements without any further debate by a vote of 393 to 1. It is principally on the basis of the statements by these three Congressmen that O'Brien makes his congressional "purpose" argument. We note that, if we were to examine legislative purpose in the instant case, we would be obliged to consider not only these statements, but also the more authoritative reports of the Senate and House Armed Services Committees. The portions of those reports explaining the purpose of the Amendment are reproduced in the 391 U.S. 367 app|>Appendix in their entirety. While both reports make clear a concern with the "defiant" Page 391 U. S. 386 destruction of so-called "draft cards" and with "open" encouragement to others to destroy their cards, both reports also indicate that this concern stemmed from an apprehension that unrestrained destruction of cards would disrupt the smooth functioning of the Selective Service System. IV Since the 1965 Amendment to § 12(b)(3) of the Universal Military Training and Service Act is constitutional as enacted and as applied, the Court of Appeals should have affirmed the judgment of conviction entered by the District Court. Accordingly, we vacate the judgment of the Court of Appeals, and reinstate the judgment and sentence of the District Court. This disposition makes unnecessary consideration of O'Brien's claim that the Court of Appeals erred in affirming hie conviction on the basis of the nonpossession regulation. [ Footnote 31 ] It is so ordered. MR. JUSTICE MARSHALL took no part in the consideration or decision of these cases. | 391 U.S. 367 app| APPENDIX TO OPINION OF THE COURT PORTIONS OF THE REPORTS OF THE COMMITTEES ON ARMED SERVICES OF THE SENATE AND HOUSE EXPLAINING THE 1965 AMENDMENT The "Explanation of the Bill" in the Senate Report is as follows: "Section 12(b)(3) of the Universal Military Training and Service Act of 1951, as amended, provides, among other things, that a person who forges, alters, or changes Page 391 U. S. 387 a draft registration certificate is subject to a fine of not more than $10,000 or imprisonment of not more than 5 years, or both. There is no explicit prohibition in this section against the knowing destruction or mutilation of such cards." "The committee has taken notice of the defiant destruction and mutilation of draft cards by dissident persons who disapprove of national policy. If allowed to continue unchecked, this contumacious conduct represents a potential threat to the exercise of the power to raise and support armies." "For a person to be subject to fine or imprisonment, the destruction or mutilation of the draft card must be 'knowingly' done. This qualification is intended to protect persons who lose or mutilate draft cards accidentally." S.Rep. No. 589, 89th Cong., 1st Sess. (1965). And the House Report explained: "Section 12(b)(3) of the Universal Military Training and Service Act of 1951, as amended, provides that a person who forges, alters, or in any manner changes his draft registration card, or any notation duly and validly inscribed thereon, will be subject to a fine of $10,000 or imprisonment of not more than 5 years. H.R. 10306 would amend this provision to make it apply also to those persons who knowingly destroy or knowingly mutilate a draft registration card." "The House Committee on Armed Services is fully aware of, and shares in, the deep concern expressed throughout the Nation over the increasing incidences in which individuals and large groups of individuals openly defy and encourage others to defy the authority of their Government by destroying or mutilating their draft cards." "While the present provisions of the Criminal Code with respect to the destruction of Government property Page 391 U. S. 388 may appear broad enough to cover all acts having to do with the mistreatment of draft cards in the possession of individuals, the committee feels that, in the present critical situation of the country, the acts of destroying or mutilating these cards are offenses which pose such a grave threat to the security of the Nation that no question whatsoever should be left as to the intention of the Congress that such wanton and irresponsible acts should be punished." "To this end, H.R. 10306 makes specific that knowingly mutilating or knowingly destroying a draft card constitutes a violation of the Universal Military Training and Service Act and is punishable thereunder, and that a person who does so destroy or mutilate a draft card will be subject to a fine of not more than $10,000 or imprisonment of not more than 5 years." H.R.Rep. No. 747, 89th Cong., 1st Sess. (1965). * Together with No. 233, O'Brien v. United States, also on certiorari to the same court. [ Footnote 1 ] At the time of the burning, the agents knew only that O'Brien and his three companions had burned small white cards. They later discovered that the card O'Brien burned was his registration certificate, and the undisputed assumption is that the same is true of his companions. [ Footnote 2 ] He was sentenced under the Youth Corrections Act, 18 U.S.C. § 5010(b), to the custody of the Attorney General for a maximum period of six years for supervision and treatment. [ Footnote 3 ] The issue of the constitutionality of the 1965 Amendment was raised by counsel representing O'Brien in a pretrial motion to dismiss the indictment. At trial and upon sentencing, O'Brien chose to represent himself. He was represented by counsel on his appeal to the Court of Appeals. [ Footnote 4 ] O'Brien v. United States, 376 F.2d 538 (C.A. 1st Cir.1967). [ Footnote 5 ] The portion of 32 CFR relevant to the instant case was revised as of January 1, 1967. Citations in this opinion are to the 1962 edition, which was in effect when O'Brien committed the crime and when Congress enacted the 1965 Amendment. [ Footnote 6 ] The Court of Appeals nevertheless remanded the case to the District Court to vacate the sentence and resentence O'Brien. In the court's view, the district judge might have considered the violation of the 1965 Amendment as an aggravating circumstance in imposing sentence. The Court of Appeals subsequently denied O'Brien's petition for a rehearing, in which he argued that he had not been charged, tried, or convicted for nonpossession, and that nonpossession was not a lesser included offense of mutilation or destruction. O'Brien v. United States, 376 F.2d 538, 542 (C.A. 1st Cir. 1967). [ Footnote 7 ] United States v. Miller, 367 F.2d 72 (C.A.2d Cir.1966), cert. denied, 386 U.S. 911 (1967). [ Footnote 8 ] Smith v. United States, 368 F.2d 529 (C.A. 8th Cir.1966). [ Footnote 9 ] See 62 Stat. 605, as amended, 65 Stat. 76, 50 U.S.C.App. § 453; 32 CFR § 1613.1 (1962). [ Footnote 10 ] 32 CFR § 1621.2 (1962). [ Footnote 11 ] 32 CFR § 1613.43a (1962). [ Footnote 12 ] 32 CFR §§ 1621.9, 1623.1 (1962). [ Footnote 13 ] 32 CFR §§ 1623.1, 1623.2 (1962). [ Footnote 14 ] 32 CFR § 1623.4 (1962). [ Footnote 15 ] 32 CFR § 1625.1 (1962). [ Footnote 16 ] 32 CFR §§ 1625.1, 1625.2, 1625.3, 1625.4, and 1625.11 (1962). [ Footnote 17 ] 32 CFR § 1625.12 (1962). [ Footnote 18 ] 32 CFR § 1621.2 (1962). [ Footnote 19 ] 32 CFR § 1617.1 (1962), provides, in relevant part: "Every person required to present himself for and submit to registration must., after he is registered, have in his personal possession at all times his Registration Certificate (SSS Form No. 2) prepared by his local board which has not been altered and on which no notation duly and validly inscribed thereon has been changed in any manner after its preparation by the local board. The failure of any person to have his Registration Certificate (SSS Form No. 2) in his personal possession shall be prima facie evidence of his failure to register." [ Footnote 20 ] 32 CFR § 1623.5 (1962), provides, in relevant part: "Every person who has been classified by a local board must have in his personal possession at all times, in addition to his Registration Certificate (SSS Form No. 2), a valid Notice of Classification (SSS Form No. 110) issued to him showing his current classification." [ Footnote 21 ] See text, infra at 391 U. S. 382 . [ Footnote 22 ] NAACP v. Button, 371 U. S. 415 , 371 U. S. 438 (1963); see also Sherbert v. Verner, 374 U. S. 398 , 374 U. S. 403 (1963). [ Footnote 23 ] NAACP v. Button, 371 U. S. 415 , 371 U. S. 444 (1963); NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 , 357 U. S. 464 (1958). [ Footnote 24 ] Bates v. Little Rock, 361 U. S. 516 , 361 U. S. 524 (1960). [ Footnote 25 ] Thomas v. Collins, 323 U. S. 516 , 323 U. S. 530 (1945); see also Sherbert v. Verner, 374 U. S. 398 , 374 U. S. 406 (1963). [ Footnote 26 ] Bates v. Little Rock, 361 U. S. 516 , 361 U. S. 524 (1960). [ Footnote 27 ] Sherbert v. Verner, 374 U. S. 398 , 374 U. S. 408 (1963). [ Footnote 28 ] Cf. Milanovich v. United States, 365 U. S. 551 (1961); Hein v. United States, 358 U. S. 415 (1959); Prince v. United States, 352 U. S. 322 (1957). [ Footnote 29 ] Cf. Milanovich v. United States, 365 U. S. 551 (1961); Heflin v. United States, 358 U. S. 415 (1959); Prince v. United States, 352 U. S. 322 (1957). [ Footnote 30 ] The Court may make the same assumption in a very limited and well defined class of cases where the very nature of the constitutional question requires an inquiry into legislative purpose. The principal class of cases is readily apparent -- those in which statutes have been challenged as bills of attainder. This Court's decisions have defined a bill of attainder as a legislative Act which inflicts punishment on named individuals or members of an easily ascertainable group without a judicial trial. In determining whether a particular statute is a bill of attainder, the analysis necessarily requires an inquiry into whether the three definitional elements -- specificity in identification, punishment, and lack of a judicial trial -- are contained in the statute. The inquiry into whether the challenged statute contains the necessary element of punishment has on occasion led the Court to examine the legislative motive in enacting the statute. See, e.g., United States v. Lovett, 328 U. S. 303 (1946). Two other decisions not involving a bill of attainder analysis contain an inquiry into legislative purpose or motive of the type that O'Brien suggests we engage in in this case. Kennedy v. Mendoza-Martinez, 372 U. S. 144 , 372 U. S. 169 -184 (1963); Trop v. Dulles, 356 U. S. 86 , 356 U. S. 95 -97 (1958). The inquiry into legislative purpose or motive in Kennedy and Trop, however, was for the same limited purpose as in the bill of attainder decisions -- i.e., to determine whether the statutes under review were punitive in nature. We face no such inquiry in this case. The 1965 Amendment to § 462(b) was clearly penal in nature, designed to impose criminal punishment for designated acts. [ Footnote 31 ] The other issues briefed by O'Brien were not raised in the petition for certiorari in No. 232 or in the cross-petition in No. 233. Accordingly, those issues are not before the Court. MR. JUSTICE HARLAN, concurring. The crux of the Court's opinion, which I join, is, of course, its general statement, ante at 391 U. S. 377 that: "a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression, and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." I wish to make explicit my understanding that this passage does not foreclose consideration of First Amendment claims in those rare instances when an "incidental" restriction upon expression, imposed by a regulation which furthers an "important or substantial" governmental interest and satisfies the Court's other criteria, in practice has the effect of entirely preventing a "speaker" Page 391 U. S. 389 from reaching a significant audience with whom he could not otherwise lawfully communicate. This is not such a case, since O'Brien manifestly could have conveyed his message in many ways other than by burning his draft card. MR. JUSTICE DOUGLAS, dissenting. The Court states that the constitutional power of Congress to raise and support armies is "broad and sweeping", and that Congress' power "to classify and conscript manpower for military service is beyond question.'" This is undoubtedly true in times when, by declaration of Congress, the Nation is in a state of war. The underlying and basic problem in this case, however, is whether conscription is permissible in the absence of a declaration of war. [ Footnote 2/1 ] That question has not been briefed nor was it presented in oral argument; but it is, I submit, a question upon which the litigants and the country are entitled to a ruling. I have discussed in Holmes v. United States, post, p. 936, the nature of the legal issue, and it will be seen from my dissenting opinion in that case that this Court has never ruled on Page 391 U. S. 390 the question. It is time that we made a ruling. This case should be put down for reargument and heard with Holmes v. United States and with Hart v. United States, post, p. 956, in which the Court today denies certiorari. [ Footnote 2/2 ] The rule that this Court will not consider issues not raised by the parties is not inflexible, and yields in "exceptional cases" ( Duignan v. United States, 274 U. S. 195 , 274 U. S. 200 ) to the need correctly to decide the case before the court. E.g., Erie R. Co. v. Tompkins, 304 U. S. 64 ; Terminiello v. Chicago, 337 U. S. 1 . In such a case, it is not unusual to ask for reargument ( Sherman v. United States, 356 U. S. 369 , 356 U. S. 379 , n. 2, Frankfurter, J., concurring) even on a constitutional question not raised by the parties. In Abel v. United States, 362 U. S. 217 , the petitioner had conceded that an administrative deportation arrest warrant would be valid for its limited purpose even though not supported by a sworn affidavit stating probable cause; but the Court ordered reargument on the question whether the warrant had been validly issued in petitioner's case. 362 U.S. at 362 U. S. 219 , n., par. 1; 359 U.S. 940. In Lustig v United States, 338 U. S. 74 , the petitioner argued that an exclusionary rule should apply to the fruit of an unreasonable search by state officials solely because they acted in concert with federal officers ( see Weeks v. United States, 232 U. S. 383 ; Byars v. United States, 273 U. S. 28 ). The Court ordered reargument on the question raised in a then pending case, Wolf v. Colorado, 338 U. S. 25 : applicability of the Fourth Amendment to the States. U.S.Sup.Ct. Journal, October Term, 1947, p. 298. In Donaldson v. Read Magazine, 333 U. S. 178 , the only issue presented, Page 391 U. S. 391 according to both parties, was whether the record contained sufficient evidence of fraud to uphold an order of the Postmaster General. Reargument was ordered on the constitutional issue of abridgment of First Amendment freedoms. 333 U.S. at 333 U. S. 181 -182; Journal, October Term, 1947, p. 70. Finally, in Musser v. Utah, 333 U. S. 95 , 333 U. S. 96 , reargument was ordered on the question of unconstitutional vagueness of a criminal statute, an issue not raised by the parties but suggested at oral argument by Justice Jackson. Journal, October Term, 1947, p. 87. These precedents demonstrate the appropriateness of restoring the instant case to the calendar for reargument on the question of the constitutionality of a peacetime draft and having it heard with Holmes v. United States and Hart v. United States. [ Footnote 2/1 ] Neither of the decisions cited by the majority for the proposition that Congress' power to conscript men into the armed services is " beyond question'" concerns peacetime conscription. As I have shown in my dissenting opinion in Holmes v. United States, post, p. 936, the Selective Draft Law Cases, 245 U. S. 366 , decided in 1918, upheld the constitutionality of a conscription act passed by Congress more than a month after war had been declared on the German Empire and which was then being enforced in time of war. Lichter v. United States, 334 U. S. 742 , concerned the constitutionality of the Renegotiation Act, another wartime measure, enacted by Congress over the period of 1942-1945 ( id. at 334 U. S. 745 , n. 1) and applied in that case to excessive war profits made in 1942-1943 ( id. at 334 U. S. 753 ). War had been declared, of course, in 1941 (55 Stat. 795). The Court referred to Congress' power to raise armies in discussing the "background" (334 U.S. at 334 U. S. 753 ) of the Renegotiation Act, which it upheld as a valid exercise of the War Power. [ Footnote 2/2 ] Today the Court also denies stays in Shiffman v. Selective Service Board No. 5, and Zigmond v. Selective Service Board No. 16, post, p. 930, where punitive delinquency regulations are invoked against registrants, decisions that present a related question.

The Supreme Court upheld the conviction of O'Brien for burning his Selective Service registration certificate, rejecting his argument that the amendment under which he was charged was unconstitutional. The Court found that the amendment did not violate the First Amendment as it targeted conduct, not speech, and served a legitimate legislative purpose under Congress' power to raise and support armies. The Court also clarified that when "speech" and "nonspeech" elements are combined, the government can regulate the nonspeech element if it has a sufficiently important interest.

Free Speech

Roth v. U.S.

https://supreme.justia.com/cases/federal/us/354/476/

U.S. Supreme Court Roth v. United States, 354 U.S. 476 (1957) Roth v. United States No. 582 Argued April 22, 1957 Decided June 24, 1957 354 U.S. 476 ast|>* 354 U.S. 476 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus 1. In the Roth case, the constitutionality of 18 U.S.C. § 1461, which makes punishable the mailing of material that is "obscene, lewd, lascivious, or filthy . . . or other publication of an indecent character," and Roth's conviction thereunder for mailing an obscene book and obscene circulars and advertising, are sustained. Pp. 354 U. S. 479 -494. 2. In the Albert case, the constitutionality of § 311 of West's California Penal Code Ann., 1955, which, inter alia, makes it a misdemeanor to keep for sale, or to advertise, material that is "obscene or indecent," and Alberts' conviction thereunder for lewdly keeping for sale obscene and indecent books and for writing, composing, and publishing an obscene advertisement of them, are sustained. Pp. 354 U. S. 479 -494. 3. Obscenity is not within the area of constitutionally protected freedom of speech or press either (1) under the First Amendment, as to the Federal Government, or (2) under the Due Process Clause of the Fourteenth Amendment, as to the States. Pp. 354 U. S. 481 -485. (a) In the light of history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. Pp. 354 U. S. 482 -483. (b) The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. P. 354 U. S. 484 . (c) All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion -- have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests; but implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. Pp. 354 U. S. 484 -485. Page 354 U. S. 477 4. Since obscenity is not protected, constitutional guaranties were not violated in these cases merely because, under the trial judges' instructions to the juries, convictions could be had without proof either that the obscene material would perceptibly create a clear and present danger of antisocial conduct, or probably would induce its recipients to such conduct. Beauharnais v. Illinois, 343 U. S. 250 . Pp. 354 U. S. 485 -490. (a) Sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest -- i.e., material having a tendency to excite lustful thoughts. P. 354 U. S. 487 . (b) It is vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest. Pp. 354 U. S. 487 -488. (c) The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest. Pp. 354 U. S. 488 -489. (d) In these cases, both trial courts sufficiently followed the proper standard and used the proper definition of obscenity. Pp. 354 U. S. 489 -490. 5. When applied according to the proper standard for judging obscenity, 18 U.S.C. § 1461, which makes punishable the mailing of material that is "obscene, lewd, lascivious, or filthy . . . or other publication of an indecent character," does not (1) violate the freedom of speech or press guaranteed by the First Amendment, or (2) violate the constitutional requirements of due process by failing to provide reasonably ascertainable standards of guilt. Pp. 354 U. S. 491 -492. 6. When applied according to the proper standard for judging obscenity, § 311 of West's California Penal Code Ann., 1955, which, inter alia, makes it a misdemeanor to keep for sale or to advertise material that is "obscene or indecent," does not (1) violate the freedom of speech or press guaranteed by the Fourteenth Amendment against encroachment by the States, or (2) violate the constitutional requirements of due process by failing to provide reasonably ascertainable standards of guilt. Pp. 354 U. S. 491 -492. 7. The federal obscenity statute, 18 U.S.C. § 1461, punishing the use of the mails for obscene material, is a proper exercise of the postal power delegated to Congress by Art. I, § 8, cl. 7, and it Page 354 U. S. 478 does not unconstitutionally encroach upon the powers reserved to the States by the Ninth and Tenth Amendments. Pp. 354 U. S. 492 -493. 8. The California obscenity statute here involved is not repugnant to Art. I, § 8, cl. 7, since it does not impose a burden upon, or interfere with, the federal postal functions -- even when applied to a mail-order business. Pp. 354 U. S. 493 -494. 237 F.2d 796, affirmed. 138 Cal. App. 2d Supp. 909 , 292 P.2d 90, affirmed. Page 354 U. S. 479 MR. JUSTICE BRENNAN delivered the opinion of the Court. The constitutionality of a criminal obscenity statute is the question in each of these cases. In Roth, the primary constitutional question is whether the federal obscenity statute [ Footnote 1 ] violates the provision of the First Amendment that "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ." In Alberts, the primary constitutional question is whether the obscenity provisions of the California Penal Code [ Footnote 2 ] invade the freedoms of speech and press as they may be incorporated in Page 354 U. S. 480 the liberty protected from state action by the Due Process Clause of the Fourteenth Amendment. Other constitutional questions are: whether these statutes violate due process, [ Footnote 3 ] because too vague to support conviction for crime; whether power to punish speech and press offensive to decency and morality is in the States alone, so that the federal obscenity statute violates the Ninth and Tenth Amendments (raised in Roth ), and whether Congress, by enacting the federal obscenity statute, under the power delegated by Art. I, § 8, cl. 7, to establish post offices and post roads, preempted the regulation of the subject matter (raised in Alberts ). Roth conducted a business in New York in the publication and sale of books, photographs and magazines. He used circulars and advertising matter to solicit sales. He was convicted by a jury in the District Court for the Southern District of New York upon 4 counts of a 26-count indictment charging him with mailing obscene circulars and advertising, and an obscene book, in violation of the federal obscenity statute. His conviction was affirmed by the Court of Appeals for the Second Circuit. [ Footnote 4 ] We granted certiorari. [ Footnote 5 ] Page 354 U. S. 481 Alberts conducted a mail-order business from Los Angeles. He was convicted by the Judge of the Municipal Court of the Beverly Hills Judicial District (having waived a jury trial) under a misdemeanor complaint which charged him with lewdly keeping for sale obscene and indecent books, and with writing, composing and publishing an obscene advertisement of them, in violation of the California Penal Code. The conviction was affirmed by the Appellate Department of the Superior Court of the State of California in and for the County of Los Angeles. [ Footnote 6 ] We noted probable jurisdiction. [ Footnote 7 ] The dispositive question is whether obscenity is utterance within the area of protected speech and press. [ Footnote 8 ] Although this is the first time the question has been squarely presented to this Court, either under the First Amendment or under the Fourteenth Amendment, expressions found in numerous opinions indicate that this Court has always assumed that obscenity is not protected by the freedoms of speech and press. Ex parte Jackson, 96 U. S. 727 , 96 U. S. 736 -737; United States v. Chase, 135 U. S. 255 , 135 U. S. 261 ; Robertson v. Baldwin, 165 U. S. 275 , 165 U. S. 281 ; Public Clearing House v. Coyne, 194 U. S. 497 , 194 U. S. 508 ; Hoke v. United States, 227 U. S. 308 , 227 U. S. 322 ; Near v. Minnesota, 283 U. S. 697 , 283 U. S. 716 ; Chaplinsky v. New Hampshire, 315 U. S. 568 , 315 U. S. 571 -572; Hannegan v. Esquire, Inc., 327 U. S. 146 , 327 U. S. 158 ; Winters v. New York, 333 U. S. 507 , 333 U. S. 510 ; Beauharnais v. Illinois, 343 U. S. 250 , 343 U. S. 266 . [ Footnote 9 ] Page 354 U. S. 482 The guaranties of freedom of expression [ Footnote 10 ] in effect in 10 of the 14 States which by 1792 had ratified the Constitution, gave no absolute protection for every utterance. Thirteen of the 14 States provided for the prosecution of libel, [ Footnote 11 ] and all of those States made either blasphemy or profanity, or both, statutory crimes. [ Footnote 12 ] As early as Page 354 U. S. 483 1712, Massachusetts made it criminal to publish "any filthy, obscene, or profane song, pamphlet, libel or mock sermon" in imitation or mimicking of religious services. Acts and Laws of the Province of Mass. Bay, c. CV, § 8 (1712), Mass.Bay Colony Charters & Laws 399 (1814). Thus, profanity and obscenity were related offenses. In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech. Beauharnais v. Illinois, 343 U. S. 250 , 343 U. S. 266 . At the time of the adoption of the First Amendment, obscenity law was not as fully developed as libel law, but there is sufficiently contemporaneous evidence to show that obscenity, too, was outside the protection intended for speech and press. [ Footnote 13 ] Page 354 U. S. 484 The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. This objective was made explicit as early as 1774 in a letter of the Continental Congress to the inhabitants of Quebec: "The last right we shall mention regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated into more honourable and just modes of conducting affairs." 1 Journals of the Continental Congress 108 (1774). All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion -- have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. [ Footnote 14 ] But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for Page 354 U. S. 485 that reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations, [ Footnote 15 ] in the obscenity laws of all of the 48 States, [ Footnote 16 ] and in the 20 obscenity laws enacted by the Congress from 1842 to 1956. [ Footnote 17 ] This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U. S. 568 , 315 U. S. 571 -572: ". . . There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene. . . . It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . ." (Emphasis added.) We hold that obscenity is not within the area of constitutionally protected speech or press. It is strenuously urged that these obscenity statutes offend the constitutional guaranties because they punish Page 354 U. S. 486 incitation to impure sexual thoughts, not shown to be related to any overt antisocial conduct which is or may be incited in the persons stimulated to such thoughts. In Roth, the trial Judge instructed the jury: "The words 'obscene, lewd and lascivious' as used in the law, signify that form of immorality which has relation to sexual impurity and has a tendency to excite lustful thoughts. " (Emphasis added.) In Alberts, the trial judge applied the test laid down in People v. Wepplo, 78 Cal. App. 2d Supp. 959 , 178 P.2d 853, namely, whether the material has "a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desires." (Emphasis added.) It is insisted that the constitutional guaranties are violated because convictions may be had without proof either that obscene material will perceptibly create a clear and present danger of anti-social conduct, [ Footnote 18 ] or will probably induce its recipients to such conduct. [ Footnote 19 ] But, in light of our holding that obscenity is not protected speech, the complete answer to this argument is in the holding of this Court in Beauharnais v. Illinois, supra, at 343 U. S. 266 : "Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the State courts, to consider the issues behind the phrase 'clear and present danger.' Certainly no one would contend that obscene speech, Page 354 U. S. 487 for example, may be punished only upon a showing of such circumstances. Libel, as we have seen, is in the same class." However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. [ Footnote 20 ] The portrayal of sex, e.g., in art, literature and scientific works, [ Footnote 21 ] is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern. As to all such problems, Page 354 U. S. 488 this Court said in Thornhill v. Alabama, 310 U. S. 88 , 310 U. S. 101 -102: "The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times. . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period. " (Emphasis added.) The fundamental freedoms of speech and press have contributed greatly to the development and wellbeing of our free society and are indispensable to its continued growth. [ Footnote 22 ] Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed, and opened only the slightest crack necessary to prevent encroachment upon more important interests. [ Footnote 23 ] It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest. The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated Page 354 U. S. 489 excerpt upon particularly susceptible persons. Regina v. Hicklin, [1868] L.R. 3 Q.B. 360. [ Footnote 24 ] Some American courts adopted this standard, [ Footnote 25 ] but later decisions have rejected it and substituted this test: whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest. [ Footnote 26 ] The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards adequate to withstand the charge of constitutional infirmity. Both trial courts below sufficiently followed the proper standard. Both courts used the proper definition of obscenity. In addition, in the Alberts case, in ruling on a motion to dismiss, the trial judge indicated that, as the Page 354 U. S. 490 trier of facts, he was judging each item as a whole as it would affect the normal person, [ Footnote 27 ] and, in Roth, the trial judge instructed the jury as follows: ". . . The test is not whether it would arouse sexual desires or sexual impure thoughts in those comprising a particular segment of the community, the young, the immature or the highly prudish or would leave another segment, the scientific or highly educated or the so-called worldly wise and sophisticated indifferent and unmoved. . . ." " * * * *" "The test in each case is the effect of the book, picture or publication considered as a whole not upon any particular class, but upon all those whom it is likely to reach. In other words, you determine its impact upon the average person in the community. The books, pictures and circulars must be judged as a whole, in their entire context, and you are not to consider detached or separate portions in reaching a conclusion. You judge the circulars, pictures and publications which have been put in evidence by present-day standards of the community. You may ask yourselves does it offend the common conscience of the community by present-day standards." " * * * *" "In this case, ladies and gentlemen of the jury, you and you alone are the exclusive judges of what the common conscience of the community is, and, in determining that conscience, you are to consider the community as a whole, young and old, educated and uneducated, the religious and the irreligious -- men, women and children. " Page 354 U. S. 491 It is argued that the statutes do not provide reasonably ascertainable standards of guilt, and therefore violates the constitutional requirements of due process. Winters v. New York, 333 U. S. 507 . The federal obscenity statute makes punishable the mailing of material that is "obscene, lewd, lascivious, or filthy . . . or other publication of an indecent character." [ Footnote 28 ] The California statute makes punishable, inter alia, the keeping for sale or advertising material that is "obscene or indecent." The thrust of the argument is that these words are not sufficiently precise, because they do not mean the same thing to all people, all the time, everywhere. Many decisions have recognized that these terms of obscenity statutes are not precise. [ Footnote 29 ] This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. ". . . [T]he Constitution does not require impossible standards"; all that is required is that the language "conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. . . ." United States v. Petrillo, 332 U. S. 1 , 332 U. S. 7 -8. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed, and mark ". . . boundaries sufficiently distinct for judges and juries fairly to administer the law. . . . That there may be marginal cases in which it is difficult to determine the side of the line on Page 354 U. S. 492 which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. . . ." Id. at 332 U. S. 7 . See also United States v. Harriss, 347 U. S. 612 , 347 U. S. 624 , n. 15; Boyce Motor Lines, Inc. v. United States, 342 U. S. 337 , 342 U. S. 340 ; United States v. Ragen, 314 U. S. 513 , 314 U. S. 523 -524; United States v. Wurzbach, 280 U. S. 396 ; Hygrade Provision Co. v. Sherman, 266 U. S. 497 ; Fox v. Washington, 236 U. S. 273 ; Nash v. United States, 229 U. S. 373 . [ Footnote 30 ] In summary, then, we hold that these statutes, applied according to the proper standard for judging obscenity, do not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited. Roth's argument that the federal obscenity statute unconstitutionally encroaches upon the powers reserved by the Ninth and Tenth Amendments to the States and to the people to punish speech and press where offensive to decency and morality is hinged upon his contention that obscenity is expression not excepted from the sweep of the provision of the First Amendment that "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ." (Emphasis added.) That argument falls in light of our holding that obscenity is not expression protected by the First Amendment. [ Footnote 31 ] We Page 354 U. S. 493 therefore hold that the federal obscenity statute punishing the use of the mails for obscene material is a proper exercise of the postal power delegated to Congress by Art. I, § 8, cl. 7. [ Footnote 32 ] In United Public Workers v. Mitchell, 330 U. S. 75 , 330 U. S. 95 -96, this Court said: ". . . The powers granted by the Constitution to the Federal Government are subtracted from the totality of sovereignty originally in the states and the people. Therefore, when objection is made that the exercise of a federal power infringes upon rights reserved by the Ninth and Tenth Amendments, the inquiry must be directed toward the granted power under which the action of the Union was taken. If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail. . . ." Alberts argues that, because his was a mail-order business, the California statute is repugnant to Art. I, § 8, cl. 7, under which the Congress allegedly preempted the regulatory field by enacting the federal obscenity statute punishing the mailing or advertising by mail of obscene material. The federal statute deals only with actual Page 354 U. S. 494 mailing; it does not eliminate the power of the state to punish "keeping for sale" or "advertising" obscene material. The state statute in no way imposes a burden or interferes with the federal postal functions. ". . . The decided cases which indicate the limits of state regulatory power in relation to the federal mail service involve situations where state regulation involved a direct, physical interference with federal activities under the postal power or some direct, immediate burden on the performance of the postal functions. . . ." Railway Mail Assn. v. Corsi, 326 U. S. 88 , 326 U. S. 96 . The judgments are Affirmed. * Together with No. 61, Albert v. California, appeal from the Superior Court of California, Los Angeles County, Appellate Department, argued and decided on the same dates. [ Footnote 1 ] The federal obscenity statute provided, in pertinent part: "Every obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character, and --" " * * * *" "Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, . . . whether sealed or unsealed . . ." " * * * *" "Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier." "Whoever knowingly deposits for mailing or delivery, anything declared by this section to be nonmailable, or knowingly takes the same from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined not more than $5,000 or imprisoned not more than five years, or both." 18 U.S.C. § 1461. The 1955 amendment of this statute, 69 Stat. 13, is not applicable to this case. [ Footnote 2 ] The California Penal Code provides, in pertinent part: "Every person who willfully and lewdly, either:" " * * * *" "3. Writes, composes, stereotypes, prints, publishes, sells, distributes, keeps for sale, or exhibits any obscene or indecent writing, paper, or book; or designs, copies, draws, engraves, paints, or otherwise prepares any obscene or indecent picture or print; or molds, cuts, casts, or otherwise makes any obscene or indecent figure; or," "4. Writes, composes, or publishes any notice or advertisement of any such writing, paper, book, picture, print or figure; . . ." " * * * *" "6. . . . is guilty of a misdemeanor. . . ." West's Cal.Penal Code Ann., 1955, § 311. [ Footnote 3 ] In Roth, reliance is placed on the Due Process Clause of the Fifth Amendment, and, in Alberts, reliance is placed upon the Due Process Clause of the Fourteenth Amendment. [ Footnote 4 ] 237 F.2d 796. [ Footnote 5 ] 352 U.S. 964. Petitioner's application for bail was granted by MR. JUSTICE HARLAN in his capacity as Circuit Justice for the Second Circuit. 1 L. Ed. 2d 34, 77 Sup.Ct. 17. [ Footnote 6 ] 138 Cal. App. 2d Supp. 909 , 292 P.2d 90. This is the highest state appellate court available to the appellant. Cal.Const., Art. VI, § 5; see Edwards v. California, 314 U. S. 160 . [ Footnote 7 ] 352 U.S. 962. [ Footnote 8 ] No issue is presented in either case concerning the obscenity of the material involved. [ Footnote 9 ] See also the following cases in which convictions under obscenity statutes have been reviewed: Grimm v. United States, 156 U. S. 604 ; Rosen v. United States, 161 U. S. 29 ; Swearingen v. United States, 161 U. S. 446 ; Andrews v. United States, 162 U. S. 420 ; Price v. United States, 165 U. S. 311 ; Dunlop v. United States, 165 U. S. 486 ; Bartell v. United States, 227 U. S. 427 ; United States v. Limehouse, 285 U. S. 424 . [ Footnote 10 ] Del.Const., 1792, Art. I, § 5; Ga.Const., 1777, Art. LXI; Md.Const., 1776, Declaration of Rights, § 38; Mass.Const., 1780, Declaration of Rights, Art. XVI; N.H.Const., 1784, Art. I, § XXII; N.C. Const., 1776, Declaration of Rights, Art. XV; Pa.Const., 1776, Declaration of Rights, Art. XII; S.C.Const., 1778, Art. XLIII; Vt.Const., 1777, Declaration of Rights, Art. XIV; Va. Bill of Rights, 776, § 12. [ Footnote 11 ] Act to Secure the Freedom of the Press (1804), 1 Conn.Pub.Stat.Laws 355 (1808); Del.Const., 1792, Art. I, § 5; Ga.Penal Code, Eighth Div., §VIII (1817), Digest of the Laws of Ga. 364 (Prince 1822); Act of 1803, c. 54, II Md.Public General Laws 1096 (Poe 1888); Commonwealth v. Kneeland, 37 Mass. 206, 232 (1838); Act for the Punishment of Certain Crimes Not Capital (1791), N.H.Laws 1792, 253; Act Respecting Libels (1799), N.J.Rev.Laws 411 (1800); People v. Croswell, 3 Johns. (N.Y.) 337 (1804); Act of 1803, c. 632, 2 Laws of N.C. 999 (1821); Pa.Const., 1790, Art. IX, § 7; R.I.Code of Laws (1647), Proceedings of the First General Assembly and Code of Laws 44-45 (1647); R.I.Const., 1842, Art. I, § 20; Act of 1804, 1 Laws of Vt. 366 (Tolman 1808); Commonwealth v. Morris, 1 Brock. & Hol. (Va.) 176 (1811). [ Footnote 12 ] Act for the Punishment of Divers Capital and Other Felonies, Acts and Laws of Conn. 66, 67 (1784); Act Against Drunkenness, Blasphemy, §§ 4, 5 (1737), 1 Laws of Del. 173, 174 (1797); Act to Regulate Taverns (1786), Digest of the Laws of Ga. 512, 513 (Prince 1822); Act of 1723, c. 16, § 1, Digest of the Laws of Md. 92 (Herty 1799); General Laws and Liberties of Mass. Bay, c. XVIII, § 3 (1646), Mass. Bay Colony Charters & Laws 58 (1814); Act of 1782, c. 8, Rev.Stat. of Mass. 741, § 15 (1836); Act of 1798, c. 33, §§ 1, 3, Rev.Stat. of Mass. 741, § 16 (1836); Act for the Punishment of Certain Crimes Not Capital (1791), N.H.Laws 1792, 252, 256; Act for the Punishment of Profane Cursing and Swearing (1791), N.H.Laws 1792, 258; Act for Suppressing Vice and Immorality, §§ VIII, IX (1798), N.J.Rev.Laws 329, 331 (1800); Act for Suppressing Immorality, § IV (1788), 2 Laws of N.Y. 257, 258 (Jones & Varick 1777-1789); People v. Ruggles, 8 Johns. (N.Y.) 290 (1811); Act . . . for the More Effectual Suppression of Vice and Immorality, § III (1741), 1 N.C.Laws 52 (Martin Rev. 1715-1790); Act to Prevent the Grievous Sins of Cursing and Swearing (1700), II Statutes at Large of Pa. 49 (1700-1712); Act for the Prevention of Vice and Immorality, § II (1794), 3 Laws of Pa. 177, 178 (1791-1802); Act to Reform the Penal Laws, §§ 33, 34 (1798), R.I.Laws 1798, 584, 595; Act for the More Effectual Suppressing of Blasphemy and Prophaneness (1703), Laws of S.C. 4 (Grimke 1790); Act, for the Punishment of Certain Capital, and Other High Crimes and Misdemeanors, § 20 (1797), 1 Laws of Vt. 332, 339 (Tolman 1808); Act for the Punishment of Certain Inferior Crimes and Misdemeanors, § 20 (1797), 1 Laws of Vt. 352, 361 (Tolman 1808); Act for the Effectual Suppression of Vice, § 1 (1792), Acts of General Assembly of Va. 286 (1794). [ Footnote 13 ] Act Concerning Crimes and Punishments, § 69 (1821), Stat.Laws of Conn. 109 (1824); Knowles v. State, 3 Day (Conn.) 103 (1808); Rev.Stat. of 1835, c. 130, § 10, Rev.Stat. of Mass. 740 (1836); Commonwealth v. Holmes, 17 Mass. 335 (1821); Rev.Stat. of 1842, c. 113, § 2, Rev.Stat. of N.H. 221 (1843); Act for Suppressing Vice and Immorality, § XII (1798), N.J.Rev.Laws 329, 331 (1800); Commonwealth v. Sharpless, 2 S. & R. (Pa.) 91 (1815). [ Footnote 14 ] E.g., United States v. Harriss, 347 U. S. 612 ; Breard v. Alexandria, 341 U. S. 622 ; Teamsters Union v. Hanke, 339 U. S. 470 ; Kovacs v. Cooper, 336 U. S. 77 ; Prince v. Massachusetts, 321 U. S. 158 ; Labor Board v. Virginia Elec. & Power Co., 314 U. S. 469 ; Cox v. New Hampshire, 312 U. S. 569 ; Schenck v. United States, 249 U. S. 47 . [ Footnote 15 ] Agreement for the Suppression of the Circulation of Obscene Publications, 37 Stat. 1511; Treaties in Force 209 (U.S. Dept. State, October 31, 1956). [ Footnote 16 ] Hearings before Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary, pursuant to S.Res. 62, 84th Cong., 1st Sess. 49-52 (May 24, 1955). Although New Mexico has no general obscenity statute, it does have a statute giving to municipalities the power "to prohibit the sale or exhibiting of obscene or immoral publications, prints, pictures, or illustrations." N.M.Stat.Ann., 1953, §§ 14-21-3, 14-21-12. [ Footnote 17 ] 5 Stat. 548, 566; 11 Stat. 168; 13 Stat. 504, 507; 17 Stat. 302; 17 Stat. 598; 19 Stat. 90; 25 Stat. 187, 188; 25 Stat. 496; 26 Stat. 567, 614-615; 29 Stat. 512; 33 Stat. 705; 35 Stat. 1129, 1138; 41 Stat. 1060; 46 Stat. 688; 48 Stat. 1091, 1100; 62 Stat. 768; 64 Stat. 194; 64 Stat. 451; 69 Stat. 183; 70 Stat. 699. [ Footnote 18 ] Schenck v. United States, 249 U. S. 47 . This approach is typified by the opinion of Judge Bok (written prior to this Court's opinion in Dennis v. United States, 341 U. S. 494 ) in Commonwealth v. Gordon, 66 Pa. D. & C. 101, aff'd sub nom. Commonwealth v. Feigenbaum, 166 Pa.Super. 120, 70 A.2d 389. [ Footnote 19 ] Dennis v. United States, 341 U. S. 494 . This approach is typified by the concurring opinion of Judge Frank in the Roth case, 237 F.2d at 801. See also Lockhart & McClure, Literature, The Law of Obscenity, and the Constitution, 38 Minn.L.Rev. 295 (1954). [ Footnote 20 ] I.e., material having a tendency to excite lustful thoughts. Webster's New International Dictionary (Unabridged,2d ed., 1949) defines prurient, in pertinent part, as follows: ". . . Itching; longing; uneasy with desire or longing; of persons, having itching, morbid, or lascivious longings; of desire, curiosity, or propensity, lewd. . . ." Pruriency is defined, in pertinent part, as follows: ". . . Quality of being prurient; lascivious desire or thought. . . ." See also Mutual Film Corp. v. Industrial Comm'n, 236 U. S. 230 , 236 U. S. 242 , where this Court said as to motion pictures: ". . . They take their attraction from the general interest, eager and wholesome it may be, in their subjects, but a prurient interest may be excited and appealed to. . . ." (Emphasis added.) We perceive no significant difference between the meaning of obscenity developed in the case law and the definition of the A.L.I., Model Penal Code, § 207.10(2) (Tent.Draft No. 6, 1957), viz.: ". . . A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. . . ." See Comment, id. at 10, and the discussion at page 29 et seq. [ Footnote 21 ] See, e.g., United States v. Dennett, 39 F.2d 564. [ Footnote 22 ] Madison's Report on the Virginia Resolutions, 4 Elliot's Debates 571. [ Footnote 23 ] See note 14 supra. [ Footnote 24 ] But see the instructions given to the jury by Mr. Justice Stable in Regina v. Martin Secker Warburg, [1954] 2 All Eng. 683 (C.C.C.). [ Footnote 25 ] United States v. Kennerley, 209 F. 119; MacFadden v. United States, 165 F. 51; United States v. Bennett, 24 Fed.Cas. 1093; United States v. Clarke, 38 F. 500; Commonwealth v. Buckley, 200 Mass. 346, 86 N.E. 910. [ Footnote 26 ] E.g., Walker v. Popence, 80 U.S.App.D.C. 129, 149 F.2d 511; Parmelee v. United States, 72 App.D.C. 203, 113 F.2d 729; United States v. Levine, 83 F.2d 156; United States v. Dennett, 39 F.2d 564; Khan v. Feist, Inc., 70 F. Supp. 450 , aff'd, 165 F.2d 188; United States v. One Book Called "Ulysses," 5 F. Supp. 182 , aff'd, 72 F.2d 705; American Civil Liberties Union v. Chicago, 3 Ill. 2d 334 , 121 N.E.2d 585 ; Commonwealth v. Isenstadt, 318 Mass. 543, 62 N.E.2d 840; Missouri v. Becker, 364 Mo. 1079, 272 S.W.2d 283 ; Adams Theatre Co. v. Keenan, 12 N.J. 267, 96 A.2d 519 ; Bantam Books, Inc. v. Melko, 25 N.J.Super. 292, 96 A.2d 47 ; Commonwealth v. Gordon, 66 Pa. D. & C. 101, aff'd sub nom. Commonwealth v. Feigenbaum, 166 Pa.Super. 120, 70 A.2d 389; cf. Roth v. Goldman, 172 F.2d 788, 794-795 (concurrence). [ Footnote 27 ] In Alberts, the contention that the trial judge did not read the materials in their entirety is not before us because not fairly comprised within the questions presented. U.S.Sup.Ct.Rules, 15(1)(c)(1). [ Footnote 28 ] This Court, as early as 1896, said of the federal obscenity statute: ". . . Every one who uses the mails of the United States for carrying papers or publications must take notice of what, in this enlightened age, is meant by decency, purity, and chastity in social life, and what must be deemed obscene, lewd, and lascivious." Rosen v. United States, 161 U. S. 29 , 161 U. S. 42 . [ Footnote 29 ] E.g., Roth v. Goldman, 172 F.2d 788, 789; Parmelee v. United States, 72 App.D.C. 203, 204, 113 F.2d 729, 730; United States v. 4200 Copies International Journal, 134 F. Supp. 490 , 493; United States v. One Unbound Volume, 128 F. Supp. 280 , 281. [ Footnote 30 ] It is argued that, because juries may reach different conclusions as to the same material, the statutes must be held to be insufficiently precise to satisfy due process requirements. But it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system. Cf. Dunlop v. United States, 165 U. S. 486 , 165 U. S. 499 -500. [ Footnote 31 ] For the same reason, we reject, in this case, the argument that there is greater latitude for state action under the word "liberty" under the Fourteenth Amendment than is allowed to Congress by the language of the First Amendment. [ Footnote 32 ] In Public Clearing House v. Coyne, 194 U. S. 497 , 194 U. S. 506 -508, this Court said: "The constitutional principles underlying the administration of the Post Office Department were discussed in the opinion of the court in Ex parte Jackson, 96 U. S. 727 , in which we held that the power vested in Congress to establish post offices and post roads embraced the regulation of the entire postal system of the country; that Congress might designate what might be carried in the mails and what excluded. . . . It may . . . refuse to include in its mails such printed matter or merchandise as may seem objectionable to it upon the ground of public policy. . . . For more than thirty years, not only has the transmission of obscene matter been prohibited, but it has been made a crime, punishable by fine or imprisonment, for a person to deposit such matter in the mails. The constitutionality of this law we believe has never been attacked. . . ." MR. CHIEF JUSTICE WARREN, concurring in the result. I agree with the result reached by the Court in these cases, but, because we are operating in a field of expression and because broad language used here may eventually be applied to the arts and sciences and freedom of communication generally, I would limit our decision to the facts before us and to the validity of the statutes in question as applied. Appellant Alberts was charged with willfully, unlawfully and lewdly disseminating obscene matter. Obscenity has been construed by the California courts to mean having a substantial tendency to corrupt by arousing lustful desires. People v. Wepplo, 78 Cal. App. 2d Supp. 959 , 178 P.2d 853. Petitioner Roth was indicted for unlawfully, willfully and knowingly mailing obscene material that was calculated to corrupt and debauch the minds and morals of those to whom it was sent. Each was accorded all the protections of a criminal trial. Among other things, they contend that the statutes under which they were convicted violate the constitutional guarantees of freedom of speech, press and communication. Page 354 U. S. 495 That there is a social problem presented by obscenity is attested by the expression of the legislatures of the forty-eight States, as well as the Congress. To recognize the existence of a problem, however, does not require that we sustain any and all measures adopted to meet that problem. The history of the application of laws designed to suppress the obscene demonstrates convincingly that the power of government can be invoked under them against great art or literature, scientific treatises, or works exciting social controversy. Mistakes of the past prove that there is a strong countervailing interest to be considered in the freedoms guaranteed by the First and Fourteenth Amendments. The line dividing the salacious or pornographic from literature or science is not straight and unwavering. Present laws depend largely upon the effect that the materials may have upon those who receive them. It is manifest that the same object may have a different impact, varying according to the part of the community it reached. But there is more to these cases. It is not the book that is on trial; it is a person. The conduct of the defendant is the central issue, not the obscenity of a book or picture. The nature of the materials is, of course, relevant as an attribute of the defendant's conduct, but the materials are thus placed in context from which they draw color and character. A wholly different result might be reached in a different setting. The personal element in these cases is seen most strongly in the requirement of scienter. Under the California law, the prohibited activity must be done "willfully and lewdly." The federal statute limits the crime to acts done "knowingly." In his charge to the jury, the district judge stated that the matter must be "calculated" to corrupt or debauch. The defendants in both these cases were engaged in the business of purveying textual or Page 354 U. S. 496 graphic matter openly advertised to appeal to the erotic interest of their customers. They were plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect. I believe that the State and Federal Governments can constitutionally punish such conduct. That is all that these cases present to us, and that is all we need to decide. I agree with the Court's decision in its rejection of the other contentions raised by these defendants. MR. JUSTICE HARLAN, concurring in the result in No. 61, and dissenting in No. 582. I regret not to be able to join the Court's opinion. I cannot do so, because I find lurking beneath its disarming generalizations a number of problems which not only leave me with serious misgivings as to the future effect of today's decisions, but which also, in my view, call for different results in these two cases. I My basic difficulties with the Court's opinion are threefold. First, the opinion paints with such a broad brush that I fear it may result in a loosening of the tight reins which state and federal courts should hold upon the enforcement of obscenity statutes. Second, the Court fails to discriminate between the different factors which, in my opinion, are involved in the constitutional adjudication of state and federal obscenity cases. Third, relevant distinctions between the two obscenity statutes here involved, and the Court's own definition of "obscenity," are ignored. In final analysis, the problem presented by these cases is how far, and on what terms, the state and federal governments have power to punish individuals for disseminating books considered to be undesirable because of their Page 354 U. S. 497 nature or supposed deleterious effect upon human conduct. Proceeding from the premise that "no issue is presented in either case, concerning the obscenity of the material involved," the Court finds the "dispositive question" to be "whether obscenity is utterance within the area of protected speech and press," and then holds that "obscenity" is not so protected, because it is "utterly without redeeming social importance." This sweeping formula appears to me to beg the very question before us. The Court seems to assume that "obscenity" is a peculiar genus of "speech and press," which is as distinct, recognizable, and classifiable as poison ivy is among other plants. On this basis, the constitutional question before us simply becomes, as the Court says, whether "obscenity," as an abstraction, is protected by the First and Fourteenth Amendments, and the question whether a particular book may be suppressed becomes a mere matter of classification, of "fact," to be entrusted to a factfinder and insulated from independent constitutional judgment. But surely the problem cannot be solved in such a generalized fashion. Every communication has an individuality and "value" of its own. The suppression of a particular writing or other tangible form of expression is, therefore, an individual matter, and in the nature of things every such suppression raises an individual constitutional problem, in which a reviewing court must determine for itself whether the attacked expression is suppressable within constitutional standards. Since those standards do not readily lend themselves to generalized definitions, the constitutional problem, in the last analysis, becomes one of particularized judgments which appellate courts must make for themselves. I do not think that reviewing courts can escape this responsibility by saying that the trier of the facts, be it a jury or a judge, has labeled the questioned matter as "obscene," for, if "obscenity" is to be suppressed, the Page 354 U. S. 498 question whether a particular work is of that character involves not really an issue of fact, but a question of constitutional judgment of the most sensitive and delicate kind. Many juries might find that Joyce's "Ulysses" or Bocaccio's "Decameron" was obscene, and yet the conviction of a defendant for selling either book would raise, for me, the gravest constitutional problems, for no such verdict could convince me, without more, that these books are "utterly without redeeming social importance." In short, I do not understand how the Court can resolve the constitutional problems now before it without making its own independent judgment upon the character of the material upon which these convictions were based. I am very much afraid that the broad manner in which the Court has decided these cases will tend to obscure the peculiar responsibilities resting on state and federal courts in this field, and encourage them to rely on easy labeling and jury verdicts as a substitute for facing up to the tough individual problems of constitutional judgment involved in every obscenity case. My second reason for dissatisfaction with the Court's opinion is that the broad strides with which the Court has proceeded has led it to brush aside with perfunctory ease the vital constitutional considerations which, in my opinion, differentiate these two cases. It does not seem to matter to the Court that, in one case, we balance the power of a State in this field against the restrictions of the Fourteenth Amendment, and, in the other, the power of the Federal Government against the limitations of the First Amendment. I deal with this subject more particularly later. Thirdly, the Court has not been bothered by the fact that the two cases involve different statutes. In California, the book must have a "tendency to deprave or corrupt its readers"; under the federal statute, it must tend "to stir sexual impulses and lead to sexually impure Page 354 U. S. 499 thoughts." [ Footnote 2/1 ] The two statutes do not seem to me to present the same problems. Yet the Court compounds confusion when it superimposes on these two statutory definitions a third, drawn from the American Law Institute's Model Penal Code, Tentative Draft No. 6: "A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest." The bland assurance that this definition is the same as the ones with which we deal flies in the face of the authors' express rejection of the "deprave and corrupt" and "sexual thoughts" tests: "Obscenity [in the Tentative Draft] is defined in terms of material which appeals predominantly to prurient interest in sexual matters and which goes beyond customary freedom of expression in these matters. We reject the prevailing test of tendency to arouse lustful thoughts or desires because it is Page 354 U. S. 500 unrealistically broad for a society that plainly tolerates a great deal of erotic interest in literature, advertising, and art, and because regulation of thought or desire, unconnected with overt misbehavior, raises the most acute constitutional as well as practical difficulties. We likewise reject the common definition of obscene as that which 'tends to corrupt or debase.' If this means anything different from tendency to arouse lustful thought and desire, it suggests that change of character or actual misbehavior follows from contact with obscenity. Evidence of such consequences is lacking. . . . On the other hand, 'appeal to prurient interest' refers to qualities of the material itself: the capacity to attract individuals eager for a forbidden look. . . . [ Footnote 2/2 ]" As this passage makes clear, there is a significant distinction between the definitions used in the prosecutions before us and the American Law Institute formula. If, therefore, the latter is the correct standard, as my Brother BRENNAN elsewhere intimates, [ Footnote 2/3 ] then these convictions should surely be reversed. Instead, the Court merely assimilates the various tests into one indiscriminate potpourri. I now pass to the consideration of the two cases before us. II I concur in the judgment of the Court in No. 61, Alberts v. California. The question in this case is whether the defendant was deprived of liberty without due process of law when he was convicted for selling certain materials found by the judge to be obscene because they would have a "tendency Page 354 U. S. 501 to deprave or corrupt its readers by exciting lascivious thoughts or arousing lustful desire." In judging the constitutionality of this conviction, we should remember that our function in reviewing state judgments under the Fourteenth Amendment is a narrow one. We do not decide whether the policy of the State is wise, or whether it is based on assumptions scientifically substantiated. We can inquire only whether the state action so subverts the fundamental liberties implicit in the Due Process Clause that it cannot be sustained as a rational exercise of power. See Jackson, J., dissenting in Beauharnais v. Illinois, 343 U. S. 250 , 343 U. S. 287 . The States' power to make printed words criminal is, of course, confined by the Fourteenth Amendment, but only insofar as such power is inconsistent with our concepts of "ordered liberty." Palko v. Connecticut, 302 U. S. 319 , 302 U. S. 324 -325. What, then, is the purpose of this California statute? Clearly the state legislature has made the judgment that printed words can "deprave or corrupt" the reader -- that words can incite to antisocial or immoral action. The assumption seems to be that the distribution of certain types of literature will induce criminal or immoral sexual conduct. It is well known, of course, that the validity of this assumption is a matter of dispute among critics, sociologists, psychiatrists, and penologists. There is a large school of thought, particularly in the scientific community, which denies any causal connection between the reading of pornography and immorality, crime, or delinquency. Others disagree. Clearly it is not our function to decide this question. That function belongs to the state legislature. Nothing in the Constitution requires California to accept as truth the most advanced and sophisticated psychiatric opinion. It seems to me clear that it is not irrational, in our present state of knowledge, to consider that pornography can induce a type of sexual conduct which a State may deem obnoxious to the Page 354 U. S. 502 moral fabric of society. In fact, the very division of opinion on the subject counsels us to respect the choice made by the State. Furthermore, even assuming that pornography cannot be deemed ever to cause, in an immediate sense, criminal sexual conduct, other interests within the proper cognizance of the States may be protected by the prohibition placed on such materials. The State can reasonably draw the inference that, over a long period of time, the indiscriminate dissemination of materials the essential character of which is to degrade sex will have an eroding effect on moral standards. And the State has a legitimate interest in protecting the privacy of the home against invasion of unsolicited obscenity. Above all stands the realization that we deal here with an area where knowledge is small, data are insufficient, and experts are divided. Since the domain of sexual morality is preeminently a matter of state concern, this Court should be slow to interfere with state legislation calculated to protect that morality. It seems to me that nothing in the broad and flexible command of the Due Process Clause forbids California to prosecute one who sells books whose dominant tendency might be to "deprave or corrupt" a reader. I agree with the Court, of course, that the books must be judged as a whole, and in relation to the normal adult reader. What has been said, however, does not dispose of the case. It still remains for us to decide whether the state court's determination that this material should be suppressed is consistent with the Fourteenth Amendment, and that, of course, presents a federal question as to which we, and not the state court, have the ultimate responsibility. And so, in the final analysis, I concur in the judgment because, upon an independent perusal of the material involved, and in light of the considerations discussed Page 354 U. S. 503 above, I cannot say that its suppression would so interfere with the communication of "ideas" in any proper sense of that term that it would offend the Due Process Clause. I therefore agree with the Court that appellant's conviction must be affirmed. III I dissent in No. 582, Roth v. United States. We are faced here with the question whether the federal obscenity statute, as construed and applied in this case, violates the First Amendment to the Constitution. To me, this question is of quite a different order than one where we are dealing with state legislation under the Fourteenth Amendment. I do not think it follows that state and federal powers in this area are the same, and that, just because the State may suppress a particular utterance, it is automatically permissible for the Federal Government to do the same. I agree with Mr. Justice Jackson that the historical evidence does not bear out the claim that the Fourteenth Amendment "incorporates" the First in any literal sense. See Beauharnais v. Illinois, supra. But laying aside any consequences which might flow from that conclusion, cf. Mr. Justice Holmes in Gitlow v. New York, 268 U. S. 652 , 268 U. S. 672 , [ Footnote 2/4 ] I prefer to rest my views about this case on broader and less abstract grounds. The Constitution differentiates between those areas of human conduct subject to the regulation of the States and those subject to the powers of the Federal Government. The substantive powers of the two governments, in many Page 354 U. S. 504 instances, are distinct. And in every case where we are called upon to balance the interest in free expression against other interests, it seems to me important that we should keep in the forefront the question of whether those other interests are state or federal. Since, under our constitutional scheme, the two are not necessarily equivalent, the balancing process must needs often produce different results. Whether a particular limitation on speech or press is to be upheld because it subserves a paramount governmental interest must, to a large extent, I think, depend on whether that government has, under the Constitution, a direct substantive interest, that is, the power to act, in the particular area involved. The Federal Government has, for example, power to restrict seditious speech directed against it, because that Government certainly has the substantive authority to protect itself against revolution. Cf. Pennsylvania v. Nelson, 350 U. S. 497 . But, in dealing with obscenity, we are faced with the converse situation, for the interests which obscenity statutes purportedly protect are primarily entrusted to the care not of the Federal Government, but of the States. Congress has no substantive power over sexual morality. Such powers as the Federal Government has in this field are but incidental to its other powers, here, the postal power, and are not of the same nature as those possessed by the States, which bear direct responsibility for the protection of the local moral fabric. [ Footnote 2/5 ] Page 354 U. S. 505 What Mr. Justice Jackson said in Beauharnais, supra, 343 U.S. at 343 U. S. 294 -295, about criminal libel is equally true of obscenity: "The inappropriateness of a single standard for restricting State and Nation is indicated by the disparity between their functions and duties in relation to those freedoms. Criminality of defamation is predicated upon power either to protect the private right to enjoy integrity of reputation or the public right to tranquillity. Neither of these are objects of federal cognizance except when necessary to the accomplishment of some delegated power. . . . When the Federal Government puts liberty of press in one scale, it has a very limited duty to personal reputation or local tranquillity to weigh against it in the other. But state action affecting speech or press can and should be weighed against and reconciled with these conflicting social interests." Not only is the federal interest in protecting the Nation against pornography attenuated, but the dangers of federal censorship in this field are far greater than anything the States may do. It has often been said that one of the great strengths of our federal system is that we have, in the forty-eight States, forty-eight experimental social laboratories. "State statutory law reflects predominantly this capacity of a legislature to introduce novel techniques of social control. The federal system has the immense advantage of providing forty-eight separate centers for such experimentation. [ Footnote 2/6 ]" Different States will have different attitudes toward the same work of literature. The same book which is freely read in one State might be Page 354 U. S. 506 classed as obscene in another. [ Footnote 2/7 ] And it seems to me that no overwhelming danger to our freedom to experiment and to gratify our tastes in literature is likely to result from the suppression of a borderline book in one of the States so long as there is no uniform nationwide suppression of the book, and so long as other States are free to experiment with the same or bolder books. Quite a different situation is presented, however, where the Federal Government imposes the ban. The danger is perhaps not great if the people of one State, through their legislature, decide that "Lady Chatterley's Lover" goes so far beyond the acceptable standards of candor that it will be deemed offensive and non-sellable, for the State next door is still free to make its own choice. At least we do not have one uniform standard. But the dangers to free thought and expression are truly great if the Federal Government imposes a blanket ban over the Nation on such a book. The prerogative of the States to differ on their ideas of morality will be destroyed, the ability of States to experiment will be stunted. The fact that the people of one State cannot read some of the works of D. H.Lawrence seems to me, if not wise or desirable, at least acceptable. But that no person in the United States should be allowed to do so seems to me to be intolerable, and violative of both the letter and spirit of the First Amendment. I judge this case, then, in view of what I think is the attenuated federal interest in this field, in view of the very real danger of a deadening uniformity which can result from nationwide federal censorship, and in view of the Page 354 U. S. 507 fact that the constitutionality of this conviction must be weighed against the First, and not the Fourteenth, Amendment. So viewed, I do not think that this conviction can be upheld. The petitioner was convicted under a statute which, under the judge's charge, [ Footnote 2/8 ] makes it criminal to sell books which "tend to stir sexual impulses and lead to sexually impure thoughts." I cannot agree that any book which tends to stir sexual impulses and lead to sexually impure thoughts necessarily is "utterly without redeeming social importance." Not only did this charge fail to measure up to the standards which I understand the Court to approve, but, as far as I can see, much of the great literature of the world could lead to conviction under such a view of the statute. Moreover, in no event do I think that the limited federal interest in this area can extend to mere "thoughts." The Federal Government has no business, whether under the postal or commerce power, to bar the sale of books because they might lead to any kind of "thoughts." [ Footnote 2/9 ] It is no answer to say, as the Court does, that obscenity is not protected speech. The point is that this statute, as here construed, defines obscenity so widely that it encompasses matters which might very well be protected speech. I do not think that the federal statute can be constitutionally construed to reach other than what the Government has termed as "hard-core" pornography. Nor do I think the statute can fairly be read as directed Page 354 U. S. 508 only at persons who are engaged in the business of catering to the prurient minded, even though their wares fall short of hard-core pornography. Such a statute would raise constitutional questions of a different order. That being so, and since, in my opinion, the material here involved cannot be said to be hard-core pornography, I would reverse this case with instructions to dismiss the indictment. [ Footnote 2/1 ] In Alberts v. California, the state definition of "obscenity" is, of course, binding on us. The definition there used derives from People v. Wepplo, 78 Cal. App. 2d Supp. 959 , 178 P.2d 853, the question being whether the material has "a substantive tendency to deprave or corrupt its readers by exciting lascivious thoughts or arousing lustful desire." In Roth v. United States, our grant of certiorari was limited to the question of the constitutionality of the statute, and did not encompass the correctness of the definition of "obscenity" adopted by the trial judge as a matter of statutory construction. We must therefore assume that the trial judge correctly defined that term, and deal with the constitutionality of the statute as construed and applied in this case. The two definitions do not seem to me synonymous. Under the federal definition, it is enough if the jury finds that the book as a whole leads to certain thoughts. In California, the further inference must be drawn that such thoughts will have a substantive "tendency to deprave or corrupt" -- i.e., that the thoughts induced by the material will affect character and action. See American Law Institute, Model Penal Code, Tentative Draft No. 6, § 207.10(2), Comments, p. 10. [ Footnote 2/2 ] Ibid. [ Footnote 2/3 ] See dissenting opinion of MR. JUSTICE BRENNAN in Kingsley Books, Inc. v. Brown, No. 107, ante, p. 354 U. S. 447 . [ Footnote 2/4 ] "The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word 'liberty' as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States." [ Footnote 2/5 ] The hoary dogma of Ex parte Jackson, 96 U. S. 727 , and Public Clearing House v. Coyne, 194 U. S. 497 , that the use of the mails is a privilege on which the Government may impose such conditions as it chooses, has long since evaporated. See Brandeis, J., dissenting, in Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U. S. 407 , 255 U. S. 430 -433; Holmes, J., dissenting, in Leach v. Carlile, 258 U. S. 138 , 258 U. S. 140 ; Cates v. Haderline, 342 U.S. 804, reversing 189 F.2d 369; Door v. Donaldson, 90 U.S.App.D.C. 188, 195 F.2d 764. [ Footnote 2/6 ] Hart, The Relations Between State and Federal Law, 54 Col.L.Rev. 489, 493. [ Footnote 2/7 ] To give only a few examples: Edmund Wilson's "Memoirs of Hecate County" was found obscene in New York, see Doubleday & Co. v. New York, 335 U.S. 848; a bookseller indicted for selling the same book was acquitted in California. "God's Little Acre" was held to be obscene in Massachusetts, not obscene in New York and Pennsylvania. [ Footnote 2/8 ] While the correctness of the judge's charge is not before us, the question is necessarily subsumed in the broader question involving the constitutionality of the statute as applied in this case. [ Footnote 2/9 ] See American Law Institute, Model Penal Code, Tentative Draft No. 6, § 207.10, Comments, p. 20: "As an independent goal of penal legislation, repression of sexual thoughts and desires is hard to support. Thoughts and desires not manifested in overt antisocial behavior are generally regarded as the exclusive concern of the individual and his spiritual advisors." MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs, dissenting. When we sustain these convictions, we make the legality of a publication turn on the purity of thought which a book or tract instills in the mind of the reader. I do not think we can approve that standard and be faithful to the command of the First Amendment, which, by its terms, is a restraint on Congress and which by the Fourteenth is a restraint on the States. In the Roth case, the trial judge charged the jury that the statutory words "obscene, lewd and lascivious" describe "that form of immorality which has relation to sexual impurity and has a tendency to excite lustful thoughts." He stated that the term "filthy" in the statute pertains "to that sort of treatment of sexual matters in such a vulgar and indecent way, so that it tends to arouse a feeling of disgust and revulsion." He went on to say that the material "must be calculated to corrupt and debauch the minds and morals" of "the average person in the community," not those of any particular class. "You judge the circulars, pictures and publications which have been put in evidence by present-day standards of the community. You may ask yourselves does it offend the common conscience of the community by present-day standards." The trial judge who, sitting without a jury, heard the Alberts case, and the appellate court that sustained the Page 354 U. S. 509 judgment of conviction, took California's definition of "obscenity" from People v. Wepplo, 78 Cal. App. 2d Supp. 959 , 961, 178 P.2d 853, 855. That case held that a book is obscene "if it has a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desire." By these standards, punishment is inflicted for thoughts provoked, not for overt acts nor antisocial conduct. This test cannot be squared with our decisions under the First Amendment. Even the ill-starred Dennis case conceded that speech, to be punishable, must have some relation to action which could be penalized by government. Dennis v. United States, 341 U. S. 494 , 341 U. S. 502 -511. Cf. Chafee, The Blessings of Liberty (1956), p. 69. This issue cannot be avoided by saying that obscenity is not protected by the First Amendment. The question remains, what is the constitutional test of obscenity? The tests by which these convictions were obtained require only the arousing of sexual thoughts. Yet the arousing of sexual thoughts and desires happens every day in normal life in dozens of ways. Nearly 30 years ago, a questionnaire sent to college and normal school women graduates asked what things were most stimulating sexually. Of 409 replies, 9 said "music"; 18 said "pictures"; 29 said "dancing"; 40 said "drama"; 95 said "books", and 218 said "man." Alpert, Judicial Censorship of Obscene Literature, 52 Harv.L.Rev. 40, 73. The test of obscenity the Court endorses today gives the censor free range over a vast domain. To allow the State to step in and punish mere speech or publication that the judge or the jury thinks has an undesirable impact on thoughts, but that is not shown to be a part of unlawful action, is drastically to curtail the First Amendment. As recently stated by two of our outstanding authorities on obscenity, "The danger of influencing a change in the current moral standards of the community, or of shocking Page 354 U. S. 510 or offending readers, or of stimulating sex thoughts or desires apart from objective conduct, can never justify the losses to society that result from interference with literary freedom." Lockhart & McClure, Literature, The Law of Obscenity, and the Constitution, 38 Minn.L.Rev. 295, 387. If we were certain that impurity of sexual thoughts impelled to action, we would be on less dangerous ground in punishing the distributors of this sex literature. But it is by no means clear that obscene literature, as so defined, is a significant factor in influencing substantial deviations from the community standards. "There are a number of reasons for real and substantial doubts as to the soundness of that hypothesis. (1) Scientific studies of juvenile delinquency demonstrate that those who get into trouble, and are the greatest concern of the advocates of censorship, are far less inclined to read than those who do not become delinquent. The delinquents are generally the adventurous type, who have little use for reading and other non-active entertainment. Thus, even assuming that reading sometimes has an adverse effect upon moral conduct, the effect is not likely to be substantial, for those who are susceptible seldom read. (2) Sheldon and Eleanor Glueck, who are among the country's leading authorities on the treatment and causes of juvenile delinquency, have recently published the results of a ten-year study of its causes. They exhaustively studied approximately 90 factors and influences that might lead to or explain juvenile delinquency, but the Gluecks gave no consideration to the type of reading material, if any, read by the delinquents. This is, of course, consistent with their finding that delinquents read very little. When those who know so much about the problem of delinquency among youth -- the very Page 354 U. S. 511 group about whom the advocates of censorship are most concerned -- conclude that what delinquents read has so little effect upon their conduct that it is not worth investigating in an exhaustive study of causes, there is good reason for serious doubt concerning the basic hypothesis on which obscenity censorship is defended. (3) The many other influences in society that stimulate sexual desire are so much more frequent in their influence, and so much more potent in their effect, that the influence of reading is likely, at most, to be relatively insignificant in the composite of forces that lead an individual into conduct deviating from the community sex standards. The Kinsey studies show the minor degree to which literature serves as a potent sexual stimulant. And the studies demonstrating that sex knowledge seldom results from reading indicates [ sic ] the relative unimportance of literature in sex thoughts, as compared with other factors in society." Lockhart & McClure, op. cit. supra, pp. 385-386. The absence of dependable information on the effect of obscene literature on human conduct should make us wary. It should put us on the side of protecting society's interest in literature, except and unless it can be said that the particular publication has an impact on action that the government can control. As noted, the trial judge in the Roth case charged the jury in the alternative that the federal obscenity statute outlaws literature dealing with sex which offends "the common conscience of the community." That standard is, in my view, more inimical still to freedom of expression. The standard of what offends "the common conscience of the community" conflicts, in my judgment, with the command of the First Amendment that "Congress shall make no law . . . abridging the freedom of speech, or Page 354 U. S. 512 of the press." Certainly that standard would not be an acceptable one if religion, economics, politics or philosophy were involved. How does it become a constitutional standard when literature treating with sex is concerned? Any test that turns on what is offensive to the community's standards is too loose, too capricious, too destructive of freedom of expression to be squared with the First Amendment. Under that test, juries can censor, suppress, and punish what they don't like, provided the matter relates to "sexual impurity" or has a tendency "to excite lustful thoughts." This is community censorship in one of its worst forms. It creates a regime where, in the battle between the literati and the Philistines, the Philistines are certain to win. If experience in this field teaches anything, it is that "censorship of obscenity has almost always been both irrational and indiscriminate." Lockhart & McClure, op. cit. supra at 371. The test adopted here accentuates that trend. I assume there is nothing in the Constitution which forbids Congress from using its power over the mails to proscribe conduct on the grounds of good morals. No one would suggest that the First Amendment permits nudity in public places, adultery, and other phases of sexual misconduct. I can understand (and at times even sympathize) with programs of civic groups and church groups to protect and defend the existing moral standards of the community. I can understand the motives of the Anthony Comstocks who would impose Victorian standards on the community. When speech alone is involved, I do not think that government, consistently with the First Amendment, can become the sponsor of any of these movements. I do not think that government, consistently with the First Amendment, can throw its weight behind one school or another. Government should be Page 354 U. S. 513 concerned with anti=social conduct, not with utterances. Thus, if the First Amendment guarantee of freedom of speech and press is to mean anything in this field, it must allow protests even against the moral code that the standard of the day sets for the community. In other words, literature should not be suppressed merely because it offends the moral code of the censor. The legality of a publication in this country should never be allowed to turn either on the purity of thought which it instills in the mind of the reader or on the degree to which it offends the community conscience. By either test, the role of the censor is exalted, and society's values in literary freedom are sacrificed. The Court today suggests a third standard. It defines obscene material as that "which deals with sex in a manner appealing to prurient interest."* Like the standards applied by the trial judges below, that standard does not require any nexus between the literature which is prohibited and action which the legislature can regulate or prohibit. Under the First Amendment, that standard is no more valid than those which the courts below adopted. I do not think that the problem can be resolved by the Court's statement that "obscenity is not expression protected Page 354 U. S. 514 by the First Amendment." With the exception of Beauharnais v. Illinois, 343 U. S. 250 , none of our cases has resolved problems of free speech and free press by placing any form of expression beyond the pale of the absolute prohibition of the First Amendment. Unlike the law of libel, wrongfully relied on in Beauharnais, there is no special historical evidence that literature dealing with sex was intended to be treated in a special manner by those who drafted the First Amendment. In fact, the first reported court decision in this country involving obscene literature was in 1821. Lockhart & McClure, op. cit. supra at 324, n. 200. I reject too the implication that problems of freedom of speech and of the press are to be resolved by weighing against the values of free expression the judgment of the Court that a particular form of that expression has "no redeeming social importance." The First Amendment, its prohibition in terms absolute, was designed to preclude courts as well as legislatures from weighing the values of speech against silence. The First Amendment puts free speech in the preferred position. Freedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action as to be an inseparable part of it. Giboney v. Empire Storage Co., 336 U. S. 490 , 336 U. S. 498 ; Labor Board v. Virginia Power Co., 314 U. S. 469 , 314 U. S. 477 -478. As a people, we cannot afford to relax that standard. For the test that suppresses a cheap tract today can suppress a literary gem tomorrow. All it need do is to incite a lascivious thought or arouse a lustful desire. The list of books that judges or juries can place in that category is endless. I would give the broad sweep of the First Amendment full support. I have the same confidence in the ability of our people to reject noxious literature as I have in their capacity to sort out the true from the false in theology, economics, politics, or any other field. * The definition of obscenity which the Court adopts seems in substance to be that adopted by those who drafted the A.L.I., Model Penal Code. § 207.10(2) (Tentative Draft No. 6, 1957). "Obscenity is defined in terms of material which appeals predominantly to prurient interest in sexual matters and which goes beyond customary freedom of expression in these matters. We reject the prevailing tests of tendency to arouse lustful thoughts or desires because it is unrealistically broad for a society that plainly tolerates a great deal of erotic interest in literature, advertising, and art, and because regulation of thought or desire, unconnected with overt misbehavior, raises the most acute constitutional, as well as practical, difficulties." Id. at 10.

In the case of Roth v. United States (1957), the Supreme Court upheld the constitutionality of federal and state laws prohibiting the distribution of obscene materials, defining obscenity as content that appeals to prurient interests and lacks redeeming social value. This decision set a precedent for regulating obscene expression without violating free speech protections.

Free Speech

New York Times Co. v. Sullivan

https://supreme.justia.com/cases/federal/us/376/254/

U.S. Supreme Court New York Times Co. v. Sullivan, 376 U.S. 254 (1964) New York Times Co. v. Sullivan No. 39 Argued January 6, 1964 Decided March 9, 1964 376 U.S. 254 ast|>* 376 U.S. 254 CERTIORARI TO THE SUPREME COURT OF ALABAMA Syllabus Respondent, an elected official in Montgomery, Alabama, brought suit in a state court alleging that he had been libeled by an advertisement in corporate petitioner's newspaper, the text of which appeared over the names of the four individual petitioners and many others. The advertisement included statements, some of which were false, about police action allegedly directed against students who participated in a civil rights demonstration and against a leader of the civil rights movement; respondent claimed the statements referred to him because his duties included supervision of the police department. The trial judge instructed the jury that such statements were "libelous per se, " legal injury being implied without proof of actual damages, and that, for the purpose of compensatory damages, malice was presumed, so that such damages could be awarded against petitioners if the statements were found to have been published by them and to have related to respondent. As to punitive damages, the judge instructed that mere negligence was not evidence of actual malice, and would not justify an award of punitive damages; he refused to instruct that actual intent to harm or recklessness had to be found before punitive damages could be awarded, or that a verdict for respondent should differentiate between compensatory and punitive damages. The jury found for respondent, and the State Supreme Court affirmed. Held: A State cannot, under the First and Fourteenth Amendments, award damages to a public official for defamatory falsehood relating to his official conduct unless he proves "actual malice" -- that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false. Pp. 376 U. S. 265 -292. (a) Application by state courts of a rule of law, whether statutory or not, to award a judgment in a civil action, is "state action" under the Fourteenth Amendment. P. 376 U. S. 265 . (b) Expression does not lose constitutional protection to which it would otherwise be entitled because it appears in the form of a paid advertisement. Pp. 376 U. S. 265 -266. Page 376 U. S. 255 (c) Factual error, content defamatory of official reputation, or both, are insufficient to warrant an award of damages for false statements unless "actual malice" -- knowledge that statements are false or in reckless disregard of the truth -- is alleged and proved. Pp. 376 U. S. 279 -283. (d) State court judgment entered upon a general verdict which does not differentiate between punitive damages, as to which, under state law, actual malice must be proved, and general damages, as to which it is "presumed," precludes any determination as to the basis of the verdict, and requires reversal, where presumption of malice is inconsistent with federal constitutional requirements. P. 376 U. S. 284 . (e) The evidence was constitutionally insufficient to support the judgment for respondent, since it failed to support a finding that the statements were made with actual malice or that they related to respondent. Pp. 376 U. S. 285 -292. 273 Ala. 656, 144 So. 2d 25 , reversed and remanded. Page 376 U. S. 256 MR. JUSTICE BRENNAN delivered the opinion of the Court. We are required in this case to determine for the first time the extent to which the constitutional protections for speech and press limit a State's power to award damages in a libel action brought by a public official against critics of his official conduct. Respondent L. B. Sullivan is one of the three elected Commissioners of the City of Montgomery, Alabama. He testified that he was "Commissioner of Public Affairs, and the duties are supervision of the Police Department, Fire Department, Department of Cemetery and Department of Scales." He brought this civil libel action against the four individual petitioners, who are Negroes and Alabama clergymen, and against petitioner the New York Times Company, a New York corporation which publishes the New York Times, a daily newspaper. A jury in the Circuit Court of Montgomery County awarded him damages of $500,000, the full amount claimed, against all the petitioners, and the Supreme Court of Alabama affirmed. 273 Ala. 656, 144 So. 2d 25 . Respondent's complaint alleged that he had been libeled by statements in a full-page advertisement that was carried in the New York Times on March 29, 1960. [ Footnote 1 ] Entitled "Heed Their Rising Voices," the advertisement began by stating that, "As the whole world knows by now, thousands of Southern Negro students are engaged in widespread nonviolent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights." It went on to charge that, "in their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom. . . ." Succeeding Page 376 U. S. 257 paragraphs purported to illustrate the "wave of terror" by describing certain alleged events. The text concluded with an appeal for funds for three purposes: support of the student movement, "the struggle for the right to vote," and the legal defense of Dr. Martin Luther King, Jr., leader of the movement, against a perjury indictment then pending in Montgomery. The text appeared over the names of 64 persons, many widely known for their activities in public affairs, religion, trade unions, and the performing arts. Below these names, and under a line reading "We in the south who are struggling daily for dignity and freedom warmly endorse this appeal," appeared the names of the four individual petitioners and of 16 other persons, all but two of whom were identified as clergymen in various Southern cities. The advertisement was signed at the bottom of the page by the "Committee to Defend Martin Luther King and the Struggle for Freedom in the South," and the officers of the Committee were listed. Of the 10 paragraphs of text in the advertisement, the third and a portion of the sixth were the basis of respondent's claim of libel. They read as follows: Third paragraph: "In Montgomery, Alabama, after students sang 'My Country, 'Tis of Thee' on the State Capitol steps, their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to reregister, their dining hall was padlocked in an attempt to starve them into submission." Sixth paragraph: "Again and again, the Southern violators have answered Dr. King's peaceful protests with intimidation and violence. They have bombed his home, almost killing his wife and child. They have Page 376 U. S. 258 assaulted his person. They have arrested him seven times -- for 'speeding,' 'loitering' and similar 'offenses.' And now they have charged him with 'perjury' -- a felony under which they could imprison him for ten years. . . ." Although neither of these statements mentions respondent by name, he contended that the word "police" in the third paragraph referred to him as the Montgomery Commissioner who supervised the Police Department, so that he was being accused of "ringing" the campus with police. He further claimed that the paragraph would be read as imputing to the police, and hence to him, the padlocking of the dining hall in order to starve the students into submission. [ Footnote 2 ] As to the sixth paragraph, he contended that, since arrests are ordinarily made by the police, the statement "They have arrested [Dr. King] seven times" would be read as referring to him; he further contended that the "They" who did the arresting would be equated with the "They" who committed the other described acts and with the "Southern violators." Thus, he argued, the paragraph would be read as accusing the Montgomery police, and hence him, of answering Dr. King's protests with "intimidation and violence," bombing his home, assaulting his person, and charging him with perjury. Respondent and six other Montgomery residents testified that they read some or all of the statements as referring to him in his capacity as Commissioner. It is uncontroverted that some of the statements contained in the two paragraphs were not accurate descriptions of events which occurred in Montgomery. Although Negro students staged a demonstration on the State Capitol steps, they sang the National Anthem and not "My Page 376 U. S. 259 Country, 'Tis of Thee." Although nine students were expelled by the State Board of Education, this was not for leading the demonstration at the Capitol, but for demanding service at a lunch counter in the Montgomery County Courthouse on another day. Not the entire student body, but most of it, had protested the expulsion, not by refusing to register, but by boycotting classes on a single day; virtually all the students did register for the ensuing semester. The campus dining hall was not padlocked on any occasion, and the only students who may have been barred from eating there were the few who had neither signed a preregistration application nor requested temporary meal tickets. Although the police were deployed near the campus in large numbers on three occasions, they did not at any time "ring" the campus, and they were not called to the campus in connection with the demonstration on the State Capitol steps, as the third paragraph implied. Dr. King had not been arrested seven times, but only four, and although he claimed to have been assaulted some years earlier in connection with his arrest for loitering outside a courtroom, one of the officers who made the arrest denied that there was such an assault. On the premise that the charges in the sixth paragraph could be read as referring to him, respondent was allowed to prove that he had not participated in the events described. Although Dr. King's home had, in fact, been bombed twice when his wife and child were there, both of these occasions antedated respondent's tenure as Commissioner, and the police were not only not implicated in the bombings, but had made every effort to apprehend those who were. Three of Dr. King's four arrests took place before respondent became Commissioner. Although Dr. King had, in fact, been indicted (he was subsequently acquitted) on two counts of perjury, each of which carried a possible five-year sentence, respondent had nothing to do with procuring the indictment. Page 376 U. S. 260 Respondent made no effort to prove that he suffered actual pecuniary loss as a result of the alleged libel. [ Footnote 3 ] One of his witnesses, a former employer, testified that, if he had believed the statements, he doubted whether he "would want to be associated with anybody who would be a party to such things that are stated in that ad," and that he would not reemploy respondent if he believed "that he allowed the Police Department to do the things that the paper say he did." But neither this witness nor any of the others testified that he had actually believed the statements in their supposed reference to respondent. The cost of the advertisement was approximately $4800, and it was published by the Times upon an order from a New York advertising agency acting for the signatory Committee. The agency submitted the advertisement with a letter from A. Philip Randolph, Chairman of the Committee, certifying that the persons whose names appeared on the advertisement had given their permission. Mr. Randolph was known to the Times' Advertising Acceptability Department as a responsible person, and, in accepting the letter as sufficient proof of authorization, it followed its established practice. There was testimony that the copy of the advertisement which accompanied the letter listed only the 64 names appearing under the text, and that the statement, "We in the south . . . warmly endorse this appeal," and the list of names thereunder, which included those of the individual petitioners, were subsequently added when the first proof of the advertisement was received. Each of the individual petitioners testified that he had not authorized the use of his name, and that he had been unaware of its use until receipt of respondent's demand for a retraction. The manager of the Advertising Acceptability Page 376 U. S. 261 Department testified that he had approved the advertisement for publication because he knew nothing to cause him to believe that anything in it was false, and because it bore the endorsement of "a number of people who are well known and whose reputation" he "had no reason to question." Neither he nor anyone else at the Times made an effort to confirm the accuracy of the advertisement, either by checking it against recent Times news stories relating to some of the described events or by any other means. Alabama law denies a public officer recovery of punitive damages in a libel action brought on account of a publication concerning his official conduct unless he first makes a written demand for a public retraction and the defendant fails or refuses to comply. Alabama Code, Tit. 7, § 914. Respondent served such a demand upon each of the petitioners. None of the individual petitioners responded to the demand, primarily because each took the position that he had not authorized the use of his name on the advertisement, and therefore had not published the statements that respondent alleged had libeled him. The Times did not publish a retraction in response to the demand, but wrote respondent a letter stating, among other things, that "we . . . are somewhat puzzled as to how you think the statements in any way reflect on you," and "you might, if you desire, let us know in what respect you claim that the statements in the advertisement reflect on you." Respondent filed this suit a few days later without answering the letter. The Times did, however, subsequently publish a retraction of the advertisement upon the demand of Governor John Patterson of Alabama, who asserted that the publication charged him with "grave misconduct and . . . improper actions and omissions as Governor of Alabama and Ex-Officio Chairman of the State Board of Education of Alabama." When asked to explain why there had been a retraction for the Governor but not for respondent, the Page 376 U. S. 262 Secretary of the Times testified: "We did that because we didn't want anything that was published by The Times to be a reflection on the State of Alabama, and the Governor was, as far as we could see, the embodiment of the State of Alabama and the proper representative of the State, and, furthermore, we had by that time learned more of the actual facts which the and purported to recite and, finally, the ad did refer to the action of the State authorities and the Board of Education, presumably of which the Governor is the ex-officio chairman. . . ." On the other hand, he testified that he did not think that "any of the language in there referred to Mr. Sullivan." The trial judge submitted the case to the jury under instructions that the statements in the advertisement were "libelous per se, " and were not privileged, so that petitioners might be held liable if the jury found that they had published the advertisement and that the statements were made "of and concerning" respondent. The jury was instructed that, because the statements were libelous per se, "the law . . . implies legal injury from the bare fact of publication itself," "falsity and malice are presumed," "general damages need not be alleged or proved, but are presumed," and "punitive damages may be awarded by the jury even though the amount of actual damages is neither found nor shown." An award of punitive damages -- as distinguished from "general" damages, which are compensatory in nature -- apparently requires proof of actual malice under Alabama law, and the judge charged that "mere negligence or carelessness is not evidence of actual malice or malice in fact, and does not justify an award of exemplary or punitive damages." He refused to charge, however, that the jury must be "convinced" of malice, in the sense of "actual intent" to harm or "gross negligence and recklessness," to make such an award, and he also refused to require that a verdict for respondent differentiate between compensatory and punitive damages. The judge rejected petitioners' contention Page 376 U. S. 263 that his rulings abridged the freedoms of speech and of the press that are guaranteed by the First and Fourteenth Amendments. In affirming the judgment, the Supreme Court of Alabama sustained the trial judge's rulings and instructions in all respects. 273 Ala. 656, 144 So. 2d 25 . It held that, "where the words published tend to injure a person libeled by them in his reputation, profession, trade or business, or charge him with an indictable offense, or tend to bring the individual into public contempt," they are "libelous per se "; that "the matter complained of is, under the above doctrine, libelous per se, if it was published of and concerning the plaintiff", and that it was actionable without "proof of pecuniary injury . . . . such injury being implied." Id. at 673, 676, 144 So. 2d at 37, 41. It approved the trial court's ruling that the jury could find the statements to have been made "of and concerning" respondent, stating: "We think it common knowledge that the average person knows that municipal agents, such as police and firemen, and others, are under the control and direction of the city governing body, and, more particularly, under the direction and control of a single commissioner. In measuring the performance or deficiencies of such groups, praise or criticism is usually attached to the official in complete control of the body." Id. at 674-675, 144 So. 2d at 39. In sustaining the trial court's determination that the verdict was not excessive, the court said that malice could be inferred from the Times' "irresponsibility" in printing the advertisement while "the Times, in its own files, had articles already published which would have demonstrated the falsity of the allegations in the advertisement;" from the Times' failure to retract for respondent while retracting for the Governor, whereas the falsity of some of the allegations was then known to the Times and "the matter contained in the advertisement was equally false as to both parties", and from the testimony of the Times' Secretary that, Page 376 U. S. 264 apart from the statement that the dining hall was padlocked, he thought the two paragraphs were "substantially correct." Id. at 686-687, 144 So. 2d at 50-51. The court reaffirmed a statement in an earlier opinion that "There is no legal measure of damages in cases of this character." Id. at 686, 144 So. 2d at 50. It rejected petitioners' constitutional contentions with the brief statements that "The First Amendment of the U.S. Constitution does not protect libelous publications," and "The Fourteenth Amendment is directed against State action, and not private action." Id. at 676, 144 So. 2d at 40. Because of the importance of the constitutional issues involved, we granted the separate petitions for certiorari of the individual petitioners and of the Times. 371 U.S. 946. We reverse the judgment. We hold that the rule of law applied by the Alabama courts is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct. [ Footnote 4 ] We Page 376 U. S. 265 further hold that, under the proper safeguards, the evidence presented in this case is constitutionally insufficient to support the judgment for respondent. I . We may dispose at the outset of two grounds asserted to insulate the judgment of the Alabama courts from constitutional scrutiny. The first is the proposition relied on by the State Supreme Court -- that "The Fourteenth Amendment is directed against State action, and not private action." That proposition has no application to this case. Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that that law has been applied in a civil action and that it is common law only, though supplemented by statute. See, e.g., Alabama Code, Tit. 7, §§ 908-917. The test is not the form in which state power has been applied but, whatever the form, whether such power has, in fact, been exercised. See Ex parte Virginia, 100 U. S. 339 , 100 U. S. 346 -347; American Federation of Labor v. Swing. 312 U. S. 321 . The second contention is that the constitutional guarantees of freedom of speech and of the press are inapplicable here, at least so far as the Times is concerned, because the allegedly libelous statements were published as part of a paid, "commercial" advertisement. The argument relies on Valentine v. Chrestensen, 316 U. S. 52 , where the Court held that a city ordinance forbidding street distribution of commercial and business advertising matter did not abridge the First Amendment freedoms, even as applied to a handbill having a commercial message on one side but a protest against certain official action, on the other. The reliance is wholly misplaced. The Court in Chrestensen reaffirmed the constitutional protection for "the freedom of communicating Page 376 U. S. 266 information and disseminating opinion"; its holding was based upon the factual conclusions that the handbill was "purely commercial advertising" and that the protest against official action had been added only to evade the ordinance. The publication here was not a "commercial" advertisement in the sense in which the word was used in Chrestensen. It communicated information, expressed opinion, recited grievances, protested claimed abuses, and sought financial support on behalf of a movement whose existence and objectives are matters of the highest public interest and concern. See NAACP v. Button, 371 U. S. 415 , 371 U. S. 435 . That the Times was paid for publishing the advertisement is as immaterial in this connection as is the fact that newspapers and books are sold. Smith v. California, 361 U. S. 147 , 361 U. S. 150 ; cf. Bantam Books, Inc., v. Sullivan, 372 U. S. 58 , 372 U. S. 64 , n. 6. Any other conclusion would discourage newspapers from carrying "editorial advertisements" of this type, and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities -- who wish to exercise their freedom of speech even though they are not members of the press. Cf. Lovell v. Griffin, 303 U. S. 444 , 303 U. S. 452 ; Schneider v. State, 308 U. S. 147 , 308 U. S. 164 . The effect would be to shackle the First Amendment in its attempt to secure "the widest possible dissemination of information from diverse and antagonistic sources." Associated Press v. United States, 326 U. S. 1 , 326 U. S. 20 . To avoid placing such a handicap upon the freedoms of expression, we hold that, if the allegedly libelous statements would otherwise be constitutionally protected from the present judgment, they do not forfeit that protection because they were published in the form of a paid advertisement. [ Footnote 5 ] Page 376 U. S. 267 II Under Alabama law, as applied in this case, a publication is "libelous per se " if the words "tend to injure a person . . . in his reputation" or to "bring [him] into public contempt"; the trial court stated that the standard was met if the words are such as to "injure him in his public office, or impute misconduct to him in his office, or want of official integrity, or want of fidelity to a public trust. . . ." The jury must find that the words were published "of and concerning" the plaintiff, but, where the plaintiff is a public official, his place in the governmental hierarchy is sufficient evidence to support a finding that his reputation has been affected by statements that reflect upon the agency of which he is in charge. Once "libel per se " has been established, the defendant has no defense as to stated facts unless he can persuade the jury that they were true in all their particulars. Alabama Ride Co. v. Vance, 235 Ala. 263, 178 So. 438 (1938); Johnson Publishing Co. v. Davis, 271 Ala. 474, 494 495, 124 So. 2d 441 , 457-458 (1960). His privilege of "fair comment" for expressions of opinion depends on the truth of the facts upon which the comment is based. Parsons v. Age-Herald Publishing Co., 181 Ala. 439, 450, 61 So. 345, 350 (1913). Unless he can discharge the burden of proving truth, general damages are presumed, and may be awarded without proof of pecuniary injury. A showing of actual malice is apparently a prerequisite to recovery of punitive damages, and the defendant may, in any event, forestall a punitive award by a retraction meeting the statutory requirements. Good motives and belief in truth do not negate an inference of malice, but are relevant only in mitigation of punitive damages if the jury chooses to accord them weight. Johnson Publishing Co. v. Davis, supra, 271 Ala., at 495, 124 So. 2d at 458. Page 376 U. S. 268 The question before us is whether this rule of liability, as applied to an action brought by a public official against critics of his official conduct, abridges the freedom of speech and of the press that is guaranteed by the First and Fourteenth Amendments. Respondent relies heavily, as did the Alabama courts, on statements of this Court to the effect that the Constitution does not protect libelous publications. [ Footnote 6 ] Those statements do not foreclose our inquiry here. None of the cases sustained the use of libel laws to impose sanctions upon expression critical of the official conduct of public officials. The dictum in Pennekamp v. Florida, 328 U. S. 331 , 328 U. S. 348 -349, that "when the statements amount to defamation, a judge has such remedy in damages for libel as do other public servants," implied no view as to what remedy might constitutionally be afforded to public officials. In Beauharnais v. Illinois, 343 U. S. 250 , the Court sustained an Illinois criminal libel statute as applied to a publication held to be both defamatory of a racial group and "liable to cause violence and disorder." But the Court was careful to note that it "retains and exercises authority to nullify action which encroaches on freedom of utterance under the guise of punishing libel"; for "public men are, as it were, public property," and "discussion cannot be denied, and the right, as well as the duty, of criticism must not be stifled." Id. at 343 U. S. 263 -264, and n. 18. In the only previous case that did present the question of constitutional limitations upon the power to award damages for libel of a public official, the Court was equally divided and the question was not decided. Schenectady Union Pub. Co. v. Sweeney, 316 U.S. 642. Page 376 U. S. 269 In deciding the question now, we are compelled by neither precedent nor policy to give any more weight to the epithet "libel" than we have to other "mere labels" of state law. NAACP v. Button, 371 U. S. 415 , 371 U. S. 429 . Like insurrection, [ Footnote 7 ] contempt, [ Footnote 8 ] advocacy of unlawful acts, [ Footnote 9 ] breach of the peace, [ Footnote 10 ] obscenity, [ Footnote 11 ] solicitation of legal business, [ Footnote 12 ] and the various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment. The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Roth v. United States, 354 U. S. 476 , 354 U. S. 484 . "The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system." Stromberg v. California, 283 U. S. 359 , 283 U. S. 369 . "[I]t is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions," Bridges v. California, 314 U. S. 252 , 314 U. S. 270 , and this opportunity is to be afforded for "vigorous advocacy" no less than "abstract discussion." NAACP v. Button, 371 U. S. 415 , 371 U. S. 429 . Page 376 U. S. 270 The First Amendment, said Judge Learned Hand, "presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection. To many, this is, and always will be, folly, but we have staked upon it our all." United States v. Associated Press, 52 F. Supp. 362 , 372 (D.C.S.D.N.Y.1943). Mr. Justice Brandeis, in his concurring opinion in Whitney v. California, 274 U. S. 357 , 274 U. S. 375 -376, gave the principle its classic formulation: "Those who won our independence believed . . . that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed." Thus, we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. See Terminiello v. Chicago, 337 U. S. 1 , 337 U. S. 4 ; De Jonge v. Oregon, 299 U. S. 353 , Page 376 U. S. 271 299 U. S. 365 . The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection. The question is whether it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent. Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth -- whether administered by judges, juries, or administrative officials -- and especially one that puts the burden of proving truth on the speaker. Cf. Speiser v. Randall, 357 U. S. 513 , 357 U. S. 525 -526. The constitutional protection does not turn upon "the truth, popularity, or social utility of the ideas and beliefs which are offered." NAACP v. Button, 371 U. S. 415 , 371 U. S. 445 . As Madison said, "Some degree of abuse is inseparable from the proper use of every thing, and in no instance is this more true than in that of the press." 4 Elliot's Debates on the Federal Constitution (1876), p. 571. In Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 310 , the Court declared: "In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields, the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained, in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy." That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression Page 376 U. S. 272 are to have the "breathing space" that they "need . . . to survive," NAACP v. Button, 371 U. S. 415 , 371 U. S. 433 , was also recognized by the Court of Appeals for the District of Columbia Circuit in Sweeney v. Patterson, 76 U.S.App.D.C. 23, 24, 128 F.2d 457, 458 (1942), cert. denied, 317 U.S. 678. Judge Edgerton spoke for a unanimous court which affirmed the dismissal of a Congressman's libel suit based upon a newspaper article charging him with anti-Semitism in opposing a judicial appointment. He said: "Cases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine that the governed must not criticize their governors. . . . The interest of the public here outweighs the interest of appellant or any other individual. The protection of the public requires not merely discussion, but information. Political conduct and views which some respectable people approve, and others condemn, are constantly imputed to Congressmen. Errors of fact, particularly in regard to a man's mental states and processes, are inevitable. . . . Whatever is added to the field of libel is taken from the field of free debate. [ Footnote 13 ]" Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error. Where judicial officers are involved, this Court has held that concern for the dignity and Page 376 U. S. 273 reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision. Bridges v. California, 314 U. S. 252 . This is true even though the utterance contains "half-truths" and "misinformation." Pennekamp v. Florida, 328 U. S. 331 , 328 U. S. 342 , 328 U. S. 343 , n. 5, 328 U. S. 345 . Such repression can be justified, if at all, only by a clear and present danger of the obstruction of justice. See also Craig v. Harney, 331 U. S. 367 ; Wood v. Georgia, 370 U. S. 375 . If judges are to be treated as "men of fortitude, able to thrive in a hardy climate," Craig v. Harney, supra, 331 U.S. at 331 U. S. 376 , surely the same must be true of other government officials, such as elected city commissioners. [ Footnote 14 ] Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism, and hence diminishes their official reputations. If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less inadequate. This is the lesson to be drawn from the great controversy over the Sedition Act of 1798, 1 Stat. 596, which first crystallized a national awareness of the central meaning of the First Amendment. See Levy, Legacy of Suppression (1960), at 258 et seq.; Smith, Freedom's Fetters (1956), at 426, 431, and passim. That statute made it a crime, punishable by a $5,000 fine and five years in prison, "if any person shall write, print, utter or publish . . . any false, scandalous and malicious Page 376 U. S. 274 writing or writings against the government of the United States, or either house of the Congress . . . or the President . . . with intent to defame . . . or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States." The Act allowed the defendant the defense of truth, and provided that the jury were to be judges both of the law and the facts. Despite these qualifications, the Act was vigorously condemned as unconstitutional in an attack joined in by Jefferson and Madison. In the famous Virginia Resolutions of 1798, the General Assembly of Virginia resolved that it "doth particularly protest against the palpable and alarming infractions of the Constitution in the two late cases of the 'Alien and Sedition Acts,' passed at the last session of Congress. . . . [The Sedition Act] exercises . . . a power not delegated by the Constitution, but, on the contrary, expressly and positively forbidden by one of the amendments thereto -- a power which, more than any other, ought to produce universal alarm because it is leveled against the right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right." 4 Elliot's Debates, supra, pp. 553-554. Madison prepared the Report in support of the protest. His premise was that the Constitution created a form of government under which "The people, not the government, possess the absolute sovereignty." The structure of the government dispersed power in reflection of the people's distrust of concentrated power, and of power itself at all levels. This form of government was "altogether different" from the British form, under which the Crown was sovereign and the people were subjects. "Is Page 376 U. S. 275 it not natural and necessary, under such different circumstances," he asked, "that a different degree of freedom in the use of the press should be contemplated?" Id., pp. 569-570. Earlier, in a debate in the House of Representatives, Madison had said: "If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people." 4 Annals of Congress, p. 934 (1794). Of the exercise of that power by the press, his Report said: "In every state, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law. On this footing, the freedom of the press has stood; on this foundation it yet stands. . . ." 4 Elliot's Debates, supra, p. 570. The right of free public discussion of the stewardship of public officials was thus, in Madison's view, a fundamental principle of the American form of government. [ Footnote 15 ] Page 376 U. S. 276 Although the Sedition Act was never tested in this Court, [ Footnote 16 ] the attack upon its validity has carried the day in the court of history. Fines levied in its prosecution were repaid by Act of Congress on the ground that it was unconstitutional. See, e.g., Act of July 4, 1840, c. 45, 6 Stat. 802, accompanied by H.R.Rep. No. 86, 26th Cong., 1st Sess. (1840). Calhoun, reporting to the Senate on February 4, 1836, assumed that its invalidity was a matter "which no one now doubts." Report with Senate bill No. 122, 24th Cong., 1st Sess., p. 3. Jefferson, as President, pardoned those who had been convicted and sentenced under the Act and remitted their fines, stating: "I discharged every person under punishment or prosecution under the sedition law because I considered, and now consider, that law to be a nullity, as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image." Letter to Mrs. Adams, July 22, 1804, 4 Jefferson's Works (Washington ed.), pp. 555, 556. The invalidity of the Act has also been assumed by Justices of this Court. See Holmes, J., dissenting and joined by Brandeis, J., in Abrams v. United States, 250 U. S. 616 , 250 U. S. 630 ; Jackson, J., dissenting in Beauharnais v. Illinois, 343 U. S. 250 , 343 U. S. 288 -289; Douglas, The Right of the People (1958), p. 47. See also Cooley, Constitutional Limitations (8th ed., Carrington, 1927), pp. 899-900; Chafee, Free Speech in the United States (1942), pp. 27-28. These views reflect a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment. There is no force in respondent's argument that the constitutional limitations implicit in the history of the Sedition Act apply only to Congress, and not to the States. It is true that the First Amendment was originally addressed only to action by the Federal Government, and Page 376 U. S. 277 that Jefferson, for one, while denying the power of Congress "to controul the freedom of the press," recognized such a power in the States. See the 1804 Letter to Abigail Adams quoted in Dennis v. United States, 341 U. S. 494 , 341 U. S. 522 , n. 4 (concurring opinion). But this distinction was eliminated with the adoption of the Fourteenth Amendment and the application to the States of the First Amendment's restrictions. See, e.g., Gitlow v. New York, 268 U. S. 652 , 268 U. S. 666 ; Schneider v. State, 308 U. S. 147 , 308 U. S. 160 ; Bridges v. California, 314 U. S. 252 , 314 U. S. 268 ; Edwards v. South Carolina, 372 U. S. 229 , 372 U. S. 235 . What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. [ Footnote 17 ] The fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute. See City of Chicago v. Tribune Co., 307 Ill. 595, 607, 139 N.E. 86, 90 (1923). Alabama, for example, has a criminal libel law which subjects to prosecution "any person who speaks, writes, or prints of and concerning another any accusation falsely and maliciously importing the commission by such person of a felony, or any other indictable offense involving moral turpitude," and which allows as punishment upon conviction a fine not exceeding $500 and a prison sentence of six months. Alabama Code, Tit. 14, § 350. Presumably, a person charged with violation of this statute enjoys ordinary criminal law safeguards such as the requirements of an indictment and of proof beyond a reasonable doubt. These safeguards are not available to the defendant in a civil action. The judgment awarded in this case -- without the need for any proof of actual pecuniary loss -- was one thousand times greater than the maximum fine provided by the Alabama criminal statute, and one hundred times greater than that provided by the Sedition Act. Page 376 U. S. 278 And since there is no double jeopardy limitation applicable to civil lawsuits, this is not the only judgment that may be awarded against petitioners for the same publication. [ Footnote 18 ] Whether or not a newspaper can survive a succession of such judgments, the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive. Plainly the Alabama law of civil libel is "a form of regulation that creates hazards to protected freedoms markedly greater than those that attend reliance upon the criminal law." Bantam Books, Inc. v. Sullivan, 372 U. S. 58 , 372 U. S. 70 . The state rule of law is not saved by its allowance of the defense of truth. A defense for erroneous statements honestly made is no less essential here than was the requirement of proof of guilty knowledge which, in Smith v. California, 361 U. S. 147 , we held indispensable to a valid conviction of a bookseller for possessing obscene writings for sale. We said: "For, if the bookseller is criminally liable without knowledge of the contents, . . . He will tend to restrict the books he sells to those he has inspected, and thus the State will have imposed a restriction upon the distribution of constitutionally protected, as well as obscene, literature. . . . And the bookseller's burden would become the public's burden, for, by restricting him, the public's access to reading matter would be restricted. . . . [H]is timidity in the face of his absolute criminal liability thus would tend to restrict the public's access to forms of the printed word which the State could not constitutionally Page 376 U. S. 279 suppress directly. The bookseller's self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered. Through it, the distribution of all books, both obscene and not obscene, would be impeded." ( 361 U. S. 361 U.S. 147, 361 U. S. 153 -154.) A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions -- and to do so on pain of libel judgments virtually unlimited in amount -- leads to a comparable "self-censorship." Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred. [ Footnote 19 ] Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. See, e.g., Post Publishing Co. v. Hallam, 59 F. 530, 540 (C.A. 6th Cir. 1893); see also Noel, Defamation of Public Officers and Candidates, 49 Col.L.Rev. 875, 892 (1949). Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is, in fact, true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which "steer far wider of the unlawful zone." Speiser v. Randall, supra, 357 U.S. at 357 U. S. 526 . The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments. The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made Page 376 U. S. 280 with "actual malice" -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not. An oft-cited statement of a like rule, which has been adopted by a number of state courts, [ Footnote 20 ] is found in the Kansas case of Coleman v. MacLennan, 78 Kan. 711, 98 P. 281 (1908). The State Attorney General, a candidate for reelection and a member of the commission charged with the management and control of the state school fund, sued a newspaper publisher for alleged libel in an article purporting to state facts relating to his official conduct in connection with a school-fund transaction. The defendant pleaded privilege and the trial judge, over the plaintiff's objection, instructed the jury that "where an article is published and circulated among voters for the sole purpose of giving what the defendant Page 376 U. S. 281 believes to be truthful information concerning a candidate for public office and for the purpose of enabling such voters to cast their ballot more intelligently, and the whole thing is done in good faith and without malice, the article is privileged, although the principal matters contained in the article may be untrue, in fact, and derogatory to the character of the plaintiff, and in such a case the burden is on the plaintiff to show actual malice in the publication of the article." In answer to a special question, the jury found that the plaintiff had not proved actual malice, and a general verdict was returned for the defendant. On appeal, the Supreme Court of Kansas, in an opinion by Justice Burch, reasoned as follows (78 Kan., at 724, 98 P. at 286): "It is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the state and to society of such discussions is so vast, and the advantages derived are so great, that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great, and the chance of injury to private character so small, that such discussion must be privileged." The court thus sustained the trial court's instruction as a correct statement of the law, saying: "In such a case the occasion gives rise to a privilege, qualified to this extent: any one claiming to be defamed by the communication must show actual malice or go remediless. This privilege extends to a great variety of subjects, and includes matters of Page 376 U. S. 282 public concern, public men, and candidates for office." 78 Kan. at 723, 98 P. at 285. Such a privilege for criticism of official conduct [ Footnote 21 ] is appropriately analogous to the protection accorded a public official when he is sued for libel by a private citizen. In Barr v. Matteo, 360 U. S. 564 , 360 U. S. 575 , this Court held the utterance of a federal official to be absolutely privileged if made "within the outer perimeter" of his duties. The States accord the same immunity to statements of their highest officers, although some differentiate their lesser officials and qualify the privilege they enjoy. [ Footnote 22 ] But all hold that all officials are protected unless actual malice can be proved. The reason for the official privilege is said to be that the threat of damage suits would otherwise "inhibit the fearless, vigorous, and effective administration of policies of government" and "dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties." Barr v. Matteo, supra, 360 U.S. at 360 U. S. 571 . Analogous considerations support the privilege for the citizen-critic of government. It is as much his duty to criticize as it is the official's duty to administer. See Whitney v. California, 274 U. S. 357 , 274 U. S. 375 (concurring opinion of Mr. Justice Brandeis), quoted supra, p. 376 U. S. 270 . As Madison said, see supra p. 376 U. S. 275 , "the censorial power is in the people over the Government, and not in the Government over the people." It would give public servants an unjustified preference over the public they serve, if critics of official conduct Page 376 U. S. 283 did not have a fair equivalent of the immunity granted to the officials themselves. We conclude that such a privilege is required by the First and Fourteenth Amendments. III We hold today that the Constitution delimits a State's power to award damages for libel in actions brought by public officials against critics of their official conduct. Since this is such an action, [ Footnote 23 ] the rule requiring proof of actual malice is applicable. While Alabama law apparently requires proof of actual malice for an award of punitive damages, [ Footnote 24 ] where general damages are concerned malice is "presumed." Such a presumption is inconsistent Page 376 U. S. 284 with the federal rule. "The power to create presumptions is not a means of escape from constitutional restrictions," Bailey v. Alabama, 219 U. S. 219 , 219 U. S. 239 , "the showing of malice required for the forfeiture of the privilege is not presumed but is a matter for proof by the plaintiff. . . ." Lawrence v. Fox, 357 Mich. 134, 146, 97 N.W.2d 719 , 725 (1959). [ Footnote 25 ] Since the trial judge did not instruct the jury to differentiate between general and punitive damages, it may be that the verdict was wholly an award of one or the other. But it is impossible to know, in view of the general verdict returned. Because of this uncertainty, the judgment must be reversed and the case remanded. Stromberg v. California, 283 U. S. 359 , 283 U. S. 367 -368; Williams v. North Carolina, 317 U. S. 287 , 317 U. S. 291 -292; see Yates v. United States, 354 U. S. 298 , 354 U. S. 311 -312; Cramer v. United States, 325 U. S. 1 , 325 U. S. 36 , n. 45. Since respondent may seek a new trial, we deem that considerations of effective judicial administration require us to review the evidence in the present record to determine Page 376 U. S. 285 whether it could constitutionally support a judgment for respondent. This Court's duty is not limited to the elaboration of constitutional principles; we must also in proper cases review the evidence to make certain that those principles have been constitutionally applied. This is such a case, particularly since the question is one of alleged trespass across "the line between speech unconditionally guaranteed and speech which may legitimately be regulated." Speiser v. Randall, 357 U. S. 513 , 357 U. S. 525 . In cases where that line must be drawn, the rule is that we "examine for ourselves the statements in issue and the circumstances under which they were made to see . . . whether they are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect." Pennekamp v. Florida, 328 U. S. 331 , 328 U. S. 335 ; see also One, Inc., v. Olesen, 355 U. S. 371 ; Sunshine Book Co. v. Summerfield, 355 U. S. 372 . We must "make an independent examination of the whole record," Edwards v. South Carolina, 372 U. S. 229 , 372 U. S. 235 , so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression. [ Footnote 26 ] Applying these standards, we consider that the proof presented to show actual malice lacks the convincing Page 376 U. S. 286 clarity which the constitutional standard demands, and hence that it would not constitutionally sustain the judgment for respondent under the proper rule of law. The case of the individual petitioners requires little discussion. Even assuming that they could constitutionally be found to have authorized the use of their names on the advertisement, there was no evidence whatever that they were aware of any erroneous statements or were in any way reckless in that regard. The judgment against them is thus without constitutional support. As to the Times, we similarly conclude that the facts do not support a finding of actual malice. The statement by the Times' Secretary that, apart from the padlocking allegation, he thought the advertisement was "substantially correct," affords no constitutional warrant for the Alabama Supreme Court's conclusion that it was a "cavalier ignoring of the falsity of the advertisement [from which] the jury could not have but been impressed with the bad faith of The Times, and its maliciousness inferable therefrom." The statement does not indicate malice at the time of the publication; even if the advertisement was not "substantially correct" -- although respondent's own proofs tend to show that it was -- that opinion was at least a reasonable one, and there was no evidence to impeach the witness' good faith in holding it. The Times' failure to retract upon respondent's demand, although it later retracted upon the demand of Governor Patterson, is likewise not adequate evidence of malice for constitutional purposes. Whether or not a failure to retract may ever constitute such evidence, there are two reasons why it does not here. First, the letter written by the Times reflected a reasonable doubt on its part as to whether the advertisement could reasonably be taken to refer to respondent at all. Second, it was not a final refusal, since it asked for an explanation on this point -- a request that respondent chose to ignore. Nor does the retraction upon the demand of the Governor supply the Page 376 U. S. 287 necessary proof. It may be doubted that a failure to retract, which is not itself evidence of malice, can retroactively become such by virtue of a retraction subsequently made to another party. But, in any event, that did not happen here, since the explanation given by the Times' Secretary for the distinction drawn between respondent and the Governor was a reasonable one, the good faith of which was not impeached. Finally, there is evidence that the Times published the advertisement without checking its accuracy against the news stories in the Times' own files. The mere presence of the stories in the files does not, of course, establish that the Times "knew" the advertisement was false, since the state of mind required for actual malice would have to be brought home to the persons in the Times' organization having responsibility for the publication of the advertisement. With respect to the failure of those persons to make the check, the record shows that they relied upon their knowledge of the good reputation of many of those whose names were listed as sponsors of the advertisement, and upon the letter from A. Philip Randolph, known to them as a responsible individual, certifying that the use of the names was authorized. There was testimony that the persons handling the advertisement saw nothing in it that would render it unacceptable under the Times' policy of rejecting advertisements containing "attacks of a personal character"; [ Footnote 27 ] their failure to reject it on this ground was not unreasonable. We think Page 376 U. S. 288 the evidence against the Times supports, at most, a finding of negligence in failing to discover the misstatements, and is constitutionally insufficient to show the recklessness that is required for a finding of actual malice. Cf. Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 618, 116 A.2d 440, 446 (1955); Phoenix Newspapers, Inc., v. Choisser, 82 Ariz. 271, 277-278, 312 P.2d 150 , 154-155 (1957). We also think the evidence was constitutionally defective in another respect: it was incapable of supporting the jury's finding that the allegedly libelous statements were made "of and concerning" respondent. Respondent relies on the words of the advertisement and the testimony of six witnesses to establish a connection between it and himself. Thus, in his brief to this Court, he states: "The reference to respondent as police commissioner is clear from the ad. In addition, the jury heard the testimony of a newspaper editor . . . ; a real estate and insurance man . . . ; the sales manager of a men's clothing store . . . ; a food equipment man . . . ; a service station operator . . . , and the operator of a truck line for whom respondent had formerly worked. . . . Each of these witnesses stated that he associated the statements with respondent. . . ." (Citations to record omitted.) There was no reference to respondent in the advertisement, either by name or official position. A number of the allegedly libelous statements -- the charges that the dining hall was padlocked and that Dr. King's home was bombed, his person assaulted, and a perjury prosecution instituted against him -- did not even concern the police; despite the ingenuity of the arguments which would attach this significance to the word "They," it is plain that these statements could not reasonably be read as accusing respondent of personal involvement in the acts Page 376 U. S. 289 in question. The statements upon which respondent principally relies as referring to him are the two allegations that did concern the police or police functions: that "truckloads of police . . . ringed the Alabama State College Campus" after the demonstration on the State Capitol steps, and that Dr. King had been "arrested . . . seven times." These statements were false only in that the police had been "deployed near" the campus, but had not actually "ringed" it, and had not gone there in connection with the State Capitol demonstration, and in that Dr. King had been arrested only four times. The ruling that these discrepancies between what was true and what was asserted were sufficient to injure respondent's reputation may itself raise constitutional problems, but we need not consider them here. Although the statements may be taken as referring to the police, they did not, on their face, make even an oblique reference to respondent as an individual. Support for the asserted reference must, therefore, be sought in the testimony of respondent's witnesses. But none of them suggested any basis for the belief that respondent himself was attacked in the advertisement beyond the bare fact that he was in overall charge of the Police Department and thus bore official responsibility for police conduct; to the extent that some of the witnesses thought respondent to have been charged with ordering or approving the conduct or otherwise being personally involved in it, they based this notion not on any statements in the advertisement, and not on any evidence that he had, in fact, been so involved, but solely on the unsupported assumption that, because of his official position, he must have been. [ Footnote 28 ] This reliance on the bare Page 376 U. S. 290 fact of respondent's official position [ Footnote 29 ] was made explicit by the Supreme Court of Alabama. That court, in holding that the trial court "did not err in overruling the demurrer [of the Times] in the aspect that the libelous Page 376 U. S. 291 matter was not of and concerning the [plaintiff,]" based its ruling on the proposition that: "We think it common knowledge that the average person knows that municipal agents, such as police and firemen, and others, are under the control and direction of the city governing body, and more particularly under the direction and control of a single commissioner. In measuring the performance or deficiencies of such groups, praise or criticism is usually attached to the official in complete control of the body." 273 Ala., at 674-675, 144 So. 2d at 39. This proposition has disquieting implications for criticism of governmental conduct. For good reason, "no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence." City of Chicago v. Tribune Co., 307 Ill. 595, 601, 139 N.E. Page 376 U. S. 292 86, 88 (1923). The present proposition would sidestep this obstacle by transmuting criticism of government, however impersonal it may seem on its face, into personal criticism, and hence potential libel, of the officials of whom the government is composed. There is no legal alchemy by which a State may thus create the cause of action that would otherwise be denied for a publication which, as respondent himself said of the advertisement, "reflects not only on me but on the other Commissioners and the community." Raising as it does the possibility that a good faith critic of government will be penalized for his criticism, the proposition relied on by the Alabama courts strikes at the very center of the constitutionally protected area of free expression. [ Footnote 30 ] We hold that such a proposition may not constitutionally be utilized to establish that an otherwise impersonal attack on governmental operations was a libel of an official responsible for those operations. Since it was relied on exclusively here, and there was no other evidence to connect the statements with respondent, the evidence was constitutionally insufficient to support a finding that the statements referred to respondent. The judgment of the Supreme Court of Alabama is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. Reversed and remanded. Page 376 U. S. 293 * Together with No. 40, Abernathy et al. v. Sullivan, also on certiorari to the same court, argued January 7, 1964. [ Footnote 1 ] A copy of the advertisement is printed in the Appendix [omitted]. [ Footnote 2 ] Respondent did not consider the charge of expelling the students to be applicable to him, since "that responsibility rests with the State Department of Education." [ Footnote 3 ] Approximately 394 copies of the edition of the Times containing the advertisement were circulated in Alabama. Of these, about 35 copies were distributed in Montgomery County. The total circulation of the Times for that day was approximately 650,000 copies. [ Footnote 4 ] Since we sustain the contentions of all the petitioners under the First Amendment's guarantees of freedom of speech and of the press as applied to the States by the Fourteenth Amendment, we do not decide the questions presented by the other claims of violation of the Fourteenth Amendment. The individual petitioners contend that the judgment against them offends the Due Process Clause because there was no evidence to show that they had published or authorized the publication of the alleged libel, and that the Due Process and Equal Protection Clauses were violated by racial segregation and racial bias in the courtroom. The Times contends that the assumption of jurisdiction over its corporate person by the Alabama courts overreaches the territorial limits of the Due Process Clause. The latter claim is foreclosed from our review by the ruling of the Alabama courts that the Times entered a general appearance in the action, and thus waived its jurisdictional objection; we cannot say that this ruling lacks "fair or substantial support" in prior Alabama decisions. See Thompson v. Wilson, 224 Ala. 299, 140 So. 439 (1932); compare NAACP v. Alabama, 357 U. S. 449 , 357 U. S. 454 -458. [ Footnote 5 ] See American Law Institute, Restatement of Torts, § 593, Comment b (1938). [ Footnote 6 ] Konigsberg v. State Bar of California, 366 U. S. 36 , 366 U. S. 49 , and n. 10; Times Film Corp. v. City of Chicago, 365 U. S. 43 , 365 U. S. 48 ; Roth v. United States, 354 U. S. 476 , 354 U. S. 486 -487; Beauharnais v. Illinois, 343 U. S. 250 , 343 U. S. 266 ; Pennekamp v. Florida, 328 U. S. 331 , 328 U. S. 348 -349; Chaplinsky v. New Hampshire, 315 U. S. 568 , 315 U. S. 572 ; Near v. Minnesota, 283 U. S. 697 , 283 U. S. 715 . [ Footnote 7 ] Herndon v. Lowry, 301 U. S. 242 . [ Footnote 8 ] Bridges v. California, 314 U. S. 252 ; Pennekamp v. Florida, 328 U. S. 331 . [ Footnote 9 ] De Jonge v. Oregon, 299 U. S. 353 . [ Footnote 10 ] Edwards v. South Carolina, 372 U. S. 229 . [ Footnote 11 ] Roth v. United States, 354 U. S. 476 . [ Footnote 12 ] NAACP v. Button, 371 U. S. 415 . [ Footnote 13 ] See also Mill, On Liberty (Oxford: Blackwell, 1947), at 47: ". . . [T]o argue sophistically, to suppress facts or arguments, to misstate the elements of the case, or misrepresent the opposite opinion . . . , all this, even to the most aggravated degree, is so continually done in perfect good faith by persons who are not considered, and in many other respects may not deserve to be considered, ignorant or incompetent that it is rarely possible, on adequate grounds, conscientiously to stamp the misrepresentation as morally culpable, and still less could law presume to interfere with this kind of controversial misconduct." [ Footnote 14 ] The climate in which public officials operate, especially during a political campaign, has been described by one commentator in the following terms: "Charges of gross incompetence, disregard of the public interest, communist sympathies, and the like usually have filled the air, and hints of bribery, embezzlement, and other criminal conduct are not infrequent." Noel, Defamation of Public Officers and Candidates, 49 Col.L.Rev. 875 (1949). For a similar description written 60 years earlier, see Chase, Criticism of Public Officers and Candidates for Office, 23 Am.L.Rev. 346 (1889). [ Footnote 15 ] The Report on the Virginia Resolutions further stated: "[I]t is manifestly impossible to punish the intent to bring those who administer the government into disrepute or contempt, without striking at the right of freely discussing public characters and measures, . . . which, again, is equivalent to a protection of those who administer the government, if they should at any time deserve the contempt or hatred of the people, against being exposed to it by free animadversions on their characters and conduct. Nor can there be a doubt . . . that a government thus entrenched in penal statutes against the just and natural effects of a culpable administration will easily evade the responsibility which is essential to a faithful discharge of its duty." "Let it be recollected, lastly, that the right of electing the members of the government constitutes more particularly the essence of a free and responsible government. The value and efficacy of this right depends on the knowledge of the comparative merits and demerits of the candidates for public trust, and on the equal freedom, consequently, of examining and discussing these merits and demerits of the candidates respectively." 4 Elliot's Debates, supra, p. 575. [ Footnote 16 ] The Act expired, by its terms, in 1801. [ Footnote 17 ] Cf. Farmers Union v. WDAY, 360 U. S. 525 , 360 U. S. 535 . [ Footnote 18 ] The Times states that four other libel suits based on the advertisement have been filed against it by others who have served as Montgomery City Commissioners and by the Governor of Alabama; that another $500,000 verdict has been awarded in the only one of these cases that has yet gone to trial, and that the damages sought in the other three total $2,000,000. [ Footnote 19 ] Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about "the clearer perception and livelier impression of truth, produced by its collision with error." Mill, On Liberty (Oxford: Blackwell, 1947), at 15; see also Milton, Areopagitia, in Prose Works (Yale, 1959), Vol. II, at 561. [ Footnote 20 ] E.g., Ponder v. Cobb, 257 N.C. 281, 299, 126 S.E.2d 67 , 80 (1962); Lawrence v. Fox, 357 Mich. 134, 146, 97 N.W.2d 719 , 725 (1959); Stice v. Beacon Newspaper Corp., 185 Kan. 61, 65-67, 340 P.2d 396 , 400-401 (1959); Bailey v. Charleston Mail Assn., 126 W.Va. 292, 307, 27 S.E.2d 837, 844 (1943); Salinger v. Cowles, 195 Iowa 873, 889, 191 N.W. 167, 174 (1922); Snively v. Record Publishing Co., 185 Cal. 565, 571-576, 198 P. 1 (1921); McLean v. Merriman, 42 S.D. 394, 175 N.W. 878 (1920). Applying the same rule to candidates for public office, see, e.g., Phoenix Newspapers v. Choisser, 82 Ariz. 271, 276-277, 312 P.2d 150 , 154 (1957); Friedell v. Blakely Printing Co., 163 Minn. 226, 230, 203 N.W. 974, 975 (1925). And see Chagnon v. Union-Leader Corp., 103 N.H. 426, 438, 174 A.2d 825, 833 (1961), cert. denied, 369 U.S. 830. The consensus of scholarly opinion apparently favors the rule that is here adopted. E.g., Harper and James, Torts, § 5.26, at 449-450 (1956); Noel, Defamation of Public Officers and Candidates, 49 Col.L.Rev. 875, 891-895, 897, 903 (1949); Hallen, Fair Comment, 8 Tex.L.Rev. 41, 61 (1929); Smith, Charges Against Candidates, 18 Mich.L.Rev. 1, 115 (1919); Chase, Criticism of Public Officers and Candidates for Office, 23 Am.L.Rev. 346, 367-371 (1889); Cooley, Constitutional Limitations (7th ed., Lane, 1903), at 604, 616-628. But see, e.g., American Law Institute, Restatement of Torts, § 598, Comment a (1938) (reversing the position taken in Tentative Draft 13, § 1041(2) (1936)); Veeder, Freedom of Public Discussion, 23 Harv.L.Rev. 413, 419 (1910). [ Footnote 21 ] The privilege immunizing honest misstatements of fact is often referred to as a "conditional" privilege, to distinguish it from the "absolute" privilege recognized in judicial, legislative, administrative and executive proceedings. See, e.g., Prosser, Torts (2d ed., 1955), § 95. [ Footnote 22 ] See 1 Harper and James, Torts, § 5.23, at 429-430 (1956); Prosser, Torts (2d ed., 1955), at 612-613; American Law Institute, Restatement of Torts (1938), § 591. [ Footnote 23 ] We have no occasion here to determine how far down into the lower ranks of government employees the "public official" designation would extend for purposes of this rule, or otherwise to specify categories of persons who would or would not be included. Cf. Barr v. Matteo, 360 U. S. 564 , 360 U. S. 573 -575. Nor need we here determine the boundaries of the "official conduct" concept. It is enough for the present case that respondent's position as an elected city commissioner clearly made him a public official, and that the allegations in the advertisement concerned what was allegedly his official conduct as Commissioner in charge of the Police Department. As to the statements alleging the assaulting of Dr. King and the bombing of his home, it is immaterial that they might not be considered to involve respondent's official conduct if he himself had been accused of perpetrating the assault and the bombing. Respondent does not claim that the statements charged him personally with these acts; his contention is that the advertisement connects him with them only in his official capacity as the Commissioner supervising the police, on the theory that the police might be equated with the "They" who did the bombing and assaulting. Thus, if these allegations can be read as referring to respondent at all, they must be read as describing his performance of his official duties. [ Footnote 24 ] Johnson Publishing Co. v. Davis, 271 Ala. 474, 487, 124 So. 2d 441 , 450 (1960). Thus, the trial judge here instructed the jury that "mere negligence or carelessness is not evidence of actual malice or malice, in fact, and does not justify an award of exemplary or punitive damages in an action for libel." The court refused, however, to give the following instruction which had been requested by the Times: "I charge you . . . that punitive damages, as the name indicates, are designed to punish the defendant, the New York Times Company, a corporation, and the other defendants in this case, . . . and I further charge you that such punitive damages may be awarded only in the event that you, the jury, are convinced by a fair preponderance of the evidence that the defendant . . . was motivated by personal ill will, that is actual intent to do the plaintiff harm, or that the defendant . . . was guilty of gross negligence and recklessness, and not of just ordinary negligence or carelessness in publishing the matter complained of so as to indicate a wanton disregard of plaintiff's rights." The trial court's error in failing to require any finding of actual malice for an award of general damages makes it unnecessary for us to consider the sufficiency under the federal standard of the instructions regarding actual malice that were given as to punitive damages. [ Footnote 25 ] Accord, Coleman v. MacLennan, supra, 78 Kan., at 741, 98 P. at 292; Gough v. Tribune-Journal Co., 75 Idaho 502, 510, 275 P.2d 663, 668 (1954). [ Footnote 26 ] The Seventh Amendment does not, as respondent contends, preclude such an examination by this Court. That Amendment, providing that "no fact tried by a jury shall be otherwise reexamined in any Court of the United States than according to the rules of the common law," is applicable to state cases coming here. Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 , 166 U. S. 242 -243; cf. 76 U. S. Murray, 9 Wall. 274. But its ban on reexamination of facts does not preclude us from determining whether governing rules of federal law have been properly applied to the facts. "[T]his Court will review the finding of facts by a State court . . . where a conclusion of law as to a Federal right and a finding of fact are so intermingled as to make it necessary, in order to pass upon the Federal question, to analyze the facts." Fiske v. Kansas, 274 U. S. 380 , 274 U. S. 385 -386. See also Haynes v. Washington, 373 U. S. 503 , 373 U. S. 515 -516. [ Footnote 27 ] The Times has set forth in a booklet its "Advertising Acceptability Standards." Listed among the classes of advertising that the newspaper does not accept are advertisements that are "fraudulent or deceptive," that are "ambiguous in wording and . . . may mislead," and that contain "attacks of a personal character." In replying to respondent's interrogatories before the trial, the Secretary of the Times stated that, "as the advertisement made no attacks of a personal character upon any individual and otherwise met the advertising acceptability standards promulgated," it had been approved for publication. [ Footnote 28 ] Respondent's own testimony was that, "as Commissioner of Public Affairs, it is part of my duty to supervise the Police Department, and I certainly feel like it [a statement] is associated with me when it describes police activities." He thought that, "by virtue of being Police Commissioner and Commissioner of Public Affairs," he was charged with "any activity on the part of the Police Department." "When it describes police action, certainly I feel it reflects on me as an individual." He added that "[i]t is my feeling that it reflects not only on me, but on the other Commissioners and the community." Grover C. Hall testified that, to him, the third paragraph of the advertisement called to mind "the City government -- the Commissioners," and that, "now that you ask it, I would naturally think a little more about the police Commissioner, because his responsibility is exclusively with the constabulary." It was "the phrase about starvation" that led to the association; "the other didn't hit me with any particular force." Arnold D. Blackwell testified that the third paragraph was associated in his mind with "the Police Commissioner and the police force. The people on the police force." If he had believed the statement about the padlocking of the dining hall, he would have thought "that the people on our police force or the heads of our police force were acting without their jurisdiction, and would not be competent for the position." "I would assume that the Commissioner had ordered the police force to do that, and therefore it would be his responsibility." Harry W. Kaminsky associated the statement about "truckloads of police" with respondent, "because he is the Police Commissioner." He thought that the reference to arrests in the sixth paragraph "implicates the Police Department, I think, or the authorities that would do that -- arrest folks for speeding and loitering and such as that." Asked whether he would associate with respondent a newspaper report that the police had "beat somebody up or assaulted them on the streets of Montgomery," he replied: "I still say he is the Police Commissioner and those men are working directly under him, and therefore I would think that he would have something to do with it." In general, he said, "I look at Mr. Sullivan when I see the Police Department." H. M. Price, Sr., testified that he associated the first sentence of the third paragraph with respondent because: "I would just automatically consider that the Police Commissioner in Montgomery would have to put his approval on those kind of things as an individual." William M. Parker, Jr., testified that he associated the statements in the two paragraphs with "the Commissioners of the City of Montgomery," and, since respondent "was the Police Commissioner," he "thought of him first." He told the examining counsel: "I think, if you were the Police Commissioner, I would have thought it was speaking of you." Horace W. White, respondent's former employer, testified that the statement about "truckloads of police" made him think of respondent "as being the head of the Police Department." Asked whether he read the statement as charging respondent himself with ringing the campus or having shotguns and tear gas, he replied: "Well, I thought of his department being charged with it, yes, sir. He is the head of the Police Department, as I understand it." He further said that the reason he would have been unwilling to reemploy respondent if he had believed the advertisement was "the fact that he allowed the Police Department to do the things that the paper say he did." [ Footnote 29 ] Compare Ponder v. Cobb, 257 N.C. 281, 126 S.E.2d 67 (1962). [ Footnote 30 ] Insofar as the proposition means only that the statements about police conduct libeled respondent by implicitly criticizing his ability to run the Police Department, recovery is also precluded in this case by the doctrine of fair comment. See American Law Institute, Restatement of Torts (1938), § 607. Since the Fourteenth Amendment requires recognition of the conditional privilege for honest misstatements of fact, it follows that a defense of fair comment must be afforded for honest expression of opinion based upon privileged, as well as true, statements of fact. Both defenses are, of course, defeasible if the public official proves actual malice, as was not done here. MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring. I concur in reversing this half-million-dollar judgment against the New York Times Company and the four individual defendants. In reversing, the Court holds that "the Constitution delimits a State's power to award damages for libel in actions brought by public officials against critics of their official conduct." Ante, p. 376 U. S. 283 . I base my vote to reverse on the belief that the First and Fourteenth Amendments not merely "delimit" a State's power to award damages to "public officials against critics of their official conduct," but completely prohibit a State from exercising such a power. The Court goes on to hold that a State can subject such critics to damages if "actual malice" can be proved against them. "Malice," even as defined by the Court, is an elusive, abstract concept, hard to prove and hard to disprove. The requirement that malice be proved provides, at best, an evanescent protection for the right critically to discuss public affairs, and certainly does not measure up to the sturdy safeguard embodied in the First Amendment. Unlike the Court, therefore, I vote to reverse exclusively on the ground that the Times and the individual defendants had an absolute, unconditional constitutional right to publish in the Times advertisement their criticisms of the Montgomery agencies and officials. I do not base my vote to reverse on any failure to prove that these individual defendants signed the advertisement or that their criticism of the Police Department was aimed at the plaintiff Sullivan, who was then the Montgomery City Commissioner having supervision of the city's police; for present purposes, I assume these things were proved. Nor is my reason for reversal the size of the half-million-dollar judgment, large as it is. If Alabama has constitutional power to use its civil libel law to impose damages on the press for criticizing the way public officials perform or fail Page 376 U. S. 294 to perform their duties, I know of no provision in the Federal Constitution which either expressly or impliedly bars the State from fixing the amount of damages. The half-million-dollar verdict does give dramatic proof, however, that state libel laws threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials. The factual background of this case emphasizes the imminence and enormity of that threat. One of the acute and highly emotional issues in this country arises out of efforts of many people, even including some public officials, to continue state-commanded segregation of races in the public schools and other public places despite our several holdings that such a state practice is forbidden by the Fourteenth Amendment. Montgomery is one of the localities in which widespread hostility to desegregation has been manifested. This hostility has sometimes extended itself to persons who favor desegregation, particularly to so-called "outside agitators," a term which can be made to fit papers like the Times, which is published in New York. The scarcity of testimony to show that Commissioner Sullivan suffered any actual damages at all suggests that these feelings of hostility had at least as much to do with rendition of this half-million-dollar verdict as did an appraisal of damages. Viewed realistically, this record lends support to an inference that, instead of being damaged, Commissioner Sullivan's political, social, and financial prestige has likely been enhanced by the Times' publication. Moreover, a second half-million-dollar libel verdict against the Times based on the same advertisement has already been awarded to another Commissioner. There, a jury again gave the full amount claimed. There is no reason to believe that there are not more such huge verdicts lurking just around the corner for the Times or any other newspaper or broadcaster which Page 376 U. S. 295 might dare to criticize public officials. In fact, briefs before us show that, in Alabama, there are now pending eleven libel suits by local and state officials against the Times seeking $5,600,000, and five such suits against the Columbia Broadcasting System seeking $1,700,000. Moreover, this technique for harassing and punishing a free press -- now that it has been shown to be possible -- is by no means limited to cases with racial overtones; it can be used in other fields where public feelings may make, local as well as out-of-state, newspapers easy prey for libel verdict seekers. In my opinion, the Federal Constitution has dealt with this deadly danger to the press in the only way possible without leaving the free press open to destruction -- by granting the press an absolute immunity for criticism of the way public officials do their public duty. Compare Barr v. Matteo, 360 U. S. 564 . Stopgap measures like those the Court adopts are, in my judgment, not enough. This record certainly does not indicate that any different verdict would have been rendered here whatever the Court had charged the jury about "malice," "truth," "good motives," "justifiable ends," or any other legal formulas which, in theory, would protect the press. Nor does the record indicate that any of these legalistic words would have caused the courts below to set aside or to reduce the half-million-dollar verdict in any amount. I agree with the Court that the Fourteenth Amendment made the First applicable to the States. [ Footnote 2/1 ] This means to me that, since the adoption of the Fourteenth Amendment, a State has no more power than the Federal Government to use a civil libel law or any other law to impose damages for merely discussing public affairs and criticizing public officials. The power of the United Page 376 U. S. 296 States to do that is, in my judgment, precisely nil. Such was the general view held when the First Amendment was adopted, and ever since. [ Footnote 2/2 ] Congress never has sought to challenge this viewpoint by passing any civil libel law. It did pass the Sedition Act in 1798, [ Footnote 2/3 ] which made it a crime -- "seditious libel" -- to criticize federal officials or the Federal Government. As the Court's opinion correctly points out, however, ante, pp. 376 U. S. 273 -276, that Act came to an ignominious end and, by common consent, has generally been treated as having been a wholly unjustifiable and much to be regretted violation of the First Amendment. Since the First Amendment is now made applicable to the States by the Fourteenth, it no more permits the States to impose damages for libel than it does the Federal Government. We would, I think, more faithfully interpret the First Amendment by holding that, at the very least, it leaves the people and the press free to criticize officials and discuss public affairs with impunity. This Nation of ours elects many of its important officials; so do the States, the municipalities, the counties, and even many precincts. These officials are responsible to the people for the way they perform their duties. While our Court has held that some kinds of speech and writings, such as "obscenity," Roth v. United States, 354 U. S. 476 , and "fighting words," Chaplinsky v. New Hampshire, 315 U. S. 568 , are not expression within the protection of the First Amendment, [ Footnote 2/4 ] freedom to discuss public affairs and public officials Page 376 U. S. 297 is unquestionably, as the Court today holds, the kind of speech the First Amendment was primarily designed to keep within the area of free discussion. To punish the exercise of this right to discuss public affairs or to penalize it through libel judgments is to abridge or shut off discussion of the very kind most needed. This Nation, I suspect, can live in peace without libel suits based on public discussions of public affairs and public officials. But I doubt that a country can live in freedom where its people can be made to suffer physically or financially for criticizing their government, its actions, or its officials. "For a representative democracy ceases to exist the moment that the public functionaries are by any means absolved from their responsibility to their constituents, and this happens whenever the constituent can be restrained in any manner from speaking, writing, or publishing his opinions upon any public measure, or upon the conduct of those who may advise or execute it. [ Footnote 2/5 ]" An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment. [ Footnote 2/6 ] I regret that the Court has stopped short of this holding indispensable to preserve our free press from destruction. [ Footnote 2/1 ] See cases collected in Speiser v. Randall, 357 U. S. 513 , 357 U. S. 530 (concurring opinion). [ Footnote 2/2 ] See, e.g., 1 Tucker, Blackstone's Commentaries (1803), 297-299 (editor's appendix). St. George Tucker, a distinguished Virginia jurist, took part in the Annapolis Convention of 1786, sat on both state and federal courts, and was widely known for his writings on judicial and constitutional subjects. [ Footnote 2/3 ] Act of July 14, 1798, 1 Stat. 596. [ Footnote 2/4 ] But see Smith v. California, 361 U. S. 147 , 361 U. S. 155 (concurring opinion); Roth v. United States, 354 U. S. 476 , 354 U. S. 508 (dissenting opinion). [ Footnote 2/5 ] 1 Tucker, Blackstone's Commentaries (1803), 297 (editor's appendix); cf. Brant, Seditious Libel: Myth and Reality, 39 N.Y.U.L.Rev. 1. [ Footnote 2/6 ] Cf. Meiklejohn, Free Speech and Its Relation to Self-Government (1948). MR. JUSTICE GOLDBERG, with whom MR. JUSTICE DOUGLAS joins, concurring in the result. The Court today announces a constitutional standard which prohibits "a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with Page 376 U. S. 298 'actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Ante at 376 U. S. 279 -280. The Court thus rules that the Constitution gives citizens and newspapers a "conditional privilege" immunizing nonmalicious misstatements of fact regarding the official conduct of a government officer. The impressive array of history [ Footnote 3/1 ] and precedent marshaled by the Court, however, confirms my belief that the Constitution affords greater protection than that provided by the Court's standard to citizen and press in exercising the right of public criticism. In my view, the First and Fourteenth Amendments to the Constitution afford to the citizen and to the press an absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses. The prized American right "to speak one's mind," cf. Bridges v California, 314 U. S. 252 , 314 U. S. 270 , about public officials and affairs needs "breathing space to survive," NAACP v. Button, 371 U. S. 415 , 371 U. S. 433 . The right should not depend upon a probing by the jury of the motivation [ Footnote 3/2 ] of the citizen or press. The theory Page 376 U. S. 299 of our Constitution is that every citizen may speak his mind and every newspaper express its view on matters of public concern, and may not be barred from speaking or publishing because those in control of government think that what is said or written is unwise, unfair, false, or malicious. In a democratic society, one who assumes to act for the citizens in an executive, legislative, or judicial capacity must expect that his official acts will be commented upon and criticized. Such criticism cannot, in my opinion, be muzzled or deterred by the courts at the instance of public officials under the label of libel. It has been recognized that "prosecutions for libel on government have [no] place in the American system of jurisprudence." City of Chicago v. Tribune Co., 307 Ill. 595, 601, 139 N.E. 86, 88. I fully agree. Government, however, is not an abstraction; it is made up of individuals -- of governors responsible to the governed. In a democratic society, where men are free by ballots to remove those in power, any statement critical of governmental action is necessarily "of and concerning" the governors, and any statement critical of the governors' official conduct is necessarily "of and concerning" the government. If the rule that libel on government has no place in our Constitution is to have real meaning, then libel on the official conduct of the governors likewise can have no place in our Constitution. We must recognize that we are writing upon a clean slate. [ Footnote 3/3 ] As the Court notes, although there have been Page 376 U. S. 300 "statements of this Court to the effect that the Constitution does not protect libelous publications . . . , [n]one of the cases sustained the use of libel laws to impose sanctions upon expression critical of the official conduct of public officials." Ante at 376 U. S. 268 . We should be particularly careful, therefore, adequately to protect the liberties which are embodied in the First and Fourteenth Amendments. It may be urged that deliberately and maliciously false statements have no conceivable value as free speech. That argument, however, is not responsive to the real issue presented by this case, which is whether that freedom of speech which all agree is constitutionally protected can be effectively safeguarded by a rule allowing the imposition of liability upon a jury's evaluation of the speaker's state of mind. If individual citizens may be held liable in damages for strong words, which a jury finds false and maliciously motivated, there can be little doubt that public debate and advocacy will be constrained. And if newspapers, publishing advertisements dealing with public issues, thereby risk liability, there can also be little doubt that the ability of minority groups to secure publication of their views on public affairs and to seek support for their causes will be greatly diminished. Cf. Farmers Educational & Coop. Union v. WDAY, Inc., 360 U. S. 525 , 360 U. S. 530 . The opinion of the Court conclusively demonstrates the chilling effect of the Alabama libel laws on First Amendment freedoms Page 376 U. S. 301 in the area of race relations. The American Colonists were not willing, nor should we be, to take the risk that "[m]en who injure and oppress the people under their administration [and] provoke them to cry out and complain" will also be empowered to "make that very complaint the foundation for new oppressions and prosecutions." The Trial of John Peter Zenger, 17 Howell's St. Tr. 675, 721-722 (1735) (argument of counsel to the jury). To impose liability for critical, albeit erroneous or even malicious, comments on official conduct would effectively resurrect "the obsolete doctrine that the governed must not criticize their governors." Cf. Sweeney v. Patterson, 76 U.S.App.D.C. 23, 24, 128 F.2d 457, 458. Our national experience teaches that repressions breed hate, and "that hate menaces stable government." Whitney v. California, 274 U. S. 357 , 274 U. S. 375 (Brandeis, J., concurring). We should be ever mindful of the wise counsel of Chief Justice Hughes: "[I]mperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government." De Jonge v. Oregon, 299 U. S. 353 , 299 U. S. 365 . This is not to say that the Constitution protects defamatory statements directed against the private conduct of a public official or private citizen. Freedom of press and of speech insures that government will respond to the will of the people, and that changes may be obtained by peaceful means. Purely private defamation has little to do with the political ends of a self-governing society. The imposition of liability for private defamation does not Page 376 U. S. 302 abridge the freedom of public speech or any other freedom protected by the First Amendment. [ Footnote 3/4 ] This, of course, cannot be said "where public officials are concerned, or where public matters are involved. . . . [O]ne main function of the First Amendment is to ensure ample opportunity for the people to determine and resolve public issues. Where public matters are involved, the doubts should be resolved in favor of freedom of expression, rather than against it." Douglas, The Right of the People (1958), p. 41. In many jurisdictions, legislators, judges and executive officers are clothed with absolute immunity against liability for defamatory words uttered in the discharge of their public duties. See, e.g., Barr v. Matteo, 360 U. S. 564 ; City of Chicago v. Tribune Co., 307 Ill., at 610, 139 N.E. at 91. Judge Learned Hand ably summarized the policies underlying the rule: "It does indeed go without saying that an official who is, in fact, guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the Page 376 U. S. 303 case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again, the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance, it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. . . ." "The decisions have, indeed, always imposed as a limitation upon the immunity that the official's act must have been within the scope of his powers, and it can be argued that official powers, since they exist only for the public good, never cover occasions where the public good is not their aim, and hence that to exercise a power dishonestly is necessarily to overstep its bounds. A moment's reflection shows, however, that that cannot be the meaning of the limitation without defeating the whole doctrine. What is meant by saying that the officer must be acting within his power cannot be more than that the occasion must be such as would have justified the act, if he had been using his power for any of the purposes on whose account it was vested in him. . . ." Gregoire v. Biddle, 177 F.2d 579, 581. Page 376 U. S. 304 If the government official should be immune from libel actions, so that his ardor to serve the public will not be dampened and "fearless, vigorous, and effective administration of policies of government" not be inhibited, Barr v. Matteo, supra, at 360 U. S. 571 , then the citizen and the press should likewise be immune from libel actions for their criticism of official conduct. Their ardor as citizens will thus not be dampened, and they will be free "to applaud or to criticize the way public employees do their jobs, from the least to the most important." [ Footnote 3/5 ] If liability can attach to political criticism because it damages the reputation of a public official as a public official, then no critical citizen can safely utter anything but faint praise about the government or its officials. The vigorous criticism by press and citizen of the conduct of the government of the day by the officials of the day will soon yield to silence if officials in control of government agencies, instead of answering criticisms, can resort to friendly juries to forestall criticism of their official conduct. [ Footnote 3/6 ] The conclusion that the Constitution affords the citizen and the press an absolute privilege for criticism of official conduct does not leave the public official without defenses against unsubstantiated opinions or deliberate misstatements. "Under our system of government, counterargument and education are the weapons available to expose these matters, not abridgment . . . of free speech. . . ." Wood v. Georgia, 370 U. S. 375 , 370 U. S. 389 . The public Page 376 U. S. 305 official certainly has equal, if not greater, access than most private citizens to media of communication. In any event, despite the possibility that some excesses and abuses may go unremedied, we must recognize that "the people of this nation have ordained, in the light of history, that, in spite of the probability of excesses and abuses, [certain] liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy." Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 310 . As Mr. Justice Brandeis correctly observed, "sunlight is the most powerful of all disinfectants." [ Footnote 3/7 ] For these reasons, I strongly believe that the Constitution accords citizens and press an unconditional freedom to criticize official conduct. It necessarily follows that, in a case such as this, where all agree that the allegedly defamatory statements related to official conduct, the judgments for libel cannot constitutionally be sustained. [ Footnote 3/1 ] I fully agree with the Court that the attack upon the validity of the Sedition Act of 1798, 1 Stat. 596, "has carried the day in the court of history," ante at 376 U. S. 276 , and that the Act would today be declared unconstitutional. It should be pointed out, however, that the Sedition Act proscribed writings which were "false, scandalous and malicious. " (Emphasis added.) For prosecutions under the Sedition Act charging malice, see, e.g., Trial of Matthew Lyon (1798), in Wharton, State Trials of the United States (1849), p. 333; Trial of Thomas Cooper (1800), in id. at 659; Trial of Anthony Haswell (1800), in id. at 684; Trial of James Thompson Callender (1800), in id. at 688. [ Footnote 3/2 ] The requirement of proving actual malice or reckless disregard may, in the mind of the jury, add little to the requirement of proving falsity, a requirement which the Court recognizes not to be an adequate safeguard. The thought suggested by Mr. Justice Jackson in United States v. Ballard, 322 U. S. 78 , 322 U. S. 92 -93, is relevant here: "[A]s a matter of either practice or philosophy, I do not see how we can separate an issue as to what is believed from considerations as to what is believable. The most convincing proof that one believes his statements is to show that they have been true in his experience. Likewise, that one knowingly falsified is best proved by showing that what he said happened never did happen." See note 376 U.S. 254 fn3/4|>4, infra. [ Footnote 3/3 ] It was not until Gitlow v. New York, 268 U. S. 652 , decided in 1925, that it was intimated that the freedom of speech guaranteed by the First Amendment was applicable to the States by reason of the Fourteenth Amendment. Other intimations followed. See Whitney v. California, 274 U. S. 357 ; Fiske v. Kansas, 274 U. S. 380 . In 1931, Chief Justice Hughes, speaking for the Court in Stromberg v. California, 283 U. S. 359 , 283 U. S. 368 , declared: "It has been determined that the conception of liberty under the due process clause of the Fourteenth Amendment embraces the right of free speech." Thus, we deal with a constitutional principle enunciated less than four decades ago, and consider for the first time the application of that principle to issues arising in libel cases brought by state officials. [ Footnote 3/4 ] In most cases, as in the case at bar, there will be little difficulty in distinguishing defamatory speech relating to private conduct from that relating to official conduct. I recognize, of course, that there will be a gray area. The difficulties of applying a public-private standard are, however, certainly of a different genre from those attending the differentiation between a malicious and nonmalicious state of mind. If the constitutional standard is to be shaped by a concept of malice, the speaker takes the risk not only that the jury will inaccurately determine his state of mind, but also that the jury will fail properly to apply the constitutional standard set by the elusive concept of malice. See 376 U.S. 254 fn3/2|>note 2, supra. [ Footnote 3/5 ] MR. JUSTICE BLACK, concurring in Barr v. Matteo, 360 U. S. 564 , 360 U. S. 577 , observed that: "The effective functioning of a free government like ours depends largely on the force of an informed public opinion. This calls for the widest possible understanding of the quality of government service rendered by all elective or appointed public officials or employees. Such an informed understanding depends, of course, on the freedom people have to applaud or to criticize the way public employees do their jobs, from the least to the most important." [ Footnote 3/6 ] See notes 2 4 supra. [ Footnote 3/7 ] See Freund, The Supreme Court of the United States (1949), p. 61.

In New York Times Co. v. Sullivan, the US Supreme Court held that public officials cannot be awarded damages for defamatory statements relating to their official conduct unless they can prove "actual malice." This means that the statement was made with knowledge of its falsity or with reckless disregard for the truth. The Court found that the First and Fourteenth Amendments protect expression, even if it is in the form of a paid advertisement, and that factual error or defamatory content are not enough to warrant damages without proof of actual malice. This case set an important precedent for freedom of speech and press, especially in the context of criticizing public officials.

Free Speech

Beauharnais v. Illinois

https://supreme.justia.com/cases/federal/us/343/250/

U.S. Supreme Court Beauharnais v. Illinois, 343 U.S. 250 (1952) Beauharnais v. Illinois No. 118 Argued November 28, 1951 Decided April 28, 1952 343 U.S. 250 CERTIORARI TO THE SUPREME COURT OF ILLINOIS Syllabus Over his claim that the statute violated the liberty of speech and of the press guaranteed as against the States by the Due Process Clause of the Fourteenth Amendment and was void for vagueness, petitioner was convicted in a state court for distributing on the streets of Chicago anti-Negro leaflets in violation of Ill.Rev.Stat., 1949, c. 38, § 471, which makes it a crime to exhibit in any public place any publication which "portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion" which "exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy." Held: 1. As construed and applied in this case, the statute does not violate the liberty of speech and of the press guaranteed as against the States by ihe Due Process Clause of the Fourteenth Amendment. Pp. 343 U. S. 251 -264. 2. As construed and applied in this case, the statute is not void for vagueness. Winters v. New York, 333 U. S. 507 ; Stromberg v. California, 283 U. S. 359 ; Thornhill v. Alabama, 310 U. S. 88 ; and Terminiello v. Chicago, 337 U. S. 1 , distinguished. P. 343 U. S. 264 . 3. Since petitioner did not, by appropriate steps in the trial court, seek to justify his utterance as "fair comment" or as privileged as a means for redressing grievances, those hypothetical defenses cannot be considered by this Court. Pp. 343 U. S. 264 -265. 4. Since the Illinois Supreme Court construed this statute as a form of criminal libel law, and truth of the utterance is not a defense to a charge of criminal libel under Illinois law unless the publication is also made "with good motives and for justifiable ends," petitioner was not denied due process by the trial court's rejection of a proffer of proof which did not satisfy this requirement. Pp. 343 U. S. 253 -254, 343 U. S. 265 -266. 5. Since libelous utterances are not within the area of constitutionally protected speech, it is not necessary for this Court to consider the issues raised by the denial of petitioner's request that the jury be instructed that, in order to convict, they must find that the publication complained of was likely to produce a "clear and present danger" of a substantial evil. Pp. 343 U. S. 253 , 343 U. S. 266 . 408 Ill. 512 , 97 N.E.2d 343 , affirmed. Page 343 U. S. 251 The Supreme Court of Illinois sustained petitioner's conviction of a violation of Ill.Rev.Stat., 1949, c. 38 § 471, over his objection that the statute was invalid under the Fourteenth Amendment. 408 Ill. 512 , 97 N.E.2d 343 . This Court granted certiorari. 342 U.S. 809. Affirmed, p. 343 U. S. 267 . MR. JUSTICE FRANKFURTER delivered the opinion of the Court. The petitioner was convicted upon information in the Municipal Court of Chicago of violating § 224a of Division 1 of the Illinois Criminal Code, Ill.Rev.Stat.1949, c. 38, § 471. He was fined $200. The section provides: "It shall be unlawful for any person, firm or corporation to manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place in this state any lithograph, moving picture, play, drama or sketch, which publication or exhibition portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which said publication or exhibition exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots. . . ." Beauharnais challenged the statute as violating the liberty of speech and of the press guaranteed as against the States by the Due Process Clause of the Fourteenth Amendment, and as too vague, under the restrictions implicit in the Page 343 U. S. 252 same Clause, to support conviction for crime. The Illinois courts rejected these contentions and sustained defendant's conviction. 408 Ill. 512 , 97 N.E.2d 343 . We granted certiorari in view of the serious questions raised concerning the limitations imposed by the Fourteenth Amendment on the power of a State to punish utterances promoting friction among racial and religious groups. 342 U.S. 809. The information, cast generally in the terms of the statute, charged that Beauharnais "did unlawfully . . . exhibit in public places lithographs, which publications portray depravity, criminality, unchastity or lack of virtue of citizens of Negro race and color and which exproses [ sic ] citizens of Illinois of the Negro race and color to contempt, derision, or obloquy. . . ." The lithograph complained of was a leaflet setting forth a petition calling on the Mayor and City Council of Chicago "to halt the further encroachment, harassment and invasion of white people, their property, neighborhoods and persons, by the Negro. . . ." Below was a call for "One million self-respecting white people in Chicago to unite . . . ," with the statement added that, "If persuasion and the need to prevent the white race from becoming mongrelized by the negro will not unite us, then the aggressions . . . rapes, robberies, knives, guns and marijuana of the negro, surely will." This, with more language, similar if not so violent, concluded with an attached application for membership in the White Circle League of America, Inc. The testimony at the trial was substantially undisputed. From it the jury could find that Beauharnais was president of the White Circle League; that, at a meeting on January 6, 1950, he passed out bundles of the lithographs in question, together with other literature, to volunteers for distribution on downtown Chicago street corners the following day; that he carefully organized that distribution, giving detailed instructions for it; and that Page 343 U. S. 253 the leaflets were in fact distributed on January 7 in accordance with his plan and instructions. The court, together with other charges on burden of proof and the like, told the jury, "if you find . . . that the defendant, Joseph Beauharnais, did . . . manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place the lithograph . . . , then you are to find the defendant guilty. . . ." He refused to charge the jury, as requested by the defendant, that, in order to convict, they must find "that the article complained of was likely to produce a clear and present danger of a serious substantive evil that rises for above public inconvenience, annoyance or unrest." Upon this evidence and these instructions, the jury brought in the conviction here for review. The statute before us is not a catchall enactment left at large by the State court which applied it. Cf. Thornhill v. Alabama, 310 U. S. 88 ; Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 307 . It is a law specifically directed at a defined evil, its language drawing from history and practice in Illinois and in more than a score of other jurisdictions a meaning confirmed by the Supreme Court of that State in upholding this conviction. We do not, therefore, parse the statute as grammarians, or treat it as an abstract exercise in lexicography. We read it in the animating context of well-defined usage, Nash v. United States, 229 U. S. 373 , and State court construction which determines its meaning for us. Cox v. New Hampshire, 312 U. S. 569 ; Chaplinsky v. New Hampshire, 315 U. S. 568 . The Illinois Supreme Court tells us that § 224a "is a form of criminal libel law." 408 Ill. 512 , 517, 97 N.E.2d 343 , 346. The defendant, the trial court and the Supreme Court consistently treated it as such. The defendant offered evidence tending to prove the truth of parts of the utterance, and the courts below considered and disposed of Page 343 U. S. 254 this offer in terms of ordinary criminal libel precedents. [ Footnote 1 ] Section 224a does not deal with the defense of truth, but by the Illinois Constitution, Art. II, § 4, S.H.A., "in all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense." See also Ill.Rev.Stat., 1949, c. 38, § 404. Similarly, the action of the trial court in deciding as a matter of law the libelous character of the utterance, leaving to the jury only the question of publication, follows the settled rule in prosecutions for libel in Illinois and other States. [ Footnote 2 ] Moreover, the Supreme Court's characterization of the words prohibited by the statute as those "liable to cause violence and disorder" paraphrases the traditional justification for punishing libels criminally, namely their "tendency to cause breach of the peace." [ Footnote 3 ] Libel of an individual was a common law crime, and thus criminal in the colonies. Indeed, at common law, truth or good motives was no defense. In the first decades after the adoption of the Constitution, this was changed by judicial decision, statute or constitution in most States, but nowhere was there any suggestion that Page 343 U. S. 255 the crime of libel be abolished. [ Footnote 4 ] Today, every American jurisdiction -- the forty-eight States, the District of Columbia, Alaska, Hawaii and Puerto Rico -- punish libels directed at individuals. [ Footnote 5 ] "There are certain well defined Page 343 U. S. 256 and narrowly limited classes of speech the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words -- those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances Page 343 U. S. 257 are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." "Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument." " Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 309 -310." Such were the views of a unanimous Court in Chaplinsky v. New Hampshire, supra, at 315 U. S. 571 -572. [ Footnote 6 ] No one will gainsay that it is libelous falsely to charge another with being a rapist, robber, carrier of knives and Page 343 U. S. 258 guns, and user of marijuana. The precise question before us, then, is whether the protection of "liberty" in the Due Process Clause of the Fourteenth Amendment prevents a State from punishing such libels -- as criminal libel has been defined, limited and constitutionally recognized time out of mind -- directed at designated collectivities and flagrantly disseminated. There is even authority, however dubious, that such utterances were also crimes at common law. [ Footnote 7 ] It is certainly clear that some American jurisdictions have sanctioned their punishment under ordinary criminal libel statutes. [ Footnote 8 ] We cannot say, however, that the question is concluded by history and practice. But if an utterance directed at an individual may be the object of criminal sanctions, we cannot deny to a State power to punish the same utterance directed at a defined group unless we can say that this a willful and purposeless restriction unrelated to the peace and wellbeing of the State. Illinois did not have to look beyond her own borders or await the tragic experience of the last three decades [ Footnote 9 ] Page 343 U. S. 259 to conclude that wilful purveyors of falsehood concerning racial and religious groups promote strife and tend powerfully to obstruct the manifold adjustments required for free, ordered life in a metropolitan, polyglot community. From the murder of the abolitionist Lovejoy in 1837 to the Cicero riots of 1951, Illinois has been the scene of exacerbated tension between races, often flaring into violence and destruction. [ Footnote 10 ] In many of these outbreaks, utterances of the character here in question, so the Illinois legislature could conclude, played a significant part. [ Footnote 11 ] The law was passed on June 29, 1917, at a time when the State was struggling to assimilate vast numbers of new inhabitants, as yet concentrated in discrete racial or national or religious groups -- foreign-born brought to it by the crest of the great wave of immigration, and Negroes attracted by jobs in war plants and the allurements Page 343 U. S. 260 of northern claims. [ Footnote 12 ] Nine years erlier, in the very city where the legislature sat, what is said to be the first northern race riot had cost the lives of six people, left hundreds of Negroes homeless, and shocked citizens into action far beyond the borders of the State. [ Footnote 13 ] Less than a month before the bill was enacted, East St. Louis had seen a day's rioting, prelude to an outbreak, only four days after the bill became law, so bloody that it led to Congressional investigation. [ Footnote 14 ] A series of bombings had begun which was to culminate two years later in the awful race riot which held Chicago in its grip for seven days in Page 343 U. S. 261 the summer of 1919. [ Footnote 15 ] Nor has tension and violence between the groups defined in the statute been limited in Illinois to clashes between whites and Negroes. In the face of this history and its frequent obligato of extreme racial and religious propaganda, we would deny experience to say that the Illinois Legislature was without reason in seeking ways to curb false or malicious defamation of racial and religious groups, made in public places and by means calculated to have a powerful emotional impact on those to whom it was presented. "There are limits to the exercise of these liberties [of speech and of the press]. The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the states appropriately may punish. [ Footnote 16 ]" This was the conclusion, again of a unanimous Court, in 1940. Cantwell v. Connecticut, supra, at 310 U. S. 310 . It may be argued, and weightily, that this legislation will not help matters; that tension and on occasion Page 343 U. S. 262 violence between racial and religious groups must be traced to causes more deeply embedded in our society than the rantings of modern Know-Nothings. [ Footnote 17 ] Only those lacking responsible humility will have a confident solution for problems as intractable as the frictions attributable to differences of race, color or religion. This being so, it would be out of bounds for the judiciary to deny the legislature a choice of policy, provided it is not unrelated to the problem and not forbidden by some explicit limitation on the State's power. That the legislative remedy might not in practice mitigate the evil, or might itself raise new problems, would only manifest once more the paradox of reform. It is the price to be paid for the trial and error inherent in legislative efforts to deal with obstinate social issues. "The science of government is the most abstruse of all sciences if, indeed, that can be called a science which has but few fixed principles, and practically consists in little more than the exercise of a sound discretion, applied to the exigencies of the state as they arise. It is the science of experiment." Anderson v. Dunn , 6 Wheat. 204, 19 U. S. 226 . Certainly the Due Process Clause does not require the legislature to be in the vanguard of science -- especially sciences as young as human ecology and cultural anthropology. See Tigner v. Texas, 310 U. S. 141 , 310 U. S. 148 . Long ago, this Court recognized that the economic rights of an individual may depend for the effectiveness of their enforcement on rights in the group, even though not formally corporate, to which he belongs. American Steel Foundries v. Tri-City Council, 257 U. S. 184 , 189 [argument of counsel -- omitted]. Such group protection on behalf of the individual may, for all we know, be a need not confined to the part that a trade union plays in effectuating rights abstractly recognized as belonging Page 343 U. S. 263 to its members. It is not within our competence to confirm or deny claims of social scientists as to the dependence of the individual on the position of his racial or religious group in the community. It would, however, be arrant dogmatism, quite outside the scope of our authority in passing on the powers of a State, for us to deny that the Illinois Legislature may warrantably believe that a man's job and his educational opportunities and the dignity accorded him may depend as much on the reputation of the racial and religious group to which he willy-nilly belongs, as on his own merits. This being so, we are precluded from saying that speech concededly punishable when immediately directed at individuals cannot be outlawed if directed at groups with whose position and esteem in society the affiliated individual may be inextricably involved. We are warned that the choice open to the Illinois legislature here may be abused, that the law may be discriminatorily enforced; prohibiting libel of a creed or of a racial group, we are told, is but a step from prohibiting libel of a political party. [ Footnote 18 ] Every power may be abused, but the possibility of abuse is a poor reason for denying Illinois the power to adopt measures against criminal libels sanctioned by centuries of Anglo-American law. "While this Court sits," it retains and exercises authority to nullify action which encroaches on freedom of utterance Page 343 U. S. 264 under the guise of punishing libel. Of course discussion cannot be denied and the right, as well as the duty, of criticism must not be stifled. The scope of the statute before us, as construed by the Illinois court, disposes of the contention that the conduct prohibited by the law is so ill-defined that judges and juries in applying the statute and men in acting cannot draw from it adequate standards to guide them. The clarifying construction and fixed usage which govern the meaning of the enactment before us were not present, so the Court found, in the New York law held invalid in Winters v. New York, 333 U. S. 507 . Nor, thus construed and limited, is the act so broad that the general verdict of guilty on an indictment drawn in the statutory language might have been predicated on constitutionally protected conduct. On this score, the conviction here reviewed differs from those upset in Stromberg v. California, 283 U. S. 359 ; Thornhill v. Alabama, 310 U. S. 88 ; and Terminiello v. City of Chicago, 337 U. S. 1 . Even the latter case did not hold that the unconstitutionality of a statute is established because the speech prohibited by it raises a ruckus. It is suggested that, while it was clearly within the constitutional power of Illinois to punish this utterance if the proceeding were properly safeguarded, in this particular case, Illinois denied the defendant rights which the Due Process Clause commands. Specifically, it is argued that the defendant was not permitted to raise at the trial defenses constitutionally guaranteed in a criminal libel prosecution: (1) the defense of truth; (2) justification of the utterance as "fair comment"; and (3) its privilege as a means for redressing grievances. Neither by proffer of evidence, requests for instructions, nor motion before or after verdict did the defendant seek to justify his utterance as "fair comment" or as privileged. Nor has the defendant urged as a ground for reversing his Page 343 U. S. 265 conviction in this Court that his opportunity to make those defenses was denied below. And so, whether a prosecution for libel of a racial or religious group is unconstitutionally invalid where the State did deny the defendant such opportunities is not before us. [ Footnote 19 ] Certainly the State may cast the burden of justifying what is patent defamation upon the defamer. The benefits of hypothetical defenses, never raised below or pressed upon us, are not to be invoked in the abstract. As to the defense of truth, Illinois, in common with many States, requires a showing not only that the utterance state the facts, but also that the publication be made "with good motives and for justifable ends." Ill.Const. Art. II, § 4. [ Footnote 20 ] Both elements are necessary if the defense is to prevail. What has been called "the common sense of American criminal law," as formulated, with regard to necessary safeguards in criminal libel prosecutions, in the New York Constitutional of 1821, Art. VII, §8, has been adopted in terms by Illinois. The teaching of a century and a half of criminal libel prosecutions in this country Page 343 U. S. 266 would go by the board if we were to hold that Illinois was not within her rights in making this combined requirement. Assuming that defendant's offer of proof directed to a part of the defense was adequate, [ Footnote 21 ] it did not satisfy the entire requirement which Illinois could exact. [ Footnote 22 ] Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the State courts, to consider the issues behind the phrase "clear and present danger." Certainly no one would contend that obscene speech, for example, may be punished only upon a showing of such circumstances. Libel, as we have seen, is in the same class. We find no warrant in the Constitution for denying to Illinois the power to pass the law here under attack. [ Footnote 23 ] But Page 343 U. S. 267 it bears repeating -- although it should not -- that our finding that the law is not constitutionally objectionable carries no implication of approval of the wisdom of the legislation or of its efficacy. These questions may raise doubts in our minds, as well as in others. It is not for us, however, to make the legislative judgment. We are not at liberty to erect those doubts into fundamental law. Affirmed. [ Footnote 1 ] 408 Ill. 512 , 518, 97 N.E.2d 343 , 346, 347. Illinois law requires that, for the defense to prevail, the truth of all facts in the utterance must be shown together with good motive for publication. People v. Strauch, 247 Ill. 220, 93 N.E. 126; People v. Fuller, 238 Ill. 116, 87 N.E. 336; cf. Ogren v. Rockford Star Printing Co., 288 Ill. 405, 123 N.E. 587. [ Footnote 2 ] See, e.g., State v. Sterman, 199 Iowa 569, 202 N.W. 222; State v. Howard, 169 N.C. 312, 313, 84 S.E. 807, 808; cf. Ogren v. Rockford Star Printing Co., supra. [ Footnote 3 ] See, e.g., People v. Spielman, 318 Ill. 482, 489, 149 N.E. 466, 469; Odgers, Libel and Slander (6th ed.), 368; Kennerly v. Hennessy, 68 Fla. 138, 66 So. 729, 19 A.L.R. 1470. Some States hold, however, that injury to reputation, as in civil libel, and not tendency to breach of the peace, is the gravamen of the offense. See Tanenhaus, Group Libel, 35 Cornell L.Q. 261, 273 and n. 67. [ Footnote 4 ] For a brief account of this development see Warren, History of the American Bar, 236-239. See also correspondence between Chief Justice Cushing of Massachusetts and John Adams, published in 27 Mass.L.Q. 11-16 (Oct.1942). Jefferson explained in a letter to Abigail Adams, dated September 11, 1804, that to strike down the Alien and Sedition Act would not "remove all restraint from the overwhelming torrent of slander which is confounding all vice and virtue, all truth and falsehood in the US. The power to do that is fully possessed by the several state legislatures." See Dennis v. United States, 341 U. S. 494 , 341 U. S. 522 , note 4. See Miller, Crisis in Freedom, 168-169, 231-232. See also provisions as to criminal libel in Edward Livingston's famous draft System of Penal Law for Louisiana, 2 Works of Edward Livingston 100-108. [ Footnote 5 ] In eight States, the offense is punished as at common law, without legislative enactment. State v. Roberts, 2 Marv. (Del.), 450, 43 A. 252; Cole v. Commonwealth, 222 Ky. 350, 300 S.W. 907; Robinson v. State, 108 Md. 644, 71 A. 433; Commonwealth v. Canter, 269 Mass. 359, 168 N.E. 790; State v. Burnham, 9 N.H. 34; State v. Spear, 13 R.I. 324; State v. Sutton, 74 Vt. 12, 52 A. 116; State v. Payne, 87 W.Va. 102, 104 S.E. 288. Twelve other jurisdictions make "libel" a crime by statute, without defining the term. Ala.Code 1940, Tit. 14, § 347; Alaska Comp.Laws Ann.1949, § 65-4-28; D.C.Code 1940, § 22-2301; Fla.Stat.Ann. § 836.01; Burns' Ind.Stat.1933, § 10-3201; Miss.Code 1942, § 2268; Neb.Rev.Stat.1943, §28-440; N.J.Stat.Ann. § 2:146-1; N.C.Gen.Stat.1943, § 14-47; Page's Ohio Gen.Code 1939, § 13383; Wis.Stat.1949, § 348.41; Wyo.Comp.Stat.1945, § 9-1601. Thus, twenty American jurisdictions punish "libel" as defined by the case-by-case common law development. The remaining jurisdictions have sought to cast the common law definition in a statutory form of words. Two formulas have been popular. Eleven jurisdictions, Illinois among them, have accepted with minor variations the following: "A libel is a malicious defamation, expressed either by printing, or by signs or pictures, or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation or publish the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, ridicule, or financial injury." Smith-Hurd Ill.Ann.Stat.1936, c. 38, § 402. Ariz.Code Ann.1939, §43-3501; Ark.Stat.1947, § 41-2401; Deering's Cal.Penal Code 1949, § 248; Colo.Stat.Ann.1935, c. 48, § 199; Ga.Code Ann.1936, § 26-2101; Idaho Code 1947, § 18-4801; Mont.Rev.Codes 1947, § 94-2801; Nev.Comp.Laws 1929, § 10110; P.R.Codigo Penal 1937, § 243; Utah Code Ann.1943, § 103-38-1; cf. Virgin Islands Code 1921, Tit. IV, c. 5, § 36. The other version, again with minor variations, has found favor in twelve jurisdictions. "A libel is a malicious defamation of a person, made public by any printing, writing, sign, picture, representation, or effigy, tending to provoke him to wrath or expose him to public hatred, contempt, or ridicule, or to deprive him of the benefits of public confidence and social intercourse; or any malicious defamation, made public as aforesaid, designed to blacken and vilify the memory of one who is dead, and tending to scandalize or provoke his surviving relatives or friends." Iowa Code Ann. § 737.1; Kan.Gen.Stat.1949, § 21-2401; Dart's La.Crim.Code 1935, Art. 740-47; Me.Rev.Stat.1944, c. 117, § 30; Minn.Stat.1949, § 619.51; Mo.Rev.Stat.1949, § 559.410; McKinney's N.Y.Laws, Penal Law, § 1340; N.D.Rev.Code 1943, § 12-2801; Okl.Stat.Ann. Tit. 21, § 771; Purdon's Pa.Stat.Ann. Tit. 18, § 4412; Williams Tenn.Code 1934, §§ 11021, 11022; Remington's Wash.Rev.Stat.1932, § 2424. The remaining nine jurisdictions have definitions of criminal libel which fall into no common pattern. See Conn.Gen.Stat.1949, § 8218; Hawaii Rev.Laws 1945, § 11450; Mich.Comp.Laws 1948, § 750-370; N.M.Stat.1941, §§ 41-2701, 41-2708; Ore.Comp.Laws 1940, § 23-437; S.C.Code 1942, § 1395; S.D.Code 1939, §13. 3401; Vernon's Tex.Penal Stat. 1948, Arts. 1269, 1275; Va.Code 1950, § 18-133. Our examination of the homogeneity of these statutory definitons of criminal libel might well begin and end with the words "virtue" and "ridicule." Of thirty-two jurisdictions, twelve outlaw statements impeaching the "virtue" of another; eleven of these, and fifteen more-twenty-six in all-prohibit utterances tending to bring another into "public ridicule." For the common law definition, applicable in the twenty jurisdictions first noted above, see L. Hand, J., in Grant v. Reader's Digest Ass'n, 151 F.2d 733, 735, where he speaks of defining libel "in accordance with the usual rubric, as consisting of utterances which arouse "hatred, contempt, scorn, obloquy or shame," and the like." Cf. Restatement, Torts, § 559, comment (b); Odgers, Libel and Slander (6th ed.), 16-17; Newell, Slander and Libel (4th ed.), 1-2. Even a cursory examination of these enactments and common law pronouncements demonstrates that Illinois, in § 224a, was using a form of words which invoked the familiar common law of libel to define the prohibited utterances. The defendant and the Illinois courts, as we have seen, understood this and acted upon it. [ Footnote 6 ] In all but five States, the constitutional guarantee of free speech to every person is explicitly qualified by holding him "responsible for the abuse of that right." See Pennekamp v. Florida, 328 U. S. 331 , 328 U. S. 356 , note 5. See Jefferson in Kentucky Resolutions of 1798 and 1799, 4 Elliot's Debates 540-541, and in an undated draft prepared, but not used, for his December 8, 1801, Message to Congress, Library of Congress Jefferson Papers, Vol. 119, Leaf 20569. In Carlson v. California, 310 U. S. 106 , 310 U. S. 112 , we noted that the statute there invalidated made "no exceptions with respect to the truthfulness and restraint of the information conveyed. . . ." [ Footnote 7 ] Compare reports of King v. Osborne in 2 Barn.K.B. 138, 166, 94 Eng.Rep. 406, 425; 2 Swans. 503, n ( c ), 36 Eng.Rep. 705, 717; W.Kel. 230, 25 Eng.Rep. 584 (1732). The present Attorney General of England asserted that this case obviated the need of special group libel legislation for Great Britain. See The (London) Times, March 26, 1952, p. 2, col. 4. See also Odgers, Libel and Slander (6th ed.), 369; Tanenhaus, Group Libel, 35 Cornell L.Q. 261, 267-269. [ Footnote 8 ] One of the leading cases arose in Illinois. People v. Spielman, 318 Ill. 482, 149 N.E. 466 (1925), sustaining a conviction for libel on the members of the American Legion. The authorities are collected and discussed in Tanenhaus, Group Libel, 35 Cornell L.Q. 261, 269-276. [ Footnote 9 ] See, e.g., Loewenstein, Legislative Control of Political Extremism in European Democracies, 38 Col.L.Rev. 591 and 725; Riesman, Democracy and Defamation, 42 Col.L.Rev. 727, 1085 and 1282; Public Order Act, 1936, 1 Edw. VIII and 1 Geo. VI, c. 6, and 317 H.C.Deb. 1349-1473 (5th ser. 1936); 318 H.C.Deb. 49-193, 581-710, 1659-1785, 2781-2784 (5th ser. 1936); 103 H.L.Deb. 741-773, 961-972 (5th ser. 1936). [ Footnote 10 ] See generally The Chicago Commission on Race Relations, The Negro in Chicago, 1-78, and passim (University of Chicago Press, 1922); Research Memorandum No. 5, First Annual Rep.Ill. Inter-Racial Comm'n (1944). [ Footnote 11 ] The May 28, 1917, riot in East St. Louis, Illinois, was preceded by a violently inflammatory speech to unemployed workmen by a prominent lawyer of the town. Report of the Special Committee Authorized by Congress to Investigate the East St. Louis Riots, H.R. Doc. No. 1231, 65th Cong., 2d Sess. 11; Chicago Commission on Race Relations, The Negro in Chicago, 75. And see id. at 118-122 for literature circulated by real estate associations and other groups during the series of bombings leading up to the Chicago riots of 1919. For the Commission's comments on the role of propaganda in promoting race frictions, see id. at 589, 638-639. [ Footnote 12 ] Tables in Drake and Cayton, Black Metropolis, 8, show that, between 1900 and 1920, the number of foreign-born in Chicago increased by over 1/3, and the Negro population trebled. United States census figures show the following population growth for the State as a whole and selected counties: bwm: Illinois Cook County St. Clair County (Chicago) (East St. Louis) Total Negro Total Negro Total Negro 1900 4,821,550 85,078 1,838,735 31,838 86,685 3,987 1910 5,638,591 109,049 2,405,233 46,627 119,870 8,110 1920 6,485,280 182,274 3,053,017 115,238 136,520 10,136 1930 7,630,654 328,972 3,982,123 246,992 157,775 15,550 1940 7,897,241 387,446 4,063,342 249,157 166,899 21,567 1950 8,712,176 645,989 4,508,792 521,007 205,995 34,566 ewm: For an account of these vast population movements entailing great social maladjustments, see Drake and Cayton, Black Metropolis, 8-18, 31-65; Chicago Commission on Race Relations, The Negro in Chicago, 79-105; Carl Sandburg, The Chicago Race Riots, 9-30. [ Footnote 13 ] See Walling, Race War in the North, 65 The Independent 529 (1908). This article apparently led to the founding of the National Association for the Advancement of Colored People. Ovington, How the National Association for the Advancement of Colored People Began, 8 Crisis 184 (1914). See also Chicago Commission on Race Relations, The Negro in Chicago, 67-71. [ Footnote 14 ] Report of the Special Committee Authorized by Congress to Investigate the East St. Louis Riots, H.R. Doc. No. 1231, 65th Cong., 2d Sess. See also The Massacre of East St. Louis, 14 Crisis 219 (1917). [ Footnote 15 ] Chicago, Commission on Race Relations, The Negro in Chicago 122-133. [ Footnote 16 ] The utterances here in question "are not," as a detached student of the problem has noted, "the daily grist of vituperative political debate. Nor do they represent the frothy imaginings of lunatics, or the 'idle' gossip of a country town. Rather, they indicate the systematic avalanche of falsehoods which are circulated concerning the various groups, classes and races which make up the countries of the western world." Riesman, Democracy and Defamation; Control of Group Libel, 42 Col.L.Rev. at 727. Professor Riesman continues: "Such purposeful attacks are nothing new, of course. . . . What is new, however, is the existence of a mobile public opinion as the controlling force in politics, and the systematic manipulation of that opinion by the use of calculated falsehood and vilification." Id. at 728. [ Footnote 17 ] See, e.g., L. Hand, J., in a symposium in The Saturday Review of Literature, Mar. 15, 1947, pp. 23-24; Report of the Committee on the Law of Defamation, Cmd. 7536, 11 (1948). [ Footnote 18 ] It deserves emphasis that there is no such attempt in this statute. The rubric "race, color, creed or religion" which describes the type of group, libel of which is punishable, has attained too fixed a meaning to permit political groups to be brought within it. If a statute sought to outlaw libels of political parties, quite different problems not now before us would be raised. For one thing, the whole doctrine of fair comment as indispensable to the democratic political process would come into play. See People v. Fuller, supra, 238 Ill. at 125, 87 N.E. 336 at 338-339; Commonwealth v. Pratt, 208 Mass. 553, 559, 95 N.E. 105, 106. Political parties, like public men, are, as it were, public property. [ Footnote 19 ] Indeed, such defenses are evidently protected by Illinois law. See Ill.Const. Art. II, § 17, guaranteeing the right of the people to apply for redress of grievances. And see People v. Fuller, 238 Ill. 116, 125, 87 N.E. 336, 338-339, on the defense of "fair comment" in criminal libel prosecutions. [ Footnote 20 ] The present constitution, adopted in 1870, is Illinois' third. The first two preserved the defense of truth in certain types of libel prosecutions: "In prosecutions for the publication of papers investigating the official conduct of officers, or of men acting in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have the right of determining both the law and the fact, under the direction of the court, as in other cases." Ill.Const.1818, Art. VIII, § 23; Ill.Const.1848, Art. XIII, § 24. The combined requirement of truth and good motives and justifiable ends, available as a defense in all libel suits, was adopted with the Constitution of 1870. [ Footnote 21 ] Defendant offered to show (1) that crimes were more frequent in districts heavily populated by Negroes than in those where whites predominated; (2) three specific crimes allegedly committed by Negroes, and (3) that property values declined when Negroes moved into a neighborhood. It is doubtful whether such a showing is as extensive as the defamatory allegations in the lithograph circulated by the defendant. [ Footnote 22 ] The defense attorney put a few questions to the defendant on the witness stand which tended toward elaborating his motives in circulating the lithograph complained of. When objections to these questions were sustained, no offer of proof was made, in contrast to the rather elaborate offer which followed the refusal to permit questioning tending to show the truth of the matter. Indeed, in that offer itself, despite its considerable detail, no mention was made of the necessary element of good motive or justifiable ends. In any event, the question of exclusion of this testimony going to motive was not raised by motion in the trial court, on appeal in Illinois, or before us. [ Footnote 23 ] The law struck down by the New Jersey court in New Jersey v. Klapprott, 127 N.J.L. 395, 22 A.2d 877, 880, was quite different than the one before us, and was not limited, as is the Illinois statute, by construction or usage. Indeed, in that case, the court emphasized that "[i]t is not a case of libel," and contrasted the history at common law of criminal prosecutions for written and spoken defamation. MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS concurs, dissenting. This case is here because Illinois inflicted criminal punishment on Beauharnais for causing the distribution of leaflets in the city of Chicago. The conviction rests on the leaflet's contents, not on the time, manner or place of distribution. Beauharnais is head of an organization that opposes amalgamation and favors segregation of white and colored people. After discussion, an assembly of his group decided to petition the mayor and council of Chicago to pass laws for segregation. Volunteer members of the group agreed to stand on street corners, solicit signers to petitions addressed to the city authorities, and distribute leaflets giving information about the group, its beliefs and its plans. In carrying out this program, a solicitor handed out a leaflet which was the basis of this prosecution. Since the Court opinion quotes only parts of the leaflet, I am including all of it as an 343 U.S. 250 app|>appendix to this dissent. I That Beauharnais and his group were making a genuine effort to petition their elected representatives is not disputed. Even as far back as 1689, the Bill of Rights exacted of William & Mary said: "It is the Right of the Subjects to petition the King, and all Commitments and Page 343 U. S. 268 Prosecutions for such petitioning are illegal." [ Footnote 2/1 ] And, 178 years ago, the Declaration of Rights of the Continental Congress proclaimed to the monarch of that day that his American subjects had "a right peaceably to assemble, consider of their grievances, and petition the King; and that all prosecutions, prohibitory proclamations, and commitments for the same, are illegal. [ Footnote 2/2 ]" After independence was won, Americans stated as the first unequivocal command of their Bill of Rights: "Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Without distortion, this First Amendment could not possibly be read so as to hold that Congress has power to punish Beauharnais and others for petitioning Congress as they have here sought to petition the Chicago authorities. See e.g., Bridges v. California, 314 U. S. 252 , 314 U. S. 277 . And we have held in a number of prior cases that the Fourteenth Amendment makes the specific prohibitions of the First Amendment equally applicable to the states. [ Footnote 2/3 ] In view of these prior holdings, how does the Court justify its holding today that states can punish people for exercising the vital freedoms intended to be safeguarded from suppression by the First Amendment? The prior holdings are not referred to; the Court simply acts on the bland assumption that the First Amendment is wholly irrelevant. It is not even accorded the respect of a passing mention. This follows logically, I suppose, Page 343 U. S. 269 from recent constitutional doctrine which appears to measure state laws solely by this Court's notions of civilized "canons of decency," reasonableness, etc. See, e.g., Rochin v. California, 342 U. S. 165 , 342 U. S. 169 . Under this "reasonableness" test, state laws abridging First Amendment freedoms are sustained if found to have a "rational basis." But in Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 639 , we said: "In weighing arguments of the parties, it is important to distinguish between the due process clause of the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment and those cases in which it is applied for its own sake. The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a 'rational basis' for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds." Today's case degrades First Amendment freedoms to the "rational basis" level. It is now a certainty that the new "due process" coverall offers far less protection to liberty than would adherence to our former cases compelling states to abide by the unequivocal First Amendment command that its defined freedoms shall not be abridged. The Court's holding here and the constitutional doctrine behind it leave the rights of assembly, petition, Page 343 U. S. 270 speech and press almost completely at the mercy of state legislative, executive, and judicial agencies. I say "almost" because state curtailment of these freedoms may still be invalidated if a majority of this Court conclude that a particular infringement is "without reason," or is "a willful and purposeless restriction unrelated to the peace and well being of the State." But lest this encouragement should give too much hope as to how and when this Court might protect these basic freedoms from state invasion, we are cautioned that state legislatures must be left free to "experiment" and to make "legislative" judgments. We are told that mistakes may be made during the legislative process of curbing public opinion. In such event, the Court fortunately does not leave those mistakenly curbed, or any of us for that matter, unadvised. Consolation can be sought, and must be found, in the philosophical reflection that state legislative error in stifling speech and press "is the price to be paid for the trial and error inherent in legislative efforts to deal with obstinate social issues." My own belief is that no legislature is charged with the duty or vested with the power to decide what public issues Americans can discuss. In a free country, that is the individual's choice, not the state's. State experimentation in curbing freedom of expression is startling and frightening doctrine in a country dedicated to self-government by its people. I reject the holding that either state or nation can punish people for having their say in matters of public concern. II The Illinois statute upheld by the Court makes it a crime: "1. for 'any person, firm or corporation,'" "2. to 'manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place,' " Page 343 U. S. 271 "3. any 'lithograph [construed to include any printed matter], moving picture, play, drama or sketch,'" "4. which portrays 'depravity, criminality, unchastity, or lack of virtue,'" "5. of 'a class of citizens, of any race, color, creed or religion,'" "6. and exposes such a class to 'contempt, derision, or obloquy,'" "7. or 'is productive of breach of the peace or riots.'" This statute imposes state censorship over the theater, moving pictures, radio, television, leaflets, magazines, books and newspapers. No doubt the statute is broad enough to make criminal the "publication, sale, presentation or exhibition" of many of the world's great classics, both secular and religious. The Court condones this expansive state censorship by painstakingly analogizing it to the law of criminal libel. As a result of this refined analysis, the Illinois statute emerges labeled a "group libel law." This label may make the Court's holding more palatable for those who sustain it, but the sugar-coating does not make the censorship less deadly. However tagged, the Illinois law is not that criminal libel which has been "defined, limited and constitutionally recognized time out of mind." [ Footnote 2/4 ] For, as Page 343 U. S. 272 "constitutionally recognized," that crime has provided for punishment of false, malicious, scurrilous charges against individuals, not against huge groups. This limited scope of the law of criminal libel is of no small importance. It has confined state punishment of speech and expression to the narrowest of areas involving nothing more than purely private feuds. Every expansion of the law of criminal libel so as to punish discussions of matters of public concern means a corresponding invasion of the area dedicated to free expression by the First Amendment. Prior efforts to expand the scope of criminal libel beyond its traditional boundaries have not usually met with widespread popular acclaim. "Seditious libel" was such an expansion, and it did have its day, particularly in the English Court of Star Chamber. But the First Amendment repudiated seditious libel for this country. And one need only glance through the parliamentary discussion of Fox's Libel Law, passed in England in 1792, to sense the bad odor of criminal libel in that country even when confined to charges against individuals only. The Court's reliance on Chaplinsky v. New Hampshire, 315 U. S. 568 , is also misplaced. New Hampshire had a state law making it an offense to direct insulting words at an individual on a public street. Chaplinsky had violated that law by calling a man vile names "face-to-face." We pointed out in that context that the use of such "fighting" words was not an essential part of exposition of ideas. Whether the words used in their context here are "fighting" words in the same sense is doubtful, but, whether so or Page 343 U. S. 273 not, they are not addressed to or about individuals. Moreover, the leaflet used here was also the means adopted by an assembled group to enlist interest in their efforts to have legislation enacted. And the fighting words were but a part of arguments on questions of wide public interest and importance. Freedom of petition, assembly, speech and press could be greatly abridged by a practice of meticulously scrutinizing every editorial, speech, sermon or other printed matter to extract two or three naughty words on which to hang charges of "group libel." The Chaplinsky case makes no such broad inroads on First Amendment freedoms. Nothing Mr. Justice Murphy wrote for the Court in that case or in any other case justifies any such inference. Unless I misread history, the majority is giving libel a more expansive scope and more respectable status than it was ever accorded even in the Star Chamber. For here it is held to be punishable to give publicity to any picture, moving picture, play, drama or sketch, or any printed matter which a judge may find unduly offensive to any race, color, creed or religion. In other words, in arguing for or against the enactment of laws that may differently affect huge groups, it is now very dangerous indeed to say something critical of one of the groups. And any "person, firm or corporation" can be tried for this crime. "Person, firm or corporation" certainly includes a book publisher, newspaper, radio or television station, candidate or even a preacher. It is easy enough to say that none of this latter group have been proceeded against under the Illinois Act. And they have not -- yet. But emotions bubble and tempers flare in racial and religious controversies, the kind here involved. It would not be easy for any court, in good conscience, to narrow this Act so as to exclude from it any of those I have mentioned. Furthermore, persons tried under the Act could not even get a jury trial except Page 343 U. S. 274 as to the bare fact of publication. Here, the court simply charged the jury that Beauharnais was guilty if he had caused distribution of the leaflet. Such trial by judge, rather than by jury, was outlawed in England in 1792 by Fox's Libel Law. This Act sets up a system of state censorship which is at war with the kind of free government envisioned by those who forced adoption of our Bill of Rights. The motives behind the state law may have been to do good. But the same can be said about most laws making opinions punishable as crimes. History indicates that urges to do good have led to the burning of books, and even to the burning of "witches." No rationalization on a purely legal level can conceal the fact that state laws like this one present a constant overhanging threat to freedom of speech, press and religion. Today, Beauharnais is punished for publicly expressing strong views in favor of segregation. Ironically enough, Beauharnais, convicted of crime in Chicago, would probably be given a hero's reception in many other localities, if not in some parts of Chicago itself. Moreover, the same kind of state law that makes Beauharnais a criminal for advocating segregation in Illinois can be utilized to send people to jail in other states for advocating equality and nonsegregation. What Beauharnais said in his leaflet is mild compared with usual arguments on both sides of racial controversies. We are told that freedom of petition and discussion are in no danger "while this Court sits." This case raises considerable doubt. Since those who peacefully petition for changes in the law are not to be protected "while this Court sits," who is? I do not agree that the Constitution leaves freedom of petition, assembly, speech, press or worship at the mercy of a case-by-case, day-by-day majority of this Court. I had supposed that our people could rely for their freedom on the Constitution's commands, rather Page 343 U. S. 275 than on the grace of this Court on an individual case basis. To say that a legislative body can, with this Court's approval, make it a crime to petition for and publicly discuss proposed legislation seems as far-fetched to me as it would be to say that a valid law could be enacted to punish a candidate for President for telling the people his views. I think the First Amendment, with the Fourteenth, "absolutely" forbids such laws without any "ifs" or "buts" or "whereases." Whatever the danger, if any, in such public discussions, it is a danger the Founders deemed outweighed by the danger incident to the stifling of thought and speech. The Court does not act on this view of the Founders. It calculates what it deems to be the danger of public discussion, holds the scales are tipped on the side of state suppression, and upholds state censorship. This method of decision offers little protection to First Amendment liberties "while this Court sits." If there be minority groups who hail this holding as their victory, they might consider the possible relevancy of this ancient remark: "Another such victory and I am undone." [For appendix to opinion of MR. JUSTICE BLACK, see post, p. 343 U. S. 276 .] [For dissenting opinion of MR. JUSTICE REED, see post, p. 343 U. S. 277 .] [For dissenting opinion of MR. JUSTICE DOUGLAS, see post, p. 343 U. S. 284 .] [For dissenting opinion of MR. JUSTICE JACKSON, see post, p. 343 U. S. 287 .] Page 343 U. S. 276 [ Footnote 2/1 ] 1 William & Mary, Sess. 2, c. 2 (1689). [ Footnote 2/2 ] Eighth Resolution of the Continental Congress of 1774. [ Footnote 2/3 ] E.g., Grosjean v. American Press Co., 297 U. S. 233 , 297 U. S. 244 -245, 297 U. S. 249 ; Lovell v. City of Griffin, 303 U. S. 444 , 303 U. S. 450 ; Schneider v. New Jersey, 308 U. S. 147 , 308 U. S. 160 ; Thornhill v. Alabama, 310 U. S. 88 , 310 U. S. 95 ; Minersville School District v. Gobitis, 310 U. S. 586 , 310 U. S. 593 ; West Virginia State Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 639 ; Thomas v. Collins, 323 U. S. 516 , 323 U. S. 529 -530, concurring opinion, 323 U. S. 545 ; Pennekamp v. Florida, 328 U. S. 331 , 328 U. S. 349 . [ Footnote 2/4 ] The Court's finding of a close kinship between "criminal libel" and "group libel" because both contain the word "libel" and have some factors in common is reminiscent of what Earl Stanhope said in 1792 in discussing Mr. Fox's Libel Bill. He was arguing that a jury of laymen might more likely protect liberty than judges, because judges were prone to rely too heavily on word books. "He put the case that an action for a libel was brought for using a modern word, not to be found in any grammar or glossary, viz., for saying that a man was 'a great bore;' a jury would laugh at such a ground of prosecution, but the judges would turn to their grammars and glossaries, and, not being able to meet with it, would say they could not find such a phrase as 'a great bore,' but they had found a wild boar, which no doubt it meant; and yet it could not be, as a wild boar had four legs, and a man was a two-legged animal; then it must mean, that the plaintiff was like a wild boar in disposition, which was a wicked libel, and therefore let the defendant be hanged." 29 Hansard, Parliamentary History of England, p. 1412. | 343 U.S. 250 app| APPENDIX TO OPINION OF MR. JUSTICE BLACK image:a Page 343 U. S. 277 MR. JUSTICE REED, with whom MR. JUSTICE DOUGLAS joins, dissenting. The Fourteenth Amendment of our Constitution forbids that any person be deprived by a state of liberty or property without due process of law. This Illinois conviction subjects petitioner to a fine of $200. The petitioner challenges the validity of the sentence on the ground that his conviction under § 224a, Division 1, of the Illinois Criminal Code [ Footnote 3/1 ] violates substantive due process. The petition for certiorari phrases the issue thus: "Is the Illinois statute . . . as construed . . . or applied . . . invalid . . . because it infringes upon the constitutional guarantee of free speech, press and of assemblage as guaranteed" by the Fourteenth Amendment? The Supreme Court of Illinois upheld the conviction of petitioner under an information which charged: "that defendant, on January 7, 1950, at the City of Chicago, did unlawfully publish, present and exhibit in public places, lithographs, which publications portrayed depravity, criminality, unchastity, or lack of virtue of citizens of Negro race and color and which exposes citizens of Illinois of the Negro race and Page 343 U. S. 278 color to contempt, derision, or obloquy, which more fully appears in Exhibit A, which is attached hereto and made a part thereof. [ Footnote 3/2 ]" The evidence was sufficient to justify the jury in finding that Beauharnais caused the lithograph referred to in the information to be published and distributed in public places. The jury did so find under certain general instructions as to the proper attitude of jurors, but essentially and specifically under the following instruction: "(1) The Court instructs the jury that if you find from the evidence that the defendant, Joseph Beauharnais, did on or about January 7, 1950, manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place the lithograph which was allowed in evidence in this case as Peoples Exhibit Number 3, then you are to find the defendant guilty and fine him not less than $50.00 nor more than $200.00." Thus, the judge did not leave to the jury, but decided himself, doubtless as a matter of law, that the publication of the lithograph violated the statute. No complaint was made of this state method of trial. At trial, petitioner filed a motion to quash the information and objected to the above specific instruction. He also moved for a peremptory instruction of "not guilty" and for judgment notwithstanding the verdict. All these contentions were overruled by the trial court, and, although the record does not show a precisely pleaded objection to the conviction on the ground that § 224a is unconstitutional, nonetheless the Supreme Court of Illinois treated petitioner's contention that the statute was Page 343 U. S. 279 too vague and by virtue of that fact was so broad that it abridged free speech in violation of the Fourteenth Amendment. [ Footnote 3/3 ] The petition for certiorari brings these questions here. In carrying out its obligation to conform state legal administration to the "fundamental principles of liberty and justice" imposed on the states by the Fourteenth Amendment, [ Footnote 3/4 ] this Court has steadily affirmed that the general principle against abridgment of free speech, protected by the First Amendment, is included in the command of the Fourteenth. [ Footnote 3/5 ] So important to a constitutional democracy is the right of discussion that any challenge to legislative abridgment of those privileges of a free people calls for careful judicial appraisal. [ Footnote 3/6 ] It is when speech becomes an incitement to crime that the right freely to exhort may be abridged. American Communications Ass'n v. Douds, 339 U. S. 382 , 339 U. S. 395 ; Herndon v. Lowry, 301 U. S. 242 , 301 U. S. 255 . Page 343 U. S. 280 When a state conviction is challenged here on the ground that free speech has been abridged, this Court must first decide whether the portion of the statute upon which the charge is based is so broad "as to permit within the scope of its language the punishment of incidents fairly within the protection of the guarantee of free speech." Winters v. New York, 333 U. S. 507 , 333 U. S. 509 . In the Winters case, we set aside the conviction because the indefinite character of the statutory language, as construed by the Court of Appeals of New York, was so broad that protected speech was prohibited. This Court reversed, even though it assumed that Winters' conduct could constitutionally be punished by a statute expressing its prohibitions in reasonably narrow and definite form. [ Footnote 3/7 ] This requirement means that, when the verdict and judgment flow, as here, from the information as a whole, each and every portion of the statute upon which the information was drawn must be constitutional. In Stromberg v. California, 283 U. S. 359 , Stromberg had been convicted in the California courts for violating a statute of that state forbidding the display of a red flag. [ Footnote 3/8 ] On appeal, this Court did not consider whether Stromberg's conduct, as shown by the record, was protected by the Constitution. Instead, despite the fact that the second and third clauses of the California statute were unquestionably valid under the Federal Constitution, this Court Page 343 U. S. 281 reversed the state court because its conviction of Stromberg might have been based upon the first clause, holding that, "if any of the clauses in question is invalid under the Federal Constitution, the conviction cannot be upheld." [ Footnote 3/9 ] The first clause, forbidding a display of a red flag as a symbol of opposition to organized government, was deemed invalid because it was so broad that it permitted "punishment of the fair use of [the] opportunity [for free political discussion, and was therefore] repugnant to the guaranty of liberty contained in the Fourteenth Amendment." Id. at 283 U. S. 369 . The judgment in this present case followed from a determination of judge and jury that petitioner's publication of the lithograph violated the statute. From the general verdict of guilty, nothing appears to show what particular words of the statute the Illinois courts determined the lithograph offended. This conviction must stand or fall upon a determination whether all definitions of the acts proscribed by the statute and charged in the information may be banned under the principles of the First Amendment, for, as the foregoing discussion shows, it is impossible to tell upon what phrase of the statute petitioner's conviction was based. Our examination can begin and end with the inquiry as to what meaning lies in the act's declaration, as charged in the information, that it is unlawful to portray in a lithograph a "lack of virtue of a class of citizens . . . which . . . exposes [them to] derision, or obloquy." The majority opinion asserts that Illinois has given sufficiently clear and narrow meaning to the words "virtue," "derision" and "obloquy" by characterizing § 224a as "a form of criminal libel law." But the mere description of this statute as a criminal libel law does not Page 343 U. S. 282 clarify the meaning of these vague words in the statute. To say that the mere presence of the word "virtue" in the individual libel statute [ Footnote 3/10 ] makes its meaning clear in the group libel statute is a non sequitur. No case is cited which defines and limits the meaning of these words. Reliance is also placed by the Court upon Illinois' unfortunate experience with clashes between races. How that experience gives content to the vague words is not explained. The opinion further relies upon "the clarifying construction and fixed usage which govern the meaning of the enactment before us." (Emphasis added.) No opinions containing such clarification are cited. In addition to the case before us, we find only two reported adjudications on § 224a in the Illinois courts. [ Footnote 3/11 ] Without caviling that one of these cases is so recent that it follows the instant case in the reports, certainly neither of them contains any words which give that "clarifying construction" claimed for Illinois law. The majority certainly do not supply that construction by intimating that the publications prohibited by § 224a are only those "liable to cause violence and disorder." Moreover, that phrase was used by the Illinois court, not to limit the prohibition of § 224a, but to describe the lithograph published by Beauharnais. See 408 Ill. at 517, 97 N.E.2d at 346. The quoted language does not limit the statutory words "virtue," "derision" or "obloquy." [ Footnote 3/12 ] Page 343 U. S. 283 The Court speaks at length of the constitutional power of a state to pass group libel laws to protect the public peace. This dissent assumes that power. What is under discussion is whether the conviction of Beauharnais on a general charge of violation of the statute can stand when the statute contains without statutory or judicial definition words of such ambiguous meaning and uncertain connotation as "virtue," "derision," or "obloquy." The Court does not attempt to speak specifically as to that contention. The importance of a definite ruling on that point is manifest. Racial, religious, and political biases and prejudices lead to charge and countercharge, acrimony and bitterness. If words are to be punished criminally, the Constitution at least requires that only words or expressions or statements that can be reasonably well defined, or that have through long usage an accepted meaning, shall furnish a basis for conviction. [ Footnote 3/13 ] These words -- "virtue," "derision," and "obloquy" -- have neither general nor special meanings well enough known to apprise those within their reach as to limitations Page 343 U. S. 284 on speech. Compare Connally v. General Construction Co., 269 U. S. 385 , 269 U. S. 391 -392. Philosophers and poets, thinkers of high and low degree from every age and race have sought to expound the meaning of virtue, but each teaches his own conception of the moral excellence that satisfies standards of good conduct. Are the tests of the Puritan or the Cavalier to be applied, those of the city or the farm, the Christian or non-Christian, the old or the young? Does the Bill of Rights permit Illinois to forbid any reflection on the virtue of racial or religious classes which a jury or a judge may think exposes them to derision or obloquy, words themselves of quite uncertain meaning as used in the statute? I think not. A general and equal enforcement of this law would restrain the mildest expressions of opinion in all those areas where "virtue" may be thought to have a role. Since this judgment may rest upon these vague and undefined words, which permit within their scope the punishment of incidents secured by the guarantee of free speech, the conviction should be reversed. [ Footnote 3/1 ] "It shall be unlawful for any person, firm or corporation to manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place in this state any lithograph, moving picture, play, drama or sketch, which publication or exhibition portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which said publication or exhibition exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots. Any person, firm or corporation violating any of the provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not less than fifty dollars ($50.00), nor more than two hundred dollars ($200.00)." [ Footnote 3/2 ] People v. Beauharnais, 408 Ill. 512 , 514, 97 N.E.2d 343 , 344-345. The Exhibit A referred to in the information is the lithograph referred to in the instructions to the jury as People's Exhibit 3. [ Footnote 3/3 ] 408 Ill. 512 , at 515-516 and 517, 97 N.E.2d 343 , at 345-346. If the highest court of the state treats the federal question as properly before it, and decides the question, the question is reviewable here, regardless of the manner in which it was raised in the inferior courts of the state. See Whitney v. California, 274 U. S. 357 , 274 U. S. 361 , and cases there cited. [ Footnote 3/4 ] Hebert v. Louisiana, 272 U. S. 312 , 272 U. S. 316 ; Palko v. Connecticut, 302 U. S. 319 ; Adamson v. California, 332 U. S. 46 , 332 U. S. 66 . [ Footnote 3/5 ] Gitlow v. New York, 268 U. S. 652 , 268 U. S. 666 , 268 U. S. 672 ; Near v. Minnesota, 283 U. S. 697 , 283 U. S. 707 ; Pennekamp v. Florida, 328 U. S. 331 , 328 U. S. 335 . [ Footnote 3/6 ] De Jonge v. Oregon, 299 U. S. 353 , 299 U. S. 365 : "The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government." [ Footnote 3/7 ] See 333 U.S. at 333 U. S. 520 . Cf. Thornhill v. Alabama, 310 U. S. 88 ; Herndon v. Lowry, 301 U. S. 242 , 301 U. S. 263 -264. [ Footnote 3/8 ] 283 U.S. at 283 U. S. 361 : "Any person who displays a red flag, banner or badge or any flag, badge, banner, or device of any color or form whatever in any public place or in any meeting place or public assembly, or from or on any house, building or window as a sign, symbol or emblem of opposition to organized government or as an invitation or stimulus to anarchistic action or as an aid to propaganda that is of a seditious character is guilty of a felony." Then § 403a of the California Penal Code. [ Footnote 3/9 ] 283 U.S. at 283 U. S. 368 . See also Williams v. North Carolina, 317 U. S. 287 , 317 U. S. 291 -292. Cf. Thomas v. Collins, 323 U. S. 516 , 323 U. S. 529 ; Cramer v. United States, 325 U. S. 1 , 325 U. S. 36 , n. 45. [ Footnote 3/10 ] Smith-Hurd Ill.Ann.Stat.1936, c. 38, § 402, quoted in majority opinion at note 5. [ Footnote 3/11 ] People v. Simcox, 379 Ill. 347, 40 N.E.2d 525; People v. White Circle League of America, 408 Ill. 564 , 97 N.E.2d 811 (1951). See also Fox Film Corp. v. Collins, 236 Ill.App. 281; Bevins v. Prindable, 39 F. Supp. 708 , affirmed, 314 U.S. 573. [ Footnote 3/12 ] Indeed, if the Illinois courts had been inclined to interpret their statute as this Court now interprets it, they could have done so only by reading out of their statute the disjunctive clause "or which is productive of breach of the peace or riots." (Quoted at p. 343 U. S. 251 of majority opinion.) If the Illinois courts were inclined to read this disjunctive as a conjunctive, they would presumably have reversed Beauharnais' conviction, for the information in this case did not charge that publication of his lithograph would be productive of breach of the peace or riots. [ Footnote 3/13 ] ". . . the constitution never intended to invest judges with a discretion which cannot be tried and measured by the plain and palpable standard of law. . . . On a special verdict for murder, the life of the prisoner does not depend upon the religious, moral, or philosophical ideas of the judges. . . . If he is condemned . . . , his conduct is brought to a precise, clear, intelligible standard, and cautiously measured by it; it is the law, therefore, and not the judge, which condemns him. . . ." Argument in the King's Bench in the Dean of St. Asaph's case (1783-1784), 21 Howell's State Trials 847, 1006. MR. JUSTICE DOUGLAS, dissenting. Hitler and his Nazis showed how evil a conspiracy could be which was aimed at destroying a race by exposing it to contempt, derision, and obloquy. I would be willing to concede that such conduct directed at a race or group in this country could be made an indictable offense. For such a project would be more than the exercise of free speech. Like picketing, it would be free speech plus. I would also be willing to concede that, even without the element of conspiracy, there might be times and occasions when the legislative or executive branch might call a halt to inflammatory talk, such as the shouting of "fire" in a school or a theatre. My view is that if, in any case, other public interests are to override the plain command of the First Amendment, Page 343 U. S. 285 the peril of speech must be clear and present, leaving no room for argument, raising no doubts as to the necessity of curbing speech in order to prevent disaster. The First Amendment is couched in absolute terms -- freedom of speech shall not be abridged. Speech has therefore a preferred position [ Footnote 4/1 ] as contrasted to some other civil rights. For example, privacy, equally sacred to some, is protected by the Fourth Amendment only against unreasonable searches and seizures. There is room for regulation of the ways and means of invading privacy. No such leeway is granted the invasion of the right of free speech guaranteed by the First Amendment. Until recent years, that had been the course and direction of constitutional law. Yet, recently, the Court in this and in other cases [ Footnote 4/2 ] has engrafted the right of regulation onto the First Amendment by placing in the hands of the legislative branch the right to regulate "within reasonable limits" the right of free speech. This, to me is, an ominous and alarming trend. The free trade in ideas which the Framers of the Constitution visualized disappears. In its place there is substituted a new orthodoxy -- an orthodoxy that changes with the whims of the age or the day, an orthodoxy which the majority by solemn judgment proclaims to be essential to the safety, welfare, security, morality, or health of society. Free speech in the constitutional sense disappears. Limits are drawn -- limits dictated by expediency, political opinion, prejudices or some other desideratum of legislative action. An historic aspect of the issue of judicial supremacy was the extent to which legislative judgment would be Page 343 U. S. 286 supreme in the field of social legislation. The vague contours of the Due Process Clause were used to strike down laws deemed by the Court to be unwise and improvident. [ Footnote 4/3 ] That trend has been reversed. In matters relating to business, finance, industrial and labor conditions, health and the public welfare, great leeway is now granted the legislature, [ Footnote 4/4 ] for there is no guarantee in the Constitution that the status quo will be preserved against regulation by government. Freedom of speech, however, rests on a different constitutional basis. The First Amendment says that freedom of speech, freedom of press, and the free exercise of religion shall not be abridged. That is a negation of power on the part of each and every department of government. Free speech, free press, free exercise of religion are placed separate and apart; they are above and beyond the police power; they are not subject to regulation in the manner of factories, slums, apartment houses, production of oil, and the like. The Court in this and in other cases places speech under an expanding legislative control. Today a white man stands convicted for protesting in unseemly language against our decisions invalidating restrictive covenants. Tomorrow a negro will be haliled before a court for denouncing lynch law in heated terms. Farm laborers in the west who compete with field hands drifting up from Mexico; whites who feel the pressure of orientals; a minority which finds employment going to members of the dominant religious group -- all of these are caught in the mesh of today's decision. Debate and argument, even in the courtroom, are not always calm and dispassionate. Emotions sway speakers and audiences alike. Intemperate Page 343 U. S. 287 speech is a distinctive characteristic of man. Hotheads blow off and release destructive energy in the process. They shout and rave, exaggerating weaknesses, magnifying error, viewing with alarm. So it has been from the beginning; and so it will be throughout time. The Framers of the Constitution knew human nature as well as we do. They too had lived in dangerous days; they too knew the suffocating influence of orthodoxy and standardized thought. They weighed the compulsions for retrained speech and thought against the abuses of liberty. They chose liberty. That should be our choice today, no matter how distasteful to us the pamphlet of Beauharnais may be. It is true that this is only one decision which may later be distinguished or confined to narrow limits. But it represents a philosophy at war with the First Amendment -- a constitutional interpretation which puts free speech under the legislative thumb. It reflects an influence moving ever deeper into our society. It is notice to the legislatures that they have the power to control unpopular blocs. It is a warning to every minority that, when the Constitution guarantees free speech, it does not mean what it says. [ Footnote 4/1 ] Murdock v. Pennsylvania, 319 U. S. 105 , 319 U. S. 115 ; Thomas v. Collins, 323 U. S. 516 , 323 U. S. 530 ; Saia v. New York, 334 U. S. 558 , 334 U. S. 561 . [ Footnote 4/2 ] Dennis v. United States, 341 U. S. 494 ; Feiner v. New York, 340 U. S. 315 . Cf. Breard v. Alexandria, 341 U. S. 622 ; American Communications Ass'n v. Douds, 339 U. S. 382 ; Osman v. Douds, 339 U. S. 846 . [ Footnote 4/3 ] Lochner v. New York, 198 U. S. 45 ; Coppage v. Kansas, 236 U. S. 1 ; Ribnik v. McBride, 277 U. S. 350 . [ Footnote 4/4 ] Nebbia v. New York, 291 U. S. 502 ; West Coast Hotel Co. v. Parrish, 300 U. S. 379 ; Lincoln Union v. Northwestern Co., 335 U. S. 525 ; Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421 . MR. JUSTICE JACKSON, dissenting. An Illinois Act, construed by its Supreme Court to be a "group libel" statute, has been used to punish criminally the author and distributor of an obnoxious leaflet attacking the Negro race. He answers that, as applied, the Act denies a liberty secured to him by the Due Process Clause of the Fourteenth Amendment. What is the liberty which that clause underwrites? The spectrum of views expressed by my seniors shows that disagreement as to the scope and effect of this Amendment underlies this, as it has many another, division of the Court. All agree that the Fourteenth Amendment does confine the power of the State to make printed Page 343 U. S. 288 words criminal. Whence we are to derive metes and bounds of the state power is a subject to the confusion of which, I regret to say, I have contributed -- comforted in the acknowledgment, however, by recalling that this Amendment is so enigmatic and abstruse that judges more experienced than I have had to reverse themselves as to its effect on state power. The assumption of other dissents is that the "liberty" which the Due Process Clause of the Fourteenth Amendment protects against denial by the States is the literal and identical "freedom of speech, or of the press" which the First Amendment forbids only Congress to abridge. The history of criminal libel in America convinces me that the Fourteenth Amendment did not "incorporate" the First, that the powers of Congress and of the States over this subject are not of the same dimensions, and that, because Congress probably could not enact this law, it does not follow that the States may not. I As a limitation upon power to punish written or spoken words, Fourteenth Amendment "liberty" in its context of state powers and functions has meant and should mean something quite different from "freedom" in its context of federal powers and functions. [ Footnote 5/1 ] This Court has never sustained a federal criminal libel Act. One section of the Sedition Act of 1798 was close to being a "group libel" Act. [ Footnote 5/2 ] While there were convictions Page 343 U. S. 289 under it, no attack on its validity reached this Court. I think today's better opinion regards the enactment as a breach of the First Amendment, and certainly Mr. Justice Holmes and Mr. Justice Brandeis thought so. [ Footnote 5/3 ] But even in the absence of judicial condemnation, the political disapproval of the Sedition Act was so emphatic and sustained that federal prosecution of the press ceased for a century. It was resumed with indictment of The Indianapolis News and The New York World for disclosures and criticisms of the Panama Canal acquisition. Both were indicted in the District of Columbia and under the District Code, on the ground that some copies circulated there. That prosecution collapsed when Judge Anderson refused the Government's application to remove the Indiana defendants to the District of Columbia for trial. [ Footnote 5/4 ] The World, circulated at West Point, was indicted in New York on the theory that an 1825 Act to protect Page 343 U. S. 290 fortifications assimilated the New York State law punishing criminal libel. That venture likewise came to grief when Judge Hough rejected that construction of the federal statute and was upheld by this Court. United States v. Press Publishing Co., 219 U. S. 1 (1911). While there has been a demand from official sources for a resumption of criminal libel prosecution, it has not been acceded to. [ Footnote 5/5 ] Thus, while the jeopardy of such federal prosecutions has never been removed by any decision of this Court, I should think the validity of a federal enactment such as this would be extremely doubtful, to say the least. The effect of the First Amendment on congressional power to make seditious utterance criminal did receive consideration in the aftermath of the First World War. In such a case, Mr. Justice Holmes formulated for the Court as "the question in every case" the "clear and present danger" test. Schenck v. United States, 249 U. S. 47 , 249 U. S. 52 . He and Mr. Justice Brandeis adhered to it as a "rule of reason," dissenting when they thought the rest of the Court apostate. Abrams v. United States, 250 U. S. 616 , 250 U. S. 627 -628; Schaefer v. United States, 251 U. S. 466 , 251 U. S. 482 . Only after research and deliberation in these cases had sharpened their perception did these Justices face the free speech issue as to state power which Mr. Justice Holmes first adverted to, but left undecided, in Patterson v. Colorado, 205 U. S. 454 . In 1922, they joined the Court's first decision on the subject, which declared that ". . . neither the Fourteenth Amendment nor any other provision of Page 343 U. S. 291 the Constitution of the United States imposes upon the states any restrictions about 'freedom of speech.' . . ." Prudential Insurance Co. v. Cheek, 259 U. S. 530 , 259 U. S. 543 . However, these two Justices, who made the only original contribution to legal thought on the difficult problems bound up in these Amendments, soon reversed and took the view that the Fourteenth Amendment did impose some restrictions upon the States. But it was not premised upon the First Amendment, nor upon any theory that it was incorporated in the Fourteenth. What they wrote, with care and circumspection, I accept as the wise and historically correct view of the Fourteenth Amendment. It was: " The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word 'liberty' as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States." (Emphasis supplied.) Gitlow v. New York, 268 U. S. 652 , 268 U. S. 672 . That reasoning was echoed so recently as 1937, when the Court explicitly rejected the theory of incorporation and, through Mr. Justice Cardozo, announced a view, unanimous except for Mr. Justice Butler, that the Fourteenth did not deflect against the States the literal language of amendments designed to circumscribe federal power but qualified state power only by such general restraints as are essential to "the concept of ordered liberty." Palko v. Connecticut, 302 U. S. 319 , 302 U. S. 324 -325. It is clear that these do not proscribe state criminal libel Acts. Justices Holmes and Brandeis in 1931 joined Chief Justice Hughes, who spoke for the Court, in striking down a state Act because it authorized restraint by injunction Page 343 U. S. 292 previous to publication. He said: "For whatever wrong the appellant has committed or may commit by his publications, the state appropriately affords both public and private redress by its libel laws." This was amplified: "But it is recognized that punishment for the abuse of the liberty accorded to the press is essential to the protection of the public, and that the common law rules that subject the libeler to responsibility for the public offense, as well as for the private injury, are not abolished by the protection extended in our Constitutions. . . . The law of criminal libel rests upon that secure foundation." Near v. Minnesota, 283 U. S. 697 , 283 U. S. 715 . So recently as 1942, a unanimous Court, speaking of state power, said that punishment of libelous words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace" has never been thought to raise any constitutional problem. Chaplinsky v. New Hampshire, 315 U. S. 568 , 315 U. S. 571 -572. More than forty State Constitutions, while extending broad protections to speech and press, reserve a responsibility for their abuse and implicitly or explicitly recognize validity of criminal libel laws. [ Footnote 5/6 ] We are justified Page 343 U. S. 293 in assuming that the men who sponsored the Fourteenth Amendment in Congress, and those who ratified it in the state legislatures, knew of such provisions then in many of their state constitutions. Certainly they were not consciously canceling them or calling them into question, or we would have some evidence of it. Congresses, during the period while this Amendment was being considered or was but freshly adopted, approved constitutions of "reconstructed" States that expressly mentioned state libel laws, [ Footnote 5/7 ] and also approved similar constitutions for States erected out of the federal domain. [ Footnote 5/8 ] Page 343 U. S. 294 Certainly this tolerance of state libel laws by the very authors and partisans of the Fourteenth Amendment shows either that they were not intending to incorporate the First Amendment or that they believed it would not prevent federal libel laws. Adoption of the incorporation theory today would lead to the dilemma of either confining the States as closely as the Congress or giving the Federal Government the latitude appropriate to state governments. The treatment of libel powers corroborates the conclusions against the incorporationist theory reached by the most comprehensive and objective studies of the origin and adoption of the Fourteenth Amendment. [ Footnote 5/9 ] The inappropriateness of a single standard for restricting State and Nation is indicated by the disparity between their functions and duties in relation to those freedoms. Criminality of defamation is predicated upon power either to protect the private right to enjoy integrity of reputation or the public right to tranquility. Neither of these are objects of federal cognizance except when necessary to the accomplishment of some delegated power, such as Page 343 U. S. 295 protection of interstate commerce. When the Federal Government puts liberty of press in one scale, it has a very limited duty to personal reputation or local tranquillity to weigh against it in the other. But state action affecting speech or press can and should be weighed against and reconciled with these conflicting social interests. For these reasons, I should not, unless clearly required, confirm to the Federal Government such latitude as I think a State reasonably may require for orderly government of its manifold concerns. The converse of the proposition is that I would not limit the power of the State with the severity appropriately prescribed for federal power. As the principle by which to judge the constitutionality of this statute, I accept the dissent in Gitlow and the decision in Palko. II What restraints upon state power to punish criminal libel are implied by the "concept of ordered liberty"? Experience by Anglo-Saxon peoples with defamation and laws to punish it extends over centuries, and the statute and case books exhibit its teachings. If one can claim to announce the judgment of legal history on any subject, it is that criminal libel laws are consistent with the concept of ordered liberty only when applied with safeguards evolved to prevent their invasion of freedom of expression. Oppressive application of the English libel laws was partially checked when Fox's Libel Act of 1972 allowed the jury to determine whether an accused publication was libelous in character, and more completely when Lord Campbell's Libel Act of 1943 allowed truth to be proved as a defense. American experience teaches similar lessons. The leading state case is People v. Croswell, 3 Johns.Cas. 337. Page 343 U. S. 296 Since, as the opinion of this Court now points out, the Jeffersonian's objection to federal sedition prosecutions was largely fear of federal usurpation of state powers over the subject, it was consistent for them to prosecute libels under state law. Croswell, publisher of the aptly named Wasp, was indicted for libeling Thomas Jefferson by representing him as unworthy of the confidence, respect, and attachment of the people. The trial judge pronounced his statements libelous as a matter of law and allowed the jury to decide no question except whether the accused had published them. The defendant was convicted, and, on his appeal, argued by Alexander Hamilton, the appellate court divided equally. Justice Kent, however, filed a characteristically learned and vigorous opinion that the trial court must submit the libelous character of the article and libelous intent of its printer to decision by the jury, which was entitled to determine both law and fact. The public response was such that an early session of the legislature substantially enacted Kent's contentions. Inasmuch as no judgment had been entered upon the earlier equal division, the court, at its August, 1805, term, "in consequence of this declaratory statute," unanimously awarded a new trial. [ Footnote 5/10 ] The New York Constitution at that time contained no free speech provision, but the case led to a provision included in the Constitution of 1821 which both followed Fox's Libel Act and anticipated Lord Campbell's Act, and has remained in the several constitutions of that State since: "Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty to speech, or of the press. In all prosecutions or indictments Page 343 U. S. 297 for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact. [ Footnote 5/11 ]" It would not be an exaggeration to say that, basically, this provision of the New York Constitution states the common sense of American criminal libel law. Twenty-four States of the Union whose constitutions were framed later substantially adopted it. [ Footnote 5/12 ] Twelve States provide that press and speech shall be free, but there shall be responsibility for the abuse. [ Footnote 5/13 ] Five others provide substantially the same, but add that truth may be given in evidence in a libel prosecution. [ Footnote 5/14 ] Only five States, whose constitutions were framed earlier, were content with the generality about the free press similar to that of Massachusetts. [ Footnote 5/15 ] But all of these States, apart from constitutional Page 343 U. S. 298 provision, have by decisional law recognized the validity of criminal libel prosecutions. [ Footnote 5/16 ] Because of these safeguards, state libel laws have presented no threat to a free press comparable to that from federal sources, and have not proved inconsistent with fundamental liberties. Attacks on the press by States which were frustrated by this Court in Near v. Minnesota, supra, and Grosjean v. American Press Co., 297 U. S. 233 , were not by libel laws. For near a century and a half, this Court's decisions left state criminal libel prosecutions entirely free of federal constitutional limitations. It is a matter of notoriety that the press often has provoked hostility, that editors have been mobbed and horsewhipped, but criminal libel prosecutions have not been frequent, and, as safeguarded by state law, they have been so innocuous that chronicles of American journalism give them only passing mention. [ Footnote 5/17 ] This Court, by construction of the Fourteenth Amendment, has imposed but one addition to the safeguards voluntarily taken upon the States by themselves. It is that, where expression, oral or printed, is punished, although it has not actually caused injuries or disorders, but is thought to have a tendency to do so, the likelihood of such consequence must not be remote or speculative. That is the "clear and present danger" test which Mr. Justice Holmes and Mr. Justice Brandeis, eventually with support of the Court, thought implied in both the First [ Footnote 5/18 ] and Fourteenth Amendments, [ Footnote 5/19 ] although the former was Page 343 U. S. 299 not bodily bound up in the latter. Any superficial inconsistency between applying the same standard but permitting a wider range of action to the States is resolved upon reference to the latter part of the statement of the formula: clear and present danger of those substantive evils which the legislature has a right to prevent. The evils at which Congress may aim, and in so doing come into conflict with free speech, will be relatively few, since it is a government of limited powers. Because the States may reach more evils, they will have wider range to punish speech which presents clear and present danger of bringing about those evils. In few subjects so much as libel does local law, in spite of varying historical influences, afford a consensus of American legal opinion as to what is reasonable and essential to the concept of ordered government. The boundaries are roughly outlined, to be sure, and cannot be stated or applied with mathematical precision, but those widely accepted state constitutional provisions on which is superimposed the "clear and present danger" test for "tendency" cases seem to be our best guide. I agree with the Court that a State has power to bring classes "of any race, color, creed, or religion" within the protection of its libel laws, if indeed traditional forms do not already accomplish it. [ Footnote 5/20 ] But I am equally clear that, in doing so, it is essential to our concept of ordered liberty that the State also protect the accused by those safeguards the necessity for which is verified by legal history. III The Illinois statute, as applied in this case, seems to me to have dispensed with accepted safeguards for the accused. Trial of this case ominously parallels the trial of Page 343 U. S. 300 People v. Croswell, supra, in that the Illinois court here instructed the jury, in substance, that if it found that defendant published this leaflet ,he must be found guilty of criminal libel. Rulings of the trial court precluded the effort to justify statements of fact by proving their truth. The majority opinion concedes the unvarying recognition by the States that truth plus good motives is a defense in a prosecution for criminal libel. But here, the trial court repeatedly refused defendant's offer of proof as to the truth of the matter published. Where an offer to prove the dominant element of a defense is rejected as immaterial, we can hardly refuse to consider defendant's constitutional question because he did not go through the useless ceremony of offering proof of a subsidiary element of the defense. If the court would not let him try to prove he spoke truth, how could he show that the spoke truth for good ends? Furthermore, the record indicates that defendant was asked to state what he had meant by the use of certain phrases, and the reason for forming the White Circle League -- statements which apparently bore on the issue of motive and ends. But the trial court sustained a sweeping objection "to this whole line of examination." The Supreme Court of Illinois noted the offer of proof of truth and its exclusion, and apparently went on to rule as a matter of law that the statement was not published for justifiable ends. At all events, it is clear that the defense was ruled out as matter of law, and defendant was never allowed to present it for decision by either court or jury upon the facts, a practice which I think is contrary to the overwhelming verdict of Anglo-Saxon history and practice. I do not intimate that this defendant stood even a remote chance of justifying what impresses me, as it did the trial court, as reckless and vicious libel. But the point is that his evidence, proffered for that purpose, was excluded instead of being Page 343 U. S. 301 received and evaluated. Society has an interest in preserving truth as a justification, however obnoxious the effort may be. A publication which diffuses its attack over unnamed and impersonal multitudes is likely to be harder to justify than one which concentrates its attack on named individuals, but the burden may properly be cast on an accused and punishment follow failure to carry it. The same may be said of the right to comment upon matters of public interest insofar as the statement includes matters of opinion, a point, however, which the defense may have inadequately raised. When any naturally cohesive or artificially organized group possesses a racial or sectarian solidarity which is or may be exploited to influence public affairs, that group becomes a legitimate subject for public comment. Of course, one can only deplore the habitual intemperance and bitter disparagement which characterizes most such comment. While I support the right of a State to place decent bounds upon it, I am not ready to hold that group purposes, characteristics and histories are to be immunized from comment or may be discussed only at the risk of prosecution free of all usual safeguards. Another defense almost universally recognized, which it seems the jury were not allowed to consider here, is that of privilege. Petition for redress of grievances is specifically privileged by many State Constitutions. I do not think we should hold this whole document to be constitutionally privileged just because, in part, it stimulates a petition for redress of grievances. A court or jury could have found that its primary purpose was not to petition, but to appeal for members and contributions to the White Circle League. If some part of it were privileged, that, so it has been held, does not extend constitutional protection to unprivileged matter. Cf. Valentine v. Chrestensen, 316 U. S. 52 . But the question of privilege seems Page 343 U. S. 302 not to have been specifically passed on by the court, and certainly was not submitted for the jury's consideration. In this case, neither the court nor jury found or were required to find any injury to any person, or group, or to the public peace, nor to find any probability, let alone any clear and present danger, of injury to any of these. Even though no individuals were named or described as targets of this pamphlet, if it resulted in a riot or caused injury to any individual Negro, such as being refused living quarters in a particular section, house or apartment, or being refused employment, certainly there would be no constitutional obstacle to imposing civil or criminal liability for actual results. But, in this case, no actual violence and no specific injury was charged or proved. The leaflet was simply held punishable as criminal libel per se, irrespective of its actual or probable consequences. No charge of conspiracy complicates this case. The words themselves do not advocate the commission of any crime. The conviction rests on judicial attribution of a likelihood of evil results. The trial court, however, refused to charge the jury that it must find some "clear and present danger," and the Supreme Court of Illinois sustained conviction because, in its opinion, the words used had a tendency to cause a breach of the peace. Referring to the clear and present danger doctrine in Dennis v. United States, 341 U. S. 494 , 341 U. S. 568 , I said: "I would save it, unmodified, for application as a 'rule of reason' in the kind of case for which it was devised. When the issue is criminality of a hotheaded speech on a street corner, or circulation of a few incendiary pamphlets, or parading by some zealots behind a red flag, or refusal of a handful of school children to salute our flag, it is not beyond the capacity of the judicial process to gather, comprehend, and weigh the necessary materials for decision whether it is a clear and present danger of Page 343 U. S. 303 substantive evil or a harmless letting off of steam. It is not a prophecy, for the danger in such cases has matured by the time of trial or it was never present. The test applies and has meaning where a conviction is sought to be based on a speech or writing which does not directly or explicitly advocate a crime but to which such tendency is sought to be attributed by construction or by implication from external circumstances. The formula in such cases favors freedoms that are vital to our society, and, even if sometimes applied too generously, the consequences cannot be grave. . . ." Not the least of the virtues of this formula in such tendency cases is that it compels the prosecution to make up its mind what particular evil it sought or is seeking to prevent. It must relate its interference with speech or press to some identifiable evil to be prevented. Words on their own account are not to be punished in such cases, but are reachable only as the root of punishable evils. Punishment of printed words, based on their tendency either to cause breach of the peace or injury to persons or groups, in my opinion, is justifiable only if the prosecution survives the "clear and present danger" test. It is the most just and workable standard yet evolved for determining criminality of words whose injurious or inciting tendencies are not demonstrated by the event but are ascribed to them on the basis or probabilities. Its application is important in this case because it takes account of the particular form, time, place, and manner of communication in question. "The moving picture screen, the radio, the newspaper, the handbill, the sound truck and the street corner orator have differing natures, values, abuses and dangers. Each, in my view, is a law unto itself. . . ." Kovacs v. Cooper, 336 U. S. 77 , 336 U. S. 97 . It would consider whether a leaflet is so emotionally exciting to immediate action as the spoken word, especially Page 343 U. S. 304 the incendiary street or public speech. Terminiello v. City of Chicago, 337 U. S. 1 , 337 U. S. 13 ; Kunz v. New York, 340 U. S. 290 , 340 U. S. 295 . It will inquire whether this publication was obviously so foul and extreme as to defeat its own ends, whether its appeals for money -- which has a cooling effect on many persons -- would not negative its inflammatory effect, whether it would not impress the passer-by as the work of an irresponsible who needed mental examination. One of the merits of the clear and present danger test is that the triers of fact would take into account the realities of race relations and any smouldering fires to be fanned into holocausts. Such consideration might well warrant a conviction here when it would not in another and different environment. Group libel statutes represent a commendable desire to reduce sinister abuses of our freedoms of expression -- abuses which I have had occasion to learn can tear apart a society, brutalize its dominant elements, and persecute, even to extermination, its minorities. While laws or prosecutions might not alleviate racial or sectarian hatreds and may even invest scoundrels with a specious martyrdom, I should be loath to foreclose the States from a considerable latitude of experimentation in this field. Such efforts, if properly applied, do not justify frenetic forebodings of crushed liberty. But these acts present most difficult policy and technical problems, as thoughtful writers who have canvassed the problem more comprehensively than is appropriate in a judicial opinion have well pointed out. [ Footnote 5/21 ] No group interest in any particular prosecution should forget that the shoe may be on the other foot in some prosecution tomorrow. In these, as in other matters, our Page 343 U. S. 305 guiding spirit should be that each freedom is balanced with a responsibility, and every power of the State must be checked with safeguards. Such is the spirit of our American law of criminal libel, which concedes the power to the State, but only as a power restrained by recognition of individual rights. I cannot escape the conclusion that, as the Act has been applied in this case, it lost sight of that rights. [ Footnote 5/1 ] First Amendment: "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ." Fourteenth Amendment: " . . . nor shall any State deprive any person of life, liberty, or property, without due process of law. . . ." [ Footnote 5/2 ] 1 Stat. 596 (1798) § 2: " And be it further enacted, That if any person shall write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute . . . , such person . . . shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years." Section 3: ". . . it shall be lawful for the defendant . . . to give in evidence in his defence, the truth of the matter contained in the publication charged as a libel. And the jury who shall try the cause shall have a right to determine the law and the fact, under the direction of the court, as in other cases." [ Footnote 5/3 ] Abrams v. United States, 250 U. S. 616 , 250 U. S. 630 . [ Footnote 5/4 ] United States v. Smith, 173 F. 227. In discharging the defendants, Judge Anderson said: "To my mind, that man has read the history of our institutions to little purpose who does not look with grave apprehension upon the possibility of the success of a proceeding such as this. If the history of liberty means anything, if constitutional guaranties are worth anything, this proceeding must fail." "If the prosecuting officers have the authority to select the tribunal, if there be more than one tribunal to select from, if the government has that power, and can drag citizens from distant states to the capital of the nation, there to be tried, then, as Judge Cooley says, this is a strange result of a revolution where one of the grievances complained of was the assertion of the right to send parties abroad for trial." 173 F. at 232. [ Footnote 5/5 ] Riesman, "Group Libel," 42 Col.L.Rev. 727, 748. See also 87 Cong.Rec. 5830-5841. [ Footnote 5/6 ] The following is a list of such state constitutional provisions, coupled with the year of the adoption of the constitution in which they are contained: Alabama, 1901, Art. I, §§ 4, 12; Arizona, 1912, Art. II, § 6; Arkansas, 1874, Art. II, § 6; California, 1879, Art. I, § 9; Colorado, 1876, Art. II, § 10; Delaware, 1897, Art. I, § 5; Florida, 1887, Declaration of Rights, § 13; Georgia, 1945, Art. I, § 1, par. 15; Idaho, 1890, Art. I, § 9; Illinois, 1870, Art. II, § 4; Indiana, 1851, Art. I, § 9; Iowa, 1857, Art. I, § 7, I.C.A.; Kansas, 1859, Bill of Rights, § 11; Kentucky, 1891, §§ 8, 9; Louisiana, 1921, Art. I, §3; Maine, 1876, Art. I, § 4; Maryland, 1867, Declaration of Rights, Art. 40; Michigan, 1908, Art. II, § 4; Minnesota, 1857, Art. I, § 3; Mississippi, 1890, Art. III, § 13; Missouri, 1945, Art. I, § 8; Montana, 1889, Art. III, § 10; Nebraska, 1875, Art. I, § 5; Nevada, 1864, Art. I, § 9; New Jersey, 1947, Art. I, par. 6; New Mexico, 1912, Art. II, § 17; New York, 1938, Art. I, § 8; North Carolina, 1876, Art. I, § 20; North Dakota, 1889, Art. I, § 9; Ohio, 1851, Art. I, § 11; Oklahoma, 1907, Art. II, § 22; Oregon, 1859, Art. I, § 8; Pennsylvania, 1874, Art. I, § 7; Rhode Island, 1843, Art. I, § 20; South Dakota, 1889, Art. VI, § 5; Tennessee, 1870, Art. I, § 19; Texas, 1876, Art. I, § 8; Utah, 1895, Art. I, § 15; Virginia, 1902, Art. I, § 12; Washington, 1889, Art. I, § 5; West Virginia, 1872, Art. III, § 7; Wisconsin, 1848, Art. I, § 3; Wyoming, 1889, Art. I, § 20. [ Footnote 5/7 ] Congress required that reconstructed States approve state constitutions consistent with the Federal Constitution, and also that each State ratify the Fourteenth Amendment. Examples of state constitutional provisions expressly referring to libel, but which constitutions were nevertheless approved by Congress, follow: Arkansas: Const.1868, Art. I, § 2 provides that truth coupled with good motives shall be a complete defense to a criminal libel prosecution; Arkansas, readmitted by 15 Stat. 72 (1868); Florida: Const. 1868, Art. I, § 10, provides that truth coupled with good motives shall be a complete defense to a criminal libel prosecution; Florida, readmitted by 15 Stat. 73 (1868); Mississippi: Const.1868, Art. I, § 4 enacts Fox's Libel Act in substance; Mississippi, readmitted by 16 Stat. 67 (1870); South Carolina: Const.1868, Art. I, § 8 enacts Fox's Libel Act in substance, and provides that truth and good motives shall be a complete defense to a criminal libel prosecution; South Carolina, readmitted by 15 Stat. 73 (1868); Texas: Const. 1868, Art. I, § 6 enacts Fox's Libel Act in substance; Texas, readmitted by 16 Stat. 80 (1870). [ Footnote 5/8 ] In the case of States erected out of the public domain, one of two procedures was generally followed. Either Congress would itself enact a statute admitting a particular State, stating therein that the constitution of the State in question was consistent with the Federal Constitution, or else the Congressional Act would provide that the State would be admitted upon its adoption of a constitution consistent with the Federal Constitution. In the latter case, the actual admission occurred by proclamation of the President. Colorado: Art. II, § 10 enacts Fox's Libel Act in substance, and provides that truth and good motives shall constitute a complete defense in a libel prosecution; admitted by 18 Stat. 474 (1875), 19 Stat. 665 (1876); Montana: Art. III, § 10 enacts Fox's Libel Act in substance; admitted by 25 Stat. 676 (1889), 26 Stat. 1551 (1889); New Mexico: Art. II, § 17 provides that truth and good motives shall constitute a complete defense to a criminal libel prosecution; admitted by 36 Stat. 557 (1910), 37 Stat. 39 (1911); Utah: Art. I, § 15, like Colorado provisions; admitted by 28 Stat. 107 (1894), 29 Stat. 876 (1896); Wyoming: Art. I, § 20, like Colorado provisions; admitted by 26 Stat. 222 (1890). [ Footnote 5/9 ] See Fairman and Morrison, Does the Fourteenth Amendment Incorporate the Bill of Rights? 2 Stan.L.Rev. 5-173. [ Footnote 5/10 ] 3 Johns.Cas. 337, 413. [ Footnote 5/11 ] Const.1821, Art. VII, § 8; Const.1846, Art. I, § 8; Const.1894, Art. I, § 8; Const.1938, Art. I, § 8. [ Footnote 5/12 ] Arkansas, California, Colorado, Delaware, Florida, Iowa, Kansas, Maine, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, Tennessee, Texas, Utah, Wisconsin, and Wyoming. For citations to article and section, see 343 U.S. 250 fn5/6|>n. 6, supra. [ Footnote 5/13 ] Arizona, Georgia, Idaho, Kentucky, Louisiana, Maryland, Michigan, Minnesota, North Carolina, Oregon, Virginia, and Washington. The Georgia provision, Const.1945, Art. I, § 1, par. 15, representative of the rest, reads: " . . . any person may speak, write and publish his sentiments, on all subjects, being responsible for the abuse of that liberty." For citations to article and section, see 343 U.S. 250 fn5/6|>n. 6, supra. [ Footnote 5/14 ] Alabama, Illinois, Indiana, Rhode Island, and West Virginia. For citations to article and section, see 343 U.S. 250 fn5/6|>n. 6, supra. [ Footnote 5/15 ] Connecticut, Const.1818, Art. I, § 6; New Hampshire, Const.1784, Part I, Art. 22; South Carolina, Const.1895, Art. I, § 4; Vermont, Const.1793, c. I, Art. 13. The Massachusetts provision, Const.1780, Part I, Art. XVI reads as follows: "The liberty of the press is essential to the security of freedom in a state; it ought not, therefore, to be restrained in this Commonwealth." [ Footnote 5/16 ] State v. Gardner, 112 Conn. 121, 151 A. 349; Commonwealth v. Szliakys, 254 Mass. 424, 150 N.E. 190; Noyes v. Thorpe, 73 N.H. 481, 62 A. 787, 12 L.R.A., N.S., 636; State v. Gurry, 163 S.C. 1, 161 S.E. 191; State v. Colby, 98 Vt. 96, 126 A. 510. Decisional law of other States is collected in Note, 1 Bflo.L.Rev. 258. [ Footnote 5/17 ] Lee, "A History of American Journalism" (Garden City, 1923). [ Footnote 5/18 ] Schenck v. United States, 249 U. S. 47 , 249 U. S. 52 . [ Footnote 5/19 ] Gitlow v. New York, 268 U. S. 652 , 268 U. S. 672 . [ Footnote 5/20 ] It appears that group libel was not unknown to common law. See Scott, Publishing False News, 30 Can.B.Rev. 37, 42-43. [ Footnote 5/21 ] Tannenhaus, Group Libel, 35 Cornell L.Q. 261; Riesman, Democracy and Defamation: Control of Group Libel, 42 Col.L.Rev. 727; see also Note, 1 Bflo.L.Rev. 258.

Here is a summary of the Supreme Court case Beauharnais v. Illinois (1952): The Supreme Court upheld an Illinois statute that criminalized the distribution of materials that exposed a group to contempt or ridicule based on race, color, creed, or religion. Beauharnais was convicted for distributing anti-Black leaflets in Chicago and argued that the Illinois statute violated his freedom of speech and press rights under the Fourteenth Amendment. The Court rejected this argument, finding that the statute did not violate the Constitution as applied in this case. The Court also ruled that the statute was not void for vagueness and distinguished this case from previous cases involving restrictions on free speech. The Court further held that Beauharnais could not raise hypothetical defenses of "fair comment" or privilege and that his offer of proof was rightfully rejected by the trial court as it did not satisfy the requirement of good motives and justifiable ends under Illinois law. Finally, the Court did not consider the issue of whether the jury should have been instructed to find a "clear and present danger" of a substantial evil, as libelous speech is not constitutionally protected.

Free Speech

Joseph Burstyn, Inc. v. Wilson

https://supreme.justia.com/cases/federal/us/343/495/

U.S. Supreme Court Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) Joseph Burstyn, Inc. v. Wilson No. 522 Argued April 24, 1952 Decided May 26, 1952 343 U.S. 495 APPEAL FROM THE COURT OF APPEALS OF NEW YORK Syllabus Provisions of the New York Education Law which forbid the commercial showing of any motion picture film without a license and authorize denial of a license on a censor's conclusion that a film is "sacrilegious," held void as a prior restraint on freedom of speech and of the press under the First Amendment, made applicable to the states by the Fourteenth Amendment. Pp. 343 U. S. 497 -506. 1. Expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments. Pp. 343 U. S. 499 -502. (a) It cannot be doubted that motion pictures are a significant medium for the communication of ideas. Their importance as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform. P. 343 U. S. 501 . (b) That the production, distribution and exhibition of motion pictures is a large-scale business conducted for private profit does not prevent motion pictures from being a form of expression whose liberty is safeguarded by the First Amendment. Pp. 343 U. S. 501 -502. (c) Even if it be assumed that motion pictures possess a greater capacity for evil, particularly among the youth of a community, than other modes of expression, it does not follow that they are not entitled to the protection of the First Amendment or may be subjected to substantially unbridled censorship. P. 343 U. S. 502 . (d) To the extent that language in the opinion in Mutual Film Corp. v. Industrial Comm'n, 236 U. S. 230 , is out of harmony with the views here set forth, it is no longer adhered to. P. 343 U. S. 502 . 2. Under the First and Fourteenth Amendments, a state may not place a prior restraint on the showing of a motion picture film on the basis of a censor's conclusion that it is "sacrilegious." Pp. 343 U. S. 502 -506. (a) Though the Constitution does not require absolute freedom to exhibit every motion picture of every kind at all times and all places, there is no justification in this case for making an Page 343 U. S. 496 exception to the basic principles of freedom of expression previously announced by this Court with respect to other forms of expression. Pp. 343 U. S. 502 -503. (b) Such a prior restraint as that involved here is a form of infringement upon freedom of expression to be especially condemned. Near v. Minnesota, 283 U. S. 697 . Pp. 343 U. S. 503 -504. (c) New York cannot vest in a censor such unlimited restraining control over motion pictures as that involved in the broad requirement that they not be "sacrilegious." Pp. 343 U. S. 504 -505. (d) From the standpoint of freedom of speech and the press, a state has no legitimate interest in protecting any or all religions from views distasteful to them which is sufficient to justify prior restraints upon the expression of those views. P. 343 U. S. 505 . 303 N.Y. 242 , 101 N.E.2d 665, reversed. The New York Appellate Division sustained revocation of a license for the showing of a motion picture under § 122 of the New York Education Law on the ground that it was "sacrilegious." 278 App.Div. 253, 104 N.Y.S.2d 740. The Court of Appeals of New York affirmed. 303 N.Y. 242 , 101 N.E.2d 665. On appeal to this Court under 28 U.S.C. § 1257(2), reversed, p. 343 U. S. 506 . Page 343 U. S. 497 MR. JUSTICE CLARK delivered the opinion of the Court. The issue here is the constitutionality, under the First and Fourteenth Amendments, of a New York statute which permits the banning of motion picture films on the ground that they are "sacrilegious." That statute makes it unlawful "to exhibit, or to sell, lease or lend for exhibition at any place of amusement for pay or in connection with any business in the state of New York, any motion picture film or reel [with specified exceptions not relevant here], unless there is at the time in full force and effect a valid license or permit therefor of the education department. . . . [ Footnote 1 ]" The statute further provides: "The director of the [motion picture] division [of the education department] or, when authorized by the regents, the officers of a local office or bureau shall cause to be promptly examined every motion picture film submitted to them as herein required, and unless such film or a part thereof is obscene, indecent, immoral, inhuman, sacrilegious, or is of such a character that its exhibition would tend to corrupt morals or incite to crime, shall issue a license therefor. If such director or, when so authorized, such officer shall not license any film submitted, he shall furnish to the applicant therefor a written report of the reasons for his refusal and a description of each rejected part of a film not rejected in toto. [ Footnote 2 ]" Appellant is a corporation engaged in the business of distributing motion pictures. It owns the exclusive rights to distribute throughout the United States a film produced in Italy entitled "The Miracle." On November 30, 1950, after having examined the picture, the motion picture division of the New York education department, Page 343 U. S. 498 acting under the statute quoted above, issued to appellant a license authorizing exhibition of "The Miracle," with English subtitles, as one part of a trilogy called "Ways of Love." [ Footnote 3 ] Thereafter, for a period of approximately eight weeks, "Ways of Love" was exhibited publicly in a motion picture theater in New York City under an agreement between appellant and the owner of the theater whereby appellant received a stated percentage of the admission price. During this period, the New York State Board of Regents, which by statute is made the head of the education department, [ Footnote 4 ] received "hundreds of letters, telegrams, post cards, affidavits and other communications" both protesting against and defending the public exhibition of "The Miracle." [ Footnote 5 ] The Chancellor of the Board of Regents requested three members of the Board to view the picture and to make a report to the entire Board. After viewing the film, this committee reported to the Board that, in its opinion, there was basis for the claim that the picture was "sacrilegious." Thereafter, on January 19, 1951, the Regents directed appellant to show cause, at a hearing to be held on January 30, why its license to show "The Miracle" should not be rescinded on that ground. Appellant appeared at this hearing, which was conducted by the same three-member committee of the Regents which had previously viewed the picture, and challenged the jurisdiction of the committee and of the Regents to proceed with the case. With the consent of the committee, various interested persons and Page 343 U. S. 499 organizations submitted to it briefs and exhibits bearing upon the merits of the picture and upon the constitutional and statutory questions involved. On February 16, 1951, the Regents, after viewing "The Miracle," determined that it was "sacrilegious," and for that reason ordered the Commissioner of Education to rescind appellant's license to exhibit the picture. The Commissioner did so. Appellant brought the present action in the New York courts to review the determination of the Regents. [ Footnote 6 ] Among the claims advanced by appellant were (1) that the statute violates the Fourteenth Amendment as a prior restraint upon freedom of speech and of the press; (2) that it is invalid under the same Amendment as a violation of the guaranty of separate church and state and as a prohibition of the free exercise of religion; and, (3) that the term "sacrilegious" is so vague and indefinite as to offend due process. The Appellate Division rejected all of appellant's contentions and upheld the Regents' determination. 278 App.Div. 253, 104 N.Y.S.2d 740. On appeal the New York Court of Appeals, two judges dissenting, affirmed the order of the Appellate Division. 303 N.Y. 242 , 101 N.E.2d 665. The case is here on appeal. 28 U.S.C. § 1257(2). As we view the case, we need consider only appellant's contention that the New York statute is an unconstitutional abridgment of free speech and a free press. In Mutual Film Corp. v. Industrial Comm'n, 236 U. S. 230 (1915), a distributor of motion pictures sought to enjoin the enforcement of an Ohio statute which required the prior approval of a board of censors before any motion Page 343 U. S. 500 picture could be publicly exhibited in the state, and which directed the board to approve only such films as it adjudged to be "of a moral, educational or amusing and harmless character." The statute was assailed in part as an unconstitutional abridgment of the freedom of the press guaranteed by the First and Fourteenth Amendments. The District Court rejected this contention, stating that the first eight Amendments were not a restriction on state action. 215 F. 138, 141 (D.C.N.D. Ohio 1914). On appeal to this Court, plaintiff in its brief abandoned this claim and contended merely that the statute in question violated the freedom of speech and publication guaranteed by the Constitution of Ohio. In affirming the decree of the District Court denying injunctive relief, this Court stated: "It cannot be put out of view that the exhibition of moving pictures is a business pure and simple, originated and conducted for profit, like other spectacles, not to be regarded, nor intended to be regarded by the Ohio constitution, we think, as part of the press of the country or as organs of public opinion. [ Footnote 7 ]" In a series of decisions beginning with Gitlow v. New York, 268 U. S. 652 (1925), this Court held that the liberty of speech and of the press which the First Amendment guarantees against abridgment by the federal government is within the liberty safeguarded by the Due Process Clause of the Fourteenth Amendment from invasion by state action. [ Footnote 8 ] That principle has been Page 343 U. S. 501 followed and reaffirmed to the present day. Since this series of decisions came after the Mutual decision, the present case is the first to present squarely to us the question whether motion pictures are within the ambit of protection which the First Amendment, through the Fourteenth, secures to any form of "speech" or "the press." [ Footnote 9 ] It cannot be doubted that motion pictures are a significant medium for the communication of ideas. They may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression. [ Footnote 10 ] The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform. As was said in Winters v. New York, 333 U. S. 507 , 333 U. S. 510 (1948): "The line between the informing and the entertaining is too elusive for the protection of that basic right [a free press]. Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another's doctrine." It is urged that motion pictures do not fall within the First Amendment's aegis because their production, distribution, and exhibition is a large-scale business conducted for private profit. We cannot agree. That books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment. [ Footnote 11 ] Page 343 U. S. 502 We fail to see why operation for profit should have any different effect in the case of motion pictures. It is further urged that motion pictures possess a greater capacity for evil, particularly among the youth of a community, than other modes of expression. Even if one were to accept this hypothesis, it does not follow that motion pictures should be disqualified from First Amendment protection. If there be capacity for evil it may be relevant in determining the permissible scope of community control, but it does not authorize substantially unbridled censorship such as we have here. For the foregoing reasons, we conclude that expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments. To the extent that language in the opinion in Mutual Film Corp. v. Industrial Comm'n, supra, is out of harmony with the views here set forth, we no longer adhere to it. [ Footnote 12 ] To hold that liberty of expression by means of motion pictures is guaranteed by the First and Fourteenth Amendments, however, is not the end of our problem. It does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places. That much is evident from the series of decisions of this Court with respect to other Page 343 U. S. 503 media of communication of ideas. [ Footnote 13 ] Nor does it follow that motion pictures are necessarily subject to the precise rules governing any other particular method of expression. Each method tends to present its own peculiar problems. But the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary. Those principles, as they have frequently been enunciated by this Court, make freedom of expression the rule. There is no justification in this case for making an exception to that rule. The statute involved here does not seek to punish, as a past offense, speech or writing falling within the permissible scope of subsequent punishment. On the contrary, New York requires that permission to communicate ideas be obtained in advance from state officials who judge the content of the words and pictures sought to be communicated. This Court recognized many years ago that such a previous restraint is a form of infringement upon freedom of expression to be especially condemned. Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931). The Court there recounted the history which indicates that a major purpose of the First Amendment guaranty of a free press was to prevent prior restraints upon publication, although it was carefully pointed out that the liberty of the press is not limited to that protection. [ Footnote 14 ] It was further stated that "the protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only Page 343 U. S. 504 in exceptional cases." Id. at 283 U. S. 716 . In the light of the First Amendment's history and of the Near decision, the State has a heavy burden to demonstrate that the limitation challenged here presents such an exceptional case. New York's highest court says there is "nothing mysterious" about the statutory provision applied in this case: "It is simply this: that no religion, as that word is understood by the ordinary, reasonable person, shall be treated with contempt, mockery, scorn and ridicule. . . . [ Footnote 15 ]" This is far from the kind of narrow exception to freedom of expression which a state may carve out to satisfy the adverse demands of other interests of society. [ Footnote 16 ] In seeking to apply the broad and all-inclusive definition of "sacrilegious" given by the New York courts, the censor is set adrift upon a boundless sea amid a myriad of conflicting currents of religious views, with no Page 343 U. S. 505 charts but those provided by the most vocal and powerful orthodoxies. New York cannot vest such unlimited restraining control over motion pictures in a censor. Cf. Kunz v. New York, 340 U. S. 290 (1951). [ Footnote 17 ] Under such a standard the most careful and tolerant censor would find it virtually impossible to avoid favoring one religion over another, and he would be subject to an inevitable tendency to ban the expression of unpopular sentiments sacred to a religious minority. Application of the "sacrilegious" test, in these or other respects, might raise substantial questions under the First Amendment's guaranty of separate church and state with freedom of worship for all. [ Footnote 18 ] However, from the standpoint of freedom of speech and the press, it is enough to point out that the state has no legitimate interest in protecting any or all religions from views distasteful to them which is sufficient to justify prior restraints upon the expression of those views. It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches, or motion pictures. [ Footnote 19 ] Since the term "sacrilegious" is the sole standard under attack here, it is not necessary for us to decide, for example, Page 343 U. S. 506 whether a state may censor motion pictures under a clearly drawn statute designed and applied to prevent the showing of obscene films. That is a very different question from the one now before us. [ Footnote 20 ] We hold only that, under the First and Fourteenth Amendments, a state may not ban a film on the basis of a censor's conclusion that it is "sacrilegious." Reversed. [ Footnote 1 ] McKinney's N.Y. Laws, 1947, Education Law, § 129. [ Footnote 2 ] Id., § 122 [ Footnote 3 ] The motion picture division had previously issued a license for exhibition of "The Miracle" without English subtitles, but the film was never shown under that license. [ Footnote 4 ] McKinney's N.Y.Laws, 1947, Education Law, § 101; see also N.Y.Const., Art. V, § 4. [ Footnote 5 ] Stipulation between appellant and appellee, R. 86. [ Footnote 6 ] The action was brought under Article 78 of the New York Civil Practice Act, Gilbert-Bliss N.Y.Civ.Prac., Vol. 6B, 1944, 1949 Supp., § 1283 et seq. See also McKinney's N.Y.Laws, 1947, Education Law, § 124. [ Footnote 7 ] 236 U.S. at 236 U. S. 244 . [ Footnote 8 ] Gitlow v. New York, 268 U. S. 652 , 268 U. S. 666 (1925); Stromberg v. California, 283 U. S. 359 , 283 U. S. 368 (1931); Near v. Minnesota ex rel. Olson, 283 U. S. 697 , 283 U. S. 707 (1931); Grosjean v. American Press Co., 297 U. S. 233 , 297 U. S. 244 (1936); De Jonge v. Oregon, 299 U. S. 353 , 299 U. S. 364 (1937); Lovell v. Griffin, 303 U. S. 444 , 303 U. S. 450 (1938); Schneider v . State, 308 U. S. 147 , 308 U. S. 160 (1939). [ Footnote 9 ] See Lovell v. Griffin, 303 U. S. 444 , 303 U. S. 452 (1938). [ Footnote 10 ] See Inglis, Freedom of the Movies (1947), 20-24; Klapper, The Effects of Mass Media (1950), passim; Note, Motion Pictures and the First Amendment, 60 Yale L.J. 696, 70708 (1951), and sources cited therein. [ Footnote 11 ] See Grosjean v. American Press Co., 297 U. S. 233 (1936); Thomas v. Collins, 323 U. S. 516 , 323 U. S. 531 (1945). [ Footnote 12 ] See United States v. Paramount Pictures, Inc., 334 U. S. 131 , 334 U. S. 166 (1948): "We have no doubt that moving pictures, like newspapers and radio, arc included in the press whose freedom is guaranteed by the First Amendment." It is not without significance that talking pictures were first produced in 1926, eleven years after the Mutual decision. Hampton, A History of the Movies (1931), 382-383. [ Footnote 13 ] E.g., Feiner v. New York, 340 U. S. 315 (1951); Kovacs v. Cooper, 336 U. S. 77 (1949); Chaplinsky v. New Hampshire, 315 U. S. 568 (1942); Cox v. New Hampshire, 312 U. S. 569 (1941). [ Footnote 14 ] Near v. Minnesota ex rel. Olson, 283 U. S. 697 , 283 U. S. 713 -719 (1931); see also Lovell v. Griffin, 303 U. S. 444 , 303 U. S. 451 -452 (1938); Grosjean v. American Press Co., 297 U. S. 233 , 297 U. S. 245 -250 (1936); Patterson v. Colorado, 205 U. S. 454 , 205 U. S. 462 (1907). [ Footnote 15 ] 303 N.Y. 242 , 258, 101 N.E.2d 665, 672. At another point, the Court of Appeals gave "sacrilegious" the following definition: "the act of violating or profaning anything sacred." Id. at 255, 101 N.E.2d at 670. The Court of Appeals also approved the Appellate Division's interpretation: "As the court below said of the statute in question, 'All it purports to do is to bar a visual caricature of religious beliefs held sacred by one sect or another. . . .'" Id. at 258, 101 N.E.2d at 672. Judge Fuld, dissenting, concluded from all the statements in the majority opinion that "the basic criterion appears to be whether the film treats a religious theme in such a manner as to offend the religious beliefs of any group of persons. If the film does have that effect, and it is 'offered as a form of entertainment,' it apparently falls within the statutory ban regardless of the sincerity and good faith of the producer of the film, no matter how temperate the treatment of the theme, and no matter how unlikely a public disturbance or breach of the peace. The drastic nature of such a ban is highlighted by the fact that the film in question makes no direct attack on, or criticism of, any religious dogma or principle, and it is not claimed to be obscene, scurrilous, intemperate or abusive." Id. at 271-272, 101 N.E.2d at 680. [ Footnote 16 ] Cf. Thornhill v. Alabama, 310 U. S. 88 , 310 U. S. 97 (1940); Stromberg v. California, 283 U. S. 359 , 283 U. S. 369 -370 (1931). [ Footnote 17 ] Cf. Niemotko v. Maryland, 340 U. S. 268 (1951); Saia v. New York, 334 U. S. 558 (1948); Largent v. Texas, 318 U. S. 418 (1943); Lovell v. Griffin, 303 U. S. 444 (1938). [ Footnote 18 ] See Cantwell v. Connecticut, 310 U. S. 296 (1940). [ Footnote 19 ] See the following statement by Mr. Justice Roberts, speaking for a unanimous Court in Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 310 (1940): "In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields, the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy." "The essential characteristic of these liberties is, that, under their shield, many types of life, character, opinion and belief can develop unmolested and unobstructed. Nowhere is this shield more necessary than in our own country, for a people composed of many races and of many creeds." [ Footnote 20 ] In the Near case, this Court stated that "the primary requirements of decency may be enforced against obscene publications." 283 U. S. 697 , 283 U. S. 716 . In Chaplinsky v. New Hampshire, 315 U. S. 568 , 315 U. S. 571 -572 (1942), Mr. Justice Murphy stated for a unanimous Court: "There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words -- those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace." But see Kovacs v. Cooper, 336 U. S. 77 , 336 U. S. 82 (1949): "When ordinances undertake censorship of speech or religious practices before permitting their exercise, the Constitution forbids their enforcement." MR. JUSTICE REED, concurring in the judgment of the Court. Assuming that a state may establish a system for the licensing of motion pictures, an issue not foreclosed by the Court's opinion, our duty requires us to examine the facts of the refusal of a license in each case to determine Page 343 U. S. 507 whether the principles of the First Amendment have been honored. This film does not seem to me to be of a character that the First Amendment permits a state to exclude from public view. MR. JUSTICE FRANKFURTER, whom MR. JUSTICE JACKSON joins, concurring in the judgment of the Court; MR. JUSTICE BURTON, having concurred in the opinion of the Court, also joins this opinion. A practised hand has thus summarized the story of "The Miracle": [ Footnote 2/1 ] "A poor, simple-minded girl is tending a herd of goats on a mountainside one day when a bearded stranger passes. Suddenly it strikes her fancy that he is St. Joseph, her favorite saint, and that he has come to take her to heaven, where she will be happy and free. While she pleads with him to transport her, the stranger gently plies the girl with wine, and when she is in a state of tumult, he apparently ravishes her. (This incident in the story is only briefly and discreetly implied.)" "The girl awakens later, finds the stranger gone, and climbs down from the mountain not knowing whether he was real or a dream. She meets an old priest who tells her that it is quite possible that she did see a saint, but a younger priest scoffs at the notion. 'Materialist,' the old priest says." "There follows now a brief sequence -- intended to be symbolic, obviously -- in which the girl is reverently sitting with other villagers in church. Moved by a whim of appetite, she snitches an apple from the basket of a woman next to her. When she leaves the church, a cackling beggar tries to make her share Page 343 U. S. 508 the apple with him, but she chases him away, as by habit, and munches the fruit contentedly." "Then, one day, while tending the village youngsters as their mothers work at the vines, the girl faints and the women discover that she is going to have a child. Frightened and bewildered, she suddenly murmurs, 'It is the grace of God,' and she runs to the church in great excitement, looks for the statue of St. Joseph, and then prostrates herself on the floor." "Thereafter she meekly refuses to do any menial work, and the housewives humor her gently, but the young people are not so kind. In a scene of brutal torment, they first flatter and laughingly mock her, then they cruelly shove and hit her and clamp a basin as a halo on her head. Even abused by the beggars, the poor girl gathers together her pitiful rags and sadly departs from the village to live alone in a cave." "When she feels her time coming upon her, she starts back towards the village. But then she sees the crowds in the streets; dark memories haunt her; so she turns towards a church on a high hill and instinctively struggles towards it, crying desperately to God. A goat is her sole companion. She drinks water dripping from a rock. And when she comes to the church and finds the door locked, the goat attracts her to a small side door. Inside the church, the poor girl braces herself for her labor pains. There is a dissolve, and when we next see her sad face, in close-up, it is full of a tender light. There is the cry of an unseen baby. The girl reaches towards it and murmurs, 'My son, My love, My flesh!'" "The Miracle" -- a film lasting forty minutes -- was produced in Italy by Roberto Rossellini. Anna Magnani played the lead as the demented goat-tender. It was first shown at the Venice Film Festival in August, 1948, Page 343 U. S. 509 combined with another moving picture, "L'Umano Voce," into a diptych called "Amore." According to an affidavit from the Director of that Festival, if the motion picture had been "blasphemous," it would have been barred by the Festival Committee. In a review of the film in L'Osservatore Romano, the organ of the Vatican, its film critic, Piero Regnoli, wrote: "Opinions may vary, and questions may arise -- even serious ones -- of a religious nature (not to be diminished by the fact that the woman portrayed is mad [because] the author who attributed madness to her is not mad). . . . [ Footnote 2/2 ]" While acknowledging that there were "passages of undoubted cinematic distinction," Regnoli criticized the film as being "on such a pretentiously cerebral plane that it reminds one of the early d'Annunzio." The Vatican newspaper's critic concluded: "we continue to believe in Rossellini's art, and we look forward to his next achievement." [ Footnote 2/3 ] In October, 1948, a month after the Rome premiere of "The Miracle," the Vatican's censorship agency, the Catholic Cinematographic Centre, declared that the picture "constitutes in effect an abominable profanation from religious and moral viewpoints." [ Footnote 2/4 ] By the Lateran agreements and the Italian Constitution, the Italian Government is bound to bar whatever may offend the Catholic religion. However, the Catholic Cinematographic Centre did not invoke any governmental sanction thereby afforded. The Italian Government's censorship agency gave "The Miracle" the regular nulla osta clearance. The film was freely shown throughout Italy, but was not a great success. [ Footnote 2/5 ] Italian movie critics divided in opinion. The critic for II Popolo, speaking for the Christian Democratic Party, the Catholic Page 343 U. S. 510 party, profusely praised the picture as a "beautiful thing, humanly felt, alive, true and without religious profanation as someone has said, because, in our opinion, the meaning of the characters is clear, and there is no possibility of misunderstanding." [ Footnote 2/6 ] Regnoli again reviewed "The Miracle" for L'Osservatore Romano. [ Footnote 2/7 ] After criticising the film for technical faults, he found "the most courageous and interesting passage of Rossellini's work" in contrasting portrayals in the film; he added: "Unfortunately, concerning morals, it is necessary to note some slight defects." He objected to its "carnality" and to the representation of illegitimate motherhood. But he did not suggest that the picture was "sacrilegious." The tone of Regnoli's critique was one of respect for Rossellini, "the illustrious Italian producer." [ Footnote 2/8 ] On March 2, 1949, "The Miracle" was licensed in New York State for showing without English subtitles. [ Footnote 2/9 ] However, it was never exhibited until after a second license was issued on November 30, 1950, for the trilogy, "Ways of Love," combining "The Miracle" with two French films, Jean Renoir's "A Day in the Country" and Marcel Pagnol's "Jofroi." [ Footnote 2/10 ] All had English subtitles. Both licenses Page 343 U. S. 511 were issued in the usual course after viewings of the picture by the Motion Picture Division of the New York State Education Department. The Division is directed by statute to "issue a license" "unless [the] film or a part thereof is obscene, indecent, immoral, inhuman, sacrilegious, or is of such a character that its exhibition would tend to corrupt morals or incite to crime." N.Y. Education Law, § 122. The trilogy opened on December 12, 1950, at the Paris Theatre on 58th Street in Manhattan. It was promptly attacked as "a sacrilegious and blasphemous mockery of Christian religious truth" [ Footnote 2/11 ] by the National Legion of Decency, a private Catholic organization for film censorship, whose objectives have intermittently been approved by various non-Catholic church and social groups since its formation in 1933. [ Footnote 2/12 ] However, the National Board of Review (a non-industry lay organization devoted to raising the level of motion pictures by mobilizing public opinion, under the slogan "Selection Not Censorship") [ Footnote 2/13 ] recommended the picture as "especially worth seeing." New York critics on the whole praised "The Miracle"; those who dispraised did not suggest sacrilege. [ Footnote 2/14 ] On December 27, the critics selected the "Ways of Love" as the best foreign language Page 343 U. S. 512 film in 1950. [ Footnote 2/15 ] Meanwhile, on December 23, Edward T. McCaffrey, Commissioner of Licenses for New York City, declared the film "officially and personally blasphemous" and ordered it withdrawn at the risk of suspension of the license to operate the Paris Theatre. [ Footnote 2/16 ] A week later, the program was restored at the theatre upon the decision by the New York Supreme Court that the City Page 343 U. S. 513 License Commissioner had exceeded his authority in that he was without powers of movie censorship. [ Footnote 2/17 ] Upon the failure of the License Commissioner's effort to cut off showings of "The Miracle," the controversy took a new turn. On Sunday, January 7, 1951, a statement of His Eminence, Francis Cardinal Spellman, condemning the picture and calling on "all right-thinking citizens" to unite to tighten censorship laws, was read at all masses in St. Patrick's Cathedral. [ Footnote 2/18 ] The views of Cardinal Spellman aroused dissent among other devout Christians. Protestant clergymen, representing Page 343 U. S. 514 various denominations, after seeing the picture, found in it nothing "sacrilegious or immoral to the views held by Christian men and women," and, with a few exceptions, agreed that the film was "unquestionably one of unusual artistic merit." [ Footnote 2/19 ] In this estimate, some Catholic laymen concurred. [ Footnote 2/20 ] Their opinion is represented by the comment by Otto L. Spaeth, Director of the American Federation of Arts and prominent in Catholic lay activities: "At the outbreak of the controversy, I immediately arranged for a private showing of the film. I invited a group of Catholics, competent and respected for their writings on both religious and cultural subjects. The essential approval of the film was unanimous." "There was indeed 'blasphemy' in the picture -- but it was the blasphemy of the villagers, who stopped at nothing, not even the mock singing of a Page 343 U. S. 515 hymn to the Virgin, in their brutal badgering of the tragic woman. The scathing indictment of their evil behavior, implicit in the film, was seemingly overlooked by its critics. [ Footnote 2/21 ]" William P. Clancy, a teacher at the University of Notre Dame, wrote in The Commonweal, the well known Catholic weekly, that "the film is not obviously blasphemous or obscene, either in its intention or execution." [ Footnote 2/22 ] The Commonweal itself questioned the wisdom of transforming Church dogma which Catholics may obey as "a free act" into state-enforced censorship for all. [ Footnote 2/23 ] Allen Tate, the well known Catholic poet and critic, wrote: "The picture seems to me to be superior in acting and photography but inferior dramatically. . . . In the long run, what Cardinal Spellman will have succeeded in doing is insulting the intelligence and faith of American Catholics with the assumption that a second-rate motion picture could in any way undermine their morals or shake their faith. [ Footnote 2/24 ]" At the time "The Miracle" was filmed, all the persons having significant positions in the production -- producer, director, and cast -- were Catholics. Roberto Rossellini, who had Vatican approval in 1949 for filming a life of St. Francis, using in the cast members of the Franciscan Page 343 U. S. 516 Order, cabled Cardinal Spellman protesting against boycott of "The Miracle": "In The Miracle men, are still without pity because they still have not come back to God, but God is already present in the faith, however confused, of that poor, persecuted woman, and since God is wherever a human being suffers and is misunderstood, The Miracle occurs when at the birth of the child the poor, demented woman regains sanity in her maternal love. [ Footnote 2/25 ]" In view of the controversy thus aroused by the picture, the Chairman of the Board of Regents appointed a committee of three Board members to review the action of the Motion Picture Division in granting the two licenses. After viewing the picture on Jan. 15, 1951, the committee declared it "sacrilegious." The Board four days later issued an order to the licensees to show cause why the licenses should not be cancelled in that the picture was "sacrilegious." The Board of Regents rescinded the licenses on Feb. 16, 1951, saying that the "mockery or profaning of these beliefs that are sacred to any portion of our citizenship is abhorrent to the laws of this great State." On review the Appellate Division upheld the Board of Regents, holding that the banning of any motion picture "that may fairly be deemed sacrilegious to the adherents of any religious group . . . is directly related to public peace and order," and is not a denial of religious freedom, and that there was "substantial evidence upon which the Regents could act." 278 App.Div. 253, 257, 258, 260, 104 N.Y.S.2d 740, 743, 744-745, 747. The New York Court of Appeals, with one judge concurring in a separate opinion and two others dissenting, Page 343 U. S. 517 affirmed the order of the Appellate Division. 303 N.Y. 242 , 101 N.E.2d 665. After concluding that the Board of Regents acted within its authority and that is determination was not "one that no reasonable mind could reach," id. at 250-255, 256-257, 101 N.E.2d 665, 667-671, the majority held, first, that "sacrilegious" was an adequately definite standard, quoting a definition from Funk & Wagnalls' Dictionary and referring to opinions in this Court that, in passing used the term "profane," which the New York court said was a synonym of "sacrilegious"; second, that the State's assurance "that no religion . . . shall be treated with contempt, mockery, scorn and ridicule . . . by those engaged in selling entertainment by way of motion pictures" does not violate the religious guarantee of the First Amendment, and third, that motion pictures are not entitled to the immunities from regulation enjoyed by the press, in view of the decision in Mutual Film Corp. v. Ohio Industrial Comm'n, 236 U. S. 230 . Id. at 255-256 [argument of counsel -- omitted], 236 U. S. 258 -260, 260 U. S. 260 -262, 101 N.E.2d 670-674. The two dissenting judges, after dealing with a matter of local law not reviewable here, found that the standard "sacrilegious" is unconstitutionally vague, and, finally, that the constitutional guarantee of freedom of speech applied equally to motion pictures, and prevented this censorship. 303 N.Y. 242 , 264, 101 N.E.2d 665, 675. Both State courts, as did this Court, viewed "The Miracle." Arguments by the parties and in briefs amici invite us to pursue to their farthest reach the problems in which this case is involved. Positions are advanced so absolute and abstract that, in any event, they could not properly determine this controversy. See Ashwander v. Tennessee Valley Authority, 297 U. S. 288 , 297 U. S. 341 , 297 U. S. 346 -348. We are asked to decide this case by choosing between two mutually exclusive alternatives: that motion pictures may be subjected to unrestricted censorship, or that they Page 343 U. S. 518 must be allowed to be shown under any circumstances. But only the tyranny of absolutes would rely on such alternatives to meet the problems generated by the need to accommodate the diverse interests affected by the motion pictures in compact modern communities. It would startle Madison and Jefferson and George Mason, could they adjust themselves to our day, to be told that the freedom of speech which they espoused in the Bill of Rights authorizes a showing of "The Miracle" from windows facing St. Patrick's Cathedral in the forenoon of Easter Sunday, [ Footnote 2/26 ] just as it would startle them to be told that any picture, whatever its theme and its expression, could be barred from being commercially exhibited. The general principle of free speech, expressed in the First Amendment as to encroachments by Congress, and included as it is in the Fourteenth Amendment, binding on the States, must be placed in its historical and legal contexts. The Constitution, we cannot recall too often, is an organism, not merely a literary composition. If the New York Court of Appeals had given "sacrilegious" the meaning it has had in Catholic thought since St. Thomas Aquinas formulated its scope, and had sustained a finding by the Board of Regents that "The Miracle" came within that scope, this Court would have to meet some of the broader questions regarding the relation to the motion picture industry of the guarantees of the First Amendment so far as reflected in the Fourteenth. But the New York court did not confine "sacrilegious" within such technical, Thomist limits, nor within any specific, or even approximately specified, limits. It may fairly be said that that court deemed "sacrilegious" a self-defining term, a word that carries a well known, settled meaning in the common speech of men. Page 343 U. S. 519 So far as the Court of Appeals sought to support its notion that "sacrilegious" has the necessary precision of meaning which the Due Process Clause enjoins for statutes regulating men's activities, it relied on this definition from Funk & Wagnalls' Dictionary: "The act of violating or profaning anything sacred." But this merely defines by turning an adjective into a noun and bringing in two new words equally undefined. It leaves wide open the question as to what persons, doctrines or things are "sacred." It sheds no light on what representations on the motion picture screen will constitute "profaning" those things which the State censors find to be "sacred." To criticize or assail religious doctrine may wound to the quick those who are attached to the doctrine and profoundly cherish it. But to bar such pictorial discussion is to subject non-conformists to the rule of sects. Even in Mutual Film Corp. v. Ohio Industrial Comm'n, 236 U. S. 230 , it was deemed necessary to find that the terms "educational, moral, amusing or harmless" do not leave "decision to arbitrary judgment." Such general words were found to "get precision from the sense and experience of men." Id. at 236 U. S. 245 , 236 U. S. 246 . This cannot be said of "sacrilegious." If there is one thing that the history of religious conflicts shows, it is that the term "sacrilegious" -- if by that is implied offense to the deep convictions of members of different sects, which is what the Court of Appeals seems to mean so far as it means anything precisely -- does not gain "precision from the sense and experience of men." The vast apparatus of indices and digests, which mirrors our law, affords no clue to a judicial definition of sacrilege. Not one case, barring the present, has been uncovered which considers the meaning of the term in any context. Nor has the practice under the New York law contributed light. The Motion Picture Division of the Education Department does not support with explanatory Page 343 U. S. 520 statements its action on any specific motion picture, which we are advised is itself not made public. Of the fifty-odd reported appeals to the Board of Regents from denials of licenses by the Division, only three concern the category "sacrilegious." [ Footnote 2/27 ] In these cases, as in others under the Act, the Board's reported opinion confines itself to a bare finding that the film was or was not "sacrilegious," without so much as a description of the allegedly offensive matter, or even of the film as a whole to enlighten the inquirer. Well equipped law libraries are not niggardly in their reflection of "the sense and experience of men," but we must search elsewhere for any which gives to "sacrilege" its meaning. Sacrilege, [ Footnote 2/28 ] as a restricted ecclesiastical concept, has a long history. Naturally enough, religions have sought to protect their priests and anointed symbols from physical injury. [ Footnote 2/29 ] But history demonstrates that the term is hopelessly vague when it goes beyond such ecclesiastical definiteness and is used at large as the basis for punishing deviation from doctrine. Etymologically, "sacrilege" is limited to church-robbing: sacer, sacred, and legere, to steal or pick out. But we are Page 343 U. S. 521 told that "already in Cicero's time it had grown to include in popular speech any insult or injury to [sacred things]." [ Footnote 2/30 ] "In primitive religions [sacrilege is] inclusive of almost every serious offence even in fields now regarded as merely social or political. . . ." [ Footnote 2/31 ] The concept of "tabu" in primitive society is thus close to that of "sacrilege." [ Footnote 2/32 ] And in "the Theodosian Code the various crimes which are accounted sacrilege include -- apostasy, heresy, schism, Judaism, paganism, attempts against the immunity of churches and clergy or privileges of church courts, the desecration of sacraments, etc., and even Sunday. Along with these crimes against religion went treason to the emperor, offences against the laws, especially counterfeiting, defraudation in taxes, seizure of confiscated property, evil conduct of imperial officers, etc. [ Footnote 2/33 ]" During the Middle Ages the Church considerably delimited the application of the term. St. Thomas Aquinas classified the objects of "sacrilege" as persons places, and thing. [ Footnote 2/34 ] The injuries which would constitute Page 343 U. S. 522 "sacrilege" received specific and detailed illustration. [ Footnote 2/35 ] This teaching of Aquinas is, I believe, still substantially the basis of the official Catholic doctrine of sacrilege. Thus, for the Roman Catholic Church, the term came to have a fairly definite meaning, but one, in general, limited to protecting things physical against injurious acts. [ Footnote 2/36 ] Apostasy, heresy, and blasphemy coexisted as religious crimes alongside sacrilege; they were peculiarly in the realm of religious dogma and doctrine, as "sacrilege" was not. It is true that Spelman, writing "The History and Fate of Sacrilege" in 1632, included in "sacrilege" acts whereby "the very Deity is invaded, profaned, or robbed of its glory. . . . In this high sin are blasphemers, Page 343 U. S. 523 sorcerers, witches, and enchanters. [ Footnote 2/37 ]" But his main theme was the "spoil of church lands done by Henry VIII" and the misfortunes that subsequently befell the families of the recipients of former ecclesiastical property as divine punishment. To the extent that English law took jurisdiction to punish "sacrilege," the term meant the stealing from a church, or otherwise doing damage to church property. [ Footnote 2/38 ] This special protection against "sacrilege," that is, property damage, was granted only to the Established Church. [ Footnote 2/39 ] Since the repeal less than a century ago of the English law punishing "sacrilege" against the property of the Established Church, religious property has received little special protection. The property of all sects has had substantially the same protection as is accorded non-religious property. [ Footnote 2/40 ] At no time up to the present has English law known "sacrilege" to be used in any wider sense than the physical injury to church property. It is true that, at times in the past, English law has Page 343 U. S. 524 taken jurisdiction to punish departures from accepted dogma or religious practice or the expression of particular religious opinions, but never have these "offenses" been denominated "sacrilege." Apostasy, heresy, offenses against the Established Church, blasphemy, profanation of the Lord's Day, etc., were distinct criminal offenses, characterized by Blackstone as "offences against God and religion." [ Footnote 2/41 ] These invidious reflections upon religious susceptibilities were not covered under sacrilege as they might be under the Court of Appeals' opinion. Anyone doubting the dangerous uncertainty of the New York definition, which makes "sacrilege" overlap these other "offenses against religion," need only read Blackstone's account of the broad and varying content given each of these offenses. A student of English lexicography would despair of finding the meaning attributed to "sacrilege" by the New York court. [ Footnote 2/42 ] Most dictionaries define the concept in the limited sense of the physical abuse of physical objects. The definitions given for "sacrilege" by two dictionaries published in 1742 and 1782 are typical. Bailey's defined it as "the stealing of Sacred Things, Church Robbing; an Alienation to Laymen, and to profane and common Purposes, of what was given to religious Persons, and to pious Uses. [ Footnote 2/43 ]" Barclay's said it is "the crime of taking any thing dedicated to divine worship, or profaning any thing sacred," where "to profane" is defined "to apply any thing sacred to common uses. To be irreverent to sacred persons or things." [ Footnote 2/44 ] The Page 343 U. S. 525 same dictionaries defined "blasphemy," a peculiarly verbal offense, in much broader terms than "sacrilege," indeed in terms which the New York court finds encompassed by "sacrilegious." For example, Barclay said "blasphemy" is "an offering some indignity to God, any person of the Trinity, any messengers from God, his holy writ, or the doctrines of revelation." [ Footnote 2/45 ] It is hardly necessary to comment that the limits of this definition remain too uncertain to justify constraining the creative efforts of the imagination by fear of pains and penalties imposed by a necessarily subjective censorship. It is true that some earlier dictionaries assigned to "sacrilege" the broader meaning of "abusing Sacraments or holy Mysteries," [ Footnote 2/46 ] but the broader meaning is more indefinite, not less. Noah Webster first published his American Dictionary in 1828. Both it and the later dictionaries published by the Merriam Company, Webster's International Dictionary and Webster's New International Dictionary, have gone through dozens of editions and printings, revisions and expansions. In all editions throughout 125 years, these American dictionaries have defined "sacrilege" and "sacrilegious" to echo substantially the narrow, technical definitions from the earlier British dictionaries collected in the Appendix, post, p. 343 U. S. 533 . [ Footnote 2/47 ] Page 343 U. S. 526 The New York Court of Appeals' statement that the dictionary "furnishes a clear definition," justifying the vague scope it gave to "sacrilegious," surely was made without regard to the lexicographic history of the term. As a matter of fact, the definition from Funk & Wagnalls' used by the Court of Appeals is taken straight from 18th Century dictionaries, particularly Doctor Johnson's. [ Footnote 2/48 ] In light of that history, it would seem that the Funk & Page 343 U. S. 527 Wagnalls' definition uses "sacrilege" in its historically restricted meaning, which was not, and could hardly have been, the basis for condemning "The Miracle." If the New York court reads the Funk & Wagnalls' definition in a broader sense, in a sense for which history and experience provide no gloss, it inevitably left the censor free to judge by whatever dogma he deems "sacred" and to ban whatever motion pictures he may assume would "profane" religious doctrine widely enough held to arouse protest. Examination of successive editions of the Encyclopaedia Britannica over nearly two centuries up to the present day gives no more help than the dictionaries. From 1768 to the eleventh edition in 1911, merely a brief dictionary-type definition was given for "sacrilege." [ Footnote 2/49 ] The eleventh edition, which first published a longer article, was introduced as follows: "the violation or profanation of sacred things, a crime of varying scope in different religions. It is naturally much more general and accounted more dreadful in those primitive religions in Page 343 U. S. 528 which cultural objects play so great a part, than in more highly spiritualized religions where they tend to disappear. But wherever the idea of sacred exists, sacrilege is possible. [ Footnote 2/50 ]" The article on "sacrilege" in the current edition of the Encyclopaedia Britannica is substantially the same as that, in the 1911 edition. History teaches us the indefiniteness of the concept "sacrilegious" in another respect. In the case of most countries and times where the concept of sacrilege has been of importance, there has existed an established church or a state religion. That which was "sacred," and so was protected against "profaning," was designated in each case by ecclesiastical authority. What might have been definite when a controlling church imposed a detailed scheme of observances becomes impossibly confused and uncertain when hundreds of sects, with widely disparate and often directly conflicting ideas of sacredness, enjoy, without discrimination and in equal measure, constitutionally guaranteed religious freedom. In the Rome of the late emperors, the England of James I, or the Geneva of Calvin, and today in Roman Catholic Spain, Mohammedan Saudi Arabia, or any other country with a monolithic religion, the category of things sacred might have clearly definable limits. But in America, the multiplicity of the ideas of "sacredness" held with equal but conflicting fervor by the great number of religious groups makes the term "sacrilegious" too indefinite to satisfy constitutional demands based on reason and fairness. If "sacrilegious" bans more than the physical abuse of sacred persons, places, or things, if it permits censorship of religious opinions, which is the effect of the holding below, the term will include what may be found to be "blasphemous." England's experience with that treacherous word should give us pause, apart from our Page 343 U. S. 529 requirements for the separation of Church and State. The crime of blasphemy in Seventeenth Century England was the crime of dissenting from whatever was the current religious dogma. [ Footnote 2/51 ] King James I's "Book of Sports" was first required reading in the churches; later all copies were consigned to the flames. To attack the mass was once blasphemous; to perform it became so. At different times during that century, with the shifts in the attitude of government towards particular religious views, persons who doubted the doctrine of the Trinity ( e.g., Unitarians, Universalists, etc.) or the divinity of Christ, observed the Sabbath on Saturday, denied the possibility of witchcraft, repudiated child baptism or urged methods of baptism other than sprinkling, were charged as blasphemers, or their books were burned or banned as blasphemous. Blasphemy was the chameleon phrase which meant the criticism of whatever the ruling authority of the moment established as orthodox religious doctrine. [ Footnote 2/52 ] While it is true that blasphemy prosecutions Page 343 U. S. 530 have continued in England -- although in lessening numbers -- into the present century, [ Footnote 2/53 ] the existence there of an established church gives more definite contours to the crime in England than the term "sacrilegious" can possibly have in this country. Moreover, the scope of the English common law crime of blasphemy has been considerably limited by the declaration that "if the decencies of controversy are observed, even the fundamentals of religion may be attacked," [ Footnote 2/54 ] a limitation which the New York court has not put upon the Board of Regents' power to declare a motion picture "sacrilegious." In Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 310 , Mr. Justice Roberts, speaking for the whole Court, said: "In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields, the tenets of one man may seem the rankest error to his neighbor." Conduct and beliefs dear to one may seem the rankest "sacrilege" to another. A few examples suffice to show the difficulties facing a conscientious censor or motion picture producer or distributor in determining what the New York statute condemns as sacrilegious. A motion picture portraying Christ as divine -- for example, a movie showing medieval Church art -- would offend the religious opinions of the members of several Protestant denominations who do not believe in the Trinity, as well as those of a non-Christian faith. Conversely, one showing Christ as merely an ethical teacher could not but offend millions of Christians of many denominations. Which is "sacrilegious"? The doctrine of transubstantiation, and the veneration of relics or particular stone and wood embodiments of saints or divinity, both sacred to Page 343 U. S. 531 Catholics, are offensive to a great many Protestants, and therefore, for them, sacrilegious in the view of the New York court. Is a picture treating either subject, whether sympathetically, unsympathetically, or neutrally, "sacrilegious"? It is not a sufficient answer to say that "sacrilegious" is definite, because all subjects that in any way might be interpreted as offending the religious beliefs of any one of the 300 sects of the United States [ Footnote 2/55 ] are banned in New York. To allow such vague, undefinable powers of censorship to be exercised is bound to have stultifying consequences on the creative process of literature and art -- for the films are derived largely from literature. History does not encourage reliance on the wisdom and moderation of the censor as a safeguard in the exercise of such drastic power over the minds of men. We not only do not know, but cannot know, what is condemnable by "sacrilegious." And if we cannot tell, how are those to be governed by the statute to tell? It is this impossibility of knowing how far the form of words by which the New York Court of Appeals explained "sacrilegious" carries the proscription of religious subjects that makes the term unconstitutionally vague. [ Footnote 2/56 ] To stop short of proscribing all subjects that might conceivably be interpreted to be religious, inevitably creates a situation whereby the censor bans only that against which Page 343 U. S. 532 there is a substantial outcry from a religious group. And that is the fair inference to be drawn, as a matter of experience, from what has been happening under the New York censorship. Consequently the film industry, normally not guided by creative artists, and cautious in putting large capital to the hazards of courage, would be governed by its notions of the feelings likely to be aroused by diverse religious sects, certainly the powerful ones. The effect of such demands upon art and upon those whose function is to enhance the culture of a society need not be labored. To paraphrase Doctor Johnson, if nothing may be shown but what licensors may have previously approved, power, the yea-or-nay-saying by officials, becomes the standard of the permissible. Prohibition through words that fail to convey what is permitted and what is prohibited for want of appropriate objective standards, offends Due Process in two ways. First, it does not sufficiently apprise those bent on obedience of law of what may reasonably be foreseen to be found illicit by the law-enforcing authority, whether court or jury or administrative agency. Secondly, where licensing is rested, in the first instance, in an administrative agency, the available judicial review is in effect rendered inoperative. On the basis of such a portmanteau word as "sacrilegious," the judiciary has no standards with which to judge the validity of administrative action which necessarily involves, at least in large measure, subjective determinations. Thus, the administrative first step becomes the last step. Page 343 U. S. 533 From all that has been said, one is compelled to conclude that the term "sacrilegious" has come down the stream of time encrusted with a specialized, strictly confined meaning, pertaining to things in space, not things in the mind. The New York Court of Appeals did not give the term this calculable content. It applied it to things in the mind, and things in the mind so undefined, so at large, as to be more patently in disregard of the requirement for definiteness, as the basis of proscriptions and legal sanctions for their disobedience, than the measures that were condemned as violative of Due Process in United States v. Cohen Grocery Co., 255 U. S. 81 ; A. B. Small Co. v. American Sugar Refining Co., 267 U. S. 233 ; Connally v. General Construction Co., 269 U. S. 385 ; Winters v. New York, 333 U. S. 507 ; Kunz v. New York, 340 U. S. 290 . This principle is especially to be observed when what is so vague seeks to fetter the mind and put within unascertainable bounds the varieties of religious experience. | 343 U.S. 495 app| APPENDIX TO OPINION OF MR. JUSTICE FRANKFURTER 343 U.S. 495 app|>* Cockeram, English Dictionarie (10th ed., London, 1651). Blasphemy: No entry. Sacrilege: "The robbing of a Church, the stealing of holy things, abusing of Sacraments or holy Mysteries." Sacrilegious: "Abominable, very wicked." Blount, Glossographia (3d ed., London, 1670). Blasphemy: No entry. Sacrilege: "the robbing a Church, or other holy consecrated place, the stealing holy things, or abusing Sacraments or holy Mysteries." Sacrilegious: "that robs the Church; wicked, extremely bad." Page 343 U. S. 534 Blount, A Law-Dictionary (London, 1670). Blasphemy: No entry. Sacrilege: No entry. Phillips, The New World of Words (3d ed., London, 1671). Blasphemy: "an uttering of reproachfull words, tending either to the dishonour of God, or to the hurt and disgrace of any man's name and credit." Sacrilegious: "committing Sacriledge, i.e. a robbing of Churches, or violating of holy things." Cowel, The Interpreter of Words and Terms (Manley ed., London, 1701). Blasphemy: No entry. Sacrilege: "an Alienation to Lay-Men, and to profane or common purposes, of what was given to Religious Persons, and to Pious Uses, etc." Rastell, Law Terms (London, 1708). Blasphemy: No entry. Sacrilege: "is, when one steals any Vessels, Ornaments, or Goods of Holy Church, which is felony, 3 Cro. 153, 154." Kersey, A General English Dictionary (3d ed., London, 1721). Blasphemy: "an uttering of reproachful Words, that tend to the Dishonour of God, &c." Sacrilege: "the stealing of Sacred Things, Church robbing." Cocker, English Dictionary (London, 1724). Blasphemy: No entry. Sacrilege: "robbing the Church, or what is dedicated thereto." Bailey, Universal Etymological English Dictionary (London, 1730). Blasphemy: "an uttering of reproachful words tending to the dishonour of God, &c. vile, base language." Page 343 U. S. 535 Sacrilege: "the stealing of sacred Things, Church-Robbing; the Crime of profaning sacred Things, or alienating to Laymen, or common Uses, what was given to pious Uses and religious Persons." Coles, An English Dictionary (London, 1732). Blasphemy: "reproach." Sacrilege: "the robbing of God, the church, &c." Bullokar, The English Expositor (14th ed., London, 1731). Blasphemy: No entry. Sacrilege: "The Robbing of a Church; the Stealing of holy things, or Abusing of Sacraments or holy Mysteries." Defoe, A Compleat English Dictionary (Westminster, 1735). Blasphemy: "vile or opprobrious Language, tending to the Dishonour of God." Sacrilege: "the stealing of sacred Things, Church robbing." Bailey, An Universal Etymological English Dictionary (London, 1742). Blasphemy: "Cursing and Swearing, vile reproachful Language, tending to the Dishonour of God." Sacrilege: "the stealing of Sacred Things, Church Robbing; an Alienation to Laymen, and to profane and common Purposes, of what was given to religious Persons, and to pious Uses." Martin, A New Universal English Dictionary (London, 1754). Blasphemy: "cursing, vile language tending to the dishonour of God or religion." Sacrilege: "the stealing things out of a holy place, or the profaning things devoted to God." Page 343 U. S. 536 Johnson, A Dictionary of the English Language (2d ed., London, 1755). Blasphemy: "strictly and properly, is an offering of some indignity, or injury, unto God himself, either by words or writing." Sacrilege: "The crime of appropriating to himself what is devoted to religion; the crime of robbing heaven; the crime of violating or profaning things sacred." Rider, A New Universal English Dictionary (London, 1759). Blasphemy: "an offering some indignity to God, any person of the Trinity, any messengers from God; his holy writ, or the doctrines of revelation, either by speaking or writing any thing ill of them, or ascribing any thing ill to them inconsistent with their natures and the reverence we owe them." Sacrilege: "the crime of taking any thing dedicated to divine worship. The crime of profaning any thing sacred." Profane: "to apply any thing sacred to common use. To be irreverent to sacred persons or things. To put to a wrong use." Gordon and Marchant, A New Complete English Dictionary (London, 1760). Blasphemy: "is an offering some indignity to God himself." Sacrilege: "is the crime of appropriating to himself what is devoted to religion; the crime of robbing Heaven." Buchanan, A New English Dictionary (London, 1769). Blasphemy: "Language tending to the dishonour of God." Sacrilege: "The stealing things out of a holy place." Page 343 U. S. 537 Cunningham, A New and Complete Law-Dictionary (London, 1771). Blasphemy: A long definition reading in part: "Is an injury offered to God, by denying that which is due and belonging to him, or attributing to him what is not agreeable to his nature." Sacrilege: "Is church robbery, or a taking of things out of a holy place; as where a person steals any vessels, ornaments, or goods of the church. And it is said to be a robbery of God, at least of what is dedicated to his service." 2 Cro. 153, 154. " . . . an alienation to lay-men, and to profane or common purposes, of what was given to religious persons, and to pious uses." Kenrick, A New Dictionary of the English Language (London, 1773). Blasphemy: "Treating the name and attributes of the Supreme Being with insult and indignity." Sacrilege: "The crime of appropriating to himself what is devoted to religion; the crime of robbing heaven, says Johnson; the crime of violating or profaning things sacred." Profane: "To violate; to pollute. -- To put to wrong use." Ash, The New and Complete Dictionary of the English Language (London, 1775). Blasphemy: "The act of speaking or writing reproachfully of the Divine Being, the act of attributing to the creature that which belongs to the Creator." Sacrilege: "The act of appropriating to one's self what is devoted to religion, the crime of violating sacred things." Page 343 U. S. 538 Dyche, A New General English Dictionary (London, 1777). Blasphemy: "the reproaching or dlshonouring God, religion, and holy things." Sacrilege: "the stealing or taking away those things that were appropriated to religious uses or designs." Sacrilegious: "of a profane, thievish nature, sort, or disposition." Barclay, A Complete and Universal English Dictionary (London, 1782). Blasphemy: "an offering some indignity to God, any person of the Trinity, any messengers from God, his holy writ, or the doctrines of revelation." Sacrilege: "the crime of taking any thing dedicated to divine worship, or profaning any thing sacred." Profane: "to apply any thing sacred to common use. To be irreverent to sacred persons or things." Lemon, English Etymology (London, 1783). Blaspheme: "to speak evil of any one; to injure his fame, or reputation." Sacrilege: No entry. Entick, New Spelling Dictionary (London, 1786). Blasphemy: "indignity offered to God." Blasphemer: "one who abuses God." Sacrilege: "the robbery of a church or chapel." Sacrilegious: "violating a thing made sacred." Burn, A New Law Dictionary (Dublin, 1792). Blasphemy: "See Prophaneness." Profaneness: A long definition, not reproduced here. Sacrilege: "robbing of the church, or stealing things out of a sacred place." Sheridan, A Complete Dictionary of the English Language (6th ed., Phila., 1796). Blasphemy: "Offering of some indignity to God." Sacrilege: "The crime of robbing a church." Page 343 U. S. 539 Scott, Dictionary of the English Language (Edinburgh, 1797). Blasphemy: "indignity offered to God." Sacrilege: "the robbery of a church, &c." Richardson, A New Dictionary of the English Language (London, 1839). Blasphemy: "To attack, assail, insult, (the name, the attributes, the ordinances, the revelations, the will or government of God.)" Sacrilege: "to take away, to steal any thing sacred, or consecrated, or dedicated to holy or religious uses." Bell, A Dictionary and Digest of the Law of Scotland (Edinburgh, 1861). Blasphemy: "is the denying or vilifying of the Deity, by speech or writing." Sacrilege: "is any violation of things dedicated to the offices of religion." Staunton, An Ecclesiastical Dictionary (N.Y. 1861). Blasphemy: A long entry. Sacrilege: "The act of violating or subjecting sacred things to profanation; or the desecration of objects consecrated to God. Thus, the robbing of churches or of graves, the abuse of sacred vessels and altars by employing them for unhallowed purposes, the plundering and misappropriation of alms and donations, are acts of sacrilege, which in the ancient Church were punished with great severity." Bouvier, A Law Dictionary (11th ed., Phila., 1866). Blasphemy: "To attribute to God that which is contrary to his nature, and does not belong to him, and to deny what does; or it is a false reflection uttered with a malicious design of reviling God." Page 343 U. S. 540 Sacrilege: "The act of stealing from the temples or churches dedicated to the worship of God, articles consecrated to divine uses." Shipley, A Glossary of Ecclesiastical Terms (London, 1872). Blasphemy: "Denying the existence or providence of God; contumelous reproaches of Jesus Christ; profane scoffing at the holy Scriptures, or exposing any part thereof to contempt or ridicule." Sacrilege: "The profanation or robbery of persons or things which have been solemnly dedicated to the service of God. v. 24 & 25 Vict. c. 96, s. 50." Brown, A Law Dictionary (Sprague ed., Albany, 1875). Blasphemy: "To revile at or to deny the truth of Christianity as by law established, is a blasphemy, and as such is punishable by the common law. . . ." Sacrilege: "A desecration of any thing that is holy. The alienation of lands which were given to religious purposes to laymen, or to profane and common purposes, was also termed sacrilege." | 343 U.S. 495 app| * See Mathews, A Surrey of English Dictionaries (1933). [ Footnote 2/1 ] Crowther, "The Strange Case of The Miracle,'" Atlantic Monthly, April, 1951, pp. 35, 36-37. [ Footnote 2/2 ] L'Osservatore Romano, Aug. 25, 1948, p. 2, col. 1, translated in part in The Commonweal, Mar. 23, 1951, p 592, col. 2. [ Footnote 2/3 ] Ibid. [ Footnote 2/4 ] N.Y. Times, Feb. 11, 1951, § 2, p. 4, cols. 4-5. [ Footnote 2/5 ] Time, Feb.19, 1951, pp. 60-61. [ Footnote 2/6 ] II Popolo, Nov. 3, 1948, p. 2, col. 9, translated by Camille M. Cianfarra, N.Y. Times, Feb. 11, 1951, § 2, p. 4, col. 5. [ Footnote 2/7 ] L'Osservatore Romano, Nov. 12, 1948, p. 2, cols. 3-4. [ Footnote 2/8 ] Ibid. [ Footnote 2/9 ] "The Miracle" was passed by customs. To import "Any obscene lewd, lascivious, or filthy . . . motion-picture film" is a criminal offense, 35 Stat. 1088, 1138, 18 U.S.C. (Supp. IV) § 1462, and importation of any obscene "print" or "picture" is barred. 46 Stat. 590, 688, 19 U.S.C. § 1305. Compare the provision, "all photographic-films imported . . . shall be subject to such censorship as may be imposed by the Secretary of the Treasury." 38 Stat. 114 151 (1913), 42 Stat. 858, 920 (1922), repealed 46 Stat. 590, 762 (1930). See Inglis, Freedom of the Movies, 68. [ Footnote 2/10 ] Life, Jan. 15, 1951, p. 63; Sat.Rev. of Lit., Jan. 27, 1951, pp. 28-29. [ Footnote 2/11 ] N.Y. Times, Dec. 31, 1950, p. 23, col. 4. [ Footnote 2/12 ] Inglis, Freedom of the Movies, 120 et seq. [ Footnote 2/13 ] Id. at 74-82. [ Footnote 2/14 ] Howard Barnes, N.Y. Herald Tribune, Dec. 13, 1950, p. 30, cols. 1-3: "it would be wise to time a visit to the Paris in order to skip [ The Miracle']. . . . Altogether it leaves a very bad taste in one's mouth." Bosley Crowther, N.Y. Times, Dec. 13, 1950, p. 50, cols. 2-3: "each one of the [three] items . . . stacks up with the major achievements of the respective directors. . . . ['The Miracle'] is by far the most overpowering and provocative of the lot." N.Y. Times, Dec. 17, 1950, § 2, p. 3, cols. 7-8: "a picture of mounting intensity that wrings the last pang of emotion as it hits its dramatic peak . . . vastly compassionate comprehension of the suffering and the triumph of birth." Wanda Hale, N.Y. Daily News, Dec. 13, 1950, p. 82, cols. 1-3: "Rossellini's best piece of direction since his greatest, "Open City." . . . artistic and beautifully done by both the star and the director." Archer Winsten, N.Y. Post, Dec. 13, 1950, p. 80, cols. 1-3: "Magnani's performance is a major one and profoundly impressive. This reviewer's personal opinion marked down the film as disturbingly unpleasant and slow." Seymour Peck, N.Y. Daily Compass, Dec. 13, 1950, 3, cols. 3-5: " The Miracle' is really all Magnani. . . . one of the most exciting solo performances the screen has known." Alton Cook, N.Y. World-Telegram, Dec. 13, 1950, p. 50, cols. 1-2: "['The Miracle' is] charged with the same overwrought hysteria that ran through his 'Stromboli.' . . . the picture has an unpleasant preoccupation with filth and squalor . . . exceedingly trying experience." Time, Jan. 8, 1951, p. 72, cols. 2-3: "[ The Miracle'] is second-rate Rossellini despite a virtuoso performance by Anna Magnani." Newsweek, Dec. 18, 1950, pp. 93-94, col. 3: "strong medicine for most American audiences. However, it shows what an artist of Rossellini's character can do in the still scarcely explored medium of the film short story." Hollis Alpert, Sat.Rev. of Lit., Jan. 27, 1951, pp. 28-29: "Pictorially the picture is a gem, with its sensitive evocation of a small Italian town and the surrounding countryside near Salerno. . . . Anna Magnani again demonstrates her magnificent qualities of acting. The role is difficult. . . ." "But my quarrel would be with Mr. Rossellini, whose method of improvisation from scene to scene . . . can also result in extraneous detail that adds little, or even harms, the over-all effect." [ Footnote 2/15 ] N.Y. Times, Dec. 28, 1950, p. 22, col. 1. [ Footnote 2/16 ] Id., Dec. 24, 1950, p. 1, cols. 2-3. [ Footnote 2/17 ] Joseph Burstyn, Inc. v. McCaffrey, 198 Misc. 884, 101 N.Y.S.2d 892. [ Footnote 2/18 ] N.Y. Times, Jan. 8, 1951, p. 1, col. 2. The Cardinal termed "The Miracle" "a vile and harmful picture," "a despicable affront to every Christian" ("We believe in miracles. This picture ridicules that belief"), and finally "a vicious insult to Italian womanhood." As a consequence, he declared: "we, as the guardians of the moral law, must summon you and all people with a sense of decency to refrain from seeing it and supporting the venal purveyors of such pictures. . . ." Id. at p. 14, cols. 2-3. For completeness' sake, later incidents should be noted. Picketers from the Catholic War Veterans, the Holy Name Society, and other Catholic organizations -- about 1,000 person in all during one Sunday -- paraded before the Paris Theatre. Id. Dec. 29, 1950, p. 36, col. 3; Jan. 8, 1951, p. 1, col. 2; Jan. 9, 1951, p. 34, col. 7; Jan. 10, 1951, p. 22, col. 6; Jan. 15, 1951, p. 23, col. 3. A smaller number of counterpickets appeared on several days. Id., Jan. 10, 1951, p. 22, col. 6; Jan. 20, 1951, p. 10, cols. 4-5. See also id. Jan. 23, 1951, p. 21, col. 8; Jan. 25, 1951, p. 27, col. 7. The Paris Theatre on two different evenings was emptied on threat of bombing. Id., Jan. 21, 1951, p. 1, cols. 2-3; Jan. 28, 1951, p. 1, cols. 2-3. Coincidentally with the proceedings before the New York Board of Regents which started this case on the way to this Court, the Paris Theatre also was having difficulties with the New York City Fire Department. The curious may follow the development of those incidents, not relevant here, in the N.Y. Times, Jan. 21, 1951, p. 53, cols. 4-5; Jan. 27, 1951, p. 11, col. 3; Feb. 6, 1951, p. 29, col. 8; Feb. 10, 1951, p. 15, col. 8; Feb. 15, 1951, p. 33, col. 2. [ Footnote 2/19 ] Excerpts from letters and statements by a great many clergymen are reproduced in the Record before this Court, pages 95-140. The representative quotations in the text are from letters written by the Rev. H. C. DeWindt, Minister of the West Park Presbyterian Church, New York City, R. 97, and the Rev. W. J. Beeners of Princeton, New Jersey, R. 98, respectively. [ Footnote 2/20 ] Catholic opinion generally, as expressed in the press, supported the view of the Legion of Decency and of Cardinal Spellman. See, for example, The [New York] Catholic News, Dec. 30, 1950, p. 10; Jan. 6, 1951, p. 10; Jan. 20, 1951, p. 10; Feb. 3, 1951, p. 10; Feb. 10, 1951, p. 12, and May 19, 1951, p. 12; Commonweal, Jan. 12, 1951, p. 351, col. 1; The [Brooklyn] Tablet, Jan. 20, 1951, p- 8, col. 4; id. Jan. 27, 1951, p. 10, col. 3; id. Feb. 3, 1951, p. 8, cols. 3-4; Martin Quigley, Jr., " The Miracle' -- An Outrage"; The [San Francisco] Monitor, Jan. 12, 1951, p. 7, cols. 3-4 (reprinted from Motion Picture Herald, Jan. 6, 1951); The [Boston] Pilot, Jan. 6, 1951, p. 4. There doubtless were comments on "The Miracle" in other diocesan papers which circulate in various parts of the country, but which are not on file in the Library of Congress or the library of the Catholic University of America. [ Footnote 2/21 ] Spaeth, "Fogged Screen," Magazine of Art, Feb., 1951, p. 44; N.Y. Herald Tribune, Jan. 30, 1951, p. 18, col. 4. [ Footnote 2/22 ] Clancy, "The Catholic as Philistine," The Commonweal, Mar. 16, 1951, pp. 567-569. [ Footnote 2/23 ] The Commonweal, Mar. 2, 1951, pp. 507-508. Much the same view was taken by Frank Getlein writing in The Catholic Messenger, Mar. 22, 1951, p. 4, cols. 1-8, in an article bearing the headline: "Film Critic Gives Some Aspects of The Miracle' Story: Raises Questions Concerning Tactics of Organized Catholic Resistance Groups in view York." See also "Miracles Do Happen," The New Leader, Feb. 5, 1951, p. 30, col. 2. [ Footnote 2/24 ] N.Y. Times, Feb. 1, 1951, p. 24, col. 7. [ Footnote 2/25 ] Id., Jan. 13, 1951, p. 10, col. 6; translation by Chworowsky, "The Cardinal: Critic and Censor," The Churchman, Feb. 1, 1951, p. 7, col. 2. [ Footnote 2/26 ] That such offensive exploitation of modern means of publicity is not a fanciful hypothesis, see N.Y. Times, April 14, 1952, p. 1, col. 4. [ Footnote 2/27 ] In the Matter of "The Puritan," 60 N.Y.St.Dept. 163 (1939); In the Matter of "Polygamy," 60 N.Y.St.Dept. 217 (1939); In the Matter of "Monja y Casada -- Virgen y Martir" ("Nun and Married -- Virgin and Martyr"), 52 N.Y.St.Dept. 488 (1935). [ Footnote 2/28 ] Since almost without exception "sacrilegious" is defined in terms of "sacrilege," our discussion will be directed to the latter term. See Bailey, Universal Etymological English Dictionary (London, 1730), "Sacrilegious" -- "of, pertaining to, or guilty of Sacrilege"; Funk & Wagnalls' New Standard Dictionary (1937), "Sacrilegious" -- "Having committed or being ready to commit sacrilege. Of the nature of sacrilege; as, sacrilegious deeds." [ Footnote 2/29 ] For general discussions of "sacrilege," see Encyclopaedia of Religion and Ethics (Hastings ed., 1921), "Sacrilege" and "Tabu"; Rev. Thomas Slater, A Manual of Moral Theology (1908), 226-230; The Catholic Encyclopedia (1912), "Sacrilege", and Encyclopaedia Britannica, "Sacrilege." [ Footnote 2/30 ] Encyclopaedia Britannica (1951), "Sacrilege." [ Footnote 2/31 ] Ibid. [ Footnote 2/32 ] See Encyclopaedia of Religion and Ethics (Hastings ed., 191), "Tabu." [ Footnote 2/33 ] Encyclopaedia Britannica (1951), "Sacrilege." [ Footnote 2/34 ] St. Thomas Aquinas, Summa Theologica, part II-II, question 99. The modern Codex Juris Canonici does not give any definition of "sacrilege," but merely says it "shall be punished by the Ordinary in proportion to the gravity of the fault, without prejudice to the penalties established by law. . . ." See Bouscaren and Ellis, Canon Law (1946), 857. 2 Woywod, A Practical Commentary on the Code of Canon Law (1929), par. 2178, 477 478, thus defines sacrilege: "Sacrilege consists in the unworthy use or treatment of sacred things and sacred persons. Certain things are of their nature sacred ( e.g., the Sacraments); others become so by blessing or consecration legitimately bestowed on things or places by authority of the Church. Persons are rendered sacred by ordination or consecration or by other forms of dedication to the divine service by authority of the Church ( e.g., by first tonsure, by religious profession)." [ Footnote 2/35 ] After his method of raising objections and then refuting them, St. Thomas Aquinas defends including within the proscription of "sacrilege," anyone "who disagree[s] about the sovereign's decision, and doubt[s] whether the person chosen by the sovereign be worthy of honor" and "any man [who] shall allow the Jews to hold public offices." Summa Theologica, part II-II, question 99, art. 1. [ Footnote 2/36 ] Rev. Thomas Slater, S. J., A Manual of Moral Theology (1908), c. VI, classifies and illustrates the modern theological view of "sacrilege": Sacrilege against sacred persons: to use physical violence against a member of the clergy; to violate "the privilege of immunity of the clergy from civil jurisdiction, as far as this is still in force"; to violate a vow of chastity. Sacrilege against sacred places: to violate the immunity of churches and other sacred places "as far as this is still in force"; to commit a crime such as homicide, suicide, bloody attack there; to break by sexual act a vow of chastity there; to bury an infidel, heretic, or excommunicate in churches or cemeteries canonically established; or to put the sacred place to a profane use, as a secular courtroom, public market, banquet hall, stable, etc. Sacrilege against sacred things: to treat with irreverence, contempt, or obscenity the sacraments (particularly the Eucharist), Holy Scriptures, relics, sacred images, etc., to steal sacred things, or profane things from sacred places; to commit simony; or to steal, confiscate, or damage willfully ecclesiastical property. See also The Catholic Encyclopedia, "Sacrilege." [ Footnote 2/37 ] Sir Henry Spelman, The History and Fate of Sacrilege (2d ed., 1853), 121-122. Two priests of the Anglican Church prepared a long prefatory essay to bring Spelman's data up to the date of publication of the 1853 edition. Their essay shows their understanding also of "sacrilege" in the limited sense. Id. at 1-120. [ Footnote 2/38 ] 2 Russell, Crime (10th ed., 1950), 975-976; Stephen, A Digest of the Criminal Law (9th ed., 1950), 348-349. See 23 Hen. VIII, c. 1, § III; 1 Edw. VI, c. 12, § X; 1 Mary, c. 3, §§ IV-VI. [ Footnote 2/39 ] 7 & 8 Geo. IV, e. 29, § X, which the marginal note summarized as "Sacrilege, when capital," read: "if any Person shall break and enter any Church or Chapel, and steal therein any Chattel . . . [he] shall suffer Death as a Felon." This statute was interpreted to apply only to buildings of the established church. Rex v. Nixon, 7 Car. & P. 442 (1836). [ Footnote 2/40 ] 7 & 8 Geo. IV, c. 29, § X, was repealed by 24 & 25 Vict., c. 95. The Larceny Act and the Malicious Injuries to Property Act, both of 1861, treated established church property substantially the same as all other property. 24 & 25 Vict., c. 96, § 50; e. 97, §§ 1, 11, 39, superseded by Larceny Act, 1916, 6 & 7 Geo. V, c. 50, § 24. [ Footnote 2/41 ] Blackstone, bk. IV, c. 4, 41-64. [ Footnote 2/42 ] Compare the definitions Of "sacrilege" and "blasphemy" in the dictionaries, starting with Cockeram's 1651 edition, which are collected in the Appendix, post, p. 343 U. S. 533 . [ Footnote 2/43 ] Bailey An Universal Etymological English Dictionary (London, 1742), "Sacrilege." [ Footnote 2/44 ] Barclay, A Complete and Universal English Dictionary (London, 1782), "Sacrilege." [ Footnote 2/45 ] Id., "Blasphemy." [ Footnote 2/46 ] Thomas Blount, Glossographia (3d ed., London, 1670). [ Footnote 2/47 ] Webster's Compendious Dictionary of the English Language (1806): "Sacrilege" -- "the robbery of a church or chapel." "Sacrilegious" -- "violating a thing made sacred." Webster's American Dictionary (1828): "Sacrilege" -- "The crime of violating or profaning sacred things; or the alienating to laymen or to common purposes what has been appropriated or consecrated to religious persons or uses." " Sacrilegious" -- "Violating sacred things; polluted with the crime of sacrilege." Webster's International Dictionary (G. & C. Merriam & Co., 1890): "Sacrilege" -- "The sin or crime of violating or profaning sacred things; the alienating to laymen, or to common purposes, what has been appropriated or consecrated to religious persons or uses." "Sacrilegious" -- "violating sacred things; polluted with sacrilege; involving sacrilege; profane; impious." Webster's New International Dictionary (G. & C. Merriam Co., 1st ed., 1909): "Sacrilege" -- "The sin or crime of violating or profaning sacred things; specif., the alienating to laymen, or to common purposes, what has been appropriated or consecrated to religious persons or uses." "Sacrilegious" -- "Violating sacred things; polluted with, or involving, sacrilege; impious." Repeated in the 1913, 1922, 1924, 1928, 1933 printings, among others. Webster's New International Dictionary (G. & C. Merriam Co.,2d ed., 1934): "Sacrilege" -- "The crime of stealing, misusing, violating, or desecrating that which is sacred, or holy, or dedicated to sacred uses. Specif.: a R. C. Ch. The sin of violating the conditions for a worthy reception of a sacrament. b Robbery from a church; also, that which is stolen. c Alienation to laymen, or to common purposes, of what has been appropriated or consecrated to religious persons or uses." "Sacrilegious" -- "Committing sacrilege; characterized by or involving sacrilege; polluted with sacrilege; as, sacrilegious robbers, depredations, or acts." Repeated in the 1939, 1942, 1944, 1949 printings, among others. [ Footnote 2/48 ] 1 Funk & Wagnalls' Standard Dictionary of the English Language, which was first copyrighted in 1890, defined sacrilege as follows in the 1895 printing: "1. The act of violating or profaning anything sacred. 2. Eng.Law (1) The larceny of consecrated things from a church; the breaking into a church with intent to commit a felony, or breaking out after a felony. (2) Formerly, the selling to a layman of property given to pious uses." This definition remained unchanged through many printings of that dictionary. The current printing of Funk & Wagnalls' New Standard Dictionary of the English Language, first copyrighted in 1913, carries exactly the same definition of "sacrilege" except that the first definition has been expanded to read: "The act of violating or profaning anything sacred, including sacramental vows ." Funk & Wagnalls' Standard Dictionary (1895) defined "to profane" as "1. To treat with irreverence or abuse; make common or unholy; desecrate; pollute. 2. Hence, to put to a wrong or degrading use; debase." The New Standard Dictionary adds a third meaning: "3. To vulgarize; give over to the crowd." [ Footnote 2/49 ] Encyclopaedia Britannica,2d ed., 1782: "Sacrilege" -- "the crime of profaning sacred things, or those devoted to the service of God." 3d ed., 1797: "Sacrilege" -- "the crime of profaning sacred things, or things devoted to God; or of alienating to laymen, for common purposes, what was given to religious persons and pious uses." 8th ed., 1859: "Sacrilege" -- same as 3d ed., 1797. 9th ed., 1886: "Sacrilege" -- A relatively short article the author of which quite apparently had a restricted definition for "sacrilege": "robbery of churches," "breaking or defacing of an altar, crucifix, or cross," etc. [ Footnote 2/50 ] Encyclopaedia Britannica (11th ed., 1911), "Sacrilege." [ Footnote 2/51 ] Schroeder, Constitutional Free Speech (1919), 178-373, makes a lengthy review of "Prosecutions for Crimes Against Religion." The examples in the text are from Schroeder. See also Encyclopaedia of the Social Sciences, "Blasphemy"; Encyclopaedia of Religion and Ethics, "Blasphemy"; Nokes, A History of the Crime of Blasphemy (1928). [ Footnote 2/52 ] 1 Yorke, The Life of Lord Chancellor Hardwicke (1913), 80, writes thus of the prosecution of Thomas Woolston for blasphemy: "The offence, in the first place, consisted in the publication in 1725 of a tract entitled A Moderator between an Infidel and an Apostate, in which the author questioned the historical accuracy of the Resurrection and the Virgin Birth. Such speculations, however much they might offend the religious feeling of the nation, would not now arouse apprehensions in the civil government, or incur legal penalties; but at the time of which we are writing, when the authority of government was far less stable and secure and rested on far narrower foundations than at present, such audacious opinions were considered, not without some reason, as a menace, not only to religion but to the state." [ Footnote 2/53 ] See, e.g., Rex v. Boulter, 72 J.P. 188 (1908); Bowman v. Secular Society, Ltd., [1917] A.C. 406. [ Footnote 2/54 ] Reg. v. Ramsay, 15 Cox's C.C. 231, 238 (1883) (Lord Coleridge's charge to the jury); Bowman v. Secular Society, Ltd., [1917] A.C. 406. [ Footnote 2/55 ] The latest available statistics of the Bureau of the Census give returns from 256 denominations; 57 other denominations, which did not report, are listed. Bureau of the Census, Religious Bodies: 1936, Vol. I, iii, 7. [ Footnote 2/56 ] It is not mere fantasy to suggest that the effect of a ban of the "sacrilegious" may be to ban all motion pictures dealing with any subject that might be deemed religious by any sect. The industry's self-censorship has already had a distorting influence on the portrayal of historical figures. "Pressure forced deletion of the clerical background of Cardinal Richelieu from The Three Musketeers. The [Motion Picture Production] code provision appealed to was the section providing that ministers should not be portrayed as villains." Note, "Motion Pictures and the First Amendment," 60 Yale L.J. 696, 716, n. 42. The press recently reported that plans are being made to film a "Life of Martin Luther." N.Y. Times, April 27, 1952, § 2, p. 5, col. 7. Could Luther be sympathetically portrayed and not appear "sacrilegious" to some; or unsympathetically, and not to others?

In Joseph Burstyn, Inc. v. Wilson, the Supreme Court ruled that expression through motion pictures falls under the protection of the First Amendment, which guarantees freedom of speech and freedom of the press. The Court struck down a New York law that allowed censors to deny licenses to films deemed "sacrilegious," holding that such prior restraint on speech was unconstitutional. The Court recognized the significance of motion pictures as a medium for ideas and expression, regardless of their entertainment value or profit motive. While acknowledging concerns about potential negative influences on youth, the Court emphasized that motion pictures are entitled to First Amendment protection like other forms of expression. This case set an important precedent for safeguarding free speech in the film industry and limiting government censorship.

Free Speech

Dennis v. U.S.

https://supreme.justia.com/cases/federal/us/341/494/

U.S. Supreme Court Dennis v. United States, 341 U.S. 494 (1951) Dennis v. United States No. 336 Argued December 4, 1950 Decided June 4, 1951 341 U.S. 494 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus 1. As construed and applied in this case, §§ 2(a)(1), 2(a)(3) and 3 of the Smith Act, 54 Stat. 671, making it a crime for any person knowingly or willfully to advocate the overthrow or destruction of the Government of the United States by force or violence, to organize or help to organize any group which does so, or to conspire to do so, do not violate the First Amendment or other provisions of the Bill of Rights and do not violate the First or Fifth Amendments because of indefiniteness. Pp. 341 U. S. 495 -499, 341 U. S. 517 . 2. Petitioners, leaders of the Communist Party in this country, were indicted in a federal district court under § 3 of the Smith Act for willfully and knowingly conspiring (1) to organize as the Communist Party a group of persons to teach and advocate the overthrow and destruction of the Government of the United States by force and violence, and (2) knowingly and willfully to advocate and teach the duty and necessity of overthrowing and destroying the Government of the United States by force and violence. The trial judge instructed the jury that they could not convict unless they found that petitioners intended to overthrow the Government "as speedily as circumstances would permit," but that, if they so found, then, as a matter of law, there was sufficient danger of a substantive evil that Congress has a right to prevent to justify application of the statute under the First Amendment. Petitioners were convicted, and the convictions were sustained by the Court of Appeals. This Court granted certiorari, limited to the questions: (1) Whether either § 2 or § 3 of the Smith Act, inherently or as construed and applied in the instant case, violates the First Amendment and other provisions of the Bill of Rights, and (2) whether either § 2 or § 3, inherently or as construed and applied in the instant case, violates the First and Fifth Amendments because of indefiniteness. Held: The convictions are affirmed. Pp. 341 U. S. 495 -499, 341 U. S. 511 -512, 341 U. S. 517 . 183 F.2d 201, affirmed. Page 341 U. S. 495 For the opinions of the Justices constituting the majority of the Court, see: Opinion of THE CHIEF JUSTICE, joined by MR. JUSTICE REED, MR. JUSTICE BURTON and MR. JUSTICE MINTON, p. 341 U. S. 495 . Opinion of MR. JUSTICE FRANKFURTER, p. 341 U. S. 517 . Opinion of MR. JUSTICE JACKSON, p. 341 U. S. 561 . For the dissenting opinion of MR. JUSTICE BLACK, see p. 341 U. S. 579 . For the dissenting opinion of MR. JUSTICE DOUGLAS, see p. 341 U. S. 581 . The case is stated in the opinion of THE CHIEF JUSTICE, pp. 341 U. S. 495 -499. Affirmed, p. 341 U. S. 517 . MR. CHIEF JUSTICE VINSON announced the judgment of the Court and an opinion in which MR. JUSTICE REED, MR. JUSTICE BURTON and MR. JUSTICE MINTON join. Petitioners were indicted in July, 1948, for violation of the conspiracy provisions of the Smith Act, 54 Stat. 671, 18 U.S.C. (1946 ed.) § 11, during the period of April, 1945, to July, 1948. The pretrial motion to quash the indictment on the grounds, inter alia, that the statute was unconstitutional was denied, United States v. Foster, 80 F. Supp. 479 , and the case was set for trial on January 17, 1949. A verdict of guilty as to all the petitioners was returned by the jury on October 14, 1949. The Court of Appeals affirmed the convictions. 183 F.2d 201. We granted certiorari, 340 U.S. 863, limited to the following two questions: (1) Whether either § 2 or § 3 of the Smith Page 341 U. S. 496 Act, inherently or as construed and applied in the instant case, violates the First Amendment and other provisions of the Bill of Rights; (2) whether either § 2 or § 3 of the Act, inherently or as construed and applied in the instant case, violates the First and Fifth Amendments because of indefiniteness. Sections 2 and 3 of the Smith Act, 54 Stat. 671, 18 U.S.C. (1946 ed.) §§ 10, 11 ( see present 18 U.S.C. § 2385), provide as follows: "SEC. 2.(a) It shall be unlawful for any person --" "(1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of any such government;" "(2) with intent to cause the overthrow or destruction of any government in the United States, to print, publish, edit, issue, circulate, sell, distribute, or publicly display any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence;" "(3) to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence; or to be or become a member of, or affiliate with, any such society, group, or assembly of persons, knowing the purposes thereof." "(b) For the purposes of this section, the term 'government in the United States' means the Government of the United States, the government of any State, Territory, or possession of the United States, the government of the District of Columbia, or the Page 341 U. S. 497 government of any political subdivision of any of them." "SEC. 3. It shall be unlawful for any person to attempt to commit, or to conspire to commit, any of the acts prohibited by the provisions of this title." The indictment charged the petitioners with willfully and knowingly conspiring (1) to organize as the Communist Party of the United States of America a society, group and assembly of persons who teach and advocate the overthrow and destruction of the Government of the United States by force and violence, and (2) knowingly and willfully to advocate and teach the duty and necessity of overthrowing and destroying the Government of the United States by force and violence. The indictment further alleged that § 2 of the Smith Act proscribes these acts and that any conspiracy to take such action is a violation of § 3 of the Act. The trial of the case extended over nine months, six of which were devoted to the taking of evidence, resulting in a record of 16,000 pages. Our limited grant of the writ of certiorari has removed from our consideration any question as to the sufficiency of the evidence to support the jury's determination that petitioners are guilty of the offense charged. Whether, on this record, petitioners did, in fact, advocate the overthrow of the Government by force and violence is not before us, and we must base any discussion of this point upon the conclusions stated in the opinion of the Court of Appeals, which treated the issue in great detail. That court held that the record in this case amply supports the necessary finding of the jury that petitioners, the leaders of the Communist Party in this country, were unwilling to work within our framework of democracy, but intended to initiate a violent revolution whenever the propitious occasion appeared. Petitioners dispute the meaning to be drawn from the evidence, contending that the Marxist-Leninist Page 341 U. S. 498 doctrine they advocated taught that force and violence to achieve a Communist form of government in an existing democratic state would be necessary only because the ruling classes of that state would never permit the transformation to be accomplished peacefully, but would use force and violence to defeat any peaceful political and economic gain the Communists could achieve. But the Court of Appeals held that the record supports the following broad conclusions: by virtue of their control over the political apparatus of the Communist Political Association, [ Footnote 1 ] petitioners were able to transform that organization into the Communist Party; that the policies of the Association were changed from peaceful cooperation with the United States and its economic and political structure to a policy which had existed before the United States and the Soviet Union were fighting a common enemy, namely, a policy which worked for the overthrow of the Government by force and violence; that the Communist Party is a highly disciplined organization, adept at infiltration into strategic positions, use of aliases, and double meaning language; that the Party is rigidly controlled; that Communists, unlike other political parties, tolerate no dissension from the policy laid down by the guiding forces, but that the approved program is slavishly followed by the members of the Party; that the literature of the Party and the statements and activities of its leaders, petitioners here, advocate, and the general goal of the Party was, during the period in question, to achieve a successful overthrow of the existing order by force and violence. Page 341 U. S. 499 I It will be helpful in clarifying the issues to treat next the contention that the trial judge improperly interpreted the statute by charging that the statute required an unlawful intent before the jury could convict. More specifically, he charged that the jury could not find the petitioners guilty under the indictment unless they found that petitioners had the intent to "overthrow . . . the Government of the United States by force and violence as speedily as circumstances would permit." Section 2(a)(1) makes it unlawful "to knowingly or willfully advocate, . . . or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence. . . . ;" Section 2(a)(3), "to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow. . . ." Because of the fact that § 2(a)(2) expressly requires a specific intent to overthrow the Government, and because of the absence of precise language in the foregoing subsections, it is claimed that Congress deliberately omitted any such requirement. We do not agree. It would require a far greater indication of congressional desire that intent not be made an element of the crime than the use of the disjunctive "knowingly or willfully" in § 2(a)(1), or the omission of exact language in § 2(a)(3). The structure and purpose of the statute demand the inclusion of intent as an element of the crime. Congress was concerned with those who advocate and organize for the overthrow of the Government. Certainly those who recruit and combine for the purpose of advocating overthrow intend to bring about that overthrow. We hold that the statute requires as an essential element of the crime proof of the intent of those who are charged with its violation to overthrow the Government by force and violence. See Page 341 U. S. 500 Williams v. United States, 341 U. S. 97 , 341 U. S. 101 -102 (1951); Screws v. United States, 325 U. S. 91 , 325 U. S. 101 -105 (1945); Cramer v. United States, 325 U. S. 1 , 325 U. S. 31 (1945). Nor does the fact that there must be an investigation of a state of mind under this interpretation afford any basis for rejection of that meaning. A survey of Title 18 of the U.S. Code indicates that the vast majority of the crimes designated by that Title require, by express language, proof of the existence of a certain mental state, in words such as "knowingly," "maliciously," "willfully," "with the purpose of," "with intent to," or combinations or permutations of these and synonymous terms. The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence. See American Communications Assn. v. Douds, 339 U. S. 382 , 339 U. S. 411 (1950). It has been suggested that the presence of intent makes a difference in the law when an "act otherwise excusable or carrying minor penalties" is accompanied by such an evil intent. Yet the existence of such an intent made the killing condemned in Screws, supra, and the beating in Williams, supra, both clearly and severely punishable under state law, offenses constitutionally punishable by the Federal Government. In those cases, the Court required the Government to prove that the defendants intended to deprive the victim of a constitutional right. If that precise mental state may be an essential element of a crime, surely an intent to overthrow the Government of the United States by advocacy thereof is equally susceptible of proof. [ Footnote 2 ] Page 341 U. S. 501 II The obvious purpose of the statute is to protect existing Government not from change by peaceable, lawful and constitutional means, but from change by violence, revolution and terrorism. That it is within the power of the Congress to protect the Government of the United States from armed rebellion is a proposition which requires little discussion. Whatever theoretical merit there may be to the argument that there is a "right" to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change. We reject any principle of governmental helplessness in the face of preparation for revolution, which principle, carried to its logical conclusion, must lead to anarchy. No one could conceive that it is not within the power of Congress to prohibit acts intended to overthrow the Government by force and violence. The question with which we are concerned here is not whether Congress has such power, but whether the means which it has employed conflict with the First and Fifth Amendments to the Constitution. One of the bases for the contention that the means which Congress has employed are invalid takes the form of an attack on the face of the statute on the grounds that, by its terms, it prohibits academic discussion of the merits of Marxism-Leninism, that it stifles ideas and is contrary to all concepts of a free speech and a free press. Although we do not agree that the language itself has that significance, we must bear in mind that it is the duty of the federal courts to interpret federal legislation in a manner not inconsistent with the demands of the Constitution. American Communications Assn. v. Douds, 339 U. S. 382 , 339 U. S. 407 (1950). We are not here confronted with cases similar to Thornhill v. Alabama, 310 U. S. 88 (1940); Herndon v. Lowry, 301 U. S. 242 (1937), and De Jonge v. Oregon, 299 U. S. 353 (1937), Page 341 U. S. 502 where a state court had given a meaning to a state statute which was inconsistent with the Federal Constitution. This is a federal statute which we must interpret as well as judge. Herein lies the fallacy of reliance upon the manner in which this Court has treated judgments of state courts. Where the statute as construed by the state court transgressed the First Amendment, we could not but invalidate the judgments of conviction. The very language of the Smith Act negates the interpretation which petitioners would have us impose on that Act. It is directed at advocacy, not discussion. Thus, the trial judge properly charged the jury that they could not convict if they found that petitioners did "no more than pursue peaceful studies and discussions or teaching and advocacy in the realm of ideas." He further charged that it was not unlawful "to conduct in an American college or university a course explaining the philosophical theories set forth in the books which have been placed in evidence." Such a charge is in strict accord with the statutory language, and illustrates the meaning to be placed on those words. Congress did not intend to eradicate the free discussion of political theories, to destroy the traditional rights of Americans to discuss and evaluate ideas without fear of governmental sanction. Rather Congress was concerned with the very kind of activity in which the evidence showed these petitioners engaged. III But although the statute is not directed at the hypothetical cases which petitioners have conjured, its application in this case has resulted in convictions for the teaching and advocacy of the overthrow of the Government by force and violence, which, even though coupled with the intent to accomplish that overthrow, contains an element of speech. For this reason, we must pay special Page 341 U. S. 503 heed to the demands of the First Amendment marking out the boundaries of speech. We pointed out in Douds, supra, that the basis of the First Amendment is the hypothesis that speech can rebut speech, propaganda will answer propaganda, free debate of ideas will result in the wisest governmental policies. It is for this reason that this Court has recognized the inherent value of free discourse. An analysis of the leading cases in this Court which have involved direct limitations on speech, however, will demonstrate that both the majority of the Court and the dissenters in particular cases have recognized that this is not an unlimited, unqualified right, but that the societal value of speech must, on occasion, be subordinated to other values and considerations. No important case involving free speech was decided by this Court prior to Schenck v. United States, 249 U. S. 47 (1919). Indeed, the summary treatment accorded an argument based upon an individual's claim that the First Amendment protected certain utterances indicates that the Court at earlier dates placed no unique emphasis upon that right. [ Footnote 3 ] It was not until the classic dictum of Justice Holmes in the Schenck case that speech per se received that emphasis in a majority opinion. That case involved a conviction under the Criminal Espionage Act, 40 Stat. 217. The question the Court faced was whether the evidence was sufficient to sustain the conviction. Writing for a unanimous Court, Justice Holmes stated that the "question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right Page 341 U. S. 504 to prevent." 249 U.S. at 249 U. S. 52 . But the force of even this expression is considerably weakened by the reference at the end of the opinion to Goldman v. United States, 245 U. S. 474 (1918), a prosecution under the same statute. Said Justice Holmes, "Indeed, [ Goldman ] might be said to dispose of the present contention if the precedent covers all media concludendi. But as the right to free speech was not referred to specially, we have thought fit to add a few words." 249 U.S. at 249 U. S. 52 . The fact is inescapable, too, that the phrase bore no connotation that the danger was to be any threat to the safety of the Republic. The charge was causing and attempting to cause insubordination in the military forces and obstruct recruiting. The objectionable document denounced conscription and its most inciting sentence was, "You must do your share to maintain, support and uphold the rights of the people of this country." 249 U.S. at 249 U. S. 51 . Fifteen thousand copies were printed, and some circulated. This insubstantial gesture toward insubordination in 1917 during war was held to be a clear and present danger of bringing about the evil of military insubordination. In several later cases involving convictions under the Criminal Espionage Act, the nub of the evidence the Court held sufficient to meet the "clear and present danger" test enunciated in Schenck was as follows: Frohwerk v. United States, 249 U. S. 204 (1919) -- publication of twelve newspaper articles attacking the war; Debs v. United States, 249 U. S. 211 (1919) -- one speech attacking United States' participation in the war; Abrams v. United States, 250 U. S. 616 (1919) -- circulation of copies of two different socialist circulars attacking the war; Schaefer v. United States, 251 U. S. 466 (1920) -- publication of a German language newspaper with allegedly false articles, critical of capitalism and the war; Pierce v. United States, 252 U. S. 239 (1920) -- circulation of copies of a four-page pamphlet written by a clergyman, attacking Page 341 U. S. 505 the purposes of the war and United States' participation therein. Justice Holmes wrote the opinions for a unanimous Court in Schenck, Frohwerk and Debs. He and Justice Brandeis dissented in Abrams, Schaefer and Pierce. The basis of these dissents was that, because of the protection which the First Amendment gives to speech, the evidence in each case was insufficient to show that the defendants had created the requisite danger under Schenck. But these dissents did not mark a change of principle. The dissenters doubted only the probable effectiveness of the puny efforts toward subversion. In Abrams, they wrote, "I do not doubt for a moment that, by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent." 250 U.S. at 250 U. S. 627 . And in Schaefer the test was said to be one of "degree," 251 U.S. at 251 U. S. 482 , although it is not clear whether "degree" refers to clear and present danger or evil. Perhaps both were meant. The rule we deduce from these cases is that, where an offense is specified by a statute in nonspeech or nonpress terms, a conviction relying upon speech or press as evidence of violation may be sustained only when the speech or publication created a "clear and present danger" of attempting or accomplishing the prohibited crime, e.g., interference with enlistment. The dissents, we repeat, in emphasizing the value of speech, were addressed to the argument of the sufficiency of the evidence. The next important case [ Footnote 4 ] before the Court in which free speech was the crux of the conflict was Gitlow v. New York, 268 U. S. 652 (1925). There, New York had Page 341 U. S. 506 made it a crime to advocate "the necessity or propriety of overthrowing . . . organized government by force. . . ." The evidence of violation of the statute was that the defendant had published a Manifesto attacking the Government and capitalism. The convictions were sustained, Justices Holmes and Brandeis dissenting. The majority refused to apply the "clear and present danger" test to the specific utterance. Its reasoning was as follows: the "clear and present danger" test was applied to the utterance itself in Schenck because the question was merely one of sufficiency of evidence under an admittedly constitutional statute. Gitlow however, presented a different question. There a legislature had found that a certain kind of speech was, itself, harmful and unlawful. The constitutionality of such a state statute had to be adjudged by this Court just as it determined the constitutionality of any state statute, namely, whether the statute was "reasonable." Since it was entirely reasonable for a state to attempt to protect itself from violent overthrow, the statute was perforce reasonable. The only question remaining in the case became whether there was evidence to support the conviction, a question which gave the majority no difficulty. Justices Holmes and Brandeis refused to accept this approach, but insisted that, wherever speech was the evidence of the violation, it was necessary to show that the speech created the "clear and present danger" of the substantive evil which the legislature had the right to prevent. Justices Holmes and Brandeis, then, made no distinction between a federal statute which made certain acts unlawful, the evidence to support the conviction being speech, and a statute which made speech itself the crime. This approach was emphasized in Whitney v. California, 274 U. S. 357 (1927), where the Court was confronted with a conviction under the California Criminal Syndicalist statute. The Court sustained the conviction, Justices Brandeis and Holmes Page 341 U. S. 507 concurring in the result. In their concurrence they repeated that, even though the legislature had designated certain speech as criminal, this could not prevent the defendant from showing that there was no danger that the substantive evil would be brought about. Although no case subsequent to Whitney and Gitlow has expressly overruled the majority opinions in those cases, there is little doubt that subsequent opinions have inclined toward the Holmes-Brandeis rationale. [ Footnote 5 ] And in American Communications Assn. v. Douds, supra, we were called upon to decide the validity of § 9(h) of the Labor Management Relations Act of 1947. That section required officials of unions which desired to avail themselves of the facilities of the National Labor Relations Board to take oaths that they did not belong to the Communist Party and that they did not believe in the overthrow of the Government by force and violence. We pointed out that Congress did not intend to punish belief, but rather intended to regulate the conduct of union affairs. We therefore held that any indirect sanction on speech which might arise from the oath requirement did not present a proper case for the "clear and present danger" test, for the regulation was aimed at conduct, rather than speech. In discussing the proper measure of evaluation of this kind of legislation, we suggested that the Homes-Brandeis philosophy insisted that, where Page 341 U. S. 508 there was a direct restriction upon speech, a "clear and present danger" that the substantive evil would be caused was necessary before the statute in question could be constitutionally applied. And we stated, "[The First] Amendment requires that one be permitted to believe what he will. It requires that one be permitted to advocate what he will unless there is a clear and present danger that a substantial public evil will result therefrom." 339 U.S. at 339 U. S. 412 . But we further suggested that neither Justice Holmes nor Justice Brandeis ever envisioned that a shorthand phrase should be crystallized into a rigid rule to be applied inflexibly without regard to the circumstances of each case. Speech is not an absolute, above and beyond control by the legislature when its judgment, subject to review here, is that certain kinds of speech are so undesirable as to warrant criminal sanction. Nothing is more certain in modern society than the principle that there are no absolutes, that a name, a phrase, a standard has meaning only when associated with the considerations which gave birth to the nomenclature. See American Communications Assn. v. Douds, 339 U.S. at 339 U. S. 397 . To those who would paralyze our Government in the face of impending threat by encasing it in a semantic straitjacket we must reply that all concepts are relative. In this case, we are squarely presented with the application of the "clear and present danger" test, and must decide what that phrase imports. We first note that many of the cases in which this Court has reversed convictions by use of this or similar tests have been based on the fact that the interest which the State was attempting to protect was itself too insubstantial to warrant restriction of speech. In this category we may put such cases as Schneider v. State, 308 U. S. 147 (1939); Cantwell v. Connecticut, 310 U. S. 296 (1940); Martin v. Struthers, 319 U. S. 141 (1943); West Virginia Board of Education Page 341 U. S. 509 v. Barnette, 319 U. S. 624 (1943); Thomas v. Collins, 323 U. S. 516 (1945); Marsh v. Alabama, 326 U. S. 501 (1946); but cf. Prince v. Massachusetts, 321 U. S. 158 (1944); Cox v. New Hampshire, 312 U. S. 569 (1941). Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected. If, then, this interest may be protected, the literal problem which is presented is what has been meant by the use of the phrase "clear and present danger" of the utterances bringing about the evil within the power of Congress to punish. Obviously, the words cannot mean that, before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required. The argument that there is no need for Government to concern itself, for Government is strong, it possesses ample powers to put down a rebellion, it may defeat the revolution with ease needs no answer. For that is not the question. Certainly an attempt to overthrow the Government by force, even though doomed from the outset because of inadequate numbers or power of the revolutionists, is a sufficient evil for Congress to prevent. The damage which such attempts create both physically and politically to a nation makes it impossible to measure the validity in terms of the probability of success, or the immediacy of a successful attempt. In the instant case, the trial judge charged the jury that they could not convict unless they found that petitioners intended to overthrow the Government Page 341 U. S. 510 "as speedily as circumstances would permit." This does not mean, and could not properly mean, that they would not strike until there was certainty of success. What was meant was that the revolutionists would strike when they thought the time was ripe. We must therefore reject the contention that success or probability of success is the criterion. The situation with which Justices Holmes and Brandeis were concerned in Gitlow was a comparatively isolated event, bearing little relation in their minds to any substantial threat to the safety of the community. Such also is true of cases like Fiske v. Kansas, 274 U. S. 380 (1927), and De Jonge v. Oregon, 299 U. S. 353 (1937); but cf. Lazar v. Pennsylvania, 286 U.S. 532 (1932). They were not confronted with any situation comparable to the instant one -- the development of an apparatus designed and dedicated to the overthrow of the Government, in the context of world crisis after crisis. Chief Judge Learned Hand, writing for the majority below, interpreted the phrase as follows: "In each case, [courts] must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." 183 F.2d at 212. We adopt this statement of the rule. As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might devise at this time. It takes into consideration those factors which we deem relevant, and relates their significances. More we cannot expect from words. Likewise, we are in accord with the court below, which affirmed the trial court's finding that the requisite danger existed. The mere fact that, from the period 1945 to 1948, petitioners' activities did not result in an attempt to overthrow the Government by force and violence is, of course, no answer to the fact that there was a group that was ready to make the attempt. The formation Page 341 U. S. 511 by petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders, these petitioners, felt that the time had come for action, coupled with the inflammable nature of world conditions, similar uprisings in other countries, and the touch-and-go nature of our relations with countries with whom petitioners were in the very least ideologically attuned, convince us that their convictions were justified on this score. And this analysis disposes of the contention that a conspiracy to advocate, as distinguished from the advocacy itself, cannot be constitutionally restrained, because it comprises only the preparation. It is the existence of the conspiracy which creates the danger. Cf. Pinkerton v. United States, 328 U. S. 640 (1946); Goldman v. United States, 245 U. S. 474 (1918); United States v. Rabinowich, 238 U. S. 78 (1915). If the ingredients of the reaction are present, we cannot bind the Government to wait until the catalyst is added. IV Although we have concluded that the finding that there was a sufficient danger to warrant the application of the statute was justified on the merits, there remains the problem of whether the trial judge's treatment of the issue was correct. He charged the jury, in relevant part, as follows: "In further construction and interpretation of the statute, I charge you that it is not the abstract doctrine of overthrowing or destroying organized government by unlawful means which is denounced by this law, but the teaching and advocacy of action for the accomplishment of that purpose, by language reasonably and ordinarily calculated to incite persons to such action. Accordingly, you cannot find the defendants or any of them guilty of the crime charged Page 341 U. S. 512 unless you are satisfied beyond a reasonable doubt that they conspired to organize a society, group and assembly of persons who teach and advocate the overthrow or destruction of the Government of the United States by force and violence and to advocate and teach the duty and necessity of overthrowing or destroying the Government of the United States by force and violence, with the intent that such teaching and advocacy be of a rule or principle of action and by language reasonably and ordinarily calculated to incite persons to such action, all with the intent to cause the overthrow or destruction of the Government of the United States by force and violence as speedily as circumstances would permit." " * * * *" "If you are satisfied that the evidence establishes beyond a reasonable doubt that the defendants, or any of them, are guilty of a violation of the statute, as I have interpreted it to you, I find as matter of law that there is sufficient danger of a substantive evil that the Congress has a right to prevent to justify the application of the statute under the First Amendment of the Constitution." "This is matter of law about which you have no concern. It is a finding on a matter of law which I deem essential to support my ruling that the case should be submitted to you to pass upon the guilt or innocence of the defendants. . . ." It is thus clear that he reserved the question of the existence of the danger for his own determination, and the question becomes whether the issue is of such a nature that it should have been submitted to the jury. The first paragraph of the quoted instructions calls for the jury to find the facts essential to establish the substantive crime, violation of §§ 2(a)(1) and 2(a)(3) of Page 341 U. S. 513 the Smith Act, involved in the conspiracy charge. There can be no doubt that, if the jury found those facts against the petitioners, violation of the Act would be established. The argument that the action of the trial court is erroneous in declaring as a matter of law that such violation shows sufficient danger to justify the punishment despite the First Amendment rests on the theory that a jury must decide a question of the application of the First Amendment. We do not agree. When facts are found that establish the violation of a statute, the protection against conviction afforded by the First Amendment is a matter of law. The doctrine that there must be a clear and present danger of a substantive evil that Congress has a right to prevent is a judicial rule to be applied as a matter of law by the courts. The guilt is established by proof of facts. Whether the First Amendment protects the activity which constitutes the violation of the statute must depend upon a judicial determination of the scope of the First Amendment applied to the circumstances of the case. Petitioners' reliance upon Justice Brandeis' language in his concurrence in Whitney, supra, is misplaced. In that case, Justice Brandeis pointed out that the defendant could have made the existence of the requisite danger the important issue at her trial, but that she had not done so. In discussing this failure, he stated that the defendant could have had the issue determined by the court or the jury. [ Footnote 6 ] No realistic construction of this disjunctive language Page 341 U. S. 514 could arrive at the conclusion that he intended to state that the question was only determinable by a jury. Nor is the incidental statement of the majority in Pierce, supra, of any more persuasive effect. [ Footnote 7 ] There, the issue of the probable effect of the publication had been submitted to the jury, and the majority was apparently addressing its remarks to the contention of the dissenters that the jury could not reasonably have returned a verdict of guilty on the evidence. [ Footnote 8 ] Indeed, in the very case in which the phrase was born, Schenck, this Court itself examined the record to find whether the requisite danger appeared, and the issue was not submitted to a jury. And in every later case in which the Court has measured the validity of a statute by the "clear and present danger" test, that determination has been by the court, the question of the danger not being submitted to the jury. The question in this case is whether the statute which the legislature has enacted may be constitutionally applied. In other words, the Court must examine judicially Page 341 U. S. 515 the application of the statute to the particular situation, to ascertain if the Constitution prohibits the conviction. We hold that the statute may be applied where there is a "clear and present danger" of the substantive evil which the legislature had the right to prevent. Bearing, as it does, the marks of a "question of law," the issue is properly one for the judge to decide. V There remains to be discussed the question of vagueness -- whether the statute as we have interpreted it is too vague, not sufficiently advising those who would speak of the limitations upon their activity. It is urged that such vagueness contravenes the First and Fifth Amendments. This argument is particularly nonpersuasive when presented by petitioners, who, the jury found, intended to overthrow the Government as speedily as circumstances would permit. See Abrams v. United States, 250 U. S. 616 , 250 U. S. 627 -629 (1919) (dissenting opinion); Whitney v. California, 274 U. S. 357 , 274 U. S. 373 (1927) (concurring opinion); Taylor v. Mississippi, 319 U. S. 583 , 319 U. S. 589 (1943). A claim of guilelessness ill becomes those with evil intent. Williams v. United States, 341 U. S. 97 , 341 U. S. 101 -102 (1951); Jordan v. De George, 341 U. S. 223 , 341 U. S. 230 -232 (1951); American Communications Assn. v. Douds, 339 U.S. at 339 U. S. 413 ; Screws v. United States, 325 U. S. 91 , 325 U. S. 101 (1945). We agree that the standard as defined is not a neat, mathematical formulary. Like all verbalizations it is subject to criticism on the score of indefiniteness. But petitioners themselves contend that the verbalization "clear and present danger" is the proper standard. We see no difference, from the standpoint of vagueness, whether the standard of "clear and present danger" is one contained in haec verba within the statute, or whether it is the judicial measure of constitutional applicability. We Page 341 U. S. 516 have shown the indeterminate standard the phrase necessarily connotes. We do not think we have rendered that standard any more indefinite by our attempt to sum up the factors which are included within its scope. We think it well serves to indicate to those who would advocate constitutionally prohibited conduct that there is a line beyond which they may not go -- a line which they, in full knowledge of what they intend and the circumstances in which their activity takes place, will well appreciate and understand. Williams, supra, at 341 U. S. 101 -102; Jordan, supra, at 341 U. S. 230 -232; United States v. Petrillo, 332 U. S. 1 , 332 U. S. 7 (1948); United States v. Wurzbach, 280 U. S. 396 , 280 U. S. 399 (1930); Nash v. United States, 229 U. S. 373 , 229 U. S. 376 -377 (1913). Where there is doubt as to the intent of the defendants, the nature of their activities, or their power to bring about the evil, this Court will review the convictions with the scrupulous care demanded by our Constitution. But we are not convinced that, because there may be borderline cases at some time in the future, these convictions should be reversed because of the argument that these petitioners could not know that their activities were constitutionally proscribed by the statute. We have not discussed many of the questions which could be extracted from the record, although they were treated in detail by the court below. Our limited grant of the writ of certiorari has withdrawn from our consideration at this date those questions, which include, inter alia, sufficiency of the evidence, composition of jury, and conduct of the trial. We hold that §§ 2(a)(1), 2(a)(3) and 3 of the Smith Act do not inherently, or as construed or applied in the instant case, violate the First Amendment and other provisions of the Bill of Rights, or the First and Fifth Amendments because of indefiniteness. Petitioners intended to overthrow the Government of the United States as speedily as the circumstances would permit. Their conspiracy Page 341 U. S. 517 to organize the Communist Party and to teach and advocate the overthrow of the Government of the United States by force and violence created a "clear and present danger" of an attempt to overthrow the Government by force and violence. They were properly and constitutionally convicted for violation of the Smith Act. The judgments of conviction are Affirmed. MR. JUSTICE CLARK took no part in the consideration or decision of this case. [ Footnote 1 ] Following the dissolution of the Communist International in 1943, the Communist Party of the United States dissolved and was reconstituted as the Communist Political Association. The program of this Association was one of cooperation between labor and management, and, in general, one designed to achieve national unity and peace and prosperity in the post-war period. [ Footnote 2 ] We have treated this point because of the discussion accorded it by the Court of Appeals and its importance to the administration of this statute, compare Johnson v. United States, 318 U. S. 189 (1943), although petitioners themselves requested a charge similar to the one given, and under Rule 30 of the Federal Rules of Criminal Procedure would appear to be barred from raising this point on appeal. Cf. Boyd v. United States, 271 U. S. 104 (1926). [ Footnote 3 ] Toledo Newspaper Co. v. United States, 247 U. S. 402 (1918); Fox v. Washington, 236 U. S. 273 (1915); Davis v. Massachusetts, 167 U. S. 43 (1897); see Gompers v. Bucks Stove & Range Co., 221 U. S. 418 , 221 U. S. 439 (1911); Robertson v. Baldwin, 165 U. S. 275 , 165 U. S. 281 (1897). [ Footnote 4 ] Cf. Gilbert v. Minnesota, 254 U. S. 325 (1920). [ Footnote 5 ] Contempt of court: Craig v. Harney, 331 U. S. 367 , 331 U. S. 373 (1947); Pennecamp v. Florida, 328 U. S. 331 , 328 U. S. 333 -336 (1946); Bridges v. California, 314 U. S. 252 , 314 U. S. 260 -263 (1941). Validity of state statute: Thomas v. Collins, 323 U. S. 516 , 323 U. S. 530 (1945); Taylor v. Mississippi, 319 U. S. 583 , 319 U. S. 589 -590 (1943); Thornhill v. Alabama, 310 U. S. 88 , 310 U. S. 104 -106 (1940). Validity of local ordinance or regulation: West Virginia Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 639 (1943); Carlson v. California, 310 U. S. 106 , 310 U. S. 113 (1940). Common law offense: Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 308 , 310 U. S. 311 (1940). [ Footnote 6 ] "Whether, in 1919, when Miss Whitney did the things complained of, there was in California such clear and present danger of serious evil might have been made the important issue in the case. She might have required that the issue be determined either by the court or the jury. She claimed below that the statute, as applied to her, violated the Federal Constitution, but she did not claim that it was void because there was no clear and present danger of serious evil, nor did she request that the existence of these conditions of a valid measure thus restricting the rights of free speech and assembly be passed upon by the court or a jury. On the other hand, there was evidence on which the court or jury might have found that such danger existed." (Emphasis added.) 274 U.S. at 274 U. S. 379 . [ Footnote 7 ] "Whether the printed words would, in fact, produce as a proximate result a material interference with the recruiting or enlistment service, or the operation or success of the forces of the United States, was a question for the jury to decide in view of all the circumstances of the time and considering the place and manner of distribution." 252 U.S. 239 , 252 U. S. 250 (1920). [ Footnote 8 ] A similarly worded expression is found in that part of the majority opinion sustaining the overruling of the defendants' general demurrer to the indictment. 252 U.S. at 252 U. S. 244 . Since the defendants had not raised the issue of "clear and present danger" at the trial, it is clear that the Court was not faced with the question whether the trial judge erred in not determining, as a conclusive matter, the existence or nonexistence of a "clear and present danger." The only issue to which the remarks were addressed was whether the indictment sufficiently alleged the violation. MR. JUSTICE FRANKFURTER, concurring in affirmance of the judgment. The defendants were convicted under § 3 of the Smith Act for conspiring to violate § 2 of that Act, which makes it unlawful "to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence." Act of June 28, 1940, § 2(a)(3), 54 Stat. 670, 671, 18 U.S.C. § 10, now 18 U.S.C. § 2385. The substance of the indictment is that the defendants between April 1, 1945, and July 20, 1948, agreed to bring about the dissolution of a body known as the Communist Political Association and to organize in its place the Communist Party of the United States; that the aim of the new party was "the overthrow and destruction of the Government of the United States by force and violence"; that the defendants were to assume leadership of the Party and to recruit members for it and that the Party was to publish books and conduct classes, teaching the duty and the necessity of forceful overthrow. The jury found all the defendants guilty. With one exception, each was sentenced to imprisonment for five years and to a fine of $10,000. The convictions were affirmed by the Court of Appeals for the Second Page 341 U. S. 518 Circuit. 183 F.2d 201. We were asked to review this affirmance on all the grounds considered by the Court of Appeals. These included not only the scope of the freedom of speech guaranteed by the Constitution, but also serious questions regarding the legal composition of the jury and the fair conduct of the trial. We granted certiorari, strictly limited, however, to the contention that §§ 2 and 3 of the Smith Act, inherently and as applied, violated the First and Fifth Amendments. 340 U.S. 863. No attempt was made to seek an enlargement of the range of questions thus defined, and these alone are now open for our consideration. All others are foreclosed by the decision of the Court of Appeals. As thus limited, the controversy in this Court turns essentially on the instructions given to the jury for determining guilt or innocence. 9 F.R.D. 367. The first question is whether -- wholly apart from constitutional matters -- the judge's charge properly explained to the jury what it is that the Smith Act condemns. The conclusion that he did so requires no labored argument. On the basis of the instructions, the jury found, for the purpose of our review, that the advocacy which the defendants conspired to promote was to be a rule of action, by language reasonably calculated to incite persons to such action, and was intended to cause the overthrow of the Government by force and violence as soon as circumstances permit. This brings us to the ultimate issue. In enacting a statute which makes it a crime for the defendants to conspire to do what they have been found to have conspired to do, did Congress exceed its constitutional power? Few questions of comparable import have come before this Court in recent years. The appellants maintain that they have a right to advocate a political theory, so long, at least, as their advocacy does not create an immediate danger of obvious magnitude to the very existence of Page 341 U. S. 519 our present scheme of society. On the other hand, the Government asserts the right to safeguard the security of the Nation by such a measure as the Smith Act. Our judgment is thus solicited on a conflict of interests of the utmost concern to the wellbeing of the country. This conflict of interests cannot be resolved by a dogmatic preference for one or the other, nor by a sonorous formula which is, in fact, only a euphemistic disguise for an unresolved conflict. If adjudication is to be a rational process, we cannot escape a candid examination of the conflicting claims with full recognition that both are supported by weighty title-deeds. I There come occasions in law, as elsewhere, when the familiar needs to be recalled. Our whole history proves even more decisively than the course of decisions in this Court that the United States has the powers inseparable from a sovereign nation. "America has chosen to be, in many respects, and to many purposes, a nation, and for all these purposes, her government is complete; to all these objects, it is competent." Chief Justice Marshall in Cohens v. Virginia , 6 Wheat. 264, 19 U. S. 414 . The right of a government to maintain its existence -- self-preservation -- is the most pervasive aspect of sovereignty. "Security against foreign danger," wrote Madison, "is one of the primitive objects of civil society." The Federalist, No. 41. The constitutional power to act upon this basic principle has been recognized by this Court at different periods and under diverse circumstances. "To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come. . . . The government, possessing the powers which are to be exercised Page 341 U. S. 520 for protection and security, is clothed with authority to determine the occasion on which the powers shall be called forth. . . ." Chinese Exclusion Case, 130 U. S. 581 , 130 U. S. 606 . See also De Lima v. Bidwell, 182 U. S. 1 ; Mackenzie v. Hare, 239 U. S. 299 ; Missouri v. Holland, 252 U. S. 416 ; United States v. Curtiss-Wright Corp., 299 U. S. 304 . The most tragic experience in our history is a poignant reminder that the Nation's continued existence may be threatened from within. To protect itself from such threats, the Federal Government "is invested with all those inherent and implied powers which, at the time of adopting the Constitution, were generally considered to belong to every government as such, and as being essential to the exercise of its functions." Mr. Justice Bradley, concurring in Legal Tender Cases , 12 Wall. 457, 79 U. S. 554 , 79 U. S. 556 , and see In re Debs, 158 U. S. 564 , 158 U. S. 582 . But even the all-embracing power and duty of self-preservation are not absolute. Like the war power, which is indeed an aspect of the power of self-preservation, it is subject to applicable constitutional limitations. See Hamilton v. Kentucky Distilleries Co., 251 U. S. 146 , 251 U. S. 156 . Our Constitution has no provision lifting restrictions upon governmental authority during periods of emergency, although the scope of a restriction may depend on the circumstances in which it is invoked. The First Amendment is such a restriction. It exacts obedience even during periods of war; it is applicable when war clouds are not figments of the imagination no less than when they are. The First Amendment categorically demands that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The right of a man to think what he Page 341 U. S. 521 pleases, to write what he thinks, and to have his thoughts made available for others to hear or read has an engaging ring of universality. The Smith Act and this conviction under it no doubt restrict the exercise of free speech and assembly. Does that, without more, dispose of the matter? Just as there are those who regard as invulnerable every measure for which the claim of national survival is invoked, there are those who find in the Constitution a wholly unfettered right of expression. Such literalness treats the words of the Constitution as though they were found on a piece of outworn parchment instead of being words that have called into being a nation with a past to be preserved for the future. The soil in which the Bill of Rights grew was not a soil of arid pedantry. The historic antecedents of the First Amendment preclude the notion that its purpose was to give unqualified immunity to every expression that touched on matters within the range of political interest. The Massachusetts Constitution of 1780 guaranteed free speech; yet there are records of at least three convictions for political libels obtained between 1799 and 1803. [ Footnote 2/1 ] The Pennsylvania Constitution of 1790 and the Delaware Constitution of 1792 expressly imposed liability for abuse of the right of free speech. [ Footnote 2/2 ] Madison's own State put on its books in 1792 a statute confining the abusive exercise of the right of utterance. [ Footnote 2/3 ] And it deserves to be noted that, in writing to John Adams' wife, Jefferson did not rest his condemnation of the Sedition Act of 1798 on his belief in Page 341 U. S. 522 unrestrained utterance as to political matter. The First Amendment, he argued, reflected a limitation upon Federal power, leaving the right to enforce restrictions on speech to the States. [ Footnote 2/4 ] Page 341 U. S. 523 The language of the First Amendment is to be read not as barren words found in a dictionary but as symbols of historic experience illumined by the presuppositions of those who employed them. Not what words did Madison and Hamilton use, but what was it in their minds which they conveyed? Free speech is subject to prohibition of those abuses of expression which a civilized society may forbid. As in the case of every other provision of the Constitution that is not crystallized by the nature of its technical concepts, the fact that the First Amendment is not self-defining and self-enforcing neither impairs its usefulness nor compels its paralysis as a living instrument. Page 341 U. S. 524 "The law is perfectly well settled," this Court said over fifty years ago, "that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed." Robertson v. Baldwin, 165 U. S. 275 , 165 U. S. 281 . That this represents the authentic view of the Bill of Rights and the spirit in which it must be construed has been recognized again and again in cases that have come here within the last fifty years. See, e.g., Gompers v. United States, 233 U. S. 604 , 233 U. S. 610 . Absolute rules would inevitably lead to absolute exceptions, and such exceptions would eventually corrode the rules. [ Footnote 2/5 ] The demands of free speech in a democratic society, as well as the interest Page 341 U. S. 525 in national security are better served by candid and informed weighing of the competing interests, within the confines of the judicial process, than by announcing dogmas too inflexible for the non-Euclidian problems to be solved. But how are competing interests to be assessed? Since they are not subject to quantitative ascertainment, the issue necessarily resolves itself into asking, who is to make the adjustment? -- who is to balance the relevant factors and ascertain which interest is in the circumstances to prevail? Full responsibility for the choice cannot be given to the courts. Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures. Primary responsibility for adjusting the interests which compete in the situation before us of necessity belongs to the Congress. The nature of the power to be exercised by this Court has been delineated in decisions not charged with the emotional appeal of situations such as that now before us. We are to set aside the judgment of those whose duty it is to legislate only if there is no reasonable basis for it. Sinking-Fund Cases, 99 U. S. 700 , 99 U. S. 718 ; Mugler v. Kansas, 123 U. S. 623 , 123 U. S. 660 -661; United States v. Carolene Products Co., 304 U. S. 144 . We are to determine whether a statute is sufficiently definite to meet the constitutional requirements of due process, and whether it respects the safeguards against undue concentration of authority secured by separation of power. United States v. Cohen Grocery Co., 255 U. S. 81 . Page 341 U. S. 526 We must assure fairness of procedure, allowing full scope to governmental discretion but mindful of its impact on individuals in the context of the problem involved. Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U. S. 123 . And, of course, the proceedings in a particular case before us must have the warrant of substantial proof. Beyond these powers we must not go; we must scrupulously observe the narrow limits of judicial authority even though self-restraint is alone set over us. Above all, we must remember that this Court's power of judicial review is not "an exercise of the powers of a super-legislature." Mr. Justice Brandeis and Mr. Justice Holmes, dissenting in Burns Baking Co. v. Bryan, 264 U. S. 504 , 264 U. S. 534 . A generation ago, this distribution of responsibility would not have been questioned. See Fox v. Washington, 236 U. S. 273 ; Meyer v. Nebraska, 262 U. S. 390 ; Bartels v. Iowa, 262 U. S. 404 ; cf. New York ex rel. Bryant v. Zimmerman, 278 U. S. 63 . But, in recent decisions, we have made explicit what has long been implicitly recognized. In reviewing statutes which restrict freedoms protected by the First Amendment, we have emphasized the close relation which those freedoms bear to maintenance of a free society. See Kovacs v. Cooper, 336 U. S. 77 , 336 U. S. 89 , 336 U. S. 95 (concurring). Some members of the Court -- and at times a majority -- have done more. They have suggested that our function in reviewing statutes restricting freedom of expression differs sharply from our normal duty in sitting in judgment on legislation. It has been said that such statutes "must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice." Thomas v. Collins, 323 U. S. 516 , 323 U. S. 530 . It has been suggested, with the casualness of a footnote, that such legislation is not Page 341 U. S. 527 presumptively valid, see United States v. Carolene Products Co., 304 U. S. 144 , 304 U. S. 152 , n. 4, and it has been weightily reiterated that freedom of speech has a "preferred position" among constitutional safeguards. Kovacs v. Cooper, 336 U. S. 77 , 336 U. S. 88 . The precise meaning intended to be conveyed by these phrases need not now be pursued. It is enough to note that they have recurred in the Court's opinions, and their cumulative force has, not without justification, engendered belief that there is a constitutional principle, expressed by those attractive but imprecise words, prohibiting restriction upon utterance unless it creates a situation of "imminent" peril against which legislation may guard. [ Footnote 2/6 ] It is on this body of the Court's pronouncements that the defendants' argument here is based. In all fairness, the argument cannot be met by reinterpreting the Court's frequent use of "clear" and "present" to mean an entertainable "probability." In giving this meaning to the phrase "clear and present danger," the Court of Appeals was fastidiously confining the rhetoric of opinions to the exact scope of what was decided by them. We have greater responsibility for having given constitutional support, over repeated protests, to uncritical libertarian generalities. Page 341 U. S. 528 Nor is the argument of the defendants adequately met by citing isolated cases. Adjustment of clash of interests which are at once subtle and fundamental is not likely to reveal entire consistency in a series of instances presenting the clash. It is not too difficult to find what one seeks in the language of decisions reporting the effort to reconcile free speech with the interests with which it conflicts. The case for the defendants requires that their conviction be tested against the entire body of our relevant decisions. Since the significance of every expression of thought derives from the circumstances evoking it, results reached, rather than language employed give the vital meaning. See Cohens v. Virginia , 6 Wheat. 264, 19 U. S. 442 ; Wambaugh, The Study of Cases, 10. There is an added reason why we must turn to the decisions. "Great cases," it is appropriate to remember, "like hard cases, make bad law. For great cases are called great not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend." Mr. Justice Holmes, dissenting in Northern Securities Co. v. United States, 193 U. S. 197 , 193 U. S. 400 -401. This is such a case. Unless we are to compromise judicial impartiality and subject these defendants to the risk of an ad hoc judgment influenced by the impregnating atmosphere of the times, the constitutionality of their conviction must be determined by principles established in cases decided in more tranquil periods. If those decisions are to be used as a guide, and not as an argument, it is important to view them as a whole, and to distrust the easy generalizations to which some of them lend themselves. Page 341 U. S. 529 II We have recognized and resolved conflicts between speech and competing interests in six different types of cases. [ Footnote 2/7 ] 1. The cases involving a conflict between the interest in allowing free expression of ideas in public places and the interest in protection of the public peace and the primary uses of streets and parks, were too recently considered to be rehearsed here. Niemotko v. Maryland, 340 U. S. 268 , 340 U. S. 273 . It suffices to recall that the result in each case was found to turn on the character of the interest with which the speech clashed, the method used to impose the restriction, and the nature and circumstances of the utterance prohibited. While the decisions recognized the importance of free speech and carefully scrutinized the justification for its regulation, they rejected the notion that vindication of the deep public interest in freedom of expression requires subordination of all conflicting values. 2. A critique of the cases testing restrictions on picketing is made more difficult by the inadequate recognition by the Court from the outset that the loyalties and responses evoked and exacted by picket lines differentiate this form of expression from other modes of communication. See Thornhill v. Alabama, 310 U. S. 88 . But the Page 341 U. S. 530 crux of the decision in the Thornhill case was that a State could not constitutionally punish peaceful picketing when neither the aim of the picketing nor the manner in which it was carried out conflicted with a substantial interest. In subsequent decisions, we sustained restrictions designed to prevent recurrence of violence, Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U. S. 287 , or reasonably to limit the area of industrial strife, Carpenters & Joiners Union v. Ritter's Cafe, 315 U. S. 722 ; cf. Bakery & Pastry Drivers Local v. Wohl, 315 U. S. 769 . We held that a State's policy against restraints of trade justified it in prohibiting picketing which violated that policy, Giboney v. Empire Storage Co., 336 U. S. 490 ; we sustained restrictions designed to encourage self-employed persons, International Brotherhood of Teamsters Union v. Hanke, 339 U. S. 470 , and to prevent racial discrimination, Hughes v. Superior Court, 339 U. S. 460 . The Fourteenth Amendment bars a State from prohibiting picketing when there is no fair justification for the breadth of the restriction imposed. American Federation of Labor v. Swing, 312 U. S. 321 ; Cafeteria Employees Union v. Angelos, 320 U. S. 293 . But it does not prevent a State from denying the means of communication that picketing affords in a fair balance between the interests of trade unionism and other interests of the community. 3. In three cases, we have considered the scope and application of the power of the Government to exclude, deport, or denaturalize aliens because of their advocacy or their beliefs. In United States ex rel. Turner v. Williams, 194 U. S. 279 , we held that the First Amendment did not disable Congress from directing the exclusion of an alien found in an administrative proceeding to be an anarchist. "[A]s long as human governments endure," we said, "they cannot be denied the power of self-preservation, as that question is presented here." Page 341 U. S. 531 194 U.S. at 194 U. S. 294 . In Schneiderman v. United States, 320 U. S. 118 , and Bridges v. Wixon, 326 U. S. 135 , we did not consider the extent of the power of Congress. In each case, by a closely divided Court, we interpreted a statute authorizing denaturalization or deportation to impose on the Government the strictest standards of proof. 4. History regards "freedom of the press" as indispensable for a free society and for its government. We have, therefore, invalidated discriminatory taxation against the press and prior restraints on publication of defamatory matter. Grosjean v. American Press Co., 297 U. S. 233 ; Near v. Minnesota, 283 U. S. 697 . We have also given clear indication of the importance we attach to dissemination of ideas in reviewing the attempts of States to reconcile freedom of the press with protection of the integrity of the judicial process. In Pennekamp v. Florida, 328 U. S. 331 , the Court agreed that the Fourteenth Amendment barred a State from adjudging in contempt of court the publisher of critical and inaccurate comment about portions of a litigation that, for all practical purposes, were no longer pending. We likewise agreed, in a minor phase of our decision in Bridges v. California, 314 U. S. 252 , that even when statements in the press relate to matters still pending before a court, convictions for their publication cannot be sustained if their utterance is too trivial to be deemed a substantial threat to the impartial administration of justice. The Court has, however, sharply divided on what constitutes a sufficient interference with the course of justice. In the first decision, Patterson v. Colorado, 205 U. S. 454 , the Court affirmed a judgment for contempt imposed by a State supreme court for publication of articles reflecting on the conduct of the court in cases still before it on Page 341 U. S. 532 motions for rehearing. In the Bridges case, however, a majority held that a State court could not protect itself from the implied threat of a powerful newspaper that failure of an elected judge to impose a severe sentence would be a "serious mistake." The same case also placed beyond a State's power to punish the publication of a telegram from the president of an important union who threatened a damaging strike in the event of an adverse decision. The majority in Craig v. Harney, 331 U. S. 367 , 331 U. S. 376 , held that the Fourteenth Amendment protected "strong," "intemperate," "unfair" criticism of the way an elected lay judge was conducting a pending civil case. None of the cases establishes that the public interest in a free press must in all instances prevail over the public interest in dispassionate adjudication. But the Bridges and Craig decisions, if they survive, tend to require a showing that interference be so imminent and so demonstrable that the power theoretically possessed by the State is largely paralyzed. 5. Our decision in American Communications Assn. v. Douds, 339 U. S. 382 , recognized that the exercise of political rights protected by the First Amendment was necessarily discouraged by the requirement of the Taft-Hartley Act that officers of unions employing the services of the National Labor Relations Board sign affidavits that they are not Communists. But we held that the statute was not for this reason presumptively invalid. The problem, we said, was "one of weighing the probable effects of the statute upon the free exercise of the right of speech and assembly against the congressional determination that political strikes are evils of conduct which cause substantial harm to interstate commerce and that Communists and others identified by § 9(h) pose continuing threats to that public interest when in positions of union leadership. " Page 341 U. S. 533 339 U.S. at 339 U. S. 400 . On balance, we decided that the legislative judgment was a permissible one. [ Footnote 2/8 ] 6. Statutes prohibiting speech because of its tendency to lead to crime present a conflict of interests which bears directly on the problem now before us. The first case in which we considered this conflict was Fox v. Washington, supra. The statute there challenged had been interpreted to prohibit publication of matter "encouraging an actual breach of law." We held that the Fourteenth Amendment did not prohibit application of the statute to an article which we concluded incited a breach of laws against indecent exposure. We said that the statute "lays hold of encouragements that, apart from statute, if directed to a particular person's conduct, generally would make him who uttered them guilty of a misdemeanor, if not an accomplice or a principal in the crime encouraged, and deals with the publication of them to a wider and less selected audience." 236 U.S. at 236 U. S. 277 -278. To be sure, the Fox case preceded the explicit absorption of the substance of the First Amendment in the Fourteenth. But subsequent decisions extended the Fox principle to free speech situations. They are so important to the problem before us that we must consider them in detail. (a) The first important application of the principle was made in six cases arising under the Espionage Act of 1917. That Act prohibits conspiracies and attempts Page 341 U. S. 534 to "obstruct the recruiting or enlistment service." In each of the first three cases, Mr. Justice Holmes wrote for a unanimous Court, affirming the convictions. The evidence in Schenck v. United States, 249 U. S. 47 , showed that the defendant had conspired to circulate among men called for the draft 15,000 copies of a circular which asserted a "right" to oppose the draft. The defendant in Frohwerk v. United States, 249 U. S. 204 , was shown to have conspired to publish in a newspaper twelve articles describing the sufferings of American troops and the futility of our war aims. The record was inadequate, and we said that it was therefore "impossible to say that it might not have been found that the circulation of the paper was in quarters where a little breath would be enough to kindle a flame and that the fact was known and relied upon by those who sent the paper out." 249 U.S. at 249 U. S. 209 . In Debs v. United States, 249 U. S. 211 , the indictment charged that the defendant had delivered a public speech expounding socialism and praising Socialists who had been convicted of abetting violation of the draft laws. The ground of decision in each case was the same. The First Amendment "cannot have been, and obviously was not, intended to give immunity for every possible use of language. Robertson v. Baldwin, 165 U. S. 275 , 165 U. S. 281 ." Frohwerk v. United States, supra, at 249 U. S. 206 . "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." Schenck v. United States, supra, at 249 U. S. 52 . When "the words used had as their natural tendency and reasonably probable effect to obstruct the recruiting service," and "the defendant had the specific intent to do so in his mind," conviction in wartime is not prohibited by the Constitution. Debs v. United States, supra, at 249 U. S. 216 . Page 341 U. S. 535 In the three succeeding cases, Holmes and Brandeis, JJ., dissented from judgments of the Court affirming convictions. The indictment in Abrams v. United States, 250 U. S. 616 , was laid under an amendment to the Espionage Act which prohibited conspiracies to advocate curtailment of production of material necessary to prosecution of the war, with the intent thereby to hinder the United States in the prosecution of the war. It appeared that the defendants were anarchists who had printed circulars and distributed them in New York City. The leaflets repeated standard Marxist slogans, condemned American intervention in Russia, and called for a general strike in protest. In Schaefer v. United States, 251 U. S. 466 , the editors of a German language newspaper in Philadelphia were charged with obstructing the recruiting service and with willfully publishing false reports with the intent to promote the success of the enemies of the United States. The evidence showed publication of articles which accused American troops of weakness and mendacity, and in one instance misquoted or mistranslated two words of a Senator's speech. The indictment in Pierce v. United States, 252 U. S. 239 , charged that the defendants had attempted to cause insubordination in the armed forces and had conveyed false reports with intent to interfere with military operations. Conviction was based on circulation of a pamphlet which belittled Allied war aims and criticized conscription in strong terms. In each case, both the majority and the dissenting opinions relied on Schenck v. United States. The Court divided on its view of the evidence. The majority held that the jury could infer the required intent and the probable effect of the articles from their content. Holmes and Brandeis, JJ., thought that only "expressions of opinion and exhortations," 250 U.S. at 250 U. S. 631 , were involved, that they were "puny anonymities," 250 U.S. at 250 U. S. 629 , "impotent to produce the evil against which the statute aimed," 251 U. S. 251 Page 341 U. S. 536 U.S. 493, and that, from them, the specific intent required by the statute could not reasonably be inferred. The Court agreed that an incitement to disobey the draft statute could constitutionally be punished. It disagreed over the proof required to show such an incitement. (b) In the eyes of a majority of the Court, Gitlow v. New York, 268 U. S. 652 , presented a very different problem. There, the defendant had been convicted under a New York statute nearly identical with the Smith Act now before us. The evidence showed that the defendant was an official of the Left Wing Section of the Socialist Party, and that he was responsible for publication of a Left Wing Manifesto. This document repudiated "moderate Socialism," and urged the necessity of a militant "revolutionary Socialism," based on class struggle and revolutionary mass action. No evidence of the effect of the Manifesto was introduced, but the jury were instructed that they could not convict unless they found that the document advocated employing unlawful acts for the purpose of overthrowing organized government. The conviction was affirmed. The question, the Court held, was entirely different from that involved in Schenck v. United States, where the statute prohibited acts without reference to language. Here, where "the legislative body has determined generally, in the constitutional exercise of its discretion, that utterances of a certain kind involve such danger of substantive evil that they may be punished, the question whether any specific utterance coming within the prohibited class is likely, in and of itself, to bring about the substantive evil is not open to consideration." 268 U.S. at 268 U. S. 670 . It is sufficient that the defendant's conduct falls within the statute, and that the statute is a reasonable exercise of legislative judgment. This principle was also applied in Whitney v. California, 274 U. S. 357 , to sustain a conviction under a State criminal syndicalism statute. That statute made it a Page 341 U. S. 537 felony to assist in organizing a group assembled to advocate the commission of crime, sabotage, or unlawful acts of violence as a means of effecting political or industrial change. The defendant was found to have assisted in organizing the Communist Labor Party of California, an organization found to have the specified character. It was held that the legislature was not unreasonable in believing organization of such a party "involves such danger to the public peace and the security of the State, that these acts should be penalized in the exercise of its police power." 274 U.S. at 274 U. S. 371 . In neither of these cases did Mr. Justice Holmes and Mr. Justice Brandeis accept the reasoning of the Court. " The question,'" they said, quoting from Schenck v. United States, "'in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that [the State] has a right to prevent.'" 268 U.S. at 268 U. S. 672 -673. Since the Manifesto circulated by Gitlow "had no chance of starting a present conflagration," 268 U.S. at 268 U. S. 673 , they dissented from the affirmance of his conviction. In Whitney v. California, they concurred in the result reached by the Court, but only because the record contained some evidence that organization of the Communist Labor Party might further a conspiracy to commit immediate serious crimes, and the credibility of the evidence was not put in issue by the defendant. [ Footnote 2/9 ] (c) Subsequent decisions have added little to the principles established in these two groups of cases. In the only case arising under the Espionage Act decided by this Court during the last war, the substantiality of the evidence was the crucial issue. The defendant in Hartzel 322 U. S. S. 538� v. United States,@ 322 U. S. 680 , was an educated man and a citizen, not actively affiliated with any political group. In 1942, he wrote three articles condemning our wartime allies and urging that the war be converted into a racial conflict. He mailed the tracts to 600 people, including high-ranking military officers. According to his testimony, his intention was to "create sentiment against war amongst the white races." The majority of this Court held that a jury could not reasonably infer from these facts that the defendant had acted with a specific intent to cause insubordination or disloyalty in the armed forces. Of greater importance is the fact that the issue of law which divided the Court in the Gitlow and Whitney cases has not again been clearly raised, although in four additional instances we have reviewed convictions under comparable statutes. Fiske v. Kansas, 274 U. S. 380 , involved a criminal syndicalism statute similar to that before us in Whitney v. California. We reversed a conviction based on evidence that the defendant exhibited an innocuous preamble to the constitution of the Industrial Workers of the World in soliciting members for that organization. In Herndon v. Lowry, 301 U. S. 242 , the defendant had solicited members for the Communist Party, but there was no proof that he had urged or even approved those of the Party's aims which were unlawful. We reversed a conviction obtained under a statute prohibiting an attempt to incite to insurrection by violence on the ground that the Fourteenth Amendment prohibited conviction where, on the evidence, a jury could not reasonably infer that the defendant had violated the statute the State sought to apply. [ Footnote 2/10 ] Page 341 U. S. 539 The other two decisions go no further than to hold that the statute, as construed by the State courts, exceeded the bounds of a legislative judgment founded in reason. The statute presented in De Jonge v. Oregon, 299 U. S. 353 , had been construed to apply to anyone who merely assisted in the conduct of a meeting held under the auspices of the Communist Party. In Taylor v. Mississippi, 319 U. S. 583 , the statute prohibited dissemination of printed matter "designed and calculated to encourage violence, sabotage, or disloyalty to the government of the United States, or the state of Mississippi." We reversed a conviction for what we concluded was mere criticism and prophesy, without indicating whether we thought the statute could in any circumstances validly be applied. What the defendants communicated, we said, "is not claimed or shown to have been done with an evil or sinister purpose, to have advocated or incited subversive action against the nation or state, or to have threatened any clear and present danger to our institutions or our Government." 319 U.S. at 319 U. S. 589 -590. I must leave to others the ungrateful task of trying to reconcile all these decisions. In some instances, we have too readily permitted juries to infer deception from error, or intention from argumentative or critical statements. Abrams v. United States, supra; Schaefer v. United States, supra; Pierce v. United States, supra; Gilbert v. Minnesota, 254 U. S. 325 . In other instances, we weighted the interest in free speech so heavily that we permitted essential conflicting values to be destroyed. Bridges v. California, supra; Craig v. Harney, supra. Viewed as a whole, however, the decisions express an attitude toward the judicial function and a standard of values which, for me, are decisive of the case before us. First. -- Free-speech cases are not an exception to the principle that we are not legislators, that direct policymaking is not our province. How best to reconcile competing Page 341 U. S. 540 interests is the business of legislatures, and the balance they strike is a judgment not to be displaced by ours, but to be respected unless outside the pale of fair judgment. On occasion, we have strained to interpret legislation in order to limit its effect on interests protected by the First Amendment. Schneiderman v. United States, supra; Bridges v. Wixon, supra. In some instances, we have denied to States the deference to which I think they are entitled. Bridges v. California, supra; Craig v. Harney, supra. Once in this recent course of decisions the Court refused to permit a jury to draw inferences which seemed to me to be obviously reasonable. Hartzel v. United States, supra. But in no case has a majority of this Court held that a legislative judgment, even as to freedom of utterance, may be overturned merely because the Court would have made a different choice between the competing interests had the initial legislative judgment been for it to make. In the cases in which the opinions go farthest towards indicating a total rejection of respect for legislative determinations, the interests between which choice was actually made were such that decision might well have been expressed in the familiar terms of want of reason in the legislative judgment. In Thomas v. Collins, 323 U. S. 516 , for example, decision could not unreasonably have been placed on the ground that no substantial interest justified a State in requiring an out-of-State labor leader to register before speaking in advocacy of the cause of trade unionism. In Martin v. City of Struthers, 319 U. S. 141 , it was broadly held that a municipality was not justified in prohibiting knocking on doors and ringing doorbells for the purpose of delivering handbills. But since the good faith and reasonableness of the regulation were placed in doubt by the fact that the city did not think it necessary also to prohibit door-to-door commercial Page 341 U. S. 541 sales, decision could be sustained on narrower ground. And compare Breard v. Alexandria, post, p. 341 U. S. 622 , decided this day. In other cases, moreover, we have given clear indication that even when free speech is involved, we attach great significance to the determination of the legislature. Gitlow v. New York, supra; Whitney v. California, supra; American Communications Assn. v. Douds, supra; cf. Bridges v. California, 314 U.S. at 314 U. S. 260 . And see Hughes v. Superior Court, supra; International Brotherhood of Teamsters Union v. Hanke, supra. In Gitlow v. New York, we put our respect for the legislative judgment in terms which, if they were accepted here, would make decision easy. For that case held that, when the legislature has determined that advocacy of forceful overthrow should be forbidden, a conviction may be sustained without a finding that, in the particular case, the advocacy had a close relation to a serious attempt at overthrow. We held that it was enough that the statute be a reasonable exercise of the legislative judgment, and that the defendant's conduct fall within the statute. One of the judges below rested his affirmance on the Gitlow decision, and the defendants do not attempt to distinguish the case. They place their argument squarely on the ground that the case has been overruled by subsequent decisions. It has not been explicitly overruled. But it would be disingenuous to deny that the dissent in Gitlow has been treated with the respect usually accorded to a decision. The result of the Gitlow decision was to send a left-wing Socialist to jail for publishing a Manifesto expressing Marxist exhortations. It requires excessive tolerance of the legislative judgment to suppose that the Gitlow publication in the circumstances could justify serious concern. Page 341 U. S. 542 In contrast, there is ample justification for a legislative judgment that the conspiracy now before us is a substantial threat to national order and security. If the Smith Act is justified at all, it is justified precisely because it may serve to prohibit the type of conspiracy for which these defendants were convicted. The court below properly held that, as a matter of separability, the Smith Act may be limited to those situations to which it can constitutionally be applied. See 183 F.2d at 214-215. Our decision today certainly does not mean that the Smith Act can constitutionally be applied to facts like those in Gitlow v. New York. While reliance may properly be placed on the attitude of judicial self-restraint which the Gitlow decision reflects, it is not necessary to depend on the facts or the full extent of the theory of that case in order to find that the judgment of Congress, as applied to the facts of the case now before us, is not in conflict with the First Amendment. Second. -- A survey of the relevant decisions indicates that the results which we have reached are on the whole those that would ensue from careful weighing of conflicting interests. The complex issues presented by regulation of speech in public places, by picketing, and by legislation prohibiting advocacy of crime have been resolved by scrutiny of many factors besides the imminence and gravity of the evil threatened. The matter has been well summarized by a reflective student of the Court's work. "The truth is that the 'clear and present danger' test is an oversimplified judgment unless it takes account also of a number of other factors: the relative seriousness of the danger in comparison with the value of the occasion for speech or political activity; the availability of more moderate controls than those which the state has imposed, and perhaps the specific intent with which the speech or activity is launched. No matter how rapidly we utter the phrase 'clear and present danger,' or how Page 341 U. S. 543 closely we hyphenate the words, they are not a substitute for the weighing of values. They tend to convey a delusion of certitude when what is most certain is the complexity of the strands in the web of freedoms which the judge must dissentangle." Freund, On Understanding the Supreme Court, 27-28. It is a familiar experience in the law that new situations do not fit neatly into legal conceptions that arose under different circumstances to satisfy different needs. So it was when the injunction was tortured into an instrument of oppression against labor in industrial conflicts. So it is with the attempt to use the direction of thought lying behind the criterion of "clear and present danger" wholly out of the context in which it originated, and to make of it an absolute dogma and definitive measuring rod for the power of Congress to deal with assaults against security through devices other than overt physical attempts. Bearing in mind that Mr. Justice Holmes regarded questions under the First Amendment as questions of "proximity and degree," Schenck v. United States, 249 U.S. at 249 U. S. 52 , it would be a distortion, indeed a mockery, of his reasoning to compare the "puny anonymities," 250 U.S. at 250 U. S. 629 , to which he was addressing himself in the Abrams case in 1919 or the publication that was "futile and too remote from possible consequences," 268 U.S. at 268 U. S. 673 , in the Gitlow case in 1925 with the setting of events in this case in 1950. "It does an ill service to the author of the most quoted judicial phrases regarding freedom of speech, to make him the victim of a tendency which he fought all his life, whereby phrases are made to do service for critical analysis by being turned into dogma." "It is one of the misfortunes of the law that ideas become encysted in phrases, and thereafter for a long time cease to provoke further analysis." "Holmes, J., dissenting, in Hyde v. United Page 341 U. S. 544 States, 225 U. S. 347 , 225 U. S. 384 , at 225 U. S. 391 ." The phrase "clear and present danger," in its origin, "served to indicate the importance of freedom of speech to a free society, but also to emphasize that its exercise must be compatible with the preservation of other freedoms essential to a democracy and guaranteed by our Constitution." Pennekamp v. Florida, 328 U. S. 331 , 328 U. S. 350 , 328 U. S. 352 -353 (concurring). It were far better that the phrase be abandoned than that it be sounded once more to hide from the believers in an absolute right of free speech the plain fact that the interest in speech, profoundly important as it is, is no more conclusive in judicial review than other attributes of democracy or than a determination of the people's representatives that a measure is necessary to assure the safety of government itself. Third. -- Not every type of speech occupies the same position on the scale of values. There is no substantial public interest in permitting certain kinds of utterances: "the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words -- those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, 315 U. S. 568 , 315 U. S. 572 . We have frequently indicated that the interest in protecting speech depends on the circumstances of the occasion. See cases collected in Niemotko v. Maryland, 340 U.S. at 340 U. S. 275 -283. It is pertinent to the decision before us to consider where on the scale of values we have in the past placed the type of speech now claiming constitutional immunity. The defendants have been convicted of conspiring to organize a party of persons who advocate the overthrow of the Government by force and violence. The jury has found that the object of the conspiracy is advocacy as "a rule or principle of action," "by language reasonably and ordinarily calculated to incite persons to such action," Page 341 U. S. 545 and with the intent to cause the overthrow "as speedily as circumstances would permit." On any scale of values which we have hitherto recognized, speech of this sort ranks low. Throughout our decisions, there has recurred a distinction between the statement of an idea which may prompt its hearers to take unlawful action and advocacy that such action be taken. The distinction has its root in the conception of the common law, supported by principles of morality, that a person who procures another to do an act is responsible for that act as though he had done it himself. This principle was extended in Fox v. Washington, supra, to words directed to the public generally which would constitute an incitement were they directed to an individual. It was adapted in Schenck v. United States, supra, into a rule of evidence designed to restrict application of the Espionage Act. It was relied on by the Court in Gitlow v. New York, supra. The distinction has been repeated in many of the decisions in which we have upheld the claims of speech. We frequently have distinguished protected forms of expression from statements which "incite to violence and crime and threaten the overthrow of organized government by unlawful means." Stromberg v. California, 283 U.S. at 283 U. S. 369 . See also Near v. Minnesota, 283 U.S. at 283 U. S. 716 ; De Jonge v. Oregon, 299 U.S. at 299 U. S. 365 ; Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 308 ; Taylor v. Mississippi, 319 U.S. at 319 U. S. 589 . It is true that there is no divining rod by which we may locate "advocacy." Exposition of ideas readily merges into advocacy. The same Justice who gave currency to application of the incitement doctrine in this field dissented four times from what he thought was its misapplication. As he said in the Gitlow dissent, "Every idea is an incitement." 268 U.S. at 268 U. S. 673 . Even though advocacy of overthrow deserves little protection, we should hesitate to prohibit it if we thereby inhibit the Page 341 U. S. 546 interchange of rational ideas so essential to representative government and free society. But there is underlying validity in the distinction between advocacy and the interchange of ideas, and we do not discard a useful tool because it may be misused. That such a distinction could be used unreasonably by those in power against hostile or unorthodox views does not negate the fact that it may be used reasonably against an organization wielding the power of the centrally controlled international Communist movement. The object of the conspiracy before us is so clear that the chance of error in saying that the defendants conspired to advocate, rather than to express ideas is slight. MR. JUSTICE DOUGLAS quite properly points out that the conspiracy before us is not a conspiracy to overthrow the Government. But it would be equally wrong to treat it as a seminar in political theory. III These general considerations underlie decision of the case before us. On the one hand is the interest in security. The Communist Party was not designed by these defendants as an ordinary political party. For the circumstances of its organization, its aims and methods, and the relation of the defendants to its organization and aims, we are concluded by the jury's verdict. The jury found that the Party rejects the basic premise of our political system -- that change is to be brought about by nonviolent constitutional process. The jury found that the Party advocates the theory that there is a duty and necessity to overthrow the Government by force and violence. It found that the Party entertains and promotes this view not as a prophetic insight or as a bit of unworldly speculation, Page 341 U. S. 547 but as a program for winning adherents and as a policy to be translated into action. In finding that the defendants violated the statute, we may not treat as established fact that the Communist Party in this country is of significant size, well organized, well disciplined, conditioned to embark on unlawful activity when given the command. But, in determining whether application of the statute to the defendants is within the constitutional powers of Congress, we are not limited to the facts found by the jury. We must view such a question in the light of whatever is relevant to a legislative judgment. We may take judicial notice that the Communist doctrines which these defendants have conspired to advocate are in the ascendency in powerful nations who cannot be acquitted of unfriendliness to the institutions of this country. We may take account of evidence brought forward at this trial and elsewhere, much of which has long been common knowledge. In sum, it would amply justify a legislature in concluding that recruitment of additional members for the Party would create a substantial danger to national security. In 1947, it has been reliably reported, at least 60,000 members were enrolled in the Party. [ Footnote 2/11 ] Evidence was introduced in this case that the membership was organized in small units, linked by an intricate chain of command, and protected by elaborate precautions designed to prevent disclosure of individual identity. There are no reliable data tracing acts of sabotage or espionage directly to these defendants. But a Canadian Royal Commission appointed in 1946 to investigate espionage reported that it was "overwhelmingly established" that Page 341 U. S. 548 "the Communist movement was the principal base within which the espionage network was recruited." [ Footnote 2/12 ] The most notorious spy in recent history was led into the service of the Soviet Union through Communist indoctrination. [ Footnote 2/13 ] Evidence supports the conclusion that members of the Party seek and occupy positions of importance in political and labor organizations. [ Footnote 2/14 ] Congress was not barred by the Constitution from believing that indifference to such experience would be an exercise not of freedom, but of irresponsibility. On the other hand is the interest in free speech. The right to exert all governmental powers in aid of maintaining our institutions and resisting their physical overthrow does not include intolerance of opinions and speech that cannot do harm although opposed and perhaps alien to dominant, traditional opinion. The treatment of its Page 341 U. S. 549 minorities, especially their legal position, is among the most searching tests of the level of civilization attained by a society. It is better for those who have almost unlimited power of government in their hands to err on the side of freedom. We have enjoyed so much freedom for so long that we are perhaps in danger of forgetting how much blood it cost to establish the Bill of Rights. Of course, no government can recognize a "right" of revolution, or a "right" to incite revolution if the incitement has no other purpose or effect. But speech is seldom restricted to a single purpose, and its effects may be manifold. A public interest is not wanting in granting freedom to speak their minds even to those who advocate the overthrow of the Government by force. For, as the evidence in this case abundantly illustrates, coupled with such advocacy is criticism of defects in our society. Criticism is the spur to reform, and Burke's admonition that a healthy society must reform in order to conserve has not lost its force. Astute observers have remarked that one of the characteristics of the American Republic is indifference to fundamental criticism. Bryce, The American Commonwealth, c. 84. It is a commonplace that there may be a grain of truth in the most uncouth doctrine, however false and repellent the balance may be. Suppressing advocates of overthrow inevitably will also silence critics who do not advocate overthrow but fear that their criticism may be so construed. No matter how clear we may be that the defendants now before us are preparing to overthrow our Government at the propitious moment, it is self-delusion to think that we can punish them for their advocacy without adding to the risks run by loyal citizens who honestly believe in some of the reforms these defendants advance. It is a sobering fact that, in sustaining the convictions before us, we can hardly escape restriction on the interchange of ideas. Page 341 U. S. 550 We must not overlook the value of that interchange. Freedom of expression is the well spring of our civilization -- the civilization we seek to maintain and further by recognizing the right of Congress to put some limitation upon expression. Such are the paradoxes of life. For social development of trial and error, the fullest possible opportunity for the free play of the human mind is an indispensable prerequisite. The history of civilization is in considerable measure the displacement of error which once held sway as official truth by beliefs which in turn have yielded to other truths. Therefore, the liberty of man to search for truth ought not to be fettered, no matter what orthodoxies he may challenge. Liberty of thought soon shrivels without freedom of expression. Nor can truth be pursued in an atmosphere hostile to the endeavor or under dangers which are hazarded only by heroes. "The interest, which [the First Amendment] guards, and which gives it its importance, presupposes that there are no orthodoxies -- religious, political, economic, or scientific -- which are immune from debate and dispute. Back of that is the assumption -- itself an orthodoxy, and the one permissible exception -- that truth will be most likely to emerge, if no limitations are imposed upon utterances that can with any plausibility be regarded as efforts to present grounds for accepting or rejecting propositions whose truth the utterer asserts, or denies." International Brotherhood of Electrical Workers v. Labor Board, 181 F.2d 34, 40. In the last analysis, it is on the validity of this faith that our national security is staked. It is not for us to decide how we would adjust the clash of interests which this case presents were the primary responsibility for reconciling it ours. Congress has determined that the danger created by advocacy of overthrow justifies the ensuing restriction on freedom of speech. The determination was made after due deliberation, and Page 341 U. S. 551 the seriousness of the congressional purpose is attested by the volume of legislation passed to effectuate the same ends. [ Footnote 2/15 ] Can we then say that the judgment Congress exercised was denied it by the Constitution? Can we establish a constitutional doctrine which forbids the elected representatives of the people to make this choice? Can we hold that the First Amendment deprives Congress of what it deemed necessary for the Government's protection? To make validity of legislation depend on judicial reading of events still in the womb of time a forecast, that is, of the outcome of forces, at best, appreciated only with knowledge of the topmost secrets of nations -- is to charge the judiciary with duties beyond its equipment. We do not expect courts to pronounce historic verdicts on bygone events. Even historians have conflicting views to this day on the origins and conduct of the French Revolution, or, for that matter, varying interpretations of "the glorious Revolution" of 1688. It is as absurd to be confident that we can measure the present clash of forces and Page 341 U. S. 552 their outcome as to ask us to read history still enveloped in clouds of controversy. In the light of their experience, the Framers of the Constitution chose to keep the judiciary dissociated from direct participation in the legislative process. In asserting the power to pass on the constitutionality of legislation, Marshall and his Court expressed the purposes of the Founders. See Charles A. Beard, The Supreme Court and the Constitution. But the extent to which the exercise of this power would interpenetrate matters of policy could hardly have been foreseen by the most prescient. The distinction which the Founders drew between the Court's duty to pass on the power of Congress and its complementary duty not to enter directly the domain of policy is fundamental. But, in its actual operation, it is rather subtle, certainly to the common understanding. Our duty to abstain from confounding policy with constitutionality demands perceptive humility as well as self-restraint in not declaring unconstitutional what in a judge's private judgment is deemed unwise and even dangerous. Even when moving strictly within the limits of constitutional adjudication, judges are concerned with issues that may be said to involve vital finalities. The too easy transition from disapproval of what is undesirable to condemnation as unconstitutional has led some of the wisest judges to question the wisdom of our scheme in lodging such authority in courts. But it is relevant to remind that, in sustaining the power of Congress in a case like this, nothing irrevocable is done. The democratic process, at all events, is not impaired or restricted. Power and responsibility remain with the people, and, immediately, with their representatives. All the Court says is that Congress was not forbidden by the Constitution to pass this enactment and that a prosecution under it may be brought against a conspiracy such as the one before us. Page 341 U. S. 553 IV The wisdom of the assumptions underlying the legislation and prosecution is another matter. In finding that Congress has acted within its power, a judge does not remotely imply that he favors the implications that lie beneath the legal issues. Considerations there enter which go beyond the criteria that are binding upon judges within the narrow confines of their legitimate authority. The legislation we are here considering is but a truncated aspect of a deeper issue. For me, it has been most illuminatingly expressed by one in whom responsibility and experience have fructified native insight, the Director-General of the British Broadcasting Corporation: "We have to face up to the fact that there are powerful forces in the world today misusing the privileges of liberty in order to destroy her. The question must be asked, however, whether suppression of information or opinion is the true defense. We may have come a long way from Mill's famous dictum that: " "If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind," "but Mill's reminders from history as to what has happened when suppression was most virulently exercised ought to warn us that no debate is ever permanently won by shutting one's ears or by even the most Draconian policy of silencing opponents. The debate must be won . And it must be won with full information. Where there are lies, they must be shown for what they are. Where there are errors, they must be refuted. It would be a major defeat if the enemies of democracy forced us to abandon our faith in the power of informed discussion, and so brought us down Page 341 U. S. 554 to their own level. Mankind is so constituted, moreover, that, if, where expression and discussion are concerned, the enemies of liberty are met with a denial of liberty, many men of goodwill will come to suspect there is something in the proscribed doctrine after all. Erroneous doctrines thrive on being expunged. They die if exposed." Sir William Haley, What Standards for Broadcasting? Measure, Vol. I, No. 3, Summer 1950, pp. 211-212. In the context of this deeper struggle, another voice has indicated the limitations of what we decide today. No one is better equipped than George F. Kennan to speak on the meaning of the menace of Communism and the spirit in which we should meet it. "If our handling of the problem of Communist influence in our midst is not carefully moderated -- if we permit it, that is, to become an emotional preoccupation and to blind us to the more important positive tasks before us -- we can do a damage to our national purpose beyond comparison greater than anything that threatens us today from the Communist side. The American Communist party is today, by and large, an external danger. It represents a tiny minority in our country, it has no real contact with the feelings of the mass of our people, and its position as the agency of a hostile foreign power is clearly recognized by the overwhelming mass of our citizens." "But the subjective emotional stresses and temptations to which we are exposed in our attempt to deal with this domestic problem are not an external danger: they represent a danger within ourselves -- a danger that something may occur in our own minds and souls which will make us no longer like the persons by whose efforts this republic was founded and held together, but rather like the representatives Page 341 U. S. 555 of that very power we are trying to combat: intolerant, secretive, suspicious, cruel, and terrified of internal dissension because we have lost our own belief in ourselves and in the power of our ideals. The worst thing that our Communists could do to us, and the thing we have most to fear from their activities, is that we should become like them." "That our country is beset with external dangers I readily concede. But these dangers, at their worst, are ones of physical destruction, of the disruption of our world security, of expense and inconvenience and sacrifice. These are serious, and sometimes terrible things, but they are all things that we can take and still remain Americans." "The internal danger is of a different order. America is not just territory and people. There is lots of territory elsewhere, and there are lots of people; but it does not add up to America. America is something in our minds and our habits of outlook which causes us to believe in certain things and to behave in certain ways, and by which, in its totality, we hold ourselves distinguished from others. If that, once goes there will be no America to defend. And that can go too easily if we yield to the primitive human instinct to escape from our frustrations into the realms of mass emotion and hatred and to find scapegoats for our difficulties in individual fellow-citizens who are, or have at one time been, disoriented or confused." George F. Kennan, Where Do You Stand on Communism? New York Times Magazine, May 27, 1951, pp. 7, 53, 55. Civil liberties draw, at best, only limited strength from legal guaranties. Preoccupation by our people with the constitutionality, instead of with the wisdom, of legislation or of executive action is preoccupation with a false value. Even those who would most freely use the judicial Page 341 U. S. 556 brake on the democratic process by invalidating legislation that goes deeply against their grain, acknowledge, at least by paying lip service, that constitutionality does not exact a sense of proportion or the sanity of humor or an absence of fear. Focusing attention on constitutionality tends to make constitutionality synonymous with wisdom. When legislation touches freedom of thought and freedom of speech, such a tendency is a formidable enemy of the free spirit. Much that should be rejected as illiberal, because repressive and envenoming, may well be not unconstitutional. The ultimate reliance for the deepest needs of civilization must be found outside their vindication in courts of law; apart from all else, judges, howsoever they may conscientiously seek to discipline themselves against it, unconsciously are too apt to be moved by the deep undercurrents of public feeling. A persistent, positive translation of the liberating faith into the feelings and thoughts and actions of men and women is the real protection against attempts to strait-jacket the human mind. Such temptations will have their way, if fear and hatred are not exorcized. The mark of a truly civilized man is confidence in the strength and security derived from the inquiring mind. We may be grateful for such honest comforts as it supports, but we must be unafraid of its incertitudes. Without open minds, there can be no open society. And if society be not open, the spirit of man is mutilated, and becomes enslaved. | 341 U.S. 494 app| APPENDIX TO OPINION OF MR. JUSTICE FRANKFURTER. Opinions responsible for the view that speech could not constitutionally be restricted unless there would result from it an imminent -- i.e., close at hand -- substantive evil. 1. Thornhill v. Alabama, 310 U. S. 88 , 310 U. S. 104 -105 (State statute prohibiting picketing held invalid): ". . . Every Page 341 U. S. 557 expression of opinion on matters that are important has the potentiality of inducing action in the interests of one rather than another group in society. But the group in power at any moment may not impose penal sanctions on peaceful and truthful discussion of matters of public interest merely on a showing that others may thereby be persuaded to take action inconsistent with its interests. Abridgment of the liberty of such discussion can be justified only where the clear danger of substantive evils arises under circumstances affording no opportunity to test the merits of ideas by competition for acceptance in the market of public opinion. . . ." ". . . [N]o clear and present danger of destruction of life or property, or invasion of the right of privacy, or breach of the peace can be thought to be inherent in the activities of every person who approaches the premises of an employer and publicizes the facts of a labor dispute involving the latter." 2. Bridges v. California, 314 U. S. 252 , 314 U. S. 262 -263 (convictions for contempt of court reversed): ". . . [T]he 'clear and present danger' language of the Schenck case has afforded practical guidance in a great variety of cases in which the scope of constitutional protections of freedom of expression was in issue. It has been utilized by either a majority or minority of this Court in passing upon the constitutionality of convictions under espionage acts, Schenck v. United States, supra , [ 249 U.S. 47 ]; Abrams v. United States, 250 U. S. 616 ; under a criminal syndicalism act, Whitney v. California, supra , [ 274 U.S. 357 ]; under an 'anti-insurrection' act, Herndon v. Lowry, supra , [ 301 U.S. 242 ], and for breach of the peace at common law, Cantwell v. Connecticut, supra , [ 310 U.S. 296 ]. And, very recently, we have also suggested that 'clear and present danger' is an appropriate guide in determining the constitutionality of restrictions upon expression where the substantive evil sought to be prevented Page 341 U. S. 558 by the restriction is 'destruction of life or property, or invasion of the right of privacy.' Thornhill v. Alabama, 310 U. S. 88 , 310 U. S. 105 ." " * * * *" "What finally emerges from the 'clear and present danger' cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished. Those cases do not purport to mark the furthermost constitutional boundaries of protected expression, nor do we here. They do no more than recognize a minimum compulsion of the Bill of Rights. For the First Amendment does not speak equivocally. It prohibits any law 'abridging the freedom of speech, or of the press.' It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow." 3. West Virginia Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 639 (flag salute requirement for school children held invalid): "In weighing arguments of the parties, it is important to distinguish between the due process clause of the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment and those cases in which it is applied for its own sake. The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a 'rational basis' for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible Page 341 U. S. 559 of restriction only to prevent grave and immediate danger to interests which the State may lawfully protect. It is important to note that, while it is the Fourteenth Amendment which bears directly upon the State, it is the more specific limiting principles of the First Amendment that finally govern this case." 4. Thomas v. Collins, 323 U. S. 516 , 323 U. S. 529 -530 (State statute requiring registration of labor organizers held invalid as applied): "The case confronts us again with the duty our system places on this Court to say where the individual's freedom ends and the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment. Cf. Schneider v. State, 308 U. S. 147 ; Cantwell v. Connecticut, 310 U. S. 296 ; Prince v. Massachusetts, 321 U. S. 158 . That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions. And it is the character of the right, not of the limitation, which determines what standard governs the choice. Compare United States v. Carolene Products Co., 304 U. S. 144 , 304 U. S. 152 -153." "For these reasons, any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation. " Page 341 U. S. 560 5. Craig v. Harney, 331 U. S. 367 , 331 U. S. 376 (conviction for contempt of court reversed): "The fires which [the language] kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil." 6. Giboney v. Empire Storage Co., 336 U. S. 490 , 336 U. S. 503 (injunction against picketing upheld): ". . . There was clear danger, imminent and immediate, that, unless restrained, appellants would succeed in making [the State's policy against restraints of trade] a dead letter insofar as purchases by nonunion men were concerned. . . ." 7. Terminiello v. Chicago, 337 U. S. 1 , 337 U. S. 4 -5 (conviction for disorderly conduct reversed): "Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra , [ 315 U.S. 568 ,] 315 U. S. 571 -572, is nevertheless protected against censorship or punishment unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v. California, 314 U. S. 252 , 314 U. S. 262 ; Craig v. Harney, 331 U. S. 367 , 331 U. S. 373 . There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups." 8. American Communications Assn. v. Douds, 339 U. S. 382 , 339 U. S. 396 , 339 U. S. 412 ("Non-Communist affidavit" provision of Taft-Hartley Act upheld): "Speech may be fought with speech. Falsehoods and fallacies must be exposed, not suppressed, unless there is not sufficient time to avert the evil consequences of noxious doctrine by argument and education. That is the command of the First Amendment." And again, "[The First] Amendment requires Page 341 U. S. 561 that one be permitted to believe what he will. It requires that one be permitted to advocate what he will unless there is a clear and present danger that a substantial public evil will result therefrom." [ Footnote 2/1 ] Mass.Const., 1780, Part I, Art. XVI. See Duniway, Freedom of the Press in Massachusetts, 144-146. [ Footnote 2/2 ] Pa.Const., 1790, Art. IX, § 7; Del.Const., 1792, Art. I, § 5. [ Footnote 2/3 ] The General Assembly of Virginia passed a statute on December 26, 1792, directed at establishment of "any government separate from, or independent of the government of Virginia, within the limits thereof, unless by act of the legislature of this commonwealth for that purpose first obtained." The statute provided that "EVERY person . . . who shall by writing or advised speaking, endeavour to instigate the people of this commonwealth to erect or establish such government without such assent as aforesaid, shall be adjudged guilty of a high crime and misdemeanor. . . ." Va.Code, 1803, c. CXXXVI. [ Footnote 2/4 ] In a letter to Abigail Adams, dated September 11, 1804, Jefferson said with reference to the Sedition Act: "Nor does the opinion of the unconstitutionality and consequent nullity of that law remove all restraint from the overwhelming torrent of slander which is confounding all vice and virtue, all truth and falsehood in the US. The power to do that is fully possessed by the several state legislatures. It was reserved to them, and was denied to the general government, by the constitution according to our construction of it. While we deny that Congress have a right to controul the freedom of the press, we have ever asserted the right of the states, and their exclusive right, to do so." The letter will be published in a forthcoming volume of The Papers of Thomas Jefferson (Boyd ed.), to which I am indebted for its reproduction here in its exact form. The Sedition Act of July 14, 1798, was directed at two types of conduct. Section 1 made it a criminal offense to conspire "to impede the operation of any law of the United States," and to "counsel, advise or attempt to procure any insurrection, riot, unlawful assembly, or combination." Section 2 provided: "That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years." 1 Stat. 596-597. No substantial objection was raised to § 1 of the Act. The argument against the validity of § 2 is stated most fully in the Virginia Report of 1799-1800. That Report, prepared for the House of Delegates by a committee of which Madison was chairman, attempted to establish that the power to regulate speech was not delegated to the Federal Government by the Constitution, and that the First Amendment had prohibited the National Government from exercising the power. In reply, it was urged that power to restrict seditious writing was implicit in the acknowledged power of the Federal Government to prohibit seditious acts, and that the liberty of the press did not extend to the sort of speech restricted by the Act. See the Report of the Committee of the House of Representatives to which were referred memorials from the States, H.R.Rep. No. 110, 5th Cong., 3d Sess., published in American State Papers, Misc. Vol. 1, p. 181. For an extensive contemporary account of the controversy, see St. George Tucker's 1803 edition of Blackstone's Commentaries, Appendix to Vol. First, Part Second, Note G. [ Footnote 2/5 ] Professor Alexander Meiklejohn is a leading exponent of the absolutist interpretation of the First Amendment. Recognizing that certain forms of speech require regulation, he excludes those forms of expression entirely from the protection accorded by the Amendment. "The constitutional status of a merchant advertising his wares, of a paid lobbyist fighting for the advantage of his client, is utterly different from that of a citizen who is planning for the general welfare." Meiklejohn, Free Speech, 39. "The radio as it now operates among us is not free. Nor is it entitled to the protection of the First Amendment. It is not engaged in the task of enlarging and enriching human communication. It is engaged in making money." Id. at 104. Professor Meiklejohn even suggests that scholarship may now require such subvention and control that it no longer is entitled to protection by the First Amendment. See id. at 99-100. Professor Chafee, in his review of the Meiklejohn book, 62 Harv.L.Rev. 891, has subjected this position to trenchant comment. [ Footnote 2/6 ] In Hartzel v. United States, 322 U. S. 680 , 322 U. S. 687 , the Court reversed a conviction for willfully causing insubordination in the military forces on the ground that the intent required by the statute was not shown. It added that there was a second element necessary to conviction, "consisting of a clear and present danger that the activities in question will bring about the substantive evils which Congress has a right to prevent. Schenck v. United States, 249 U. S. 47 . Both elements must be proved by the Government beyond a reasonable doubt." Other passages responsible for attributing to the Court the principle that imminence of the apprehended evil is necessary to conviction in free speech cases are collected in an Appendix to this opinion, post, p. 341 U. S. 556 . [ Footnote 2/7 ] No useful purpose would be served by considering here decisions in which the Court treated the challenged regulation as though it imposed no real restraint on speech or on the press. E.g., Associated Press v. Labor Board, 301 U. S. 103 ; Valentine v. Chrestensen, 316 U. S. 52 ; Railway Express Agency v. New York, 336 U. S. 106 ; Lewis Publishing Co. v. Morgan, 229 U. S. 288 . We recognized that restrictions on speech were involved in United States ex rel. Milwaukee Publishing Co. v. Burleson, 255 U. S. 407 , and Gilbert v. Minnesota, 254 U. S. 325 ; but the decisions raised issues so different from those presented here that they too need not be considered in detail. Our decisions in Stromberg v. California, 283 U. S. 359 , and Winters v. New York, 333 U. S. 507 , turned on the indefiniteness of the statutes. [ Footnote 2/8 ] The Taft-Hartley Act also requires that an officer of a union using the services of the National Labor Relations Board take oath that he "does not believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods." The Court divided on the validity of this requirement. Test oaths raise such special problems that decisions on their validity are not directly helpful here. See West Virginia Board of Education v. Barnette, 319 U. S. 624 . [ Footnote 2/9 ] Burns v. United States, 274 U. S. 328 , adds nothing to the decision in Whitney v. California. [ Footnote 2/10 ] In Herndon v. Georgia, 295 U. S. 441 , the opinion of the Court was concerned solely with a question of procedure. Mr. Justice Brandeis, Mr. Justice Stone, and Mr. Justice Cardozo, however, thought that the problem of Gitlow v. New York was raised. See 295 U.S. at 295 U. S. 446 . [ Footnote 2/11 ] See the testimony of the Director of the Federal Bureau of Investigation. Hearings before the House Committee on Un-American Activities, on H.R. 1884 and H.R. 2122, 80th Cong., 1st Sess., Part 2, p. 37. [ Footnote 2/12 ] Report of the Royal Commission to Investigate Communication of Secret and Confidential Information to Agents of a Foreign Power, June 27, 1946, p. 44. There appears to be little reliable evidence demonstrating directly that the Communist Party in this country has recruited persons willing to engage in espionage or other unlawful activity on behalf of the Soviet Union. The defection of a Soviet diplomatic employee, however, led to a careful investigation of an espionage network in Canada, and has disclosed the effectiveness of the Canadian Communist Party in conditioning its members to disclose to Soviet agents vital information of a secret character. According to the Report of the Royal Commission investigating the network, conspiratorial characteristics of the Party similar to those shown in the evidence now before us were instrumental in developing the necessary motivation to cooperate in the espionage. See pp. 43-83 of the Report. [ Footnote 2/13 ] The Communist background of Dr. Klaus Fuchs was brought out in the proceedings against him. See The [London] Times, Mar. 2, 1950, p.2, col. 6. [ Footnote 2/14 ] See American Communications Assn. v. Douds, 339 U. S. 382 . Former Senator Robert M. La Follette, Jr., has reported his experience with infiltration of Communist sympathizers into congressional committee staffs. Collier's, Feb. 8, 1947, p. 22. [ Footnote 2/15 ] Immigration laws require, for instance, exclusion and deportation of aliens who advocate the overthrow of the Government by force and violence, and declare ineligible for naturalization aliens who are members of organizations so advocating. Act of Feb. 5, 1917, § 19, 39 Stat. 889, 8 U.S.C. § 155; Act of Oct. 16, 1918, 40 Stat. 1012, 8 U.S.C. § 137; Act of Oct. 14, 1940, § 305, 54 Stat. 1141, 8 U.S.C. § 705. The Hatch Act prohibits employment by any Government agency of members of organizations advocating overthrow of "our constitutional form of government." Act of Aug. 2, 1939, § 9A, 53 Stat. 1148, 5 U.S.C. (Supp. III) § 118j. The Voorhis Act of Oct. 17, 1940, was passed to require registration of organizations subject to foreign control which engage in political activity. 54 Stat. 1201, 18 U.S.C. § 2386. The Taft-Hartley Act contains a section designed to exclude Communists from positions of leadership in labor organizations. Act of June 23, 1947, § 9(h), 61 Stat. 146, 29 U.S.C. (Supp. III) § 159(h). And, most recently, the McCarran Act requires registration of "Communist action" and "Communist front" organizations. Act of Sept. 23, 1950, § 7, 64 Stat. 987, 993. MR. JUSTICE JACKSON, concurring. This prosecution is the latest of never-ending, because never successful, quests for some legal formula that will secure an existing order against revolutionary radicalism. It requires us to reappraise, in the light of our own times and conditions, constitutional doctrines devised under other circumstances to strike a balance between authority and liberty. Activity here charged to be criminal is conspiracy -- that defendants conspired to teach and advocate, and to organize the Communist Party to teach and advocate, overthrow and destruction of the Government by force and violence. There is no charge of actual violence or attempt at overthrow. [ Footnote 3/1 ] The principal reliance of the defense in this Court is that the conviction cannot stand under the Constitution because the conspiracy of these defendants presents no "clear and present danger" of imminent or foreseeable overthrow. Page 341 U. S. 562 I The statute before us repeats a pattern, originally devised to combat the wave of anarchistic terrorism that plagued this country about the turn of the century, [ Footnote 3/2 ] which lags at least two generations behind Communist Party techniques. Anarchism taught a philosophy of extreme individualism and hostility to government and property. Its avowed aim was a more just order, to be achieved by violent destruction of all government. [ Footnote 3/3 ] Anarchism's sporadic and uncoordinated acts of terror were not integrated with an effective revolutionary machine, but the Chicago Haymarket riots of 1886, [ Footnote 3/4 ] attempted murder of the industrialist Frick, attacks on state officials, and Page 341 U. S. 563 assassination of President McKinley in 1901, were fruits of its preaching. However, extreme individualism was not educive to cohesive and disciplined organization. Anarchism fell into disfavor among incendiary radicals, many of whom shifted their allegiance to the rising Communist Party. Meanwhile, in Europe, anarchism had been displaced by Bolshevism as the doctrine and strategy of social and political upheaval. Led by intellectuals hardened by revolutionary experience, it was a more sophistic&ted, dynamic and realistic movement. Establishing a base in the Soviet Union, it founded an aggressive international Communist apparatus which has modeled and directed a revolutionary movement able only to harass our own country. But it has seized control of a dozen other countries. Communism, the antithesis of anarchism, [ Footnote 3/5 ] appears today as a closed system of thought representing Stalin's Page 341 U. S. 564 version of Lenin's version of Marxism. As an ideology, it is not one of spontaneous protest arising from American working-class experience. It is a complicated system of assumptions, based on European history and conditions, shrouded in an obscure and ambiguous vocabulary, which allures our ultrasophisticated intelligentsia more than our hard-headed working people. From time to time it champions all manner of causes and grievances and makes alliances that may add to its foothold in government or embarrass the authorities. The Communist Party, nevertheless, does not seek its strength primarily in numbers. Its aim is a relatively small party whose strength is in selected, dedicated, indoctrinated, and rigidly disciplined members. From established policy it tolerates no deviation and no debate. It seeks members that are, or may be, secreted in strategic posts in transportation, communications, industry, government, and especially in labor unions where it can compel employers to accept and retain its members. [ Footnote 3/6 ] It also seeks to infiltrate and control organizations of professional and other groups. Through these placements in positions of power, it seeks a leverage over society that will make up in power of coercion what it lacks in power of persuasion. The Communists have no scruples against sabotage, terrorism, assassination, or mob disorder, but violence is not with them, as with the anarchists, an end in itself. The Communist Party advocates force only when prudent and profitable. Their strategy of stealth precludes premature or uncoordinated outbursts of violence, except, of course, when the blame will be placed on shoulders other than their own. They resort to violence as to truth, not Page 341 U. S. 565 as a principle but as an expedient. Force or violence, as they would resort to it, may never be necessary, because infiltration and deception may be enough. Force would be utilized by the Communist Party not to destroy government, but for its capture. The Communist recognizes that an established government in control of modern technology cannot be overthrown by force until it is about ready to fall of its own weight. Concerted uprising, therefore, is to await that contingency, and revolution is seen not as a sudden episode, but as the consummation of a long process. The United States, fortunately, has experienced Communism only in its preparatory stages, and, for its pattern of final action, must look abroad. Russia, of course, was the pilot Communist revolution which, to the Marxist, confirms the Party's assumptions and points its destiny. [ Footnote 3/7 ] Page 341 U. S. 566 But Communist technique in the overturn of a free government was disclosed by the coup d'etat in which they seized power in Czechoslovakia. [ Footnote 3/8 ] There, the Communist Party, during its preparatory stage, claimed and received protection for its freedoms of speech, press, and assembly. Pretending to be but another political party, it eventually was conceded participation in government, where it entrenched reliable members chiefly in control of police and information services. When the government faced a foreign and domestic crisis, the Communist Party had established a leverage strong enough to threaten civil war. In a period of confusion, the Communist plan unfolded, and the underground organization came to the surface throughout the country in the form chiefly of labor "action committees." Communist officers of the unions took over transportation, and allowed only persons with party permits to travel. Communist printers took over the newspapers and radio, and put out only party-approved versions of events. Possession was taken of telegraph and telephone systems, and communications were cut off wherever directed by party heads. Communist unions took over the factories, and in the cities, a partisan distribution of food was managed by the Communist organization. A virtually bloodless abdication by the elected government admitted the Communists to power, whereupon they instituted a reign of oppression and terror, and ruthlessly denied to all others the freedoms which had sheltered their conspiracy. Page 341 U. S. 567 II The foregoing is enough to indicate that,.either by accident or design, the Communist stratagem outwits the anti-anarchist pattern of statute aimed against "overthrow by force and violence" if qualified by the doctrine that only "clear and present danger" of accomplishing that result will sustain the prosecution. The "clear and present danger" test was an innovation by Mr. Justice Holmes in the Schenck case, [ Footnote 3/9 ] reiterated and refined by him and Mr. Justice Brandeis in later cases, [ Footnote 3/10 ] all arising before the era of World War II revealed the subtlety and efficacy of modernized revolutionary techniques used by totalitarian parties. In those cases, they were faced with convictions under so-called criminal syndicalism statutes aimed at anarchists but which, loosely construed, had been applied to punish socialism, pacifism, and left-wing ideologies, the charges often resting on far-fetched Page 341 U. S. 568 inferences which, if true, would establish only technical or trivial violations. They proposed "clear and present danger" as a test for the sufficiency of evidence in particular cases. I would save it, unmodified, for application as a "rule of reason" [ Footnote 3/11 ] in the kind of case for which it was devised. When the issue is criminality of a hot-headed speech on a street corner, or circulation of a few incendiary pamphlets, or parading by some zealots behind a red flag, or refusal of a handful of school children to salute our flag, it is not beyond the capacity of the judicial process to gather, comprehend, and weigh the necessary materials for decision whether it is a clear and present danger of substantive evil or a harmless letting off of steam. It is not a prophecy, for the danger in such cases has matured by the time of trial or it was never present. The test applies and has meaning where a conviction is sought to be based on a speech or writing which does not directly or explicitly advocate a crime, but to which such tendency is sought to be attributed by construction or by implication from external circumstances. The formula in such cases favors freedoms that are vital to our society, and even if sometimes applied too generously, the consequences cannot be grave. But its recent expansion has extended, in particular to Communists, unprecedented immunities. [ Footnote 3/12 ] Unless we are to hold our Government captive in a judge-made verbal trap, we must approach the problem of a well organized, nationwide conspiracy, such as I have Page 341 U. S. 569 described, as realistically as our predecessors faced the trivialities that were being prosecuted until they were checked with a rule of reason. I think reason is lacking for applying that test to this case. Page 341 U. S. 570 If we must decide that this Act and its application are constitutional only if we are convinced that petitioner's conduct creates a "clear and present danger" of violent overthrow, we must appraise imponderables, including international and national phenomena which baffle the best informed foreign offices and our most experienced politicians. We would have to foresee and predict the effectiveness of Communist propaganda, opportunities for infiltration, whether, and when, a time will come that they consider propitious for action, and whether and how fast our existing government will deteriorate. And we would have to speculate as to whether an approaching Communist coup would not be anticipated by a nationalistic fascist movement. No doctrine can be sound whose application requires us to make a prophecy of that sort in the guise of a legal decision. The judicial process simply is not adequate to a trial of such far-flung issues. The answers given would reflect our own political predilections, and nothing more. The authors of the clear and present danger test never applied it to a case like this, nor would I. If applied as it is proposed here, it means that the Communist plotting is protected during its period of incubation; its preliminary stages of organization and preparation are immune from the law; the Government can move only after imminent action is manifest, when it would, of course, be too late. III The highest degree of constitutional protection is due to the individual acting without conspiracy. But even an individual cannot claim that the Constitution protects him in advocating or teaching overthrow of government by force or violence. I should suppose no one would doubt that Congress has power to make such attempted Page 341 U. S. 571 overthrow a crime. But the contention is that one has the constitutional right to work up a public desire, and will to do what it is a crime to attempt. I think direct incitement by speech or writing can be made a crime, and I think there can be a conviction without also proving that the odds favored its success by 99 to 1, or some other extremely high ratio. The names of Mr. Justice Holmes and Mr. Justice Brandeis cannot be associated with such a doctrine of governmental disability. After the Schenck case, in which they set forth the clear and present danger test, they joined in these words of Mr. Justice Holmes, spoken for a unanimous Court: ". . . [T]he First Amendment, while prohibiting legislation against free speech as such, cannot have been, and obviously was not, intended to give immunity for every possible use of language. Robertson v. Baldwin, 165 U. S. 275 , 165 U. S. 281 . We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counseling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech." Frohwerk v. United States, 249 U. S. 204 , 249 U. S. 206 . The same doctrine was earlier stated in Fox v. Washington, 236 U. S. 273 , 236 U. S. 277 , and that case was recently and with approval cited in Giboney v. Empire Storage & Ice Co., 336 U. S. 490 , 336 U. S. 502 . As aptly stated by Judge Learned Hand in Masses Publishing Co. v. Patten, 244 F. 535, 540: "One may not counsel or advise others to violate the law as it stands. Words are not only the keys of persuasion, but the triggers of action, and those which have no purport but to counsel the violation of law cannot by any latitude of interpretation be a part of that public opinion which is the final source of government in a democratic state. " Page 341 U. S. 572 Of course, it is not always easy to distinguish teaching or advocacy in the sense of incitement from teaching or advocacy in the sense of exposition or explanation. It is a question of fact in each case. IV What really is under review here is a conviction of conspiracy, after a trial for conspiracy, on an indictment charging conspiracy, brought under a statute outlawing conspiracy. With due respect to my colleagues, they seem to me to discuss anything under the sun except the law of conspiracy. One of the dissenting opinions even appears to chide me for "invoking the law of conspiracy." As that is the case before us, it may be more amazing that its reversal can be proposed without even considering the law of conspiracy. The Constitution does not make conspiracy a civil right. The Court has never before done so, and I think it should not do so now. Conspiracies of labor unions, trade associations, and news agencies have been condemned, although accomplished, evidenced and carried out, like the conspiracy here, chiefly by letter-writing, meetings, speeches and organization. Indeed, this Court seems, particularly in cases where the conspiracy has economic ends, to be applying its doctrines with increasing severity. While I consider criminal conspiracy a dragnet device capable of perversion into an instrument of injustice in the hands of a partisan or complacent judiciary, it has an established place in our system of law, and no reason appears for applying it only to concerted action claimed to disturb interstate commerce and withholding it from those claimed to undermine our whole Government. [ Footnote 3/13 ] Page 341 U. S. 573 The basic rationale of the law of conspiracy is that a conspiracy may be an evil in itself, independently of any other evil it seeks to accomplish. Thus, we recently held in Pinkerton v. United States, 328 U. S. 640 , 328 U. S. 643 -644, "It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. The power of Congress to separate the two and to affix to each a different penalty is well established. . . . And the plea of double jeopardy is no defense to a conviction for both offenses. . . ." So far does this doctrine reach that it is well settled that Congress may make it a crime to conspire with others to do what an individual may lawfully do on his own. This principle is illustrated in conspiracies that violate the antitrust laws as sustained and applied by this Court. Although one may raise the prices of his own products, and many, acting without concert, may do so, the moment they conspire to that end, they are punishable. The same principle is applied to organized labor. Any workman may quit his work for any reason, but concerted actions to the same end are in some circumstances forbidden. National Labor Relations Act, as amended, 61 Stat. 136, § 8(b), 29 U.S.C. § 158(b). The reasons underlying the doctrine that conspiracy may be a substantive evil in itself, apart from any evil it may threaten, attempt, or accomplish, are peculiarly appropriate to conspiratorial Communism. "The reason for finding criminal liability in case of a combination to effect an unlawful end or to use unlawful means, where none would exist, even though the act contemplated were actually committed by an individual, is that a combination of persons to commit a wrong, either as an end or as a means to an end, is so much more dangerous, because of its increased power to do wrong, because it is more difficult Page 341 U. S. 574 to guard against and prevent the evil designs of a group of persons than of a single person, and because of the terror which fear of such a combination tends to create in the minds of people. [ Footnote 3/14 ]" There is lamentation in the dissents about the injustice of conviction in the absence of some overt act. Of course, there has been no general uprising against the Government, but the record is replete with acts to carry out the conspiracy alleged, acts such as always are held sufficient to consummate the crime where the statute requires an overt act. But the shorter answer is that no overt act is or need be required. The Court, in antitrust cases, early upheld the power of Congress to adopt the ancient common law that makes conspiracy itself a crime. Through Mr. Justice Holmes, it said: "Coming next to the objection that no overt act is laid, the answer is that the Sherman Act punishes the conspiracies at which it is aimed on the common law footing -- that is to say, it does not make the doing of any act other than the act of conspiring a condition of liability." Nash v. United States, 229 U. S. 373 , 229 U. S. 378 . Reiterated, United States v. Socony-Vacuum Oil Co., 310 U. S. 150 , 310 U. S. 252 . It is not to be supposed that the power of Congress to protect the Nation's existence is more limited than its power to protect interstate commerce. Also, it is urged that, since the conviction is for conspiracy to teach and advocate, and to organize the Communist Party to teach and advocate, the First Amendment is violated because freedoms of speech and press protect teaching and advocacy regardless of what is taught or advocated. I have never thought that to be the law. Page 341 U. S. 575 I do not suggest that Congress could punish conspiracy to advocate something, the doing of which it may not punish. Advocacy or exposition of the doctrine of communal property ownership, or any political philosophy unassociated with advocacy of its imposition by force or seizure of government by unlawful means could not be reached through conspiracy prosecution. But it is not forbidden to put down force or violence, it is not forbidden to punish its teaching or advocacy, and the end being punishable, there is no doubt of the power to punish conspiracy for the purpose. The defense of freedom of speech or press has often been raised in conspiracy cases, because, whether committed by Communists, by businessmen, or by common criminals, it usually consists of words written or spoken, evidenced by letters, conversations, speeches or documents. Communication is the essence of every conspiracy, for only by it can common purpose and concert of action be brought about or be proved. However, when labor unions raised the defense of free speech against a conspiracy charge, we unanimously said: "It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute. We reject the contention now. . . ." ". . . It is true that the agreements and course of conduct here were as in most instances brought about through speaking or writing. But it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed. . . . Such an expansive interpretation Page 341 U. S. 576 of the constitutional guaranties of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of trade, as well as many other agreements and conspiracies deemed injurious to society." Giboney v. Empire Storage & Ice Co., 336 U. S. 490 , 336 U. S. 498 , 336 U. S. 502 . A contention by the press itself, in a conspiracy case, that it was entitled to the benefits of the "clear and present danger" test, was curtly rebuffed by this Court, saying: "Nor is a publisher who engages in business practices made unlawful by the Sherman Act entitled to a partial immunity by reason of the 'clear and present danger' doctrine. . . . Formulated as it was to protect liberty of thought and of expression, it would degrade the clear and present danger doctrine to fashion from it a shield for business publishers who engage in business practices condemned by the Sherman Act. . . ." Associated Press v. United States, 326 U. S. 1 , 326 U. S. 7 . I should think it at least as "degrading" to fashion of it a shield for conspirators whose ultimate purpose is to capture or overthrow the Government. In conspiracy cases, the Court not only has dispensed with proof of clear and present danger, but even of power to create a danger: "It long has been settled, however, that a 'conspiracy to commit a crime is a different offense from the crime that is the object of the conspiracy.' . . . Petitioners, for example, might have been convicted here of a conspiracy to monopolize without ever having acquired the power to carry out the object of the conspiracy. . . ." American Tobacco Co. v. United States, 328 U. S. 781 , 328 U. S. 789 . Having held that a conspiracy alone is a crime and its consummation is another, it would be weird legal reasoning to hold that Congress could punish the one only if there was "clear and present danger" of the second. This Page 341 U. S. 577 would compel the Government to prove two crimes in order to convict for one. When our constitutional provisions were written, the chief forces recognized as antagonists in the struggle between authority and liberty were the Government, on the one hand, and the individual citizen, on the other. It was thought that, if the state could be kept in its place, the individual could take care of himself. In more recent times, these problems have been complicated by the intervention between the state and the citizen of permanently organized, well financed, semi-secret and highly disciplined political organizations. Totalitarian groups here and abroad perfected the technique of creating private paramilitary organizations to coerce both the public government and its citizens. These organizations assert as against our Government all of the constitutional rights and immunities of individuals, and at the same time exercise over their followers much of the authority which they deny to the Government. The Communist Party realistically is a state within a state, an authoritarian dictatorship within a republic. It demands these freedoms not for its members, but for the organized party. It denies to its own members at the same time the freedom to dissent, to debate, to deviate from the party line, and enforces its authoritarian rule by crude purges, if nothing more violent. The law of conspiracy has been the chief means at the Government's disposal to deal with the growing problems created by such organizations. I happen to think it is an awkward and inept remedy, but I find no constitutional authority for taking this weapon from the Government. There is no constitutional right to "gang up" on the Government. While I think there was power in Congress to enact this statute and that, as applied in this case, it cannot be Page 341 U. S. 578 held unconstitutional, [ Footnote 3/15 ] I add that I have little faith in the long-range effectiveness of this conviction to stop the rise of the Communist movement. Communism will not go to jail with these Communists. No decision by this Court can forestall revolution whenever the existing government fails to command the respect and loyalty of the people and sufficient distress and discontent is allowed to grow up among the masses. Many failures by fallen governments attest that no government can long prevent revolution by outlawry. [ Footnote 3/16 ] Corruption, ineptitude, inflation, oppressive taxation, militarization, injustice, and loss of leadership capable of intellectual initiative in domestic or foreign affairs are allies on which the Communists Page 341 U. S. 579 count to bring opportunity knocking to their door. Sometimes I think they may be mistaken. But the Communists are not building just for today -- the rest of us might profit by their example. [ Footnote 3/1 ] The Government's own summary of its charge is: "The indictment charged that from, April 1, 1945, to the date of the indictment, petitioners unlawfully, willfully, and knowingly conspired with each other and with other persons unknown to the grand jury (1) to organize as the Communist Party of the United States of America a society, group and assembly of persons who teach and advocate the overthrow and destruction of the Government of the United States by force and violence, and (2) knowingly and willfully to advocate and teach the duty and necessity of overthrowing and destroying the Government of the United States by force and violence. The indictment alleged that Section 2 of the Smith Act proscribes these acts, and that the conspiracy to take such action is a violation of Section 3 of the act (18 U.S.C. 10, 11 (1946 ed.))." [ Footnote 3/2 ] The Government says this Act before us was modeled after the New York Act of 1909, sustained by this Court in Gitlow v. New York, 268 U. S. 652 . That, in turn, as the Court pointed out, followed an earlier New York Act of 1902. Shortly after the assassination of President McKinley by an anarchist, Congress adopted the same concepts in the Immigration Act of March 3, 1903. 32 Stat. 1213, § 2. Some germs of the same concept can be found in some reconstruction legislation, such as the Enforcement Act of 1871, 17 Stat. 13. The Espionage Act of 1917, 40 Stat. 217, tit. 1, § 3, which gave rise to a series of civil rights decisions, applied only during war and defined as criminal "false statements with intent" to interfere with our war effort or cause insubordination in the armed forces or obstruct recruiting. However, a wave of "criminal syndicalism statutes" were enacted by the States. They were generally upheld, Whitney v. California, 274 U. S. 357 , and prosecutions under them were active from 1919 to 1924. In California alone, 531 indictments were returned and 164 persons convicted. 4 Encyc.Soc.Sci. 582, 583. The Smith Act followed closely the terminology designed to incriminate the methods of terroristic anarchism. [ Footnote 3/3 ] Elementary texts amplify the theory and practice of these movements which must be greatly oversimplified in this opinion. See Anarchism, 2 Encyc.Soc.Sci. 46; Nihilism, 11 Encyc.Soc.Sci. 377. [ Footnote 3/4 ] Spies v. Illinois, 122 Ill. 1, 12 N.E. 865, 17 N.E. 898. [ Footnote 3/5 ] Prof. Beard demonstrates this antithesis by quoting the Russian anarchist leader Bakunin, as follows: "'Marx is an authoritarian and centralizing communist. He wishes what we wish: the complete triumph of economic and social equality, however, within the state and through the power of the state, through the dictatorship of a very strong and, so to speak, despotic provisional government, that is, by the negation of liberty. His economic ideal is the state as the sole owner of land and capital, tilling the soil by means of agricultural associations, under the management of its engineers, and directing through the agency of capital all industrial and commercial associations." "'We demand the same triumph of economic and social equality through the abolition of the state and everything called juridical right, which is according to our view the permanent negation of human right. We wish the reconstruction of society and the establishment of the unity of mankind not from above downward through authority, through socialistic officials, engineers and public technicians, but from below upward through the voluntary federation of labor associations of all kinds emancipated entirely from the yoke of the state.'" Beard, Individualism and Capitalism, 1 Encyc.Soc.Sci. 145, 158. [ Footnote 3/6 ] For methods and objects of infiltration of labor unions, see American Communications Assn. v. Douds, 339 U. S. 382 , 339 U. S. 422 . [ Footnote 3/7 ] The Czar's government, in February, 1917, literally gave up, almost without violence, to the Provisional Government because it was ready to fall apart from its corruption, ineptitude, superstition, oppression and defeat. The revolutionary parties had little to do with this, and regarded it as a bourgeoisie triumph. Lenin was an exile in Switzerland, Trotsky in the United States, and Stalin was in Siberia. The Provisional Government attempted to continue the war against Germany, but it, too, was unable to solve internal problems, and its Galician campaign failed with heavy losses. By October, its prestige and influence sank so low that it could not continue. Meanwhile, Lenin and Trotsky had returned and consolidated the Bolshevik position around the Soviets, or trade unions. They simply took over power in an almost bloodless revolution between October 25 and November 7, 1917. That Lenin and Trotsky represented only a minority was demonstrated in November elections, in which the Bolsheviks secured less than a quarter of the seats. Then began the series of opportunistic movements to entrench themselves in power. Faced by invasion of the allies, by counterrevolution, and the attempted assassination of Lenin, terrorism was resorted to on a large scale, and all the devices of the Czar's police state were reestablished. See 1 Carr, The Bolshevik Revolution 1917-1923, 99-110, and Moore, Soviet Politics -- The Dilemma of Power, 117-139. [ Footnote 3/8 ] Duchacek, The Strategy of Communist Infiltration: Czechoslovakia, 1944-1948, World Politics, Vol. II, No. 3 (April 1950) 345-372, and The February Coup in Czechoslovakia, id., July, 1950, 511-532; see also Kertesz, The Methods of Communist Conquest: Hungary, 1944-1947, id., October 1950, 20-54; Lasswell, The Strategy of Soviet Propaganda, 24 Acad.Pol.Sci.Proc. 214, 221. See also Friedman, The Break-up of Czech Democracy. [ Footnote 3/9 ] Schenck v. United States, 249 U. S. 47 . This doctrine has been attacked as one which "annuls the most significant purpose of the First Amendment. It destroys the intellectual basis of our plan of self-government." Meiklejohn, Free Speech And Its Relation to Self-Government, 29. It has been praised: "The concept of freedom of speech received for the first time an authoritative judicial interpretation in accord with the purpose of the framers of the Constitution." Chafee, Free Speech in the United States, 82. In either event, it is the only original judicial thought on the subject, all later cases having made only extensions of its application. All agree that it means something very important, but no two seem to agree on what it is. See concurring opinion, MR. JUSTICE FRANKFURTER, Kovacs v. Cooper, 336 U. S. 77 , 336 U. S. 89 . [ Footnote 3/10 ] Gitlow v. New York, 268 U. S. 652 ; Whitney v. California, 274 U. S. 357 . Holmes' comment on the former, in his letters to Sir Frederick Pollock of June 2 and 18, 1925, as "a case in which conscience and judgment are a little in doubt," and description of his dissent as one "in favor of the rights of an anarchist (so-called) to talk drool in favor of the proletarian dictatorship" show the tentative nature of his test, even as applied to a trivial case. Holmes-Pollock Letters (Howe ed.1946). [ Footnote 3/11 ] So characterized by Mr. Justice Brandeis in Schaefer v. United States, 251 U. S. 466 , 251 U. S. 482 . [ Footnote 3/12 ] Recent cases have pushed the "clear and present danger" doctrine to greater extremes. While Mr. Justice Brandeis said only that the evil to be feared must be "imminent" and "relatively serious," Whitney v. California, 274 U. S. 357 , 274 U. S. 376 and 274 U. S. 377 , more recently it was required "that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished." Bridges v. California, 314 U. S. 252 , 314 U. S. 263 . (Italics supplied.) Schneiderman v. United States, 320 U. S. 118 , overruled earlier holdings that the courts could take judicial notice that the Communist Party does advocate overthrow of the Government by force and violence. This Court reviewed much of the basic Communist literature that is before us now, and held that it was within "the area of allowable thought," id. at 320 U. S. 139 , that it does not show lack of attachment to the Constitution, and that success of the Communist Party would not necessarily mean the end of representative government. The Court declared further that "[a] tenable conclusion from the foregoing is that the Party, in 1927, desired to achieve its purpose by peaceful and democratic means, and, as a theoretical matter, justified the use of force and violence only as a method of preventing an attempted forcible counter-overthrow once the Party had obtained control in a peaceful manner, or as a method of last resort to enforce the majority will if at some indefinite future time because of peculiar circumstances constitutional or peaceful channels were no longer open." Id. at 320 U. S. 157 . Moreover, the Court considered that this "mere doctrinal justification or prediction of the use of force under hypothetical conditions at some indefinite future time -- prediction that is not calculated or intended to be presently acted upon. . . ." ibid., was within the realm of free speech. A dissent by Mr. Chief Justice Stone, for himself and Justices Roberts and Frankfurter, challenged these naive conclusions, as they did again in Bridges v. Wixon, 326 U. S. 135 , in which the Court again set aside an Attorney General's deportation order. Here, Mr. Justice Murphy, without whom there would not have been a majority for the decision, speaking for himself in a concurring opinion, pronounced the whole deportation statute unconstitutional, as applied to Communists, under the "clear and present danger test," because "Not the slightest evidence was introduced to show that either Bridges or the Communist Party seriously and imminently threatens to uproot the Government by force or violence." 326 U.S. at 326 U. S. 165 . [ Footnote 3/13 ] These dangers were more fully set out in Krulewitch v. United States, 336 U. S. 440 , 336 U. S. 445 . [ Footnote 3/14 ] Miller on Criminal Law, 110. Similar reasons have been reiterated by this Court. United States v. Rabinowich, 238 U. S. 78 , 238 U. S. 88 ; Pinkerton v. United States, 328 U. S. 640 , 328 U. S. 643 -644. [ Footnote 3/15 ] The defendants have had the benefit so far in this case of all the doubts and confusions afforded by attempts to apply the "clear and present danger" doctrine. While I think it has no proper application to the case, these efforts have been in response to their own contentions and favored, rather than prejudiced, them. There is no call for reversal on account of it. [ Footnote 3/16 ] The pathetically ineffective efforts of free European states to overcome feebleness of the Executive and decomposition of the Legislative branches of government by legal proscriptions are reviewed in Loewenstein, Legislative Control of Political Extremism in European Democracies, 38 Col.L.Rev. 591, 725 (1938). The Nazi Party seizure of power in Germany occurred while both it and its Communist counterpart were under sentence of illegality from the courts of the Weimar Republic. The German Criminal Code struck directly at the disciplinary system of totalitarian parties. It provided: "The participation in an organization the existence, constitution, or purposes of which are to be kept secret from the Government, or in which obedience to unknown superiors or unconditional obedience to known superiors is pledged, is punishable by imprisonment up to six months for the members and from one month to one year for the founders and officers. Public officials may be deprived of the right to hold public office for a period of from one to five years." 2 Nazi Conspiracy and Aggression (GPO 1946) 11. The Czar's government of Russia fell while the Communist leaders were in exile. See 341 U.S. 494 fn3/7|>n. 7. Instances of similar failures could be multiplied indefinitely. MR. JUSTICE BLACK, dissenting. Here again, as in Breard v. Alexandria, post, p. 341 U. S. 622 , decided this day, my basic disagreement with the Court is not as to how we should explain or reconcile what was said in prior decisions, but springs from a fundamental difference in constitutional approach. Consequently, it would serve no useful purpose to state my position at length. At the outset, I want to emphasize what the crime involved in this case is, and what it is not. These petitioners were not charged with an attempt to overthrow the Government. They were not charged with overt acts of any kind designed to overthrow the Government. They were not even charged with saying anything or writing anything designed to overthrow the Government. The charge was that they agreed to assemble and to talk and publish certain ideas at a later date: the indictment is that they conspired to organize the Communist Party and to use speech or newspapers and other publications in the future to teach and advocate the forcible overthrow of the Government. No matter how it is worded, this is a virulent form of prior censorship of speech and press, which I believe the First Amendment forbids. I would hold § 3 of the Smith Act authorizing this prior restraint unconstitutional on its face and as applied. But let us assume, contrary to all constitutional ideas of fair criminal procedure, that petitioners, although not indicted for the crime of actual advocacy, may be punished for it. Even on this radical assumption, the other opinions in this case show that the only way to affirm Page 341 U. S. 580 these convictions is to repudiate directly or indirectly the established "clear and present danger" rule. This the Court does in a way which greatly restricts the protections afforded by the First Amendment. The opinions for affirmance indicate that the chief reason for jettisoning the rule is the expressed fear that advocacy of Communist doctrine endangers the safety of the Republic. Undoubtedly a governmental policy of unfettered communication of ideas does entail dangers. To the Founders of this Nation, however, the benefits derived from free expression were worth the risk. They embodied this philosophy in the First Amendment's command that "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ." I have always believed that the First Amendment is the keystone of our Government, that the freedoms it guarantees provide the best insurance against destruction of all freedom. At least as to speech in the realm of public matters, I believe that the "clear and present danger" test does not "mark the furthermost constitutional boundaries of protected expression," but does "no more than recognize a minimum compulsion of the Bill of Rights." Bridges v. California, 314 U. S. 252 , 314 U. S. 263 . So long as this Court exercises the power of judicial review of legislation, I cannot agree that the First Amendment permits us to sustain laws suppressing freedom of speech and press on the basis of Congress' or our own notions of mere "reasonableness." Such a doctrine waters down the First Amendment so that it amounts to little more than an admonition to Congress. The Amendment as so construed is not likely to protect any but those "safe" or orthodox views which rarely need its protection. I must also express my objection to the holding because, as MR. JUSTICE DOUGLAS dissent shows, it sanctions the determination of a crucial issue of fact by the judge, rather than by the jury. Nor can I let this opportunity Page 341 U. S. 581 pass without expressing my objection to the severely limited grant of certiorari in this case which precluded consideration here of at least two other reasons for reversing these convictions: (1) the record shows a discriminatory selection of the jury panel which prevented trial before a representative cross-section of the community; (2) the record shows that one member of the trial jury was violently hostile to petitioners before and during the trial. Public opinion being what it now is, few will protest the conviction of these Communist petitioners. There is hope, however, that, in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society. MR. JUSTICE DOUGLAS, dissenting. If this were a case where those who claimed protection under the First Amendment were teaching the techniques of sabotage, the assassination of the President, the filching of documents from public files, the planting of bombs, the art of street warfare, and the like, I would have no doubts. The freedom to speak is not absolute; the teaching of methods of terror and other seditious conduct should be beyond the pale along with obscenity and immorality. This case was argued as if those were the facts. The argument imported much seditious conduct into the record. That is easy, and it has popular appeal, for the activities of Communists in plotting and scheming against the free world are common knowledge. But the fact is that no such evidence was introduced at the trial. There is a statute which makes a seditious conspiracy unlawful. [ Footnote 4/1 ] Petitioners, however, were not Page 341 U. S. 582 charged with a "conspiracy to overthrow" the Government. They were charged with a conspiracy to form a party and groups and assemblies of people who teach and advocate the overthrow of our Government by force or violence and with a conspiracy to advocate and teach its overthrow by force and violence. [ Footnote 4/2 ] It may well be that indoctrination in the techniques of terror to destroy the Government would be indictable under either statute. But the teaching which is condemned here is of a different character. So far as the present record is concerned, what petitioners did was to organize people to teach and themselves teach the Marxist-Leninist doctrine contained chiefly in four books: [ Footnote 4/3 ] Stalin, Foundations of Leninism (1924); Marx and Engels, Manifesto of the Communist Party (1848); Lenin, The State and Revolution (1917); History of the Communist Party of the Soviet Union (B.) (1939). Those books are to Soviet Communism what Mein Kampf was to Nazism. If they are understood, the ugliness of Communism is revealed, its deceit and cunning are exposed, the nature of its activities becomes apparent, and the chances of its success less likely. That is not, of course, the reason why petitioners chose these books for their classrooms. They are fervent Communists to whom these volumes are gospel. They preached the creed with the hope that some day it would be acted upon. Page 341 U. S. 583 The opinion of the Court does not outlaw these texts nor condemn them to the fire, as the Communists do literature offensive to their creed. But if the books themselves are not outlawed, if they can lawfully remain on library shelves, by what reasoning does their use in a classroom become a crime? It would not be a crime under the Act to introduce these books to a class, though that would be teaching what the creed of violent overthrow of the Government is. The Act, as construed, requires the element of intent -- that those who teach the creed believe in it. The crime then depends not on what is taught, but on who the teacher is. That is to make freedom of speech turn not on what is said, but on the intent with which it is said. Once we start down that road, we enter territory dangerous to the liberties of every citizen. There was a time in England when the concept of constructive treason flourished. Men were punished not for raising a hand against the king, but for thinking murderous thoughts about him. The Framers of the Constitution were alive to that abuse, and took steps to see that the practice would not flourish here. Treason was defined to require overt acts -- the evolution of a plot against the country into an actual project. The present case is not one of treason. But the analogy is close when the illegality is made to turn on intent, not on the nature of the act. We then start probing men's minds for motive and purpose; they become entangled in the law not for what they did, but for what they thought; they get convicted not for what they said, but for the purpose with which they said it. Intent, of course, often makes the difference in the law. An act otherwise excusable or carrying minor penalties may grow to an abhorrent thing if the evil intent is present. We deal here, however, not with ordinary acts, but with speech, to which the Constitution has given a special sanction. Page 341 U. S. 584 The vice of treating speech as the equivalent of overt acts of a treasonable or seditious character is emphasized by a concurring opinion, which, by invoking the law of conspiracy, makes speech do service for deeds which are dangerous to society. The doctrine of conspiracy has served divers and oppressive purposes, and, in its broad reach, can be made to do great evil. But never until today has anyone seriously thought that the ancient law of conspiracy could constitutionally be used to turn speech into seditious conduct. Yet that is precisely what is suggested. I repeat that we deal here with speech alone, not with speech plus acts of sabotage or unlawful conduct. Not a single seditious act is charged in the indictment. To make a lawful speech unlawful because two men conceive it is to raise the law of conspiracy to appalling proportions. That course is to make a radical break with the past and to violate one of the cardinal principles of our constitutional scheme. Free speech has occupied an exalted position because of the high service it has given our society. Its protection is essential to the very existence of a democracy. The airing of ideas releases pressures which otherwise might become destructive. When ideas compete in the market for acceptance, full and free discussion exposes the false, and they gain few adherents. Full and free discussion even of ideas we hate encourages the testing of our own prejudices and preconceptions. Full and free discussion keeps a society from becoming stagnant and unprepared for the stresses and strains that work to tear all civilizations apart. Full and free discussion has indeed been the first article of our faith. We have founded our political system on it. It has been the safeguard of every religious, political, philosophical, economic, and racial group amongst us. We have counted on it to keep us from embracing what is cheap and false; we have trusted the common sense of our Page 341 U. S. 585 people to choose the doctrine true to our genius and to reject the rest. This has been the one single outstanding tenet that has made our institutions the symbol of freedom and equality. We have deemed it more costly to liberty to suppress a despised minority than to let them vent their spleen. We have above all else feared the political censor. We have wanted a land where our people can be exposed to all the diverse creeds and cultures of the world. There comes a time when even speech loses its constitutional immunity. Speech innocuous one year may at another time fan such destructive flames that it must be halted in the interests of the safety of the Republic. That is the meaning of the clear and present danger test. When conditions are so critical that there will be no time to avoid the evil that the speech threatens, it is time to call a halt. Otherwise, free speech which is the strength of the Nation will be the cause of its destruction. Yet free speech is the rule, not the exception. The restraint to be constitutional must be based on more than fear, on more than passionate opposition against the speech, on more than a revolted dislike for its contents. There must be some immediate injury to society that is likely if speech is allowed. The classic statement of these conditions was made by Mr. Justice Brandeis in his concurring opinion in Whitney v. California, 274 U. S. 357 , 274 U. S. 376 -377, "Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended Page 341 U. S. 586 is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of law-breaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger, it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated." "Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. " (Italics added.) Page 341 U. S. 587 I had assumed that the question of the clear and present danger, being so critical an issue in the case, would be a matter for submission to the jury. It was squarely held in Pierce v. United States, 252 U. S. 239 , 252 U. S. 244 , to be a jury question. Mr. Justice Pitney, speaking for the Court, said, "Whether the statement contained in the pamphlet had a natural tendency to produce the forbidden consequences, as alleged, was a question to be determined not upon demurrer, but by the jury at the trial." That is the only time the Court has passed on the issue. None of our other decisions is contrary. Nothing said in any of the nonjury cases has detracted from that ruling. [ Footnote 4/4 ] The statement in Pierce v. United States, supra, states the law as it has been, and as it should be. The Court, I think, errs when it treats the question as one of law. Yet, whether the question is one for the Court or the jury, there should be evidence of record on the issue. This record, however, contains no evidence whatsoever showing that the acts charged, viz., the teaching of the Soviet theory of revolution with the hope that it will be realized, have created any clear and present danger to the Nation. The Court, however, rules to the contrary. It says, "The formation by petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders, these petitioners, felt that the time had come for action, coupled with the inflammable nature of world conditions, similar uprisings in other countries, and the touch-and-go nature of our relations with countries with whom petitioners were in the very least ideologically attuned, convince us that their convictions were justified on this score." That ruling is, in my view, not responsive to the issue in the case. We might as well say that the speech of Page 341 U. S. 588 petitioners is outlawed because Soviet Russia and her Red Army are a threat to world peace. The nature of Communism as a force on the world scene would, of course, be relevant to the issue of clear and present danger of petitioners' advocacy within the United States. But the primary consideration is the strength and tactical position of petitioners and their converts in this country. On that, there is no evidence in the record. If we are to take judicial notice of the threat of Communists within the nation, it should not be difficult to conclude that, as a political party, they are of little consequence. Communists in this country have never made a respectable or serious showing in any election. I would doubt that there is a village, let alone a city or county or state, which the Communists could carry. Communism in the world scene is no bogeyman; but Communism as a political faction or party in this country plainly is. Communism has been so thoroughly exposed in this country that it has been crippled as a political force. Free speech has destroyed it as an effective political party. It is inconceivable that those who went up and down this country preaching the doctrine of revolution which petitioners espouse would have any success. In days of trouble and confusion, when bread lines were long, when the unemployed walked the streets, when people were starving, the advocates of a short-cut by revolution might have a chance to gain adherents. But today there are no such conditions. The country is not in despair; the people know Soviet Communism; the doctrine of Soviet revolution is exposed in all of its ugliness, and the American people want none of it. How it can be said that there is a clear and present danger that this advocacy will succeed is, therefore, a mystery. Some nations less resilient than the United States, where illiteracy is high and where democratic traditions are only budding, might have to take drastic Page 341 U. S. 589 steps and jail these men for merely speaking their creed. But in America, they are miserable merchants of unwanted ideas; their wares remain unsold. The fact that their ideas are abhorrent does not make them powerful. The political impotence of the Communists in this country does not, of course, dispose of the problem. Their numbers; their positions in industry and government; the extent to which they have, in fact, infiltrated the police, the armed services, transportation, stevedoring, power plants, munitions works, and other critical places -- these facts all bear on the likelihood that their advocacy of the Soviet theory of revolution will endanger the Republic. But the record is silent on these facts. If we are to proceed on the basis of judicial notice, it is impossible for me to say that the Communists in this country are so potent or so strategically deployed that they must be suppressed for their speech. I could not so hold unless I were willing to conclude that the activities in recent years of committees of Congress, of the Attorney General, of labor unions, of state legislatures, and of Loyalty Boards were so futile as to leave the country on the edge of grave peril. To believe that petitioners and their following are placed in such critical positions as to endanger the Nation is to believe the incredible. It is safe to say that the followers of the creed of Soviet Communism are known to the FBI; that, in case of war with Russia, they will be picked up overnight, as were all prospective saboteurs at the commencement of World War II; that the invisible army of petitioners is the best known, the most beset, and the least thriving of any fifth column in history. Only those held by fear and panic could think otherwise. This is my view if we are to act on the basis of judicial notice. But the mere statement of the opposing views indicates how important it is that we know the facts before we act. Neither prejudice nor hate nor senseless Page 341 U. S. 590 fear should be the basis of this solemn act. Free speech -- the glory of our system of government -- should not be sacrificed on anything less that plain and objective proof of danger that the evil advocated is imminent. On this record, no one can say that petitioners and their converts are in such a strategic position as to have even the slightest chance of achieving their aims. The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech." The Constitution provides no exception. This does not mean, however, that the Nation need hold its hand until it is in such weakened condition that there is no time to protect itself from incitement to revolution. Seditious conduct can always be punished. But the command of the First Amendment is so clear that we should not allow Congress to call a halt to free speech except in the extreme case of peril from the speech itself. The First Amendment makes confidence in the common sense of our people and in their maturity of judgment the great postulate of our democracy. Its philosophy is that violence is rarely, if ever, stopped by denying civil liberties to those advocating resort to force. The First Amendment reflects the philosophy of Jefferson "that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order. [ Footnote 4/5 ]" The political censor has no place in our public debates. Unless and until extreme and necessitous circumstances are shown, our aim should be to keep speech unfettered and to allow the processes Page 341 U. S. 591 of law to be invoked only when the provocateurs among us move from speech to action. Vishinsky wrote in 1938 in The Law of the Soviet State, "In our state, naturally, there is and can be no place for freedom of speech, press, and so on for the foes of socialism." Our concern should be that we accept no such standard for the United States. Our faith should be that our people will never give support to these advocates of revolution, so long as we remain loyal to the purposes for which our Nation was founded. | 341 U.S. 494 app2| APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS. There have been numerous First Amendment cases before the Court raising the issue of clear and present danger since Mr. Justice Holmes first formulated the test in Schenck v. United States, 249 U. S. 47 , 249 U. S. 52 . Most of them, however, have not involved jury trials. The cases which may be deemed at all relevant to our problem can be classified as follows: CONVICTIONS FOR CONTEMPT OF COURT (NON-JURY): Near v. Minnesota, 283 U. S. 697 ; Bridges v. California, 314 U. S. 252 ; Thomas v. Collins, 323 U. S. 516 ; Pennekamp v. Florida, 328 U. S. 331 ; Craig v. Harney, 331 U. S. 367 . CONVICTIONS BY STATE COURTS SITTING WITHOUT JURIES, GENERALLY FOR VIOLATIONS OF LOCAL ORDINANCES: Lovell v. Griffin, 303 U. S. 444 ; Schneider v. State, 308 U. S. 147 ; Cantwell v. Connecticut, 310 U. S. 296 ; Marsh v. Alabama, 326 U. S. 501 ; Tucker v. Texas, 326 U. S. 517 ; Winters v. New York, 333 U. S. 507 ; Saia v. New York, 334 U. S. 558 ; Kovacs v. Cooper, 336 U. S. 77 ; Kunz v. New York, 340 U. S. 290 ; Feiner v. New York, 340 U. S. 315 . INJUNCTIONS AGAINST ENFORCEMENT OF STATE OR LOCAL LAWS (NON-JURY): Grosjean v. American Press Co. , 297 Page 341 U. S. 592 U.S. 233; Hague v. CIO, 307 U. S. 496 ; Minersville School District v. Gobitis, 310 U. S. 586 ; West Virginia Board of Education v. Barnette, 319 U. S. 624 . ADMINISTRATIVE PROCEEDINGS (NON-JURY): Bridges v. Wixon, 326 U. S. 135 ; Schneiderman v. United States, 320 U. S. 118 ; American Communications Association v. Douds, 339 U. S. 382 . CASES TRIED BEFORE JURIES FOR VIOLATIONS OF STATE LAWS DIRECTED AGAINST ADVOCACY OF ANARCHY, CRIMINAL SYNDICALISM, ETC.: Gilbert v. Minnesota, 254 U. S. 325 ; Gitlow v. New York, 268 U. S. 652 ; Whitney v. California, 274 U. S. 357 ; Fiske v. Kansas, 274 U. S. 380 ; Stromberg v. California, 283 U. S. 359 ; De Jonge v. Oregon, 299 U. S. 353 ; Herndon v. Lowry, 301 U. S. 242 ; Taylor v. Mississippi, 319 U. S. 583 ; or for minor local offenses: Cox v. New Hampshire, 312 U. S. 569 ; Chaplinsky v. New Hampshire, 315 U. S. 568 ; Terminiello v. Chicago, 337 U. S. 1 ; Niemotko v. Maryland, 340 U. S. 268 . FEDERAL PROSECUTIONS BEFORE JURIES UNDER THE ESPIONAGE ACT OF 1917 FOLLOWING WORLD WAR I: Schenck v. United States, 249 U. S. 47 ; Frohwerk v. United States, 249 U. S. 204 ; Debs v. United States, 249 U. S. 211 ; Abrams v. United States, 250 U. S. 616 ; Schaefer v. United States, 251 U. S. 466 ; Pierce v. United States, 252 U. S. 239 . Pierce v. United States ruled that the question of clear and present danger was for the jury. In the other cases in this group the question whether the issue was for the court or the jury was not raised or passed upon. FEDERAL PROSECUTION BEFORE A JURY UNDER THE ESPIONAGE ACT OF 117 FOLLOWING WORLD WAR II: Hartzel v. United States, 322 U. S. 680 . The jury was instructed on clear and present danger in terms drawn from the language of Mr. Justice Holmes in Schenck v. United States, supra, p. 249 U. S. 52 . The Court reversed the conviction on the ground that there had not been sufficient evidence for submission of the case to the jury. [ Footnote 4/1 ] 18 U.S.C. § 2384 provides: "If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined not more than $5,000 or imprisoned not more than six years, or both." [ Footnote 4/2 ] 54 Stat. 671, 18 U.S.C. §§ 10, 11. [ Footnote 4/3 ] Other books taught were Stalin, Problems of Leninism, Strategy and Tactics of World Communism (H.R.Doc. No. 619, 80th Cong., 2d Sess.), and Program of the Communist International. [ Footnote 4/4 ] The cases which reached the Court are analyzed in the Appendix attached to this opinion, post, p. 341 U. S. 591 . [ Footnote 4/5 ] 12 Hening's Stat. (Virginia 1823), c. 34, p. 84. Whipple, Our Ancient Liberties (1927), p. 95, states: "This idea that the limit on freedom of speech or press should be set only by an actual overt act was not new. It had been asserted by a long line of distinguished thinkers, including John Locke, Montesquieu in his The Spirit of the Laws ('Words do not constitute an overt act'), the Rev. Phillip Furneaux, James Madison, and Thomas Jefferson."

In Dennis v. United States (1951), the Supreme Court upheld the constitutionality of the Smith Act, which criminalized advocating for the overthrow of the US government. The Court found that the First Amendment doesn't protect speech that presents a "clear and present danger," and that the Smith Act's prohibition on advocating for violent revolution fell within this category. The Court also rejected vagueness challenges to the Act, stating that its terms were sufficiently clear. This case set a precedent for restricting speech that poses a potential threat to national security.

Free Speech

Red Lion Broadcasting Co., Inc. v. FCC

https://supreme.justia.com/cases/federal/us/395/367/

U.S. Supreme Court Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367 (1969) Red Lion Broadcasting Co., Inc. v. Federal Communications Commission No. 2 Argued April 2-3, 1969 Decided June 9, 1969 395 U.S. 367 ast|>* 395 U.S. 367 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Syllabus The Federal Communications Commission (FCC) has for many years imposed on broadcasters a "fairness doctrine," requiring that public issues be presented by broadcasters and that each side of those issues be given fair coverage. In No. 2, the FCC declared that petitioner Red Lion Broadcasting Co. had failed to meet its obligation under the fairness doctrine when it carried a program which constituted a personal attack on one Cook, and ordered it to send a transcript of the broadcast to Cook and provide reply time, whether or not Cook would pay for it. The Court of Appeals upheld the FCC's position. After the commencement of the Red Lion litigation, the FCC began a rulemaking proceeding to make the personal attack aspect of the fairness doctrine more precise and more readily enforceable, and to specify its rules relating to political editorials. The rules, as adopted and amended, were held unconstitutional by the Court of Appeals in RTNDA (No. 717) as abridging the freedoms of speech and press. Held: 1. The history of the fairness doctrine and of related legislation shows that the FCC's action in the Red Lion case did not exceed its authority, and that, in adopting the new regulations, the FCC was implementing congressional policy. Pp. 395 U. S. 375 -386. (a) The fairness doctrine began shortly after the Federal Radio Commission was established to allocate frequencies among competing applicants in the public interest, and insofar as there is an affirmative obligation of the broadcaster to see that both sides are presented, the personal attack doctrine and regulations do not differ from the fairness doctrine. Pp. 395 U. S. 375 -379. (b) The FCC's statutory mandate to see that broadcasters operate in the public interest and Congress' reaffirmation, in the Page 395 U. S. 368 1959 amendment to § 315 of the Communications Act, of the FCC's view that the fairness doctrine inhered in the public interest standard, support the conclusion that the doctrine and its component personal attack and political editorializing' regulations are a legitimate exercise of congressionally delegated authority. Pp. 395 U. S. 379 -386. 2. The fairness doctrine and its specific manifestations in the personal attack and political editorial rules do not violate the First Amendment. Pp. 395 U. S. 386 -401. (a) The First Amendment is relevant to public broadcasting, but it is the right of the viewing and listening public, and not the right of the broadcasters, which is paramount. Pp. 395 U. S. 386 -390. (b) The First Amendment does not protect private censorship by broadcasters who are licensed by the Government to use a scarce resource which is denied to others. Pp. 395 U. S. 390 -392. (c) The danger that licensees will eliminate coverage of controversial issues as a result of the personal attack and political editorial rules is, at best, speculative, and, in any event, the FCC has authority to guard against this danger. Pp. 395 U. S. 392 -395. (d) There was nothing vague about the FCC's specific ruling in the Red Lion case, and the regulations at issue in No. 717 could be employed in precisely the same way as the fairness doctrine in Red Lion. It is not necessary to decide every aspect of the fairness doctrine to decide these cases. Problems involving more extreme applications or more difficult constitutional questions will be dealt with if and when they arise. Pp. 395 U. S. 395 -396. (e) It has not been shown that the scarcity of broadcast frequencies, which impelled governmental regulation, is entirely a thing of the past, as new uses for the frequency spectrum have kept pace with improved technology and more efficient utilization of that spectrum. Pp. 395 U. S. 396 -400. No. 2, 127 U.S.App.D.C. 129, 381 F.2d 908, affirmed; No. 717, 400 F.2d 1002, reversed and remanded. Page 395 U. S. 369 MR. JUSTICE WHITE delivered the opinion of the Court The Federal Communications Commission has for many years imposed on radio and television broadcasters the requirement that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage. This is known as the fairness doctrine, which originated very early in the history of broadcasting and has maintained its present outlines for some time. It is an obligation whose content has been defined in a long series of FCC rulings in particular cases, and which is distinct from the statutory Page 395 U. S. 370 requirement of § 315 of the Communications Act [ Footnote 1 ] that equal time be allotted all qualified candidates for public office. Two aspects of the fairness doctrine, relating to personal attacks in the context of controversial public issues and to political editorializing, were codified more precisely in the form of FCC regulations in 1967. The two cases before us now, which were decided separately below, challenge the constitutional and statutory bases of the doctrine and component rules. Red Lion Page 395 U. S. 371 involves the application of the fairness doctrine to a particular broadcast, and RTNDA arises as an action to review the FCC's 1967 promulgation of the personal attack and political editorializing regulations, which were laid down after the Red Lion litigation had begun. I A The Red Lion Broadcasting Company is licensed to operate a Pennsylvania radio station, WGCB. On November 27, 1964, WGCB carried a 15-minute broadcast by the Reverend Billy James Hargis as part of a "Christian Crusade" series. A book by Fred J. Cook entitled "Goldwater -- Extremist on the Right" was discussed by Hargis, who said that Cook had been fired by a newspaper for making false charges against city officials; that Cook had then worked for a Communist-affiliated publication; that he had defended Alger Hiss and attacked J. Edgar Hoover and the Central Intelligence Agency, and that he had now written a "book to smear and destroy Barry Goldwater." [ Footnote 2 ] When Cook heard of the broadcast, he Page 395 U. S. 372 concluded that he had been personally attacked and demanded free reply time, which the station refused. After an exchange of letters among Cook, Red Lion, and the FCC, the FCC declared that the Hargis broadcast constituted a personal attack on Cook; that Red Lion had failed to meet its obligation under the fairness doctrine as expressed in Times-Mirror Broadcasting Co., 24 P & F Radio Reg. 404 (1962), to send a tape, transcript, or summary of the broadcast to Cook and offer him reply time, and that the station must provide reply time whether or not Cook would pay for it. On review in the Court of Appeals for the District of Columbia Circuit, [ Footnote 3 ] the Page 395 U. S. 373 FCC's position was upheld as constitutional and otherwise proper. 127 U.S.App.D.C. 129, 381 F.2d 908 (1967). B Not long after the Red Lion litigation was begun, the FCC issued a Notice of Proposed Rule Making, 31 Fed.Reg. 5710, with an eye to making the personal attack aspect of the fairness doctrine more precise and more readily enforceable, and to specifying its rules relating to political editorials. After considering written comments supporting and opposing the rules, the FCC adopted them substantially as proposed, 32 Fed.Reg. 10303. Twice amended, 32 Fed.Reg. 11531, 33 Fed.Reg. 5362, the rules were held unconstitutional in the RTNDA litigation by the Court of Appeals for the Seventh Circuit, on review of the rulemaking proceeding, as abridging the freedoms of speech and press. 400 F.2d 1002 (1968). As they now stand amended, the regulations read as follows: "Personal attacks; political editorials." "(a) When, during the presentation of views on a controversial issue of public importance, an attack is made upon the honesty, character, integrity or like personal qualities of an identified person or group, the licensee shall, within a reasonable time and in no event later than 1 week after the attack, transmit to the person or group attacked(1) notification of the date, time and identification of the broadcast; (2) a script or tape (or an accurate summary if a script or tape is not available) of the Page 395 U. S. 374 attack, and (3) an offer of a reasonable opportunity to respond over the licensee's facilities." "(b) The provisions of paragraph (a) of this section shall not be applicable (1) to attacks on foreign groups or foreign public figures; (2) to personal attacks which are made by legally qualified candidates, their authorized spokesmen, or those associated with them in the campaign, on other such candidates, their authorized spokesmen, or persons associated with the candidates in the campaign, and (3) to bona fide newscasts, bona fide news interviews, and on-the-spot coverage of a bona fide news event (including commentary or analysis contained in the foregoing programs, but the provisions of paragraph (a) of this section shall be applicable to editorials of the licensee)." "NOTE: The fairness doctrine is applicable to situations coming within [(3)], above, and, in a specific factual situation, may be applicable in the general area of political broadcasts [(2)], above. See section 315(a) of the Act, 47 U.S.C. 315(a); Public Notice: Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance. 29 F. R. 10415. The categories listed in [(3)] are the same as those specified in section 315(a) of the Act." "(c) Where a licensee, in an editorial, (i) endorses or (ii) opposes a legally qualified candidate or candidates, the licensee shall, within 24 hours after the editorial, transmit to respectively (i) the other qualified candidate or candidates for the same office or (ii) the candidate opposed in the editorial (1) notification of the date and the time of the editorial; (2) a script or tape of the editorial, and (3) an offer of a reasonable opportunity for a candidate or a spokesman of the candidate to respond over the Page 395 U. S. 375 licensee's facilities: Provided, however, That where such editorials are broadcast within 72 hours prior to the day of the election, the licensee shall comply with the provisions of this paragraph sufficiently far in advance of the broadcast to enable the candidate or candidates to have a reasonable opportunity to prepare a response and to present it in a timely fashion." 47 CFR §§ 73.123, 73.300, 73.598, 73.679 (all identical). C Believing that the specific application of the fairness doctrine in Red Lion, and the promulgation of the regulations in RTNDA, are both authorized by Congress and enhance, rather than abridge, the freedoms of speech and press protected by the First Amendment, we hold them valid and constitutional, reversing the judgment below in RTNDA and affirming the judgment below in Red Lion. II The history of the emergence of the fairness doctrine and of the related legislation shows that the Commission's action in the Red Lion case did not exceed its authority, and that, in adopting the new regulations, the Commission was implementing congressional policy, rather than embarking on a frolic of its own. A Before 1927, the allocation of frequencies was left entirely to the private sector, and the result was chaos. [ Footnote 4 ] Page 395 U. S. 376 It quickly became apparent that broadcast frequencies constituted a scarce resource whose use could be regulated and rationalized only by the Government. Without government control, the medium would be of little use because of the cacaphony of competing voices, none of which could be clearly and predictably heard. [ Footnote 5 ] Consequently, the Federal Radio Commission was established Page 395 U. S. 377 to allocate frequencies among competing applicants in a manner responsive to the public "convenience, interest, or necessity." [ Footnote 6 ] Very shortly thereafter, the Commission expressed its view that the "public interest requires ample play for the free and fair competition of opposing views, and the commission believes that the principle applies . . . to all discussions of issues of importance to the public." Great Lakes Broadcasting Co., 3 F.R.C.Ann.Rep. 32, 33 (1929), rev'd on other grounds, 59 App.D.C.197, 37 F.2d 993, cert. dismissed, 281 U.S. 706 (1930). This doctrine was applied through denial of license renewals or construction permits, both by the FRC, Trinity Methodist Church, South v. FRC, 61 App.D.C. 311, 62 F.2d 850 (1932), cert. denied, 288 U.S. 599 (1933), and its successor FCC, Young People's Association for the Propagation of the Gospel, 6 F.C.C. 178 (1938). After an extended period during which the licensee was obliged not only to cover and to cover fairly the views of others but also to refrain from expressing his own personal views, Mayflower Broadcasting Corp., 8 F.C.C. 333 (1940), the latter limitation on the licensee was abandoned, and the doctrine developed into its present form. There is a twofold duty laid down by the FCC's decisions and described by the 1949 Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246 (1949). The broadcaster must give adequate coverage to public issues, United Broadcasting Co., 10 F.C.C. 515 (1945), and coverage must be fair in that it accurately reflects the opposing views. New Broadcasting Co., 6 P & F Radio Reg. 258 (1950). This must be done at the broadcaster's own expense if sponsorship is unavailable. Cullman Broadcasting Co., 25 P & F Radio Reg. 895 (1963). Page 395 U. S. 378 Moreover, the duty must be met by programming obtained at the licensee's own initiative if available from no other source. John J. Dempsey, 6 P & F Radio Reg. 615 (1950); see Metropolitan Broadcasting Corp., 19 P & F Radio Reg. 602 (1960); The Evening News Assn., 6 P & F Radio Reg. 283 (1950). The Federal Radio Commission had imposed these two basic duties on broadcasters since the outset, Great Lakes Broadcasting Co., 3 F.R.C.Ann.Rep. 32 (1929), rev'd on other grounds, 59 App.D.C.197, 37 F.2d 993, cert. dismissed, 281 U.S. 706 (1930); Chicago Federation of Labor v. FRC, 3 F.R.C.Ann.Rep. 36 (1029), aff'd, 59 App.D.C. 333, 41 F.2d 422 (1930); KFKB Broadcasting Assn. v. FRC, 60 App.D.C. 79, 47 F.2d 670 (1931), and in particular respects the personal attack rules and regulations at issue here have spelled them out in greater detail. When a personal attack has been made on a figure involved in a public issue, both the doctrine of cases such as Red Lion and Times-Mirror Broadcasting Co., 24 P & F Radio Reg. 404 (1962), and also the 1967 regulations at issue in RTNDA, require that the individual attacked himself be offered an opportunity to respond. Likewise, where one candidate is endorsed in a political editorial, the other candidates must themselves be offered reply time to use personally or through a spokesman. These obligations differ from the general fairness requirement that issues be presented, and presented with coverage of competing views, in that the broadcaster does not have the option of presenting the attacked party's side himself or choosing a third party to represent that side. But insofar as there is an obligation of the broadcaster to see that both sides are presented, and insofar as that is an affirmative obligation, the personal attack doctrine and regulations do not differ from the preceding fairness doctrine. The simple fact that the attacked men or unendorsed candidates may respond themselves or through Page 395 U. S. 379 agents is not a critical distinction, and, indeed, it is not unreasonable for the FCC to conclude that the objective of adequate presentation of all sides may best be served by allowing those most closely affected to make the response, rather than leaving the response in the hands of the station which has attacked their candidacies, endorsed their opponents, or carried a personal attack upon them. B The statutory authority of the FCC to promulgate these regulations derives from the mandate to the "Commission from time to time, as public convenience, interest, or necessity requires" to promulgate "such rules and regulations and prescribe such restrictions and conditions . . . as may be necessary to carry out the provisions of this chapter. . . ." 47 U.S.C. § 303 and § 303(r). [ Footnote 7 ] The Commission is specifically directed to consider the demands of the public interest in the course of granting licenses, 47 U.S.C. §§ 307(a), 309(a); Page 395 U. S. 380 renewing them, 47 U.S.C. § 307, and modifying them. Ibid. Moreover, the FCC has included among the conditions of the Red Lion license itself the requirement that operation of the station be carried out in the public interest, 47 U.S.C. § 309(h). This mandate to the FCC to assure that broadcasters operate in the public interest is a broad one, a power "not niggardly but expansive," National Broadcasting Co. v. United States, 319 U. S. 190 , 319 U. S. 219 (1943), whose validity we have long upheld. FCC v. Pottsville Broadcasting Co., 309 U. S. 134 , 309 U. S. 138 (1940); FCC v. RCA Communications, Inc., 346 U. S. 86 , 346 U. S. 90 (1953); FRC v. Nelson Bros. Bond & Mortgage Co., 289 U. S. 266 , 289 U. S. 285 (1933). It is broad enough to encompass these regulations. The fairness doctrine finds specific recognition in statutory form, is in part modeled on explicit statutory provisions relating to political candidates, and is approvingly reflected in legislative history. In 1959, the Congress amended the statutory requirement of § 315 that equal time be accorded each political candidate to except certain appearances on news programs, but added that this constituted no exception " from the obligation imposed upon them under this Act to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance. " Act of September 14, 1959, § 1, 73 Stat. 557, amending 47 U.S.C. § 315(a) (emphasis added). This language makes it very plain that Congress, in 1959, announced that the phrase "public interest," which had been in the Act since 1927, imposed a duty on broadcasters to discuss both sides of controversial public issues. In other words, the amendment vindicated the FCC's general view that the fairness doctrine inhered in the public interest standard. Subsequent legislation declaring the intent of an earlier statute Page 395 U. S. 381 is entitled to great weight in statutory construction. [ Footnote 8 ] And here this principle is given special force by the equally venerable principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong, [ Footnote 9 ] especially when Congress has refused to alter the administrative construction. [ Footnote 10 ] Here, the Congress has not just kept its silence by refusing to overturn the administrative construction, [ Footnote 11 ] but has ratified it with Page 395 U. S. 382 positive legislation. Thirty years of consistent administrative construction left undisturbed by Congress until 1959, when that construction was expressly accepted, reinforce the natural conclusion that the public interest language of the Act authorized the Commission to require licensees to use their stations for discussion of public issues, and that the FCC is free to implement this requirement by reasonable rules and regulations which fall short of abridgment of the freedom of speech and press, and of the censorship proscribed by § 326 of the Act. [ Footnote 12 ] The objectives of § 315 themselves could readily be circumvented but for the complementary fairness doctrine ratified by § 315. The section applies only to campaign appearances by candidates, and not by family, friends, campaign managers, or other supporters. Without the fairness doctrine, then, a licensee could ban all campaign appearances by candidates themselves from the air [ Footnote 13 ] and Page 395 U. S. 383 proceed to deliver over his station entirely to the supporters of one slate of candidates, to the exclusion of all others. In this way, the broadcaster could have a far greater impact on the favored candidacy than he could by simply allowing a spot appearance by the candidate himself. It is the fairness doctrine as an aspect of the obligation to operate in the public interest, rather than § 315, which prohibits the broadcaster from taking such a step. The legislative history reinforces this view of the effect of the 1959 amendment. Even before the language relevant here was added, the Senate report on amending § 315 noted that "broadcast frequencies are limited, and, therefore, they have been necessarily considered a public trust. Every licensee who is fortunate in obtaining a license is mandated to operate in the public interest, and has assumed the obligation of presenting important public questions fairly and without bias." S.Rep. No. 562, 86th Cong., 1st Sess., 8-9 (1959). See also, specifically adverting to Federal Communications Commission doctrine, id. at 13. Rather than leave this approval solely in the legislative history, Senator Proxmire suggested an amendment to make it part of the Act. 105 Cong.Rec. 14457. This amendment, which Senator Pastore, a manager of the bill and a ranking member of the Senate Committee, considered "rather surplusage," 105 Cong.Rec. 14462, constituted a positive statement of doctrine, [ Footnote 14 ] and was altered Page 395 U. S. 384 to the present merely approving language in the conference committee. In explaining the language to the Senate after the committee changes, Senator Pastore said: "We insisted that that provision remain in the bill, to be a continuing reminder and admonition to the Federal Communications Commission and to the broadcasters alike that we were not abandoning the philosophy that gave birth to section 316, in giving the people the right to have a full and complete disclosure of conflicting views on news of interest to the people of the country." 105 Cong.Rec. 17830. Senator Scott, another Senate manager, added that: "It is intended to encompass all legitimate areas of public importance which are controversial," not just politics. 105 Cong.Rec. 17831. It is true that the personal attack aspect of the fairness doctrine was not actually adjudicated until after 1959, so that Congress then did not have those rules specifically before it. However, the obligation to offer time to reply to a personal attack was presaged by the FCC's 1949 Report on Editorializing, which the FCC views as the principal summary of its ratio decidendi in cases in this area: "In determining whether to honor specific requests for time, the station will inevitably be confronted with such questions as . . . whether there may not be other available groups or individuals who might be more appropriate spokesmen for the particular point of view than the person making the request. The latter's personal involvement in the controversy may also be a factor which must be considered, for elementary considerations of fairness may dictate that time be allocated to a person or group which has been specifically attacked over the station, where otherwise no such obligation would exist." 13 F.C.C. at 1251-1252. Page 395 U. S. 385 When the Congress ratified the FCC's implication of a fairness doctrine in 1959, it did not, of course, approve every past decision or pronouncement by the Commission on this subject, or give it a completely free hand for the future. The statutory authority does not go so far. But we cannot say that, when a station publishes personal attacks or endorses political candidates, it is a misconstruction of the public interest standard to require the station to offer time for a response, rather than to leave the response entirely within the control of the station which has attacked either the candidacies or the men who wish to reply in their own defense. When a broadcaster grants time to a political candidate, Congress itself requires that equal time be offered to his opponents. It would exceed our competence to hold that the Commission is unauthorized by the statute to employ a similar device where personal attacks or political editorials are broadcast by a radio or television station. In light of the fact that the "public interest" in broadcasting clearly encompasses the presentation of vigorous debate of controversial issues of importance and concern to the public, the fact that the FCC has rested upon that language from its very inception a doctrine that these issues must be discussed, and fairly, and the fact that Congress has acknowledged that the analogous provisions of § 315 are not preclusive in this area, and knowingly preserved the FCC's complementary efforts, we think the fairness doctrine and its component personal attack and political editorializing regulations are a legitimate exercise of congressionally delegated authority. The Communications Act is not notable for the precision of its substantive standards, and, in this respect the explicit provisions of § 315, and the doctrine and rules at issue here which are closely modeled upon that section, are far more explicit than the generalized "public interest" standard in which the Commission ordinarily finds its Page 395 U. S. 386 sole guidance, and which we have held a broad but adequate standard before. FCC v. RCA Communications, Inc., 346 U. S. 86 , 346 U. S. 90 (1953); National Broadcasting Co. v. United States, 319 U. S. 190 , 319 U. S. 216 -217 (1943); FCC v. Pottsville Broadcasting Co., 309 U. S. 134 , 309 U. S. 138 (1940); FRC v. Nelson Bros. Bond & Mortgage Co., 289 U. S. 266 , 289 U. S. 285 (1933). We cannot say that the FCC's declaratory ruling in Red Lion, or the regulations at issue in RTNDA, are beyond the scope of the congressionally conferred power to assure that stations are operated by those whose possession of a license serves "the public interest." III The broadcasters challenge the fairness doctrine and its specific manifestations in the personal attack and political editorial rules on conventional First Amendment grounds, alleging that the rules abridge their freedom of speech and press. Their contention is that the First Amendment protects their desire to use their allotted frequencies continuously to broadcast whatever they choose, and to exclude whomever they choose from ever using that frequency. No man may be prevented from saying or publishing what he thinks, or from refusing in his speech or other utterances to give equal weight to the views of his opponents. This right, they say, applies equally to broadcasters. A Although broadcasting is clearly a medium affected by a First Amendment interest, United States v. Paramount Pictures, Inc., 334 U. S. 131 , 334 U. S. 166 (1948), differences in the characteristics of new media justify differences in the First Amendment standards applied to them. [ Footnote 15 ] Joseph Page 395 U. S. 387 Burstyn, Inc. v. Wilson, 343 U. S. 495 , 343 U. S. 503 (1352). For example, the ability of new technology to produce sounds more raucous than those of the human voice justifies restrictions on the sound level, and on the hours and places of use, of sound trucks so long as the restrictions are reasonable and applied without discrimination. Kovacs v. Cooper, 336 U. S. 77 (1949). Just as the Government may limit the use of sound-amplifying equipment potentially so noisy that it drowns out civilized private speech, so may the Government limit the use of broadcast equipment. The right of free speech of a broadcaster, the user of a sound truck, or any other individual does not embrace a right to snuff out the free speech of others. Associated Press v. United States, 326 U. S. 1 , 326 U. S. 20 (1945). When two people converse face to face, both should not speak at once if either is to be clearly understood. But the range of the human voice is so limited that there could be meaningful communications if half the people in the United States were talking and the other half listening. Just as clearly, half the people might publish and the other half read. But the reach of radio signals is Page 395 U. S. 388 incomparably greater than the range of the human voice, and the problem of interference is a massive reality. The lack of know-how and equipment may keep many from the air, but only a tiny fraction of those with resources and intelligence can hope to communicate by radio at the same time if intelligible communication is to be had, even if the entire radio spectrum is utilized in the present state of commercially acceptable technology. It was this fact, and the chaos which ensued from permitting anyone to use any frequency at whatever power level he wished, which made necessary the enactment of the Radio Act of 1927 and the Communications Act of 1934, [ Footnote 16 ] as the Court has noted at length before. National Broadcasting Co. v. United States, 319 U. S. 190 , 319 U. S. 210 -214 (1943). It was this reality which, at the very least, necessitated first the division of the radio spectrum into portions reserved respectively for public broadcasting and for other important radio uses such as amateur operation, aircraft, police, defense, and navigation, and then the subdivision of each portion, and assignment of specific frequencies to individual users or groups of users. Beyond this, however, because the frequencies reserved for public broadcasting were limited in number, it was essential for the Government to tell some applicants that they could not broadcast at all, because there was room for only a few. Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish. If 100 persons want broadcast Page 395 U. S. 389 licenses, but there are only 10 frequencies to allocate, all of them may have the same "right" to a license, but, if there is to be any effective communication by radio, only a few can be licensed, and the rest must be barred from the airwaves. It would be strange if the First Amendment, aimed at protecting and furthering communications, prevented the Government from making radio communication possible by requiring licenses to broadcast and by limiting the number of licenses so as not to overcrowd the spectrum. This has been the consistent view of the Court. Congress unquestionably has the power to grant and deny licenses and to eliminate existing stations. FRC v. Nelson Bros. Bond & Mortgage Co., 289 U. S. 266 (1933). No one has a First Amendment right to a license or to monopolize a radio frequency; to deny a station license because "the public interest" requires it "is not a denial of free speech." National Broadcasting Co. v. United States, 319 U. S. 190 , 319 U. S. 227 (1943). By the same token, as far as the First Amendment is concerned, those who are licensed stand no better than those to whom licenses are refused. A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves. This is not to say that the First Amendment is irrelevant to public broadcasting. On the contrary, it has a major role to play, as the Congress itself recognized in § 326, which forbids FCC interference with "the right Page 395 U. S. 390 of free speech by means of radio communication." Because of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. See FCC v. Sanders Bros. Radio Station, 309 U. S. 470 , 309 U. S. 475 (1940); FCC v. Allentown Broadcasting Corp., 349 U. S. 358 , 349 U. S. 361 -362 (1955); 2 Z. Chafee, Government and Mass Communications 546 (1947). It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee. Associated Press v. United States, 326 U. S. 1 , 326 U. S. 20 (1945); New York Times Co. v. Sullivan, 376 U. S. 254 , 376 U. S. 270 (1964); Abrams v. United States, 250 U. S. 616 , 250 U. S. 630 (1919) (Holmes, J., dissenting). "[S]peech concerning public affairs is more than self-expression; it is the essence of self-government." Garrison v. Louisiana, 379 U. S. 64 , 379 U. S. 74 -75 (1964). See Brennan, The Supreme Court and the Meiklejohn Interpretation of the First Amendment, 79 Harv.L.Rev. 1 (1965). It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC. B Rather than confer frequency monopolies on a relatively small number of licensees, in a Nation of 200,000,000, the Government could surely have decreed that Page 395 U. S. 391 each frequency should be shared among all or some of those who wish to use it, each being assigned a portion of the broadcast day or the broadcast week. The ruling and regulations at issue here do not go quite so far. They assert that, under specified circumstances, a licensee must offer to make available a reasonable amount of broadcast time to those who have a view different from that which has already been expressed on his station. The expression of a political endorsement, or of a personal attack while dealing with a controversial public issue, simply triggers this time-sharing. As we have said, the First Amendment confers no right on licensees to prevent others from broadcasting on "their" frequencies, and no right to an unconditional monopoly of a scarce resource which the Government has denied others the right to use. In terms of constitutional principle, and as enforced sharing of a scarce resource, the personal attack and political editorial rules are indistinguishable from the equal time provision of § 315, a specific enactment of Congress requiring stations to set aside reply time under specified circumstances and to which the fairness doctrine and these constituent regulations are important complements. That provision, which has been part of the law since 1927, Radio Act of 1927, § 18, 44 Stat. 1170, has been held valid by this Court as an obligation of the licensee relieving him of any power in any way to prevent or censor the broadcast, and thus insulating him from liability for defamation. The constitutionality of the statute under the First Amendment was unquestioned. [ Footnote 17 ] Farmers Educ. & Coop. Union v. WDAY, 360 U. S. 525 (1959). Page 395 U. S. 392 Nor can we say that it is inconsistent with the First Amendment goal of producing an informed public capable of conducting its own affairs to require a broadcaster to permit answers to personal attacks occurring in the course of discussing controversial issues, or to require that the political opponents of those endorsed by the station be given a chance to communicate with the public. [ Footnote 18 ] Otherwise, station owners and a few networks would have unfettered power to make time available only to the highest bidders, to communicate only their own views on public issues, people and candidates, and to permit on the air only those with whom they agreed. There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all. "Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests." " Associated Press v. United States, 326 U. S. 1 , 326 U. S. 20 (1945)." C It is strenuously argued, however, that, if political editorials or personal attacks will trigger an obligation in broadcasters to afford the opportunity for expression Page 395 U. S. 393 to speakers who need not pay for time and whose views are unpalatable to the licensees, then broadcasters will be irresistibly forced to self-censorship, and their coverage of controversial public issues will be eliminated, or at least rendered wholly ineffective. Such a result would indeed be a serious matter, for, should licensees actually eliminate their coverage of controversial issues, the purposes of the doctrine would be stifled. At this point, however, as the Federal Communications Commission has indicated, that possibility is, at best, speculative. The communications industry, and, in particular, the networks, have taken pains to present controversial issues in the past, and even now they do not assert that they intend to abandon their efforts in this regard. [ Footnote 19 ] It would be better if the FCC's encouragement were never necessary to induce the broadcasters to meet their responsibility. And if experience with the administration of these doctrines indicates that they have the net effect of reducing, rather than enhancing, the volume and quality of coverage, there will be time enough to reconsider the constitutional implications. The fairness doctrine in the past has had no such overall effect. That this will occur now seems unlikely, however, since, if present licensees should suddenly prove timorous, the Commission is not powerless to insist that they give adequate and fair attention to public issues. Page 395 U. S. 394 It does not violate the First Amendment to treat licensees given the privilege of using scarce radio frequencies as proxies for the entire community, obligated to give suitable time and attention to matters of great public concern. To condition the granting or renewal of licenses on a willingness to present representative community views on controversial issues is consistent with the ends and purposes of those constitutional provisions forbidding the abridgment of freedom of speech and freedom of the press. Congress need not stand idly by and permit those with licenses to ignore the problems which beset the people or to exclude from the airways anything but their own views of fundamental questions. The statute, long administrative practice, and cases are to this effect. Licenses to broadcast do not confer ownership of designated frequencies, but only the temporary privilege of using them. 47 U.S.C. § 301. Unless renewed, they expire within three years. 47 U.S.C. § 307(d). The statute mandates the issuance of licenses if the "public convenience, interest, or necessity will be served thereby." 47 U.S.C. § 307(a). In applying this standard, the Commission for 40 years has been choosing licensees based in part on their program proposals. In FRC v. Nelson Bros. Bond & Mortgage Co., 289 U. S. 266 , 289 U. S. 279 (1933), the Court noted that, in "view of the limited number of available broadcasting frequencies, the Congress has authorized allocation and licenses." In determining how best to allocate frequencies, the Federal Radio Commission considered the needs of competing communities and the programs offered by competing stations to meet those needs; moreover, if needs or programs shifted, the Commission could alter its allocations to reflect those shifts. Id. at 289 U. S. 285 . In the same vein, in FCC v. Pottsville Broadcasting Co., 309 U. S. 134 , 309 U. S. 137 -138 (1940), the Court noted that Page 395 U. S. 395 the statutory standard was a supple instrument to effect congressional desires "to maintain . . . a grip on the dynamic aspects of radio transmission" and allay fears that, "in the absence of governmental control, the public interest might be subordinated to monopolistic domination in the broadcasting field." Three years later, the Court considered the validity of the Commission's chain broadcasting regulations, which, among other things, forbade stations from devoting too much time to network programs in order that there be suitable opportunity for local programs serving local needs. The Court upheld the regulations, unequivocally recognizing that the Commission was more than a traffic policeman concerned with the technical aspects of broadcasting and that it neither exceeded its powers under the statute nor transgressed the First Amendment in interesting itself in general program format and the kinds of programs broadcast by licensees. National Broadcasting Co. v. United States, 319 U. S. 190 (1943). D The litigants embellish their First Amendment arguments with the contention that the regulations are so vague that their duties are impossible to discern. Of this point it is enough to say that, judging the validity of the regulations on their face as they are presented here, we cannot conclude that the FCC has been left a free hand to vindicate its own idiosyncratic conception of the public interest or of the requirements of free speech. Past adjudications by the FCC give added precision to the regulations; there was nothing vague about the FCC's specific ruling in Red Lion that Fred Cook should be provided an opportunity to reply. The regulations at issue in RTNDA could be employed in precisely the same way as the fairness doctrine was in Red Lion. Moreover, the FCC itself has recognized that Page 395 U. S. 396 the applicability of its regulations to situations beyond the scope of past cases may be questionable, 32 Fed.Reg. 10303, 10304 and n. 6, and will not impose sanctions in such cases without warning. We need not approve every aspect of the fairness doctrine to decide these cases, and we will not now pass upon the constitutionality of these regulations by envisioning the most extreme applications conceivable, United States v. Sullivan, 332 U. S. 689 , 332 U. S. 694 (1948), but will deal with those problems if and when they arise. We need not and do not now ratify every past and future decision by the FCC with regard to programming. There is no question here of the Commission's refusal to permit the broadcaster to carry a particular program or to publish his own views; of a discriminatory refusal to require the licensee to broadcast certain views which have been denied access to the airwaves; of government censorship of a particular program contrary to § 326; or of the official government view dominating public broadcasting. Such questions would raise more serious First Amendment issues. But we do hold that the Congress and the Commission do not violate the First Amendment when they require a radio or television station to give reply time to answer personal attacks and political editorials. E It is argued that, even if, at one time, the lack of available frequencies for all who wished to use them justified the Government's choice of those who would best serve the public interest by acting as proxy for those who would present differing views, or by giving the latter access directly to broadcast facilities, this condition no longer prevails, so that continuing control is not justified. To this there are several answers. Scarcity is not entirely a thing of the past. Advances Page 395 U. S. 397 in technology, such as microwave transmission, have led to more efficient utilization of the frequency spectrum, but uses for that spectrum have also gown apace. [ Footnote 20 ] Portions of the spectrum must be reserved for vital uses unconnected with human communication, such as radionavigational aids used by aircraft and vessels. Conflicts have even emerged between such vital functions as defense preparedness and experimentation in methods of averting mid-air collisions through radio warning devices. [ Footnote 21 ] "Land mobile services" such as police, ambulance, fire department, public utility, and other communications systems have been occupying an increasingly crowded portion of the frequency spectrum, [ Footnote 22 ] and there are, apart from licensed amateur radio operators' equipment, 5,000,000 transmitters operated on the "citizens' band," which is also increasingly congested. [ Footnote 23 ] Among the various uses for radio frequency space, including marine, Page 395 U. S. 398 aviation, amateur, military, and common carrier users, there are easily enough claimants to permit use of the whole with an even smaller allocation to broadcast radio and television uses than now exists. Comparative hearings between competing applicants for broadcast spectrum space are by no means a thing of the past. The radio spectrum has become so congested that, at times, it has been necessary to suspend new applications. [ Footnote 24 ] The very high frequency television spectrum is, in the country's major markets, almost entirely occupied, although space reserved for ultra high frequency television transmission, which is a relatively recent development as a commercially viable alternative, has not yet been completely filled. [ Footnote 25 ] Page 395 U. S. 399 The rapidity with which technological advances succeed one another to create more efficient use of spectrum space, on the one hand, and to create new uses for that space by ever-growing numbers of people, on the other, makes it unwise to speculate on the future allocation of that space. It is enough to say that the resource is one of considerable and growing importance whose scarcity impelled its regulation by an agency authorized by Congress. Nothing in this record, or in our own researches, convinces us that the resource is no longer one for which there are more immediate and potential uses than can be accommodated, and for which wise planning is essential. [ Footnote 26 ] This does not mean, of course, that every possible wavelength must be occupied at every hour by some vital use in order to sustain the congressional judgment. The Page 395 U. S. 400 substantial capital investment required for many uses, in addition to the potentiality for confusion and interference inherent in any scheme for continuous kaleidoscopic reallocation of all available space may make this unfeasible. The allocation need not be made at such a breakneck pace that the objectives of the allocation are themselves imperiled. [ Footnote 27 ] Even where there are gaps in spectrum utilization, the fact remains that existing broadcasters have often attained their present position because of their initial government selection in competition with others before new technological advances opened new opportunities for further uses. Long experience in broadcasting, confirmed habits of listeners and viewers, network affiliation, and other advantages in program procurement give existing broadcasters a substantial advantage over new entrants, even where new entry is technologically possible. These advantages are the fruit of a preferred position conferred by the Government. Some present possibility for new entry by competing stations is not enough, in itself, to render unconstitutional the Government's effort to assure that a broadcaster's programming ranges widely enough to serve the public interest. In view of the scarcity of broadcast frequencies, the Government's role in allocating those frequencies, and the legitimate claims of those unable without governmental assistance to gain access to those frequencies for expression of their views, we hold the regulations and Page 395 U. S. 401 ruling at issue here are both authorized by statute and constitutional. [ Footnote 28 ] The judgment of the Court of Appeals in Red Lion is affirmed and that in RTNDA reversed, and the causes remanded for proceedings consistent with this opinion. It is so ordered. Not having heard oral argument in these cases, MR. JUSTICE DOUGLAS took no part in the Court's decision. * Together with No. 717, United States et al. v. Radio Television News Directors Assn. et al., on certiorari to the United States Court of Appeals for the Seventh Circuit, argued April 3, 1969. [ Footnote 1 ] Communications Act of 1934, Tit. III, 48 Stat. 1081, as amended, 47 U.S.C. § 301 et seq. Section 315 now reads: "315. Candidates for public office; facilities; rules." "(a) If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any --" "(1) bona fide newscast," "(2) bona fide news interview," "(3) bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or" "(4) on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto)," "shall not be deemed to be use of a broadcasting station within the meaning of this subsection. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this chapter to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance." "(b) The charges made for the use of any broadcasting station for any of the purposes set forth in this section shall not exceed the charges made for comparable use of such station for other purposes." "(c) The Commission shall prescribe appropriate rules and regulations to carry out the provisions of this section." [ Footnote 2 ] According to the record, Hargis asserted that his broadcast included the following statement: "Now, this paperback book by Fred J. Cook is entitled, 'GOLDWATER -- EXTREMIST ON THE RIGHT.' Who is Cook? Cook was fired from the New York World Telegram after he made a false charge publicly on television against an unnamed official of the New York City government. New York publishers and NEWSWEEK Magazine for December 7, 1959, showed that Fred Cook and his pal, Eugene Gleason, had made up the whole story, and this confession was made to New York District Attorney, Frank Hogan. After losing his job, Cook went to work for the left-wing publication THE NATION, one of the most scurrilous publications of the left which has championed many communist causes over many years. Its editor, Carry McWilliams, has been affiliated with many communist enterprises, scores of which have been cited as subversive by the Attorney General of the U.S. or by other government agencies. . . . Now, among other things Fred Cook wrote for THE NATION was an article absolving Alger Hiss of any wrongdoing . . . ; there was a 208-page attack on the FBI and J. Edgar Hoover; another attack by Mr. Cook was on the Central Intelligence Agency . . . ; now this is the man who wrote the book to smear and destroy Barry Goldwater called 'Barry Goldwater -- Extremist Of The Right.'" [ Footnote 3 ] The Court of Appeals initially dismissed the petition for want of a reviewable order, later reversing itself en banc upon argument by the Government that the FCC rule used here, which permits it to issue "a declaratory ruling terminating a controversy or removing uncertainty," 47 CFR § 312, was, in fact, justified by the Administrative Procedure Act. That Act permits an adjudicating agency, "in its sound discretion, with like effect as in the case of other orders, to issue a declaratory order to terminate a controversy or remove uncertainty." § 5, 60 Stat. 239, 5 U.S.C. § 1004(d). In this case, the FCC could have determined the question of Red Lion's liability to a cease and desist order or license revocation, 47 U.S.C. § 312, for failure to comply with the license's condition that the station be operated "in the public interest," or for failure to obey a requirement of operation in the public interest implicit in the ability of the FCC to revoke licenses for conditions justifying the denial of an initial license, 47 U.S.C. § 312(a)(2), and the statutory requirement that the public interest be served in granting and renewing licenses, 47 U.S.C. §§ 307(a), (d). Since the FCC could have adjudicated these questions it could, under the Administrative Procedure Act, have issued a declaratory order in the course of its adjudication which would have been subject to judicial review. Although the FCC did not comply with all of the formalities for an adjudicative proceeding in this case, the petitioner itself adopted as its own the Government's position that this was a reviewable order, waiving any objection it might have had to the procedure of the adjudication. [ Footnote 4 ] Because of this chaos, a series of National Radio Conferences was held between 1922 and 1925, at which it was resolved that regulation of the radio spectrum by the Federal Government was essential, and that regulatory power should be utilized to ensure that allocation of this limited resource would be made only to those who would serve the public interest. The 1923 Conference expressed the opinion that the Radio Communications Act of 1912, 37 Stat. 302, conferred upon the Secretary of Commerce the power to regulate frequencies and hours of operation, but when Secretary Hoover sought to implement this claimed power by penalizing the Zenith Radio Corporation for operating on an unauthorized frequency, the 1912 Act was held not to permit enforcement. United States v. Zenith Radio Corporation, 12 F.2d 614 (D.C.N.D.Ill.1926). Cf. Hoover v. Intercity Radio Co., 52 App.D.C. 339, 286 F. 1003 (1923) (Secretary had no power to deny licenses, but was empowered to assign frequencies). An opinion issued by the Attorney General at Hoover's request confirmed the impotence of the Secretary under the 1912 Act. 35 Op.Atty.Gen. 126 (1926). Hoover thereafter appealed to the radio industry to regulate itself, but his appeal went largely unheeded. See generally L. Schmeckebier, The Federal Radio Commission 1-14 (1932). [ Footnote 5 ] Congressman White, a sponsor of the bill enacted as the Radio Act of 1927, commented upon the need for new legislation: "We have reached the definite conclusion that the right of all our people to enjoy this means of communication can be preserved only by the repudiation of the idea underlying the 1912 law that anyone who will may transmit and by the assertion in its stead of the doctrine that the right of the public to service is superior to the right of any individual. . . . The recent radio conference met this issue squarely. It recognized that, in the present state of scientific development, there must be a limitation upon the number of broadcasting stations, and it recommended that licenses should be issued only to those stations whose operation would render a benefit to the public, are necessary in the public interest, or would contribute to the development of the art. This principle was approved by every witness before your committee. We have written it into the bill. If enacted into law, the broadcasting privilege will not be a right of selfishness. It will rest upon an assurance of public interest to be served." 67 Cong.Rec. 5479. [ Footnote 6 ] Radio Act of 1927, § 4, 44 Stat. 1163. See generally Davis, The Radio Act of 1927, 13 Va.L.Rev. 611 (1927). [ Footnote 7 ] As early as 1930, Senator Dill expressed the view that the Federal Radio Commission had the power to make regulations requiring a licensee to afford an opportunity for presentation of the other side on "public questions." Hearings before the Senate Committee on Interstate Commerce on S. 6, 71st Cong., 2d Sess., 1616 (1930): "Senator DILL. Then you are suggesting that the provision of the statute that now requires a station to give equal opportunity to candidates for office shall be applied to all public questions?" "Commissioner ROBINSON. Of course, I think, in the legal concept, the law requires it now. I do not see that there is any need to legislate about it. It will evolve one of these days. Somebody will go into court and say, 'I am entitled to this opportunity,' and he will get it." "Senator DILL. Has the Commission considered the question of making regulations requiring the stations to do that?" "Commissioner ROBINSON. Oh, no." "Senator DILL. It would be within the power of the commission, I think, to make regulations on that subject." [ Footnote 8 ] Federal Housing Administration v. Darlington, Inc., 358 U. S. 84 , 358 U. S. 90 (1958); Glidden Co. v. Zdanok, 370 U. S. 530 , 370 U. S. 541 (1962) (opinion of MR. JUSTICE HARLAN, joined by MR. JUSTICE BRENNAN and MR. JUSTICE STEWART). This principle is a venerable one. Alexander v. Alexandria , 5 Cranch 1 (1809); United States v. Freeman , 3 How. 556 (1845); Stockdale v. The Insurance Companies , 20 Wall. 323 (1874). [ Footnote 9 ] Zemel v. Rusk, 381 U. S. 1 , 381 U. S. 11 -12 (1965); Udall v. Tallman, 380 U. S. 1 , 380 U. S. 16 -18 (1965); Commissioner v. Sternberger's Estate, 348 U. S. 187 , 348 U. S. 199 (1955); Hastings & D. R. Co. v. Whitney, 132 U. S. 357 , 132 U. S. 366 (1889); United States v. Burlington & Missouri River R. Co., 98 U. S. 334 , 98 U. S. 341 (1879); United States v. Alexander , 12 Wall. 177, 79 U. S. 179 -181 (1871); Surgett v. Lapice , 8 How. 48, 49 U. S. 68 (1850). [ Footnote 10 ] Zemel v. Rusk, 381 U. S. 1 , 381 U. S. 11 -12 (1965); United States v. Bergh, 352 U. S. 40 , 352 U. S. 46 -47 (1956); Alstate Construction Co. v. Durkin, 345 U. S. 13 , 345 U. S. 16 -17 (1953); Costanzo v. Tillinghast, 287 U. S. 341 , 287 U. S. 345 (1932). [ Footnote 11 ] An attempt to limit sharply the FCC's power to interfere with programming practices failed to emerge from Committee in 1943. S. 814, 78th Cong., 1st Sess. (1943). See Hearings on S. 814 before the Senate Committee on Interstate Commerce, 78th Cong., 1st Sess. (1943). Also, attempts specifically to enact the doctrine failed in the Radio Act of 1927, 67 Cong.Rec. 12505 (1926) (agreeing to amendment proposed by Senator Dill eliminating coverage of "question affecting the public"), and a similar proposal in the Communications Act of 1934 was accepted by the Senate, 78 Cong.Rec. 8854 (1934); see S.Rep. No. 781, 73d Cong., 2d Sess., 8 (1934), but was not included in the bill reported by the House Committee, see H.R.Rep. No. 1850, 73d Cong., 2d Sess. (1934). The attempt which came nearest success was a bill, H.R. 7716, 72d Cong., 1st Sess. (1932), passed by Congress but pocket-vetoed by the President in 1933, which would have extended "equal opportunities" whenever a public question was to be voted on at an election or by a government agency. H.R.Rep. No. 2106, 72d Cong., 2d Sess., 6 (1933). In any event, unsuccessful attempts at legislation are not the best of guides to legislative intent. Fogarty v. United States, 340 U. S. 8 , 340 U. S. 13 -14 (1950); United States v. United Mine Workers, 330 U. S. 258 , 330 U. S. 281 -282 (1947). A review of some of the legislative history over the years, drawing a somewhat different conclusion, is found in Staff Study of the House Committee on Interstate and Foreign Commerce, Legislative History of the Fairness Doctrine, 90th Cong., 2d Sess. (Comm.Print.1968). This inconclusive history was, of course, superseded by the specific statutory language added in 1959. [ Footnote 12 ] "§ 326. Censorship." "Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication." [ Footnote 13 ] John P. Crommelin, 19 P & F Radio Reg. 1392 (1960). [ Footnote 14 ] The Proxmire amendment read: "[B]ut nothing in this sentence shall be construed as changing the basic intent of Congress with respect to the provisions of this act, which recognizes that television and radio frequencies are in the public domain, that the license to operate in such frequencies requires operation in the public interest, and that, in newscasts, news interviews, news documentaries, on-the-spot coverage of news events, and panel discussions, all sides of public controversies shall be given as equal an opportunity to be heard as is practically possible." 105 Cong.Rec. 14457. [ Footnote 15 ] The general problems raised by a technology which supplants atomized, relatively informal communication with mass media as a prime source of national cohesion and news were discussed at considerable length by Zechariah Chafee in Government and Mass Communications (1947). Debate on the particular implications of this view for the broadcasting industry has continued unabated. A compendium of views appears in Freedom and Responsibility in Broadcasting (J. Coons ed.) (1961). See also Kalven, Broadcasting, Public Policy and the First Amendment, 10 J.Law & Econ. 15 (1967); M. Ernst, The First Freedom 125-180 (1946); T. Robinson, Radio Networks and the Federal Government, especially at 75-87 (1943). The considerations which the newest technology brings to bear on the particular problem of this litigation are concisely explored by Louis Jaffe in The Fairness Doctrine, Equal Time, Reply to Personal Attacks, and the Local Service Obligation; Implications of Technological Change, Printed for Special Subcommittee on Investigations of the House Committee on Interstate and Foreign Commerce (1968). [ Footnote 16 ] The range of controls which have in fact, been imposed over the last 40 years, without giving rise to successful constitutional challenge in this Court, is discussed in W. Emery, Broadcasting and Government: Responsibilities and Regulations (1961); Note, Regulation of Program Content by the FCC, 77 Harv.L.Rev. 701 (1964). [ Footnote 17 ] This has not prevented vigorous argument from developing on the constitutionality of the ancillary FCC doctrines. Compare Barrow, The Equal Opportunities and Fairness Doctrines in Broadcasting: Pillars in the Forum of Democracy, 37 U.Cin.L.Rev. 447 (1968), with Rohinson, The FCC and the First Amendment: Observations on 40 Years of Radio and Television Regulation, 52 Minn.L.Rev. 67 (1967), and Sullivan, Editorials and Controversy: The Broadcaster's Dilemma, 32 Geo.Wash.L.Rev. 719 (1964). [ Footnote 18 ] The expression of views opposing those which broadcasters permit to be aired in the first place need not be confined solely to the broadcasters themselves as proxies. "Nor is it enough that he should hear the arguments of adversaries from his own teachers, presented as they state them, and accompanied by what they offer as refutations. That is not the way to do justice to the arguments, or bring them into real contact with his own mind. He must be able to hear them from persons who actually believe them; who defend them in earnest, and do their very utmost for them." J. Mill, On Liberty 32 (R. McCallum ed.1947). [ Footnote 19 ] The President of the Columbia Broadcasting System has recently declared that, despite the Government, "we are determined to continue covering controversial issues as a public service, and exercising our own independent news judgment and enterprise. I, for one, refuse to allow that judgment and enterprise to be affected by official intimidation." F. Stanton, Keynote Address, Sigma Delta Chi National Convention, Atlanta, Georgia, November 21, 1968. Problems of news coverage from the broadcaster's viewpoint are surveyed in W. Wood, Electronic Journalism (1967). [ Footnote 20 ] Current discussions of the frequency allocation problem appear in Telecommunication Science Panel, Commerce Technical Advisory Board, U.S. Dept. of Commerce, Electromagnetic Spectrum Utilization -- The Silent Crisis (1966); Joint Technical Advisory Committee, Institute of Electrical and Electronics Engineers and Electronic Industries Assn., Report on Radio Spectrum Utilization (1964); Note, The Crisis in Electromagnetic Frequency Spectrum Allocation, 53 Iowa L.Rev. 437 (1967). A recently released study is the Final Report of the President's Task Force on Communications Policy (1968). [ Footnote 21 ] Bendix Aviation Corp. v. FCC, 106 U.S.App.D.C. 304, 272 F.2d 533 (1959), cert. denied, 361 U.S. 965 (1960). [ Footnote 22 ] 1968 FCC Annual Report 65-69. [ Footnote 23 ] New limitations on these users, who can also lay claim to First Amendment protection, were sustained against First Amendment attack with the comment, "Here is truly a situation where, if everybody could say anything, many could say nothing." Lafayette Radio Electronics Corp. v. United States, 345 F.2d 278, 281 (1965). Accord, California Citizens Band Assn. v. United States, 375 F.2d 43 (C.A. 9th Cir.), cert. denied, 389 U.S. 844 (1967). [ Footnote 24 ] Kessler v. FCC, 117 U.S. App.D.C. 130, 326 F.2d 673 (1963). [ Footnote 25 ] In a table prepared by the FCC on the basis of statistics current as of August 31, 1968, VHF and UHF channels allocated to and those available in the top 100 market areas for television are set forth: COMMERCIAL Channels On the Air, Channels Authorized, or Available Market Areas Allocated Applied for Channels VHF UHF VHF UHF VHF UHF Top 10. . . . . . 40 45 40 44 0 1 Top 50. . . . . . 157 163 157 136 0 27 Top 100 . . . . . 264 297 264 213 0 84 NONCOMMERCIAL Channels On the Air, Channels Authorized, or Available Market Areas Allocated Applied for Channels VHF UHF VHF UHF VHF UHF Top 10. . . . . . 7 17 7 16 0 1 Top 50. . . . . . 21 79 20 47 1 32 Top 100 . . . . . 35 138 34 69 1 69 1968 FCC Annual Report 132-135. [ Footnote 26 ] RTNDA argues that these regulations should be held invalid for failure of the FCC to make specific findings in the rulemaking proceeding relating to these factual questions. Presumably the fairness doctrine and the personal attack decisions themselves, such as Red Lion, should fall for the same reason. But this argument ignores the fact that these regulations are no more than the detailed specification of certain consequences of longstanding rules, the need for which was recognized by the Congress on the factual predicate of scarcity made plain in 1927, recognized by this Court in the 1943 National Broadcasting Co. case, and reaffirmed by the Congress as recently as 1959. "If the number of radio and television stations were not limited by available frequencies, the committee would have no hesitation in removing completely the present provision regarding equal time and urge the right of each broadcaster to follow his own conscience. . . . However, broadcast frequencies are limited, and, therefore, they have been necessarily considered a public trust." S.Rep. No. 562, 86th Cong., 1st Sess., 8-9 (1959). In light of this history; the opportunity which the broadcasters have had to address the FCC and show that somehow the situation had radically changed, undercutting the validity of the congressional judgment, and their failure to adduce any convincing evidence of that, in the record here, we cannot consider the absence of more detailed findings below to be determinative. [ Footnote 27 ] The "airwaves [need not] be filled at the earliest possible moment in all circumstances without due regard for these important factors." Community Broadcasting Co. v. FCC, 107 U.S.App.D.C. 95, 105, 274 F.2d 753, 763 (1960). Accord, enforcing the fairness doctrine, Office of Communication of the United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 343, 359 F.2d 994, 1009 (1966). [ Footnote 28 ] We need not deal with the argument that, even if there is no longer a technological scarcity of frequencies limiting the number of broadcasters, there nevertheless is an economic scarcity in the sense that the Commission could or does limit entry to the broadcasting market on economic grounds and license no more stations than the market will support. Hence, it is said, the fairness doctrine or its equivalent is essential to satisfy the claims of those excluded and of the public generally. A related argument, which we also put aside, is that, quite apart from scarcity of frequencies, technological or economic, Congress does not abridge freedom of speech or press by legislation directly or indirectly multiplying the voices and views presented to the public through time sharing, fairness doctrines, or other devices which limit or dissipate the power of those who sit astride the channels of communication with the general public. Cf. Citizen Publishing Co. v. United States, 394 U. S. 131 (1969).

In Red Lion Broadcasting Co., Inc. v. FCC, the Supreme Court upheld the Federal Communications Commission's (FCC) "fairness doctrine," which required broadcasters to present public issues fairly and give airtime to opposing views. The case centered around a broadcaster's obligation under the doctrine when they aired a personal attack. The Court ruled that the FCC's actions were within its authority and implemented congressional policy. The Court also rejected First Amendment challenges to the doctrine, prioritizing the public's right to diverse viewpoints over broadcasters' rights. The scarcity of broadcast frequencies was cited as a key factor in the decision.

Free Speech

Cohen v. California

https://supreme.justia.com/cases/federal/us/403/15/

U.S. Supreme Court Cohen v. California, 403 U.S. 15 (1971) Cohen v. California No. 299 Argued February 22, 1971 Decided June 7, 1971 403 U.S. 15 APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT Syllabus Appellant was convicted of violating that part of Cal.Penal Code § 415 which prohibits "maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct," for wearing a jacket bearing the words "Fuck the Draft" in a corridor of the Los Angeles Courthouse. The Court of Appeal held that "offensive conduct" means "behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace," and affirmed the conviction. Held: Absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display of this single four-letter expletive a criminal offense. Pp. 403 U. S. 22 -26. 1 Cal. App. 3d 94 , 81 Cal. Rptr. 503 , reversed. HARLAN, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART, and MARSHALL, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BURGER, C.J., and BLACK, J., joined, and in which WHITE, J., joined in part, post, p. 403 U. S. 27 . MR. JUSTICE HARLAN delivered the opinion of the Court. This case may seem at first blush too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance. Page 403 U. S. 16 Appellant Paul Robert Cohen was convicted in the Los Angeles Municipal Court of violating that part of California Penal Code § 415 which prohibits "maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct. . . ." [ Footnote 1 ] He was given 30 days' imprisonment. The facts upon which his conviction rests are detailed in the opinion of the Court of Appeal of California, Second Appellate District, as follows: "On April 26, 1968, the defendant was observed in the Los Angeles County Courthouse in the corridor outside of division 20 of the municipal court wearing a jacket bearing the words 'Fuck the Draft' which were plainly visible. There were women and children present in the corridor. The defendant was arrested. The defendant testified that he wore the jacket knowing that the words were on the jacket as a means of informing the public of the depth of his feelings against the Vietnam War and the draft." "The defendant did not engage in, nor threaten to engage in, nor did anyone as the result of his conduct Page 403 U. S. 17 in fact commit or threaten to commit any act of violence. The defendant did not make any loud or unusual noise, nor was there any evidence that he uttered any sound prior to his arrest." 1 Cal. App. 3d 94 , 97-98, 81 Cal. Rptr. 503 , 505 (1969). In affirming the conviction, the Court of Appeal held that "offensive conduct" means "behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace," and that the State had proved this element because, on the facts of this case, "[i]t was certainly reasonably foreseeable that such conduct might cause others to rise up to commit a violent act against the person of the defendant or attempt to forcibly remove his jacket." 1 Cal. App. 3d at 99-100, 81 Cal. Rptr. at 506. The California Supreme Court declined review by a divided vote. [ Footnote 2 ] We brought the case here, postponing the consideration of the question of our jurisdiction over this appeal to a hearing of the case on the merits. 399 U.S. 904. We now reverse. The question of our jurisdiction need not detain us long. Throughout the proceedings below, Cohen consistently Page 403 U. S. 18 claimed that, as construed to apply to the facts of this case, the statute infringed his rights to freedom of expression guaranteed by the First and Fourteenth Amendments of the Federal Constitution. That contention has been rejected by the highest California state court in which review could be had. Accordingly, we are fully satisfied that Cohen has properly invoked our jurisdiction by this appeal. 28 U.S.C. § 1257(2); Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282 (1921). I In order to lay hands on the precise issue which this case involves, it is useful first to canvass various matters which this record does not present. The conviction quite clearly rests upon the asserted offensiveness of the words Cohen used to convey his message to the public. The only "conduct" which the State sought to punish is the fact of communication. Thus, we deal here with a conviction resting solely upon "speech," cf. Stromberg v. California, 283 U. S. 359 (1931), not upon any separately identifiable conduct which allegedly was intended by Cohen to be perceived by others as expressive of particular views but which, on its face, does not necessarily convey any message, and hence arguably could be regulated without effectively repressing Cohen's ability to express himself. Cf. United States v. O'Brien, 391 U. S. 367 (1968). Further, the State certainly lacks power to punish Cohen for the underlying content of the message the inscription conveyed. At least so long as there is no showing of an intent to incite disobedience to or disruption of the draft, Cohen could not, consistently with the First and Fourteenth Amendments, be punished for asserting the evident position on the inutility or immorality of the draft his jacket reflected. Yates v. United States, 354 U. S. 298 (1957). Page 403 U. S. 19 Appellant's conviction, then, rests squarely upon his exercise of the "freedom of speech" protected from arbitrary governmental interference by the Constitution, and can be justified, if at all, only as a valid regulation of the manner in which he exercised that freedom, not as a permissible prohibition on the substantive message it conveys. This does not end the inquiry, of course, for the First and Fourteenth Amendments have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases, or to use any form of address in any circumstances that he chooses. In this vein, too, however, we think it important to note that several issues typically associated with such problems are not presented here. In the first place, Cohen was tried under a statute applicable throughout the entire State. Any attempt to support this conviction on the ground that the statute seeks to preserve an appropriately decorous atmosphere in the courthouse where Cohen was arrested must fail in the absence of any language in the statute that would have put appellant on notice that certain kinds of otherwise permissible speech or conduct would nevertheless, under California law, not be tolerated in certain places. See Edwards v. South Carolina, 372 U. S. 229 , 372 U. S. 236 -237, and n. 11 (1963). Cf. Adderley v. Florida, 385 U. S. 39 (1966). No fair reading of the phrase "offensive conduct" can be said sufficiently to inform the ordinary person that distinctions between certain locations are thereby created. [ Footnote 3 ] In the second place, as it comes to us, this case cannot be said to fall within those relatively few categories of Page 403 U. S. 20 instances where prior decisions have established the power of government to deal more comprehensively with certain forms of individual expression simply upon a showing that such a form was employed. This is not, for example, an obscenity case. Whatever else may be necessary to give rise to the States' broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. Roth v. United States, 354 U. S. 476 (1957). It cannot plausibly be maintained that this vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone likely to be confronted with Cohen's crudely defaced jacket. This Court has also held that the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called "fighting words," those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction. Chaplinsky v. New Hampshire, 315 U. S. 568 (1942). While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this instance it was clearly not "directed to the person of the hearer." Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 309 (1940). No individual actually or likely to be present could reasonably have regarded the words on appellant's jacket as a direct personal insult. Nor do we have here an instance of the exercise of the State's police power to prevent a speaker from intentionally provoking a given group to hostile reaction. Cf. Feiner v. New York, 340 U. S. 315 (1951); Termniello v. Chicago, 337 U. S. 1 (1949). There is, as noted above, no showing that anyone who saw Cohen was, in fact, violently aroused, or that appellant intended such a result. Page 403 U. S. 21 Finally, in arguments before this Court, much has been made of the claim that Cohen's distasteful mode of expression was thrust upon unwilling or unsuspecting viewers, and that the State might therefore legitimately act as it did in order to protect the sensitive from otherwise unavoidable exposure to appellant's crude form of protest. Of course, the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense. See, e.g., Organization for a Better Austin v. Keefe, 402 U. S. 415 (1971). While this Court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue, e.g., Rowan v. Post Office Dept., 397 U. S. 728 (1970), we have at the same time consistently stressed that "we are often captives' outside the sanctuary of the home and subject to objectionable speech." Id. at 397 U. S. 738 . The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections. In this regard, persons confronted with Cohen's jacket were in a quite different posture than, say, those subjected to the raucous emissions of sound trucks blaring outside their residences. Those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes. And, while it may be that one has a more substantial claim to a recognizable privacy interest when walking through a courthouse corridor than, for example, strolling through Central Park, surely it is nothing like the interest in Page 403 U. S. 22 being free from unwanted expression in the confines of one's own home. Cf. Keefe, supra. Given the subtlety and complexity of the factors involved, if Cohen's "speech" was otherwise entitled to constitutional protection, we do not think the fact that some unwilling "listeners" in a public building may have been briefly exposed to it can serve to justify this breach of the peace conviction where, as here, there was no evidence that persons powerless to avoid appellant's conduct did in fact, object to it, and where that portion of the statute upon which Cohen's conviction rests evinces no concern, either on its face or as construed by the California courts, with the special plight of the captive auditor, but, instead, indiscriminately sweeps within its prohibitions all "offensive conduct" that disturbs "any neighborhood or person." Cf. Edwards v. South Carolina, supra. [ Footnote 4 ] II Against this background, the issue flushed by this case stands out in bold relief. It is whether California can excise, as "offensive conduct," one particular scurrilous epithet from the public discourse, either upon the theory of the court below that its use is inherently likely to cause violent reaction or upon a more general assertion that the States, acting as guardians of public morality, Page 403 U. S. 23 may properly remove this offensive word from the public vocabulary. The rationale of the California court is plainly untenable. At most, it reflects an "undifferentiated fear or apprehension of disturbance [which] is not enough to overcome the right to freedom of expression." Tinker v. Des Moines Indep. Community School Dist., 393 U. S. 503 , 393 U. S. 508 (1969). We have been shown no evidence that substantial numbers of citizens are standing ready to strike out physically at whoever may assault their sensibilities with execrations like that uttered by Cohen. There may be some persons about with such lawless and violent proclivities, but that is an insufficient base upon which to erect, consistently with constitutional values, a governmental power to force persons who wish to ventilate their dissident views into avoiding particular forms of expression. The argument amounts to little more than the self-defeating proposition that, to avoid physical censorship of one who has not sought to provoke such a response by a hypothetical coterie of the violent and lawless, the States may more appropriately effectuate that censorship themselves. Cf. Ashton v. Kentucky, 384 U. S. 195 , 384 U. S. 200 (1966); Cox v. Louisiana, 379 U. S. 536 , 379 U. S. 550 -551 (1965). Admittedly, it is not so obvious that the First and Fourteenth Amendments must be taken to disable the States from punishing public utterance of this unseemly expletive in order to maintain what they regard as a suitable level of discourse within the body politic. [ Footnote 5 ] We Page 403 U. S. 24 think, however, that examination and reflection will reveal the shortcomings of a contrary viewpoint. At the outset, we cannot overemphasize that, in our judgment, most situations where the State has a justifiable interest in regulating speech will fall within one or more of the various established exceptions, discussed above but not applicable here, to the usual rule that governmental bodies may not prescribe the form or content of individual expression. Equally important to our conclusion is the constitutional backdrop against which our decision must be made. The constitutional right of free expression is powerful medicine in a society as diverse and populous a ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests. See Whitney v. California, 274 U. S. 357 , 274 U. S. 375 -377 (1927) (Brandeis, J., concurring). To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and Page 403 U. S. 25 even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength. We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated. That is why "[w]holly neutral futilities . . . come under the protection of free speech as fully as do Keats' poems or Donne's sermons," Winters v. New York, 333 U. S. 507 , 333 U. S. 528 (1948) (Frankfurter, J., dissenting), and why, "so long as the means are peaceful, the communication need not meet standards of acceptability," Organization for a Better Austin v. Keefe, 402 U. S. 415 , 402 U. S. 419 (1971). Against this perception of the constitutional policies involved, we discern certain more particularized considerations that peculiarly call for reversal of this conviction. First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual. Additionally, we cannot overlook the fact, because it Page 403 U. S. 26 is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated. Indeed, as Mr. Justice Frankfurter has said, "[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures -- and that means not only informed and responsible criticism, but the freedom to speak foolishly and without moderation." Baumgartner v. United States, 322 U. S. 665 , 322 U. S. 673 -674 (1944). Finally, and in the same vein, we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able, as noted above, to discern little social benefit that might result from running the risk of opening the door to such grave results. It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense. Because that is the only arguably sustainable rationale for the conviction here at issue, the judgment below must be Reversed. Page 403 U. S. 27 [ Footnote 1 ] The statute provides in full: "Every person who maliciously and willfully disturbs the peace or quiet of any neighborhood or person, by loud or unusual noise, or by tumultuous or offensive conduct, or threatening, traducing, quarreling, challenging to fight, or fighting, or who, on the public streets of any unincorporated town, or upon the public highways in such unincorporated town, run any horse race, either for a wager or for amusement, or fire any gun or pistol in such unincorporated town, or use any vulgar, profane, or indecent language within the presence or hearing of women or children, in a loud and boisterous manner, is guilty of a misdemeanor, and upon conviction by any Court of competent jurisdiction shall be punished by fine not exceeding two hundred dollars, or by imprisonment in the County Jail for not more than ninety days, or by both fine and imprisonment, or either, at the discretion of the Court." [ Footnote 2 ] The suggestion has been made that, in light of the supervening opinion of the California Supreme Court in In re Bushman, 1 Cal. 3d 767 , 463 P.2d 727 (1970), it is "not at all certain that the California Court of Appeal's construction of § 415 is now the authoritative California construction." Post at 403 U. S. 27 (BLACKMUN, J., dissenting). In the course of the Bushman opinion, Chief Justice Traynor stated: "[One] may . . . be guilty of disturbing the peace through 'offensive' conduct [within the meaning of § 415] if, by his actions, he willfully and maliciously incites others to violence or engages in conduct likely to incite others to violence. ( People v. Cohen (1969) 1 Cal. App. 3d 94 , 101, [ 81 Cal. Rptr. 503 ].)" 1 Cal. 3d at 773, 463 P.2d at 730. We perceive no difference of substance between the Bushman construction and that of the Court of Appeal, particularly in light of the Bushman court's approving citation of Cohen. [ Footnote 3 ] It is illuminating to note what transpired when Cohen entered a courtroom in the building. He removed his jacket and stood with it folded over his arm. Meanwhile, a policeman sent the presiding judge a note suggesting that Cohen be held in contempt of court. The judge declined to do so, and Cohen was arrested by the officer only after he emerged from the courtroom. App. 119. [ Footnote 4 ] In fact, other portions of the same statute do make some such distinctions. For example, the statute also prohibits disturbing "the peace or quiet . . . by loud or unusual noise" and using "vulgar, profane, or indecent language within the presence or hearing of women or children, in a loud and boisterous manner." See n 1, supra. This second-quoted provision in particular serves to put the actor on much fairer notice as to what is prohibited. It also buttresses our view that the "offensive conduct" portion, as construed and applied in this case, cannot legitimately be justified in this Court as designed or intended to make fine distinctions between differently situated recipients. [ Footnote 5 ] The amicus urges, with some force, that this issue is not properly before us, since the statute, as construed, punishes only conduct that might cause others to react violently. However, because the opinion below appears to erect a virtually irrebuttable presumption that use of this word will produce such results, the statute, as thus construed, appears to impose, in effect, a flat ban on the public utterance of this word. With the case in this posture, it does not seem inappropriate to inquire whether any other rationale might properly support this result. While we think it clear, for the reasons expressed above, that no statute which merely proscribes "offensive conduct" and has been construed as broadly as this one was below can subsequently be justified in this Court as discriminating between conduct that occurs in different places or that offends only certain persons, it is not so unreasonable to seek to justify its full broad sweep on an alternate rationale such as this. Because it is not so patently clear that acceptance of the justification presently under consideration would render the statute overbroad or unconstitutionally vague, and be cause the answer to appellee's argument seems quite clear, we do not pass on the contention that this claim is not presented on this record. MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACK join. I dissent, and I do so for two reasons: 1. Cohen's absurd and immature antic, in my view, was mainly conduct, and little speech. See Street v. New York, 394 U. S. 576 (1969); Cox v. Louisiana, 379 U. S. 536 , 379 U. S. 555 (1965); Giboney v. Empire Storage Co., 336 U. S. 490 , 336 U. S. 502 (1949). The California Court of Appeal appears so to have described it, 1 Cal. App. 3d 94 , 100, 81 Cal. Rptr. 503 , 507, and I cannot characterize it otherwise. Further, the case appears to me to be well within the sphere of Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), where Mr. Justice Murphy, a known champion of First Amendment freedoms, wrote for a unanimous bench. As a consequence, this Court's agonizing over First Amendment values seems misplaced and unnecessary. 2. I am not at all certain that the California Court of Appeal's construction of § 415 is now the authoritative California construction. The Court of Appeal filed its opinion on October 22, 1969. The Supreme Court of California declined review by a four-to-three vote on December 17. See 1 Cal. App. 3d at 104. A month later, on January 27, 1970, the State Supreme Court, in another case, construed § 415, evidently for the first time. In re Bushman, 1 Cal. 3d 767 , 463 P.2d 727. Chief Justice Traynor, who was among the dissenters to his court's refusal to take Cohen's case, wrote the majority opinion. He held that § 415 "is not unconstitutionally vague and overbroad," and further said: "[T]hat part of Penal Code section 415 in question here makes punishable only willful and malicious conduct that is violent and endangers public safety and order or that creates a clear and present danger that others will engage in violence of that nature. " Page 403 U. S. 28 ". . . [It] does not make criminal any nonviolent act unless the act incites or threatens to incite others to violence. . . ." 1 Cal. 3d at 773-774, 463 P.2d at 731. Cohen was cited in Bushman, 1 Cal. 3d at 773, 463 P.2d at 730, but I am not convinced that its description there and Cohen itself are completely consistent with the "clear and present danger" standard enunciated in Bushman. Inasmuch as this Court does not dismiss this case, it ought to be remanded to the California Court of Appeal for reconsideration in the light of the subsequently rendered decision by the State's highest tribunal in Bushman. MR. JUSTICE WHITE concurs in Paragraph 2 of MR. JUSTICE BLACKMUN's dissenting opinion.

The Supreme Court ruled in favor of Cohen, arguing that the state could not criminalize the public display of a jacket with the phrase "Fuck the Draft" without violating the First and Fourteenth Amendments. Justice Harlan, delivering the opinion of the Court, acknowledged the case's seemingly trivial nature but emphasized its significant constitutional implications. Cohen's conviction under the California Penal Code for disturbing the peace with offensive conduct was overturned, as his actions did not incite violence or pose a clear and present danger. Justice Blackmun, in dissent, viewed Cohen's actions as primarily conduct rather than speech and believed the case fell within the scope of Chaplinsky v. New Hampshire, upholding similar laws. He also questioned the consistency between the Court of Appeal's interpretation of the law and the subsequent ruling by the California Supreme Court in In re Bushman.

Free Speech

New York v. Ferber

https://supreme.justia.com/cases/federal/us/458/747/

U.S. Supreme Court New York v. Ferber, 458 U.S. 747 (1982) New York v. Ferber No. 81-55 Argued April 27, 1982 Decided July 2, 1982 458 U.S. 747 CERTIORARI TO THE COURT OF APPEALS OF NEW YORK Syllabus A New York statute prohibits persons from knowingly promoting a sexual performance by a child under the age of 16 by distributing material which depicts such a performance. The statute defines "sexual performance" as any performance that includes sexual conduct by such a child, and "sexual conduct" is in turn defined as actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals. Respondent bookstore proprietor was convicted under the statute for selling films depicting young boys masturbating, and the Appellate Division of the New York Supreme Court affirmed. The New York Court of Appeals reversed, holding that the statute violated the First Amendment as being both underinclusive and overbroad. The court reasoned that, in light of the explicit inclusion of an obscenity standard in a companion statute banning the knowing dissemination of similarly defined material, the statute in question could not be construed to include an obscenity standard, and therefore would prohibit the promotion of materials traditionally entitled to protection under the First Amendment. Held: As applied to respondent and others who distribute similar material, the statute in question does not violate the First Amendment as applied to the States through the Fourteenth Amendment. Pp. 458 U. S. 753 -774. (a) The States are entitled to greater leeway in the regulation of pornographic depictions of children for the following reasons: (1) the legislative judgment that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child easily passes muster under the First Amendment; (2) the standard of Miller v. California, 413 U. S. 15 , for determining what is legally obscene is not a satisfactory solution to the child pornography problem; (3) the advertising and selling of child pornography provide an economic motive for, and are thus an integral part of, the production of such materials, an activity illegal throughout the Nation; (4) the value of permitting live performances and photographic reproductions of children engaged in lewd exhibitions is exceedingly modest, if not de minimis; and (5) recognizing and classifying child pornography as a category of material outside the First Amendment's protection is not incompatible with this Court's decisions dealing with what speech is unprotected. When a definable class of material, such as that covered by the New Page 458 U. S. 748 York statute, bears so heavily and pervasively on the welfare of children engaged in its production, the balance of competing interests is clearly struck, and it is permissible to consider these materials as without the First Amendment's protection. Pp. 458 U. S. 756 -764. (b) The New York statute describes a category of material the production and distribution of which is not entitled to First Amendment protection. Accordingly, there is nothing unconstitutionally "underinclusive" about the statute, and the State is not barred by the First Amendment from prohibiting the distribution of such unprotected materials produced outside the State. Pp. 458 U. S. 764 -766. (c) Nor is the New York statute unconstitutionally overbroad as forbidding the distribution of material with serious literary, scientific, or educational value. The substantial overbreadth rule of Broadrick v. Oklahoma, 413 U. S. 601 , applies. This is the paradigmatic case of a state statute whose legitimate reach dwarfs its arguably impermissible applications. "[W]hatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which [the statute's] sanctions, assertedly, may not be applied." Broadrick v. Oklahoma, supra, at 413 U. S. 615 -616. Pp. 458 U. S. 766 -774. 52 N.Y.2d 674, 422 N.E.2d 523, reversed and remanded. WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, and O'CONNOR, JJ., joined. O'CONNOR, J., filed a concurring opinion, post, p. 458 U. S. 774 . BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL, J., joined, post, p. 458 U. S. 775 . BLACKMUN, J., concurred in the result. STEVENS, J., filed an opinion concurring in the judgment, post, p. 458 U. S. 777 . Page 458 U. S. 749 JUSTICE WHITE delivered the opinion of the Court. At issue in this case is the constitutionality of a New York criminal statute which prohibits persons from knowingly promoting sexual performances by children under the age of 16 by distributing material which depicts such performances. I In recent years, the exploitive use of children in the production of pornography has become a serious national problem. [ Footnote 1 ] The Federal Government and 47 States have sought to combat the problem with statutes specifically directed at the production of child pornography. At least half of such statutes do not require that the materials produced be legally obscene. Thirty-five States and the United States Congress have also passed legislation prohibiting the distribution of such materials; 20 States prohibit the distribution of material depicting children engaged in sexual conduct without requiring that the material be legally obscene. [ Footnote 2 ] Page 458 U. S. 750 New York is one of the 20. In 1977, the New York Legislature enacted Article 263 of its Penal Law. N.Y.Penal Law, Art. 263 (McKinney 1980). Section 263.05 criminalizes as a class C felony the use of a child in a sexual performance: "A person is guilty of the use of a child in a sexual performance if knowing the character and content thereof he employs, authorizes or induces a child less than sixteen years of age to engage in a sexual performance or being a parent, legal guardian or custodian of such child, Page 458 U. S. 751 he consents to the participation by such child in a sexual performance." A "[s]exual performance" is defined as "any performance or part thereof which includes sexual conduct by a child less than sixteen years of age." § 263.00(1). "Sexual conduct" is in turn defined in § 263.00(3): "'Sexual conduct' means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals." A performance is defined as "any play, motion picture, photograph or dance" or "any other visual representation exhibited before an audience." § 263.00(4). At issue in this case is § 263.15, defining a class D felony: [ Footnote 3 ] "A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a child less than sixteen years of age." To "promote" is also defined: "'Promote' means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise, or to offer or agree to do the same." § 263.00(5). A companion provision bans only the knowing dissemination of obscene material. § 263.10. This case arose when Paul Ferber, the proprietor of a Manhattan Page 458 U. S. 752 bookstore specializing in sexually oriented products, sold two films to an undercover police officer. The films are devoted almost exclusively to depicting young boys masturbating. Ferber was indicted on two counts of violating § 263.10 and two counts of violating § 263.15, the two New York laws controlling dissemination of child pornography. [ Footnote 4 ] After a jury trial, Ferber was acquitted of the two counts of promoting an obscene sexual performance, but found guilty of the two counts under § 263.15, which did not require proof that the films were obscene. Ferber's convictions were affirmed without opinion by the Appellate Division of the New York State Supreme Court. 74 App.Div.2d 558, 424 N.Y.S.2d 967 (1980). The New York Court of Appeals reversed, holding that § 263.15 violated the First Amendment. 52 N.Y.2d 674, 422 N.E.2d 523 (1981). The court began by noting that, in light of § 263.10's explicit inclusion of an obscenity standard, § 263.15 could not be construed to include such a standard. Therefore, "the statute would . . . prohibit the promotion of materials which are traditionally entitled to constitutional protection from government interference under the First Amendment." 52 N.Y.2d at 678, 422 N.E.2d at 525. Although the court recognized the State's "legitimate interest in protecting the welfare of minors" and noted that this "interest may transcend First Amendment concerns," id. at 679, 422 N.E.2d at 525-526, it nevertheless found two fatal defects in the New York statute. Section 263.15 was underinclusive because it discriminated against visual portrayals of children engaged in sexual activity by not also prohibiting the distribution of films of other dangerous activity. It was also overbroad because it prohibited the distribution of materials produced outside the State, as well as materials, such as medical books and educational sources, which Page 458 U. S. 753 "deal with adolescent sex in a realistic but nonobscene manner." 52 N.Y.2d at 681, 422 N.E.2d at 526. Two judges dissented. We granted the State's petition for certiorari, 454 U.S. 1052 (1981), presenting the single question: "To prevent the abuse of children who are made to engage in sexual conduct for commercial purposes, could the New York State Legislature, consistent with the First Amendment, prohibit the dissemination of material which shows children engaged in sexual conduct, regardless of whether such material is obscene?" II The Court of Appeals proceeded on the assumption that the standard of obscenity incorporated in § 263.10, which follows the guidelines enunciated in Miller v. California, 413 U. S. 15 (1973), [ Footnote 5 ] constitutes the appropriate line dividing protected from unprotected expression by which to measure a regulation directed at child pornography. It was on the premise that "nonobscene adolescent sex" could not be singled out for special treatment that the court found § 263.15 "strikingly underinclusive." Moreover, the assumption that the constitutionally permissible regulation of pornography could not be more extensive with respect to the distribution of material depicting children may also have led the court to conclude that a narrowing construction of § 263.15 was unavailable. The Court of Appeals' assumption was not unreasonable in light of our decisions. This case, however, constitutes our first examination of a statute directed at and limited to depictions of sexual activity involving children. We believe our inquiry should begin with the question of whether a State has somewhat more freedom in proscribing works which portray sexual acts or lewd exhibitions of genitalia by children. Page 458 U. S. 754 A In Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), the Court laid the foundation for the excision of obscenity from the realm of constitutionally protected expression: "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene. . . . It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Id. at 315 U. S. 571 -572 (footnotes omitted). Embracing this judgment, the Court squarely held in Roth v. United States, 354 U. S. 476 (1957), that "obscenity is not within the area of constitutionally protected speech or press." Id. at 354 U. S. 485 . The Court recognized that "rejection of obscenity as utterly without redeeming social importance" was implicit in the history of the First Amendment: the original States provided for the prosecution of libel, blasphemy, and profanity, and the "universal judgment that obscenity should be restrained [is] reflected in the international agreement of over 50 nations, in the obscenity laws of all of the 48 states, and in the 20 obscenity laws enacted by Congress from 1842 to 1956." Id. at 354 U. S. 484 -485 (footnotes omitted). Roth was followed by 15 years during which this Court struggled with "the intractable obscenity problem." Interstate Circuit, Inc. v. Dallas, 390 U. S. 676 , 390 U. S. 704 (1968) (opinion of Harlan, J.). See, e.g., Redrup v. New York, 386 U. S. 767 (1967). Despite considerable vacillation over the proper definition of obscenity, a majority of the Members of the Court remained firm in the position that "the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of Page 458 U. S. 755 unwilling recipients or of exposure to juveniles." Miller v. California, supra, at 413 U. S. 119 (footnote omitted); Stanley v. Georgia, 394 U. S. 557 , 394 U. S. 567 (1969); Ginsberg v. New York, 390 U. S. 629 , 390 U. S. 637 -643 (1968); Interstate Circuit, Inc. v. Dallas, supra, at 390 U. S. 690 ; Redrup v. New York, supra, at 386 U. S. 769 ; Jacobellis v. Ohio, 378 U. S. 184 , 378 U. S. 195 (1964). Throughout this period, we recognized "the inherent dangers of undertaking to regulate any form of expression." Miller v. California, supra, at 413 U. S. 23 . Consequently, our difficulty was not only to assure that statutes designed to regulate obscene materials sufficiently defined what was prohibited, but also to devise substantive limits on what fell within the permissible scope of regulation. In Miller v. California, supra, a majority of the Court agreed that a "state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value." Id. at 413 U. S. 24 . Over the past decade, we have adhered to the guidelines expressed in Miller, [ Footnote 6 ] which subsequently has been followed in the regulatory schemes of most States. [ Footnote 7 ] Page 458 U. S. 756 B The Miller standard, like its predecessors, was an accommodation between the State's interests in protecting the "sensibilities of unwilling recipients" from exposure to pornographic material and the dangers of censorship inherent in unabashedly content-based laws. Like obscenity statutes, laws directed at the dissemination of child pornography run the risk of suppressing protected expression by allowing the hand of the censor to become unduly heavy. For the following reasons, however, we are persuaded that the States are entitled to greater leeway in the regulation of pornographic depictions of children. First. It is evident beyond the need for elaboration that a State's interest in "safeguarding the physical and psychological Page 458 U. S. 757 wellbeing of a minor" is "compelling." Globe Newspaper Co. v. Superior Court, 457 U. S. 596 , 457 U. S. 607 (1982). "A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens." Prince v. Massachusetts, 321 U. S. 158 , 321 U. S. 168 (1944). Accordingly, we have sustained legislation aimed at protecting the physical and emotional wellbeing of youth even when the laws have operated in the sensitive area of constitutionally protected rights. In Prince v. Massachusetts, supra, the Court held that a statute prohibiting use of a child to distribute literature on the street was valid notwithstanding the statute's effect on a First Amendment activity. In Ginsberg v. New York, supra, we sustained a New York law protecting children from exposure to nonobscene literature. Most recently, we held that the Government's interest in the "wellbeing of its youth" justified special treatment of indecent broadcasting received by adults as well as children. FCC v. Pacifica Foundation, 438 U. S. 726 (1978). The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance. The legislative findings accompanying passage of the New York laws reflect this concern: "[T]here has been a proliferation of exploitation of children as subjects in sexual performances. The care of children is a sacred trust and should not be abused by those who seek to profit through a commercial network based upon the exploitation of children. The public policy of the state demands the protection of children from exploitation through sexual performances." 1977 N.Y.Laws, ch. 910, § 1. [ Footnote 8 ] Page 458 U. S. 758 We shall not second-guess this legislative judgment. Respondent has not intimated that we do so. Suffice it to say that virtually all of the States and the United States have passed legislation proscribing the production of or otherwise combating "child pornography." The legislative judgment, as well as the judgment found in the relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child. [ Footnote 9 ] That judgment, we think, easily passes muster under the First Amendment. Page 458 U. S. 759 Second. The distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation. [ Footnote 10 ] Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled. Indeed, there is no serious contention that the legislature was unjustified in believing that it is difficult, if Page 458 U. S. 760 not impossible, to halt the exploitation of children by pursuing only those who produce the photographs and movies. While the production of pornographic materials is a low profile, clandestine industry, the need to market the resulting products requires a visible apparatus of distribution. The most expeditious, if not the only practical, method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product. Thirty-five States and Congress have concluded that restraints on the distribution of pornographic materials are required in order to effectively combat the problem, and there is a body of literature and testimony to support these legislative conclusions. [ Footnote 11 ] Cf. United States v. Darby, 312 U. S. 100 (1941) (upholding federal restrictions on sale of goods manufactured in violation of Fair Labor Standards Act). Respondent does not contend that the State is unjustified in pursuing those who distribute child pornography. Rather, he argues that it is enough for the State to prohibit the distribution of materials that are legally obscene under the Miller test. While some States may find that this approach properly accommodates its interests, it does not follow Page 458 U. S. 761 that the First Amendment prohibits a State from going further. The Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State's particular and more compelling interest in prosecuting those who promote the sexual exploitation of children. Thus, the question under the Miller test of whether a work, taken as a whole, appeals to the prurient interest of the average person bears no connection to the issue of whether a child has been physically or psychologically harmed in the production of the work. Similarly, a sexually explicit depiction need not be "patently offensive" in order to have required the sexual exploitation of a child for its production. In addition, a work which, taken on the whole, contains serious literary, artistic, political, or scientific value may nevertheless embody the hardest core of child pornography. "It is irrelevant to the child [who has been abused] whether or not the material . . . has a literary, artistic, political or social value." Memorandum of Assemblyman Lasher in Support of § 263.15. We therefore cannot conclude that the Miller standard is a satisfactory solution to the child pornography problem. [ Footnote 12 ] Third. The advertising and selling of child pornography provide an economic motive for, and are thus an integral part of, the production of such materials, an activity illegal throughout the Nation. [ Footnote 13 ] "It rarely has been suggested that Page 458 U. S. 762 the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute." Giboney v. Empire Storage & Ice Co., 336 U. S. 490 , 336 U. S. 498 (1949). [ Footnote 14 ] We note that, were the statutes outlawing the employment of children in these films and photographs fully effective, and the constitutionality of these laws has not been questioned, the First Amendment implications would be no greater than that presented by laws against distribution: enforceable production laws would leave no child pornography to be marketed. [ Footnote 15 ] Fourth. The value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis. We consider it unlikely that visual depictions of children performing sexual acts or lewdly exhibiting their genitals would often constitute an important and necessary part of a literary performance Page 458 U. S. 763 or scientific or educational work. As a state judge in this case observed, if it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized. [ Footnote 16 ] Simulation outside of the prohibition of the statute could provide another alternative. Nor is there any question here of censoring a particular literary theme or portrayal of sexual activity. The First Amendment interest is limited to that of rendering the portrayal somewhat more "realistic" by utilizing or photographing children. Fifth. Recognizing and classifying child pornography as a category of material outside the protection of the First Amendment is not incompatible with our earlier decisions. "The question whether speech is, or is not, protected by the First Amendment often depends on the content of the speech." Young v. American Mini Theatres, Inc., 427 U. S. 50 , 427 U. S. 66 (1976) (opinion of STEVENS, J., joined by BURGER, C.J., and WHITE and REHNQUIST JJ.). See also FCC v. Pacifica Foundation, 438 U. S. 726 , 438 U. S. 742 -748 (1978) (opinion of STEVENS, J., joined by BURGER, C.J., and REHNQUIST, J.). "[I]t is the content of [an] utterance that determines whether it is a protected epithet or an unprotected fighting comment.'" Young v. American Mini Theatres, Inc., supra, at 427 U. S. 66 . See Chaplinsky v. New Hampshire, 315 U. S. 568 (1942). Leaving aside the special considerations when public officials are the target, New York Times Co. v. Sullivan, 376 U. S. 254 (1964), a libelous publication is not protected by the Constitution. Beauharnais v. Illinois, 343 U. S. 250 (1952). Thus, it is not rare that a content-based classification of speech has been accepted because it may be appropriately generalized that within the confines of the given classification, the evil to be restricted so overwhelmingly outweighs Page 458 U. S. 764 the expressive interests, if any, at stake, that no process of case-by-case adjudication is required. When a definable class of material, such as that covered by § 263.15, bears so heavily and pervasively on the welfare of children engaged in its production, we think the balance of competing interests is clearly struck, and that it is permissible to consider these materials as without the protection of the First Amendment. C There are, of course, limits on the category of child pornography which, like obscenity, is unprotected by the First Amendment. As with all legislation in this sensitive area, the conduct to be prohibited must be adequately defined by the applicable state law, as written or authoritatively construed. Here the nature of the harm to be combated requires that the state offense be limited to works that visually depict sexual conduct by children below a specified age. [ Footnote 17 ] The category of "sexual conduct" proscribed must also be suitably limited and described. The test for child pornography is separate from the obscenity standard enunciated in Miller, but may be compared to it for the purpose of clarity. The Miller formulation is adjusted in the following respects: a trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole. We note that the distribution Page 458 U. S. 765 of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection. As with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant. Smith v. California, 361 U. S. 147 (1959); Hamling v. United States, 418 U. S. 87 (1974). D Section 263.15's prohibition incorporates a definition of sexual conduct that comports with the above-stated principles. The forbidden acts to be depicted are listed with sufficient precision and represent the kind of conduct that, if it were the theme of a work, could render it legally obscene: "actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals." § 263.00(3). The term "lewd exhibition of the genitals" is not unknown in this area and, indeed, was given in Miller as an example of a permissible regulation. 413 U.S. at 413 U. S. 25 . A performance is defined only to include live or visual depictions: "any play, motion picture, photograph or dance . . . [or] other visual representation exhibited before an audience." § 263.00(4). Section 263.15 expressly includes a scienter requirement. We hold that § 263.15 sufficiently describes a category of material the production and distribution of which is not entitled to First Amendment protection. It is therefore clear that there is nothing unconstitutionally "underinclusive" about a statute that singles out this category of material for proscription. [ Footnote 18 ] It also follows that the State is not barred by Page 458 U. S. 766 the First Amendment from prohibiting the distribution of unprotected materials produced outside the State. [ Footnote 19 ] III It remains to address the claim that the New York statute is unconstitutionally overbroad because it would forbid the distribution of material with serious literary, scientific, or educational value or material which does not threaten the harms sought to be combated by the State. Respondent prevailed on that ground below, and it is to that issue that we now turn. The New York Court of Appeals recognized that overbreadth scrutiny has been limited with respect to conduct-related regulation, Broadrick v. Oklahoma, 413 U. S. 601 (1973), but it did not apply the test enunciated in Broadrick because the challenged statute, in its view, was directed at "pure speech." The court went on to find that § 263.15 was fatally overbroad: "[T]he statute would prohibit the showing of any play or movie in which a child portrays a defined sexual act, real or simulated, in a nonobscene manner. It would also prohibit the sale, showing, or distributing of medical or educational materials containing photographs of such acts. Page 458 U. S. 767 Indeed, by its terms, the statute would prohibit those who oppose such portrayals from providing illustrations of what they oppose." 52 N.Y.2d at 678, 422 N.E.2d at 525. While the construction that a state court gives a state statute is not a matter subject to our review, Wainwright v. Stone, 414 U. S. 21 , 414 U. S. 22 -23 (1973); Gooding v. Wilson, 405 U. S. 518 , 405 U. S. 520 (1972), this Court is the final arbiter of whether the Federal Constitution necessitated the invalidation of a state law. It is only through this process of review that we may correct erroneous applications of the Constitution that err on the side of an overly broad reading of our doctrines and precedents, as well as state court decisions giving the Constitution too little shrift. A state court is not free to avoid a proper facial attack on federal constitutional grounds. Bigelow v. Virginia, 421 U. S. 809 , 421 U. S. 817 (1975). By the same token, it should not be compelled to entertain an overbreadth attack when not required to do so by the Constitution. A The traditional rule is that a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court. Broadrick v. Oklahoma, supra, at 413 U. S. 610 ; United States v. Raines, 362 U. S. 17 , 362 U. S. 21 (1960); Carmichael v. Southern Coal & Coke Co., 301 U. S. 495 , 301 U. S. 513 (1937); Yazoo & M. V. R. Co. v. Jackson Vinegar Co., 226 U. S. 217 , 226 U. S. 219 -220 (1912). In Broadrick, we recognized that this rule reflects two cardinal principles of our constitutional order: the personal nature of constitutional rights, McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 429 (1961), and prudential limitations on constitutional adjudication. [ Footnote 20 ] In United States v. Raines, supra, at 362 U. S. 21 , we Page 458 U. S. 768 noted the "incontrovertible proposition" that it "'would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation,'" (quoting Barrows v. Jackson, 346 U. S. 249 , 346 U. S. 256 (1953)). By focusing on the factual situation before us, and similar cases necessary for development of a constitutional rule, [ Footnote 21 ] we face "flesh-and-blood" [ Footnote 22 ] legal problems with data "relevant and adequate to an informed judgment." [ Footnote 23 ] This practice also fulfills a valuable institutional purpose: it allows state courts the opportunity to construe a law to avoid constitutional infirmities. What has come to be known as the First Amendment overbreadth doctrine is one of the few exceptions to this principle, and must be justified by "weighty countervailing policies." United States v. Raines, supra, at 362 U. S. 223 . The doctrine is predicated on the sensitive nature of protected expression: "persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions by a statute susceptible of application to protected expression." Village of Schaumburg v. Page 458 U. S. 769 Citizens for a Better Environment, 444 U. S. 620 , 444 U. S. 634 (1980); Gooding v. Wilson, supra, at 405 U. S. 521 . It is for this reason that we have allowed persons to attack overly broad statutes even though the conduct of the person making the attack is clearly unprotected, and could be proscribed by a law drawn with the requisite specificity. Dombrowski v. Pfister, 380 U. S. 479 , 380 U. S. 486 (1965); Thornhill v. Alabama, 310 U. S. 88 , 310 U. S. 97 -98 (1940); United States v. Raines, supra, at 362 U. S. 21 -22; Gooding v. Wilson, supra, at 405 U. S. 521 . The scope of the First Amendment overbreadth doctrine, like most exceptions to established principles, must be carefully tied to the circumstances in which facial invalidation of a statute is truly warranted. Because of the wide-reaching effects of striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment, we have recognized that the overbreadth doctrine is "strong medicine," and have employed it with hesitation, and then "only as a last resort." Broadrick, 413 U.S. at 413 U. S. 613 . We have, in consequence, insisted that the overbreadth involved be "substantial" before the statute involved will be invalidated on its face. [ Footnote 24 ] Page 458 U. S. 770 In Broadrick, we explained the basis for this requirement: "[T]he plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice, and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from 'pure speech' toward conduct, and that conduct -- even if expressive -- falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect -- at best a prediction -- cannot, with confidence, justify invalidating a statute on its face, and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. Cf. Aldelman v. United States, 394 U. S. 165 , 394 U. S. 174 -175 (1969)." Id. at 413 U. S. 615 . We accordingly held that, "particularly where conduct, and not merely speech, is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Ibid. [ Footnote 25 ] Page 458 U. S. 771 Broadrick examined a regulation involving restrictions on political campaign activity, an area not considered "pure speech," and thus it was unnecessary to consider the proper overbreadth test when a law arguably reaches traditional forms of expression such as books and films. As we intimated in Broadrick, the requirement of substantial overbreadth extended "at the very least" to cases involving conduct plus speech. This case, which poses the question squarely, convinces us that the rationale of Broadrick is sound, and should be applied in the present context involving the harmful employment of children to make sexually explicit materials for distribution. The premise that a law should not be invalidated for overbreadth unless it reaches a substantial number of impermissible applications is hardly novel. On most occasions involving facial invalidation, the Court has stressed the embracing sweep of the statute over protected expression. [ Footnote 26 ] Page 458 U. S. 772 Indeed, JUSTICE BRENNAN observed in his dissenting opinion in Broadrick: "We have never held that a statute should be held invalid on its face merely because it is possible to conceive of a single impermissible application, and in that sense, a requirement of substantial overbreadth is already implicit in the doctrine." Id. at 413 U. S. 630 . The requirement of substantial overbreadth is directly derived from the purpose and nature of the doctrine. While a sweeping statute, or one incapable of limitation, has the potential to repeatedly chill the exercise of expressive activity by many individuals, the extent of deterrence of protected speech can be expected to decrease with the declining reach of the regulation. [ Footnote 27 ] This observation appears equally applicable to the publication of books and films as it is to activities, such as picketing or participation in election campaigns, which have previously been categorized as involving conduct plus speech. We see no appreciable difference between the position of a publisher or bookseller in doubt as to the reach of New York's child pornography law and the situation faced by the Oklahoma state employees with respect to that State's restriction on partisan political activity. Indeed, it could reasonably be argued that the bookseller, with an economic incentive to sell materials that may fall within the statute's scope, may be less likely to be deterred than the employee who wishes to engage in political campaign activity. Cf. Bates v. State Bar of Arizona, 433 U. S. 350 , 433 U. S. 380 -381 (1977) (overbreadth analysis inapplicable to commercial speech). This requirement of substantial overbreadth may justifiably be applied to statutory challenges which arise in defense Page 458 U. S. 773 of a criminal prosecution as well as civil enforcement or actions seeking a declaratory judgment. Cf. Parker v. Levy, 417 U. S. 733 , 417 U. S. 760 (1974). Indeed, the Court's practice when confronted with ordinary criminal laws that are sought to be applied against protected conduct is not to invalidate the law in toto, but rather to reverse the particular conviction. Cantwell v. Connecticut, 310 U. S. 296 (1940); Edwards v. South Carolina, 372 U. S. 229 (1973). We recognize, however, that the penalty to be imposed is relevant in determining whether demonstrable overbreadth is substantial. We simply hold that the fact that a criminal prohibition is involved does not obviate the need for the inquiry or a priori warrant a finding of substantial overbreadth. Applying these principles, we hold that § 263.15 is not substantially overbroad. We consider this the paradigmatic case of a state statute whose legitimate reach dwarfs its arguably impermissible applications. New York, as we have held, may constitutionally prohibit dissemination of material specified in § 263.15. While the reach of the statute is directed at the hard core of child pornography, the Court of Appeals was understandably concerned that some protected expression, ranging from medical textbooks to pictorials in the National Geographic would fall prey to the statute. How often, if ever, it may be necessary to employ children to engage in conduct clearly within the reach of § 263.15 in order to produce educational, medical, or artistic works cannot be known with certainty. Yet we seriously doubt, and it has not been suggested, that these arguably impermissible applications of the statute amount to more than a tiny fraction of the materials within the statute's reach. Nor will we assume that the New York courts will widen the possibly invalid reach of the statute by giving an expansive construction to the proscription on "lewd exhibition[s] of the genitals." Under these circumstances, § 263.15 is "not substantially overbroad, and . . . whatever overbreadth may exist Page 458 U. S. 774 should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied." Broadrick v. Oklahoma, 413 U.S. at 413 U. S. 615 -616. IV Because § 263.15 is not substantially overbroad, it is unnecessary to consider its application to material that does not depict sexual conduct of a type that New York may restrict consistent with the First Amendment. As applied to Paul Ferber and to others who distribute similar material, the statute does not violate the First Amendment as applied to the States through the Fourteenth. [ Footnote 28 ] The judgment of the New York Court of Appeals is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. So ordered. JUSTICE BLACKMUN concurs in the result. [ Footnote 1 ] "[C]hild pornography and child prostitution have become highly organized, multimillion dollar industries that operate on a nationwide scale." S.Rep. No. 95-438, p. 5 (1977). One researcher has documented the existence of over 260 different magazines which depict children engaging in sexually explicit conduct. Ibid. "Such magazines depict children, some as young as three to five years of age. . . . The activities featured range from lewd poses to intercourse, fellatio, cunnilingus, masturbation, rape, incest and sado-masochism." Id. at 6. In Los Angeles alone, police reported that 30,000 children have been sexually exploited. Sexual Exploitation of Children, Hearings before the Subcommittee on Select Education of the House Committee on Education and Labor, 95th Cong., 1st Sess., 41-42 (1977). [ Footnote 2 ] In addition to New York, 19 States have prohibited the dissemination of material depicting children engaged in sexual conduct regardless of whether the material is obscene. Ariz.Rev.Stat.Ann. § 13-3553 (Supp.1981-1982); Colo.Rev.Stat. § 18403 (Supp.1981); Del. Code Ann., Tit. 11, §§ 1108, 1109 (1979); Fla.Stat. § 847.014 (1981); Haw. Rev.Stat. § 707-751 (Supp.1981); Ky.Rev.Stat. §§ 531.320, 531.340-531.360 (Supp.1980); La.Rev.Stat.Ann. § 14:81.1(A)(3) (West Supp.1982); Mass.Gen.Laws Ann., ch. 272, § 29A (West Supp.1982-1983); Mich.Comp.Laws Ann. § 750.145c(3) (1982-1983); Miss.Code Ann. § 97-5-33(4) (Supp.1981); Mont.Code Ann. § 45625 (1981); N.J.Stat.Ann. § 2C:24-4(b)(5) (West 1981); Okla.Stat., Tit. 21, § 1021.2 (1981); Pa.Stat.Ann., Tit. 18, § 6312(c) (Purdon 1982-1983); R.I.Gen.Laws § 11-9-1.1 (1981); Tex.Penal Code Ann. § 43.25 (1982); Utah Code Ann. § 76-10-1206.5(3) (Supp.1981); W.Va.Code § 61-8C3 (Supp.1981); Wis.Stat. § 940.203(4) (1979-1980). Fifteen States prohibit the dissemination of such material only if it is obscene. Ala.Code §§ 13-7-231, 13-7-232 (Supp.1981); Ark.Stat.Ann. § 41-4204 (Supp.1981); Cal.Penal Code Ann. § 311.2(b) (West Supp.1982) (general obscenity statute); Ill.Rev.Stat., ch. 38, � 11-20a(b)(1) (1979); Ind.Code § 35-30-10.1-2 (1979); Me.Rev.Stat.Ann., Tit. 17, § 2923(1) (Supp.1981-1982); Minn.Stat. §§ 617.246(3) and (4) (1980); Neb.Rev.Stat. § 28-1463(2) (1979); N.H.Rev.Stat.Ann. § 650:2(II) (Supp.1981); N.D.Cent.Code § 12.1-27.1-01 (1976) (general obscenity statute); Ohio Rev.Code Ann. § 2907.321(A) (1982); Ore.Rev.Stat. § 163.485 (1981); S.D.Codified Laws §§ 22-22-24, 22-22-25 (1979); Tenn.Code Ann. § 39-1020 (Supp.1981); Wash.Rev.Code § 9.68 A. 030 (1981). The federal statute also prohibits dissemination only if the material is obscene. 18 U.S.C. § 2252(a) (1976 ed., Supp. IV). Two States prohibit dissemination only if the material is obscene as to minors. Conn.Gen.Stat. § 53a-196b (1981); Va.Code § 18.2-374.1 (1982). Twelve States prohibit only the use of minors in the production of the material. Alaska Stat.Ann. § 11.41.455 (1978); Ga.Code § 26-9943a(b) (1978); Idaho Code § 44-1306 (1977); Iowa Code § 728.12 (1981); Kan.Stat.Ann. § 21516 (1981); Md.Ann.Code, Art. 27, § 419A (Supp.1981); Mo.Rev.Stat. § 568.060(1)(b) (1978); Nev.Rev.Stat. § 200.509 (1981); N.M.Stat.Ann. § 301 (Supp.1982); N.C.Gen.Stat. § 14-190.6 (1981); S.C.Code § 115-380 (Supp.1981); Wyo.Stat. § 14102(a)(v)(E) (1978). [ Footnote 3 ] Class D felonies carry a maximum punishment of imprisonment for up to seven years as to individuals, and as to corporations a fine of up to $10,000. N.Y. Penal Law §§ 70.00, 80.10 (McKinney 1975). Respondent Ferber was sentenced to 45 days in prison. [ Footnote 4 ] A state judge rejected Ferber's First Amendment attack on the two sections in denying a motion to dismiss the indictment. 96 Misc.2d 669, 409 N.Y.S.2d 632 (1978). [ Footnote 5 ] N.Y. Penal Law § 235.00(1) (McKinney 1980); People v. Illardo, 48 N.Y.2d 408, 415, and n. 3, 399 N.E.2d 59, 62-63, and n. 3 (1979). [ Footnote 6 ] Hamling v. United States, 418 U. S. 87 (1974); Jenkins v. Georgia, 418 U. S. 153 (1974); Ward v. Illinois, 431 U. S. 767 (1977); Marks v. United States, 430 U. S. 188 (1977); Pinkus v. United States, 436 U. S. 293 (1978). [ Footnote 7 ] Thirty-seven States and the District of Columbia have either legislatively adopted or judicially incorporated the Miller test for obscenity. Ala.Code § 13A-12-150 (Supp.1981); Ariz.Rev.Stat.Ann. § 13-3501(2) (1978); Ark.Stat.Ann. § 41-3502(6) (Supp.1981); Colo.Rev.Stat. § 18-7-101(2) (Supp.1981); Del. Code Ann., Tit. 11, § 1364 (1979); Larkin v. United States, 363 A.2d 990 (D.C.1976); Ga.Code § 26-2101(b) (1978); Haw. Rev.Stat. § 712-1210(6) (Supp.1981); Idaho Code § 184101(A) (1979); Iowa Code § 728.4 (1981) (only child pornography covered); Ind.Code § 35-30-10.1-1(c) (1979); Kan.Stat.Ann. § 21-4301 (2)(a) (1981); Ky.Rev.Stat. § 531.010(3) (1975); La.Rev.Stat.Ann. §§ 14:106(A)(2) and (A)(3) (West Supp.1982); Ebert v. Maryland State Bd. of Censors, 19 Md.App. 300, 313 A.2d 536 (1973); Mass.Gen.Laws Ann., ch. 272, § 31 (West Supp.1982-1983); People v. Neumayer, 405 Mich. 341, 275 N.W.2d 230 (1979), State v. Welke, 298 Minn. 402, 216 N.W.2d 641 (1974); Mo.Rev.Stat. § 573.010(1) (1978); Neb.Rev.Stat. § 28-807(9) (1979); Nev.Rev.Stat. § 201.235 (1981); N.H.Rev.Stat.Ann. § 650:1(IV) (Supp.1981); N.J.Stat.Ann. § 2C:32 (West 1981); N.Y. Penal Law § 235.00(1) (McKinney 1980); N.C.Gen.Stat. § 14-190.1(b) (1981); N.D.Cent.Code § 12.1-27.1-01(4) (1976); State v. Burgun, 56 Ohio St.2d 354, 384 N.E.2d 255 (1978); McCrary v. State, 533 P.2d 629 (Okla.Crim.App.1974); Ore.Rev.Stat. § 167.087(2) (1981); Pa.Stat.Ann., Tit. 18, § 5903(b) (Purdon Supp.1982-1983); R.I.Gen.Laws § 11-31-1198(1); S.C.Code § 16-15-260(a) (Supp.1981); S.D.Codified Laws § 22-24-27(10) (1979); Tenn.Code Ann. § 39-3001(1) (Supp.1981); Tex.Penal Code Ann. § 43.21(a) (1982); Utah Code Ann. § 76-10-1203(1) (1978); Va.Code § 18.2-372 (1982); 1982 Wash.Laws., ch. 184, § 1(2). Four States continue to follow the test approved in Memoirs v. Massachusetts, 383 U. S. 413 (1966). Cal.Penal Code Ann. § 311(a) (West Supp.1982); Conn.Gen.Stat. § 53a-193 (1981); Fla.Stat. § 847.07 (1981); Ill.Rev.Stat., ch. 38, � 11-20(b) (1979). Five States regulate only the distribution of pornographic material to minors. Me.Rev.Stat.Ann., Tit. 17, § 2911 (Supp.1981-1982); Mont.Code Ann. § 45201 (1981); N.M.Stat.Ann. § 30-37-2 (Supp.1982); Vt.Stat.Ann., Tit. 13, § 2802 (1974); W.Va.Code § 61-8A-2 (1977). Three state obscenity laws do not fall into any of the above categories. Miss.Code Ann. § 97-29-33 (1973), declared invalid in ABC Interstate Theatres, Inc. v. State, 325 So. 2d 123 (Miss.1976); Wis.Stat. § 944.21(1)(a) (1979-1980), declared invalid in State v. Princess Cinema of Milwaukee, Inc., 96 Wis.2d 646, 292 N.W.2d 807 (1980); Wyo.Stat. § 6-5-303 (1977). Alaska has no current state obscenity law. A number of States employ a different obscenity standard with respect to material distributed to children. See, e.g., Fla.Stat. § 847.0125 (1981). [ Footnote 8 ] In addition, the legislature found "the sale of these movies, magazines and photographs depicting the sexual conduct of children to be so abhorrent to the fabric of our society that it urge[d] law enforcement officers to aggressively seek out and prosecute . . . the peddlers . . . of this filth by vigorously applying the sanctions contained in this act." 1977 N.Y. Laws, ch. 910, § 1. [ Footnote 9 ] "[T]he use of children as . . . subjects of pornographic materials is very harmful to both the children and the society as a whole." S.Rep. No. 95-438, p. 5 (1977). It has been found that sexually exploited children are unable to develop healthy affectionate relationships in later life, have sexual dysfunctions, and have a tendency to become sexual abusers as adults. Schoettle, Child Exploitation: A Study of Child Pornography, 19 J.Am.Acad.Child Psychiatry 289, 296 (1980) (hereafter cited as Child Exploitation); Schoettle, Treatment of the Child Pornography Patient, 137 Am.J.Psychiatry 1109, 1110 (1980); Densen-Gerner, Child Prostitution and Child Pornography: Medical, Legal, and Societal Aspects of the Commercial Exploitation of Children, reprinted in U.S. Dept. of Health and Human Services, Sexual Abuse of Children: Selected Readings 77, 80 (1980) (hereafter cited as Commercial Exploitation) (sexually exploited children predisposed to self-destructive behavior such as drug and alcohol abuse or prostitution). See generally Burgess & Holmstrom, Accessory-to-Sex: Pressure, Sex, and Secrecy, in A. Burgess, A. Groth, L. Holmstrom, & S. Sgroi, Sexual Assault of Children and Adolescents 85, 94 (1978); V. De Francis, Protecting the Child Victim of Sex Crimes Committed by Adults 169 (1969); Ellerstein & Canavan, Sexual Abuse of Boys, 134 Am. J. Diseases of Children 255, 256-257 (1980); Finch, Adult Seduction of the Child: Effects on the Child, Medical Aspects of Human Sexuality 170, 185 (Mar.1973); Groth, Sexual Trauma in the Life Histories of Rapists and Child Molesters, 4 Victimology 10 (1979). Sexual molestation by adults is often involved in the production of child sexual performances. Sexual Exploitation of Children, A Report to the Illinois General Assembly by the Illinois Legislative Investigating Commission 30-31 (1980). When such performances are recorded and distributed, the child's privacy interests are also invaded. See n 10, infra. [ Footnote 10 ] As one authority has explained: "[P]ornography poses an even greater threat to the child victim than does sexual abuse or prostitution. Because the child's actions are reduced to a recording, the pornography may haunt him in future years, long after the original misdeed took place. A child who has posed for a camera must go through life knowing that the recording is circulating within the mass distribution system for child pornography." Shouvlin, Preventing the Sexual Exploitation of Children: A Model Act, 17 Wake Forest L.Rev. 535, 545 (1981). See also Child Exploitation 292 ("[I]t is the fear of exposure and the tension of keeping the act secret that seem to have the most profound emotional repercussions"); Note, Protection of Children from Use in Pornography: Toward Constitutional and Enforceable Legislation, 12 U. Mich.J.Law Reform 295, 301 (1979) (hereafter cited as Use in Pornography) (interview with child psychiatrist) ("The victim's knowledge of publication of the visual material increases the emotional and psychic harm suffered by the child"). Thus, distribution of the material violates "the individual interest in avoiding disclosure of personal matters." Whalen v. Roe, 429 U. S. 589 , 429 U. S. 599 (1977). Respondent cannot undermine the force of the privacy interests involved here by looking to Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975), and Smith v. Daily Mail Publishing Co., 443 U. S. 97 (1979), cases protecting the right of newspapers to publish, respectively, the identity of a rape victim and a youth charged as a juvenile offender. Those cases only stand for the proposition that, "if a newspaper lawfully obtains truthful information about a matter of public significance, then state officials may not constitutionally punish publication of the information, absent a need . . . of the highest order." Id. at 443 U. S. 103 . [ Footnote 11 ] See Sexual Exploitation of Children, Hearings before the Subcommittee on Crime of the House Judiciary Committee, 95th Cong., 1st Sess., 34 (1977) (statement of Charles Rembar) ("It is an impossible prosecutorial job to try to get at the acts themselves"); id. at 11 (statement of Frank Osanka, Professor of Social Justice and Sociology) ("[W]e have to be very careful . . . that we don't take comfort in the existence of statutes that are on the books in the connection with the use of children in pornography. . . . There are usually no witnesses to these acts of producing pornography"); id. at 69 (statement of Investigator Lloyd Martin, Los Angeles Police Department) (producers of child pornography use false names making difficult the tracing of material back from distributor). See also L. Tribe, American Constitutional Law 666, n. 62 (1978); Note, Child Pornography: A New Role for the Obscenity Doctrine, 1978 U.Ill.Law Forum 711, 716, n. 29; Use in Pornography 315 ("passage of criminal laws aimed at producers without similar regulation of distributors will arguably shift the production process further underground"). [ Footnote 12 ] In addition, legal obscenity under Miller is a function of "contemporary community standards." 413 U.S. at 413 U. S. 24 . "It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City." Id. at 413 U. S. 32 . It would be equally unrealistic to equate a community's toleration for sexually oriented material with the permissible scope of legislation aimed at protecting children from sexual exploitation. Furthermore, a number of States rely on stricter obscenity tests, see n 7, supra, under which successful prosecution for child pornography may be even more difficult. [ Footnote 13 ] One state committee studying the problem declared: "The act of selling these materials is guaranteeing that there will be additional abuse of children." Texas House Select Committee on Child Pornography: Its Related Causes and Control 132 (1978). See also Commercial Exploitation 80 ("Printed materials cannot be isolated or removed from the process involved in developing them"). [ Footnote 14 ] In Giboney, a unanimous Court held that labor unions could be restrained from picketing a firm in support of a secondary boycott which a State had validly outlawed. In Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U. S. 376 (1973), the Court allowed an injunction against a newspaper's furtherance of illegal sex discrimination by placing of job advertisements in gender-designated columns. The Court stated: "Any First Amendment interest which might be served by advertising an ordinary commercial proposal and which might arguably outweigh the governmental interest supporting the regulation is altogether absent when the commercial activity itself is illegal and the restriction on advertising is incidental to a valid limitation on economic activity." Id. at 389. [ Footnote 15 ] In this connection, we note that 18 U.S.C. § 2251 (1976 ed., Supp. IV), making it a federal offense for anyone to use children under the age of 16 in the production of pornographic materials, embraces all "sexually explicit conduct" without imposing an obscenity test. In addition, half of the state laws imposing criminal liability on the producer do not require the visual material to be legally obscene. Use in Pornography 307-308. [ Footnote 16 ] 96 Misc.2d at 676, 409 N.Y.S.2d at 637. This is not merely a hypothetical possibility. See Brief for Petitioner 25 and examples cited therein. [ Footnote 17 ] Sixteen States define a child as a person under age 18. Four States define a child as under 17 years old. The federal law and 16 States, including New York, define a child as under 16. Illinois and Nebraska define a child as a person under age 16 or who appears as a prepubescent. Ill.Rev.Stat., ch. 38, � 11-20a(a)(1)(A) (1979); Neb.Rev.Stat. § 28-1463 (1979). Indiana defines a child as one who is or appears to be under 16. Ind.Code. §§ 35-30-10.1-2, 35-30-10.1-3 (1979). Kentucky provides for two age classifications (16 and 18) and varies punishment according to the victim's age. Ky.Rev.Stat. §§ 531.300-531.370 (Supp.1980). See Use in Pornography 307, n. 71 (collecting statutes). [ Footnote 18 ] Erznoznik v. City of Jacksonville, 422 U. S. 205 (1975), relied upon by the Court of Appeals, struck down a law against drive-in theaters showing nude scenes if movies could be seen from a public place. Since nudity, without more is protected expression, id. at 422 U. S. 213 , we proceeded to consider the underinclusiveness of the ordinance. The Jacksonville ordinance impermissibly singled out movies with nudity for special treatment while failing to regulate other protected speech which created the same alleged risk to traffic. Today, we hold that child pornography as defined in § 263.15 is unprotected speech subject to content-based regulation. Hence, it cannot be underinclusive or unconstitutional for a State to do precisely that. [ Footnote 19 ] It is often impossible to determine where such material is produced. The Senate Report accompanying federal child pornography legislation stressed that "it is quite common for photographs or films made in the United States to be sent to foreign countries to be reproduced and then returned to this country in order to give the impression of foreign origin." S.Rep. No. 95-438, p. 6 (1977). In addition, States have not limited their distribution laws to material produced within their own borders because the maintenance of the market itself "leaves open the financial conduit by which the production of such material is funded and materially increases the risk that [local] children will be injured." 52 N.Y.2d 674, 688, 422 N.E.2d 523, 531 (1981) (Jasen, J., dissenting). [ Footnote 20 ] In addition to prudential restraints, the traditional rule is grounded in Art. III limits on the jurisdiction of federal courts to actual cases and controversies. "This Court, as is the case with all federal courts, 'has no jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other, never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.' Liverpool, New York & Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U. S. 33 , 113 U. S. 39 ." United States v. Raines, 362 U. S. 17 , 362 U. S. 21 (1960). [ Footnote 21 ] Overbreadth challenges are only one type of facial attack. A person whose activity may be constitutionally regulated nevertheless may argue that the statute under which he is convicted or regulated is invalid on its face. See, e.g., Terminiello v. City of Chicago, 337 U. S. 1 , 337 U. S. 5 (1949). See generally Monaghan, Overbreadth, 1981 S.Ct.Rev. 1, 10-14. [ Footnote 22 ] A. Bickel, The Least Dangerous Branch 115-116 (1962). [ Footnote 23 ] Frankfurter & Hart, The Business of the Supreme Court at October Term, 1934, 49 Harv.L.Rev. 68, 95-96 (1935). [ Footnote 24 ] When a federal court is dealing with a federal statute challenged as overbroad, it should, of course, construe the statute to avoid constitutional problems, if the statute is subject to such a limiting construction. Crowell v. Benson, 285 U. S. 22 , 285 U. S. 62 (1932). Accord, e.g., Haynes v. United States, 390 U. S. 85 , 390 U. S. 92 (1968) (dictum); Schneider v. Smith, 390 U. S. 17 , 390 U. S. 27 (1968); United States v. Rumely, 345 U. S. 41 , 345 U. S. 45 (1953); Ashwander v. TVA, 297 U. S. 288 , 297 U. S. 348 (1936) (Brandeis, J., concurring). Furthermore, if the federal statute is not subject to a narrowing construction and is impermissibly overbroad, it nevertheless should not be stricken down on its face; if it is severable, only the unconstitutional portion is to be invalidated. United States v. Thirty-seven Photographs, 402 U. S. 363 (1971). A state court is also free to deal with a state statute in the same way. If the invalid reach of the law is cured, there is no longer reason for proscribing the statute's application to unprotected conduct. Here, of course, we are dealing with a state statute on direct review of a state court decision that has construed the statute. Such a construction is binding on us. [ Footnote 25 ] Parker v. Levy, 417 U. S. 733 , 417 U. S. 760 (1974) ("This Court has . . . repeatedly expressed its reluctance to strike down a statute on its face where there were a substantial number of situations to which it might be validly applied. Thus, even if there are marginal applications in which a statute would infringe on First Amendment values, facial invalidation is inappropriate if the remainder of the statute . . . covers a whole range of easily identifiable and constitutionally proscribable . . . conduct. . . .' CSC v. Letter Carriers, 413 U. S. 548 , 413 U. S. 580 -581 (1973)"). See Bogen, First Amendment Ancillary Doctrines, 37 Md.L.Rev. 679, 712-714 (1978); Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 860-861 (1970). [ Footnote 26 ] In Gooding v. Wilson, 405 U. S. 518 , 405 U. S. 519 , 405 U. S. 527 (1972), the Court's invalidation of a Georgia statute making it a misdemeanor to use " opprobrious words or abusive language, tending to cause a breach of the peace'" followed from state judicial decisions indicating that "merely to speak words offensive to some who hear them" could constitute a "breach of the peace." Cases invalidating laws requiring members of a "subversive organization" to take a loyalty oath, Baggett v. Bullitt, 377 U. S. 360 (1964), or register with the government, Domorowski v. Pfister, 380 U. S. 479 (1965), can be explained on the basis that the laws involved, unlike § 263.15, defined no central core of constitutionally regulable conduct; the entire scope of the laws was subject to the uncertainties and vagaries of prosecutorial discretion. See also Bigelow v. Virginia, 421 U. S. 809 , 421 U. S. 817 (1975) ("the facts of this case well illustrate `the statute's potential for sweeping and improper applications'") (citation omitted); NAACP v. Button, 371 U. S. 415 , 371 U. S. 433 (1963) ("We read the decree of the Virginia Supreme Court of Appeals . . . as proscribing any arrangement by which prospective litigants are advised to seek the assistance of particular attorneys"); Thornhill v. Alabama, 310 U. S. 88 , 310 U. S. 97 (1940) (the statute "does not aim specifically at evils within the allowable area of state control but, on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press"). [ Footnote 27 ] "A substantial overbreadth rule is implicit in the chilling effect rationale. . . . [T]he presumption must be that only substantially overbroad laws set up the kind and degree of chill that is judicially cognizable." Moreover, "[w]ithout a substantial overbreadth limitation, review for overbreadth would be draconian indeed. It is difficult to think of a law that is utterly devoid of potential for unconstitutionality in some conceivable application." Note, 83 Harv.L.Rev. supra, n 25, at 859, and n. 61. [ Footnote 28 ] There is no argument that the films sold by respondent do not fall squarely within the category of activity we have defined as unprotected. Therefore, no independent examination of the material is necessary to assure ourselves that the judgment here "does not constitute a forbidden intrusion on the field of free expression." New York Times Co. v. Sullivan, 376 U. S. 254 , 376 U. S. 285 (1964). JUSTICE O'CONNOR, concurring. Although I join the Court's opinion, I write separately to stress that the Court does not hold that New York must except "material with serious literary, scientific, or educational value," ante at 458 U. S. 766 , from its statute. The Court merely holds that, even if the First Amendment shelters such material, New York's current statute is not sufficiently overbroad to support respondent's facial attack. The compelling interests identified in today's opinion, see ante at 458 U. S. 756 -764, suggest that the Constitution might, in fact, permit New York to ban knowing distribution of works depicting minors engaged in explicit sexual conduct, regardless of the social value of the depictions. For example, a 12-year-old child photographed while Page 458 U. S. 775 masturbating surely suffers the same psychological harm whether the community labels the photograph "edifying" or "tasteless." The audience's appreciation of the depiction is simply irrelevant to New York's asserted interest in protecting children from psychological, emotional, and mental harm. An exception for depictions of serious social value, moreover, would actually increase opportunities for the content-based censorship disfavored by the First Amendment. As drafted, New York's statute does not attempt to suppress the communication of particular ideas. The statute permits discussion of child sexuality, forbidding only attempts to render the "portrayal[s] somewhat more realistic' by utilizing or photographing children." Ante at 458 U. S. 763 . Thus, the statute attempts to protect minors from abuse without attempting to restrict the expression of ideas by those who might use children as live models. On the other hand, it is quite possible that New York's statute is overbroad because it bans depictions that do not actually threaten the harms identified by the Court. For example, clinical pictures of adolescent sexuality, such as those that might appear in medical textbooks, might not involve the type of sexual exploitation and abuse targeted by New York's statute. Nor might such depictions feed the poisonous "kiddie porn" market that New York and other States have attempted to regulate. Similarly, pictures of children engaged in rites widely approved by their cultures, such as those that might appear in issues of the National Geographic, might not trigger the compelling interests identified by the Court. It is not necessary to address these possibilities further today, however, because this potential overbreadth is not sufficiently substantial to warrant facial invalidation of New York's statute. JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in the judgment. I agree with much of what is said in the Court's opinion. As I made clear in the opinion I delivered for the Court in Page 458 U. S. 776 Ginsburg v. New York, 390 U. S. 629 (1968), the State has a special interest in protecting the wellbeing of its youth. Id. at 390 U. S. 638 -641. See also Globe Newspaper Co. v. Superior Court, 457 U. S. 596 , 457 U. S. 607 (1982). This special and compelling interest, and the particular vulnerability of children, afford the State the leeway to regulate pornographic material, the promotion of which is harmful to children, even though the State does not have such leeway when it seeks only to protect consenting adults from exposure to such material. Ginsburg v. New York, supra, at 390 U. S. 637 , 390 U. S. 638 , n. 6, 390 U. S. 642 -643, n. 10. See also Jacobellis v. Ohio, 378 U. S. 184 , 378 U. S. 195 (1964) (opinion of BRENNAN, J.). I also agree with the Court that the "tiny fraction," ante at 458 U. S. 773 , of material of serious artistic, scientific, or educational value that could conceivably fall within the reach of the statute is insufficient to justify striking the statute on the grounds of overbreadth. See Broadrick v. Oklahoma, 413 U. S. 601 , 413 U. S. 630 (1973) (BRENNAN, J., dissenting). But, in my view, application of § 263.15 or any similar statute to depictions of children that, in themselves, do have serious literary, artistic, scientific, or medical value would violate the First Amendment. As the Court recognizes, the limited classes of speech the suppression of which does not raise serious First Amendment concerns have two attributes. They are of exceedingly "slight social value," and the State has a compelling interest in their regulation. See Chaplinsky v. New Hampshire, 315 U. S. 568 , 315 U. S. 571 -572 (1942). The First Amendment value of depictions of children that are, in themselves, serious contributions to art, literature, or science is, by definition, simply not " de minimis. " See ante at 458 U. S. 761 . At the same time, the State's interest in suppression of such materials is likely to be far less compelling. For the Court's assumption of harm to the child resulting from the "permanent record" and "circulation" of the child's "participation," ante at 458 U. S. 759 , lacks much of its force where the depiction is a serious contribution to art or science. The production of materials of serious value is not the "low Page 458 U. S. 777 profile, clandestine industry" that, according to the Court, produces purely pornographic materials. See ante at 458 U. S. 760 . In short, it is inconceivable how a depiction of a child that is itself a serious contribution to the world of art or literature or science can be deemed "material outside the protection of the First Amendment." See ante at 458 U. S. 763 . I, of course, adhere to my view that, in the absence of exposure, or particular harm, to juveniles or unconsenting adults, the State lacks power to suppress sexually oriented materials. See, e.g., Paris Adult Theatre I v. Slaton, 413 U. S. 49 , 413 U. S. 73 (1973) (BRENNAN, J., dissenting). With this understanding, I concur in the Court's judgment in this case. JUSTICE STEVENS, concurring in the judgment. Two propositions seem perfectly clear to me. First, the specific conduct that gave rise to this criminal prosecution is not protected by the Federal Constitution; second, the state statute that respondent violated prohibits some conduct that is protected by the First Amendment. The critical question, then, is whether this respondent, to whom the statute may be applied without violating the Constitution, may challenge the statute on the ground that it conceivably may be applied unconstitutionally to others in situations not before the Court. I agree with the Court's answer to this question, but not with its method of analyzing the issue. Before addressing that issue, I shall explain why respondent's conviction does not violate the Constitution. The two films that respondent sold contained nothing more than lewd exhibition; there is no claim that the films included any material that had literary, artistic, scientific, or educational value. [ Footnote 2/1 ] Respondent was a willing participant in a commercial market that the State of New York has a legitimate interest in suppressing. The character of the State's interest in protecting children from sexual abuse justifies the imposition Page 458 U. S. 778 of criminal sanctions against those who profit, directly or indirectly, from the promotion of such films. In this respect, my evaluation of this case is different from the opinion I have expressed concerning the imposition of criminal sanctions for the promotion of obscenity in other contexts. [ Footnote 2/2 ] A holding that respondent may be punished for selling these two films does not require us to conclude that other users of these very films, or that other motion pictures containing similar scenes, are beyond the pale of constitutional protection. Thus, the exhibition of these films before a legislative committee studying a proposed amendment to a state law, or before a group of research scientists studying human behavior, could not, in my opinion, be made a crime. Moreover, it is at least conceivable that a serious work of art, a documentary on behavioral problems, or a medical or psychiatric teaching device, might include a scene from one of these films and, when viewed as a whole in a proper setting, be entitled to constitutional protection. The question whether a specific act of communication is protected by the First Amendment always requires some consideration of both its content and its context. The Court's holding that this respondent may not challenge New York's statute as overbroad follows its discussion of the contours of the category of nonobscene child pornography that New York may legitimately prohibit. Having defined that category in an abstract setting, [ Footnote 2/3 ] the Court makes the Page 458 U. S. 779 empirical judgment that the arguably impermissible application of the New York statute amounts to only a "tiny fraction of the materials within the statute's reach." Ante at 458 U. S. 773 . Even assuming that the Court's empirical analysis is sound, [ Footnote 2/4 ] I believe a more conservative approach to the issue would adequately vindicate the State's interest in protecting its children and cause less harm to the federal interest in free expression. A hypothetical example will illustrate my concern. Assume that the operator of a New York motion picture theater specializing in the exhibition of foreign feature films is offered a full-length movie containing one scene that is plainly lewd if viewed in isolation, but that nevertheless is part of a serious work of art. If the child actor resided abroad, New York's interest in protecting its young from sexual exploitation would be far less compelling than in the case before us. The federal interest in free expression would, however, be just as strong as if an adult actor had been used. There are at least three different ways to deal with the statute's potential application to that sort of case. First, at one extreme and as the Court appears to hold, the First Amendment inquiry might be limited to determining Page 458 U. S. 780 whether the offensive scene, viewed in isolation, is lewd. When the constitutional protection is narrowed in this drastic fashion, the Court is probably safe in concluding that only a tiny fraction of the materials covered by the New York statute is protected. And with respect to my hypothetical exhibitor of foreign films, he need have no uncertainty about the permissible application of the statute; for the one lewd scene would deprive the entire film of any constitutional protection. Second, at the other extreme and as the New York Court of Appeals correctly perceived, the application of this Court's cases requiring that an obscenity determination be based on the artistic value of a production, taken as a whole, would afford the exhibitor constitutional protection, and result in a holding that the statute is invalid because of its overbreadth. Under that approach, the rationale for invalidating the entire statute is premised on the concern that the exhibitor's understanding about its potential reach could cause him to engage in self-censorship. This Court's approach today substitutes broad, unambiguous, state-imposed censorship for the self-censorship that an overbroad statute might produce. Third, as an intermediate position, I would refuse to apply overbreadth analysis for reasons unrelated to any prediction concerning the relative number of protected communications that the statute may prohibit. Specifically, I would postpone decision of my hypothetical case until it actually arises. Advocates of a liberal use of overbreadth analysis could object to such postponement on the ground that it creates the risk that the exhibitor's uncertainty may produce self-censorship. But that risk obviously interferes less with the interest in free expression than does an abstract, advance ruling that the film is simply unprotected whenever it contains a lewd scene, no matter how brief. My reasons for avoiding overbreadth analysis in this case are more qualitative than quantitative. When we follow our Page 458 U. S. 781 traditional practice of adjudicating difficult and novel constitutional questions only in concrete factual situations, the adjudications tend to be crafted with greater wisdom. Hypothetical rulings are inherently treacherous, and prone to lead us into unforeseen errors; they are qualitatively less reliable than the products of case-by-case adjudication. Moreover, it is probably safe to assume that the category of speech that is covered by the New York statute generally is of a lower quality than most other types of communication. On a number of occasions, I have expressed the view that the First Amendment affords some forms of speech more protection from governmental regulation than other forms of speech. [ Footnote 2/5 ] Today the Court accepts this view, putting the category of speech described in the New York statute in its rightful place near the bottom of this hierarchy. Ante at 458 U. S. 761 -763. Although I disagree with the Court's position that such speech is totally without First Amendment protection, I agree that, generally, marginal speech does not warrant the extraordinary protection afforded by the overbreadth doctrine. [ Footnote 2/6 ] Because I have no difficulty with the statute's application in this case, I concur in the Court's judgment. [ Footnote 2/1 ] Respondent's counsel conceded at oral argument that a finding that the films are obscene would have been consistent with the Miller definition. Tr. of Oral Arg. 41. [ Footnote 2/2 ] See Burch v. Louisiana, 441 U. S. 130 , 441 U. S. 139 (STEVENS, J., concurring); Pinkus v. United States, 436 U. S. 293 , 436 U. S. 305 (STEVENS, J., concurring); Ballew v. Georgia, 435 U. S. 223 , 435 U. S. 245 (STEVENS, J., concurring); Smith v. United States, 431 U. S. 291 , 431 U. S. 311 -321 (STEVENS, J., dissenting); Marks v. United States, 430 U. S. 188 , 430 U. S. 198 (STEVENS, J., concurring in part and dissenting in part); see also Schad v. Borough of Mount Ephraim, 452 U. S. 61 , 452 U. S. 84 (STEVENS, J., concurring in judgment); FCC v. Pacifica Foundation, 438 U. S. 726 , 438 U. S. 750 (opinion of STEVENS, J.). [ Footnote 2/3 ] "The test for child pornography is separate from the obscenity standard enunciated in Miller, but may be compared to it for the purpose of clarity. The Miller formulation is adjusted in the following respects: a trier of fact need not find that the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed be done so in a patently offensive manner; and the material at issue need not be considered as a whole." Ante at 458 U. S. 764 . [ Footnote 2/4 ] The Court's analysis is directed entirely at the permissibility of the statute's coverage of nonobscene material. Its empirical evidence, however, is drawn substantially from congressional Committee Reports that ultimately reached the conclusion that a prohibition against obscene child pornography -- coupled with sufficiently stiff sanctions -- is an adequate response to this social problem. The Senate Committee on the Judiciary concluded that "virtually all of the materials that are normally considered child pornography are obscene under the current standards," and that, "[i]n comparison with this blatant pornography, non-obscene materials that depict children are very few and very inconsequential." S.Rep. No. 95-438, p. 13 (1977); see also H.R.Rep. No. 95-696, pp. 7-8 (1977). The coverage of the federal statute is limited to obscene material. See 18 U.S.C. § 2252(a) (1976 ed., Supp. IV). [ Footnote 2/5 ] See, e.g., Schad v. Borough of Mount Ephraim, 452 U.S. at 452 U. S. 80 , 452 U. S. 83 (STEVENS, J., concurring in judgment); Consolidated Edison Co. v. Public Service Comm'n, 447 U. S. 530 , 447 U. S. 544 -548 (STEVENS, J., concurring in judgment); FCC v. Pacifica Foundation, 438 U.S. at 438 U. S. 744 -748 (opinion of STEVENS, J.); Carey v. Population Services International, 431 U. S. 678 , 431 U. S. 716 -717 (STEVENS, J., concurring in part and concurring in judgment); Smith v. United States, 431 U.S. at 431 U. S. 317 -319 (STEVENS, J., dissenting); Young v. American Mini Theatres, Inc., 427 U. S. 50 , 427 U. S. 66 -71 (opinion of STEVENS,J.). [ Footnote 2/6 ] See FCC v. Pacifica Foundation, supra, at 438 U. S. 742 -743 (opinion of STEVENS, J.); Young v. American Mini Theatres, Inc., supra, at 427 U. S. 59 -61; see also Metromedia, Inc. v. City of San Diego, 453 U. S. 490 , 453 U. S. 544 -548 (STEVENS, J., dissenting in part); Schad v. Borough of Mount Ephraim, supra, at 452 U. S. 85 (STEVENS, J., concurring in judgment).

In New York v. Ferber (1982), the U.S. Supreme Court upheld a New York statute prohibiting the distribution of material depicting children engaged in sexual conduct, even if the material was not obscene. The Court recognized the harmful nature of child pornography and granted states greater leeway in regulating it. The Court balanced First Amendment rights with the welfare of children, concluding that the statute's focus on the distribution of such material was permissible due to the severe harm inflicted on children during its production. This decision established child pornography as a category of speech unprotected by the First Amendment.

Free Speech

Miller v. California

https://supreme.justia.com/cases/federal/us/413/15/

U.S. Supreme Court Miller v. California, 413 U.S. 15 (1973) Miller v. California No. 70-73 Argued January 18-19, 1972 Reargued November 7, 1972 Decided June 21, 1973 413 U.S. 15 APPEAL FROM THE APPELLATE DEPARTMENT, SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE Syllabus Appellant was convicted of mailing unsolicited sexually explicit material in violation of a California statute that approximately incorporated the obscenity test formulated in Memoirs v. Massachusetts, 383 U. S. 413 , 383 U. S. 418 (plurality opinion). The trial court instructed the jury to evaluate the materials by the contemporary community standards of California. Appellant's conviction was affirmed on appeal. In lieu of the obscenity criteria enunciated by the Memoirs plurality, it is held: 1. Obscene material is not protected by the First Amendment. Roth v. United States, 354 U. S. 476 , reaffirmed. A work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value. Pp. 413 U. S. 23 -24. 2. The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Roth, supra, at 354 U. S. 489 , (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary. Pp. 413 U. S. 24 -25. 3. The test of "utterly without redeeming social value" articulated in Memoirs, supra, is rejected as a constitutional standard. Pp. 413 U. S. 24 -25. 4. The jury may measure the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community, and need not employ a "national standard." Pp. 413 U. S. 30 -34. Vacated and remanded. Page 413 U. S. 16 BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 413 U. S. 37 . BRENNAN, J., filed a dissenting opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 413 U. S. 47 . MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. This is one of a group of "obscenity-pornography" cases being reviewed by the Court in a reexamination of standards enunciated in earlier cases involving what Mr. Justice Harlan called "the intractable obscenity problem." Interstate Circuit, Inc. v. Dallas, 390 U. S. 676 , 390 U. S. 704 (1968) (concurring and dissenting). Appellant conducted a mass mailing campaign to advertise the sale of illustrated books, euphemistically called "adult" material. After a jury trial, he was convicted of violating California Penal Code § 311.2(a), a misdemeanor, by knowingly distributing obscene matter, [ Footnote 1 ] Page 413 U. S. 17 and the Appellate Department, Superior Court of California, County of Orange, summarily affirmed the judgment without opinion. Appellant's conviction was specifically Page 413 U. S. 18 based on his conduct in causing five unsolicited advertising brochures to be sent through the mail in an envelope addressed to a restaurant in Newport Beach, California. The envelope was opened by the manager of the restaurant and his mother. They had not requested the brochures; they complained to the police. The brochures advertise four books entitled "Intercourse," "Man-Woman," "Sex Orgies Illustrated," and "An Illustrated History of Pornography," and a film entitled "Marital Intercourse." While the brochures contain some descriptive printed material, primarily they consist of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed. I This case involves the application of a State's criminal obscenity statute to a situation in which sexually explicit materials have been thrust by aggressive sales action upon unwilling recipients who had in no way indicated any desire to receive such materials. This Court has recognized that the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material [ Footnote 2 ] Page 413 U. S. 19 when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles. Stanley v. Georgia, 394 U. S. 557 , 394 U. S. 567 (1969); Ginsberg v. New York, 390 U. S. 629 , 390 U. S. 637 -643 (1968); Interstate Circuit, Inc. v. Dallas, supra, at 390 U. S. 690 ; Redrup v. New York, 386 U. S. 767 , 386 U. S. 769 (1967); Jacobellis v. Ohio, 378 U. S. 184 , 378 U. S. 195 (1964). See Rabe v. Washington, 405 U. S. 313 , 405 U. S. 317 (1972) (BURGER, C.J., concurring); United States v. Reidel, 402 U. S. 351 , 402 U. S. 360 -362 (1971) (opinion of MARSHALL, J.); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 , 343 U. S. 502 (1952); Breard v. Alexandria, 341 U. S. 622 , 341 U. S. 644 645 (1951); Kovacs v. Cooper, 336 U. S. 77 , 336 U. S. 88 -89 (1949); Prince v. Massachusetts, 321 U. S. 158 , 321 U. S. 169 -170 (1944). Cf. Butler v. Michigan, 352 U. S. 380 , 352 U. S. 382 -383 (1957); Public Utilities Comm'n v. Pollak, 343 U. S. 451 , 343 U. S. 464 -465 (1952) It is in this context that we are called Page 413 U. S. 20 on to define the standards which must be used to identify obscene material that a State may regulate without infringing on the First Amendment as applicable to the States through the Fourteenth Amendment. The dissent of MR. JUSTICE BRENNAN reviews the background of the obscenity problem, but since the Court now undertakes to formulate standards more concrete than those in the past, it is useful for us to focus on two of the landmark cases in the somewhat tortured history of the Court's obscenity decisions. In Roth v. United States, 354 U. S. 476 (1957), the Court sustained a conviction under a federal statute punishing the mailing of "obscene, lewd, lascivious or filthy . . ." materials. The key to that holding was the Court's rejection of the claim that obscene materials were protected by the First Amendment. Five Justices joined in the opinion stating: "All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion -- have the full protection of the [First Amendment] guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. . . . This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U. S. 568 , 315 U. S. 571 -572: " ". . . There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene. . . . It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social Page 413 U. S. 21 value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . ." [Emphasis by Court in Roth opinion.] "We hold that obscenity is not within the area of constitutionally protected speech or press." 354 U.S. at 354 U. S. 48 85 (footnotes omitted). Nine years later, in Memoirs v. Massachusetts, 383 U. S. 413 (1966), the Court veered sharply away from the Roth concept and, with only three Justices in the plurality opinion, articulated a new test of obscenity. The plurality held that, under the Roth definition, "as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material, taken as a whole, appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value." Id. at 383 U. S. 418 . The sharpness of the break with Roth, represented by the third element of the Memoirs test and emphasized by MR. JUSTICE WHITE's dissent, id. at 383 U. S. 460 -462, was further underscored when the Memoirs plurality went on to state: "The Supreme Judicial Court erred in holding that a book need not be 'unqualifiedly worthless before it can be deemed obscene.' A book cannot be proscribed unless it is found to be utterly without redeeming social value." Id. at 383 U. S. 419 (emphasis in original). While Roth presumed "obscenity" to be "utterly without redeeming social importance," Memoirs required Page 413 U. S. 22 that to prove obscenity it must be affirmatively established that the material is " utterly without redeeming social value." Thus, even as they repeated the words of Roth, the Memoirs plurality produced a drastically altered test that called on the prosecution to prove a negative, i.e., that the material was " utterly without redeeming social value" -- a burden virtually impossible to discharge under our criminal standards of proof. Such considerations caused Mr. Justice Harlan to wonder if the " utterly without redeeming social value" test had any meaning at all. See Memoirs v. Massachusetts, id. at 383 U. S. 459 (Harlan, J., dissenting). See also id. at 383 U. S. 461 (WHITE, J., dissenting); United States v. Groner, 479 F.2d 577, 579581 (CA5 1973). Apart from the initial formulation in the Roth case, no majority of the Court has at any given time been able to agree on a standard to determine what constitutes obscene, pornographic material subject to regulation under the States' police power. See, e.g., Redrup v. New York, 386 U.S. at 386 U. S. 770 -771. We have seen "a variety of views among the members of the Court unmatched in any other course of constitutional adjudication." Interstate Circuit, Inc. v. Dallas, 390 U.S. at 390 U. S. 704 -705 (Harlan, J., concurring and dissenting) (footnote omitted). [ Footnote 3 ] This is not remarkable, for in the area Page 413 U. S. 23 of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression. This is an area in which there are few eternal verities. The case we now review was tried on the theory that the California Penal Code § 311 approximately incorporates the three-stage Memoirs test, supra. But now the Memoirs test has been abandoned as unworkable by its author, [ Footnote 4 ] and no Member of the Court today supports the Memoirs formulation. II This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. Kois v. Wisconsin, 408 U. S. 229 (1972); United States v. Reidel, 402 U.S. at 402 U. S. 354 ; Roth v. United States, supra, at 354 U. S. 485 . [ Footnote 5 ] "The First and Fourteenth Amendments have never been treated as absolutes [footnote omitted]." Breard v. Alexandria, 341 U.S. at 341 U. S. 642 , and cases cited. See Times Film Corp. v. Chicago, 365 U. S. 43 , 365 U. S. 47 -50 (1961); Joseph Burstyn, Inc. v. Wilson, 343 U.S. at 343 U. S. 502 . We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be Page 413 U. S. 24 carefully limited. See Interstate Circuit, Inc. v. Dallas, supra, at 390 U. S. 682 -685. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. [ Footnote 6 ] A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value. The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 408 U. S. 230 , quoting Roth v. United States, supra, at 354 U. S. 489 ; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the "utterly without redeeming social value" test of Memoirs v. Massachusetts, Page 413 U. S. 25 383 U.S. at 383 U. S. 419 ; that concept has never commanded the adherence of more than three Justices at one time. [ Footnote 7 ] See supra at 413 U. S. 21 . If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. See Kois v. Wisconsin, supra, at 408 U. S. 232 ; Memoirs v. Massachusetts, supra, at 383 U. S. 459 -460 (Harlan, J., dissenting); Jacobellis v. Ohio, 378 U.S. at 204 (Harlan, J., dissenting); New York Times Co. v. Sullivan, 376 U. S. 254 , 376 U. S. 284 -285 (1964); Roth v. United States, supra, at 354 U. S. 497 -498 (Harlan, J., concurring and dissenting). We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra: (a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals. Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can Page 413 U. S. 26 be exhibited or sold without limit in such public places. [ Footnote 8 ] At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. See Kois v. Wisconsin, supra, at 408 U. S. 230 -232; Roth v. United States, supra, at 354 U. S. 487 ; Thornhill v. Alabama, 310 U. S. 88 , 310 U. S. 101 -102 (1940). For example, medical books for the education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses against society and its individual members. [ Footnote 9 ] MR. JUSTICE BRENNAN, author of the opinions of the Court, or the plurality opinions, in Roth v. United States, supra; Jacobellis v. Ohio, supra; Ginzburg v. United Page 413 U. S. 27 States, 383 U. S. 463 (1966), Mishkin v. New York, 383 U. S. 502 (1966); and Memoirs v. Massachusetts, supra, has abandoned his former position and now maintains that no formulation of this Court, the Congress, or the States can adequately distinguish obscene material unprotected by the First Amendment from protected expression, Paris Adult Theatre I v. Slaton, post, p. 413 U. S. 73 (BRENNAN, J., dissenting). Paradoxically, MR. JUSTICE BRENNAN indicates that suppression of unprotected obscene material is permissible to avoid exposure to unconsenting adults, as in this case, and to juveniles, although he gives no indication of how the division between protected and nonprotected materials may be drawn with greater precision for these purposes than for regulation of commercial exposure to consenting adults only. Nor does he indicate where in the Constitution he finds the authority to distinguish between a willing "adult" one month past the state law age of majority and a willing "juvenile" one month younger. Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive "hard core" sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution. See Roth v. United States, supra, at 354 U. S. 491 -492. Cf. Ginsberg v. New York, 390 U.S. at 390 U. S. 643 . [ Footnote 10 ] If Page 413 U. S. 28 the inability to define regulated materials with ultimate, god-like precision altogether removes the power of the States or the Congress to regulate, then "hard core" pornography may be exposed without limit to the juvenile, the passerby, and the consenting adult alike, as, indeed, MR. JUSTICE DOUGLAS contends. As to MR. JUSTICE DOUGLAS' position, see United States v. Thirty-seven Photographs, 402 U. S. 363 , 402 U. S. 379 -380 (1971) (Black, J., joined by DOUGLAS, J., dissenting); Ginzburg v. United States, supra, at 383 U. S. 476 , 383 U. S. 491 -492 (Black, J., and DOUGLAS, J., dissenting); Jacobellis v. Ohio, supra, at 378 U. S. 196 (Black, J., joined by DOUGLAS, J., concurring); Roth, supra, at 354 U. S. 508 -514 (DOUGLAS, J., dissenting). In this belief, however, MR. JUSTICE DOUGLAS now stands alone. MR. JUSTICE BRENNAN also emphasizes "institutional stress" in justification of his change of view. Noting that "[t]he number of obscenity cases on our docket gives ample testimony to the burden that has been placed upon this Court," he quite rightly remarks that the examination of contested materials "is hardly a source of edification to the members of this Court." Paris Adult Page 413 U. S. 29 Theatre I v. Slaton, post, at 413 U. S. 92 , 413 U. S. 93 . He also notes, and we agree, that "uncertainty of the standards creates a continuing source of tension between state and federal courts. . . ." "The problem is . . . that one cannot say with certainty that material is obscene until at least five members of this Court, applying inevitably obscure standards, have pronounced it so." Id. at 413 U. S. 93 , 413 U. S. 92 . It is certainly true that the absence, since Roth, of a single majority view of this Court as to proper standards for testing obscenity has placed a strain on both state and federal courts. But today, for the first time since Roth was decided in 1957, a majority of this Court has agreed on concrete guidelines to isolate "hard core" pornography from expression protected by the First Amendment. Now we may abandon the casual practice of Redrup v. New York, 386 U. S. 767 (1967), and attempt to provide positive guidance to federal and state courts alike. This may not be an easy road, free from difficulty. But no amount of "fatigue" should lead us to adopt a convenient "institutional" rationale -- an absolutist, "anything goes" view of the First Amendment -- because it will lighten our burdens. [ Footnote 11 ] "Such an abnegation of judicial supervision in this field would be inconsistent with our duty to uphold the constitutional guarantees." Jacobellis v. Ohio, supra, at 378 U. S. 187 -188 (opinion of BRENNAN, J.). Nor should we remedy "tension between state and federal courts" by arbitrarily depriving the States of a power reserved to them under the Constitution, a power which they have enjoyed and exercised continuously from before the adoption of the First Amendment to this day. See Roth v. United States, supra, at 354 U. S. 482 -485. "Our duty admits of no 'substitute for facing up Page 413 U. S. 30 to the tough individual problems of constitutional judgment involved in every obscenity case.' [ Roth v. United States, supra, at 354 U. S. 498 ]; see Manual Enterprises, Inc. v. Day, 370 U. S. 478 , 370 U. S. 488 (opinion of Harlan, J.) [footnote omitted]." Jacobellis v. Ohio, supra, at 378 U. S. 188 (opinion of BRENNAN, J.). III Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the "prurient interest" or is "patently offensive." These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether "the average person, applying contemporary community standards" would consider certain materials "prurient," it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national "community standard" would be an exercise in futility. As noted before, this case was tried on the theory that the California obscenity statute sought to incorporate the tripartite test of Memoirs. This, a "national" standard of First Amendment protection enumerated by a plurality of this Court, was correctly regarded at the time of trial as limiting state prosecution under the controlling case Page 413 U. S. 31 law. The jury, however, was explicitly instructed that, in determining whether the "dominant theme of the material as a whole . . . appeals to the prurient interest," and, in determining whether the material "goes substantially beyond customary limits of candor and affronts contemporary community standards of decency," it was to apply "contemporary community standards of the State of California." During the trial, both the prosecution and the defense assumed that the relevant "community standards" in making the factual determination of obscenity were those of the State of California, not some hypothetical standard of the entire United States of America. Defense counsel at trial never objected to the testimony of the State's expert on community standards [ Footnote 12 ] or to the instructions of the trial judge on "state-wide" standards. On appeal to the Appellate Department, Superior Court of California, County of Orange, appellant for the first time contended that application of state, rather than national, standards violated the First and Fourteenth Amendments. We conclude that neither the State's alleged failure to offer evidence of "national standards," nor the trial court's charge that the jury consider state community standards, were constitutional errors. Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable "national standards" when attempting to determine whether certain materials are obscene as a matter Page 413 U. S. 32 of fact. Mr. Chief Justice Warren pointedly commented in his dissent in Jacobellis v. Ohio, supra, at 378 U. S. 200 : "It is my belief that, when the Court said in Roth that obscenity is to be defined by reference to 'community standards,' it meant community standards -- not a national standard, as is sometimes argued. I believe that there is no provable 'national standard.' . . . At all events, this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to divine one." It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City. [ Footnote 13 ] Page 413 U. S. 33 See Hoyt v. Minnesota, 399 U.S. at 524 -525 (1970) (BLACKMUN, J., dissenting); Walker v. Ohio, 398 U.S. at 434 (1970) (BURGER, C.J., dissenting); id. at 434-435 (Harlan, J., dissenting); Cain v. Kentucky, 397 U. S. 319 (1970) (BURGER, C.J., dissenting); id. at 397 U. S. 319 -320 (Harlan, J., dissenting); United States v. Groner, 479 F.2d at 581-583; O'Meara & Shaffer, Obscenity in The Supreme Court: A Note on Jacobellis v. Ohio, 40 Notre Dame Law. 1, 6-7 (1964). See also Memoirs v. Massachusetts, 383 U.S. at 383 U. S. 458 (Harlan, J., dissenting); Jacobellis v. Ohio, supra, at 378 U. S. 203 -204 (Harlan, J., dissenting); Roth v. United States, supra, at 354 U. S. 505 -506 (Harlan, J., concurring and dissenting). People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity. As the Court made clear in Mishkin v. New York, 383 U.S. at 383 U. S. 508 -509, the primary concern with requiring a jury to apply the standard of "the average person, applying contemporary community standards" is to be certain that, so far as material is not aimed at a deviant group, it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person -- or indeed a totally insensitive one. See Roth v. United States, supra, at 354 U. S. 489 . Cf. the now discredited test in Regina v. Hicklin, [1868] L.R. 3 Q.B. 360. We hold that the requirement that the jury evaluate the materials with reference to "contemporary Page 413 U. S. 34 standards of the State of California" serves this protective purpose and is constitutionally adequate. [ Footnote 14 ] IV The dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a "misuse of the great guarantees of free speech and free press. . . ." Breard v. Alexandria, 341 U.S. at 341 U. S. 645 . The First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent. "The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of Page 413 U. S. 35 political and social changes desired by the people," Roth v. United States, supra, at 354 U. S. 484 (emphasis added). See Kois v. Wisconsin, 408 U.S. at 408 U. S. 230 -232; Thornhill v. Alabama, 310 U.S. at 310 U. S. 101 -102. But the public portrayal of hard-core sexual conduct for its own sake, and for the ensuing commercial gain, is a different matter. [ Footnote 15 ] There is no evidence, empirical or historical, that the stern 19th century American censorship of public distribution and display of material relating to sex, see Roth v. United States, supra, at 354 U. S. 482 -485, in any way limited or affected expression of serious literary, artistic, political, or scientific ideas. On the contrary, it is beyond any question that the era following Thomas Jefferson to Theodore Roosevelt was an "extraordinarily vigorous period" not just in economics and politics, but in belles lettres and in "the outlying fields of social and political philosophies." [ Footnote 16 ] We do not see the harsh hand Page 413 U. S. 36 of censorship of ideas -- good or bad, sound or unsound -- and "repression" of political liberty lurking in every state regulation of commercial exploitation of human interest in sex. MR. JUSTICE BRENNAN finds "it is hard to see how state-ordered regimentation of our minds can ever be forestalled." Paris Adult Theatre I v. Slaton, post, at 413 U. S. 110 (BRENNAN, J., dissenting). These doleful anticipations assume that courts cannot distinguish commerce in ideas, protected by the First Amendment, from commercial exploitation of obscene material. Moreover, state regulation of hard-core pornography so as to make it unavailable to nonadults, a regulation which MR. JUSTICE BRENNAN finds constitutionally permissible, has all the elements of "censorship" for adults; indeed even more rigid enforcement techniques may be called for with such dichotomy of regulation. See Interstate Circuit, Inc. v. Dallas, 390 U.S. at 390 U. S. 690 . [ Footnote 17 ] One can concede that the "sexual revolution" of recent years may have had useful byproducts in striking layers of prudery from a subject long irrationally kept from needed ventilation. But it does not follow that no regulation of patently offensive "hard core" materials is needed or permissible; civilized people do not allow unregulated access to heroin because it is a derivative of medicinal morphlne. In sum, we (a) reaffirm the Roth holding that obscene material is not protected by the First Amendment; (b) hold that such material can be regulated by the States, subject to the specific safeguards enunciated Page 413 U. S. 37 above, without a showing that the material is "utterly without redeeming social value"; and (c) hold that obscenity is to be determined by applying "contemporary community standards," see Kois v. Wisconsin, supra, at 408 U. S. 230 , and Roth v. United States, supra, at 354 U. S. 489 , not "national standards." The judgment of the Appellate Department of the Superior Court, Orange County, California, is vacated and the case remanded to that court for further proceedings not inconsistent with the First Amendment standards established by this opinion. See United States v. 12 200-ft. Reels of Film, post at 413 U. S. 130 n. 7. Vacated and remanded. [ Footnote 1 ] At the time of the commission of the alleged offense, which was prior to June 25, 1969, §§ 311.2(a) and 311 of the California Penal Code read in relevant part: "§ 311.2 Sending or bringing into state for sale or distribution; printing, exhibiting, distributing or possessing within state" "(a) Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor. . . ." "§ 311. Definitions" "As used in this chapter: " "(a) 'Obscene' means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance." "(b) 'Matter' means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials." "(c) 'Person' means any individual, partnership, firm, association, corporation, or other legal entity." "(d) 'Distribute' means to transfer possession of, whether with or without consideration." "(e) 'Knowingly' means having knowledge that the matter is obscene." Section 311(e) of the California Penal Code, supra, was amended on June 25, 1969, to read as follows: "(e) 'Knowingly' means being aware of the character of the matter." Cal. Amended Stats.1969, c. 249, § 1, p. 598. Despite appellant's contentions to the contrary, the record indicates that the new § 311(e) was not applied ex post facto to his case, but only the old § 311(e) as construed by state decisions prior to the commission of the alleged offense. See People v. Pinkus, 256 Cal. App. 2d 941, 948-950, 63 Cal. Rptr. 680, 685-686 (App. Dept., Superior Ct., Los Angeles, 1967); People v. Campise, 242 Cal. App. 2d 905, 914, 51 Cal. Rptr. 815, 821 (App.Dept., Superior Ct., San Diego, 1966). Cf. Bouie v. City of Columbia, 378 U. S. 347 (1964). Nor did § 311.2, supra, as applied, create any "direct, immediate burden on the performance of the postal functions," or infringe on congressional commerce powers under Art. I, § 8, cl. 3. Roth v. United States, 354 U. S. 476 , 354 U. S. 494 (1957), quoting Railway Mail Assn. v. Corsi, 326 U. S. 88 , 326 U. S. 96 (1945). See also Mishkin v. New York, 383 U. S. 502 , 383 U. S. 506 (1966); Smith v. California, 361 U. S. 147 , 361 U. S. 150 -152 (1959). [ Footnote 2 ] This Court has defined "obscene material" as "material which deals with sex in a manner appealing to prurient interest," Roth v. United States, supra, at 354 U. S. 487 , but the Roth definition does not reflect the precise meaning of "obscene" as traditionally used in the English language. Derived from the Latin obscaenus ob, to, plus caenum, filth, "obscene" is defined in the Webster's Third New International Dictionary (Unabridged 1969) as "1a: disgusting to the senses . . . b: grossly repugnant to the generally accepted notions of what is appropriate . . . 2: offensive or revolting as countering or violating some ideal or principle." The Oxford English Dictionary (1933 ed.) gives a similar definition, "[o]ffensive to the senses, or to taste or refinement; disgusting, repulsive, filthy, foul, abominable, loathsome." The material we are discussing in this case is more accurately defined as "pornography" or "pornographic material." "Pornography" derives from the Greek (porne, harlot, and graphos, writing). The word now means "1: a description of prostitutes or prostitution 2: a depiction (as in writing or painting) of licentiousness or lewdness: a portrayal of erotic behavior designed to cause sexual excitement." Webster's Third New International Dictionary, supra. Pornographic material which is obscene forms a sub-group of all "obscene" expression, but not the whole, at least as the word "obscene" is now used in our language. We note, therefore, that the words "obscene material," as used in this case, have a specific judicial meaning which derives from the Roth case, i.e., obscene material "which deals with sex." Roth, supra, at 354 U. S. 487 . See also ALI Model Penal Code § 251.4(1) "Obscene Defined." (Official Draft 1962.) [ Footnote 3 ] In the absence of a majority view, this Court was compelled to embark on the practice of summarily reversing convictions for the dissemination of materials that, at least five members of the Court, applying their separate tests, found to be protected by the First Amendment. Redrup v. New York, 386 U. S. 767 (1967). Thirty-one cases have been decided in this manner. Beyond the necessity of circumstances, however, no justification has ever been offered in support of the Redrup "policy." See Walker v. Ohio, 398 U.S. at 398 U. S. 434 -435 (1970) (dissenting opinions of BURGER, C.J., and Harlan, J.). The Redrup procedure has cast us in the role of an unreviewable board of censorship for the 50 States, subjectively judging each piece of material brought before us. [ Footnote 4 ] See the dissenting opinion of MR. JUSTICE BRENNAN in Paris Adult Theatre I v. Slaton, post, p. 413 U. S. 73 . [ Footnote 5 ] As Mr. Chief Justice Warren stated, dissenting, in Jacobellis v. Ohio, 378 U. S. 184 , 378 U. S. 200 (1964): "For all the sound and fury that the Roth test has generated, it has not been proved unsound, and I believe that we should try to live with it -- at least until a more satisfactory definition is evolved. No government -- be it federal, state, or local -- should be forced to choose between repressing all material, including that within the realm of decency, and allowing unrestrained license to publish any material, no matter how vile. There must be a rule of reason in this as in other areas of the law, and we have attempted in the Roth case to provide such a rule." [ Footnote 6 ] See, e.g., Oregon Laws 1971, c. 743, Art. 29, §§ 255-262, and Hawaii Penal Code, Tit. 37, §§ 1210-1216, 1972 Hawaii Session Laws, Act 9, c. 12, pt.. II, pp. 126-129, as examples of state laws directed at depiction of defined physical conduct, as opposed to expression. Other state formulations could be equally valid in this respect. In giving the Oregon and Hawaii statutes as examples, we do not wish to be understood as approving of them in all other respects nor as establishing their limits as the extent of state power. We do not hold, as MR. JUSTICE BRENNAN intimates, that all States other than Oregon must now enact new obscenity statutes. Other existing state statutes, as construed heretofore or hereafter, may well be adequate. See United States v. 12 200-ft. Reel of Film, post, at 413 U. S. 130 n. 7. [ Footnote 7 ] "A quotation from Voltaire in the flyleaf of a book will not constitutionally redeem an otherwise obscene publication. . . ." Kois v. Wisconsin, 408 U. S. 229 , 408 U. S. 231 (1972). See Memoirs v. Massachusetts, 383 U. S. 413 , 383 U. S. 461 (1966) (WHITE, J., dissenting). We also reject, as a constitutional standard, the ambiguous concept of "social importance." See id. at 383 U. S. 462 (WHITE, J., dissenting). [ Footnote 8 ] Although we are not presented here with the problem of regulating lewd public conduct itself, the States have greater power to regulate nonverbal, physical conduct than to suppress depictions or descriptions of the same behavior. In United States v. O'Brien, 391 U. S. 367 , 391 U. S. 377 (1968), a case not dealing with obscenity, the Court held a State regulation of conduct which itself embodied both speech and nonspeech elements to be "sufficiently justified if . . . it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." See California v. LaRue, 409 U. S. 109 , 409 U. S. 117 -118 (1972). [ Footnote 9 ] The mere fact juries may reach different conclusions as to the same material does not mean that constitutional rights are abridged. As this Court observed in Roth v. United States, 354 U.S. at 354 U. S. 492 n. 30, "it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system. Cf. Dunlop v. United States, 165 U. S. 486 , 165 U. S. 499 -500." [ Footnote 10 ] As MR. JUSTICE BRENNAN stated for the Court in Roth v. United States, supra at 354 U. S. 491 -492: "Many decisions have recognized that these terms of obscenity statutes are not precise. [Footnote omitted.] This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. '. . . [T]he Constitution does not require impossible standards;' all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. . . .' United States v. Petrillo, 332 U. S. 1 , 332 U. S. 7 -8. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark" ". . . boundaries sufficiently distinct for judges and juries fairly to administer the law. . . . That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. . . ." " Id. at 332 U. S. 7 . See also United States v. Harriss, 347 U. S. 612 , 347 U. S. 624 , n. 15; Boyce Motor Lines, Inc. v. United States, 342 U. S. 337 , 342 U. S. 340 ; United States v. Ragen, 314 U. S. 513 , 314 U. S. 523 -524; United States v. Wurzbach, 280 U. S. 396 ; Hygrade Provision Co. v. Sherman, 266 U. S. 497 ; Fox v. Washington, 236 U. S. 273 ; Nash v. United States, 229 U. S. 373 ." [ Footnote 11 ] We must note, in addition, that any assumption concerning the relative burdens of the past and the probable burden under the standards now adopted is pure speculation. [ Footnote 12 ] The record simply does not support appellant's contention, belatedly raised on appeal, that the State's expert was unqualified to give evidence on California "community standards." The expert, a police officer with many years of specialization in obscenity offenses, had conducted an extensive state-wide survey and had given expert evidence on 26 occasions in the year prior to this trial. Allowing such expert testimony was certainly not constitutional error. Cf. United States v. Augenblick, 393 U. S. 348 , 393 U. S. 356 (1969). [ Footnote 13 ] In Jacobellis v. Ohio, 378 U. S. 184 (1964), two Justices argued that application of "local" community standards would run the risk of preventing dissemination of materials in some places because sellers would be unwilling to risk criminal conviction by testing variations in standards from place to place. Id. at 378 U. S. 193 -195 (opinion of BRENNAN, J., joined by Goldberg, J.). The use of "national" standards, however, necessarily implies that materials found tolerable in some places, but not under the "national" criteria, will nevertheless be unavailable where they are acceptable. Thus, in terms of danger to free expression, the potential for suppression seems at least as great in the application of a single nationwide standard as in allowing distribution in accordance with local tastes, a point which Mr. Justice Harlan often emphasized. See Roth v. United States, 354 U.S. at 354 U. S. 506 . Appellant also argues that adherence to a "national standard" is necessary "in order to avoid unconscionable burdens on the free flow of interstate commerce." As noted supra at 413 U. S. 18 n. 1, the application of domestic state police powers in this case did not intrude on any congressional powers under Art. I, § 8, cl. 3, for there is no indication that appellant's materials were ever distributed interstate. Appellant's argument would appear without substance in any event. Obscene material may be validly regulated by a State in the exercise of its traditional local power to protect the general welfare of its population despite some possible incidental effect on the flow of such materials across state lines. See, e.g., Head v. New Mexico Board, 374 U. S. 424 (1963); Huron Portland Cement Co. v. Detroit, 362 U. S. 440 (1960); Breard v. Alexandria, 341 U. S. 622 (1951); H. P. Hood & Sons v. Du Mond, 336 U. S. 525 (1949); Southern Pacific Co. v. Arizona, 325 U. S. 761 (1945); Baldwin v. G.A.F. Seelig, Inc., 294 U. S. 511 (1935); Sligh v. Kirkwood, 237 U. S. 52 (1915). [ Footnote 14 ] Appellant's jurisdictional statement contends that he was subjected to "double jeopardy" because a Los Angeles County trial judge dismissed, before trial, a prior prosecution based on the same brochures, but apparently alleging exposures at a different time in a different setting. Appellant argues that, once material has been found not to be obscene in one proceeding, the State is "collaterally estopped" from ever alleging it to be obscene in a different proceeding. It is not clear from the record that appellant properly raised this issue, better regarded as a question of procedural due process than a "double jeopardy" claim, in the state courts below. Appellant failed to address any portion of his brief on the merits to this issue, and appellee contends that the question was waived under California law because it was improperly pleaded at trial. Nor is it totally clear from the record before us what collateral effect the pretrial dismissal might have under state law. The dismissal was based, at least in part, on a failure of the prosecution to present affirmative evidence required by state law, evidence which was apparently presented in this case. Appellant's contention, therefore, is best left to the California courts for further consideration on remand. The issue is not, in any event, a proper subject for appeal. See Mishkin v. New York, 383 U. S. 502 , 383 U. S. 512 -514 (1966). [ Footnote 15 ] In the apt words of Mr. Chief Justice Warren, appellant in this case was "plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect. I believe that the State and Federal Governments can constitutionally punish such conduct. That is all that these cases present to us, and that is all we need to decide." Roth v. United States, supra, at 354 U. S. 496 (concurring opinion). [ Footnote 16 ] See 2 V. Parrington, Main Currents in American Thought ix et seq. (1930). As to the latter part of the 19th century, Parrington observed "A new age had come and other dreams -- the age and the dreams of a middle-class sovereignty. . . . From the crude and vast romanticisms of that vigorous sovereignty emerged eventually a spirit of realistic criticism, seeking to evaluate the worth of this new America, and discover if possible other philosophies to take the place of those which had gone down in the fierce battles of the Civil War." Id. at 474. Cf. 2 S. Morison, H. Commager & W. Leuchtenburg, The Growth of the American Republic 197-233 (6th ed.1969); Paths of American Thought 123-166, 203-290 (A. Schlesinger & M. White ed.1963) (articles of Fleming, Lerner, Morton & Lucia White, E. Rostow, Samuelson, Kazin, Hofstadter); and H. Wish, Society and Thought in Modern America 337-386 (1952). [ Footnote 17 ] "[W]e have indicated . . . that, because of its strong and abiding interest in youth, a State may regulate the dissemination to juveniles of, and their access to, material objectionable as to them, but which a State clearly could not regulate as to adults. Ginsberg v. New York , . . . [ 390 U.S. 629 (1968)]." Interstate Circuit, Inc. v. Dallas, 390 U. S. 676 , 390 U. S. 690 (1968) (footnote omitted). MR. JUSTICE DOUGLAS, dissenting. I Today we leave open the way for California [ Footnote 2/1 ] to send a man to prison for distributing brochures that advertise books and a movie under freshly written standards defining obscenity which until today is decision were never the part of any law. The Court has worked hard to define obscenity and concededly has failed. In Roth v. United States, 354 U. S. 476 , it ruled that "[o]bscene material is material which deals with sex in a manner appealing to prurient interest." Id. at 354 U. S. 487 . Obscenity, it was said, was rejected by the First Amendment because it is "utterly without redeeming Page 413 U. S. 38 social importance." Id. at 354 U. S. 484 . The presence of a "prurient interest" was to be determined by "contemporary community standards." Id. at 354 U. S. 489 . That test, it has been said, could not be determined by one standard here and another standard there, Jacobellis v. Ohio, 378 U. S. 184 , 378 U. S. 194 , but "on the basis of a national standard." Id. at 378 U. S. 195 . My Brother STEWART, in Jacobellis, commented that the difficulty of the Court in giving content to obscenity was that it was "faced with the task of trying to define what may be indefinable." Id. at 378 U. S. 197 . In Memoirs v. Massachusetts, 383 U. S. 413 , 383 U. S. 418 , the Roth test was elaborated to read as follows: "[T]hree elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value." In Ginzburg v. United States, 383 U. S. 463 , a publisher was sent to prison, not for the kind of books and periodicals he sold, but for the manner in which the publications were advertised. The "leer of the sensualist" was said to permeate the advertisements. Id. at 383 U. S. 468 . The Court said, "Where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity." Id. at 383 U. S. 470 . As Mr. Justice Black said in dissent, ". . . Ginzburg . . . is now finally and authoritatively condemned to serve five years in prison for distributing printed matter about sex which neither Ginzburg nor anyone else could possibly have known to be criminal." Id. at 383 U. S. 476 . That observation by Mr. Justice Black is underlined by the fact that the Ginzburg decision was five to four. Page 413 U. S. 39 A further refinement was added by Ginsberg v. New York, 390 U. S. 629 , 390 U. S. 641 , where the Court held that "it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors." But even those members of this Court who had created the new and changing standards of "obscenity" could not agree on their application. And so we adopted a per curiam treatment of so-called obscene publications that seemed to pass constitutional muster under the several constitutional tests which had been formulated. See Redrup v. New York, 386 U. S. 767 . Some condemn it if its "dominant tendency might be to deprave or corrupt' a reader." [ Footnote 2/2 ] Others look not to the content of the book, but to whether it is advertised "`to appeal to the erotic interests of customers.'" [ Footnote 2/3 ] Some condemn only "hard-core pornography," but even then a true definition is lacking. It has indeed been said of that definition, "I could never succeed in [defining it] intelligibly," but "I know it when I see it." [ Footnote 2/4 ] Today we would add a new three-pronged test: "(a) whether 'the average person, applying contemporary community standards,' would find that the work, taken as a whole, appeals to the prurient interest, . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Those are the standards we ourselves have written into the Constitution. [ Footnote 2/5 ] Yet how under these vague tests can Page 413 U. S. 40 we sustain convictions for the sale of an article prior to the time when some court has declared it to be obscene? Today the Court retreats from the earlier formulations of the constitutional test and undertakes to make new definitions. This effort, like the earlier ones, is earnest and well intentioned. The difficulty is that we do not deal with constitutional terms, since "obscenity" is not mentioned in the Constitution or Bill of Rights. And the First Amendment makes no such exception from "the press" which it undertakes to protect nor, as I have said on other occasions, is an exception necessarily implied, for there was no recognized exception to the free press at the time the Bill of Rights was adopted which treated "obscene" publications differently from other types of papers, magazines, and books. So there are no constitutional guidelines for deciding what is and what is not "obscene." The Court is at large because we deal with tastes and standards of literature. What shocks me may Page 413 U. S. 41 be sustenance for my neighbor. What causes one person to boil up in rage over one pamphlet or movie may reflect only his neurosis, not shared by others. We deal here with a regime of censorship which, if adopted, should be done by constitutional amendment after full debate by the people. Obscenity cases usually generate tremendous emotional outbursts. They have no business being in the courts. If a constitutional amendment authorized censorship, the censor would probably be an administrative agency. Then criminal prosecutions could follow as, if, and when publishers defied the censor and sold their literature. Under that regime, a publisher would know when he was on dangerous ground. Under the present regime -- whether the old standards or the new ones are used -- the criminal law becomes a trap. A brand new test would put a publisher behind bars under a new law improvised by the courts after the publication. That was done in Ginzburg, and has all the evils of an ex post facto law. My contention is that, until a civil proceeding has placed a tract beyond the pale, no criminal prosecution should be sustained. For no more vivid illustration of vague and uncertain laws could be designed than those we have fashioned. As Mr. Justice Harlan has said: "The upshot of all this divergence in viewpoint is that anyone who undertakes to examine the Court's decisions since Roth which have held particular material obscene or not obscene would find himself in utter bewilderment." Interstate Circuit, Inc. v. Dallas, 390 U. S. 676 , 390 U. S. 707 . In Bouie v. City of Columbia, 378 U. S. 347 , we upset a conviction for remaining on property after being asked to leave, while the only unlawful act charged by the statute was entering. We held that the defendants had received no "fair warning, at the time of their conduct" Page 413 U. S. 42 while on the property "that the act for which they now stand convicted was rendered criminal" by the state statute. Id. at 378 U. S. 355 . The same requirement of "fair warning" is due here, as much as in Bouie. The latter involved racial discrimination; the present case involves rights earnestly urged as being protected by the First Amendment. In any case -- certainly when constitutional rights are concerned -- we should not allow men to go to prison or be fined when they had no "fair warning" that what they did was criminal conduct. II If a specific book, play, paper, or motion picture has in a civil proceeding been condemned as obscene and review of that finding has been completed, and thereafter a person publishes, shows, or displays that particular book or film, then a vague law has been made specific. There would remain the underlying question whether the First Amendment allows an implied exception in the case of obscenity. I do not think it does, [ Footnote 2/6 ] and my views Page 413 U. S. 43 on the issue have been stated over and over again. [ Footnote 2/7 ] But at least a criminal prosecution brought at that juncture would not violate the time-honored "void for vagueness" test. [ Footnote 2/8 ] No such protective procedure has been designed by California in this case. Obscenity -- which even we cannot define with precision -- is a hodge-podge. To send Page 413 U. S. 44 men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing to do in a Nation dedicated to fair trials and due process. III While the right to know is the corollary of the right to speak or publish, no one can be forced by government to listen to disclosure that he finds offensive. That was the basis of my dissent in Public Utilities Comm'n v. Pollak, 343 U. S. 451 , 343 U. S. 467 , where I protested against making streetcar passengers a "captive" audience. There is no "captive audience" problem in these obscenity cases. No one is being compelled to look or to listen. Those who enter newsstands or bookstalls may be offended by what they see. But they are not compelled by the State to frequent those places; and it is only state or governmental action against which the First Amendment, applicable to the States by virtue of the Fourteenth, raises a ban. The idea that the First Amendment permits government to ban publications that are "offensive" to some people puts an ominous gloss on freedom of the press. That test would make it possible to ban any paper or any journal or magazine in some benighted place. The First Amendment was designed "to invite dispute," to induce "a condition of unrest," to "create dissatisfaction with conditions as they are," and even to stir "people to anger." Terminiello v. Chicago, 337 U. S. 1 , 337 U. S. 4 . The idea that the First Amendment permits punishment for ideas that are "offensive" to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The First Amendment was not fashioned as a vehicle for Page 413 U. S. 45 dispensing tranquilizers to the people. Its prime function was to keep debate open to "offensive" as well as to "staid" people. The tendency throughout history has been to subdue the individual and to exalt the power of government. The use of the standard "offensive" gives authority to government that cuts the very vitals out of the First Amendment. [ Footnote 2/9 ] As is intimated by the Court's opinion, the materials before us may be garbage. But so is much of what is said in political campaigns, in the daily press, on TV, or over the radio. By reason of the First Amendment -- and solely because of it -- speakers and publishers have not been threatened or subdued because their thoughts and ideas may be "offensive" to some. The standard "offensive" is unconstitutional in yet another way. In Coates v. City of Cincinnati, 402 U. S. 611 , we had before us a municipal ordinance that made it a crime for three or more persons to assemble on a street and conduct themselves "in a manner annoying to persons Page 413 U. S. 46 passing by." We struck it down, saying: "If three or more people meet together on a sidewalk or street corner, they must conduct themselves so as not to annoy any police officer or other person who should happen to pass by. In our opinion, this ordinance is unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard, and unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct." "Conduct that annoys some people does not annoy others. Thus, the ordinance is vague not in the sense that it requires a person to conform his conduct to an imprecise but comprehensive normative standard, but rather in the sense that no standard of conduct is specified at all." Id. at 402 U. S. 614 . How we can deny Ohio the convenience of punishing people who "annoy" others and allow California power to punish people who publish materials "offensive" to some people is difficult to square with constitutional requirements. If there are to be restraints on what is obscene, then a constitutional amendment should be the way of achieving the end. There are societies where religion and mathematics are the only free segments. It would be a dark day for America if that were our destiny. But the people can make it such if they choose to write obscenity into the Constitution and define it. We deal with highly emotional, not rational, questions. To many, the Song of Solomon is obscene. I do not think we, the judges, were ever given the constitutional power to make definitions of obscenity. If it is to be defined, let the people debate and decide by a constitutional amendment what they want to ban as obscene and what standards they want the legislatures and the courts to apply. Perhaps the people will decide that the path towards a mature, integrated society requires Page 413 U. S. 47 that all ideas competing for acceptance must have no censor. Perhaps they will decide otherwise. Whatever the choice, the courts will have some guidelines. Now we have none except our own predilections. [ Footnote 2/1 ] California defines "obscene matter" as "matter, taken as a whole, the predominant appeal of which to the average person, applying contemporary standards, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion; and is matter which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which taken as a whole is utterly without redeeming social importance." Calif. Penal Code § 311(a). [ Footnote 2/2 ] Roth v. United States, 354 U. S. 476 , 354 U. S. 502 (opinion of Harlan, J.). [ Footnote 2/3 ] Ginzburg v. United States, 383 U. S. 463 , 383 U. S. 467 . [ Footnote 2/4 ] Jacobellis v. Ohio, 378 U. S. 184 , 378 U. S. 197 (STEWART, J., concurring). [ Footnote 2/5 ] At the conclusion of a two-year study, the U.S. Commission on Obscenity and Pornography determined that the standards we have written interfere with constitutionally protected materials: "Society's attempts to legislate for adults in the area of obscenity have not been successful. Present laws prohibiting the consensual sale or distribution of explicit sexual materials to adults are extremely unsatisfactory in their practical application. The Constitution permits material to be deemed 'obscene' for adults only if, as a whole, it appeals to the 'prurient' interest of the average person, is 'patently offensive' in light of 'community standards,' and lacks 'redeeming social value.' These vague and highly subjective aesthetic, psychological and moral tests do not provide meaningful guidance for law enforcement officials, juries or courts. As a result, law is inconsistently and sometimes erroneously applied, and the distinctions made by courts between prohibited and permissible materials often appear indefensible. Errors in the application of the law and uncertainty about its scope also cause interference with the communication of constitutionally protected materials." Report of the Commission on Obscenity and Pornography 53 (1970). [ Footnote 2/6 ] It is said that "obscene" publications can be banned on authority of restraints on communications incident to decrees restraining unlawful business monopolies or unlawful restraints of trade, Sugar Institute v. United States, 297 U. S. 553 , 297 U. S. 597 , or communications respecting the sale of spurious or fraudulent securities. Hall v. Geier-Jones Co., 242 U. S. 539 , 242 U. S. 549 ; Caldwell v. Sioux Falls Stock Yards Co., 242 U. S. 559 , 242 U. S. 567 ; Merrick v. Halsey & Co., 242 U. S. 568 , 242 U. S. 584 . The First Amendment answer is that, whenever speech and conduct are brigaded -- as they are when one shouts "Fire" in a crowded theater -- speech can be outlawed. Mr. Justice Black, writing for a unanimous Court in Giboney v. Empire Storage Co., 336 U. S. 490 , stated that labor unions could be restrained from picketing a firm in support of a secondary boycott which a State had validly outlawed. Mr. Justice Black said: "It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute. We reject the contention now." Id. at 336 U. S. 498 . [ Footnote 2/7 ] See United States v. 12 200-ft. Reels of Film, post, p. 413 U. S. 123 ; United States v. Orito, post, p. 413 U. S. 139 ; Kois v. Wisconsin, 408 U. S. 229 ; Byrne v. Karalexis, 396 U. S. 976 , 977; Ginsberg v. New York, 390 U. S. 629 , 390 U. S. 650 ; Jacobs v. New York, 388 U. S. 431 , 388 U. S. 436 ; Ginzburg v. United States, 383 U. S. 463 , 383 U. S. 482 ; Memoirs v. Massachusetts, 383 U. S. 413 , 383 U. S. 424 ; Bantam Books, Inc. v. Sullivan, 372 U. S. 58 , 372 U. S. 72 ; Times Film Corp. v. Chicago, 365 U. S. 43 , 365 U. S. 78 ; Smith v. California, 361 U. S. 147 , 361 U. S. 167 ; Kingsley Pictures Corp. v. Regents, 360 U. S. 684 , 360 U. S. 697 ; Roth v. United States, 354 U. S. 476 , 354 U. S. 508 ; Kingsley Books, Inc. v. Brown, 354 U. S. 436 , 354 U. S. 446 ; Superior Films, Inc. v. Department of Education, 346 U. S. 587 , 346 U. S. 588 ; Gelling v. Texas, 343 U. S. 60 . [ Footnote 2/8 ] The Commission on Obscenity and Pornography has advocated such a procedure: " The Commission recommends the enactment, in all jurisdictions which enact or retain provisions prohibiting the dissemination of sexual materials to adults or young persons, of legislation authorizing prosecutors to obtain declaratory judgments as to whether particular materials fall within existing legal prohibitions. . . . " "A declaratory judgment procedure . . . would permit prosecutors to proceed civilly, rather than through the criminal process, against suspected violations of obscenity prohibition. If such civil procedures are utilized, penalties would be imposed for violation of the law only with respect to conduct occurring after a civil declaration is obtained. The Commission believes this course of action to be appropriate whenever there is any existing doubt regarding the legal status of materials; where other alternatives are available, the criminal process should not ordinarily be invoked against persons who might have reasonably believed, in good faith, that the books or films they distributed were entitled to constitutional protection, for the threat of criminal sanctions might otherwise deter the free distribution of constitutionally protected material." Report of the Commission on Obscenity and Pornography 63 (1970). [ Footnote 2/9 ] Obscenity law has had a capricious history: "The white slave traffic was first exposed by W. T. Stead in a magazine article, 'The Maiden Tribute.' The English law did absolutely nothing to the profiteers in vice, but put Stead in prison for a year for writing about an indecent subject. When the law supplies no definite standard of criminality, a judge, in deciding what is indecent or profane, may consciously disregard the sound test of present injury, and proceeding upon an entirely different theory may condemn the defendant because his words express ideas which are thought liable to cause bad future consequences. Thus, musical comedies enjoy almost unbridled license, while a problem play is often forbidden because opposed to our views of marriage. In the same way, the law of blasphemy has been used against Shelley's Queen Mab and the decorous promulgation of pantheistic ideas on the ground that to attack religion is to loosen the bonds of society and endanger the state. This is simply a round-about modern method to make heterodoxy in sex matters and even in religion a crime." Z. Chafee, Free Speech in the United States 151 (1942). MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join, dissenting. In my dissent in Paris Adult Theatre I v. Slaton, post, p. 413 U. S. 73 , decided this date, I noted that I had no occasion to consider the extent of state power to regulate the distribution of sexually oriented material to juveniles or the offensive exposure of such material to unconsenting adults. In the case before us, appellant was convicted of distributing obscene matter in violation of California Penal Code § 311.2, on the basis of evidence that he had caused to be mailed unsolicited brochures advertising various books and a movie. I need not now decide whether a statute might be drawn to impose, within the requirements of the First Amendment, criminal penalties for the precise conduct at issue here. For it is clear that, under my dissent in Paris Adult Theatre I, the statute under which the prosecution was brought is unconstitutionally overbroad, and therefore invalid on its face. * "[T]he transcendent value to all society of constitutionally protected expression is deemed to justify allowing 'attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity." Gooding v. Wilson, 405 U. S. 518 , 405 U. S. 521 (1972), quoting Page 413 U. S. 48 from Dombrowski v. Pfister, 380 U. S. 479 , 380 U. S. 486 (1965). See also Baggett v. Bullitt, 377 U. S. 360 , 377 U. S. 366 (1964); Coates v. City of Cincinnati, 402 U. S. 611 , 402 U. S. 616 (1971); id. at 402 U. S. 619 -620 (WHITE, J., dissenting); United States v. Raines, 362 U. S. 17 , 362 U. S. 21 -22 (1960); NAACP v. Button, 371 U. S. 415 , 371 U. S. 433 (1963). Since my view in Paris Adult Theatre I represents a substantial departure from the course of our prior decisions, and since the state courts have as yet had no opportunity to consider whether a "readily apparent construction suggests itself as a vehicle for rehabilitating the [statute] in a single prosecution," Dombrowski v. Pfister, supra, at 380 U. S. 491 , I would reverse the judgment of the Appellate Department of the Superior Court and remand the case for proceedings not inconsistent with this opinion. See Coates v. City of Cincinnati, supra, at 402 U. S. 616 . * Cal. Penal Code § 311.2(a) provides that "Every person who knowingly: sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state prepares, publishes, prints, exhibits, distributes, or offers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene matter is guilty of a misdemeanor."

In Miller v. California, the Supreme Court of the United States addressed the issue of state regulation of obscene material and provided guidelines for determining what constitutes obscene material that is not protected by the First Amendment. The Court held that obscene material is not protected by the First Amendment and outlined a three-part test for determining obscenity: 1. The work, taken as a whole, must appeal to the prurient interest in sex; 2. The work must portray sexual conduct in a patently offensive way as specifically defined by applicable state law; 3. The work, taken as a whole, must lack serious literary, artistic, political, or scientific value. The Court also held that the trier of fact must apply contemporary community standards in evaluating the material and rejected the "utterly without redeeming social value" test from an earlier case, Memoirs v. Massachusetts. In this case, the Court reviewed the conviction of the appellant, who was found guilty of mailing unsolicited sexually explicit material in violation of a California statute. The Court vacated the conviction and remanded the case for further consideration in light of the new obscenity standards set forth in this decision.

Government Agencies

Perez v. Mortgage Bankers Ass'n

https://supreme.justia.com/cases/federal/us/575/13-1041/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ Nos. 13–1041 and 13–1052 _________________ THOMAS E. PEREZ, SECRETARY OF LABOR, et al., PETITIONERS 13–1041 v. MORTGAGE BANKERS ASSOCIATION et al. JEROME NICKOLS, et al., PETITIONERS 13–1052 v. MORTGAGE BANKERS ASSOCIATION on writs of certiorari to the united states court of appeals for the district of columbia circuit [March 9, 2015] Justice Sotomayor delivered the opinion of the Court. When a federal administrative agency first issues a rule interpreting one of its regulations, it is generally not required to follow the notice-and-comment rulemaking procedures of the Administrative Procedure Act (APA or Act). See5 U. S. C. §553(b)(A). The United States Court of Appeals for the District of Columbia Circuit has nevertheless held, in a line of cases beginning with Paralyzed Veterans of Am. v. D. C. Arena L. P. , 117 F. 3d 579 (1997), that an agency must use the APA’s notice-and-comment procedures when it wishes to issue a new interpretation of a regulation that deviates significantly from one the agency has previously adopted. The question in these cases is whether the rule announced in Paralyzed Veterans is consistent with the APA. We hold that it is not. I A The APA establishes the procedures federal administrative agencies use for “rule making,” defined as the process of “formulating, amending, or repealing a rule.” §551(5). “Rule,” in turn, is defined broadly to include “statement[s] of general or particular applicability and future effect” that are designed to “implement, interpret, or prescribe law or policy.” §551(4). Section 4 of the APA,5 U. S. C. §553, prescribes a three-step procedure for so-called “notice-and-comment rulemaking.” First, the agency must issue a “[g]eneral notice of proposed rule making,” ordinarily by publication in the Federal Register . §553(b). Second, if “notice [is] required,” the agency must “give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.” §553(c). An agency must consider and respond to significant comments received during the period for public comment. See Citizens to Preserve Overton Park, Inc. v. Volpe ,401 U. S. 402,416 (1971); Thompson v. Clark , 741 F. 2d 401, 408 (CADC 1984). Third, when the agency promulgates the final rule, it must include in the rule’s text “a concise general statement of [its] basis and purpose.” §553(c). Rules issued through the notice-and-comment process are often referred to as “legislative rules” because they have the “force and effect of law.” Chrysler Corp. v. Brown ,441 U. S. 281–303 (1979) (internal quotation marks omitted). Not all “rules” must be issued through the notice-and-comment process. Section 4(b)(A) of the APA provides that, unless another statute states otherwise, the notice-and-comment requirement “does not apply” to “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.”5 U. S. C. §553(b)(A). The term “interpretative rule,” or “interpretive rule,”[ 1 ] is not further defined by the APA, and its precise meaning is the source of much scholarly and judicial debate. See generally Pierce, Distinguishing Legislative Rules From Interpretative Rules, 52 Admin. L. Rev. 547 (2000); Manning, Nonlegislative Rules, 72 Geo. Wash. L. Rev. 893 (2004). We need not, and do not, wade into that debate here. For our purposes, it suffices to say that the critical feature of interpretive rules is that they are “issued by an agency to advise the public of the agency’s construction of the statutes and rules which it administers.” Shalala v. Guernsey Memorial Hospital ,514 U. S. 87,99 (1995) (internal quotation marks omitted). The absence of a notice-and-comment obligation makes the process of issuing interpretive rules comparatively easier for agencies than issuing legislative rules. But that convenience comes at a price: Interpretive rules “do not have the force and effect of law and are not accorded that weight in the adjudicatory process.” Ibid. B These cases began as a dispute over efforts by the Department of Labor to determine whether mortgage-loan officers are covered by the Fair Labor Standards Act of 1938 (FLSA),52Stat.1060, as amended,29 U. S. C. §201 et seq. The FLSA “establishe[s] a minimum wage and overtime compensation for each hour worked in excess of 40 hours in each workweek” for many employees. Integ-rity Staffing Solutions, Inc. v. Busk , 574 U. S. ___, ___ (2014) (slip op., at 3). Certain classes of employees, however, are exempt from these provisions. Among these exempt individuals are those “employed in a bona fide executive, administrative, or professional capacity . . . or in the capacity of outside salesman . . . .” §213(a)(1). The exemption for such employees is known as the “administrative” exemption. The FLSA grants the Secretary of Labor authority to “defin[e]” and “delimi[t]” the categories of exempt admin-istrative employees. Ibid. The Secretary’s current regu-lations regarding the administrative exemption were promulgated in 2004 through a notice-and-commentrulemaking. As relevant here, the 2004 regulations differed from the previous regulations in that they contained a new section providing several examples of exempt administrative employees. See 29 CFR §541.203. One of the examples is “[e]mployees in the financial services industry,” who, depending on the nature of their day-to-day work, “generally meet the duties requirements for the administrative exception.” §541.203(b). The financial services example ends with a caveat, noting that “an employee whose primary duty is selling financial products does not qualify for the administrative exemption.” Ibid. In 1999 and again in 2001, the Department’s Wage and Hour Division issued letters opining that mortgage-loan officers do not qualify for the administrative exemption. See Opinion Letter, Loan Officers/Exempt Status, 6A LRR, Wages and Hours Manual 99:8351 (Feb. 16, 2001); Opinion Letter, Mortgage Loan Officers/Exempt Status, id., at 99:8249. (May 17, 1999). In other words, the Department concluded that the FLSA’s minimum wage and maximum hour requirements applied to mortgage-loan officers. When the Department promulgated its current FLSA regulations in 2004, respondent Mortgage Bankers Association (MBA), a national trade association representing real estate finance companies, requested a new opinion interpreting the revised regulations. In 2006, the Department issued an opinion letter finding that mortgage-loan officers fell within the administrative exemption under the 2004 regulations. See App. to Pet. for Cert. in No. 13–1041, pp. 70a–84a. Four years later, however, the Wage and Hour Division again altered its interpretation of the FLSA’s administrative exemption as it applied to mortgage-loan officers. Id., at 49a–69a. Reviewing the provisions of the 2004 regulations and judicial decisions addressing the administrative exemption, the Department’s 2010 Administrator’s Interpretation concluded that mortgage-loan officers “have a primary duty of making sales for their employers, and, therefore, do not qualify” for the administrative exemption. Id., at 49a, 69a. The Department accordingly withdrew its 2006 opinion letter, which it now viewed as relying on “misleading assumption[s] and selective and narrow analysis” of the exemption example in §541.203(b). Id., at 68a. Like the 1999, 2001, and 2006 opinion letters, the 2010 Administrator’s Interpretation was issued without notice or an opportunity for comment. C MBA filed a complaint in Federal District Court challenging the Administrator’s Interpretation. MBA contended that the document was inconsistent with the 2004 regulation it purported to interpret, and thus arbitrary and capricious in violation of §10 of the APA,5 U. S. C. §706. More pertinent to this case, MBA also argued that the Administrator’s Interpretation was procedurally in-valid in light of the D. C. Circuit’s decision in Paralyzed Veterans , 117 F. 3d 579. Under the Paralyzed Veterans doctrine, if “an agency has given its regulation a definitive interpretation, and later significantly revises that interpretation, the agency has in effect amended its rule, something it may not accomplish” under the APA “without notice and comment.” Alaska Professional Hunters Assn., Inc. v. FAA , 177 F. 3d 1030, 1034 (CADC 1999). Three former mortgage-loan officers—Beverly Buck, Ryan Henry, and Jerome Nickols—subsequently intervened in thecase to defend the Administrator’s Interpretation.[ 2 ] The District Court granted summary judgment to the Department. Mortgage Bankers Assn. v. Solis , 864 F. Supp. 2d 193 (DC 2012). Though it accepted the parties’ characterization of the Administrator’s Interpretation as an interpretive rule, id., at 203, n. 7, the District Court determined that the Paralyzed Veterans doctrine was inapplicable because MBA had failed to establish its reliance on the contrary interpretation expressed in the Department’s 2006 opinion letter. The Administrator’s Interpretation, the District Court further determined, was fully supported by the text of the 2004 FLSA regulations. The court accordingly held that the 2010 interpretation was not arbitrary or capricious.[ 3 ] The D. C. Circuit reversed. Mortgage Bankers Assn. v. Harris , 720 F. 3d 966 (2013). Bound to the rule of Paralyzed Veterans by precedent, the Court of Appeals rejected the Government’s call to abandon the doctrine. 720 F. 3d., at 967, n. 1. In the court’s view, “[t]he only question” properly before it was whether the District Court had erred in requiring MBA to prove that it relied on the Department’s prior interpretation. Id., at 967. Explaining that reliance was not a required element of the Paralyzed Veterans doctrine, and noting the Department’s concession that a prior, conflicting interpretation of the 2004 regulations existed, the D. C. Circuit concluded that the 2010 Administrator’s Interpretation had to be vacated. We granted certiorari, 573 U. S. __ (2014), and now reverse. II The Paralyzed Veterans doctrine is contrary to the clear text of the APA’s rulemaking provisions, and it improperly imposes on agencies an obligation beyond the “maximum procedural requirements” specified in the APA, Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. ,435 U. S. 519,524 (1978). A The text of the APA answers the question presented. Section 4 of the APA provides that “notice of proposed rule making shall be published in the Federal Register.”5 U. S. C. §553(b). When such notice is required by the APA, “the agency shall give interested persons an opportunity to participate in the rule making.” §553(c). But §4 further states that unless “notice or hearing is required by statute,” the Act’s notice-and-comment requirement “does not apply . . . to interpretative rules.” §553(b)(A). This exemption of interpretive rules from the notice-and-comment process is categorical, and it is fatal to the rule announced in Paralyzed Veterans . Rather than examining the exemption for interpretive rules contained in §4(b)(A) of the APA, the D. C. Circuit in Paralyzed Veterans focused its attention on §1 of the Act. That section defines “rule making” to include not only the initial issuance of new rules, but also “repeal[s]” or “amend[ments]” of existing rules. See §551(5). Because notice-and-comment requirements may apply even to these later agency actions, the court reasoned, “allow[ing] an agency to make a fundamental change in its interpretation of a substantive regulation without notice and comment” would undermine the APA’s procedural framework. 117 F. 3d, at 586. This reading of the APA conflates the differing purposes of §§1 and 4 of the Act. Section 1 defines what a rule-making is. It does not, however, say what procedures an agency must use when it engages in rulemaking. That is the purpose of §4. And §4 specifically exempts interpretive rules from the notice-and-comment requirements that apply to legislative rules. So, the D. C. Circuit correctly read §1 of the APA to mandate that agencies use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance. See FCC v. Fox Television Stations, Inc. ,556 U. S. 502,515 (2009) (the APA “make[s] no distinction . . . between initial agency action and subsequent agency action undoing or revising that action”). Where the court went wrong was in failing to apply that accurate understanding of §1 to the exemption for interpretive rules contained in §4: Because an agency is not required to use notice-and-comment procedures to issue an initial interpretive rule, it is also not required to use those procedures when it amends or repeals that interpretive rule. B The straightforward reading of the APA we now adopt harmonizes with longstanding principles of our administrative law jurisprudence. Time and again, we have reiterated that the APA “sets forth the full extent of judicial authority to review executive agency action for procedural correctness.” Fox Television Stations, Inc. , 556 U. S., at 513. Beyond the APA’s minimum requirements, courts lack authority “to impose upon [an] agency its own notion of which procedures are ‘best’ or most likely to further some vague, undefined public good.” Vermont Yankee , 435 U. S., at 549. To do otherwise would violate “the very basic tenet of administrative law that agencies should be free to fashion their own rules of procedure.” Id., at 544. These foundational principles apply with equal force to the APA’s procedures for rulemaking. We explained in Vermont Yankee that §4 of the Act “established the maximum procedural requirements which Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures.” Id., at 524. “Agencies are free to grant additional procedural rights in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them.” Ibid. The Paralyzed Veterans doctrine creates just such a judge-made procedural right: the right to notice and an opportunity to comment when an agency changes its interpretation of one of the regulations it enforces. That requirement may be wise policy. Or it may not. Regardless, imposing such an obligation is the responsibility of Congress or the administrative agencies, not the courts. We trust that Congress weighed the costs and benefits of placing more rigorous procedural restrictions on the issuance of interpretive rules. See id., at 523 (when Congress enacted the APA, it “settled long-continued and hard-fought contentions, and enact[ed] a formula upon which opposing social and political forces have come to rest” (internal quotation marks omitted)). In the end, Congress decided to adopt standards that permit agencies to promulgate freely such rules—whether or not they are consistent with earlier interpretations. That the D. C. Circuit would have struck the balance differently does not permit that court or this one to overturn Congress’ contrary judgment. Cf. Law v. Siegel , 571 U. S. ___, ___ (2014) (slip op., at 11). III MBA offers several reasons why the Paralyzed Veterans doctrine should be upheld. They are not persuasive. A MBA begins its defense of the Paralyzed Veterans doctrine by attempting to bolster the D. C. Circuit’s reading of the APA. “ Paralyzed Veterans ,” MBA contends, “simply acknowledges the reality that where an agency significantly alters a prior, definitive interpretation of a regulation, it has effectively amended the regulation itself,” something that under the APA requires use of notice-and-comment procedures. Brief for Respondent 20–21. The act of “amending,” however, in both ordinary parlance and legal usage, has its own meaning separate and apart from the act of “interpreting.” Compare Black’s Law Dictionary 98 (10th ed. 2014) (defining “amend” as “[t]o change the wording of” or “formally alter . . . by striking out, inserting, or substituting words”), with id., at 943 (defining “interpret” as “[t]o ascertain the meaning and significance of thoughts expressed in words”). One would not normally say that a court “amends” a statute when it interprets its text. So too can an agency “interpret” a regulation without “effectively amend[ing]” the underlying source of law. MBA does not explain how , precisely, an interpretive rule changes the regulation it interprets, and its assertion is impossible to reconcile with the longstanding recognition that interpretive rules do not have the force and effect of law. See Chrysler Corp. , 441 U. S., at 302, n. 31 (citing Attorney General’s Manual on the Administrative Procedure Act 30, n. 3 (1947)); Skidmore v. Swift & Co. ,323 U. S. 134,140 (1944). MBA’s “interpretation-as-amendment” theory is particularly odd in light of the limitations of the Paralyzed Veterans doctrine. Recall that the rule of Paralyzed Veterans applies only when an agency has previously adopted an interpretation of its regulation. Yet in that initial interpretation as much as all that come after, the agency is giving a definite meaning to an ambiguous text—the very act MBA insists requires notice and comment. MBA is unable to say why its arguments regarding revised interpretations should not also extend to the agency’s first interpretation.[ 4 ] Next, MBA argues that the Paralyzed Veterans doctrine is more consistent with this Court’s “functional” approach to interpreting the APA. Relying on Christensen v. Harris County ,529 U. S. 576 (2000), and Shalala v. Guernsey Memorial Hospital ,514 U. S. 87, MBA contends that we have already recognized that an agency may not “avoid notice-and-comment procedures by cloaking its actions in the mantle of mere ‘interpretation.’ ” Brief for Respondent 23–24. Neither of the cases MBA cites supports its argument. Our decision in Christensen did not address a change in agency interpretation. Instead, we there refused to give deference to an agency’s interpretation of an unambiguous regulation, observing that to defer in such a case would allow the agency “to create de facto a new regulation.” 529 U. S., at 588. Put differently, Christensen held that the agency interpretation at issue was substantively invalid because it conflicted with the text of the regulation the agency purported to interpret. That holding is irrelevant to this suit and to the Paralyzed Veterans rule, which assesses whether an agency interpretation is procedurally invalid. As for Guernsey , that case is fully consistent with—indeed, confirms—what the text of the APA makes plain: “Interpretive rules do not require notice and comment.” 514 U. S., at 99. Sidestepping this inconvenient language, MBA instead quotes a portion of the Court’s opinion stating that “APA rulemaking would still be required if [an agency] adopted a new position inconsistent with . . . existing regulations.” Id., at 100. But the statement on which MBA relies is dictum. Worse, it is dictum taken out of context. The “regulations” to which the Court referred were two provisions of the Medicare reimbursement scheme. And it is apparent from the Court’s description of these regulations in Part II of the opinion that they were legislative rules, issued through the notice-and-comment process. See id., at 91–92 (noting that the disputed regulations were codified in the Code of Federal Regulations). Read properly, then, the cited passage from Guernsey merely means that “an agency may only change its interpretation if the revised interpretation is consistent with the underlying regulations.” Brief for Petitioners in No. 13–1052, p. 44. B In the main, MBA attempts to justify the Paralyzed Veterans doctrine on practical and policy grounds. MBA contends that the doctrine reinforces the APA’s goal of “procedural fairness” by preventing agencies from unilaterally and unexpectedly altering their interpretation of important regulations. Brief for Respondent 16. There may be times when an agency’s decision to issue an interpretive rule, rather than a legislative rule, is driven primarily by a desire to skirt notice-and-comment provisions. But regulated entities are not without recourse in such situations. Quite the opposite. The APA contains a variety of constraints on agency decisionmaking—the arbitrary and capricious standard being among the most notable. As we held in Fox Television Stations , and underscore again today, the APA requires an agency to provide more substantial justification when “its new policy rests upon factual findings that contradict those which underlay its prior policy; or when its prior policy has engendered serious reliance interests that must be taken into account. It would be arbitrary and capricious to ignore such matters.” 556 U. S., at 515 (citation omitted); see also id., at 535 (Kennedy, J., concurring in part and concurring in judgment). In addition, Congress is aware that agencies sometimes alter their views in ways that upset settled reliance interests. For that reason, Congress sometimes includes in the statutes it drafts safe-harbor provisions that shelter regulated entities from liability when they act in conformance with previous agency interpretations. The FLSA includes one such provision: As amended by the Portal-to-Portal Act of 1947,29 U. S. C. §251 et seq., the FLSA provides that “no employer shall be subject to any liability” for failing “to pay minimum wages or overtime compensation” if it demonstrates that the “act or omission complained of was in good faith in conformity with and in reliance on any written administrative regulation, order, ruling, approval, or interpretation” of the Administrator of the Department’s Wage and Hour Division, even when the guidance is later “modified or rescinded.” §§259(a), (b)(1). These safe harbors will often protect parties from liability when an agency adopts an interpretation that conflicts with its previous position.[ 5 ] C MBA changes direction in the second half of its brief, contending that if the Court overturns the Paralyzed Veterans rule, the D. C. Circuit’s judgment should nonetheless be affirmed. That is so, MBA says, because the agency interpretation at issue—the 2010 Administrator’s Interpretation—should in fact be classified as a legislative rule. We will not address this argument. From the beginning, the parties litigated this suit on the understanding that the Administrator’s Interpretation was—as its name suggests—an interpretive rule. Indeed, if MBA did not think the Administrator’s Interpretation was an interpretive rule, then its decision to invoke the Paralyzed Veterans doctrine in attacking the rule is passing strange. After all, Paralyzed Veterans applied only to interpretive rules. Consequently, neither the District Court nor the D. C. Circuit considered MBA’s current claim that the Administrator’s Interpretation is actually a legislative rule. Beyond that, and more important still, MBA’s brief in opposition to certiorari did not dispute petitioners’ assertions—in their framing of the question presented and in the substance of their petitions—that the Administrator’s Interpretation is an interpretive rule. Thus, even assuming MBA did not waive the argument below, it has done so in this Court. See this Court’s Rule 15.2; Carcieri v. Salazar ,555 U. S. 379–396 (2009). *  *  * For the foregoing reasons, the judgment of the United States Court of Appeals for the District of Columbia Circuit is reversed. It is so ordered. Notes 1 The latter is the more common phrasing today, and the one we use throughout this opinion. 2 Buck, Henry, and Nickols are petitioners in No. 13–1052 and respondents in No. 13–1041. 3 MBA did not challenge this aspect of the District Court’s decision on appeal. 4 MBA alternatively suggests that interpretive rules have the force of law because an agency’s interpretation of its own regulations may be entitled to deference under Auer v. Robbins ,519 U. S. 452 (1997), and Bowles v. Seminole Rock & Sand Co. ,325 U. S. 410 (1945). Even in cases where an agency’s interpretation receives Auer deference, how-ever, it is the court that ultimately decides whether a given regulation means what the agency says. Moreover, Auer deference is not an inexorable command in all cases. See Christopher v. SmithKline Beecham Corp. , 567 U. S. ___, ___ (2012) (slip op., at 10) ( Auer deference is inappropriate “when the agency’s interpretation is plainly erroneous or inconsistent with the regulation” or “when there is reason to suspect that the agency’s interpretation does not reflect the agency’s fair and considered judgment” (internal quotation marks omitted)); Thomas Jefferson Univ. v. Shalala ,512 U. S. 504,515 (1994) (“[A]n agency’s interpretation of a . . . regulation that conflicts with a prior interpretation is entitled to considerably less deference than a consistently held agency view” (internal quotation marks omitted)). 5 The United States acknowledged at argument that even in situations where a statute does not contain a safe-harbor provision similar to the one included in the FLSA, an agency’s ability to pursue enforcement actions against regulated entities for conduct in conformance with prior agency interpretations may be limited by principles of retroactiv-ity. See Tr. of Oral Arg. 44–45. We have no occasion to consider how such principles might apply here. SUPREME COURT OF THE UNITED STATES _________________ Nos. 13–1041 and 13–1052 _________________ THOMAS E. PEREZ, SECRETARY OF LABOR, et al., PETITIONERS 13–1041 v. MORTGAGE BANKERS ASSOCIATION et al. JEROME NICKOLS, et al., PETITIONERS 13–1052 v. MORTGAGE BANKERS ASSOCIATION on writs of certiorari to the united states court of appeals for the district of columbia circuit [March 9, 2015] Justice Alito, concurring in part and concurring in the judgment. I join the opinion of the Court except for Part III–B. I agree that the doctrine of Paralyzed Veterans of America v. D. C. Arena L. P. , 117 F. 3d 579 (CADC 1997), is incompatible with the Administrative Procedure Act. The creation of that doctrine may have been prompted by an understandable concern about the aggrandizement of the power of administrative agencies as a result of the combined effect of (1) the effective delegation to agencies by Congress of huge swaths of lawmaking authority, (2) the exploitation by agencies of the uncertain boundary between legislative and interpretive rules, and (3) this Court’s cases holding that courts must ordinarily defer to an agency’s interpretation of its own ambiguous regulations. See Bowles v. Seminole Rock & Sand Co. ,325 U. S. 410 (1945). I do not dismiss these concerns, but the Paralyzed Veterans doctrine is not a viable cure for these problems. At least one of the three factors noted above, however, concerns a matter that can be addressed by this Court. The opinions of Justice Scalia and Justice Thomas offer substantial reasons why the Seminole Rock doctrine may be incorrect. See also Christopher v. SmithKline Beecham Corp. , 567 U. S. ___, ___–___ (2012) (slip op., at 13–14) (citing, inter alia , Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612 (1996)). I await a case in which the validity of Seminole Rock may be explored through full briefing and argument. SUPREME COURT OF THE UNITED STATES _________________ Nos. 13–1041 and 13–1052 _________________ THOMAS E. PEREZ, SECRETARY OF LABOR, et al., PETITIONERS 13–1041 v. MORTGAGE BANKERS ASSOCIATION et al. JEROME NICKOLS, et al., PETITIONERS 13–1052 v. MORTGAGE BANKERS ASSOCIATION on writs of certiorari to the united states court of appeals for the district of columbia circuit [March 9, 2015] Justice Scalia, concurring in the judgment. I agree with the Court’s decision, and all of its reasoning demonstrating the incompatibility of the D. C. Circuit’s Paralyzed Veterans holding with the Administrative Procedure Act. Paralyzed Veterans of Am. v. D. C. Arena L.P. , 117 F. 3d 579 (CADC 1997). I do not agree, however, with the Court’s portrayal of the result it produces as a vindication of the balance Congress struck when it “weighed the costs and benefits of placing more rigorous . . . restrictions on the issuance of interpretive rules.” Ante, at 9. That depiction is accurate enough if one looks at this case in isolation. Considered alongside our law of deference to administrative determinations, however, today’s decision produces a balance between power and procedure quite different from the one Congress chose when it enacted the APA. “The [APA] was framed against a background of rapid expansion of the administrative process as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices.” United States v. Morton Salt Co. ,338 U. S. 632,644 (1950). The Act guards against excesses in rulemaking by requiring notice and comment. Before an agency makes a rule, it normally must notify the public of the proposal, invite them to comment on its shortcomings, consider and respond to their arguments, and explain its final decision in a statement of the rule’s basis and purpose.5 U. S. C. §553(b)–(c); ante, at 2. The APA exempts interpretive rules from these requirements. §553(b)(A). But this concession to agencies was meant to be more modest in its effects than it is today. For despite exempting interpretive rules from notice and comment, the Act provides that “the reviewing court shall . . . interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” §706 (emphasis added). The Act thus contemplates that courts, not agencies, will authoritatively resolve ambiguities in statutes and regulations. In sucha regime, the exemption for interpretive rules does not add much to agency power. An agency may use interpretive rules to advise the public by explaining its interpretation of the law. But an agency may not use interpretive rules to bind the public by making law, because it remains the responsibility of the court to decide whether the law means what the agency says it means. Heedless of the original design of the APA, we have developed an elaborate law of deference to agencies’ interpretations of statutes and regulations. Never mentioning §706’s directive that the “reviewing court . . . interpret . . . statutory provisions,” we have held that agencies may authoritatively resolve ambiguities in statutes. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. ,467 U. S. 837–843 (1984). And never mentioning §706’s directive that the “reviewing court . . . determine the meaning or applicability of the terms of an agency action,” we have—relying on a case decided before the APA, Bowles v. Seminole Rock & Sand Co. ,325 U. S. 410 (1945)—held that agencies may authoritatively resolve ambiguities in regulations. Auer v. Robbins ,519 U. S. 452,461 (1997). By supplementing the APA with judge-made doctrines of deference, we have revolutionized the import of interpretive rules’ exemption from notice-and-comment rulemaking. Agencies may now use these rules not just to advise the public, but also to bind them. After all, if an interpretive rule gets deference, the people are bound to obey it on pain of sanction, no less surely than they are bound to obey substantive rules, which are accorded similar deference. Interpretive rules that command deference do have the force of law. The Court’s reasons for resisting this obvious point would not withstand a gentle breeze. Even when an agency’s interpretation gets deference, the Court argues, “it is the court that ultimately decides whether [the text] means what the agency says.” Ante, at 10–11, n. 4. That is not quite so. So long as the agency does not stray beyond the ambiguity in the text being interpreted, deference compels the reviewing court to “decide” that the text means what the agency says. The Court continues that “deference is not an inexorable command in all cases,” because (for example) it does not apply to plainly erroneous interpretations. Ibid. True, but beside the point. Saying all interpretive rules lack force of law because plainly erroneous interpretations do not bind courts is like saying all substantive rules lack force of law because arbitrary and capricious rules do not bind courts. Of course an interpretive rule must meet certain conditions before it gets deference—the interpretation must, for instance, be reason-able—but once it does so it is every bit as binding as a substantive rule. So the point stands: By deferring to interpretive rules, we have allowed agencies to make binding rules unhampered by notice-and-commentprocedures. The problem is bad enough, and perhaps insoluble if Chevron is not to be uprooted, with respect to interpretive rules setting forth agency interpretation of statutes. But an agency’s interpretation of its own regulations is an-other matter. By giving that category of interpretive rules Auer deference, we do more than allow the agency to make binding regulations without notice and comment. Because the agency (not Congress) drafts the substantive rules that are the object of those interpretations, giving them deference allows the agency to control the extent of its notice-and-comment-free domain. To expand this domain, the agency need only write substantive rules morebroadly and vaguely, leaving plenty of gaps to be filled in later, using interpretive rules unchecked by notice and comment. The APA does not remotely contemplate this regime. Still and all, what are we to do about the problem? The Paralyzed Veterans doctrine is a courageous (indeed, brazen) attempt to limit the mischief by requiring an interpretive rule to go through notice and comment if it revises an earlier definitive interpretation of a regulation. That solution is unlawful for the reasons set forth in the Court’s opinion: It contradicts the APA’s unqualified exemption of interpretive rules from notice-and-comment rulemaking. But I think there is another solution—one unavailable to the D. C. Circuit since it involves the overruling of one this Court’s decisions (that being even a greater fault than merely ignoring the APA). As I have described elsewhere, the rule of Chevron , if it did not comport with the APA, at least was in conformity with the long history of judicial review of executive action, where “[s]tatutory ambiguities . . . were left to reasonable resolution by the Executive.” United States v. Mead Corp. ,533 U. S. 218,243 (2001) (Scalia, J., dissenting). I am unaware of any such history justifying deference to agency interpretations of its own regulations. And there are weighty reasons to deny a lawgiver the power to write ambiguous laws and then be the judge of what the ambiguity means. See Decker v. Northwest Environmental Defense Center , 568 U. S. ___, ___–___ (2013) (Scalia, J., concurring in part and dissenting in part) (slip op., at 1–7). I would therefore restore the balance originally struck by the APA with respect to an agency’s interpretation of its own regulations, not by rewriting the Act in order to make up for Auer , but by abandoning Auer and applying the Act as written. The agency is free to interpret its own regulations with or without notice and comment; but courts will decide—with no deference to the agency—whether that interpretation is correct. SUPREME COURT OF THE UNITED STATES _________________ Nos. 13–1041 and 13–1052 _________________ THOMAS E. PEREZ, SECRETARY OF LABOR, et al., PETITIONERS 13–1041 v. MORTGAGE BANKERS ASSOCIATION et al. JEROME NICKOLS, et al., PETITIONERS 13–1052 v. MORTGAGE BANKERS ASSOCIATION on writs of certiorari to the united states court of appeals for the district of columbia circuit [March 9, 2015] Justice Thomas, concurring in the judgment. I concur in the Court’s holding that the doctrine first announced in Paralyzed Veterans of America v. D. C. Arena L. P. , 117 F. 3d 579 (CADC 1997), is inconsistent with the Administrative Procedure Act (APA),5 U. S. C. §551 et seq. , and must be rejected. An agency’s substantial revision of its interpretation of a regulation does not amount to an “amendment” of the regulation as that word is used in the statute. I write separately because these cases call into question the legitimacy of our precedents requiring deference to administrative interpretations of regulations. That line of precedents, beginning with Bowles v. Seminole Rock & Sand Co. ,325 U. S. 410 (1945), requires judges to defer to agency interpretations of regulations, thus, as happened in these cases, giving legal effect to the interpretations rather than the regulations themselves. Because this doctrine effects a transfer of the judicial power to an executive agency, it raises constitutional concerns. This line of precedents undermines our obligation to provide a judicial check on the other branches, and it subjects regulated parties to precisely the abuses that the Framers sought to prevent. I The doctrine of deference to an agency’s interpretation of regulations is usually traced back to this Court’s decision in Seminole Rock, supra , which involved the interpretation of a war-time price control regulation, id., at 411. Along with a general price freeze, the Administrator of the Office of Price Administration had promulgated specialized regulations governing the maximum price for different commodities. Id., at 413. When the Administrator brought an enforcement action against a manufacturer of crushed stone, the manufacturer challenged the Administrator’s interpretation of his regulations. The lower courts agreed with the manufacturer’s interpretation, id., at 412–413, but this Court reversed. In setting out the approach it would apply to the case, the Court announced—without citation or explanation—that an administrative interpretation of an ambiguous regulation was entitled to “controlling weight”: “Since this involves an interpretation of an administrative regulation a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt. The intention of Congress or the principles of the Constitution in some situations may be relevant in the first instance in choosing between various constructions. But the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.” Id., at 413–414. The Court then concluded that the rule “clearly” favored the Administrator’s interpretation, rendering this discussion dictum. Id., at 415–417. From this unsupported rule developed a doctrine of deference that has taken on a life of its own.[ 1 ] It has been broadly applied to regulations issued by agencies across a broad spectrum of subjects. See, e.g., Robertson v. Methow Valley Citizens Council ,490 U. S. 332–359 (1989) (forests); Ehlert v. United States ,402 U. S. 99–105 (1971) (Selective Service); INS v. Stanisic ,395 U. S. 62,72 (1969) (deportation); Udall v. Tallman ,380 U. S. 1–17 (1965) (oil and gas leases). It has even been applied to an agency’s interpretation of another agency’s regulations. See Pauley v. BethEnergy Mines, Inc. ,501 U. S. 680–699 (1991). And, it has been applied to an agency interpretation that was inconsistent with a previous interpretation of the same regulation. See Long Island Care at Home, Ltd. v. Coke ,551 U. S. 158–171 (2007). It has been applied to formal and informal interpretations alike, including those taken during litigation. See Auer v. Robbins ,519 U. S. 452,462 (1997). Its reasoning has also been extended outside the context of traditional agency regulations into the realm of criminal sentencing. See Stinson v. United States ,508 U. S. 36–45 (1993) (concluding that the Sentencing Commission’s commentary on its Guidelines is analogous to an agency interpretation of its own regulations, entitled to Seminole Rock deference). The Court has even applied the doctrine to an agency interpretation of a regulation cast in such vague aspirational terms as to have no substantive content. See Thomas Jefferson Univ. v. Shalala ,512 U. S. 504–513 (1994); see also id., at 518 (Thomas, J., dissenting). On this steady march toward deference, the Court only once expressly declined to apply Seminole Rock deference on the ground that the agency’s interpretation was plainly erroneous.[ 2 ] In that case, we were faced with the predict-able consequence of this line of precedents: An agency sought deference to an opinion letter that interpreted a permissive regulation as mandatory. See Christensen v. Harris County ,529 U. S. 576,588 (2000). We rejected that request for deference as an effort, “under the guise of interpreting a regulation, to create de facto a new regulation.” Ibid. This narrow limit on the broad deference given the agency interpretations, though sound, could not save a doctrine that was constitutionally infirm from the start. Seminole Rock was constitutionally suspect from the start, and this Court’s repeated extensions of it have only magnified the effects and the attendant concerns. II We have not always been vigilant about protecting the structure of our Constitution. Although this Court has repeatedly invoked the “separation of powers” and “the constitutional system of checks and balances” as core principles of our constitutional design, essential to the protection of individual liberty, see, e.g., Stern v. Marshall , 564 U. S. ___, ___–___ (2011) (slip op., at 16–17) (internal quotation marks omitted), it has also endorsed a “more pragmatic, flexible approach” to that design when it has seemed more convenient to permit the powers to be mixed, see, e.g., Nixon v. Administrator of General Services ,433 U. S. 425,442 (1977). As the history shows, that approach runs the risk of compromising our constitutionalstructure. A The Constitution’s particular blend of separated powers and checks and balances was informed by centuries of political thought and experiences. See M. Vile, Constitutionalism and the Separation of Powers 38, 168–169 (2d ed. 1998) (Vile). Though the theories of the separation of powers and checks and balances have roots in the ancient world, events of the 17th and 18th centuries played a crucial role in their development and informed the men who crafted and ratified the Constitution. Over a century before our War of Independence, the English Civil War catapulted the theory of the separation of powers to prominence. As political theorists of the day witnessed the conflict between the King and Parliament, and the dangers of tyrannical government posed by each, they began to call for a clear division of authority between the two. Id. , at 44–45, 48–49. A 1648 work titled The Royalist’s Defence offered perhaps the first extended account of the theory of the separation of powers: “[W]hilst the Supreamacy , the Power to Judge the Law, and Authority to make new Lawes, are kept in severall hands , the known Law is preserved , but united, it is vanished , instantly thereupon, and Arbytrary and Tyrannicall power is introduced.” The Royalist’s Defence 80 (1648) (italics in original). John Locke and Baron de Montesquieu endorsed and expanded on this concept. See Vile 63–64. They agreed with the general theory set forth in The Royalist’s Defence, emphasizing the need for a separation of powers to protect individual liberty. J. Locke, Second Treatise of Civil Government §§143–144, p. 72 (J. Gough ed. 1947); Montesquieu, Spirit of the Laws bk. XI, ch. 6, pp. 151–152 (O. Piest ed., T. Nugent transl. 1949). But they also advocated a system of checks and balances to reinforce that separation. Vile 72–73, 102. For instance, they agreed that the executive should have the power to assemble and dismiss the legislature and to consent to laws passed by it. See Locke, supra , §§151, 156, at 75, 77–78; Montesquieu, Spirit of the Laws, at 157, 159. Montesquieu warned that “power should be a check to power” lest the legislature “arrogate to itself what authority it pleased . . . [and] soon destroy all the other powers.” Id. , at 150, 157. The experience of the States during the period between the War of Independence and the ratification of the Constitution confirmed the wisdom of combining these theories. Although many State Constitutions of the time included language unequivocally endorsing the separation of powers, they did not secure that separation with checks and balances, Vile 147, and actively placed traditional executive and judicial functions in the legislature, G. Wood, The Creation of the American Republic 1776–1787, pp. 155–156 (1969). Under these arrangements, state legislatures arrogated power to themselves and began to confiscate property, approve the printing of paper money, and suspend the ordinary means for the recovery of debts. Id. , at 403–409.[ 3 ] When the Framers met for the Constitutional Convention, they understood the need for greater checks and balances to reinforce the separation of powers. As Madison remarked, “experience has taught us a distrust” of the separation of powers alone as “a sufficient security to each [branch] [against] encroachments of the others.” 2 Re-cords of the Federal Convention of 1787, p. 77 (M. Farrand rev. 1966). “[I]t is necessary to introduce such a balance of powers and interests, as will guarantee the provisions on paper.” Ibid. The Framers thus separated the three main powers of Government—legislative, executive, and judicial—into the three branches created by Articles I, II, and III. But they also created checks and balances to reinforce that separation. For example, they gave Congress specific enumerated powers to enact legislation, Art. I, §8, but gave the President the power to veto that legislation, subject to congressional override by a supermajority vote, Art. I, §7, cls. 2, 3. They gave the President the power to appoint principal officers of the United States, but gave the Senate the power to give advice and consent to those appointments. Art. II, §2, cl. 2. They gave the House and Senate the power to agree to adjourn for more than three days, Art. I, §5, cl. 4, but gave the President the power, “in Case of Disagreement between them,” to adjourn the Congress “to such Time as he shall think proper.” Art. II, §3, cl. 3. During the ratification debates, Madison argued that this structure represented “the great security” for liberty in the Constitution. The Federalist No. 51, p. 321 (C. Rossiter ed. 1961) (J. Madison). To the Framers, the separation of powers and checks and balances were more than just theories. They were practical and real protections for individual liberty in the new Constitution. See Mistretta v. United States ,488 U. S. 361,426 (1989) (Scalia, J., dissenting) (“[The Constitution] is a prescribed structure, a framework, for the conduct of government. In designing that structure, the Framers themselves considered how much commingling [of governmental powers] was, in the generality of things, acceptable, and set forth their conclusions in the document”). The Judiciary—no less than the other two branches—has an obligation to guard against deviations from those principles. The Seminole Rock line of precedent is one such deviation. B Seminole Rock raises two related constitutional concerns. It represents a transfer of judicial power to the Executive Branch, and it amounts to an erosion of the judicial obligation to serve as a “check” on the political branches. 1 When a party properly brings a case or controversy to an Article III court, that court is called upon to exercise the “judicial Power of the United States.” Art. III, §1. For the reasons I explain in this section, the judicial power, as originally understood, requires a court to exercise its independent judgment in interpreting and expounding upon the laws. Those who ratified the Constitution knew that legal texts would often contain ambiguities. See generally Molot, The Judicial Perspective in the Administrative State: Reconciling Modern Doctrines of Deference with the Judiciary’s Structural Role, 53 Stan. L. Rev. 1, 20–21, and n. 66 (2000); Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519, 525–526 (2003). As James Madison explained, “All new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal . . . .” The Federalist No. 37,at 229. The judicial power was understood to include the power to resolve these ambiguities over time. See ibid. Alexander Hamilton lauded this power, arguing that “[t]he interpretation of the laws is the proper and peculiar province of the courts.” Id. , No. 78, at 467. It is undoubtedly true that the other branches of Government have the authority and obligation to interpret the law, but only the judicial interpretation would be considered authoritative in a judicial proceeding. Vile 360. Although the Federalists and Anti-Federalists engaged in a public debate about this interpretive power, that debate centered on the dangers inherent in the power, not on its allocation under the Constitution. See, e.g., Letters from The Federal Farmer XV (Jan. 18, 1788), in 2 The Complete Anti-Federalist 315–316 (H. Storing ed. 1981) (arguing that the interpretive power made the Judiciary the most dangerous branch). Writing as “Brutus,” one leading anti-Federalist argued that judges “w[ould] not confine themselves to any fixed or established rules, but w[ould] determine, according to what appears to them, the reason and spirit of the constitution.” Essays of Brutus (Jan. 31, 1788), in 2 id. , at 420. The Federalists rejected these arguments, assuring the public that judges would be guided “by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.” The Federalist No. 78, at 471 (A. Hamilton). Those rules included principles of interpretation that had been set out by jurists for centuries. See, e.g. , 2 S. von Pufendorf, De Officio Hominis Et Civis Juxta Legem Naturalem Libri Duo 83–86 (1682) (F. Moore transl. 1927); see also 1 W. Blackstone, Commentaries on the Laws of England 59–61 (1765). One of the key elements of the Federalists’ arguments in support of the allocation of power to make binding interpretations of the law was that Article III judges would exercise independent judgment. Although “judicial independence” is often discussed in terms of independence from external threats, the Framers understood the concept to also require independence from the “internal threat” of “human will.” P. Hamburger, Law and Judicial Duty 507, 508 (2008); see also The Federalist No. 78, at 465 (A. Hamilton) (“The judiciary . . . may truly be said to have neither FORCE nor WILL but merely judgment . . . ”). Independent judgment required judges to decide cases in accordance with the law of the land, not in accordance with pressures placed upon them through either internal or external sources. Internal sources might include personal biases, while external sources might include pressure from the political branches, the public, or otherinterested parties. See Hamburger, supra, at 508–521. The Framers made several key decisions at the Convention with these pressures in mind. For example, they rejected proposals to include a federal council of revision after several participants at the Convention expressed concern that judicial involvement in such a council would foster internal biases. Rufus King of Maryland, for example, asserted that “the Judges ought to be able to expound the law as it should come before them, free from the bias of having participated in its formation.” 1 Records of the Federal Convention of 1787, at 98. Alexander Hamilton repeated these concerns in The Federalist, arguing that “the judges, who are to be interpreters of the law, might receive an improper bias from having given a previous opinion in their revisionary capacities” or “be induced to embark too far in the political views of [the Executive]” from too much association with him. The Federalist No. 73, at 446; see also Hamburger, supra, at 508–512. The Framers also created structural protections in the Constitution to free judges from external influences. They provided, for example, that judges should “hold their Offices during good Behaviour” and receive “a Compensation, which shall not be diminished during their Continuance in Office.” Art. III, §1. Hamilton noted that such unequivocal language had been shown necessary by the experience of the States, where similar state constitutional protections for judges had not been “sufficiently definiteto preclude legislative evasions” of the separation of the judicial power. The Federalist No. 79, at 472. Because “power over a man’s subsistence amounts to a power over his will,” he argued that Article III’s structural protections would help ensure that judges fulfilled their constitutional role. Ibid. (emphasis deleted). The Framers made the opposite choice for legislators and the Executive. Instead of insulating them from external pressures, the Constitution tied them to those pressures. It provided for election of Members of the House of Representatives every two years, Art. I, §2, cl. 1; and selection of Members of the Senate every six years, Art. I, §3, cl. 1. It also provided for the President to be subject to election every four years. Art. II, §1, cl. 1. “The President is [thus] directly dependent on the people, and since there is only one President, he is responsible. The people know whom to blame . . . .” See Morrison v. Olson ,487 U. S. 654,729 (1988) (Scalia, J., dissenting). To preserve that accountability, we have held that executive officers must be subject to removal by the President to ensure account-ability within the Executive Branch. See Free Enterprise Fund v. Public Company Accounting Oversight Bd. ,561 U. S. 477,495 (2010); see also Morrison , supra , at 709 (opinion of Scalia, J.) (“It is not for us to determine, and we have never presumed to determine, how much of the purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are”). Given these structural distinctions between the branches, it is no surprise that judicial interpretations are defini-tive in cases and controversies before the courts. Courts act as “an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” Federalist No. 78, at 467 (A. Hamilton). The Legislature and Executive may be swayed by popular sentiment to abandon the strictures of the Constitution or other rules of law. But the Judiciary, insulated from both internal and external sources of bias, is duty bound to exercise independent judgment in applying the law. Interpreting agency regulations calls for that exercise of independent judgment. Substantive regulations have the force and effect of law. See, e.g., United States v. Mead Corp. ,533 U. S. 218–232 (2001).[ 4 ] Agencies and private parties alike can use these regulations in proceedings against regulated parties. See, e.g. , Christopher v. SmithKline Beecham Corp. , 567 U. S. ___, ___–___ (2012) (slip op., at 6–7) (private party relying on Department of Labor regulations); FCC v. Fox Television Stations, Inc. , 567 U. S. ___, ___ (2012) (slip op., at 6) (agency issuing notices of liability under regulations). Just as it is critical for judges to exercise independent judgment in applying statutes, it is critical for judges to exercise independent judgment in determining that a regulation properly covers the conduct of regulated parties. Defining the legal meaning of the regulation is one aspect of that determination. Seminole Rock deference, however, precludes judges from independently determining that meaning. Rather than judges’ applying recognized tools of interpretation to determine the best meaning of a regulation, this doctrine demands that courts accord “controlling weight” to the agency interpretation of a regulation, subject only to the narrow exception for interpretations that are plainly erroneous or inconsistent with the regulation. That deference amounts to a transfer of the judge’s exercise of interpretive judgment to the agency. See 1 S. Johnson, Dictionary of the English Language 499 (4th ed. 1773) (defining “[d]efer” as “to leave to another’s judgment”). But the agency, as part of the Executive Branch, lacks the structural protections for independent judgment adopted by the Framers, including the life tenure and salary protections of Article III. Because the agency is thus not properly constituted to exercise the judicial power under the Constitution, the transfer of interpretive judgment raises serious separation-of-powers concerns. 2 Seminole Rock is constitutionally questionable for an additional reason: It undermines the judicial “check” on the political branches. Unlike the Legislative and Executive Branches, each of which possesses several political checks on the other, the Judiciary has one primary check on the excesses of political branches. That check is the enforcement of the rule of law through the exercise of judicial power. Judges have long recognized their responsibility to apply the law, even if they did not conceive of it as a “check” on political power. During the 17th century, for example, King James I sought to pressure Chief Justice Coke to affirm the lawfulness of his efforts to raise revenue without the participation of Parliament. Hamburger, Law and Judicial Duty, at 200–201. Coke sought time to confer with his fellow jurists to “make an advised answer according to law and reason.” Case of Proclamations , 12 Co. Rep. 74, 75, 77 Eng. Rep. 1352, 1353 (K. B. 1611). But the King’s representative, Lord Chancellor Ellesmere, responded that “he would advise the Judges to maintain the power and prerogative of the King” and suggested that, “in cases in which there is no authority and precedent,” the judiciary should “leave it to the King to order in it according to his wisdom.” Ibid . Coke famously responded, “[T]he King cannot change any part of the common law, nor create any offence by his proclamation, which was not an offence before, without Parliament.” Ibid. When James I later attempted to do just that, Coke declared the proclamations “ ‘utterly against Law and reason, and for that void.’ ” Hamburger, supra , at 202. The Framers expected Article III judges to engage in similar efforts, by applying the law as a “check” on the excesses of both the Legislative and Executive Branches. See, e.g., 3 J. Elliot, Debates in the Several Conventions on the Adoption of the Federal Constitution 553 (1863) (J. Marshall) (“If [the Government of the United States] make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. . . . They would declare it void”); see also Vile 174. The Framers “contemplated [the Constitution], as a rule for the government of courts , as well as of the legislature.” Marbury v. Madison , 1 Cranch 137, 179–180 (1803). Thus, if a case involved a conflict between a law and the Constitution, judges would have a duty “to adhere to the latter and disregard the former.” The Federalist No. 78, at 468 (A. Hamilton); see also Marbury , 1 Cranch, at 178. Similarly, if a case involved an executive effort to extend a law beyond its meaning, judges would have a duty to adhere to the law that had been properly promulgated under the Constitution. Cf. id. , at 157–158 (considering the scope of the President’s constitutional power of appointment). As this Court said long ago, “[T]he particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts , as well as other departments, are bound by that instrument.” Id., at 180. Article III judges cannot opt out of exercising their check. As we have long recognized, “[t]he Judiciary has a responsibility to decide cases properly before it, even those it ‘would gladly avoid.’ ” Zivotofsky v. Clinton , 566 U. S. ___, ___ (2012) (slip op., at 5) (quoting Cohens v. Virginia , 6 Wheat. 264, 404 (1821)). This responsibility applies not only to constitutional challenges to particular statutes, see, e.g., Shelby County v. Holder , 570 U. S. ___, ___ (2013) (slip op., at 2), including those based on the separation of powers, Free Enterprise Fund , 561 U. S., at 501–502, but also to more routine questions about the best interpretation of statutes, see, e.g., Whitfield v. United States , 574 U. S. ___, ___–___ (2015) (slip op., at 2–3), or the compatibility of agency actions with enabling statutes, Utility Air Regulatory Group v. EPA , 573 U. S. ___, ___ (2014) (slip op., at 10). In each case, the Judiciary is called upon to exercise its independent judgment and apply the law. But we have not consistently exercised the judicial check with respect to administrative agencies. Even though regulated parties have repeatedly challenged agency interpretations as inconsistent with existing regulations, we have just as repeatedly declined to exercise independent judgment as to those claims. Instead, we have deferred to the executive agency that both promulgated the regulations and enforced them. Although an agency’s interpretation of a regulation might be the best interpretation, it also might not. When courts refuse even to decide what the best interpretation is under the law, they abandon the judicial check. That abandonment permits precisely the accumulation of governmental powers that the Framers warned against. See The Federalist No. 47, at 302 (J. Madison). C This accumulation of governmental powers allows agencies to change the meaning of regulations at their discretion and without any advance notice to the parties. It is precisely this problem that the United States Court of Appeals for the D. C. Circuit attempted to address by requiring agencies to undertake notice and comment procedures before substantially revising definitive interpretations of regulations. Paralyzed Veterans, supra . Though legally erroneous, the Court of Appeals’ reasoning was practically sound. When courts give “controlling weight” to an administrative interpretation of a regulation—instead of to the best interpretation of it—they effectively give the interpretation—and not the regulation—the force and effect of law. To regulated parties, the new interpretation might as well be a new regulation. These cases provide a classic example of the problem. The Fair Labor Standards Act of 1938 establishes federal minimum wage and overtime requirements, but exempts from these requirements “any employee engaged in a bona fide executive, administrative, or professional capac-ity . . . , or in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary).”29 U. S. C. §213(a)(1). The Department of Labor has accordingly promulgated regulations providing that “an employee whose primary duty is selling financial products does not qualify for the administrative exemption.” 29 CFR §541.203(b) (2015). Unsure whether certain mortgage-loan officers qualified as employees whose primary duty is selling financial products, the Mortgage Bankers Association asked the Department of Labor for advice. In 2006, the Department concluded that the officers are not employees whose primary duty is selling financial products. But in 2010, the Department reversed course, concluding exactly the opposite. If courts accord “controlling weight” to both the 2006 and 2010 interpretations, the regulated entities are subject to two opposite legal rules imposed under the same regulation. This practice turns on its head the principle that the United States is “a government of laws, and not of men.” Marbury , supra , at 163. Regulations provide notice to regulated parties in only a limited sense because their meaning will ultimately be determined by agencies rather than by the “strict rules and precedents” to which Alexander Hamilton once referred.[ 5 ] III Although this Court offered no theoretical justifica-tion for Seminole Rock deference when announcing it, sev-eral justifications have been proposed since. None is persuasive. A Probably the most oft-recited justification for Seminole Rock deference is that of agency expertise in administering technical statutory schemes. Under this justification, deference to administrative agencies is necessary when a “regulation concerns ‘a complex and highly technical regulatory program’ in which the identification and classification of relevant ‘criteria necessarily require significant expertise and entail the exercise of judgment grounded in policy concerns.’ ” Thomas Jefferson Univ., 512 U. S., at 512. This defense of Seminole Rock deference misidentifies the relevant inquiry. The proper question faced by courts in interpreting a regulation is not what the best policy choice might be, but what the regulation means. Because this Court has concluded that “substantive agency regulations have the ‘force and effect of law,’ ” Chrysler Corp. v. Brown ,441 U. S. 281,295 (1979), such regulations should be interpreted like any other law. Thus, we should “assum[e] that the ordinary meaning of the regulation’s language expresses” its purpose and enforce it “according to its terms.” See Hardt v. Reliance Standard Life Ins. Co. ,560 U. S. 242,251 (2010) (internal quotation marks omitted). Judges are at least as well suited as administrative agencies to engage in this task. Cf. Marbury , 1 Cranch, at 177 (“It is emphatically the province and duty of the judicial department to say what the law is”). Indeed, judges are frequently called upon to interpret the meaning of legal texts and are able to do so even when those texts involve technical language. See, e.g., Barber v. Gonzales ,347 U. S. 637–643 (1954) (interpreting deportation statute according to technical meaning). Fundamentally, the argument about agency expertise is less about the expertise of agencies in interpreting language than it is about the wisdom of according agencies broad flexibility to administer statutory schemes.[ 6 ] “But policy arguments supporting even useful ‘political inventions’ are subject to the demands of the Constitution which defines powers and . . . sets out . . . how those powers are to be exercised.” INS v. Chadha ,462 U. S. 919,945 (1983). Even in the face of a perceived necessity, the Constitution protects us from ourselves. New York v. United States ,505 U. S. 144–188 (1992). B Another oft-recited justification for Seminole Rock deference is that agencies are better situated to define the original intent behind their regulations. See Martin v. Occupational Safety and Health Review Comm’n ,499 U. S. 144–153 (1991). Under this justification, “[b]ecause the Secretary [of Labor] promulgates th[e] standards, the Secretary is in a better position . . . to reconstruct the purpose of the regulations in question.” Id. , at 152. This justification rings hollow. This Court has afforded Seminole Rock deference to agency interpretations even when the agency was not the original drafter. See Pauley , 501 U. S., at 696–698 (applying Seminole Rock deference to one agency’s interpretation of another agency’s regulations because Congress had delegated authority to both to administer the program). It has likewise granted Seminole Rock deference to agency interpretations that are inconsistent with interpretations adopted closer in time to the promulgation of the regulations. See, e.g., Long Island Care at Home , 551 U. S., at 170–171. Even if the scope of Seminole Rock deference more closely matched the original-drafter justification, it would still fail. It is the text of the regulations that have the force and effect of law, not the agency’s intent. “Citizens arrange their affairs not on the basis of their legislators’ unexpressed intent, but on the basis of the law as it is written and promulgated.” Zuni Public School Dist. No. 89 v. Department of Education ,550 U. S. 81,119 (2007) (Scalia, J., dissenting). Cf. Wyeth v. Levine ,555 U. S. 555–587 (2009) (Thomas, J., concurring in judgment) (noting that only “federal standards . . . that are set forth in, or necessarily follow from, the statutory text that was produced through the constitutionally required bicameral and presentment procedures”—not Congress’ “purposes and objectives”—can become the “law of the land”). “To be governed by legislated text rather than legislators’ intentions is what it means to be ‘a Government of laws, not of men.’ ” Zuni Public School Dist. No. 89 , supra , at 119 (Scalia, J., dissenting). Only the text of a regulation goes through the procedures established by Congress for agency rulemaking. And it is that text on which the public is entitled to rely. For the same reasons that we should not accord controlling weight to postenactment expressions of intent by individual Members of Congress, see Sullivan v. Finkelstein ,496 U. S. 617–632 (1990) (Scalia, J., concurring in part), we should not accord controlling weight to expressions of intent by administrators ofagencies. C A third asserted justification for Seminole Rock deference is that Congress has delegated to agencies the authority to interpret their own regulations. See, e.g., Martin , 499 U. S., at 151. The theory is that, “[b]ecause applying an agency’s regulation to complex or changing circumstances calls upon the agency’s unique expertise and policymaking prerogatives, . . . the power authoritatively to interpret its own regulations is a component of the agency’s delegated lawmaking powers.” Ibid. This justification fails because Congress lacks authority to delegate the power. As we have explained in an analogous context, “[t]he structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess.” Bowsher v. Synar ,478 U. S. 714,726 (1986). Similarly, the Constitution does not empower Congress to issue a judicially binding interpretation of the Constitution or its laws. Lacking the power itself, it cannot delegate that power to an agency. To hold otherwise would be to vitiate the separation of powers and ignore the “sense of a sharp necessity to separate the legislative from the judicial power . . . [that] triumphed among the Framers of the new Federal Constitution.” Plaut v. Spendthrift Farm, Inc. ,514 U. S. 211,221 (1995). As this Court has explained, the “essential balance” of the Constitution is that the Legislature is “possessed of power to ‘prescrib[e] the rules by which the duties and rights of every citizen are to be regulated,’ but the power of ‘[t]he interpretation of the laws’ [is] ‘the proper and peculiar province of the courts.’ ” Id., at 222 (citation omitted; third brackets added). Although the Constitution imposes a duty on all three branches to interpret the laws within their own spheres, the power to create legally binding interpretations rests with the Judiciary. See Marbury , 1 Cranch, at 177, 179–180. D A final proposed justification for Seminole Rock deference is that too much oversight of administrative matters would imperil the “independence and esteem” of judges. See, e.g., Charles Evans Hughes, Speech before the Elmira Chamber of Commerce, May 3, 1907, in Addresses of Charles Evans Hughes, 1906–1916, p. 185 (2d ed. 1916). The argument goes that questions of administration are those which “lie close to the public impatience,” id., at 186, and thus the courts’ resolution of such questions could “expose them to the fire of public criticism,” id., at 187. But this argument, which boils down to a policy judgment of questionable validity, cannot vitiate the constitutional allocation of powers. The Judicial Branch is separate from the political branches for a reason: It has the obligation to apply the law to cases and controversies that come before it, and concerns about the popular esteem of individual judges—or even the Judiciary as a whole—have no place in that analysis. Our system of Government could not long survive absent adherence to the written Constitution that formed it. *  *  * Although on the surface these cases require only a straightforward application of the APA, closer scrutiny reveals serious constitutional questions lurking beneath. I have “acknowledge[d] the importance of stare decisis to the stability of our Nation’s legal system.” “But stare decisis is only an ‘adjunct’ of our duty as judges to decide by our best lights what the Constitution means.” McDonald v. Chicago ,561 U. S. 742,812 (2010) (Thomas, J., concurring inpart and concurring in judgment) (citation omitted). By my best lights, the entire line of precedent beginning with Seminole Rock raises serious constitutional questions and should be reconsidered in an appropriate case. Notes 1 Although the Court has appeared to treat our agency deference regimes as precedents entitled to stare decisis effect, some scholars have noted that they might instead be classified as interpretive tools. See, e.g., C. Nelson, Statutory Interpretation 701 (2011). Such tools might not be entitled to such effect. Because resolution of that issue is not necessary to my conclusion here, I leave it for another day. 2 The Court has also twice expressly found Seminole Rock deference inapplicable for other reasons. Christopher v. SmithKline Beecham Corp. , 567 U. S. ___, ___–___ (2012) (slip op., at 13–14) (“[W]here, as here, an agency’s announcement of its interpretation is preceded by a very lengthy period of conspicuous inaction, the potential for unfair surprise is acute. . . . [W]hatever the general merits of Auer deference, it is unwarranted here”); Gonzales v. Oregon ,546 U. S. 243–257 (2006) (“In our view Auer and the standard of deference it accords to an agency are inapplicable here. . . . The language the Interpretive Rule addresses comes from Congress, not the Attorney General, and the near equivalence of the statute and regulation belies the Government’s argument for Auer deference”). 3 The practices of the time can perhaps best be summarized by the following commentary from a contemporaneous magazine: “[S]o many legal infractions of sacred right—so many public invasions of private property—so many wanton abuses of legislative powers!” Giles Hickory (Noah Webster), Government, The American Magazine, Mar. 1788, p. 206. 4 These cases also raise constitutional questions about the distinction in administrative law between “substantive” (or “legislative”) and interpretative rules. The United States Court of Appeals for the D. C. Circuit has defined a legislative rule as “[a]n agency action that purports to impose legally binding obligations or prohibitions on regulated parties” and an interpretative rule as “[a]n agency action that merely interprets a prior statute or regulation, and does not itself purport to impose new obligations or prohibitions or requirements on regulated parties.” National Mining Assn. v. McCarthy , 758 F. 3d 243, 251–252 (2014). And our precedents make clear that administrative agencies must exercise only executive power in promulgating these rules. Arlington v. FCC , 569 U. S. ___, ___, n. 4 (2013) (slip op., at 13, n. 4). But while it is easy to see the promulgation of interpretative rules as an “executive” function—executive officials necessarily interpret the laws they enforce—it is difficult to see what authority the President has “to impose legally binding obligations or prohibitions on regulated parties.” That definition suggests something much closer to the legislative power, which our Constitution does not permit the Executive to exercise in this manner. Because these troubling questions are not directly implicated here, I leave them for another case. See Department of Transportation v. Association of American Railroads , ante, at 19–22 (Thomas, J., concurring in judgment). 5 The notice problem is exacerbated by agency departures from the procedures established for rulemaking in the APA. Although almost all rulemaking is today accomplished through informal notice and comment, the APA actually contemplated a much more formal process for most rulemaking. To that end, it provided for elaborate trial-like hearings in which proponents of particular rules would introduce evidence and bear the burden of proof in support of those proposed rules. See5 U. S. C. §556. 6 Many decisions of this Court invoke agency expertise as a justification for deference. This argument has its root in the support for administrative agencies that developed during the Progressive Era in this country. The Era was marked by a move from the individualism that had long characterized American society to the concept of a society organized for collective action. See A. Link, Woodrow Wilson and the Progressive Era 1910–1917, p. 1 (1954). That move also reflected a deep disdain for the theory of popular sovereignty. As Woodrow Wilson wrote before he attained the presidency, “Our peculiar American difficulty in organizing administration is not the danger of losing liberty, but the danger of not being able or willing to separate its essentials from its accidents. Our success is made doubtful by that besetting error of ours, the error of trying to do too much by vote.” Wilson, The Study of Administration, 2 Pol. Sci. Q. 197, 214 (1887). In President Wilson’s view, public criticism would be beneficial in the formation of overall policy, but “a clumsy nuisance” in the daily life of Government—“a rustic handling delicate machinery.” Id., at 215. Reflecting this belief that bureaucrats might more effectively govern the country than the American people, the progressives ushered in significant expansions of the administrative state, ultimately culminating in the New Deal. See generally M. Keller, Regulating a New Economy: Public Policy and Economic Change in America, 1900–1933 (1990).

The Supreme Court ruled that federal agencies do not need to follow notice-and-comment rulemaking procedures when issuing a new interpretation of a regulation, departing from the D.C. Circuit's previous ruling in Paralyzed Veterans of Am. v. D.C. Arena L.P.

Free Speech

Paris Adult Theatre I v. Slaton

https://supreme.justia.com/cases/federal/us/413/49/

U.S. Supreme Court Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) Paris Adult Theatre I v. Slaton No. 71-1051 Argued October 19, 1972 Decided June 21, 1973 413 U.S. 49 CERTIORARI TO THE SUPREME COURT OF GEORGIA Syllabus Respondents sued under Georgia civil law to enjoin the exhibiting by petitioners of two allegedly obscene films. There was no prior restraint. In a jury-waived trial, the trial court (which did not require "expert" affirmative evidence of obscenity) viewed the films and thereafter dismissed the complaints on the ground that the display of the films in commercial theaters to consenting adult audiences (reasonable precautions having been taken to exclude minors) was "constitutionally permissible." The Georgia Supreme Court reversed, holding that the films constituted "hard core" pornography not within the protection of the First Amendment. Held: 1. Obscene material is not speech entitled to First Amendment protection. Miller v. California, ante p. 413 U. S. 15 ; Roth v. United States, 354 U. S. 476 . P. 413 U. S. 54 . 2. The Georgia civil procedure followed here (assuming use of a constitutionally acceptable standard for determining what is unprotected by the First Amendment) comported with the standards of Teitel Film Corp. v. Cusack, 390 U. S. 139 ; Freedman v. Maryland, 380 U. S. 51 ; and Kingsley Books, Inc. v. Brown, 354 U. S. 436 . Pp. 413 U. S. 54 -55. 3. It was not error to fail to require expert affirmative evidence of the films' obscenity, since the films (which were the best evidence of what they depicted) were themselves placed in evidence. P. 413 U. S. 56 . 4. States have a legitimate interest in regulating commerce in obscene material and its exhibition in places of public accommodation, including "adult" theaters. Pp. 413 U. S. 57 -69. (a) There is a proper state concern with safeguarding against crime and the other arguably ill effects of obscenity by prohibiting the public or commercial exhibition of obscene material. Though conclusive proof is lacking, the States may reasonably determine that a nexus does or might exist between antisocial behavior and obscene material, just as States have acted on unprovable assumptions in other areas of public control. Pp. 413 U. S. 57 -63. (b) Though States are free to adopt a laissez-faire policy toward commercialized obscenity, they are not constitutionally obliged to do so. P. 413 U. S. 64 . Page 413 U. S. 50 (c) Exhibition of obscene material in places of public accommodation is not protected by any constitutional doctrine of privacy. A commercial theater cannot be equated with a private home; nor is there here a privacy right arising from a special relationship, such as marriage. Stanley v. Georgia, 394 U. S. 557 ; Griswold v. Connecticut, 381 U. S. 479 , distinguished. Nor can the privacy of the home be equated with a "one" of "privacy" that follows a consumer of obscene materials wherever he goes. United States v. Orito, post, p. 413 U. S. 139 ; United States v. 12 200-ft. Reels of Film, post, p. 123. Pp. 413 U. S. 65 -67. (d) Preventing the unlimited display of obscene material is not thought control. Pp. 413 U. S. 67 -68. (e) Not all conduct directly involving "consenting adults" only has a claim to constitutional protection. Pp. 413 U. S. 68 -69. 5. The Georgia obscenity laws involved herein should now be reevaluated in the light of the First Amendment standards newly enunciated by the Court in Miller v. California, ante, p. 15. Pp. 413 U. S. 69 -70. 228 Ga. 343, 185 S.E.2d 768 , vacated and remanded. BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 413 U. S. 70 . BRENNAN, J., filed a dissenting opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 413 U. S. 73 . MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. Petitioners are two Atlanta, Georgia, movie theaters and their owners and managers, operating in the Page 413 U. S. 51 style of "adult" theaters. On December 28, 1970, respondents, the local state district attorney and the solicitor for the local state trial court, filed civil complaints in that court alleging that petitioners were exhibiting to the public for paid admission two allegedly obscene films, contrary to Georgia Code Ann. § 26-2101. [ Footnote 1 ] The two films in question, "Magic Mirror" and "It All Comes Out in the End," depict sexual conduct characterized Page 413 U. S. 52 by the Georgia Supreme Court as "hard core pornography" leaving "little to the imagination." Respondents' complaints, made on behalf of the State of Georgia, demanded that the two films be declared obscene and that petitioners be enjoined from exhibiting the films. The exhibition of the films was not enjoined, but a temporary injunction was granted ex parte by the local trial court, restraining petitioners from destroying the films or removing them from the jurisdiction. Petitioners were further ordered to have one print each of the films in court on January 13, 1971, together with the proper viewing equipment. On January 13, 1971, 15 days after the proceedings began, the films were produced by petitioners at a jury-waived trial. Certain photographs, also produced at trial, were stipulated to portray the single entrance to both Paris Adult Theatre I and Paris Adult Theatre II as it appeared at the time of the complaints. These photographs show a conventional, inoffensive theater entrance, without any pictures, but with signs indicating that the theaters exhibit "Atlanta's Finest Mature Feature Films." On the door itself is a sign saying: "Adult Theatre -- You must be 21 and able to prove it. If viewing the nude body offends you, Please Do Not Enter." The two films were exhibited to the trial court. The only other state evidence was testimony by criminal investigators that they had paid admission to see the films and that nothing on the outside of the theater indicated the full nature of what was shown. In particular, nothing indicated that the films depicted -- as they did -- scenes of simulated fellatio, cunnilingus, and group sex intercourse. There was no evidence presented that minors had ever entered the theaters. Nor was there evidence presented that petitioners had a systematic policy of barring minors, apart from posting signs at the entrance. On April 12, 1971, the trial judge dismissed Page 413 U. S. 53 respondents' complaints. He assumed "that obscenity is established," but stated: "It appears to the Court that the display of these films in a commercial theatre, when surrounded by requisite notice to the public of their nature and by reasonable protection against the exposure of these films to minors, is constitutionally permissible." On appeal, the Georgia Supreme Court unanimously reversed. It assumed that the adult theaters in question barred minors and gave a full warning to the general public of the nature of the films shown, but held that the films were without protection under the First Amendment. Citing the opinion of this Court in United States v. Reidel, 402 U. S. 351 (1971), the Georgia court stated that "the sale and delivery of obscene material to willing adults is not protected under the first amendment." The Georgia court also held Stanley v. Georgia, 394 U. S. 557 (1969), to be inapposite, since it did not deal with "the commercial distribution of pornography, but with the right of Stanley to possess, in the privacy of his home, pornographic films." 228 Ga. 343, 345, 185 S.E.2d 768 , 769 (1971). After viewing the films, the Georgia Supreme Court held that their exhibition should have been enjoined, stating: "The films in this case leave little to the imagination. It is plain what they purport to depict, that is, conduct of the most salacious character. We hold that these films are also hard core pornography, and the showing of such films should have been enjoined, since their exhibition is not protected by the first amendment." Id. at 347, 185 S.E.2d at 770. I It should be clear from the outset that we do not undertake to tell the States what they must do, but Page 413 U. S. 54 rather to define the area in which they may chart their own course in dealing with obscene material. This Court has consistently held that obscene material is not protected by the First Amendment as a limitation on the state police power by virtue of the Fourteenth Amendment. Miller v. California, ante at 413 U. S. 225 ; Kois v. Wisconsin, 408 U. S. 229 , 408 U. S. 230 (1972); United States v. Reidel, supra, at 402 U. S. 354 ; Roth v. United States, 354 U. S. 476 , 354 U. S. 485 (1957). Georgia case law permits a civil injunction of the exhibition of obscene materials. See 1024 Peachtree Corp. v. Slaton, 228 Ga. 102, 184 S.E.2d 144 (1971); Walter v. Slaton, 227 Ga. 676, 182 S.E.2d 464 (1971); Evans Theatre Corp. v. Slaton, 227 Ga. 377, 180 S.E.2d 712 (1971). While this procedure is civil in nature, and does not directly involve the state criminal statute proscribing exhibition of obscene material, [ Footnote 2 ] the Georgia case law permitting civil injunction does adopt the definition of "obscene materials" used by the criminal statute. [ Footnote 3 ] Today, in Miller v. California, supra, we have Page 413 U. S. 55 sought to clarify the constitutional definition of obscene material subject to regulation by the States, and we vacate and remand this case for reconsideration in light of Miller. This is not to be read as disapproval of the Georgia civil procedure employed in this case, assuming the use of a constitutionally acceptable standard for determining what is unprotected by the First Amendment. On the contrary, such a procedure provides an exhibitor or purveyor of materials the best possible notice, prior to any criminal indictments, as to whether the materials are unprotected by the First Amendment and subject to state regulation. [ Footnote 4 ] See Kingsley Books, Inc. v. Brown, 354 U. S. 436 , 354 U. S. 441 -444 (1957). Here, Georgia imposed no restraint on the exhibition of the films involved in this case until after a full adversary proceeding and a final judicial determination by the Georgia Supreme Court that the materials were constitutionally unprotected. [ Footnote 5 ] Thus, the standards of Blount v. Rizzi, 400 U. S. 410 , 400 U. S. 417 (1971); Teitel Film Corp. v. Cusack, 390 U. S. 139 , 390 U. S. 141 -142 (1968); Freedman v. Maryland, 380 U. S. 51 , 380 U. S. 559 (1965), and Kingsley Books, Inc. v. Brown, supra, at 354 U. S. 443 -445, were met. Cf. United States v. Thirty-seven Photographs, 402 U. S. 363 , 402 U. S. 367 -369 (1971) (opinion of WHITE, J.). Page 413 U. S. 56 Nor was it error to fail to require "expert" affirmative evidence that the materials were obscene when the materials themselves were actually placed in evidence. United States v. Groner, 479 F.2d 577, 579-586 (CA5 1973); id. at 586-588 (Ainsworth, J., concurring); id. at 586-589 (Clark, J., concurring); United States v. Wild, 422 1.2d 34, 35-36 (CA2 1969), cert. denied, 402 U.S. 986 (1971); Kahm v. United States, 300 F.2d 78, 84 (CA5), cert. denied, 369 U.S. 859 (1962); State v. Amato, 49 Wis.2d 638, 645, 183 N.W.2d 29 , 32 (1971), cert. denied sub nom. Amato v. Wisconsin, 404 U.S. 1063 (1972). See Smith v. California, 361 U. S. 147 , 361 U. S. 172 (1959) (Harlan, J., concurring and dissenting); United States v. Brown, 328 F. Supp. 196 , 199 (ED Va.1971). The films, obviously, are the best evidence of what they represent. [ Footnote 6 ] "In the cases in which this Court has decided obscenity questions since Roth, it has regarded the materials as sufficient in themselves for the determination of the question." Ginzburg v. United States, 383 U. S. 463 , 383 U. S. 465 (1966). Page 413 U. S. 57 II We categorically disapprove the theory, apparently adopted by the trial judge, that obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only. This holding was properly rejected by the Georgia Supreme Court. Although we have often pointedly recognized the high importance of the state interest in regulating the exposure of obscene materials to juveniles and unconsenting adults, see Miller v. California, ante at 413 U. S. 18 -20; Stanley v. Georgia, 394 U.S. at 394 U. S. 567 ; Redrup v. New York, 386 U. S. 767 , 386 U. S. 769 (1967), this Court has never declared these to be the only legitimate state interests permitting regulation of obscene material. The States have a long-recognized legitimate interest in regulating the use of obscene material in local commerce and in all places of public accommodation, as long as these regulations do not run afoul of specific constitutional prohibitions. See United States v. Thirty-seven Photographs, supra, at 402 U. S. 376 -377 (opinion of WHITE, J.); United States v. Reidel, 402 U.S. at 402 U. S. 354 -356. Cf. United States v. Thirty-seven Photographs, supra, at 402 U. S. 378 (STEWART, J., concurring). "In an unbroken series of cases extending over a long stretch of this Court's history, it has been accepted as a postulate that 'the primary requirements of decency may be enforced against obscene publications.' [ Near v. Minnesota, 283 U. S. 697 , 283 U. S. 716 (1931)]." Kingsley Books, Inc. v. Brown, supra, at 354 U. S. 440 . In particular, we hold that there are legitimate state interests at stake in stemming the tide of commercialized obscenity, even assuming it is feasible to enforce effective safeguards against exposure to juveniles and to passersby. [ Footnote 7 ] Page 413 U. S. 58 Rights and interests "other than those of the advocates are involved." Breard v. Alexandria, 341 U. S. 622 , 341 U. S. 642 (1951). These include the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself. The Hill-Link Minority Report of the Commission on Obscenity and Pornography indicates that there is at least an arguable correlation between obscene material and crime. [ Footnote 8 ] Quite Page 413 U. S. 59 apart from sex crimes, however, there remains one problem of large proportions aptly described by Professor Bickel: "It concerns the tone of the society, the mode, or to use terms that have perhaps greater currency, the style and quality of life, now and in the future. A man may be entitled to read an obscene book in his room, or expose himself indecently there. . . . We should protect his privacy. But if he demands a right to obtain the books and pictures he wants in the market, and to foregather in public places -- discreet, if you will, but accessible to all -- with others who share his tastes, then to grant him his right is to affect the world about the rest of us, and to impinge on other privacies. Even supposing that each of us can, if he wishes, effectively avert the eye and stop the ear (which, in truth, we cannot), what is commonly read and seen and heard and done intrudes upon us all, want it or not." 22 The Public Interest 25-26 (Winter 1971). [ Footnote 9 ] (Emphasis added.) As Mr. Chief Justice Warren stated, there is a "right of the Nation and of the States to maintain a decent society . . . ," Page 413 U. S. 60 Jacobellis v. Ohio, 378 U. S. 184 , 378 U. S. 199 (1964) (dissenting opinion). [ Footnote 10 ] See Memoirs v. Massachusetts, 383 U. S. 413 , 383 U. S. 457 (1966) (Harlan, J., dissenting); Beauharnais v. Illinois, 343 U. S. 250 , 343 U. S. 256 -257 (1952); Kovacs v. Cooper, 336 U. S. 77 , 336 U. S. 86 -88 (1949). But, it is argued, there are no scientific data which conclusively demonstrate that exposure to obscene material adversely affects men and women or their society. It is urged on behalf of the petitioners that, absent such a demonstration, any kind of state regulation is "impermissible." We reject this argument. It is not for us to resolve empirical uncertainties underlying state legislation, save in the exceptional case where that legislation plainly impinges upon rights protected by the Constitution itself. [ Footnote 11 ] MR. JUSTICE BRENNAN, speaking for the Court in Ginsberg v. New York, 390 U. S. 629 , 390 U. S. 642 -643 (1968), said: "We do not demand of legislatures scientifically certain criteria of legislation.' Noble State Bank v. Haskell, 219 U. S. 104 , 219 U. S. 110 ." Although there is no conclusive proof of a connection between antisocial behavior Page 413 U. S. 61 and obscene material, the legislature of Georgia could quite reasonably determine that such a connection does or might exist. In deciding Roth, this Court implicitly accepted that a legislature could legitimately act on such a conclusion to protect "the social interest in order and morality." Roth v. United States, 354 U.S. at 354 U. S. 485 , quoting Chaplinsky v. New Hampshire, 315 U. S. 568 , 315 U. S. 572 (1942) (emphasis added in Roth ). [ Footnote 12 ] From the beginning of civilized societies, legislators and judges have acted on various unprovable assumptions. Such assumptions underlie much lawful state regulation of commercial and business affairs. See Ferguson v. Skrupa, 372 U. S. 726 , 372 U. S. 730 (1963); Breard v. Alexandria, 341 U.S. at 341 U. S. 632 -633, 341 U. S. 641 -645; Lincoln Federal Labor Union v. Northwestern Iron Metal Co., 335 U. S. 525 , 335 U. S. 536 -537 (1949). The same is true of the federal securities and antitrust laws and a host of federal regulations. See SEC v. Capital Gains Research Bureau, Inc., 375 U. S. 180 , 375 U. S. 186 -195 (1963); American Power & Light Co. v. SEC, 329 U. S. 90 , 329 U. S. 99 -103 (1946); North American Co. v. SEC, 327 U. S. 686 , 327 U. S. 705 -707 (1946), and cases cited. See also Brooks v. United States, 267 U. S. 432 , 267 U. S. 436 -437 (1925), and Hoke v. United States, 227 U. S. 308 , 227 U. S. 322 (1913). On the basis of these assumptions both Congress and state legislatures have, for example, drastically restricted associational rights by adopting antitrust laws, and have strictly regulated public expression by issuers of and dealers in securities, profit sharing "coupons," and "trading stamps," Page 413 U. S. 62 commanding what they must and must not publish and announce. See Sugar Institute, Inc. v. United States, 297 U. S. 553 , 297 U. S. 597 -602 (1936); Merrick v. N.W. Halsey & Co., 242 U. S. 568 , 242 U. S. 584 -589 (1917); Caldwell v. Sioux Falls Stock Yards Co., 242 U. S. 559 , 242 U. S. 567 -568 (1917); Hall v. Geiger-Jones Co., 242 U. S. 539 , 242 U. S. 548 -552 (1917); Tanner v. Little, 240 U. S. 369 , 240 U. S. 383 -386 (1916); Rast v. Van Deman Lewis Co., 240 U. S. 342 , 240 U. S. 363 -368 (1916). Understandably those who entertain an absolutist view of the First Amendment find it uncomfortable to explain why rights of association, speech, and press should be severely restrained in the marketplace of goods and money, but not in the marketplace of pornography. Likewise, when legislatures and administrators act to protect the physical environment from pollution and to preserve our resources of forests, streams, and parks, they must act on such imponderables as the impact of a new highway near or through an existing park or wilderness area. See Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402 , 401 U. S. 417 -420 (1971). Thus, § 18(a) of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138, and the Department of Transportation Act of 1966, as amended, 82 Stat. 824, 49 U.S.C. § 1653(f), have been described by Mr. Justice Black as "a solemn determination of the highest law-making body of this Nation that the beauty and health-giving facilities of our parks are not to be taken away for public roads without hearings, factfindings, and policy determinations under the supervision of a Cabinet officer. . . ." Citizens to Preserve Overton Park, supra, at 401 U. S. 421 (separate opinion joined by BRENNAN, J.). The fact that a congressional directive reflects unprovable assumptions about what is good for the people, including imponderable aesthetic assumptions, is not a sufficient reason to find that statute unconstitutional. Page 413 U. S. 63 If we accept the unprovable assumption that a complete education requires the reading of certain books, see Board of Education v. Allen, 392 U. S. 236 , 392 U. S. 245 (1968), and Johnson v. New York State Education Dept., 449 F.2d 871, 882-883 (CA2 1971) (dissenting opinion), vacated and remanded to consider mootness, 409 U. S. 75 (1972), id. at 777 (MARSHALL, J., concurring), and the well nigh universal belief that good books, plays, and art lift the spirit, improve the mind, enrich the human personality, and develop character, can we then say that a state legislature may not act on the corollary assumption that commerce in obscene books, or public exhibitions focused on obscene conduct, have a tendency to exert a corrupting and debasing impact leading to antisocial behavior? "Many of these effects may be intangible and indistinct, but they are nonetheless real." American Power & Light Co. v. SEC, supra, at 329 U. S. 103 . Mr. Justice Cardozo said that all laws in Western civilization are "guided by a robust common sense. . . ." Steward Machine Co. v. Davis, 301 U. S. 548 , 301 U. S. 590 (1937). The sum of experience, including that of the past two decades, affords an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex. Nothing in the Constitution prohibits a State from reaching such a conclusion and acting on it legislatively simply because there is no conclusive evidence or empirical data. It is argued that individual "free will" must govern, even in activities beyond the protection of the First Amendment and other constitutional guarantees of privacy, and that government cannot legitimately impede an individual's desire to see or acquire obscene plays, movies, and books. We do indeed base our society on Page 413 U. S. 64 certain assumptions that people have the capacity for free choice. Most exercises of individual free choice -- those in politics, religion, and expression of idea are explicitly protected by the Constitution. Totally unlimited play for free will, however, is not allowed in our or any other society. We have just noted, for example, that neither the First Amendment nor "free will" precludes States from having "blue sky" laws to regulate what sellers of securities may write or publish about their wares. See supra at 413 U. S. 61 -62. Such laws are to protect the weak, the uninformed, the unsuspecting, and the gullible from the exercise of their own volition. Nor do modern societies leave disposal of garbage and sewage up to the individual "free will," but impose regulation to protect both public health and the appearance of public places. States are told by some that they must await a " laissez-faire " market solution to the obscenity-pornography problem, paradoxically "by people who have never otherwise had a kind word to say for laissez-faire, " particularly in solving urban, commercial, and environmental pollution problems. See I. Kristol, On the Democratic Idea in America 37 (1972). The States, of course, may follow such a " laissez-faire " policy and drop all controls on commercialized obscenity, if that is what they prefer, just as they can ignore consumer protection in the marketplace, but nothing in the Constitution compels the States to do so with regard to matters falling within state jurisdiction. See United States v. Reidel, 402 U.S. at 402 U. S. 357 ; Memoirs v. Massachusetts, 383 U.S. at 383 U. S. 462 (WHITE, J., dissenting). "We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions." Griswold v. Connecticut, 381 U. S. 479 , 381 U. S. 482 (1965). See Ferguson v. Skrupa, 372 U.S. at 372 U. S. 731 ; Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421 , 342 U. S. 423 (1952). Page 413 U. S. 65 It is asserted, however, that standards for evaluating state commercial regulations are inapposite in the present context, as state regulation of access by consenting adults to obscene material violates the constitutionally protected right to privacy enjoyed by petitioners' customers. Even assuming that petitioners have vicarious standing to assert potential customers' rights, it is unavailing to compare a theater open to the public for a fee, with the private home of Stanley v. Georgia, 394 U.S. at 394 U. S. 568 , and the marital bedroom of Griswold v. Connecticut, supra, at 381 U. S. 485 -486. This Court, has, on numerous occasions, refused to hold that commercial ventures such as a motion-picture house are "private" for the purpose of civil rights litigation and civil rights statutes. See Sullivan v. Little Hunting Park, Inc., 396 U. S. 229 , 396 U. S. 236 (1969); Daniel v. Paul, 395 U. S. 298 , 395 U. S. 305 -308 (1969); Blow v. North Carolina, 379 U. S. 684 , 379 U. S. 685 -686 (1965); Hamm v. Rock Hill, 379 U. S. 306 , 379 U. S. 307 -308 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241 , 379 U. S. 247 , 379 U. S. 260 -261 (1964). The Civil Rights Act of 1964 specifically defines motion picture houses and theaters as places of "public accommodation" covered by the Act as operations affecting commerce. 78 Stat. 243, 42 U.S.C. § § 2000a(b)(3), (c). Our prior decisions recognizing a right to privacy guaranteed by the Fourteenth Amendment included "only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty.' Palko v. Connecticut, 302 U. S. 319 , 302 U. S. 325 (1937)." Roe v. Wade, 410 U. S. 113 , 410 U. S. 152 (1973). This privacy right encompasses and protects the personal intimacies of the home, the family, marriage, motherhood, procreation, and childrearing. Cf. Eisenstadt v. Baird, 405 U. S. 438 , 405 U. S. 453 -454 (1972); id. at 405 U. S. 460 , 405 U. S. 463 -465 (WHITE, J., concurring); Stanley v. Georgia, supra, at 394 U. S. 568 ; Loving v. Virginia , 388 Page 413 U. S. 66 U.S. 1, 388 U. S. 12 (1967); Griswold v. Connecticut, supra, at 381 U. S. 486 ; Prince v. Massachusetts, 321 U. S. 158 , 321 U. S. 166 (1944); Skinner v. Oklahoma, 316 U. S. 535 , 316 U. S. 541 (1942); Pierce v. Society of Sisters, 268 U. S. 510 , 268 U. S. 535 (1925); Meyer v. Nebraska, 262 U. S. 390 , 262 U. S. 399 (1923). Nothing, however, in this Court's decisions intimates that there is any "fundamental" privacy right "implicit in the concept of ordered liberty" to watch obscene movies in places of public accommodation. If obscene material unprotected by the First Amendment, in itself, carried with it a "penumbra" of constitutionally protected privacy, this Court would not have found it necessary to decide Stanley on the narrow basis of the "privacy of the home," which was hardly more than a reaffirmation that "a man's home is his castle." Cf. Stanley v. Georgia, supra, at 394 U. S. 564 . [ Footnote 13 ] Moreover, we have declined to equate the privacy of the home relied on in Stanley with a "zone" of "privacy" that follows a distributor or a consumer of obscene materials wherever he goes. See United States v. Orito, post at 413 U. S. 141 -143; United States v. 12 200-ft. Reels of Film, post at 413 U. S. 126 -129; United States v. Thirty-seven Photographs, 42 U.S. at 43 U. S. 376 -377 (opinion of WHITE, J.); United States v. Reidel, supra, at 402 U. S. 355 . The idea of a "privacy" right and a place of public accommodation are, in this context, Page 413 U. S. 67 mutually exclusive. Conduct or depictions of conduct that the state police power can prohibit on a public street do not become automatically protected by the Constitution merely because the conduct is moved to a bar or a "live" theater stage, any more than a "live" performance of a man and woman locked in a sexual embrace at high noon in Times Square is protected by the Constitution because they simultaneously engage in a valid political dialogue. It is also argued that the State has no legitimate interest in "control [of] the moral content of a person's thoughts," Stanley v. Georgia, supra, at 394 U. S. 565 , and we need not quarrel with this. But we reject the claim that the State of Georgia is here attempting to control the minds or thoughts of those who patronize theaters. Preventing unlimited display or distribution of obscene material, which by definition lacks any serious literary, artistic, political, or scientific value as communication, Miller v. California, ante at 413 U. S. 24 , 413 U. S. 34 , is distinct from a control of reason and the intellect. Cf. Kois v. Wisconsin, 408 U. S. 229 (1972); Roth v. United States, supra, at 354 U. S. 485 -487; Thornhill v. Alabama, 310 U. S. 88 , 310 U. S. 101 -102 (1940); Finnis, "Reason and Passion": The Constitutional Dialectic of Free Speech and Obscenity, 116 U.Pa.L.Rev. 222, 229-230, 241-243 (1967). Where communication of ideas, protected by the First Amendment, is not involved, or the particular privacy of the home protected by Stanley, or any of the other "areas or zones" of constitutionally protected privacy, the mere fact that, as a consequence, some human "utterances" or. "thoughts" may be incidentally affected does not bar the State from acting to protect legitimate state interests. Cf. Roth v. United States, supra, at 354 U. S. 483 , 485-487; Beauharnais v. Illinois, 343 U.S. at 343 U. S. 256 -257. The fantasies of a drug addict are his own and beyond the reach of government, but government regulation of drug sales is not Page 413 U. S. 68 prohibited by the Constitution. Cf. United States v. Reidel, supra, at 402 U. S. 359 -360 (Harlan, J., concurring). Finally, petitioners argue that conduct which directly involves "consenting adults" only has, for that sole reason, a special claim to constitutional protection. Our Constitution establishes a broad range of conditions on the exercise of power by the States, but for us to say that our Constitution incorporates the proposition that conduct involving consenting adults only is always beyond state regulation, [ Footnote 14 ] is a step we are unable to take. [ Footnote 15 ] Commercial exploitation of depictions, descriptions, or exhibitions of obscene conduct on commercial premises open to the adult public falls within a State's broad power to regulate commerce and protect the public Page 413 U. S. 69 environment. The issue in this context goes beyond whether someone, or even the majority, considers the conduct depicted as "wrong" or "sinful." The States have the power to make a morally neutral judgment that public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardize, in Mr. Chief Justice Warren's words, the States' "right . . . to maintain a decent society." Jacobellis v. Ohio, 378 U.S. at 378 U. S. 199 (dissenting opinion). To summarize, we have today reaffirmed the basic holding of Roth v. United States, supra, that obscene material has no protection under the First Amendment. See Miller v. California, supra, and Kaplan v. California, post, p. 413 U. S. 115 . We have directed our holdings, not at thoughts or speech, but at depiction and description of specifically defined sexual conduct that States may regulate within limits designed to prevent infringement of First Amendment rights. We have also reaffirmed the holdings of United States v. Reidel, supra, and United States v. Thirty-seven Photographs, supra, that commerce in obscene material is unprotected by any constitutional doctrine of privacy. United States v. Orito, post at 413 U. S. 141 -143; United States v. 12 200-ft. Reels of Film, post at 413 U. S. 126 -129. In this case, we hold that the States have a legitimate interest in regulating commerce in obscene material and in regulating exhibition of obscene material in places of public accommodation, including so-called "adult" theaters from which minors are excluded. In light of these holdings, nothing precludes the State of Georgia from the regulation of the allegedly obscene material exhibited in Paris Adult Theatre I or II, provided that the applicable Georgia law, as written or authoritatively interpreted by the Georgia courts, meets the First Amendment standards set forth in Miller v. California, ante at 413 U. S. 23 -25. The Page 413 U. S. 70 judgment is vacated and the case remanded to the Georgia Supreme Court for further proceedings not inconsistent with this opinion and Miller v. California, supra. See United States v. 12 200-ft. Reels of Film, post at 413 U. S. 130 n. 7. Vacated and remanded. [ Footnote 1 ] This is a civil proceeding. Georgia Code Ann. § 26-2101 defines a criminal offense, but the exhibition of materials found to be "obscene" as defined by that statute may be enjoined in a civil proceeding under Georgia case law. 1024 Peachtree Corp. v. Slaton, 228 Ga. 102, 184 S.E.2d 144 (1971); Walter v. Slaton, 227 Ga. 676, 182 S.E.2d 464 (1971); Evans Theatre Corp. v. Slaton, 227 Ga. 377, 180 S.E.2d 712 (1971). See infra at 413 U. S. 54 . Georgia Code Ann. § 26-2101 reads in relevant part: "Distributing obscene materials." "(a) A person commits the offense of distributing obscene materials when he sells, lends, rents, leases, gives, advertises, publishes, exhibits or otherwise disseminates to any person any obscene material of any description, knowing the obscene nature thereof, or who offers to do so, or who possesses such material with the intent so to do. . . ." "(b) Material is obscene if considered as a whole, applying community standards, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and utterly without redeeming social value and if, in addition, it goes substantially beyond customary limits of candor in describing or representing such matters. . ." "(d) A person convicted of distributing obscene material shall for the first offense be punished as for a misdemeanor, and for any subsequent offense shall be punished by imprisonment for not less than one nor more than five years, or by a fine not to exceed $5,000, or both." The constitutionality of Georgia Code Ann. § 26-2101 was upheld against First Amendment and due process challenges in Gable v. Jenkins, 309 F. Supp. 998 (ND Ga.1969), aff'd per curiam, 397 U. S. 592 (1970). [ Footnote 2 ] See Georgia Code Ann. § 26-2101, set out supra at 51 n. 1. [ Footnote 3 ] In Walter v. Slaton, 227 Ga. 676, 182 S.E.2d 464 (1971), the Georgia Supreme Court described the cases before it as follows: "Each case was commenced as a civil action by the District Attorney of the Superior Court of Fulton County jointly with the Solicitor of the Criminal Court of Fulton County. In each case, the plaintiffs alleged that the defendants named therein were conducting a business of exhibiting motion picture films to members of the public; that they were in control and possession of the described motion picture film, which they were exhibiting to the public on a fee basis; that said film" "constitutes a flagrant violation of Ga.Code § 22101 in that the sole and dominant theme of the motion picture film . . . considered as a whole, and applying contemporary standards, appeals to the prurient interest in sex and nudity, and that said motion picture film is utterly and absolutely without any redeeming social value whatsoever and transgresses beyond the customary limits of candor in describing and discussing sexual matters." Id. at 676-677, 182 S.E.2d at 465. [ Footnote 4 ] This procedure would have even more merit if the exhibitor or purveyor could also test the issue of obscenity in a similar civil action, prior to any exposure to criminal penalty. We are not here presented with the problem of whether a holding that materials were not obscene could be circumvented in a later proceeding by evidence of pandering. See Memoirs v. Massachusetts, 383 U. S. 413 , 383 U. S. 458 n. 3 (1966) (Harlan, J., dissenting); Ginzburg v. United States, 383 U. S. 463 , 383 U. S. 496 (1966) (Harlan, J., dissenting). [ Footnote 5 ] At the specific request of petitioners' counsel, the copies of the films produced for the trial court were placed in the "administrative custody" of that court pending the outcome of this litigation. [ Footnote 6 ] This is not a subject that lends itself to the traditional use of expert testimony. Such testimony is usually admitted for the purpose of explaining to lay jurors what they otherwise could not understand. Cf. 2 J. Wigmore, Evidence §§ 556, 559 (3d ed.1940). No such assistance is needed by jurors in obscenity cases; indeed, the "expert witness" practices employed in these cases have often made a mockery out of the otherwise sound concept of expert testimony. See United States v. Groner, 479 F.2d 577, 585-586 (CA5 1973); id. at 587-588 (Ainsworth, J., concurring). "Simply stated, hard core pornography . . . can and does speak for itself." United States v. Wild, 422 F.2d 34, 36 (CA2 1970), cert. denied, 402 U.S. 986 (1971). We reserve judgment, however, on the extreme case, not presented here, where contested materials are directed at such a bizarre deviant group that the experience of the trier of fact would be plainly inadequate to judge whether the material appeals to the prurient interest. See Mishkin v. New York, 383 U. S. 502 , 383 U. S. 508 -510 (1966); United States v. Klaw, 350 F.2d 155, 167-168 (CA2 1965). [ Footnote 7 ] It is conceivable that an "adult" theater can -- if it really insists -- prevent the exposure of its obscene wares to juveniles. An "adult" bookstore, dealing in obscene books, magazines, and pictures cannot realistically make this claim. The Hill-Link Minority Report of the Commission on Obscenity and Pornography emphasizes evidence (the Abelson National Survey of Youth and Adults) that, although most pornography may be bought by elders, "the heavy users and most highly exposed people to pornography are adolescent females (among women) and adolescent and young adult males (among men)." The Report of the Commission on Obscenity and Pornography 401 (1970). The legitimate interest in preventing exposure of juveniles to obscene material cannot be fully served by simply barring juveniles from the immediate physical premises of "adult" bookstores, when there is a flourishing "outside business" in these materials. [ Footnote 8 ] The Report of the Commission on Obscenity and Pornography 390-412 (1970). For a discussion of earlier studies indicating "a division of thought [among behavioral scientists] on the correlation between obscenity and socially deleterious behavior," Memoirs v. Massachusetts, supra, at 383 U. S. 451 , and references to expert opinions that obscene material may induce crime and antisocial conduct, see id. at 383 U. S. 451 -453 (Clark, J., dissenting). Mr. Justice Clark emphasized: "While erotic stimulation caused by pornography may be legally insignificant in itself, there are medical experts who believe that such stimulation frequently manifests itself in criminal sexual behavior or other antisocial conduct. For example, Dr. George W. Henry of Cornell University has expressed the opinion that obscenity, with its exaggerated and morbid emphasis on sex, particularly abnormal and perverted practices, and its unrealistic presentation of sexual behavior and attitudes, may induce antisocial conduct by the average person. A number of sociologists think that this material may have adverse effects upon individual mental health, with potentially disruptive consequences for the community." " * * * *" "Congress and the legislatures of every State have enacted measures to restrict the distribution of erotic and pornographic material, justifying these controls by reference to evidence that antisocial behavior may result in part from reading obscenity." Id. at 383 U. S. 452 -453 (footnotes omitted). [ Footnote 9 ] See also Berns, Pornography vs. Democracy: The Case for Censorship, in 22 The Public Interest 3 (Winter 1971); van den Haag, in Censorship: For & Against 156-157 (H. Hart ed.1971). [ Footnote 10 ] "In this and other cases in this area of the law, which are coming to us in ever-increasing numbers, we are faced with the resolution of rights basic both to individuals and to society as a whole. Specifically, we are called upon to reconcile the right of the Nation and of the States to maintain a decent society and, on the other hand, the right of individuals to express themselves freely in accordance with the guarantees of the First and Fourteenth Amendments." Jacobellis v. Ohio, supra, at 378 U. S. 199 (Warren, C.J., dissenting). [ Footnote 11 ] Mr. Justice Holmes stated in another context, that: "[T]he proper course is to recognize that a state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain." Tyson & Brother v. Banton, 273 U. S. 418 , 273 U. S. 446 (1927) (dissenting opinion joined by Brandeis, J.). [ Footnote 12 ] " It has been well observed that such [lewd and obscene] utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. " Roth v. United States, 354 U. S. 476 , 354 U. S. 485 (1957), quoting Chaplinsky v. New Hampshire, 315 U. S. 568 , 315 U. S. 572 (1942) (emphasis added in Roth ). [ Footnote 13 ] The protection afforded by Stanley v. Georgia, 394 U. S. 557 (1969), is restricted to a place, the home. In contrast, the constitutionally protected privacy of family, marriage, motherhood, procreation, and childrearing is not just concerned with a particular place, but with a protected intimate relationship. Such protected privacy extends to the doctor's office, the hospital, the hotel room, or as otherwise required to safeguard the right to intimacy involved. Cf. Roe v. Wade, 410 U. S. 113 , 410 U. S. 152 -154 (1973); Griswold v. Connecticut, 381 U. S. 479 , 381 U. S. 485 -486 (1965). Obviously, there is no necessary or legitimate expectation of privacy which would extend to marital intercourse on a street corner or a theater stage. [ Footnote 14 ] Cf. J. Mill, On Liberty 13 (1955 ed.). [ Footnote 15 ] The state statute books are replete with constitutionally unchallenged laws against prostitution, suicide, voluntary self-mutilation, brutalizing "bare fist" prize fights, and duels, although these crimes may only directly involve "consenting adults." Statutes making bigamy a crime surely cut into an individual's freedom to associate, but few today seriously claim such statutes violate the First Amendment or any other constitutional provision. See Davis v. Beason, 133 U. S. 333 , 133 U. S. 344 -345 (1890). Consider also the language of this Court in McLaughlin v. Florida, 379 U. S. 184 , 379 U. S. 196 (1964), as to adultery; Southern Surety Co. v. Oklahoma, 241 U. S. 582 , 241 U. S. 586 (1916), as to fornication; Hoke v. United States, 227 U. S. 308 , 227 U. S. 320 -322 (1913), and Caminetti v. United States, 242 U. S. 470 , 242 U. S. 484 -487, 242 U. S. 491 -492 (1917), as to "white slavery"; Murphy v. California, 225 U. S. 623 , 225 U. S. 629 (1912), as to billiard halls; and the Lottery Case, 188 U. S. 321 , 188 U. S. 355 -356 (1903), as to gambling. See also the summary of state statutes prohibiting bearbaiting, cockfighting, and other brutalizing animal "sports," in Stevens, Fighting and Baiting, in Animals and Their Legal Rights 112-127 (Leavitt ed.1970). As Professor Irving Kristol has observed: "Bearbaiting and cockfighting are prohibited only in part out of compassion for the suffering animals; the main reason they were abolished was because it was felt that they debased and brutalized the citizenry who flocked to witness such spectacles." On the Democratic Idea in America 33 (1972). MR. JUSTICE DOUGLAS, dissenting. My Brother BRENNAN is to be commended for seeking a new path through the thicket which the Court entered when it undertook to sustain the constitutionality of obscenity laws and to place limits on their application. I have expressed on numerous occasions my disagreement with the basic decision that held that "obscenity" was not protected by the First Amendment. I disagreed also with the definitions that evolved. Art and literature reflect tastes; and tastes, like musical appreciation, are hardly reducible to precise definitions. That is one reason I have always felt that "obscenity" was not an exception to the First Amendment. For matters of taste, like matters of belief, turn on the idiosyncrasies of individuals. They are too personal to define and too emotional and vague to apply, as witness the prison term for Ralph Ginzburg, Ginzburg v. United States, 383 U. S. 463 , not for what he printed but for the sexy manner in which he advertised his creations. The other reason I could not bring myself to conclude that "obscenity" was not covered by the First Amendment was that, prior to the adoption of our Constitution and Bill of Rights the Colonies had no law excluding "obscenity" from the regime of freedom of expression and press that then existed. I could find no such laws; and more important, our leading colonial expert, Julius Goebel, could find none, J. Goebel, Development of Legal Institutions (1946); J. Goebel, Felony and Misdemeanor (1937). So I became convinced that the Page 413 U. S. 71 creation of the "obscenity" exception to the First Amendment was a legislative and judicial tour de force; that, if we were to have such a regime of censorship and punishment, it should be done by constitutional amendment. People are, of course, offended by many offerings made by merchants in this area. They are also offended by political pronouncements, sociological themes, and by stories of official misconduct. The list of activities and publications and pronouncements that offend someone is endless. Some of it goes on in private; some of it is inescapably public, as when a government official generates crime, becomes a blatant offender of the moral sensibilities of the people, engages in burglary, or breaches the privacy of the telephone, the conference room, or the home. Life in this crowded modern technological world creates many offensive statements and many offensive deeds. There is no protection against offensive ideas, only against offensive conduct. "Obscenity" at most is the expression of offensive ideas. There are regimes in the world where ideas "offensive" to the majority (or at least to those who control the majority) are suppressed. There life proceeds at a monotonous pace. Most of us would find that world offensive. One of the most offensive experiences in my life was a visit to a nation where bookstalls were filled only with books on mathematics and books on religion. I am sure I would find offensive most of the books and movies charged with being obscene. But in a life that has not been short, I have yet to be trapped into seeing or reading something that would offend me. I never read or see the materials coming to the Court under charges of "obscenity," because I have thought the First Amendment made it unconstitutional for me to act as a censor. I see ads in bookstores and neon lights over theaters that resemble bait for those who Page 413 U. S. 72 seek vicarious exhilaration. As a parent or a priest or as a teacher I would have no compunction in edging my children or wards away from the books and movies that did no more than excite man's base instincts. But I never supposed that government was permitted to sit in judgment on one's tastes or belief save as they involved action within the reach of the police power of government. I applaud the effort of my Brother BRENNAN to forsake the low road which the Court has followed in this field. The new regime he would inaugurate is much closer than the old to the policy of abstention which the First Amendment proclaims. But since we do not have here the unique series of problems raised by government-imposed or government-approved captive audiences, cf. Public Utilities Comm'n v. Pollak, 343 U. S. 451 , I see no constitutional basis for fashioning a rule that makes a publisher, producer, bookseller, librarian, or movie house operator criminally responsible, when he fails to take affirmative steps to protect the consumer against literature, books, or movies offensive * to those who temporarily occupy the seats of the mighty. Page 413 U. S. 73 When man was first in the jungle, he took care of himself. When he entered a societal group, controls were necessarily imposed. But our society -- unlike most in the world -- presupposes that freedom and liberty are in a frame of reference that makes the individual, not government, the keeper of his tastes, beliefs, and ideas. That is the philosophy of the First Amendment; and it is the article of faith that sets us apart from most nations in the world. * What we do today is rather ominous as respects librarians. The net now designed by the Court is so finely meshed that, taken literally, it could result in raids on libraries. Libraries, I had always assumed, were sacrosanct, representing every part of the spectrum. If what is offensive to the most influential person or group in a community can be purged from a library, the library system would be destroyed. A few States exempt librarians from laws curbing distribution of "obscene" literature. California's law, however, provides: "Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes to or sends or causes to be sent to, or exhibits to, or offers to distribute or exhibit any harmful matter to a minor, is guilty of a misdemeanor." Calif.Penal Code § 313.1. A "minor" is one under 18 years of age; the word "distribute" means "to transfer possession"; "matter" includes "any book, magazine, newspaper, or other printed or written material." Id. §§ 313(b), (d), (g). "Harmful matter" is defined in § 313(a) to mean "matter, taken as a whole, the predominant appeal of which to the average person, applying contemporary standards, is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion; and is matter which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which taken as a whole is utterly without redeeming social importance for minors." MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join, dissenting. This case requires the Court to confront once again the vexing problem of reconciling state efforts to suppress sexually oriented expression with the protections of the First Amendment, as applied to the States through the Fourteenth Amendment. No other aspect of the First Amendment has, in recent years, demanded so substantial a commitment of our time, generated such disharmony of views, and remained so resistant to the formulation of stable and manageable standards. I am convinced that the approach initiated 16 years ago in Roth v. United States, 354 U. S. 476 (1957), and culminating in the Court's decision today, cannot bring stability to this area of the law without jeopardizing fundamental First Amendment values, and I have concluded that the Page 413 U. S. 74 time has come to make a significant departure from that approach. In this civil action in the Superior Court of Fulton County, the State of Georgia sought to enjoin the showing of two motion pictures, It All Comes Out In The End, and Magic Mirror, at the Paris Adult Theatres (I and II) in Atlanta, Georgia. The State alleged that the films were obscene under the standards set forth in Georgia Code Ann. § 26-2101. [ Footnote 2/1 ] The trial court denied injunctive relief, holding that, even though the films could be considered obscene, their commercial presentation could not constitutionally be barred in the absence of proof that they were shown to minors or unconsenting adults. Reversing, the Supreme Court of Georgia found the films obscene, and held that the care taken to avoid exposure to minors and unconsenting adults was without constitutional significance. I The Paris Adult Theatres are two commercial cinemas, linked by a common box office and lobby, on Peachtree Street in Atlanta, Georgia. On December 28, 1970, investigators employed by the Criminal Court of Fulton County entered the theaters as paying customers and viewed each of the films which are the subject of this action. Thereafter, two separate complaints, one for Page 413 U. S. 75 each of the two films, were filed in the Superior Court seeking a declaration that the films were obscene and an injunction against their continued presentation to the public. The complaints alleged that the films were "a flagrant violation of Georgia Code Section 26-2101 in that the sole and dominant theme[s] of the said motion picture film[s] considered as a whole and applying contemporary community standards [appeal] to the prurient interest in sex, nudity and excretion, and that the said motion picture film[s are] utterly and absolutely without any redeeming social value whatsoever, and [transgress] beyond the customary limits of candor in describing and discussing sexual matters." App. 20, 39. Although the language of the complaints roughly tracked the language of § 26-2101, which imposes criminal penalties on persons who knowingly distribute obscene materials, [ Footnote 2/2 ] this proceeding was not brought pursuant to that statute. Instead, the State initiated a nonstatutory civil proceeding to determine the obscenity of the films and to enjoin their exhibition. While the parties waived jury trial and stipulated that the decision of the trial court would be final on the issue of obscenity, the State has not indicated whether it intends to bring a criminal action under the statute in the event that it succeeds in proving the films obscene. Upon the filing of the complaints, the trial court scheduled a hearing for January 13, 1971, and entered an order temporarily restraining the defendants from concealing, destroying, altering, or removing the films Page 413 U. S. 76 from the jurisdiction, but not from exhibiting the films to the public pendente lite. In addition to viewing the films at the hearing, the trial court heard the testimony of witnesses and admitted into evidence photographs that were stipulated to depict accurately the facade of the theater. The witnesses testified that the exterior of the theater was adorned with prominent signs reading "Adults Only," "You Must Be 21 and Able to Prove It," and "If the Nude Body Offends You, Do Not Enter." Nothing on the outside of the theater described the films with specificity. Nor were pictures displayed on the outside of the theater to draw the attention of passersby to the contents of the films. The admission charge to the theaters was $3. The trial court heard no evidence that minors had ever entered the theater, but also heard no evidence that petitioners had enforced a systematic policy of screening out minors (apart from the posting of the notices referred to above). On the basis of the evidence submitted, the trial court concluded that the films could fairly be considered obscene, "[a]ssuming that obscenity is established by a finding that the actors cavorted about in the nude indiscriminately," but held, nonetheless, that "the display of these films in a commercial theatre, when surrounded by requisite notice to the public of their nature and by reasonable protection against the exposure of these films to minors, is constitutionally permissible. [ Footnote 2/3 ] Page 413 U. S. 77 Since the issue did not arise in a statutory proceeding, the trial court was not required to pass upon the constitutionality of any state statute, on its face or as applied, in denying the injunction sought by the State." The Supreme Court of Georgia unanimously reversed, reasoning that the lower court's reliance on Stanley v. Georgia, 394 U. S. 557 (1969), was misplaced in view of our subsequent decision in United States v. Reidel, 402 U. S. 351 (1971): "In [ Reidel ], the Supreme Court expressly held that the government could constitutionally prohibit the distribution of obscene materials through the mails, even though the distribution be limited to willing recipients who state that they are adults, and, further, that the constitutional right of a person to possess obscene material in the privacy of his own home, as expressed in the Stanley case, does not carry with it the right to sell and deliver such material. . . . Those who choose to pass through the front door of the defendant's theater and purchase a ticket to view the films and who certify thereby that they are more than 21 years of age are willing recipients of the material in the same legal sense as were those in the Reidel case, who, after reading the newspaper advertisements of the material, mailed an order to the defendant accepting his solicitation to sell them the obscene booklet there. That case clearly establishes once and for all that the sale and delivery of obscene material to willing adults is not Page 413 U. S. 78 protected under the first amendment." 228 Ga. 343, 346, 185 S.E.2d 768 , 769-770 (1971). The decision of the Georgia Supreme Court rested squarely on its conclusion that the State could constitutionally suppress these films even if they were displayed only to persons over the age of 21 who were aware of the nature of their contents and who had consented to viewing them. For the reasons set forth in this opinion, I am convinced of the invalidity of that conclusion of law, and I would therefore vacate the judgment of the Georgia Supreme Court. I have no occasion to consider the extent of state power to regulate the distribution of sexually oriented materials to juveniles or to unconsenting adults. Nor am I required, for the purposes of this review, to consider whether or not these petitioners had, in fact, taken precautions to avoid exposure of films to minors or unconsenting adults. II In Roth v. United States, 354 U. S. 476 (1957), the Court held that obscenity, although expression, falls outside the area of speech or press constitutionally protected under the First and Fourteenth Amendments against state or federal infringement. But at the same time we emphasized in Roth that "sex and obscenity are not synonymous," id. at 354 U. S. 487 , and that matter which is sexually oriented but not obscene is fully protected by the Constitution. For we recognized that "[s]ex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern." Ibid. [ Footnote 2/4 ] Roth rested, in Page 413 U. S. 79 other words, on what has been termed a two-level approach to the question of obscenity. [ Footnote 2/5 ] While much criticized, [ Footnote 2/6 ] that approach has been endorsed by all but two members of this Court who have addressed the question since Roth. Yet our efforts to implement that approach demonstrate that agreement on the existence of something called "obscenity" is still a long and painful step from agreement on a workable definition of the term. Recognizing that "the freedoms of expression . . . are vulnerable to gravely damaging yet barely visible encroachments," Bantam Books, Inc. v. Sullivan, 372 U. S. 58 , 372 U. S. 66 (1963), we have demanded that "sensitive tools" be used to carry out the "separation of legitimate from illegitimate speech." Speiser v. Randall, 357 U. S. 513 , 357 U. S. 525 (1958). The essence of our problem in the obscenity area is that we have been unable to provide "sensitive tools" to separate obscenity from other sexually oriented but constitutionally protected speech, Page 413 U. S. 80 so that efforts to suppress the former do not spill over into the suppression of the latter. The attempt, as the late Mr. Justice Harlan observed, has only "produced a variety of views among the members of the Court unmatched in any other course of constitutional adjudication." Interstate Circuit, Inc. v. Dallas, 390 U. S. 676 , 390 U. S. 704 -705 (1968) (separate opinion). To be sure, five members of the Court did agree in Roth that obscenity could be determined by asking "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." 354 U.S. at 354 U. S. 489 . But agreement on that test -- achieved in the abstract and without reference to the particular material before the Court, see id. at 354 U. S. 481 n. 8 -- was, to say the least, short-lived. By 1967, the following views had emerged: Mr. Justice Black and MR. JUSTICE DOUGLAS consistently maintained that government is wholly powerless to regulate any sexually oriented matter on the ground of its obscenity. See, e.g., Ginzburg v. United States, 383 U. S. 463 , 383 U. S. 476 , 383 U. S. 482 (1966) (dissenting opinions); Jacobellis v. Ohio, 378 U. S. 184 , 378 U. S. 196 (1964) (concurring opinion); Roth v. United States, supra, at 354 U. S. 508 (dissenting opinion). Mr. Justice Harlan, on the other hand, believed that the Federal Government in the exercise of its enumerated powers could control the distribution of "hard core" pornography, while the States were afforded more latitude to "[ban] any material which, taken as a whole, has been reasonably found in state judicial proceedings to treat with sex in a fundamentally offensive manner, under rationally established criteria for judging such material." Jacobellis v. Ohio, supra, at 378 U. S. 204 (dissenting opinion). See also, e.g., Ginzburg v. United States, supra, at 383 U. S. 493 (dissenting opinion); A Quantity of Books v. Kansas, 378 U. S. 205 , 378 U. S. 215 (1964) (dissenting opinion joined by Clark, J.); Roth, supra, at 354 U. S. 496 Page 413 U. S. 81 (separate opinion). MR. JUSTICE STEWART regarded "hard core" pornography as the limit of both federal and state power. See, e.g., Ginzburg v. United States, supra, at 383 U. S. 497 (dissenting opinion); Jacobellis v. Ohio, supra, at 378 U. S. 197 (concurring opinion). The view that, until today, enjoyed the most, but not majority, support was an interpretation of Roth (and not, as the Court suggests, a veering "sharply away from the Roth concept" and the articulation of "a new test of obscenity," Miller v. California, ante at 413 U. S. 21 ) adopted by Mr. Chief Justice Warren, Mr. Justice Fortas, and the author of this opinion in Memoirs v. Massachusetts, 383 U. S. 413 (1966). We expressed the view that Federal or State Governments could control the distribution of material where "three elements . . . coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value." Id. at 383 U. S. 418 . Even this formulation, however, concealed differences of opinion. Compare Jacobellis v. Ohio, supra, at 378 U. S. 192 -195 (BRENNAN, J., joined by Goldberg, J.) (community standards national), with id. at 378 U. S. 200 -201 (Warren, C.J., joined by Clark, J., dissenting) (community standards local). [ Footnote 2/7 ] Moreover, it did not provide a definition covering all situations. See Mishkin v. New York, 383 U. S. 502 (1966) Page 413 U. S. 82 (prurient appeal defined in terms of a deviant sexual group); Ginzburg v. United States, supra, ("pandering" probative evidence of obscenity in close cases). See also Ginsberg v. New York, 390 U. S. 629 (1968) (obscenity for juveniles). Nor, finally, did it ever command a majority of the Court. Aside from the other views described above, Mr. Justice Clark believed that "social importance" could only "be considered together with evidence that the material in question appeals to prurient interest and is patently offensive." Memoirs v. Massachusetts, supra, at 383 U. S. 445 (dissenting opinion). Similarly, MR. JUSTICE WHITE regarded "a publication to be obscene if its predominant theme appeals to the prurient interest in a manner exceeding customary limits of candor," id. at 383 U. S. 460 -461 (dissenting opinion), and regarded "'social importance' . . . not [as] an independent test of obscenity, but [as] relevant only to determining the predominant prurient interest of the material. . . ." Id. at 383 U. S. 462 . In the face of this divergence of opinion the Court began the practice in Redrup v. New York, 386 U. S. 767 (1967), of per curiam reversals of convictions for the dissemination of materials that, at least five members of the Court, applying their separate tests, deemed not to be obscene. [ Footnote 2/8 ] This approach capped the attempt in Page 413 U. S. 83 Roth to separate all forms of sexually oriented expression into two categories -- the one subject to full governmental suppression and the other beyond the reach of governmental regulation to the same extent as any other protected form of speech or press. Today a majority of the Court offers a slightly altered formulation of the basic Roth test, while leaving entirely unchanged the underlying approach. III Our experience with the Roth approach has certainly taught us that the outright suppression of obscenity cannot be reconciled with the fundamental principles of the First and Fourteenth Amendments. For we have failed to formulate a standard that sharply distinguishes protected from unprotected speech, and out of necessity, we have resorted to the Redrup approach, which resolves cases as between the parties, but offers only the most obscure guidance to legislation, adjudication by other courts, and primary conduct. By disposing of cases through summary reversal or denial of certiorari, we have deliberately and effectively obscured the rationale underlying the decisions. It comes as no surprise that judicial attempts to follow our lead conscientiously have often ended in hopeless confusion. Of course, the vagueness problem would be largely of our own creation if it stemmed primarily from our Page 413 U. S. 84 failure to reach a consensus on any one standard. But, after 16 years of experimentation and debate, I am reluctantly forced to the conclusion that none of the available formulas, including the one announced today, can reduce the vagueness to a tolerable level while at the same time striking an acceptable balance between the protections of the First and Fourteenth Amendments, on the one hand, and, on the other, the asserted state interest in regulating the dissemination of certain sexually oriented materials. Any effort to draw a constitutionally acceptable boundary on state power must resort to such indefinite concepts as "prurient interest," "patent offensiveness," "serious literary value," and the like. The meaning of these concepts necessarily varies with the experience, outlook, and even idiosyncrasies of the person defining them. Although we have assumed that obscenity does exist and that we "know it when [we] see it," Jacobellis v. Ohio, supra, at 378 U. S. 197 (STEWART, J., concurring), we are manifestly unable to describe it in advance except by reference to concepts so elusive that they fail to distinguish clearly between protected and unprotected speech. We have more than once previously acknowledged that "constitutionally protected expression . . . is often separated from obscenity only by a dim and uncertain line." Bantam Books, Inc. v. Sullivan, 372 U.S. at 372 U. S. 66 . See also, e.g., Mishkin v. New York, supra, at 383 U. S. 511 . Added to the "perhaps inherent residual vagueness" of each of the current multitude of standards, Ginzburg v. United States, supra, at 383 U. S. 475 n.19, is the further complication that the obscenity of any particular item may depend upon nuances of presentation and the context of its dissemination. See ibid. Redrup itself suggested that obtrusive exposure to unwilling individuals, distribution to juveniles, and "pandering" may also bear upon the determination of Page 413 U. S. 85 obscenity. See Redrup v. New York, supra, at 386 U. S. 769 . As Mr. Chief Justice Warren stated in a related vein, obscenity is a function of the circumstances of its dissemination: "It is not the book that is on trial; it is a person. The conduct of the defendant is the central issue, not the obscenity of a book or picture. The nature of the materials is, of course, relevant as an attribute of the defendant's conduct, but the materials are thus placed in context from which they draw color and character." Roth, 354 U.S. at 354 U. S. 495 (concurring opinion). See also, e.g., Jacobellis v. Ohio, supra, at 378 U. S. 201 (dissenting opinion); Kingsley Books, Inc. v. Brown, 354 U. S. 436 , 354 U. S. 445 -446 (1957) (dissenting opinion). I need hardly point out that the factors which must be taken into account are judgmental and can only be applied on "a case-by-case, sight-by-sight" basis. Mishkin v. New York, supra, at 383 U. S. 516 (Black, J., dissenting). These considerations suggest that no one definition, no matter how precisely or narrowly drawn, can possibly suffice for all situations, or carve out fully suppressible expression from all media without also creating a substantial risk of encroachment upon the guarantees of the Due Process Clause and the First Amendment. [ Footnote 2/9 ] Page 413 U. S. 86 The vagueness of the standards in the obscenity area produces a number of separate problems, and any improvement must rest on an understanding that the problems are to some extent distinct. First, a vague statute fails to provide adequate notice to persons who are engaged in the type of conduct that the statute could be thought to proscribe. The Due Process Clause of the Fourteenth Amendment requires that all criminal laws provide fair notice of "what the State commands or forbids." Lanzetta v. New Jersey, 30 U. S. 451 , 30 U. S. 453 (1939); Connally v. General Construction Co., 269 U. S. 385 (1926). In the service of this general principle, we have repeatedly held that the definition of obscenity must provide adequate notice of exactly what Page 413 U. S. 87 is prohibited from dissemination. See, e.g., Rabe v. Washington, 405 U. S. 313 (1972); Interstate Circuit, Inc. v. Dallas, 390 U. S. 676 (1968); Winters v. New York, 333 U. S. 507 (1948). While various tests have been upheld under the Due Process Clause, see Ginsberg v. New York, 390 U.S. at 390 U. S. 643 ; Mishkin v. New York, 383 U.S. at 383 U. S. 506 -507; Roth v. United States, 354 U.S. at 354 U. S. 491 -492, I have grave doubts that any of those test could be sustained today. For I know of no satisfactory answer to the assertion by Mr. Justice Black, "after the fourteen separate opinions handed down" in the trilogy of cases decided in 1966, that "no person, not even the most learned judge, much less a layman, is capable of knowing in advance of an ultimate decision in his particular case by this Court whether certain material comes within the area of 'obscenity.' . . ." Ginzburg v. United States, 383 U.S. at 383 U. S. 480 -481 (dissenting opinion). See also the statement of Mr. Justice Harlan in Interstate Circuit, Inc. v. Dallas, supra, at 390 U. S. 707 (separate opinion). As Mr. Chief Justice Warren pointed out, "[t]he constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." United States v. Harriss, 347 U. S. 612 , 347 U. S. 617 (1954). In this context, even the most painstaking efforts to determine in advance whether certain sexually oriented expression is obscene must inevitably prove unavailing. For the insufficiency of the notice compels persons to guess not only whether their conduct is covered by a criminal statute, but also whether their conduct falls within the constitutionally permissible reach of the statute. The resulting level of uncertainty is utterly intolerable, not alone because it makes Page 413 U. S. 88 "[b]ookselling . . . a hazardous profession," Ginsberg v. New York, supra, at 390 U. S. 674 (Fortas, J., dissenting), but as well because it invites arbitrary and erratic enforcement of the law. See, e.g., Papachristou v. City of Jacksonville, 405 U. S. 156 (1972); Gregory v. City of Chicago, 394 U. S. 111 , 394 U. S. 120 (1969) (Black, J., concurring); Niemotko v. Maryland, 340 U. S. 268 (1951); Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 308 (1940); Thornhill v. Alabama, 310 U. S. 88 (1940). In addition to problems that arise when any criminal statute fails to afford fair notice of what it forbids, a vague statute in the areas of speech and press creates a second level of difficulty. We have indicated that "stricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser. [ Footnote 2/10 ]" Smith v. California, 361 U. S. 147 , 361 U. S. 151 (1959). That proposition draws its strength from our recognition that "[t]he fundamental freedoms of speech and press have contributed greatly to the development and wellbeing of our free society, and are indispensable to its continued growth. Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar. . . ." Roth, supra, at 354 U. S. 488 . [ Footnote 2/11 ] Page 413 U. S. 89 To implement this general principle, and recognizing the inherent vagueness of any definition of obscenity, we have held that the definition of obscenity must be drawn as narrowly as possible, so as to minimize the interference with protected expression. Thus, in Roth, we rejected the test of Regina v. Hicklin, [1868] L.R. 3 Q.B. 360, that "[judged] obscenity by the effect of isolated passages upon the most susceptible persons." 354 U.S. at 354 U. S. 489 . That test, we held in Roth, "might well encompass material legitimately treating with sex. . . ." Ibid. Cf. Mishkin v. New York, supra, at 383 U. S. 509 . And we have supplemented the Roth standard with additional tests in an effort to hold in check the corrosive effect of vagueness on the guarantees of the First Amendment. [ Footnote 2/12 ] We have held, for example, that "a State is not free to adopt whatever procedures it pleases Page 413 U. S. 90 for dealing with obscenity. . . ." Marcus v. Search Warrant, 367 U. S. 717 , 367 U. S. 731 (1961). "Rather, the First Amendment requires that procedures be incorporated that 'ensure against the curtailment of constitutionally protected expression. . . .'" Blount v. Rizzi, 400 U. S. 410 , 400 U. S. 416 (1971), quoting from Bantam Books, Inc., v. Sullivan, 372 U.S. at 372 U. S. 66 . See generally Rizzi, supra, at 400 U. S. 417 ; United States v. Thirty-seven Photographs, 402 U. S. 363 , 402 U. S. 367 -375 (1971); Lee Art Theatre, Inc. v. Virginia, 392 U. S. 636 (1968); Freedman v. Maryland, 380 U. S. 51 , 380 U. S. 58 -60 (1965); A Quantity of Books v. Kansas, 378 U. S. 205 (1964) (plurality opinion). Similarly, we have held that a State cannot impose criminal sanctions for the possession of obscene material absent proof that the possessor had knowledge of the contents of the material. Smith v. California, supra. "Proof of scienter " is necessary "to avoid the hazard of self-censorship of constitutionally protected material and to compensate for the ambiguities inherent in the definition of obscenity." Mishkin v. New York, supra, at 383 U. S. 511 ; Ginsberg v. New York, supra, at 390 U. S. 644 -645. In short, "[t]he objectionable quality of vagueness and overbreadth . . . [is] the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application. Cf. Marcus v. Search Warrant, 367 U. S. 717 , 367 U. S. 733 . These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. Cf. Smith v. California, [361 U.S.], at 361 U. S. 151 -154; Speiser v. Randall, 357 U. S. 513 , 357 U. S. 526 . Because First Amendment freedoms need breathing space to survive, government Page 413 U. S. 91 may regulate in the area only with narrow specificity. Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 311 ." NAACP v. Button, 371 U. S. 415 , 371 U. S. 432 433 (1963). The problems of fair notice and chilling protected speech are very grave standing alone. But it does not detract from their importance to recognize that a vague statute in this area creates a third, although admittedly more subtle, set of problems. These problems concern the institutional stress that inevitably results where the line separating protected from unprotected speech is excessively vague. In Roth, we conceded that "there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls. . . ." 354 U.S. at 354 U. S. 491 -492. Our subsequent experience demonstrates that almost every case is "marginal." And since the "margin" marks the point of separation between protected and unprotected speech, we are left with a system in which almost every obscenity case presents a constitutional question of exceptional difficulty. "The suppression of a particular writing or other tangible form of expression is . . . an individual matter, and in the nature of things every such suppression raises an individual constitutional problem, in which a reviewing court must determine for itself whether the attacked expression is suppressable within constitutional standards." Roth, supra, at 354 U. S. 497 (separate opinion of Harlan, J.). Examining the rationale, both explicit and implicit, of our vagueness decisions, one commentator has viewed these decisions as an attempt by the Court to establish an "insulating buffer zone of added protection at the peripheries of several of the Bill of Rights freedoms." Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 75 (1960). The buffer zone enables the Court to fend off legislative attempts Page 413 U. S. 92 "to pass to the courts -- and ultimately to the Supreme Court -- the awesome task of making case by case at once the criminal and the constitutional law." Id. at 81. Thus, [b]ecause of the Court's limited power to reexamine fact on a cold record, what appears to be going on in the administration of the law must be forced, by restrictive procedures, to reflect what is really going on; and because of the impossibility, through sheer volume of cases, of the Court's effectively policing law administration case by case, those procedures must be framed to assure, as well as procedures can assure, a certain overall probability of regularity. Id. at 89 (emphasis in original). As a result of our failure to define standards with predictable application to any given piece of material, there is no probability of regularity in obscenity decisions by state and lower federal courts. That is not to say that these courts have performed badly in this area or paid insufficient attention to the principles we have established. The problem is, rather, that one cannot say with certainty that material is obscene until at least five members of this Court, applying inevitably obscure standards, have pronounced it so. The number of obscenity cases on our docket gives ample testimony to the burden that has been placed upon this Court. But the sheer number of the cases does not define the full extent of the institutional problem. For, quite apart from the number of cases involved and the need to make a fresh constitutional determination in each case, we are tied to the "absurd business of perusing and viewing the miserable stuff that pours into the Court. . . ." Interstate Circuit, Inc. v. Dallas, 390 U.S. at 390 U. S. 707 (separate opinion of Harlan, J.). While the material may have varying degrees of social importance, Page 413 U. S. 93 it is hardly a source of edification to the members of this Court who are compelled to view it before passing on its obscenity. Cf. Mishkin v. New York, 383 U.S. at 383 U. S. 516 -517 (Black, J., dissenting). Moreover, we have managed the burden of deciding scores of obscenity cases by relying on per curiam reversals or denials of certiorari -- a practice which conceals the rationale of decision and gives at least the appearance of arbitrary action by this Court. See Bloss v. Dykema, 398 U. S. 278 (1970) (Harlan, J., dissenting). More important, no less than the procedural schemes struck down in such cases as Blount v. Rizzi, supra, and Freedman v. Maryland, supra, the practice effectively censors protected expression by leaving lower court determinations of obscenity intact even though the status of the allegedly obscene material is entirely unsettled until final review here. In addition, the uncertainty of the standards creates a continuing source of tension between state and federal courts, since the need for an independent determination by this Court seems to render superfluous even the most conscientious analysis by state tribunals. And our inability to justify our decisions with a persuasive rationale -- or indeed, any rationale at all -- necessarily creates the impression that we are merely second-guessing state court judges. The severe problems arising from the lack of fair notice, from the chill on protected expression, and from the stress imposed on the state and federal judicial machinery persuade me that a significant change in direction is urgently required. I turn, therefore, to the alternatives that are now open. IV 1. The approach requiring the smallest deviation from our present course would be to draw a new line between protected and unprotected speech, still permitting Page 413 U. S. 94 the States to suppress all material on the unprotected side of the line. In my view, clarity cannot be obtained pursuant to this approach except by drawing a line that resolves all doubt in favor of state power and against the guarantees of the First Amendment. We could hold, for example, that any depiction or description of human sexual organs, irrespective of the manner or purpose of the portrayal, is outside the protection of the First Amendment, and therefore open to suppression by the States. That formula would, no doubt, offer much fairer notice of the reach of any state statute drawn at the boundary of the State's constitutional power. And it would also, in all likelihood, give rise to a substantial probability of regularity in most judicial determinations under the standard. But such a standard would be appallingly overbroad, permitting the suppression of a vast range of literary, scientific, and artistic masterpieces. Neither the First Amendment nor any free community could possibly tolerate such a standard. Yet, short of that extreme, it is hard to see how any choice of words could reduce the vagueness problem to tolerable proportions, so long as we remain committed to the view that some class of materials is subject to outright suppression by the State. 2. The alternative adopted by the Court today recognizes that a prohibition against any depiction or description of human sexual organs could not be reconciled with the guarantees of the First Amendment. But the Court does retain the view that certain sexually oriented material can be considered obscene, and therefore unprotected by the First and Fourteenth Amendments. To describe that unprotected class of expression, the Court adopts a restatement of the Roth-Memoirs definition of obscenity: "The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards,' would find that the Page 413 U. S. 95 work, taken as a whole, appeals to the prurient interest . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Miller v. California, ante at 413 U. S. 24 . In apparent illustration of "sexual conduct," as that term is used in the test's second element, the Court identifies "(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated," and "(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals." Id. at 413 U. S. 25 . The differences between this formulation and the three-pronged Memoirs test are, for the most part, academic. [ Footnote 2/13 ] The first element of the Court's test is virtually identical to the Memoirs requirement that "the dominant theme of the material taken as a whole [must appeal] to a prurient interest in sex." 383 U.S. at 383 U. S. 418 . Whereas the second prong of the Memoirs test demanded that the material be Page 413 U. S. 96 "patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters," ibid., the test adopted today requires that the material describe, "in a patently offensive way, sexual conduct specifically defined by the applicable state law." Miller v. California, ante at 413 U. S. 24 . The third component of the Memoirs test is that the material must be "utterly without redeeming social value." 383 U.S. at 383 U. S. 418 . The Court's rephrasing requires that the work, taken as a whole, must be proved to lack "serious literary, artistic, political, or scientific value." Miller, ante at 413 U. S. 24 . The Court evidently recognizes that difficulties with the Roth approach necessitate a significant change of direction. But the Court does not describe its understanding of those difficulties, nor does it indicate how the restatement of the Memoirs test is in any way responsive to the problems that have arisen. In my view, the restatement leaves unresolved the very difficulties that compel our rejection of the underlying Roth approach, while at the same time contributing substantial difficulties of its own. The modification of the Memoirs test may prove sufficient to jeopardize the analytic underpinnings of the entire scheme. And today's restatement will likely have the effect, whether or not intended, of permitting far more sweeping suppression of sexually oriented expression, including expression that would almost surely be held protected under our current formulation. Although the Court's restatement substantially tracks the three-part test announced in Memoirs v. Massachusetts, supra, it does purport to modify the "social value" component of the test. Instead of requiring, as did Roth and Memoirs, that state suppression be limited to materials utterly lacking in social value, the Court today Page 413 U. S. 97 permits suppression if the government can prove that the materials lack " serious literary, artistic, political or scientific value." But the definition of "obscenity" as expression utterly lacking in social importance is the key to the conceptual basis of Roth and our subsequent opinions. In Roth, we held that certain expression is obscene, and thus outside the protection of the First Amendment, precisely because it lacks even the slightest redeeming social value. See Roth v. United States, 354 U.S. at 354 U. S. 484 -485; [ Footnote 2/14 ] Jacobellis v. Ohio, 378 U.S. at 378 U. S. 191 ; Zeitlin v. Arnebergh, 59 Cal. 2d 901 , 920, 383 P.2d 152, 165; cf. New York Times Co. v. Sullivan, 376 U. S. 254 (1964); Garrison v. Louisiana, 379 U. S. 64 , 379 U. S. 75 (1964); Chaplinsky v. New Hampshire, 315 U. S. 568 , 315 U. S. 572 (1942); Kalven, The Metaphysics of the Law of Obscenity, 1960 Sup.Ct.Rev. 1. The Court's approach necessarily assumes that some works will be deemed obscene -- even though they clearly have some social value -- because the State was able to prove that the value, measured by some unspecified standard, was not sufficiently "serious" to warrant constitutional protection. That result is not merely inconsistent with our holding in Roth; it is nothing less than a rejection of the fundamental First Amendment premises and rationale of the Roth opinion and an invitation to widespread suppression of sexually oriented speech. Before today, the protections of the First Amendment have never been thought limited to expressions of serious literary or political value. See Gooding v. Wilson, 405 U. S. 518 Page 413 U. S. 98 (1972); Cohen v. California, 403 U. S. 15 , 403 U. S. 25 -26 (1971); Terminiello v. Chicago, 337 U. S. 1 , 337 U. S. 4 -5 (1949). Although the Court concedes that " Roth presumed obscenity' to be `utterly without redeeming social importance,'" it argues that Memoirs produced "a drastically altered test that called on the prosecution to prove a negative, i.e., that the material was 'utterly without redeeming social value' -- a burden virtually impossible to discharge under our criminal standards of proof. [ Footnote 2/15 ]" One should hardly need to point out that under the third component of the Court's test the prosecution is still required to "prove a negative" -- i.e., that the material lacks serious literary, artistic, political, or scientific value. Whether it will be easier to prove that material lacks "serious" value than to prove that it lacks any value at all remains, of course, to be seen. In any case, even if the Court's approach left undamaged the conceptual framework of Roth, and even if it clearly barred the suppression of works with at least some social value, I would nevertheless be compelled to reject it. For it is beyond dispute that the approach can have no ameliorative impact on the cluster of problems that grow out of the vagueness of our current standards. Indeed, even the Court makes no argument that the reformulation will provide fairer notice to booksellers, theater owners, and the reading and viewing public. Nor does the Court contend that the approach will provide clearer guidance to law enforcement officials or reduce the chill on protected expression. Nor, finally, does the Court suggest that the approach will mitigate to the slightest degree the institutional problems that have plagued this Court and the state and federal judiciary as a direct result of the uncertainty inherent in any definition of obscenity. Page 413 U. S. 99 Of course, the Court's restated Roth test does limit the definition of obscenity to depictions of physical conduct and explicit sexual acts. And that limitation may seem, at first glance, a welcome and clarifying addition to the Roth-Memoirs formula. But just as the agreement in Roth on an abstract definition of obscenity gave little hint of the extreme difficulty that was to follow in attempting to apply that definition to specific material, the mere formulation of a "physical conduct" test is no assurance that it can be applied with any greater facility. The Court does not indicate how it would apply its test to the materials involved in Miller v. California, supra, and we can only speculate as to its application. But even a confirmed optimist could find little realistic comfort in the adoption of such a test. Indeed, the valiant attempt of one lower federal court to draw the constitutional line at depictions of explicit sexual conduct seems to belie any suggestion that this approach marks the road to clarity. [ Footnote 2/16 ] The Court surely demonstrates little sensitivity to our own institutional problems, much less the other vagueness-related difficulties, in establishing a system that requires us to consider whether a description of human genitals is sufficiently "lewd" to deprive it of constitutional protection; whether a sexual act is "ultimate"; whether the conduct depicted in materials before us fits within one of the categories of conduct whose depiction the State and Federal Governments have attempted to suppress; and a host of equally pointless inquiries. In addition, adoption of such a test does not, presumably, obviate the need for consideration of the Page 413 U. S. 100 nuances of presentation of sexually oriented material, yet it hardly clarifies the application of those opaque but important factors. If the application of the "physical conduct" test to pictorial material is fraught with difficulty, its application to textual material carries the potential for extraordinary abuse. Surely we have passed the point where the mere written description of sexual conduct is deprived of First Amendment protection. Yet the test offers no guidance to us, or anyone else, in determining which written descriptions of sexual conduct are protected, and which are not. Ultimately, the reformulation must fail because it still leaves in this Court the responsibility of determining in each case whether the materials are protected by the First Amendment. The Court concedes that, even under its restated formulation, the First Amendment interests at stake require "appellate courts to conduct an independent review of constitutional claims when necessary," Miller v. California, ante at 413 U. S. 25 , citing Mr. Justice Harlan's opinion in Roth, where he stated, "I do not understand how the Court can resolve the constitutional problems now before it without making its own independent judgment upon the character of the material upon which these convictions were based." 354 U.S. at 354 U. S. 498 . Thus, the Court's new formulation will not relieve us of "the awesome task of making case by case at once the criminal and the constitutional law." [ Footnote 2/17 ] And the careful efforts of state and lower federal courts to apply the standard will remain an essentially pointless exercise, in view of the need for an ultimate decision by this Court. In addition, since the status of sexually oriented material will necessarily remain in doubt until final Page 413 U. S. 101 decision by this Court, the new approach will not diminish the chill on protected expression that derives from the uncertainty of the underlying standard. I am convinced that a definition of obscenity in terms of physical conduct cannot provide sufficient clarity to afford fair notice, to avoid a chill on protected expression, and to minimize the institutional stress, so long as that definition is used to justify the outright suppression of any material that is asserted to fall within its terms. 3. I have also considered the possibility of reducing our own role, and the role of appellate courts generally, in determining whether particular matter is obscene. Thus, we might conclude that juries are best suited to determine obscenity vel non, and that jury verdicts in this area should not be set aside except in cases of extreme departure from prevailing standards. Or, more generally, we might adopt the position that, where a lower federal or state court has conscientiously applied the constitutional standard, its finding of obscenity will be no more vulnerable to reversal by this Court than any finding of fact. Cf. Interstate Circuit, Inc. v. Dallas, 390 U.S. at 390 U. S. 706 -707 (separate opinion of Harlan, J.). While the point was not clearly resolved prior to our decision in Redrup v. New York, 386 U. S. 767 (1967), [ Footnote 2/18 ] it is implicit in that decision that the First Amendment requires Page 413 U. S. 102 an independent review by appellate courts of the constitutional fact of obscenity. [ Footnote 2/19 ] That result is required by principles applicable to the obscenity issue no less than to any other area involving free expression, see, e.g., New York Times Co. v. Sullivan, 376 U.S. at 376 U. S. 284 -285, or other constitutional right. [ Footnote 2/20 ] In any event, even if the Constitution would permit us to refrain from judging for ourselves the alleged obscenity of particular materials, that approach would solve at best only a small part of our problem. For while it would mitigate the institutional stress produced by the Roth approach, it would neither offer nor produce any cure for the other vices of vagueness. Far from providing a clearer guide to permissible primary conduct, the approach would inevitably lead to even greater uncertainty and the consequent due process problems of fair notice. And the approach would expose much protected, sexually oriented expression to the vagaries of jury determinations. Cf. Herndon v. Lowry, 301 U. S. 242 , 301 U. S. 263 (1937). Plainly, the institutional gain would be more than offset by the unprecedented infringement of First Amendment rights. 4. Finally, I have considered the view, urged so forcefully since 1957 by our Brothers Black and DOUGLAS, that the First Amendment bars the suppression of any sexually oriented expression. That position would effect a sharp reduction, although perhaps not a total elimination, of the uncertainty that surrounds our current Page 413 U. S. 103 approach. Nevertheless, I am convinced that it would achieve that desirable goal only by stripping the States of power to an extent that cannot be justified by the commands of the Constitution, at least so long as there is available an alternative approach that strikes a better balance between the guarantee of free expression and the States' legitimate interests. V Our experience since Roth requires us not only to abandon the effort to pick out obscene materials on a case-by-case basis, but also to reconsider a fundamental postulate of Roth: that there exists a definable class of sexually oriented expression that may be totally suppressed by the Federal and State Governments. Assuming that such a class of expression does in fact, exist, [ Footnote 2/21 ] I am forced to conclude that the concept of "obscenity" cannot be defined with sufficient specificity and clarity to provide fair notice to persons who create and distribute sexually oriented materials, to prevent substantial erosion of protected speech as a byproduct of the attempt to suppress unprotected speech, and to avoid very costly institutional harms. Given these inevitable side effects of state efforts to suppress what is assumed to be unprotected speech, we must scrutinize with care the state interest that is asserted to justify the suppression. For, in the absence of some very substantial interest in suppressing such speech, we can hardly condone the ill effects that seem to flow inevitably from the effort. [ Footnote 2/22 ] Page 413 U. S. 104 Obscenity laws have a long history in this country. Most of the States that had ratified the Constitution by 1792 punished the related crime of blasphemy or profanity despite the guarantees of free expression in their constitutions, and Massachusetts expressly prohibited the "Composing, Writing, Printing or Publishing, of any Filthy Obscene or Prophane Song, Pamphlet, Libel or Mock-Sermon, in Imitation or in Mimicking of Preaching, or any other part of Divine Worship." Acts and Laws of Massachusetts Bay Colony (1726), Acts of 1711-1712, c. 1, p. 218. In 1815, the first reported obscenity conviction was obtained under the common law of Pennsylvania. See Commonwealth v. Sharpless, 2 S. & R. 91. A conviction in Massachusetts under its common law and colonial statute followed six years later. See Commonwealth v. Holmes, 17 Mass. 336 (1821). In 1821, Vermont passed the first state law proscribing the publication or sale of "lewd or obscene" material, Laws of Vermont, 1824, c. XXXII, No. 1, § 23, and federal legislation barring the importation of similar matter appeared in 1842. See Tariff Act of 1842, § 28, 5 Stat. 566. Although the number of early obscenity laws was small and their enforcement exceedingly lax, the situation significantly changed after about 1870, when Federal and State Governments, mainly as a result of the efforts Page 413 U. S. 105 of Anthony Comstock, took an active interest in the suppression of obscenity. By the end of the 19th century, at least 30 States had some type of General prohibition on the dissemination of obscene materials, and by the time of our decision in Roth, no State was without some provision on the subject. The Federal Government meanwhile had enacted no fewer than 20 obscenity laws between 1842 and 1956. See Roth v. United States, 354 U.S. at 354 U. S. 482 -483, 354 U. S. 485 ; Report of the Commission on Obscenity and Pornography 300-301 (1970). This history caused us to conclude in Roth "that the unconditional phrasing of the First Amendment [that 'Congress shall make no law . . . abridging the freedom of speech, or of the press . . .'] was not intended to protect every utterance." 354 U.S. at 354 U. S. 483 . It also caused us to hold, as numerous prior decisions of this Court had assumed, see id. at 354 U. S. 481 , that obscenity could be denied the protection of the First Amendment, and hence suppressed because it is a form of expression "utterly without redeeming social importance," id. at 354 U. S. 484 , as "mirrored in the universal judgment that [it] should be restrained. . . ." Id. at 354 U. S. 485 . Because we assumed -- incorrectly, as experience has proved -- that obscenity could be separated from other sexually oriented expression without significant costs either to the First Amendment or to the judicial machinery charged with the task of safeguarding First Amendment freedoms, we had no occasion in Roth to probe the asserted state interest in curtailing unprotected, sexually oriented speech. Yet, as we have increasingly come to appreciate the vagueness of the concept of obscenity, we have begun to recognize and articulate the state interests at stake. Significantly, in Redrup v. New York, 386 U. S. 767 (1967), where we set aside findings Page 413 U. S. 106 of obscenity with regard to three sets of material, we pointed out that "[i]n none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles. See Prince v. Massachusetts, 321 U. S. 158 ; cf. Butler v. Michigan, 352 U. S. 380 . In none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it. Cf. Breard v. Alexandria, 341 U. S. 622 ; Public Utilities Comm'n v. Pollak, 343 U. S. 451 . And in none was there evidence of the sort of 'pandering' which the Court found significant in Ginzburg v. United States, 383 U. S. 463 ." 386 U.S. at 386 U. S. 769 . See Rowan v. Post Office Dept., 397 U. S. 728 (1970); Stanley v. Georgia, 394 U.S. at 394 U. S. 567 . [ Footnote 2/23 ] The opinions in Redrup and Stanley reflected our emerging view that the state interests in protecting children and in protecting unconsenting adults may stand on a different footing from the other asserted state interests. It may well be, as one commentator has argued, that "exposure to [erotic material] is for some persons an intense emotional experience. A communication of this nature, imposed upon a person contrary to his wishes, Page 413 U. S. 107 has all the characteristics of a physical assault. . . . [And it] constitutes an invasion of his privacy. . . . [ Footnote 2/24 ]" But cf. Cohen v. California, 403 U.S. at 403 U. S. 21 -22. Similarly, if children are "not possessed of that full capacity for individual choice which is the presupposition of the First Amendment guarantees," Ginsberg v. New York, 390 U.S. at 390 U. S. 649 -650 (STEWART, J., concurring), then the State may have a substantial interest in precluding the flow of obscene materials even to consenting juveniles. [ Footnote 2/25 ] But cf. id. at 390 U. S. 673 -674 (Fortas, J., dissenting). But, whatever the strength of the state interests in protecting juveniles and unconsenting adults from exposure to sexually oriented materials, those interests cannot be asserted in defense of the holding of the Georgia Supreme Court in this case. That court assumed for the purposes of its decision that the films in issue were exhibited only to persons over the age of 21 who viewed them willingly and with prior knowledge of the nature of their contents. And on that assumption, the state court held that the films could still be suppressed. The justification for the suppression must be found, therefore, in some independent interest in regulating the reading and viewing habits of consenting adults. At the outset, it should be noted that virtually all of the interests that might be asserted in defense of suppression, laying aside the special interests associated with distribution to juveniles and unconsenting adults, were also posited in Stanley v. Georgia, supra, where we held that the State could not make the "mere private possession of obscene material a crime." Id. at 394 U. S. 568 . That decision presages the conclusions I reach here today. In Stanley, we pointed out that "[t]here appears to be Page 413 U. S. 108 little empirical basis for" the assertion that "exposure to obscene materials may lead to deviant sexual behavior or crimes of sexual violence." Id. at 394 U. S. 566 and n. 9. [ Footnote 2/26 ] In any event, we added that "if the State is only concerned about printed or filmed materials inducing antisocial conduct, we believe that in the context of private consumption of ideas and information we should adhere to the view that '[a]mong free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law. . . .' Whitney v. California, 274 U. S. 357 , 274 U. S. 378 (1927) (Brandeis, J., concurring)." Id. at 394 U. S. 566 -567. Moreover, in Stanley, we rejected as "wholly inconsistent with the philosophy of the First Amendment," id. at 394 U. S. 566 , the notion that there is a legitimate state concern in the "control [of] the moral content of a person's thoughts," id. at 394 U. S. 565 , and we held that a State "cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts." Id. at 394 U. S. 566 . That is not to say, of course, that a State must remain utterly indifferent to -- and take no action bearing on -- the morality of the community. The traditional description Page 413 U. S. 109 of state police power does embrace the regulation of morals as well as the health, safety, and general welfare of the citizenry. See, e.g., Village of Euclid v. Ambler Realty Co., 272 U. S. 365 , 272 U. S. 395 (1926). And much legislation -- compulsory public education laws, civil rights laws, even the abolition of capital punishment -- is grounded, at least in part, on a concern with the morality of the community. But the State's interest in regulating morality by suppressing obscenity, while often asserted, remains essentially unfocused and ill-defined. And, since the attempt to curtail unprotected speech necessarily spills over into the area of protected speech, the effort to serve this speculative interest through the suppression of obscene material must tread heavily on rights protected by the First Amendment. In Roe v. Wade, 410 U. S. 113 (1973), we held constitutionally invalid a state abortion law, even though we were aware of "the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion." Id. at 116. Like the proscription of abortions, the effort to suppress obscenity is predicated on unprovable, although strongly held, assumptions about human behavior, morality, sex, and religion. [ Footnote 2/27 ] The existence of these assumptions cannot Page 413 U. S. 110 validate a statute that substantially undermines the guarantees of the First Amendment, any more than the existence of similar assumptions on the issue of abortion can validate a statute that infringes the constitutionally protected privacy interests of a pregnant woman. If, as the Court today assumes, "a state legislature may . . . act on the . . . assumption that commerce in obscene books, or public exhibitions focused on obscene conduct, have a tendency to exert a corrupting and debasing impact leading to antisocial behavior," ante at 413 U. S. 63 , then it is hard to see how state-ordered regimentation of our minds can ever be forestalled. For if a State, in an effort to maintain or create a particular moral tone, may prescribe what its citizens cannot read or cannot see, then it would seem to follow that in pursuit of that same objective a State could decree that its citizens must read certain books or must view certain films. Cf. United States v. Roth, 237 F.2d 796, 823 (CA2 1956) (Frank, J., concurring). However laudable its goal -- and that is obviously a question on which reasonable minds may differ -- the State cannot proceed by means that violate the Constitution. The precise point was established a half century ago in Meyer v. Nebraska, 262 U. S. 390 (1923). "That the State may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally, is clear; but the individual has certain fundamental rights which must be respected. The protection of the Constitution extends to all, to those who speak other languages as well as to those born with English on the tongue. Perhaps it would be highly advantageous if all had ready understanding of our ordinary speech, but this cannot be coerced by methods which conflict with the Constitution -- a desirable end cannot be promoted by prohibited means. " Page 413 U. S. 111 "For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide:" "That the wives of our guardians are to be common, and their children are to be common, and no parent is to know his own child, nor any child his parent. . . . The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be." "In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius, their ideas touching the relation between individual and State were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a State without doing violence to both letter and spirit of the Constitution." Id. at 401-402. Recognizing these principles, we have held that so-called thematic obscenity -- obscenity which might persuade the viewer or reader to engage in "obscene" conduct -- is not outside the protection of the First Amendment: "It is contended that the State's action was justified because the motion picture attractively portrays a relationship which is contrary to the moral standards, the religious precepts, and the legal code of its citizenry. This argument misconceives what it is that the Constitution protects. Its guarantee is Page 413 U. S. 112 not confined to the expression of ideas that are conventional or shared by a majority. It protects advocacy of the opinion that adultery may sometimes be proper, no less than advocacy of socialism or the single tax. And, in the realm of ideas, it protects expression which is eloquent no less than that which is unconvincing." Kingsley Pictures Corp. v. Regents, 360 U. S. 684 , 360 U. S. 688 -689 (1959). Even a legitimate, sharply focused state concern for the morality of the community cannot, in other words, justify an assault on the protections of the First Amendment. Cf. Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); Loving v. Virginia, 388 U. S. 1 (1967). Where the state interest in regulation of morality is vague and ill-defined, interference with the guarantees of the First Amendment is even more difficult to justify. [ Footnote 2/28 ] In short, while I cannot say that the interests of the State apart from the question of juveniles and unconsenting adults -- are trivial or nonexistent, I am compelled to conclude that these interests cannot justify the substantial damage to constitutional rights and to this Nation's judicial machinery that inevitably results Page 413 U. S. 113 from state efforts to bar the distribution even of unprotected material to consenting adults. NAACP v. Alabama, 377 U. S. 288 , 377 U. S. 307 (1964); Cantwell v. Connecticut, 310 U.S. at 310 U. S. 304 . I would hold, therefore, that, at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly "obscene" contents. Nothing in this approach precludes those governments from taking action to serve what may be strong and legitimate interests through regulation of the manner of distribution of sexually oriented material. VI Two Terms ago we noted that "there is developing sentiment that adults should have complete freedom to produce, deal in, possess and consume whatever communicative materials may appeal to them and that the law's involvement with obscenity should be limited to those situations where children are involved or where it is necessary to prevent imposition on unwilling recipients of whatever age. The concepts involved are said to be so elusive and the laws so inherently unenforceable without extravagant expenditures of time and effort by enforcement officers and the courts that basic reassessment is not only wise but essential." United States v. Reidel, 402 U.S. at 402 U. S. 357 . Nevertheless, we concluded that "the task of restructuring the obscenity laws lies with those who pass, repeal, and amend statutes and ordinances." Ibid. But the law of obscenity has been fashioned by this Court -- and necessarily so under our duty to enforce the Constitution. Page 413 U. S. 114 It is surely the duty of this Court, as expounder of the Constitution, to provide a remedy for the present unsatisfactory state of affairs. I do not pretend to have found a complete and infallible answer to what Mr. Justice Harlan called "the intractable obscenity problem." Interstate Circuit, Inc. v. Dallas, 390 U.S. at 390 U. S. 704 (separate opinion). See also Memoirs v. Massachusetts, 383 U.S. at 383 U. S. 456 (dissenting opinion). Difficult questions must still be faced, notably in the areas of distribution to juveniles and offensive exposure to unconsenting adults. Whatever the extent of state power to regulate in those areas, [ Footnote 2/29 ] it should be clear that the view I espouse today would introduce a large measure of clarity to this troubled area, would reduce the institutional pressure on this Court and the rest of the State and Federal Judiciary, and would guarantee fuller freedom of expression while leaving room for the protection of legitimate governmental interests. Since the Supreme Court of Georgia erroneously concluded that the State has power to suppress sexually oriented material even in the absence of distribution to juveniles or exposure to unconsenting adults, I would reverse that judgment and remand the case to that court for further proceedings not inconsistent with this opinion. [ Footnote 2/1 ] Ga.Code Ann. § 22101 provides in pertinent part that "(b) Material is obscene if considered as a whole, applying community standards, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and utterly without redeeming social value and if, in addition, it goes substantially beyond customary limits of candor in describing or representing such matters. Undeveloped photographs, molds, printing plates and the like shall be deemed obscene notwithstanding that processing or other acts may be required to make the obscenity patent or to disseminate it." [ Footnote 2/2 ] Ga.Code § 22101(a): "A person commits the offense of distributing obscene materials [as described in subsection (b), 413 U.S. 49 fn2/1|>n. 1, supra ] when he sells, lends, rents, leases, gives, advertises, publishes, exhibits or otherwise disseminates to any person any obscene material of any description, knowing the obscene nature thereof, or who offers to do so, or who possesses such material with the intent so to do. . . ." [ Footnote 2/3 ] The precise holding of the trial court is not free from ambiguity. After pointing out that the films could be considered obscene, and that they still could not be suppressed in the absence of exposure to juveniles or unconsenting adults, the trial court concluded that "[i]t is the judgment of this court that the films, even though they display the human body and the human personality in a most degrading fashion, are not obscene." It is not clear whether the trial court found that the films were not obscene in the sense that they were protected expression under the standards of Roth v. United States, 354 U. S. 476 (1957), and Redrup v. New York, 386 U. S. 767 (1967), or whether it used the expression "not obscene" as a term of art to indicate that the films could not be suppressed even though they were not protected under the Roth-Redrup standards. In any case, the Georgia Supreme Court viewed the trial court's opinion as holding that the films could not be suppressed, even if they were unprotected expression, provided that they were not exhibited to juveniles or unconsenting adults. [ Footnote 2/4 ] "As to all such problems, this Court said in Thornhill v. Alabama, 310 U. S. 88 , 310 U. S. 101 -102 (1940): " "'The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times. . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period. ' (Emphasis added.)" Roth, 354 U.S. at 354 U. S. 487 -488. See also, e.g., Thomas v. Collins, 323 U. S. 516 , 323 U. S. 531 (1945) ("the rights of free speech and a free press are not confined to any field of human interest"). [ Footnote 2/5 ] See, e.g., Kalven, The Metaphysics of the Law of Obscenity, 1960 Sup.Ct.Rev. 1, 10-11; cf. Beauharnais v. Illinois, 343 U. S. 250 (1952). [ Footnote 2/6 ] See, e.g., T. Emerson, The System of Freedom of Expression 487 (1970); Kalven, supra, 413 U.S. 49 fn2/5|>n. 5; Comment, More Ado About Dirty Books, 75 Yale L.J. 1364 (1966). [ Footnote 2/7 ] On the question of community standards see also Hoyt v. Minnesota, 399 U. S. 524 (1970) (BLACKMUN, J., joined by BURGER, C.J., and Harlan, J., dissenting) (flexibility for state standards); Cain v. Kentucky, 397 U. S. 319 (1970) (BURGER, C.J., dissenting) (same); Manual Enterprises v. Day, 370 U. S. 478 , 370 U. S. 488 (1962) (Harlan, J., joined by STEWART, J.) (national standards in context of federal prosecution). [ Footnote 2/8 ] No fewer than 31 cases have been disposed of in this fashion. Aside from the three cases reversed in Redrup, they are: Keney v. New York, 388 U. S. 440 (1967); Friedman v. New York, 388 U. S. 441 (1967); Ratner v. California, 388 U. S. 442 (1967); Cobert v. New York, 388 U. S. 443 (1967); Sheperd v. New York, 388 U. S. 444 (1967); Avansino v. New York, 388 U. S. 446 (1967); Aday v. New York, 388 U. S. 447 (1967); Books, Inc. v. United States, 388 U. S. 449 (1967); A Quantity of Books v. Kansas, 388 U. S. 452 (1967); Mazes v. Ohio, 388 U. S. 453 (1967); Schackman v. California, 388 U. S. 454 (1967); Potomac News Co. v. United States, 389 U. S. 47 (1967); Conner v. City of Hammond, 389 U. S. 48 (1967); Central Magazine Sales, Ltd. v. United States, 389 U. S. 50 (1967); Chance v. California, 389 U. S. 89 (1967); I. M. Amusement Corp. v. Ohio, 389 U. S. 573 (1968); Robert Arthur Management Corp. v. Tennessee, 389 U. S. 578 (1968); Felton v. City of Pensacola, 390 U. S. 340 (1968); Henry v. Louisiana, 392 U. S. 655 (1968); Cain v. Kentucky, supra; Bloss v. Dykema, 398 U. S. 278 (1970); Walker v. Ohio, 398 U. S. 434 (1970); Hoyt v. Minnesota, supra; Childs v. Oregon, 401 U.S. 1006 (1971); Bloss v. Michigan, 402 U.S. 938 (1971); Burgin v. South Carolina, 404 U. S. 809 (1971); Hartstein v. Missouri, 404 U.S. 988 (1971); Wiener v. California, 404 U.S. 988 (1971). [ Footnote 2/9 ] Although I did not join the opinion of the Court in Stanley v. Georgia, 394 U. S. 557 (1969), I am now inclined to agree that "the Constitution protects the right to receive information and ideas," and that "[t]his right to receive information and ideas, regardless of their social worth . . . is fundamental to our free society." Id. at 394 U. S. 564 . See Martin v. City of Struthers, 319 U. S. 141 , 319 U. S. 143 (1943); Winters v. New York, 333 U. S. 507 , 333 U. S. 510 (1948); Lamont v. Postmaster General, 381 U. S. 301 , 381 U. S. 307 -308 (1965) (concurring opinion). This right is closely tied, as Stanley recognized, to "the right to be free, except in very limited circumstances, from unwarranted governmental intrusions into one's privacy." 394 U.S. at 394 U. S. 564 . See Griswold v. Connecticut, 381 U. S. 479 (1965); Olmstead v. United States, 277 U. S. 438 , 277 U. S. 478 (1928) (Brandeis, J., dissenting). It is similarly related to "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child" (italics omitted), Eisenstadt v. Baird, 405 U. S. 438 , 405 U. S. 453 (1972), and the right to exercise "autonomous control over the development and expression of one's intellect, interests, tastes, and personality." (Italics omitted.) Doe v. Bolton, 410 U. S. 179 , 410 U. S. 211 (1973) (DOUGLAS, J., concurring). It seems to me that the recognition of these intertwining rights calls in question the validity of the two-level approach recognized in Roth. After all, if a person has the right to receive information without regard to its social worth -- that is, without regard to its obscenity -- then it would seem to follow that a State could not constitutionally punish one who undertakes to provide this information to a willing adult recipient. See Eisenstadt v. Baird, supra, at 405 U. S. 443 -446. In any event, I need not rely on this line of analysis or explore all of its possible ramifications, for there is available a narrower basis on which to rest this decision. Whether or not a class of "obscene" and thus entirely unprotected speech does exist, I am forced to conclude that the class is incapable of definition with sufficient clarity to withstand attack on vagueness grounds. Accordingly, it is on principles of the "void for vagueness" doctrine that this opinion exclusively relies. [ Footnote 2/10 ] In this regard, the problems of vagueness and overbreadth are, plainly, closely intertwined. See NAACP v. Button, 371 U. S. 415 , 371 U. S. 432 -433 (1963); Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 845 (1970). Cf. infra at 413 U. S. 93 -94. [ Footnote 2/11 ] See also Speiser v. Randall, 357 U. S. 513 (1958); cf. Barenblatt v. United States, 360 U. S. 109 , 360 U. S. 137 -138 (1959) (Black, J., dissenting): "This Court . . . has emphasized that the 'vice of vagueness' is especially pernicious where legislative power over an area involving speech, press, petition and assembly is involved. . . . For a statute broad enough to support infringement of speech, writings, thoughts and public assemblies, against the unequivocal command of the First Amendment necessarily leaves all persons to guess just what the law really means to cover, and fear of a wrong guess inevitably leads people to forego the very rights the Constitution sought to protect above all others. Vagueness becomes even more intolerable in this area if one accepts, as the Court today does, a balancing test to decide if First Amendment rights shall be protected. It is difficult, at best, to make a man guess -- at the penalty of imprisonment -- whether a court will consider the State's need for certain information superior to society's interest in unfettered freedom. It is unconscionable to make him choose between the right to keep silent and the need to speak when the statute supposedly establishing the state's interest' is too vague to give him guidance." (Citations omitted.) [ Footnote 2/12 ] Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 885-886 and n. 158 (1970) ("Thus, in the area of obscenity the overbreadth doctrine operates interstitially, when no line of privilege is apposite or yet to be found, to control the impact of schemes designed to curb distribution of unprotected material"). [ Footnote 2/13 ] While the Court's modification of the Memoirs test is small, it should still prove sufficient to invalidate virtually every state law relating to the suppression of obscenity. For, under the Court's restatement, a statute must specifically enumerate certain forms of sexual conduct, the depiction of which is to be prohibited. It seems highly doubtful to me that state courts will be able to construe state statutes so as to incorporate a carefully itemized list of various forms of sexual conduct, and thus to bring them into conformity with the Court's requirements. Cf. Blount v. Rizzi, 400 U. S. 410 , 400 U. S. 419 (1971). The statutes of at least one State should, however, escape the wholesale invalidation. Oregon has recently revised its statute to prohibit only the distribution of obscene materials to juveniles or unconsenting adults. The enactment of this principle is, of course, a choice constitutionally open to every State, even under the Court's decision. See Oregon Laws 1971, c. 743, Art. 29, §§ 255-262. [ Footnote 2/14 ] "All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion -- have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance." Roth v. United States, supra, at 354 U. S. 484 . [ Footnote 2/15 ] Miller v. California, ante at 413 U. S. 22 . [ Footnote 2/16 ] Huffman v. United States, 152 U.S. App. D.C. 238, 470 F.2d 386 (1971). The test apparently requires an effort to distinguish between "singles" and "duals," between "erect penises" and "semi-erect penises," and between "ongoing sexual activity" and "imminent sexual activity." [ Footnote 2/17 ] Note, The "Void for Vagueness" Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 81 (1960). [ Footnote 2/18 ] Compare Ginsberg v. New York, 390 U. S. 629 , 390 U. S. 672 (1968) (Fortas, J., dissenting); Jacobellis v. Ohio, 378 U. S. 184 , 378 U. S. 187 -190 (1964) (BRENNAN, J., joined by Goldberg, J.); Manual Enterprises v. Day, 370 U.S. at 370 U. S. 488 (Harlan, J., joined by STEWART, J.); and Kingsley Pictures Corp. v. Regents, 360 U. S. 684 , 360 U. S. 696 -697 (1959) (Frankfurter, J., concurring); id. at 360 U. S. 708 (Harlan, J., joined by Frankfurter, J., and Whittaker, J., concurring), with Jacobellis v. Ohio, supra, at 378 U. S. 202 -203 (Warren, C.J., joined by Clark, J., dissenting); Roth v. United States, 354 U.S. at 354 U. S. 492 n. 30; and Kingsley Books, Inc. v. Brown, 354 U. S. 436 , 354 U. S. 448 (1957) (BRENNAN, J., dissenting). See also Walker v. Ohio, 398 U. S. 434 (1970) (BURGER, C.J., dissenting). [ Footnote 2/19 ] Mr. Justice Harlan, it bears noting, considered this requirement critical for review of not only federal but state convictions, despite his view that the States were accorded more latitude than the Federal Government in defining obscenity. See, e.g., Roth supra, at 354 U. S. 502 -503 (separate opinion). [ Footnote 2/20 ] See generally Culombe v. Connecticut, 367 U. S. 568 , 367 U. S. 603 -606 (1961) (opinion of Frankfurter, J.); cf. Crowell v. Benson, 285 U. S. 22 , 285 U. S. 55 -65 (1932); Ng Fung Ho v. White, 259 U. S. 276 , 259 U. S. 284 -285 (1922). [ Footnote 2/21 ] See 413 U.S. 49 fn2/9|>n. 9, supra. [ Footnote 2/22 ] Cf. United States v. O'Brien, 391 U. S. 367 , 391 U. S. 376 -377 (1968): "This Court has held that, when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." (Footnotes omitted.) See also Speiser v. Randall, 357 U. S. 513 (1958). [ Footnote 2/23 ] See also Rabe v. Washington, 405 U. S. 313 , 405 U. S. 317 (1972) (concurring opinion); United States v. Reidel, 402 U. S. 351 , 402 U. S. 360 -362 (1971) (separate opinion); Ginsberg v. New York, 390 U. S. 629 (1968); id. at 390 U. S. 674 -675 (dissenting opinion); Redmond v. United States, 384 U. S. 264 , 384 U. S. 265 (1966); Ginzburg v. United States, 383 U. S. 463 (1966); id. at 383 U. S. 498 n. 1 (dissenting opinion); Memoirs v. Massachusetts, 383 U. S. 413 , 383 U. S. 421 n. 8 (1966); Jacobellis v. Ohio, 378 U.S. at 378 U. S. 195 (1964) (opinion of BRENNAN, J., joined by Goldberg, J.); id. at 378 U. S. 201 (dissenting opinion). See also Report of the Commission on Obscenity and Pornography 300-301 (1970) (focus of early obscenity laws on protection of youth). [ Footnote 2/24 ] T. Emerson, The System of Freedom of Expression 496 (1970). [ Footnote 2/25 ] See ibid. [ Footnote 2/26 ] Indeed, since Stanley was decided, the President's Commission on Obscenity and Pornography has concluded: "In sum, empirical research designed to clarify the question has found no evidence to date that exposure to explicit sexual materials plays a significant role in the causation of delinquent or criminal behavior among youth or adults. The Commission cannot conclude that exposure to erotic materials is a factor in the causation of sex crime or sex delinquency." Report of the Commission on Obscenity and Pornography 27 (1970) (footnote omitted). To the contrary, the Commission found that, "[o]n the positive side, explicit sexual materials are sought as a source of entertainment and information by substantial numbers of American adults. At times, these materials also appear to serve to increase and facilitate constructive communication about sexual matters within marriage." Id. at 53. [ Footnote 2/27 ] See Henkin, Morals and the Constitution: The Sin of Obscenity, 63 Col.L.Rev. 391, 395 (1963). [ Footnote 2/28 ] "[I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U. S. 1 (1949); and our history says that it is this sort of hazardous freedom -- this kind of openness -- that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society." Tinker v. Des Moines School District, 393 U. S. 503 , 393 U. S. 508 -509 (1969). See also Cohen v. California, 403 U. S. 15 , 403 U. S. 23 (1971). [ Footnote 2/29 ] The Court erroneously states, Miller v. California, ante at 413 U. S. 27 , that the author of this opinion "indicates that suppression of unprotected obscene material is permissible to avoid exposure to unconsenting adults . . . and to juveniles. . . ." I defer expression of my views as to the scope of state power in these areas until cases squarely presenting these questions are before the Court. See 413 U.S. 49 fn2/9|>n. 9, supra; Miller v. California, supra, (dissenting opinion).

In Paris Adult Theatre I v. Slaton, the U.S. Supreme Court held that obscene material is not protected by the First Amendment and that states have a legitimate interest in regulating its exhibition in public places, including adult theaters. The Court also upheld the Georgia civil procedure used in this case and found that expert evidence of obscenity was not necessary when the films themselves were placed into evidence. The Court distinguished between the privacy of the home and public places, concluding that a commercial theater does not enjoy the same privacy protections as a private home.

Free Speech

FCC v. League of Women Voters

https://supreme.justia.com/cases/federal/us/468/364/

U.S. Supreme Court FCC v. League of Women Voters, 468 U.S. 364 (1984) Federal Communications Commission v. League of Women Voters of California No. 82-912 Argued January 16, 1984 Decided July 2, 1984 468 U.S. 364 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA Syllabus The Public Broadcasting Act of 1967 (Act) established the Corporation for Public Broadcasting (CPB), a nonprofit corporation, to disburse federal funds to noncommercial television and radio stations in support of station operations and educational programming. Section 399 of the Act forbids any noncommercial educational station that receives a grant from the CPB to "engage in editorializing." Appellees (Pacifica Foundation, a nonprofit corporation that owns and operates several noncommercial educational broadcasting stations that receive grants from the CPB, the League of Women Voters of California, and an individual listener and viewer of public broadcasting) brought an action in Federal District Court challenging the constitutionality of § 399. The District Court granted summary judgment in appellees' favor, holding that § 399 violates the First Amendment. Held: Section 399's ban on editorializing violates the First Amendment. Pp. 468 U. S. 374 -402. (a) Congress, acting pursuant to the Commerce Clause, has power to regulate the use of the broadcast medium. In the exercise of this power, Congress may seek to assure that the public receives through this medium a balanced presentation of information and views on issues of public importance that otherwise might not be addressed if control of the medium were left entirely in the hands of the owners and operators of broadcasting stations. At the same time, since broadcasters are engaged in a vital and independent form of communicative activity, the First Amendment must inform and give shape to the manner in which Congress exercises its regulatory power. Thus, although the broadcasting industry operates under restrictions not imposed upon other media, the thrust of these restrictions has generally been to secure the public's First Amendment interest in receiving a balanced presentation of views on diverse matters of public concern. As a result, the absolute freedom to advocate one's own positions without also presenting opposing viewpoints -- a freedom enjoyed, for example, by newspaper publishers -- is denied to broadcasters. Such restrictions have been upheld Page 468 U. S. 365 by this Court only when they were narrowly tailored to further a substantial governmental interest, such as ensuring adequate and balanced coverage of public issues. Pp. 468 U. S. 374 -381. (b) The restriction imposed by § 399 is specifically directed at a form of speech -- the expression of editorial opinions -- that lies at the heart of First Amendment protection, and is defined solely on the basis of the content of the suppressed speech. Section 399 singles out noncommercial broadcasters and denies them the right to address their chosen audience on matters of public importance. Pp. 468 U. S. 381 -384. (c) Section 399's broad ban on all editorializing by every station that receives CPB funds far exceeds what is necessary to protect against the risk of governmental interference or to prevent the public from assuming that editorials by public broadcasting stations represent the official view of government. The ban impermissibly sweeps within it a wide range of speech by wholly private stations on topics that do not take a directly partisan stand or that have nothing whatever to do with federal, state, or local government. Pp. 468 U. S. 386 -395. (d) The patent overinclusiveness and underinclusiveness of § 399's ban also undermines the likelihood of a genuine governmental interest in preventing private groups from propagating their own views via public broadcasting. Section 399 does not prevent the use of noncommercial stations for the presentation of partisan views on controversial matters; instead, it merely bars a station from specifically labeling such issues as its own or those of its management. Pp. 468 U. S. 396 -399. (e) Section 399 cannot be justified on the basis of Congress' spending power as simply determining that Congress will not subsidize public broadcasting station editorials. Regan v. Taxation With Representation of Washington, 461 U. S. 540 , distinguished. Since a noncommercial educational station that receives only 1% of its income from CPB grants is barred absolutely from editorializing, such a station has no way of limiting the use of its federal funds to noneditorial activities, and, more importantly, it is barred from using even private funds to finance its editorial activity. Pp. 468 U. S. 399 -401. 547 F. Supp. 379 , affirmed. BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, POWELL, and O'CONNOR, JJ., joined. WHITE, J., filed a dissenting statement, post, p. 468 U. S. 402 . REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., and WHITE, J., joined, post, p. 468 U. S. 402 . STEVENS, J., filed a dissenting opinion, post, p. 468 U. S. 408 . Page 468 U. S. 366 JUSTICE BRENNAN delivered the opinion of the Court. Moved to action by a widely felt need to sponsor independent sources of broadcast programming as an alternative to commercial broadcasting, Congress set out in 1967 to support and promote the development of noncommercial, educational broadcasting stations. A keystone of Congress' program was the Public Broadcasting Act of 1967, Pub.L. 90-129, 81 Stat. 365, 47 U.S.C. § 390 et seq., which established the Corporation for Public Broadcasting, a nonprofit corporation authorized to disburse federal funds to noncommercial television and radio stations in support of station operations and educational programming. Section 399 of that Act, as amended by the Public Broadcasting Amendments Act of 1981, Pub.L. 97-35, 95 Stat. 730, forbids any "noncommercial educational broadcasting station which receives a grant from the Corporation" to "engage in editorializing." 47 U.S.C. § 399. In this case, we are called upon to decide whether Congress, by imposing that restriction, has passed a "law . . . abridging the freedom of speech, or of the press" in violation of the First Amendment of the Constitution. Page 468 U. S. 367 I A The history of noncommercial educational broadcasting in the United States is as old as broadcasting itself. [ Footnote 1 ] In its first efforts to regulate broadcasting, Congress made no special provision for noncommercial, educational broadcasting stations. Under the Radio Act of 1927 and the Communications Act of 1934, such stations were subject to the same licensing requirements as their commercial counterparts. As commercial broadcasting rapidly expanded during the 1930's, however, the percentage of broadcast licenses held by noncommercial stations began to shrink. In 1939, recognizing the potential effect of these commercial pressures on educational stations, the Federal Communications Commission (FCC or Commission) decided to reserve certain frequencies for educational radio, 47 CFR §§ 4.131-4.133 (1939), and in 1945, the Commission allocated 20 frequencies on the new FM spectrum exclusively for educational use, FCC, Report of Proposed Allocations 77 (1945). Similarly, in 1952, with the advent of television, the FCC reserved certain television channels solely for educational stations. Television Assignments, 41 F.C.C. 148 (1952). Helped in part by these allocations, a wide variety of noncommercial stations, some funded by state and local governments and others by private donations and foundation grants, developed during this period. [ Footnote 2 ] It was not until 1962, however, that Congress provided any direct financial assistance to noncommercial, educational broadcasting. This first step was taken with the passage of Page 468 U. S. 368 the Educational Television Act of 1962, Pub.L. 87-447, 76 Stat. 64, which authorized the former Department of Health, Education, and Welfare (HEW) to distribute $32 million in matching grants over a 5-year period for the construction of noncommercial television facilities. Impetus for expanded federal involvement came in 1967 when the Carnegie Corporation sponsored a special commission to review the state of educational broadcasting. Finding that the prospects for an expanded public broadcasting system rested on "the vigor of its local stations," but that these stations were hobbled by chronic underfinancing, the Carnegie Commission called upon the Federal Government to supplement existing state, local, and private financing so that educational broadcasting could realize its full potential as a true alternative to commercial broadcasting. Carnegie I, at 33-34, 36-37. [ Footnote 3 ] In fashioning a legislative proposal to carry out this vision, the Commission recommended the creation of a nonprofit, nongovernmental "Corporation for Public Television" to provide support for noncommercial broadcasting, including funding for new program production, local station operations, and the establishment of satellite interconnection facilities to permit nationwide distribution of educational programs to all local stations that wished to receive and use them. Id. at 37-38. The Commission's report met with widespread approval, and its proposals became the blueprint for the Public Broadcasting Act of 1967, which established the basic framework of the public broadcasting system of today. Titles I and III of Page 468 U. S. 369 the Act authorized over $38 million for continued HEW construction grants and for the study of instructional television. Title II created the Corporation for Public Broadcasting (CPB or Corporation), a nonprofit, private corporation governed by a 15-person, bipartisan Board of Directors appointed by the President with the advice and consent of the Senate. [ Footnote 4 ] The Corporation was given power to fund "the production of . . . educational television or radio programs for national or regional distribution," 47 U.S.C. § 396(g)(2)(B) (1976 ed.), to make grants to local broadcasting stations that would "aid in financing local educational . . . programming costs of such stations," § 396(g)(2)(C), and to assist in the establishment and development of national interconnection facilities. § 396(g)(2)(E). [ Footnote 5 ] Aside from conferring these powers on the Corporation, Congress also adopted other measures designed both to ensure the autonomy of the Corporation and to protect the local stations from governmental interference and control. For example, all federal agencies, officers, and employees were prohibited from "exercis[ing] any direction, supervision or control" over the Corporation or local stations, § 398, and the Corporation itself was forbidden to "own or operate any television or radio broadcast station," § 396(g)(3), and was further required to "carry out its purposes and functions . . . in ways that will most effectively assure the maximum freedom . . . from Page 468 U. S. 370 interference with or control of program content" of the local stations. § 396(g)(1)(D). B Appellee Pacifica Foundation is a nonprofit corporation that owns and operates several noncommercial educational broadcasting stations in five major metropolitan areas. [ Footnote 6 ] Its licensees have received and are presently receiving grants from the Corporation, and are therefore prohibited from editorializing by the terms of § 399, as originally enacted and as recently amended. [ Footnote 7 ] In April, 1979, appellees brought this suit in the United States District Court for the Central District of California challenging the constitutionality of former § 399. In October, 1979, the Department of Justice informed Page 468 U. S. 371 both Houses of Congress and the District Court that it had decided not to defend the constitutionality of the statute. [ Footnote 8 ] The Senate then adopted a resolution directing its counsel to intervene as amicus curiae in support of § 399. Counsel appeared and subsequently obtained dismissal of the lawsuit for want of a justiciable controversy because the Government had decided not to enforce the statute. While appellees' appeal from this disposition was pending before the Court of Appeals for the Ninth Circuit, however, the Department of Justice, under a new administration, announced that it would defend the statute. The Court of Appeals then remanded the case to the District Court; the District Court permitted the Senate counsel to withdraw from the litigation, and, finding that a concrete controversy was now presented, vacated its earlier order of dismissal. While the suit was pending before the District Court, Congress, as already mentioned, see n 7, supra, amended § 399 by confining the ban on editorializing to noncommercial stations that receive Corporation grants and by separately prohibiting all noncommercial stations from making political endorsements, irrespective of whether they receive federal funds. Subsequently, appellees amended their complaint to reflect this change, challenging only the ban on editorializing. [ Footnote 9 ] Page 468 U. S. 372 The District Court granted summary judgment in favor of appellees, holding that § 399's ban on editorializing violated the First Amendment. 547 F. Supp. 379 (1982). The court rejected the Federal Communication Commission's contention that "§ 399 serves a compelling government interest in ensuring that funded noncommercial broadcasters do not become propaganda organs for the government." Id. at 384-385. Noting the diverse sources of funding for noncommercial stations, the protections built into the Public Broadcasting Act to ensure that noncommercial broadcasters remain free of governmental influence, and the requirements of the FCC's fairness doctrine which are designed to guard against one-sided presentation of controversial issues, the District Court concluded that the asserted fear of Government control was not sufficiently compelling to warrant § 399's restriction on speech. Id. at 386. The court also rejected the contention that the restriction on editorializing as necessary to ensure that Government funding of noncommercial broadcast stations does not interfere with the balanced presentation of opinion on those stations. Id. at 387. The FCC appealed from the District Court judgment Page 468 U. S. 373 directly to this Court pursuant to 28 U.S.C. § 1252. We postponed consideration of the question of our jurisdiction to the merits, 460 U.S. 1010 (1983), [ Footnote 10 ] and we now affirm. Page 468 U. S. 374 II We begin by considering the appropriate standard of review. The District Court acknowledged that our decisions Page 468 U. S. 375 have generally applied a different First Amendment standard for broadcast regulation than in other areas, but after finding that no special characteristic of the broadcast media justified application of a less stringent standard in this case, it held that § 399 could survive constitutional scrutiny only if it served a "compelling" governmental interest. 547 F. Supp. at 384. Claiming that the court drew the wrong lessons from our prior decisions concerning broadcast regulation, the Government contends that a less demanding standard is required. It argues that Congress may, consistently with the First Amendment, exercise broad power to regulate broadcast speech because the medium of broadcasting is subject to the "special characteristic" of spectrum scarcity -- a characteristic not shared by other media -- which calls for more exacting regulation. This power, in the Government's view, includes authority to restrict the ability of all broadcasters, both commercial and noncommercial, to editorialize. Brief for Appellant 31. Moreover, given the unique role of noncommercial broadcasting as a source of "programming excellence and diversity that the commercial sector could not or would not produce," id. at 33, Congress was entitled to impose special restrictions such as § 399 upon these stations. The Government concludes by urging that § 399 is an appropriate and essential means of furthering "important" governmental interests, id. at 34, 35, 39, which leaves open the possibility that a wide variety of views on matters of public importance can be expressed through the medium of noncommercial educational broadcasting. At first glance, of course, it would appear that the District Court applied the correct standard. Section 399 plainly operates to restrict the expression of editorial opinion on matters of public importance, and, as we have repeatedly explained, communication of this kind is entitled to the most Page 468 U. S. 376 exacting degree of First Amendment protection. E.g., Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U. S. 575 , 460 U. S. 585 (1983); First National Bank of Boston v. Bellotti, 435 U. S. 765 , 435 U. S. 776 -777 (1978); Buckley v. Valeo, 424 U. S. 1 , 424 U. S. 14 (1976); Thornhill v. Alabama, 310 U. S. 88 , 310 U. S. 101 -102 (1940). Were a similar ban on editorializing applied to newspapers and magazines, we would not hesitate to strike it down as violative of the First Amendment. E.g., Mills v. Alabama, 384 U. S. 214 (1966). But, as the Government correctly notes, because broadcast regulation involves unique considerations, our cases have not followed precisely the same approach that we have applied to other media, and have never gone so far as to demand that such regulations serve "compelling" governmental interests. At the same time, we think the Government's argument loses sight of concerns that are important in this area, and thus misapprehends the essential meaning of our prior decisions concerning the reach of Congress' authority to regulate broadcast communication. The fundamental principles that guide our evaluation of broadcast regulation are by now well established. First, we have long recognized that Congress, acting pursuant to the Commerce Clause, has power to regulate the use of this scarce and valuable national resource. The distinctive feature of Congress' efforts in this area has been to ensure through the regulatory oversight of the FCC that only those who satisfy the "public interest, convenience, and necessity" are granted a license to use radio and television broadcast frequencies. 47 U.S.C. § 309(a). [ Footnote 11 ] Page 468 U. S. 377 Second, Congress may, in the exercise of this power, seek to assure that the public receives through this medium a balanced presentation of information on issues of public importance that otherwise might not be addressed if control of the medium were left entirely in the hands of those who own and operate broadcasting stations. Although such governmental regulation has never been allowed with respect to the print media, Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), we have recognized that "differences in the characteristics of new media justify differences in the First Amendment standards applied to them." Red Lion Broadcasting Co. v. FCC,d 395 U. S. 367 , 395 U. S. 386 (1969). The fundamental distinguishing characteristic of the new medium of broadcasting that, in our view, has required some adjustment in First Amendment analysis is that "[b]roadcast frequencies are a scarce resource [that] must be portioned out among applicants." Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94 , 412 U. S. 101 (1973). Thus, our cases have taught that, given spectrum scarcity, those who are granted a license to broadcast must serve in a sense as fiduciaries for the public by presenting "those views and voices which are representative of [their] community and which would otherwise, by necessity, be barred from the airwaves." Red Lion, supra, at 395 U. S. 389 . As we observed in that case, because "[i]t is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, . . . the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences [through the medium of broadcasting] Page 468 U. S. 378 is crucial here [and it] may not constitutionally be abridged either by Congress or by the FCC." 395 U.S. at 395 U. S. 390 . Finally, although the Government's interest in ensuring balanced coverage of public issues is plainly both important and substantial, we have, at the same time, made clear that broadcasters are engaged in a vital and independent form of communicative activity. As a result, the First Amendment must inform and give shape to the manner in which Congress exercises its regulatory power in this area. Unlike common carriers, broadcasters are "entitled under the First Amendment to exercise the widest journalistic freedom consistent with their public [duties].'" CBS, Inc. v. FCC, 453 U. S. 367 , 453 U. S. 395 (1981) (quoting Columbia Broadcasting System, Inc. v. Democratic National Committee, supra, at 412 U. S. 110 ). See also FCC v. Midwest Video Corp., 440 U. S. 689 , 440 U. S. 703 (1979). Indeed, if the public's interest in receiving a balanced presentation of views is to be fully served, we must necessarily rely in large part upon the editorial initiative and judgment of the broadcasters who bear the public trust. See Columbia Broadcasting System, Inc. v. Democratic National Committee, supra, at 412 U. S. 124 -127. Our prior cases illustrate these principles. In Red Lion, for example, we upheld the FCC's "fairness doctrine" -- which requires broadcasters to provide adequate coverage of public issues and to ensure that this coverage fairly and accurately reflects the opposing views -- because the doctrine advanced the substantial governmental interest in ensuring balanced presentations of views in this limited medium, and yet posed no threat that a "broadcaster [would be denied permission] to carry a particular program or to publish his own views." 395 U.S. at 395 U. S. 396 . [ Footnote 12 ] Similarly, in CBS, Inc. v. FCC, supra, the Page 468 U. S. 379 Court upheld the right of access for federal candidates imposed by § 312(a)(7) of the Communications Act both because that provision "makes a significant contribution to freedom of expression by enhancing the ability of candidates to present, and the public to receive, information necessary for the effective operation of the democratic process," id. at 453 U. S. 396 , and because it defined a sufficiently " limited right of reasonable' access" so that "the discretion of broadcasters to present their views on any issue or to carry any particular type of programming" was not impaired. Id. at 453 U. S. 396 -397 (emphasis in original). Finally, in Columbia Broadcasting System, Inc. v. Democratic National Committee, supra, the Court affirmed the FCC's refusal to require broadcast licensees to accept all paid political advertisements. Although it was argued that such a requirement would serve the public's First Amendment interest in receiving additional views on public issues, the Court rejected this approach, finding that such a requirement would tend to transform broadcasters into common carriers, and would intrude unnecessarily upon the editorial discretion of broadcasters. Id. at 412 U. S. 123 -125. The FCC's ruling, therefore, helped to advance the important purposes of the Communications Act, grounded in the First Amendment, of preserving the right of broadcasters to exercise "the widest journalistic freedom consistent with [their] public obligations," and of guarding against "the risk of an enlargement Page 468 U. S. 380 of Government control over the content of broadcast discussion of public issues." Id. at 412 U. S. 110 , 412 U. S. 126 . [ Footnote 13 ] Thus, although the broadcasting industry plainly operates under restraints not imposed upon other media, the thrust of these restrictions has generally been to secure the public's First Amendment interest in receiving a balanced presentation of views on diverse matters of public concern. As a result of these restrictions, of course, the absolute freedom to advocate one's own positions without also presenting opposing viewpoints -- a freedom enjoyed, for example, by newspaper publishers and soapbox orators -- is denied to broadcasters. But, as our cases attest, these restrictions have been upheld only when we were satisfied that the restriction is narrowly tailored to further a substantial governmental interest, such as ensuring adequate and balanced coverage of public issues, e.g., Red Lion, 395 U.S. at 395 U. S. 377 . See also CBS, Inc. v. FCC, supra, at 453 U. S. 396 -397; Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. at 412 U. S. 110 -111; Red Lion, supra, at 395 U. S. 396 . Making that Page 468 U. S. 381 judgment requires a critical examination of the interests of the public and broadcasters in light of the particular circumstances of each case. E.g., FCC v. Pacifica Foundation, 438 U. S. 726 (1978). III We turn now to consider whether the restraint imposed by § 399 satisfies the requirements established by our prior cases for permissible broadcast regulation. Before assessing the Government's proffered justifications for the statute, however, two central features of the ban against editorializing must be examined, since they help to illuminate the importance of the First Amendment interests at stake in this case. A First, the restriction imposed by § 399 is specifically directed at a form of speech -- namely, the expression of editorial opinion -- that lies at the heart of First Amendment protection. In construing the reach of the statute, the FCC has explained that, "although the use of noncommercial educational broadcast facilities by licensees, their management or those speaking on their behalf for the propagation of the licensee's own views on public issues is therefore not to be permitted, such prohibition should not be construed to inhibit any other presentations on controversial issues of public importance." Accuracy in Media, Inc., 45 F.C.C.2d 297, 302 (1973) (emphasis added). The Commission's interpretation of § 399 simply highlights the fact that what the statute forecloses is the expression of editorial opinion on "controversial issues of public importance." As we recently reiterated in NAACP v. Claiborne Hardware Co., 458 U. S. 886 (1982), "expression on public issues has always rested on the highest rung of the hierarchy of First Amendment values.'" Id. at 458 U. S. 913 (quoting Carey v. Brown, 447 U. S. 455 , 447 U. S. 467 (1980)). And we have emphasized: "The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to Page 468 U. S. 382 discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period." Thornhill v. Alabama, 310 U.S. at 310 U. S. 101 -102. The editorial has traditionally played precisely this role by informing and arousing the public, and by criticizing and cajoling those who hold government office in order to help launch new solutions to the problems of the time. Preserving the free expression of editorial opinion, therefore, is part and parcel of "a profound national commitment . . . that debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U. S. 254 , 376 U. S. 270 (1964). As we recognized in Mills v. Alabama, 384 U. S. 214 (1966), the special place of the editorial in our First Amendment jurisprudence simply reflects the fact that the press, of which the broadcasting industry is indisputably a part, United States v. Paramount Pictures, Inc., 334 U. S. 131 , 334 U. S. 166 (1948), carries out a historic, dual responsibility in our society of reporting information and of bringing critical judgment to bear on public affairs. Indeed, the pivotal importance of editorializing as a means of satisfying the public's interest in receiving a wide variety of ideas and views through the medium of broadcasting has long been recognized by the FCC; the Commission has, for the past 35 years, actively encouraged commercial broadcast licensees to include editorials on public affairs in their programming. [ Footnote 14 ] Page 468 U. S. 383 Because § 399 appears to restrict precisely that form of speech which the Framers of the Bill of Rights were most anxious to protect -- speech that is "indispensable to the discovery and spread of political truth" -- we must be especially careful in weighing the interests that are asserted in support of this restriction and in assessing the precision with which the ban is crafted. Whitney v. California, 274 U. S. 357 , 274 U. S. 375 (1927) (Brandeis, J., concurring). Second, the scope of § 399's ban is defined solely on the basis of the content of the suppressed speech. A wide variety of noneditorial speech "by licensees, their management or those speaking on their behalf," Accuracy in Media, Inc., 45 F.C.C.2d at 302, is plainly not prohibited by § 399. Examples of such permissible forms of speech include daily announcements of the station's program schedule or over-the-air appeals for contributions from listeners. Consequently, in order to determine whether a particular statement by station management constitutes an "editorial" proscribed by § 399, enforcement authorities must necessarily examine the content of the message that is conveyed to determine whether the views expressed concern "controversial issues of public importance." Ibid. AS JUSTICE STEVENS observed in Consolidated Edison Co. v. Public Service Comm'n of N.Y., 447 U. S. 530 (1980), however: "A regulation of speech that is motivated by nothing Page 468 U. S. 384 more than a desire to curtail expression of a particular point of view on controversial issues of general interest is the purest example of a 'law . . . abridging the freedom of speech, or of the press.' A regulation that denies one group of persons the right to address a selected audience on 'controversial issues of public policy' is plainly such a regulation." Id. at 447 U. S. 546 (opinion concurring in judgment); accord, id. at 447 U. S. 537 -540 (majority opinion). Section 399 is just such a regulation, for it singles out noncommercial broadcasters and denies them the right to address their chosen audience on matters of public importance. Thus, in enacting § 399, Congress appears to have sought, in much the same way that the New York Public Service Commission had attempted through the regulation of utility company bill inserts struck down in Consolidated Edison, to limit discussion of controversial topics, and thus to shape the agenda for public debate. Since, as we observed in Consolidated Edison, "[t]he First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic," id. at 447 U. S. 537 , we must be particularly wary in assessing § 399 to determine whether it reflects an impermissible attempt "to allow a government [to] control . . . the search for political truth." Id. at 447 U. S. 538 . [ Footnote 15 ] B In seeking to defend the prohibition on editorializing imposed by § 399, the Government urges that the statute was aimed at preventing two principal threats to the overall success of the Public Broadcasting Act of 1967. According to this argument, the ban was necessary, first, to protect noncommercial educational broadcasting stations from being coerced, as a result of federal financing, into becoming vehicles Page 468 U. S. 385 for Government propagandizing or the objects of governmental influence; and, second, to keep these stations from becoming convenient targets for capture by private interest groups wishing to express their own partisan viewpoints. [ Footnote 16 ] By seeking to safeguard the public's right to a balanced presentation of public issues through the prevention of either governmental or private bias, these objectives are, of course, broadly consistent with the goals identified in our earlier broadcast regulation cases. But, in sharp contrast to the restrictions upheld in Red Lion or in CBS, Inc. v. FCC, which left room for editorial discretion and simply required broadcast editors to grant others access to the microphone, § 399 directly prohibits the broadcaster from speaking out on public issues even in a balanced and fair manner. The Government insists, however, that the hazards posed in the "special" circumstances of noncommercial Page 468 U. S. 386 educational broadcasting are so great that § 399 is an indispensable means of preserving the public's First Amendment interests. We disagree. (1) When Congress first decided to provide financial support for the expansion and development of noncommercial educational stations, all concerned agreed that this step posed some risk that these traditionally independent stations might be pressured into becoming forums devoted solely to programming and views that were acceptable to the Federal Government. That Congress was alert to these dangers cannot be doubted. It sought through the Public Broadcasting Act to fashion a system that would provide local stations with sufficient funds to foster their growth and development while preserving their tradition of autonomy and community-orientation. [ Footnote 17 ] A cardinal objective of the Act was the establishment Page 468 U. S. 387 of a private corporation that would "facilitate the development of educational radio and television broadcasting and . . . afford maximum protection to such broadcasting from extraneous interference and control." 47 U.S.C. § 396(a)(6) (1976 ed.). The intended role of § 399 in achieving these purposes, however, is not as clear. The provision finds no antecedent in the Carnegie report, which generally provided the model for most other aspects of the Act. It was not part of the administration's original legislative proposal. And it was not included in the original version of the Act passed by the Senate. The provision found its way into the Act only as a result of an amendment in the House. Indeed, it appears that, as the House Committee Report frankly admits, § 399 was added not because Congress thought it was essential to preserving the autonomy and vitality of local stations, but rather "[o]ut of an abundance of caution." H.R.Rep. No. 572, 90th Cong., 1st Sess., 20 (1967). [ Footnote 18 ] Page 468 U. S. 388 More importantly, an examination of both the overall legislative scheme established by the 1967 Act and the character of public broadcasting demonstrates that the interest asserted by the Government is not substantially advanced by § 399. First, to the extent that federal financial support creates a risk that stations will lose their independence through the bewitching power of governmental largesse, the elaborate structure established by the Public Broadcasting Act Page 468 U. S. 389 already operates to insulate local stations from governmental interference. Congress not only mandated that the new Corporation for Public Broadcasting would have a private, bipartisan structure, see §§ 396(c)-(f), but also imposed a variety of important limitations on its powers. The Corporation was prohibited from owning or operating any station, § 396(g)(3), it was required to adhere strictly to a standard of "objectivity and balance" in disbursing federal funds to local stations, § 396(g)(1)(A), and it was prohibited from contributing to or otherwise supporting any candidate for office, § 396(f)(3). The Act also established a second layer of protections which serve to protect the stations from governmental coercion and interference. Thus, in addition to requiring the Corporation to operate so as to "assure the maximum freedom [of local stations] from interference with or control of program content or other activities," § 396(g)(1)(D), the Act expressly forbids "any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over educational television or radio broadcasting, or over the Corporation or any of its grantees or contractors. . . ," § 398(a) (1976 ed.). Subsequent amendments to the Act have confirmed Congress' commitment to the principle that, because local stations are the "bedrock of the system," their independence from governmental interference and control must be fully guaranteed. These amendments have provided long-term appropriations authority for public broadcasting, rather than allowing funding to depend upon yearly appropriations, see § 396(k)(1)(C), as amended, Pub.L. 97-35, Title XII, § 1227, 95 Stat. 727; have strictly defined the percentage of appropriated funds that must be disbursed by the Corporation to local stations, § 396(k)(3) (A)-(B); and have defined objective criteria under which local television and radio stations receive basic grants from the Corporation to be used at the discretion of the station. §§ 396(k)(6)(A)-(B), 396(k)(7). The principal thrust of the amendments, therefore, has been to assure long-term Page 468 U. S. 390 appropriations for the Corporation and, more importantly, to insist that it pass specified portions of these funds directly through to local stations to give them greater autonomy in defining the uses to which those funds should be put. Thus, in sharp contrast to § 399, the unifying theme of these various statutory provisions is that they substantially reduce the risk of governmental interference with the editorial judgments of local stations without restricting those stations' ability to speak on matters of public concern. [ Footnote 19 ] Even if these statutory protections were thought insufficient to the task, however, suppressing the particular category of speech restricted by § 399 is simply not likely, given the character of the public broadcasting system, to reduce substantially the risk that the Federal Government will seek to influence or put pressure on local stations. An underlying supposition of the Government's argument in this regard is that individual noncommercial stations are likely to speak so forcefully on particular issues that Congress, the ultimate source of the stations' federal funding, will be tempted to retaliate against these individual stations by restricting appropriations for all of public broadcasting. But, as the District Court recognized, the character of public broadcasting Page 468 U. S. 391 suggests that such a risk is speculative, at best. There are literally hundreds of public radio and television stations in communities scattered throughout the United States and its territories, see CPB, 1983-84 Public Broadcasting Directory 20-50, 66-86 (Sept.1983). Given that central fact, it seems reasonable to infer that the editorial voices of these stations will prove to be as distinctive, varied, and idiosyncratic as the various communities they represent. More importantly, the editorial focus of any particular station can fairly be expected to focus largely on issues affecting only its community. [ Footnote 20 ] Accordingly, absent some showing by the Government to the contrary, the risk that local editorializing will place all of public broadcasting in jeopardy is not sufficiently pressing to warrant § 399's broad suppression of speech. Indeed, what is far more likely than local station editorials to pose the kinds of dangers hypothesized by the Government are the wide variety of programs addressing controversial issues produced, often with substantial CPB funding, for national distribution to local stations. Such programs truly have the potential to reach a large audience and, because of the critical commentary they contain, to have the kind of genuine national impact that might trigger a congressional response or kindle governmental resentment. The ban imposed by § 399, however, is plainly not directed at the potentially controversial content of such programs; it is, instead, leveled solely at the expression of editorial opinion by local station management, a form of expression that is far more likely to be aimed at a smaller local audience, to have less Page 468 U. S. 392 national impact, and to be confined to local issues. In contrast, the Act imposes no substantive restrictions, other than normal requirements of balance and fairness, on those who produce nationally distributed programs. Indeed, the Act is designed in part to encourage and sponsor the production of such programs, and to allow each station to decide for itself whether to accept such programs for local broadcast. [ Footnote 21 ] Furthermore, the manifest imprecision of the ban imposed by § 399 reveals that its proscription is not sufficiently tailored to the harms it seeks to prevent to justify its substantial interference with broadcasters' speech. Section Page 468 U. S. 393 399 includes within its grip a potentially infinite variety of speech, most of which would not be related in any way to governmental affairs, political candidacies, or elections. Indeed, the breadth of editorial commentary is as wide as human imagination permits. But the Government never explains how, say, an editorial by local station management urging improvements in a town's parks or museums will so infuriate Congress or other federal officials that the future of public broadcasting will be imperiled unless such editorials are suppressed. Nor is it explained how the suppression of editorials alone serves to reduce the risk of governmental retaliation and interference when it is clear that station management is fully able to broadcast controversial views so long as such views are not labeled as its own. See infra, at 468 U. S. 396 , and n. 25. The Government appears to recognize these flaws in § 399, because it focuses instead on the suggestion that the source of governmental influence may well be state and local governments, many of which have established public broadcasting commissions that own and operate local noncommercial educational stations. [ Footnote 22 ] The ban on editorializing is all the more necessary with respect to these stations, the argument runs, because the management of such stations will be especially likely to broadcast only editorials that are favorable to the state or local authorities that hold the purse strings. The Government's argument, however, proves too much. First, § 399's ban applies to the many private noncommercial community organizations that own and operate stations that Page 468 U. S. 394 are not controlled in any way by state or local government. Second, the legislative history of the Public Broadcasting Act clearly indicates that Congress was concerned with "assur[ing] complete freedom from any Federal Government influence. " The Public Television Act of 1967: Hearings on S. 1160 before the Subcommittee on Communications of the Senate Committee on Commerce, 90th Cong., 1st Sess., 9 (1967) (remarks of Sen. Pastore) (emphasis added). [ Footnote 23 ] Consistently with this concern, Congress refused to create any federally owned stations, and it expressly forbade the CPB to own or operate any television or radio stations, § 396(g)(3). By contrast, although Congress was clearly aware in 1967 that many noncommercial educational stations were owned by state and local governments, it did not hesitate to extend federal assistance to such stations, it imposed no special requirements to restrict state or local control over these stations, and, indeed, it ensured through the structure of the Act that these stations would be as insulated from federal interference as the wholly private stations. [ Footnote 24 ] Page 468 U. S. 395 Finally, although the Government certainly has a substantial interest in ensuring that the audiences of noncommercial stations will not be led to think that the broadcaster's editorials reflect the official view of the Government, this interest can be fully satisfied by less restrictive means that are readily available. To address this important concern, Congress could simply require public broadcasting stations to broadcast a disclaimer every time they editorialize which would state that the editorial represents only the view of the station's management, and does not in any way represent the views of the Federal Government or any of the station's other sources of funding. Such a disclaimer -- similar to those often used in commercial and noncommercial programming of a controversial nature -- would effectively and directly communicate to the audience that the editorial reflected only the views of the station, rather than those of the Government. Furthermore, such disclaimers would have the virtue of clarifying the responses that might be made under the fairness doctrine by opponents of the station's position, since those opponents would know with certainty that they were responding only to the station's views, and not in any sense to the Government's position. In sum, § 399's broad ban on all editorializing by every station that receives CPB funds far exceeds what is necessary to protect against the risk of governmental interference or to prevent the public from assuming that editorials by public broadcasting stations represent the official view of government. The regulation impermissibly sweeps within its prohibition a wide range of speech by wholly private stations on topics that do not take a directly partisan stand or that have nothing whatever to do with federal, state, or local government. Page 468 U. S. 396 (2) Assuming that the Government's second asserted interest in preventing noncommercial stations from becoming a "privileged outlet for the political and ideological opinions of station owners and managers," Brief for Appellant 34, is legitimate, the substantiality of this asserted interest is dubious. The patent overinclusiveness and underinclusiveness of § 399's ban "undermines the likelihood of a genuine [governmental] interest" in preventing private groups from propagating their own views via public broadcasting. First National Bank of Boston v. Bellotti, 435 U.S. at 435 U. S. 793 . If it is true, as the Government contends, that noncommercial stations remain free, despite § 399, to broadcast a wide variety of controversial views through their power to control program selection, to select which persons will be interviewed, and to determine how news reports will be presented, Brief for Appellant 41, then it seems doubtful that § 399 can fairly be said to advance any genuinely substantial governmental interest in keeping controversial or partisan opinions from being aired by noncommercial stations. Indeed, since the very same opinions that cannot be expressed by the station's management may be aired so long as they are communicated by a commentator or by a guest appearing at the invitation of the station during an interview, ibid.; see also Accuracy in Media, 45 F.C.C.2d at 302, § 399 clearly "provides only ineffective or remote support for the government's purpose." Central Hudson Gas & Electric Corp. v. Public Service Comm'n of N.Y., 447 U. S. 557 , 447 U. S. 564 (1980). Cf. Buckley v. Valeo, 424 U.S. at 424 U. S. 45 ; First National Bank of Boston v. Bellotti, supra, at 435 U. S. 793 . [ Footnote 25 ] Page 468 U. S. 397 In short, § 399 does not prevent the use of noncommercial stations for the presentation of partisan views on controversial matters; instead, it merely bars a station from specifically communicating such views on its own behalf or on behalf of its management. If the vigorous expression of controversial opinions is, as the Government assures us, affirmatively encouraged by the Act, and if local licensees are permitted under the Act to exercise editorial control over the selection of programs, controversial or otherwise, that are aired on their stations, then § 399 accomplishes only one thing -- the suppression of editorial speech by station management. It does virtually nothing, however, to reduce the risk that public stations will serve solely as outlets for expression of narrow partisan views. What we said in Columbia Broadcasting System, Inc. v. Democratic National Committee applies, therefore, with equal force here: the "sacrifice [of] First Amendment protections for so speculative a gain is not warranted. . . ." 412 U.S. at 412 U. S. 127 . Finally, the public's interest in preventing public broadcasting stations from becoming forums for lopsided presentations of narrow partisan positions is already secured by Page 468 U. S. 398 a variety of other regulatory means that intrude far less drastically upon the "journalistic freedom" of noncommercial broadcasters. Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. at 412 U. S. 110 . The requirements of the FCC's fairness doctrine, for instance, which apply to commercial and noncommercial stations alike, ensure that such editorializing would maintain a reasonably balanced and fair presentation of controversial issues. Thus, even if the management of a noncommercial educational station were inclined to seek to further only its own partisan views when editorializing, it simply could not do so. Indeed, in considering the constitutionality of the FCC's fairness doctrine, the Court in Red Lion considered precisely the same justification invoked by the Government today in support of § 399: that without some requirement of fairness and balance, "station owners . . . would have unfettered power . . . to communicate only their own views on public issues . . . and to permit on the air only those with whom they agreed." 395 U.S. at 395 U. S. 392 . The solution to this problem offered by § 399, however, is precisely the opposite of the remedy prescribed by the FCC and endorsed by the Court in Red Lion. Rather than requiring noncommercial broadcasters who express editorial opinions on controversial subjects to permit more speech on such subjects to ensure that the public's First Amendment interest in receiving a balanced account of the issue is met, § 399 simply silences all editorial speech by such broadcasters. Since the breadth of § 399 extends so far beyond what is necessary to accomplish the goals identified by the Government, it fails to satisfy the First Amendment standards that we have applied in this area. We therefore hold that, even if some of the hazards at which § 399 was aimed are sufficiently substantial, the restriction is not crafted with sufficient precision to remedy those dangers that may exist to justify the significant abridgment of speech worked by the provision's broad ban on editorializing. The Page 468 U. S. 399 statute is not narrowly tailored to address any of the Government's suggested goals. Moreover, the public's "paramount right" to be fully and broadly informed on matters of public importance through the medium of noncommercial educational broadcasting is not well served by the restriction, for its effect is plainly to diminish, rather than augment, "the volume and quality of coverage" of controversial issues. Red Lion, 395 U.S. at 395 U. S. 393 . Nor do we see any reason to deny noncommercial broadcasters the right to address matters of public concern on the basis of merely speculative fears of adverse public or governmental reactions to such speech. IV Although the Government did not present the argument in any form to the District Court, [ Footnote 26 ] it now seeks belatedly to justify § 399 on the basis of Congress' spending power. Relying upon our recent decision in Regan v. Taxation With Representation of Washington, 461 U. S. 540 (1983), the Government argues that, by prohibiting noncommercial educational stations that receive CPB grants from editorializing, Congress has, in the proper exercise of its spending power, simply determined that it "will not subsidize public broadcasting station editorials." Brief for Appellant 42. In Taxation With Representation, the Court found that Congress could, in the exercise of its spending power, reasonably refuse to subsidize the lobbying activities of tax-exempt charitable organizations by prohibiting such organizations from using tax-deductible contributions to support their lobbying efforts. In so holding, however, we explained that such organizations remained free "to receive [tax-]deductible Page 468 U. S. 400 contributions to support nonlobbying activit[ies]." 461 U.S. at 461 U. S. 545 . Thus, a charitable organization could create, under § 501(C)(3) of the Internal Revenue Code, 26 U.S.C. § 501(C)(3), an affiliate to conduct its nonlobbying activities using tax-deductible contributions, and, at the same time, establish, under § 501(C)(4), a separate affiliate to pursue its lobbying efforts without such contributions. 461 U.S. at 461 U. S. 544 ; see also id. at 461 U. S. 552 -553 (BLACKMUN, J., concurring). Given that statutory alternative, the Court concluded that "Congress has not infringed any First Amendment rights or regulated any First Amendment activity; [it] has simply chosen not to pay or TWR's lobbying." Id. at 461 U. S. 546 . In this case, however, unlike the situation faced by the charitable organization in Taxation With Representation, a noncommercial educational station that receives only 1% of its overall income from CPB grants is barred absolutely from all editorializing. Therefore, in contrast to the appellee in Taxation With Representation, such a station is not able to segregate its activities according to the source of its funding. The station has no way of limiting the use of its federal funds to all noneditorializing activities, and, more importantly, it is barred from using even wholly private funds to finance its editorial activity. Of course, if Congress were to adopt a revised version of § 399 that permitted noncommercial educational broadcasting stations to establish "affiliate" organizations which could then use the station's facilities to editorialize with nonfederal funds, such a statutory mechanism would plainly be valid under the reasoning of Taxation With Representation. Under such a statute, public broadcasting stations would be free, in the same way that the charitable organization in Taxation With Representation was free, to make known its views on matters of public importance through its nonfederally funded, editorializing affiliate without losing federal grants for its noneditorializing broadcast activities. Cf. id. Page 468 U. S. 401 at 461 U. S. 544 . But in the absence of such authority, we must reject the Government's contention that our decision in Taxation With Representation is controlling here. [ Footnote 27 ] Page 468 U. S. 402 V In conclusion, we emphasize that our disposition of this case rests upon a narrow proposition. We do not hold that the Congress or the FCC is without power to regulate the content, timing, or character of speech by noncommercial educational broadcasting stations. Rather, we hold only that the specific interests sought to be advanced by § 399's ban on editorializing are either not sufficiently substantial or are not served in a sufficiently limited manner to justify the substantial abridgment of important journalistic freedoms which the First Amendment jealously protects. Accordingly, the judgment of the District Court is Affirmed. [ Footnote 1 ] See S. Frost, Education's Own Stations 464 (1937). [ Footnote 2 ] For a review of the history of public broadcasting, see Carnegie Commission on Educational Television, Public Television: A Program for Action 21-29 (1967) ( Carnegie I ); Carnegie Commission on the Future of Public Broadcasting, A Public Trust 33-34 (1979) ( Carnegie II ). See also S.Rep. No. 93-123, pp. 2-6 (1973). [ Footnote 3 ] Although its recommendations were later applied by Congress to noncommercial educational radio as well, the Commission's report addressed solely the problems and prospects of what it called "public television." This term was coined by the authors of the report not to distinguish noncommercial, educational broadcasting from "private" commercial broadcasting, but rather to identify a larger view of the potential of noncommercial broadcasting comprising not only "instructional" programming but also educational, political, and cultural programming broadly defined. See Carnegie I at 1. [ Footnote 4 ] The structure of the Board was modified in 1981 to provide for 10, rather than 15 members. 47 U.S.C. § 396(c), as amended by Pub.L. 97-35, Title XII, § 1225(a)(1), 95 Stat. 726. [ Footnote 5 ] In accordance with the Act, an interconnection system was formally developed in 1969 when the Public Broadcasting Service (PBS) was created. Today, PBS is a private, nonprofit membership corporation governed by a Board of Directors elected by its membership, which consists of the licensees of noncommercial, educational television stations located throughout the United States. See Brief for PBS et al. as Amici Curiae 1. National Public Radio (NPR) was established in 1970, and performs an analogous service for public radio stations. [ Footnote 6 ] In addition to Pacifica Foundation, appellees include the League of Women Voters of California, and Congressman Henry Waxman, who is a regular listener and viewer of public broadcasting. [ Footnote 7 ] As first enacted in 1967, § 399 provided: "No noncommercial educational broadcasting station may engage in editorializing or may support or oppose any candidate for political office." Pub.L. 90-129, Title II, § 201(8), 81 Stat. 368. Although the statutory language remained the same, this provision was redesignated as § 399(a) in 1973, when subsection (b), requiring public stations to "retain an audio recording of each of its broadcasts of any program in which any issue of public importance is discussed," was added. Pub.L. 93-84, § 2, 87 Stat. 219. Because appellees filed their complaint in 1979, their suit was initially directed at § 399(a). Subsection (b) was found unconstitutional by the Court of Appeals for the District of Columbia Circuit, Community Service Broadcasting of Mid-America, Inc. v. FCC, 192 U.S.App.D.C. 448, 593 F.2d 1102 (1978), and was deleted by Congress in 1981. Pub.L. 97-35, Title XII, § 1229, 95 Stat. 730. Also as part of those 1981 amendments, Congress revised and redesignated former § 399(a) by confining the ban on editorializing to stations receiving CPB grants and by separately prohibiting political endorsements by all stations; § 399 in its current form provides in full: "No noncommercial educational broadcasting station which receives a grant from the Corporation under subpart C of this part may engage in editorializing. No noncommercial educational broadcasting station may support or oppose any candidate for public office." 47 U.S.C. § 399. [ Footnote 8 ] As then Attorney General Civiletti explained: "After careful consideration, we have concluded that Section [399] violates the First Amendment guarantees of freedom of speech and freedom of the press by restricting the ability of public broadcasting stations to comment on matters of public interest. . . ." "The Department of Justice is, of course, fully mindful of its duty to support the laws enacted by Congress. Here, however, the Department has determined, after careful study and deliberation, that reasonable arguments cannot be advanced to defend the challenged statute." Letter from Attorney General Benjamin R. Civiletti to Senate Majority Leader Robert C. Byrd (Oct. 11, 1979), App. 13-14. [ Footnote 9 ] In their amended complaint, appellees did not challenge the provision in § 399 prohibiting all noncommercial educational broadcasting stations from "support[ing] or oppos[ing] any candidate for public office." Neither party suggests that the two sentences of § 399 are so inseverable that we may not consider the constitutionality of one without also reviewing the other. Indeed, as the Federal Communications Commission explained before the District Court, "[n]ew section 399 does more than reinforce the severability of the two provisions by setting them forth in separate sentences," it also confines the ban on editorializing to stations that receive CPB grants while extending a separate ban on political endorsements to all public stations. Defendant's Supplemental Memorandum on Amendment of Section 399, p. 4 (Sept. 15, 1981). We therefore express no view of the constitutionality of the second sentence in § 399. Cf. First National Bank of Boston v. Bellotti, 435 U. S. 765 , 435 U. S. 788 , n. 26 (1978) (noting that "our consideration of a corporation's right to speak on issues of general public interest implies no comparable right in the quite different context of participation in a political campaign for election to public office" -- a separate restriction not challenged in that case). [ Footnote 10 ] Relying on our recent decision in Griggs v. Provident Consumer Discount Co., 459 U. S. 56 (1982) (per curiam), appellees contend that we lack jurisdiction because the FCC filed its notice of appeal while a motion to amend the District Court's judgment was still pending. Our decision in Griggs, however, rested squarely on the plain language of new Federal Rule of Appellate Procedure 4(a)(4), which specifically provides: "A notice of appeal filed before the disposition of [a Rule 59(e) motion] shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion. . . ." See 459 U.S. at 459 U. S. 61 . Because this case comes to us directly from the District Court via 28 U.S.C. § 1252, the question whether the FCC's notice of appeal was effective to vest this Court with appellate jurisdiction turns not on Rule 4(a)(4), but rather on our own Rule 11.3. The express language of Rule 4(a)(4) found dispositive in Griggs has no direct equivalent in our Rule 11.3, which simply provides that, "if a petition for rehearing is timely filed by any party . . . , the time for filing the notice of appeal . . . runs from the date of the denial of rehearing or the entry of a subsequent judgment." By its terms, therefore, our Rule does not determine whether a notice of appeal filed during the pendency of a motion to amend is ineffective to vest appellate jurisdiction in this Court. We have observed, however, that the filing of a petition for rehearing or a motion to amend or alter the judgment "suspend[s] the finality of the [original] judgment," thereby extending the time for filing a notice of appeal "until [the lower court's] denial of the motion . . . restores" that finality. Communist Party of Indiana v. Whitcomb, 414 U. S. 441 , 414 U. S. 445 (1974). At the same time, we have emphasized that the rule requiring suspension of a judgment's finality for purposes of appeal during the pendency of a postjudgment motion for reconsideration applies only when such a motion actually seeks an "alteration of the rights adjudicated" in the court's first judgment. Department of Banking of Nebraska v. Pink, 317 U. S. 264 , 317 U. S. 266 (1942) (per curiam); see also FTC v. Minneapolis-Honeywell Regulator Co., 344 U. S. 206 , 211 (1952) ("mere fact that a judgment previously entered is reentered or revised in an immaterial way does not toll the time within which review must be sought"). The FCC has brought this appeal pursuant to § 1252, which permits direct appeal to this Court from "an interlocutory or a final judgment . . . holding an Act of Congress unconstitutional." Section 1252 departs significantly from the general congressional policy of minimizing the mandatory docket of this Court and reflects instead Congress' "unambiguou[s] mandat[e]" that we afford immediate direct review of all decisions that call into doubt the constitutionality of Acts of Congress. McLucas v. DeChamplain, 421 U. S. 21 , 421 U. S. 31 (1975). It is clear that the motion filed by the FCC following the entry of the District Court's August 6 order was directed not at the court's judgment holding § 399 unconstitutional, but rather at the wholly collateral issue of whether appellees were entitled to recover attorney's fees and costs. Prior to the court's decision, the question of attorney's fees had never been briefed or discussed by the parties; nevertheless, the court, acting sua sponte, included in its August 6 order an award of"reasonable attorneys' fees and costs" to appellees. Recognizing that the court's order had been entered in the absence of any application for fees and without benefit of briefing, the FCC sought, through its postjudgment motion, to restore the status quo ante with respect to the question of fees in order to allow time for full briefing. The District Court, in an order entered November 1, did precisely that by striking the award of attorney's fees from the August 6 order, and taking the question of fees under advisement. As we recognized in White v. New Hampshire Dept. of Employment Security, 455 U. S. 445 (1982), an "award [of attorney's fees] is uniquely separable from the cause of action" that is settled by a court's judgment on the merits, and therefore a postjudgment request for attorney's fees is not considered a motion to amend or alter the judgment under Rule 59(e) of the Federal Rules of Civil Procedure. Id. at 455 U. S. 452 . Since, as appellees concede, the FCC's motion in this case related solely to the "uniquely separable" question of attorney's fees and was in no way directed at the District Court's judgment "holding an Act of Congress unconstitutional," 28 U.S.C. § 1252, it is true here, as it was in Department of Banking v. Pink, supra, that the District Court was not asked to "alter its adjudication of the rights of the parties," and consequently the finality of the judgment which the FCC seeks to have reviewed "was never suspended." Id. at 317 U. S. 266 . Accordingly, we think the time for filing the FCC's notice of appeal was properly calculated from the date the District Court's initial judgment was rendered, and its notice is therefore timely within 28 U.S.C. § 2101(a). A different result would frustrate the clear purpose of § 1252 to permit "prompt determination by the court of last resort of disputed questions of the constitutionality of acts of the Congress." H.R.Rep. No. 212, 75th Cong., 1st Sess., 2 (1937), since an appeal from a judgment "holding an Act of Congress unconstitutional" would be delayed by collateral issues having no bearing whatever on the judgment from which the appeal is taken. [ Footnote 11 ] See FCC v. National Citizens Committee for Broadcasting, 436 U. S. 775 , 436 U. S. 799 -800 (1978); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94 , 412 U. S. 101 -102 (1973); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 , 395 U. S. 387 -390 (1969); National Broadcasting Co. v. United States, 319 U. S. 190 , 319 U. S. 216 (1943); Federal Radio Comm'n v. Nelson Bros. Bond & Mortgage Co., 289 U. S. 266 , 289 U. S. 282 (1933). The prevailing rationale for broadcast regulation based on spectrum scarcity has come under increasing criticism in recent years. Critics, including the incumbent Chairman of the FCC, charge that, with the advent of cable and satellite television technology, communities now have access to such a wide variety of stations that the scarcity doctrine is obsolete. See, e.g., Fowler & Brenner, A Marketplace Approach to Broadcast Regulation, 60 Texas L.Rev. 207, 221-226 (1982). We are not prepared, however, to reconsider out longstanding approach without some signal from Congress or the FCC that technological developments have advanced so far that some revision of the system of broadcast regulation may be required. [ Footnote 12 ] We note that the FCC, observing that "[i]f any substantial possibility exists that the [fairness doctrine] rules have impeded, rather than furthered, First Amendment objectives, repeal may be warranted on that ground alone," has tentatively concluded that the rules, by effectively chilling speech, do not serve the public interest, and has therefore proposed to repeal them. Notice of Proposed Rulemaking In re Repeal or Modification of the Personal Attack and Political Editorial Rules, 48 Fed.Reg. 28298, 28301 (1983). Of course, the Commission may, in the exercise of its discretion, decide to modify or abandon these rules, and we express no view on the legality of either course. As we recognized in Red Lion, however, were it to be shown by the Commission that the fairness doctrine "[has] the net effect of reducing, rather than enhancing," speech, we would then be forced to reconsider the constitutional basis of our decision in that case. 395 U.S. at 395 U. S. 393 . [ Footnote 13 ] This Court's decision in FCC v. Pacifica Foundation, 438 U. S. 726 (1978), upholding an exercise of the Commission's authority to regulate broadcasts containing "indecent" language as applied to a particular afternoon broadcast of a George Carlin monologue, is consistent with the approach taken in our other broadcast cases. There, the Court focused on certain physical characteristics of broadcasting -- specifically, that the medium's uniquely pervasive presence renders impossible any prior warning for those listeners who may be offended by indecent language, and, second, that the ease with which children may gain access to the medium, especially during daytime hours, creates a substantial risk that they may be exposed to such offensive expression without parental supervision. Id. at 438 U. S. 748 -749. The governmental interest in reduction of those risks through Commission regulation of the timing and character of such "indecent broadcasting" was thought sufficiently substantial to outweigh the broadcaster's First Amendment interest in controlling the presentation of its programming. Id. at 438 U. S. 750 . In this case, by contrast, we are faced not with indecent expression, but rather with expression that is at the core of First Amendment protections, and no claim is made by the Government that the expression of editorial opinion by noncommercial stations will create a substantial "nuisance" of the kind addressed in FCC v. Pacifica Foundation. [ Footnote 14 ] In 1949, finding that "programs in which the licensee's personal opinions are expressed are [not] intrinsically more or less subject to abuse than any other program devoted to public issues," the FCC concluded that overt licensee editorializing, so long as "it is exercised in conformity with the paramount right of the public to hear a reasonably balanced presentation of all responsible viewpoints," is "consistent with the licensee's duty to operate in the public interest." Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1253, 1258 (1949). At the time, of course, this decision applied with equal force to both noncommercial educational licensees and commercial stations. The FCC has since underscored its view that editorializing by broadcast licensees serves the public interest by identifying editorial programming as one of 14 "major elements usually necessary to meet the public interest, needs and desires of the community." FCC Programming Statement, 25 Fed.Reg. 7295 (1960). The Commission has regularly enforced this policy by considering a licensee's editorializing practices in license renewal proceedings. See, e.g., Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 402, 444 F.2d 841, 860 (1970); Evening Star Broadcasting Co., 27 F.C.C.2d 316, 332 (1971); RKO General, Inc., 44 F.C.C.2d 149, 219 (1969). [ Footnote 15 ] See also Bolger v. Youngs Drug Products Corp., 463 U. S. 60 , 463 U. S. 65 (1983); Carey v. Brown, 447 U. S. 455 , 447 U. S. 462 -463 (1980); First National Bank of Boston v. Bellotti, 435 U.S. at 435 U. S. 784 -785; Police Department of Chicago v. Mosley, 408 U. S. 92 , 408 U. S. 95 -96 (1972). [ Footnote 16 ] The Government also contends that § 399 is intended to prevent the use of taxpayer moneys to promote private views with which taxpayers may disagree. This argument is readily answered by our decision in Buckley v. Valeo, 424 U. S. 1 , 424 U. S. 90 -93 (1976) (per curiam). As we explained in that case, virtually every congressional appropriation will, to some extent, involve a use of public money as to which some taxpayers may object. Id. at 424 U. S. 91 -92. Nevertheless, this does not mean that those taxpayers have a constitutionally protected right to enjoin such expenditures. Nor can this interest be invoked to justify a congressional decision to suppress speech. And, unlike Wooley v. Maynard, 430 U. S. 705 (1977), this is not a case in which an individual taxpayer is forced in his daily life to identify with particular views expressed by educational broadcasting stations. Even if this were a serious interest, it is belied by the underinclusiveness of § 399. The Government concedes -- indeed it insists -- that all sorts of controversial speech are subsidized by the 1967 Act, and yet, out of all of this potentially objectionable speech, only the expression of editorial opinion by local stations is selected for suppression. If angry taxpayers were really the central, animating concern of Congress when it passed the 1967 Act, then § 399 does not go far enough in suppressing controversial speech in this medium. That the provision is so unrelated to this asserted purpose suggests that the Government's interest is not substantial. Cf. Buckley v. Valeo, supra, at 424 U. S. 45 ; First National Bank of Boston v. Bellotti, supra, at 435 U. S. 793 . [ Footnote 17 ] The Senate Report concerning the Act, for example, explained: "There is general agreement that, for the time being, Federal financial assistance is required to provide the resources necessary for quality programs. It is also recognized that this assistance should in no way involve the Government in programming or program judgments. An independent entity supported by Federal funds is required to provide programs free of political pressures. The Corporation for Public Broadcasting, a nonprofit private corporation, . . . provides such an entity." S.Rep. No. 222, 90th Cong., 1st Sess., 4 (1967). "Your committee has heard considerable discussion about the fear of Government control or interference in programming if [the Act] is enacted. We wish to state in the strongest terms possible that it is our intention that local stations be absolutely free to determine for themselves what they should or should not broadcast." Id. at 11. See also The Public Television Act of 1967: Hearings on S. 1160 before the Subcommittee on Communications of the Senate Committee on Commerce, 90th Cong., 1st Sess., 9 (1967) (remarks of Sen. Pastore). The House Report echoed the same concerns: "Every witness who discussed the operation of the Corporation agreed that funds for programs should not be provided directly by the Federal Government. It was generally agreed that a nonprofit Corporation, directed by a Board of Directors, none of whom will be Government employees, will provide the most effective insulation from Government control or influence over the expenditure of funds." H.R.Rep. No. 572, 90th Cong., 1st Sess., 15 (1967). "[L]ocal stations shall retain both the opportunity and responsibility for broadcasting programs they feel best serve their communities. Similarly, the local station alone will make the decision whether or not to participate in any interconnection arrangements. . . ." Id. at 18. [ Footnote 18 ] The legislative history surrounding § 399 also suggests that a variety of reasons lay behind the decision to include it as part of the Act. Although some supporters of § 399 plainly were concerned that permitting editorializing might create a risk that noncommercial stations would be subjected to undue governmental influence, and thereby become vehicles for governmental propaganda, see 113 Cong.Rec. 26383 (1967) (remarks of Rep. Staggers), other supporters of the provision appear to have been more concerned with preventing the possibility that these stations would criticize Government officials. Representative Springer, the provision's chief sponsor and the ranking minority member of the House Committee that reported out the bill containing § 399, explained that his concerns were due at least in part to the fact that "[t]here are some of us who have very strong feelings because they have been editorialized against." Hearings on H.R. 6736 and S. 1160 before the House Committee on Interstate and Foreign Commerce, 90th Cong., 1st Sess., 641 (1967) (House Hearings). See also 113 Cong.Rec. 26391 (1967) (remarks of Rep. Joelson). Indeed, during hearings on the bill, the Committee heard a variety of views on the question of editorializing by noncommercial educational stations. Some witnesses felt that editorials of any kind would be inappropriate, see, e.g., House Hearings at 513-514 (remarks of William Harley, President, National Association of Educational Broadcasters), while others took a different view, explaining that, although specific endorsements of political candidates would be inappropriate, editorials concerning civic affairs and other matters of public concern would be an important part of responsible educational broadcasting, see, e.g., id. at 391-392 (remarks of McGeorge Bundy, President, Ford Foundation); id. at 640-642 (remarks of Dr. Samuel Gould, Joint Council on Educational Telecommunications). After the House passed H.R. 6736, the Senate, disagreeing with the addition of § 399, requested a Conference and only receded from its disagreement "when it was explained that the prohibition . . . was limited to providing that no noncommercial educational broadcast station may broadcast editorials representing the opinion of the management of such station . . . [and that] these provisions are not intended to preclude balanced, fair, and objective presentations of controversial issues. . . ." H.R.Conf.Rep. No. 794, 90th Cong., 1st Sess., 12 (1967). Of course, as the Government points out, Congress has consistently retained the basic proscription on editorializing in § 399, despite periodic reconsiderations and modifications of the Act in 1973, 1978, and 1981. Brief for Appellant 25-27; see also n 7, supra. A reviewing court may not easily set aside such a considered congressional judgment. At the same time, "[d]eference to a legislative finding cannot limit judicial inquiry when First Amendment rights are at stake. . . . Were it otherwise, the scope of freedom of speech and of the press would be subject to legislative definition and the function of the First Amendment as a check on legislative power would be nullified." Landmark Communications, Inc. v. Virginia, 435 U. S. 829 , 435 U. S. 843 -844 (1978). [ Footnote 19 ] Furthermore, the risk that federal coercion or influence will be brought to bear against local stations as a result of federal financing is considerably attenuated by the fact that CPB grants account for only a portion of total public broadcasting income. CPB, Public Broadcasting Income: Fiscal Year 1982, Table 2 (Final Report, Dec.1983) (noting that federal funds account for 23.4% of total income for all public broadcasting stations). The vast majority of financial support comes instead from state and local governments, as well as a wide variety of private sources, including foundations, businesses, and individual contributions; indeed, as the CPB recently noted, "[t]he diversity of support in America for public broadcasting is remarkable," CPB, 1982 Annual Report 2 (1982). Given this diversity of funding sources and the decentralized manner in which funds are secured, the threat that improper federal influence will be exerted over local stations is not so pressing as to require the total suppression of editorial speech by these stations. [ Footnote 20 ] This likelihood is enhanced with respect to public stations because they are required to establish community advisory boards which must reasonably reflect the "diverse needs and interests of the communities served by such station[s]." § 396(k)(9)(A). For a review of sample topics of broadcast editorializing, see Fang & Whelan, Survey of Television Editorials and Ombudsman Segments, 17 J. Broadcasting 363 (1973); see also E. Routt, Dimensions of Broadcast Editorializing (1974). [ Footnote 21 ] Congressional experience with the Act following its passage in 1967 has reaffirmed its commitment to preserving broad editorial discretion for local stations in determining the content of their schedules and programming. This experience also suggests that those critical reactions to public broadcasting that have occurred have focused not on the exercise of such editorial judgments by local stations, but rather on controversial programming produced for national distribution, which has included critical commentary on public affairs. In 1972, claiming that the centralization of program production was usurping the role of local stations, then-President Nixon vetoed a bill establishing 2-year appropriations authority for CPB funding. See Carnegie II, at 41-43. In addition, the administration was critical of certain of the best known nationally distributed public affairs programs, such as "Bill Moyer's Journal" and "Washington Week in Review," which were regarded by some as too controversial. See Canby, The First Amendment and the State as Editor: Implications for Public Broadcasting, 52 Texas L.Rev. 1123, 1156-1157 (1974). These events prompted Congress to undertake its first thorough review of the public broadcasting system since the enactment of the Public Broadcasting Act. See S.Rep. No. 93-123, p. 12 (1973). The result of that review was a firm congressional commitment to developing long-range financing for public broadcasting to "provide adequate insulation against Government interference," id. at 14, and to ensuring an "increase [in] both the percentage and amount of unrestricted support available to public television stations . . . [in order to ensure] strong local programming made possible by a predictable level of community service [ i.e., unrestricted] grants." H.R.Rep. No. 93-324, pp. 7, 9 (1973). These themes have been carried forward in subsequent amendments to the Act, see Pub.L. 95-567, § 307, 92 Stat. 2415, and Pub.L. 97-35, § 1227, 95 Stat. 727. [ Footnote 22 ] As the Government points out in its brief, at least two-thirds of the public television broadcasting stations in operation are licensed to (a) state public broadcasting authorities or commissions, in which commission members are often appointed by the governor with the advice and consent of the state legislature, (b) state universities or educational commissions, or (c) local school boards or municipal authorities. Brief for Appellant 20, nn. 43, 44; see also CPB, 1983-84 CPB Public Broadcasting Directory 5-8, 66-86 (Sept.1983). [ Footnote 23 ] See also Hearings on S. 1160, at 93 (remarks of FCC Chairman Hyde); Special Message to the Congress: "Education and Health in America," 1 Public Papers of the Presidents, Lyndon B. Johnson, Feb. 28, 1967, p. 250 (1967) ("Noncommercial television and radio in America, even though supported by federal funds, must be absolutely free from any federal government interference over programming"); see also 113 Cong.Rec. 26384 (1967) (remarks of Rep. Staggers); H.R.Rep. No. 572, 90th Cong., 1st Sess., 18-19 (1967); S.Rep. No. 222, 90th Cong., 1st Sess., 7-8, 11 (1967). [ Footnote 24 ] We note in this regard that, in 1977, the administration, observing that § 399's ban appeared to "mak[e] sense for stations licensed to a State or local government instrumentalit[ies]" but not for nongovernmental licensees, proposed that the statute be amended to permit editorializing by all stations not licensed to governmental entities. President's Message on Public Broadcasting (Oct. 6, 1977), reprinted in H.R.Rep. No. 95-1178, p. 9 (1978). The House, however, went further and passed H.R. 12605, which, among other things, amended § 399 by deleting entirely the ban on editorializing, while retaining the ban on political endorsements. 124 Cong.Rec.19937 (1978); see also H.R.Rep. No. 95-1178, supra, at 31. The Senate then passed an amended version of H.R. 12605, which retained § 399 in its original form. 124 Cong.Rec. 30081 (1978). At conference, the House receded from its disagreement, and § 399 was retained. H.R.Conf.Rep. No. 95-1774, p. 35 (1978). Whether a prohibition on editorializing restricted to the licensees of state and local governmental entities would pass constitutional muster is a question we need not decide. [ Footnote 25 ] When it determined in 1949 that broadcast editorializing served the public interest, the FCC recognized precisely this fact: "It is clear that the licensee's authority to determine the specific programs to be broadcast over his station gives him an opportunity . . . to insure that his personal viewpoint on any particular issue is presented in his station's broadcasts, whether or not these views are expressly identified with the licensee." Editorializing by Broadcast Licensees, 13 F.C.C. at 1252. The Commission nonetheless rejected the contention that overt advocacy by licensees would be contrary to the public interest. Instead, the FCC found that "these fears are largely misdirected . . . ; they stem from a confusion of the question of overt advocacy in the name of the licensee, with the broader issue of insuring that the station's broadcasts devoted to the consideration of public issues will provide the listening public with a fair and balanced presentation of differing viewpoints on such issues. . . . If it be true that station good will and licensee prestige, where it exists, may give added weight to opinion expressed by the licensee, it does not follow that such opinion should be excluded from the air. . . . Assurance off-airness must, in the final analysis, be achieved not by the exclusion of particular views because of the source of the views, . . . but by making the microphone available, for the presentation of contrary views. . . ." Id. at 1253-1254 (emphasis added). [ Footnote 26 ] See Defendant's Memorandum of Points and Authorities in Opposition to Plaintiff's Motion for Summary Judgment (July 22, 1981); Defendant's Supplemental Memorandum on Amendment of Section 399 (Sept. 15, 1981); Defendant's Memorandum in Support of Its Motion to Dismiss the Second Amended Complaint (Oct. 13, 1981). [ Footnote 27 ] JUSTICE REHNQUIST's effort to prop up his position by relying on our decisions upholding certain provisions of the Hatch Act, 5 U.S.C. § 7324 et seq., only reveals his misunderstanding of what is at issue in this case. For example, in both United Public Workers v. Mitchell, 330 U. S. 75 (1947), and CSC v. Letter Carriers, 413 U. S. 548 (1973), the Court has upheld § 9(a) of the Hatch Act -- a provision that differs from § 399 in three fundamental respects: first, the statute only prohibits Government employees from "active participation in political management and political campaigns," and, accordingly, "[e]xpressions, public or private, on public affairs, personalities and matters of public interest" are not proscribed, id. at 413 U. S. 556 ; second, the constitutionality of that restriction is grounded in the Government's substantial and important interest in ensuring effective job performance by its own employees, id. at 413 U. S. 564 -565; and, finally, these restrictions evolved over a century of governmental experience with less restrictive alternatives that proved to be inadequate to maintain the effective operation of government, id. at 413 U. S. 557 -563. Here, by contrast, the editorializing ban in § 399 directly suppresses not only political endorsements, but all editorial expression on matters of public importance; it applies to independent, nongovernmental entities rather than to the Government's own employees; and, it is not grounded in any prior governmental experience with less restrictive means. More importantly, in neither of those cases did the Court even consider that the restrictions could be justified simply because these employees were receiving Government funds, nor did it find that a lesser degree of judicial scrutiny was required simply because Government funds were involved. JUSTICE REHNQUIST's reliance upon Oklahoma v. CSC, 330 U. S. 127 (1947), see post at 468 U. S. 405 -406, is also misplaced. There, a principal issue addressed by the Court was Oklahoma's claim that § 12 of the Hatch Act invaded the State's sovereignty in violation of the Tenth Amendment, because it authorized the Civil Service Commission to withhold federal funds from States whose officers violated the Act. As the Court noted, "[t]he coercive effect of the authorization to withhold sums allocated to a state is relied upon as an interference with the reserved powers of the state." Id. at 468 U. S. 142 . After citing Mitchell, supra, for the proposition that the Act did not impermissibly interfere with an employee's freedom of expression in political matters, 330 U.S. at 330 U. S. 142 , the Court explained: "While the United States is not concerned with, and has no power to regulate, local political activities as such of state officials, it does have power to fix the terms upon which its money allotments to states shall be disbursed. The Tenth Amendment does not forbid the exercise of this power in the way that Congress has proceeded in this case. " Id. at 330 U. S. 143 (emphasis added). Thus, it was only in the context of rejecting Oklahoma's Tenth Amendment claim that the Court used the language cited by the dissent. Just as in Mitchell and Letter Carriers, therefore, the Court never intimated in Oklahoma v. CSC that the mere presence of Government funds was a sufficient reason to uphold the Hatch Act's restrictions on employee freedoms on the basis of relaxed First Amendment standards. JUSTICE WHITE: Believing that the editorializing and candidate endorsement proscription stand or fall together, and being confident that Congress may condition use of its funds on abstaining from political endorsements, I join JUSTICE REHNQUIST's dissenting opinion. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and JUSTICE WHITE join, dissenting. All but three paragraphs of the Court's lengthy opinion in this case are devoted to the development of a scenario in which the Government appears as the "Big Bad Wolf," and appellee Pacifica as "Little Red Riding Hood." In the Court's scenario the Big Bad Wolf cruelly forbids Little Red Page 468 U. S. 403 Riding Hood to take to her grandmother some of the food that she is carrying in her basket. Only three paragraphs are used to delineate a truer picture of the litigants, wherein it appears that some of the food in the basket was given to Little Red Riding Hood by the Big Bad Wolf himself, and that the Big Bad Wolf had told Little Red Riding Hood in advance that, if she accepted his food, she would have to abide by his conditions. Congress, in enacting § 399 of the Public Broadcasting Act, 47 U.S.C. § 399, has simply determined that public funds shall not be used to subsidize noncommercial, educational broadcasting stations which engage in "editorializing" or which support or oppose any political candidate. I do not believe that anything in the First Amendment to the United States Constitution prevents Congress from choosing to spend public moneys in that manner. Perhaps a more appropriate analogy than that of Little Red Riding Hood and the Big Bad Wolf is that of Faust and Mephistopheles; Pacifica, well aware of § 399's condition on its receipt of public money, nonetheless accepted the public money, and now seeks to avoid the conditions which Congress legitimately has attached to receipt of that funding. While noncommercial, educational broadcasting has a long history in this country, its success was spotty at best until the Federal Government came to its assistance some 45 years ago. Beginning in the late 1930's, the Federal Communications Commission (FCC) reserved certain frequencies, first for educational radio, 47 CFR §§ 4.131-4.133 (1939), and then for educational television, Television Assignments, 41 F.C.C. 148 (1952). But even with that assistance, by 1962 there were only 50 educational television stations on the air, and two-thirds of the population had no access to educational television. S.Rep. No. 67, 87th Cong., 1st Sess., 3 (1961). In that year, Congress passed the Educational Television Act of 1962, Pub.L. 87-447, 76 Stat. 64, which appropriated $32 million over a period of five years to aid the construction of educational stations, and by 1967, 126 such stations were operating. Page 468 U. S. 404 Congress' vision was that public broadcasting would be a forum for the educational, cultural, and public affairs broadcasting which commercial stations had been unable or unwilling to furnish. In order to further that vision, in 1967, Congress passed the Public Broadcasting Act of 1967, Pub.L. 90-129, 81 Stat. 365, 47 U.S.C. § 390 et seq., of which § 399 is a part, which created the Corporation for Public Broadcasting (CPB), a nonprofit, Government-chartered corporation governed by a Board of Directors appointed by the President. Although Congress could have chosen to create a federally owned broadcasting network, instead it chose a Government funding program whereby CPB would make grants to stations owned by others, fund the production of programs, and assist in the establishment and development of interconnection systems. Congress' intent was that CPB's subsidies would ensure that "programs of high quality, diversity, creativity, excellence, and innovation, which are obtained from diverse sources, will be made available to public telecommunications entities, with strict adherence to objectivity and balance in all programs or series of programs of a controversial nature." 47 U.S.C. § 396(g)(1)(A). Understandably Congress did not leave its creature CPB free to roam at large in the broadcasting world, but instead imposed certain restrictions, in keeping with Congress' purposes in passing the Act, on CPB's authorization to grant funds. For example, Congress required that stations receiving CPB grants be government entities or nonprofit organizations, 47 U.S.C. §§ 397(6), (7), and it prohibited them from selling air time for any purpose whatever -- including selling time for political or public affairs presentations. §§ 397(7), 399a; see 47 CFR §§ 73.503(d), 73.621(e) (1983). Furthermore, in order to prevent recipient stations from serving as outlets for the political and ideological views of station owners and managers, Congress also insisted in § 399 that subsidized educational stations not engage in editorializing or endorsing or opposing political candidates. Page 468 U. S. 405 The Court's three-paragraph discussion of why § 399, repeatedly reexamined and retained by Congress, violates the First Amendment is to me utterly unpersuasive. Congress has rationally determined that the bulk of the taxpayers whose moneys provide the funds for grants by the CPB would prefer not to see the management of local educational stations promulgate its own private views on the air at taxpayer expense. Accordingly Congress simply has decided not to subsidize stations which engage in that activity. Last Term, in Regan v. Taxation With Representation of Washington, 461 U. S. 540 (1983), we upheld a provision of the Internal Revenue Code which deprives an otherwise eligible organization of its tax-exempt status and its right to receive tax-deductible contributions if it engages in lobbying. We squarely rejected the contention that Congress' decision not to subsidize lobbying violates the First Amendment, even though we recognized that the right to lobby is constitutionally protected. In so holding, we reiterated that "a legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right." Id. at 461 U. S. 549 . We also rejected the notion that, because Congress chooses to subsidize some speech but not other speech, its exercise of its spending powers is subject to strict judicial scrutiny. Id. at 461 U. S. 547 -548. Relying primarily on the reasoning of the concurrence, rather than of the majority, opinion in Taxation with Representation, the Court today seeks to avoid the thrust of that opinion by pointing out that a public broadcasting station is barred from editorializing with its nonfederal funds even though it may receive only a minor fraction of its income from CPB grants. The Court reasons that § 399 does not operate simply to restrict the use of federal funds to purposes defined by Congress; instead, it goes further by prohibiting any station that receives "only 1% of its overall income from CPB grants" from using "even wholly private funds to finance its editorial activity." Ante at 468 U. S. 400 . Page 468 U. S. 406 But to me, there is no distinction between § 399 and the statute which we upheld in Oklahoma v. CSC, 330 U. S. 127 (1947). Section 12(a) of the Hatch Act totally prohibits any local or state employee who is employed in any activity which receives partial or total financing from the United States from taking part in any political activities. One might just as readily denounce such congressional action as prohibiting employees of a state or local government receiving even a minor fraction of that government's income from federal assistance from exercising their First Amendment right to speak. But, not surprisingly, this Court upheld the Hatch Act provision in Oklahoma v. CSC, supra, succinctly stating: "While the United States is not concerned with, and has no power to regulate, local political activities, as such, of state officials, it does have power to fix the terms upon which its money allotments to states shall be disbursed." Id. at 143. * See also CSC v. Letter Carriers, 413 U. S. 548 (1973); United Public Workers v. Mitchell, 330 U. S. 75 (1947) (rejecting a First Amendment attack on the Hatch Act provisions applicable to federal employees). The Court seems to believe that Congress actually subsidizes editorializing only if a station uses federal money specifically to cover the expenses that the Court believes can be isolated as editorializing expenses. But to me, the Court's approach ignores economic reality. CPB's unrestricted grants are used for salaries, training, equipment, promotion, etc. -- financial expenditures which benefit all aspects of a station's programming, including management's editorials. Page 468 U. S. 407 Given the impossibility of compartmentalizing programming expenses in any meaningful way, it seems clear to me that the only effective means for preventing the use of public moneys to subsidize the airing of management's views is for Congress to ban a subsidized station from all on-the-air editorializing. Under the Court's view, if Congress decided to withhold a 100% subsidy from a station which editorializes, that decision would be constitutional under the principle affirmed in our Taxation With Representation decision. Surely, on these facts, the distinction between the Government's power to withhold a 100% subsidy, on the one hand, and the 20-30% subsidy involved here, 547 F. Supp. 379 , 385 (CD Cal.1982), on the other hand, is simply trivialization. This is not to say that the Government may attach any condition to its largess; it is only to say that, when the Government is simply exercising its power to allocate its own public funds, we need only find that the condition imposed has a rational relationship to Congress' purpose in providing the subsidy, and that it is not primarily " "aimed at the suppression of dangerous ideas."'" Cammarano v. United States, 358 U. S. 498 , 358 U. S. 513 (1959), quoting Speiser v. Randall, 357 U. S. 513 , 357 U. S. 519 (1958), in turn quoting American Communications Assn. v. Douds, 339 U. S. 382 , 339 U. S. 402 (1950). In this case, Congress' prohibition is directly related to its purpose in providing subsidies for public broadcasting, and it is plainly rational for Congress to have determined that taxpayer moneys should not be used to subsidize management's views or to pay for management's exercise of partisan politics. Indeed, it is entirely rational for Congress to have wished to avoid the appearance of Government sponsorship of a particular view or a particular political candidate. Furthermore, Congress' prohibition is strictly neutral. In no sense can it be said that Congress has prohibited only editorial views of one particular ideological bent. Nor has it prevented public stations from airing programs, documentaries, interviews, etc. dealing with controversial subjects, so long as management Page 468 U. S. 408 itself does not expressly endorse a particular viewpoint. And Congress has not prevented station management from communicating its own views on those subjects through any medium other than subsidized public broadcasting. For the foregoing reasons I find this case entirely different from the so-called "unconstitutional condition" cases, wherein the Court has stated that the government "may not deny a benefit to a person on a basis that infringes his constitutionally protected interests -- especially his interest in freedom of speech." Perry v. Sindermann, 408 U. S. 593 , 408 U. S. 597 (1972). In those cases, the suppressed speech was not content-neutral in the same sense as here, and in those cases, there is, at best, only a strained argument that the legislative purpose of the condition imposed was to avoid subsidizing the prohibited speech. Speiser v. Randall, supra, is illustrative of the difference. In that case, California's decision to deny its property tax exemption to veterans who would not declare that they would not work to overthrow the government was plainly directed at suppressing what California regarded as speech of a dangerous content. And the condition imposed was so unrelated to the benefit to be conferred that it is difficult to argue that California's property tax exemption actually subsidized the dangerous speech. Here, in my view, Congress has rationally concluded that the bulk of taxpayers whose moneys provide the funds for grants by the CPB would prefer not to see the management of public stations engage in editorializing or the endorsing or opposing of political candidates. Because Congress' decision to enact § 399 is a rational exercise of its spending powers, and strictly neutral, I would hold that nothing in the First Amendment makes it unconstitutional. Accordingly, I would reverse the judgment of the District Court. * The Court takes pains to show that the argument rejected in Oklahoma v. CSC was a Tenth Amendment argument. Ante at 468 U. S. 401 -402, n. 27. Without belaboring the point, in my view a fair reading of the opinion is that the Court used the quoted language in that case to refer to a First Amendment argument similar to this one, as well as to a Tenth Amendment argument. JUSTICE STEVENS, dissenting. The court jester who mocks the King must choose his words with great care. An artist is likely to paint a flattering portrait of his patron. The child who wants a new toy Page 468 U. S. 409 does not preface his request with a comment on how fat his mother is. Newspaper publishers have been known to listen to their advertising managers. Elected officials may remember how their elections were financed. By enacting the statutory provision that the Court invalidates today, a sophisticated group of legislators expressed a concern about the potential impact of Government funds on pervasive and powerful organs of mass communication. One need not have heard the raucous voice of Adolf Hitler over Radio Berlin to appreciate the importance of that concern. AS JUSTICE WHITE correctly notes, the statutory prohibitions against editorializing and candidate endorsements rest on the same foundation. In my opinion, that foundation is far stronger than merely "a rational basis," and it is not weakened by the fact that it is buttressed by other provisions that are also designed to avoid the insidious evils of government propaganda favoring particular points of view. The quality of the interest in maintaining government neutrality in the free market of ideas -- of avoiding subtle forms of censorship and propaganda -- outweigh the impact on expression that results from this statute. Indeed, by simply terminating or reducing funding, Congress could curtail much more expression with no risk whatever of a constitutional transgression. In order to explain my assessment of the case, it is necessary first to supplement the majority's description of the impact of the statute on free expression, and then to comment on the justification for that impact. I The relevant facts may be briefly stated. Appellee League of Women Voters of California, a nonprofit organization, wants to enlist the "editorial support" of educational broadcasters in support of its causes. App. 8. Appellee Henry Waxman, a regular listener and viewer of educational stations, desires to hear the "editorial opinions" of educational Page 468 U. S. 410 stations. Id. at 9. Appellee Pacifica, a nonprofit educational corporation which operates five educational radio stations -- the broadcasts from which reach 20 percent of the Nation's population -- wants to "broadcast its views on various important public issues, and . . . clearly label those views as being editorials broadcast on behalf of the Pacifica management." Id. at 9-10. In short, Pacifica wants to broadcast its views to Waxman via its radio stations; Waxman wants to listen to those views on his radio; and the League of Women Voters wants a chance to convince Pacifica to take positions its members favor in its radio broadcasts. All of these wants could be realized but for the fact that Pacifica receives public funds to finance its broadcasts. Because the Government subsidizes its broadcasts, a federal statute prohibits Pacifica from broadcasting its views -- labeled as such -- via the radio stations it operates. That statute now provides: "No noncommercial educational broadcasting station which receives a grant from the Corporation under subpart C of this part may engage in editorializing. No noncommercial educational broadcasting station may support or oppose any candidate for public office." 47 U.S.C. § 399. [ Footnote 2/1 ] Although appellees originally challenged the validity of the entire statute, in their amended complaint, they limited their attack to the prohibition against editorializing. [ Footnote 2/2 ] In its analysis Page 468 U. S. 411 of the case, the Court assumes that the ban on political endorsements is severable from the first section, and that it may be constitutional. [ Footnote 2/3 ] In view of the fact that the major Page 468 U. S. 412 difference between the ban on political endorsements is based on the content of the speech, it is apparent that the entire rationale of the Court's opinion rests on the premise that it may be permissible to predicate a statutory restriction on candidate endorsements on the difference between the content of that kind of speech and the content of other expressions of editorial opinion. The Court does not tell us whether speech that endorses political candidates is more or less worthy of protection than other forms of editorializing, but it does iterate and reiterate the point that "the expression of editorial opinion" is a special kind of communication that "is entitled to the most exacting degree of First Amendment protection." Ante at 468 U. S. 375 -376; see also ante at 468 U. S. 380 n. 13, 468 U. S. 381 , 468 U. S. 382 , 468 U. S. 383 , and 468 U. S. 384 . [ Footnote 2/4 ] Neither the fact that the statute regulates only one kind of speech nor the fact that editorial opinion has traditionally been an important kind of speech is sufficient to identify the character or the significance of the statute's impact on speech. Three additional points are relevant. First, the statute does not prohibit Pacifica from expressing its opinion through any avenue except the radio stations for which it receives federal financial support. It eliminates the subsidized channel of communication as a forum for Pacifica itself, and thereby deprives Pacifica of an advantage it would otherwise have over other speakers, but it does not exclude Pacifica from the marketplace for ideas. Second, the statute does not curtail the expression of opinion by individual commentators Page 468 U. S. 413 who participate in Pacifica's programs. The only comment that is prohibited is a statement that Pacifica agrees or disagrees with the opinions that others may express on its programs. Third, and of greatest significance for me, the statutory restriction is completely neutral in its operation -- it prohibits all editorials without any distinction's being drawn concerning the subject matter or the point of view that might be expressed. [ Footnote 2/5 ] Page 468 U. S. 414 II The statute does not violate the fundamental principle that the citizen's right to speak may not be conditioned upon the sovereign's agreement with what the speaker intends to say. [ Footnote 2/6 ] On the contrary, the statute was enacted in order to protect that very principle -- to avoid the risk that some speakers will be rewarded or penalized for saying things that appeal to -- or are offensive to -- the sovereign. [ Footnote 2/7 ] The interests the statute Page 468 U. S. 415 is designed to protect are interests that underlie the First Amendment itself. In my judgment, the interest in keeping the Federal Government out of the propaganda arena is of overriding importance. That interest is of special importance in the field of electronic communication, not only because that medium is so powerful and persuasive, but also because it is the one form of communication that is licensed by the Federal Government. [ Footnote 2/8 ] When the Government already has great potential Page 468 U. S. 416 power over the electronic media, it is surely legitimate to enact statutory safeguards to make sure that it does not cross the threshold that separates neutral regulation from the subsidy of partisan opinion. The Court does not question the validity of the basic interests served by § 399. See ante at 468 U. S. 386 . Instead, it suggests that the statute does not substantially serve those interests, because the Public Broadcasting Act operates in many other respects to insulate local stations from governmental interference. See ante at 468 U. S. 388 -390. In my view, that is an indication of nothing more than the strength of the governmental interest involved here -- Congress enacted many safeguards because the evil to be avoided was so grave. Organs of official propaganda are antithetical to this Nation's heritage, and Congress understandably acted with great caution in this area. [ Footnote 2/9 ] It is no answer to say that the other statutory provisions "substantially reduce the risk of governmental interference with the editorial judgments of local stations without restricting those stations' ability to speak on matters of public concern." Ante at 468 U. S. 390 . The other safeguards protect the stations from interference with judgments that they will necessarily make in selecting programming, but those judgments are relatively amorphous. No safeguard is foolproof, and the fact that funds are dispensed according to largely "objective" criteria certainly is no guarantee. Individuals must always make judgments in allocating funds, and pressure can be exerted in subtle ways, as well as through outright fund-cutoffs. Members of Congress, not members of the Judiciary, live in the world of politics. When they conclude that there is a real danger of political considerations' influencing the dispensing of this money, and that this provision is necessary to insulate grantees from political pressures in addition to the other safeguards, that judgment is entitled to our respect. Page 468 U. S. 417 The magnitude of the present danger that the statute is designed to avoid is admittedly a matter about which reasonable judges may disagree. [ Footnote 2/10 ] Moreover, I would agree that the risk would be greater if other statutory safeguards were removed. It remains true, however, that Congress has the power to prevent the use of public funds to subsidize the expression of partisan points of view, or to suppress the propagation of dissenting opinions. No matter how great or how small the immediate risk may be, there surely is more than a theoretical possibility that future grantees might be influenced by the ever present tie of the political purse strings, even if those strings are never actually pulled. "[O]ne who knows that he may dissent knows also that he somehow consents when he does not dissent." H. Arendt, Crises of the Republic 88 (1972), citing 1 A. de Tocqueville, Democracy in America 419 (1945). [ Footnote 2/11 ] Page 468 U. S. 418 III The Court describes the scope of § 399's ban as being "defined solely on the basis of the content of the suppressed speech," ante at 468 U. S. 383 , and analogizes this case to the regulation of speech we condemned in Consolidated Edison Co. v. Public Service Comm'n of N.Y., 447 U. S. 530 (1980). This description reveals how the Court manipulates labels without perceiving the critical differences behind the two cases. In Consolidated Edison, the class of speakers that was affected by New York's prohibition consisted of regulated public utilities that had been expressing their opinion on the issue of nuclear power by means of written statements inserted in their customers' monthly bills. Although the scope of the prohibition was phrased in general terms and applied to a selected group of speakers, it was obviously directed at spokesmen for a particular point of view. The justification for the restriction was phrased in terms of the potential offensiveness of the utilities' messages to their audiences. It was a classic case of a viewpoint-based prohibition. In this case, however, although the regulation applies only to a defined class of noncommercial broadcast licensees, it is common ground that these licensees represent heterogenous points of view. [ Footnote 2/12 ] There is simply no sensible basis for considering this regulation a viewpoint restriction -- or, to use the Court's favorite phrase, to condemn it as "content-based" -- because it applies equally to station owners of all shades of opinion. Moreover, the justification for the prohibition is not based on the "offensiveness" of the messages in the sense that that term was used in Consolidated Edison. Here, it is true that taxpayers might find it offensive if their tax moneys were being used to subsidize the expression of editorial Page 468 U. S. 419 opinion with which they disagree, but it is the fact of the subsidy -- not just the expression of the opinion -- that legitimates this justification. Furthermore, and of greater importance, the principal justification for this prohibition is the overriding interest in forestalling the creation of propaganda organs for the Government. I respectfully dissent. [ Footnote 2/1 ] As originally enacted in 1967, the statute provided: "No noncommercial educational broadcasting station may engage in editorializing or may support or oppose any candidate for political office." Pub.L. 90-129, Title II, § 201(8), 81 Stat. 368. [ Footnote 2/2 ] Appellees' abandonment of their attack on the ban on political endorsements merits some comment. At one level, it is perplexing, given that we have stated that such political expression is at the very core of the First Amendment's protection, see, e.g., Brown v. Hartlage, 456 U. S. 45 (1982); Monitor Patriot Co. v. Roy, 401 U. S. 265 , 401 U. S. 272 (1971), and given that Pacifica cannot escape the ban on political endorsements simply by declining to accept Government funds. Viewed solely from the perspective of the First Amendment interests at stake, therefore, it would appear that the ban on candidate endorsements is more suspect than the ban on editorializing. In New York Times Co. v. Sullivan, 376 U. S. 254 (1964), we expressly recognized the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. . . ." Id. at 376 U. S. 270 . Appellee Pacifica, which originally asserted a desire to endorse political candidates, apparently has now decided that it does not want to engage in a "wide-open" debate on public issues -- it no longer asserts the right to make "vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials" over its radio stations which are, in fact, funded by Government officials. In any event, if these particular litigants abandoned their attack on the seemingly more suspect political endorsement ban for tactical reasons, that fact is an indication of the strength of the same basic governmental interest which forms the foundation of the provision which they continue to challenge. [ Footnote 2/3 ] The Court actually raises the wrong severability issue. The serious question in this regard is whether the entire public funding scheme is severable from the prohibition on editorializing and political endorsements. The legislative history of the statute indicates the strength of the congressional aversion to these practices. The basic notion of providing Government subsidies to these domestic organs for the dissemination of information -- "educational" stations -- was viewed as extremely troubling. The line between education and indoctrination is a subtle one, and it is one Congress did not want these publicly funded stations to cross. The fact that the House Committee Report stated in passing that the provision was added out of "an abundance of caution," merely shows that Congress deemed an abundance of caution necessary. The majority may view the congressional concerns -- potential governmental censorship, giving louder voices to a privileged few station owners, and the use of taxpayer funds to subsidize expression of viewpoints with which the taxpayers may not agree -- as insufficiently weighty to justify the statute, but Congress clearly thought they were weighty enough. [ Footnote 2/4 ] Thus, once again the Court embraces the obvious proposition that some speech is more worthy of protection than other speech -- that the right to express editorial opinion may be worth fighting to preserve even though the right to hear less worthy speech may not -- a proposition that several Members of today's majority could only interpret "as an aberration" in Young v. American Mini Theatres, Inc., 427 U. S. 50 , 427 U. S. 87 (1976) (dissenting opinion) ("The fact that the offensive' speech here may not address `important' topics -- `ideas of social and political significance,' in the Court's terminology, [427 U.S. at 427 U. S. 61 ] -- does not mean that it is less worthy of constitutional protection"). [ Footnote 2/5 ] Section 399's ban on editorializing is a content-based restriction on speech, but not in the sense that the majority implies. The majority speaks of "editorial opinion" as if it were some sort of special species of opinion, limited to issues of public importance. See, e.g., ante at 468 U. S. 375 -376. The majority confuses the typical content of editorials with the meaning of editorial itself. An editorial is, of course, a statement of the management's opinion on any topic imaginable. The Court asserts that what the statute "forecloses is the expression of editorial opinion on controversial issues of public importance.'" Ante at 468 U. S. 381 . The statute is not so limited. The content which is prohibited is that the station is not permitted to state its opinion with respect to any matter. In short, it may not be an on-the-air advocate if it accepts Government funds for its broadcasts. The prohibition on editorializing is not directed at any particular message a station might wish to convey, cf. Linmark Associates, Inc. v. Willingboro, 431 U. S. 85 , 431 U. S. 96 -97 (1977); see generally Whitney v. California, 274 U. S. 357 , 274 U. S. 377 (1927) (Brandeis, J., concurring). Unlike the Court, I am not troubled by the fact that the stations are allowed to make "daily announcements of the station's program schedule or over-the-air appeals for contributions from listeners " ante at 468 U. S. 383 , for it is quite plain that this statute is not directed at curtailing expression of particular points of view on controversial issues; it is designed to assure to the extent possible that the station does not become a vehicle for Government propaganda. Paradoxically, § 399 is later attacked by the majority as essentially being underinclusive because it does not prohibit "controversial" national programming that is often aired with substantial federal funding. Here the Court recognizes that the ban imposed by § 399 "is plainly not directed at the potentially controversial content of such programs," ante at 468 U. S. 391 , which only demonstrates that it is not directed at the substance of communication at all. Next, § 399's ban on editorializing is attacked by the majority on overinclusive grounds -- because it is content-neutral -- since it prohibits a "potentially infinite variety of speech, most of which would not be related in any way to governmental affairs, political candidacies, or elections." Ante at 468 U. S. 393 . Hence, while earlier the majority attacked § 399 as being content-based, it is now attacked as being non-content-based, applying to expressions of opinion -- such as "urging improvements in a town's parks or museums," ibid. -- which does not pose, in the Court's view at least, a realistic danger of governmental interference because of its content. [ Footnote 2/6 ] "The general principle that has emerged from this line of cases is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others. See Bolger v. Youngs Drug Products Corp., 463 U. S. 60 , 463 U. S. 65 , 463 U. S. 72 (1983); Consolidated Edison Co. v. Public Service Comm'n of N.Y., 447 U. S. 530 , 447 U. S. 535 -536 (1980); Carey v. Brown, 447 U. S. 455 , 447 U. S. 462 -463 (1980); Young v. American Mini Theatres, Inc., 427 U. S. 50 , 427 U. S. 63 -65, 427 U. S. 67 -68 (1976) (plurality opinion); Police Department of Chicago v. Mosley, 408 U. S. 92 , 408 U. S. 95 -96 (1972)." City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789 , 466 U. S. 804 (1984). [ Footnote 2/7 ] It is ironic indeed that the majority states that it must be particularly wary in assessing § 399 "to determine whether it reflects an impermissible attempt to allow a government [to] control . . . the search for political truth,'" ante at 468 U. S. 384 (citation omitted), given that the very object of § 399 is to prevent the Government from controlling the search for political truth. Indeed, the Court recognizes that, when Congress decided to provide financial support to educational stations, "all concerned agreed that this step posed some risk that these traditionally independent stations might be pressured into becoming forums devoted solely to programming and views that were acceptable to the Federal Government." Ante at 468 U. S. 386 . Moreover, the statute will also protect the listener's interest in not having his tax payments used to finance the advocacy of causes he opposes. The majority gives extremely short shrift to the Government's interest in minimizing the use of taxpayer moneys to promote private views with which the taxpayers may disagree. The Court briefly observes that the taxpayers do not have a constitutionally protected right to enjoin such expenditures, and then leaps to the conclusion that, given the fact the funding scheme itself is not unconstitutional, this interest cannot be used to support the statute at issue here. Ante at 468 U. S. 385 , n. 16. The conclusion manifestly does not follow from the premise, and this interest is plainly legitimate and significant. [ Footnote 2/8 ] We have consistently adhered to the following guiding principles applicable to First Amendment claims in the area of broadcasting, and they bear repeating at some length: "Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish. . . ." ". . . No one has a First Amendment right to a license or to monopolize a radio frequency. . . . " "By the same token, as far as the First Amendment is concerned, those who are licensed stand no better than those to whom licenses are refused. A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves." "[T]he people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. . . . It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee. . . . It is the right of the public to receive . . . ideas . . . which is crucial here." Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 , 395 U. S. 388 -390 (1969). [ Footnote 2/9 ] Cf. 22 U.S.C. § 1461 (prohibiting the International Communication Agency -- successor to the United States Information Agency -- from disseminating information in the United States). [ Footnote 2/10 ] The majority argues that the Government's concededly substantial interest in ensuring that audiences of educational stations will not perceive the station to be a Government propaganda organ can be fully satisfied by requiring such stations to broadcast a disclaimer each time they editorialize, stating that the editorial "does not in any way represent the views of the Federal Government. . . ." Ante at 468 U. S. 395 . This solution would be laughable were it not so Orwellian: the answer to the fact that there is a real danger that the editorials are really Government propaganda is for the Government to require the station to tell the audience that it is not propaganda at all! [ Footnote 2/11 ] The "fairness doctrine" is no answer to the concern that Government-funded organs of mass communication will, overall, take a pro-Government slant in editorializing, and thereby create a distortion in the marketplace of ideas. First, the "fairness doctrine" is itself enforced by the Government. Second, that doctrine does not guarantee other speakers access to the microphone if they disagree with editorial opinion expressed by the station on public policy issues. No other voice need be heard if the Government determines that the station's editorial "fairly" presented the substance of "the" opposing view. Moreover, as appellees argue, editorials from an institution which the public may hold in high regard may carry added weight in the marketplace of ideas. See Brief for Appellees 15. That fact, however, magnifies the evil sought to be avoided, for the danger is that pro-Government views that are not actually shared by that institution will be parroted to curry favor with its benefactor. [ Footnote 2/12 ] That does not necessarily mean, however, "that the editorial voices of these stations will prove to be as distinctive, varied, and idiosyncratic as the various communities they represent," ante at 468 U. S. 391 , given the potential effects of Government funding, see supra at 468 U. S. 416 -417, and 468 U.S. 364 fn2/11|>n. 11.

The Supreme Court ruled that a ban on non-commercial educational stations receiving federal funds from editorializing violates the First Amendment. The Court found that while Congress has the power to regulate broadcasting under the Commerce Clause, the First Amendment protects the freedom of speech for broadcasters. The Court also noted that the restriction on editorializing was content-based and singled out non-commercial broadcasters, which raised concerns about government interference in the marketplace of ideas. The Court prioritized the right of viewers and listeners to receive a balanced presentation of views over the government's interest in preventing stations from becoming government propaganda organs.

Free Speech

Branzburg v. Hayes

https://supreme.justia.com/cases/federal/us/408/665/

U.S. Supreme Court Branzburg v. Hayes, 408 U.S. 665 (1972) Branzburg v. Hayes No. 70-85 Argued February 23, 1972 Decided June 29, 1972* 408 U.S. 665 CERTIORARI TO THE COURT OF APPEALS OF KENTUCKY Syllabus The First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege for an agreement he makes to conceal facts relevant to a grand jury's investigation of a crime or to conceal the criminal conduct of his source or evidence thereof. Pp. 408 U. S. 679 -709. No. 705, 461 S.W.2d 345 , and Kentucky Court of Appeals judgment in unreported case of Branzburg v. Meigs, and No. 70-94, 358 Mass. 604, 266 N.E.2d 297 , affirmed; No. 70-57, 434 F.2d 1081, reversed. WHITE, J., wrote the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 408 U. S. 709 . DOUGLAS, J., filed a dissenting opinion, post, p. 408 U. S. 711 . STEWART, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 408 U. S. 725 . Page 408 U. S. 667 Opinion of the Court by MR. JUSTICE WHITE, announced by THE CHIEF JUSTICE. The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment. We hold that it does not. I The writ of certiorari in No. 70-85, Branzburg v. Hayes and Meigs, brings before us two judgments of the Kentucky Court of Appeals, both involving petitioner Branzburg, a staff reporter for the Courier-Journal, a daily newspaper published in Louisville, Kentucky. On November 15, 1969, the Courier-Journal carried a story under petitioner's by-line describing in detail his observations of two young residents of Jefferson County synthesizing hashish from marihuana, an activity which, they asserted, earned them about $5,000 in three weeks. The article included a photograph of a pair of hands working above a laboratory table on which was a substance identified by the caption as hashish. The article stated that petitioner had promised not to Page 408 U. S. 668 reveal the identity of the two hashish makers. [ Footnote 1 ] Petitioner was shortly subpoenaed by the Jefferson County grand jury; he appeared, but refused to identify the individuals he had seen possessing marihuana or the persons he had seen making hashish from marihuana. [ Footnote 2 ] A state trial court judge [ Footnote 3 ] ordered petitioner to answer these questions and rejected his contention that the Kentucky reporters' privilege statute, Ky.Rev.Stat. § 421.100 (1962) [ Footnote 4 ] the First Amendment of the United States Constitution, or §§ 1, 2, and 8 of the Kentucky Constitution authorized his refusal to answer. Petitioner then sought prohibition and mandamus in the Kentucky Court of Appeals on the same ground, but the Court of Appeals denied the petition. Branzburg v. Page 408 U. S. 669 Pound, 461 S.W.2d 345 (1970), as modified on denial of rehearing, Jan. 22, 1971. It held that petitioner had abandoned his First Amendment argument in a supplemental memorandum he had filed and tacitly rejected his argument based on the Kentucky Constitution. It also construed Ky.Rev.Stat. § 421.100 as affording a newsman the privilege of refusing to divulge the identity of an informant who supplied him with information, but held that the statute did not permit a reporter to refuse to testify about events he had observed personally, including the identities of those persons he had observed. The second case involving petitioner Branzburg arose out of his later story published on January 10, 1971, which described in detail the use of drugs in Frankfort, Kentucky. The article reported that, in order to provide a comprehensive survey of the "drug scene" in Frankfort, petitioner had "spent two weeks interviewing several dozen drug users in the capital city," and had seen some of them smoking marihuana. A number of conversations with and observations of several unnamed drug users were recounted. Subpoenaed to appear before a Franklin County grand jury "to testify in the matter of violation of statutes concerning use and sale of drugs," petitioner Branzburg moved to quash the summons; [ Footnote 5 ] the motion was denied, although Page 408 U. S. 670 an order was issued protecting Branzburg from revealing "confidential associations, sources or information" but requiring that he "answer any questions which concern or pertain to any criminal act, the commission of which was actually observed by [him]." Prior to the time he was slated to appear before the grand jury, petitioner sought mandamus and prohibition from the Kentucky Court of Appeals, arguing that, if he were forced to go before the grand jury or to answer questions regarding the identity of informants or disclose information given to him in confidence, his effectiveness as a reporter would be greatly damaged. The Court of Appeals once again denied the requested writs, reaffirming its construction of Ky.Rev.Stat. § 421.100, and rejecting petitioner's claim of a First Amendment privilege. It distinguished Caldwell v. United States, 434 F.2d 1081 (CA9 1970), and it also announced its "misgivings" about that decision, asserting that it represented "a drastic departure from the generally recognized rule that the sources of information of a newspaper reporter are not privileged under the First Amendment." It characterized petitioner's fear that his ability to obtain Page 408 U. S. 671 news would be destroyed as "so tenuous that it does not, in the opinion of this court, present an issue of abridgement of the freedom of the press within the meaning of that term as used in the Constitution of the United States." Petitioner sought a writ of certiorari to review both judgments of the Kentucky Court of Appeals, and we granted the writ. [ Footnote 6 ] 402 U.S. 942 (1971). Page 408 U. S. 672 In re Pappas, No. 70-94, originated when petitioner Pappas, a television newsman-photographer working out of the Providence, Rhode Island, office of a New Bedford, Massachusetts, television station, was called to New Bedford on July 30, 1970, to report on civil disorders there which involved fires and other turmoil. He intended to cover a Black Panther news conference at that group's headquarters in a boarded-up store. Petitioner found the streets around the store barricaded, but he ultimately gained entrance to the area and recorded and photographed a prepared statement read by one of the Black Panther leaders at about 3 p.m. [ Footnote 7 ] He then asked for and received permission to reenter the area. Returning at about 9 o'clock, he was allowed to enter and remain inside Panther headquarters. As a condition of entry, Pappas agreed not to disclose anything he saw or heard inside the store except an anticipated police raid, which Pappas, "on his own," was free to photograph and report as he wished. Pappas stayed inside the headquarters for about three hours, but there was no police raid, and petitioner wrote no story and did not otherwise reveal what had occurred in the store while he was there. Two months later, petitioner was summoned before the Bristol Page 408 U. S. 673 County Grand Jury and appeared, answered questions as to his name, address, employment, and what he had seen and heard outside Panther headquarters, but refused to answer any questions about what had taken place inside headquarters while he was there, claiming that the First Amendment afforded him a privilege to protect confidential informants and their information. A second summons was then served upon him, again directing him to appear before the grand jury and "to give such evidence as he knows relating to any matters which may be inquired of on behalf of the Commonwealth before . . . the Grand Jury." His motion to quash on First Amendment and other grounds was denied by the trial judge who, noting the absence of a statutory newsman's privilege in Massachusetts, ruled that petitioner had no constitutional privilege to refuse to divulge to the grand jury what he had seen and heard, including the identity of persons he had observed. The case was reported for decision to the Supreme Judicial Court of Massachusetts. [ Footnote 8 ] The record there did not include a transcript of the hearing on the motion to quash, nor did it reveal the specific questions petitioner had refused to answer, the expected nature of his testimony, the nature of the grand jury investigation, or the likelihood of the grand jury's securing the information it sought from petitioner by other means. [ Footnote 9 ] The Page 408 U. S. 674 Supreme Judicial Court, however, took "judicial notice that, in July, 1970, there were serious civil disorders in New Bedford, which involved street barricades, exclusion of the public from certain streets, fires, and similar turmoil. We were told at the arguments that there was gunfire in certain streets. We assume that the grand jury investigation was an appropriate effort to discover and indict those responsible for criminal acts." 358 Mass. 604, 607, 266 N.E.2d 297 , 299 (1971). The court then reaffirmed prior Massachusetts holdings that testimonial privileges were "exceptional" and "limited," stating that "[t]he principle that the public has a right to every man's evidence'" had usually been preferred, in the Commonwealth, to countervailing interests. Ibid. The court rejected the holding of the Ninth Circuit in Caldwell v. United States, supra, and "adhere[d] to the view that there exists no constitutional newsman's privilege, either qualified or absolute, to refuse to appear and testify before a court or grand jury. [ Footnote 10 ]" 358 Mass. at 612, 266 N.E.2d at 302-303. Any adverse effect upon the free dissemination of news by virtue of petitioner's being called to testify was deemed to be only "indirect, theoretical, and uncertain." Id. at 612, 266 N.E.2d at 302. The court concluded that "[t]he obligation of newsmen . . . is that of every citizen . . . to appear when summoned, with relevant written or other material when required, and to answer relevant and reasonable inquiries." Id. at 612, 266 N.E.2d at 303. The court nevertheless noted that grand juries were subject to supervision by the presiding Page 408 U. S. 675 judge, who had the duty "to prevent oppressive, unnecessary, irrelevant, and other improper inquiry and investigation," ibid., to insure that a witness' Fifth Amendment rights were not infringed, and to assess the propriety, necessity, and pertinence of the probable testimony to the investigation in progress. [ Footnote 11 ] The burden was deemed to be on the witness to establish the impropriety of the summons or the questions asked. The denial of the motion to quash was affirmed, and we granted a writ of certiorari to petitioner Pappas. 402 U.S. 942 (1971). United States v. Caldwell, No. 70-57, arose from subpoenas issued by a federal grand jury in the Northern District of California to respondent Earl Caldwell, a reporter for the New York Times assigned to cover the Black Panther Party and other black militant groups. A subpoena duces tecum was served on respondent on February 2, 1970, ordering him to appear before the grand jury to testify and to bring with him notes and tape recordings of interviews given him for publication by officers and spokesmen of the Black Panther Party concerning the aims, purposes, and activities of that organization. [ Footnote 12 ] Respondent objected to the scope Page 408 U. S. 676 of this subpoena, and an agreement between his counsel and the Government attorneys resulted in a continuance. A second subpoena, served on March 16, omitted the documentary requirement and simply ordered Caldwell "to appear . . . to testify before the Grand Jury." Respondent and his employer, the New York Times, [ Footnote 13 ] moved to quash on the ground that the unlimited breadth of the subpoenas and the fact that Caldwell would have to appear in secret before the grand jury would destroy his working relationship with the Black Panther Party and "suppress vital First Amendment freedoms . . . by driving a wedge of distrust and silence between the news media and the militants." App. 7. Respondent argued that "so drastic an incursion upon First Amendment freedoms" should not be permitted "in the absence of a compelling governmental interest -- not shown here -- in requiring Mr. Caldwell's appearance before the grand jury." Ibid. The motion was supported by amicus curiae memoranda from other publishing concerns and by affidavits from newsmen asserting the unfavorable impact on news sources of requiring reporters to appear before grand juries. The Government filed three memoranda in opposition to the motion to quash, each supported by affidavits. These documents stated that the grand jury was investigating, among other things, possible violations of a number of criminal statutes, including 18 U.S.C. § 871 (threats against the President), 18 U.S.C. Page 408 U. S. 677 § 1751 (assassination, attempts to assassinate, conspiracy to assassinate the President), 18 U.S.C. § 231 (civil disorders), 18 U.S.C. § 2101 (interstate travel to incite a riot), and 18 U.S.C. § 1341 (mail frauds and swindles). It was recited that, on November 15, 1969, an officer of the Black Panther Party made a publicly televised speech in which he had declared that "[w]e will kill Richard Nixon" and that this threat had been repeated in three subsequent issues of the Party newspaper. App. 66, 77. Also referred to were various writings by Caldwell about the Black Panther Party, including an article published in the New York Times on December 14, 1969, stating that "[i]n their role as the vanguard in a revolutionary struggle, the Panthers have picked up guns," and quoting the Chief of Staff of the Party as declaring: "We advocate the very direct overthrow of the Government by way of force and violence. By picking up guns and moving against it because we recognize it as being oppressive and, in recognizing that, we know that the only solution to it is armed struggle [ sic ]." App. 62. The Government also stated that the Chief of Staff of the Party had been indicted by the grand jury on December 3, 1969, for uttering threats against the life of the President in violation of 18 U.S.C. § 871, and that various efforts had been made to secure evidence of crimes under investigation through the immunization of persons allegedly associated with the Black Panther Party. On April 6, the District Court denied the motion to quash, Application of Caldwell, 311 F. Supp. 358 (ND Cal.1970), on the ground that " every person within the jurisdiction of the government" is bound to testify upon being properly summoned. Id. at 360 (emphasis in original). Nevertheless, the court accepted respondent's First Amendment arguments to the extent of issuing a protective order providing that, although respondent had to divulge Page 408 U. S. 678 whatever information had been given to him for publication, he "shall not be required to reveal confidential associations, sources or information received, developed or maintained by him as a professional journalist in the course of his efforts to gather news for dissemination to the public through the press or other news media." The court held that the First Amendment afforded respondent a privilege to refuse disclosure of such confidential information until there had been "a showing by the Government of a compelling and overriding national interest in requiring Mr. Caldwell's testimony which cannot be served by any alternative means." Id. at 362. Subsequently, [ Footnote 14 ] the term of the grand jury expired, a new grand jury was convened, and a new subpoena ad testificandum was issued and served on May 22, 1970. A new motion to quash by respondent and memorandum in opposition by the Government were filed, and, by stipulation of the parties, the motion was submitted on the prior record. The court denied the motion to quash, repeating the protective provisions in its prior order but this time directing Caldwell to appear before the grand jury pursuant to the May 22 subpoena. Respondent refused to appear before the grand jury, and the court issued an order to show cause why he should not be held in contempt. Upon his further refusal to go before the grand jury, respondent was ordered committed for contempt until such time as he complied with the court's order or until the expiration of the term of the grand jury. Page 408 U. S. 679 Respondent Caldwell appealed the contempt order, [ Footnote 15 ] and the Court of Appeals reversed. Caldwell v. United States, 434 F.2d 1081 (CA9 1970). Viewing the issue before it as whether Caldwell was required to appear before the grand jury at all, rather than the scope of permissible interrogation, the court first determined that the First Amendment provided a qualified testimonial privilege to newsmen; in its view, requiring a reporter like Caldwell to testify would deter his informants from communicating with him in the future and would cause him to censor his writings in an effort to avoid being subpoenaed. Absent compelling reasons for requiring his testimony, he was held privileged to withhold it. The court also held, for similar First Amendment reasons, that, absent some special showing of necessity by the Government, attendance by Caldwell at a secret meeting of the grand jury was something he was privileged to refuse because of the potential impact of such an appearance on the flow of news to the public. We granted the United States' petition for certiorari. [ Footnote 16 ] 402 U.S. 942 (1971). II Petitioners Branzburg and Pappas and respondent Caldwell press First Amendment claims that may be simply put: that, to gather news, it is often necessary to agree either not to identify the source of information published or to publish only part of the facts revealed, or both; that, if the reporter is nevertheless Page 408 U. S. 680 forced to reveal these confidences to a grand jury, the source so identified and other confidential sources of other reporters will be measurably deterred from furnishing publishable information, all to the detriment of the free flow of information protected by the First Amendment. Although the newsmen in these cases do not claim an absolute privilege against official interrogation in all circumstances, they assert that the reporter should not be forced either to appear or to testify before a grand jury or at trial until and unless sufficient grounds are shown for believing that the reporter possesses information relevant to a crime the grand jury is investigating, that the information the reporter has is unavailable from other sources, and that the need for the information is sufficiently compelling to override the claimed invasion of First Amendment interests occasioned by the disclosure. Principally relied upon are prior cases emphasizing the importance of the First Amendment guarantees to individual development and to our system of representative government, [ Footnote 17 ] decisions requiring that official action with adverse impact on First Amendment rights be justified by a public interest that is "compelling" or "paramount," [ Footnote 18 ] and those precedents establishing the principle that justifiable governmental goals may not be achieved by unduly broad means having an unnecessary impact Page 408 U. S. 681 on protected rights of speech, press, or association. [ Footnote 19 ] The heart of the claim is that the burden on news gathering resulting from compelling reporters to disclose confidential information outweighs any public interest in obtaining the information. [ Footnote 20 ] We do not question the significance of free speech, press, or assembly to the country's welfare. Nor is it suggested that news gathering does not qualify for First Amendment protection; without some protection for seeking out the news, freedom of the press could be eviscerated. But these cases involve no intrusions upon speech or assembly, no prior restraint or restriction on what the press may publish, and no express or implied command that the press publish what it prefers to withhold. No exaction or tax for the privilege of publishing, and no penalty, civil or criminal, related to the content of published material is at issue here. The use of confidential sources by the press is not forbidden or restricted; reporters remain free to seek news from Page 408 U. S. 682 any source by means within the law. No attempt is made to require the press to publish its sources of information or indiscriminately to disclose them on request. The sole issue before us is the obligation of reporters to respond to grand jury subpoenas as other citizens do, and to answer questions relevant to an investigation into the commission of crime. Citizens generally are not constitutionally immune from grand jury subpoenas, and neither the First Amendment nor any other constitutional provision protects the average citizen from disclosing to a grand jury information that he has received in confidence. [ Footnote 21 ] The claim is, however, that reporters are exempt from these obligations because, if forced to respond to subpoenas and identify their sources or disclose other confidences, their informants will refuse or be reluctant to furnish newsworthy information in the future. This asserted burden on news gathering is said to make compelled testimony from newsmen constitutionally suspect, and to require a privileged position for them. It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability. Under prior cases, otherwise valid laws serving substantial public interests may be enforced against the press as against others, despite Page 408 U. S. 683 the possible burden that may be imposed. The Court has emphasized that "[t]he publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others." Associated Press v. NLRB, 301 U. S. 103 , 301 U. S. 132 -133 (1937). It was there held that the Associated Press, a news-gathering and disseminating organization, was not exempt from the requirements of the National Labor Relations Act. The holding was reaffirmed in Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186 , 327 U. S. 192 -193 (1946), where the Court rejected the claim that applying the Fair Labor Standards Act to a newspaper publishing business would abridge the freedom of press guaranteed by the First Amendment. See also Mabee v. White Plains Publishing Co., 327 U. S. 178 (1946). Associated Press v. United States, 326 U. S. 1 (1945), similarly overruled assertions that the First Amendment precluded application of the Sherman Act to a newsgathering and disseminating organization. Cf. Indiana Farmer's Guide Publishing Co. v. Prairie Farmer Publishing Co., 293 U. S. 268 , 293 U. S. 276 (1934); Citizen Publish in Co. v. United States, 394 U. S. 131 , 394 U. S. 139 (1969); Lorain Journal Co. v. United States, 342 U. S. 143 , 342 U. S. 155 -156 (1951). Likewise, a newspaper may be subjected to nondiscriminatory forms of general taxation. Grosjean v. American Press Co., 297 U. S. 233 , 297 U. S. 250 (1936); Murdock v. Pennsylvania, 319 U. S. 105 , 319 U. S. 112 (1943). The prevailing view is that the press is not free to publish with impunity everything and anything it desires to publish. Although it may deter or regulate what is said or published, the press may not circulate knowing or reckless falsehoods damaging to private reputation without subjecting itself to liability for damages, including punitive damages, or even criminal prosecution. See New York Times Co. v. Sullivan, 376 U. S. 254 , Page 408 U. S. 684 376 U. S. 279 -280 (1964); Garrison v. Louisiana, 379 U. S. 64 , 379 U. S. 74 (1964); Curtis Publishing Co. v. Butts, 388 U. S. 130 , 388 U. S. 147 (1967) (opinion of Harlan, J.,); Monitor Patriot Co. v. Roy, 401 U. S. 265 , 401 U. S. 277 (1971). A newspaper or a journalist may also be punished for contempt of court, in appropriate circumstances. Craig v. Harney, 331 U. S. 367 , 331 U. S. 377 -378 (1947). It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally. Zemel v. Rusk, 381 U. S. 1 , 381 U. S. 16 -17 (1965); New York Times Co. v. United States, 403 U. S. 713 , 403 U. S. 728 -730 (1971), (STEWART, J., concurring); Tribune Review Publishing Co. v. Thomas, 254 F.2d 883, 885 (CA3 1958); In the Matter of United Press Assns. v. Valente, 308 N.Y. 71 , 77, 123 N.E.2d 777, 778 (1954). In Zemel v. Rusk, supra, for example, the Court sustained the Government's refusal to validate passports to Cuba even though that restriction "render[ed] less than wholly free the flow of information concerning that country." Id. at 381 U. S. 16 . The ban on travel was held constitutional, for "[t]he right to speak and publish does not carry with it the unrestrained right to gather information." Id. at 381 U. S. 17 . [ Footnote 22 ] Despite the fact that news gathering may be hampered, the press is regularly excluded from grand jury proceedings, our own conferences, the meetings of other official bodies gathered in executive session, and the meetings of private organizations. Newsmen have no constitutional right of access to the scenes of crime or Page 408 U. S. 685 disaster when the general public is excluded, and they may be prohibited from attending or publishing information about trials if such restrictions re necessary to assure a defendant a fair trial before an impartial tribunal. In Sheppard v. Maxwell, 384 U. S. 333 (1966), for example, the Court reversed a state court conviction where the trial court failed to adopt "stricter rules governing the use of the courtroom by newsmen, as Sheppard's counsel requested," neglected to insulate witnesses from the press, and made no "effort to control the release of leads, information, and gossip to the press by police officers, witnesses, and the counsel for both sides." Id. at 384 U. S. 358 , 384 U. S. 359 . "[T]he trial court might well have proscribed extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters." Id. at 384 U. S. 361 . See also Estes v. Texas, 381 U. S. 532 , 381 U. S. 539 -540 (1965); Rideau v. Louisiana, 373 U. S. 723 , 373 U. S. 726 (1963). It is thus not surprising that the great weight of authority is that newsmen are not exempt from the normal duty of appearing before a grand jury and answering questions relevant to a criminal investigation. At common law, courts consistently refused to recognize the existence of any privilege authorizing a newsman to refuse to reveal confidential information to a grand jury. See, e.g., Ex Parte Lawrence, 116 Cal. 298, 48 P. 124 (1897); Plunkett v. Hamilton, 136 Ga. 72, 70 S.E. 781 (1911); Clein v. State, 52 So. 2d 117 (Fla.1950); In re Grunow, 84 N.J.L. 235, 85 A. 1011 (1913); People ex rel. Mooney v. Sheriff, 269 N.Y. 291, 199 N.E. 415 (1936); Joslyn v. People, 67 Colo. 297, 184 P. 375 (1919); Adams v. Associated Press, 46 F.R.D. 439 (SD Tex.1969); Brewster v. Boston Herald-Traveler Corp., 20 F.R.D. 416 (Mass.1957). See generally Annot., 7 A.L.R.3d 591 (1966). In 1958, a news gatherer asserted for the first time that the First Amendment Page 408 U. S. 686 exempted confidential information from public disclosure pursuant to a subpoena issued in a civil suit, Garland v. Torre, 259 F.2d 545 (CA2), cert. denied, 358 U.S. 910 (1958), but the claim was denied, and this argument has been almost uniformly rejected since then, although there are occasional dicta that, in circumstances not presented here, a newsman might be excused. In re Goodfader, 45 Haw. 317, 367 P.2d 472 (1961); In re Taylor, 412 Pa. 32, 193 A.2d 181 (1963); State v. Buchanan, 250 Ore. 244, 436 P.2d 729 , cert. denied, 392 U.S. 905 (1968); Murphy v. Colorado (No.19604, Sup.Ct.Colo.), cert. denied, 365 U.S. 843 (1961) (unreported, discussed in In re Goodfader, supra, at 366, 367 P.2d at 498 (Mizuha, J., dissenting)). These courts have applied the presumption against the existence of an asserted testimonial privilege, United States v. Bryan, 339 U. S. 323 , 339 U. S. 331 (1950), and have concluded that the First Amendment interest asserted by the newsman was outweighed by the general obligation of a citizen to appear before a grand jury or at trial, pursuant to a subpoena, and give what information he possesses. The opinions of the state courts in Branzburg and Pappas are typical of the prevailing view, although a few recent cases, such as Caldwell, have recognized and given effect to some form of constitutional newsman's privilege. See State v. Knops, 49 Wis.2d 647, 183 N.W.2d 93 (1971) (dictum); Alioto v. Cowles Communications, Inc., C.A. No. 52150 (ND Cal.1969); In re Grand Jury Witnesses, 322 F. Supp. 573 (ND Cal.1970); People v. Dohrn, Crim. No. 69-3808 (Cook County, Ill., Cir. Ct.1970). The prevailing constitutional view of the newsman's privilege is very much rooted in the ancient role of the grand jury that has the dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded Page 408 U. S. 687 criminal prosecutions. [ Footnote 23 ] Grand jury proceedings are constitutionally mandated for the institution of federal criminal prosecutions for capital or other serious crimes, and "its constitutional prerogatives are rooted in long centuries of Anglo-American history." Hannah v. Larche, 363 U. S. 420 , 363 U. S. 489 -490 (1960) (Frankfurter, J., concurring in result). The Fifth Amendment provides that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." [ Footnote 24 ] The adoption of the grand jury "in our Constitution as the sole method for preferring charges in serious criminal cases shows the high place it held as an instrument of justice." Costello v. United States, 350 U. S. 359 , 350 U. S. 362 (1956). Although state systems of criminal procedure differ greatly among themselves, the grand jury is similarly guaranteed by many state constitutions and plays an important role in fair and effective law enforcement in the overwhelming Page 408 U. S. 688 majority of the States. [ Footnote 25 ] Because its task is to inquire into the existence of possible criminal conduct and to return only well founded indictments, its investigative powers are necessarily broad. "It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime." Blair v. United States, 250 U. S. 273 , 250 U. S. 282 (1919). Hence, the grand jury's authority to subpoena witnesses is not only historic, id. at 250 U. S. 279 -281, but essential to its task. Although the powers of the grand jury are not unlimited and are subject to the supervision of a judge, the longstanding principle that "the public . . . has a right to every man's evidence," except for those persons protected by a constitutional, common law, or statutory privilege, United States v. Bryan, 339 U.S. at 339 U. S. 331 ; Blackmer v. United States, 284 U. S. 421 , 284 U. S. 438 (1932); 8 J. Wigmore, Evidence § 2192 (McNaughton rev.1961), is particularly applicable to grand jury proceedings. [ Footnote 26 ] Page 408 U. S. 689 A number of States have provided newsmen a statutory privilege of varying breadth, [ Footnote 27 ] but the majority have not done so, and none has been provided by federal statute. [ Footnote 28 ] Until now, the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution Page 408 U. S. 690 is the Fifth Amendment privilege against compelled self-incrimination. We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do. [ Footnote 29 ] Fair and effective law enforcement aimed at providing security for the person and property of the individual is a fundamental function of government, and the grand jury plays an important, constitutionally mandated role in this process. On the records now before us, we perceive no basis for holding hat the public interest in law enforcement and in ensuring effective grand jury proceedings if insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant Page 408 U. S. 691 questions put to them in the course of a valid grand jury investigation or criminal trial. This conclusion itself involves no restraint on what newspapers may publish or on the type or quality of information reporters may seek to acquire, nor does it threaten the vast bulk of confidential relationships between reporters and their sources. Grand juries address themselves to the issues of whether crimes have been committed and who committed them. Only where news sources themselves are implicated in crime or possess information relevant to the grand jury's task need they or the reporter be concerned about grand jury subpoenas. Nothing before us indicates that a large number or percentage of all confidential news sources falls into either category and would in any way be deterred by our holding that the Constitution does not, as it never has, exempt the newsman from performing the citizen's normal duty of appearing and furnishing information relevant to the grand jury's task. The preference for anonymity of those confidential informants involved in actual criminal conduct is presumably a product of their desire to escape criminal prosecution, and this preference, while understandable, is hardly deserving of constitutional protection. It would be frivolous to assert -- and no one does in these cases -- that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws. Although stealing documents or private wiretapping could provide newsworthy information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news. Neither is immune, on First Amendment grounds, from testifying against the other, before the grand jury or at a criminal trial. The Amendment does not reach so far as to override the interest of the public in ensuring Page 408 U. S. 692 that neither reporter nor source is invading the rights of other citizens through reprehensible conduct forbidden to all other persons. To assert the contrary proposition "is to answer it, since it involves in its very statement the contention that the freedom of the press is the freedom to do wrong with impunity and implies the right to frustrate and defeat the discharge of those governmental duties upon the performance of which the freedom of all, including that of the press, depends. . . . It suffices to say that, however complete is the right of the press to state public things and discuss them, that right, as every other right enjoyed in human society, is subject to the restraints which separate right from wrongdoing." Toledo Newspaper Co. v. United States, 247 U. S. 402 , 247 U. S. 419 -420 (1918). [ Footnote 30 ] Thus, we cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it. Insofar as any reporter in these cases undertook not to reveal or testify about the crime he witnessed, his claim of privilege under the First Amendment presents no substantial question. The crimes of news sources are no less reprehensible and threatening to the public interest when witnessed by a reporter than when they are not. Page 408 U. S. 693 There remain those situations where a source is not engaged in criminal conduct but has information suggesting illegal conduct by others. Newsmen frequently receive information from such sources pursuant to a tacit or express agreement to withhold the source's name and suppress any information that the source wishes not published. Such informants presumably desire anonymity in order to avoid being entangled as a witness in a criminal trial or grand jury investigation. They may fear that disclosure will threaten their job security or personal safety, or that it will simply result in dishonor or embarrassment. The argument that the flow of news will be diminished by compelling reporters to aid the grand jury in a criminal investigation is not irrational, nor are the records before us silent on the matter. But we remain unclear how often and to what extent informers are actually deterred from furnishing information when newsmen are forced to testify before a grand jury. The available data indicate that some newsmen rely a great deal on confidential sources, and that some informants are particularly sensitive to the threat of exposure, and may be silenced if it is held by this Court that, ordinarily, newsmen must testify pursuant to subpoenas, [ Footnote 31 ] but the evidence fails to demonstrate that there would be a significant constriction of the flow of news to the public if this Court reaffirms the prior common law and constitutional rule regarding the testimonial obligations of newsmen. Estimates of the inhibiting effect of such subpoenas on the willingness of informants to make disclosures to newsmen are widely divergent and Page 408 U. S. 694 to a great extent speculative. [ Footnote 32 ] It would be difficult to canvass the views of the informants themselves; surveys of reporters on this topic are chiefly opinions of predicted informant behavior and must be viewed in the light of the professional self-interest of the interviewees. [ Footnote 33 ] Reliance by the press on confidential informants does not mean that all such sources will, in fact, dry up because of the later possible appearance of the newsman before a grand jury. The reporter may never be called, and, if he objects to testifying, the prosecution may not insist. Also, the relationship of many informants to the press is a symbiotic one which is unlikely to be greatly inhibited by the threat of subpoena: quite often, such informants are members of a minority political or cultural group that Page 408 U. S. 695 relies heavily on the media to propagate its views, publicize its aims, and magnify its exposure to the public. Moreover, grand juries characteristically conduct secret proceedings, and law enforcement officers are themselves experienced in dealing with informers, and have their own methods for protecting them without interference with the effective administration of justice. There is little before us indicating that informants whose interest in avoiding exposure is that it may threaten job security, personal safety, or peace of mind, would in fact, be in a worse position, or would think they would be, if they risked placing their trust in public officials as well as reporters. We doubt if the informer who prefers anonymity but is sincerely interested in furnishing evidence of crime will always or very often be deterred by the prospect of dealing with those public authorities characteristically charged with the duty to protect the public interest as well as his. Accepting the fact, however, that an undetermined number of informants not themselves implicated in crime will nevertheless, for whatever reason, refuse to talk to newsmen if they fear identification by a reporter in an official investigation, we cannot accept the argument that the public interest in possible future news about crime from undisclosed, unverified sources must take precedence over the public interest in pursuing and prosecuting those crimes reported to the press by informants and in thus deterring the commission of such crimes in the future. We note first that the privilege claimed is that of the reporter, not the informant, and that, if the authorities independently identify the informant, neither his own reluctance to testify nor the objection of the newsman would shield him from grand jury inquiry, whatever the impact on the flow of news or on his future usefulness as a secret source of information. More important, Page 408 U. S. 696 it is obvious that agreements to conceal information relevant to commission of crime have very little to recommend them from the standpoint of public policy. Historically, the common law recognized a duty to raise the "hue and cry" and report felonies to the authorities. [ Footnote 34 ] Misprision of a felony -- that is, the concealment of a felony "which a man knows, but never assented to . . . [so as to become] either principal or accessory," 4 W. Blackstone, Commentaries *121, was often said to be a common law crime. [ Footnote 35 ] The first Congress passed a statute, 1 Stat. 113, § 6, as amended, 35 Stat. 1114, § 146, 62 Stat. 884, which is still in effect, defining a federal crime of misprision: "Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be [guilty of misprision]." 18 U.S.C. § 4. [ Footnote 36 ] Page 408 U. S. 697 It is apparent from this statute, as well as from our history and that of England, that concealment of crime and agreements to do so are not looked upon with favor. Such conduct deserves no encomium, and we decline now to afford it First Amendment protection by denigrating the duty of a citizen, whether reporter or informer, to respond to grand jury subpoena and answer relevant questions put to him. Of course, the press has the right to abide by its agreement not to publish all the information it has, but the right to withhold news is not equivalent to a First Amendment exemption from the ordinary duty of all other citizens to furnish relevant information to a grand jury performing an important public function. Private restraints on the flow of information are not so favored by the First Amendment that they override all other public interests. As Mr. Justice Black declared in another context, "[f]reedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests." Associated Press v. United States, 326 U.S. at 326 U. S. 20 . Neither are we now convinced that a virtually impenetrable constitutional shield, beyond legislative or judicial control, should be forged to protect a private system of informers operated by the press to report on criminal conduct, a system that would be unaccountable to the public, would pose a threat to the citizen's justifiable expectations of privacy, and would equally protect well intentioned informants and those who for pay or otherwise betray their trust to their employer or associates. The public, through its elected and appointed Page 408 U. S. 698 law enforcement officers regularly utilizes informers, and in proper circumstances may assert a privilege against disclosing the identity of these informers. But "[t]he purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law enforcement officials and, by preserving their anonymity, encourages them to perform that obligation." Roviaro v. United States, 353 U. S. 53 , 353 U. S. 59 (1957). Such informers enjoy no constitutional protection. Their testimony is available to the public when desired by grand juries or at criminal trials; their identity cannot be concealed from the defendant when it is critical to his case. Id. at 353 U. S. 60 -61, 62; McCray v. Illinois, 386 U. S. 300 , 386 U. S. 310 (1967); Smith v. Illinois, 390 U. S. 129 , 390 U. S. 131 (1968); Alford v. United States, 282 U. S. 687 , 282 U. S. 693 (1931). Clearly, this system is not impervious to control by the judiciary and the decision whether to unmask an informer or to continue to profit by his anonymity is in public, not private, hands. We think that it should remain there and that public authorities should retain the options of either insisting on the informer's testimony relevant to the prosecution of crime or of seeking the benefit of further information that his exposure might prevent. We are admonished that refusal to provide a First Amendment reporter's privilege will undermine the freedom of the press to collect and disseminate news. But this is not the lesson history teaches us. As noted previously, the common law recognized no such privilege, and the constitutional argument was not even asserted until 1958. From the beginning of our country the press has operated without constitutional protection Page 408 U. S. 699 for press informants, and the press has flourished. The existing constitutional rules have not been a serious obstacle to either the development or retention of confidential news sources by the press. [ Footnote 37 ] It is said that currently press subpoenas have multiplied, [ Footnote 38 ] that mutual distrust and tension between press and officialdom have increased, that reporting styles have changed, and that there is now more need for confidential sources, particularly where the press seeks news about minority cultural and political groups or dissident organizations suspicious of the law and public officials. These developments, even if true, are treacherous grounds for a far-reaching interpretation of the First Amendment fastening a nationwide rule on courts, grand juries, and prosecuting officials everywhere. The obligation to testify in response to grand jury subpoenas will not threaten these sources not involved with criminal conduct and without information relevant to grand jury investigations, and we cannot hold that the Constitution places the sources in these two categories either above the law or beyond its reach. The argument for such a constitutional privilege rests heavily on those cases holding that the infringement of protected First Amendment rights must be no broader than necessary to achieve a permissible governmental purpose, see cases cited at n 19, supra. We do not deal, however, with a governmental institution that has abused Page 408 U. S. 700 its proper function, as a legislative committee does when it "expose[s] for the sake of exposure." Watkins v. United States, 354 U. S. 178 , 354 U. S. 200 (157). Nothing in the record indicates that these grand juries were "prob[ing] at will and without relation to existing need." DeGregory v. Attorney General of New Hampshire, 383 U. S. 825 , 383 U. S. 829 (1966). Nor did the grand juries attempt to invade protected First Amendment rights by forcing wholesale disclosure of names and organizational affiliations for a purpose that was not germane to the determination of whether crime has been committed, cf. NAACP v. Alabama, 357 U. S. 449 (1958); NAACP v. Button, 371 U. S. 415 (1963); Bates v. Little Rock, 361 U. S. 516 (1960), and the characteristic secrecy of grand jury proceedings is a further protection against the undue invasion of such rights. See Fed.Rule Crim.Proc. 6(e). The investigative power of the grand jury is necessarily broad if its public responsibility is to be adequately discharged. Costello v. United States, 350 U.S. at 350 U. S. 364 . The requirements of those cases, see n 18, supra, which hold that a State's interest must be "compelling" or "paramount" to justify even an indirect burden on First Amendment rights, are also met here. As we have indicated, the investigation of crime by the grand jury implements a fundamental governmental role of securing the safety of the person and property of the citizen, and it appears to us that calling reporters to give testimony in the manner and for the reasons that other citizens are called "bears a reasonable relationship to the achievement of the governmental purpose asserted as its justification." Bates v. Little Rock, supra, at 361 U. S. 525 . If the test is that the government "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest," Gibson v. Florida Legislative Investigation Committee , Page 408 U. S. 701 372 U. S. 539 , 372 U. S. 546 (1963), it is quite apparent (1) that the State has the necessary interest in extirpating the traffic in illegal drugs, in forestalling assassination attempts on the President, and in preventing the community from being disrupted by violent disorders endangering both persons and property; and (2) that, based on the stories Branzburg and Caldwell wrote and Pappas' admitted conduct, the grand jury called these reporters as they would others -- because it was likely that they could supply information to help the government determine whether illegal conduct had occurred and, if it had, whether there was sufficient evidence to return an indictment. Similar considerations dispose of the reporters' claims that preliminary to requiring their grand jury appearance, the State must show that a crime has been committed and that they possess relevant information not available from other sources, for only the grand jury itself can make this determination. The role of the grand jury as an important instrument of effective law enforcement necessarily includes an investigatory function with respect to determining whether a crime has been committed and who committed it. To this end it must call witnesses, in the manner best suited to perform its task. "When the grand jury is performing its investigatory function into a general problem area . . . society's interest is best served by a thorough and extensive investigation." Wood v. Georgia, 370 U. S. 375 , 370 U. S. 392 (1962). A grand jury investigation "is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed." United States v. Stone, 429 F.2d 138, 140 (CA2 1970). Such an investigation may be triggered by tips, rumors, evidence proffered by the prosecutor, or the personal knowledge of the grand jurors. Costello v. United States, 350 U.S. at 350 U. S. 362 . It is Page 408 U. S. 702 only after the grand jury has examined the evidence that a determination of whether the proceeding will result in an indictment can be made. "It is impossible to conceive that in such cases the examination of witnesses must be stopped until a basis is laid by an indictment formally preferred, when the very object of the examination is to ascertain who shall be indicted." Hale v. Henkel, 201 U. S. 43 , 201 U. S. 65 (1906). See also Hendricks v. United States, 223 U. S. 178 (1912); Blair v. United States, 250 U.S. at 250 U. S. 282 -283. We see no reason to hold that these reporters, any more than other citizens, should be excused from furnishing information that may help the grand jury in arriving at its initial determinations. The privilege claimed here is conditional, not absolute; given the suggested preliminary showings and compelling need, the reporter would be required to testify. Presumably, such a rule would reduce the instances in which reporters could be required to appear, but predicting in advance when and in what circumstances they could be compelled to do so would be difficult. Such a rule would also have implications for the issuance of compulsory process to reporters at civil and criminal trials and at legislative hearings. If newsmen's confidential sources are as sensitive as they are claimed to be, the prospect of being unmasked whenever a judge determines the situation justifies it is hardly a satisfactory solution to the problem. [ Footnote 39 ] For them, it would appear that only an absolute privilege would suffice. Page 408 U. S. 703 We are unwilling to embark the judiciary on a long and difficult journey to such an uncertain destination. The administration of a constitutional newsman's privilege Page 408 U. S. 704 would present practical and conceptual difficulties of a high order. Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods. Cf. In re Grand Jury Witnesses, 322 F. Supp. 573 , 574 (ND Cal.1970). Freedom of the press is a "fundamental personal right" which "is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion." Lovell v. Griffin, 303 U. S. 444 , 303 U. S. 450 , 303 U. S. 452 (138). See also Mills Page 408 U. S. 705 v. Alabama, 34 U.S. 214, 34 U. S. 219 (1966); Murdock v. Pennsylvania, 319 U. S. 105 , 319 U. S. 111 (1943). The informative function asserted by representatives of the organized press in the present cases is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow of information to the public, that he relies on confidential sources of information, and that these sources will be silenced if he is forced to make disclosures before a grand jury. [ Footnote 40 ] In each instance where a reporter is subpoenaed to testify, the courts would also be embroiled in preliminary factual and legal determinations with respect to whether the proper predicate had been laid for the reporter's appearance: Is there probable cause to believe a crime has been committed? Is it likely that the reporter has useful information gained in confidence? Could the grand jury obtain the information elsewhere? Is the official interest sufficient to outweigh the claimed privilege? Thus, in the end, by considering whether enforcement of a particular law served a "compelling" governmental interest, the courts would be inextricably involved in Page 408 U. S. 706 distinguishing between the value of enforcing different criminal laws. By requiring testimony from a reporter in investigations involving some crimes but not in others, they would be making a value judgment that a legislature had declined to make, since, in each case, the criminal law involved would represent a considered legislative judgment, not constitutionally suspect, of what conduct is liable to criminal prosecution. The task of judges, like other officials outside the legislative branch, is not to make the law, but to uphold it in accordance with their oaths. At the federal level, Congress has freedom to determine whether a statutory newsman's privilege is necessary and desirable and to fashion standards and rules as narrow or broad as deemed necessary to deal with the evil discerned and, equally important, to refashion those rules as experience from time to time may dictate. There is also merit in leaving state legislatures free, within First Amendment limits, to fashion their own standards in light of the conditions and problems with respect to the relations between law enforcement officials and press in their own areas. It goes without saying, of course, that we are powerless to bar state courts from responding in their own way and construing their own constitutions so as to recognize a newsman's privilege, either qualified or absolute. In addition, there is much force in the pragmatic view that the press has at its disposal powerful mechanisms of communication, and is far from helpless to protect itself from harassment or substantial harm. Furthermore, if what the newsmen urged in these cases is true -- that law enforcement cannot hope to gain, and may suffer from subpoenaing newsmen before grand juries -- prosecutors will be loath to risk so much for so little. Thus, at the federal level, the Attorney General has already fashioned a set of rules for federal officials in connection Page 408 U. S. 707 with subpoenaing members of the press to testify before grand juries or at criminal trials. [ Footnote 41 ] These rules are a major step in the direction the reporters herein desire to move. They may prove wholly sufficient to resolve the bulk of disagreements and controversies between press and federal officials. Finally, as we have earlier indicated, news gathering is not without its First Amendment protections, and grand jury investigations, if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment. [ Footnote 42 ] Official harassment of the press undertaken not for purposes of law enforcement, but to disrupt a reporter's relationship Page 408 U. S. 708 with his news sources would have no justification. Grand juries are subject to judicial control and subpoenas to motions to quash. We do not expect courts will forget that grand juries must operate within the limits of the First Amendment as well as the Fifth. III We turn, therefore, to the disposition of the cases before us. From what we have said, it necessarily follows that the decision in United States v. Caldwell, No. 70-57, must be reversed. If there is no First Amendment privilege to refuse to answer the relevant and material questions asked during a good faith grand jury investigation, then it is a fortiori true that there is no privilege to refuse to appear before such a grand jury until the Government demonstrates some "compelling need" for a newsman's testimony. Other issues were urged upon us, but since they were not passed upon by the Court of Appeals, we decline to address them in the first instance. The decisions in No. 70-85, Branzburg v. Hayes and Branzburg v. Meigs, must be affirmed. Here, petitioner refused to answer question that directly related to criminal conduct that he had observed and written about. The Kentucky Court of Appeals noted that marihuana is defined as a narcotic drug by statute, Ky.Rev.Stat. § 218.010(14) (1962), and that unlicensed possession or compounding of it is a felony punishable by both fine and imprisonment. Ky.Rev.Stat. § 218.210 (1962). It held that petitioner "saw the commission of the statutory felonies of unlawful possession of marijuana and the unlawful conversion of it into hashish," in Branzburg v. Pound, 461 S.W.2d at 346. Petitioner may be presumed to have observed similar violations of the state narcotics laws during the research he did for the story that forms the basis of the subpoena in Branzburg v. Meigs. In both cases, if what petitioner wrote was true, Page 408 U. S. 709 he had direct information to provide the grand jury concerning the commission of serious crimes. The only question presented at the present time in In re Pappas, No. 70-94, is whether petitioner Pappas must appear before the grand jury to testify pursuant to subpoena. The Massachusetts Supreme Judicial Court characterized the record in this case as "meager," and it is not clear what petitioner will be asked by the grand jury. It is not even clear that he will be asked to divulge information received in confidence. We affirm the decision of the Massachusetts Supreme Judicial Court and hold that petitioner must appear before the grand jury to answer the questions put to him, subject, of course, to the supervision of the presiding judge as to "the propriety, purposes, and scope of the grand jury inquiry and the pertinence of the probable testimony." 358 Mass. at 614, 266 N.E.2d at 303-304. So ordered. [ Footnote 1 ] he article contained the following paragraph: "'I don't know why I'm letting you do this story,' [one informant] said quietly. 'To make the narcs (narcotics detectives) mad, I guess. That's the main reason.' However, Larry and his partner asked for and received a promise that their names would be changed." App. 3-4. [ Footnote 2 ] The Foreman of the grand jury reported that petitioner Branzburg had refused to answer the following two questions: "#1. On November 12, or 13, 1969, who was the person or persons you observed in possession of Marijuana, about which you wrote an article in the Courier-Journal on November 15, 1969?" "#2. On November 12, or 13, 1969, who was the person or persons you observed compounding Marijuana, producing same to a compound known as Hashish?" App. 6. [ Footnote 3 ] Judge J. Miles Pound. The respondent in this case, Hon. John P. Hayes, is the successor of Judge Pound. [ Footnote 4 ] Ky.Rev.Stat. § 421.100 provides: "No person shall be compelled to disclose in any legal proceeding or trial before any court, or before any grand or petit jury, or before the presiding officer of any tribunal, or his agent or agents, or before the General Assembly, or any committee thereof, or before any city or county legislative body, or any committee thereof, or elsewhere, the source of any information procured or obtained by him, and published in a newspaper or by a radio or television broadcasting station by which he is engaged or employed, or with which he is connected." [ Footnote 5 ] Petitioner's Motion to Quash argued: "If Mr. Branzburg were required to disclose these confidences to the Grand Jury, or any other person, he would thereby destroy the relationship of trust which he presently enjoys with those in the drug culture. They would refuse to speak to him; they would become even more reluctant than they are now to speak to any newsman; and the news media would thereby be vitally hampered in their ability to cover that views and activities of those involved in the drug culture." "The inevitable effect of the subpoena issued to Mr. Branzburg, if it not be quashed by this Court, will be to suppress vital First Amendment freedoms of Mr. Branzburg, of the Courier Journal, of the news media, and of those involved in the drug culture by driving a wedge of distrust and silence between the news media and the drug culture. This Court should not sanction a use of its process entailing so drastic an incursion upon First Amendment freedoms in the absence of compelling Commonwealth interest in requiring Mr. Branzburg's appearance before the Grand Jury. It is insufficient merely to protect Mr. Branzburg's right to silence after he appears before the Grand Jury. This Court should totally excuse Mr. Branzburg from responding to the subpoena and even entering the Grand Jury room. Once Mr. Branzburg is required to go behind the closed doors of the Grand Jury room, his effectiveness as a reporter in these areas is totally destroyed. The secrecy that surrounds Grand Jury testimony necessarily introduces uncertainties in the minds of those who fear a betrayal of their confidences." App. 43-44. [ Footnote 6 ] After the Kentucky Court of Appeals' decision in Branzburg v. Meigs was announced, petitioner filed a rehearing motion in Branzburg v. Pound suggesting that the court had not passed upon his First Amendment argument and calling to the court's attention the recent Ninth Circuit decision in Caldwell v. United States, 434 F.2d 1081 (1970). On Jan. 22, 1971, the court denied petitioner's motion and filed an amended opinion in the case, adding a footnote, 461 S.W.2d 345 , 346 n. 1, to indicate that petitioner had abandoned his First Amendment argument and elected to rely wholly on Ky.Rev.Stat. § 421.100 when he filed a Supplemental Memorandum before oral argument. In his Petition for Prohibition and Mandamus, petitioner had clearly relied on the First Amendment, and he had filed his Supplemental Memorandum in response to the State's Memorandum in Opposition to the granting of the writs. As its title indicates, this Memorandum was complementary to petitioner's earlier Petition, and it dealt primarily with the State's construction of the phrase "source of any information" in Ky.Rev.Stat. § 421.100. The passage that the Kentucky Court of Appeals cited to indicate abandonment of petitioner's First Amendment claim is as follows: "Thus, the controversy continues as to whether a newsman's source of information should be privileged. However, that question is not before the Court in this case. The Legislature of Kentucky has settled the issue, having decided that a newsman's source of information is to be privileged. Because of this, there is no point in citing Professor Wigmore and other authorities who speak against the grant of such a privilege. The question has been many times debated, and the Legislature has spoken. The only question before the Court is the construction of the term 'source of information' as it was intended by the Legislature." Though the passage itself is somewhat unclear, the surrounding discussion indicates that petitioner was asserting here that the question of whether a common law privilege should be recognized was irrelevant, since the legislature had already enacted a statute. In his earlier discussion, petitioner had analyzed certain cases in which the First Amendment argument was made, but indicated that it was not necessary to reach this question if the statutory phrase "source of any information" were interpreted expansively. We do not interpret this discussion as indicating that petitioner was abandoning his First Amendment claim if the Kentucky Court of Appeals did not agree with his statutory interpretation argument, and we hold that the constitutional question in Branzburg v. Pound was properly preserved for review. [ Footnote 7 ] Petitioner's news films of this event were made available to the Bristol County District Attorney. App. 4. [ Footnote 8 ] The case was reported by the superior court directly to the Supreme Judicial Court for an interlocutory ruling under Mass.Gen.Laws, c. 278, § 30A and Mass.Gen.Laws, c. 231, § 111 (1959). The Supreme Judicial Court's decision appears at 358 Mass. 604, 266 N.E.2d 297 (1971). [ Footnote 9 ] "We do not have before us the text of any specific questions which Pappas has refused to answer before the grand jury, or any petition to hold him for contempt for his refusal. We have only general statements concerning (a) the inquiries of the grand jury, and (b) the materiality of the testimony sought from Pappas. The record does not show the expected nature of his testimony or what likelihood there is of being able to obtain that testimony from persons other than news gatherers." 358 Mass. at 606-607, 266 N.E.2d at 299 (footnote omitted). [ Footnote 10 ] The court expressly declined to consider, however, appearances of newsmen before legislative or administrative bodies. Id. at 612 n. 10, 266 N.E.2d at 303 n. 10. [ Footnote 11 ] The court noted that "a presiding judge may consider in his discretion" the argument that the use of newsmen as witnesses is likely to result in unnecessary or burdensome use of their work product, id. at 614 n. 13, 266 N.E.2d at 304 n. 13, and cautioned that: "We do not suggest that a general investigation of mere political or group association of persons, without substantial relation to criminal events, may not be viewed by a judge in a somewhat different manner from an investigation of particular criminal events concerning which a newsman may have knowledge." Id. at 614 n. 14, 266 N.E.2d at 304 n. 14. [ Footnote 12 ] The subpoena ordered production of "[n]otes and tape recordings of interviews covering the period from January 1, 1969, to date, reflecting statements made for publication by officers and spokesmen for the Black Panther Party concerning the aims and purposes of said organization and the activities of said organization, its officers, staff, personnel, and members, including specifically but not limited to interviews given by David Hilliard and Raymond 'Masai' Hewitt." App. 20. [ Footnote 13 ] The New York Times was granted standing to intervene as a party on the motion to quash the subpoenas. Application of Caldwell, 311 F. Supp. 358 , 359 (ND Cal, 1970). It did not file an appeal from the District Court's contempt citation, and it did not seek certiorari here. It has filed an amicus curiae brief, however. [ Footnote 14 ] Respondent appealed from the District Court's April 6 denial of his motion to quash on April 17, 1970, and the Government moved to dismiss that appeal on the ground that the order was interlocutory. On May 12, 1970, the Ninth Circuit dismissed the appeal without opinion. [ Footnote 15 ] The Government did not file a cross-appeal, and did not challenge the validity of the District Court protective order in the Court of Appeals. [ Footnote 16 ] The petition presented a single question: "Whether a newspaper reporter who has published articles about an organization can, under the First Amendment, properly refuse to appear before a grand jury investigating possible crimes by members of that organization who have been quoted in the published articles." [ Footnote 17 ] Curtis Publishing Co. v. Butts, 388 U. S. 130 , 388 U. S. 145 (1967) (opinion of Harlan, J.); New York Times Co. v. Sullivan, 376 U. S. 254 , 376 U. S. 270 (1964); Talley v. California, 362 U. S. 60 , 362 U. S. 64 -65 (1960); Bridges v. California, 314 U. S. 252 , 314 U. S. 263 (1941); Grosjean v. American Press Co., 297 U. S. 233 , 297 U. S. 250 (1936); Near v. Minnesota, 283 U. S. 697 , 283 U. S. 722 (1931). [ Footnote 18 ] NAACP v. Button, 371 U. S. 415 , 371 U. S. 439 (1963); Thomas v. Collins, 323 U. S. 516 , 323 U. S. 530 (1945); DeGregory v. Attorney General of New Hampshire, 383 U. S. 825 , 383 U. S. 829 (1966); Bates v. Little Rock, 361 U. S. 516 , 361 U. S. 524 (1960); Schneider v. State, 308 U. S. 147 , 308 U. S. 161 (1939); NAACP v. Alabama, 357 U. S. 449 , 357 U. S. 464 (1958). [ Footnote 19 ] Freedman v. Maryland, 380 U. S. 51 , 380 U. S. 56 (1965); NAACP v. Alabama, 377 U. S. 288 , 377 U. S. 307 (1964); Martin v. City of Struthers, 319 U. S. 141 , 319 U. S. 147 (1943); Elfbrandt v. Russell, 384 U. S. 11 , 384 U. S. 18 (1966). [ Footnote 20 ] There has been a great deal of writing in recent years on the existence of a newsman's constitutional right of nondisclosure of confidential information. See, e.g., Beaver, The Newsman's Code, The Claim of Privilege and Everyman's Right to Evidence, 47 Ore.L.Rev. 243 (1968); Guest & Stanzler, The Constitutional Argument for Newsmen Concealing Their Sources, 64 Nw.U.L.Rev. 18 (1969); Note, Reporters and Their Sources: The Constitutional Right to a Confidential Relationship, 80 Yale L.J. 317 (1970); Comment, The Newsman's Privilege: Government Investigations, Criminal Prosecutions and Private Litigation, 58 Calif.L.Rev. 1198 (1970); Note, The Right of the Press to Gather Information, 71 Col.L.Rev. 838 (1971); Nelson, The Newsmen's Privilege Against Disclosure of Confidential Sources and Information, 24 Vand.L.Rev. 667 (1971). [ Footnote 21 ] "In general, then, the mere fact that a communication was made in express confidence, or in the implied confidence of a confidential relation, does not create a privilege." ". . . No pledge of privacy nor oath of secrecy can avail against demand for the truth in a court of justice." 8 J. Wigmore, Evidence § 2286 (McNaughton rev.1961). This was not always the rule at common law, however . In 17th century England, the obligations of honor among gentlemen were occasionally recognized as privileging from compulsory disclosure information obtained in exchange for a promise of confidence. See Bulstrod v. Letchmere, 2 Freem. 6, 22 Eng.Rep. 1019 (1676); Lord Grey's Trial, 9 How.St.Tr. 127 (1682). [ Footnote 22 ] "There are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow. For example, the prohibition of unauthorized entry into the White House diminishes the citizen's opportunities to gather information he might find relevant to his opinion of the way the country is being run, but that does not make entry into the White House a First Amendment right." 381 U.S. at 381 U. S. 117 . [ Footnote 23 ] "Historically, [the grand jury] has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused . . . to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will." Wood v. Georgia, 370 U. S. 375 , 370 U. S. 390 (1962) (footnote omitted). [ Footnote 24 ] It has been held that "infamous" punishments include confinement at hard labor, United States v. Moreland, 258 U. S. 433 (1922); incarceration in a penitentiary, Macking v. United States, 117 U. S. 348 (1886); and imprisonment for more than a year, Barkman v. Sanford, 162 F.2d 592 (CA5), cert. denied, 332 U.S. 816 (1947). Fed.Rule Crim.Proc. 7(a) has codified these holdings: "An offense which may be punished by death shall be prosecuted by indictment. An offense which may be punished by imprisonment for a term exceeding one year or at hard labor shall be prosecuted by indictment or, if indictment is waived, it may be prosecuted by information. Any other offense may be prosecuted by indictment or by information." [ Footnote 25 ] Although indictment by grand jury is not part of the due process of law guaranteed to state criminal defendants by the Fourteenth Amendment, Hurtado v. California, 110 U. S. 516 (1884), a recent study reveals that 32 States require that certain kinds of criminal prosecutions be initiated by indictment. Spain, The Grand Jury, Past and Present: A Survey, 2 Am.Crim. L.Q. 119, 126-142 (1964). In the 18 States in which the prosecutor may proceed by information, the grand jury is retained as an alternative means of invoking the criminal process and as an investigative tool. Ibid. [ Footnote 26 ] Jeremy Bentham vividly illustrated this maxim: "Are men of the first rank and consideration -- are men high in office -- men whose time is not less valuable to the public than to themselves -- are such men to be forced to quit their business, their functions, and what is more than all, their pleasure, at the beck of every idle or malicious adversary, to dance attendance upon every petty cause? Yes, as far as it is necessary, they and everybody. Were the Prince of Wales, the Archbishop of Canterbury, and the Lord High Chancellor, to be passing by in the same coach, while a chimney-sweeper and a barrow-woman were in dispute about a halfpennyworth of apples, and the chimney-sweeper or the barrowwoman were to think proper to call upon them for their evidence, could they refuse it? No, most certainly." 4 The Works of Jeremy Bentham 320-321 (J. Bowring ed. 1843). In United States v. Burr, 25 F. Cas. 30, 34 (No. 14,692d) (CC Va. 1807), Chief Justice Marshall, sitting on Circuit, opined that, in proper circumstances, a subpoena could be issued to the President of the United States. [ Footnote 27 ] Thus, far, 17 States have provided some type of statutory protection to a newsman's confidential sources: Ala.Code, Tit. 7, § 370 (1960); Alaska Stat. §09.25.150 (Supp. 1971); Ariz.Rev.Stat.Ann. § 12-2237 (Supp. 1971-1972); Ark.Stat.Ann. § 43-917 (1964); Cal. Evid.Code § 1070 (Supp. 1972); Ind.Ann.Stat. § 2-1733 (1968); Ky.Rev.Stat. § 421.100 (1962); La.Rev.Stat.Ann. §§ 45:1451-45:1454 (Supp. 1972); Md.Ann.Code, Art. 35, § 2 (1971); Mich.Comp.Laws § 767.5a (Supp. 1956), Mich.Stat.Ann. § 28.945(1) (1954); Mont.Rev.Codes Ann. § 93-601-2 (1964); Nev.Rev.Stat. § 49.275 (1971); N.J.Rev.Stat. §§ 2A:84A-21, 2A:84A-29 (Supp. 1972-1973); N.M.Stat.Ann. § 20-1-12.1 (1970); N.Y. Civ. Rights Law § 79-h (Supp 1971-1972); Ohio Rev.Code Ann. § 2739.12 (1954); Pa.Stat.Ann., Tit. 28, § 330 (Supp. 1972-1973). [ Footnote 28 ] Such legislation has been introduced, however. See, e.g., S. 1311, 92d Cong., 1st Sess. (1971); S. 3552, 91st Cong., 2d Sess. (1970); H.R. 16328, H R. 16704, 91st Cong., 2d Sess. (1970); S. 1851, 88th Cong., 1st Sess. (1963); H.R. 8519, H.R. 7787, 88th Cong., 1st Sess. (1963); S. 965, 86th Cong., 1st Sess. (1959); H.R. 355, 86th Cong., 1st Sess. (1959). For a general analysis of proposed congressional legislation, see Staff of Senate Committee on the Judiciary, 89th Cong., 2d Sess., The Newsman's Privilege (Comm.Print 1966). [ Footnote 29 ] The creation of new testimonial privileges has been met with disfavor by commentators, since such privileges obstruct the search for truth. Wigmore condemns such privileges as "so many derogations from a positive general rule [that everyone is obligated to testify when properly summoned]" and as "obstacle[s] to the administration of justice." 8 J. Wigmore, Evidence § 2192 (McNaughton rev.1961). His criticism that " all privileges of exemption from this duty are exceptional, and are therefore to be discountenanced," id. at § 2192, p. 73 (emphasis in original) has been frequently echoed. Morgan, Foreword, Model Code of Evidence 22-30 (1942); 2 Z. Chafee, Government and Mass Communications 496-497 (1947); Report of ABA Committee on Improvements in the Law of Evidence, 63 A.B.A. Reports 595 (1938); C. McCormick, Evidence 159 (2d ed.1972); Chafee, Privileged Communications: Is Justice Served or Obstructed by Closing the Doctor's Mouth on the Witness Stand?, 52 Yale L.J. 607 (1943); Ladd, Privileges, 1969 Law & the Social Order 555, 556; 58 Am.Jur., Witnesses § 546 (1948); 97 C.J.S., Witnesses § 259 (1957); McMann v. Securities and Exchange Commission, 87 F.2d 377, 378 (CA2 1937) (L. Hand, J.). Neither the ALI's Model Code of Evidence (1942), the Uniform Rules of Evidence of the National Conference of Commissioners on Uniform State Laws (1953), nor the Proposed Rules of Evidence for the United States Courts and Magistrates (rev. ed.1971) has included a newsman's privilege. [ Footnote 30 ] The holding in this case involved a construction of the Contempt of Court Act of 1831, 4 Stat. 487, which permitted summary trial of contempts "so near [to the court] as to obstruct the administration of justice." The Court held that the Act required only that the conduct have a "direct tendency to prevent and obstruct the discharge of judicial duty." 247 U.S. at 247 U. S. 419 . This view was overruled and the Act given a much narrower reading in Nye v. United States, 313 U. S. 33 , 313 U. S. 47 -52 (1941). See Bloom v. Illinois, 391 U. S. 194 , 391 U. S. 205 -206 (1968). [ Footnote 31 ] Respondent Caldwell attached a number of affidavits from prominent newsmen to his initial motion to quash, which detail the experiences of such journalists after they have been subpoenaed. Appendix to No. 757, pp. 221. [ Footnote 32 ] Cf., e.g., the results of a study conducted by Guest & Stanzler, which appears as an appendix to their article, supra, n 20. A number of editors of daily newspapers of varying circulation were asked the question, "Excluding one- or two-sentence gossip items, on the average, how many stories based on information received in confidence are published in your paper each year? Very rough estimate." Answers varied significantly, e.g., "Virtually innumerable," Tucson Daily Citizen (41,969 daily circ.), "Too many to remember," Los Angeles Herald-Examiner (718,221 daily circ.), "Occasionally," Denver Post (252,084 daily circ.), "Rarely," Cleveland Plain Dealer (370,499 daily circ.), "Very rare, some politics," Oregon Journal (146,403 daily circ.). This study did not purport to measure the extent of deterrence of informants caused by subpoenas to the press. [ Footnote 33 ] In his Press Subpoenas: An Empirical and Legal Analysis, Study Report of the Reporters' Committee on Freedom of the Press 12, Prof. Vince Blasi discusses these methodological problems. Prof. Blasi's survey found that slightly more than half of the 975 reporters questioned said that they relied on regular confidential sources for at least 10% of their stories. Id. at 21. Of this group of reporters, only 8% were able to say with some certainty that their professional functioning had been adversely affected by the threat of subpoena; another 11% were not certain whether or not they had been adversely affected. Id. at 53. [ Footnote 34 ] See Statute of Westminster First, 3 Edw. 1, c. 9, p. 43 (1275); Statute of Westminster Second, 13 Edw. 1, c. 6, pp. 114-115 (1285); Sheriffs Act of 1887, 50 & 51 Vict., c. 55, § 8(1); 4 W. Blackstone, Commentaries *293-295; 2 W. Holdsworth, History of English Law 80-81, 101-102 (3d ed.1927); 4 id. at 521-522. [ Footnote 35 ] See, e.g., Scope's Case, referred to in 3 Coke's Institute 36; Rex v. Cowper, 5 Mod. 206, 87 Eng.Rep. 611 (1696); Proceedings under a Special Commission for the County of York, 31 How.St.Tr. 965, 969 (1813); Sykes v. Director of Public Prosecutions, [1961] 3 W.L.R. 371. But see Glazebrook, Misprision of Felony -- Shadow or Phantom?, 8 Am.J.Legal Hist. 189 (1964). See also Act 5 & 6 Edw. 6, c. 11 (1552). [ Footnote 36 ] This statute has been construed, however, to require both knowledge of a crime and some affirmative act of concealment or participation. Bratton v. United States, 73 F.2d 795 (CA10 1934); United States v. Farrar, 38 F.2d 515 , 516 (Mass.), aff'd on other grounds, 281 U. S. 624 (1930); United States v. Norman, 391 F.2d 212 (CA6), cert. denied, 390 U.S. 1014 (1968); Lancey v. United States, 356 F.2d 407 (CA9), cert. denied, 385 U.S. 922 (1966). Cf. 20 U. S. Brooks, 7 Wheat. 556, 20 U. S. 575 (1822) (Marshall, C.J.). [ Footnote 37 ] Though the constitutional argument for a newsman's privilege has been put forward very recently, newsmen have contended for a number of years that such a privilege was desirable. See, e.g., Siebert & Ryniker, Press Winning Fight to Guard Sources, Editor & Publisher, Sept. 1, 1934, pp. 9, 36-37; G. Bird & F. Merwin, The Press and Society 592 (1971). The first newsman's privilege statute was enacted by Maryland in 1896, and currently is codified as Md.Ann.Code, Art. 35, § 2 (1971). [ Footnote 38 ] A list of recent subpoenas to the news media is contained in the appendix to the brief of amicus New York Times in No. 757. [ Footnote 39 ] "Under the case-by-case method of developing rules, it will be difficult for potential informants and reporters to predict whether testimony will be compelled, since the decision will turn on the judge's ad hoc assessment in different fact settings of 'importance' or 'relevance' in relation to the free press interest. A 'general' deterrent effect is likely to result. This type of effect stems from the vagueness of the tests and from the uncertainty attending their application. For example, if a reporter's information goes to the 'heart of the matter' in Situation X, another reporter and informant who subsequently are in Situation Y will not know if 'heart of the matter rule X' will be extended to them, and deterrence will thereby result. Leaving substantial discretion with judges to delineate those 'situations' in which rules of 'relevance' or 'importance' apply would therefore seem to undermine significantly the effectiveness of a reporter-informer privilege." Note, Reporters and Their Sources: The Constitutional Right to a Confidential Relationship, 80 Yale L.J. 317, 341 (1970). In re Grand Jury Witnesses, 322 F. Supp. 573 (ND Cal.1970), illustrates the impact of this ad hoc approach. Here, the grand jury was, as in Caldwell, investigating the Black Panther Party, and was "inquiring into matters which involve possible violations of Congressional acts passed to protect the person of the President (18 U.S.C. § 1751), to free him from threats (18 U.S.C. § 871), to protect our armed forces from unlawful interference (18 U.S.C. § 2387), conspiracy to commit the foregoing offenses (18 U.S.C. § 371), and related statutes prohibiting acts directed against the security of the government." Id. at 577. The two witnesses, reporters for a Black Panther Party newspaper, were subpoenaed and given Fifth Amendment immunity against criminal prosecution, and they claimed a First Amendment journalist's privilege. The District Court entered a protective order, allowing them to refuse to divulge confidential information until the Government demonstrated "a compelling and overriding national interest in requiring the testimony of [the witnesses] which cannot be served by any alternative means." Id. at 574. The Government claimed that it had information that the witnesses had associated with persons who had conspired to perform some of the criminal acts that the grand jury was investigating. The court held the Government had met its burden and ordered the witnesses to testify: "The whole point of the investigation is to identify persons known to the [witnesses] who may have engaged in activities violative of the above indicated statutes, and also to ascertain the details of their alleged unlawful activities. All questions directed to such objectives of the investigation are unquestionably relevant, and any other evaluation thereof by the Court without knowledge of the facts before the Grand Jury would clearly constitute 'undue interference of the Court.'" Id. at 577. Another illustration is provided by State v. Knops, 49 Wis.2d 647, 183 N.W.2d 93 (1971), in which a grand jury was investigating the August 24, 1970, bombing of Sterling Hall on the University of Wisconsin Madison campus. On August 26, 1970, an "underground" newspaper, the Madison Kaleidoscope, printed a front-page story entitled "The Bombers Tell Why and What Next -- Exclusive to Kaleidoscope." An editor of the Kaleidoscope was subpoenaed, appeared, asserted his Fifth Amendment right against self-incrimination, was given immunity, and then pleaded that he had a First Amendment privilege against disclosing his confidential informants. The Wisconsin Supreme Court rejected his claim and upheld his contempt sentence: "[Appellant] faces five very narrow and specific questions, all of which are founded on information which he himself has already volunteered. The purpose of these questions is very clear. The need for answers to them is 'overriding,' to say the least. The need for these answers is nothing short of the public's need (and right) to protect itself from physical attack by apprehending the perpetrators of such attacks." 49 Wis.2d at 658, 183 N.W.2d at 98-99. [ Footnote 40 ] Such a privilege might be claimed by group that set up newspapers in order to engage in criminal activity and to therefore be insulated from grand jury inquiry, regardless of Fifth Amendment grants of immunity. It might appear that such "ham" newspaper would be easily distinguishable, yet the First Amendment ordinarily prohibits courts from inquiring into the content of expression, except in cases of obscenity or libel, and protects speech and publication regardless of their motivation, orthodoxy, truthfulness, timeliness, or taste. New York Times Co. v. Sullivan, 376 U.S. at 376 U. S. 269 -270; Kingsley Pictures Corp. v. Regents, 360 U. S. 684 , 360 U. S. 689 (1959); Winters v. New York, 333 U. S. 507 , 333 U. S. 510 (1948); Thomas v. Collins, 323 U.S. at 323 U. S. 537 . By affording a privilege to some organs of communication but not to others, court would inevitably be discriminating on the basis of content. [ Footnote 41 ] The Guidelines for Subpoenas to the News Media were first announced in a speech by the Attorney General on August 10, 1970, and then were expressed in Department of Justice Memo. No. 692 (Sept. 2, 1970), which was sent to all United States Attorneys by the Assistant Attorney General in charge of the Criminal Division. The Guidelines state that: "The Department of Justice recognizes that compulsory process in some circumstances may have a limiting effect on the exercise of First Amendment rights. In determining whether to request issuance of a subpoena to the press, the approach in every case must be to weigh that limiting effect against the public interest to be served in the fair administration of justice," and that: "The Department of Justice does not consider the press 'an investigative arm of the government.' Therefore, all reasonable attempts should be made to obtain information from non-press sources before there is any consideration of subpoenaing the press." The Guidelines provide for negotiations with the press, and require the express authorization of the Attorney General for such subpoenas. The principles to be applied in authorizing such subpoenas are stated to be whether there is "sufficient reason to believe that the information sought [from the journalist] is essential to a successful investigation" and whether the Government has unsuccessfully attempted to obtain the information from alternative non-press sources. The Guidelines provide, however, that, in "emergencies and other unusual situations," subpoenas may be issued which do not exactly conform to the Guidelines. [ Footnote 42 ] Cf. Younger v. Harris, 401 U. S. 37 , 401 U. S. 49 , 401 U. S. 53 -54 (1971). MR. JUSTICE POWELL, concurring. I add this brief statement to emphasize what seems to me to be the limited nature of the Court's holding. The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources. Certainly, we do not hold, as suggested in MR. JUSTICE STEWART's dissenting opinion, that state and federal authorities are free to "annex" the news media as "an investigative arm of government." The solicitude repeatedly shown by this Court for First Amendment freedoms should be sufficient assurance against any such effort, even if one seriously believed that the media -- properly free and untrammeled in the fullest sense of these terms -- were not able to protect themselves. As indicated in the concluding portion of the opinion, the Court states that no harassment of newsmen will Page 408 U. S. 710 be tolerated. If a newsman believes that the grand jury investigation is not being conducted in good faith, he is not without remedy. Indeed, if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash, and an appropriate protective order may be entered. The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions. * In short, the courts will be available to newsmen under circumstances where legitimate First Amendment interests require protection. Page 408 U. S. 711 * It is to be remembered that Caldwell asserts a constitutional privilege not even to appear before the grand jury unless a court decides that the Government has made a showing that meets the three preconditions specified in the dissenting opinion of MR. JUSTICE STEWART. To be sure, this would require a "balancing" of interests by the court, but under circumstances and constraints significantly different from the balancing that will be appropriate under the court's decision. The newsman witness, like all other witnesses, will have to appear; he will not be in a position to litigate at the threshold the State's very authority to subpoena him. Moreover, absent the constitutional preconditions that Caldwell and that dissenting opinion would impose as heavy burdens of proof to be carried by the State, the court -- when called upon to protect a newsman from improper or prejudicial questioning -- would be free to balance the competing interests on their merits in the particular case. The new constitutional rule endorsed by that dissenting opinion would, as a practical matter, defeat such a fair balancing and the essential societal interest in the detection and prosecution of crime would be heavily subordinated. MR. JUSTICE DOUGLAS, dissenting in No. 757, United States v. Caldwell. Caldwell, a black, is a reporter for the New York Times and was assigned to San Francisco with the hope that he could report on the activities and attitudes of the Black Panther Party. Caldwell in time gained the complete confidence of its members, and wrote in-depth articles about them. He was subpoenaed to appear and testify before a federal grand jury and to bring with him notes and tapes covering interviews with its members. A hearing on a motion to quash was held. The District Court ruled that, while Caldwell had to appear before the grand jury, he did not have to reveal confidential communications unless the court was satisfied that there was a "compelling and overriding national interest." See 311 F. Supp. 358 , 362. Caldwell filed a notice of appeal and the Court of Appeals dismissed the appeal without opinion. Shortly thereafter, a new grand jury was impaneled and it issued a new subpoena for Caldwell to testify. On a motion to quash, the District Court issued an order substantially identical to its earlier one. Caldwell refused to appear, and was held in contempt. On appeal, the Court of Appeals vacated the judgment of contempt. It said that the revealing of confidential sources of information jeopardized a First Amendment freedom and that Caldwell did not have to appear before the grand jury absent a showing that there was a "compelling and overriding national interest" in pursuing such an interrogation. The District Court had found that Caldwell's knowledge of the activities of the Black Panthers "derived in substantial part" from information obtained "within the scope of a relationship of trust and confidence." Id. at 361. It also found that confidential relationships of this sort are commonly developed and maintained by Page 408 U. S. 712 professional journalists, and are indispensable to their work of gathering, analyzing, and publishing the news. The District Court further had found that compelled disclosure of information received by a journalist within the scope of such confidential relationships jeopardized those relationships, and thereby impaired the journalist's ability to gather, analyze, and publish the news. The District Court, finally, had found that, without a protective order delimiting the scope of interrogation of Earl Caldwell by the grand jury, his appearance and examination before the jury would severely impair and damage his confidential relationships with members of the Black Panther Party and other militants, and thereby severely impair and damage his ability to gather, analyze, and publish news concerning them; and that it would also damage and impair the abilities of all reporters to gather, analyze, and publish news concerning them. The Court of Appeals agreed with the findings of the District Court, but held that Caldwell did not have to appear at all before the grand jury absent a "compelling need" shown by the Government. 434 F.2d 1081. It is my view that there is no "compelling need" that can be shown which qualifies the reporter's immunity from appearing or testifying before a grand jury, unless the reporter himself is implicated in a crime. His immunity, in my view, is therefore quite complete, for, absent his involvement in a crime, the First Amendment protects him against an appearance before a grand jury, and, if he is involved in a crime, the Fifth Amendment stands as a barrier. Since, in my view, there is no area of inquiry not protected by a privilege, the reporter need not appear for the futile purpose of invoking one to each question. And since, in my view, a newsman has an absolute right not to appear before a grand jury, it follows for me that a journalist who voluntarily appears before that body may invoke his First Amendment privilege to specific questions. Page 408 U. S. 713 The basic issue is the extent to which the First Amendment (which is applicable to investigating committees, Watkins v. United States, 354 U. S. 178 ; NAACP v. Alabama, 357 U. S. 449 , 357 U. S. 463 ; Gibson v. Florida Legislative Investigation Committee, 372 U. S. 539 ; Baird v. State Bar of Arizona, 401 U. S. 1 , 401 U. S. 6 -7; In re Stolar, 401 U. S. 23 ) must yield to the Government's asserted need to know a reporter's unprinted information. The starting point for decision pretty well marks the range within which the end result lies. The New York Times, whose reporting functions are at issue here, takes the amazing position that First Amendment rights are to be balanced against other needs or conveniences of government. [ Footnote 2/1 ] My belief is that all of the "balancing" was done by those who wrote the Bill of Rights. By casting the First Amendment in absolute terms, they repudiated the timid, watered-down, emasculated versions of the First Amendment which both the Government and the New York Times advance in the case. My view is close to that of the late Alexander Meiklejohn: [ Footnote 2/2 ] "For the understanding of these principles, it is essential to keep clear the crucial difference between 'the rights' of the governed and 'the powers' of the governors. And at this point, the title 'Bill of Rights' is lamentably inaccurate as a designation Page 408 U. S. 714 of the first ten amendments. They are not a 'Bill of Rights,' but a 'Bill of Powers and Rights.' The Second through the Ninth Amendments limit the powers of the subordinate agencies in order that due regard shall be paid to the private 'rights of the governed.' The First and Tenth Amendments protect the governing 'powers' of the people from abridgment by the agencies which are established as their servants. In the field of our 'rights,' each one of us can claim 'due process of law.' In the field of our governing 'powers,' the notion of 'due process' is irrelevant." He also believed that "[s]elf-government can exist only insofar as the voters acquire the intelligence, integrity, sensitivity, and generous devotion to the general welfare that, in theory, casting a ballot is assumed to express,' [ Footnote 2/3 ]" and that "[p]ublic discussions of public issues, together with the spreading of information and opinion bearing on those issues, must have a freedom unabridged by our agents. Though they govern us, we, in a deeper sense, govern them. Over our governing, they have no power. Over their governing, we have sovereign power. [ Footnote 2/4 ]" Two principles which follow from this understanding of the First Amendment are at stake here. One is that the people, the ultimate governors, must have absolute freedom of, and therefore privacy of, their individual opinions and beliefs regardless of how suspect or strange they may appear to others. Ancillary to that principle is the conclusion that an individual must also have absolute privacy over whatever information he may generate in the course of testing his opinions and beliefs. In this regard, Caldwell's status as a reporter is less relevant than is his status as a student who affirmatively pursued empirical research to enlarge his own intellectual viewpoint. Page 408 U. S. 715 The second principle is that effective self-government cannot succeed unless the people are immersed in a steady, robust, unimpeded, and uncensored flow of opinion and reporting which are continuously subjected to critique, rebuttal, and reexamination. In this respect, Caldwell's status as a news gatherer and an integral part of that process becomes critical. I Government has many interests that compete with the First Amendment. Congressional investigations determine how existing laws actually operate or whether new laws are needed. While congressional committees have broad powers, they are subject to the restraints of the First Amendment. As we said in Watkins v. United States, 354 U.S. at 354 U. S. 197 : "Clearly, an investigation is subject to the command that the Congress shall make no law abridging freedom of speech or press or assembly. While it is true that there is no statute to be reviewed, and that an investigation is not a law, nevertheless an investigation is part of lawmaking. It is justified solely as an adjunct to the legislative process. The First Amendment may be invoked against infringement of the protected freedoms by law or by lawmaking." Hence, matters of belief, ideology, religious practices, social philosophy, and the like are beyond the pale and of no rightful concern of government, unless the belief or the speech, or other expression has been translated into action. West Virginia State Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 642 ; Baird v. State Bar of Arizona, 401 U.S. at 401 U. S. 6 -7; In re Stolar, 401 U. S. 23 . Also at stake here is Caldwell's privacy of association. We have held that "[i]nviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs." NAACP v. Page 408 U. S. 716 Alabama, 357 U.S. at 357 U. S. 462 ; NAACP v. Button, 371 U. S. 415 . As I said in Gibson v. Florida Legislative Investigation Committee, 372 U.S. at 372 U. S. 565 : "the associational rights protected by the First Amendment . . . cover the entire spectrum in political ideology as well as in art, in journalism, in teaching, and in religion. . . . [G]overnment is . . . precluded from probing the intimacies of spiritual and intellectual relationships in the myriad of such societies and groups that exist in this country, regardless of the legislative purpose sought to be served. . . . If that is not true, I see no barrier to investigation of newspapers, churches, political parties, clubs, societies, unions, and any other association for their political, economic, social, philosophical, or religious views." (Concurring opinion.) (Emphasis added.) The Court has not always been consistent in its protection of these First Amendment rights, and has sometimes allowed a government interest to override the absolutes of the First Amendment. For example, under the banner of the "clear and present danger" test, [ Footnote 2/5 ] and later under the influence of the "balancing" formula, [ Footnote 2/6 ] the Page 408 U. S. 717 Court has permitted men to be penalized not for any harmful conduct, but solely for holding unpopular beliefs. In recent years, we have said over and over again that, where First Amendment rights are concerned, any regulation "narrowly drawn," [ Footnote 2/7 ] must be "compelling," and not Page 408 U. S. 718 merely "rational" as is the case where other activities are concerned. [ Footnote 2/8 ] But the "compelling" interest in regulation neither includes paring down or diluting the right nor Page 408 U. S. 719 embraces penalizing one solely for his intellectual viewpoint; it concerns the State's interest, for example, in regulating the time and place or perhaps manner of exercising First Amendment rights. Thus, one has an undoubted right to read and proclaim the First Amendment in the classroom or in a park. But he would not have the right to blare it forth from a sound truck rolling through the village or city at 2 a.m. The distinction drawn in Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 303 -304, should still stand: "[T]he Amendment embraces two concepts, -- freedom to believe and freedom to act. The first is absolute, but, in the nature of things, the second cannot be. [ Footnote 2/9 ]" Under these precedents, there is no doubt that Caldwell could not be brought before the grand jury for the sole purpose of exposing his political beliefs. Yet today the Court effectively permits that result under the guise of allowing an attempt to elicit from him "factual information." To be sure, the inquiry will be couched only in terms of extracting Caldwell's recollection of what was said to him during the interviews, but the fact remains that his questions to the Panthers, and therefore the respective answers, were guided by Caldwell's own preconceptions and views about the Black Panthers. His Page 408 U. S. 720 entire experience was shaped by his intellectual viewpoint. Unlike the random bystander, those who affirmatively set out to test a hypothesis, as here, have no tidy means of segregating subjective opinion from objective facts. Sooner or later, any test which provides less than blanket protection to beliefs and associations will be twisted and relaxed so as to provide virtually no protection at all. As Justice Holmes noted in Abrams v. United States, 250 U. S. 616 , 250 U. S. 624 , such was the fate of the "clear and present danger" test which he had coined in Schenck v. United States, 249 U. S. 47 . Eventually, that formula was 80 watered down that the danger had to be neither clear nor present, but merely "not improbable." Dennis v. United States, 341 U. S. 494 , 341 U. S. 510 . See my concurring opinion in Brandenburg v. Ohio, 395 U. S. 444 , 395 U. S. 450 . A compelling interest test may prove as pliable as did the "clear and present danger" test. Perceptions of the worth of state objectives will change with the composition of the Court and with the intensity of the politics of the times. For example, in Uphaus v. Wyman, 360 U. S. 72 , sustaining an attempt to compel a witness to divulge the names of participants in a summer political camp, JUSTICE BRENNAN dissented on the ground that "it is patent that there is really no subordinating interest . . . demonstrated on the part of the State." Id. at 360 U. S. 106 . The majority, however, found that "the governmental interest in self-preservation is sufficiently compelling to subordinate the interest in associational privacy. . . ." Id. at 360 U. S. 81 . That is to enter the world of "make believe," for New Hampshire, the State involved in Uphaus, was never in fear of being overthrown. II Today's decision will impede the wide-open and robust dissemination of ideas and counterthought which Page 408 U. S. 721 a free press both fosters and protects and which is essential to the success of intelligent self-government. Forcing a reporter before a grand jury will have two retarding effects upon the ear and the pen of the press. Fear of exposure will cause dissidents to communicate less openly to trusted reporters. And fear of accountability will cause editors and critics to write with more restrained pens. I see no way of making mandatory the disclosure of a reporter's confidential source of the information on which he bases his news story. The press has a preferred position in our constitutional scheme not to enable it to make money, not to set newsmen apart as a favored class, but to bring fulfillment to the public's right to know. The right to know is crucial to the governing powers of the people, to paraphrase Alexander Meiklejohn. Knowledge is essential to informed decisions. As Mr. Justice Black said in New York Times Co. v. United States, 403 U. S. 713 , 403 U. S. 717 (concurring opinion), "The press was to serve the governed, not the governors. . . . The press was protected so that it could bare the secrets of government and inform the people." Government has an interest in law and order, and history shows that the trend of rulers -- the bureaucracy and the police -- is to suppress the radical and his ideas and to arrest him, rather than the hostile audience. See Feiner v. New York, 340 U. S. 315 . Yet, as held in Terminiello v. Chicago, 337 U. S. 1 , 337 U. S. 4 , one "function of free speech under our system of government is to invite dispute." We went on to say, "It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions Page 408 U. S. 722 and have profound unsettling effects as it presses for acceptance of an idea." The people who govern are often far removed from the cabals that threaten the regime; the people are often remote from the sources of truth even though they live in the city where the forces that would undermine society operate. The function of the press is to explore and investigate events, inform the people what is going on, and to expose the harmful as well as the good influences at work. There is no higher function performed under our constitutional regime. Its performance means that the press is often engaged in projects that bring anxiety or even fear to the bureaucracies, departments, or officials of government. The whole weight of government is therefore often brought to bear against a paper or a reporter. A reporter is no better than his source of information. Unless he has a privilege to withhold the identity of his source, he will be the victim of governmental intrigue or aggression. If he can be summoned to testify in secret before a grand jury, his sources will dry up and the attempted exposure, the effort to enlighten the public, will be ended. If what the Court sanctions today becomes settled law, then the reporter's main function in American society will be to pass on to the public the press releases which the various departments of government issue. It is no answer to reply that the risk that a newsman will divulge one's secrets to the grand jury is no greater than the threat that he will, in any event, inform to the police. Even the most trustworthy reporter may not be able to withstand relentless badgering before a grand jury. [ Footnote 2/10 ] Page 408 U. S. 723 The record in this case is replete with weighty affidavits from responsible newsmen, telling how important is the sanctity of their sources of information. [ Footnote 2/11 ] When we deny newsmen that protection, we deprive the people of the information needed to run the affairs of the Nation in an intelligent way. Madison said: "A popular Government, without popular information or the means of acquiring it, is but a Prologue to a Farce or a Tragedy, or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own Governors, must arm themselves with the power which knowledge gives." (To W. T. Barry, Aug. 4, 1822.) 9 Writings of James Madison 103 (G. Hunt ed.1910). Page 408 U. S. 724 Today's decision is more than a clog upon news gathering. It is a signal to publishers and editors that they should exercise caution in how they use whatever information they can obtain. Without immunity, they may be summoned to account for their criticism. Entrenched officers have been quick to crash their powers down upon unfriendly commentators. [ Footnote 2/12 ] E.g., New York Times Co. v. Sullivan, 376 U. S. 254 ; Garrison v. Louisiana, 379 U. S. 64 ; Pickering v. Board of Education, 391 U. S. 563 ; Gravel v. United States, ante, p. 408 U. S. 606 . The intrusion of government into this domain is symptomatic of the disease of this society. As the years pass, the power of government becomes more and more pervasive. It is a power to suffocate both people and causes. Those in power, whatever their politics, want only to perpetuate Page 408 U. S. 725 it. Now that the fences of the law and the tradition that has protected the press are broken down, the people are the victims. The First Amendment, as I read it, was designed precisely to prevent that tragedy. I would also reverse the judgments in No. 785, Branzburg v. Hayes, and No. 794, In re Pappas, for the reasons stated in the above dissent in No. 757, United States v. Caldwell. [ Footnote 2/1 ] "The three minimal tests we contend must be met before testimony divulging confidences may be compelled from a reporter are these: 1. The government must clearly show that there is probable cause to believe that the reporter possesses information which is specifically relevant to a specific probable violation of law. 2. The government must clearly show that the information it seeks cannot be obtained by alternative means, which is to say, from sources other than the reporter. 3. The government must clearly demonstrate a compelling and overriding interest in the information." Brief for New York Times as Amicus Curiae 29. [ Footnote 2/2 ] The First Amendment Is An Absolute, 191 Sup.Ct.Rev. 245, 254. [ Footnote 2/3 ] Id. at 255. [ Footnote 2/4 ] Id. at 257. [ Footnote 2/5 ] E.g., Schenck v. United States, 249 U. S. 47 (wartime anti-draft "leafleting"); Debs v. United States, 249 U. S. 211 (wartime anti-draft speech); Abrams v. United States, 250 U. S. 616 (wartime leafleting calling for general strike); Feiner v. New York, 340 U. S. 315 (arrest of radical speaker without attempt to protect him from hostile audience); Dennis v. United States, 341 U. S. 494 (reformulation of test as "not improbable" rule to sustain conviction of knowing advocacy of overthrow); Scales v. United States, 367 U. S. 203 (knowing membership in group which espouses forbidden advocacy is punishable). For a more detailed account of the infamy of the "clear and present danger" test, see my concurring opinion in Brandenburg v. Ohio, 395 U. S. 444 , 395 U. S. 450 . [ Footnote 2/6 ] E.g., Adler v. Board of Education, 342 U. S. 485 (protection of schools from "pollution" outweighs public teachers' freedom to advocate violent overthrow); Uphaus v. Wyman, 360 U. S. 72 , 360 U. S. 79 , 81 (preserving security of New Hampshire from subversives outweighs privacy of list of participants in suspect summer camp); Barenblatt v. United States, 360 U. S. 109 (legislative inquiry more important than protecting HUAC witness' refusal to answer whether a third person had been a Communist); Wilkinson v. United States, 365 U. S. 399 (legislative inquiry more important than protecting HUAC witness' refusal to state whether he was currently a member of the Communist Party); Braden v. United States, 365 U. S. 431 , 365 U. S. 435 (legislative inquiry more important than protecting HUAC witness' refusal to state whether he had once been a member of the Communist Party); Konigsberg v. State Bar, 366 U. S. 36 (regulating membership of bar outweighs interest of applicants in refusing to answer question concerning Communist affiliations); In re Anastaplo, 366 U. S. 82 (regulating membership of bar outweighs protection of applicant's belief in Declaration of Independence that citizens should revolt against an oppressive government); Communist Party v. Subversive Activities Control Board, 367 U. S. 1 (national security outweighs privacy of association of leaders of suspect groups); Law Students Research Council v. Wadmond, 401 U. S. 154 (regulating membership of bar outweighs privacy of applicants' views on the soundness of the Constitution). [ Footnote 2/7 ] Thus, we have held "overbroad" measures which unduly restricted the time, place, and manner of expression. Schneider v. State, 308 U. S. 147 , 308 U. S. 161 (anti-leafleting law); Thornhill v. Alabama, 310 U. S. 88 , 310 U. S. 102 (anti-boycott statute); Cantwell v. Connecticut, 310 U. S. 296 (breach-of-peace measure); Cox v. Louisiana, 379 U. S. 536 (breach-of-peace measure); Edwards v. South Carolina, 372 U. S. 229 (breach-of-peace statute); Cohen v. California, 403 U. S. 15 , 403 U. S. 22 (breach-of-peace statute); Gooding v. Wilson, 405 U. S. 518 (breach-of-peace statute). But insofar as penalizing the content of thought and opinion is concerned, the Court has not in recent Terms permitted any interest to override the absolute privacy of one's philosophy. To be sure, opinions have often adverted to the absence of a compelling justification for attempted intrusions into philosophical or associational privacy. Bates v. Little Rock, 361 U. S. 516 , 361 U. S. 523 (disclosure of NAACP membership lists to city officials); Gibson v. Florida Legislative Investigation Committee, 372 U. S. 539 , 372 U. S. 546 (disclosure of NAACP membership list to state legislature); DeGregory v. Attorney General of New Hampshire, 383 U. S. 825 , 383 U. S. 829 (witness' refusal to state whether he had been a member of the Communist Party three years earlier); Baird v. State Bar of Arizona, 401 U. S. 1 , 401 U. S. 6 -7 (refusal of bar applicant to state whether she had been a member of the Communist Party); In re Stolar, 401 U. S. 23 (refusal of bar applicant to state whether he was "loyal" to the Government); see also Street v. New York, 394 U. S. 576 (expression of disgust for nag). Yet, while the rhetoric of these opinions did not expressly embrace an absolute privilege for the privacy of opinions and philosophy, the trend of those results was not inconsistent with and in their totality appeared to be approaching such a doctrine. Moreover, in another group of opinions invalidating for overbreadth intrusions into the realm of belief and association, there was no specification of whether a danger test, a balancing process, an absolute doctrine, or a compelling justification inquiry had been used to detect invalid applications comprehended by the challenged measures. E.g., Wieman v. Updegraff, 344 U. S. 183 (loyalty test which condemned mere unknowing membership in a suspect group); Shelton v. Tucker, 364 U. S. 479 (requirement that public teachers disclose all affiliations); Louisiana ex rel. Gremillion v. NAACP, 366 U. S. 293 , 366 U. S. 296 (disclosure of NAACP membership lists); Whitehill v. Elkins, 389 U. S. 54 , 389 U. S. 59 (nonactive membership in a suspect group a predicate for refusing employment as a public teacher); United States v. Robel, 389 U. S. 258 (mere membership in Communist Party a sole ground for exclusion from employment in defense facility). Regrettably, the vitality of the overdue trend toward a complete privilege in this area has been drawn into question by quite recent decisions of the Court, Law Students Research Council v. Wadmond, 401 U. S. 1 54, holding that bar applicants may be turned away for refusing to disclose their opinions on the soundness of the Constitution; Cole v. Richardson, 405 U. S. 676 , sustaining an oath required of public employees that they will "oppose" a violent overthrow; and, of course, by today's decision. [ Footnote 2/8 ] Where no more than economic interests were affected, this Court has upheld legislation only upon a showing that it was "rationally connected" to some permissible state objective. E.g., United States v. Carolene Products Co., 304 U. S. 144 , 304 U. S. 152 ; Goesaert v. Cleary, 335 U. S. 464 ; Williamson v. Lee Optical Co., 348 U. S. 483 ; McGowan v. Maryland, 366 U. S. 420 ; McDonald v. Board of Election Comm'rs, 394 U. S. 802 ; United States v. Maryland Savings-Share Ins. Corp., 400 U. S. 4 ; Richardson v. Belcher, 404 U. S. 78 ; Schilb v. Kuebel, 404 U. S. 357 . [ Footnote 2/9 ] The majority cites several cases which held that certain burdens on the press were permissible despite incidental burdens on its news-gathering ability. For example, see Sheppard v. Maxwell, 384 U. S. 333 , 384 U. S. 358 . Even assuming that those cases were rightly decided, the fact remains that in none of them was the Government attempting to extract personal belief from a witness, and the privacy of a citizen's personal intellectual viewpoint was not implicated. [ Footnote 2/10 ] "The secrecy of the [grand jury's] proceedings and the possibility of a jail sentence for contempt so intimidate the witness that he may be led into answering questions which pry into his personal life and associations and which, in the bargain, are frequently immaterial and vague. Alone and faced by either hostile or apathetic grand juries, the witness is frequently undone by his experience. Life in a relatively open society makes him especially vulnerable to a secret appearance before a body that is considering criminal charges. And the very body toward which he could once look for protection has become a weapon of the prosecution. When he seeks protective guidance from his lawyer, he learns that the judicial broadening of due process which has occurred in the past two decades has largely ignored grand jury matters precisely because it was assumed that the grand jury still functioned as a guardian of the rights of potential defendants." Donner & Cerruti, The Grand Jury Network: How the Nixon Administration Has Secretly Perverted A Traditional Safeguard of Individual Rights, 214 The Nation 5, 6 (1972). [ Footnote 2/11 ] It is said that "we remain unclear how often and to what extent informers are actually deterred from furnishing information when newsmen are forced to testify before a grand jury." Ante at 408 U. S. 693 . But the majority need look no further than its holdings that prosecutors need not disclose informers' names because disclosure would (a) terminate the usefulness of an exposed informant inasmuch as others would no longer confide in him, and (b) it would generally inhibit persons from becoming confidential informers. McCray v. Illinois, 386 U. S. 300 ; Scher v. United States, 305 U. S. 251 ; cf. Roviaro v. United States, 353 U. S. 53 . [ Footnote 2/12 ] For a summary of early reprisals against the press, such as the John Peter Zenger trial, the Alien and Sedition Acts prosecutions, and Civil War suppression of newspapers, see Press Freedoms Under Pressure, Report of the Twentieth Century Fund Task Force on the Government and the Press 3-5 (1972). We have not outlived the tendency of officials to retaliate against critics. For recent examples see J. Wiggins, Freedom or Secrecy 87 (1956) ("New Mexico, in 1954, furnished a striking example of government reprisal against . . . a teacher in the state reform school [who] wrote a letter to the New Mexican, confirming stories it had printed about mistreatment of inmates by guards. [Two days later, he] was notified of his dismissal."); Note, The Right of Government Employees to Furnish Information to Congress: Statutory and Constitutional Aspects, 57 Va.L.Rev. 885-886 (1971) (dismissal of an Air Force employee who testified before a Senate committee with respect to C-5A cargo plane cost overruns and firing of an FBI agent who wrote Senators complaining of the Bureau's personnel practices); N.Y. Times, Nov. 8, 1967, p. 1, col. 2; id. Nov. 9, 1967, p. 2, col. 4 (Selective Service directive to local draft boards requiring conscription of those who protested war); N.Y. Times, Nov. 11, 1971, p. 95, col. 4; id. Nov. 12, 1971, p. 13, col. 1; id. Nov. 14, 1971, pt. 4, p. 13, col. 1 (FBI investigation of a television commentator who criticized administration policies); id. Nov. 14, 1971, p. 75, col. 3 (denial of White House press pass to underground journalist). MR. JUSTICE STEWART, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, dissenting. The Court's crabbed view of the First Amendment reflect a disturbing insensitivity to the critical role of an independent press in our society. The question whether a reporter has a constitutional right to a confidential relationship with his source is of first impression here, but the principles that should guide our decision are as basic as any to be found in the Constitution. While MR. JUSTICE POWELL's enigmatic concurring opinion gives some hope of a more flexible view in the future, the Court in these cases holds that a newsman has no First Amendment right to protect his sources when called before a grand jury. The Court thus invites state and federal authorities to undermine the historic independence of the press by attempting to annex the journalistic profession as an investigative arm of government. Not only will this decision impair performance of the press' constitutionally protected functions, but it will, I am convinced, in the long run harm, rather than help, the administration of justice. I respectfully dissent. I The reporter's constitutional right to a confidential relationship with his source stem from the broad societal interest in a full and free flow of information to the public. It is this basic concern that underlie the Constitution's Page 408 U. S. 726 protection of a free press, Grosjean v. American Press Co., 297 U. S. 233 , 297 U. S. 250 ; New York Times Co. v. Sullivan, 376 U. S. 254 , 376 U. S. 269 , [ Footnote 3/1 ] because the guarantee is "not for the benefit of the press so much as for the benefit of all of us." Time, Inc. v. Hill, 385 U. S. 374 , 385 U. S. 389 . [ Footnote 3/2 ] Enlightened choice by an informed citizenry is the basic ideal upon which an open society is premised, [ Footnote 3/3 ] and a free press is thus indispensable to a free society. Not only does the press enhance personal self-fulfillment Page 408 U. S. 727 by providing the people with the widest possible range of fact and opinion, but it also is an incontestable precondition of self-government. The press "has been a mighty catalyst in awakening public interest in governmental affairs, exposing corruption among public officers and employees and generally informing the citizenry of public events and occurrences. . . ." Estes v. Texas, 381 U. S. 532 , 381 U. S. 539 ; Mills v. Alabama, 384 U. S. 214 , 384 U. S. 219 ; Grosjean, supra, at 297 U. S. 250 . As private and public aggregations of power burgeon in size and the pressures for conformity necessarily mount, there is obviously a continuing need for an independent press to disseminate a robust variety of information and opinion through reportage, investigation, and criticism, if we are to preserve our constitutional tradition of maximizing freedom of choice by encouraging diversity of expression. A In keeping with this tradition, we have held that the right to publish is central to the First Amendment and basic to the existence of constitutional democracy. Grosjean, supra, at 297 U. S. 250 ; New York Times, supra, at 403 U. S. 270 . A corollary of the right to publish must be the right to gather news. The full flow of information to the public protected by the free press guarantee would be severely curtailed if no protection whatever were afforded to the process by which news is assembled and disseminated. We have, therefore, recognized that there is a right to publish without prior governmental approval, Near v. Minnesota, 283 U. S. 697 ; New York Times Co. v. United States, 403 U. S. 713 , a right to distribute information, see, e.g., Lovell v. Griffin, 303 U. S. 444 , 303 U. S. 452 ; Marsh v. Alabama, 326 U. S. 501 ; Martin v. City of Struthers, 319 U. S. 141 ; Grosjean, supra, and a right to receive printed matter, Lamont v. Postmaster General, 381 U. S. 301 . Page 408 U. S. 728 No less important to the news dissemination process is the gathering of information. News must not be unnecessarily cut off at its source, for without freedom to acquire information, the right to publish would be impermissibly compromised. Accordingly, a right to gather news, of some dimensions, must exist. Zemel v. Rusk, 381 U. S. 1 . [ Footnote 3/4 ] Note, The Right of the Press to Gather Information, 71 Col.L.Rev. 838 (1971). As Madison wrote: "A popular Government without popular information or the means of acquiring it is but a Prologue to a Farce or a Tragedy, or perhaps both." 9 Writings of James Madison 103 (G. Hunt ed.1910). B The right to gather news implies, in turn, a right to a confidential relationship between a reporter and his source. This proposition follows as a matter of simple logic once three factual predicates are recognized: (1) newsmen require informants to gather news; (2) confidentiality -- the promise or understanding that names or certain aspects of communications will be kept off the record -- is essential to the creation and maintenance of a newsgathering relationship with informants; and (3) an unbridled subpoena power -- the absence of a constitutional right protecting, in any way, a confidential relationship from compulsory process -- will either deter source from divulging information or deter reporters from gathering and publishing information. Page 408 U. S. 729 It is obvious that informants are necessary to the news-gathering process as we know it today. If it is to perform its constitutional mission, the press must do far more than merely print public statements or publish prepared handouts. Familiarity with the people and circumstances involved in the myriad background activities that result in the final product called "news" is vital to complete and responsible journalism, unless the press is to be a captive mouthpiece of "newsmakers." [ Footnote 3/5 ] It is equally obvious that the promise of confidentiality may be a necessary prerequisite to a productive relationship between a newsman and his informants. An officeholder may fear his superior; a member of the bureaucracy, his associates; a dissident, the scorn of majority opinion. All may have information valuable to the public discourse, yet each may be willing to relate that information only in confidence to a reporter whom he trusts, either because of excessive caution or because of a reasonable fear of reprisals or censure for unorthodox Page 408 U. S. 730 views. The First Amendment concern must not be with the motives of any particular news source, but rather with the conditions in which informants of all shades of the spectrum may make information available through the press to the public. Cf. Talley v. California, 362 U. S. 60 , 362 U. S. 65 ; Bates v. Little Rock, 361 U. S. 516 ; NAACP v. Alabama, 357 U. S. 449 . [ Footnote 3/6 ] In Caldwell, the District Court found that "confidential relationships . . . are commonly developed and maintained by professional journalists, and are indispensable to their work of gathering, analyzing and publishing the news. [ Footnote 3/7 ]" Commentators and individual reporters have repeatedly noted the importance of confidentiality. [ Footnote 3/8 ] Page 408 U. S. 731 And surveys among reporters and editors indicate that the promise of nondisclosure is necessary for many types of news gathering. [ Footnote 3/9 ] Finally, and most important, when governmental officials possess an unchecked power to compel newsmen to disclose information received in confidence, sources will clearly be deterred from giving information, and reporters will clearly be deterred from publishing it, because uncertainty about exercise of the power will lead to "self-censorship." Smith v. California, 361 U. S. 147 , 361 U. S. 149 -154; New York Times Co. v. Sullivan, 376 U.S. at 376 U. S. 279 . The uncertainty arises, of course, because the judiciary has traditionally imposed virtually no limitations on the grand jury's broad investigatory powers. See Antell, The Modern Grand Jury: Benighted Supergovernment, 51 A.B.A.J. 153 (1965). See also 408 U. S. infra. After today's decision, the potential informant can never be sure that his identity or off-the-record communications will not subsequently be revealed through the compelled testimony of a newsman. A public-spirited person inside government, who is not implicated in any crime, will now be fearful of revealing corruption or other governmental wrongdoing, because he will now know he can subsequently be identified by use of compulsory process. The potential source must, therefore, choose between risking exposure by giving information or avoiding the risk by remaining silent. The reporter must speculate about whether contact with a controversial source or publication of controversial material will lead to a subpoena. In the event of a Page 408 U. S. 732 subpoena, under today's decision, the newsman will know that he must choose between being punished for contempt if he refuses to testify or violating his profession's ethic [ Footnote 3/10 ] and impairing his resourcefulness as a reporter if he discloses confidential information. [ Footnote 3/11 ] Again, the common sense understanding that such deterrence will occur is buttressed by concrete evidence. The existence of deterrent effects through fear and self-censorship was impressively developed in the District Court in Caldwell. [ Footnote 3/12 ] Individual reporters [ Footnote 3/13 ] and commentators [ Footnote 3/14 ] have noted such effects. Surveys have verified that an unbridled subpoena power will substantially Page 408 U. S. 733 impair the flow of news to the public, especially in sensitive areas involving governmental officials, financial affairs, political figures, dissidents, or minority groups that require in-depth, investigative reporting. [ Footnote 3/15 ] And the Justice Department has recognized that "compulsory process in some circumstances may have a limiting effect on the exercise of First Amendment rights." [ Footnote 3/16 ] No evidence contradicting the existence of such deterrent effects was offered at the trials or in the briefs here by the petitioner in Caldwell or by the respondents in Branzburg and Pappas. The impairment of the flow of news cannot, of course, be proved with scientific precision, as the Court seems to demand. Obviously, not every news gathering relationship requires confidentiality. And it is difficult to pinpoint precisely how many relationships do require a promise or understanding of nondisclosure. But we have never before demanded that First Amendment rights rest on elaborate empirical studies demonstrating beyond any conceivable doubt that deterrent effects exist; we have never before required proof of the exact number of people potentially affected by governmental action who would actually be dissuaded from engaging in First Amendment activity. Rather, on the basis of common sense and available information, we have asked, often implicitly, (1) whether there was a rational connection between the cause (the governmental action) and the effect (the deterrence or Page 408 U. S. 734 impairment of First Amendment activity), and (2) whether the effect would occur with some regularity, i.e., would not be de minimis. See, e.g., Grosjean v. American Press Co., 297 U.S. at 297 U. S. 244 -245; Burstyn, Inc. v. Wilson, 343 U. S. 495 , 343 U. S. 503 ; Sweezy v. New Hampshire, 354 U. S. 234 , 354 U. S. 248 (plurality opinion); NAACP v. Alabama, 357 U.S. at 357 U. S. 461 -466; Smith v. California, 361 U.S. at 361 U. S. 150 -154; Bates v. Little Rock, 361 U.S. at 361 U. S. 523 -524; Talley v. California, 362 U.S. at 362 U. S. 64 -65; Shelton v. Tucker, 364 U. S. 479 , 364 U. S. 485 -486; Cramp v. Board of Public Instruction, 368 U. S. 278 , 368 U. S. 286 ; NAACP v. Button, 371 U. S. 415 , 371 U. S. 431 -438; Gibson v. Florida Legislative Investigation Committee, 372 U. S. 539 , 372 U. S. 555 -557; New York Times Co. v. Sullivan, 376 U.S. at 376 U. S. 277 -278; Freedman v. Maryland, 380 U. S. 51 , 380 U. S. 59 ; DeGregory v. New Hampshire Attorney General, 383 U. S. 825 ; Elfbrandt v. Russell, 384 U. S. 11 , 16-19. And, in making this determination, we have shown a special solicitude toward the "indispensable liberties" protected by the First Amendment, NAACP v. Alabama, supra, at 357 U. S. 461 ; Bantam Books, Inc. v. Sullivan, 372 U. S. 58 , 372 U. S. 66 , for "[f]reedoms such as these are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference." Bates, supra, at 361 U. S. 523 . [ Footnote 3/17 ] Once this threshold inquiry has been satisfied, we have then examined the competing interests in determining whether Page 408 U. S. 735 there is an unconstitutional infringement of First Amendment freedoms. For example, in NAACP v. Alabama, supra, we found that compelled disclosure of the names of those in Alabama who belonged to the NAACP "is likely to affect adversely the ability [of the NAACP] and its members to pursue their . . . beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure." Id. at 357 U. S. 462 -463. In Talley, supra, we held invalid a city ordinance that forbade circulation of any handbill that did not have the distributor's name on it, for there was "no doubt that such an identification requirement would tend to restrict freedom to distribute information, and thereby freedom of expression." Id. at 362 U. S. 64 . And in Burstyn, Inc., supra, we found deterrence of First Amendment activity inherent in a censor's power to exercise unbridled discretion under an overbroad statute. Id. at 343 U. S. 503 . Surely the analogous claim of deterrence here is as securely grounded in evidence and common sense as the claims in the cases cited above, although the Court calls the claim "speculative." See ante at 408 U. S. 694 . The deterrence may not occur in every confidential relationship between a reporter and his source. [ Footnote 3/18 ] But it will certainly Page 408 U. S. 736 occur in certain types of relationships involving sensitive and controversial matters. And such relationships are vital to the free flow of information. To require any greater burden of proof is to shirk our duty to protect values securely embedded in the Constitution. We cannot await an unequivocal -- and therefore unattainable -- imprimatur from empirical studies. [ Footnote 3/19 ] We can and must accept the evidence developed in the record, and elsewhere, that overwhelmingly supports the premise that deterrence will occur with regularity in important types of news-gathering relationships. [ Footnote 3/20 ] Thus, we cannot escape the conclusion that, when neither the reporter nor his source can rely on the shield of confidentiality against unrestrained use of the grand jury's subpoena power, valuable information will not be published and the public dialogue will inevitably be impoverished. II Posed against the First Amendment's protection of the newsman's confidential relationships in these cases is society's interest in the use of the grand jury to administer Page 408 U. S. 737 justice fairly and effectively. The grand jury serves two important functions: "to examine into the commission of crimes" and "to stand between the prosecutor and the accused, and to determine whether the charge was founded upon credible testimony or was dictated by malice or personal ill will." Hale v. Henkel, 201 U. S. 43 , 201 U. S. 59 . And to perform these functions, the grand jury must have available to it every man's relevant evidence. See Blair v. United States, 250 U. S. 273 , 250 U. S. 281 ; Blackmer v. United States, 284 U. S. 421 , 284 U. S. 438 . Yet the longstanding rule making every person's evidence available to the grand jury is not absolute. The rule has been limited by the Fifth Amendment, [ Footnote 3/21 ] the Fourth Amendment, [ Footnote 3/22 ] and the evidentiary privileges of the common law. [ Footnote 3/23 ] So it was that, in Blair, supra, after recognizing that the right against compulsory self-incrimination prohibited certain inquiries, the Court noted that "some confidential matters are shielded from considerations of policy, and perhaps in other cases, for special reasons, a witness may be excused from telling all that he knows." Id. at 250 U. S. 281 (emphasis supplied). And in United States v. Bryan, 339 U. S. 323 , the Court observed that any exemption from the duty to testify before the grand jury "presupposes a very real interest to be protected." Id. at 339 U. S. 332 . Such an interest must surely be the First Amendment protection of a confidential relationship that I have discussed above in Part I. As noted there, this protection does not exist for the purely private interests of the Page 408 U. S. 738 newsman or his informant, nor even, at bottom, for the First Amendment interests of either partner in the newsgathering relationship. [ Footnote 3/24 ] Rather, it functions to insure nothing less than democratic decisionmaking through the free flow of information to the public, and it serves, thereby, to honor the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, 376 U.S. at 376 U. S. 270 . In striking the proper balance between the public interest in the efficient administration of justice and the First Amendment guarantee of the fullest flow of information, we must begin with the basic proposition that, because of their "delicate and vulnerable" nature, NAACP v. Button, 371 U.S. at 371 U. S. 433 , and their transcendent importance for the just functioning of our society, First Amendment rights require special safeguards. A This Court has erected such safeguards when government, by legislative investigation or other investigative means, has attempted to pierce the shield of privacy inherent in freedom of association. [ Footnote 3/25 ] In no previous case have we considered the extent to which the First Amendment limits the grand jury subpoena power. But the Page 408 U. S. 739 Court has said that "[t]he Bill of Rights is applicable to investigations, as to all forms of governmental action. Witnesses cannot be compelled to give evidence against themselves. They cannot be subjected to unreasonable search and seizure. Nor can the First Amendment freedoms of speech, press . . . or political belief and association be abridged." Watkins v. United States, 354 U. S. 178 , 354 U. S. 188 . And, in Sweezy v. New Hampshire, it was stated: "It is particularly important that the exercise of the power of compulsory process be carefully circumscribed when the investigative process tends to impinge upon such highly sensitive areas as freedom of speech or press, freedom of political association, and freedom of communication of ideas." 354 U.S. at 354 U. S. 245 (plurality opinion). The established method of "carefully" circumscribing investigative powers is to place a heavy burden of justification on government officials when First Amendment rights are impaired. The decisions of this Court have "consistently held that only a compelling state interest in the regulation of a subject within the State's constitutional power to regulate can justify limiting First Amendment freedoms." NAACP v. Button, 371 U.S. at 371 U. S. 438 . And "it is an essential prerequisite to the validity of an investigation which intrudes into the area of constitutionally protected rights of speech, press, association and petition that the State convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest. " Gibson v. Florida Legislative Investigation Committee, 372 U.S. at 372 U. S. 546 (emphasis supplied). See also DeGregory v. Attorney General of New Hampshire, 383 U. S. 825 ; NAACP v. Alabama, 357 U. S. 449 ; Sweezy, supra; Watkins, supra. Thus, when an investigation impinges on First Amendment rights, the government must not only show that Page 408 U. S. 740 the inquiry is of "compelling and overriding importance," but it must also "convincingly" demonstrate that the investigation is "substantially related"to the information sought. Governmental officials must, therefore, demonstrate that the information sought is clearly relevant to a precisely defined subject of governmental inquiry. Watkins, supra; Sweezy, supra. [ Footnote 3/26 ] They must demonstrate that it is reasonable to think the witness in question has that information. Sweezy, supra; Gibson, supra. [ Footnote 3/27 ] And they must show that there is not any means of obtaining the information less destructive of First Amendment liberties. Sheldon v. Tucker, 364 U.S. at 364 U. S. 488 ; Louisiana ex rel. Gremillion v. NAACP, 366 U. S. 293 , 366 U. S. 297 . [ Footnote 3/28 ] These requirements, which we have recognized in decisions involving legislative and executive investigations, serve established policies reflected in numerous First Page 408 U. S. 741 Amendment decisions arising in other contexts. The requirements militate against vague investigations that, like vague laws, create uncertainty and needlessly discourage First Amendment activity. [ Footnote 3/29 ] They also insure that a legitimate governmental purpose will not be pursued by means that "broadly stifle fundamental personal liberties when the end can be more narrowly achieved." Shelton, supra, at 364 U. S. 488 . [ Footnote 3/30 ] As we said in Gibson, supra, "Of course, a legislative investigation -- as any investigation -- must proceed 'step by step,' . . . but step by step or in totality, an adequate foundation for inquiry must be laid before proceeding in such a manner as will substantially intrude upon and severely curtail or inhibit constitutionally protected activities or seriously interfere with similarly protected associational rights." 372 U.S. at 372 U. S. 557 . I believe the safeguards developed in our decisions involving governmental investigations must apply to the grand jury inquiries in these cases. Surely the function of the grand jury to aid in the enforcement of the law is no more important than the function of the legislature, and its committees, to make the law. We have long recognized the value of the role played by legislative investigations, see, e.g., 345 U. S. Rumely, Page 408 U. S. 742 345 U. S. 41 , 345 U. S. 43 ; Barenblatt v. United States, 360 U. S. 109 , 360 U. S. 111 -112, for the "power of the Congress to conduct investigations is inherent . . . [encompassing] surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them." Watkins, supra, at 354 U. S. 187 . Similarly, the associational rights of private individuals, which have been the prime focus of our First Amendment decisions in the investigative sphere, are hardly more important than the First Amendment rights of mass circulation newspapers and electronic media to disseminate idea and information, and of the general public to receive them. Moreover, the vices of vagueness and overbreadth that legislative investigations may manifest are also exhibited by grand jury inquiries, since grand jury investigations are not limited in scope to specific criminal acts, see, e.g., Wilson v. United States, 221 U. S. 361 , Hendricks v. United States, 223 U. S. 178 , 223 U. S. 184 , United States v. Johnson, 319 U. S. 503 , and since standards of materiality and relevance are greatly relaxed. Holt v. United States, 218 U. S. 245 ; Costello v. United States, 350 U. S. 359 . See generally Note, The Grand Jury as an Investigatory Body, 74 Harv.L.Rev. 590, 591-592 (1961). [ Footnote 3/31 ] For, as the United States notes in its brief in Caldwell, the Page 408 U. S. 743 grand jury "need establish no factual basis for commencing an investigation, and can pursue rumors which further investigation may prove groundless." Accordingly, when a reporter is asked to appear before a grand jury and reveal confidences, I would hold that the government must (1) show that there is probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law; [ Footnote 3/32 ] (2) demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and (3) demonstrate a compelling and overriding interest in the information. [ Footnote 3/33 ] This is not to say that a grand jury could not issue a subpoena until such a showing were made, and it is not to say that a newsman would be in any way privileged to ignore any subpoena that was issued. Obviously, before the government's burden to make such a showing were triggered, the reporter would have to move to quash the subpoena, asserting the basis on which he considered the particular relationship a confidential one. Page 408 U. S. 744 B The crux of the Court's rejection of any newsman's privilege is its observation that only "where news sources themselves are implicated in crime or possess information relevant to the grand jury's task need they or the reporter be concerned about grand jury subpoenas." See ante at 408 U. S. 691 (emphasis supplied). But this is a most misleading construct. For it is obviously not true that the only persons about whom reporters will be forced to testify will be those "confidential informants involved in actual criminal conduct" and those having "information suggesting illegal conduct by others." See ante at 408 U. S. 691 , 408 U. S. 693 . As noted above, given the grand jury's extraordinarily broad investigative powers and the weak standards of relevance and materiality that apply during such inquiries, reporters, if they have no testimonial privilege, will be called to give information about informants who have neither committed crimes nor have information about crime. It is to avoid deterrence of such sources, and thus to prevent needless injury to First Amendment values that I think the government must be required to show probable cause that the newsman has information that is clearly relevant to a specific probable violation of criminal law. [ Footnote 3/34 ] Page 408 U. S. 745 Similarly, a reporter may have information from a confidential source that is "related" to the commission of crime, but the government may be able tax obtain an indictment or otherwise achieve its purposes by subpoenaing persons other than the reporter. It is an obvious but important truism that, when government aims have been fully served, there can be no legitimate reason to disrupt a confidential relationship between a reporter and his source. To do so would not aid the administration of justice ,and would only impair the flow of information to the public. Thus, it is to avoid deterrence of such sources that I think the government must show that there are no alternative means for the grand jury to obtain the information sought. Both the "probable cause" and "alternative means" requirements would thus serve the vital function of mediating between the public interest in the administration of justice and the constitutional protection of the full flow of information. These requirements would avoid a direct conflict between these competing concerns, and they would generally provide adequate protection for newsmen. See 408 U. S. infra. [ Footnote 3/35 ] No doubt the courts would be required to make some delicate judgments in working out this accommodation. But that, after all, Page 408 U. S. 746 is the function of court of law. Better such judgments, however difficult, than the simplistic and stultifying absolutism adopted by the Court in denying any force to the First Amendment in these cases. [ Footnote 3/36 ] The error in the Court's absolute rejection of First Amendment interests in these cases seems to me to be most profound. For in the name of advancing the administration of justice, the Court's decision, I think, will only impair the achievement of that goal. People entrusted with law enforcement responsibility, no less than private citizens, need general information relating to controversial social problems. Obviously, press reports have great value to government, even when the newsman cannot be compelled to testify before a grand jury. The sad paradox of the Court's position is that, when a grand jury may exercise an unbridled subpoena power, and sources involved in sensitive matters become fearful of disclosing information, the newsman will not only cease to be a useful grand jury witness; he will cease to investigate and publish information about issues of public import. I cannot subscribe to such an anomalous result, for, in my view, the interests protected by the First Amendment are not antagonistic to the administration of justice. Rather, they can, in the long run, only be complementary, and for that reason must be given great "breathing space." NAACP v. Button, 371 U.S. at 371 U. S. 433 . III In deciding what protection should be given to information a reporter receives in confidence from a news source, the Court of Appeals for the Ninth Circuit affirmed the holding of the District Court that the grand Page 408 U. S. 747 jury power of testimonial compulsion must not be exercised in a manner likely to impair First Amendment interests "until there has been a clear showing of a compelling and overriding national interest that cannot be served by any alternative means." Caldwell v. United States, 434 F.2d 1081, 1086. It approved the request of respondent Caldwell for specification by the government of the "subject, direction or scope of the Grand Jury inquiry." Id. at 1085. And it held that, in the circumstances of this case, Caldwell need not divulge confidential information. I think this decision was correct. On the record before us, the United States has not met the burden that I think the appropriate newsman's privilege should require. In affidavits before the District Court, the United States said it was investigating possible violations of 18 U.S.C. § 871 (threats against the President), 18 U.S.C. § 1751 (assassination, attempts to assassinate, conspiracy to assassinate the President), 18 U.S.C. § 231 (civil disorders), 18 U.S.C. § 2101 (interstate travel to incite a riot), 18 U.S.C. § 1341 (mail fraud and swindles) and other crimes that were not specified. But, with one exception, there has been no factual showing in this case of the probable commission of, or of attempts to commit, any crimes. [ Footnote 3/37 ] The single exception relates to the allegation that a Black Panther Party leader, David Hilliard, violated 18 U.S.C. § 871 during the course of a speech in November, 1969. But Caldwell was subpoenaed two months after an indictment was returned against Hilliard, and that charge could not, subsequent to the indictment, be investigated by a grand jury. See In re National Window Glass Workers, 287 F. 219; United Page 408 U. S. 748 States v. Dardi, 330 F.2d 316, 336. [ Footnote 3/38 ] Furthermore, the record before us does not show that Caldwell probably had any information about the violation of any other federal criminal laws, [ Footnote 3/39 ] or that alternative Page 408 U. S. 749 means of obtaining the desired information were pursued. [ Footnote 3/40 ] In the Caldwell case, the Court of Appeal further found that Caldwell's confidential relationship with the leaders of the Black Panther Party would be impaired if he appeared before the grand jury at all to answer questions, even though not privileged. Caldwell v. United States, 434 F.2d at 1088. On the particular facts before it, [ Footnote 3/41 ] the court concluded that the very Page 408 U. S. 750 appearance by Caldwell before the grand jury would jeopardize his relationship with his sources, leading to a severance of the news-gathering relationship and impairment of the flow of news to the public: [ Footnote 3/42 ] "Appellant asserted in affidavit that there is nothing to which he could testify (beyond that which he has already made public and for which, therefore, his appearance is unnecessary) that is not protected by the District Court's order. If this is true -- and the Government apparently has not believed it necessary to dispute it -- appellant's response to the subpoena would be a barren performance Page 408 U. S. 751 -- one of no benefit to the Grand Jury. To destroy appellant's capacity as news gatherer for such a return hardly makes sense. Since the cost to the public of excusing his attendance is so slight, it may be said that there is here no public interest of real substance in competition with the First Amendment freedoms that are jeopardized." "If any competing public interest is ever to arise in a case such as this (where First Amendment liberties are threatened by mere appearance at a Grand Jury investigation) it will be on an occasion in which the witness, armed with his privilege, can still serve a useful purpose before the Grand Jury. Considering the scope of the privilege embodied in the protective order, these occasions would seem to be unusual. It is not asking too much of the Government to show that such an occasion is presented here." Id. at 1089. I think this ruling was also correct in light of the particularized circumstances of the Caldwell case. Obviously, only in very rare circumstances would a confidential relationship between a reporter and his source be so sensitive that mere appearance before the grand jury by the newsman would substantially impair his newsgathering function. But in this case, the reporter made out a prima facie case that the flow of news to the public would be curtailed. And he stated, without contradiction, that the only nonconfidential material about which he could testify was already printed in his newspaper articles. [ Footnote 3/43 ] Since the United States has not attempted to Page 408 U. S. 752 refute this assertion, the appearance of Caldwell would, on these facts, indeed be a "barren performance." But this aspect of the Caldwell judgment I would confine to its own facts. As the Court of Appeals appropriately observed: "[T]he rule of this case is a narrow one. . . ." Caldwell, supra, at 1090. Accordingly, I would affirm the judgment of the Court of Appeals in No. 70-57, United States v. Caldwell. [ Footnote 3/44 ] In the other two cases before us, No. 70-85, Branzburg v. Hayes and Meigs, and No. 70-94, In re Pappas, I would vacate the judgments and remand the cases for further proceedings not inconsistent with the views I have expressed in this opinion. [ Footnote 3/1 ] We have often described the process of informing the public as the core purpose of the constitutional guarantee of free speech and a free press. See, e.g., Stromberg v. California, 283 U. S. 359 , 283 U. S. 369 ; De Jonge v. Oregon, 299 U. S. 353 , 299 U. S. 365 ; Smith v. California, 361 U. S. 147 , 361 U. S. 153 . [ Footnote 3/2 ] As I see it, a reporter's right to protect his source is bottomed on the constitutional guarantee of a full flow of information to the public. A newsman's personal First Amendment rights or the associational rights of the newsman and the source are subsumed under that broad societal interest protected by the First Amendment. Obviously, we are not here concerned with the parochial personal concerns of particular newsmen or informants. "The newsman-informer relationship is different from . . . other relationships whose confidentiality is protected by statute, such as the attorney-client and physician-patient relationships. In the case of other statutory privileges, the right of nondisclosure is granted to the person making the communication in order that he will be encouraged by strong assurances of confidentiality to seek such relationships which contribute to his personal wellbeing. The judgment is made that the interests of society will be served when individuals consult physicians and lawyers; the public interest is thus advanced by creating a zone of privacy that the individual can control. However, in the case of the reporter-informer relationship, society's interest is not in the welfare of the informant per se, but rather in creating conditions in which information possessed by news sources can reach public attention." Note, 80 Yale L.J. 317, 343 (1970) (footnotes omitted) (hereinafter Yale Note). [ Footnote 3/3 ] See generally Z. Chafee, Free Speech in the United States (1941); A. Meikeljohn, Free Speech and Its Relation to Self-Government (1948); T. Emerson, Toward a General Theory of the First Amendment (1963). [ Footnote 3/4 ] In Zemel v. Rusk, 381 U. S. 1 , we held that the Secretary of State's denial of a passport for travel to Cuba did not violate a citizen's First Amendment rights. The rule was justified by the "weightiest considerations of national security," and we concluded that the "right to speak and publish does not carry with it the unrestrained right to gather information." Id. at 381 U. S. 16 -17 (emphasis supplied). The necessary implication is that some right to gather information does exist. [ Footnote 3/5 ] In Caldwell v. United States, 434 F.2d 1081, the Government claimed that Caldwell did not have to maintain a confidential relationship with members of the Black Panther Party and provide independent reporting of their activities, since the Party and its leaders could issue statements on their own. But, as the Court of Appeals for the Ninth Circuit correctly observed: "[I]t is not enough that Black Panther press releases and public addresses by Panther leaders may continue unabated in the wake of subpoenas such as the one here in question. It is not enough that the public's knowledge of groups such as the Black Panthers should be confined to their deliberate public pronouncements or distant news accounts of their occasional dramatic forays into the public view." "The need for an untrammeled press takes on special urgency in times of widespread protest and dissent. In such times, the First Amendment protections exist to maintain communication with dissenting groups and to provide the public with a wide range of information about the nature of protest and heterodoxy." Citing Associated Press v. United States, 326 U. S. 1 , 326 U. S. 20 ; Thornill v. Alabama, 310 U. S. 88 , 310 U. S. 102 . Id. at 1084-1085. [ Footnote 3/6 ] As we observed in Talley v. California, 362 U. S. 60 , "Anonymous pamphlets, leaflets, brochures and even books have played al important role in the progress of mankind. . . . Before the Revolutionary War, colonial patriots frequently had to conceal their authorship or distribution of literature that easily could have brought down on them prosecutions by English controlled courts. . . . Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes." Id. at 362 U. S. 64 -65. And in Lamont v. Postmaster General, 381 U. S. 301 , we recognized the importance to First Amendment values of the right to receive information anonymously. [ Footnote 3/7 ] Application of Caldwell, 311 F. Supp. 358 , 361. [ Footnote 3/8 ] See, e.g., F. Chalmers, A Gentleman of the Press: The Biography of Colonel John Bayne MacLean 775 (1969); H. Klurfeld, Behind the Lines: The World of Drew Pearson 50, 52-55 (1968); A. Krock, Memoirs: Sixty Years on the Firing Line 181, 184-185 (1968); E. Larsen, First with the Truth 22-23 (1968); R. Ottley, The Lonely Warrior -- The Life and Times of Robert S. Abbott 143-145 (1955); C. Sulzberger, A Long Row of Candles; Memoirs and Diaries 241 (1969). As Walter Cronkite, a network television reporter, said in an affidavit in Caldwell: "In doing my work, I (and those who assist me) depend constantly on information, ideas, leads and opinions received in confidence. Such material is essential in digging out news worthy facts and, equally important, in assessing the importance and analyzing the significance of public events." App. 52. [ Footnote 3/9 ] See Guest & Stanzler, The Constitutional Argument for Newsmen Concealing Their Sources, 64 Nw.U.L.Rev. 18 (1969); V. Blasi, Press Subpoenas: An Empirical and Legal Analysis, Study Report of the Reporters' Committee on Freedom of the Press 229 (hereinafter Blasi). [ Footnote 3/10 ] The American Newspaper Guild has adopted the following rule as part of the newsman's code of ethics: "[N]ewspapermen shall refuse to reveal confidences or disclose sources of confidential information in court or before other judicial or investigating bodies." G. Bird & F. Merwin, The Press and Society 592 (1971). [ Footnote 3/11 ] Obviously, if a newsman does not honor a confidence, he will have difficulty establishing other confidential relationships necessary for obtaining information in the future. See Siebert & Ryniker, Press Winning Fight to Guard Sources, Editor & Publisher, Sept. 1, 1934, pp. 9, 36-37. [ Footnote 3/12 ] The court found that "compelled disclosure of information received by a journalist within the scope of . . . confidential relationships jeopardizes those relationships, and thereby impairs the journalist's ability to gather, analyze and publish the news." Application of Caldwell, 311 F. Supp. at 361. [ Footnote 3/13 ] See 408 U.S. 665 fn3/8|>n. 8, supra. [ Footnote 3/14 ] Recent commentary is nearly unanimous in urging either an absolute or qualified newsman's privilege. See, e.g., Goldstein, Newsmen and Their Confidential Sources, New Republic, Mar. 21, 1970, pp. 13-14; Yale Note, supra, 408 U.S. 665 fn3/2|>n. 2; Comment, 46 N.Y.U.L.Rev. 617 (1971); Nelson, The Newsmen's Privilege Against Disclosure of Confidential Sources and Information, 24 Vand.L.Rev. 667 (1971); Note, The Right of the Press to Gather Information, 71 Col.L.Rev. 838 (1971); Comment, 4 U.Mich.J.L.Ref. 85 (1970); Comment, 6 Harv.Civ.Rights-Civ.Lib.L.Rev. 119 (1970); Comment, The Newsman's Privilege: Government Investigations, Criminal Prosecutions and Private Litigation, 58 Calif.L.Rev. 1198 (1970). But see the Court's opinion, ante at 408 U. S. 690 n. 29. And see generally articles collected in Yale Note, supra, 408 U.S. 665 fn3/2|>n. 2. Recent decisions are in conflict both as to the importance of the deterrent effects and, a fortiori, as to the existence of a constitutional right to a confidential reporter-source relationship. See the Court's opinion, ante at 408 U. S. 686 , and cases collected in Yale Note, at 318 nn. 6-7. [ Footnote 3/15 ] See Blasi 6-71; Guest & Stanzler, supra, 408 U.S. 665 fn3/9|>n. 9, at 450. [ Footnote 3/16 ] Department of Justice Memo. No. 692 (Sept. 2, 1970). [ Footnote 3/17 ] Although, as the Court points out, we have held that the press is not free from the requirements of the National Labor Relations Act, the Fair Labor Standards Act, the antitrust laws, or nondiscriminatory taxation, ante at 408 U. S. 683 , these decisions were concerned "only with restraints on certain business or commercial practices" of the press. Citizen Publishing Co. v. United States, 394 U. S. 131 , 394 U. S. 139 . And due weight was given to First Amendment interests. For example, "The First Amendment, far from providing an argument against application of the Sherman Act . . . provides powerful reasons to the contrary." Associated Press v. United States, 326 U.S. at 326 U. S. 20 . [ Footnote 3/18 ] The fact that some informants will not be deterred from giving information by the prospect of the unbridled exercise of the subpoena power only means that there will not always be a conflict between the grand jury's inquiry and the protection of First Amendment activities. But even if the percentage of such informants is relatively large compared to the total "universe" of potential informants, there will remain a large number of people in "absolute" terms who will be deterred, and the flow of news through mass circulation newspapers and electronic media will inevitably be impaired. [ Footnote 3/19 ] Empirical studies, after all, can only provide facts. It is the duty of courts to give legal significance to facts; and it is the special duty of this Court to understand the constitutional significance of facts. We must often proceed in a state of less than perfect knowledge, either because the facts are murky or the methodology used in obtaining the facts is open to question. It is then that we must look to the Constitution for the values that inform our presumptions. And the importance to our society of the full flow of information to the public has buttressed this Court's historic presumption in favor of First Amendment values. [ Footnote 3/20 ] See, e.g., the uncontradicted evidence presented in affidavits from newsmen in Caldwell, Appendix to No. 70-57, pp. 22-61 (statements from Gerald Fraser, Thomas Johnson, John Kifner, Timothy Knight, Nicholas Proffitt, Anthony Ripley, Wallace Turner, Gilbert Noble, Anthony Lukas, Martin Arnold, David Burnham, Jon Lowell, Frank Morgan, Min Yee, Walter Cronkite, Eric Severeid, Mike Wallace, Dan Rather, Marvin Kalb). [ Footnote 3/21 ] See Blau v. United States, 340 U. S. 159 ; Quinn v. United States, 349 U. S. 155 ; Curcio v. United States, 354 U. S. 118 ; Malloy v. Hogan, 378 U. S. 1 . [ Footnote 3/22 ] See Silverthorne Lumber Co. v. United States, 251 U. S. 385 . [ Footnote 3/23 ] See Committee on Rules of Practice and Procedure of Judicial Conference of the United States, Revised Draft of Proposed Rules of Evidence for the United States Court and Magistrates (1971); 8 J. Wigmore, Evidence §§ 2292391 (McNaughton rev.1961). [ Footnote 3/24 ] Although there is a longstanding presumption against creation of common law testimonial privileges, United States v. Bryan, 339 U. S. 323 , these privileges are rounded in an "individual interest which has been found . . . to outweigh the public interest in the search for truth," rather than in the broad public concerns that inform the First Amendment. Id. at 339 U. S. 331 . [ Footnote 3/25 ] The protection of information from compelled disclosure for broad purposes of public policy has been recognized in decisions involving police informers, see Roviaro v. United States, 353 U. S. 53 , United States v. Ventresca, 380 U. S. 102 , 380 U. S. 108 , Aguilar v. Texas, 378 U. S. 108 , 378 U. S. 114 , McCray v. Illinois, 386 U. S. 300 , and military and state secrets, United States v. Reynolds, 345 U. S. 1 . [ Footnote 3/26 ] As we said in Watkins v. United States, 354 U. S. 178 , "[W]hen First Amendment rights are threatened, the delegation of power to the [legislative] committee must be clearly revealed in its charter. . . . It is the responsibility of the Congress . . . to insure that compulsory process is used only in furtherance of a legislative purpose. That requires that the instructions to an investigating committee spell out the group's jurisdiction and purpose with sufficient particularity. . . . The more vague the committee's charter is, the greater becomes the possibility that the committee's specific actions are not in conformity with the will of the parent House of Congress." Id. at 354 U. S. 198 , 354 U. S. 201 . [ Footnote 3/27 ] We noted in Sweezy v. New Hampshire, 354 U. S. 234 : "The State Supreme Court itself recognized that there was a weakness in its conclusion that the menace of forcible overthrow of the government justified sacrificing constitutional rights. There was a missing link in the chain of reasoning. The syllogism was not complete. There was nothing to connect the question of petitioner with this fundamental interest of the State. " Id. at 354 U. S. 251 (emphasis supplied). [ Footnote 3/28 ] See generally Note, Less Drastic Means and the First Amendment, 78 Yale L.J. 464 (1969). [ Footnote 3/29 ] See Watkins, supra, at 354 U. S. 208 -209. See generally Baggett v. Bullitt, 377 U. S. 360 , 377 U. S. 372 ; Speiser v. Randall, 357 U. S. 513 , 357 U. S. 526 ; Ashton v. Kentucky, 384 U. S. 195 , 384 U. S. 200 -201; Dombrowski v. Pfister, 380 U. S. 479 , 380 U. S. 486 ; Smith v. California, 361 U.S. at 361 U. S. 150 -152; Winters v. New York, 333 U. S. 507 ; Stromberg v. California, 283 U.S. at 283 U. S. 369 . See also Note, The Chilling Effect in Constitutional Law, 69 Col.L.Rev. 808 (1969). [ Footnote 3/30 ] See generally Zwickler v. Koota, 389 U. S. 241 , 389 U. S. 249 -250, and cases cited therein; Coates v. Cincinnati, 402 U. S. 611 , 402 U. S. 616 ; Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 307 ; De Jonge v. Oregon, 299 U.S. at 299 U. S. 364 -365; Schneider v. State, 308 U. S. 147 , 308 U. S. 164 ; Cox v. Louisiana, 379 U. S. 559 , 379 U. S. 562 -664. Cf. NAACP v. Button, 371 U. S. 415 , 371 U. S. 438 . See also Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844 (1970). [ Footnote 3/31 ] In addition, witnesses customarily are not allowed to object to questions on the grounds of materiality or relevance, since the scope of the grand jury inquiry is deemed to be of no concern to the witness. Carter v. United States, 417 F.2d 384, cert. denied, 399 U.S. 935. Nor is counsel permitted to be present to aid a witness. See In re Groban, 352 U. S. 330 . See generally Younger, The Grand Jury Under Attack, pt. 3, 46 J.Crim.L.C. & P.S. 214 (1955); Recent Cases, 104 U.Pa.L.Rev. 429 (1955); Watts, Grand Jury: Sleeping Watchdog or Expensive Antique, 37 N.C.L.Rev. 290 (1959); Whyte, Is the Grand Jury Necessary?, 45 Va.L.Rev. 461 (1959); Note, 2 Col. J.Law & Soc.Prob. 47, 58 (1966); Antell, The Modern Grand Jury: Benighted Supergovernment, 51 A.B.A.J. 153 (1965); Orfield, The Federal Grand Jury, 22 F.R.D. 343. [ Footnote 3/32 ] The standard of proof employed by most grand juries, federal and State, is simply "probable cause" to believe that the accused has committed a crime. See Note, 1963 Wash.U.L.Q.102; L. Hall et al., Modern Criminal Procedure 793-794 (1969). Generally speaking, it is extremely difficult to challenge indictments on the ground that they are not supported by adequate or competent evidence. Cf. Costello v. United States, 350 U. S. 359 ; Beck v. Washington, 369 U. S. 541 . [ Footnote 3/33 ] Cf. Garland v. Torre, 259 F.2d 545. The Court of Appeals for the Second Circuit declined to provide a testimonial privilege to a newsman called to testify at a civil trial. But the court recognized a newsman's First Amendment right to a confidential relationship with his source, and concluded: "It is to be noted that we are not dealing here with the use of the judicial process to force a wholesale disclosure of a newspaper's confidential sources of news, nor with a case where the identity of the news source is of doubtful relevance or materiality. . . . The question asked . . . went to the heart of the plaintiff's claim." Id. at 549-550 (citations omitted). [ Footnote 3/34 ] If this requirement is not met, then the government will basically be allowed to undertake a "fishing expedition" at the expense of the press. Such general, exploratory investigations will be most damaging to confidential news-gathering relationships, since they will create great uncertainty in both reporters and their sources. The Court sanctions such explorations by refusing to apply a meaningful "probable cause" requirement. See ante at 408 U.S. 701 -702. As the Court states, a grand jury investigation "may be triggered by tips, rumors, evidence proffered by the prosecutor, or the personal knowledge of the grand jurors." Ante at 408 U.S. 701 . It thereby invites government to try to annex the press as an investigative arm, since any time government wants to probe the relationships between the newsman and his source, it can, on virtually any pretext, convene a grand jury and compel the journalist to testify. The Court fails to recognize that, under the guise of "investigating crime," vindictive prosecutors can, using the broad powers of the grand jury which are, in effect, immune from judicial supervision, explore the newsman's sources at will, with no serious law enforcement purpose. The secrecy of grand jury proceedings affords little consolation to a news source; the prosecutor obviously will, in most cases, have knowledge of testimony given by grand jury witnesses. [ Footnote 3/35 ] We need not, therefore, reach the question of whether government's interest in these cases is "overriding and compelling." I do not, however, believe, as the Court does, that all grand jury investigations automatically would override the newsman's testimonial privilege. [ Footnote 3/36 ] The disclaimers in MR. JUSTICE POWELL's concurring opinion leave room for the hope that, in some future case, the Court may take a less absolute position in this area. [ Footnote 3/37 ] See Blasi 61 et seq. [ Footnote 3/38 ] After Caldwell was first subpoenaed to appear before the grand jury, the Government did undertake, by affidavits, to "set forth facts indicating the general nature of the grand jury's investigation [and] witness Earl Caldwell's possession of information relevant to this general inquiry." In detailing the basis for the belief that a crime had probably been committed, the Government simply asserted that certain actions had previously been taken by other grand juries, and by Government counsel, with respect to certain members of the Black Panther Party ( i.e., immunity grants for certain Black Panthers were sought; the Government moved to compel party members to testify before grand juries; and contempt citations were sought when party members refused to testify). No facts were asserted suggesting the actual commission of crime. The exception, as noted, involved David Hilliard's speech and its republication in the party newspaper, the Black Panther, for which Hilliard had been indicted before Caldwell was subpoenaed. [ Footnote 3/39 ] In its affidavits, the Government placed primary reliance on certain articles published by Caldwell in the New York Times during 1969 (on June 15, July 20, July 22, July 27, and Dec. 14). On Dec. 14, 1969, Caldwell wrote: "'We are special,' Mr. Hilliard said recently. 'We advocate the very direct overthrow of the Government by way of force and violence. By picking up guns and moving against it because we recognize it as being oppressive and, in recognizing that, we know that the only solution to it is armed struggle.'" "In their role as the vanguard in a revolutionary struggle, the Panthers have picked up guns." "Last week, two of their leaders were killed during the police raid on one of their offices in Chicago. And in Los Angeles a few days earlier, three officers and three Panthers were wounded in a similar shooting incident. In these and in some other raids, the police have found caches of weapons, including high-powered rifles." App. in No. 70-57, p. 13. In my view, this should be read as indicating that Caldwell had interviewed Panther leaders. It does not indicate that he probably had knowledge of the crimes being investigated by the Government. And, to repeat, to the extent it does relate to Hilliard's threat, an indictment had already been brought in that matter. The other articles merely demonstrate that Black Panther Party leaders had told Caldwell their ideological beliefs -- beliefs that were readily available to the Government through other sources, like the party newspaper. [ Footnote 3/40 ] The Government did not attempt to show that means less impinging upon First Amendment interests had been pursued. [ Footnote 3/41 ] In an affidavit filed with the District Court, Caldwell stated: "I began covering and writing articles about the Black Panthers almost from the time of their inception, and I myself found that, in those first months . . . , they were very brief and reluctant to discuss any substantive matter with me. However, as they realized I could be trusted and that my sole purpose was to collect my information and present it objectively in the newspaper, and that I had no other motive, I found that not only were the party leaders available for in-depth interviews, but also the rank and file members were cooperative in aiding me in the newspaper stories that I wanted to do. During the time that I have been covering the party, I have noticed other newspapermen representing legitimate organizations in the news media being turned away because they were not known and trusted by the party leadership." "As a result of the relationship that I have developed, I have been able to write lengthy stories about the Panthers that have appeared in The New York Times and have been of such a nature that other reporters who have not known the Panthers have not been able to write. Many of these stories have appeared in up to 50 or 60 other newspapers around the country." "The Black Panther Party's method of operation with regard to members of the press is significantly different from that of other organizations. For instance, press credentials are not recognized as being of any significance. In addition, interviews are not normally designated as being 'backgrounders' or 'off the record' or 'for publication' or 'on the record.' Because no substantive interviews are given until a relationship of trust and confidence is developed between the Black Panther Party members and a reporter, statements are rarely made to such reporters on an expressed 'on' or 'off' the record basis. Instead, an understanding is developed over a period of time between the Black Panther Party members and the reporter as to matters which the Black Panther Party wishes to disclose for publications and those matters which are given in confidence. . . . Indeed, if I am forced to appear in secret grand jury proceedings, my appearance alone would be interpreted by the Black Panthers and other dissident groups as a possible disclosure of confidences and trusts and would similarly destroy my effectiveness as a newspaperman." The Government did not contradict this affidavit. [ Footnote 3/42 ] "Militant groups might very understandably fear that, under the pressure of examination before a Grand Jury, the witness may fail to protect their confidences. . . . The Government characterizes this anticipated loss of communication as Black Panther reprisal. . . . But it is not an extortionate threat we face. It is human reaction as reasonable to expect as that a client will leave his lawyer when his confidence is shaken. . . . As the Government points out, loss of such a sensitive news source can also result from its reaction to indiscreet or unfavorable reporting or from a reporter's association with Government agents or persons disapproved of by the news source. Loss in such a case, however, results from an exercise of the choice and prerogative of a free press. It is not the result of Government compulsion." Caldwell v. United States, 434 F.2d at 1088. [ Footnote 3/43 ] Caldwell stated in his affidavit filed with the District Court, see 408 U.S. 665 fn3/40|>n. 40, supra: "It would be virtually impossible for me to recall whether any particular matter disclosed to me by members of the Black Panther Party since January l, 1969, was based on an understanding that it would or would not be confidential. Generally, those matters which were made on a nonconfidential or 'for publication' basis have been published in articles I have written in The New York Times; conversely, any matters which I have not thus far disclosed in published articles would have been given to me based on the understanding that they were confidential and would not be published." [ Footnote 3/44 ] The District Court reserved jurisdiction to modify its order on a showing of a governmental interest which cannot be served by means other than Caldwell's grand jury testimony. The Government would thus have further opportunity in that court to meet the burden that, I think, protection of First Amendment rights requires.

In the case of *Branzburg v. Hayes*, the U.S. Supreme Court ruled that the First Amendment does not grant journalists immunity from testifying before a grand jury or revealing confidential sources. The Court held that journalists, like all citizens, are legally obligated to respond to grand jury subpoenas and provide relevant information in criminal investigations. This decision affirmed the lower court rulings in two Kentucky cases and one Massachusetts case, while reversing a District Court ruling in a fourth case.

Free Speech

Gertz v. Robert Welch, Inc.

https://supreme.justia.com/cases/federal/us/418/323/

U.S. Supreme Court Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) Gertz v. Robert Welch, Inc. No. 72-617 Argued November 14, 1973 Decided June 25, 1974 418 U.S. 323 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Syllabus A Chicago policeman named Nuccio was convicted of murder. The victim's family retained petitioner, a reputable attorney, to represent them in civil litigation against Nuccio. An article appearing in respondent's magazine alleged that Nuccio's murder trial was part of a Communist conspiracy to discredit the local police, and it falsely stated that petitioner had arranged Nuccio's "frameup," implied that petitioner had a criminal record, and labeled him a "Communist-fronter." Petitioner brought this diversity libel action against respondent. After the jury returned a verdict for petitioner, the District Court decided that the standard enunciated in New York Times Co. v. Sullivan, 376 U. S. 254 , which bars media liability for defamation of a public official absent proof that the defamatory statements were published with knowledge of their falsity or in reckless disregard of the truth, should apply to this suit. The court concluded that that standard protects media discussion of a public issue without regard to whether the person defamed is a public official as in New York Times Co. v. Sullivan, supra, or a public figure, as in Curtis Publishing Co. v. Butts, 388 U. S. 130 . The court found that petitioner had failed to prove knowledge of falsity or reckless disregard for the truth, and therefore entered judgment n.o.v. for respondent. The Court of Appeals affirmed. Held: 1. A publisher or broadcaster of defamatory falsehoods about an individual who is neither a public official nor a public figure may not claim the New York Times protection against liability for defamation on the ground that the defamatory statements concern an issue of public or general interest. Pp. 418 U. S. 339 -348. (a) Because private individuals characteristically have less effective opportunities for rebuttal than do public officials and public figures, they are more vulnerable to injury from defamation. Because they have not voluntarily exposed themselves to increased risk of injury from defamatory falsehoods, they are also more deserving of recovery. The state interest in compensating Page 418 U. S. 324 injury to the reputation of private individuals is therefore greater than for public officials and public figures. Pp. 418 U. S. 343 -345. (b) To extend the New York Times standard to media defamation of private persons whenever an issue of general or public interest is involved would abridge to an unacceptable degree the legitimate state interest in compensating private individuals for injury to reputation and would occasion the additional difficulty of forcing courts to decide on an ad hoc basis which publications and broadcasts address issues of general or public interest and which do not. Pp. 418 U. S. 345 -346. (c) So long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood which injures a private individual and whose substance makes substantial danger to reputation apparent. Pp. 418 U. S. 347 -348. 2. The States, however, may not permit recovery of presumed or punitive damages when liability is not based on knowledge of falsity or reckless disregard for the truth, and the private defamation plaintiff who establishes liability under a less demanding standard than the New York Times test may recover compensation only for actual injury. Pp. 418 U. S. 348 -350. 3. Petitioner was neither a public official nor a public figure. Pp. 418 U. S. 351 -352. (a) Neither petitioner's past service on certain city committees nor his appearance as an attorney at the coroner's inquest into the death of the murder victim made him a public official. P. 418 U. S. 351 . (b) Petitioner was also not a public figure. Absent clear evidence of general fame or notoriety in the community and pervasive involvement in ordering the affairs of society, an individual should not be deemed a public figure for all aspects of his life. Rather, the public figure question should be determined by reference to the individual's participation in the particular controversy giving rise to the defamation. Petitioner's role in the Nuccio affair did not make him a public figure. Pp. 418 U. S. 351 -352. 471 F.2d 801, reversed and remanded. POWELL, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and REHNQUIST, JJ., joined. BLACKMUN, J., filed a concurring opinion, post, p. 418 U. S. 353 . BURGER, C.J., post, p. 418 U. S. 354 , DOUGLAS, J., post, p. 418 U. S. 355 , BRENNAN, J., post, p. 418 U. S. 361 , and WHITE, J., post, p. 418 U. S. 369 , filed dissenting opinions. Page 418 U. S. 325 MR. JUSTICE POWELL delivered the opinion of the Court. This Court has struggled for nearly a decade to define the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment. With this decision we return to that effort. We granted certiorari to reconsider the extent of a publisher's constitutional privilege against liability for defamation of a private citizen. 410 U.S. 925 (1973). I In 1968, a Chicago policeman named Nuccio shot and killed a youth named Nelson. The state authorities prosecuted Nuccio for the homicide and ultimately obtained a conviction for murder in the second degree. The Nelson family retained petitioner Elmer Gertz, a reputable attorney, to represent them in civil litigation against Nuccio. Respondent publishes American Opinion, a monthly outlet for the views of the John Birch Society. Early in the 1960's, the magazine began to warn of a nationwide conspiracy to discredit local law enforcement agencies and create in their stead a national police force capable of supporting a Communist dictatorship. As part of the continuing effort to alert the public to this assumed danger, the managing editor of American Opinion commissioned an article on the murder trial of Officer Nuccio. For this purpose, he engaged a regular contributor to the magazine. In March, 1969, respondent published the resulting article under the title "FRAME-UP: Richard Page 418 U. S. 326 Nuccio And The War On Police." The article purports to demonstrate that the testimony against Nuccio at his criminal trial was false, and that his prosecution was part of the Communist campaign against the police. In his capacity as counsel for the Nelson family in the civil litigation, petitioner attended the coroner's inquest into the boy's death and initiated actions for damages, but he neither discussed Officer Nuccio with the press nor played any part in the criminal proceeding. Notwithstanding petitioner's remote connection with the prosecution of Nuccio, respondent's magazine portrayed him as an architect of the "frame-up." According to the article, the police file on petitioner took "a big, Irish cop to lift." The article stated that petitioner had been an official of the "Marxist League for Industrial Democracy, originally known as the Intercollegiate Socialist Society, which has advocated the violent seizure of our government." It labeled Gertz a "Leninist" and a "Communist-fronter." It also stated that Gertz had been an officer of the National Lawyers Guild, described as a Communist organization that "probably did more than any other outfit to plan the Communist attack on the Chicago police during the 1968 Democratic Convention." These statements contained serious inaccuracies. The implication that petitioner had a criminal record was false. Petitioner had been a member and officer of the National Lawyers Guild some 15 years earlier, but there was no evidence that he or that organization had taken any part in planning the 1968 demonstrations in Chicago. There was also no basis for the charge that petitioner was a "Leninist" or a "Communist-fronter." And he had never been a member of the "Marxist League for Industrial Democracy" or the "Intercollegiate Socialist Society." Page 418 U. S. 327 The managing editor of American Opinion made no effort to verify or substantiate the charges against petitioner. Instead, he appended an editorial introduction stating that the author had "conducted extensive research into the Richard Nuccio Case." And he included in the article a photograph of petitioner and wrote the caption that appeared under it: "Elmer Gertz of Red Guild harasses Nuccio." Respondent placed the issue of American Opinion containing the article on sale at newsstands throughout the country and distributed reprints of the article on the streets of Chicago. Petitioner filed a diversity action for libel in the United States District Court for the Northern District of Illinois. He claimed that the falsehoods published by respondent injured his reputation as a lawyer and a citizen. Before filing an answer, respondent moved to dismiss the complaint for failure to state a claim upon which relief could be granted, apparently on the ground that petitioner failed to allege special damages. But the court ruled that statements contained in the article constituted libel per se under Illinois law, and that, consequently, petitioner need not plead special damages. 306 F. Supp. 310 (1969). After answering the complaint, respondent filed a pretrial motion for summary judgment, claiming a constitutional privilege against liability for defamation. [ Footnote 1 ] It asserted that petitioner was a public official or a public figure, and that the article concerned an issue of public interest and concern. For these reasons, respondent argued, it was entitled to invoke the privilege enunciated in New York Times Co. v. Sullivan, 376 U. S. 254 (1964). Under this rule, respondent would escape liability unless Page 418 U. S. 328 petitioner could prove publication of defamatory falsehood "with actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Id. at 376 U. S. 280 . Respondent claimed that petitioner could not make such a showing, and submitted a supporting affidavit by the magazine's managing editor. The editor denied any knowledge of the falsity of the statements concerning petitioner, and stated that he had relied on the author's reputation and on his prior experience with the accuracy and authenticity of the author's contributions to American Opinion. The District Court denied respondent's motion for summary judgment in a memorandum opinion of September 16, 1970. The court did not dispute respondent's claim to the protection of the New York Times standard. Rather, it concluded that petitioner might overcome the constitutional privilege by making a factual showing sufficient to prove publication of defamatory falsehood in reckless disregard of the truth. During the course of the trial, however, it became clear that the trial court had not accepted all of respondent's asserted grounds for applying the New York Times rule to this case. It thought that respondent's claim to the protection of the constitutional privilege depended on the contention that petitioner was either a public official under the New York Times decision or a public figure under Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967), apparently discounting the argument that a privilege would arise from the presence of a public issue. After all the evidence had been presented but before submission of the case to the jury, the court ruled, in effect, that petitioner was neither a public official nor a public figure. It added that, if he were, the resulting application of the New York Times standard would require a directed verdict for respondent. Because some statements in the article constituted libel per se Page 418 U. S. 329 under Illinois law, the court submitted the case to the jury under instructions that withdrew from its consideration all issues save the measure of damages. The jury awarded $50,000 to petitioner. Following the jury verdict and on further reflection, the District Court concluded that the New York Times standard should govern this case even though petitioner was not a public official or public figure. It accepted respondent's contention that that privilege protected discussion of any public issue without regard to the status of a person defamed therein. Accordingly, the court entered judgment for respondent notwithstanding the jury's verdict. [ Footnote 2 ] This conclusion anticipated the reasoning Page 418 U. S. 330 of a plurality of this Court in Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971). Petitioner appealed to contest the applicability of the New York Times standard to this case. Although the Court of Appeals for the Seventh Circuit doubted the correctness of the District Court's determination that petitioner was not a public figure, it did not overturn that finding. [ Footnote 3 ] It agreed with the District Court that respondent could assert the constitutional privilege because the article concerned a matter of public interest, citing this Court's intervening decision in Rosenbloom v. Metromedia, Inc., supra. The Court of Appeals read Rosenbloom to require application of the New York Times standard to any publication or broadcast about an issue of significant public interest, without regard to the position, fame, or anonymity of the person defamed, and it concluded that respondent's statements Page 418 U. S. 331 concerned such an issue. [ Footnote 4 ] After reviewing the record, the Court of Appeals endorsed the District Court's conclusion that petitioner had failed to show by clear and Page 418 U. S. 332 convincing evidence that respondent had acted with "actual malice" as defined by New York Times. There was no evidence that the managing editor of American Opinion knew of the falsity of the accusations made in the article. In fact, he knew nothing about petitioner except what he learned from the article. The court correctly noted that mere proof of failure to investigate, without more, cannot establish reckless disregard for the truth. Rather, the publisher must act with a " high degree of awareness of . . . probable falsity.'" St. Amant v. Thompson, 390 U. S. 727 , 390 U. S. 731 (1968); accord, Beckley Newspapers Corp. v. Hanks, 389 U. S. 81 , 389 U. S. 84 -85 (1967); Garrison v. Louisiana, 379 U. S. 64 , 379 U. S. 75 -76 (1964). The evidence in this case did not reveal that respondent had cause for such an awareness. The Court of Appeals therefore affirmed, 471 F.2d 801 (1972). For the reasons stated below, we reverse. II The principal issue in this case is whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor a public figure may claim a constitutional privilege against liability for the injury inflicted by those statements. The Court considered this question on the rather different set of facts presented in Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971). Rosenbloom, a distributor of nudist magazines, was arrested for selling allegedly obscene material while making Page 418 U. S. 333 a delivery to a retail dealer. The police obtained a warrant and seized his entire inventory of 3,000 books and magazines. He sought and obtained an injunction prohibiting further police interference with his business. He then sued a local radio station for failing to note in two of its newscasts that the 3,000 items seized were only "reportedly" or "allegedly" obscene and for broadcasting references to "the smut literature racket" and to "girlie book peddlers" in its coverage of the court proceeding for injunctive relief. He obtained a judgment against the radio station, but the Court of Appeals for the Third Circuit held the New York Times privilege applicable to the broadcast, and reversed. 415 F.2d 892 (1969). This Court affirmed the decision below, but no majority could agree on a controlling rationale. The eight Justices [ Footnote 5 ] who participated in Rosenbloom announced their views in five separate opinions, none of which commanded more than three votes. The several statements not only reveal disagreement about the appropriate result in that case, they also reflect divergent traditions of thought about the general problem of reconciling the law of defamation with the First Amendment. One approach has been to extend the New York Times test to an expanding variety of situations. Another has been to vary the level of constitutional privilege for defamatory falsehood with the status of the person defamed. And a third view would grant to the press and broadcast media absolute immunity from liability for defamation. To place our holding in the proper context, we preface our discussion of this case with a review of the several Rosenbloom opinions and their antecedents. In affirming the trial court's judgment in the instant case, the Court of Appeals relied on MR. JUSTICE BRENNAN's Page 418 U. S. 334 conclusion for the Rosenbloom plurality that "all discussion and communication involving matters of public or general concern," 403 U.S. at 403 U. S. 44 , warrant the protection from liability for defamation accorded by the rule originally enunciated in New York Times Co. v. Sullivan, 376 U. S. 254 (1964). There, this Court defined a constitutional privilege intended to free criticism of public officials from the restraints imposed by the common law of defamation. The Times ran a political advertisement endorsing civil rights demonstrations by black students in Alabama and impliedly condemning the performance of local law enforcement officials. A police commissioner established in state court that certain misstatements in the advertisement referred to him, and that they constituted libel per se under Alabama law. This showing left the Times with the single defense of truth, for, under Alabama law, neither good faith nor reasonable care would protect the newspaper from liability. This Court concluded that a "rule compelling the critic of official conduct to guarantee the truth of all his factual assertions" would deter protected speech, id. at 376 U. S. 279 , and announced the constitutional privilege designed to counter that effect: "The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not. " Id. at 376 U. S. 279 -280. [ Footnote 6 ] Page 418 U. S. 335 Three years after New York Times, a majority of the Court agreed to extend the constitutional privilege to defamatory criticism of "public figures." This extension Page 418 U. S. 336 was announced in Curtis Publishing Co. v. Butts and its companion, Associated Press v. Walker, 388 U. S. 130 , 388 U. S. 162 (1967). The first case involved the Saturday Evening Post's charge that Coach Wally Butts of the University of Georgia had conspired with Coach "Bear" Bryant of the University of Alabama to fix a football game between their respective schools. Walker involved an erroneous Associated Pres account of former Major General Edwin Waler's participation in a University of Mississippi campus riot. Because Butts was paid by a private alumni association and Walker had resigned from the Army, neither could be classified as a "public official" under New York Times. Although Mr. Justice Harlan announced the result in both cases, a majority of the Court agreed with Mr. Chief Justice Warren's conclusion that the New York Times test should apply to criticism of "public figures" as well as "public officials." [ Footnote 7 ] The Court extended the constitutional Page 418 U. S. 337 privilege announced in that case to protect defamatory criticism of nonpublic persons who "are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large." Id. at 388 U. S. 164 (Warren, C.J., concurring in result). In his opinion for the plurality in Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971), MR. JUSTICE BRENNAN took the New York Times privilege one step further. He concluded that its protection should extend to defamatory falsehoods relating to private persons if the statements concerned matters of general or public interest. He abjured the suggested distinction between public officials and public figures, on the one hand, and private individuals, on the other. He focused instead on society's interest in learning about certain issues: "If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not 'voluntarily' choose to become involved." Id. at 403 U. S. 43 . Thus, under the plurality opinion, a private citizen involuntarily associated with a matter of general interest has no recourse for injury to his reputation unless he can satisfy the demanding requirements of the New York Times test. Two Members of the Court concurred in the result in Rosenbloom, but departed from the reasoning of the plurality. Mr. Justice Black restated his view, long shared by MR. JUSTICE DOUGLAS, that the First Amendment cloaks the news media with an absolute and indefeasible immunity from liability for defamation. Id. at 403 U. S. 57 . MR JUSTICE WHITE concurred on a narrower ground. Ibid. He concluded that "the First Amendment gives the press and the broadcast media a privilege to report and comment upon the official actions of public Page 418 U. S. 338 servants in full detail, with no requirement that the reputation or the privacy of an individual involved in or affected by the official action be spared from public view." Id. at 403 U. S. 62 . He therefore declined to reach the broader questions addressed by the other Justices. Mr. Justice Harlan dissented. Although he had joined the opinion of the Court in New York Times, in Curtis Publishing Co., he had contested the extension of the privilege to public figures. There, he had argued that a public figure who held no governmental office should be allowed to recover damages for defamation "on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers." 388 U.S. at 388 U. S. 155 . In his Curtis Publishing Co. opinion, Mr. Justice Harlan had distinguished New York Times primarily on the ground that defamation actions by public officials "lay close to seditious libel. . . ." Id. at 388 U. S. 153 . Recovery of damages by one who held no public office, however, could not "be viewed as a vindication of governmental policy." Id. at 388 U. S. 154 . Additionally, he had intimated that, because most public officials enjoyed absolute immunity from liability for their own defamatory utterances under Barr v. Matteo, 360 U. S. 564 (1959,), they lacked a strong claim to the protection of the courts. In Rosenbloom, Mr. Justice Harlan modified these views. He acquiesced in the application of the privilege to defamation of public figures, but argued that a different rule should obtain where defamatory falsehood harmed a private individual. He noted that a private person has less likelihood "of securing access to channels of communication sufficient to rebut falsehoods concerning him" than do public officials and public figures, 403 U.S. at 403 U. S. 70 , and has not voluntarily placed himself in the Page 418 U. S. 339 public spotlight. Mr. Justice Harlan concluded that the States could constitutionally allow private individuals to recover damages for defamation on the basis of any standard of care except liability without fault. MR. JUSTICE MARSHALL dissented in Rosenbloom in an opinion joined by MR. JUSTICE STEWART. Id. at 403 U. S. 78 . He thought that the plurality's "public or general interest" test for determining the applicability of the New York Times privilege would involve the courts in the dangerous business of deciding "what information is relevant to self-government." Id. at 403 U. S. 79 . He also contended that the plurality's position inadequately served "society's interest in protecting private individuals from being thrust into the public eye by the distorting light of defamation." Ibid. MR. JUSTICE MARSHALL therefore reached the conclusion, also reached by Mr. Justice Harlan, that the States should be "essentially free to continue the evolution of the common law of defamation and to articulate whatever fault standard best suits the State's need," so long as the States did not impose liability without fault. Id. at 403 U. S. 86 . The principal point of disagreement among the three dissenters concerned punitive damages. Whereas Mr. Justice Harlan thought that the States could allow punitive damages in amounts bearing "a reasonable and purposeful relationship to the actual harm done . . . ," id. at 403 U. S. 75 , MR. JUSTICE MARSHALL concluded that the size and unpredictability of jury awards of exemplary damages unnecessarily exacerbated the problems of media self-censorship, and that such damages should therefore be forbidden. III We begin with the common ground. Under the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but Page 418 U. S. 340 on the competition of other ideas. [ Footnote 8 ] But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in "uninhibited, robust? and wide-open" debate on public issues. New York Times Co. v. Sullivan, 376 U.S. at 376 U. S. 270 . They belong to that category of utterances which "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky v. New Hampshire, 315 U. S. 568 , 315 U. S. 572 (1942). Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate. As James Madison pointed out in the Report on the Virginia Resolutions of 1798: "Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press." 4 J. Elliot, Debates on the Federal Constitution of 1787, p. 571 (1876). And punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press. Our decisions recognize that a rule of strict liability that compels a publisher or broadcaster to guarantee the accuracy of his factual assertions may lead to intolerable self-censorship. Allowing the media to avoid liability only by proving the truth of all injurious statements does not accord adequate protection to First Amendment liberties. As the Court stated in New York Times Co. v. Sullivan, supra, at 376 U. S. 279 : "Allowance of the defense of truth, Page 418 U. S. 341 with the burden of proving it on the defendant, does not mean that only false speech will be deterred." The First Amendment requires that we protect some falsehood in order to protect speech that matters. The need to avoid self-censorship by the news media is, however, not the only societal value at issue. If it were, this Court would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation. See New York Times Co. v. Sullivan, supra, at 376 U. S. 293 (Black, J., concurring); Garrison v. Louisiana, 379 U.S. at 379 U. S. 80 (DOUGLAS, J., concurring); Curtis Publishing Co. v. Butts, 388 U.S. at 388 U. S. 170 (opinion of Black, J.). Such a rule would, indeed, obviate the fear that the prospect of civil liability for injurious falsehood might dissuade a timorous press from the effective exercise of First Amendment freedoms. Yet absolute protection for the communications media requires a total sacrifice of the competing value served by the law of defamation. The legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defamatory falsehood. We would not lightly require the State to abandon this purpose, for, as MR. JUSTICE STEWART has reminded us, the individual's right to the protection of his own good name "reflects no more than our basic concept of the essential dignity and worth of every human being -- a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system." Rosenblatt v. Baer, 383 U. S. 75 , 383 U. S. 92 (1966) (concurring opinion). Page 418 U. S. 342 Some tension necessarily exists between the need for a vigorous and uninhibited press and the legitimate interest in redressing wrongful injury. As Mr. Justice Harlan stated, "some antithesis between freedom of speech and press and libel actions persists, for libel remains premised on the content of speech and limits the freedom of the publisher to express certain sentiments, at least without guaranteeing legal proof of their substantial accuracy." Curtis Publishing Co. v. Butts, supra, at 388 U. S. 152 . In our continuing effort to define the proper accommodation between these competing concerns, we have been especially anxious to assure to the freedoms of speech and press that "breathing space" essential to their fruitful exercise. NAACP v. Button, 371 U. S. 415 , 371 U. S. 433 (1963). To that end, this Court has extended a measure of strategic protection to defamatory falsehood. The New York Times standard defines the level of constitutional protection appropriate to the context of defamation of a public person. Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public's attention, are properly classed as public figures and those who hold governmental office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth. This standard administers an extremely powerful antidote to the inducement to media self-censorship of the common law rule of strict liability for libel and slander. And it exacts a correspondingly high price from the victims of defamatory falsehood. Plainly, many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test. Despite this Page 418 U. S. 343 substantial abridgment of the state law right to compensation for wrongful hurt to one's reputation, the Court has concluded that the protection of the New York Times privilege should be available to publishers and broadcasters of defamatory falsehood concerning public officials and public figures. New York Times Co. v. Sullivan, supra; Curtis Publishing Co. v. Butts, supra. We think that these decisions are correct, but we do not find their holdings justified solely by reference to the interest of the press and broadcast media in immunity from liability. Rather, we believe that the New York Times rule states an accommodation between this concern and the limited state interest present in the context of libel actions brought by public persons. For the reasons stated below, we conclude that the state interest in compensating injury to the reputation of private individuals requires that a different rule should obtain with respect to them. Theoretically, of course, the balance between the needs of the press and the individual's claim to compensation for wrongful injury might be struck on a case-by-case basis. As Mr. Justice Harlan hypothesized, "it might seem, purely as an abstract matter, that the most utilitarian approach would be to scrutinize carefully every jury verdict in every libel case, in order to ascertain whether the final judgment leaves fully protected whatever First Amendment values transcend the legitimate state interest in protecting the particular plaintiff who prevailed." Rosenbloom v. Metromedia, Inc., 403 U.S. at 403 U. S. 63 (footnote omitted). But this approach would lead to unpredictable results and uncertain expectations, and it could render our duty to supervise the lower courts unmanageable. Because an ad hoc resolution of the competing interests at stake in each particular case is not feasible, we must lay down broad rules of general Page 418 U. S. 344 application: such rules necessarily treat alike various cases involving differences as well as similarities. Thus, it is often true that not all of the considerations which justify adoption of a given rule will obtain in each particular case decided under its authority. With that caveat, we have no difficulty in distinguishing among defamation plaintiffs. The first remedy of any victim of defamation is self-help -- using available opportunities to contradict the lie or correct the error, and thereby to minimize its adverse impact on reputation. Public officials and public figures usually enjoy significantly greater access to the channels of effective communication, and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. [ Footnote 9 ] Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater. More important than the likelihood that private individuals will lack effective opportunities for rebuttal, there is a compelling normative consideration underlying the distinction between public and private defamation plaintiffs. An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case. And society's interest in the officers of government is not strictly limited to the formal discharge of official duties. As the Court pointed out in Garrison v. Louisiana, 379 U.S. at 379 U. S. 77 , the public's interest extends to "anything Page 418 U. S. 345 which might touch on an official's fitness for office. . . . Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official's private character." Those classed as public figures stand in a similar position. Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare. For the most part, those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment. Even if the foregoing generalities do not obtain in every instance, the communications media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them. No such assumption is justified with respect to a private individual. He has not accepted public office or assumed an "influential role in ordering society." Curtis Publishing Co. v. Butts, 388 U.S. at 388 U. S. 164 (Warren, C.J., concurring in result). He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery. For these reasons, we conclude that the States should retain substantial latitude in their efforts to enforce a Page 418 U. S. 346 legal remedy for defamatory falsehood injurious to the reputation of a private individual. The extension of the New York Times test proposed by the Rosenbloom plurality would abridge this legitimate state interest to a degree that we find unacceptable. And it would occasion the additional difficulty of forcing state and federal judges to decide on an ad hoc basis which publications address issues of "general or public interest" and which do not -- to determine, in the words of MR. JUSTICE MARSHALL, "what information is relevant to self-government." Rosenbloom v. Metromedia, Inc., 403 U.S. at 403 U. S. 79 . We doubt the wisdom of committing this task to the conscience of judges. Nor does the Constitution require us to draw so thin a line between the drastic alternatives of the New York Times privilege and the common law of strict liability for defamatory error. The "public or general interest" test for determining the applicability of the New York Times standard to private defamation actions inadequately serves both of the competing values at stake. On the one hand, a private individual whose reputation is injured by defamatory falsehood that does concern an issue of public or general interest has no recourse unless he can meet the rigorous requirements of New York Times. This is true despite the factors that distinguish the state interest in compensating private individuals from the analogous interest involved in the context of public persons. On the other hand, a publisher or broadcaster of a defamatory error which a court deems unrelated to an issue of public or general interest may be held liable in damages even if it took every reasonable precaution to ensure the accuracy of its assertions. And liability may far exceed compensation for any actual injury to the plaintiff, for the jury may be permitted to presume damages without proof of loss and even to award punitive damages. Page 418 U. S. 347 We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual. [ Footnote 10 ] This approach provides a more equitable Page 418 U. S. 348 boundary between the competing concerns involved here. It recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation. At least this conclusion obtains where, as here, the substance of the defamatory statement "makes substantial danger to reputation apparent." [ Footnote 11 ] This phrase places in perspective the conclusion we announce today. Our inquiry would involve considerations somewhat different from those discussed above if a State purported to condition civil liability on a factual misstatement whose content did not warn a reasonably prudent editor or broadcaster of its defamatory potential. Cf. Time, Inc. v. Hill, 385 U. S. 374 (1967). Such a case is not now before us, and we intimate no view as to its proper resolution. IV Our accommodation of the competing values at stake in defamation suits by private individuals allows the States to impose liability on the publisher or broadcaster of defamatory falsehood on a less demanding showing than that required by New York Times. This conclusion is not based on a belief that the considerations which prompted the adoption of the New York Times privilege for defamation of public officials and its extension to public figures are wholly inapplicable to the context of private individuals. Rather, we endorse this approach in recognition of the strong and legitimate state interest in compensating private individuals for injury to reputation. Page 418 U. S. 349 But this countervailing state interest extends no further than compensation for actual injury. For the reasons stated below, we hold that the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth. The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. Juries may award substantial sums as compensation for supposed damage to reputation without any proof that such harm actually occurred. The largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms. Additionally, the doctrine of presumed damages invites juries to punish unpopular opinion, rather than to compensate individuals for injury sustained by the publication of a false fact. More to the point, the States have no substantial interest in securing for plaintiffs such as this petitioner gratuitous awards of money damages far in excess of any actual injury. We would not, of course, invalidate state law simply because we doubt its wisdom, but here we are attempting to reconcile state law with a competing interest grounded in the constitutional command of the First Amendment. It is therefore appropriate to require that state remedies for defamatory falsehood reach no farther than is necessary to protect the legitimate interest involved. It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury. We Page 418 U. S. 350 need not define "actual injury," as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury. We also find no justification for allowing awards of punitive damages against publishers and broadcasters held liable under state-defined standards of liability for defamation. In most jurisdictions jury discretion over the amounts awarded is limited only by the gentle rule that they not be excessive. Consequently, juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused. And they remain free to use their discretion selectively to punish expressions of unpopular views. Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger of media self-censorship, but, unlike the former rule, punitive damages are wholly irrelevant to the state interest that justifies a negligence standard for private defamation actions. They are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence. In short, the private defamation plaintiff who establishes liability under a less demanding standard than that stated by New York Times may recover only such damages as are sufficient to compensate him for actual injury. Page 418 U. S. 351 V Notwithstanding our refusal to extend the New York Times privilege to defamation of private individuals, respondent contends that we should affirm the judgment below on the ground that petitioner is either a public official or a public figure. There is little basis for the former assertion. Several years prior to the present incident, petitioner had served briefly on housing committees appointed by the mayor of Chicago, but, at the time of publication, he had never held any remunerative governmental position. Respondent admits this, but argues that petitioner's appearance at the coroner's inquest rendered him a " de facto public official." Our cases recognize no such concept. Respondent's suggestion would sweep all lawyers under the New York Times rule as officers of the court, and distort the plain meaning of the "public official" category beyond all recognition. We decline to follow it. Respondent's characterization of petitioner as a public figure raises a different question. That designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy, and thereby becomes a public figure for a limited range of issues. In either case, such persons assume special prominence in the resolution of public questions. Petitioner has long been active in community and professional affairs. He has served as an officer of local civic groups and of various professional organizations, and he has published several books and articles on legal subjects. Although petitioner was consequently well known in some circles, he had achieved no general fame Page 418 U. S. 352 or notoriety in the community. None of the prospective jurors called at the trial had ever heard of petitioner prior to this litigation, and respondent offered no proof that this response was atypical of the local population. We would not lightly assume that a citizen's participation in community and professional affairs rendered him a public figure for all purposes. Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. It is preferable to reduce the public figure question to a more meaningful context by looking to the nature and extent of an individual's participation in the particular controversy giving rise to the defamation. In this context, it is plain that petitioner was not a public figure. He played a minimal role at the coroner's inquest, and his participation related solely to his representation of a private client. He took no part in the criminal prosecution of Officer Nuccio. Moreover, he never discussed either the criminal or civil litigation with the press, and was never quoted as having done so. He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public's attention in an attempt to influence its outcome. We are persuaded that the trial court did not err in refusing to characterize petitioner as a public figure for the purpose of this litigation. We therefore conclude that the New York Times standard is inapplicable to this case, and that the trial court erred in entering judgment for respondent. Because the jury was allowed to impose liability without fault and was permitted to presume damages without proof of injury, a new trial is necessary. We reverse and remand for further proceedings in accord with this opinion. It is so ordered. Page 418 U. S. 353 [ Footnote 1 ] Petitioner filed a cross-motion for summary judgment on grounds not specified in the record. The court denied petitioner's cross-motion without discussion in a memorandum opinion of September 16, 1970. [ Footnote 2 ] 322 F. Supp. 997 (1970). Petitioner asserts that the entry of judgment n.o.v. on the basis of his failure to show knowledge of falsity or reckless disregard for the truth constituted unfair surprise and deprived him of a full and fair opportunity to prove "actual malice" on the part of respondent. This contention is not supported by the record. It is clear that the trial court gave petitioner no reason to assume that the New York Times privilege would not be available to respondent. The court's memorandum opinion denying respondent's pretrial motion for summary judgment does not state that the New York Times standard was inapplicable to this case. Rather, it reveals that the trial judge thought it possible for petitioner to make a factual showing sufficient to overcome respondent's claim of constitutional privilege. It states in part: "When there is a factual dispute as to the existence of actual malice, summary judgment is improper." " * * * *" "In the instant case, a jury might infer from the evidence that [respondent's] failure to investigate the truth of the allegations, coupled with its receipt of communications challenging the factual accuracy of this author in the past, amounted to actual malice, that is, 'reckless disregard' of whether the allegations were true or not. New York Times \[Co.\] v. Sullivan , [ 376 U.S. 254 ,] 376 U. S. 279 -280 [(1964)]." Mem.Op., Sept. 16, 1970. Thus, petitioner knew or should have known that the outcome of the trial might hinge on his ability to show by clear and convincing evidence that respondent acted with reckless disregard for the truth. And this question remained open throughout the trial. Although the court initially concluded that the applicability of the New York Times rule depended on petitioner's status as a public figure, the court did not decide that petitioner was not a public figure until all the evidence had been presented. Thus, petitioner had every opportunity, indeed incentive, to prove "reckless disregard" if he could, and he, in fact, attempted to do so. The record supports the observation by the Court of Appeals that petitioner "did present evidence of malice (both the 'constitutional' and the 'ill will' type) to support his damage claim and no such evidence was excluded. . . ." 471 F.2d 801, 807 n. 15 (1972). [ Footnote 3 ] The court stated: "[Petitioner's] considerable stature as a lawyer, author, lecturer, and participant in matters of public import undermine[s] the validity of the assumption that he is not a 'public figure' as that term has been used by the progeny of New York Times. Nevertheless, for purposes of decision, we make that assumption and test the availability of the claim of privilege by the subject matter of the article." Id. at 805. [ Footnote 4 ] In the Court of Appeals petitioner made an ingenious but unavailing attempt to show that respondent's defamatory charge against him concerned no issue of public or general interest. He asserted that the subject matter of the article was the murder trial of Officer Nuccio, and that he did not participate in that proceeding. Therefore, he argued, even if the subject matter of the article generally were protected by the New York Times privilege, under the opinion of the Rosenbloom plurality, the defamatory statements about him were not. The Court of Appeals rejected this argument. It noted that the accusations against petitioner played an integral part in respondent's general thesis of a nationwide conspiracy to harass the police: "[W]e may also assume that the article's basic thesis is false. Nevertheless, under the reasoning of New York Times Co. v. Sullivan, even a false statement of fact made in support of a false thesis is protected unless made with knowledge of its falsity or with reckless disregard of its truth or falsity. It would undermine the rule of that case to permit the actual falsity of a statement to determine whether or not its publisher is entitled to the benefit of the rule." "If, therefore, we put to one side the false character of the article and treat it as though its contents were entirely true, it cannot be denied that the comments about [petitioner] were integral to its central thesis. They must be tested under the New York Times standard." 471 F.2d at 806. We think that the Court of Appeals correctly rejected petitioner's argument. Its acceptance might lead to arbitrary imposition of liability on the basis of an unwise differentiation among kinds of factual misstatements. The present case illustrates the point. Respondent falsely portrayed petitioner as an architect of the criminal prosecution against Nuccio. On its face, this inaccuracy does not appear defamatory. Respondent also falsely labeled petitioner a "Leninist" and a "Communist-fronter." These accusations are generally considered defamatory. Under petitioner's interpretation of the "public or general interest" test, respondent would have enjoyed a constitutional privilege to publish defamatory falsehood if petitioner had, in fact, been associated with the criminal prosecution. But this would mean that the seemingly innocuous mistake of confusing petitioner's role in the litigation against Officer Nuccio would destroy the privilege otherwise available for calling petitioner a Communist-fronter. Thus, respondent's privilege to publish statements whose content should have alerted it to the danger of injury to reputation would hinge on the accuracy of statements that carried with them no such warning. Assuming that none of these statements was published with knowledge of falsity or with reckless disregard for the truth, we see no reason to distinguish among the inaccuracies. [ Footnote 5 ] MR. JUSTICE DOUGLAS did not participate in the consideration or decision of Rosenbloom. [ Footnote 6 ] New York Times and later cases explicated the meaning of the new standard. In New York Times, the Court held that, under the circumstances, the newspaper's failure to check the accuracy of the advertisement against news stories in its own files did not establish reckless disregard for the truth. 376 U.S. at 376 U. S. 287 -288. In St. Amant v. Thompson, 390 U. S. 727 , 390 U. S. 731 (1968), the Court equated reckless disregard of the truth with subjective awareness of probable falsity: "There must be sufficient evidence to permit the conclusion that the defendant, in fact, entertained serious doubts as to the truth of his publication." In Beckley Newspapers Corp. v. Hanks, 389 U. S. 81 (1967), the Court emphasized the distinction between the New York Times test of knowledge of falsity or reckless disregard of the truth and "actual malice" in the traditional sense of ill will. Garrison v. Louisiana, 379 U. S. 64 (1964), made plain that the new standard applied to criminal libel laws as well as to civil actions, and that it governed criticism directed at "anything which might touch on an official's fitness for office." Id. at 379 U. S. 77 . Finally, in Rosenblatt v. Baer, 383 U. S. 75 , 383 U. S. 85 (1966), the Court stated that "the 'public official' designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs." In Time, Inc. v. Hill, 385 U. S. 374 (1967), the Court applied the New York Times standard to actions under an unusual state statute. The statute did not create a cause of action for libel. Rather, it provided a remedy for unwanted publicity. Although the law allowed recovery of damages for harm caused by exposure to public attention, rather than by factual inaccuracies, it recognized truth as a complete defense. Thus, nondefamatory factual errors could render a publisher liable for something akin to invasion of privacy. The Court ruled that the defendant in such an action could invoke the New York Times privilege regardless of the fame or anonymity of the plaintiff. Speaking for the Court, MR. JUSTICE BRENNAN declared that this holding was not an extension of New York Times, but rather a parallel line of reasoning applying that standard to this discrete context: "This is neither a libel action by a private individual nor a statutory action by a public official. Therefore, although the First Amendment principles pronounced in New York Times guide our conclusion, we reach that conclusion only by applying these principles in this discrete context. It therefore serves no purpose to distinguish the facts here from those in New York Times. Were this a libel action, the distinction which has been suggested between the relative opportunities of the public official and the private individual to rebut defamatory charges might be germane. And the additional state interest in the protection of the individual against damage to his reputation would be involved. Cf. Rosenblatt v. Baer, 383 U. S. 75 , 383 U. S. 91 (STEWART, J., concurring)." 385 U.S. at 385 U. S. 390 -391. [ Footnote 7 ] Professor Kalven once introduced a discussion of these cases with the apt heading, "You Can't Tell the Players without a Score Card." Kalven, The Reasonable Man and the First Amendment: Hill, Butts, and Walker, 1967 Sup.Ct.Rev. 267, 275. Only three other Justices joined Mr. Justice Harlan's analysis of the issues involved. In his concurring opinion, Mr. Chief Justice Warren stated the principle for which these cases stand -- that the New York Times test reaches both public figures and public officials. MR. JUSTICE BRENNAN and MR. JUSTICE WHITE agreed with the Chief Justice on that question. Mr. Justice Black and MR. JUSTICE DOUGLAS reiterated their view that publishers should have an absolute immunity from liability for defamation, but they acquiesced in the Chief Justice's reasoning in order to enable a majority of the Justices to agree on the question of the appropriate constitutional privilege for defamation of public figures. [ Footnote 8 ] As Thomas Jefferson made the point in his first Inaugural address: "If there be any among us who would wish to dissolve this Union or change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it." [ Footnote 9 ] Of course, an opportunity for rebuttal seldom suffices to undo harm of defamatory falsehood. Indeed, the law of defamation is rooted in our experience that the truth rarely catches up with a lie. But the fact that the self-help remedy of rebuttal, standing alone, is inadequate to its task does not mean that it is irrelevant to our inquiry. [ Footnote 10 ] Our caveat against strict liability is the prime target of MR. JUSTICE WHITE's dissent. He would hold that a publisher or broadcaster may be required to prove the truth of a defamatory statement concerning a private individual and, failing such proof, that the publisher or broadcaster may be held liable for defamation even though he took every conceivable precaution to ensure the accuracy of the offending statement prior to its dissemination. Post at 418 U. S. 388 -392. In MR. JUSTICE WHITE's view, one who publishes a statement that later turns out to be inaccurate can never be "without fault" in any meaningful sense, for "[i]t is he who circulated a falsehood that he was not required to publish. " Post at 418 U. S. 392 (emphasis added). MR. JUSTICE WHITE characterizes New York Times Co. v. Sullivan, 376 U. S. 254 (1964), as simply a case of seditious libel. Post at 418 U. S. 387 . But that rationale is certainly inapplicable to Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967), where MR. JUSTICE WHITE joined four other Members of the Court to extend the "knowing or reckless falsity" standard to media defamation of persons identified as public figures but not connected with the Government. MR. JUSTICE WHITE now suggests that he would abide by that vote, post at 418 U. S. 398 , but the full thrust of his dissent -- as we read it -- contradicts that suggestion. Finally, in Rosenbloom v. Metromedia, Inc., 403 U. S. 29 , 403 U. S. 57 (1971), MR. JUSTICE WHITE voted to apply the New York Times privilege to media defamation of an individual who was neither a public official nor a public figure. His opinion states that the "knowing or reckless falsity" standard should apply to media "comment upon the official actions of public servants," id. at 403 U. S. 62 , including defamatory falsehood about a person arrested by the police. If adopted by the Court, this conclusion would significantly extend the New York Times privilege. MR. JUSTICE WHITE asserts that our decision today "trivializes and denigrates the interest in reputation," Miami Herald Publishing Co. v. Tornillo, ante, at 418 U. S. 262 (concurring opinion), that it "scuttle[s] the libel laws of the States in . . . wholesale fashion" and renders ordinary citizens "powerless to protect themselves." Post at 418 U. S. 370 . In light of the progressive extension of the "knowing or reckless falsity" requirement detailed in the preceding paragraph, one might have viewed today's decision allowing recovery under any standard save strict liability as a more generous accommodation of the state interest in comprehensive reputational injury to private individuals than the law presently affords. [ Footnote 11 ] Curtis Publishing Co. v. Butts, supra, at 388 U. S. 155 . MR. JUSTICE BLACKMUN, concurring. I joined MR. JUSTICE BRENNAN's opinion for the plurality in Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971). I did so because I concluded that, given New York Times Co. v. Sullivan, 376 U. S. 254 (1964), and its progeny (noted by the Court, ante at 418 U. S. 334 -336, n. 6), as well as Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U. S. 130 (1967), the step taken in Rosenbloom, extending the New York Times doctrine to an event of public or general interest, was logical and inevitable. A majority of the Court evidently thought otherwise, as is particularly evidenced by MR. JUSTICE WHITE's separate concurring opinion there and by the respective dissenting opinions of Mr. Justice Harlan and of MR. JUSTICE MARSHALL joined by MR. JUSTICE STEWART. The Court today refuses to apply New York Times to the private individual, as contrasted with the public official and the public figure. It thus withdraws to the factual limits of the pre- Rosenbloom cases. It thereby fixes the outer boundary of the New York Times doctrine, and says that, beyond that boundary, a State is free to define for itself the appropriate standard of media liability so long as it does not impose liability without fault. As my joinder in Rosenbloom's plurality opinion would intimate, I sense some illogic in this. The Court, however, seeks today to strike a balance between competing values where necessarily uncertain assumptions about human behavior color the result. Although the Court's opinion in the present case departs from the rationale of the Rosenbloom plurality, in that the Court now conditions a libel action by a private person upon a showing of negligence, as contrasted with a showing of willful or reckless disregard, I am willing to Page 418 U. S. 354 join, and do join, the Court's opinion and its judgment for two reasons: 1. By removing the specters of presumed and punitive damages in the absence of New York Times malice, the Court eliminates significant and powerful motives for self-censorship that otherwise are present in the traditional libel action. By so doing, the Court leaves what should prove to be sufficient and adequate breathing space for a vigorous press. What the Court has done, I believe, will have little, if any, practical effect on the functioning of responsible journalism. 2. The Court was sadly fractionated in Rosenbloom. A result of that kind inevitably leads to uncertainty. I feel that it is of profound importance for the Court to come to rest in the defamation area and to have a clearly defined majority position that eliminates the unsureness engendered by Rosenbloom's diversity. If my vote were not needed to create a majority, I would adhere to my prior view. A definitive ruling, however, is paramount. See Curtis Publishing Co. v. Butts, 388 U.S. at 388 U. S. 170 (Black, J., concurring); Time, Inc. v. Hill, 385 U. S. 374 , 385 U. S. 398 (1967) (Black, J., concurring); United States v. Vuitch, 402 U. S. 62 , 402 U. S. 97 (1971) (separate statement). For these reasons, I join the opinion and the judgment of the Court. MR. CHIEF JUSTICE BURGER, dissenting. The doctrines of the law of defamation have had a gradual evolution primarily in the state courts. In New York Times Co. v. Sullivan, 376 U. S. 254 (1964), and its progeny this Court entered this field. Agreement or disagreement with the law as it has evolved to this time does not alter the fact that it has been orderly development with a consistent basic rationale. In today's opinion, the Court abandons the traditional Page 418 U. S. 355 thread so far as the ordinary private citizen is concerned, and introduces the concept that the media will be liable for negligence in publishing defamatory statements with respect to such persons. Although I agree with much of what MR. JUSTICE WHITE states, I do not read the Court's new doctrinal approach in quite the way he does. I am frank to say I do not know the parameters of a "negligence" doctrine as applied to the news media. Conceivably this new doctrine could inhibit some editors, as the dissents of MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN suggest. But I would prefer to allow this area of law to continue to evolve as it has up to now with respect to private citizens, rather than embark on a new doctrinal theory which has no jurisprudential ancestry. The petitioner here was performing a professional representative role as an advocate in the highest tradition of the law, and, under that tradition, the advocate is not to be invidiously identified with his client. The important public policy which underlies this tradition -- the right to counsel -- would be gravely jeopardized if every lawyer who takes an "unpopular" case, civil or criminal, would automatically become fair game for irresponsible reporters and editors who might, for example, describe the lawyer as a "mob mouthpiece" for representing a client with a serious prior criminal record, or as an "ambulance chaser" for representing a claimant in a personal injury action. I would reverse the judgment of the Court of Appeals and remand for reinstatement of the verdict of the jury and the entry of an appropriate judgment on that verdict. MR. JUSTICE DOUGLAS, dissenting. The Court describes this case as a return to the struggle of "defin[ing] the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment." It is indeed a struggle, once described by Mr. Justice Black as "the same Page 418 U. S. 356 quagmire" in which the Court "is now helplessly struggling in the field of obscenity." Curtis Publishing Co. v. Butts, 388 U. S. 130 , 388 U. S. 171 (concurring opinion). I would suggest that the struggle is a quite hopeless one, for, in light of the command of the First Amendment, no "accommodation" of its freedoms can be "proper" except those made by the Framers themselves. Unlike the right of privacy which, by the terms of the Fourth Amendment, must be accommodated with reasonable searches and seizures and warrants issued by magistrates, the rights of free speech and of a free press were protected by the Framers in verbiage whose proscription seems clear. I have stated before my view that the First Amendment would bar Congress from passing any libel law. [ Footnote 2/1 ] This was the view held by Thomas Jefferson, [ Footnote 2/2 ] and it is one Congress has never challenged through enactment of a civil libel statute. The sole congressional attempt at this variety of First Amendment muzzle was in the Sedition Act of 1798 -- criminal libel act never tested in this Court and one which expired, by its terms, three years after enactment. As President, Thomas Jefferson pardoned those who were convicted under the Act, and fines levied in its prosecution were repaid by Act of Congress. [ Footnote 2/3 ] The general Page 418 U. S. 357 consensus was that the Act constituted a regrettable legislative exercise plainly in violation of the First Amendment. [ Footnote 2/4 ] With the First Amendment made applicable to the States through the Fourteenth, [ Footnote 2/5 ] I do not see how States have any more ability to "accommodate" freedoms of speech or of the press than does Congress. This is true whether the form of the accommodation is civil or criminal, since "[w]hat a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel." New York Times Co. v. Sullivan, 376 U. S. 254 , 376 U. S. 277 . Like Congress, States are without power "to use a civil libel law or any other law to impose damages for merely discussing public affairs." Id. at 376 U. S. 295 (Black, J., concurring). [ Footnote 2/6 ] Page 418 U. S. 358 Continued recognition of the possibility of state libel suits for public discussion of public issues leaves the freedom of speech honored by the Fourteenth Amendment a diluted version of First Amendment protection. This view is only possible if one accepts the position that the First Amendment is applicable to the States only through the Due Process Clause of the Fourteenth, due process freedom of speech being only that freedom which this Court might deem to be "implicit in the concept of ordered liberty." [ Footnote 2/7 ] But the Court frequently has rested Page 418 U. S. 359 state free speech and free press decisions on the Fourteenth Amendment generally, [ Footnote 2/8 ] rather than on the Due Process Clause alone. The Fourteenth Amendment speaks not only of due process, but also of "privileges and immunities" of United States citizenship. I can conceive of no privilege or immunity with a higher claim to recognition against state abridgment than the freedoms of speech and of the press. In our federal system, we are all subject to two governmental regimes, and freedoms of speech and of the press protected against the infringement of only one are quite illusory. The identity of the oppressor is, I would think, a matter of relative indifference to the oppressed. There can be no doubt that a State impinges upon free and open discussion when it sanctions the imposition of damages for such discussion through its civil libel laws. Discussion of public affairs is often marked by highly charged emotions, and jurymen, not unlike us all, are subject to those emotions. It is indeed this very type of speech which is the reason for the First Amendment, since speech which arouses little emotion is little in need of protection. The vehicle for publication in this case was the American Opinion, a most controversial periodical which disseminates the views of the John Birch Society, an organization which many deem to be Page 418 U. S. 360 quite offensive. The subject matter involved "Communist plots," "conspiracies against law enforcement agencies," and the killing of a private citizen by the police. With any such amalgam of controversial elements pressing upon the jury, a jury determination, unpredictable in the most neutral circumstances, becomes for those who venture to discuss heated issues, a virtual roll of the dice separating them from liability for often massive claims of damage. It is only the hardy publisher who will engage in discussion in the face of such risk, and the Court's preoccupation with proliferating standards in the area of libel increases the risks. It matters little whether the standard be articulated as "malice" or "reckless disregard of the truth" or "negligence," for jury determinations by any of those criteria are virtually unreviewable. This Court, in its continuing delineation of variegated mantles of First Amendment protection, is, like the potential publisher, left with only speculation on how jury findings were influenced by the effect the subject matter of the publication had upon the minds and viscera of the jury. The standard announced today leaves the States free to "define for themselves the appropriate standard of liability for a publisher or broadcaster" in the circumstances of this case. This, of course, leaves the simple negligence standard as an option, with the jury free to impose damages upon a finding that the publisher failed to act as "a reasonable man." With such continued erosion of First Amendment protection, I fear that it may well be the reasonable man who refrains from speaking. Since, in my view, the First and Fourteenth Amendments prohibit the imposition of damages upon respondent for this discussion of public affairs, I would affirm the judgment below. Page 418 U. S. 361 [ Footnote 2/1 ] See, e.g., Rosenblatt v. Baer, 383 U. S. 75 , 383 U. S. 90 (concurring). [ Footnote 2/2 ] In 1798, Jefferson stated: "[The First Amendment] thereby guard[s] in the same sentence, and under the same words, the freedom of religion, of speech, and of the press insomuch, that whatever violates either throws down the sanctuary which covers the others, and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. . . ." 8 The Works of Thomas Jefferson 464-465 (Ford ed.1904) (emphasis added). [ Footnote 2/3 ] See, e.g., Act of July 4, 1840, c. 45, 6 Stat. 802, accompanied by H.R.Rep. No. 86, 26th Cong., 1st Sess. (1840). [ Footnote 2/4 ] Senator Calhoun, in reporting to Congress, assumed the invalidity of the Act to be a matter "which no one now doubts." Report with Senate Bill No. 122, S.Doc. No. 118, 24th Cong., 1st Sess., 3 (1836). [ Footnote 2/5 ] See Stromberg v. California, 283 U. S. 359 , 283 U. S. 368 -369. [ Footnote 2/6 ] Since this case involves a discussion of public affairs, I need not decide at this point whether the First Amendment prohibits all libel actions. "An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment." New York Times Co. v. Sullivan, 376 U. S. 254 , 376 U. S. 297 (Black, J., concurring) (emphasis added). But "public affairs" includes a great deal more than merely political affairs. Matters of science, economics, business, art, literature, etc., are all matters of interest to the general public. Indeed, any matter of sufficient general interest to prompt media coverage may be said to be a public affair. Certainly police killings, "Communist conspiracies," and the like qualify. A more regressive view of free speech has surfaced, but it has thus far gained no judicial acceptance. Solicitor General Bork has stated: "Constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic. Moreover, within that category of speech we ordinarily call political, there should be no constitutional obstruction to laws making criminal any speech that advocates forcible overthrow of the government or the violation of any law." Bork, Neutral Principles and Some First Amendment Problems, 47 Ind.L.J. 1, 20 (1971). According to this view, Congress, upon finding a painting aesthetically displeasing or a novel poorly written or a revolutionary new scientific theory unsound could constitutionally prohibit exhibition of the painting, distribution of the book or discussion of the theory. Congress might also proscribe the advocacy of the violation of any law, apparently without regard to the law's constitutionality. Thus, were Congress to pass a blatantly invalid law such as one prohibiting newspaper editorials critical of the Government, a publisher might be punished for advocating its violation. Similarly, the late Dr. Martin Luther King, Jr., could have been punished for advising blacks to peacefully sit in the front of buses or to ask for service in restaurants segregated by law. [ Footnote 2/7 ] See Palko v. Connecticut, 302 U. S. 319 , 302 U. S. 325 . As Mr. Justice Black has noted, by this view, the test becomes "whether the government has an interest in abridging the right involved, and, if so, whether that interest is of sufficient importance, in the opinion of a majority of the Supreme Court, to justify the government's action in doing so. Such a doctrine can be used to justify almost any government suppression of First Amendment freedoms. As I have stated many times before, I cannot subscribe to this doctrine, because I believe that the First Amendment's unequivocal command that there shall be no abridgement of the rights of free speech shows that the men who drafted our Bill of Rights did all the 'balancing' that was to be done in this field." H. Black, A Constitutional Faith 52 (1969). [ Footnote 2/8 ] See, e.g., Bridges v. California, 314 U. S. 252 , 314 U. S. 263 n. 6 (Black, J.); Murdock v. Pennsylvania, 319 U. S. 105 , 319 U. S. 108 (DOUGLAS, J.); Saia v. New York, 334 U. S. 558 , 334 U. S. 560 (DOUGLAS, J.); Talley v. California, 362 U. S. 60 , 362 U. S. 62 (Black, J.); DeGregory v. Attorney General of New Hampshire, 383 U. S. 825 , 383 U. S. 828 (DOUGIAS, J.); Elfbrant v. Russell, 384 U. S. 11 , 384 U. S. 18 (DOUGLAS, J.); Mills v. Alabama, 384 U. S. 214 , 384 U. S. 218 (Black, J.); Mine Workers v. Illinois Bar Assn., 389 U. S. 217 , 389 U. S. 221 -222, and n. 4 (Black, J.). MR. JUSTICE BRENNAN, dissenting. I agree with the conclusion, expressed in 418 U. S. that, at the time of publication of respondent's article, petitioner could not properly have been viewed as either a "public official" or "public figure"; instead, respondent's article, dealing with an alleged conspiracy to discredit local police forces, concerned petitioner's purported involvement in "an event of public or general interest." Roosenbloom v. Metromedia, Inc., 403 U. S. 29 , 403 U. S. 31 -32 (1971); see ante at 418 U. S. 331 -332, n. 4. I cannot agree, however, that free and robust debate-- so essential to the proper functioning of our system of government -- is permitted adequate "breathing space," NAACP v. Button, 371 U. S. 415 , 371 U. S. 433 (1963), when, as the Court holds, the States may impose all but strict liability for defamation if the defamed party is a private person and "the substance of the defamatory statement makes substantial danger to reputation apparent.'" Ante at 418 U. S. 348 . [ Footnote 3/1 ] I adhere to my view expressed in Rosenbloom v. Metromedia, Inc., supra, that we strike the proper accommodation between avoidance of media self-censorship and protection of individual reputations only when we require States to apply the New York Times Co. v. Sullivan, 376 U. S. 254 (1964), "knowing or reckless falsity" standard in civil libel actions concerning media reports of the involvement of private individuals in events of public or general interest. The Court does not hold that First Amendment guarantees do not extend to speech concerning private persons' involvement in events of public or general interest. It recognizes that self-governance in this country perseveres because of our "profound national commitment Page 418 U. S. 362 to the principle that debate on public issues should be uninhibited, robust, and wide-open." Id. at 376 U. S. 270 (emphasis added). Thus, guarantees of free speech and press necessarily reach "far more than knowledge and debate about the strictly official activities of various levels of government," Rosenbloom v. Metromedia, Inc., supra, at 403 U. S. 41 ; for "[f]reedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period." Thornhill v. Alabama, 310 U. S. 88 , 310 U. S. 102 (1940). The teaching to be distilled from our prior cases is that, while public interest in events may at times be influenced by the notoriety of the individuals involved, "[t]he public's primary interest is, in the event[,] . . . the conduct of the participant and the content, effect, and significance of the conduct. . . ." Rosenbloom, supra, at 403 U. S. 43 . Matters of public or general interest do not "suddenly become less so merely because a private individual is involved, or because, in some sense, the individual did not voluntarily' choose to become involved." Ibid. See Time, Inc. v. Hill, 385 U. S. 374 , 385 U. S. 388 (1967). Although acknowledging that First Amendment values are of no less significance when media reports concern private persons' involvement in matters of public concern, the Court refuses to provide, in such cases, the same level of constitutional protection that has been afforded the media in the context of defamation of public persons. The accommodation that this Court has established between free speech and libel laws in cases involving public officials and public figures -- that defamatory falsehood be shown by clear and convincing evidence to have been published with knowledge of falsity or with reckless disregard of truth -- is not apt, the Court holds because Page 418 U. S. 363 the private individual does not have the same degree of access to the media to rebut defamatory comments as does the public person, and he has not voluntarily exposed himself to public scrutiny. While these arguments are forcefully and eloquently presented, I cannot accept them, for the reasons I stated in Rosenbloom: "The New York Times standard was applied to libel of a public official or public figure to give effect to the [First] Amendment's function to encourage ventilation of public issues, not because the public official has any less interest in protecting his reputation than an individual in private life. While the argument that public figures need less protection because they can command media attention to counter criticism may be true for some very prominent people, even then it is the rare case where the denial overtakes the original charge. Denials, retractions, and corrections are not 'hot' news, and rarely receive the prominence of the original story. When the public official or public figure is a minor functionary, or has left the position that put him in the public eye . . . , the argument loses all of its force. In the vast majority of libels involving public officials or public figures, the ability to respond through the media will depend on the same complex factor on which the ability of a private individual depends: the unpredictable event of the media's continuing interest in the story. Thus, the unproved, and highly improbable, generalization that an as-yet [not fully defined] class of 'public figures' involved in matters of public concern will be better able to respond through the media than private individuals also involved in such matters seems too insubstantial Page 418 U. S. 364 a reed on which to rest a constitutional distinction." 403 U.S. at 403 U. S. 46 -47. Moreover, the argument that private persons should not be required to prove New York Times "knowing or reckless falsity" because they do not assume the risk of defamation by freely entering the public arena "bears little relationship either to the values protected by the First Amendment or to the nature of our society." Id. at 403 U. S. 47 . Social interaction exposes all of us to some degree of public view. This Court has observed that "[t]he risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press." Time, Inc. v. Hill, 385 U.S. at 385 U. S. 388 . Therefore, "[v]oluntarily or not, we are all 'public' men to some degree. Conversely, some aspects of the lives of even the most public men fall outside the area of matters of public or general concern. See . . . Griswold v. Connecticut, 381 U. S. 479 (1965). Thus, the idea that certain 'public' figures have voluntarily exposed their entire lives to public inspection, while private individuals have kept theirs carefully shrouded from public view is, at best, a legal fiction. In any event, such a distinction could easily produce the paradoxical result of dampening discussion of issues of public or general concern because they happen to involve private citizens while extending constitutional encouragement to discussion of aspects of the lives of 'public figures' that are not in the area of public or general concern." Rosenbloom, supra, at 403 U. S. 48 (footnote omitted). To be sure, no one commends publications which defame the good name and reputation of any person: "In an ideal world, the responsibility of the press would match the freedom and public trust given it." Id. at Page 418 U. S. 365 403 U. S. 51 . [ Footnote 3/2 ] Rather, as the Court agrees, some abuse of First Amendment freedoms is tolerated only to insure that would-be commentators on events of public or general interest are not "deterred from voicing their criticism, even though it is believed to be true and even though it is, in fact, true, because of doubt whether it can be proved in court or fear of the expense of having to do so." New York Times Co. v. Sullivan, 376 U.S. at 376 U. S. 279 . The Court's holding and a fortiori my Brother WHITE's views, see 418 U.S. 323 fn3/1|>n. 1, supra, simply deny free expression its needed "breathing space." Today's decision will exacerbate the rule of self-censorship of legitimate utterance as publishers "steer far wider of the unlawful zone," Speiser v. Randall, 357 U. S. 513 , 357 U. S. 526 (1958). We recognized in New York Times Co. v. Sullivan, supra, at 376 U. S. 279 , that a rule requiring a critic of official conduct to guarantee the truth of all of his factual contentions would inevitably lead to self-censorship when Page 418 U. S. 366 publishers, fearful of being unable to prove truth or unable to bear the expense of attempting to do so, simply eschewed printing controversial articles. Adoption, by many States, of a reasonable care standard in cases where private individuals are involved in matters of public interest -- the probable result of today's decision -- will likewise lead to self-censorship, since publishers will be required carefully to weigh a myriad of uncertain factors before publication. The reasonable care standard is "elusive," Time, Inc. v. Hill, supra, at 385 U. S. 389 ; it saddles the press with "the intolerable burden of guessing how a jury might assess the reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or portrait." Ibid. Under a reasonable care regime, publishers and broadcasters will have to make pre-publication judgments about juror assessment of such diverse considerations as the size, operating procedures, and financial condition of the newsgathering system, as well as the relative costs and benefits of instituting less frequent and more costly reporting at a higher level of accuracy. See The Supreme Court, 1970 Term, 85 Harv.L.Rev. 3, 228 (1971). Moreover, in contrast to proof by clear and convincing evidence required under the New York Times test, the burden of proof for reasonable care will doubtless be the preponderance of the evidence. "In the normal civil suit, where [the preponderance of the evidence] standard is employed, 'we view it as no more serious in general for there to be an erroneous verdict in the defendant's favor than for there to be an erroneous verdict in the plaintiff's favor.' In re Winship, 397 U. S. 358 , 397 U. S. 371 (1970) (HARLAN, J., concurring). In libel cases, however, we view an erroneous verdict for the plaintiff as most serious. Not only does it mulct the defendant for an innocent misstatement . . . but the Page 418 U. S. 367 possibility of such error, even beyond the vagueness of the negligence standard itself, would create a strong impetus toward self-censorship, which the First Amendment cannot tolerate." Rosenbloom, 403 U.S. at 403 U. S. 50 . And, most hazardous, the flexibility which inheres in the reasonable care standard will create the danger that a jury will convert it into "an instrument for the suppression of those 'vehement, caustic, and sometimes unpleasantly sharp attacks' . . . which must be protected if the guarantees of the First and Fourteenth Amendments are to prevail." Monitor Patriot Co. v. Roy, 401 U. S. 265 , 401 U. S. 277 (1971). The Court does not discount altogether the danger that jurors will punish for the expression of unpopular opinions. This probability accounts for the Court's limitation that "the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth." Ante at 418 U. S. 349 . But plainly a jury's latitude to impose liability for want of due care poses a far greater threat of suppressing unpopular views than does a possible recovery of presumed or punitive damages. Moreover, the Court's broad-ranging examples of "actual injury," including impairment of reputation and standing in the community, as well as personal humiliation, and mental anguish and suffering, inevitably allow a jury bent on punishing expression of unpopular views a formidable weapon for doing so. Finally, even a limitation of recovery to "actual injury" -- however much it reduces the size or frequency of recoveries -- will not provide the necessary elbowroom for First Amendment expression. "It is not simply the possibility of a judgment for damages that results in self-censorship. The very Page 418 U. S. 368 possibility of having to engage in litigation, an expensive and protracted process, is threat enough to cause discussion and debate to 'steer far wider of the unlawful zone,' thereby keeping protected discussion from public cognizance. . . . Too, a small newspaper suffers equally from a substantial damage award, whether the label of the award be 'actual' or 'punitive.'" Rosenbloom, supra, at 403 U. S. 52 -53. On the other hand, the uncertainties which the media face under today's decision are largely avoided by the New York Times standard. I reject the argument that my Rosenbloom view improperly commits to judges the task of determining what is and what is not an issue of "general or public interest." [ Footnote 3/3 ] I noted in Rosenbloom Page 418 U. S. 369 that performance of this task would not always be easy. Id. at 403 U. S. 49 n. 17. But surely the courts, the ultimate arbiters of all disputes concerning clashes of constitutional values, would only be performing one of their traditional functions in undertaking this duty. Also, the difficulty of this task has been substantially lessened by that "sizable body of cases, decided both before and after Rosenbloom, that have employed the concept of a matter of public concern to reach decisions in . . . cases dealing with an alleged libel of a private individual that employed a public interest standard . . . and . . . cases that applied Butts to the alleged libel of a public figure." Comment, The Expanding Constitutional Protection for the News Media from Liability for Defamation: Predictability and the New Synthesis, 70 Mich.L.Rev. 1547, 1560 (1972). The public interest is necessarily broad; any residual self-censorship that may result from the uncertain contours of the "general or public interest" concept should be of far less concern to publishers and broadcasters than that occasioned by state laws imposing liability for negligent falsehood. Since petitioner failed, after having been given a full and fair opportunity, to prove that respondent published the disputed article with knowledge of its falsity or with reckless disregard of the truth, see ante at 418 U. S. 329 -330, n. 2, I would affirm the judgment of the Court of Appeals. [ Footnote 3/1 ] A fortiori, I disagree with in Brother WHITE's view that the States should have free rein to impose strict liability for defamation in cases not involving public persons. [ Footnote 3/2 ] A respected commentator has observed that factors other than purely legal constraints operate to control the press: "Traditions, attitudes, and general rules of political conduct are far more important controls. The fear of opening a credibility gap, and thereby lessening one's influence, holds some participants in check. Institutional pressures in large organizations, including some of the press, have a similar effect; it is difficult for an organization to have an open policy of making intentionally false accusations." T. Emerson, The System of Freedom of Expression 538 (1970). Typical of the press' own ongoing self-evaluation is a proposal to establish a national news council, composed of members drawn from the public and the journalism profession, to examine and report on complaints concerning the accuracy and fairness of news reporting by the largest newsgathering sources. Twentieth Century Fund Task Force Report for a National News Council, A Free and Responsive Press (1973). See also Comment, The Expanding Constitutional Protection for the News Media from Liability for Defamation: Predictability and the New Synthesis, 70 Mich.L.Rev. 1547, 1569-1570 (1972). [ Footnote 3/3 ] The Court, taking a novel step, would not limit application of First Amendment protection to private libels involving issues of general or public interest, but would forbid the States from imposing liability without fault in any case where the substance of the defamatory statement made substantial danger to reputation apparent. As in Rosenbloom v. Metromedia, Inc., 403 U. S. 29 , 403 U. S. 44 n. 12, 403 U. S. 48 -49, n. 17 (1971), I would leave open the question of what constitutional standard, if any, applies when defamatory falsehoods are published or broadcast concerning either a private or public person's activities not within the scope of the general or public interest. Parenthetically, my Brother WHITE argues that the Court's view and mine will prevent a plaintiff -- unable to demonstrate some degree of fault -- from vindicating his reputation by securing a judgment that the publication was false. This argument overlooks the possible enactment of statutes, not requiring proof of fault, which provide for an action for retraction or for publication of a court's determination of falsity if the plaintiff is able to demonstrate that false statements have been published concerning his activities. Cf. Note, Vindication of the Reputation of a Public Official, 80 Harv.L.Rev. 1730, 1739-1747 (1967). Although it may be that questions could be raised concerning the constitutionality of such statutes, certainly nothing I have said today (and, as I read the Court's opinion, nothing said there) should be read to imply that a private plaintiff, unable to prove fault, must inevitably be denied the opportunity to secure a judgment upon the truth or falsity of statements published about him. Cf. Rosenbloom v. Metromedia, Inc., supra, at 403 U. S. 47 , and n. 15. MR. JUSTICE WHITE, dissenting. For some 200 years -- from the very founding of the Nation -- the law of defamation and right of the ordinary citizen to recover for false publication injurious to his reputation have been almost exclusively the business of Page 418 U. S. 370 state courts and legislatures. Under typical state defamation law, the defamed private citizen had to prove only a false publication that would subject him to hatred, contempt, or ridicule. Given such publication, general damage to reputation was presumed, while punitive damages required proof of additional facts. The law governing the defamation of private citizens remained untouched by the First Amendment, because, until relatively recently, the consistent view of the Court was that libelous words constitute a class of speech wholly unprotected by the First Amendment, subject only to limited exceptions carved out since 1964. But now, using that Amendment as the chosen instrument, the Court, in a few printed pages, has federalized major aspects of libel law by declaring unconstitutional in important respects the prevailing defamation law in all or most of the 50 States. That result is accomplished by requiring the plaintiff in each and every defamation action to prove not only the defendant's culpability beyond his act of publishing defamatory material, but also actual damage to reputation resulting from the publication. Moreover, punitive damages may not be recovered by showing malice in the traditional sense of ill will; knowing falsehood or reckless disregard of the truth will now be required. I assume these sweeping changes will be popular with the press, but this is not the road to salvation for a court of law. As I see it, there are wholly insufficient grounds for scuttling the libel laws of the States in such wholesale fashion, to say nothing of deprecating the reputation interest of ordinary citizens and rendering them powerless to protect themselves. I do not suggest that the decision is illegitimate or beyond the bounds of judicial review, but it is an ill-considered exercise of the power entrusted to this Court, particularly when the Page 418 U. S. 371 Court has not had the benefit of briefs and argument addressed to most of the major issues which the Court now decides. I respectfully dissent. I Lest there be any mistake about it, the changes wrought by the Court's decision cut very deeply. In 1938, the Restatement of Torts reflected the historic rule that publication in written form of defamatory material -- material tending "so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him [ Footnote 4/1 ]" -- subjected the publisher to liability although no special harm to reputation was actually proved. [ Footnote 4/2 ] Restatement Page 418 U. S. 372 of Torts § 569 (1938). [ Footnote 4/3 ] Truth was a defense, and some libels were privileged; but, given a false circulation, general damage to reputation was presumed, and damages could be awarded by the jury, along with any special damages such as pecuniary loss and emotional distress. At the very least, the rule allowed the recovery of nominal damages for any defamatory publication actionable per se, and thus performed "a vindicatory function by enabling the plaintiff publicly to brand the defamatory publication as false. The salutary social value of this rule is preventive in character, since it often permit a defamed person to expose the groundless character of a defamatory rumor before harm to the reputation has resulted therefrom." Id. § 569, comment b, p. 166. If the defamation was not libel, but slander, it was actionable per se only if it imputed a criminal offense; a venereal or loathsome and communicable disease; improper conduct of a lawful business; or unchastity by a woman. Id. § 570. To be actionable, all other types of slanderous statements required proof of special damage other than actual loss of reputation or emotional distress, that special damage almost always being in the form of material or pecuniary loss of some kind. Id. § 575 and comment b, pp. 185-187. Damages for libel or slander per se included "harm caused thereby to the reputation of the person defamed or, in the absence of proof of such harm, for the harm which normally results from such a defamation." Id., § 621. At the heart of the libel and slander per se Page 418 U. S. 373 damage scheme lay the award of general damages for loss of reputation. They were granted without special proof because the judgment of history was that the content of the publication itself was so likely to cause injury and because, "in many cases, the effect of defamatory statements is so subtle and indirect that it is impossible directly to trace the effects thereof in loss to the person defamed." Id. § 621, comment a, p. 314. [ Footnote 4/4 ] Proof of actual injury to reputation was itself insufficient proof of that special damage necessary to support liability for slander not actionable per se. But if special damage in the form of material or pecuniary loss were proved, general damages for injury to reputation could be had without further proof. "The plaintiff may recover not only for the special harm so caused, but also for general loss of reputation." Id. § 575, comment a, p. 185. [ Footnote 4/5 ] The right to recover for emotional distress depended upon the defendant's otherwise being liable for either libel or slander. Id. § 623. Punitive damages were recoverable upon proof of special facts amounting to express malice. Id. § 908 and comment b, p. 555. Page 418 U. S. 374 Preparations in the mid-1960's for Restatement (Second) of Torts reflected what were deemed to be substantial changes in the law of defamation, primarily a trend toward limiting per se libels to those where the defamatory nature of the publication is apparent on its face, i.e., where the "defamatory innuendo is apparent from the publication itself, without reference to extrinsic facts by way of inducement." Restatement (Second) of Torts § 569, p. 29 (Tent.Draft No. 12, Apr. 27, 1966). Libels of this sort and slanders per se continued to be recognized as actionable without proof of special damage or injury to reputation. [ Footnote 4/6 ] All other defamations would require proof of special injury in the form of material or pecuniary loss. Whether this asserted change reflected the prevailing law was heavily debated, [ Footnote 4/7 ] but it was unquestioned at the time that there are recurring situations in which libel and slander are and should be actionable per se. In surveying the current state of the law, the proposed Restatement (Second) observed that "[a]ll courts except Virginia agree that any libel which is defamatory upon its face is actionable without proof of damage. . . ." Restatement (Second) of Torts § 569, p. 84 (Tent.Draft No. 11, Apr. 15, 1965). Ten jurisdictions continued to support the old rule that libel not defamatory on its face and whose innuendo depends on extrinsic facts is actionable without proof of damage, although slander would not be. Twenty-four jurisdictions were said to hold that libel not defamatory on its face is to be treated like slander, and thus not actionable without proof of damage where Page 418 U. S. 375 slander would not be. Id. § 569, p. 86. The law in six jurisdictions was found to be in an unsettled state, but most likely consistent with the Restatement (Second). Id. § 569, p. 88. The law in Virginia was thought to consider libel actionable without proof of special damage only where slander would be, regardless of whether the libel is defamatory on its face. Id. § 569, p. 89. All States, therefore, were at that time thought to recognize important categories of defamation that were actionable per se. [ Footnote 4/8 ] Nor was any question apparently raised at that time that, upon proof of special damage in the form of material or pecuniary loss, general damages to reputation could be recovered without further proof. Unquestionably, state law continued to recognize some absolute, as well as some conditional, privileges to publish defamatory materials, including the privilege of fair comment in defined situations. But it remained true that, in a wide range of situations, the ordinary citizen could make out a prima facie case without proving more than a defamatory publication, and could recover general damages for injury to his reputation unless defeated by the defense of truth. [ Footnote 4/9 ] The impact of today's decision on the traditional law of libel is immediately obvious and indisputable. No longer will the plaintiff be able to rest his case with proof of a libel defamatory on its face or proof of a slander historically actionable per se. In addition, he must prove some further degree of culpable conduct on the part of the Page 418 U. S. 376 publisher, such as intentional or reckless falsehood or negligence. And if he succeeds in this respect, he faces still another obstacle: recovery for loss of reputation will be conditioned upon "competent" proof of actual injury to his standing in the community. This will be true regardless of the nature of the defamation, and even though it is one of those particularly reprehensible statements that have traditionally made slanderous words actionable without proof of fault by the publisher or of the damaging impact of his publication. The Court rejects the judgment of experience that some publications are so inherently capable of injury, and actual injury so difficult to prove, that the risk of falsehood should be borne by the publisher, not the victim. Plainly, with the additional burden on the plaintiff of proving negligence or other fault, it will be exceedingly difficult, perhaps impossible, for him to vindicate his reputation interest by securing a judgment for nominal damages, the practical effect of such a judgment being a judicial declaration that the publication was indeed false. Under the new rule, the plaintiff can lose not because the statement is true, but because it was not negligently made. So too, the requirement of proving special injury to reputation before general damages may be awarded will clearly eliminate the prevailing rule, worked out over a very long period of time, that, in the case of defamations not actionable per se, the recovery of general damages for injury to reputation may also be had if some form of material or pecuniary loss is proved. Finally, an inflexible federal standard is imposed for the award of punitive damages. No longer will it be enough to prove ill will and an attempt to injure. These are radical changes in the law and severe invasions of the prerogatives of the States. They should Page 418 U. S. 377 at least be shown to be required by the First Amendment or necessitated by our present circumstances. Neither has been demonstrated. Of course, New York Times Co. v. Sullivan, 376 U. S. 254 (1964); Rosenblatt v. Baer, 383 U. S. 75 (1966), and Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U. S. 130 (1967), have themselves worked major changes in defamation law. Public officials and public figures, if they are to recover general damages for injury to reputation, must prove knowing falsehood or reckless disregard for the truth. The States were required to conform to these decisions. Thereafter in Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971), three Members of the Court urged that the same standard be applied whenever the publication concerned an event of public or general concern. But none of these cases purported to foreclose in all circumstances recovery by the ordinary citizen on traditional standards of liability, and, until today, a majority of the Court had not supported the proposition that, given liability, a court or jury may not award general damages in a reasonable amount without further proof of injury. In the brief period since Rosenbloom was decided, at least 17 States and several federal courts of appeals have felt obliged to consider the New York Times constitutional privilege for liability as extending to, in the words of the Rosenbloom plurality, "all discussion and communication involving matters of public or general concern." Id. at 403 U. S. 44 . [ Footnote 4/10 ] Apparently, however, general Page 418 U. S. 378 damages still remain recoverable once that standard of liability is satisfied. Except where public officials and public figures are concerned, the Court now repudiates Page 418 U. S. 379 the plurality opinion in Rosenbloom and appears to espouse the liability standard set forth by three other Justices in that case. The States must now struggle to Page 418 U. S. 380 discern the meaning of such ill-defined concepts as "liability without fault" and to fashion novel rules for the recovery of damages. These matters have not been briefed or argued by the parties, and their workability has not been seriously explored. Nevertheless, yielding to the apparently irresistible impulse to announce a new and different interpretation of the First Amendment, the Court discards history and precedent in its rush to refashion defamation law in accordance with the inclinations of a perhaps evanescent majority of the Justices. II The Court does not contend, and it could hardly do so, that those who wrote the First Amendment intended to prohibit the Federal Government, within its sphere of influence in the Territories and the District of Columbia, from providing the private citizen a peaceful remedy for damaging falsehood. At the time of the adoption of the First Amendment, many of the consequences of libel law already described had developed, particularly the rule that libels and some slanders were so inherently injurious that they were actionable without special proof of damage to reputation. As the Court pointed out in Roth v. United States, 354 U. S. 476 , 354 U. S. 482 (1957), 10 of the 14 States that had ratified the Constitution by 1792 had themselves provided constitutional guarantees for free Page 418 U. S. 381 expression, and 13 of the 14 nevertheless provided for the prosecution of libels. Prior to the Revolution, the American Colonies had adopted the common law of libel. [ Footnote 4/11 ] Contrary to some popular notions, freedom of the press was sharply curtailed in colonial America. [ Footnote 4/12 ] Seditious libel was punished as a contempt by the colonial legislatures and as a criminal offense in the colonial courts. [ Footnote 4/13 ] Scant, if any, evidence exists that the First Amendment was intended to abolish the common law of libel, at least to the extent of depriving ordinary citizens of meaningful redress against their defamers. On the contrary, "[i]t is conceded on all sides that the common law rules that subjected the libeler to responsibility for the private injury, or the public scandal or disorder occasioned by his conduct, are not abolished by the protection extended to the press in our constitutions." 2 T. Cooley, Constitutional Limitations 883 (8th ed.1927). Moreover, consistent with the Blackstone formula, [ Footnote 4/14 ] these Page 418 U. S. 382 common law actions did not abridge freedom of the press. See generally L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 247-248 (1960); Merin, Libel and the Supreme Court, 11 Wm. & Mary L.Rev. 371, 376 (1969); Hallen, Fair Comment, 8 Tex.L.Rev. 41, 56 (1929). Alexander Meiklejohn, who accorded generous reach to the First Amendment, nevertheless acknowledged: "No one can doubt that, in any well governed society, the legislature has both the right and the duty to prohibit certain forms of speech. Libelous assertions may be, and must be, forbidden and punished. So too must slander. . . . All these necessities that speech be limited are recognized and provided for under the Constitution. They were not unknown to the writers of the First Amendment. That amendment, then, we may take it for granted, does not forbid the abridging of speech. But, at the same time, it does forbid the abridging of the freedom of speech. It is to the solving of that paradox, that apparent self-contradiction, that we are summoned if, as free men, we wish to know what the right of freedom of speech is." Political Freedom, The Constitutional Powers of the People 21 (1965). See also Leflar, The Free-ness of Free Speech, 15 Vand.L.Rev. 1073, 1080-1081 (1962). Professor Zechariah Chafee, a noted First Amendment scholar, has persuasively argued that conditions in 1791 "do not arbitrarily fix the division between lawful and unlawful speech for all time." Free Speech in the United States 14 (1954). [ Footnote 4/15 ] At the same time, however, Page 418 U. S. 383 he notes that, while the Framers may have intended to abolish seditious libels and to prevent any prosecutions by the Federal Government for criticism of the Government, [ Footnote 4/16 ] "the free speech clauses do not wipe out the common law as to obscenity, profanity, and defamation of individuals." [ Footnote 4/17 ] The debates in Congress and the States over the Bill of Rights are unclear and inconclusive on any articulated intention of the Framers as to the free press guarantee. [ Footnote 4/18 ] We know that Benjamin Franklin, John Adams, and William Cushing favored limiting freedom of the press to truthful statements, while others such as James Wilson suggested a restatement of the Blackstone standard. [ Footnote 4/19 ] Page 418 U. S. 384 Jefferson endorsed Madison's formula that "Congress shall make no law . . . abridging the freedom of speech or the press" only after he suggested: "The people shall not be deprived of their right to speak, to write, or otherwise to publish anything but false facts affecting injuriously the life, liberty, or reputation of others. . . ." F. Mott, Jefferson and the Press 14 (1943). [ Footnote 4/20 ] Doubt has been expressed that the Members of Congress envisioned the First Amendment as reaching even this far. Merin, Libel and the Supreme Court, 11 Wm. & Mary L.Rev. 371, § 379-380 (1969). This Court, in bygone years, has repeatedly dealt with libel and slander actions from the District of Columbia and from the Territories. Although in these cases First Amendment considerations were not expressly discussed, the opinions of the Court unmistakably revealed that the classic law of libel was firmly in place in those areas where federal law controlled. See, e.g., Washington Post Co. v. Chaloner, 250 U. S. 290 (1919); Baker v. Warner, 231 U. S. 588 (1913); Nalle v. Oyster, 230 U. S. 165 (1913); Dorr v. United States, 195 U. S. 138 (1904); Pollard v. Lyon, 91 U. S. 225 (1876); White v. Nicholls , 3 How. 266 (1845). The Court's consistent view prior to New York Times Co. v. Sullivan, 376 U. S. 254 (1964), was that defamatory Page 418 U. S. 385 utterances were wholly unprotected by the First Amendment. In Patterson v. Colorado ex rel. Attorney General, 205 U. S. 454 , 205 U. S. 462 (1907), for example, the Court said that, although freedom of speech and press is protected from abridgment by the Constitution, these provisions "do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare." This statement was repeated in Near v. Minnesota ex rel. Olson, 283 U. S. 697 , 283 U. S. 714 (1931), the Court adding: "But it is recognized that punishment for the abuse of the liberty accorded to the press is essential to the protection of the public, and that the common law rules that subject the libeler to responsibility for the public offense, as well as for the private injury, are not abolished by the protection extended in our constitutions." Id. at 283 U. S. 715 . Chaplinsky v. New Hampshire, 315 U. S. 568 , 315 U. S. 571 -572 (1942) (footnotes omitted), reflected the same view: "There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words -- those which by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Beauharnais v. Illinois, 343 U. S. 250 , 343 U. S. 254 -257 (1952) (footnotes omitted), repeated the Chaplinski statement, noting also that nowhere at the time of the adoption of Page 418 U. S. 386 the Constitution "was there any suggestion that the crime of libel be abolished." And in Roth v. United States, 354 U.S. at 354 U. S. 483 (footnote omitted), the Court further examined the meaning of the First Amendment: "In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech. Beauharnais v. Illinois, 343 U. S. 250 , 343 U. S. 266 . At the time of the adoption of the First Amendment, obscenity law was not as fully developed as libel law, but there is sufficiently contemporaneous evidence to show that obscenity, too, was outside the protection intended for speech and press. [ Footnote 4/21 ]" The Court could not accept the generality of this historic view in New York Times Co. v. Sullivan, supra. There, the Court held that the First Amendment was intended to forbid actions for seditious libel and that defamation actions by public officials were therefore not subject to the traditional law of libel and slander. If these officials (and, later, public figures occupying semiofficial or influential, although private, positions) were to recover, they were required to prove not only that the publication was false, but also that it was knowingly false or published with reckless disregard for its truth or falsity. This view that the First Amendment was written to forbid Page 418 U. S. 387 seditious libel reflected one side of the dispute that raged at the turn of the nineteenth century [ Footnote 4/22 ] and also mirrored the views of some later scholars. [ Footnote 4/23 ] The central meaning of New York Times, and, for me, the First Amendment as it relates to libel laws, is that seditious libel -- criticism of government and public officials -- falls beyond the police power of the State. 376 U.S. at 376 U. S. 273 -276. [ Footnote 4/24 ] In a democratic society such as ours, the citizen has the privilege of criticizing his government and its officials. But neither New York Times nor its progeny suggest that the First Amendment intended in all circumstances to deprive the private citizen of his historic recourse to redress published falsehoods damaging to reputation or that, contrary to history and precedent, the Amendment should now be so interpreted. Simply put, the First Amendment did not confer a "license to defame the citizen." W. Douglas, The Right of the People 36 (1958). I do not labor the foregoing matters to contend that the Court is foreclosed from reconsidering prior interpretations of the First Amendment. [ Footnote 4/25 ] But the Court apparently finds a clean slate where, in fact, we have instructive historical experience dating from long before Page 418 U. S. 388 the first settlers, with their notions of democratic government and human freedom, journeyed to this land. Given this rich background of history and precedent, and because we deal with fundamentals when we construe the First Amendment, we should proceed with care, and be presented with more compelling reasons before we jettison the settled law of the States to an even more radical extent. [ Footnote 4/26 ] III The Court concedes that the dangers of self-censorship are insufficient to override the state interest in protecting the reputation of private individuals who are both more helpless and more deserving of state concern than public persons with more access to the media to defend themselves. It therefore refuses to condition the private plaintiff's recovery on a showing of intentional or reckless falsehood as required by New York Times. But the Court nevertheless extends the reach of the First Amendment to all defamation actions by requiring that the ordinary Page 418 U. S. 389 citizen, when libeled by a publication defamatory on its face, must prove some degree of culpability on the part of the publisher beyond the circulation to the public of a damaging falsehood. A rule at least as strict would be called for where the defamatory character of the publication is not apparent from its face. Ante at 418 U. S. 348 . [ Footnote 4/27 ] Furthermore, if this major hurdle to establish liability is surmounted, the Court requires proof of actual injury to reputation before any damages for such injury may be awarded. The Court proceeds as though it were writing on tabula rasa, and suggests that it must mediate between two unacceptable choices -- on the one hand, the rigors of the New York Times rule, which the Court thinks would give insufficient recognition to the interest of the private plaintiff, and, on the other hand, the prospect of imposing "liability without fault" on the press and others who are charged with defamatory utterances. Totally ignoring history and settled First Amendment law, the Court purports to arrive at an "equitable compromise," rejecting both what it considers faultless liability and New York Times malice, but insisting on some intermediate degree of fault. Of course, the Court necessarily discards the contrary judgment arrived at in the 50 States that the reputation interest of the private citizen is deserving of considerably more protection. The Court evinces a deep-seated antipathy to "liability without fault." But this catch-phrase has no talismanic significance, and is almost meaningless in this context, where the Court appears to be addressing those libels and slanders that are defamatory on their face and where Page 418 U. S. 390 the publisher is no doubt aware from the nature of the material that it would be inherently damaging to reputation. He publishes notwithstanding, knowing that he will inflict injury. With this knowledge, he must intend to inflict that injury, his excuse being that he is privileged to do so -- that he has published the truth. But, as it turns out, what he has circulated to the public is a very damaging falsehood. Is he nevertheless "faultless"? Perhaps it can be said that the mistake about his defense was made in good faith, but the fact remains that it is he who launched the publication knowing that it could ruin a reputation. In these circumstances, the law has heretofore put the risk of falsehood on the publisher where the victim is a private citizen and no grounds of special privilege are invoked. The Court would now shift this risk to the victim, even though he has done nothing to invite the calumny, is wholly innocent of fault, and is helpless to avoid his injury. I doubt that jurisprudential resistance to liability without fault is sufficient ground for employing the First Amendment to revolutionize the law of libel, and, in my view, that body of legal rules poses no realistic threat to the press and its service to the public. The press today is vigorous and robust. To me, it is quite incredible to suggest that threats of libel suits from private citizens are causing the press to refrain from publishing the truth. I know of no hard facts to support that proposition, and the Court furnishes none. The communications industry has increasingly become concentrated in a few powerful hands operating very lucrative businesses reaching across the Nation and into almost every home. [ Footnote 4/28 ] Neither the industry as a whole nor Page 418 U. S. 391 its individual components are easily intimidated, and we are fortunate that they are not. Requiring them to pay for the occasional damage they do to private reputation will play no substantial part in their future performance or their existence. In any event, if the Court's principal concern is to protect the communications industry from large libel judgments, it would appear that its new requirements with respect to general and punitive damages would be ample protection. Why it also feels compelled to escalate the threshold standard of liability I cannot fathom, Page 418 U. S. 392 particularly when this will eliminate, in many instances, the plaintiff's possibility of securing a judicial determination that the damaging publication was indeed false, whether or not he is entitled to recover money damages. Under the Court's new rules, the plaintiff must prove not only the defamatory statement, but also some degree of fault accompanying it. The publication may be wholly false, and the wrong to him unjustified, but his case will nevertheless be dismissed for failure to prove negligence or other fault on the part of the publisher. I find it unacceptable to distribute the risk in this manner and force the wholly innocent victim to bear the injury; for, as between the two, the defamer is the only culpable party. It is he who circulated a falsehood that he was not required to publish. It is difficult for me to understand why the ordinary citizen should himself carry the risk of damage and suffer the injury in order to vindicate First Amendment values by protecting the press and others from liability for circulating false information. T his is particularly true because such statements serve no purpose whatsoever in furthering the public interest or the search for truth, but, on the contrary, may frustrate that search, and, at the same time, inflict great injury on the defenseless individual. The owners of the press and the stockholders of the communications enterprises can much better bear the burden. And if they cannot, the public at large should somehow pay for what is essentially a public benefit derived at private expense. IV A Not content with escalating the threshold requirements of establishing liability, the Court abolishes the ordinary damages rule, undisturbed by New York Times Page 418 U. S. 393 and later cases, that, as to libels or slanders defamatory on their face, injury to reputation is presumed, and general damages may be awarded along with whatever special damages may be sought. Apparently because the Court feels that, in some unspecified and unknown number of cases, plaintiffs recover where they have suffered no injury or recover more than they deserve, it dismisses this rule as an "oddity of tort law." The Court thereby refuses in any case to accept the fact of wide dissemination of a per se libel as prima facie proof of injury sufficient to survive a motion to dismiss at the close of plaintiff's case. I have said before, but it bears repeating, that, even if the plaintiff should recover no monetary damages, he should be able to prevail and have a judgment that the publication is false. But beyond that, courts and legislatures literally for centuries have thought that, in the generality of cases, libeled plaintiffs will be seriously shortchanged if they must prove the extent of the injury to their reputations. Even where libels or slanders are not, on their face, defamatory, and special damage must be shown, when that showing is made, general damages for reputation injury are recoverable without specific proof. [ Footnote 4/29 ] Page 418 U. S. 394 The Court is clearly right when at one point it states that "the law of defamation is rooted in our experience that the truth rarely catches up with a lie." Ante at 418 U. S. 344 n. 9. But it ignores what that experience teaches, viz., that damage to reputation is recurringly difficult to prove, and that requiring actual proof would repeatedly destroy any chance for adequate compensation. Eminent authority has warned that "it is clear that proof of actual damage will be impossible in a great many cases where, from the character of the defamatory words and the circumstances of publication, it is all but certain that serious harm has resulted in fact." W. Prosser, Law of Torts § 112, p. 765 (4th ed.1971). [ Footnote 4/30 ] The Court fears uncontrolled awards of damages by juries, but that not only denigrates the good sense of most jurors -- it fails to consider the role of trial and appellate courts in limiting excessive jury verdicts where no reasonable relationship exists between the amount awarded and the injury sustained. [ Footnote 4/31 ] Available information Page 418 U. S. 395 tends to confirm that American courts have ably discharged this responsibility. [ Footnote 4/32 ] The new rule with respect to general damages appears to apply to all libels or slanders, whether defamatory on their face or not, except, I gather, when the plaintiff proves intentional falsehood or reckless disregard. Although the impact of the publication on the victim is the same, in such circumstances, the injury to reputation may apparently be presumed in accordance with the traditional rule. Why a defamatory statement is more apt to cause injury if the lie is intentional than when it is only negligent, I fail to understand. I suggest that judges and juries who must live by these rules will find them equally incomprehensible. B With a flourish of the pen, the Court also discards the prevailing rule in libel and slander actions that punitive damages may be awarded on the classic grounds of common law malice, that is, "'[a]ctual malice' in the sense of ill will or fraud or reckless indifference to consequences." Page 418 U. S. 396 C. McCormick, Law of Damages § 118, p. 431 (1935); see also W. Prosser, supra, § 113, p. 772; 1 A. Hanson, Libel and Related Torts � 163, p. 133 (1969); Note, Developments in the Law -- Defamation, 69 Harv.L.Rev. 875, 938 (1956); Cal.Civ.Code § 48a(4)(d) (1954). In its stead, the Court requires defamation plaintiffs to show intentional falsehood or reckless disregard for the truth or falsity of the publication. The Court again complains about substantial verdicts and the possibility of press self-censorship, saying that punitive damages are merely "private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence." Ante at 418 U. S. 350 . But I see no constitutional difference between publishing with reckless disregard for the truth, where punitive damages will be permitted, and negligent publication, where they will not be allowed. It is difficult to understand what is constitutionally wrong with assessing punitive damages to deter a publisher from departing from those standards of care ordinarily followed in the publishing industry, particularly if common law malice is also shown. I note also the questionable premise that "juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused." Ibid. This represents an inaccurate view of established practice, "another of those situations in which judges, largely unfamiliar with the relatively rare actions for defamation, rely on words without really going behind them. . . . [ Footnote 4/33 ]" While a jury award in any type of civil case may certainly be unpredictable, trial and appellate courts have been increasingly vigilant in ensuring that the jury's result is "based upon a rational consideration of the evidence and the proper application of the Page 418 U. S. 397 law." Reynolds v. Pegler, 123 F. Supp. 36 , 39 (SDNY 1954), aff'd, 223 F.2d 429 (CA2), cert. denied, 350 U.S. 846 (1955). See supra, nn. 418 U.S. 323 fn4/31|>31-32. Moreover, some courts require that punitive damages bear a reasonable relation to the compensatory damages award. [ Footnote 4/34 ] Still others bar common law punitive damages or condition their award on a refusal to print a retraction. [ Footnote 4/35 ] "The danger . . . of immoderate verdicts is certainly a real one, and the criterion to be applied by the judge in setting or reducing the amount is concededly a vague and subjective one. Nevertheless, the verdict may be twice submitted by the complaining defendant to the common sense of trained judicial minds, once on motion for new trial and again on appeal, and it must be a rare instance when an unjustifiable award escapes correction." C. McCormick, supra, § 77, p. 278. The Court points to absolutely no empirical evidence to substantiate its premise. For my part, I would require something more substantial than an undifferentiated fear of unduly burdensome punitive damages awards before retooling the established common law rule and depriving the States of the opportunity to experiment with different methods for guarding against abuses. Even assuming the possibility that some verdicts will be "excessive," I cannot subscribe to the Court's remedy. On its face, it is a classic example of judicial overkill. Apparently abandoning the salutary New York Times policy of case-by-case "'independent examination of the whole record' . . . so as to assure ourselves that the judgment does not constitute a forbidden intrusion on Page 418 U. S. 398 the field of free expression, [ Footnote 4/36 ]" the Court substitutes an inflexible rule barring recovery of punitive damages absent proof of constitutional malice. The First Amendment is a majestic statement of a free people's dedication to "uninhibited, robust, and wide-open" debate on public issues, [ Footnote 4/37 ] but we do it a grave disservice when we needlessly spend its force. [ Footnote 4/38 ] For almost 200 years, punitive damages and the First Amendment have peacefully coexisted. There has been no demonstration that state libel laws as they relate to punitive damages necessitate the majority's extreme response. I fear that those who read the Court's decision will find its words inaudible, for the Court speaks "only [with] a voice of power, not of reason." Mapp v. Ohio, 367 U. S. 643 , 367 U. S. 686 (1961) (Harlan, J., dissenting). V In disagreeing with the Court on the First Amendment's reach in the area of state libel laws protecting nonpublic persons, I do not repudiate the principle that the First Amendment "rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society." Associated Press v. United States, 326 U. S. 1 , 326 U. S. 20 (1945); see also Miami Herald Publishing Co. v. Tornillo, ante at 418 U. S. 260 (WHITE, J., concurring). I continue to subscribe to the New York Times decision and those decisions extending its protection to defamatory falsehoods about public persons. My quarrel with the Court stems Page 418 U. S. 399 from its willingness "to sacrifice good sense to a syllogism" [ Footnote 4/39 ] -- to find in the New York Times doctrine an infinite elasticity. Unfortunately, this expansion is the latest manifestation of the destructive potential of any good idea carried out to its logical extreme. Recovery under common law standards for defamatory falsehoods about a private individual, who enjoys no "general fame or notoriety in the community," who is not "pervasive[ly] involve[d] in the affairs of society," and who does not "thrust himself into the vortex of [a given] public issue . . . in an attempt to influence its outcome," [ Footnote 4/40 ] is simply not forbidden by the First Amendment. A distinguished private study group put it this way: "Accountability, like subjection to law, is not necessarily a net subtraction from liberty. . . . The First Amendment was intended to guarantee free expression, not to create a privileged industry." Commission on Freedom of the Press, A Free and Responsible Press 130, 81 (1947). I fail to see how the quality or quantity of public debate will be promoted by further emasculation of state libel laws for the benefit of the news media. [ Footnote 4/41 ] If anything, Page 418 U. S. 400 this trend may provoke a new and radical imbalance in the communications process. Cf. Barron, Access to the Pres -- A New First Amendment Right, 80 Harv.L.Rev. 1641, 1657 (1967). It is not at all inconceivable that virtually unrestrained defamatory remarks about private citizens will discourage them from speaking out and concerning themselves with social problems. This would turn the First Amendment on its head. Note, The Scope of First Amendment Protection for Good-Faith Defamatory Error, 75 Yale L.J. 642, 649 (1966); Merin, 11 Wm. & Mary L.Rev. at 418. David Riesman, writing in the midst of World War II on the fascists' effective use of defamatory attacks on their opponents, commented: "Thus it is that the law of libel, with its ecclesiastic background and domestic character, its aura of heart-balm suits and crusading nineteenth-century editors, becomes suddenly important for modern democratic survival." Democracy and Defamation: Fair Game and Fair Comment I, 42 Col.L.Rev. 1085, 1088 (1942). This case ultimately comes down to the importance the Court attaches to society's "pervasive and strong interest in preventing and redressing attacks upon reputation." Rosenblatt v. Baer, 383 U.S. at 383 U. S. 86 . From all that I have seen, the Court has miscalculated and denigrates that interest at a time when escalating assaults on individuality and personal dignity counsel otherwise. [ Footnote 4/42 ] Page 418 U. S. 401 At the very least, the issue is highly debatable, and the Court has not carried its heavy burden of proof to justify tampering with state libel laws. [ Footnote 4/43 ] Page 418 U. S. 402 While some risk of exposure "is a concomitant of life in a civilized community," Time, Inc. v. Hill, 385 U. S. 374 , 385 U. S. 388 (1967), the private citizen does not bargain for defamatory falsehoods. Nor is society powerless to vindicate unfair injury to his reputation. "It is a fallacy . . . to assume that the First Amendment is the only guidepost in the area of state defamation laws. It is not. . . ." "The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being -- a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system." Rosenblatt v. Baer, supra, at 383 U. S. 92 (STEWART, J., concurring). The case against razing state libel laws is compelling when considered in light of the increasingly prominent role of mass media in our society and the awesome power it has placed in the hands of a select few. [ Footnote 4/44 ] Surely, our political "system cannot flourish if regimentation takes hold." Public Utilities Comm'n v. Pollak, 343 U. S. 451 , 343 U. S. 469 (1952) (DOUGLAS, J., dissenting). Nor can it survive if our people are deprived of an effective method Page 418 U. S. 403 of vindicating . their legitimate interest in their good names. [ Footnote 4/45 ] Freedom and human dignity and decency are not antithetical. Indeed, they cannot survive without each other. Both exist side-by-side in precarious balance, one always threatening to overwhelm the other. Our experience as a Nation testifies to the ability of our democratic institutions to harness this dynamic tension. One of the mechanisms seized upon by the common law to accommodate these forces was the civil libel action tried before a jury of average citizens. And it has essentially fulfilled its role. Not because it is necessarily the best or only answer, but because "the juristic philosophy of the common law is, at bottom, the philosophy of pragmatism. Its truth is relative, not absolute. The rule that functions well produces a title deed to recognition." B. Cardozo, Selected Writings 149 (Hall ed.1947). In our federal system, there must be room for allowing the States to take diverse approaches to these vexing questions. We should "continue to forbear from fettering the States with an adamant rule which may embarrass them in coping with their own peculiar problems. . . ." Mapp v. Ohio, 367 U.S. at 367 U. S. 681 (Harlan, J., dissenting); see also Murnaghan, From Figment to Fiction to Philosophy -- The Requirement of Proof of Damages in Libel Actions, 22 Cath.U.L.Rev. 1, 38 (1972). Page 418 U. S. 404 Cf. Younger v. Harris, 401 U. S. 37 , 401 U. S. 44 -45 (1971). Whether or not the course followed by the majority is wise, and I have indicated my doubts that it is, our constitutional scheme compels a proper respect for the role of the States in acquitting their duty to obey the Constitution. Finding no evidence that they have shirked this responsibility, particularly when the law of defamation is even now in transition, I would await some demonstration of the diminution of freedom of expression before acting. For the foregoing reasons, I would reverse the judgment of the Court of Appeals and reinstate the jury's verdict. [ Footnote 4/1 ] Restatement of Torts § 559 (1938); see also W. Prosser, Law of Torts § 111, p. 739 (4th ed.1971); 1 A. Hanson, Libel and Related Torts 14, pp. 21-22 (1969); 1 F. Harper & F. James, The Law of Torts § 5.1, pp. 349-350 (1956). [ Footnote 4/2 ] The observations in 418 U. S. first published in 1938, and Tentative Drafts Nos. 11 and 12 of Restatement of Torts (Second), released in 1965 and 1966, respectively. The recent transmittal of Tentative Draft No. 20, dated April 25, 1974, to the American Law Institute for its consideration has resulted in the elimination of much of the discussion of the prevailing defamation rules and the suggested changes in many of the rules themselves previously found in the earlier Tentative Drafts. This development appears to have been largely influenced by the draftsmen's "sense for where the law of this important subject should be thought to stand." Restatement (Second) of Torts, p. vii (Tent.Draft No. 20, Apr. 25, 1974). It is evident that, to a large extent, these latest views are colored by the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U. S. 29 (1971). See, e.g., Restatement (Second) of Torts, supra at xiii, §§ 569, 580, 581A, 581B, 621. There is no indication in the latest draft, however, that the conclusions reached in Tentative Drafts Nos. 11 and 12 are not an accurate reflection of the case law in the States in the mid-1960's, prior to the developments occasioned by the plurality opinion in Rosenbloom. See infra at 418 U. S. 374 -375. [ Footnote 4/3 ] See also W. Prosser, supra, 418 U.S. 323 fn4/1|>n. 1, § 112, p. 752 and n. 85; Murnaghan, From Figment to Fiction to Philosophy -- The Requirement of Proof of Damages in Libel Actions, 22 Cath.U.L.Rev. 1, 11-13 (1972). [ Footnote 4/4 ] Proof of the defamation itself established the fact of injury and the existence of some damage to the right of reputation, and the jury was permitted, even without any other evidence, to assess damages that were considered to be the natural or probable consequences of the defamatory words. Restatement of Torts § 621, comment a, p. 314 (1938); see also C. Gatley, Libel and Slander 1004 (6th ed.1967); M. Newell, Slander and Libel § 721, p. 810 (4th ed.1924); see generally C. McCormick, Law of Damages § 116, pp. 422-430 (1935). In this respect, therefore, the damages were presumed because of the impossibility of affixing an exact monetary amount for present and future injury to the plaintiff's reputation, wounded feelings and humiliation, loss of business, and any consequential physical illness or pain. Ibid. [ Footnote 4/5 ] See also Prosser, supra, 418 U.S. 323 fn4/1|>n. 1, § 112, p. 761; Harper & James, supra, 418 U.S. 323 fn4/1|>n. 1, § 5.14, p. 388; Note, Developments in the Law -- Defamation, 69 Harv.L.Rev. 875, 939-940 (1956). [ Footnote 4/6 ] Also actionable per se were those libels where the imputation, although not apparent from the material itself, would have been slander per se if spoken, rather than written. [ Footnote 4/7 ] Restatement (Second) of Torts § 569, pp. 29-45, 47-48 (Tent.Draft No. 12, Apr. 27, 1966); see also Murnaghan, supra, 418 U.S. 323 fn4/3|>n. 3. [ Footnote 4/8 ] Applying settled Illinois law, the District Court in this case held that it is libel per se to label someone a Communist. 306 F. Supp. 310 (ND Ill.1969). [ Footnote 4/9 ] This appears to have been the law in Illinois at the time Gertz brought his libel suit. See, e.g., Brewer v. Hearst Publishing Co., 185 F.2d 846 (CA7 1950); Hotz v. Alton Telegraph Printing Co., 324 Ill.App. 1, 57 N.E.2d 137 (1944); Cooper v. Illinois Publishing & Printing Co., 218 Ill.App. 95 (1920). [ Footnote 4/10 ] See, e.g., West v. Northern Publishing Co., 487 P.2d 1304 , 1305-1306 (Alaska 1971) (article linking owners of taxicab companies to illegal liquor sales to minors); Gallman v. Carnes, 254 Ark. 987, 992, 497 S.W.2d 47 , 50 (1973) (matter concerning state law school professor and assistant dean); Belli v. Curtis Publishing Co., 25 Cal. App. 3d 384 , 102 Cal. Rptr. 122 (1972) (article concerning attorney with national reputation); Moriarty v. Lippe, 162 Conn.371, 378379, 294 A.2d 326, 330-331 (1972) (publication about certain police officers); Firestone v. Time, Inc., 271 So. 2d 745 , 750-751 (Fla.1972) (divorce of prominent citizen not a matter of legitimate public concern); State v. Snyder, 277 So. 2d 660 , 666-668 (La.1973) (criminal defamation prosecution of a defeated mayoral candidate for statements made about another candidate); Twohi v. Boston Herald-Traveler Corp., ___ Mass. ___, 291 N.E.2d 398 , 400-401 (1973) (article concerning a candidate's votes in the legislature); Priestley v. Hastings & Sons Publishing Co. of Lynn, 360 Mass. 118, 271 N.E.2d 628 (1971) (article about an architect commissioned by a town to build a school); Harnish v. Herald-Mail Co., Inc., 264 Md. 326, 334-336, 286 A.2d 146, 151 (1972) (article concerning substandard rental property owned by a member of a city housing authority); Standke v. B. E. Darby & Sons, Inc., 291 Minn. 468, 476-477, 193 N.W.2d 139 , 145 (1971) (newspaper editorial concerning performance of grand jurors); Whitmore v. Kansas City Star Co., 499 S.W.2d 45 , 49 (Mo.Ct.App. 1973) (article brk: concerning a juvenile officer, the operation of a detention home, and a grand jury investigation); Trails West, Inc. v. Wolff, 32 N.Y.2d 207 , 214-218, 298 N.E.2d 52, 55-58 (1973) (suit against a Congressman for an investigation into the death of schoolchildren in a bus accident); Twenty-five East 40th Street Restaurant Corp. v. Forbes, Inc., 30 N.Y.2d 595, 282 N.E.2d 118 (1972) (magazine article concerning a restaurant's food); Kent v. City of Buffalo, 29 N.Y.2d 818, 277 N.E.2d 669 (1971) (television station film of plaintiff as a captured robber); Frink v. McEldowney, 29 N.Y.2d 720, 275 N.E.2d 337 (1971) (article concerning an attorney representing a town); Mead v. Horvitz Publishing Co. (9th Dist. Ohio Ct.App. June 13, 1973) (unpublished), cert. denied, 416 U.S. 985 (1974) (financial condition of participants in the development of a large apartment complex involving numerous local contractors); Washington v. World Publishing Co., 506 P.2d 913 (Okla.1973) (article about contract dispute between a candidate for United States Senate and his party's county chairman); Matus v. Triangle Publications, Inc., 445 Pa. 384, 395-399, 286 A.2d 357, 363-365 (1971) (radio "talk show" host's discussion of gross overcharging for snowplowing a driveway not considered an event of public or general concern); Autobuses Internacionales S. De R.L., Ltd. v. El Continental Publishing Co., 483 S.W.2d 506 (Tex.Ct. Civ.App. 1972) (newspaper article concerning a bus company's raising of fares without notice and in violation of law); Sanders v. Harris, 213 Va. 369, 372-373, 192 S.E.2d 754 , 757-758 (1972) (article concerning English professor at a community college); Old Dominion Branch No. 496 v. Austin, 213 Va. 377, 192 S.E.2d 737 (1972), rev'd, ante, p. 418 U. S. 264 (plaintiff's failure to join a labor union considered not an issue of public or general concern); Chase v. Daily Record, Inc., 83 Wash. 2d 37 , 41, 515 P.2d 154 , 156 (1973) (article concerning port district commissioner); Miller v. .Argus Publishing Co., 79 Wash. 2d 816 , 827, 490 P.2d 101 , 109 (1971) (article concerning the backer of political candidates); Polzing v. Helmbrecht, 54 Wis.2d 578, 586, 196 N.W.2d 685 , 690 (1972) (letter to editor of newspaper concerning a reporter and the financing of pollution control measures). The following United States Courts of Appeals have adopted the plurality opinion in Rosenbloom: Cantrell v. Forest City Publishing Co., 484 F.2d 150 (CA6 1973), cert. pending, No. 73-5520 (article concerning family members of the victim of a highly publicized bridge disaster not actionable absent proof of actual malice); Porter v. Guam Publications, Inc., 475 F.2d 744, 745 (CA9 1973) (article concerning citizen's arrest for theft of a cash box considered an event of general or public interest); Cervantes v. Time, Inc., 464 F.2d 986, 991 (CA8 1972) (article concerning mayor and alleged organized crime connections conceded to be a matter of public or general concern); Firestone v. Time, Inc., 460 F.2d 712 (CA5 1972) (magazine article concerning prominent citizen's use of detectives and electronic surveillance in connection with a divorce); Davis v. National Broadcasting Co., 447 F.2d 981 (CA5 1971), aff'g 320 F. Supp. 1070 (ED La.1970) (television report about a person caught up in the events surrounding the assassination of President Kennedy considered a matter of public interest). However, at least one Court of Appeals, faced with an appeal from summary judgment in favor of a publisher in a diversity libel suit brought by a Philadelphia retailer, has expressed "discomfort in accepting the Rosenbloom plurality opinion as a definitive statement of the appropriate law. . . ." Gordon v. Random House, Inc., 486 F.2d 1356, 1359 (CA3 1973). As previously discussed in 418 U.S. 323 fn4/2|>n. 2, supra, the latest proposed draft of Restatement (Second) of Torts substantially reflects the views of the Rosenbloom plurality. It also anticipates "that the Supreme Court will hold that strict liability for defamation is inconsistent with the free speech provision of the First Amendment . . . ," Restatement (Second) of Torts § 569, p. 59 (Tent.Draft No. 20, Apr. 25, 1974), as well as the demise of pre- Rosenbloom damages rules. See id. § 621, pp. 285-288. [ Footnote 4/11 ] Merin, Libel and the Supreme Court, 11 Wm. & Mary L.Rev. 371, 373 (1969). [ Footnote 4/12 ] A. Sutherland, Constitutionalism in America: Origin and Evolution of Its Fundamental Ideas 118-119 (1965). [ Footnote 4/13 ] See generally L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History (1960). [ Footnote 4/14 ] The men who wrote and adopted the First Amendment were steeped in the common law tradition of England. They read Blackstone, "a classic tradition of the bar in the United States" and "the oracle of the common law in the minds of the American Framers. . . ." J. Hurst, The Growth of American Law: The Law Makers 257 (1950); Levy, supra, 418 U.S. 323 fn4/13|>n. 13, at 13; see also Sutherland, supra, 418 U.S. 323 fn4/12|>n. 12, at 124-125; Schick v. United States, 195 U. S. 65 , 195 U. S. 69 (1904). From him they learned that the major means of accomplishing free speech and press was to prevent prior restraints, the publisher later being subject to legal action if his publication was injurious. 4 W. Blackstone, Commentaries *150-153. [ Footnote 4/15 ] See also Meiklejohn, The First Amendment Is An Absolute, 1961 Sup.Ct.Rev. 245, 264: "First, the Framers initiated a political revolution whose develop ment is still in process throughout the world. Second, like most revolutionaries, the Framers could not foresee the specific issues which would arise as their 'novel idea' exercised its domination over the governing activities of a rapidly developing nation in a rapidly and fundamentally changing world. In that sense, the Framers did not know what they were doing. And in the same sense, it is still true that, after two centuries of experience, we do not know what they were doing, or what we ourselves are now doing." "In a more abstract and more significant sense, however, both they and we have been aware that the adoption of the principle of self-government by 'The People' of this nation set loose upon us and upon the world at large an idea which is still transforming men's conceptions of what they are and how they may best be governed." [ Footnote 4/16 ] See Beauharnais v. Illinois, 343 U. S. 250 , 343 U. S. 272 (1952) (Black, J., dissenting). Brant, who interprets the Framers' intention more liberally than Chafee, nevertheless saw the free speech protection as bearing upon criticism of government and other political speech. I. Brant, The Bill of Rights 236 (1965). [ Footnote 4/17 ] Z. Chafee, Free Speech in the United States 14 (1954). [ Footnote 4/18 ] See 1 Annals of Cong. 729-789 (1789). See also Brant, supra, 418 U.S. 323 fn4/16|>n. 16, at 224; Levy, supra, 418 U.S. 323 fn4/13|>n. 13, at 214, 224. [ Footnote 4/19 ] Merin, supra, 418 U.S. 323 fn4/11|>n. 11, at 377. Franklin, for example, observed: "If by the Liberty of the Press were understood merely the Liberty of discussing the Propriety of Public Measures and political opinions, let us have as much of it as you please; but if it means the Liberty of affronting, calumniating, and defaming one another, I, for my part, own myself willing to part with my Share of it when our Legislators shall please so to alter the Law, and shall cheerfully consent to exchange my Liberty of Abusing others for the Privilege of not being abused myself." 10 B. Franklin, Writings 38 (Smyth ed.1907). [ Footnote 4/20 ] Jefferson's noted opposition to public prosecutions for libel of government figures did not extend to depriving them of private libel actions. Mott, supra, at 43. There is even a strong suggestion that he favored state prosecutions. E.g., Hudon, Freedom of Speech and Press in America 47-48 (1963). [ Footnote 4/21 ] For further expressions of the general proposition that libels are not protected by the First Amendment, see Konigsberg v. State Bar of California, 366 U. S. 36 , 366 U. S. 49 -50 and n. 10 (1961); Time Film Corp. v. City of Chicago, 365 U. S. 43 , 365 U. S. 48 (1961); Pennekamp v. Florida, 328 U. S. 331 , 328 U. S. 348 -349 (1946); cf. Paris Adult Theatre I v. Slaton, 413 U. S. 49 , 413 U. S. 67 (1973); Stanley v. Georgia, 394 U. S. 557 , 394 U. S. 561 in 5 (1969) [ Footnote 4/22 ] See Levy, supra, 418 U.S. 323 fn4/13|>n. 13, at 247-248. [ Footnote 4/23 ] See, e.g., Abrams v. United States, 250 U. S. 616 , 250 U. S. 630 (1919) (Holmes, J., dissenting). [ Footnote 4/24 ] Kalven, The New York Times Case: A Note on "The Central Meaning of the First Amendment," 1964 Sup.Ct.Rev.191, 208-209. [ Footnote 4/25 ] "The language of the First Amendment is to be read not as barren words found in a dictionary, but as symbols of historic experience illumined by the presuppositions of those who employed them. . . . As in the case of every other provision of the Constitution that is not crystallized by the nature of its technical concepts, the fact that the First Amendment is not self-defining and self-enforcing neither impairs its usefulness nor compels its paralysis as a living instrument." Dennis v. United States, 341 U. S. 494 , 341 U. S. 523 (1951) (Frankfurter, J., concurring). [ Footnote 4/26 ] "[T]he law of defamation has been an integral part of the laws of England, the colonies and the states since time immemorial. So many actions have been maintained and judgments recovered under the various laws of libel that the Constitutional validity of libel actions could be denied only by a Court willing to hold all of its predecessors were wrong in their interpretation of the First Amendment, and that two hundred years of precedents should be overruled." Rutledge, The Law of Defamation: Recent Developments, 32 Alabama Lawyer 409, 410 (1971). The prevailing common law libel rules in this country have remained in England and the Commonwealth nations. Pedrick, Freedom of the Press and the Law of Libel: The Modern Revised Translation, 49 Cornell L.Q. 581, 583-584 (1964). After many years of reviewing the English law of defamation, the Porter Committee concluded that, "though the law as to defamation requires some modification, the basic principles upon which it is founded are not amiss." Report of the Committee on the Law of Defamation, Cmd. No. 7536, � 222, p. 48 (1948). [ Footnote 4/27 ] If I read the Court correctly, it clearly implies that, for those publications that do not make "substantial danger to reputation apparent," the New York Times actual malice standard will apply. Apparently this would be true even where the imputation concerned conduct or a condition that would be per se slander. [ Footnote 4/28 ] A recent study has comprehensively detailed the role and impact of mass communications in this Nation. See Note, Media and the First Amendment in a Free Society, 60 Geo.L.J. 867 (1972). For example, 99% of the American households have a radio, and 77% hear at least one radio newscast daily. In 1970, the yearly average home television viewing time was almost six hours per day. Id. at 883 n. 53. "Sixty years ago, 2,442 newspapers were published daily nationwide, and 689 cities had competing dailies. Today, in only 42 of the cities served by one of the 1,748 American daily papers is there a competing newspaper under separate ownership. Total daily circulation has passed 62 million copies, but over 40 percent of this circulation is controlled by only 25 ownership groups." "Newspaper owners have profited greatly from the consolidation of the journalism industry. Several of them report yearly profits in the tens of millions of dollars, with after-tax profits ranging from seven to 14 percent of gross revenues. Unfortunately, the owners have made their profits at the expense of the public interest in free expression. As the broad base of newspaper ownership narrows, the variation of facts and opinions received by the public from antagonistic sources is increasingly limited. Newspaper publication is indeed a leading American industry. Through its evolution in this direction, the press has come to be dominated by a select group whose prime interest is economic." "The effect of consolidation within the newspaper industry is magnified by the degree of intermediate ownership. Sixty-eight cities have a radio station owned by the only local daily newspaper, and 160 television stations have newspaper affiliations. In 11 cities, diversity of ownership is completely lacking, with the only television station and newspaper under the same control." Id. at 892-893 (footnotes omitted). See also Congress, FCC Consider Newspaper Control of Local TV, 32 Cong.Q. 659-663 (1974). [ Footnote 4/29 ] Having held that the defamation plaintiff is limited to recovering for "actual injury," the Court hastens to add: "Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering." Ante at 418 U. S. 350 . It should be pointed out that, under the prevailing law, where the defamation is not actionable per se and proof of "special damage" is required, a showing of actual injury to reputation is insufficient; but if pecuniary loss is shown, general reputation damages are recoverable. The Court changes the latter, but not the former, rule. Also under present law, pain and suffering, although shown, do not warrant damages in any defamation action unless the plaintiff is otherwise entitled to at least nominal damages. By imposing a more difficult standard of liability and requiring proof of actual damage to reputation, recovery for pain and suffering, though real, becomes a much more remote possibility. [ Footnote 4/30 ] "The harm resulting from an injury to reputation is difficult to demonstrate both because it may involve subtle differences in the conduct of the recipients toward the plaintiff and because the recipients, the only witnesses able to establish the necessary causal connection, may be reluctant to testify that the publication affected their relationships with the plaintiff. Thus, some presumptions are necessary if the plaintiff is to be adequately compensated." Note, Developments in the Law -- Defamation, 69 Harv.L.Rev. 875, 891-892 (1956). [ Footnote 4/31 ] "On questions of damages, the judge plays an important role. It is, of course, for him to determine and instruct the jury as to what matters may be taken into consideration by them in arriving at a verdict, since such questions are clearly matters of substantive law. But the judge also may and frequently does exercise a judgment as to the amount of damages the plaintiff may recover. His function here is primarily to keep the jury within bounds of reason and common sense, to guard against excessive verdicts dictated by passion and prejudice and to see to it that the amount of the verdict has some reasonable relation to the plaintiff's evidence as to his loss or the probability of loss. Thus, the trial judge may grant a new trial, or the appellate court may reverse and remand the case for a new trial, because of excessive damages or, as is more frequently the case, a remittitur may be ordered, the effect of which is that the plaintiff must accept a specified reduction of his damages or submit to a new trial on the issue of liability as well as damages." 1 F. Harper & F. James, The Law of Torts § 5.29, p. 467 (1956) (footnote omitted). [ Footnote 4/32 ] See Pedrick, supra, 418 U.S. 323 fn4/26|>n. 26, at 587 n. 23. [ Footnote 4/33 ] Murnaghan, supra, 418 U.S. 323 fn4/3|>n. 3, at 29. [ Footnote 4/34 ] Note, Developments in the Law -- Defamation, 69 Harv.L.Rev., supra, at 875, 938 and n. 443. [ Footnote 4/35 ] Id. at 939, 941-942. See, e.g., Cal.Civ.Code § 48a(2) (1954). [ Footnote 4/36 ] 376 U.S. at 376 U. S. 285 . [ Footnote 4/37 ] Id. at 376 U. S. 270 . [ Footnote 4/38 ] Judicial review of jury libel awards for excessiveness should be influenced by First Amendment considerations, but it makes little sense to discard an otherwise useful and time-tested rule because it might be misapplied in a few cases. [ Footnote 4/39 ] O. Holmes, The Common Law 36 (1881). [ Footnote 4/40 ] Ante at 418 U. S. 351 , 418 U. S. 352 . [ Footnote 4/41 ] Cf. Pedrick, supra, 418 U.S. 323 fn4/26|>n. 26, at 601-602: "A great many forces in our society operate to determine the extent to which men are free, in fact, to express their ideas. Whether there is a privilege for good faith defamatory misstatements on matters of public concern or whether there is strict liability for such statements may not greatly affect the course of public discussion. How different has life been in those states which heretofore followed the majority rule imposing strict liability for misstatements of fact defaming public figures from life in the minority states where the good faith privilege held sway?" See also T. Emerson, The System of Freedom of Expression 519 (1970) (footnote omitted): "[O]n the whole the role of libel law in the system of freedom of expression has been relatively minor and essentially erratic." [ Footnote 4/42 ] "The man who is compelled to live every minute of his life among others, and whose every need, thought, desire, fancy or gratification is subject to public scrutiny, has been deprived of his individuality and human dignity. Such an individual merges with the mass. His opinions, being public, tend never to be different; his aspirations, being known, tend always to be conventionally accepted ones; his feelings, being openly exhibited, tend to lose their quality of unique personal warmth and to become the feelings of every man. Such a being, although sentient, is fungible; he is not an individual." Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U.L.Rev. 962, 1003 (1964). [ Footnote 4/43 ] With the evisceration of the common law libel remedy for the private citizen, the Court removes from his legal arsenal the most effective weapon to combat assault on personal reputation by the press establishment. The David and Goliath nature of this relationship is all the more accentuated by the Court's holding today in Miami Herald Publishing Co. v. Tornillo, ante p. 418 U. S. 241 , which I have joined, that an individual criticized by a newspaper's editorial is precluded by the First Amendment from requiring that newspaper to print his reply to that attack. While that case involves an announced candidate for public office, the Court's finding of a First Amendment barrier to government "intrusion into the function of editors," ante at 418 U. S. 258 , does not rest on any distinction between private citizens or public officials. In fact, the Court observes that the First Amendment clearly protects from governmental restraint "the exercise of editorial control and judgment," i.e., "[t]he choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials -- whether fair or unfair. . . ." Ibid. (Emphasis added.) We must, therefore, assume that the hapless ordinary citizen libeled by the press (a) may not enjoin in advance of publication a story about him, regardless of how libelous it may be, Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931); (b) may not compel the newspaper to print his reply; and (c) may not force the newspaper to print a retraction, because a judicially compelled retraction, like a "remedy such as an enforceable right of access," entails "governmental coercion" as to content, which "at once brings about a confrontation with the express provisions of the First Amendment and the judicial gloss on that Amendment developed over the years." Miami Herald Publishing Co. v. Tornillo, ante at 418 U. S. 254 ; but cf. this case, ante at 418 U. S. 368 n. 3 (BRENNAN, J., dissenting). My Brother BRENNAN also suggests that there may constitutionally be room for "the possible enactment of statutes, not requiring proof of fault, which provide . . . for publication of a court's determination of falsity if the plaintiff is able to demonstrate that false statements have been published concerning his activities." Ibid. The Court, however, does not even consider this less drastic alternative to its new "some fault" libel standards. [ Footnote 4/44 ] See 418 U.S. 323 fn4/28|>n. 28, supra. [ Footnote 4/45 ] "No democracy, . . . certainly not the American democracy, will indefinitely tolerate concentrations of private power irresponsible and strong enough to thwart the aspirations of the people. Eventually governmental power will be used to break up private power, or governmental power will be used to regulate private power -- if private power is at once great and irresponsible." Commission on Freedom of the Press, A Free and Responsible Press 80 (1947).

In Gertz v. Robert Welch, Inc., the US Supreme Court held that the media cannot claim protection against defamation lawsuits from private individuals if the statements made are false and concern issues of public interest. The Court distinguished between public officials, public figures, and private individuals, arguing that the latter are more vulnerable to defamation and deserve greater protection. The Court also recognized the state's interest in compensating private individuals for reputational harm. This case established that media organizations can be held liable for defaming private citizens, even when discussing matters of public concern.

Free Speech

Bethel School District v. Fraser

https://supreme.justia.com/cases/federal/us/478/675/

U.S. Supreme Court Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986) Bethel School District No. 403 v. Fraser No. 84-1667 Argued March 3, 1986 Decided July 7, 1986 478 U.S. 675 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus Respondent public high school student (hereafter respondent) delivered a speech nominating a fellow student for a student elective office at a voluntary assembly that was held during school hours as part of a school-sponsored educational program in self-government, and that was attended by approximately 600 students, many of whom were 14-year-olds. During the entire speech, respondent referred to his candidate in terms of an elaborate, graphic, and explicit sexual metaphor. Some of the students at the assembly hooted and yelled during the speech, some mimicked the sexual activities alluded to in the speech, and others appeared to be bewildered and embarrassed. Prior to delivering the speech, respondent discussed it with several teachers, two of whom advised him that it was inappropriate and should not be given. The morning after the assembly, the Assistant Principal called respondent into her office and notified him that the school considered his speech to have been a violation of the school's "disruptive conduct rule," which prohibited conduct that substantially interfered with the educational process, including the use of obscene, profane language or gestures. Respondent was given copies of teacher reports of his conduct, and was given a chance to explain his conduct. After he admitted that he deliberately used sexual innuendo in the speech, he was informed that he would be suspended for three days, and that his name would be removed from the list of candidates for graduation speaker at the school's commencement exercises. Review of the disciplinary action through petitioner School District's grievance procedures resulted in affirmance of the discipline, but respondent was allowed to return to school after serving only two days of his suspension. Respondent, by his father (also a respondent) as guardian ad litem, then filed suit in Federal District Court, alleging a violation of his First Amendment right to freedom of speech and seeking injunctive relief and damages under 42 U.S.C. § 1983. The court held that the school's sanctions violated the First Amendment, that the school's disruptive conduct rule was unconstitutionally vague and overbroad, and that the removal of respondent's name from the graduation speaker's list violated the Due Process Clause of the Fourteenth Amendment. The court awarded respondent monetary relief and enjoined the Page 478 U. S. 676 School District from preventing him from speaking at the commencement ceremonies. The Court of Appeals affirmed. Held: 1. The First Amendment did not prevent the School District from disciplining respondent for giving the offensively lewd and indecent speech at the assembly. Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 , distinguished. Under the First Amendment, the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, but it does not follow that the same latitude must be permitted to children in a public school. It is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions. The inculcation of these values is truly the work of the school, and the determination of what manner of speech is inappropriate properly rests with the school board. First Amendment jurisprudence recognizes an interest in protecting minors from exposure to vulgar and offensive spoken language, FCC v. Pacifica Foundation, 438 U. S. 726 , as well as limitations on the otherwise absolute interest of the speaker in reaching an unlimited audience where the speech is sexually explicit and the audience may include children. Ginsberg v. New York, 390 U. S. 629 . Petitioner School District acted entirely within its permissible authority in imposing sanctions upon respondent in response to his offensively lewd and indecent speech, which had no claim to First Amendment protection. Pp. 478 U. S. 680 -686. 2. There is no merit to respondent's contention that the circumstances of his suspension violated due process because he had no way of knowing that the delivery of the speech would subject him to disciplinary sanctions. Given the school's need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process, the school disciplinary rules need not be as detailed as a criminal code which imposes criminal sanctions. The school disciplinary rule proscribing "obscene" language and the prespeech admonitions of teachers gave adequate warning to respondent that his lewd speech could subject him to sanctions. P. 478 U. S. 686 . 755 F.2d 1356, reversed. BURGER, C.J., delivered the opinion of the Court, in which WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN J., filed an opinion concurring in the judgment, post, p. 478 U. S. 687 . BLACKMUN, J. concurred in the result. MARSHALL, J., post, p. 478 U. S. 690 , and STEVENS, J., post, p. 478 U. S. 691 , filed dissenting opinions. Page 478 U. S. 677 CHIEF JUSTICE BURGER delivered the opinion of the Court. We granted certiorari to decide whether the First Amendment prevents a school district from disciplining a high school student for giving a lewd speech at a school assembly. I A On April 26, 1983, respondent Matthew N. Fraser, a student at Bethel High School in Pierce County, Washington, delivered a speech nominating a fellow student for student elective office. Approximately 600 high school students, many of whom were 14-year-olds, attended the assembly. Students were required to attend the assembly or to report to the study hall. The assembly was part of a school-sponsored educational program in self-government. Students who elected not to attend the assembly were required to report to study hall. During the entire speech, Fraser referred Page 478 U. S. 678 to his candidate in terms of an elaborate, graphic, and explicit sexual metaphor. Two of Fraser's teachers, with whom he discussed the contents of his speech in advance, informed him that the speech was "inappropriate and that he probably should not deliver it," App. 30, and that his delivery of the speech might have "severe consequences." Id. at 61. During Fraser's delivery of the speech, a school counselor observed the reaction of students to the speech. Some students hooted and yelled; some by gestures graphically simulated the sexual activities pointedly alluded to in respondent's speech. Other students appeared to be bewildered and embarrassed by the speech. One teacher reported that, on the day following the speech, she found it necessary to forgo a portion of the scheduled class lesson in order to discuss the speech with the class. Id. at 41-44. A Bethel High School disciplinary rule prohibiting the use of obscene language in the school provides: "Conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures." The morning after the assembly, the Assistant Principal called Fraser into her office and notified him that the school considered his speech to have been a violation of this rule. Fraser was presented with copies of five letters submitted by teachers, describing his conduct at the assembly; he was given a chance to explain his conduct and he admitted to having given the speech described and that he deliberately used sexual innuendo in the speech. Fraser was then informed that he would be suspended for three days, and that his name would be removed from the list of candidates for graduation speaker at the school's commencement exercises. Fraser sought review of this disciplinary action through the School District's grievance procedures. The hearing officer determined that the speech given by respondent was "indecent, lewd, and offensive to the modesty and decency of Page 478 U. S. 679 many of the students and faculty in attendance at the assembly." The examiner determined that the speech fell within the ordinary meaning of "obscene," as used in the disruptive conduct rule, and affirmed the discipline in its entirety. Fraser served two days of his suspension, and was allowed to return to school on the third day. B Respondent, by his father as guardian ad litem, then brought this action in the United States District Court for the Western District of Washington. Respondent alleged a violation of his First Amendment right to freedom of speech, and sought both injunctive relief and monetary damages under 42 U.S.C. § 1983. The District Court held that the school's sanctions violated respondent's right to freedom of speech under the First Amendment to the United States Constitution, that the school's disruptive conduct rule is unconstitutionally vague and overbroad, and that the removal of respondent's name from the graduation speaker's list violated the Due Process Clause of the Fourteenth Amendment because the disciplinary rule makes no mention of such removal as a possible sanction. The District Court awarded respondent $278 in damages, $12,750 in litigation costs and attorney's fees, and enjoined the School District from preventing respondent from speaking at the commencement ceremonies. Respondent, who had been elected graduation speaker by a write-in vote of his classmates, delivered a speech at the commencement ceremonies on June 8, 1983. The Court of Appeals for the Ninth Circuit affirmed the judgment of the District Court, 755 F.2d 1356 (1985), holding that respondent's speech was indistinguishable from the protest armband in Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969). The court explicitly rejected the School District's argument that the speech, unlike the passive conduct of wearing a black armband, had a disruptive effect on the educational process. The Court of Page 478 U. S. 680 Appeals also rejected the School District's argument that it had an interest in protecting an essentially captive audience of minors from lewd and indecent language in a setting sponsored by the school, reasoning that the School District's "unbridled discretion" to determine what discourse is "decent" would "increase the risk of cementing white, middle-class standards for determining what is acceptable and proper speech and behavior in our public schools." 755 F.2d at 1363. Finally, the Court of Appeals rejected the School District's argument that, incident to its responsibility for the school curriculum, it had the power to control the language used to express ideas during a school-sponsored activity. We granted certiorari, 474 U.S. 814 (1985). We reverse. II This Court acknowledged in Tinker v. Des Moines Independent Community School Dist., supra, that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Id. at 474 U. S. 506 . The Court of Appeals read that case as precluding any discipline of Fraser for indecent speech and lewd conduct in the school assembly. That court appears to have proceeded on the theory that the use of lewd and obscene speech in order to make what the speaker considered to be a point in a nominating speech for a fellow student was essentially the same as the wearing of an armband in Tinker as a form of protest or the expression of a political position. The marked distinction between the political "message" of the armbands in Tinker and the sexual content of respondent's speech in this case seems to have been given little weight by the Court of Appeals. In upholding the students' right to engage in a nondisruptive, passive expression of a political viewpoint in Tinker, this Court was careful to note that the case did "not concern speech or action that intrudes upon the work of the schools or the rights of other students." Id. at 393 U. S. 508 . Page 478 U. S. 681 It is against this background that we turn to consider the level of First Amendment protection accorded to Fraser's utterances and actions before an official high school assembly attended by 600 students. III The role and purpose of the American public school system were well described by two historians, who stated: "[P]ublic education must prepare pupils for citizenship in the Republic. . . . It must inculcate the habits and manners of civility as values in themselves conducive to happiness and as indispensable to the practice of self-government in the community and the nation." C. Beard & M. Beard, New Basic History of the United States 228 (1968). In Ambach v. Norwick, 441 U. S. 68 , 441 U. S. 76 -77 (1979), we echoed the essence of this statement of the objectives of public education as the "inculcat[ion of] fundamental values necessary to the maintenance of a democratic political system." These fundamental values of "habits and manners of civility" essential to a democratic society must, of course, include tolerance of divergent political and religious views, even when the views expressed may be unpopular. But these "fundamental values" must also take into account consideration of the sensibilities of others, and, in the case of a school, the sensibilities of fellow students. The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behavior. Even the most heated political discourse in a democratic society requires consideration for the personal sensibilities of the other participants and audiences. In our Nation's legislative halls, where some of the most vigorous political debates in our society are carried on, there are rules prohibiting the use of expressions offensive to other participants in the debate. The Manual of Parliamentary Page 478 U. S. 682 Practice, drafted by Thomas Jefferson and adopted by the House of Representatives to govern the proceedings in that body, prohibits the use of "impertinent" speech during debate, and likewise provides that "[n]o person is to use indecent language against the proceedings of the House." Jefferson's Manual of Parliamentary Practice §§ 359, 360, reprinted in Manual and Rules of House of Representatives, H.R. Doc. No. 97-271, pp. 158-159 (1982); see id. at 111, n. a (Jefferson's Manual governs the House in all cases to which it applies). The Rules of Debate applicable in the Senate likewise provide that a Senator may be called to order for imputing improper motives to another Senator or for referring offensively to any state. See Senate Procedure, S. Doc. No. 97-2, Rule XIX, pp. 568-569, 588-591 (1981). Senators have been censured for abusive language directed at other Senators. See Senate Election, Expulsion and Censure Cases from 1793 to 1972, S.Doc. No. 92-7, pp. 95-98 (1972) (Sens. McLaurin and Tillman); id. at 152-153 (Sen. McCarthy). Can it be that what is proscribed in the halls of Congress is beyond the reach of school officials to regulate? The First Amendment guarantees wide freedom in matters of adult public discourse. A sharply divided Court upheld the right to express an antidraft viewpoint in a public place, albeit in terms highly offensive to most citizens. See Cohen v. California, 403 U. S. 15 (1971). It does not follow, however, that, simply because the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, the same latitude must be permitted to children in a public school. In New Jersey v. T.L.O., 469 U. S. 325 , 469 U. S. 340 -342 (1985), we reaffirmed that the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings. As cogently expressed by Judge Newman, "the First Amendment gives a high school student the classroom right to wear Tinker's armband, but not Cohen's jacket." Thomas v. Board of Education, Granville Central School Page 478 U. S. 683 Dist., 607 F.2d 1043, 1057 (CA2 1979) (opinion concurring in result). Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. Indeed, the "fundamental values necessary to the maintenance of a democratic political system" disfavor the use of terms of debate highly offensive or highly threatening to others. Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions. The inculcation of these values is truly the "work of the schools." Tinker, 393 U.S. at 393 U. S. 508 ; see Ambach v. Norwick, supra. The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board. The process of educating our youth for citizenship in public schools is not confined to books, the curriculum, and the civics class; schools must teach by example the shared values of a civilized social order. Consciously or otherwise, teachers -- and indeed the older students -- demonstrate the appropriate form of civil discourse and political expression by their conduct and deportment in and out of class. Inescapably, like parents, they are role models. The schools, as instruments of the state, may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech and conduct such as that indulged in by this confused boy. The pervasive sexual innuendo in Fraser's speech was plainly offensive to both teachers and students -- indeed, to any mature person. By glorifying male sexuality, and in its verbal content, the speech was acutely insulting to teenage girl students. See App. 77-81. The speech could well be seriously damaging to its less mature audience, many of whom were only 14 years old and on the threshold of awareness of human sexuality. Some students were reported as Page 478 U. S. 684 bewildered by the speech and the reaction of mimicry it provoked. This Court's First Amendment jurisprudence has acknowledged limitations on the otherwise absolute interest of the speaker in reaching an unlimited audience where the speech is sexually explicit and the audience may include children. In Ginsberg v. New York, 390 U. S. 629 (1968), this Court upheld a New York statute banning the sale of sexually oriented material to minors, even though the material in question was entitled to First Amendment protection with respect to adults. And in addressing the question whether the First Amendment places any limit on the authority of public schools to remove books from a public school library, all Members of the Court, otherwise sharply divided, acknowledged that the school board has the authority to remove books that are vulgar. Board of Education v. Pico, 457 U. S. 853 , 457 U. S. 871 -872 (1982) (plurality opinion); id. at 457 U. S. 879 -881 (BLACKMUN, J., concurring in part and in judgment); id. at 457 U. S. 918 -920 (REHNQUIST, J., dissenting). These cases recognize the obvious concern on the part of parents, and school authorities acting in loco parentis, to protect children especially in a captive audience -- from exposure to sexually explicit, indecent, or lewd speech. We have also recognized an interest in protecting minors from exposure to vulgar and offensive spoken language. In FCC v. Pacifica Foundation, 438 U. S. 726 (1978), we dealt with the power of the Federal Communications Commission to regulate a radio broadcast described as "indecent but not obscene." There the Court reviewed an administrative condemnation of the radio broadcast of a self-styled "humorist" who described his own performance as being in "the words you couldn't say on the public, ah, airwaves, um, the ones you definitely wouldn't say ever." Id. at 438 U. S. 729 ; see also id. at 438 U. S. 751 -755 (Appendix to opinion of the Court). The Commission concluded that "certain words depicted sexual and excretory activities in a patently offensive manner, [and] noted Page 478 U. S. 685 that they were broadcast at a time when children were undoubtedly in the audience.'" The Commission issued an order declaring that the radio station was guilty of broadcasting indecent language in violation of 18 U.S.C. § 1464. 438 U.S. at 438 U. S. 732 . The Court of Appeals set aside the Commission's determination, and we reversed, reinstating the Commission's citation of the station. We concluded that the broadcast was properly considered "obscene, indecent, or profane" within the meaning of the statute. The plurality opinion went on to reject the radio station's assertion of a First Amendment right to broadcast vulgarity: "These words offend for the same reasons that obscenity offends. Their place in the hierarchy of First Amendment values was aptly sketched by Mr. Justice Murphy when he said:" "[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." " Chaplinsky v. New Hampshire, 315 U.S. at 315 U. S. 572 ." Id. at 438 U. S. 746 . We hold that petitioner School District acted entirely within its permissible authority in imposing sanctions upon Fraser in response to his offensively lewd and indecent speech. Unlike the sanctions imposed on the students wearing armbands in Tinker, the penalties imposed in this case were unrelated to any political viewpoint. The First Amendment does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent's would undermine the school's basic educational mission. A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students. Accordingly, it was perfectly appropriate for the school to disassociate itself to make the point to the pupils that vulgar speech and lewd conduct is wholly inconsistent with the "fundamental values" of public Page 478 U. S. 686 school education. Justice Black, dissenting in Tinker, made a point that is especially relevant in this case: "I wish therefore, . . . to disclaim any purpose . . . to hold that the Federal Constitution compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students." 393 U.S. at 526. IV Respondent contends that the circumstances of his suspension violated due process because he had no way of knowing that the delivery of the speech in question would subject him to disciplinary sanctions. This argument is wholly without merit. We have recognized that "maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures, and we have respected the value of preserving the informality of the student-teacher relationship." New Jersey v. T.L.O., 469 U.S. at 469 U. S. 340 . Given the school's need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process, the school disciplinary rules need not be as detailed as a criminal code, which imposes criminal sanctions. Cf. Arnett v. Kennedy, 416 U. S. 134 , 416 U. S. 161 (1974) (REHNQUIST, J., concurring). Two days' suspension from school does not rise to the level of a penal sanction calling for the full panoply of procedural due process protections applicable to a criminal prosecution. Cf. Goss v. Lopez, 419 U. S. 565 (1975). The school disciplinary rule proscribing "obscene" language and the prespeech admonitions of teachers gave adequate warning to Fraser that his lewd speech could subject him to sanctions. * Page 478 U. S. 687 The judgment of the Court of Appeals for the Ninth Circuit is Reversed. JUSTICE BLACKMUN concurs in the result. * Petitioners also challenge the ruling of the District Court that the removal of Fraser's name from the ballot for graduation speaker violated his due process rights because that sanction was not indicated as a potential punishment in the school's disciplinary rules. We agree with the Court of Appeals that this issue has become moot, since the graduation ceremony has long since passed and Fraser was permitted to speak in accordance with the District Court's injunction. No part of the damages award was based upon the removal of Fraser's name from the list, since damages were based upon the loss of two days' schooling. JUSTICE BRENNAN, concurring in the judgment. Respondent gave the following speech at a high school assembly in support of a candidate for student government office: "I know a man who is firm -- he's firm in his pants, he's firm in his shirt, his character is firm -- but most . . . of all, his belief in you, the students of Bethel, is firm." "Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts -- he drives hard, pushing and pushing until finally -- he succeeds." "Jeff is a man who will go to the very end -- even the climax, for each and every one of you." "So vote for Jeff for A.S.B. vice-president -- he'll never come between you and the best our high school can be." App. 47. The Court, referring to these remarks as "obscene," "vulgar," "lewd," and "offensively lewd," concludes that school officials properly punished respondent for uttering the speech. Having read the full text of respondent's remarks, I find it difficult to believe that it is the same speech the Court describes. To my mind, the most that can be said about respondent's speech -- and all that need be said -- is that, in light of the discretion school officials have to teach high school students how to conduct civil and effective public discourse, and to prevent disruption of school educational activities, it was Page 478 U. S. 688 not unconstitutional for school officials to conclude, under the circumstances of this case, that respondent's remarks exceeded permissible limits. Thus, while I concur in the Court's judgment, I write separately to express my understanding of the breadth of the Court's holding. The Court today reaffirms the unimpeachable proposition that students do not " shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.'" Ante at 478 U. S. 680 (quoting Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 , 393 U. S. 506 (1969)). If respondent had given the same speech outside of the school environment, he could not have been penalized simply because government officials considered his language to be inappropriate, see Cohen v. California, 403 U. S. 15 (1971); the Court's opinion does not suggest otherwise. [ Footnote 1 ] Moreover, despite the Court's characterizations, the language respondent used is far removed from the very narrow class of "obscene" speech which the Court has held is not protected by the First Amendment. Ginsberg v. New York, 390 U. S. 629 , 390 U. S. 635 (1968); Roth v. United States, 354 U. S. 476 , 354 U. S. 485 (1957). It is true, however, that the State has interests in teaching high school students how to conduct civil and effective public discourse and in avoiding disruption of educational school activities. Thus, the Court holds that, under certain circumstances, high school students may properly be reprimanded for giving a speech at a high school assembly which school officials conclude disrupted the school's educational Page 478 U. S. 689 mission. [ Footnote 2 ] Respondent's speech may well have been protected had he given it in school but under different circumstances, where the school's legitimate interests in teaching and maintaining civil public discourse were less weighty. In the present case, school officials sought only to ensure that a high school assembly proceed in an orderly manner. There is no suggestion that school officials attempted to regulate respondent's speech because they disagreed with the views he sought to express. Cf. Tinker, supra. Nor does this case involve an attempt by school officials to ban written materials they consider "inappropriate" for high school students, cf. Board of Education v. Pico, 457 U. S. 853 (1982), or to limit what students should hear, read, or learn about. Thus, the Court's holding concerns only the authority that school officials have to restrict a high school student's use of disruptive language in a speech given to a high school assembly. The authority school officials have to regulate such speech by high school students is not limitless. See Thomas v. Board of Education, Granville Central School Dist., 607 F.2d 1043, 1057 (CA2 1979) (Newman, J., concurring in result) ("[S]chool officials . . . do [not] have limitless discretion to apply their own notions of indecency. Courts have a First Page 478 U. S. 690 Amendment responsibility to insure that robust rhetoric . . . is not suppressed by prudish failures to distinguish the vigorous from the vulgar"). Under the circumstances of this case, however, I believe that school officials did not violate the First Amendment in determining that respondent should be disciplined for the disruptive language he used while addressing a high school assembly. [ Footnote 3 ] Thus, I concur in the judgment reversing the decision of the Court of Appeals. [ Footnote 1 ] In the course of its opinion, the Court makes certain remarks concerning the authority of school officials to regulate student language in public schools. For example, the Court notes that "[n]othing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions." Ante at 478 U. S. 683 . These statements obviously do not, and indeed, given our prior precedents, could not, refer to the government's authority generally to regulate the language used in public debate outside of the school environment. [ Footnote 2 ] The Court speculates that the speech was "insulting" to female students, and "seriously damaging" to 14-year-olds, so that school officials could legitimately suppress such expression in order to protect these groups. Ante at 478 U. S. 683 . There is no evidence in the record that any students, male or female, found the speech "insulting." And while it was not unreasonable for school officials to conclude that respondent's remarks were inappropriate for a school-sponsored assembly, the language respondent used does not even approach the sexually explicit speech regulated in Ginsberg v. New York, 390 U. S. 629 (1968), or the indecent speech banned in FCC v. Pacifica Foundation, 438 U. S. 726 (1978). Indeed, to my mind, respondent's speech was no more "obscene," "lewd," or "sexually explicit" than the bulk of programs currently appearing on prime time television or in the local cinema. Thus, I disagree with the Court's suggestion that school officials could punish respondent's speech out of a need to protect younger students. [ Footnote 3 ] Respondent served two days' suspension and had his name removed from the list of candidates for graduation speaker at the school's commencement exercises, although he was eventually permitted to speak at the graduation. While I find this punishment somewhat severe in light of the nature of respondent's transgression, I cannot conclude that school officials exceeded the bounds of their disciplinary authority. JUSTICE MARSHALL, dissenting. I agree with the principles that JUSTICE BRENNAN sets out in his opinion concurring in the judgment. I dissent from the Court's decision, however, because, in my view, the School District failed to demonstrate that respondent's remarks were indeed disruptive. The District Court and Court of Appeals conscientiously applied Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969), and concluded that the School District had not demonstrated any disruption of the educational process. I recognize that the school administration must be given wide latitude to determine what forms of conduct are inconsistent with the school's educational mission; nevertheless, where speech is involved, we may not unquestioningly accept a teacher's or administrator's assertion that certain pure speech interfered with education. Here the School District, despite a clear opportunity to do so, failed to bring in evidence sufficient to convince either of the two lower courts that education at Bethel School was disrupted by respondent's speech. I therefore see no reason to disturb the Court of Appeals' judgment. Page 478 U. S. 691 JUSTICE STEVENS, dissenting. "Frankly, my dear, I don't give a damn." When I was a high school student, the use of those words in a public forum shocked the Nation. Today Clark Gable's four-letter expletive is less offensive than it was then. Nevertheless, I assume that high school administrators may prohibit the use of that word in classroom discussion and even in extracurricular activities that are sponsored by the school and held on school premises. For I believe a school faculty must regulate the content as well as the style of student speech in carrying out its educational mission. [ Footnote 2/1 ] It does seem to me, however, that, if a student is to be punished for using offensive speech, he is entitled to fair notice of the scope of the prohibition and the consequences of its violation. Page 478 U. S. 692 The interest in free speech protected by the First Amendment and the interest in fair procedure protected by the Due Process Clause of the Fourteenth Amendment combine to require this conclusion. This respondent was an outstanding young man with a fine academic record. The fact that he was chosen by the student body to speak at the school's commencement exercises demonstrates that he was respected by his peers. This fact is relevant for two reasons. It confirms the conclusion that the discipline imposed on him -- a 3-day suspension and ineligibility to speak at the school's graduation exercises-- was sufficiently serious to justify invocation of the School District's grievance procedures. See Goss v. Lopez, 419 U. S. 565 , 419 U. S. 574 -575 (1975). More importantly, it indicates that he was probably in a better position to determine whether an audience composed of 600 of his contemporaries would be offended by the use of a four-letter word -- or a sexual metaphor -- than is a group of judges who are at least two generations and 3,000 miles away from the scene of the crime. [ Footnote 2/2 ] The fact that the speech may not have been offensive to his audience -- or that he honestly believed that it would be inoffensive -- does not mean that he had a constitutional right to deliver it. For the school -- not the student -- must prescribe the rules of conduct in an educational institution. [ Footnote 2/3 ] But it Page 478 U. S. 693 does mean that he should not be disciplined for speaking frankly in a school assembly if he had no reason to anticipate punitive consequences. One might conclude that respondent should have known that he would be punished for giving this speech on three quite different theories: (1) it violated the "Disruptive Conduct" rule published in the student handbook; (2) he was specifically warned by his teachers; or (3) the impropriety is so obvious that no specific notice was required. I discuss each theory in turn. The Disciplinary Rule At the time the discipline was imposed, as well as in its defense of this lawsuit, the school took the position that respondent violated the following published rule: "In addition to the criminal acts defined above, the commission of, or participation in certain noncriminal activities or acts may lead to disciplinary action. Generally, these are acts which disrupt and interfere with the educational process." " * * * *" " Disruptive Conduct. Conduct which materially and substantially interferes with the educational process is prohibited, including the use of obscene, profane language or gestures." 755 F.2d 1356, 1357, n. 1 (CA9 1985). Based on the findings of fact made by the District Court, the Court of Appeals concluded that the evidence did not show "that the speech had a materially disruptive effect on the educational process." Id. at 1361. The Court of Appeals explained the basis for this conclusion: "[T]he record now before us yields no evidence that Fraser's use of a sexual innuendo in his speech materially interfered with activities at Bethel High School. While the students' reaction to Fraser's speech may fairly be characterized as boisterous, it was hardly disruptive Page 478 U. S. 694 of the educational process. In the words of Mr. McCutcheon, the school counselor whose testimony the District relies upon, the reaction of the student body 'was not atypical to a high school auditorium assembly.' In our view, a noisy response to the speech and sexually suggestive movements by three students in a crowd of 600 fail to rise to the level of a material interference with the educational process that justifies impinging upon Fraser's First Amendment right to express himself freely." "We find it significant that, although four teachers delivered written statements to an assistant principal commenting on Fraser's speech, none of them suggested that the speech disrupted the assembly or otherwise interfered with school activities. See Finding of Fact No. 8. Nor can a finding of material disruption be based upon the evidence that the speech proved to be a lively topic of conversation among students the following day." Id. at 1360-1361. Thus, the evidence in the record, as interpreted by the District Court and the Court of Appeals, makes it perfectly clear that respondent's speech was not "conduct" prohibited by the disciplinary rule. [ Footnote 2/4 ] Indeed, even if the language of the rule could be stretched to encompass the nondisruptive use of obscene or profane language, there is no such language in respondent's speech. What the speech does contain is a sexual metaphor that may unquestionably be offensive to some listeners in some settings. But if an impartial judge puts his Page 478 U. S. 695 or her own views about the metaphor to one side, I simply cannot understand how he or she could conclude that it is embraced by the above-quoted rule. At best, the rule is sufficiently ambiguous that, without a further explanation or construction, it could not advise the reader of the student handbook that the speech would be forbidden. [ Footnote 2/5 ] The Specific Warning by the Teachers Respondent read his speech to three different teachers before he gave it. Mrs. Irene Hicks told him that she thought the speech "was inappropriate, and that he probably should not deliver it." App. 30. Steven DeHart told respondent "that this would indeed cause problems in that it would raise eyebrows." Id. at 61. The third teacher, Shawn Madden, did not testify. None of the three suggested that the speech might violate a school rule. Id. at 49-50. The fact that respondent reviewed the text of his speech with three different teachers before he gave it does indicate that he must have been aware of the possibility that it would provoke an adverse reaction, but the teachers' responses certainly did not give him any better notice of the likelihood of discipline than did the student handbook itself. In my opinion, therefore, the most difficult question is whether the speech was so obviously offensive that an intelligent high school student must be presumed to have realized that he would be punished for giving it. Page 478 U. S. 696 Obvious Impropriety Justice Sutherland taught us that a "nuisance may be merely a right thing in the wrong place, -- like a pig in the parlor instead of the barnyard." Euclid v. Ambler Realty Co., 272 U. S. 365 , 272 U. S. 388 (1926). Vulgar language, like vulgar animals, may be acceptable in some contexts and intolerable in others. See FCC v. Pacifica Foundation, 438 U. S. 726 , 438 U. S. 750 (1978). Indeed, even ordinary, inoffensive speech may be wholly unacceptable in some settings. See Schenck v. United States, 249 U. S. 47 , 249 U. S. 52 (1919); Pacifica, supra, at 438 U. S. 744 -745. It seems fairly obvious that respondent's speech would be inappropriate in certain classroom and formal social settings. On the other hand, in a locker room or perhaps in a school corridor, the metaphor in the speech might be regarded as rather routine comment. If this be true, and if respondent's audience consisted almost entirely of young people with whom he conversed on a daily basis, can we -- at this distance -- confidently assert that he must have known that the school administration would punish him for delivering it? For three reasons, I think not. First, it seems highly unlikely that he would have decided to deliver the speech if he had known that it would result in his suspension and disqualification from delivering the school commencement address. Second, I believe a strong presumption in favor of free expression should apply whenever an issue of this kind is arguable. Third, because the Court has adopted the policy of applying contemporary community standards in evaluating expression with sexual connotations, this Court should defer to the views of the district and circuit judges who are in a much better position to evaluate this speech than we are. I would affirm the judgment of the Court of Appeals. [ Footnote 2/1 ] "Because every university's resources are limited, an educational institution must routinely make decisions concerning the use of the time and space that is available for extracurricular activities. In my judgment, it is both necessary and appropriate for those decisions to evaluate the content of a proposed student activity. I should think it obvious, for example, that, if two groups of 25 students requested the use of a room at a particular time -- one to view Mickey Mouse cartoons and the other to rehearse an amateur performance of Hamlet -- the First Amendment would not require that the room be reserved for the group that submitted its application first. Nor do I see why a university should have to establish a 'compelling state interest' to defend its decision to permit one group to use the facility and not the other. In my opinion, a university should be allowed to decide for itself whether a program that illuminates the genius of Walt Disney should be given precedence over one that may duplicate material adequately covered in the classroom. Judgments of this kind should be made by academicians, not by federal judges, and their standards for decision should not be encumbered with ambiguous phrases like 'compelling state interest.'" Widmar v. Vincent, 454 U. S. 263 , 454 U. S. 278 -279 (1981) (STEVENS, J., concurring in judgment) (footnotes omitted). "Any student of history who has been reprimanded for talking about the World Series during a class discussion of the First Amendment knows that it is incorrect to state that a 'time, place, or manner restriction may not be based upon either the content or subject matter of speech.'" Consolidated Edison Co. v. Public Service Comm'n of N.Y., 447 U. S. 530 , 447 U. S. 544 -545 (1980) (STEVENS, J, concurring in judgment) [ Footnote 2/2 ] As the Court of Appeals noted, there "is no evidence in the record indicating that any students found the speech to be offensive." 755 F.2d 1356, 1361, n. 4 (CA9 1985). In its opinion today, the Court describes respondent as a "confused boy," ante at 478 U. S. 683 , and repeatedly characterizes his audience of high school students as "children," ante at 478 U. S. 682 , 684. When a more orthodox message is being conveyed to a similar audience, four Members of today's majority would treat high school students like college students, rather than like children. See Bender v. Williamsport Area School Dist., 475 U. S. 534 (1986) (dissenting opinions). [ Footnote 2/3 ] See Arnold v. Carpenter, 459 F.2d 939, 944 (CA7 1972) (STEVENS, J., dissenting). [ Footnote 2/4 ] The Court's reliance on the school's authority to prohibit "unanticipated conduct disruptive of the educational process," ante at 478 U. S. 686 , is misplaced. The findings of the District Court, which were upheld by the Court of Appeals, established that the speech was not "disruptive." Departing from our normal practice concerning factual findings, the Court's decision rests on "utterly unproven, subjective impressions of some hypothetical students." Bender v. Williamsport Area School Dist., 475 U.S. at 475 U. S. 553 (BURGER, C.J., dissenting). [ Footnote 2/5 ] The school's disruptive conduct rule is entirely concerned with "the educational process." It does not expressly refer to extracurricular activities in general, or to student political campaigns or student debates. In contrast, "[i]n our Nation's legislative halls, where some of the most vigorous political debates in our society are carried on, there are rules prohibiting the use of expressions offensive to other participants in the debate." See ante at 478 U. S. 681 . If a written rule is needed to forewarn a United States Senator that the use of offensive speech may give rise to discipline, a high school student should be entitled to an equally unambiguous warning. Unlike the Manual of Parliamentary Practice drafted by Thomas Jefferson, this School District's rules of conduct contain no unequivocal prohibition against the use of "impertinent" speech or "indecent language."

The Supreme Court ruled that a public high school student's lewd and indecent speech at a school assembly was not protected by the First Amendment, upholding the school's disciplinary action. The Court emphasized that schools have a responsibility to teach students the boundaries of socially appropriate behavior and that the student's speech was disruptive and inappropriate. The Court also noted the young age of the audience and the school's disruptive conduct rule, which prohibited obscene language. This case sets a precedent for schools' authority to regulate student speech that is deemed offensive or disruptive.

Free Speech

Texas v. Johnson

https://supreme.justia.com/cases/federal/us/491/397/

U.S. Supreme Court Texas v. Johnson, 491 U.S. 397 (1989) Texas v. Johnson No. 88-155 Argued March 21, 1989 Decided June 21, 1989 491 U.S. 397 CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS Syllabus During the 1984 Republican National Convention, respondent Johnson participated in a political demonstration to protest the policies of the Reagan administration and some Dallas-based corporations. After a march through the city streets, Johnson burned an American flag while protesters chanted. No one was physically injured or threatened with injury, although several witnesses were seriously offended by the flag burning. Johnson was convicted of desecration of a venerated object in violation of a Texas statute, and a state court of appeals affirmed. However, the Texas Court of Criminal Appeals reversed, holding that the State, consistent with the First Amendment, could not punish Johnson for burning the flag in these circumstances. The court first found that Johnson's burning of the flag was expressive conduct protected by the First Amendment. The court concluded that the State could not criminally sanction flag desecration in order to preserve the flag as a symbol of national unity. It also held that the statute did not meet the State's goal of preventing breaches of the peace, since it was not drawn narrowly enough to encompass only those flag burnings that would likely result in a serious disturbance, and since the flag burning in this case did not threaten such a reaction. Further, it stressed that another Texas statute prohibited breaches of the peace and could be used to prevent disturbances without punishing this flag desecration. Held: Johnson's conviction for flag desecration is inconsistent with the First Amendment. Pp. 491 U. S. 402 -420. (a) Under the circumstances, Johnson's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment. The State conceded that the conduct was expressive. Occurring as it did at the end of a demonstration coinciding with the Republican National Convention, the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent. Pp. 491 U. S. 402 -406. (b) Texas has not asserted an interest in support of Johnson's conviction that is unrelated to the suppression of expression and would therefore permit application of the test set forth in United States v. O'Brien, 391 U. S. 367 , whereby an important governmental interest in regulating nonspeech can justify incidental limitations on First Amendment freedoms when speech and nonspeech elements are combined in the same course of conduct. An interest in preventing breaches of the peace is not implicated on this record. Expression may not be prohibited Page 491 U. S. 398 on the basis that an audience that takes serious offense to the expression may disturb the peace, since the Government cannot assume that every expression of a provocative idea will incite a riot, but must look to the actual circumstances surrounding the expression. Johnson's expression of dissatisfaction with the Federal Government's policies also does not fall within the class of "fighting words" likely to be seen as a direct personal insult or an invitation to exchange fisticuffs. This Court's holding does not forbid a State to prevent "imminent lawless action" and, in fact, Texas has a law specifically prohibiting breaches of the peace. Texas' interest in preserving the flag as a symbol of nationhood and national unity is related to expression in this case and, thus, falls outside the O'Brien test. Pp. 491 U. S. 406 -410. (c) The latter interest does not justify Johnson's conviction. The restriction on Johnson's political expression is content based, since the Texas statute is not aimed at protecting the physical integrity of the flag in all circumstances, but is designed to protect it from intentional and knowing abuse that causes serious offense to others. It is therefore subject to "the most exacting scrutiny." Boos v. Barry, 485 U. S. 312 . The Government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable, even where our flag is involved. Nor may a State foster its own view of the flag by prohibiting expressive conduct relating to it, since the Government may not permit designated symbols to be used to communicate a limited set of messages. Moreover, this Court will not create an exception to these principles protected by the First Amendment for the American flag alone. Pp. 491 U. S. 410 -422. 755 S.W.2d 92 , affirmed. BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, SCALIA, and KENNEDY, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. 491 U. S. 420 . REHNQUIST, C.J., filed a dissenting opinion, in which WHITE and O'CONNOR, JJ., joined, post, p. 491 U. S. 421 . STEVENS, J., filed a dissenting opinion, post, p. 491 U. S. 436 . Page 491 U. S. 399 JUSTICE BRENNAN delivered the opinion of the Court. After publicly burning an American flag as a means of political protest, Gregory Lee Johnson was convicted of desecrating a flag in violation of Texas law. This case presents the question whether his conviction is consistent with the First Amendment. We hold that it is not. I While the Republican National Convention was taking place in Dallas in 1984, respondent Johnson participated in a political demonstration dubbed the "Republican War Chest Tour." As explained in literature distributed by the demonstrators and in speeches made by them, the purpose of this event was to protest the policies of the Reagan administration and of certain Dallas-based corporations. The demonstrators marched through the Dallas streets, chanting political slogans and stopping at several corporate locations to stage "die-ins" intended to dramatize the consequences of nuclear war. On several occasions they spray-painted the walls of buildings and overturned potted plants, but Johnson himself took no part in such activities. He did, however, accept an American flag handed to him by a fellow protestor who had taken it from a flagpole outside one of the targeted buildings. The demonstration ended in front of Dallas City Hall, where Johnson unfurled the American flag, doused it with kerosene, and set it on fire. While the flag burned, the protestors chanted, "America, the red, white, and blue, we spit on you." After the demonstrators dispersed, a witness to the flag burning collected the flag's remains and buried them in his backyard. No one was physically injured or threatened with injury, though several witnesses testified that they had been seriously offended by the flag burning. Page 491 U. S. 400 Of the approximately 100 demonstrators, Johnson alone was charged with a crime. The only criminal offense with which he was charged was the desecration of a venerated object in violation of Tex.Penal Code Ann. § 42.09(a)(3) (1989). [ Footnote 1 ] After a trial, he was convicted, sentenced to one year in prison, and fined $2,000. The Court of Appeals for the Fifth District of Texas at Dallas affirmed Johnson's conviction, 706 S.W.2d 120 (1986), but the Texas Court of Criminal Appeals reversed, 755 S.W.2d 92 (1988), holding that the State could not, consistent with the First Amendment, punish Johnson for burning the flag in these circumstances. The Court of Criminal Appeals began by recognizing that Johnson's conduct was symbolic speech protected by the First Amendment: "Given the context of an organized demonstration, speeches, slogans, and the distribution of literature, anyone who observed appellant's act would have understood the message that appellant intended to convey. The act for which appellant was convicted was clearly 'speech' contemplated by the First Amendment." Id. at 95. To justify Johnson's conviction for engaging in symbolic speech, the State asserted two interests: preserving the flag as a symbol of national unity and preventing breaches of the peace. The Court of Criminal Appeals held that neither interest supported his conviction. Page 491 U. S. 401 Acknowledging that this Court had not yet decided whether the Government may criminally sanction flag desecration in order to preserve the flag's symbolic value, the Texas court nevertheless concluded that our decision in West Virginia Board of Education v. Barnette, 319 U. S. 624 (1943), suggested that furthering this interest by curtailing speech was impermissible. "Recognizing that the right to differ is the centerpiece of our First Amendment freedoms," the court explained, "a government cannot mandate by fiat a feeling of unity in its citizens. Therefore, that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol when it cannot mandate the status or feeling the symbol purports to represent." 755 S.W.2d at 97. Noting that the State had not shown that the flag was in "grave and immediate danger," Barnette, supra, at 639, of being stripped of its symbolic value, the Texas court also decided that the flag's special status was not endangered by Johnson's conduct. 755 S.W.2d at 97. As to the State's goal of preventing breaches of the peace, the court concluded that the flag desecration statute was not drawn narrowly enough to encompass only those flag burnings that were likely to result in a serious disturbance of the peace. And in fact, the court emphasized, the flag burning in this particular case did not threaten such a reaction. " Serious offense' occurred," the court admitted, "but there was no breach of peace, nor does the record reflect that the situation was potentially explosive. One cannot equate 'serious offense' with incitement to breach the peace." Id. at 96. The court also stressed that another Texas statute, Tex.Penal Code Ann. § 42.01 (1989), prohibited breaches of the peace. Citing Boos v. Barry, 485 U. S. 312 (1988), the court decided that § 42.01 demonstrated Texas' ability to prevent disturbances of the peace without punishing this flag desecration. 755 S.W.2d at 96. Page 491 U. S. 402 Because it reversed Johnson's conviction on the ground that § 42.09 was unconstitutional as applied to him, the state court did not address Johnson's argument that the statute was, on its face, unconstitutionally vague and overbroad. We granted certiorari, 488 U.S. 907 (1988), and now affirm. II Johnson was convicted of flag desecration for burning the flag, rather than for uttering insulting words. [ Footnote 2 ] This fact Page 491 U. S. 403 somewhat complicates our consideration of his conviction under the First Amendment. We must first determine whether Johnson's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment in challenging his conviction. See, e.g., Spence v. Washington, 418 U. S. 405 , 418 U. S. 409 -411 (1974). If his conduct was expressive, we next decide whether the State's regulation is related to the suppression of free expression. See, e.g., United States v. O'Brien , 391 U. S. 367 , 391 U. S. 377 (1968); Spence, supra, at 418 U. S. 414 , n. 8. If the State's regulation is not related to expression, then the less stringent standard we announced in United States v. O'Brien for regulations of noncommunicative conduct controls. See O'Brien, supra, at 391 U. S. 377 . If it is, then we are outside of O'Brien 's test, and we must ask whether this interest justifies Johnson's conviction under a more demanding standard. [ Footnote 3 ] See Spence, supra, at 418 U. S. 411 . A Page 491 U. S. 404 third possibility is that the State's asserted interest is simply not implicated on these facts, and, in that event, the interest drops out of the picture. See 418 U.S. at 418 U. S. 414 , n. 8. The First Amendment literally forbids the abridgment only of "speech," but we have long recognized that its protection does not end at the spoken or written word. While we have rejected "the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea," United States v. O'Brien, supra, at 391 U. S. 376 , we have acknowledged that conduct may be "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments," Spence, supra, at 418 U. S. 409 . In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether "[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it." 418 U.S. at 418 U. S. 410 -411. Hence, we have recognized the expressive nature of students' wearing of black armbands to protest American military involvement in Vietnam, Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 , 393 U. S. 505 (1969); of a sit-in by blacks in a "whites only" area to protest segregation, Brown v. Louisiana, 383 U. S. 131 , 383 U. S. 141 -142 (1966); of the wearing of American military uniforms in a dramatic presentation criticizing American involvement in Vietnam, Schacht v. United States, 398 U. S. 58 (1970); and of picketing about a wide variety of causes, see, e.g., Food Employees v. Logan Valley Plaza, Inc., 391 U. S. 308 , 391 U. S. 313 -314 (1968); United States v. Grace, 461 U. S. 171 , 461 U. S. 176 (1983). Especially pertinent to this case are our decisions recognizing the communicative nature of conduct relating to flags. Attaching a peace sign to the flag, Spence, supra, at 418 U. S. 409 -410; refusing to salute the flag, Barnette, 319 U.S. at 319 U. S. 632 ; and displaying a red flag, Stromberg v. California, 283 U. S. 359 , Page 491 U. S. 405 283 U. S. 368 -369 (1931), we have held, all may find shelter under the First Amendment. See also Smith v. Goguen, 415 U. S. 566 , 415 U. S. 588 (1974) (WHITE, J., concurring in judgment) (treating flag "contemptuously" by wearing pants with small flag sewn into their seat is expressive conduct). That we have had little difficulty identifying an expressive element in conduct relating to flags should not be surprising. The very purpose of a national flag is to serve as a symbol of our country; it is, one might say, "the one visible manifestation of two hundred years of nationhood." Id. at 415 U. S. 603 (REHNQUIST, J., dissenting). Thus, we have observed: "[T]he flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a shortcut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design." Barnette, supra, at 319 U. S. 632 . Pregnant with expressive content, the flag as readily signifies this Nation as does the combination of letters found in "America." We have not automatically concluded, however, that any action taken with respect to our flag is expressive. Instead, in characterizing such action for First Amendment purposes, we have considered the context in which it occurred. In Spence, for example, we emphasized that Spence's taping of a peace sign to his flag was "roughly simultaneous with and concededly triggered by the Cambodian incursion and the Kent State tragedy." 418 U.S. at 418 U. S. 410 . The State of Washington had conceded, in fact, that Spence's conduct was a form of communication, and we stated that "the State's concession is inevitable on this record." Id. at 418 U. S. 409 . The State of Texas conceded for purposes of its oral argument in this case that Johnson's conduct was expressive conduct, Tr. of Oral Arg. 4, and this concession seems to us as Page 491 U. S. 406 prudent as was Washington's in Spence. Johnson burned an American flag as part -- indeed, as the culmination -- of a political demonstration that coincided with the convening of the Republican Party and its renomination of Ronald Reagan for President. The expressive, overtly political nature of this conduct was both intentional and overwhelmingly apparent. At his trial, Johnson explained his reasons for burning the flag as follows: "The American Flag was burned as Ronald Reagan was being renominated as President. And a more powerful statement of symbolic speech, whether you agree with it or not, couldn't have been made at that time. It's quite a just position [juxtaposition]. We had new patriotism and no patriotism." 5 Record 656. In these circumstances, Johnson's burning of the flag was conduct "sufficiently imbued with elements of communication," Spence, 418 U.S. at 418 U. S. 409 , to implicate the First Amendment. III The government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. See O'Brien, 391 U.S. at 391 U. S. 376 -377; Clark v. Community for Creative Non-Violence, 468 U. S. 288 , 468 U. S. 293 (1984); Dallas v. Stanglin, 490 U. S. 19 , 490 U. S. 25 (1989). It may not, however, proscribe particular conduct because it has expressive elements. "[W]hat might be termed the more generalized guarantee of freedom of expression makes the communicative nature of conduct an inadequate basis for singling out that conduct for proscription. A law directed at the communicative nature of conduct must, like a law directed at speech itself, be justified by the substantial showing of need that the First Amendment requires." Community for Creative Non-Violence v. Watt, 227 U.S.App.D.C. 19, 55-56, 703 F.2d 586, 622-623 (1983) (Scalia, J., dissenting) (emphasis in original), rev'd sub nom. Clark v. Community for Creative Non-Violence, supra. It is, in short, not simply the verbal or nonverbal nature of the expression, but the governmental Page 491 U. S. 407 interest at stake, that helps to determine whether a restriction on that expression is valid. Thus, although we have recognized that, where "'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms," O'Brien, supra, at 391 U. S. 376 , we have limited the applicability of O'Brien's relatively lenient standard to those cases in which "the governmental interest is unrelated to the suppression of free expression." Id. at 391 U. S. 377 ; see also Spence, 418 U.S. at 418 U. S. 414 , n. 8. In stating, moreover, that O'Brien's test "in the last analysis is little, if any, different from the standard applied to time, place, or manner restrictions," Clark, supra, at 468 U. S. 298 , we have highlighted the requirement that the governmental interest in question be unconnected to expression in order to come under O'Brien's less demanding rule. In order to decide whether O'Brien's test applies here, therefore, we must decide whether Texas has asserted an interest in support of Johnson's conviction that is unrelated to the suppression of expression. If we find that an interest asserted by the State is simply not implicated on the facts before us, we need not ask whether O'Brien's test applies. See Spence, supra, at 418 U. S. 414 , n. 8. The State offers two separate interests to justify this conviction: preventing breaches of the peace and preserving the flag as a symbol of nationhood and national unity. We hold that the first interest is not implicated on this record, and that the second is related to the suppression of expression. A Texas claims that its interest in preventing breaches of the peace justifies Johnson's conviction for flag desecration. [ Footnote 4 ] Page 491 U. S. 408 However, no disturbance of the peace actually occurred or threatened to occur because of Johnson's burning of the flag. Although the State stresses the disruptive behavior of the protestors during their march toward City Hall, Brief for Petitioner 34-36, it admits that "no actual breach of the peace occurred at the time of the flagburning or in response to the flagburning." Id. at 34. The State's emphasis on the protestors' disorderly actions prior to arriving at City Hall is not only somewhat surprising, given that no charges were brought on the basis of this conduct, but it also fails to show that a disturbance of the peace was a likely reaction to Johnson's conduct. The only evidence offered by the State at trial to show the reaction to Johnson's actions was the testimony of several persons who had been seriously offended by the flag burning. Id. at 6-7. The State's position, therefore, amounts to a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace, and that the expression may be prohibited on this basis. [ Footnote 5 ] Our precedents do not countenance such a presumption. On the contrary, they recognize that a principal "function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or Page 491 U. S. 409 even stirs people to anger." Terminiello v. Chicago, 337 U. S. 1 , 337 U. S. 4 (1949). See also Cox v. Louisiana, 379 U. S. 536 , 379 U. S. 551 (1965); Tinker v. Des Moines Independent Community School Dist., 393 U.S. at 393 U. S. 508 -509; Coates v. Cincinnati, 402 U. S. 611 , 402 U. S. 615 (1971); Hustler Magazine, Inc. v. Falwell, 485 U. S. 46 , 485 U. S. 55 -56 (1988). It would be odd indeed to conclude both that "if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection," FCC v. Pacifica Foundation, 438 U. S. 726 , 438 U. S. 745 (1978) (opinion of STEVENS, J.), and that the Government may ban the expression of certain disagreeable ideas on the unsupported presumption that their very disagreeableness will provoke violence. Thus, we have not permitted the government to assume that every expression of a provocative idea will incite a riot, but have instead required careful consideration of the actual circumstances surrounding such expression, asking whether the expression "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U. S. 444 , 395 U. S. 447 (1969) (reviewing circumstances surrounding rally and speeches by Ku Klux Klan). To accept Texas' arguments that it need only demonstrate "the potential for a breach of the peace," Brief for Petitioner 37, and that every flag burning necessarily possesses that potential, would be to eviscerate our holding in Brandenburg. This we decline to do. Nor does Johnson's expressive conduct fall within that small class of "fighting words" that are "likely to provoke the average person to retaliation, and thereby cause a breach of the peace." Chaplinsky v. New Hampshire, 315 U. S. 568 , 315 U. S. 574 (1942). No reasonable onlooker would have regarded Johnson's generalized expression of dissatisfaction with the policies of the Federal Government as a direct personal insult or an invitation to exchange fisticuffs. See id. at 315 U. S. 572 -573; Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 309 (1940); FCC v. Pacifica Foundation, supra, at 438 U. S. 745 (opinion of STEVENS, J.). Page 491 U. S. 410 We thus conclude that the State's interest in maintaining order is not implicated on these facts. The State need not worry that our holding will disable it from preserving the peace. We do not suggest that the First Amendment forbids a State to prevent "imminent lawless action." Brandenburg, supra, at 395 U. S. 447 . And, in fact, Texas already has a statute specifically prohibiting breaches of the peace, Tex.Penal Code Ann. § 42.01 (1989), which tends to confirm that Texas need not punish this flag desecration in order to keep the peace. See Boos v. Barry, 485 U.S. at 485 U. S. 327 -329. B The State also asserts an interest in preserving the flag as a symbol of nationhood and national unity. In Spence, we acknowledged that the government's interest in preserving the flag's special symbolic value "is directly related to expression in the context of activity" such as affixing a peace symbol to a flag. 418 U.S. at 418 U. S. 414 , n. 8. We are equally persuaded that this interest is related to expression in the case of Johnson's burning of the flag. The State, apparently, is concerned that such conduct will lead people to believe either that the flag does not stand for nationhood and national unity, but instead reflects other, less positive concepts, or that the concepts reflected in the flag do not in fact exist, that is, that we do not enjoy unity as a Nation. These concerns blossom only when a person's treatment of the flag communicates some message, and thus are related "to the suppression of free expression" within the meaning of O'Brien. We are thus outside of O'Brien's test altogether. IV It remains to consider whether the State's interest in preserving the flag as a symbol of nationhood and national unity justifies Johnson's conviction. As in Spence, "[w]e are confronted with a case of prosecution for the expression of an idea through activity," and "[a]ccordingly, we must examine with particular care the interests Page 491 U. S. 411 advanced by [petitioner] to support its prosecution." 418 U.S. at 418 U. S. 411 . Johnson was not, we add, prosecuted for the expression of just any idea; he was prosecuted for his expression of dissatisfaction with the policies of this country, expression situated at the core of our First Amendment values. See, e.g., Boos v. Barry, supra, at 485 U. S. 318 ; Frisby v. Schultz, 487 U. S. 474 , 487 U. S. 479 (1988). Moreover, Johnson was prosecuted because he knew that his politically charged expression would cause "serious offense." If he had burned the flag as a means of disposing of it because it was dirty or torn, he would not have been convicted of flag desecration under this Texas law: federal law designates burning as the preferred means of disposing of a flag "when it is in such condition that it is no longer a fitting emblem for display," 36 U.S.C. § 176(k), and Texas has no quarrel with this means of disposal. Brief for Petitioner 45. The Texas law is thus not aimed at protecting the physical integrity of the flag in all circumstances, but is designed instead to protect it only against impairments that would cause serious offense to others. [ Footnote 6 ] Texas concedes as much: "Section 42.09(b) reaches only those severe acts of physical abuse of the flag carried out in a way likely to be offensive. The statute mandates intentional or knowing abuse, that is, the kind of mistreatment that is not innocent, but rather is intentionally designed to seriously offend other individuals." Id. at 44. Whether Johnson's treatment of the flag violated Texas law thus depended on the likely communicative impact of his expressive conduct. [ Footnote 7 ] Our decision in Boos v. Barry, supra, Page 491 U. S. 412 tells us that this restriction on Johnson's expression is content-based. In Boos, we considered the constitutionality of a law prohibiting "the display of any sign within 500 feet of a foreign embassy if that sign tends to bring that foreign government into 'public odium' or 'public disrepute.'" Id. at 485 U. S. 315 . Rejecting the argument that the law was content-neutral because it was justified by "our international law obligation to shield diplomats from speech that offends their dignity," id. at 485 U. S. 320 , we held that "[t]he emotive impact of speech on its audience is not a secondary effect'" unrelated to the content of the expression itself. Id. at 485 U. S. 321 (plurality opinion); see also id. at 485 U. S. 334 (BRENNAN, J., concurring in part and concurring in judgment). According to the principles announced in Boos, Johnson's political expression was restricted because of the content of the message he conveyed. We must therefore subject the State's asserted interest in preserving the special symbolic character of the flag to "the most exacting scrutiny." Boos v. Barry, 485 U.S. at 485 U. S. 321 . [ Footnote 8 ] Page 491 U. S. 413 Texas argues that its interest in preserving the flag as a symbol of nationhood and national unity survives this close analysis. Quoting extensively from the writings of this Court chronicling the flag's historic and symbolic role in our society, the State emphasizes the " special place"' reserved for the flag in our Nation. Brief for Petitioner 22, quoting Smith v. Goguen, 415 U.S. at 415 U. S. 601 (REHNQUIST, J., dissenting). The State's argument is not that it has an interest simply in maintaining the flag as a symbol of something, no matter what it symbolizes; indeed, if that were the State's position, it would be difficult to see how that interest is endangered by highly symbolic conduct such as Johnson's. Rather, the State's claim is that it has an interest in preserving the flag as a symbol of nationhood and national unity, a symbol with a determinate range of meanings. Brief for Petitioner 20-24. According to Texas, if one physically treats the flag in a way that would tend to cast doubt on either the idea that nationhood and national unity are the flag's referents or that national unity actually exists, the message conveyed thereby is a harmful one, and therefore may be prohibited. [ Footnote 9 ] Page 491 U. S. 414 If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. See, e.g., Hustler Magazine v. Falwell, 485 U.S. at 485 U. S. 55 -56; City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789 , 466 U. S. 804 (1984); Bolger v. Youngs Drug Products Corp., 463 U. S. 60 , 463 U. S. 65 , 463 U. S. 72 (1983); Carey v. Brown, 447 U. S. 455 , 447 U. S. 462 -463 (1980); FCC v. Pacifica Foundation, 438 U.S. at 438 U. S. 745 -746; Young v. American Mini Theatres, Inc., 427 U. S. 50 , 427 U. S. 63 -65, 427 U. S. 67 -68 (1976) (plurality opinion); Buckley v. Valeo, 424 U. S. 1 , 424 U. S. 16 -17 (1976); Grayned v. Rockford, 408 U. S. 104 , 408 U. S. 115 (1972); Police Dept. of Chicago v. Mosley, 408 U. S. 92 , 408 U. S. 95 (1972); Bachellar v. Maryland, 397 U. S. 564 , 397 U. S. 567 (1970); O'Brien, 391 U.S. at 391 U. S. 382 ; Brown v. Louisiana, 383 U.S. at 383 U. S. 142 -143; Stromberg v. California, 283 U.S. at 283 U. S. 368 -369. We have not recognized an exception to this principle even where our flag has been involved. In Street v. New York, 394 U. S. 576 (1969), we held that a State may not criminally punish a person for uttering words critical of the flag. Rejecting the argument that the conviction could be sustained on the ground that Street had "failed to show the respect for our national symbol which may properly be demanded of every citizen," we concluded that "the constitutionally guaranteed 'freedom to be intellectually . . . diverse or even contrary,' and the 'right to differ as to things that touch the heart of the existing order,' encompass the freedom to express publicly one's opinions about our flag, including those opinions which are defiant or contemptuous." Id. at 394 U. S. 593 , quoting Barnette, 319 U.S. at 319 U. S. 642 . Nor may the government, we have held, compel conduct that would evince respect for the flag. "To sustain the compulsory flag salute, we are required to say that a Bill of Rights which guards the individual's right to speak his own mind left it open to public authorities to compel him to utter what is not in his mind." Id. at 319 U. S. 634 . Page 491 U. S. 415 In holding in Barnette that the Constitution did not leave this course open to the government, Justice Jackson described one of our society's defining principles in words deserving of their frequent repetition: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." Id. at 319 U. S. 642 . In Spence, we held that the same interest asserted by Texas here was insufficient to support a criminal conviction under a flag-misuse statute for the taping of a peace sign to an American flag. "Given the protected character of [ Spence's ] expression and in light of the fact that no interest the State may have in preserving the physical integrity of a privately owned flag was significantly impaired on these facts," we held, "the conviction must be invalidated." 418 U.S. at 418 U. S. 415 . See also Goguen, 415 U.S. at 415 U. S. 588 (WHITE, J., concurring in judgment) (to convict person who had sewn a flag onto the seat of his pants for "contemptuous" treatment of the flag would be "[t]o convict not to protect the physical integrity or to protect against acts interfering with the proper use of the flag, but to punish for communicating ideas unacceptable to the controlling majority in the legislature"). In short, nothing in our precedents suggests that a State may foster its own view of the flag by prohibiting expressive conduct relating to it. [ Footnote 10 ] To bring its argument outside our Page 491 U. S. 416 precedents, Texas attempts to convince us that, even if its interest in preserving the flag's symbolic role does not allow it to prohibit words or some expressive conduct critical of the flag, it does permit it to forbid the outright destruction of the flag. The State's argument cannot depend here on the distinction between written or spoken words and nonverbal conduct. That distinction, we have shown, is of no moment where the nonverbal conduct is expressive, as it is here, and where the regulation of that conduct is related to expression, as it is here. See supra at 491 U. S. 402 -403. In addition, both Barnette and Spence involved expressive conduct, not only verbal communication, and both found that conduct protected. Texas' focus on the precise nature of Johnson's expression, moreover, misses the point of our prior decisions: their enduring lesson, that the government may not prohibit expression simply because it disagrees with its message, is not dependent on the particular mode in which one chooses to express an idea. [ Footnote 11 ] If we were to hold that a State may forbid flag burning wherever it is likely to endanger the flag's symbolic role, but allow it wherever burning a flag promotes that role -- as where, for example, a person ceremoniously burns a dirty flag -- we would be saying that when it comes to impairing the flag's physical integrity, the flag itself may be used as Page 491 U. S. 417 a symbol -- as a substitute for the written or spoken word or a "short cut from mind to mind" -- only in one direction. We would be permitting a State to "prescribe what shall be orthodox" by saying that one may burn the flag to convey one's attitude toward it and its referents only if one does not endanger the flag's representation of nationhood and national unity. We never before have held that the Government may ensure that a symbol be used to express only one view of that symbol or its referents. Indeed, in Schacht v. United States, we invalidated a federal statute permitting an actor portraying a member of one of our armed forces to " wear the uniform of that armed force if the portrayal does not tend to discredit that armed force.'" 398 U.S. at 398 U. S. 60 , quoting 10 U.S.C. § 772(f). This proviso, we held, "which leaves Americans free to praise the war in Vietnam but can send persons like Schacht to prison for opposing it, cannot survive in a country which has the First Amendment." Id. at 398 U. S. 63 . We perceive no basis on which to hold that the principle underlying our decision in Schacht does not apply to this case. To conclude that the government may permit designated symbols to be used to communicate only a limited set of messages would be to enter territory having no discernible or defensible boundaries. Could the government, on this theory, prohibit the burning of state flags? Of copies of the Presidential seal? Of the Constitution? In evaluating these choices under the First Amendment, how would we decide which symbols were sufficiently special to warrant this unique status? To do so, we would be forced to consult our own political preferences, and impose them on the citizenry, in the very way that the First Amendment forbids us to do. See Carey v. Brown, 447 U.S. at 447 U. S. 466 -467. There is, moreover, no indication -- either in the text of the Constitution or in our cases interpreting it -- that a separate juridical category exists for the American flag alone. Indeed, we would not be surprised to learn that the persons Page 491 U. S. 418 who framed our Constitution and wrote the Amendment that we now construe were not known for their reverence for the Union Jack. The First Amendment does not guarantee that other concepts virtually sacred to our Nation as a whole -- such as the principle that discrimination on the basis of race is odious and destructive -- will go unquestioned in the marketplace of ideas. See Brandenburg v. Ohio, 395 U. S. 444 (1969). We decline, therefore, to create for the flag an exception to the joust of principles protected by the First Amendment. It is not the State's ends, but its means, to which we object. It cannot be gainsaid that there is a special place reserved for the flag in this Nation, and thus we do not doubt that the government has a legitimate interest in making efforts to "preserv[e] the national flag as an unalloyed symbol of our country." Spence, 418 U.S. at 418 U. S. 412 . We reject the suggestion, urged at oral argument by counsel for Johnson, that the government lacks "any state interest whatsoever" in regulating the manner in which the flag may be displayed. Tr. of Oral Arg. 38. Congress has, for example, enacted precatory regulations describing the proper treatment of the flag, see 36 U.S.C. §§ 173-177, and we cast no doubt on the legitimacy of its interest in making such recommendations. To say that the government has an interest in encouraging proper treatment of the flag, however, is not to say that it may criminally punish a person for burning a flag as a means of political protest. "National unity as an end which officials may foster by persuasion and example is not in question. The problem is whether, under our Constitution, compulsion as here employed is a permissible means for its achievement." Barnette, 319 U.S. at 319 U. S. 640 . We are fortified in today's conclusion by our conviction that forbidding criminal punishment for conduct such as Johnson's will not endanger the special role played by our flag or the feelings it inspires. To paraphrase Justice Holmes, we submit that nobody can suppose that this one gesture of an unknown Page 491 U. S. 419 man will change our Nation's attitude towards its flag. See Abrams v. United States, 250 U. S. 616 , 250 U. S. 628 (1919) (Holmes, J., dissenting). Indeed, Texas' argument that the burning of an American flag " is an act having a high likelihood to cause a breach of the peace,'" Brief for Petitioner 31, quoting Sutherland v. DeWulf, 323 F. Supp. 740 , 745 (SD Ill.1971) (citation omitted), and its statute's implicit assumption that physical mistreatment of the flag will lead to "serious offense," tend to confirm that the flag's special role is not in danger; if it were, no one would riot or take offense because a flag had been burned. We are tempted to say, in fact, that the flag's deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength. Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort McHenry. It is the Nation's resilience, not its rigidity, that Texas sees reflected in the flag -- and it is that resilience that we reassert today. The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong. "To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to bee applied is more speech, not enforced silence." Whitney v. California, 274 U. S. 357 , 274 U. S. 377 (1927) (Brandeis, J., concurring). And, precisely because it is our flag that is involved, one's response to the flag-burner Page 491 U. S. 420 may exploit the uniquely persuasive power of the flag itself. We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by -- as one witness here did -- according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents. V Johnson was convicted for engaging in expressive conduct. The State's interest in preventing breaches of the peace does not support his conviction, because Johnson's conduct did not threaten to disturb the peace. Nor does the State's interest in preserving the flag as a symbol of nationhood and national unity justify his criminal conviction for engaging in political expression. The judgment of the Texas Court of Criminal Appeals is therefore Affirmed. [ Footnote 1 ] Tex.Penal Code Ann. § 42.09 (1989) provides in full: "§ 42.09. Desecration of Venerated Object" "(a) A person commits an offense if he intentionally or knowingly desecrates:" "(1) a public monument;" "(2) a place of worship or burial; or" "(3) a state or national flag." "(b) For purposes of this section, 'desecrate' means deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action." "(c) An offense under this section is a Class A misdemeanor." [ Footnote 2 ] Because the prosecutor's closing argument observed that Johnson had led the protestors in chants denouncing the flag while it burned, Johnson suggests that he may have been convicted for uttering critical words, rather than for burning the flag. Brief for Respondent 33-34. He relies on Street v. New York, 394 U. S. 576 , 394 U. S. 578 (1969), in which we reversed a conviction obtained under a New York statute that prohibited publicly defying or casting contempt on the flag "either by words or act" because we were persuaded that the defendant may have been convicted for his words alone. Unlike the law we faced in Street, however, the Texas flag desecration statute does not on its face permit conviction for remarks critical of the flag, as Johnson himself admits. See Brief for Respondent 34. Nor was the jury in this case told that it could convict Johnson of flag desecration if it found only that he had uttered words critical of the flag and its referents. Johnson emphasizes, though, that the jury was instructed -- according to Texas' law of parties -- that "'a person is criminally responsible for an offense committed by the conduct of another if acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.'" Brief for Respondent 2, n. 2, quoting 1 Record 49. The State offered this instruction because Johnson's defense was that he was not the person who had burned the flag. Johnson did not object to this instruction at trial, and although he challenged it on direct appeal, he did so only on the ground that there was insufficient evidence to support it. 706 S.W.2d 120, 124 (Tex.App.1986). It is only in this Court that Johnson has argued that the law-of-parties instruction might have led the jury to convict him for his words alone. Even if we were to find that this argument is properly raised here, however, we would conclude that it has no merit in these circumstances. The instruction would not have permitted a conviction merely for the pejorative nature of Johnson's words, and those words themselves did not encourage the burning of the flag, as the instruction seems to require. Given the additional fact that "the bulk of the State's argument was premised on Johnson's culpability as a sole actor," ibid., we find it too unlikely that the jury convicted Johnson on the basis of this alternative theory to consider reversing his conviction on this ground. [ Footnote 3 ] Although Johnson has raised a facial challenge to Texas' flag desecration statute, we choose to resolve this case on the basis of his claim that the statute, as applied to him, violates the First Amendment. Section 42.09 regulates only physical conduct with respect to the flag, not the written or spoken word, and although one violates the statute only if one "knows" that one's physical treatment of the flag "will seriously offend one or more persons likely to observe or discover his action," Tex.Penal Code Ann. § 42.09(b) (1989), this fact does not necessarily mean that the statute applies only to expressive conduct protected by the First Amendment. Cf. Smith v. Goguen, 415 U. S. 566 , 415 U. S. 588 (1974) (WHITE, J., concurring in judgment) (statute prohibiting "contemptuous" treatment of flag encompasses only expressive conduct). A tired person might, for example, drag a flag through the mud, knowing that this conduct is likely to offend others, and yet have no thought of expressing any idea; neither the language nor the Texas courts' interpretations of the statute precludes the possibility that such a person would be prosecuted for flag desecration. Because the prosecution of a person who had not engaged in expressive conduct would pose a different case, and because this case may be disposed of on narrower grounds, we address only Johnson's claim that § 42.09, as applied to political expression like his, violates the First Amendment. [ Footnote 4 ] Relying on our decision in Boos v. Barry, 485 U. S. 312 (1988), Johnson argues that this state interest is related to the suppression of free expression within the meaning of United States v. O'Brien, 391 U. S. 367 (1968). He reasons that the violent reaction to flag burnings feared by Texas would be the result of the message conveyed by them, and that this fact connects the State's interest to the suppression of expression. Brief for Respondent 12, n. 11. This view has found some favor in the lower courts. See Monroe v. State Court of Fulton County, 739 F.2d 568 574-575 (CA11 1984). Johnson's theory may overread Boos insofar as it suggests that a desire to prevent a violent audience reaction is "related to expression" in the same way that a desire to prevent an audience from being offended is "related to expression." Because we find that the State's interest in preventing breaches of the peace is not implicated on these facts, however, we need not venture further into this area. [ Footnote 5 ] There is, of course, a tension between this argument and the State's claim that one need not actually cause serious offense in order to violate § 42.09. See Brief for Petitioner 44. [ Footnote 6 ] Cf. Smith v. Goguen, 415 U.S. at 415 U. S. 590 -591 (BLACKMUN, J., dissenting) (emphasizing that lower court appeared to have construed state statute so as to protect physical integrity of the flag in all circumstances); id. at 415 U. S. 597 -598 (REHNQUIST, J., dissenting) (same). [ Footnote 7 ] Texas suggests that Johnson's conviction did not depend on the onlookers' reaction to the flag burning, because § 42.09 is violated only when a person physically mistreats the flag in a way that he " knows will seriously offend one or more persons likely to observe or discover his action." Tex.Penal Code Ann. § 42.09(b) (1969) (emphasis added). "The serious offense' language of the statute," Texas argues, "refers to an individual's intent and to the manner in which the conduct is effectuated, not to the reaction of the crowd." Brief for Petitioner 44. If the statute were aimed only at the actor's intent, and not at the communicative impact of his actions, however, there would be little reason for the law to be triggered only when an audience is "likely" to be present. At Johnson's trial, indeed, the State itself seems not to have seen the distinction between knowledge and actual communicative impact that it now stresses: it proved the element of knowledge by offering the testimony of persons who had in fact been seriously offended by Johnson's conduct. Id. at 6-7. In any event, we find the distinction between Texas' statute and one dependent on actual audience reaction too precious to be of constitutional significance. Both kinds of statutes clearly are aimed at protecting onlookers from being offended by the ideas expressed by the prohibited activity. [ Footnote 8 ] Our inquiry is, of course, bounded by the particular facts of this case and by the statute under which Johnson was convicted. There was no evidence that Johnson himself stole the flag he burned, Tr. of Oral Arg. 17, nor did the prosecution or the arguments urged in support of it depend on the theory that the flag was stolen. Ibid. Thus, our analysis does not rely on the way in which the flag was acquired, and nothing in our opinion should be taken to suggest that one is free to steal a flag so long as one later uses it to communicate an idea. We also emphasize that Johnson was prosecuted only for flag desecration -- not for trespass, disorderly conduct, or arson. [ Footnote 9 ] Texas claims that "Texas is not endorsing, protecting, avowing or prohibiting any particular philosophy." Brief for Petitioner 29. If Texas means to suggest that its asserted interest does not prefer Democrats over Socialists, or Republicans over Democrats, for example, then it is beside the point, for Johnson does not rely on such an argument. He argues instead that the State's desire to maintain the flag as a symbol of nationhood and national unity assumes that there is only one proper view of the flag. Thus, if Texas means to argue that its interest does not prefer any viewpoint over another, it is mistaken; surely one's attitude toward the flag and its referents is a viewpoint. [ Footnote 10 ] Our decision in Halter v. Nebraska, 205 U. S. 34 (1907), addressing the validity of a state law prohibiting certain commercial uses of the flag, is not to the contrary. That case was decided "nearly 20 years before the Court concluded that the First Amendment applies to the States by virtue of the Fourteenth Amendment." Spence v. Washington, 418 U. S. 405 , 418 U. S. 413 , n. 7 (1974). More important, as we continually emphasized in Halter itself, that case involved purely commercial, rather than political, speech. 205 U.S. at 205 U. S. 38 , 205 U. S. 41 , 205 U. S. 42 , 205 U. S. 45 . Nor does San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U. S. 522 , 483 U. S. 524 (1987), addressing the validity of Congress' decision to "authoriz[e] the United States Olympic Committee to prohibit certain commercial and promotional uses of the word Olympic,'" relied upon by THE CHIEF JUSTICE's dissent, post at 491 U. S. 429 , even begin to tell us whether the government may criminally punish physical conduct towards the flag engaged in as a means of political protest. [ Footnote 11 ] THE CHIEF JUSTlCE's dissent appears to believe that Johnson's conduct may be prohibited and, indeed, criminally sanctioned, because "his act . . . conveyed nothing that could not have been conveyed and was not conveyed just as forcefully in a dozen different ways." Post at 491 U. S. 431 . Not only does this assertion sit uneasily next to the dissent's quite correct reminder that the flag occupies a unique position in our society -- which demonstrates that messages conveyed without use of the flag are not "just as forcefu[l]" as those conveyed with it -- but it also ignores the fact that, in Spence, supra, we "rejected summarily" this very claim. See 418 U.S. at 418 U. S. 411 , n. 4. JUSTICE KENNEDY, concurring. I write not to qualify the words JUSTICE BRENNAN chooses so well, for he says with power all that is necessary to explain our ruling. I join his opinion without reservation, but with a keen sense that this case, like others before us from time to time, exacts its personal toll. This prompts me to add to our pages these few remarks. The case before us illustrates better than most that the judicial power is often difficult in its exercise. We cannot here ask another Branch to share responsibility, as when the argument is made that a statute is flawed or incomplete. For we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours. The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right Page 491 U. S. 421 in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases. Our colleagues in dissent advance powerful arguments why respondent may be convicted for his expression, reminding us that among those who will be dismayed by our holding will be some who have had the singular honor of carrying the flag in battle. And I agree that the flag holds a lonely place of honor in an age when absolutes are distrusted and simple truths are burdened by unneeded apologetics. With all respect to those views, I do not believe the Constitution gives us the right to rule as the dissenting Members of the Court urge, however painful this judgment is to announce. Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt. For all the record shows, this respondent was not a philosopher and perhaps did not even possess the ability to comprehend how repellent his statements must be to the Republic itself. But whether or not he could appreciate the enormity of the offense he gave, the fact remains that his acts were speech, in both the technical and the fundamental meaning of the Constitution. So I agree with the Court that he must go free. CHIEF JUSTICE REHNQUIST, with whom JUSTICE WHITE and JUSTICE O'CONNOR join, dissenting. In holding this Texas statute unconstitutional, the Court ignores Justice Holmes' familiar aphorism that "a page of history is worth a volume of logic." New York Trust Co. v. Page 491 U. S. 422 Eisner, 256 U. S. 345 , 256 U. S. 349 (1921). For more than 200 years, the American flag has occupied a unique position as the symbol of our Nation, a uniqueness that justifies a governmental prohibition against flag burning in the way respondent Johnson did here. At the time of the American Revolution, the flag served to unify the Thirteen Colonies at home while obtaining recognition of national sovereignty abroad. Ralph Waldo Emerson's Concord Hymn describes the first skirmishes of the Revolutionary War in these lines: "By the rude bridge that arched the flood" "Their flag to April's breeze unfurled," "Here once the embattled farmers stood" "And fired the shot heard round the world." During that time, there were many colonial and regimental flags, adorned with such symbols as pine trees, beavers, anchors, and rattlesnakes, bearing slogans such as "Liberty or Death," "Hope," "An Appeal to Heaven," and "Don't Tread on Me." The first distinctive flag of the Colonies was the "Grand Union Flag" -- with 13 stripes and a British flag in the left corner -- which was flown for the first time on January 2, 1776, by troops of the Continental Army around Boston. By June 14, 1777, after we declared our independence from England, the Continental Congress resolved: "That the flag of the thirteen United States be thirteen stripes, alternate red and white: that the union be thirteen stars, white in a blue field, representing a new constellation." 8 Journal of the Continental Congress 1774-1789, p. 464 (W. Ford ed.1907). One immediate result of the flag's adoption was that American vessels harassing British shipping sailed under an authorized national flag. Without such a flag, the British could treat captured seamen as pirates and hang them summarily; with a national flag, such seamen were treated as prisoners of war. Page 491 U. S. 423 During the War of 1812, British naval forces sailed up Chesapeake Bay and marched overland to sack and burn the city of Washington. They then sailed up the Patapsco River to invest the city of Baltimore, but to do so it was first necessary to reduce Fort McHenry in Baltimore Harbor. Francis Scott Key, a Washington lawyer, had been granted permission by the British to board one of their warships to negotiate the release of an American who had been taken prisoner. That night, waiting anxiously on the British ship, Key watched the British fleet firing on Fort McHenry. Finally, at daybreak, he saw the fort's American flag still flying; the British attack had failed. Intensely moved, he began to scribble on the back of an envelope the poem that became our national anthem: "O say can you see by the dawn's early light" "What so proudly we hail'd at the twilight's last gleaming," "Whose broad stripes & bright stars through the perilous fight" "O'er the ramparts we watch'd, were so gallantly streaming?" "And the rocket's red glare, the bomb bursting in air," "Gave proof through the night that our flag was still there," "O say does that star-spangled banner yet wave" "O'er the land of the free & the home of the brave?" The American flag played a central role in our Nation's most tragic conflict, when the North fought against the South. The lowering of the American flag at Fort Sumter was viewed as the start of the war. G. Preble, History of the Flag of the United States of America 453 (1880). The Southern States, to formalize their separation from the Union, adopted the "Stars and Bars" of the Confederacy. The Union troops marched to the sound of "Yes We'll Rally Round The Flag Boys, We'll Rally Once Again." President Abraham Lincoln refused proposals to remove from the Page 491 U. S. 424 American flag the stars representing the rebel States, because he considered the conflict not a war between two nations, but an attack by 11 States against the National Government. Id. at 411. By war's end, the American flag again flew over "an indestructible union, composed of indestructible states." TeXas v. White , 7 Wall. 700, 74 U. S. 725 (1869). One of the great stories of the Civil War is told in John Greenleaf Whittier's poem, "Barbara Frietchie": Up from the meadows rich with corn, Clear in the cool September morn, The clustered spires of Frederick stand Green-walled by the hills of Maryland. Round about them orchards sweep, Apple- and peach-tree fruited deep, Fair as a garden of the Lord To the eyes of the famished rebel horde, On that pleasant morn of the early fall When Lee marched over the mountain wall, -- Over the mountains winding down, Horse and foot, into Frederick town. Forty flags with their silver stars, Forty flags with their crimson bars, Flapped in the morning wind: the sun Of noon looked down, and saw not one. Up rose old Barbara Frietchie then, Bowed with her four-score years and ten; Bravest of all in Frederick town, She took up the flag the men hauled down; In her attic-window the staff she set, To show that one heart was loyal yet. Up the street came the rebel tread, Stonewall Jackson riding ahead. Under his slouched hat left and right He glanced: the old flag met his sight. "Halt!" -- the dust-brown ranks stood fast. "Fire!" -- out blazed the rifle-blast Page 491 U. S. 425 It shivered the window, pane and sash; It rent the banner with seam and gash. Quick, as it fell, from the broken staff Dame Barbara snatched the silken scarf; She leaned far out on the window-sill, And shook it forth with a royal will. "Shoot, if you must, this old gray head, But spare your country's flag," she said. A shade of sadness, a blush of shame, Over the face of the leader came; The nobler nature within him stirred To life at that woman's deed and word: "Who touches a hair of yon gray head Dies like a dog! March on!" he said. All day long through Frederick street Sounded the tread of marching feet: All day long that free flag tost Over the heads of the rebel host. Ever its torn folds rose and fell On the loyal winds that loved it well; And through the hill-gaps sunset light Shone over it with a warm good-night. Barbara Frietchie's work is o'er, And the Rebel rides on his raids no more. Honor to her! and let a tear Fall, for her sake, on Stonewall's bier. Over Barbara Frietchie's grave, Flag of Freedom and Union, wave! Peace and order and beauty draw Round thy symbol of light and law; And ever the stars above look down On thy stars below in Frederick town! In the First and Second World Wars, thousands of our countrymen died on foreign soil fighting for the American cause. At Iwo Jima in the Second World War, United States Marines fought hand to hand against thousands of Page 491 U. S. 426 Japanese. By the time the Marines reached the top of Mount Suribachi, they raised a piece of pipe upright and from one end fluttered a flag. That ascent had cost nearly 6,000 American lives. The Iwo Jima Memorial in Arlington National Cemetery memorializes that event. President Franklin Roosevelt authorized the use of the flag on labels, packages, cartons, and containers intended for export as lend-lease aid, in order to inform people in other countries of the United States' assistance. Presidential Proclamation No. 2605, 58 Stat. 1126. During the Korean War, the successful amphibious landing of American troops at Inchon was marked by the raising of an American flag within an hour of the event. Impetus for the enactment of the Federal Flag Desecration Statute in 1967 came from the impact of flag burnings in the United States on troop morale in Vietnam. Representative L. Mendel Rivers, then Chairman of the House Armed Services Committee, testified that "The burning of the flag . . . has caused my mail to increase 100 percent from the boys in Vietnam, writing me and asking me what is going on in America." Desecration of the Flag, Hearings on H.R. 271 before Subcommittee No. 4 of the House Committee on the Judiciary, 90th Cong., 1st Sess., 189 (1967). Representative Charles Wiggins stated: "The public act of desecration of our flag tends to undermine the morale of American troops. That this finding is true can be attested by many Members who have received correspondence from servicemen expressing their shock and disgust of such conduct." 113 Cong.Rec. 16459 (1967). The flag symbolizes the Nation in peace as well as in war. It signifies our national presence on battleships, airplanes, military installations, and public buildings from the United States Capitol to the thousands of county courthouses and city halls throughout the country. Two flags are prominently placed in our courtroom. Countless flags are placed by the graves of loved ones each year on what was first called Page 491 U. S. 427 Decoration Day, and is now called Memorial Day. The flag is traditionally placed on the casket of deceased members of the Armed Forces, and it is later given to the deceased's family. 10 U.S.C. §§ 1481, 1482. Congress has provided that the flag be flown at half-staff upon the death of the President, Vice President, and other government officials "as a mark of respect to their memory." 36 U.S.C. § 175(m). The flag identifies United States merchant ships, 22 U.S.C. § 454, and "[t]he laws of the Union protect our commerce wherever the flag of the country may float." United States v. Guthrie , 17 How. 284, 309 (1855). No other American symbol has been as universally honored as the flag. In 1931, Congress declared "The Star-Spangled Banner" to be our national anthem. 36 U.S.C. § 170. In 1949, Congress declared June 14th to be Flag Day. § 157. In 1987, John Philip Sousa's "The Stars and Stripes Forever" was designated as the national march. Pub.L. 101-186, 101 Stat. 1286. Congress has also established "The Pledge of Allegiance to the Flag" and the manner of its deliverance. 36 U.S.C. § 172. The flag has appeared as the principal symbol on approximately 33 United States postal stamps and in the design of at least 43 more, more times than any other symbol. United States Postal Service, Definitive Mint Set 15 (1988). Both Congress and the States have enacted numerous laws regulating misuse of the American flag. Until 1967, Congress left the regulation of misuse of the flag up to the States. Now, however, Title 18 U.S.C. § 700(a) provides that: "Whoever knowingly casts contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it shall be fined not more than $1,000 or imprisoned for not more than one year, or both." Congress has also prescribed, inter alia, detailed rules for the design of the flag, 4 U.S.C. § 1, the time and occasion of flag's display, 36 U.S.C. § 174, the position and manner of Page 491 U. S. 428 its display, § 175, respect for the flag, § 176, and conduct during hoisting, lowering, and passing of the flag, § 177. With the exception of Alaska and Wyoming, all of the States now have statutes prohibiting the burning of the flag. [ Footnote 2/1 ] Most of the state statutes are patterned after the Uniform Flag Act of 1917, which in § 3 provides: "No person shall publicly mutilate, deface, defile, defy, trample upon, or by word or act cast contempt upon any such flag, standard, color, ensign or shield." Proceedings of National Conference of Commissioners on Uniform State Laws 323-324 (1917). Most were passed by the States at about the time of World War I. Rosenblatt, Flag Desecration Statutes: History and Analysis, 1972 Wash.U.L.Q.193, 197. Page 491 U. S. 429 The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another "idea" or "point of view" competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence, regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag. More than 80 years ago, in Halter v. Nebraska, 205 U. S. 34 (1907), this Court upheld the constitutionality of a Nebraska statute that forbade the use of representations of the American flag for advertising purposes upon articles of merchandise. The Court there said: "For that flag every true American has not simply an appreciation, but a deep affection. . . . Hence, it has often occurred that insults to a flag have been the cause of war, and indignities put upon it, in the presence of those who revere it, have often been resented and sometimes punished on the spot." Id. at 41. Only two Terms ago, in San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U. S. 522 (1987), the Court held that Congress could grant exclusive use of the word "Olympic" to the United States Olympic Committee. The Court thought that this "restrictio[n] on expressive speech properly [was] characterized as incidental to the primary congressional purpose of encouraging and rewarding the USOC's activities." Id. at 483 U. S. 536 . As the Court stated, "when a word [or symbol] acquires value 'as the result of organization and the expenditure of labor, skill, and money' by an entity, that entity constitutionally may obtain a limited property right in the word [or symbol]." Id. at 483 U. S. 532 , quoting International News Service v. Associated Press , 248 Page 491 U. S. 430 U.S. 215, 248 U. S. 239 (1918). Surely Congress or the States may recognize a similar interest in the flag. But the Court insists that the Texas statute prohibiting the public burning of the American flag infringes on respondent Johnson's freedom of expression. Such freedom, of course, is not absolute. See Schenck v. United States, 249 U. S. 47 (1919). In Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), a unanimous Court said: "Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words -- those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Id. at 315 U. S. 571 -572 (footnotes omitted). The Court upheld Chaplinsky's conviction under a state statute that made it unlawful to "address any offensive, derisive or annoying word to any person who is lawfully in any street or other public place." Id. at 315 U. S. 569 . Chaplinsky had told a local marshal, "You are a God damned racketeer" and a "damned Fascist and the whole government of Rochester are Fascists or agents of Fascists." Ibid. Here it may equally well be said that the public burning of the American flag by Johnson was no essential part of any exposition of ideas, and at the same time it had a tendency to incite a breach of the peace. Johnson was free to make any verbal denunciation of the flag that he wished; indeed, he was Page 491 U. S. 431 free to burn the flag in private. He could publicly burn other symbols of the Government or effigies of political leaders. He did lead a march through the streets of Dallas, and conducted a rally in front of the Dallas City Hall. He engaged in a "die-in" to protest nuclear weapons. He shouted out various slogans during the march, including: "Reagan, Mondale which will it be? Either one means World War III"; "Ronald Reagan, killer of the hour, Perfect example of U.S. power"; and "red, white and blue, we spit on you, you stand for plunder, you will go under." Brief for Respondent 3. For none of these acts was he arrested or prosecuted; it was only when he proceeded to burn publicly an American flag stolen from its rightful owner that he violated the Texas statute. The Court could not, and did not, say that Chaplinsky's utterances were not expressive phrases -- they clearly and succinctly conveyed an extremely low opinion of the addressee. The same may be said of Johnson's public burning of the flag in this case; it obviously did convey Johnson's bitter dislike of his country. But his act, like Chaplinsky's provocative words, conveyed nothing that could not have been conveyed and was not conveyed just as forcefully in a dozen different ways. As with "fighting words," so with flag burning, for purposes of the First Amendment: It is "no essential part of any exposition of ideas, and [is] of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed" by the public interest in avoiding a probable breach of the peace. The highest courts of several States have upheld state statutes prohibiting the public burning of the flag on the grounds that it is so inherently inflammatory that it may cause a breach of public order. See, e.g., State v. Royal, 113 N. H. 224, 229, 305 A.2d 676, 680 (1973); State v. Waterman, 190 N.W.2d 809 , 811-812 (Iowa 1971); see also State v. Mitchell, 32 Ohio App.2d 16, 30, 288 N.E.2d 216, 226 (1972). Page 491 U. S. 432 The result of the Texas statute is obviously to deny one in Johnson's frame of mind one of many means of "symbolic speech." Far from being a case of "one picture being worth a thousand words," flag burning is the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others. Only five years ago we said in City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789 , 466 U. S. 812 (1984), that "the First Amendment does not guarantee the right to employ every conceivable method of communication at all times and in all places." The Texas statute deprived Johnson of only one rather inarticulate symbolic form of protest -- a form of protest that was profoundly offensive to many -- and left him with a full panoply of other symbols and every conceivable form of verbal expression to express his deep disapproval of national policy. Thus, in no way can it be said that Texas is punishing him because his hearers -- or any other group of people -- were profoundly opposed to the message that he sought to convey. Such opposition is no proper basis for restricting speech or expression under the First Amendment. It was Johnson's use of this particular symbol, and not the idea that he sought to convey by it or by his many other expressions, for which he was punished. Our prior cases dealing with flag desecration statutes have left open the question that the Court resolves today. In Street v. New York, 394 U. S. 576 , 394 U. S. 579 (1969), the defendant burned a flag in the street, shouting "We don't need no damned flag" and, "[i]f they let that happen to Meredith, we don't need an American flag." The Court ruled that since the defendant might have been convicted solely on the basis of his words, the conviction could not stand, but it expressly reserved the question whether a defendant could constitutionally be convicted for burning the flag. Id. at 394 U. S. 581 . Chief Justice Warren, in dissent, stated: "I believe that the States and Federal Government do have the power to protect the flag from acts of desecration and disgrace. . . . [I]t is difficult Page 491 U. S. 433 for me to imagine that, had the Court faced this issue, it would have concluded otherwise." Id. at 394 U. S. 605 . Justices Black and Fortas also expressed their personal view that a prohibition on flag burning did not violate the Constitution. See id. at 394 U. S. 610 (Black, J., dissenting) ("It passes my belief that anything in the Federal Constitution bars a State from making the deliberate burning of the American Flag an offense"); id. at 394 U. S. 615 -617 (Fortas, J., dissenting) ("[T]he States and the Federal Government have the power to protect the flag from acts of desecration committed in public. . . . [T]he flag is a special kind of personality. Its use is traditionally and universally subject to special rules and regulation. . . . A person may own' a flag, but ownership is subject to special burdens and responsibilities. A flag may be property, in a sense; but it is property burdened with peculiar obligations and restrictions. Certainly . . . these special conditions are not per se arbitrary or beyond governmental power under our Constitution"). In Spence v. Washington, 418 U. S. 405 (1974), the Court reversed the conviction of a college student who displayed the flag with a peace symbol affixed to it by means of removable black tape from the window of his apartment. Unlike the instant case, there was no risk of a breach of the peace, no one other than the arresting officers saw the flag, and the defendant owned the flag in question. The Court concluded that the student's conduct was protected under the First Amendment, because "no interest the State may have in preserving the physical integrity of a privately owned flag was significantly impaired on these facts." Id. at 418 U. S. 415 . The Court was careful to note, however, that the defendant "was not charged under the desecration statute, nor did he permanently disfigure the flag or destroy it." Ibid. In another related case, Smith v. Goguen, 415 U. S. 566 (1974), the appellee, who wore a small flag on the seat of his trousers, was convicted under a Massachusetts flag misuse statute that subjected to criminal liability anyone who Page 491 U. S. 434 publicly. . . treats contemptuously the flag of the United States." Id. at 415 U. S. 568 -569. The Court affirmed the lower court's reversal of appellee's conviction, because the phrase "treats contemptuously" was unconstitutionally broad and vague. Id. at 415 U. S. 576 . The Court was again careful to point out that "[c]ertainly nothing prevents a legislature from defining with substantial specificity what constitutes forbidden treatment of United States flags." Id. at 415 U. S. 581 -582. See also id. at 415 U. S. 587 (WHITE, J., concurring in judgment) ("The flag is a national property, and the Nation may regulate those who would make, imitate, sell, possess, or use it. I would not question those statutes which proscribe mutilation, defacement, or burning of the flag or which otherwise protect its physical integrity, without regard to whether such conduct might provoke violence. . . . There would seem to be little question about the power of Congress to forbid the mutilation of the Lincoln Memorial. . . . The flag is itself a monument, subject to similar protection"); id. at 415 U. S. 591 (BLACKMUN, J., dissenting) ("Goguen's punishment was constitutionally permissible for harming the physical integrity of the flag by wearing it affixed to the seat of his pants"). But the Court today will have none of this. The uniquely deep awe and respect for our flag felt by virtually all of us are bundled off under the rubric of "designated symbols," ante at 491 U. S. 417 , that the First Amendment prohibits the government from "establishing." But the government has not "established" this feeling; 200 years of history have done that. The government is simply recognizing as a fact the profound regard for the American flag created by that history when it enacts statutes prohibiting the disrespectful public burning of the flag. The Court concludes its opinion with a regrettably patronizing civics lecture, presumably addressed to the Members of both Houses of Congress, the members of the 48 state legislatures that enacted prohibitions against flag burning, and the troops fighting under that flag in Vietnam who objected to its Page 491 U. S. 435 being burned: "The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong." Ante at 491 U. S. 419 . The Court's role as the final expositor of the Constitution is well established, but its role as a platonic guardian admonishing those responsible to public opinion as if they were truant schoolchildren has no similar place in our system of government. The cry of "no taxation without representation" animated those who revolted against the English Crown to found our Nation -- the idea that those who submitted to government should have some say as to what kind of laws would be passed. Surely one of the high purposes of a democratic society is to legislate against conduct that is regarded as evil and profoundly offensive to the majority of people -- whether it be murder, embezzlement, pollution, or flagburning. Our Constitution wisely places limits on powers of legislative majorities to act, but the declaration of such limits by this Court "is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative, in a doubtful case." Fletcher v. Peck , 6 Cranch 87, 10 U. S. 128 (1810) (Marshall, C.J.). Uncritical extension of constitutional protection to the burning of the flag risks the frustration of the very purpose for which organized governments are instituted. The Court decides that the American flag is just another symbol, about which not only must opinions pro and con be tolerated, but for which the most minimal public respect may not be enjoined. The government may conscript men into the Armed Forces where they must fight and perhaps die for the flag, but the government may not prohibit the public burning of the banner under which they fight. I would uphold the Texas statute as applied in this case. [ Footnote 2/2 ] Page 491 U. S. 436 [ Footnote 2/1 ] See Ala.Code § 13A-11-12 (1982); Ariz.Rev.Stat.Ann. § 13-3703 (1978); Ark.Code Ann. § 5-51-207 (1987); Cal.Mil. & Vet.Code Ann. § 614 (West 1988); Colo.Rev.Stat. § 18-11-204 (1986); Conn.Gen.Stat. § 53-258a (1985); Del.Code Ann., Tit. 11, § 1331 (1987); Fla.Stat. §§ 256.05-256.051 (1987); Fla.Stat. § 876.52 (1987); Ga.Code Ann. § 50-3-9 (1986); Haw. Rev.Stat. § 711-1107 (1988); Idaho Code § 18-3401 (1987); Ill.Rev.Stat., ch. 1, �� 3307, 3351 (1980); Ind.Code § 35-45-1-4 (1986); Iowa Code § 32.1 (1978 and Supp.1989); Kan.Stat.Ann. § 21-4114 (1988); Ky.Rev.Stat.Ann. § 525.110 (Michie Supp.1988); La.Rev.Stat.Ann. § 14:116 (West 1986); Me.Rev.Stat.Ann., Tit. 1, § 254 (1979); Md.Ann. Code, Art. 27, § 83 (1988); Mass.Gen.Laws §§ 264, 265 (1987); Mich.Comp.Laws § 750.246 (1968); Minn.Stat. § 609.40 (1987); Miss.Code Ann. § 97-7-39 (1973); Mo.Rev.Stat. § 578.095 (Supp.1989); Mont.Code Ann. § 45-8-215 (1987); Neb.Rev.Stat. § 28-928 (1985); Nev.Rev.Stat. § 201.290 (1986); N.H.Rev.Stat.Ann. § 646.1 (1986); N.J.Stat.Ann. § 2C:33-9 (West 1982); N.M.Stat.Ann. § 30-21-4 (1984); N.Y.Gen.Bus.Law § 136 (McKinney 1988); N.C.Gen.Stat. § 14-381 (1986); N.D.Cent.Code § 12.1-07-02 (1985); Ohio Rev.Code Ann. § 2927.11 (1987); Okla.Stat., Tit. 21, § 372 (1983); Ore.Rev.Stat. § 166.075 (1987); 18 Pa.Cons.Stat. § 2102 (1983); R.I.Gen.Laws § 11-15-2 (1981); S.C.Code §§ 16-17-220, 16-17-230 (1985 and Supp.1988); S.D.Codified Laws § 22-9-1 (1988); Tenn.Code Ann. §§ 39-5-843, 39-5-847 (1982); Tex.Penal Code Ann. § 42.09 (1974); Utah Code Ann. § 76-9-601 (1978); Vt.Stat.Ann., Tit. 13, § 1903 (1974); Va.Code § 18.2-488 (1988); Wash.Rev.Code § 9.86.030 (1988); W.Va. Code § 61-1-8 (1989); Wis.Stat. § 946.05 (1985-1986). [ Footnote 2/2 ] In holding that the Texas statute as applied to Johnson violates the First Amendment, the Court does not consider Johnson's claims that the statute is unconstitutionally vague or overbroad. Brief for Respondent 24-30. I think those claims are without merit. In New York State Club Assn. v. City of New York, 487 U. S. 1 , 487 U. S. 11 (1988), we stated that a facial challenge is only proper under the First Amendment when a statute can never be applied in a permissible manner or when, even if it may be validly applied to a particular defendant, it is so broad as to reach the protected speech of third parties. While Tex.Penal Code Ann. § 42.09 (1989) "may not satisfy those intent on finding fault at any cost, [it is] set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with." CSC Letter Carriers, 413 U. S. 548 413 U. S. 579 (1973). By defining "desecrate" as "deface," "damage" or otherwise "physically mistreat" in a manner that the actor knows will "seriously offend" others, § 42.09 only prohibits flagrant acts of physical abuse and destruction of the flag of the sort at issue here -- soaking a flag with lighter fluid and igniting it in public -- and not any of the examples of improper flag etiquette cited in respondent's brief. JUSTICE STEVENS, dissenting. As the Court analyzes this case, it presents the question whether the State of Texas, or indeed the Federal Government, has the power to prohibit the public desecration of the American flag. The question is unique. In my judgment, rules that apply to a host of other symbols, such as state flags, armbands, or various privately promoted emblems of political or commercial identity, are not necessarily controlling. Even if flagburning could be considered just another species of symbolic speech under the logical application of the rules that the Court has developed in its interpretation of the First Amendment in other contexts, this case has an intangible dimension that makes those rules inapplicable. A country's flag is a symbol of more than "nationhood and national unity." Ante at 491 U. S. 407 , 491 U. S. 410 , 491 U. S. 413 , and n. 9, 491 U. S. 417 , 491 U. S. 420 . It also signifies the ideas that characterize the society that has chosen that emblem as well as the special history that has animated the growth and power of those ideas. The fleurs-de-lis and the tricolor both symbolized "nationhood and national unity," but they had vastly different meanings. The message conveyed by some flags -- the swastika, for example -- may survive long after it has outlived its usefulness as a symbol of regimented unity in a particular nation. Page 491 U. S. 437 So it is with the American flag. It is more than a proud symbol of the courage, the determination, and the gifts of nature that transformed 13 fledgling Colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of goodwill for other peoples who share our aspirations. The symbol carries its message to dissidents both at home and abroad who may have no interest at all in our national unity or survival. The value of the flag as a symbol cannot be measured. Even so, I have no doubt that the interest in preserving that value for the future is both significant and legitimate. Conceivably, that value will be enhanced by the Court's conclusion that our national commitment to free expression is so strong that even the United States, as ultimate guarantor of that freedom, is without power to prohibit the desecration of its unique symbol. But I am unpersuaded. The creation of a federal right to post bulletin boards and graffiti on the Washington Monument might enlarge the market for free expression, but at a cost I would not pay. Similarly, in my considered judgment, sanctioning the public desecration of the flag will tarnish its value -- both for those who cherish the ideas for which it waves and for those who desire to don the robes of martyrdom by burning it. That tarnish is not justified by the trivial burden on free expression occasioned by requiring that an available, alternative mode of expression -- including uttering words critical of the flag, see Street v. New York, 394 U. S. 576 (1969) -- be employed. It is appropriate to emphasize certain propositions that are not implicated by this case. The statutory prohibition of flag desecration does not "prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." West Virginia Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 642 (1943). The statute does not compel any conduct or any profession of respect for any idea or any symbol. Page 491 U. S. 438 Nor does the statute violate "the government's paramount obligation of neutrality in its regulation of protected communication." Young v. American Mini Theatres, Inc., 427 U. S. 50 , 427 U. S. 70 (1976) (plurality opinion). The content of respondent's message has no relevance whatsoever to the case. The concept of "desecration" does not turn on the substance of the message the actor intends to convey, but rather on whether those who view the act will take serious offense. Accordingly, one intending to convey a message of respect for the flag by burning it in a public square might nonetheless be guilty of desecration if he knows that others -- perhaps simply because they misperceive the intended message -- will be seriously offended. Indeed, even if the actor knows that all possible witnesses will understand that he intends to send a message of respect, he might still be guilty of desecration if he also knows that this understanding does not lessen the offense taken by some of those witnesses. Thus, this is not a case in which the fact that "it is the speaker's opinion that gives offense" provides a special "reason for according it constitutional protection," FCC v. Pacifica Foundation, 438 U. S. 726 , 438 U. S. 745 (1978) (plurality opinion). The case has nothing to do with "disagreeable ideas," see ante at 491 U. S. 409 . It involves disagreeable conduct that, in my opinion, diminishes the value of an important national asset. The Court is therefore quite wrong in blandly asserting that respondent "was prosecuted for his expression of dissatisfaction with the policies of this country, expression situated at the core of our First Amendment values." Ante at 491 U. S. 411 . Respondent was prosecuted because of the method he chose to express his dissatisfaction with those policies. Had he chosen to spraypaint -- or perhaps convey with a motion picture projector -- his message of dissatisfaction on the facade of the Lincoln Memorial, there would be no question about the power of the Government to prohibit his means of expression. The prohibition would be supported by the legitimate interest in preserving the quality of an important Page 491 U. S. 439 national asset. Though the asset at stake in this case is intangible, given its unique value, the same interest supports a prohibition on the desecration of the American flag. * The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for -- and our history demonstrates that they are -- it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration. I respectfully dissent. * The Court suggests that a prohibition against flag desecration is not content-neutral, because this form of symbolic speech is only used by persons who are critical of the flag or the ideas it represents. In making this suggestion, the Court does not pause to consider the far-reaching consequences of its introduction of disparate-impact analysis into our First Amendment jurisprudence. It seems obvious that a prohibition against the desecration of a gravesite is content-neutral even if it denies some protesters the right to make a symbolic statement by extinguishing the flame in Arlington Cemetery where John F. Kennedy is buried while permitting others to salute the flame by bowing their heads. Few would doubt that a protester who extinguishes the flame has desecrated the gravesite, regardless of whether he prefaces that act with a speech explaining that his purpose is to express deep admiration or unmitigated scorn for the late President. Likewise, few would claim that the protester who bows his head has desecrated the gravesite, even if he makes clear that his purpose is to show disrespect. In such a case, as in a flag burning case, the prohibition against desecration has absolutely nothing to do with the content of the message that the symbolic speech is intended to convey.

Here is a summary of the case: In *Texas v. Johnson*, the Supreme Court ruled that flag burning is a form of protected expression under the First Amendment. The case involved a political protest during the 1984 Republican National Convention, where the respondent, Gregory Lee Johnson, burned an American flag to express his dissatisfaction with the Reagan administration's policies. Johnson was initially convicted of desecrating a venerated object under Texas law. However, the Texas Court of Criminal Appeals reversed the conviction, holding that the state could not criminalize flag burning as a means of preserving national unity or preventing breaches of the peace. The Supreme Court agreed with the Texas Court of Criminal Appeals and held that Johnson's conviction for flag desecration violated the First Amendment. The Court found that Johnson's act of flag burning was intentional political expression and that Texas's interest in preserving the flag as a symbol of national unity was insufficient to justify restricting such expression. The Court also rejected the argument that flag burning could be prohibited to prevent breaches of the peace, noting that the Texas statute was not narrowly tailored to achieve that goal and that another statute already prohibited such disturbances. In his dissent, Justice Kennedy argued that the majority opinion failed to recognize the unique value of the American flag as a national asset and that its desecration could be prohibited to preserve its symbolic power. He compared flag burning to defacing a national monument, such as the Lincoln Memorial, which would also be considered a form of protected expression under the majority's reasoning.

Free Speech

Hazelwood School District v. Kuhlmeier

https://supreme.justia.com/cases/federal/us/484/260/

U.S. Supreme Court Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988) Hazelwood School District v. Kuhlmeier No. 86-836 Argued October 13, 1987 Decided January 13, 1988 484 U.S. 260 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Syllabus Respondents, former high school students who were staff members of the school's newspaper, filed suit in Federal District Court against petitioners, the school district and school officials, alleging that respondents' First Amendment rights were violated by the deletion from a certain issue of the paper of two pages that included an article describing school students' experiences with pregnancy and another article discussing the impact of divorce on students at the school. The newspaper was written and edited by a journalism class, as part of the school's curriculum. Pursuant to the school's practice, the teacher in charge of the paper submitted page proofs to the school's principal, who objected to the pregnancy story because the pregnant students, although not named, might be identified from the text, and because he believed that the article's references to sexual activity and birth control were inappropriate for some of the younger students. The principal objected to the divorce article because the page proofs he was furnished identified by name (deleted by the teacher from the final version) a student who complained of her father's conduct, and the principal believed that the student's parents should have been given an opportunity to respond to the remarks or to consent to their publication. Believing that there was no time to make necessary changes in the articles if the paper was to be issued before the end of the school year, the principal directed that the pages on which they appeared be withheld from publication even though other, unobjectionable articles were included on such pages. The District Court held that no First Amendment violation had occurred. The Court of Appeals reversed. Held: Respondents' First Amendment rights were not violated. (a) First Amendment rights of students in the public schools are not automatically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment. A school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school. (b) The school newspaper here cannot be characterized as a forum for public expression. School facilities may be deemed to be public forums Page 484 U. S. 261 only if school authorities have, by policy or by practice, opened the facilities for indiscriminate use by the general public, or by some segment of the public, such as student organizations. If the facilities have instead been reserved for other intended purposes, communicative or otherwise, then no public forum has been created, and school officials may impose reasonable restrictions on the speech of students, teachers, and other members of the school community. The school officials in this case did not deviate from their policy that the newspaper's production was to be part of the educational curriculum and a regular classroom activity under the journalism teacher's control as to almost every aspect of publication. The officials did not evince any intent to open the paper's pages to indiscriminate use by its student reporters and editors, or by the student body generally. Accordingly, school officials were entitled to regulate the paper's contents in any reasonable manner. (c) The standard for determining when a school may punish student expression that happens to occur on school premises is not the standard for determining when a school may refuse to lend its name and resources to the dissemination of student expression. Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 , distinguished. Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities, so long as their actions are reasonably related to legitimate pedagogical concerns. (d) The school principal acted reasonably in this case in requiring the deletion of the pregnancy article, the divorce article, and the other articles that were to appear on the same pages of the newspaper. 795 F.2d 1368, reversed. WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and STEVENS, O'CONNOR, and SCALIA, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 484 U. S. 277 . Page 484 U. S. 262 JUSTICE WHITE delivered the opinion of the Court. This case concerns the extent to which educators may exercise editorial control over the contents of a high school newspaper produced as part of the school's journalism curriculum. I Petitioners are the Hazelwood School District in St. Louis County, Missouri; various school officials; Robert Eugene Reynolds, the principal of Hazelwood East High School; and Howard Emerson, a teacher in the school district. Respondents are three former Hazelwood East students who were staff members of Spectrum, the school newspaper. They contend that school officials violated their First Amendment rights by deleting two pages of articles from the May 13, 1983, issue of Spectrum. Spectrum was written and edited by the Journalism II class at Hazelwood East. The newspaper was published every three weeks or so during the 1982-1983 school year. More than 4,500 copies of the newspaper were distributed during that year to students, school personnel, and members of the community. The Board of Education allocated funds from its annual budget for the printing of Spectrum. These funds were supplemented by proceeds from sales of the newspaper. The printing expenses during the 1982-1983 school year totaled $4,668.50; revenue from sales was $1,166.84. The other costs associated with the newspaper -- such as supplies, textbooks, Page 484 U. S. 263 and a portion of the journalism teacher's salary -- were borne entirely by the Board. The Journalism II course was taught by Robert Stergos for most of the 1982-1983 academic year. Stergos left Hazelwood East to take a job in private industry on April 29, 1983, when the May 13 edition of Spectrum was nearing completion, and petitioner Emerson took his place as newspaper adviser for the remaining weeks of the term. The practice at Hazelwood East during the spring 1983 semester was for the journalism teacher to submit page proofs of each Spectrum issue to Principal Reynolds for his review prior to publication. On May 10, Emerson delivered the proofs of the May 13 edition to Reynolds, who objected to two of the articles scheduled to appear in that edition. One of the stories described three Hazelwood East students' experiences with pregnancy; the other discussed the impact of divorce on students at the school. Reynolds was concerned that, although the pregnancy story used false names "to keep the identity of these girls a secret," the pregnant students still might be identifiable from the text. He also believed that the article's references to sexual activity and birth control were inappropriate for some of the younger students at the school. In addition, Reynolds was concerned that a student identified by name in the divorce story had complained that her father "wasn't spending enough time with my mom, my sister and I" prior to the divorce, "was always out of town on business or out late playing cards with the guys," and "always argued about everything" with her mother. App. to Pet. for Cert. 38. Reynolds believed that the student's parents should have been given an opportunity to respond to these remarks, or to consent to their publication. He was unaware that Emerson had deleted the student's name from the final version of the article. Reynolds believed that there was no time to make the necessary changes in the stories before the scheduled press run, Page 484 U. S. 264 and that the newspaper would not appear before the end of the school year if printing were delayed to any significant extent. He concluded that his only options under the circumstances were to publish a four-page newspaper instead of the planned six-page newspaper, eliminating the two pages on which the offending stories appeared, or to publish no newspaper at all. Accordingly, he directed Emerson to withhold from publication the two pages containing the stories on pregnancy and divorce. [ Footnote 1 ] He informed his superiors of the decision, and they concurred. Respondents subsequently commenced this action in the United States District Court for the Eastern District of Missouri, seeking a declaration that their First Amendment rights had been violated, injunctive relief, and monetary damages. After a bench trial, the District Court denied an injunction, holding that no First Amendment violation had occurred. 607 F. Supp. 1450 (1985). The District Court concluded that school officials may impose restraints on students' speech in activities that are " an integral part of the school's educational function'" -- including the publication of a school-sponsored newspaper by a journalism class -- so long as their decision has "`a substantial and reasonable basis.'" Id. at 1466 (quoting Frasca v. Andrews, 463 F. Supp. 1043 , 1052 (EDNY 1979)). The court found that Principal Reynolds' concern that the pregnant students' anonymity would be lost and their privacy invaded was "legitimate and reasonable," given "the small number of pregnant students at Hazelwood East and several identifying characteristics that were disclosed in the article." 607 F. Supp. at 1466. The court held that Reynolds' action was also justified "to avoid the impression that [the school] endorses Page 484 U. S. 265 the sexual norms of the subjects" and to shield younger students from exposure to unsuitable material. Ibid. The deletion of the article on divorce was seen by the court as a reasonable response to the invasion of privacy concerns raised by the named student's remarks. Because the article did not indicate that the student's parents had been offered an opportunity to respond to her allegations, said the court, there was cause for "serious doubt that the article complied with the rules of fairness which are standard in the field of journalism and which were covered in the textbook used in the Journalism II class." Id. at 1467. Furthermore, the court concluded that Reynolds was justified in deleting two full pages of the newspaper, instead of deleting only the pregnancy and divorce stories or requiring that those stories be modified to address his concerns, based on his "reasonable belief that he had to make an immediate decision and that there was no time to make modifications to the articles in question." Id. at 1466. The Court of Appeals for the Eighth Circuit reversed. 795 F.2d 1368 (1986). The court held at the outset that Spectrum was not only "a part of the school adopted curriculum," id. at 1373, but also a public forum, because the newspaper was "intended to be and operated as a conduit for student viewpoint." Id. at 1372. The court then concluded that Spectrum's status as a public forum precluded school officials from censoring its contents except when " necessary to avoid material and substantial interference with school work or discipline . . . or the rights of others.'" Id. at 1374 (quoting Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 , 393 U. S. 511 (1969)). The Court of Appeals found "no evidence in the record that the principal could have reasonably forecast that the censored articles or any materials in the censored articles would have materially disrupted classwork or given rise to substantial disorder in the school." 795 F.2d at 1375. School officials were entitled to censor the articles on the ground that Page 484 U. S. 266 they invaded the rights of others, according to the court, only if publication of the articles could have resulted in tort liability to the school. The court concluded that no tort action for libel or invasion of privacy could have been maintained against the school by the subjects of the two articles or by their families. Accordingly, the court held that school officials had violated respondents' First Amendment rights by deleting the two pages of the newspaper. We granted certiorari, 479 U.S. 1053 (1987), and we now reverse. II Students in the public schools do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker, supra, at 393 U. S. 506 . They cannot be punished merely for expressing their personal views on the school premises -- whether "in the cafeteria, or on the playing field, or on the campus during the authorized hours," 393 U.S. at 393 U. S. 512 -513 -- unless school authorities have reason to believe that such expression will "substantially interfere with the work of the school or impinge upon the rights of other students." Id. at 393 U. S. 509 . We have nonetheless recognized that the First Amendment rights of students in the public schools "are not automatically coextensive with the rights of adults in other settings," Bethel School District No. 403 v. Fraser, 478 U. S. 675 , 403 U. S. 682 (1986), and must be "applied in light of the special characteristics of the school environment." Tinker, supra, at 393 U. S. 506 ; cf. New Jersey v. T.L.O., 469 U. S. 325 , 469 U. S. 341 -343 (1985). A school need not tolerate student speech that is inconsistent with its "basic educational mission," Fraser, supra, at 478 U. S. 685 , even though the government could not censor similar speech outside the school. Accordingly, we held in Fraser that a student could be disciplined for having delivered a speech that was "sexually explicit" but not legally obscene at an official school assembly, because the school was entitled to "disassociate itself " from the speech in a manner Page 484 U. S. 267 that would demonstrate to others that such vulgarity is "wholly inconsistent with the fundamental values' of public school education." 478 U.S. at 478 U. S. 685 -686. We thus recognized that "[t]he determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board," id. at 478 U. S. 683 , rather than with the federal courts. It is in this context that respondents' First Amendment claims must be considered. A We deal first with the question whether Spectrum may appropriately be characterized as a forum for public expression. The public schools do not possess all of the attributes of streets, parks, and other traditional public forums that "time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Hague v. CIO, 307 U. S. 496 , 307 U. S. 515 (1939). Cf. Widmar v. Vincent, 454 U. S. 263 , 454 U. S. 267 -268, n. 5 (1981). Hence, school facilities may be deemed to be public forums only if school authorities have "by policy or by practice" opened those facilities "for indiscriminate use by the general public," Perry Education Assn. v. Perry Local Educators' Assn., 460 U. S. 37 , 460 U. S. 47 (1983), or by some segment of the public, such as student organizations. Id. at 460 U. S. 46 , n. 7 (citing Widmar v. Vincent ). If the facilities have instead been reserved for other intended purposes, "communicative or otherwise," then no public forum has been created, and school officials may impose reasonable restrictions on the speech of students, teachers, and other members of the school community. 460 U.S. at 460 U. S. 46 , n. 7. "The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse." Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U. S. 788 , 473 U. S. 802 (1985). Page 484 U. S. 268 The policy of school officials toward Spectrum was reflected in Hazelwood School Board Policy 348.51 and the Hazelwood East Curriculum Guide. Board Policy 348.51 provided that "[s]chool sponsored publications are developed within the adopted curriculum and its educational implications in regular classroom activities." App. 22. The Hazelwood East Curriculum Guide described the Journalism II course as a "laboratory situation in which the students publish the school newspaper applying skills they have learned in Journalism I." Id. at 11. The lessons that were to be learned from the Journalism II course, according to the Curriculum Guide, included development of journalistic skills under deadline pressure, "the legal, moral, and ethical restrictions imposed upon journalists within the school community," and "responsibility and acceptance of criticism for articles of opinion." Ibid. Journalism II was taught by a faculty member during regular class hours. Students received grades and academic credit for their performance in the course. School officials did not deviate in practice from their policy that production of Spectrum was to be part of the educational curriculum, and a "regular classroom activit[y]." The District Court found that Robert Stergos, the journalism teacher during most of the 1982-1983 school year, "both had the authority to exercise, and in fact exercised, a great deal of control over Spectrum." 607 F. Supp. at 1453. For example, Stergos selected the editors of the newspaper, scheduled publication dates, decided the number of pages for each issue, assigned story ideas to class members, advised students on the development of their stories, reviewed the use of quotations, edited stories, selected and edited the letters to the editor, and dealt with the printing company. Many of these decisions were made without consultation with the Journalism II students. The District Court thus found it "clear that Mr. Stergos was the final authority with respect to almost every aspect of the production and publication of Spectrum, including its content." Ibid. Moreover, after Page 484 U. S. 269 each Spectrum issue had been finally approved by Stergos or his successor, the issue still had to be reviewed by Principal Reynolds prior to publication. Respondents' assertion that they had believed that they could publish "practically anything" in Spectrum was therefore dismissed by the District Court as simply "not credible." Id. at 1456. These factual findings are amply supported by the record, and were not rejected as clearly erroneous by the Court of Appeals. The evidence relied upon by the Court of Appeals in finding Spectrum to be a public forum, see 795 F.2d at 1372-1373, is equivocal, at best. For example, Board Policy 348.51, which stated in part that "[s]chool sponsored student publications will not restrict free expression or diverse viewpoints within the rules of responsible journalism," also stated that such publications were "developed within the adopted curriculum and its educational implications." App. 22. One might reasonably infer from the full text of Policy 348.51 that school officials retained ultimate control over what constituted "responsible journalism" in a school-sponsored newspaper. Although the Statement of Policy published in the September 14, 1982, issue of Spectrum declared that "Spectrum, as a student-press publication, accepts all rights implied by the First Amendment," this statement, understood in the context of the paper's role in the school's curriculum, suggests, at most, that the administration will not interfere with the students' exercise of those First Amendment rights that attend the publication of a school-sponsored newspaper. It does not reflect an intent to expand those rights by converting a curricular newspaper into a public forum. [ Footnote 2 ] Finally, Page 484 U. S. 270 that students were permitted to exercise some authority over the contents of Spectrum was fully consistent with the Curriculum Guide objective of teaching the Journalism II students "leadership responsibilities as issue and page editors." App. 11. A decision to teach leadership skills in the context of a classroom activity hardly implies a decision to relinquish school control over that activity. In sum, the evidence relied upon by the Court of Appeals fails to demonstrate the "clear intent to create a public forum," Cornelius, 473 U.S. at 473 U. S. 802 , that existed in cases in which we found public forums to have been created. See id. at 473 U. S. 802 -803 (citing Widmar v. Vincent, 454 U.S. at 454 U. S. 267 ; Madison School District v. Wisconsin Employment Relations Comm'n, 429 U. S. 167 , 429 U. S. 174 , n. 6 (1976); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 , 420 U. S. 555 (1975)). School officials did not evince either "by policy or by practice," Perry Education Assn., 460 U.S. at 460 U. S. 47 , any intent to open the pages of Spectrum to "indiscriminate use," ibid., by its student reporters and editors, or by the student body generally. Instead, they "reserve[d] the forum for its intended purpos[e]," id. at 460 U. S. 46 , as a supervised learning experience for journalism students. Accordingly, school officials were entitled to regulate the contents of Spectrum in any reasonable manner. Ibid. It is this standard, rather than our decision in Tinker, that governs this case. B The question whether the First Amendment requires a school to tolerate particular student speech -- the question that we addressed in Tinker -- is different from the question whether the First Amendment requires a school affirmatively Page 484 U. S. 271 to promote particular student speech. The former question addresses educators' ability to silence a student's personal expression that happens to occur on the school premises. The latter question concerns educators' authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. These activities may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences. [ Footnote 3 ] Educators are entitled to exercise greater control over this second form of student expression to assure that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school. Hence, a school may, in its capacity as publisher of a school newspaper or producer of a school play, "disassociate itself," Fraser, 478 U.S. at 478 U. S. 685 , not only from speech that would "substantially interfere with [its] work . . . or impinge upon the rights of other students," Tinker, 393 U.S. at 393 U. S. 509 , but also from speech that is, for example, ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences. [ Footnote 4 ] A school must be able to set high standards for Page 484 U. S. 272 the student speech that is disseminated under its auspices -- standards that may be higher than those demanded by some newspaper publishers or theatrical producers in the "real" world -- and may refuse to disseminate student speech that does not meet those standards. In addition, a school must be able to take into account the emotional maturity of the intended audience in determining whether to disseminate student speech on potentially sensitive topics, which might range from the existence of Santa Claus in an elementary school setting to the particulars of teenage sexual activity in a high school setting. A school must also retain the authority to refuse to sponsor student speech that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or conduct otherwise inconsistent with "the shared values of a civilized social order," Fraser, supra, at 478 U. S. 683 , or to associate the school with any position other than neutrality on matters of political controversy. Otherwise, the schools would be unduly constrained from fulfilling their role as "a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment." Brown v. Board of Education, 347 U. S. 483 , 347 U. S. 493 (1954). Accordingly, we conclude that the standard articulated in Tinker for determining when a school may punish student expression need not also be the standard for determining when a school may refuse to lend its name and resources to the dissemination Page 484 U. S. 273 of student expression. [ Footnote 5 ] Instead, we hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities, so long as their actions are reasonably related to legitimate pedagogical concerns. [ Footnote 6 ] This standard is consistent with our oft-expressed view that the education of the Nation's youth is primarily the responsibility of parents, teachers, and state and local school officials, and not of federal judges. See, e.g., Board of Education of Hendrick Hudson Central School Dist. v. Rowley, 458 U. S. 176 , 458 U. S. 208 (1982); Wood v. Strickland, 420 U. S. 308 , 420 U. S. 326 (1975); Epperson v. Arkansas, 393 U. S. 97 , 393 U. S. 104 (1968). It is only when the decision to censor a school-sponsored publication, theatrical production, or other vehicle of student expression has no valid educational purpose that the First Amendment is so "directly and sharply implicate[d]," ibid., as to require judicial intervention to protect students' constitutional rights. [ Footnote 7 ] Page 484 U. S. 274 III We also conclude that Principal Reynolds acted reasonably in requiring the deletion from the May 13 issue of Spectrum of the pregnancy article, the divorce article, and the remaining articles that were to appear on the same pages of the newspaper. The initial paragraph of the pregnancy article declared that "[a]ll names have been changed to keep the identity of these girls a secret." The principal concluded that the students' anonymity was not adequately protected, however, given the other identifying information in the article and the small number of pregnant students at the school. Indeed, a teacher at the school credibly testified that she could positively identify at least one of the girls, and possibly all three. It is likely that many students at Hazelwood East would have been at least as successful in identifying the girls. Reynolds therefore could reasonably have feared that the article violated whatever pledge of anonymity had been given to the pregnant students. In addition, he could reasonably have been concerned that the article was not sufficiently sensitive to the privacy interests of the students' boyfriends and parents, who were discussed in the article but who were given no opportunity to consent to its publication or to offer a response. The article did not contain graphic accounts of sexual activity. The girls did comment in the article, however, concerning their sexual histories and their use or nonuse of birth control. It was not unreasonable for the principal to have concluded that such frank talk was inappropriate in a school-sponsored publication distributed to 14-year-old freshmen Page 484 U. S. 275 and presumably taken home to be read by students' even younger brothers and sisters. The student who was quoted by name in the version of the divorce article seen by Principal Reynolds made comments sharply critical of her father. The principal could reasonably have concluded that an individual publicly identified as an inattentive parent -- indeed, as one who chose "playing cards with the guys" over home and family -- was entitled to an opportunity to defend himself as a matter of journalistic fairness. These concerns were shared by both of Spectrum's faculty advisers for the 1982-1983 school year, who testified that they would not have allowed the article to be printed without deletion of the student's name. [ Footnote 8 ] Principal Reynolds testified credibly at trial that, at the time that he reviewed the proofs of the May 13 issue during an extended telephone conversation with Emerson, he believed that there was no time to make any changes in the articles, and that the newspaper had to be printed immediately or not at all. It is true that Reynolds did not verify whether the necessary modifications could still have been made in the articles, and that Emerson did not volunteer the information that printing could be delayed until the changes were made. We nonetheless agree with the District Court that the decision to excise the two pages containing the problematic articles was reasonable, given the particular circumstances of this case. These circumstances included the very recent Page 484 U. S. 276 replacement of Stergos by Emerson, who may not have been entirely familiar with Spectrum editorial and production procedures, and the pressure felt by Reynolds to make an immediate decision so that students would not be deprived of the newspaper altogether. In sum, we cannot reject as unreasonable Principal Reynolds' conclusion that neither the pregnancy article nor the divorce article was suitable for publication in Spectrum. Reynolds could reasonably have concluded that the students who had written and edited these articles had not sufficiently mastered those portions of the Journalism II curriculum that pertained to the treatment of controversial issues and personal attacks, the need to protect the privacy of individuals whose most intimate concerns are to be revealed in the newspaper, and "the legal, moral, and ethical restrictions imposed upon journalists within [a] school community" that includes adolescent subjects and readers. Finally, we conclude that the principal's decision to delete two pages of Spectrum, rather than to delete only the offending articles or to require that they be modified, was reasonable under the circumstances as he understood them. Accordingly, no violation of First Amendment rights occurred. [ Footnote 9 ] The judgment of the Court of Appeals for the Eighth Circuit is therefore Reversed. Page 484 U. S. 277 [ Footnote 1 ] The two pages deleted from the newspaper also contained articles on teenage marriage, runaways, and juvenile delinquents, as well as a general article on teenage pregnancy. Reynolds testified that he had no objection to these articles, and that they were deleted only because they appeared on the same pages as the two objectionable articles. [ Footnote 2 ] The Statement also cited Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969), for the proposition that "[o]nly speech that 'materially and substantially interferes with the requirements of appropriate discipline' can be found unacceptable and therefore be prohibited." App. 26. This portion of the Statement does not, of course, even accurately reflect our holding in Tinker. Furthermore, the Statement nowhere expressly extended the Tinker standard to the news and feature articles contained in a school-sponsored newspaper. The dissent apparently finds as a fact that the Statement was published annually in Spectrum; however, the District Court was unable to conclude that the Statement appeared on more than one occasion. In any event, even if the Statement says what the dissent believes that it says, the evidence that school officials never intended to designate Spectrum as a public forum remains overwhelming. [ Footnote 3 ] The distinction that we draw between speech that is sponsored by the school and speech that is not is fully consistent with Papish v. University of Missouri Board of Curators, 410 U. S. 667 (1973) (per curiam), which involved an off-campus "underground" newspaper that school officials merely had allowed to be sold on a state university campus. [ Footnote 4 ] The dissent perceives no difference between the First Amendment analysis applied in Tinker and that applied in Fraser. We disagree. The decision in Fraser rested on the "vulgar," "lewd," and "plainly offensive" character of a speech delivered at an official school assembly, rather than on any propensity of the speech to "materially disrup[t] classwork or involv[e] substantial disorder or invasion of the rights of others." 393 U.S. at 393 U. S. 513 . Indeed, the Fraser Court cited as "especially relevant" a portion of Justice Black's dissenting opinion in Tinker "'disclaim[ing] any purpose . . . to hold that the Federal Constitution compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students.'" 478 U.S. at 478 U. S. 686 (quoting 393 U.S. at 393 U. S. 526 ). Of course, Justice Black's observations are equally relevant to the instant case. [ Footnote 5 ] We therefore need not decide whether the Court of Appeals correctly construed Tinker as precluding school officials from censoring student speech to avoid "invasion of the rights of others," 393 U.S. at 393 U. S. 513 , except where that speech could result in tort liability to the school. [ Footnote 6 ] We reject respondents' suggestion that school officials be permitted to exercise prepublication control over school-sponsored publications only pursuant to specific written regulations. To require such regulations in the context of a curricular activity could unduly constrain the ability of educators to educate. We need not now decide whether such regulations are required before school officials may censor publications not sponsored by the school that students seek to distribute on school grounds. See Baughman v. Freienmuth, 478 F.2d 1345 (CA4 1973); Shanley v. Northeast Independent School Dist., Bexar Cty., Tex., 462 F.2d 960 (CA5 1972); Eisner v. Stamford Board of Education, 440 F.2d 803 (CA2 1971). [ Footnote 7 ] A number of lower federal courts have similarly recognized that educators' decisions with regard to the content of school-sponsored newspapers, dramatic productions, and other expressive activities are entitled to substantial deference. See, e.g., Nicholson v. Board of Education, Torrance Unified School Dist., 682 F.2d 858 (CA9 1982); Seyfried v. Walton, 668 F.2d 214 (CA3 1981); Trachtman v. Anker, 563 F.2d 512 (CA2 1977), cert. denied, 435 U.S. 925 (1978); Frasca v. Andrews, 463 F. Supp. 1043 (EDNY 1979). We need not now decide whether the same degree of deference is appropriate with respect to school-sponsored expressive activities at the college and university level. [ Footnote 8 ] The reasonableness of Principal Reynolds' concerns about the two articles was further substantiated by the trial testimony of Martin Duggan, a former editorial page editor of the St. Louis Globe Democrat and a former college journalism instructor and newspaper adviser. Duggan testified that the divorce story did not meet journalistic standards of fairness and balance because the father was not given an opportunity to respond, and that the pregnancy story was not appropriate for publication in a high school newspaper because it was unduly intrusive into the privacy of the girls, their parents, and their boyfriends. The District Court found Duggan to be "an objective and independent witness" whose testimony was entitled to significant weight. 607 F. Supp. 1450 , 1461 (ED Mo.1985). [ Footnote 9 ] It is likely that the approach urged by the dissent would, as a practical matter, have far more deleterious consequences for the student press than does the approach that we adopt today. The dissent correctly acknowledges "[t]he State's prerogative to dissolve the student newspaper entirely." Post at 484 U. S. 287 . It is likely that many public schools would do just that rather than open their newspapers to all student expression that does not threaten "materia[l] disrup[tion of] classwork" or violation of "rights that are protected by law," post at 484 U. S. 289 , regardless of how sexually explicit, racially intemperate, or personally insulting that expression otherwise might be. JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, dissenting. When the young men and women of Hazelwood East High School registered for Journalism II, they expected a civics lesson. Spectrum, the newspaper they were to publish, "was not just a class exercise in which students learned to prepare papers and hone writing skills, it was a . . . forum established to give students an opportunity to express their views while gaining an appreciation of their rights and responsibilities under the First Amendment to the United States Constitution. . . ." 795 F.2d 1368, 1373 (CA8 1986). "[A]t the beginning of each school year," id. at 1372, the student journalists published a Statement of Policy -- tacitly approved each year by school authorities -- announcing their expectation that " Spectrum, as a student-press publication, accepts all rights implied by the First Amendment. . . . Only speech that 'materially and substantially interferes with the requirements of appropriate discipline' can be found unacceptable and therefore prohibited." App. 26 (quoting Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 , 393 U. S. 513 (1969)). [ Footnote 2/1 ] The school board itself affirmatively guaranteed the students of Journalism II an atmosphere conducive to fostering such an appreciation and exercising the full panoply of rights associated with a free student press. "School-sponsored student publications," it vowed, "will not restrict free expression or diverse viewpoints within the rules of responsible journalism." App. 22 (Board Policy 348.51). Page 484 U. S. 278 This case arose when the Hazelwood East administration breached its own promise, dashing its students' expectations. The school principal, without prior consultation or explanation, excised six articles -- comprising two full pages -- of the May 13, 1983, issue of Spectrum. He did so not because any of the articles would "materially and substantially interfere with the requirements of appropriate discipline," but simply because he considered two of the six "inappropriate, personal, sensitive, and unsuitable" for student consumption. 795 F.2d at 1371. In my view, the principal broke more than just a promise. He violated the First Amendment's prohibitions against censorship of any student expression that neither disrupts classwork nor invades the rights of others, and against any censorship that is not narrowly tailored to serve its purpose. I Public education serves vital national interests in preparing the Nation's youth for life in our increasingly complex society and for the duties of citizenship in our democratic Republic. See Brown v. Board of Education, 347 U. S. 483 , 347 U. S. 493 (1954). The public school conveys to our young the information and tools required not merely to survive in, but to contribute to, civilized society. It also inculcates in tomorrow's leaders the "fundamental values necessary to the maintenance of a democratic political system. . . ." Ambach v. Norwick, 441 U. S. 68 , 441 U. S. 77 (1979). All the while, the public educator nurtures students' social and moral development by transmitting to them an official dogma of " community values.'" Board of Education v. Pico, 457 U. S. 853 , 457 U. S. 864 (1982) (plurality opinion) (citation omitted). The public educator's task is weighty and delicate indeed. It demands particularized and supremely subjective choices among diverse curricula, moral values, and political stances to teach or inculcate in students, and among various methodologies for doing so. Accordingly, we have traditionally reserved Page 484 U. S. 279 the "daily operation of school systems" to the States and their local school boards. Epperson v. Arkansas, 393 U. S. 97 , 393 U. S. 104 (1968); see Board of Education v. Pico, supra, at 457 U. S. 863 -864. We have not, however, hesitated to intervene where their decisions run afoul of the Constitution. See e.g., Edwards v. Aguillard, 482 U. S. 578 (1987) (striking state statute that forbade teaching of evolution in public school unless accompanied by instruction on theory of "creation science"); Board of Education v. Pico, supra, (school board may not remove books from library shelves merely because it disapproves of ideas they express); Epperson v. Arkansas, supra, (striking state law prohibition against teaching Darwinian theory of evolution in public school); West Virginia Board of Education v. Barnette, 319 U. S. 624 (1943) (public school may not compel student to salute flag); Meyer v. Nebraska, 262 U. S. 390 (1923) (state law prohibiting the teaching of foreign languages in public or private schools is unconstitutional). Free student expression undoubtedly sometimes interferes with the effectiveness of the school's pedagogical functions. Some brands of student expression do so by directly preventing the school from pursuing its pedagogical mission: the young polemic who stands on a soapbox during calculus class to deliver an eloquent political diatribe interferes with the legitimate teaching of calculus. And the student who delivers a lewd endorsement of a student government candidate might so extremely distract an impressionable high school audience as to interfere with the orderly operation of the school. See Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675 (1986). Other student speech, however, frustrates the school's legitimate pedagogical purposes merely by expressing a message that conflicts with the school's, without directly interfering with the school's expression of its message: a student who responds to a political science teacher's question with the retort, "socialism is good," subverts the school's inculcation of the message that capitalism is better. Page 484 U. S. 280 Even the maverick who sits in class passively sporting a symbol of protest against a government policy, cf. Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969), or the gossip who sits in the student commons swapping stories of sexual escapade could readily muddle a clear official message condoning the government policy or condemning teenage sex. Likewise, the student newspaper that, like Spectrum, conveys a moral position at odds with the school's official stance might subvert the administration's legitimate inculcation of its own perception of community values. If mere incompatibility with the school's pedagogical message were a constitutionally sufficient justification for the suppression of student speech, school officials could censor each of the students or student organizations in the foregoing hypotheticals, converting our public schools into "enclaves of totalitarianism," id. at 393 U. S. 511 , that "strangle the free mind at its source," West Virginia Board of Education v. Barnette, supra, at 319 U. S. 637 . The First Amendment permits no such blanket censorship authority. While the "constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings," Fraser, supra, at 478 U. S. 682 , students in the public schools do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," Tinker, supra, at 393 U. S. 506 . Just as the public on the street corner must, in the interest of fostering "enlightened opinion," Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 310 (1940), tolerate speech that "tempt[s] [the listener] to throw [the speaker] off the street," id. at 310 U. S. 309 , public educators must accommodate some student expression even if it offends them or offers views or values that contradict those the school wishes to inculcate. In Tinker, this Court struck the balance. We held that official censorship of student expression -- there the suspension of several students until they removed their armbands protesting the Vietnam war -- is unconstitutional unless the Page 484 U. S. 281 speech "materially disrupts classwork or involves substantial disorder or invasion of the rights of others. . . . " 393 U.S. at 393 U. S. 513 . School officials may not suppress "silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of" the speaker. Id. at 393 U. S. 508 . The "mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint," id. at 393 U. S. 509 , or an unsavory subject, Fraser, supra, at 478 U. S. 688 -689 (BRENNAN, J., concurring in judgment), does not justify official suppression of student speech in the high school. This Court applied the Tinker test just a Term ago in Fraser, supra, upholding an official decision to discipline a student for delivering a lewd speech in support of a student government candidate. The Court today casts no doubt on Tinker's vitality. Instead, it erects a taxonomy of school censorship, concluding that Tinker applies to one category, and not another. On the one hand is censorship "to silence a student's personal expression that happens to occur on the school premises." Ante at 484 U. S. 271 . On the other hand is censorship of expression that arises in the context of "school-sponsored . . . expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school." Ibid. The Court does not, for it cannot, purport to discern from our precedents the distinction it creates. One could, I suppose, readily characterize the students' symbolic speech in Tinker as "personal expression that happens to [have] occur[red] on school premises," although Tinker did not even hint that the personal nature of the speech was of any (much less dispositive) relevance. But that same description could not, by any stretch of the imagination, fit Fraser's speech. He did not just "happen" to deliver his lewd speech to an ad hoc gathering on the playground. As the second paragraph of Fraser evinces, if ever a forum for student expression was "school-sponsored," Fraser's was: Page 484 U. S. 282 "Fraser . . . delivered a speech nominating a fellow student for student elective office. Approximately 600 high school students . . . attended the assembly. Students were required to attend the assembly or to report to the study hall. The assembly was part of a school-sponsored educational program in self-government." Fraser, 478 U.S. at 478 U. S. 677 (emphasis added). Yet, from the first sentence of its analysis, see id. at 478 U. S. 680 , Fraser faithfully applied Tinker. Nor has this Court ever intimated a distinction between personal and school-sponsored speech in any other context. Particularly telling is this Court's heavy reliance on Tinker in two cases of First Amendment infringement on state college campuses. See Papish v. University of Missouri Board of Curators, 410 U. S. 667 , 410 U. S. 671 , n. 6 (1973) (per curiam); Healy v. James, 408 U. S. 169 , 408 U. S. 180 , 408 U. S. 189 , and n. 18, 408 U. S. 191 (1972). One involved the expulsion of a student for lewd expression in a newspaper that she sold on campus pursuant to university authorization, see Papish, supra, at 410 U. S. 667 -668, and the other involved the denial of university recognition and concomitant benefits to a political student organization, see Healy, supra, at 408 U. S. 174 , 408 U. S. 176 , 408 U. S. 181 -182. Tracking Tinker's analysis, the Court found each act of suppression unconstitutional. In neither case did this Court suggest the distinction, which the Court today finds dispositive, between school-sponsored and incidental student expression. II Even if we were writing on a clean slate, I would reject the Court's rationale for abandoning Tinker in this case. The Court offers no more than an obscure tangle of three excuses to afford educators "greater control" over school-sponsored speech than the Tinker test would permit: the public educator's prerogative to control curriculum; the pedagogical interest in shielding the high school audience from objectionable viewpoints and sensitive topics; and the school's need Page 484 U. S. 283 to dissociate itself from student expression. Ante at 484 U. S. 271 . None of the excuses, once disentangled, supports the distinction that the Court draws. Tinker fully addresses the first concern; the second is illegitimate; and the third is readily achievable through less oppressive means. A The Court is certainly correct that the First Amendment permits educators "to assure that participants learn whatever lessons the activity is designed to teach. . . ." Ante at 484 U. S. 271 . That is, however, the essence of the Tinker test, not an excuse to abandon it. Under Tinker, school officials may censor only such student speech as would "materially disrup[t]" a legitimate curricular function. Manifestly, student speech is more likely to disrupt a curricular function when it arises in the context of a curricular activity -- one that "is designed to teach" something -- than when it arises in the context of a noncurricular activity. Thus, under Tinker, the school may constitutionally punish the budding political orator if he disrupts calculus class, but not if he holds his tongue for the cafeteria. See Consolidated Edison Co. v. Public Service Comm'n of New York, 447 U. S. 530 , 447 U. S. 544 -545 (1980) (STEVENS, J., concurring in judgment). That is not because some more stringent standard applies in the curricular context. (After all, this Court applied the same standard whether the students in Tinker wore their armbands to the "classroom" or the "cafeteria." 393 U.S. at 393 U. S. 512 .) It is because student speech in the noncurricular context is less likely to disrupt materially any legitimate pedagogical purpose. I fully agree with the Court that the First Amendment should afford an educator the prerogative not to sponsor the publication of a newspaper article that is "ungrammatical, poorly written, inadequately researched, biased or prejudiced," or that falls short of the "high standards for . . . student speech that is disseminated under [the school's] auspices. . . ." Ante at 484 U. S. 271 -272. But we need not abandon Tinker Page 484 U. S. 284 to reach that conclusion; we need only apply it. The enumerated criteria reflect the skills that the curricular newspaper "is designed to teach." The educator may, under Tinker, constitutionally "censor" poor grammar, writing, or research, because to reward such expression would "materially disrup[t]" the newspaper's curricular purpose. The same cannot be said of official censorship designed to shield the audience or dissociate the sponsor from the expression. Censorship so motivated might well serve (although, as I demonstrate infra at 484 U. S. 285 -289, cannot legitimately serve) some other school purpose. But it in no way furthers the curricular purposes of a student newspaper unless one believes that the purpose of the school newspaper is to teach students that the press ought never report bad news, express unpopular views, or print a thought that might upset its sponsors. Unsurprisingly, Hazelwood East claims no such pedagogical purpose. The Court relies on bits of testimony to portray the principal's conduct as a pedagogical lesson to Journalism II students who "had not sufficiently mastered those portions of the . . . curriculum that pertained to the treatment of controversial issues and personal attacks, the need to protect the privacy of individuals . . . and 'the legal, moral, and ethical restrictions imposed upon journalists. . . .'" Ante at 484 U. S. 276 . In that regard, the Court attempts to justify censorship of the article on teenage pregnancy on the basis of the principal's judgment that (1) "the [pregnant] students' anonymity was not adequately protected," despite the article's use of aliases; and (2) the judgment that "the article was not sufficiently sensitive to the privacy interests of the students' boyfriends and parents. . . ." Ante at 484 U. S. 274 . Similarly, the Court finds in the principal's decision to censor the divorce article a journalistic lesson that the author should have given the father of one student an "opportunity to defend himself" against her charge that (in the Court's words) he "chose Page 484 U. S. 285 playing cards with the guys' over home and family. . . ." Ante at 484 U. S. 275 . But the principal never consulted the students before censoring their work. "[T]hey learned of the deletions when the paper was released. . . ." 795 F.2d at 1371. Further, he explained the deletions only in the broadest of generalities. In one meeting called at the behest of seven protesting Spectrum staff members (presumably a fraction of the full class), he characterized the articles as " too sensitive' for `our immature audience of readers,'" 607 F. Supp. 1450 , 1459 (ED Mo.1985), and in a later meeting he deemed them simply "inappropriate, personal, sensitive and unsuitable for the newspaper," ibid. The Court's supposition that the principal intended (or the protesters understood) those generalities as a lesson on the nuances of journalistic responsibility is utterly incredible. If he did, a fact that neither the District Court nor the Court of Appeals found, the lesson was lost on all but the psychic Spectrum staffer. B The Court's second excuse for deviating from precedent is the school's interest in shielding an impressionable high school audience from material whose substance is "unsuitable for immature audiences." Ante at 484 U. S. 271 (footnote omitted). Specifically, the majority decrees that we must afford educators authority to shield high school students from exposure to "potentially sensitive topics" (like "the particulars of teenage sexual activity") or unacceptable social viewpoints (like the advocacy of "irresponsible se[x] or conduct otherwise inconsistent with the shared values of a civilized social order'") through school-sponsored student activities. Ante at 484 U. S. 272 (citation omitted). Tinker teaches us that the state educator's undeniable, and undeniably vital, mandate to inculcate moral and political values is not a general warrant to act as "thought police" stifling discussion of all but state-approved topics and advocacy of all Page 484 U. S. 286 but the official position. See also Epperson v. Arkansas, 393 U. S. 97 (1968); Meyer v. Nebraska, 262 U. S. 390 (1923). Otherwise, educators could transform students into "closed-circuit recipients of only that which the State chooses to communicate," Tinker, 393 U.S. at 393 U. S. 511 , and cast a perverse and impermissible "pall of orthodoxy over the classroom," Keyishian v. Board of Regents, 385 U. S. 589 , 385 U. S. 603 (1967). Thus, the State cannot constitutionally prohibit its high school students from recounting in the locker room "the particulars of [their] teen-age sexual activity," nor even from advocating "irresponsible se[x]" or other presumed abominations of "the shared values of a civilized social order." Even in its capacity as educator, the State may not assume an Orwellian "guardianship of the public mind," Thomas v. Collins, 323 U. S. 516 , 323 U. S. 545 (1945) (Jackson, J., concurring). The mere fact of school sponsorship does not, as the Court suggests, license such thought control in the high school, whether through school suppression of disfavored viewpoints or through official assessment of topic sensitivity. [ Footnote 2/2 ] The former would constitute unabashed and unconstitutional viewpoint Page 484 U. S. 287 discrimination, see Board of Education v. Pico, 457 U.S. at 457 U. S. 878 -879 (BLACKMUN, J., concurring in part and concurring in judgment), as well as an impermissible infringement of the students' " right to receive information and ideas,'" id. at 457 U. S. 867 (plurality opinion) (citations omitted); see First National Bank v. Bellotti, 435 U. S. 765 , 435 U. S. 783 (1978). [ Footnote 2/3 ] Just as a school board may not purge its state-funded library of all books that "`offen[d] [its] social, political and moral tastes,'" 457 U.S. at 457 U. S. 858 -859 (plurality opinion) (citation omitted), school officials may not, out of like motivation, discriminatorily excise objectionable ideas from a student publication. The State's prerogative to dissolve the student newspaper entirely (or to limit its subject matter) no more entitles it to dictate which viewpoints students may express on its pages than the State's prerogative to close down the schoolhouse entitles it to prohibit the nondisruptive expression of antiwar sentiment within its gates. Official censorship of student speech on the ground that it addresses "potentially sensitive topics" is, for related reasons, equally impermissible. I would not begrudge an educator the authority to limit the substantive scope of a school-sponsored publication to a certain, objectively definable topic, such as literary criticism, school sports, or an overview of the school year. Unlike those determinate limitations, "potential topic sensitivity" is a vaporous nonstandard -- like " public welfare, peace, safety, health, decency, good order, morals or convenience,'" Shuttlesworth v. Birmingham, 394 U. S. 147 , 394 U. S. 150 (1969), or "`general welfare of citizens,'" Staub v. Baxley, 355 U. S. 313 , 355 U. S. 322 (1958) -- that invites manipulation to achieve ends that cannot permissibly be achieved through blatant viewpoint discrimination and chills student speech to which school officials might not Page 484 U. S. 288 object. In part because of those dangers, this Court has consistently condemned any scheme allowing a state official boundless discretion in licensing speech from a particular forum. See, e.g., Shuttlesworth v. Birmingham, supra, at 394 U. S. 150 -151, and n. 2; Cox v. Louisiana, 379 U. S. 536 , 379 U. S. 557 -558 (1965); Staub v. Baxley, supra, at 355 U. S. 322 -324. The case before us aptly illustrates how readily school officials (and courts) can camouflage viewpoint discrimination as the "mere" protection of students from sensitive topics. Among the grounds that the Court advances to uphold the principal's censorship of one of the articles was the potential sensitivity of "teenage sexual activity." Ante at 484 U. S. 272 . Yet the District Court specifically found that the principal "did not, as a matter of principle, oppose discussion of said topi[c] in Spectrum." 607 F. Supp. at 1467 . That much is also clear from the same principal's approval of the "squeal law" article on the same page, dealing forthrightly with "teenage sexuality," "the use of contraceptives by teenagers," and "teenage pregnancy," App. 4-5. If topic sensitivity were the true basis of the principal's decision, the two articles should have been equally objectionable. It is much more likely that the objectionable article was objectionable because of the viewpoint it expressed: it might have been read (as the majority apparently does) to advocate "irresponsible sex." See ante at 484 U. S. 272 . C The sole concomitant of school sponsorship that might conceivably justify the distinction that the Court draws between sponsored and nonsponsored student expression is the risk "that the views of the individual speaker [might be] erroneously attributed to the school." Ante at 484 U. S. 271 . Of course, the risk of erroneous attribution inheres in any student expression, including "personal expression" that, like the armbands in Tinker, "happens to occur on the school premises," ante at 484 U. S. 271 . Nevertheless, the majority is certainly correct that indicia of school sponsorship increase the likelihood Page 484 U. S. 289 of such attribution, and that state educators may therefore have a legitimate interest in dissociating themselves from student speech. But "'[e]ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.'" Keyishian v. Board of Regents, 385 U.S. at 385 U. S. 602 (quoting Shelton v. Tucker, 364 U. S. 479 , 364 U. S. 488 (1960)). Dissociative means short of censorship are available to the school. It could, for example, require the student activity to publish a disclaimer, such as the "Statement of Policy" that Spectrum published each school year announcing that "[a]ll . . . editorials appearing in this newspaper reflect the opinions of the Spectrum staff, which are not necessarily shared by the administrators or faculty of Hazelwood East," App. 26; or it could simply issue its own response clarifying the official position on the matter and explaining why the student position is wrong. Yet, without so much as acknowledging the less oppressive alternatives, the Court approves of brutal censorship. III Since the censorship served no legitimate pedagogical purpose, it cannot by any stretch of the imagination have been designed to prevent "materia[l] disrup[tion of] classwork," Tinker, 393 U.S. at 393 U. S. 513 . Nor did the censorship fall within the category that Tinker described as necessary to prevent student expression from "inva[ding] the rights of others," ibid. If that term is to have any content, it must be limited to rights that are protected by law. "Any yardstick less exacting than [that] could result in school officials curtailing speech at the slightest fear of disturbance," 795 F.2d at 1376, a prospect that would be completely at odds with this Court's pronouncement that the "undifferentiated fear or apprehension of disturbance is not enough [even in the public school context] to overcome the right to freedom of expression. " Page 484 U. S. 290 Tinker, supra, at 393 U. S. 508 . And, as the Court of Appeals correctly reasoned, whatever journalistic impropriety these articles may have contained, they could not conceivably be tortious, much less criminal. See 795 F.2d at 1375-1376 Finally, even if the majority were correct that the principal could constitutionally have censored the objectionable material, I would emphatically object to the brutal manner in which he did so. Where "[t]he separation of legitimate from illegitimate speech calls for more sensitive tools," Speiser v. Randall, 357 U. S. 513 , 357 U. S. 525 (1958); see Keyishian v. Board of Regents, supra, at 385 U. S. 602 , the principal used a paper shredder. He objected to some material in two articles, but excised six entire articles. He did not so much as inquire into obvious alternatives, such as precise deletions or additions (one of which had already been made), rearranging the layout, or delaying publication. Such unthinking contempt for individual rights is intolerable from any state official. It is particularly insidious from one to whom the public entrusts the task of inculcating in its youth an appreciation for the cherished democratic liberties that our Constitution guarantees. IV The Court opens its analysis in this case by purporting to reaffirm Tinker's time-tested proposition that public school students "do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.'" Ante at 484 U. S. 266 (quoting Tinker, supra, at 393 U. S. 506 ). That is an ironic introduction to an opinion that denudes high school students of much of the First Amendment protection that Tinker itself prescribed. Instead of "teach[ing] children to respect the diversity of ideas that is fundamental to the American system," Board of Education v. Pico, 457 U.S. at 457 U. S. 880 (BLACKMUN, J., concurring in part and concurring in judgment), and "that our Constitution is a living reality, not parchment preserved under glass," Shanley v. Northeast Independent School Dist., Bexar Cty., Tex., 462 F.2d 960, 972 (CA5 Page 484 U. S. 291 1972), the Court today "teach[es] youth to discount important principles of our government as mere platitudes." West Virginia Board of Education v. Barnette, 319 U.S. at 319 U. S. 637 . The young men and women of Hazelwood East expected a civics lesson, but not the one the Court teaches them today. I dissent. [ Footnote 2/1 ] The Court suggests that the passage quoted in the text did not "exten[d] the Tinker standard to the news and feature articles contained in a school-sponsored newspaper" because the passage did not expressly mention them. Ante at 484 U. S. 269 , n 2. It is hard to imaging why the Court (or anyone else) might expect a passage that applies categorically to "a student-press publication," composed almost exclusively of "news and feature articles," to mention those categories expressly. Understandably, neither court below so limited the passage. [ Footnote 2/2 ] The Court quotes language in Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675 (1986), for the proposition that "'[t]he determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.'" Ante at 484 U. S. 267 (quoting 478 U.S. at 478 U. S. 683 ). As the discussion immediately preceding that quotation makes clear, however, the Court was referring only to the appropriateness of the manner in which the message is conveyed, not of the message's content. See, e.g., Fraser, 478 U.S. at 478 U. S. 683 ("[T]he fundamental values necessary to the maintenance of a democratic political system' disfavor the use of terms of debate highly offensive or highly threatening to others"). In fact, the Fraser Court coupled its first mention of "society's . . . interest in teaching students the boundaries of socially appropriate behavior," with an acknowledgment of "[t]he undoubted freedom to advocate unpopular and controversial views in schools and classrooms," id. at 478 U. S. 681 (emphasis added). See also id. at 478 U. S. 689 (BRENNAN, J., concurring in judgment) ("Nor does this case involve an attempt by school officials to ban written materials they consider `inappropriate' for high school students" (citation omitted)). [ Footnote 2/3 ] Petitioners themselves concede that " [c]ontrol over access'" to Spectrum is permissible only if "`the distinctions drawn . . . are viewpoint-neutral.'" Brief for Petitioners 32 (quoting Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U. S. 788 , 473 U. S. 806 (1985)).

In *Hazelwood School District v. Kuhlmeier*, the US Supreme Court ruled that a school district did not violate the First Amendment rights of student journalists by censoring articles in the school newspaper. The Court held that student speech rights in public schools are not absolute and must be balanced against the school's educational mission. As the newspaper was part of the school curriculum and not a public forum, the school could censor articles deemed inappropriate for younger students or that identified students without their consent. This decision emphasized the school's role in teaching appropriate behavior and respecting student privacy.

Free Speech

Ward v. Rock Against Racism

https://supreme.justia.com/cases/federal/us/491/781/

U.S. Supreme Court Ward v. Rock Against Racism, 491 U.S. 781 (1989) Ward v. Rock Against Racism No. 88-226 Argued February 27, 1989 Decided June 22, 1989 491 U.S. 781 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus Respondent Rock Against Racism (RAR), furnishing its own sound equipment and technicians, has sponsored yearly programs of rock music at the Naumberg Acoustic Bandshell in New York City's Central Park. The city received numerous complaints about excessive noise at RAR's concerts from users of the nearby Sheep Meadow, an area designated by the city for passive recreation, from other users of the park, and from residents of areas adjacent to the park. Moreover, when the city shut off the power after RAR ignored repeated requests to lower the volume at one of its concerts, the audience became abusive and disruptive. The city also experienced problems at bandshell events put on by other sponsors, who, due to their use of inadequate sound equipment or sound technicians unskilled at mixing sound for the bandshell area, were unable to provide sufficient amplification levels, resulting in disappointed or unruly audiences. Rejecting various other solutions to the excessive noise and inadequate amplification problems, the city adopted a Use Guideline for the bandshell which specified that the city would furnish high quality sound equipment and retain an independent, experienced sound technician for all performances. After the city implemented this guideline, RAR amended a preexisting District Court complaint against the city to seek damages and a declaratory judgment striking down the guideline as facially invalid under the First Amendment. The court upheld the guideline, finding, inter alia, that performers who had used the city's sound system and technician had been uniformly pleased; that, although the city's technician ultimately controlled both sound volume and mix, the city's practice was to give the sponsor autonomy as to mix and to confer with him before turning the volume down; and that the city's amplification system was sufficient for RAR's needs. Applying this Court's three-part test for judging the constitutionality of governmental regulation of the time, place, and manner of protected speech, the court found the guideline valid. The Court of Appeals reversed on the ground that such regulations' method and extent must be the least intrusive upon the freedom of expression as is reasonably necessary to achieve the regulations' purpose, finding that there were various less restrictive means by which the city could control excessive volume without also intruding on RAR's ability to control sound mix. Page 491 U. S. 782 Held: The city's sound-amplification guideline is valid under the First Amendment as a reasonable regulation of the place and manner of protected speech. Pp. 491 U. S. 790 -803. (a) The guideline is content-neutral, since it is justified without reference to the content of the regulated speech. The city's principal justification -- the desire to control noise in order to retain the sedate character of the Sheep Meadow and other areas of the park and to avoid intrusion into residential areas -- has nothing to do with content. The city's other justification, its interest in ensuring sound quality, does not render the guideline content-based as an attempt to impose subjective standards of acceptable sound mix on performers, since the city has expressly disavowed any such intent, and requires its technician to defer to the sponsor's wishes as to mix. On the record below, the city's sound quality concern extends only to the clearly content-neutral goals of ensuring adequate amplification and avoiding volume problems associated with inadequate mix. There is no merit to RAR's argument that the guideline is nonetheless invalid on its face because it places unbridled discretion in the hands of city enforcement officials. Even granting the doubtful proposition that this claim falls within the narrow class of permissible facial challenges to allegedly unconstrained grants of regulatory authority, the claim nevertheless fails, since the guideline's own terms in effect forbid officials purposely to select an inadequate system or to vary sound quality or volume based on the performer's message. Moreover, the city has applied a narrowing construction to the guideline by requiring officials to defer to sponsors on sound quality and confer with them as to volume problems, and by mandating that amplification be sufficient for the sound to reach all concert-ground listeners. Pp. 491 U. S. 791 -796. (b) The guideline is narrowly tailored to serve significant governmental interests. That the city has a substantial interest in protecting citizens from unwelcome and excessive noise, even in a traditional public forum such as the park, cannot be doubted. Moreover, it has a substantial interest in ensuring the sufficiency of sound amplification at bandshell events in order to allow citizens to enjoy the benefits of the park, in light of the evidence that inadequate amplification had resulted in the inability of some audiences to hear performances. The Court of Appeals erred in requiring the city to prove that the guideline was the least intrusive means of furthering these legitimate interests, since a "less-restrictive-alternative analysis" has never been -- and is here, again, specifically rejected as -- a part of the inquiry into the validity of a time, place, or manner regulation. See Clark v. Community for Creative Non-Violence, 468 U. S. 288 , 468 U. S. 293 ; Regan v. Time, Inc., 468 U. S. 641 . The requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial governmental interest that would be Page 491 U. S. 783 achieved less effectively absent the regulation, and the means chosen are not substantially broader than necessary to achieve that interest. If these standards are met, courts should defer to the government's reasonable determination. Here, the city's substantial interest in limiting sound volume is served in a direct and effective way by the requirement that its technician control the mixing board. Absent this requirement, the city's interest would have been served less well, as is evidenced by the excessive noise complaints generated by RAR's past concerts. The city also could reasonably have determined that, overall, its interest in ensuring that sound amplification was sufficient to reach all concert-ground listeners would be served less effectively without the guideline than with it, since, by providing competent technicians and adequate equipment, the city eliminated inadequate amplification problems that plagued some performers in the past. Furthermore, in the absence of evidence that the guideline had a substantial deleterious effect on the ability of performers to achieve the quality of sound they desired, there is no merit to RAR's contention that the guideline is substantially broader than necessary to achieve the city's legitimate ends. Pp. 491 U. S. 796 -802. (c) The guideline leaves open ample alternative channels of communication, since it does not attempt to ban any particular manner or type of expression at a given place and time. Rather, it continues to permit expressive activity in the bandshell, and has no effect on the quantity or content of that expression beyond regulating the extent of amplification. That the city's volume limitations may reduce to some degree the potential audience for RAR's speech is of no consequence, since there has been no showing that the remaining avenues of communication are inadequate. Pp. 491 U. S. 802 -803. 848 F.2d 367, reversed. KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and SCALIA, JJ., joined. BLACKMUN, J., concurred in the result. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and STEVENS, JJ., joined, post, p. 491 U. S. 803 . Page 491 U. S. 784 JUSTICE KENNEDY delivered the opinion of the Court. In the southeast portion of New York City's Central Park, about 10 blocks upward from the park's beginning point at 59th Street, there is an amphitheater and stage structure known as the Naumberg Acoustic Bandshell. The bandshell faces west across the remaining width of the park. In close proximity to the bandshell, and lying within the directional path of its sound, is a grassy open area called the Sheep Meadow. The city has designated the Sheep Meadow as a quiet area for passive recreations like reclining, walking, and reading. Just beyond the park, and also within the potential sound range of the bandshell, are the apartments and residences of Central Park West. This case arises from the city's attempt to regulate the volume of amplified music at the bandshell so the performances are satisfactory to the audience without intruding upon those who use the Sheep Meadow or live on Central Park West and in its vicinity. The city's regulation requires bandshell performers to use sound amplification equipment and a sound technician provided by the city. The challenge to this volume control technique comes from the sponsor of a rock concert. The trial court sustained the noise control measures, but the Court of Appeals for the Second Circuit reversed. We granted certiorari to resolve the important First Amendment issues presented by the case. I Rock Against Racism, respondent in this case, is an unincorporated association which, in its own words, is "dedicated to the espousal and promotion of antiracist views." App. to Pet. for Cert. 3. Each year from 1979 through 1986, RAR has sponsored a program of speeches and rock music at the Page 491 U. S. 785 bandshell. RAR has furnished the sound equipment and sound technician used by the various performing groups at these annual events. Over the years, the city received numerous complaints about excessive sound amplification at respondent's concerts from park users and residents of areas adjacent to the park. On some occasions, RAR was less than cooperative when city officials asked that the volume be reduced; at one concert, police felt compelled to cut off the power to the sound system, an action that caused the audience to become unruly and hostile. App. 127-131, 140-141, 212-214, 345-347. Before the 1984 concert, city officials met with RAR representatives to discuss the problem of excessive noise. It was decided that the city would monitor sound levels at the edge of the concert-ground, and would revoke respondent's event permit if specific volume limits were exceeded. Sound levels at the concert did exceed acceptable levels for sustained periods of time, despite repeated warnings and requests that the volume be lowered. Two citations for excessive volume were issued to respondent during the concert. When the power was eventually shut off, the audience became abusive and disruptive. The following year, when respondent sought permission to hold its upcoming concert at the bandshell, the city declined to grant an event permit, citing its problems with noise and crowd control at RAR's previous concerts. The city suggested some other city-owned facilities as alternative sites for the concert. RAR declined the invitation, and filed suit in United States District Court against the city, its mayor, and various police and parks department officials, seeking an injunction directing issuance of an event permit. After respondent agreed to abide by all applicable regulations, the parties reached agreement and a permit was issued. The city then undertook to develop comprehensive New York City Parks Department Use Guidelines for the Naumberg Bandshell. A principal problem to be addressed by Page 491 U. S. 786 the guidelines was controlling the volume of amplified sound at bandshell events. A major concern was that, at some bandshell performances, the event sponsors had been unable to "provide the amplification levels required and crowds unhappy with the sound became disappointed or unruly.'" Brief for Petitioners 9. The city found that this problem had several causes, including inadequate sound equipment, sound technicians who were either unskilled at mixing sound outdoors or unfamiliar with the acoustics of the bandshell and its surroundings, and the like. Because some performers compensated for poor sound mix by raising volume, these factors tended to exacerbate the problem of excess noise. [ Footnote 1 ] App. 30, 189, 218-219. The city considered various solutions to the sound amplification problem. The idea of a fixed decibel limit for all performers using the bandshell was rejected because the impact on listeners of a single decibel level is not constant, but varies in response to changes in air temperature, foliage, audience size, and like factors. Id. at 31, 220, 285-286. The city also rejected the possibility of employing a sound technician to operate the equipment provided by the various sponsors of bandshell events because the city's technician might have had difficulty satisfying the needs of sponsors while operating unfamiliar, and perhaps inadequate, sound equipment. Id. Page 491 U. S. 787 at 220. Instead, the city concluded that the most effective way to achieve adequate but not excessive sound amplification would be for the city to furnish high quality sound equipment and retain an independent, experienced sound technician for all performances at the bandshell. After an extensive search, the city hired a private sound company capable of meeting the needs of all the varied users of the bandshell. The Use Guidelines were promulgated on March 21, 1986. [ Footnote 2 ] After learning that it would be expected to comply with the guidelines at its upcoming annual concert in May, 1986, respondent returned to the District Court and filed a motion for an injunction against the enforcement of certain aspects of the guidelines. The District Court preliminarily enjoined enforcement of the sound amplification rule on May 1, 1986. See 636 F. Supp. 178 (SDNY 1986). Under the protection of the injunction, and alone among users of the bandshell in the 1986 season, RAR was permitted to use its own sound equipment Page 491 U. S. 788 and technician, just as it had done in prior years. RAR's 1986 concert again generated complaints about excessive noise from park users and nearby residents. App. 127, 138. After the concert, respondent amended its complaint to seek damages and a declaratory judgment striking down the guidelines as facially invalid. After hearing five days of testimony about various aspects of the guidelines, the District Court issued its decision upholding the sound amplification guideline. [ Footnote 3 ] The court found that the city had been "motivated by a desire to obtain top-flight sound equipment and experienced operators" in selecting an independent contractor to provide the equipment and technician for bandshell events, and that the performers who did use the city's sound system in the 1986 season, in performances "which ran the full cultural gamut from grand opera to salsa to reggae," were uniformly pleased with the quality of the sound provided. 658 F. Supp. 1346 , 1352 (SDNY 1987). Although the city's sound technician controlled both sound volume and sound mix by virtue of his position at the mixing board, the court found that "[t]he City's practice for events at the Bandshell is to give the sponsor autonomy with respect to the sound mix: balancing treble with bass, highlighting a particular instrument or voice, and the like," and that the city's sound technician "does all he can to accommodate the sponsor's desires in those regards." Ibid. Even with respect to volume control, the city's practice was to confer with the sponsor before making any decision to turn the volume down. Ibid. In some instances, as with a New York Grand Opera performance, the sound technician accommodated the performers' unique needs by integrating special microphones with the city's equipment. The Court specifically found that "[t]he City's implementation of the Bandshell guidelines provides for a sound amplification system capable of meeting Page 491 U. S. 789 RAR's technical needs and leaves control of the sound 'mix' in the hands of RAR." Id. at 1353. Applying this Court's three-part test for judging the constitutionality of government regulation of the time, place, or manner of protected speech, the court found the city's regulation valid. The Court of Appeals reversed. 848 F.2d 367 (CA2 1988). After recognizing that "[c]ontent-neutral time, place and manner regulations are permissible so long as they are narrowly tailored to serve a substantial government interest and do not unreasonably limit alternative avenues of expression," the court added the proviso that "the method and extent of such regulation must be reasonable, that is, it must be the least intrusive upon the freedom of expression as is reasonably necessary to achieve a legitimate purpose of the regulation." Id. at 370 (citing United States v. O'Brien, 391 U. S. 367 , 377 (1968)). Applying this test, the court determined that the city's guideline was valid only to the extent necessary to achieve the city's legitimate interest in controlling excessive volume, but found there were various alternative means of controlling volume without also intruding on respondent's ability to control the sound mix. For example, the city could have directed respondent's sound technician to keep the volume below specified levels. Alternatively, a volume-limiting device could have been installed; and as a "last resort," the court suggested, "the plug can be pulled on the sound to enforce the volume limit." 848 F.2d at 372, n. 6. In view of the potential availability of these seemingly less restrictive alternatives, the Court of Appeals concluded that the sound amplification guideline was invalid because the city had failed to prove that its regulation "was the least intrusive means of regulating the volume." Id. at 371. We granted certiorari, 488 U, S. 816 (1988), to clarify the legal standard applicable to governmental regulation of the time, place, or manner of protected speech. Because the Court of Appeals erred in requiring the city to prove that its regulation was the least intrusive means of furthering its legitimate Page 491 U. S. 790 governmental interests, and because the ordinance is valid on its face, we now reverse. II Music is one of the oldest forms of human expression. From Plato's discourse in the Republic to the totalitarian state in our own times, rulers have known its capacity to appeal to the intellect and to the emotions, and have censored musical compositions to serve the needs of the state. See 2 Dialogues of Plato, Republic, bk. 3, pp. 231, 245-248 (B. Jowett transl., 4th ed.1953) ("Our poets must sing in another and a nobler strain"); Musical Freedom and Why Dictators Fear It, N.Y. Times, Aug. 23, 1981, section 2, p. 1, col. 5; Soviet Schizophrenia toward Stravinsky, N.Y. Times, June 26, 1982, section 1, p. 25, col. 2; Symphonic Voice from China Is Heard Again, N.Y. Times, Oct. 11, 1987, section 2, p. 27, col. 1. The Constitution prohibits any like attempts in our own legal order. Music, as a form of expression and communication, is protected under the First Amendment. In the case before us, the performances apparently consisted of remarks by speakers, as well as rock music, but the case has been presented as one in which the constitutional challenge is to the city's regulation of the musical aspects of the concert; and, based on the principle we have stated, the city's guideline must meet the demands of the First Amendment. The parties do not appear to dispute that proposition. We need not here discuss whether a municipality which owns a bandstand or stage facility may exercise, in some circumstances, a proprietary right to select performances and control their quality. See Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 , 420 U. S. 570 -574 (1975) (REHNQUIST, J., dissenting). Though it did demonstrate its own interest in the effort to insure high quality performances by providing the equipment in question, the city justifies its guideline as a regulatory measure to limit and control noise. Here the bandshell was open, apparently, to all performers; and we decide Page 491 U. S. 791 the case as one in which the bandshell is a public forum for performances in which the government's right to regulate expression is subject to the protections of the First Amendment. United States v. Grace, 461 U. S. 171 , 461 U. S. 177 (1983); see Frisby v. Schultz, 487 U. S. 474 , 487 U. S. 481 (1988); Perry Education Assn. v. Perry Local Educators' Assn., 460 U. S. 37 , 460 U. S. 45 (1983). Our cases make clear, however, that even in a public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions "are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." Clark v. Community for Creative NonViolence, 468 U. S. 288 , 468 U. S. 293 (1984); see Heffron v. International Society for Krishna Consciousness, Inc., 452 U. S. 640 , 452 U. S. 648 (1981) (quoting Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 , 425 U. S. 771 (1976)). We consider these requirements in turn. A The principal inquiry in determining content-neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. Community for Creative Non-Violence, supra, at 468 U. S. 295 . The government's purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages, but not others. See Renton v. Playtime Theatres, Inc., 475 U. S. 41 , 475 U. S. 47 -48 (1986). Government regulation of expressive activity is content-neutral so long as it is " justified without reference to the content of the regulated speech." Community for Creative Non-Violence, supra, at 468 U. S. 293 (emphasis added); Heffron, supra, at 462 U. S. 648 (quoting Virginia Pharmacy Bd., supra, at Page 491 U. S. 792 425 U. S. 771 ); see Boos v. Barry, 485 U. S. 312 , 485 U. S. 320 -321 (1988) (opinion of O'CONNOR, J.). The principal justification for the sound amplification guideline is the city's desire to control noise levels at bandshell events, in order to retain the character of the Sheep Meadow and its more sedate activities, and to avoid undue intrusion into residential areas and other areas of the park. This justification for the guideline "ha[s] nothing to do with content," Boos v. Barry, supra, at 485 U. S. 320 , and it satisfies the requirement that time, place, or manner regulations be content-neutral. The only other justification offered below was the city's interest in "ensur[ing] the quality of sound at Bandshell events." 658 F. Supp. at 1352; see 848 F.2d at 370, n. 3. Respondent urges that this justification is not content-neutral, because it is based upon the quality, and thus the content, of the speech being regulated. In respondent's view, the city is seeking to assert artistic control over performers at the bandshell by enforcing a bureaucratically determined, value-laden conception of good sound. That all performers who have used the city's sound equipment have been completely satisfied is of no moment, respondent argues, because "[t]he First Amendment does not permit and cannot tolerate state control of artistic expression merely because the State claims that [its] efforts will lead to 'top-quality' results." Brief for Respondent 19. While respondent's arguments that the government may not interfere with artistic judgment may have much force in other contexts, they are inapplicable to the facts of this case. The city has disclaimed in express terms any interest in imposing its own view of appropriate sound mix on performers. To the contrary, as the District Court found, the city requires its sound technician to defer to the wishes of event sponsors concerning sound mix. 658 F. Supp. at 1352-1353. On this record, the city's concern with sound quality extends only to the clearly content-neutral goals of ensuring adequate Page 491 U. S. 793 sound amplification and avoiding the volume problems associated with inadequate sound mix. [ Footnote 4 ] Any governmental attempt to serve purely aesthetic goals by imposing subjective standards of acceptable sound mix on performers would raise serious First Amendment concerns, but this case provides us with no opportunity to address those questions. As related above, the District Court found that the city's equipment and its sound technician could meet all of the standards requested by the performers, including RAR. Respondent argues further that the guideline, even if not content-based in explicit terms, is nonetheless invalid on its face because it places unbridled discretion in the hands of city officials charged with enforcing it. See Lakewood v. Plain Dealer Publishing Co., 486 U. S. 750 , 486 U. S. 769 -772 (1988) (4-to-3 decision); Heffron v. International Society for Krishna Consciousness, Inc., supra, at 452 U. S. 649 ; Freedman v. Maryland, 380 U. S. 51 , 380 U. S. 56 (1965); Thornhill v. Alabama, 310 U. S. 88 , 310 U. S. 97 (1940). According to respondent, there is nothing in the language of the guideline to prevent city officials from selecting wholly inadequate sound equipment or technicians, or even from varying the volume and quality of sound based on the message being conveyed by the performers. As a threshold matter, it is far from clear that respondent should be permitted to bring a facial challenge to this aspect of the regulation. Our cases permitting facial challenges to regulations that allegedly grant officials unconstrained authority to regulate speech have generally involved licensing schemes that "ves[t] unbridled discretion in a government official over whether to permit or deny expressive activity." Plain Dealer, supra, at 486 U. S. 755 . The grant of discretion that respondent Page 491 U. S. 794 seeks to challenge here is of an entirely different, and lesser, order of magnitude, because respondent does not suggest that city officials enjoy unfettered discretion to deny bandshell permits altogether. Rather, respondent contends only that the city, by exercising what is concededly its right to regulate amplified sound, could choose to provide inadequate sound for performers based on the content of their speech. Since respondent does not claim that city officials enjoy unguided discretion to deny the right to speak altogether, it is open to question whether respondent's claim falls within the narrow class of permissible facial challenges to allegedly unconstrained grants of regulatory authority. Cf. 486 U.S. at 486 U. S. 787 (WHITE, J., dissenting) (arguing that facial challenges of this type are permissible only where "the local law at issue require[s] licenses -- not for a narrow category of expressive conduct that could be prohibited -- but for a sweeping range of First Amendment protected activity"). We need not decide, however, whether the "extraordinary doctrine" that permits facial challenges to some regulations of expression, see id. at 486 U. S. 772 (WHITE, J., dissenting), should be extended to the circumstances of this case, for respondent's facial challenge fails on its merits. The city's guideline states that its goals are to "provide the best sound for all events" and to "insure appropriate sound quality balanced with respect for nearby residential neighbors and the mayorally decreed quiet zone of [the] Sheep Meadow." App. 375. While these standards are undoubtedly flexible, and the officials implementing them will exercise considerable discretion, perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity. See Grayned v. City of Rockford, 408 U. S. 104 , 408 U. S. 110 (1972) ("Condemned to the use of words, we can never expect mathematical certainty in our language"); see also Kovacs v. Cooper, 336 U. S. 77 , 336 U. S. 79 (1949) (rejecting vagueness challenge to city ordinance forbidding "loud and raucous" sound amplification) (opinion of Reed, J.). By its own terms, the Page 491 U. S. 795 city's sound amplification guideline must be interpreted to forbid city officials purposely to select inadequate sound systems or to vary the sound quality or volume based on the message being delivered by performers. The guideline is not vulnerable to respondent's facial challenge. [ Footnote 5 ] Even if the language of the guideline were not sufficient on its face to withstand challenge, our ultimate conclusion would be the same, for the city has interpreted the guideline in such a manner as to provide additional guidance to the officials charged with its enforcement. The District Court expressly found that the city's policy is to defer to the sponsor's desires concerning sound quality. 658 F. Supp. at 1352. With respect to sound volume, the city retains ultimate control, but city officials "mak[e] it a practice to confer with the sponsor if any questions of excessive sound arise, before taking any corrective action." Ibid. The city's goal of ensuring that "the sound amplification [is] sufficient to reach all listeners within the defined concert-ground," ibid., serves to limit further the discretion of the officials on the scene. Administrative interpretation and implementation of a regulation is, of course, highly relevant to our analysis, for, "[i]n evaluating a facial Page 491 U. S. 796 challenge to a state law, a federal court must . . . consider any limiting construction that a state court or enforcement agency has proffered." Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U. S. 489 , 455 U. S. 494 , n. 5 (1982); see Plain Dealer, 486 U.S. at 486 U. S. 769 -770, and n. 11; United States v. Grace, 461 U.S. at 461 U. S. 181 , n. 10; Grayned v. City of Rockford, supra, at 408 U. S. 110 ; Poulos v. New Hampshire, 345 U. S. 395 (1953). Any inadequacy on the face of the guideline would have been more than remedied by the city's narrowing construction. B The city's regulation is also "narrowly tailored to serve a significant governmental interest." Community for Creative Non-Violence, 468 U.S. at 468 U. S. 293 . Despite respondent's protestations to the contrary, it can no longer be doubted that government "ha[s] a substantial interest in protecting its citizens from unwelcome noise." City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789 , 466 U. S. 806 (1984) (citing Kovacs v. Cooper, supra ); see Grayned, supra, at 408 U. S. 116 . This interest is perhaps at its greatest when government seeks to protect " the wellbeing, tranquility, and privacy of the home,'" Frisby v. Schultz, 487 U.S. at 487 U. S. 484 (quoting Carey v. Brown, 447 U. S. 455 , 447 U. S. 471 (1980)), but it is by no means limited to that context, for the government may act to protect even such traditional public forums as city streets and parks from excessive noise. Kovacs v. Cooper, 336 U.S. at 336 U. S. 86 -87 (opinion of Reed, J.); id. at 336 U. S. 96 -97 (Frankfurter, J., concurring); id. at 336 U. S. 97 (Jackson, J., concurring); see Community for Creative Non-Violence, supra, at 468 U. S. 296 (recognizing the government's "substantial interest in maintaining the parks . . . in an attractive and intact condition, readily available to the millions of people who wish to see and enjoy them"). We think it also apparent that the city's interest in ensuring the sufficiency of sound amplification at bandshell events is a substantial one. The record indicates that inadequate Page 491 U. S. 797 sound amplification has had an adverse affect on the ability of some audiences to hear and enjoy performances at the bandshell. The city enjoys a substantial interest in ensuring the ability of its citizens to enjoy whatever benefits the city parks have to offer, from amplified music to silent meditation. See Community for Creative Non-Violence, supra, at 468 U. S. 296 . The Court of Appeals recognized the city's substantial interest in limiting the sound emanating from the bandshell. See 848 F.2d at 370. The court concluded, however, that the city's sound amplification guideline was not narrowly tailored to further this interest, because "it has not [been] shown . . . that the requirement of the use of the city's sound system and technician was the least intrusive means of regulating the volume." Id. at 371 (emphasis added). In the court's judgment, there were several alternative methods of achieving the desired end that would have been less restrictive of respondent's First Amendment rights. The Court of Appeals erred in sifting through all the available or imagined alternative means of regulating sound volume in order to determine whether the city's solution was "the least intrusive means" of achieving the desired end. This "less-restrictive-alternative analysis . . . has never been a part of the inquiry into the validity of a time, place, and manner regulation." Regan v. Time, Inc., 468 U. S. 641 , 468 U. S. 657 (1984) (opinion of WHITE, J.). Instead, our cases quite clearly hold that restrictions on the time, place, or manner of protected speech are not invalid "simply because there is some imaginable alternative that might be less burdensome on speech." United States v. Albertini, 472 U. S. 675 , 472 U. S. 689 (1985). The Court of Appeals apparently drew its least-intrusive-means requirement from United States v. O'Brien, 391 U.S. at 391 U. S. 377 , the case in which we established the standard for judging the validity of restrictions on expressive conduct. See 848 F.2d at 370. The court's reliance was misplaced, Page 491 U. S. 798 however, for we have held that the O'Brien test, "in the last analysis, is little, if any, different from the standard applied to time, place, or manner restrictions." Community for Creative Non-Violence, supra, at 468 U. S. 298 . Indeed, in Community for Creative Non-Violence, we squarely rejected reasoning identical to that of the court below: "We are unmoved by the Court of Appeals' view that the challenged regulation is unnecessary, and hence invalid, because there are less speech-restrictive alternatives that could have satisfied the Government interest in preserving park lands. . . . We do not believe . . . that either United States v. O'Brien or the time, place, or manner decisions assign to the judiciary the authority to replace the [parks department] as the manager of the [city's] parks or endow the judiciary with the competence to judge how much protection of park lands is wise and how that level of conservation is to be attained." 468 U.S. 468 U. S. 299 . Lest any confusion on the point remain, we reaffirm today that a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests, but that it need not be the least restrictive or least intrusive means of doing so. [ Footnote 6 ] Page 491 U. S. 799 Rather, the requirement of narrow tailoring is satisfied "so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation." United States v. Albertini, supra, at 472 U. S. 689 ; see also Community for Creative Non-Violence, supra, at 468 U. S. 297 . To be sure, this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government's legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. [ Footnote 7 ] See Frisby Page 491 U. S. 800 v. Schultz, 487 U.S. at 487 U. S. 485 ("A complete ban can be narrowly tailored, but only if each activity within the proscription's scope is an appropriately targeted evil"). So long as the means chosen are not substantially broader than necessary to achieve the government's interest, however, the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative. "The validity of [time, place, or manner] regulations does not turn on a judge's agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests" or the degree to which those interests should be promoted. United States v. Albertini, supra, at 472 U. S. 689 ; see Community for Creative Non-Violence, supra, at 468 U. S. 299 . It is undeniable that the city's substantial interest in limiting sound volume is served in a direct and effective way by the requirement that the city's sound technician control the mixing board during performances. Absent this requirement, the city's interest would have been served less well, as is evidenced by the complaints about excessive volume generated by respondent's past concerts. The alternative regulatory methods hypothesized by the Court of Appeals reflect nothing more than a disagreement with the city over how much control of volume is appropriate or how that level of control is to be achieved. See Community for Creative Non-Violence, 468 U.S. at 468 U. S. 299 . The Court of Appeals erred in failing to defer to the city's reasonable determination that its interest in controlling volume would be best served by requiring bandshell performers to utilize the city's sound technician. The city's second content-neutral justification for the guideline, that of ensuring "that the sound amplification [is] sufficient to reach all listeners within the defined concert-ground," Page 491 U. S. 801 658 F. Supp. at 1352, also supports the city's choice of regulatory methods. By providing competent sound technicians and adequate amplification equipment, the city eliminated the problems of inexperienced technicians and insufficient sound volume that had plagued some bandshell performers in the past. No doubt this concern is not applicable to respondent's concerts, which apparently were characterized by more-than-adequate sound amplification. But that fact is beside the point, for the validity of the regulation depends on the relation it bears to the overall problem the government seeks to correct, not on the extent to which it furthers the government's interests in an individual case. Here, the regulation's effectiveness must be judged by considering all the varied groups that use the bandshell, and it is valid so long as the city could reasonably have determined that its interests overall would be served less effectively without the sound amplification guideline than with it. United States v. Albertini, supra, at 472 U. S. 688 -689; Community for Creative Non-Violence, supra, at 468 U. S. 296 -297. Considering these proffered justifications together, therefore, it is apparent that the guideline directly furthers the city's legitimate governmental interests, and that those interests would have been less well served in the absence of the sound amplification guideline. Respondent nonetheless argues that the sound amplification guideline is not narrowly tailored because, by placing control of sound mix in the hands of the city's technician, the guideline sweeps far more broadly than is necessary to further the city's legitimate concern with sound volume. According to respondent, the guideline "targets . . . more than the exact source of the evil' it seeks to remedy." Frisby v. Schultz, supra, at 487 U. S. 485 . If the city's regulatory scheme had a substantial deleterious effect on the ability of bandshell performers to achieve the quality of sound they desired, respondent's concerns would have considerable force. The District Court found, Page 491 U. S. 802 however, that, pursuant to city policy, the city's sound technician "give[s] the sponsor autonomy with respect to the sound mix . . . [and] does all that he can to accommodate the sponsor's desires in those regards." 658 F. Supp. at 1352. The court squarely rejected respondent's claim that the city's "technician is not able properly to implement a sponsor's instructions as to sound quality or mix," finding that "[n]o evidence to that effect was offered at trial; as noted, the evidence is to the contrary." App. to Pet. for Cert. 89. In view of these findings, which were not disturbed by the Court of Appeals, we must conclude that the city's guideline has no material impact on any performer's ability to exercise complete artistic control over sound quality. Since the guideline allows the city to control volume without interfering with the performer's desired sound mix, it is not "substantially broader than necessary" to achieve the city's legitimate ends, City Council of Los Angeles v. Taxpayers Page 491 U. S. 803 for Vincent, 466 U.S. at 466 U. S. 808 , and thus it satisfies the requirement of narrow tailoring. C The final requirement, that the guideline leave open ample alternative channels of communication, is easily met. Indeed, in this respect the guideline is far less restrictive than regulations we have upheld in other cases, for it does not attempt to ban any particular manner or type of expression at a given place or time. Compare Frisby, supra, at 487 U. S. 482 -484; Community for Creative Non-Violence, supra, at 468 U. S. 295 ; Renton v. Playtime Theatres, Inc., 475 U.S. at 475 U. S. 53 -54. Rather, the guideline continues to permit expressive activity in the bandshell, and has no effect on the quantity or content of that expression beyond regulating the extent of amplification. That the city's limitations on volume may reduce to some degree the potential audience for respondent's speech is of no consequence, for there has been no showing that the remaining avenues of communication are inadequate. See Taxpayers for Vincent, supra, at 466 U. S. 803 , and n. 23, 466 U. S. 812 , and n. 30; Kovacs, 336 U.S. at 336 U. S. 88 -89 (opinion of Reed, J.). III The city's sound amplification guideline is narrowly tailored to serve the substantial and content-neutral governmental interests of avoiding excessive sound volume and providing sufficient amplification within the bandshell concert-ground, and the guideline leaves open ample channels of communication. Accordingly, it is valid under the First Amendment as a reasonable regulation of the place and manner of expression. The judgment of the Court of Appeals is Reversed. JUSTICE BLACKMUN concurs in the result. [ Footnote 1 ] The amplified sound heard at a rock concert consists of two components, volume and mix. Sound produced by the various instruments and performers on stage is picked up by microphones and fed into a central mixing board, where it is combined into one signal and then amplified through speakers to the audience. A sound technician is at the mixing board to select the appropriate mix, or balance, of the various sounds produced on stage, and to add other effects as desired by the performers. In addition to controlling the sound mix, the sound technician also controls the overall volume of sound reaching the audience. During the course of a performance, the sound technician is continually manipulating various controls on the mixing board to provide the desired sound mix and volume. The sound technician thus plays an important role in determining the quality of the amplified sound that reaches the audience. [ Footnote 2 ] In pertinent part, the Use Guidelines provide: "SOUND AMPLIFICATION" "To provide the best sound for all events, Department of Parks and Recreation has leased a sound amplification system designed for the specific demands of the Central Park Bandshell. To insure appropriate sound quality balanced with respect for nearby residential neighbors and the mayorally decreed quiet zone of Sheep Meadow, all sponsors may use only the Department of Parks and Recreation sound system. DEPARTMENT OF PARKS AND RECREATION IS TO BE THE SOLE AND ONLY PROVIDER OF SOUND AMPLIFICATION, INCLUDING, THOUGH NOT LIMITED TO, AMPLIFIERS, SPEAKERS, MONITORS, MICROPHONES, AND PROCESSORS." "Clarity of sound results from a combination of amplification equipment and a sound technician's familiarity and proficiency with that system. Department of Parks and Recreation will employ a professional sound technician [who] will be fully versed in sound bounce patterns, daily air currents, and sound skipping within the Park. The sound technician must also consider the Bandshell's proximity to Sheep Meadow, activities at Bethesda Terrace, and the New York City Department of Environmental Protection recommendations." App. 375-376. [ Footnote 3 ] The court invalidated certain other aspects of the Use Guidelines, but those provisions are not before us. [ Footnote 4 ] As noted above, there is evidence to suggest that volume control and sound mix are interrelated to a degree, in that performers unfamiliar with the acoustics of the Bandshell sometimes attempt to compensate for poor sound mix by increasing volume. App. 218, 290-291. By providing adequate sound equipment and professional sound mixing, the city avoids this problem. [ Footnote 5 ] The dissent's suggestion that the guideline constitutes a prior restraint is not consistent with our cases. See post at 491 U. S. 808 -809. As we said in Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975), the regulations we have found invalid as prior restraints have "had this in common: they gave public officials the power to deny use of a forum in advance of actual expression." Id. at 420 U. S. 553 . The sound amplification guideline, by contrast, grants no authority to forbid speech, but merely permits the city to regulate volume to the extent necessary to avoid excessive noise. It is true that the city's sound technician theoretically possesses the power to shut off the volume for any particular performer, but that hardly distinguishes this regulatory scheme from any other; government will always possess the raw power to suppress speech through force, and indeed it was in part to avoid the necessity of exercising its power to "pull the plug" on the volume that the city adopted the sound amplification guideline. The relevant question is whether the challenged regulation authorizes suppression of speech in advance of its expression, and the sound amplification guideline does not. [ Footnote 6 ] Respondent contends that our decision last Term in Boos v. Barry, 485 U. S. 312 (1988), supports the conclusion that "a regulation is neither precisely drawn nor narrowly tailored' if less intrusive means than those employed are available." Brief for Respondent 27. In Boos, we concluded that the government regulation at issue was "not narrowly tailored; a less restrictive alternative is readily available." 485 U.S. at 485 U. S. 329 (citing Wygant v. Jackson Bd. of Ed., 476 U. S. 267 , 476 U. S. 280 , n. 6 (1986) (plurality opinion)). In placing reliance on Boos, however, respondent ignores a crucial difference between that case and this. The regulation we invalidated in Boos was a content-based ban on displaying signs critical of foreign governments; such content-based restrictions on political speech "must be subjected to the most exacting scrutiny." 485 U.S. at 485 U. S. 321 . While time, place, or manner regulations must also be "narrowly tailored" in order to survive First Amendment challenge, we have never applied strict scrutiny in this context. As a result, the same degree of tailoring is not required of these regulations, and least-restrictive-alternative analysis is wholly out of place. For the same reason, the dissent's citation of Richmond v. J. A. Croson Co., 488 U. S. 469 (1989), is beside the point. See post at 491 U. S. 806 , n. 4. Croson, like Boos, is a strict scrutiny case; even the dissent does not argue that strict scrutiny is applicable to time, place, or manner regulations. Our summary affirmance of Watseka v. Illinois Public Action Council, 796 F.2d 1547 (CA7 1986), aff'd, 479 U.S. 1048 (1987), is not to the contrary. Although the Seventh Circuit in that case did adopt the least-restrictive-alternative approach, see 796 F.2d at 1553-1554, its judgment was also supported by the alternative grounds that the regulation at issue did not serve to further the stated governmental interests, and did not leave open alternative channels of communication. Id. at 1555-1558. As we have noted on more than one occasion: "A summary disposition affirms only the judgment of the court below, and no more may be read into our action than was essential to sustain that judgment." Anderson v. Celebrezze, 460 U. S. 780 , 460 U. S. 785 , n. 5 (1983). [ Footnote 7 ] The dissent's attempt to analogize the sound amplification guideline to a total ban on distribution of handbills is imaginative, but misguided. See post at 491 U. S. 806 -807. The guideline does not ban all concerts, or even all rock concerts, but instead focuses on the source of the evils the city seeks to eliminate -- excessive and inadequate sound amplification -- and eliminates them without, at the same time, banning or significantly restricting a substantial quantity of speech that does not create the same evils. This is the essence of narrow tailoring. A ban on handbilling, of course, would suppress a great quantity of speech that does not cause the evils that it seeks to eliminate, whether they be fraud, crime, litter, traffic congestion, or noise. See Martin v. Struthers, 319 U. S. 141 , 319 U. S. 145 -146 (1943). For that reason, a complete ban on handbilling would be substantially broader than necessary to achieve the interests justifying it. JUSTICE MARSHALL, with whom JUSTICE BRENNAN and JUSTICE STEVENS join, dissenting. No one can doubt that government has a substantial interest in regulating the barrage of excessive sound that can plague urban life. Unfortunately, the majority plays to our shared impatience with loud noise to obscure the damage that it does to our First Amendment rights. Until today, a key safeguard of free speech has been government's obligation to adopt the least intrusive restriction necessary to achieve its goals. By abandoning the requirement that time, place, and manner regulations must be narrowly tailored, the majority replaces constitutional scrutiny with mandatory deference. The majority's willingness to give government officials a free hand in achieving their policy ends extends so far as to permit, in this case, government control of speech in advance of its dissemination. Because New York City's Use Guidelines (Guidelines) are not narrowly tailored to serve its interest in regulating loud noise, and because they constitute an impermissible prior restraint, I dissent. Page 491 U. S. 804 I The majority sets forth the appropriate standard for assessing the constitutionality of the Guidelines. A time, place, and manner regulation of expression must be content-neutral, serve a significant government interest, be narrowly tailored to serve that interest, and leave open ample alternative channels of communication. See Frisby v. Schultz, 487 U. S. 474 , 487 U. S. 481 -482 (1988); Perry Education Assn. v. Perry Local Educators' Assn., 460 U. S. 37 , 460 U. S. 44 (1983). The Guidelines indisputably are content-neutral, as they apply to all bandshell users irrespective of the message of their music. App. 375; see Pacific Gas & Electric Co. v. Public Utilities Comm'n of Cal., 475 U. S. 1 , 475 U. S. 20 (1985). [ Footnote 2/1 ] They also serve government's significant interest in limiting loud noise in public places, see Grayned v. Rockford, 408 U. S. 104 , 408 U. S. 116 (1972), by giving the city exclusive control of all sound equipment. My complaint is with the majority's serious distortion of the narrow tailoring requirement. Our cases have not, as the majority asserts, "clearly" rejected a less-restrictive-alternative test. Ante at 491 U. S. 797 . On the contrary, just last Term, we held that a statute is narrowly tailored only "if it targets and eliminates no more than the exact source of the evil' it seeks to remedy." Frisby v. Schultz, supra, at 487 U. S. 485 . While there is language in a few opinions which, taken out of Page 491 U. S. 805 context, supports the majority's position, [ Footnote 2/2 ] in practice, the Court has interpreted the narrow tailoring requirement to mandate an examination of alternative methods of serving the asserted governmental interest and a determination whether the greater efficacy of the challenged regulation outweighs the increased burden it places on protected speech. See, e.g., Martin v. Struthers, 319 U. S. 141 , 319 U. S. 147 -148 (1943); Schneider v. State, 308 U. S. 147 , 308 U. S. 162 (1939). In Schneider, for example, the Court invalidated a ban on handbill distribution on public streets, notwithstanding that it was the most effective means of serving government's legitimate interest in minimizing litter, noise, and traffic congestion, and in preventing fraud. The Court concluded that punishing those who actually litter or perpetrate frauds was a much less intrusive, albeit not quite as effective, means to serve those significant interests. Id. at 308 U. S. 162 , 308 U. S. 164 ; see also Martin, supra, at 148 (invalidating ban on door-to-door distribution of handbills because directly punishing fraudulent solicitation was a less intrusive, yet still effective, means of serving government's interest in preventing fraud). [ Footnote 2/3 ] Page 491 U. S. 806 The Court's past concern for the extent to which a regulation burdens speech more than would a satisfactory alternative is noticeably absent from today's decision. The majority requires only that government show that its interest cannot be served as effectively without the challenged restriction. Ante at 491 U. S. 799 . It will be enough, therefore, that the challenged regulation advances the government's interest only in the slightest, for any differential burden on speech that results does not enter the calculus. Despite its protestations to the contrary, the majority thus has abandoned the requirement that restrictions on speech be narrowly tailored in any ordinary use of the phrase. [ Footnote 2/4 ] Indeed, after today's decision, a city could claim that bans on handbill distribution or on door-to-door solicitation are the most effective means of avoiding littering and fraud, or that a ban on loudspeakers and radios in a public park is the most effective means of avoiding loud noise. Logically extended, the majority's analysis would permit such far reaching restrictions on speech. True, the majority states that "[g]overnment may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals." Ibid. But this means that only those regulations that "engage in the gratuitous inhibition of expression" will be invalidated. Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv.L.Rev. 1482, 1485 (1975). Moreover, the majority has robbed courts of the necessary analytic tools to make even this limited inquiry. The Court of Appeals examined "how much control of volume is appropriate [and] how that level of control is to be achieved," ante at 491 U. S. 800 , but the majority admonishes that court for doing so, stating that it should Page 491 U. S. 807 have "defer[red] to the city's reasonable determination." Ibid. The majority thus instructs courts to refrain from examining how much speech may be restricted to serve an asserted interest, and how that level of restriction is to be achieved. If a court cannot engage in such inquiries, I am at a loss to understand how a court can ascertain whether the government has adopted a regulation that burdens substantially more speech than is necessary. Had the majority not abandoned the narrow tailoring requirement, the Guidelines could not possibly survive constitutional scrutiny. Government's interest in avoiding loud sounds cannot justify giving government total control over sound equipment, any more than its interest in avoiding litter could justify a ban on handbill distribution. In both cases, government's legitimate goals can be effectively and less intrusively served by directly punishing the evil -- the persons responsible for excessive sounds and the persons who litter. Indeed, the city concedes that it has an ordinance generally limiting noise, but has chosen not to enforce it. See Tr. of Oral. Arg. 5-6. [ Footnote 2/5 ] By holding that the Guidelines are valid time, place, and manner restrictions, notwithstanding the availability of less intrusive but effective means of controlling volume, the majority deprives the narrow tailoring requirement of all meaning. [ Footnote 2/6 ] Today, the majority enshrines efficacy, but sacrifices free speech. Page 491 U. S. 808 II The majority's conclusion that the city's exclusive control of sound equipment is constitutional is deeply troubling for another reason. It places the Court's imprimatur on a quintessential prior restraint, incompatible with fundamental First Amendment values. See Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931). Indeed, just as "[m]usic is one of the oldest forms of human expression," ante at 491 U. S. 790 , the city's regulation is one of the oldest forms of speech repression. In 16th- and 17th-century England, government controlled speech through its monopoly on printing presses. See L. Levy, Emergence of a Free Press 6 (1985). Here, the city controls the volume and mix of sound through its monopoly on sound equipment. In both situations, government's exclusive control of the means of communication enables public officials to censor speech in advance of its expression. See Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 , 420 U. S. 553 (1975). Under more familiar prior restraints, government officials censor speech "by a simple stroke of the pen," Emerson, The Doctrine of Prior Restraint, 20 Law & Contemp. Prob. 648, 657 (1955). Here, it is done by a single turn of a knob. The majority's implication that government control of sound equipment is not a prior restraint because city officials do not "enjoy unguided discretion to deny the right to speak altogether," ante at 491 U. S. 794 , is startling. In the majority's view, this case involves a question of "different and lesser" magnitude -- the discretion to provide inadequate sound for performers. But whether the city denies a performer a bandshell permit or grants the permit and then silences or Page 491 U. S. 809 distorts the performer's music, the result is the same -- the city censors speech. In the words of CHIEF JUSTICE REHNQUIST, the First Amendment means little if it permits government to "allo[w] a speaker in a public hall to express his views while denying him the use of an amplifying system." FEC v. National Conservative Political Action Committee, 470 U. S. 480 , 470 U. S. 493 (1985); see also Southeastern Promotions, supra, at 420 U. S. 556 , n. 8 ("A licensing system need not effect total suppression in order to create a prior restraint"). As a system of prior restraint, the Guidelines are presumptively invalid. See Southeastern Promotions, supra, at 420 U. S. 558 ; Bantam Books, Inc. v. Sullivan, 372 U. S. 58 , 372 U. S. 70 (1963). They may be constitutional only if accompanied by the procedural safeguards necessary "to obviate the dangers of a censorship system." Freedman v. Maryland, 380 U. S. 51 , 380 U. S. 58 (1965). The city must establish neutral criteria embodied in "narrowly drawn, reasonable and definite standards," in order to ensure that discretion is not exercised based on the content of speech. Niemotko v. Maryland, 340 U. S. 268 , 340 U. S. 271 (1951); see also Lakewood v. Plain Dealer Publishing Co., 486 U. S. 750 , 486 U. S. 758 (1988); Shuttlesworth v. Birmingham, 394 U. S. 147 , 394 U. S. 150 -151 (1969). Moreover, there must be "an almost immediate judicial determination" that the restricted material was unprotected by the First Amendment. Bantam Books, supra, at 372 U. S. 70 ; see also Southeastern Promotions, supra, at 420 U. S. 560 . The Guidelines contain neither of these procedural safeguards. First, there are no "narrowly drawn, reasonable and definite standards" guiding the hands of the city's sound technician as he mixes the sound. The Guidelines state that the goals are "to provide the best sound for all events" and to "insure appropriate sound quality balanced with respect for nearby residential neighbors and the mayorally decreed quiet zone." App. 375; see also ante at 491 U. S. 794 . But the city never defines "best sound" or "appropriate sound quality." The bandshell program director-manager testified that quality of Page 491 U. S. 810 sound refers to tone and to sound mix. App. 229, 230. Yet questions of tone and mix cannot be separated from musical expression as a whole. See The New Grove Dictionary of Music and Musicians 51-55 (S. Sadie ed.1980) (tonality involves relationship between pitches and harmony); F. Everest, Successful Sound System Operation 173 (1985) ("The mixing console . . . must be considered as a creative tool"). Because judgments that sounds are too loud, noise-like, or discordant can mask disapproval of the music itself, [ Footnote 2/7 ] government control of the sound mixing equipment necessitates detailed and neutral standards. The majority concedes that the standards in the Guidelines are "undoubtedly flexible," and that "the officials implementing them will exercise considerable discretion." Ante at 491 U. S. 794 . Nevertheless, it concludes that, "[b]y its own terms, the city's sound amplification guideline must be interpreted to forbid city officials purposefully to select inadequate sound systems or to vary the sound quality or volume based on the message being delivered by performers." Ante at 491 U. S. 794 -795. Although the majority wishes it were so, the language of the Guidelines simply does not support such a limitation on the city's discretion. Alternatively, the majority finds a limitation in the city's practice of deferring to the sponsor with respect to sound mix, and of conferring "with the sponsor if any questions of excessive sound arise before taking any corrective action." 658 F. Supp. 1346 , 1352 (SDNY 1987). A promise to consult, however, does not provide the detailed Page 491 U. S. 811 "neutral criteria" necessary to prevent future abuses of discretion any more than did the city's promise in Lakewood to deny permit applications only for reasons related to the health, safety, or welfare of Lakewood citizens. Indeed, a presumption that city officials will act in good faith and adhere to standards absent from a regulation's face is "the very presumption that the doctrine forbidding unbridled discretion disallows." Lakewood, 486 U.S. at 770. [ Footnote 2/8 ] Second, even if there were narrowly drawn guidelines limiting the city's discretion, the Guidelines would be fundamentally flawed. For the requirement that there be detailed standards is of value only so far as there is a judicial mechanism to enforce them. Here, that necessary safeguard is absent. The city's sound technician consults with the performers for several minutes before the performance, and then decides how to present each song or piece of music. During the performance itself, the technician makes hundreds of decisions affecting the mix and volume of sound. Tr. of Oral Arg. 13. The music is played immediately after each decision. There is, of course, no time for appeal in the middle of a song. As a result, no court ever determines that a particular restraint on speech is necessary. The city's admission that it does not impose sanctions on violations of its general sound ordinance because the necessary litigation is too costly and time-consuming only underscores its contempt for the need for judicial review of restrictions on speech. Id. at 5. With neither prompt judicial review nor detailed and neutral standards fettering the city's discretion to restrict protected Page 491 U. S. 812 speech, the Guidelines constitute a quintessential, and unconstitutional, prior restraint. III Today's decision has significance far beyond the world of rock music. Government no longer need balance the effectiveness of regulation with the burdens on free speech. After today, government need only assert that it is most effective to control speech in advance of its expression. Because such a result eviscerates the First Amendment, I dissent. [ Footnote 2/1 ] The majority's reliance on Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986) is unnecessary and unwise. That decision dealt only with the unique circumstances of "businesses that purvey sexually explicit materials," id. at 475 U. S. 49 , and n. 2. Today, for the first time, a majority of the Court applies Renton analysis to a category of speech far afield from that decision's original limited focus. Given the serious threat to free expression posed by Renton analysis, see Boos v. Barry, 485 U. S. 312 , 485 U. S. 335 -337 (1988) (BRENNAN, J., concurring in part and concurring in judgment); Renton, supra, at 475 U. S. 55 (BRENNAN, J., concurring in part and concurring in judgment), I fear that its broad application may encourage widespread official censorship. [ Footnote 2/2 ] United States v. Albertini, 472 U. S. 675 (1985), for example, involved a person's right to enter a military base, which, unlike a public park, is not a place traditionally dedicated to free expression. Id. at 472 U. S. 687 (commanding officer's power to exclude civilians from a military base cannot "be analyzed in the same manner as government regulation of a traditional public forum"). Nor can isolated language from JUSTICE WHITE's opinion in Regan v. Time, Inc., 468 U. S. 641 , 468 U. S. 657 (1984), which commanded the votes of only three other Justices, be construed as this Court's definitive explication of the narrow tailoring requirement. [ Footnote 2/3 ] The majority relies heavily on Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984), but, in that case, the Court engaged in an inquiry similar to the one the majority now rejects; it considered whether the increased efficacy of the challenged regulation warranted the increased burden on speech. Id. at 468 U. S. 299 ("[P]reventing overnight sleeping will avoid a measure of actual or threatened damage"; however, "minimiz[ing] the possible injury by reducing the size, duration, or frequency of demonstrations would still curtail the total allowable expression in which demonstrators could engage"). [ Footnote 2/4 ] In marked contrast, the majority recently adopted a far more stringent narrow tailoring requirement in the affirmative action context. See Richmond v. J. A. Croson Co., 488 U. S. 469 , 488 U. S. 507 -508 (1989) (plurality opinion). [ Footnote 2/5 ] Significantly, the National Park Service relies on the very methods of volume control rejected by the city -- monitoring sound levels on the perimeter of an event, communicating with event sponsors, and, if necessary, turning off the power. Brief for United States as Amicus Curiae 21. In light of the Park Service's "experienc[e] with thousands of events over the years," ibid., the city's claims that these methods of monitoring excessive sound are ineffective and impracticable are hard to accept. [ Footnote 2/6 ] Because I conclude that the Guidelines are not narrowly tailored, there is no need to consider whether there are ample alternative channels for communication. I note only that the availability of alternative channels of communication outside a public park does not magically validate a government restriction on protected speech within it. See Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 , 420 U. S. 556 (1975) (" [O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place,'" quoting Schneider v. State, 308 U. S. 147 , 308 U. S. 163 (1939)). [ Footnote 2/7 ] "New music always sounds loud to old ears. Beethoven seemed to make more noise than Mozart; Liszt was noisier than Beethoven; Schoenberg and Stravinsky noisier than any of their predecessors." N. Slonimsky, Lexicon of Musical Invective: Critical Assaults on Composers Since Beethoven's Time 18 (1953). One music critic wrote of Prokofiev: "Those who do not believe that genius is evident in superabundance of noise looked in vain for a new musical message in Mr. Prokofiev's work. Nor in the Classical Symphony, which the composer conducted, was there any cessation from the orgy of discordant sounds." Id. at 5 (internal quotations omitted). [ Footnote 2/8 ] Of course, if the city always defers to a performer's wishes in sound mixing, then it is difficult to understand the need for a city technician to operate the mixing console. See Tr. of Oral. Arg. 12 (city concedes that the possibilities for a confrontation over volume are the same whether the city technician directly controls the mixing console or sits next to a performer's technician who operates the equipment). Conversely, if the city can control sound only by using its own equipment and technician, then it must not be heeding all the performer's wishes on sound mixing.

The Supreme Court upheld a New York City guideline requiring the use of city-provided sound equipment and technicians for performances at the Naumberg Acoustic Bandshell in Central Park, finding it to be a reasonable and content-neutral regulation of the place and manner of protected speech. The city implemented this guideline to address excessive noise complaints and inadequate amplification issues. The Court rejected arguments that there were less restrictive means to control volume, finding that the city's method was narrowly tailored to achieve its purpose without unnecessarily intruding on performers' expression.

Free Speech

Forsyth County v. Nationalist Movement

https://supreme.justia.com/cases/federal/us/505/123/

OCTOBER TERM, 1991 Syllabus FORSYTH COUNTY, GEORGIA v. NATIONALIST MOVEMENT CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 91-538. Argued March 31, 1992-Decided June 19, 1992 Petitioner county's Ordinance 34 mandates permits for private demonstrations and other uses of public property; declares that the cost of protecting participants in such activities exceeds the usual and normal cost of law enforcement and should be borne by the participants; requires every permit applicant to pay a fee of not more than $1,000; and empowers the county administrator to adjust the fee's amount to meet the expense incident to the ordinance's administration and to the maintenance of public order. After the county attempted to impose such a fee for respondent's proposed demonstration in opposition to the Martin Luther King, Jr., federal holiday, respondent filed this suit, claiming that the ordinance violates the free speech guarantees of the First and Fourteenth Amendments. The District Court denied relief, ruling that the ordinance was not unconstitutional as applied in this case. The Court of Appeals reversed, holding that an ordinance which charges more than a nominal fee for using public forums for public issue speech is facially unconstitutional. Held: The ordinance is facially invalid. Pp. 129-137. (a) In order to regulate competing uses of public forums, government may impose a permit requirement on those wishing to hold a march, parade, or rally, if, inter alia, the permit scheme does not delegate overly broad licensing discretion to a government official, Freedman v. Maryland, 380 U. S. 51 , 56, and is not based on the content of the message, see United States v. Grace, 461 U. S. 171 , 177. Pp. 129-130. (b) An examination of the county's implementation and authoritative constructions of the ordinance demonstrates the absence of the constitutionally required "narrowly drawn, reasonable and definite standards," Niemotko v. Maryland, 340 U. S. 268 , 271, to guide the county administrator's hand when he sets a permit fee. The decision how much to charge for police protection or administrative time-or even whether to charge at all-is left to the unbridled discretion of the administrator, who is not required to rely on objective standards or provide any explanation for his decision. Pp. 130-133. (c) The ordinance is unconstitutionally content based because it requires that the administrator, in order to assess accurately the cost of 124 security for parade participants, must examine the content of the message conveyed, estimate the public response to that content, and judge the number of police necessary to meet that response. Cox v. New Hampshire, 312 U. S. 569 , distinguished. Pp. 133-136. (d) Neither the $1,000 cap on the permit fee, nor even some lower "nominal" cap, could save the ordinance. Murdock v. Pennsylvania, 319 U. S. 105 , 116, distinguished. The level of the fee is irrelevant in this context, because no limit on the fee's size can remedy the ordinance's constitutional infirmities. pp. 136-137. 913 F.2d 885 and 934 F.2d 1482 , affirmed. BLACKMUN, J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, KENNEDY, and SOUTER, JJ., joined. REHNQUIST, C. J., filed a dissenting opinion, in which WHITE, SCALIA, and THOMAS, JJ., joined, post, p. 137. Robert S. Stubbs III argued the cause for petitioner. With him on the briefs was Gordon A. Smith. Richard Barrett argued the cause and filed a brief for respondent. * JUSTICE BLACKMUN delivered the opinion of the Court. In this case, with its emotional overtones, we must decide whether the free speech guarantees of the First and Fourteenth Amendments are violated by an assembly and parade ordinance that permits a government administrator to vary the fee for assembling or parading to reflect the estimated cost of maintaining public order. I Petitioner Forsyth County is a primarily rural Georgia county approximately 30 miles northeast of Atlanta. It has * Jody M. Litchford filed a brief for the city of Orlando et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Eric Neisser, Steven R. Shapiro, John A. Powell, and Elliot M. Mincberg; for the American Federation of Labor and Congress of Industrial Organizations by Marsha S. Berzon and Laurence Gold; and for Public Citizen by David C. Vladeck and Alan B. Morrison. 125 had a troubled racial history. In 1912, in one month, its entire African-American population, over 1,000 citizens, was driven systematically from the county in the wake of the rape and murder of a white woman and the lynching of her accused assailant.1 Seventy-five years later, in 1987, the county population remained 99% white.2 Spurred by this history, Hosea Williams, an Atlanta city councilman and civil rights personality, proposed a Forsyth County "March Against Fear and Intimidation" for J anuary 17, 1987. Approximately 90 civil rights demonstrators attempted to parade in Cumming, the county seat. The marchers were met by members of the Forsyth County Defense League (an independent affiliate of respondent, The Nationalist Movement), of the Ku Klux Klan, and other Cumming residents. In all, some 400 counterdemonstrators lined the parade route, shouting racial slurs. Eventually, the counterdemonstrators, dramatically outnumbering police officers, forced the parade to a premature halt by throwing rocks and beer bottles. Williams planned a return march the following weekend. It developed into the largest civil rights demonstration in the South since the 1960's. On January 24, approximately 20,000 marchers joined civil rights leaders, United States Senators, Presidential candidates, and an Assistant United States Attorney General in a parade and rally.3 The 1,000 counterdemonstrators on the parade route were contained 1 The 1910 census counted 1,098 African-Americans in Forsyth County. U. S. Dept. of Commerce, Bureau of Census, Negro Population 1790-1915, p. 779 (1918). For a description of the 1912 events, see generally Hackworth, "Completing the Job" in Forsyth County, 8 Southern Exposure 26 (1980). 2 See J. Clements, Georgia Facts 184 (1989); Hackworth, 8 Southern Exposure, at 26 ("[O]ther than an occasional delivery truck driver or visiting government official, there are currently no black faces anywhere in the county"). 3See Chicago Tribune, Jan. 25,1987, p. 1; Los Angeles Times, Jan. 25, 1987, p. 1, col. 2; App. to Pet. for Cert. 89-91. 126 by more than 3,000 state and local police and National Guardsmen. Although there was sporadic rock throwing and 60 counterdemonstrators were arrested, the parade was not interrupted. The demonstration cost over $670,000 in police protection, of which Forsyth County apparently paid a small portion.4 See App. to Pet. for Cert. 75-94; Los Angeles Times, Jan. 28, 1987, Metro section, p. 5, col. 1. "As a direct result" of these two demonstrations, the Forsyth County Board of Commissioners enacted Ordinance 34 on January 27, 1987. See Brief for Petitioner 6. The ordinance recites that it is "to provide for the issuance of permits for parades, assemblies, demonstrations, road closings, and other uses of public property and roads by private organizations and groups of private persons for private purposes." See App. to Pet. for Cert. 98. The board of commissioners justified the ordinance by explaining that "the cost of necessary and reasonable protection of persons participating in or observing said parades, assemblies, demonstrations, road closings and other related activities exceeds the usual and normal cost of law enforcement for which those participating should be held accountable and responsible." Id., at 100. The ordinance required the permit applicant to defray these costs by paying a fee, the amount of which was to be fixed "from time to time" by the Board. Id., at 105. Ordinance 34 was amended on June 8, 1987, to provide that every permit applicant "'shall pay in advance for such permit, for the use of the County, a sum not more than $1,000.00 for each day such parade, procession, or open air public meeting shall take place.'" Id., at 119.5 In addition, the county 4 Petitioner Forsyth County does not indicate what portion of these costs it paid. Newspaper articles reported that the State of Georgia paid an estimated $579,148. Other government entities paid an additional $29,759. Figures were not available for the portion paid by the city of Atlanta for the police it sent. See id., at 95-97. 5 The ordinance was amended at other times, too, but those amendments are not under challenge here. 127 administrator was empowered to "'adjust the amount to be paid in order to meet the expense incident to the administration of the Ordinance and to the maintenance of public order in the matter licensed.'" Ibid. In January 1989, respondent The Nationalist Movement proposed to demonstrate in opposition to the federal holiday commemorating the birthday of Martin Luther King, Jr. In Forsyth County, the Movement sought to "conduct a rally and speeches for one and a half to two hours" on the courthouse steps on a Saturday afternoon. Nationalist Movement v. City of Cumming, 913 F.2d 885 , 887 (CAll 1990).6 The county imposed a $100 fee. The fee did not include any calculation for expenses incurred by law enforcement authorities, but was based on 10 hours of the county administrator's time in issuing the permit. The county administrator testified that the cost of his time was deliberately undervalued and that he did not charge for the clerical support involved in processing the application. Tr. 135-139. The Movement did not pay the fee and did not hold the rally. Instead, it instituted this action on January 19, 1989, in the United States District Court for the Northern District of Georgia, requesting a temporary restraining order and permanent injunction prohibiting Forsyth County from interfering with the Movement's plans. The District Court denied the temporary restraining order and injunction. It found that, although "the instant ordinance vests much discretion in the County Administrator in determining an appropriate fee," the determination of the fee was "based solely upon content-neutral criteria; namely, 6 The demonstration proposed was to consist of assembling at the Forsyth County High School, marching down a public street in Cumming to the courthouse square, and there conducting a rally. Only the rally was to take place on property under the jurisdiction of the county. The parade and assembly required permits from the city of Cumming and the Forsyth County Board of Education. Their permit schemes are not challenged here. 128 the actual costs incurred investigating and processing the application." App. to Pet. for Cert. 13-14. Although it expressed doubt about the constitutionality of that portion of the ordinance that permits fees to be based upon the costs incident to maintaining public order, the District Court found that "the county ordinance, as applied in this case, is not unconstitutional." Id., at 14. The United States Court of Appeals for the Eleventh Circuit reversed this aspect of the District Court's judgment. Nationalist Movement v. City of Cumming, 913 F.2d 885 (1990). Relying on its prior opinion in Central Florida Nuclear Freeze Campaign v. Walsh, 774 F.2d 1515 , 1521 (CAll 1985), cert. denied, 475 U. S. 1120 (1986), the Court of Appeals held: "An ordinance which charges more than a nominal fee for using public forums for public issue speech, violates the First Amendment." 913 F. 2d, at 891 (internal quotation marks omitted). The court determined that a permit fee of up to $1,000 a day exceeded this constitutional threshold. Ibid. One judge concurred specially, calling for Central Florida to be overruled. 913 F. 2d, at 896. The Court of Appeals then voted to vacate the panel's opinion and to rehear the case en bane. 921 F.2d 1125 (1990). After further briefing, the court issued a per curiam opinion reinstating the panel opinion in its entirety. 934 F.2d 1482 , 1483 (1991). Two judges, concurring in part and dissenting in part, agreed that any fee imposed on the exercise of First Amendment rights in a traditional public forum must be nominal if it is to survive constitutional scrutiny. Those judges, however, did not believe that the county ordinance swept so broadly that it was facially invalid, and would have remanded the case for the District Court to determine whether the fee was nominaP Ibid. Three judges 7 These judges also found that the ordinance contained sufficiently tailored standards for the administrator to use in reviewing permit applications. 934 F.2d 1482 , 1487-1489 (1991). This issue was raised by respondent, but the panel did not reach it. 129 dissented, arguing that this Court's cases do not require that fees be nominal. Id., at 1493. We granted certiorari to resolve a conflict among the Courts of Appeals concerning the constitutionality of charging a fee for a speaker in a public forum.8 502 U. S. 1023 (1991). II Respondent mounts a facial challenge to the Forsyth County ordinance. It is well established that in the area of freedom of expression an overbroad regulation may be subject to facial review and invalidation, even though its application in the case under consideration may be constitutionally unobjectionable. See, e. g., City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789 , 798-799, and n. 15 (1984); Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569 , 574 (1987). This exception from general standing rules is based on an appreciation that the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the court. See, e. g., New York v. Ferber, 458 U. S. 747 , 772 (1982); Brockett v. Spokane Arcades, Inc., 472 U. S. 491 , 503 (1985). Thus, the Court has permitted a party to challenge an ordinance under the overbreadth doctrine in cases where every application creates an impermissible risk of suppression of ideas, such as an ordinance that delegates overly broad discretion to the decisionmaker, see Thornhill v. Ala- 8 Compare the Eleventh Circuit's opinions in this litigation, 913 F.2d 885 , 891 (1990), and 934 F.2d 1482 , 1483 (1991), with Stonewall Union v. Columbus, 931 F.2d 1130 , 1136 (CA6) (permitting greater than nominal fees that are reasonably related to expenses incident to the preservation of public safety and order), cert. denied, 502 U. S. 899 (1991); Eastern Conn. Citizens Action Group v. Powers, 723 F.2d 1050 , 1056 (CA2 1983) (licensing fees permissible only to offset expenses associated with processing applications for public property); Fernandes v. Limmer, 663 F.2d 619 , 632-633 (CA5 1981) ($6 flat fee for permit was unconstitutional), cert. dism'd, 458 U. S. 1124 (1982). 130 bama, 310 U. S. 88 , 97 (1940); Freedman v. Maryland, 380 U. S. 51, 56 (1965); Taxpayers for Vincent, 466 U. S., at 798, n. 15, and in cases where the ordinance sweeps too broadly, penalizing a substantial amount of speech that is constitutionally protected, see Broadrick v. Oklahoma, 413 U. S. 601 (1973); Jews for Jesus, 482 U. S., at 574-575. The Forsyth County ordinance requiring a permit and a fee before authorizing public speaking, parades, or assemblies in "the archetype of a traditional public forum," Frisby v. Schultz, 487 U. S. 474 , 480 (1988), is a prior restraint on speech, see Shuttlesworth v. Birmingham, 394 U. S. 147 , 150-151 (1969); Niemotko v. Maryland, 340 U. S. 268 , 271 (1951). Although there is a "heavy presumption" against the validity of a prior restraint, Bantam Books, Inc. v. Sulli van, 372 U. S. 58 , 70 (1963), the Court has recognized that government, in order to regulate competing uses of public forums, may impose a permit requirement on those wishing to hold a march, parade, or rally, see Cox v. New Hampshire, 312 U. S. 569 , 574-576 (1941). Such a scheme, however, must meet certain constitutional requirements. It may not delegate overly broad licensing discretion to a government official. See Freedman v. Maryland, supra. Further, any permit scheme controlling the time, place, and manner of speech must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication. See United States v. Grace, 461 U. S. 171 , 177 (1983). A Respondent contends that the county ordinance is facially invalid because it does not prescribe adequate standards for the administrator to apply when he sets a permit fee. A government regulation that allows arbitrary application is "inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view." 131 Heffron v. International Society for Krishna Consciousness, Inc., 452 U. S. 640 , 649 (1981). To curtail that risk, "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license" must contain "narrow, objective, and definite standards to guide the licensing authority." Shuttlesworth, 394 U. S., at 150-151; see also Niemotko, 340 U. S., at 271. The reasoning is simple: If the permit scheme "involves appraisal of facts, the exercise of judgment, and the formation of an opinion," Cantwell v. Connecticut, 310 U. S. 296, 305 (1940), by the licensing authority, "the danger of censorship and of abridgment of our precious First Amendment freedoms is too great" to be permitted, Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 , 553 (1975). In evaluating respondent's facial challenge, we must consider the county's authoritative constructions of the ordinance, including its own implementation and interpretation of it. See Ward v. Rock Against Racism, 491 U. S. 781 , 795796 (1989); Lakewood v. Plain Dealer Publishing Co., 486 U. S. 750, 770, n. 11 (1988); Gooding v. Wilson, 405 U. S. 518 , 524-528 (1972). In the present litigation, the county has made clear how it interprets and implements the ordinance. The ordinance can apply to any activity on public propertyfrom parades, to street corner speeches, to bike races-and the fee assessed may reflect the county's police and administrative costs. Whether or not, in any given instance, the fee would include any or all of the county's administrative and security expenses is decided by the county administrator.9 9 In pertinent part, the ordinance, as amended, states that the administrator "shall adjust the amount to be paid in order to meet the expense incident to the administration of the Ordinance and to the maintenance of public order." § 3(6) (emphasis added), App. to Pet. for Cert. 119. This could suggest that the administrator has no authority to reduce or waive these expenses. It has not been so understood, however, by the county. See 934 F. 2d, at 1488, n. 12 (opinion concurring in part and dissenting in part). In its February 23, 1987, amendments to the ordinance, the board of commissioners changed the permit form from "Have you paid the application fee?" to "Have you paid any application fee?," see App. to 132 In this case, according to testimony at the District Court hearing, the administrator based the fee on his own judgment of what would be reasonable. Although the county paid for clerical support and staff as an "expense incident to the administration" of the permit, the administrator testified that he chose in this instance not to include that expense in the fee. The administrator also attested that he had deliberately kept the fee low by undervaluing the cost of the time he spent processing the application. Even if he had spent more time on the project, he claimed, he would not have charged more. He further testified that, in this instance, he chose not to include any charge for expected security expense. Tr. 135-139. The administrator also explained that the county had imposed a fee pursuant to a permit on two prior occasions. The year before, the administrator had assessed a fee of $100 for a permit for the Movement. The administrator testified that he charged the same fee the following year (the year in question here), although he did not state that the Movement was seeking the same use of county property or that it required the same amount of administrative time to process. Id., at 138. The administrator also once charged bike-race organizers $25 to hold a race on county roads, but he did not explain why processing a bike-race permit demanded less administrative time than processing a parade permit or why he had chosen to assess $25 in that instance. Id., at 143-144. At oral argument in this Court, counsel for Forsyth County stated that the administrator had levied a $5 fee on the Girl Scouts for an activity on county property. Tr. of Oral Arg. 26. Finally, the administrator testified that in other cases the county required neither a permit nor a fee for activities in other county facilities or on county land. Tr. 146. Based on the county's implementation and construction of the ordinance, it simply cannot be said that there are any Pet. for Cert. 115 (emphasis added), thus acknowledging the administrator's authority to charge no fee. 133 "narrowly drawn, reasonable and definite standards," Nie motko, 340 U. S., at 271, guiding the hand of the Forsyth County administrator. The decision how much to charge for police protection or administrative time-or even whether to charge at all-is left to the whim of the administrator. There are no articulated standards either in the ordinance or in the county's established practice. The administrator is not required to rely on any objective factors. He need not provide any explanation for his decision, and that decision is unreviewable. Nothing in the law or its application prevents the official from encouraging some views and discouraging others through the arbitrary application of fees.10 The First Amendment prohibits the vesting of such unbridled discretion in a government official.ll B The Forsyth County ordinance contains more than the possibility of censorship through uncontrolled discretion. As 10 The District Court's finding that in this instance the Forsyth County administrator applied legitimate, content-neutral criteria, even if correct, is irrelevant to this facial challenge. Facial attacks on the discretion granted a decisionmaker are not dependent on the facts surrounding any particular permit decision. See Lakewood v. Plain Dealer Publishing Co., 486 U. S. 750 , 770 (1988). "It is not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion." Thornhill v. Alabama, 310 U. S. 88 , 97 (1940). Accordingly, the success of a facial challenge on the grounds that an ordinance delegates overly broad discretion to the decisionmaker rests not on whether the administrator has exercised his discretion in a content-based manner, but whether there is anything in the ordinance preventing him from doing so. n Petitioner also claims that Cox v. New Hampshire, 312 U. S. 569 (1941), excuses the administrator's discretion in setting the fee. Reliance on Cox is misplaced. Although the discretion granted to the administrator under the language in this ordinance is the same as in the statute at issue in Cox, the interpretation and application of that language are different. Unlike this case, there was in Cox no testimony or evidence that the statute granted unfettered discretion to the licensing authority. Id., at 576-577. 134 construed by the county, the ordinance often requires that the fee be based on the content of the speech. The county envisions that the administrator, in appropriate instances, will assess a fee to cover "the cost of necessary and reasonable protection of persons participating in or observing said ... activit[y]." See App. to Pet. for Cert. 100. In order to assess accurately the cost of security for parade participants, the administrator" 'must necessarily examine the content of the message that is conveyed,'" Arkansas Writers' Project, Inc. v. Ragland, 481 U. S. 221 , 230 (1987), quoting FCC v. League of Women Voters of Cal., 468 U. S. 364, 383 (1984), estimate the response of others to that content, and judge the number of police necessary to meet that response. The fee assessed will depend on the administrator's measure of the amount of hostility likely to be created by the speech based on its content. Those wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit. Although petitioner agrees that the cost of policing relates to content, see Tr. of Oral Arg. 15 and 24, it contends that the ordinance is content neutral because it is aimed only at a secondary effect-the cost of maintaining public order. It is clear, however, that, in this case, it cannot be said that the fee's justification "'ha[s] nothing to do with content.'" Ward, 491 U. S., at 792, quoting Boos v. Barry, 485 U. S. 312 , 320 (1988) (opinion of O'CONNOR, J.). The costs to which petitioner refers are those associated with the public's reaction to the speech. Listeners' reaction to speech is not a content-neutral basis for regulation. See id., at 321 (opinion of O'CONNOR, J.); id., at 334 (opinion of Brennan, J.); Hustler Magazine, Inc. v. Falwell, 485 U. S. 46 , 55-56 (1988); Murdock v. Pennsylvania, 319 U. S. 105 , 116 (1943); cf. Schneider v. State (Town of Irvington), 308 U. S. 147 , 162 (1939) (fact that city is financially burdened when listeners throw leaflets on the street does not justify restriction on distribution of leaflets). Speech cannot be financially 135 burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.12 See Gooding v. Wilson, 405 U. S. 518 (1972); Terminiello v. Chicago, 337 U. S. 1 (1949). This Court has held time and again: "Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment." Regan v. Time, Inc., 468 U. S. 641 , 648-649 (1984); Simon & Schuster, Inc. v. Member of N. Y. State Crime Victims Bd., 502 U. S. 105 , 116 (1991); Arkansas Writers' Project, 481 U. S., at 230. The county offers only one 12 The dissent prefers a remand because there are no lower court findings on the question whether the county plans to base parade fees on hostile crowds. See post, at 142. We disagree. A remand is unnecessary because there is no question that petitioner intends the ordinance to recoup costs that are related to listeners' reaction to the speech. Petitioner readily admits it did not charge for police protection for the 4th of July parades, although they were substantial parades, which required the closing of streets and drew large crowds. Petitioner imposed a fee only when it became necessary to provide security for parade participants from angry crowds opposing their message. Brief for Petitioner 6. The ordinance itself makes plain that the costs at issue are those needed for "necessary and reasonable protection of persons participating in or observing" the speech. See App. to Pet. for Cert. 100. Repayment for police protection is the "[m]ost importan[t]" purpose underlying the ordinance. Brief for Petitioner 6-7. In this Court, petitioner specifically urges reversal because the lower court has "taken away the right of local government to obtain reimbursement for administration and policing costs which are incurred in protecting those using government property for expression." Id., at 17 (emphasis added). When directly faced with the Court of Appeals' concern about "the enhanced cost associated with policing expressive activity which would generate potentially violent reactions," id., at 36, petitioner responded not by arguing that it did not intend to charge for police protection, but that such a charge was permissible because the ordinance provided a cap. See id., at 36-37; Tr. of Oral Arg. 24. At no point, in any level of proceedings, has petitioner intimated that it did not construe the ordinance consistent with its language permitting fees to be charged for the cost of police protection from hostile crowds. We find no disputed interpretation of the ordinance necessitating a remand. 136 justification for this ordinance: raising revenue for police services. While this undoubtedly is an important government responsibility, it does not justify a content-based permit fee. See id., at 229-231. Petitioner insists that its ordinance cannot be unconstitutionally content based because it contains much of the same language as did the state statute upheld in Cox v. New Hampshire, 312 U. S. 569 (1941). Although the Supreme Court of New Hampshire had interpreted the statute at issue in Cox to authorize the municipality to charge a permit fee for the "maintenance of public order," no fee was actually assessed. See id., at 577. Nothing in this Court's opinion suggests that the statute, as interpreted by the New Hampshire Supreme Court, called for charging a premium in the case of a controversial political message delivered before a hostile audience. In light of the Court's subsequent First Amendment jurisprudence, we do not read Cox to permit such a premium. C Petitioner, as well as the Court of Appeals and the District Court, all rely on the maximum allowable fee as the touchstone of constitutionality. Petitioner contends that the $1,000 cap on the fee ensures that the ordinance will not result in content-based discrimination. The ordinance was found unconstitutional by the Court of Appeals because the $1,000 cap was not sufficiently low to be "nominal." Neither the $1,000 cap on the fee charged, nor even some lower nominal cap, could save the ordinance because in this context, the level of the fee is irrelevant. A tax based on the content of speech does not become more constitutional because it is a small tax. The lower courts derived their requirement that the permit fee be "nominal" from a sentence in the opinion in Murdock v. Pennsylvania, 319 U. S. 105 (1943). In Murdock, the Court invalidated a fiat license fee levied on distributors of religious literature. In distinguishing the case from Cox, 137 where the Court upheld a permit fee, the Court stated: "And the fee is not a nominal one, imposed as a regulatory measure and calculated to defray the expense of protecting those on the streets and at home against the abuses of solicitors." 319 U. S., at 116. This sentence does not mean that an invalid fee can be saved if it is nominal, or that only nominal charges are constitutionally permissible. It reflects merely one distinction between the facts in Murdock and those in Cox. The tax at issue in Murdock was invalid because it was unrelated to any legitimate state interest, not because it was of a particular size. Similarly, the provision of the Forsyth County ordinance relating to fees is invalid because it unconstitutionally ties the amount of the fee to the content of the speech and lacks adequate procedural safeguards; no limit on such a fee can remedy these constitutional violations. The judgment of the Court of Appeals is affirmed. It is so ordered. CHIEF JUSTICE REHNQUIST, with whom JUSTICE WHITE, JUSTICE SCALIA, and JUSTICE THOMAS join, dissenting. We granted certiorari in this case to consider the following question: "Whether the provisions of the First Amendment to the United States Constitution limit the amount of a license fee assessed pursuant to the provisions of a county parade ordinance to a nominal sum or whether the amount of the license fee may take into account the actual expense incident to the administration of the ordinance and the maintenance of public order in the matter licensed, up to the sum of $1,000.00 per day of the activity." Pet. for Cert. i. The Court's discussion of this question is limited to an ambiguous and noncommittal paragraph toward the very end of the opinion. Supra this page. The rest of the opinion 138 takes up and decides other perceived unconstitutional defects in the Forsyth County ordinance. None of these claims were passed upon by the Court of Appeals; that court decided only that the First Amendment forbade the charging of more than a nominal fee for a permit to parade on public streets. Since that was the question decided by the Court of Appeals below, the question which divides the Courts of Appeals, and the question presented in the petition for certiorari, one would have thought that the Court would at least authoritatively decide, if not limit itself to, that question. I The answer to this question seems to me quite simple, because it was authoritatively decided by this Court more than half a century ago in Cox v. New Hampshire, 312 U. S. 569 (1941). There we confronted a state statute which required payment of a license fee of up to $300 to local governments for the right to parade in the public streets. The Supreme Court of New Hampshire had construed the provision as requiring that the amount of the fee be adjusted based on the size of the parade, as the fee "for a circus parade or a celebration procession of length, each drawing crowds of observers, would take into account the greater public expense of policing the spectacle, compared with the slight expense of a less expansive and attractive parade or procession." Id., at 577 (internal quotation marks omitted). Under the state court's construction, the fee provision was "not a revenue tax, but one to meet the expense incident to the administration of the Act and to the maintenance of public order in the matter licensed." Ibid. (internal quotation marks omitted). This Court, in a unanimous opinion by Chief Justice Hughes, upheld the statute, saying: "There is nothing contrary to the Constitution in the charge of a fee limited to the purpose stated. The suggestion that a fiat fee should have been charged fails to take account of the difficulty of framing a fair schedule 139 to meet all circumstances, and we perceive no constitutional ground for denying to local governments that flexibility of adjustment of fees which in the light of varying conditions would tend to conserve rather than impair the liberty sought. "There is no evidence that the statute has been administered otherwise than in the fair and nondiscriminatory manner which the state court has construed it to require." Ibid. Two years later, in Murdock v. Pennsylvania, 319 U. S. 105 (1943), this Court confronted a municipal ordinance that required payment of a flat license fee for the privilege of canvassing door-to-door to sell one's wares. Pursuant to that ordinance, the city had levied the flat fee on a group of Jehovah's Witnesses who sought to distribute religious literature door-to-door for a small price. Id., at 106-107. The Court held that the flat license tax, as applied against the hand distribution of religious tracts, was unconstitutional on the ground that it was "a flat tax imposed on the exercise of a privilege granted by the Bill of Rights." Id., at 113. In making this ruling, the Court distinguished Cox by stating that "the fee is not a nominal one, imposed as a regulatory measure and calculated to defray the expense of protecting those on the streets and at home against the abuses of solicitors." 319 U. S., at 116. This language, which suggested that the fee involved in Cox was only nominal, led the Court of Appeals for the Eleventh Circuit in the present case to conclude that a city is prohibited from charging any more than a nominal fee for a parade permit. 913 F.2d 885 , 890891, and n. 6 (1990). But the clear holding of Cox is to the contrary. In that case, the Court expressly recognized that the New Hampshire state statute allowed a city to levy much more than a nominal parade fee, as it stated that the fee provision "had a permissible range from $300 to a nominal amount." Cox v. New Hampshire, supra, at 576. The use of the word "nominal" in Murdock was thus unfortunate, as 140 it represented a mistaken characterization of the fee statute in Cox. But a mistaken allusion in a later case to the facts of an earlier case does not by itself undermine the holding of the earlier case. The situations in Cox and Murdock were clearly different; the first involved a sliding fee to account for administrative and security costs incurred as a result of a parade on public property, while the second involved a fiat tax on protected religious expression. I believe that the decision in Cox squarely controls the disposition of the question presented in this case, and I therefore would explicitly hold that the Constitution does not limit a parade license fee to a nominal amount. II Instead of deciding the particular question on which we granted certiorari, the Court concludes that the county ordinance is facially unconstitutional because it places too much discretion in the hands of the county administrator and forces parade participants to pay for the cost of controlling those who might oppose their speech. Ante, at 130-137. But, because the lower courts did not pass on these issues, the Court is forced to rely on its own interpretation of the ordinance in making these rulings. The Court unnecessarily reaches out to interpret the ordinance on its own at this stage, even though there are no lower court factual findings on the scope or administration of the ordinance. Because there are no such factual findings, I would not decide at this point whether the ordinance fails for lack of adequate standards to guide discretion or for incorporation of a "heckler's veto," but would instead remand the case to the lower courts to initially consider these issues. The Court first finds fault with the alleged standardless discretion possessed by the county administrator. The ordinance provides that the administrator "shall adjust the amount to be paid in order to meet the expense incident to the administration of the Ordinance and to the maintenance of public order in the matter licensed." App. to Pet. for 141 Cert. 119. In this regard, the ordinance clearly parallels the construction of the statute we upheld in Cox. 312 U. S., at 577 (statute did not impose "a revenue tax, but one to meet the expense incident to the administration of the Act and to the maintenance of public order in the matter licensed" (internal quotation marks omitted)). The Court worries, however, about the possibility that the administrator has the discretion to set fees based upon his approval of the message sought to be conveyed, and concludes that "the county's authoritative constructio[n] of the ordinance" allows for such a possibility. Ante, at 131. The Court apparently envisions a situation where the administrator would impose a $1,000 parade fee on a group whose message he opposed, but would waive the fee entirely for a similarly situated group with whom he agreed. But the county has never rendered any "authoritative construction" indicating that officials have "unbridled discretion," ante, at 133, in setting parade fees, nor has any lower court so found. In making its own factual finding that the ordinance does allow for standardless fee setting, this Court simply cites four situations in which the administrator set permit fees-two fees of $100, one of $25, and one of $5. Ante, at 132. On the basis of this evidence, the Court finds that the administrator has unbridled discretion to set permit fees. The mere fact that the permit fees differed in amount does not invalidate the ordinance, however, as our decision in Cox clearly allows a governmental entity to adopt an adjustable permit fee scheme. See Cox v. New Hampshire, supra, at 577 ("[W]e perceive no constitutional ground for denying to local governments thee] flexibility of adjustment of fees"). It is true that the Constitution does not permit a system in which the county administrator may vary fees at his pleasure, but there has been no lower court finding that that is what this fledgling ordinance creates. And, given the opportunity, the District Court might find that the county has a policy that precludes the administrator from arbitrarily imposing fees. Of course, the District 142 Court might find that the administrator does possess too much discretion. In either case, I believe findings by the District Court on the issue would be preferable. The Court relies on Ward v. Rock Against Racism, 491 U. S. 781 , 795-796 (1989), for the proposition that the county's interpretation of the ordinance must be considered. In that case, however, we relied upon District Court findings concerning New York City's limiting interpretation of a noise regulation. Id., at 795. I would prefer to remand this case so that the Court might rely on such express findings here as well. The Court's second reason for invalidating the ordinance is its belief that any fee imposed will be based in part on the cost of security necessary to control those who oppose the message endorsed by those marching in a parade. Assuming 100 people march in a parade and 10,000 line the route in protest, for example, the Court worries that, under this ordinance, the county will charge a premium to control the hostile crowd of 10,000, resulting in the kind of "heckler's veto" we have previously condemned. Ante, at 133-136. But there have been no lower court findings on the question whether or not the county plans to base parade fees on anticipated hostile crowds. It has not done so in any of the instances where it has so far imposed fees. Ante, at 132. And it most certainly did not do so in this case. The District Court below noted that: "[T]he instant ordinance alternatively permits fees to be assessed based upon 'the expense incident to ... the maintenance of public order.' If the county had applied this portion of the statute, the phrase might run afoul of ... constitutional concerns .... "However, in the instant case, plaintiff did not base their [sic] argument upon this phrase, but contended that the mere fact that a $100 fee was imposed is unconstitutional, especially in light of the organization's financial circumstances. The evidence was clear that the 143 fee was based solely upon the costs of processing the application and plaintiff produced no evidence to the contrary." App. to Pet. for Cert. 14 (emphasis added). The Court's analysis on this issue rests on an assumption that the county will interpret the phrase "maintenance of public order" to support the imposition of fees based on opposition crowds. There is nothing in the record to support this assumption, however, and I would remand for a hearing on this question. For the foregoing reasons, I dissent.

Forsyth County, Georgia, required permits for private demonstrations and other uses of public property, with fees of up to $1000 to cover administrative and security costs. The Supreme Court ruled that the ordinance was facially invalid as it gave too much discretion to the county administrator in setting fees without clear standards, and it was content-based as the administrator had to consider the content of the message, estimate public response, and determine security needs. The ordinance also potentially allowed fees to be influenced by hostile crowds, creating a "heckler's veto."

Free Speech

Barnes v. Glen Theatre, Inc.

https://supreme.justia.com/cases/federal/us/501/560/

U.S. Supreme Court Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) Barnes v. Glen Theatre, Inc. No. 90-26 Argued Jan. 8, 1991 Decided June 21, 1991 501 U.S. 560 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Syllabus Respondents, two Indiana establishments wishing to provide totally nude dancing as entertainment and individual dancers employed at those establishments, brought suit in the District Court to enjoin enforcement of the state public indecency law -- which requires respondent dancers to wear pasties and a G-string -- asserting that the law's prohibition against total nudity in public places violates the First Amendment. The court held that the nude dancing involved here was not expressive conduct. The Court of Appeals reversed, ruling that nonobscene nude dancing performed for entertainment is protected expression, and that the statute was an improper infringement of that activity because its purpose was to prevent the message of eroticism and sexuality conveyed by the dancers. Held: The judgment is reversed. 904 F.2d 1081 (CA9 1990), reversed. The CHIEF JUSTICE, joined by JUSTICE O'CONNOR and JUSTICE KENNEDY, concluded that the enforcement of Indiana's public indecency law to prevent totally nude dancing does not violate the First Amendment's guarantee of freedom of expression. Pp. 501 U. S. 565 -572. (a) Nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, although only marginally so. See, e.g., Doran v. Salem Inn, Inc., 422 U. S. 922 , 422 U. S. 932 . Pp. 501 U. S. 565 -566. (b) Applying the four-part test of United States v. O'Brien, 391 U. S. 367 , 391 U. S. 376 -377 -- which rejected the contention that symbolic speech is entitled to full First Amendment protection -- the statute is justified despite its incidental limitations on some expressive activity. The law is clearly within the State's constitutional power. And it furthers a substantial governmental interest in protecting societal order and morality. Public indecency statutes reflect moral disapproval of people appearing in the nude among strangers in public places, and this particular law follows a line of state laws, dating back to 1831, banning public nudity. The States' traditional police power is defined as the authority to provide for the public health, safety, and morals, and such a basis for legislation Page 501 U. S. 561 has been upheld. See, e.g., Paris Adult Theatre I v. Slaton, 413 U. S. 49 , 413 U. S. 61 . This governmental interest is unrelated to the suppression of free expression, since public nudity is the evil the State seeks to prevent, whether or not it is combined with expressive activity. The law does not proscribe nudity in these establishments because the dancers are conveying an erotic message. To the contrary, an erotic performance may be presented without any state interference, so long as the performers wear a scant amount of clothing. Finally, the incidental restriction on First Amendment freedom is no greater than is essential to the furtherance of the governmental interest. Since the statutory prohibition is not a means to some greater end, but an end itself, it is without cavil that the statute is narrowly tailored. Pp. 501 U. S. 566 -572. JUSTICE SCALIA concluded that the statute -- as a general law regulating conduct and not specifically directed at expression, either in practice or on its face -- is not subject to normal First Amendment scrutiny, and should be upheld on the ground that moral opposition to nudity supplies a rational basis for its prohibition. Cf. Employment Division, Oregon Dept. of Human Resources v. Smith, 494 U. S. 872 . There is no intermediate level of scrutiny requiring that an incidental restriction on expression, such as that involved here, be justified by an important or substantial governmental interest. Pp. 501 U. S. 572 -580. JUSTICE SOUTER, agreeing that the nude dancing at issue here is subject to a degree of First Amendment protection, and that the test of United States v. O'Brien, 391 U. S. 367 , is the appropriate analysis to determine the actual protection required, concluded that the State's interest in preventing the secondary effects of adult entertainment establishments -- prostitution, sexual assaults, and other criminal activity -- is sufficient under O'Brien to justify the law's enforcement against nude dancing. The prevention of such effects clearly falls within the State's constitutional power. In addition, the asserted interest is plainly substantial, and the State could have concluded that it is furthered by a prohibition on nude dancing, even without localized proof of the harmful effects. See Renton v. Playtime Theatres, Inc., 475 U. S. 41 , 475 U. S. 50 . Moreover, the interest is unrelated to the suppression of free expression, since the pernicious effects are merely associated with nude dancing establishments and are not the result of the expression inherent in nude dancing. Id. at 475 U. S. 48 . Finally, the restriction is no greater than is essential to further the governmental interest, since pasties and a G-string moderate expression to a minor degree when measured against the dancer's remaining capacity and opportunity to express an erotic message. Pp. 501 U. S. 581 -587. Page 501 U. S. 562 REHNQUIST, C.J., announced the judgment of the Court and delivered an opinion in which O'CONNOR and KENNEDY, JJ., joined. SCALIA, J., post, p. 501 U. S. 572 , and SOUTER, J., post, p. 501 U. S. 581 , filed opinions concurring in the judgment. WHITE, J., filed a dissenting opinion, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined, post, p. 501 U. S. 587 . CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. Respondents are two establishments in South Bend, Indiana, that wish to provide totally nude dancing as entertainment, and individual dancers who are employed at these Page 501 U. S. 563 establishments. They claim that the First Amendment's guarantee of freedom of expression prevents the State of Indiana from enforcing its public indecency law to prevent this form of dancing. We reject their claim. The facts appear from the pleadings and findings of the District Court, and are uncontested here. The Kitty Kat Lounge, Inc. (Kitty Kat) is located in the city of South Bend. It sells alcoholic beverages and presents "go-go dancing." Its proprietor desires to present "totally nude dancing," but an applicable Indiana statute regulating public nudity requires that the dancers wear "pasties" and a "G-string" when they dance. The dancers are not paid an hourly wage, but work on commission. They receive a 100 percent commission on the first $60 in drink sales during their performances. Darlene Miller, one of the respondents in the action, had worked at the Kitty Kat for about two years at the time this action was brought. Miller wishes to dance nude because she believes she would make more money doing so. Respondent Glen Theatre, Inc., is an Indiana corporation with a place of business in South Bend. Its primary business is supplying so-called adult entertainment through written and printed materials, movie showings, and live entertainment at an enclosed "bookstore." The live entertainment at the "bookstore" consists of nude and seminude performances and showings of the female body through glass panels. Customers sit in a booth and insert coins into a timing mechanism that permits them to observe the live nude and seminude dancers for a period of time. One of Glen Theatre's dancers, Gayle Ann Marie Sutro, has danced, modeled, and acted professionally for more than 15 years, and in addition to her performances at the Glen Theatre, can be seen in a pornographic movie at a nearby theater. App. to Pet. for Cert. 131-133. Respondents sued in the United States District Court for the Northern District of Indiana to enjoin the enforcement of the Indiana public indecency statute, Ind.Code § 35-45-4-1 Page 501 U. S. 564 (1988), asserting that its prohibition against complete nudity in public places violated the First Amendment. The District Court originally granted respondents' prayer for an injunction, finding that the statute was facially overbroad. The Court of Appeals for the Seventh Circuit reversed, deciding that previous litigation with respect to the statute in the Supreme Court of Indiana and this Court precluded the possibility of such a challenge, [ Footnote 1 ] and remanded to the District Court in order for the plaintiffs to pursue their claim that the statute violated the First Amendment as applied to their dancing. Glen Theatre, Inc. v. Pearson, 802 F.2d 287, 288-290 (1986). On remand, the District Court concluded that Page 501 U. S. 565 "the type of dancing these plaintiffs wish to perform is not expressive activity protected by the Constitution of the United States," and rendered judgment in favor of the defendants. Glen Theatre, Inc. v. Civil City of South Bend, 695 F. Supp. 414 , 419 (ND Ind.1988). The case was again appealed to the Seventh Circuit, and a panel of that court reversed the District Court, holding that the nude dancing involved here was expressive conduct protected by the First Amendment. Miller v. Civil City of South Bend, 887 F.2d 826 (CA7 1989). The Court of Appeals then heard the case en banc, and the court rendered a series of comprehensive and thoughtful opinions. The majority concluded that nonobscene nude dancing performed for entertainment is expression protected by the First Amendment, and that the public indecency statute was an improper infringement of that expressive activity because its purpose was to prevent the message of eroticism and sexuality conveyed by the dancers. Miller v. Civil City of South Bend, 904 F.2d 1081 (CA7 1990). We granted certiorari, 498 U.S. 807 (1990), and now hold that the Indiana statutory requirement that the dancers in the establishments involved in this case must wear pasties and a G-string does not violate the First Amendment. Several of our cases contain language suggesting that nude dancing of the kind involved here is expressive conduct protected by the First Amendment. In Doran v. Salem Inn, Inc., 422 U. S. 922 , 422 U. S. 932 (1975), we said: "[A]lthough the customary 'barroom' type of nude dancing may involve only the barest minimum of protected expression, we recognized in California v. LaRue, 409 U. S. 109 , 409 U. S. 118 (1972), that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances." In Schad v. Borough of Mount Ephraim, 452 U. S. 61 , 452 U. S. 66 (1981), we said that "[f]urthermore, as the state courts in this case recognized, nude dancing is not without its First Amendment protections from official regulation" (citations omitted). These statements support the conclusion of the Court of Appeals Page 501 U. S. 566 that nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so. This, of course, does not end our inquiry. We must determine the level of protection to be afforded to the expressive conduct at issue, and must determine whether the Indiana statute is an impermissible infringement of that protected activity. Indiana, of course, has not banned nude dancing as such, but has proscribed public nudity across the board. The Supreme Court of Indiana has construed the Indiana statute to preclude nudity in what are essentially places of public accommodation such as the Glen Theatre and the Kitty Kat Lounge. In such places, respondents point out, minors are excluded and there are no nonconsenting viewers. Respondents contend that, while the state may license establishments such as the ones involved here and limit the geographical area in which they do business, it may not in any way limit the performance of the dances within them without violating the First Amendment. The petitioner contends, on the other hand, that Indiana's restriction on nude dancing is a valid "time, place or manner" restriction under cases such as Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984). The "time, place, or manner" test was developed for evaluating restrictions on expression taking place on public property which had been dedicated as a "public forum," Ward v. Rock Against Racism, 491 U. S. 781 , 491 U. S. 791 (1989), although we have on at least one occasion applied it to conduct occurring on private property. See Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986). In Clark, we observed that this test has been interpreted to embody much the same standards as those set forth in United States v. O'Brien, 391 U. S. 367 (1968), and we turn, therefore, to the rule enunciated in O'Brien. O'Brien burned his draft card on the steps of the South Boston courthouse in the presence of a sizable crowd, and Page 501 U. S. 567 was convicted of violating a statute that prohibited the knowing destruction or mutilation of such a card. He claimed that his conviction was contrary to the First Amendment because his act was "symbolic speech" -- expressive conduct. The court rejected his contention that symbolic speech is entitled to full First Amendment protection, saying: "[E]ven on the assumption that the alleged communicative element in O'Brien's conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that, when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." Id. at 391 U. S. 376 -377 (footnotes omitted). Applying the four-part O'Brien test enunciated above, we find that Indiana's public indecency statute is justified despite its incidental limitations on some expressive activity. The public indecency statute is clearly within the constitutional power of the State, and furthers substantial governmental interests. It is impossible to discern, other than from the text of the statute, exactly what governmental interest the Indiana legislators had in mind when they enacted Page 501 U. S. 568 this statute, for Indiana does not record legislative history, and the state's highest court has not shed additional light on the statute's purpose. Nonetheless, the statute's purpose of protecting societal order and morality is clear from its text and history. Public indecency statutes of this sort are of ancient origin, and presently exist in at least 47 States. Public indecency, including nudity, was a criminal offense at common law, and this Court recognized the common law roots of the offense of "gross and open indecency" in Winters v. New York, 333 U. S. 507 , 333 U. S. 515 (1948). Public nudity was considered an act malum en se. Le Roy v. Sidley, 1 Sid. 168, 82 Eng.Rep. 1036 (K.B.1664). Public indecency statutes such as the one before us reflect moral disapproval of people appearing in the nude among strangers in public places. This public indecency statute follows a long line of earlier Indiana statutes banning all public nudity. The history of Indiana's public indecency statute shows that it predates barroom nude dancing, and was enacted as a general prohibition. At least as early as 1831, Indiana had a statute punishing "open and notorious lewdness, or . . . any grossly scandalous and public indecency." Rev.Laws of Ind., ch. 26, § 60 (1831); Ind.Rev.Stat., ch. 53, § 81 (1834). A gap during which no statute was in effect was filled by the Indiana Supreme Court in Ardery v. State, 56 Ind. 328 (1877), which held that the court could sustain a conviction for exhibition of "privates" in the presence of others. The court traced the offense to the Bible story of Adam and Eve. Id. at 329-330. In 1881, a statute was enacted that would remain essentially unchanged for nearly a century: "Whoever, being over fourteen years of age, makes an indecent exposure of his person in a public place, or in any place where there are other persons to be offended or annoyed thereby, . . . is guilty of public indecency. . . ." 1881 Ind.Acts, ch. 37, § 90. Page 501 U. S. 569 The language quoted above remained unchanged until it was simultaneously repealed and replaced with the present statute in 1976. 1976 Ind.Acts, Pub.L. 148, Art. 45, ch. 4, § 1. [ Footnote 2 ] This and other public indecency statutes were designed to protect morals and public order. The traditional police power of the States is defined as the authority to provide for the public health, safety, and morals, and we have upheld such a basis for legislation. In Paris Adult Theatre I v. Slaton, 413 U. S. 49 , 413 U. S. 61 (1973), we said: "In deciding Roth [v. United States, 354 U. S. 476 (1957)], this Court implicitly accepted that a legislature could legitimately act on such a conclusion to protect 'the social interest in order and morality.' [ Id. ] at 354 U. S. 485 ." (Emphasis omitted.) And in Bowers v. Hardwick, 478 U. S. 186 , 478 U. S. 196 (1986), we said: "The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed." Thus, the public indecency statute furthers a substantial government interest in protecting order and morality. Page 501 U. S. 570 This interest is unrelated to the suppression of free expression. Some may view restricting nudity on moral grounds as necessarily related to expression. We disagree. It can be argued, of course, that almost limitless types of conduct -- including appearing in the nude in public -- are "expressive," and in one sense of the word this is true. People who go about in the nude in public may be expressing something about themselves by so doing. But the court rejected this expansive notion of "expressive conduct" in O'Brien, saying: "We cannot accept the view that an apparently limitless variety of conduct can be labelled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." 391 U.S. at 391 U. S. 376 . And in Dallas v. Stanglin, 490 U. S. 19 , we further observed: "It is possible to find some kernel of expression in almost every activity a person undertakes -- for example, walking down the street or meeting one's friends at a shopping mall -- but such a kernel is not sufficient to bring the activity within the protection of the First Amendment. We think the activity of these dance-hall patrons coming together to engage in recreational dancing -- is not protected by the First Amendment." 490 U.S. 19 , 490 U. S. 25 . Respondents contend that, even though prohibiting nudity in public generally may not be related to suppressing expression, prohibiting the performance of nude dancing is related to expression because the state seeks to prevent its erotic message. Therefore, they reason that the application of the Indiana statute to the nude dancing in this case violates the First Amendment, because it fails the third part of the O'Brien test, viz: the governmental interest must be unrelated to the suppression of free expression. But we do not think that, when Indiana applies its statute to the nude dancing in these nightclubs it is proscribing nudity because of the erotic message conveyed by the dancers. Page 501 U. S. 571 Presumably numerous other erotic performances are presented at these establishments and similar clubs without any interference from the state, so long as the performers wear a scant amount of clothing. Likewise, the requirement that the dancers don pasties and a G-string does not deprive the dance of whatever erotic message it conveys; it simply makes the message slightly less graphic. The perceived evil that Indiana seeks to address is not erotic dancing, but public nudity. The appearance of people of all shapes, sizes and ages in the nude at a beach, for example, would convey little if any erotic message, yet the state still seeks to prevent it. Public nudity is the evil the state seeks to prevent, whether or not it is combined with expressive activity. This conclusion is buttressed by a reference to the facts of O'Brien. An act of Congress provided that anyone who knowingly destroyed a selective service registration certificate committed an offense. O'Brien burned his certificate on the steps of the South Boston Courthouse to influence others to adopt his anti-war beliefs. This Court upheld his conviction, reasoning that the continued availability of issued certificates served a legitimate and substantial purpose in the administration of the selective service system. O'Brien's deliberate destruction of his certificate frustrated this purpose and "for this noncommunicative aspect of his conduct, and for nothing else, he was convicted." 391 U.S. at 391 U. S. 382 . It was assumed that O'Brien's act in burning the certificate had a communicative element in it sufficient to bring into play the First Amendment, 391 U.S. at 391 U. S. 382 , but it was for the noncommunicative element that he was prosecuted. So here with the Indiana statute; while the dancing to which it was applied had a communicative element, it was not the dancing that was prohibited, but simply its being done in the nude. The fourth part of the O'Brien test requires that the incidental restriction on First Amendment freedom be no greater than is essential to the furtherance of the governmental interest. As indicated in the discussion above, Page 501 U. S. 572 the governmental interest served by the text of the prohibition is societal disapproval of nudity in public places and among strangers. The statutory prohibition is not a means to some greater end, but an end in itself. It is without cavil that the public indecency statute is "narrowly tailored;" Indiana's requirement that the dancers wear at least pasties and a G-string is modest, and the bare minimum necessary to achieve the state's purpose. The judgment of the Court of Appeals accordingly is Reversed. [ Footnote 1 ] The Indiana Supreme Court appeared to give the public indecency statute a limiting construction to save it from a facial overbreadth attack: "There is no right to appear nude in public. Rather, it may be constitutionally required to tolerate or to allow some nudity as a part of some larger form of expression meriting protection, when the communication of ideas is involved." State v. Baysinger, 272 Ind. 236, 247, 397 N.E.2d 580 , 587 (1979) (emphasis added), appeals dism'd sub nom. Clark v. Indiana, 446 U.S. 931, and Dove v. Indiana, 449 U.S. 806 (1980). Five years after Baysinger, however, the Indiana Supreme Court reversed a decision of the Indiana Court of Appeals holding that the statute did "not apply to activity such as the theatrical appearances involved herein, which may not be prohibited absent a finding of obscenity," in a case involving a partially nude dance in the "Miss Erotica of Fort Wayne" contest. Erhardt v. State, 468 N.E.2d 224 (Ind.1984). The Indiana Supreme Court did not discuss the constitutional issues beyond a cursory comment that the statute had been upheld against constitutional attack in Baysinger, and Erhardt's conduct fell within the statutory prohibition. Justice Hunter dissented, arguing that "a public indecency statute which prohibits nudity in any public place is unconstitutionally overbroad. My reasons for so concluding have already been articulated in State v. Baysinger, (1979) 272 Ind. 236, 397 N.E.2d 580 (Hunter and DeBruler, JJ., dissenting)." Id. at 225-226, 397 N.E.2d 580 . Justice DeBruler expressed similar views in his dissent in Erhardt. Ibid. Therefore, the Indiana Supreme Court did not affirmatively limit the reach of the statute in Baysinger, but merely said that, to the extent the First Amendment would require it, the statute might be unconstitutional as applied to some activities. [ Footnote 2 ] Indiana Code § 35-451 (1988) provides: "Public Indecency" "Sec. 1. (a) A person who knowingly or intentionally, in a public place:" "(1) engages in sexual intercourse;" "(2) engages in deviate sexual conduct;" "(3) appears in a state of nudity; or" "(4) fondles the genitals of himself or another person;" "commits public indecency, a Class A misdemeanor." "(b) 'Nudity' means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genitals in a discernibly turgid state." JUSTICE SCALIA, concurring in the judgment. I agree that the judgment of the Court of Appeals must be reversed. In my view, however, the challenged regulation must be upheld, not because it survives some lower level of First-Amendment scrutiny, but because, as a general law regulating conduct and not specifically directed at expression, it is not subject to First-Amendment scrutiny at all. I Indiana's public indecency statute provides: "(a) A person who knowingly or intentionally, in a public place:" "(1) engages in sexual intercourse;" "(2) engages in deviate sexual conduct;" "(3) appears in a state of nudity; or" "(4) fondles the genitals of himself or another person;" "commits public indecency, a Class A misdemeanor." "(b) 'Nudity' means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of covered male genitals in a discernibly turgid state." Ind.Code § 35-45-4-1 (1988). On its face, this law is not directed at expression in particular. As Judge Easterbrook put it in his dissent below: "Indiana Page 501 U. S. 573 does not regulate dancing. It regulates public nudity. . . . Almost the entire domain of Indiana's statute is unrelated to expression, unless we view nude beaches and topless hot dog vendors as speech." Miller v. Civil City of South Bend, 904 F.2d 1081, 1120 (CA7 1990) (Easterbrook, J., dissenting). The intent to convey a "message of eroticism" (or any other message) is not a necessary element of the statutory offense of public indecency; nor does one commit that statutory offense by conveying the most explicit "message of eroticism," so long as he does not commit any of the four specified acts in the process. [ Footnote 2/1 ] Indiana's statute is in the line of a long tradition of laws against public nudity, which have never been thought to run afoul of traditional understanding of "the freedom of speech." Public indecency -- including public nudity -- has long been an offense at common law. See 50 Am.Jur.2d 449, 472-474 (1970); 93 A.L.R. 996, 997-998 (1934); Winters v. New York, 333 U. S. 507 , 333 U. S. 515 (1948). Indiana's first public nudity statute, Rev.Laws of Indiana, ch. 26, § 60 (1831), predated by many years the appearance of nude barroom dancing. It was general in scope, directed at all public nudity, and not just at public nude expression; and all succeeding statutes, down to Page 501 U. S. 574 the present one, have been the same. Were it the case that Indiana in practice targeted only expressive nudity, while turning a blind eye to nude beaches and unclothed purveyors of hot dogs and machine tools, see Miller, 904 F.2d at 1120, 1121, it might be said that what posed as a regulation of conduct in general was in reality a regulation of only communicative conduct. Respondents have adduced no evidence of that. Indiana officials have brought many public indecency prosecutions for activities having no communicative element. See Bond v. State, 515 N.E.2d 856 , 857 (Ind.1987); In re Levinson, 444 N.E.2d 1175 , 1176 (Ind.1983); Preston v. State, 259 Ind. 353, 354-355, 287 N.E.2d 347 , 348 (1972); Thomas v. State, 238 Ind. 658, 659-660, 154 N.E.2d 503 , 504-505 (1958); Blanton v. State, 533 N.E.2d 190 , 191 (Ind.App.1989); Sweeney v. State, 486 N.E.2d 651 , 652 (Ind.App.1985); Thompson v. State, 482 N.E.2d 1372 , 1373-1374 (Ind.App.1985); Adims v. State, 461 N.E.2d 740 , 741-742 (Ind.App.1984); State v. Elliott, 435 N.E.2d 302 , 304 (Ind.App.1982); Lasko v. State, 409 N.E.2d 1124 , 1126 (Ind.App.1980). [ Footnote 2/2 ] The dissent confidently asserts, post at 501 U. S. 590 -591, that the purpose of restricting nudity in public places in general is to protect nonconsenting parties from offense; and argues that, since only consenting, admission-paying patrons see respondents dance, that purpose cannot apply, and the only remaining purpose must relate to the communicative elements of the performance. Perhaps the dissenters believe that "offense to others" ought to be the only reason for restricting nudity in public places generally, but there is no Page 501 U. S. 575 basis for thinking that our society has ever shared that Thoreauvian "you may do what you like so long as it does not injure someone else" beau ideal -- much less for thinking that it was written into the Constitution. The purpose of Indiana's nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosierdome to display their genitals to one another, even if there were not an offended innocent in the crowd. Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, " contra bonos mores, " i.e., immoral. In American society, such prohibitions have included, for example, sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy. While there may be great diversity of view on whether various of these prohibitions should exist (though I have found few ready to abandon, in principle, all of them) there is no doubt that, absent specific constitutional protection for the conduct involved, the Constitution does not prohibit them simply because they regulate "morality." See Bowers v. Hardwick, 478 U. S. 186 , 478 U. S. 196 (1986) (upholding prohibition of private homosexual sodomy enacted solely on "the presumed belief of a majority of the electorate in [the jurisdiction] that homosexual sodomy is immoral and unacceptable"). See also Paris Adult Theatre I v. Slaton, 413 U. S. 49 , 413 U. S. 68 , n. 15 (1973); Dronenburg v. Zech, 239 U.S.App.D.C. 229, 238, and n. 6, 741 F.2d 1388, 1397, and n. 6 (1984) (opinion of Bork, J.). The purpose of the Indiana statute, as both its text and the manner of its enforcement demonstrate, is to enforce the traditional moral belief that people should not expose their private parts indiscriminately, regardless of whether those who see them are disedified. Since that is so, the dissent has no basis for positing that, where only thoroughly edified adults are present, the purpose must be repression of communication. [ Footnote 2/3 ] Page 501 U. S. 576 II Since the Indiana regulation is a general law not specifically targeted at expressive conduct, its application to such conduct does not, in my view, implicate the First Amendment. The First Amendment explicitly protects "the freedom of speech [and] of the press" -- oral and written speech -- not "expressive conduct." When any law restricts speech, even for a purpose that has nothing to do with the suppression of communication (for instance, to reduce noise, see Saia v. New York, 334 U. S. 558 , 334 U. S. 561 (1948), to regulate election campaigns, see Buckley v. Valeo, 424 U. S. 1 , 424 U. S. 16 (1976), or to prevent littering, see Schneider v. State, 308 U. S. 147 , 308 U. S. 163 (1939)), we insist that it meet the high First-Amendment standard of justification. But virtually every law restricts conduct, and virtually any prohibited conduct can be performed for an expressive purpose -- if only expressive of the fact that the actor disagrees with the prohibition. See, e.g., Florida Free Beaches, Inc. v. Miami, 734 F.2d 608, 609 (1984) (nude sunbathers challenging public indecency law claimed their "message" was that nudity is not indecent). It cannot reasonably be demanded, therefore, that every restriction of expression incidentally produced by a general law regulating conduct pass normal First Amendment scrutiny, or even -- as some of our cases have suggested, see e.g., United States v. O'Brien, 391 U. S. 367 , 391 U. S. 377 (1968) -- that it be justified by an "important or substantial" Page 501 U. S. 577 government interest. Nor do our holdings require such justification: we have never invalidated the application of a general law simply because the conduct that it reached was being engaged in for expressive purposes and the government could not demonstrate a sufficiently important state interest. This is not to say that the First Amendment affords no protection to expressive conduct. Where the government prohibits conduct precisely because of its communicative attributes, we hold the regulation unconstitutional. See, e.g., United States v. Eichman, 496 U. S. 310 (1990) (burning flag); Texas v. Johnson, 491 U. S. 397 (1989) (same); Spence v. Washington, 418 U. S. 405 (1974) (defacing flag); Tinker v. Des Moines Independent Community School District, 393 U. S. 503 (1969) (wearing black arm bands); Brown v. Louisiana, 383 U. S. 131 (1966) (participating in silent sit-in); Stromberg v. California, 283 U. S. 359 (1931) (flying a red flag). [ Footnote 2/4 ] In each of the foregoing cases, we explicitly found that suppressing communication was the object of the regulation of conduct. Where that has not been the case, however -- where suppression of communicative use of the conduct was merely the incidental effect of forbidding the conduct for other reasons -- we have allowed the regulation to stand. O'Brien, 391 U.S. at 391 U. S. 377 (law banning destruction of draft card upheld in application against card-burning to protest Page 501 U. S. 578 war); FTC v. Superior Court Trial Lawyers Assn., 493 U. S. 411 (1990) (Sherman Act upheld in application against restraint of trade to protest low pay); cf. United States v. Albertini, 472 U. S. 675 , 472 U. S. 687 -688 (1985) (rule barring petitioner from military base upheld in application against entrance on base to protest war); Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984) (rule barring sleeping in parks upheld in application against persons engaging in such conduct to dramatize plight of homeless). As we clearly expressed the point in Johnson: "The government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. It may not, however, proscribe particular conduct because it has expressive elements. What might be termed the more generalized guarantee of freedom of expression makes the communicative nature of conduct an inadequate basis for singling out that conduct for proscription." 491 U.S. at 491 U. S. 406 (internal quotations and citations omitted; emphasis in original). All our holdings (though admittedly not some of our discussion) support the conclusion that "the only First Amendment analysis applicable to laws that do not directly or indirectly impede speech is the threshold inquiry of whether the purpose of the law is to suppress communication. If not, that is the end of the matter so far as First Amendment guarantees are concerned; if so, the court then proceeds to determine whether there is substantial justification for the proscription." Community for Creative Non-Violence v. Watt, 227 U.S.App.D.C.19, 55-56, 703 F.2d 586, 622-623 (1983) (en banc) (Scalia, J., dissenting) (footnote omitted; emphasis omitted), rev'd, 468 U. S. Community for Creative Non-Violence, 468 U. S. 288 (1984). Such a regime ensures that the government does not act to suppress communication, without requiring that all conduct-restricting regulation Page 501 U. S. 579 (which means in effect all regulation) survive an enhanced level of scrutiny. We have explicitly adopted such a regime in another First Amendment context: that of Free Exercise. In Employment Division, Oregon Dept. of Human Resources v. Smith, 494 U. S. 872 (1990), we held that general laws not specifically targeted at religious practices did not require heightened First Amendment scrutiny even though they diminished some people's ability to practice their religion. "The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, 'cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development.'" Id. at 494 U. S. 885 , quoting Lyng v. Northwest Indian Cemetery Protective Assn., 485 U. S. 439 , 485 U. S. 451 (1988); see also Minersville School District v. Gobitis, 310 U. S. 586 , 310 U. S. 594 -595 (1940) (Frankfurter, J.) ("Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs."). There is even greater reason to apply this approach to the regulation of expressive conduct. Relatively few can plausibly assert that their illegal conduct is being engaged in for religious reasons; but almost anyone can violate almost any law as a means of expression. In the one case, as in the other, if the law is not directed against the protected value (religion or expression) the law must be obeyed. III While I do not think the plurality's conclusions differ greatly from my own, I cannot entirely endorse its reasoning. The plurality purports to apply to this general law, insofar as it regulates this allegedly expressive conduct, an intermediate level of First Amendment scrutiny: the government interest in the regulation must be " important or substantial,'" ante at 501 U. S. 567 , quoting O'Brien, 391 U.S. at 391 U. S. 377 . As I have indicated, Page 501 U. S. 580 I do not believe such a heightened standard exists. I think we should avoid wherever possible, moreover, a method of analysis that requires judicial assessment of the "importance" of government interests -- and especially of government interests in various aspects of morality. Neither of the cases that the plurality cites to support the "importance" of the State's interest here, see ante at 501 U. S. 569 , is in point. Paris Adult Theatre I v. Slaton, 413 U.S. at 413 U. S. 61 , and Bowers v. Hardwick, 478 U.S. at 478 U. S. 196 , did uphold laws prohibiting private conduct based on concerns of decency and morality; but neither opinion held that those concerns were particularly "important" or "substantial," or amounted to anything more than a rational basis for regulation. Slaton involved an exhibition which, since it was obscene and at least to some extent public, was unprotected by the First Amendment, see Roth v. United States, 354 U. S. 476 (1957); the State's prohibition could therefore be invalidated only if it had no rational basis. We found that the State's "right . . . to maintain a decent society" provided a "legitimate" basis for regulation -- even as to obscene material viewed by consenting adults. 413 U.S. at 413 U. S. 59 -60. In Bowers, we held that, since homosexual behavior is not a fundamental right, a Georgia law prohibiting private homosexual intercourse needed only a rational basis in order to comply with the Due Process Clause. Moral opposition to homosexuality, we said, provided that rational basis. 478 U.S. at 478 U. S. 196 . I would uphold the Indiana statute on precisely the same ground: moral opposition to nudity supplies a rational basis for its prohibition, and since the First Amendment has no application to this case, no more than that is needed. * * * * Indiana may constitutionally enforce its prohibition of public nudity even against those who choose to use public nudity as a means of communication. The State is regulating conduct, not expression, and those who choose to employ conduct Page 501 U. S. 581 as a means of expression must make sure that the conduct they select is not generally forbidden. For these reasons, I agree that the judgment should be reversed. [ Footnote 2/1 ] Respondents assert that the statute cannot be characterized as a general regulation of conduct, unrelated to suppression of expression, because one defense put forward in oral argument below by the attorney general referred to the "message of eroticism" conveyed by respondents. But that argument seemed to go to whether the statute could constitutionally be applied to the present performances, rather than to what was the purpose of the legislation. Moreover, the State's argument below was in the alternative: (1) that the statute does not implicate the First Amendment because it is a neutral rule not directed at expression, and (2) that the statute in any event survives First Amendment scrutiny because of the State's interest in suppressing nude barroom dancing. The second argument can be claimed to contradict the first (though I think it does not); but it certainly does not waive or abandon it. In any case, the clear purpose shown by both the text and historical use of the statute cannot be refuted by a litigating statement in a single case. [ Footnote 2/2 ] Respondents also contend that the statute, as interpreted, is not content-neutral in the expressive conduct to which it applies, since it allegedly does not apply to nudity in theatrical productions. See State v. Baysinger, 272 Ind. 236, 247, 397 N.E.2d 580 , 587 (1979). I am not sure that theater versus non-theater represents a distinction based on content, rather than format, but assuming that it does, the argument nonetheless fails for the reason the plurality describes, ante at 501 U. S. 564 , n. 1. [ Footnote 2/3 ] The dissent, post at 501 U. S. 590 , 501 U. S. 595 -596 also misunderstands what is meant by the term "general law." I do not mean that the law restricts the targeted conduct in all places at all times. A law is "general" for the present purposes if it regulates conduct without regard to whether that conduct is expressive. Concededly, Indiana bans nudity in public places, but not within the privacy of the home. (That is not surprising, since the common law offense, and the traditional moral prohibition, runs against public nudity, not against all nudity. E.g., 50 Am.Jur.2d at 472-474.) But that confirms, rather than refutes, the general nature of the law: one may not go nude in public, whether or not one intends thereby to convey a message, and similarly one may go nude in private, again whether or not that nudity is expressive. [ Footnote 2/4 ] It is easy to conclude that conduct has been forbidden because of its communicative attributes when the conduct in question is what the Court has called "inherently expressive," and what I would prefer to call "conventionally expressive" -- such as flying a red flag. I mean by that phrase (as I assume the Court means by "inherently expressive") conduct that is normally engaged in for the purpose of communicating an idea, or perhaps an emotion, to someone else. I am not sure whether dancing fits that description, see Dallas v. Stanglin, 490 U. S. 19 , 490 U. S. 24 (1989) (social dance group "do[es] not involve the sort of expressive association that the First Amendment has been held to protect"). But even if it does, this law is directed against nudity, not dancing. Nudity is not normally engaged in for the purpose of communicating an idea or an emotion. JUSTICE SOUTER, concurring in the judgment. Not all dancing is entitled to First Amendment protection as expressive activity. This Court has previously categorized ballroom dancing as beyond the Amendment's protection, Dallas v. Stanglin, 490 U. S. 19 , 490 U. S. 24 -25 (1989), and dancing as aerobic exercise would likewise be outside the First Amendment's concern. But dancing as a performance directed to an actual or hypothetical audience gives expression at least to generalized emotion or feeling, and where the dancer is nude or nearly so, the feeling expressed, in the absence of some contrary clue, is eroticism, carrying an endorsement of erotic experience. Such is the expressive content of the dances described in the record. Although such performance dancing is inherently expressive, nudity per se is not. It is a condition, not an activity, and the voluntary assumption of that condition, without more, apparently expresses nothing beyond the view that the condition is somehow appropriate to the circumstances. But every voluntary act implies some such idea, and the implication is thus so common and minimal that calling all voluntary activity expressive would reduce the concept of expression to the point of the meaningless. A search for some expression beyond the minimal in the choice to go nude will often yield nothing: a person may choose nudity, for example, for maximum sunbathing. But when nudity is combined with expressive activity, its stimulative and attractive value certainly can enhance the force of expression, and a dancer's acts in going from clothed to nude, as in a strip-tease, are integrated into the dance and its expressive function. Thus, I agree with the plurality and the dissent that an interest in freely engaging in the nude dancing at issue here is subject to a degree of First Amendment protection. Page 501 U. S. 582 I also agree with the plurality that the appropriate analysis to determine the actual protection required by the First Amendment is the four-part enquiry described in United States v. O'Brien, 391 U. S. 367 (1968), for judging the limits of appropriate state action burdening expressive acts as distinct from pure speech or representation. I nonetheless write separately to rest my concurrence in the judgment, not on the possible sufficiency of society's moral views to justify the limitations at issue, but on the State's substantial interest in combating the secondary effects of adult entertainment establishments of the sort typified by respondents' establishments. It is, of course, true that this justification has not been articulated by Indiana's legislature or by its courts. As the plurality observes, "Indiana does not record legislative history, and the state's highest court has not shed additional light on the statute's purpose," ante at 501 U. S. 568 . While it is certainly sound in such circumstances to infer general purposes "of protecting societal order and morality . . . from [the statute's] text and history," ibid., I think that we need not so limit ourselves in identifying the justification for the legislation at issue here, and may legitimately consider petitioners' assertion that the statute is applied to nude dancing because such dancing "encourag[es] prostitution, increas[es] sexual assaults, and attract[s] other criminal activity." Brief for Petitioners 37. This asserted justification for the statute may not be ignored merely because it is unclear to what extent this purpose motivated the Indiana Legislature in enacting the statute. Our appropriate focus is not an empirical enquiry into the actual intent of the enacting legislature, but rather the existence or not of a current governmental interest in the service of which the challenged application of the statute may be constitutional. Cf. McGowan v. Maryland, 366 U. S. 420 Page 501 U. S. 583 (1961). At least as to the regulation of expressive conduct, [ Footnote 3/1 ] "[w]e decline to void [a statute] essentially on the ground that it is unwise legislation which [the legislature] had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a 'wiser' speech about it." O'Brien, supra, 391 U.S. at 391 U. S. 384 . In my view, the interest asserted by petitioners in preventing prostitution, sexual assault, and other criminal activity, although presumably not a justification for all applications of the statute, is sufficient under O'Brien to justify the State's enforcement of the statute against the type of adult entertainment at issue here. At the outset, it is clear that the prevention of such evils falls within the constitutional power of the State, which satisfies the first O'Brien criterion. See id. at 391 U. S. 377 . The second O'Brien prong asks whether the regulation "furthers an important or substantial governmental interest." Ibid. The asserted state interest is plainly a substantial one; the only question is whether prohibiting nude dancing of the sort at issue here "furthers" that interest. I believe that our cases have addressed this question sufficiently to establish that it does. In Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986), we upheld a city's zoning ordinance designed to prevent the occurrence of harmful secondary effects, including the crime associated with adult entertainment by protecting approximately 95% of the city's area from the placement of motion picture theaters emphasizing " matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas" . . . for observation by patrons therein.'" Id. at 475 U. S. 44 . Of particular importance to the present enquiry, we held that the city of Renton was not compelled to justify its restrictions by studies specifically relating to the problems Page 501 U. S. 584 that would be caused by adult theaters in that city. Rather, "Renton was entitled to rely on the experiences of Seattle and other cities," id. at 475 U. S. 51 , which demonstrated the harmful secondary effects correlated with the presence "of even one [adult] theater in a given neighborhood." Id. at 475 U. S. 50 ; cf. Young v. American Mini Theatres, Inc., 427 U. S. 50 , 427 U. S. 71 , n. 34 (1976) (legislative finding that "a concentration of `adult' movie theaters causes the area to deteriorate and become a focus of crime"); California v. LaRue, 409 U. S. 109 , 409 U. S. 111 (1972) (administrative findings of criminal activity associated with adult entertainment). The type of entertainment respondents seek to provide is plainly of the same character as that at issue in Renton, American Mini Theatres, and LaRue. It therefore is no leap to say that live nude dancing of the sort at issue here is likely to produce the same pernicious secondary effects as the adult films displaying "specified anatomical areas" at issue in Renton. Other reported cases from the Circuit in which this litigation arose confirm the conclusion. See, e.g., United States v. Marren, 890 F.2d 924, 926 (CA7 1989) (prostitution associated with nude dancing establishment); United States v. Doerr, 886 F.2d 944, 949 (CA7 1989) (same). In light of Renton's recognition that legislation seeking to combat the secondary effects of adult entertainment need not await localized proof of those effects, the State of Indiana could reasonably conclude that forbidding nude entertainment of the type offered at the Kitty Kat Lounge and the Glen Theatre's "bookstore" furthers its interest in preventing prostitution, sexual assault, and associated crimes. Given our recognition that "society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate," American Mini Theatres, supra, 427 U.S. at 427 U. S. 70 , I do not believe that a State is required affirmatively to undertake to litigate this issue repeatedly in every Page 501 U. S. 585 case. The statute as applied to nudity of the sort at issue here therefore satisfies the second prong of O'Brien. [ Footnote 3/2 ] The third O'Brien condition is that the governmental interest be "unrelated to the suppression of free expression," 391 U.S. at 391 U. S. 377 , and, on its face, the governmental interest in combating prostitution and other criminal activity is not at all inherently related to expression. The dissent contends, however, that Indiana seeks to regulate nude dancing as its means of combating such secondary effects "because . . . creating or emphasizing [the] thoughts and ideas [expressed by nude dancing] in the minds of the spectators may lead to increased prostitution," post at 501 U. S. 592 , and that regulation of expressive conduct because of the fear that the expression will prove persuasive is inherently related to the suppression of free expression. Ibid. The major premise of the dissent's reasoning may be correct, but its minor premise describing the causal theory of Indiana's regulatory justification is not. To say that pernicious secondary effects are associated with nude dancing establishments is not necessarily to say that such effects result from the persuasive effect of the expression inherent in nude dancing. It is to say, rather, only that the effects are correlated with the existence of establishments offering such dancing, without deciding what the precise causes of the correlation Page 501 U. S. 586 actually are. It is possible, for example, that the higher incidence of prostitution and sexual assault in the vicinity of adult entertainment locations results from the concentration of crowds of men predisposed to such activities, or from the simple viewing of nude bodies, regardless of whether those bodies are engaged in expression or not. In neither case would the chain of causation run through the persuasive effect of the expressive component of nude dancing. Because the State's interest in banning nude dancing results from a simple correlation of such dancing with other evils, rather than from a relationship between the other evils and the expressive component of the dancing, the interest is unrelated to the suppression of free expression. Renton is again persuasive in support of this conclusion. In Renton, we held that an ordinance that regulated adult theaters because the presence of such theaters was correlated with secondary effects that the local government had an interest in regulating was content-neutral (a determination similar to the "unrelated to the suppression of free expression" determination here, see Clark v. Community for Creative Non-Violence, 468 U. S. 288 , 468 U. S. 298 , and n. 8 (1984)) because it was " justified without reference to the content of the regulated speech." 475 U.S. at 475 U. S. 48 (emphasis in original). We reached this conclusion without need to decide whether the cause of the correlation might have been the persuasive effect of the adult films that were being regulated. Similarly here, the "secondary effects" justification means that enforcement of the Indiana statute against nude dancing is "justified without reference to the content of the regulated [expression]," ibid. (emphasis omitted), which is sufficient, at least in the context of sexually explicit expression, [ Footnote 3/3 ] to satisfy the third prong of the O'Brien test. Page 501 U. S. 587 The fourth O'Brien condition, that the restriction be no greater than essential to further the governmental interest, requires little discussion. Pasties and a G-string moderate the expression to some degree, to be sure, but only to a degree. Dropping the final stitch is prohibited, but the limitation is minor when measured against the dancer's remaining capacity and opportunity to express the erotic message. Nor, so far as we are told, is the dancer or her employer limited by anything short of obscenity laws from expressing an erotic message by articulate speech or representational means; a pornographic movie featuring one of respondents, for example, was playing nearby without any interference from the authorities at the time these cases arose. Accordingly, I find O'Brien satisfied, and concur in the judgment. [ Footnote 3/1 ] Cf., e.g., Edwards v. Aguillard, 482 U. S. 578 (1987) (striking down state statute on Establishment Clause grounds due to impermissible legislative intent). [ Footnote 3/2 ] Because there is no overbreadth challenge before us, we are not called upon to decide whether the application of the statute would be valid in other contexts. It is enough, then, to say that the secondary effects rationale on which I rely here would be open to question if the State were to seek to enforce the statute by barring expressive nudity in classes of productions that could not readily be analogized to the adult films at issue in Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986). It is difficult to see, for example, how the enforcement of Indiana's statute against nudity in a production of "Hair" or "Equus" somewhere other than an "adult" theater would further the State's interest in avoiding harmful secondary effects, in the absence of evidence that expressive nudity outside the context of Renton -type adult entertainment was correlated with such secondary effects. [ Footnote 3/3 ] I reach this conclusion again mindful, as was the Court in Renton, that the protection of sexually explicit expression may be of lesser societal importance than the protection of other forms of expression. See Renton, supra, at 475 U. S. 49 , and n. 2, citing Young v. American Mini Theatres, Inc., 427 U. S. 50 , 427 U. S. 70 (1976). JUSTICE WHITE, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join, dissenting. The first question presented to us in this case is whether nonobscene nude dancing performed as entertainment is expressive conduct protected by the First Amendment. The Court of Appeals held that it is, observing that our prior decisions permit no other conclusion. Not surprisingly, then, the Court now concedes that "nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment. . . ." Ante at 501 U. S. 566 . This is no more than recognizing, as the Seventh Circuit observed, that dancing is an ancient art form and "inherently embodies the expression and communication of ideas and emotions." Miller v. Civil City of South Bend, 904 F.2d 1081, 1087 (1990) (en banc). [ Footnote 4/1 ] Page 501 U. S. 588 Having arrived at the conclusion that nude dancing performed as entertainment enjoys First Amendment protection, the Court states that it must "determine the level of protection to be afforded to the expressive conduct at issue, and must determine whether the Indiana statute is an impermissible infringement of that protected activity." Ante at 501 U. S. 566 . For guidance, the plurality turns to United States v. O'Brien, 391 U. S. 367 (1968), which held that expressive conduct could be narrowly regulated or forbidden in pursuit of an important or substantial governmental interest that is unrelated to the content of the expression. The plurality finds that the Indiana statute satisfies the O'Brien test in all respects. The plurality acknowledges that it is impossible to discern the exact state interests which the Indiana legislature had in mind when it enacted the Indiana statute, but the Court nonetheless concludes that it is clear from the statute's text and history that the law's purpose is to protect "societal order and morality." Ante at 501 U. S. 568 . The plurality goes on to Page 501 U. S. 589 conclude that Indiana's statute "was enacted as a general prohibition, " ante at 501 U. S. 568 (emphasis added), on people appearing in the nude among strangers in public places. The plurality then points to cases in which we upheld legislation based on the State's police power, and ultimately concludes that the Indiana statute "furthers a substantial government interest in protecting order and morality." Ante at 569. The plurality also holds that the basis for banning nude dancing is unrelated to free expression, and that it is narrowly drawn to serve the State's interest. The plurality's analysis is erroneous in several respects. Both the Court and JUSTICE SCALIA in his concurring opinion overlook a fundamental and critical aspect of our cases upholding the States' exercise of their police powers. None of the cases they rely upon, including O'Brien and Bowers v. Hardwick, 478 U. S. 186 (1986), involved anything less than truly general proscriptions on individual conduct. In O'Brien, for example, individuals were prohibited from destroying their draft cards at any time and in any place, even in completely private places such as the home. Likewise, in Bowers, the State prohibited sodomy, regardless of where the conduct might occur, including the home, as was true in that case. The same is true of cases like Employment Division, Oregon Dept. of Human Resources v. Smith, 494 U. S. 872 (1990), which, though not applicable here because it did not involve any claim that the peyote users were engaged in expressive activity, recognized that the State's interests in preventing the use of illegal drugs extends even into the home. By contrast, in this case, Indiana does not suggest that its statute applies to, or could be applied to, nudity wherever it occurs, including the home. We do not understand the Court or JUSTICE SCALIA to be suggesting that Indiana could constitutionally enact such an intrusive prohibition, nor do we think such a suggestion would be tenable in light of our decision in Stanley v. Georgia, 394 U. S. 557 , (1969), in which we held that States could not punish the Page 501 U. S. 590 mere possession of obscenity in the privacy of one's own home. We are told by the Attorney General of Indiana that, in State v. Baysinger, 272 Ind. 236, 397 N.E.2d 580 (1979), the Indiana Supreme Court held that the statute at issue here cannot and does not prohibit nudity as a part of some larger form of expression meriting protection when the communication of ideas is involved. Brief for Petitioners 25, 30-31; Reply Brief for Petitioners 9-11. Petitioners also state that the evils sought to be avoided by applying the statute in this case would not obtain in the case of theatrical productions, such as Salome or Hair. Id. at 11-12. Neither is there any evidence that the State has attempted to apply the statute to nudity in performances such as plays, ballets or operas. "No arrests have ever been made for nudity as part of a play or ballet." App.19 (affidavit of Sgt. Timothy Corbett). Thus, the Indiana statute is not a general prohibition of the type we have upheld in prior cases. As a result, the Court's and JUSTICE SCALIA's simple references to the State's general interest in promoting societal order and morality is not sufficient justification for a statute which concededly reaches a significant amount of protected expressive activity. Instead, in applying the O'Brien test, we are obligated to carefully examine the reasons the State has chosen to regulate this expressive conduct in a less than general statute. In other words, when the State enacts a law which draws a line between expressive conduct which is regulated and nonexpressive conduct of the same type which is not regulated, O'Brien places the burden on the State to justify the distinctions it has made. Closer inquiry as to the purpose of the statute is surely appropriate. Legislators do not just randomly select certain conduct for proscription; they have reasons for doing so, and those reasons illuminate the purpose of the law that is passed. Indeed, a law may have multiple purposes. The purpose of Page 501 U. S. 591 forbidding people from appearing nude in parks, beaches, hot dog stands, and like public places is to protect others from offense. But that could not possibly be the purpose of preventing nude dancing in theaters and barrooms, since the viewers are exclusively consenting adults who pay money to see these dances. The purpose of the proscription in these contexts is to protect the viewers from what the State believes is the harmful message that nude dancing communicates. This is why Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984), is of no help to the State: "In Clark, . . . the damage to the parks was the same whether the sleepers were camping out for fun, were in fact homeless, or wished by sleeping in the park to make a symbolic statement on behalf of the homeless." 904 F.2d at 1103 (Posner, J., concurring). That cannot be said in this case: the perceived damage to the public interest caused by appearing nude on the streets or in the parks, as I have said, is not what the State seeks to avoid in preventing nude dancing in theaters and taverns. There the perceived harm is the communicative aspect of the erotic dance. As the State now tells us, and as JUSTICE SOUTER agrees, the State's goal in applying what it describes as its "content-neutral" statute to the nude dancing in this case is "deterrence of prostitution, sexual assaults, criminal activity, degradation of women, and other activities which break down family structure." Reply Brief for Petitioners 11. The attainment of these goals, however, depends on preventing an expressive activity. The plurality nevertheless holds that the third requirement of the O'Brien test, that the governmental interest be unrelated to the suppression of free expression, is satisfied, because, in applying the statute to nude dancing, the State is not "proscribing nudity because of the erotic message conveyed by the dancers." Ante at 501 U. S. 570 . The plurality suggests that this is so because the State does not ban dancing that sends an erotic message; it is only nude erotic dancing that is forbidden. The perceived evil is not erotic dancing, but public Page 501 U. S. 592 nudity, which may be prohibited despite any incidental impact on expressive activity. This analysis is transparently erroneous. In arriving at its conclusion, the Court concedes that nude dancing conveys an erotic message, and concedes that the message would be muted if the dancers wore pasties and G-strings. Indeed, the emotional or erotic impact of the dance is intensified by the nudity of the performers. As Judge Posner argued in his thoughtful concurring opinion in the Court of Appeals, the nudity of the dancer is an integral part of the emotions and thoughts that a nude dancing performance evokes. Id. at 1090-1098. The sight of a fully clothed, or even a partially clothed, dancer generally will have a far different impact on a spectator than that of a nude dancer, even if the same dance is performed. The nudity is itself an expressive component of the dance, not merely incidental "conduct." We have previously pointed out that " [n]udity alone' does not place otherwise protected material outside the mantle of the First Amendment." Schad v. Mt. Ephraim, 452 U. S. 61 , 452 U. S. 66 (1981). This being the case, it cannot be that the statutory prohibition is unrelated to expressive conduct. Since the State permits the dancers to perform if they wear pasties and G-strings, but forbids nude dancing, it is precisely because of the distinctive, expressive content of the nude dancing performances at issue in this case that the State seeks to apply the statutory prohibition. It is only because nude dancing performances may generate emotions and feelings of eroticism and sensuality among the spectators that the State seeks to regulate such expressive activity, apparently on the assumption that creating or emphasizing such thoughts and ideas in the minds of the spectators may lead to increased prostitution and the degradation of women. But generating thoughts, ideas, and emotions is the essence of communication. The nudity element of nude dancing performances cannot Page 501 U. S. 593 be neatly pigeonholed as mere "conduct" independent of any expressive component of the dance. [ Footnote 4/2 ] That fact dictates the level of First Amendment protection to be accorded the performances at issue here. In Texas v. Johnson, 491 U. S. 397 , 491 U. S. 411 -412 (1989), the Court observed: "Whether Johnson's treatment of the flag violated Texas law thus depended on the likely communicative impact of his expressive conduct. . . . We must therefore subject the State's asserted interest in preserving the special symbolic character of the flag to 'the most exacting scrutiny.' Boos v. Barry , 485 U.S. [312], 485 U. S. 321 [(1988)]." Content-based restrictions "will be upheld only if narrowly drawn to accomplish a compelling governmental interest." United States v. Grace, 461 U. S. 171 , 461 U. S. 177 (1983); Sable Communications of California, Inc. v. FCC, 492 U. S. 115 , 492 U. S. 126 (1989). Nothing could be clearer from our cases. That the performances in the Kitty Kat Lounge may not be high art, to say the least, and may not appeal to the Court, is hardly an excuse for distorting and ignoring settled doctrine. The plurality's assessment of the artistic merits of nude dancing performances should not be the determining factor in deciding this case. In the words of Justice Harlan, "it is largely because governmental officials cannot make principled decisions Page 501 U. S. 594 in this area that the Constitution leaves matters of taste and style so largely to the individual." Cohen v. California, 403 U. S. 15 , 403 U. S. 25 (1971). "[W]hile the entertainment afforded by a nude ballet at Lincoln Center to those who can pay the price may differ vastly in content (as viewed by judges) or in quality (as viewed by critics), it may not differ in substance from the dance viewed by the person who . . . wants some 'entertainment' with his beer or shot of rye." Salem Inn, Inc. v. Frank, 501 F.2d 18, 21, n. 3 (CA2 1974), aff'd in part, Doran v. Salem Inn, Inc., 422 U. S. 922 (1975). The plurality and JUSTICE SOUTER do not go beyond saying that the state interests asserted here are important and substantial. But even if there were compelling interests, the Indiana statute is not narrowly drawn. If the State is genuinely concerned with prostitution and associated evils, as JUSTICE SOUTER seems to think, or the type of conduct that was occurring in California v. LaRue, 409 U. S. 109 (1972), it can adopt restrictions that do not interfere with the expressiveness of nonobscene nude dancing performances. For instance, the State could perhaps require that, while performing, nude performers remain at all times a certain minimum distance from spectators, that nude entertainment be limited to certain hours, or even that establishments providing such entertainment be dispersed throughout the city. Cf. Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986). Likewise, the State clearly has the authority to criminalize prostitution and obscene behavior. Banning an entire category of expressive activity, however, generally does not satisfy the narrow tailoring requirement of strict First Amendment scrutiny. See Frisby v. Schultz, 487 U. S. 474 , 487 U. S. 485 (1988). Furthermore, if nude dancing in barrooms as compared with other establishments, is the most worrisome problem, the State could invoke its Twenty-first Amendment powers and impose appropriate regulation. New York State Liquor Authority v. Bellanca, 452 U. S. 714 (1981) (per curiam); California v. LaRue, supra. Page 501 U. S. 595 As I see it, our cases require us to affirm, absent a compelling state interest supporting the statute. Neither the Court nor the State suggest that the statute could withstand scrutiny under that standard. JUSTICE SCALIA's views are similar to those of the Court, and suffer from the same defects. The Justice asserts that a general law barring specified conduct does not implicate the First Amendment unless the purpose of the law is to suppress the expressive quality of the forbidden conduct, and that, absent such purpose, First Amendment protections are not triggered simply because the incidental effect of the law is to proscribe conduct that is unquestionably expressive. Cf. Community for Creative Non-Violence v. Watt, 227 U.S.App.D.C. 19, 703 F.2d 586, 622-623 (1983) (SCALIA, J., dissenting). The application of the Justice's proposition to this case is simple to state: the statute at issue is a general law banning nude appearances in public places, including barrooms and theaters. There is no showing that the purpose of this general law was to regulate expressive conduct; hence, the First Amendment is irrelevant, and nude dancing in theaters and barrooms may be forbidden irrespective of the expressiveness of the dancing. As I have pointed out, however, the premise for the Justice's position -- that the statute is a general law of the type our cases contemplate -- is nonexistent in this case. Reference to JUSTICE SCALIA's own hypothetical makes this clear. We agree with JUSTICE SCALIA that the Indiana statute would not permit 60,000 consenting Hoosiers to expose themselves to each other in the Hoosierdome. No one can doubt, however, that those same 60,000 Hoosiers would be perfectly free to drive to their respective homes all across Indiana and, once there, to parade around, cavort, and revel in the nude for hours in front of relatives and friends. It is difficult to see why the State's interest in morality is any less in that situation, especially if, as JUSTICE SCALIA seems to suggest, nudity is inherently evil, but clearly the statute does Page 501 U. S. 596 not reach such activity. As we pointed out earlier, the State's failure to enact a truly general proscription requires closer scrutiny of the reasons for the distinctions the State has drawn. See supra at 501 U. S. 590 . As explained previously, the purpose of applying the law to the nude dancing performances in respondents' establishments is to prevent their customers from being exposed to the distinctive communicative aspects of nude dancing. That being the case, JUSTICE SCALIA's observation is fully applicable here: "Where government prohibits conduct precisely because of its communicative attributes, we hold the regulation unconstitutional." Ante at 501 U. S. 577 . The O'Brien decision does not help JUSTICE SCALIA. Indeed, his position, like the Court's, would eviscerate the O'Brien test. Employment Division, Oregon Dept. of Human Resources v. Smith, 494 U. S. 872 (1990), is likewise not on point. The Indiana law, as applied to nude dancing, targets the expressive activity itself; in Indiana, nudity in a dancing performance is a crime because of the message such dancing communicates. In Smith, the use of drugs was not criminal because the use was part of or occurred within the course of an otherwise protected religious ceremony, but because a general law made it so, and was supported by the same interests in the religious context as in others. Accordingly, I would affirm the judgment of the Court of Appeals, and dissent from this Court's judgment. [ Footnote 4/1 ] JUSTICE SCALIA suggests that performance dancing is not inherently expressive activity, see ante at 501 U. S. 577 , n. 4, but the Court of Appeals has the better view: "Dance has been defined as 'the art of moving the body in a rhythmical way, usually to music, to express an emotion or idea, to narrate a story, or simply to take delight in the movement itself.' 16 The New Encyclopedia Britannica 935 (1989). Inherently, it is the communication of emotion or ideas. At the root of all" "[t]he varied manifestations of dancing . . . lies the common impulse to resort to movement to externalise states which we cannot externalise by rational means. This is basic dance." "Martin, J., Introduction to the Dance (1939). Aristotle recognized in Poetics that the purpose of dance is 'to represent men's character as well as what they do and suffer.' The raw communicative power of dance was noted by the French poet Stephane Mallarme, who declared that the dancer 'writing with her body . . . suggests things which the written work could express only in several paragraphs of dialogue or descriptive prose.'" 904 F.2d at 1085-1086. JUSTICE SCALIA cites Dallas v. Stanglin, 490 U. S. 19 (1989), but that decision dealt with social dancing, not performance dancing; and the submission in that case, which we rejected, was not that social dancing was an expressive activity, but that plaintiff's associational rights were violated by restricting admission to dance halls on the basis of age. The Justice also asserts that, even if dancing is inherently expressive, nudity is not. The statement may be true, but it tells us nothing about dancing in the nude. [ Footnote 4/2 ] JUSTICE SOUTER agrees with the Court that the third requirement of the O'Brien test is satisfied, but only because he is not certain that there is a causal connection between the message conveyed by nude dancing and the evils which the State is seeking to prevent. See ante at 501 U. S. 585 . JUSTICE SOUTER's analysis is at least as flawed as that of the Court. If JUSTICE SOUTER is correct that there is no causal connection between the message conveyed by the nude dancing at issue here and the negative secondary effects that the State desires to regulate, the State does not have even a rational basis for its absolute prohibition on nude dancing that is admittedly expressive. Furthermore, if the real problem is the "concentration of crowds of men predisposed to the" designated evils, ante at 501 U. S. 586 , then the First Amendment requires that the State address that problem in a fashion that does not include banning an entire category of expressive activity. See Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986).

The Supreme Court ruled that enforcing Indiana's public indecency law to prevent totally nude dancing does not violate the First Amendment's freedom of expression. While nude dancing is considered expressive conduct within the First Amendment, it is only marginally protected. The Court applied the four-part test from United States v. O'Brien and concluded that the law is justified despite its limitations on expressive activity. The law is within the state's constitutional power, furthers a substantial government interest in protecting societal order and morality, and is unrelated to the suppression of free expression.

Free Speech

Rust v. Sullivan

https://supreme.justia.com/cases/federal/us/500/173/

U.S. Supreme Court Rust v. Sullivan, 500 U.S. 173 (1990) Rust v. Sullivan Nos. 89-1391, 89-1392 Argued Oct. 30, 1990 Decided May 23, 1991 500 U.S. 173 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus Section 1008 of the Public Health Service Act specifies that none of the federal funds appropriated under the Act's Title X for family-planning services "shall be used in programs where abortion is a method of family planning." In 1988, respondent Secretary of Health and Human Services issued new regulations that, inter alia, prohibit Title X projects from engaging in counseling concerning, referrals for, and activities advocating abortion as a method of family planning, and require such projects to maintain an objective integrity and independence from the prohibited abortion activities by the use of separate facilities, personnel, and accounting records. Before the regulations could be applied, petitioners -- Title X grantees and doctors who supervise Title X funds -- filed suits, which were consolidated, challenging the regulations' facial validity and seeking declaratory and injunctive relief to prevent their implementation. In affirming the District Court's grant of summary judgment to the Secretary, the Court of Appeals held that the regulations were a permissible construction of the statute and consistent with the First and Fifth Amendments. Held: 1. The regulations are a permissible construction of Title X. Pp. 500 U. S. 183 -191. (a) Because § 1008 is ambiguous, in that it does not speak directly to the issues of abortion counseling, referral, and advocacy, or to "program integrity," the Secretary's construction must be accorded substantial deference as the interpretation of the agency charged with administering the statute, and may not be disturbed as an abuse of discretion if it reflects a plausible construction of the statute's plain language and does not otherwise conflict with Congress' expressed intent. Chevron U.S.A. Inc. v. Natural Resource Defense Council, Inc. , 467 U. S. 837 , 467 U. S. 842 -844. P. 500 U. S. 184 . (b) Title X's broad language plainly allows the abortion counseling, referral, and advocacy regulations. Since the Title neither defines Page 500 U. S. 174 § 1008's "method of family planning" phrase nor enumerates what types of medical and counseling services are entitled to funding, it cannot be said that the Secretary's construction of the § 1008 prohibition to require a ban on such activities within Title X projects is impermissible. Moreover, since the legislative history is ambiguous as to Congress' intent on these issues, this Court will defer to the Secretary's expertise. Petitioners' contention, that the regulations are entitled to little or no deference because they reverse the Secretary's longstanding policy permitting nondirective counseling and referral for abortion, is rejected. Because an agency must be given ample latitude to adapt its rules to changing circumstances, a revised interpretation may deserve deference. The Secretary's change of interpretation is amply supported by a "reasoned analysis" indicating that the new regulations are more in keeping with the statute's original intent, are justified by client experience under the prior policy, and accord with a shift in attitude against the "elimination of unborn children by abortion." Pp. 500 U. S. 184 -187. (c) The regulations' "program integrity" requirements are not inconsistent with Title X's plain language. The Secretary's view, that the requirements are necessary to ensure that Title X grantees apply federal funds only to authorized purposes and avoid creating the appearance of governmental support for abortion-related activities, is not unreasonable in light of § 1008's express prohibitory language and is entltled to deference. Petitioners' contention is unpersuasive that the requirements frustrate Congress' intent, clearly expressed in the Act and the legislative history, that Title X programs be an integral part of a broader, comprehensive, health care system that envisions the efficient use of non-Title X funds. The statements relied on are highly generalized and do not directly address the scope of § 1008 and, therefore, cannot form the basis for enjoining the regulations. Indeed, the legislative history demonstrates that Congress intended that Title X funds be kept separate and distinct from abortion-related activities. Moreover, there is no need to invalidate the regulations in order to save the statute from unconstitutionality, since petitioners' constitutional arguments do not carry the day. Pp. 500 U.S. 187 -191. 2. The regulations do not violate the First Amendment free speech rights of private Title X fund recipients, their staffs, or their patients by impermissibly imposing viewpoint-discriminatory conditions on Government subsidies. There is no question but that § 1008's prohibition is constitutional, since the Government may make a value judgment favoring childbirth over abortion, and implement that judgment by the allocation of public funds. Maher v. Roe, 432 U. S. 464 , 432 U. S. 474 . In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of another. Similarly, Page 500 U. S. 175 in implementing the statutory prohibition by forbidding counseling, referral, and the provision of information regarding abortion as a method of family planning, the regulations simply ensure that appropriated funds are not used for activities, including speech, that are outside the federal program's scope. Arkansas Writers' Project, Inc. v. Ragland, 481 U. S. 221 , distinguished. Petitioners' view that, if the Government chooses to subsidize one protected right, it must subsidize analogous counterpart rights, has been soundly rejected. See, e.g., Regan v. Taxation With Representation of Wash., 461 U. S. 540 . On their face, the regulations cannot be read, as petitioners contend, to bar abortion referral or counseling where a woman's life is placed in imminent peril by her pregnancy, since it does not seem that such counseling could be considered a "method of family planning" under § 1008, and since provisions of the regulations themselves contemplate that a Title X project could engage in otherwise prohibited abortion-related activities in such circumstances. Nor can the regulations' restrictions on the subsidization of abortion-related speech be held to unconstitutionally condition the receipt of a benefit, Title X funding, on the relinquishment of a constitutional right, the right to engage in abortion advocacy and counseling. The regulations do not force the Title X grantee, or its employees, to give up abortion-related speech; they merely require that such activities be kept separate and distinct from the activities of the Title X project. FCC v. League of Women Voters of Cal., 468 U. S. 364 , 468 U. S. 400 ; Regan, supra, 461 U.S. at 461 U. S. 546 , distinguished. Although it could be argued that the traditional doctor-patient relationship should enjoy First Amendment protection from Government regulation, even when subsidized by the Government, cf., e.g., United States v. Kokinda, 497 U. S. 720 , 497 U. S. 726 , that question need not be resolved here, since the Title X program regulations do not significantly impinge on the doctor-patient relationship. Pp. 500 U. S. 192 -200. 3. The regulations do not violate a woman's Fifth Amendment right to choose whether to terminate her pregnancy. The Government has no constitutional duty to subsidize an activity merely because it is constitutionally protected, and may validly choose to allocate public funds for medical services relating to childbirth but not to abortion. Webster v. Reproductive Health Services, 492 U. S. 490 , 492 U. S. 510 . That allocation places no governmental obstacle in the path of a woman wishing to terminate her pregnancy, and leaves her with the same choices as if the Government had chosen not to fund family planning services at all. See, e.g., Harris v. McRae, 448 U. S. 297 , 448 U. S. 315 , 448 U. S. 317 ; Webster, supra, 492 U. S. 509 . Nor do the regulations place restrictions on the patient/doctor dialogue which violate a woman's right to make an informed and voluntary choice under Akron v. Akron Center for Reproductive Health, Inc. , 462 U.S. Page 500 U. S. 176 416, and Thornburg v. American College of Obstetricians and Gynecologists, 476 U. S. 747 . Unlike the laws invalidated in those cases, which required all doctors to provide all pregnant patients contemplating abortion with specific antiabortion information, here, a doctor's ability to provide, and a woman's right to receive, abortion-related information remains unfettered outside the context of the Title X project. The fact that most Title X clients may be effectively precluded by indigency from seeing a health care provider for abortion-related services does not affect the outcome here, since the financial constraints on such a woman's ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions, but of her indigency. McRae, supra, 448 U.S. at 448 U. S. 316 . Pp. 500 U. S. 201 -203. 889 F.2d 401 (C.A.2 1989), affirmed. REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, KENNEDY, SCALIA, and SOUTER, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which MARSHALL, J., joined; in Part I of which O'CONNOR, J., joined; and in Parts II and III of which STEVENS, J., joined, post, p. 500 U. S. 203 . STEVENS, J., post, p. 500 U. S. 220 , and O'CONNOR, J., filed dissenting opinions, post, p. 500 U. S. 223 . Page 500 U. S. 177 CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. These cases concern a facial challenge to Department of Health and Human Services (HHS) regulations which limit Page 500 U. S. 178 the ability of Title X fund recipients to engage in abortion-related activities. The United States Court of Appeals for the Second Circuit upheld the regulations, finding them to be a permissible construction of the statute, as well as consistent with the First and Fifth Amendments of the Constitution. We granted certiorari to resolve a split among the Courts of Appeals. [ Footnote 1 ] We affirm. I A In 1970, Congress enacted Title X of the Public Health Service Act (Act), 84 stat. 1506, as amended, 42 U.S.C. §§ 300-300a6, which provides federal funding for family planning services. The Act authorizes the Secretary to "make grants to and enter into contracts with public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family Page 500 U. S. 179 planning methods and services." 42 U.S.C. § 300(a). Grants and contracts under Title X must "be made in accordance with such regulations as the Secretary may promulgate." 42 U.S.C. § 300a-4. Section 1008 of the Act, however, provides that "[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning." 42 U.S.C. § 300a-6. That restriction was intended to ensure that Title X funds would "be used only to support preventive family planning services, population research, infertility services, and other related medical, informational, and educational activities." H.R. Conf.Rep. No. 91-1667, p. 8 (1970), U.S.Code Cong. & Admin.News 1970, pp. 5068, 5081-82. In 1988, the Secretary promulgated new regulations designed to provide "'clear and operational guidance' to grantees about how to preserve the distinction between Title X programs and abortion as a method of family planning." 53 Fed.Reg. 29232924 (1988). The regulations clarify, through the definition of the term "family planning," that Congress intended Title X funds "to be used only to support preventive family planning services." H.R.Conf. Rep. No. 91-1667, p. 8, U.S.Code Cong. & Admin.News 1970, p. 5081 (emphasis added). Accordingly, Title X services are limited to "preconceptual counseling, education, and general reproductive health care," and expressly exclude "pregnancy care (including obstetric or prenatal care)." 42 CFR § 59.2 (1989). [ Footnote 2 ] The regulations "focus the emphasis of the Title X program on its traditional mission: the provision of preventive family planning services specifically designed to enable individuals to determine the number and spacing of their children, while clarifying that pregnant women must be referred to appropriate prenatal care services." 53 Fed.Reg. 2925 (1988). The regulations attach three principal conditions on the grant of federal funds for Title X projects. First, the regulations specify that a "Title X project may not provide counseling concerning the use of abortion as a method of family planning or provide referral for abortion as a method of family planning." 42 CFR 59.8(a)(1) (1989). Because Title X is limited to preconceptional services, the program does not furnish services related to childbirth. Only in the context of a referral out of the Title X program is a pregnant woman given transitional information. § 59.8(a)(2). Title X Page 500 U. S. 180 projects must refer every pregnant client "for appropriate prenatal and/or social services by furnishing a list of available providers that promote the welfare of the mother and the unborn child." Ibid. The list may not be used indirectly to encourage or promote abortion, "such as by weighing the list of referrals in favor of health care providers which perform abortions, by including on the list of referral providers health care providers whose principal business is the provision of abortions, by excluding available providers who do not provide abortions, or by 'steering' clients to providers who offer abortion as a method of family planning." § 59.8(a)(3). The Title X project is expressly prohibited from referring a pregnant woman to an abortion provider, even upon specific request. One permissible response to such an inquiry is that "the project does not consider abortion an appropriate method of family planning, and therefore does not counsel or refer for abortion." § 59.8(b)(5). Second, the regulations broadly prohibit a Title X project from engaging in activities that "encourage, promote or advocate abortion as a method of family planning." § 59.10(a). Forbidden activities include lobbying for legislation that would increase the availability of abortion as a method of family planning, developing or disseminating materials advocating abortion as a method of family planning, providing speakers to promote abortion as a method of family planning, using legal action to make abortion available in any way as a method of family planning, and paying dues to any group that advocates abortion as a method of family planning as a substantial part of its activities. Ibid. B Third, the regulations require that Title X projects be organized so that they are "physically and financially separate" from prohibited abortion activities. § 59.9. To be deemed physically and financially separate, "a Title X project must have an objective integrity and independence from prohibited activities. Mere bookkeeping separation of Title X funds from other monies is not sufficient." Ibid. The regulations Page 500 U. S. 181 provide a list of nonexclusive factors for the Secretary to consider in conducting a case-by-case determination of objective integrity and independence, such as the existence of separate accounting records and separate personnel, and the degree of physical separation of the project from facilities for prohibited activities. Ibid. Petitioners are Title X grantees and doctors who supervise Title X funds suing on behalf of themselves and their patients. Respondent is the Secretary of the Department of Health and Human Services. After the regulations had been promulgated, but before they had been applied, petitioners filed two separate actions, later consolidated, challenging the facial validity of the regulations and seeking declaratory and injunctive relief to prevent implementation of the regulations. Petitioners challenged the regulations on the grounds that they were not authorized by Title X and that they violate the First and Fifth Amendment rights of Title X clients and the First Amendment rights of Title X health providers. After initially granting the petitioners a preliminary injunction, the District Court rejected petitioners' statutory and constitutional challenges to the regulations and granted summary judgment in favor of the Secretary. New York v. Bowen, 690 F. Supp. 1261 (SDNY 1988). A panel of the Court of Appeals for the Second Circuit affirmed. 889 F.2d 401 (1989). Applying this Court's decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. , 467 U. S. 837 , 467 U. S. 842 -843 (1984), the Court of Appeals determined that the regulations were a permissible construction of the statute that legitimately effectuated Congressional intent. The court rejected as "highly strained," petitioners' contention that the plain language of § 1008 forbids Title X projects only from performing abortions. The court reasoned that "it would be wholly anomalous to read Section 1008 to mean that a program that merely counsels, but does not perform, abortions does not include abortion as a 'method of family planning.'" 889 F.2d at 407. "[T]he natural Page 500 U. S. 182 construction of . . . the term method of family planning' includes counseling concerning abortion." Ibid. The court found this construction consistent with the legislative history, and observed that "[a]ppellants' contrary view of the legislative history is based entirely on highly generalized statements about the expansive scope of the family planning services" that "do not specifically mention counseling concerning abortion as an intended service of Title X projects" and that "surely cannot be read to trump a section of the statute that specifically excludes it." Id. at 407-408. Turning to petitioners' constitutional challenges to the regulations, the Court of Appeals rejected petitioners' Fifth Amendment challenge. It held that the regulations do not impermissibly burden a woman's right to an abortion, because the "government may validly choose to favor childbirth over abortion and to implement that choice by funding medical services relating to childbirth but not those relating to abortion." Id. at 410. Finding that the prohibition on the performance of abortions upheld by the Court in Webster v. Reproductive Health Services, 492 U. S. 490 (1989), was "substantially greater in impact than the regulations challenged in the instant matter," 889 F.2d at 411, the court concluded that the regulations "create[d] no affirmative legal barriers to access to abortion." Ibid., citing Webster v. Reproductive Health Services. The court likewise found that the "Secretary's implementation of Congress's decision not to fund abortion counseling, referral or advocacy also does not, under applicable Supreme Court precedent, constitute a facial violation of the First Amendment rights of health care providers or of women." 889 F.2d at 412. The court explained that, under Regan v. Taxation With Representation of Wash., 461 U. S. 540 (1983), the government has no obligation to subsidize even the exercise of fundamental rights, including "speech rights." The court also held that the regulations do not violate the First Amendment by "condition[ing] receipt of a benefit on the Page 500 U. S. 183 relinquishment of constitutional rights," because Title X grantees and their employees "remain free to say whatever they wish about abortion outside the Title X project." 889 F.2d at 412. Finally, the court rejected petitioners' contention that the regulations "facially discriminate on the basis of the viewpoint of the speech involved." Id. at 414. II We begin by pointing out the posture of the cases before us. Petitioners are challenging the facial validity of the regulations. Thus, we are concerned only with the question whether, on their face, the regulations are both authorized by the Act, and can be construed in such a manner that they can be applied to a set of individuals without infringing upon constitutionally protected rights. Petitioners face a heavy burden in seeking to have the regulations invalidated as facially unconstitutional. "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that [the regulations] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render [them] wholly invalid." United States v. Salerno, 481 U. S. 739 , 481 U. S. 745 (1987). We turn first to petitioners' contention that the regulations exceed the Secretary's authority under Title X, and are arbitrary and capricious. We begin with an examination of the regulations concerning abortion counseling, referral, and advocacy, which every Court of Appeals has found to be authorized by the statute, and then turn to the "program integrity requirement," with respect to which the courts below have adopted conflicting positions. We then address petitioner's claim that the regulations must be struck down because they raise a substantial constitutional question. Page 500 U. S. 184 A We need not dwell on the plain language of the statute, because we agree with every court to have addressed the issue that the language is ambiguous. The language of § 1008 -- that "[n]one of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning" -- does not speak directly to the issues of counseling, referral, advocacy, or program integrity. If a statute is "silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron, 467 U.S. at 467 U. S. 842 -843. The Secretary's construction of Title X may not be disturbed as an abuse of discretion if it reflects a plausible construction of the plain language of the statute and does not otherwise conflict with Congress' expressed intent. Ibid. In determining whether a construction is permissible, "[t]he court need not conclude that the agency construction was the only one it could permissibly have adopted . . . or even the reading the court would have reached if the question initially had arisen in a judicial proceeding." Id. at 467 U. S. 843 , n. 11. Rather, substantial deference is accorded to the interpretation of the authorizing statute by the agency authorized with administering it. Id. at 467 U. S. 844 . The broad language of Title X plainly allows the Secretary's construction of the statute. By its own terms, § 1008 prohibits the use of Title X funds "in programs where abortion is a method of family planning." Title X does not define the term "method of family planning," nor does it enumerate what types of medical and counseling services are entitled to Title X funding. Based on the broad directives provided by Congress in Title X in general and § 1008 in particular, we are unable to say that the Secretary's construction of the prohibition in § 1008 to require a ban on counseling, referral, and advocacy within the Title X project is impermissible. Page 500 U. S. 185 The District Courts and Courts of Appeals that have examined the legislative history have all found, at least with regard to the Act's counseling, referral, and advocacy provisions, that the legislative history is ambiguous with respect to Congress' intent in enacting Title X and the prohibition of § 1008. Massachusetts v. Sullivan, 899 F.2d 53, 62 (CA1 1990) ("Congress has not addressed specifically the question of the scope of the abortion prohibition. The language of the statute and the legislative history can support either of the litigants' positions"); Planned Parenthood Federation of America v. Sullivan, 913 F.2d 1492, 1497 (CA10 1990) ("[T]he contemporaneous legislative history does not address whether clinics receiving Title X funds can engage in nondirective counseling including the abortion option and referrals"); New York v. Sullivan, 889 F.2d 401, 407 (CA2 1989) (case below) ("Nothing in the legislative history of Title X detracts" from the Secretary's construction of § 1008). We join these courts in holding that the legislative history is ambiguous, and fails to shed light on relevant congressional intent. At no time did Congress directly address the issues of abortion counseling, referral, or advocacy. The parties' attempts to characterize highly generalized, conflicting statements in the legislative history into accurate revelations of congressional intent are unavailing. [ Footnote 3 ] Page 500 U. S. 186 When we find, as we do here, that the legislative history is ambiguous and unenlightening on the matters with respect to which the regulations deal, we customarily defer to the expertise of the agency. Petitioners argue, however, that the regulations are entitled to little or no deference, because they "reverse a longstanding agency policy that permitted nondirective counseling and referral for abortion," Brief for Petitioners in No. 89-1392, p. 20, and thus represent a sharp beak from the Secretary's prior construction of the statute. Petitioners argue that the agency's prior consistent interpretation of Section 1008 to permit nondirective counseling and to encourage coordination with local and state family planning services is entitled to substantial weight. This Court has rejected the argument that an agency's interpretation "is not entitled to deference because it represents a sharp break with prior interpretations" of the statute in question. Chevron, 467 U.S. at 467 U. S. 862 . In Chevron, we held that a revised interpretation deserves deference because "[a]n initial agency interpretation is not instantly carved in stone," and "the agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis." Id. at 467 U. S. 863 -864. An agency is not required to " establish rules of conduct to last forever,'" Motor Vehicle Mfrs. Assn. of United States v. State Page 500 U. S. 187 Farm Mutual Automobile Ins. Co., 463 U. S. 29 , 463 U. S. 42 (1983), quoting American Trucking Assns., Inc. v. Atchinson, T. & S.F.R. Co., 387 U. S. 397 , 387 U. S. 416 (1967); NLRB v. Curtin Matheson Scientific, Inc., 494 U. S. 775 (1990), but rather "must be given ample latitude to `adapt [its] rules and policies to the demands of changing circumstances.'" Motor Vehicle Mfrs., supra, 463 U.S. at 463 U. S. 42 , quoting Permian Basin Area Rate Cases, 390 U. S. 747 , 390 U. S. 784 (1968). We find that the Secretary amply justified his change of interpretation with a "reasoned analysis." Motor Vehicle Mfrs., supra, 463 U.S. at 463 U. S. 42 . The Secretary explained that the regulations are a result of his determination, in the wake of the critical reports of the General Accounting Office (GAO) and the Office of the Inspector General (OIG), that prior policy failed to implement properly the statute and that it was necessary to provide "clear and operational guidance to grantees to preserve the distinction between Title X programs and abortion as a method of family planning." 53 Fed.Reg. 2923-2924 (1988). He also determined that the new regulations are more in keeping with the original intent of the statute, are justified by client experience under the prior policy, and are supported by a shift in attitude against the "elimination of unborn children by abortion." We believe that these justifications are sufficient to support the Secretary's revised approach. Having concluded that the plain language and legislative history are ambiguous as to Congress' intent in enacting Title X, we must defer to the Secretary's permissible construction of the statute. B We turn next to the "program integrity" requirements embodied at § 59.9 of the regulations, mandating separate facilities, personnel, and records. These requirements are not inconsistent with the plain language of Title X. Petitioners contend, however, that they are based on an impermissible construction of the statute because they frustrate the clearly Page 500 U. S. 188 expressed intent of Congress that Title X programs be an integral part of a broader, comprehensive, health care system. They argue that this integration is impermissibly burdened because the efficient use of nonTitle X funds by Title X grantees will be adversely affected by the regulations. The Secretary defends the separation requirements of § 59.9 on the grounds that they are necessary to assure that Title X grantees apply federal funds only to federally authorized purposes and that grantees avoid creating the appearance that the government is supporting abortion-related activities. The program integrity regulations were promulgated in direct response to the observations in the GAO and OIG reports that, "[b]ecause the distinction between the recipient's title X and other activities may not be easily recognized, the public can get the impression that Federal funds are being improperly used for abortion activities." App. 85. The Secretary concluded that: "[M]eeting the requirement of section 1008 mandates that Title X programs be organized so that they are physically and financially separate from other activities which are prohibited from inclusion in a Title X program. Having a program that is separate from such activities is a necessary predicate to any determination that abortion is not being included as a method of family planning in the Title X program." 53 Fed.Reg. 2940 (1988). The Secretary further argues that the separation requirements do not represent a deviation from past policy because the agency has consistently taken the position that § 1008 requires some degree of physical and financial separation between Title X projects and abortion-related activities. We agree that the program integrity requirements are based on a permissible construction of the statute, and are not inconsistent with Congressional intent. As noted, the legislative history is clear about very little, and program integrity is no exception. The statements relied upon by the petitioners Page 500 U. S. 189 to infer such an intent are highly generalized, and do not directly address the scope of § 1008. For example, the cornerstone of the conclusion that, in Title X, Congress intended a comprehensive, integrated system of family planning services is the statement in the statute requiring state health authorities applying for Title X funds to submit "a state plan for a coordinated and comprehensive program of family planning services." § 1002. This statement is, on its face, ambiguous as to Congress' intent in enacting Title X and the prohibition of § 1008. Placed in context, the statement merely requires that a State health authority submit a plan for a "coordinated and comprehensive program of family planning services" in order to be eligible for Title X funds. By its own terms, the language evinces Congress' intent to place a duty on state entities seeking federal funds; it does not speak either to an overall view of family planning services or to the Secretary's responsibility for implementing the statute. Likewise, the statement in the original House Report on Title X that the Act was "not intended to interfere with or limit programs conducted in accordance with State or local laws" and supported through non-Title X funds is equally unclear. H.R. Conf.Rep. No. 91-1667, pp. 8-9 (1970), U.S.Code Cong. & Admin.News 1970, p. 5082. This language directly follows the statement that it is the "intent of both Houses that the funds authorized under this legislation be used only to support preventive family planning services. . . . The conferees have adopted the language contained in section 1008, which prohibits the use of such funds for abortion, in order to make this intent clear." Id. at 8, U.S.Code Cong. & Admin.News 1970, pp. 5081-82. When placed in context and read in light of the express prohibition of § 1008, the statements fall short of evidencing a congressional intent that would render the Secretary's interpretation of the statute impermissible. While the petitioners' interpretation of the legislative history may be a permissible one, it is by no means the only one, and it is certainly not the one found by the Secretary. It is well Page 500 U. S. 190 established that legislative history which does not demonstrate a clear and certain congressional intent cannot form the basis for enjoining the regulations. See Motor Vehicle Mfrs., 463 U.S. at 463 U. S. 42 . The Secretary based the need for the separation requirements "squarely on the congressional intent that abortion not be a part of a Title X funded program." 52 Fed.Reg. 33212 (1987). Indeed, if one thing is clear from the legislative history, it is that Congress intended that Title X funds be kept separate and distinct from abortion-related activities. It is undisputed that Title X was intended to provide primarily prepregnancy preventive services. Certainly the Secretary's interpretation of the statute that separate facilities are necessary, especially in light of the express prohibition of § 1008, cannot be judged unreasonable. Accordingly, we defer to the Secretary's reasoned determination that the program integrity requirements are necessary to implement the prohibition. Petitioners also contend that the regulations must be invalidated because they raise serious questions of constitutional law. They rely on Edward J. Debartolo Corp. v. Florida Gulf Coast Building and Construction Trades Council, 485 U. S. 568 (1988), and NLRB v. Catholic Bishop of Chicago, 440 U. S. 490 (1979), which hold that "an Act of Congress ought not to be construed to violate the Constitution if any other possible construction remains available." Id. at 440 U. S. 500 . Under this canon of statutory construction, "[t]he elementary rule is that every reasonable construction must be resorted to in order to save a statute from unconstitutionality." Debartolo Corp., supra, 485 U.S. at 485 U. S. 575 (emphasis added) quoting Hooper v. California, 155 U. S. 648 , 155 U. S. 657 (1895). The principle enunciated in Hooper v. California, supra, and subsequent cases is a categorical one: "as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act." Blodgett v. Holden, 275 U. S. 142 , 275 U. S. 148 (1927) (opinion of Holmes, J.). This principle Page 500 U. S. 191 is based at least in part on the fact that a decision to declare an act of Congress unconstitutional "is the gravest and most delicate duty that this Court is called on to perform." Id. Following Hooper, supra, cases such as United States v. Delaware and Hudson Co., 213 U. S. 366 , 213 U. S. 408 , and United States v. Jin Fuey Moy, 241 U. S. 394 , 241 U. S. 401 , developed the corollary doctrine that "[a] statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score." Jin Fuey Moy, supra, at 9241 U.S. 401401. This canon is followed out of respect for Congress, which we assume legislates in the light of constitutional limitations. FTC v. American Tobacco Co., 264 U. S. 298 , 264 U. S. 305 -307 (1924). It is qualified by the proposition that "avoidance of a difficulty will not be pressed to the point of disingenuous evasion." Moore Ice Cream Co. v. Rose, 289 U. S. 373 , 289 U. S. 379 (1933). Here Congress forbade the use of appropriated funds in programs where abortion is a method of family planning. It authorized the Secretary to promulgate regulations implementing this provision. The extensive litigation regarding governmental restrictions on abortion since our decision in Roe v. Wade, 410 U. S. 113 (1973), suggests that it was likely that any set of regulations promulgated by the Secretary -- other than the ones in force prior to 1988 and found by him to be relatively toothless and ineffectual -- would be challenged on constitutional grounds. While we do not think that the constitutional arguments made by petitioners in this case are without some force, in 500 U. S. infra, we hold that they do not carry the day. Applying the canon of construction under discussion as best we can, we hold that the regulations promulgated by the Secretary do not raise the sort of "grave and doubtful constitutional questions," Delaware and Hudson Co., supra, 213 U.S. at 213 U. S. 408 , that would lead us to assume Congress did not intend to authorize their issuance. Therefore, we need not invalidate the regulations in order to save the statute from unconstitutionality. Page 500 U. S. 192 III Petitioners contend that the regulations violate the First Amendment by impermissibly discriminating based on viewpoint because they prohibit "all discussion about abortion as a lawful option -- including counseling, referral, and the provision of neutral and accurate information about ending a pregnancy -- while compelling the clinic or counselor to provide information that promotes continuing a pregnancy to term." Brief for Petitioners in No. 891391, p. 11. They assert that the regulations violate the "free speech rights of private health care organizations that receive Title X funds, of their staff, and of their patients" by impermissibly imposing "viewpoint-discriminatory conditions on government subsidies," and thus penaliz[e] speech funded with non-Title X monies. Id. at 13, 14, 24. Because "Title X continues to fund speech ancillary to pregnancy testing in a manner that is not evenhanded with respect to views and information about abortion, it invidiously discriminates on the basis of viewpoint." Id. at 18. Relying on Regan v. Taxation With Representation of Wash. and Arkansas Writers Project, Inc. v. Ragland, 481 U. S. 221 , 481 U. S. 234 (1987), petitioners also assert that, while the Government may place certain conditions on the receipt of federal subsidies, it may not "discriminate invidiously in its subsidies in such a way as to ai[m] at the suppression of dangerous ideas.'" Regan, supra, 461 U.S. at 461 U. S. 548 (quoting Cammarano v. United States, 358 U. S. 498 , 358 U. S. 513 (1959)). There is no question but that the statutory prohibition contained in § 1008 is constitutional. In Maher v. Roe, supra, we upheld a state welfare regulation under which Medicaid recipients received payments for services related to childbirth, but not for nontherapeutic abortions. The Court rejected the claim that this unequal subsidization worked a violation of the Constitution. We held that the government may "make a value judgment favoring childbirth over abortion, and . . . implement that judgment by the allocation Page 500 U. S. 193 of public funds." Id. 432 U.S. at 432 U. S. 474 . Here the Government is exercising the authority it possesses under Maher and McRae to subsidize family planning services which will lead to conception and childbirth, and declining to "promote or encourage abortion." The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternate program which seeks to deal with the problem in another way. In so doing, the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other. "[A] legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right." Regan, supra, 461 U.S. at 461 U. S. 549 . See also Buckley v. Valeo, 424 U. S. 1 (1976); Cammarano v. United States, supra. "A refusal to fund protected activity, without more, cannot be equated with the imposition of a penalty' on that activity." McRae, 448 U.S. at 448 U. S. 317 , n.19. "There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy." Maher, 432 U.S. at 432 U. S. 475 . The challenged regulations implement the statutory prohibition by prohibiting counseling, referral, and the provision of information regarding abortion as a method of family planning. They are designed to ensure that the limits of the federal program are observed. The Title X program is designed not for prenatal care, but to encourage family planning. A doctor who wished to offer prenatal care to a project patient who became pregnant could properly be prohibited from doing so because such service is outside the scope of the federally funded program. The regulations prohibiting abortion counseling and referral are of the same ilk; "no funds appropriated for the project may be used in programs where abortion is a method of family planning," and a doctor employed by the project may be prohibited in Page 500 U. S. 194 the course of his project duties from counseling abortion or referring for abortion. This is not a case of the Government "suppressing a dangerous idea," but of a prohibition on a project grantee or its employees from engaging in activities outside of its scope. To hold that the Government unconstitutionally discriminates on the basis of viewpoint when it chooses to fund a program dedicated to advance certain permissible goals because the program, in advancing those goals, necessarily discourages alternate goals would render numerous government programs constitutionally suspect. When Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles, 22 U.S.C. § 4411(b), it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as Communism and Fascism. Petitioners' assertions ultimately boil down to the position that, if the government chooses to subsidize one protected right, it must subsidize analogous counterpart rights. But the Court has soundly rejected that proposition. Regan v. Taxation With Representation of Wash., supra; Maher v. Roe, supra; Harris v. McRae, supra. Within far broader limits than petitioners are willing to concede, when the government appropriates public funds to establish a program, it is entitled to define the limits of that program. We believe that petitioners' reliance upon our decision in Arkansas Writers Project, supra, is misplaced. That case involved a state sales tax which discriminated between magazines on the basis of their content. Relying on this fact, and on the fact that the tax "targets a small group within the press," contrary to our decision in Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U. S. 575 (1983), the Court held the tax invalid. But we have here not the case of a general law singling out a disfavored group on the basis of speech content, but a case of the Government refusing Page 500 U. S. 195 to fund activities, including speech, which are specifically excluded from the scope of the project funded. Petitioners rely heavily on their claim that the regulations would not, in the circumstance of a medical emergency, permit a Title X project to refer a woman whose pregnancy places her life in imminent peril to a provider of abortions or abortion-related services. This case, of course, involves only a facial challenge to the regulations, and we do not have before us any application by the Secretary to a specific fact situation. On their face, we do not read the regulations to bar abortion referral or counseling in such circumstances. Abortion counseling as a "method of family planning" is prohibited, and it does not seem that a medically necessitated abortion in such circumstances would be the equivalent of its use as a "method of family planning." Neither § 1008 nor the specific restrictions of the regulations would apply. Moreover, the regulations themselves contemplate that a Title X project would be permitted to engage in otherwise prohibited abortion-related activity in such circumstances. Section 59.8(a)(2) provides a specific exemption for emergency care, and requires Title X recipients "to refer the client immediately to an appropriate provider of emergency medical services." 42 CFR 59.8(a)(2) (1989). Section 59.5(b)(1) also requires Title X projects to provide "necessary referral to other medical facilities when medically indicated." [ Footnote 4 ] Page 500 U. S. 196 Petitioners also contend that the restrictions on the subsidization of abortion-related speech contained in the regulations are impermissible because they condition the receipt of a benefit, in this case Title X funding, on the relinquishment of a constitutional right, the right to engage in abortion advocacy and counseling. Relying on Perry v. Sindermann, 408 U. S. 593 , 408 U. S. 597 (1972), and FCC v. League of Women Voters of Cal., 468 U. S. 364 (1984), petitioners argue that, "even though the government may deny [a] . . . benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests -- especially, his interest in freedom of speech." Perry, supra, 408 U.S. at 408 U. S. 597 . Petitioners' reliance on these cases is unavailing, however, because here the government is not denying a benefit to anyone, but is instead simply insisting that public funds be spent for the purposes for which they were authorized. The Secretary's regulations do not force the Title X grantee to give up abortion-related speech; they merely require that the grantee keep such activities separate and distinct from Title X activities. Title X expressly distinguishes between a Title X grantee and a Title X project. The grantee, which normally is a health care organization, may receive funds from a variety of sources for a variety of purposes. Brief for Petitioners in No. 89-1391, pp. 3, n. 5, 13. The grantee receives Title X funds, however, for the specific and limited purpose of establishing and operating a Title X project. 42 U.S.C. § 300(a). The regulations govern the scope of the Title X project's activities, and leave the grantee unfettered in its other activities. The Title X grantee can continue to perform abortions, provide abortion-related services, and engage in abortion advocacy; it simply is required to conduct those activities through programs that are separate and independent from the project that receives Title X funds. 42 CFR 59.9 (1989). Page 500 U. S. 197 In contrast, our "unconstitutional conditions" cases involve situations in which the government has placed a condition on the recipient of the subsidy, rather that on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program. In FCC v. League of Women Voters of Cal., we invalidated a federal law providing that noncommercial television and radio stations that receive federal grants may not "engage in editorializing." Under that law, a recipient of federal funds was "barred absolutely from all editorializing," because it "is not able to segregate its activities according to the source of its funding," and thus "has no way of limiting the use of its federal funds to all noneditorializing activities." The effect of the law was that "a noncommercial educational station that receives only 1% of its overall income from [federal] grants is barred absolutely from all editorializing" and "barred from using even wholly private funds to finance its editorial activity." 468 U.S. at 468 U. S. 400 . We expressly recognized, however, that were Congress to permit the recipient stations to "establish affiliate' organizations which could then use the station's facilities to editorialize with nonfederal funds, such a statutory mechanism would plainly be valid." Ibid. Such a scheme would permit the station "to make known its views on matters of public importance through its nonfederally funded, editorializing affiliate without losing federal grants for its noneditorializing broadcast activities." Ibid. Similarly, in Regan, we held that Congress could, in the exercise of its spending power, reasonably refuse to subsidize the lobbying activities of tax-exempt charitable organizations by prohibiting such organizations from using tax-deductible contributions to support their lobbying efforts. In so holding, we explained that such organizations remained free "to receive deductible contributions to support . . . nonlobbying activit[ies]." 461 U.S. at 461 U. S. 545 . Thus, a charitable organization could create, under § 501(c)(3) of the Internal Page 500 U. S. 198 Revenue Code of 1954, 26 U.S.C. § 501(c)(3), an affiliate to conduct its nonlobbying activities using tax-deductible contributions, and at the same time establish, under § 501(c)(4), a separate affiliate to pursue its lobbying efforts without such contributions. Regan, supra, at 461 U. S. 544 . Given that alternative, the Court concluded that "Congress has not infringed any First Amendment rights or regulated any First Amendment activity[; it] has simply chosen not to pay for [appellee's] lobbying." Id. at 461 U. S. 546 . We also noted that appellee "would, of course, have to ensure that th § 501(c)(3) organization did not subsidize the § 501(c)(4) organization; otherwise, public funds might be spent on an activity Congress chose not to subsidize." Ibid. The condition that federal funds will be used only to further the purposes of a grant does not violate constitutional rights. "Congress could, for example, grant funds to an organization dedicated to combating teenage drug abuse, but condition the grant by providing that none of the money received from Congress should be used to lobby state legislatures." See id. at 461 U. S. 548 . By requiring that the Title X grantee engage in abortion-related activity separately from activity receiving federal funding, Congress has, consistent with our teachings in League of Women Voters and Regan, not denied it the right to engage in abortion-related activities. Congress has merely refused to fund such activities out of the public fisc, and the Secretary has simply required a certain degree of separation from the Title X project in order to ensure the integrity of the federally funded program. The same principles apply to petitioners' claim that the regulations abridge the free speech rights of the grantee's staff. Individuals who are voluntarily employed for a Title X project must perform their duties in accordance with the regulation's restrictions on abortion counseling and referral. The employees remain free, however, to pursue abortion-related activities when they are not acting under the auspices of the Title X project. The regulations, which govern solely Page 500 U. S. 199 the scope of the Title X project's activities, do not in any way restrict the activities of those persons acting as private individuals. The employees' freedom of expression is limited during the time that they actually work for the project, but this limitation is a consequence of their decision to accept employment in a project, the scope of which is permissibly restricted by the funding authority. [ Footnote 5 ] This is not to suggest that funding by the Government, even when coupled with the freedom of the fund recipients to speak outside the scope of the Government-funded project, is invariably sufficient to justify government control over the content of expression. For example, this Court has recognized Page 500 U. S. 200 that the existence of a Government "subsidy," in the form of Government-owned property, does not justify the restriction of speech in areas that have "been traditionally open to the public for expressive activity," United States v. Kokinda, 497 U. S. 720 , 497 U. S. 726 (1990); Hague v. CIO, 307 U. S. 496 , 307 U. S. 515 (1939) (opinion of Roberts, J.), or have been "expressly dedicated to speech activity." Kokinda, supra, at 497 U. S. 726 ; Perry Education Assn. v. Perry Local Educators' Assn., 460 U. S. 37 , 460 U. S. 45 (1983). Similarly, we have recognized that the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government's ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment, Keyishian v. Board of Regents, 385 U. S. 589 , 385 U. S. 603 , 385 U. S. 605 -606 (1967). It could be argued by analogy that traditional relationships such as that between doctor and patient should enjoy protection under the First Amendment from government regulation, even when subsidized by the Government. We need not resolve that question here, however, because the Title X program regulations do not significantly impinge upon the doctorpatient relationship. Nothing in them requires a doctor to represent as his own any opinion that he does not in fact hold. Nor is the doctor-patient relationship established by the Title X program sufficiently all-encompassing so as to justify an expectation on the part of the patient of comprehensive medical advice. The program does not provide post-conception medical care, and therefore a doctor's silence with regard to abortion cannot reasonably be thought to mislead a client into thinking that the doctor does not consider abortion an appropriate option for her. The doctor is always free to make clear that advice regarding abortion is simply beyond the scope of the program. In these circumstances, the general rule that the Government may choose not to subsidize speech applies with full force. Page 500 U. S. 201 IV We turn now to petitioners' argument that the regulations violate a woman's Fifth Amendment right to choose whether to terminate her pregnancy. We recently reaffirmed the long-recognized principle that "'the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.'" Webster, 492 U.S. at 492 U. S. 507 , quoting DeShaney v. Winnebago County Dept. of Social Services, 489 U. S. 189 , 489 U. S. 196 (1989). The Government has no constitutional duty to subsidize an activity merely because the activity is constitutionally protected, and may validly choose to fund childbirth over abortion and " implement that judgment by the allocation of public funds'" for medical services relating to childbirth, but not to those relating to abortion. Webster, supra, 492 U.S. at 492 U. S. 510 (citation omitted). The Government has no affirmative duty to "commit any resources to facilitating abortions," Webster, 492 U.S. at 492 U. S. 511 , and its decision to fund childbirth but not abortion "places no governmental obstacle in the path of a woman who chooses to terminate her pregnancy, but rather, by means of unequal subsidization of abortion and other medical services, encourages alternative activity deemed in the public interest." McRae, 448 U.S. at 448 U. S. 315 . That the regulations do not impermissibly burden a woman's Fifth Amendment rights is evident from the line of cases beginning with Maher and McRae and culminating in our most recent decision in Webster. Just as Congress' refusal to fund abortions in McRae left "an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all," 448 U.S. at 448 U. S. 317 , and "Missouri's refusal to allow public employees to perform abortions in public hospitals leaves a pregnant woman with the same choices as if the State had chosen not Page 500 U. S. 202 to operate any public hospitals," Webster, supra, at 492 U. S. 509 , Congress' refusal to fund abortion counseling and advocacy leaves a pregnant woman with the same choices as if the government had chosen not to fund family planning services at all. The difficulty that a woman encounters when a Title X project does not provide abortion counseling or referral leaves her in no different position than she would have been if the government had not enacted Title X. In Webster, we stated that, "[h]aving held that the State's refusal [in Maher ] to fund abortions does not violate Roe v. Wade, it strains logic to reach a contrary result for the use of public facilities and employees." 492 U.S. at 492 U. S. 509 -510. It similarly would strain logic, in light of the more extreme restrictions in those cases, to find that the mere decision to exclude abortion-related services from a federally funded pre-conceptual family planning program, is unconstitutional. Petitioners also argue that by impermissibly infringing on the doctor/patient relationship and depriving a Title X client of information concerning abortion as a method of family planning, the regulations violate a woman's Fifth Amendment right to medical self-determination and to make informed medical decisions free of government-imposed harm. They argue that, under our decisions in Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 (1983), and Thornburg v. American College of Obstetricians and Gynecologists, 476 U. S. 747 (1986), the government cannot interfere with a woman's right to make an informed and voluntary choice by placing restrictions on the patient/doctor dialogue. In Akron, we invalidated a city ordinance requiring all physicians to make specified statements to the patient prior to performing an abortion in order to ensure that the woman's consent was "truly informed." 462 U.S. at 462 U. S. 423 . Similarly, in Thornburg, we struck down a state statute mandating that a list of agencies offering alternatives to abortion and a description of fetal development be provided to every woman considering terminating her pregnancy through an Page 500 U. S. 203 abortion. Critical to our decisions in Akron and Thornburg to invalidate a governmental intrusion into the patient/doctor dialogue was the fact that the laws in both cases required all doctors within their respective jurisdictions to provide all pregnant patients contemplating an abortion a litany of information, regardless of whether the patient sought the information or whether the doctor thought the information necessary to the patient's decision. Under the Secretary's regulations, however, a doctor's ability to provide, and a woman's right to receive, information concerning abortion and abortion-related services outside the context of the Title X project remains unfettered. It would undoubtedly be easier for a woman seeking an abortion if she could receive information about abortion from a Title X project, but the Constitution does not require that the Government distort the scope of its mandated program in order to provide that information. Petitioners contend, however, that most Title X clients are effectively precluded by indigency and poverty from seeing a health care provider who will provide abortion-related services. But once again, even these Title X clients are in no worse position than if Congress had never enacted Title X. "The financial constraints that restrict an indigent woman's ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortion, but rather of her indigency." McRae, supra, 448 U.S. at 448 U. S. 316 . The Secretary's regulations are a permissible construction of Title X, and do not violate either the First or Fifth Amendments to the Constitution. Accordingly, the judgment of the Court of Appeals is Affirmed. [ Footnote 1 ] Both the First Circuit and the Tenth Circuit have invalidated the regulations, primarily on constitutional grounds. See Massachusetts v. Secretary of Health and Human Services, 899 F.2d 53 (CA1 1990); Planned Parenthood Federation of America v. Sullivan, 913 F.2d 1492 (CA10 1990). [ Footnote 2 ] "Most clients of title X-sponsored clinics are not pregnant, and generally receive only physical examinations, education on contraceptive methods, and services related to birth control." General Accounting Office Report, App. at 95. [ Footnote 3 ] For instance, the Secretary relies on the following passage of the House Report as evidence that the regulations are consistent with legislative intent: "It is, and has been, the intent of both Houses that the funds authorized under this legislation be used only to support preventive family planning services, population research, infertility services, and other related medical, informational, and educational activities. The conferees have adopted the language contained in section 1008, which prohibits the use of such funds for abortion, in order to make this intent clear." H.R.Conf.Rep. No. 91-1667, p. 8 (1970), U.S.Code Cong.Admin.News 1970, pp. 5081-82. Petitioners, however, point to language in the statement of purpose in the House Report preceding the passage of Title X stressing the importance of supplying both family planning information and a full range of family planning information, and of developing a comprehensive and coordinated program. Petitioners also rely on the Senate Report which states: "The committee does not view family planning as merely a euphemism for birth control. It is properly a part of comprehensive health care, and should consist of much more than the dispensation of contraceptive devices. . . . [A] successful family planning program must contain . . . [m]edical services, including consultation examination, prescription, and continuing supervision, supplies, instruction, and referral to other medical services as needed." S.Rep. No. 91-1004, p. 10 (1970). These directly conflicting statements of legislative intent demonstrate amply the inadequacies of the "traditional tools of statutory construction," Immigration and Naturalization Service v. Cardoza-Fonseca , 480 U.S. [421] at 480 U. S. 446 -447, in resolving the issue before us. [ Footnote 4 ] We also find that, on their face, the regulations are narrowly tailored to fit Congress' intent in Title X that federal funds not be used to "promote or advocate" abortion as a "method of family planning." The regulations are designed to ensure compliance with the prohibition of § 1008 that none of the funds appropriated under Title X be used in a program where abortion is a method of family planning. We have recognized that Congress' power to allocate funds for public purposes includes an ancillary power to ensure that those funds are properly applied to the prescribed use. See South Dakota v. Dole, 483 U. S. 203 , 483 U. S. 207 -209 (1987) (upholding against Tenth Amendment challenge requirement that States raise drinking age as condition to receipt of federal highway funds); Buckley v. Valeo, 424 U. S. 1 , 424 U. S. 99 (1976). [ Footnote 5 ] Petitioners also contend that the regulations violate the First Amendment by penalizing speech funded with non-Title X monies. They argue that, since Title X requires that grant recipients contribute to the financing of Title X projects through the use of matching funds and grant-related income, the regulation's restrictions on abortion counseling and advocacy penalize privately funded speech. We find this argument flawed for several reasons. First, Title X subsidies are just that, subsidies. The recipient is in no way compelled to operate a Title X project; to avoid the force of the regulations, it can simply decline the subsidy. See Grove City College v. Bell, 465 U. S. 555 , 465 U. S. 575 (1984) (petitioner's First Amendment rights not violated, because it "may terminate its participation in the [federal] program, and thus avoid the requirements of [the federal program]"). By accepting Title X funds, a recipient voluntarily consents to any restrictions placed on any matching funds or grant-related income. Potential grant recipients can choose between accepting Title X funds -- subject to the Government's conditions that they provide matching funds and forgo abortion counseling and referral in the Title X project -- or declining the subsidy and financing their own unsubsidized program. We have never held that the Government violates the First Amendment simply by offering that choice. Second, the Secretary's regulations apply only to Title X programs. A recipient is therefore able to "limi[t] the use of its federal funds to [Title X] activities." FCC v. League of Women Voters of Cal., 468 U. S. 364 , at 468 U. S. 400 (1984). It is in no way "barred from using even wholly private funds to finance" its pro-abortion activities outside the Title X program. Ibid. The regulations are limited to Title X funds; the recipient remains free to use private, non-Title X funds to finance abortion-related activities. JUSTICE BLACKMUN, with whom JUSTICE MARSHALL joins, with whom JUSTICE STEVENS joins as to Parts II and Page 500 U. S. 204 III, and with whom JUSTICE O'CONNOR joins as to Part I, dissenting. Casting aside established principles of statutory construction and administrative jurisprudence, the majority in these cases today unnecessarily passes upon important questions of constitutional law. In so doing, the Court, for the first time, upholds viewpoint-based suppression of speech solely because it is imposed on those dependent upon the Government for economic support. Under essentially the same rationale, the majority upholds direct regulation of dialogue between a pregnant woman and her physician when that regulation has both the purpose and the effect of manipulating her decision as to the continuance of her pregnancy. I conclude that the Secretary's regulation of referral, advocacy, and counseling activities exceeds his statutory authority, and also that the Regulations violate the First and Fifth Amendments of our Constitution. Accordingly, I dissent, and would reverse the divided-vote judgment of the Court of Appeals. I The majority does not dispute that "[f]ederal statutes are to be so construed as to avoid serious doubt of their constitutionality." Machinists v. Street, 367 U. S. 740 , 367 U. S. 749 (1961). See also Hooper v. California, 155 U. S. 648 , 155 U. S. 657 (1895); Crowell v. Benson, 285 U. S. 22 , 285 U. S. 62 (1932); United States v. Security Industrial Bank, 459 U. S. 70 , 459 U. S. 78 (1982). Nor does the majority deny that this principle is fully applicable to cases such as the instant one, in which a plausible but constitutionally suspect statutory interpretation is embodied in an administrative regulation. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U. S. 568 , 485 U. S. 575 (1988); NLRB v. Catholic Bishop of Chicago, 440 U. S. 490 (1979); Kent v. Dulles, 357 U. S. 116 , 357 U. S. 129 -130 (1958). Rather, in its zeal to address the constitutional issues, the majority sidesteps this established canon of construction with the feeble excuse that the challenged Page 500 U. S. 205 Regulations "do not raise the sort of 'grave and doubtful constitutional questions,' . . . that would lead us to assume Congress did not intend to authorize their issuance." Ante at 500 U. S. 191 , quoting United States v. Delaware and Hudson Co., 213 U. S. 366 , 213 U. S. 408 (1909). This facile response to the intractable problem the Court addresses today is disingenuous, at best. Whether or not one believes that these Regulations are valid, it avoids reality to contend that they do not give rise to serious constitutional questions. The canon is applicable to this case not because "it was likely that [the Regulations] . . . would be challenged on constitutional grounds," ante at 500 U. S. 191 , but because the question squarely presented by the Regulations -- the extent to which the Government may attach an otherwise unconstitutional condition to the receipt of a public benefit -- implicates a troubled area of our jurisprudence in which a court ought not entangle itself unnecessarily. See, e.g., Epstein, Unconstitutional Conditions, State Power, and the Limits of Consent, 102 Harv.L.Rev. 4, 6 (1988) (describing this problem as "the basic structural issue that for over a hundred years has bedeviled courts and commentators alike. . . ."); Sullivan, Unconstitutional Conditions, 102 Harv.L.Rev. 1413, 1415-1416 (1989) (observing that this Court's unconstitutional conditions cases "seem a minefield to be traversed gingerly"). As is discussed in Parts II and III, infra, the Regulations impose viewpoint-based restrictions upon protected speech, and are aimed at a woman's decision whether to continue or terminate her pregnancy. In both respects, they implicate core constitutional values. This verity is evidenced by the fact that two of the three Courts of Appeals that have entertained challenges to the Regulations have invalidated them on constitutional grounds. See Massachusetts v. Secretary of Health and Human Services, 899 F.2d 53 (CA1 1990); Planned Parenthood Federation of America v. Sullivan, 913 F.2d 1492 (CA10 1990). Page 500 U. S. 206 A divided panel of the Tenth Circuit found the Regulations "fal[l] squarely within the prohibition in Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747 (1986), and City of Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 (1983), against intrusion into the advice a woman requests from or is given by her doctor." 913 F.2d at 1501. The First Circuit, en banc with one judge dissenting, found the Regulations to violate both the privacy rights of Title X patients and the First Amendment rights of Title X grantees. See also New York v. Sullivan, 889 F.2d 401, 415 (CA2 1989) (Kearse, J., dissenting in part). That a bare majority of this Court today reaches a different result does not change the fact that the constitutional questions raised by the Regulations are both grave and doubtful. Nor is this a case in which the statutory language itself requires us to address a constitutional question. Section 1008 of the Public Health Service Act, 84 Stat. 1508, 42 U.S.C. § 300a-6, provides simply: "None of the funds appropriated under this title shall be used in programs where abortion is a method of family planning." The majority concedes that this language "does not speak directly to the issues of counseling, referral, advocacy, or program integrity," ante at 500 U. S. 184 , and that "the legislative history is ambiguous" in this respect. Ante at 500 U. S. 186 . Consequently, the language of § 1008 easily sustains a constitutionally trouble-free interpretation. [ Footnote 2/1 ] Page 500 U. S. 207 Thus, this is not a situation in which "the intention of Congress is revealed too distinctly to permit us to ignore it because of mere misgivings as to power." Moore Ice Cream Co. v. Rose, 289 U. S. 373 , 289 U. S. 379 (1933). Indeed, it would appear that our duty to avoid passing unnecessarily upon important constitutional questions is strongest where, as here, the language of the statute is decidedly ambiguous. It is both logical and eminently prudent to assume that, when Congress intends to press the limits of constitutionality in its enactments, it will express that intent in explicit and unambiguous terms. See Sunstein, Law and Administration After Chevron, 90 Colum.L.Rev. 2071, 2113 (1990) ("It is thus implausible that, after Chevron, agency interpretations of ambiguous statutes will prevail even if the consequence of those interpretations is to produce invalidity or to raise serious constitutional doubts"). Because I conclude that a plainly constitutional construction of § 1008 "is not only fairly possible' but entirely reasonable," Machinists, 367 U.S. at 367 U. S. 750 , I would reverse the judgment of the Court of Appeals on this ground without deciding the constitutionality of the Secretary's Regulations. II I also strongly disagree with the majority's disposition of petitioners' constitutional claims, and because I feel that a response thereto is indicated, I move on to that issue. A Until today, the Court never has upheld viewpoint-based suppression of speech simply because that suppression was a condition upon the acceptance of public funds. Whatever may be the Government's power to condition the receipt of its largess upon the relinquishment of constitutional rights, it surely does not extend to a condition that suppresses the recipient's cherished freedom of speech based solely upon the content or viewpoint of that speech. Speiser v. Randall, 357 U. S. 513 , 357 U. S. 518 -519 (1958) ("To deny an exemption to claimants Page 500 U. S. 208 who engage in certain forms of speech is in effect to penalize them for such speech. . . . The denial is frankly aimed at the suppression of dangerous ideas,'" quoting American Communications Assn. v. Douds, 339 U. S. 382 , 339 U. S. 402 (1950)). See Cammarano v. United States, 358 U. S. 498 , 358 U. S. 513 (1959). See also League of Women Voters, 468 U.S. at 468 U. S. 407 (REHNQUIST, J., dissenting). Cf. Arkansas Writers' Project, Inc. v. Ragland, 481 U. S. 221 , 481 U. S. 237 (1987) (SCALIA, J., dissenting). This rule is a sound one, for, as the Court often has noted: ""A regulation of speech that is motivated by nothing more than a desire to curtail expression of a particular point of view on controversial issues of general interest is the purest example of a law . . . abridging the freedom of speech, or of the press.'"" League of Women Voters, 468 U.S. at 468 U. S. 383 -384, quoting Consolidated Edison Co. v. Public Service Comm'n of New York, 447 U. S. 530 , 447 U. S. 546 (1980) (STEVENS, J., concurring in judgment). "[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Department of Chicago v. Mosley, 408 U. S. 92 , 408 U. S. 95 (1972). Nothing in the Court's opinion in Regan v. Taxation With Representation of Washington, 461 U. S. 540 (1983), can be said to challenge this long-settled understanding. In Regan, the Court upheld a content-neutral provision of the Internal Revenue Code, 26 U.S.C. § 501(c)(3), that disallowed a particular tax-exempt status to organizations that "attempt[ed] to influence legislation," while affording such status to veterans' organizations irrespective of their lobbying activities. Finding the case controlled by Cammarano, supra, the Court explained: "The case would be different if Congress were to discriminate invidiously in its subsidies in such a way as to " ai[m] at the suppression of dangerous ideas.'" . . . We find no indication that the statute was intended to suppress any ideas or any demonstration that it has had that effect." 461 U.S. at 461 U. S. 548 , quoting Cammarano, 358 U.S. at Page 500 U. S. 209 358 U. S. 513 , in turn quoting Speiser, 357 U.S. at 357 U. S. 519 . The separate concurrence in Regan joined the Court's opinion precisely "[b]ecause 26 U.S.C. § 501's discrimination between veterans' organizations and charitable organizations is not based on the content of their speech." Id. 461 U.S. at 461 U. S. 551 . It cannot seriously be disputed that the counseling and referral provisions at issue in the present cases constitute content-based regulation of speech. Title X grantees may provide counseling and referral regarding any of a wide range of family planning and other topics, save abortion. Cf. Consolidated Edison Co., 447 U.S. at 447 U. S. 537 ("The First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic"); Boos v. Barry, 485 U. S. 312 , 485 U. S. 319 (1988) (opinion of O'CONNOR, J.) (same). The Regulations are also clearly viewpoint-based. While suppressing speech favorable to abortion with one hand, the Secretary compels anti-abortion speech with the other. For example, the Department of Health and Human Services' own description of the Regulations makes plain that "Title X projects are required to facilitate access to prenatal care and social services, including adoption services, that might be needed by the pregnant client to promote her wellbeing and that of her child, while making it abundantly clear that the project is not permitted to promote abortion by facilitating access to abortion through the referral process." 53 Fed.Reg. 2927 (1988) (emphasis added). Moreover, the Regulations command that a project refer for prenatal care each woman diagnosed as pregnant, irrespective of the woman's expressed desire to continue or terminate her pregnancy. 42 CFR § 59.8(a)(2) (1990). If a client asks directly about abortion, a Title X physician or counselor is required to say, in essence, that the project does not consider abortion to be an appropriate method of family planning. § 59.8(b)(4). Both requirements are antithetical to Page 500 U. S. 210 the First Amendment. See Wooley v. Maynard, 430 U. S. 705 , 430 U. S. 714 (1977). The Regulations pertaining to "advocacy" are even more explicitly viewpoint-based. These provide: "A Title X project may not encourage, promote or advocate abortion as a method of family planning." § 59.10 (emphasis added). They explain: "This requirement prohibits actions to assist women to obtain abortions or increase the availability or accessibility of abortion for family planning purposes." § 59.10(a) (emphasis added). The Regulations do not, however, proscribe or even regulate antiabortion advocacy. These are clearly restrictions aimed at the suppression of "dangerous ideas." Remarkably, the majority concludes that "the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of another." Ante at 500 U. S. 193 . But the majority's claim that the Regulations merely limit a Title X project's speech to preventive or preconceptional services, ibid., rings hollow in light of the broad range of non-preventive services that the Regulations authorize Title X projects to provide. [ Footnote 2/2 ] By refusing to fund those family planning projects that advocate abortion because they advocate abortion, the Government plainly has targeted a particular viewpoint. Cf. Ward v. Rock Against Racism, 491 U. S. 781 (1989). The majority's reliance on the fact that the Regulations pertain solely to funding decisions simply begs the question. Clearly, there are some bases upon which government may not rest its decision to fund or not to fund. For example, the Members of the majority surely would agree that government may not base its Page 500 U. S. 211 decision to support an activity upon considerations of race. See, e.g., Yick Wo v. Hopkins, 118 U. S. 356 (1886). As demonstrated above, our cases make clear that ideological viewpoint is a similarly repugnant ground upon which to base funding decisions. The majority's reliance upon Regan in this connection is also misplaced. That case stands for the proposition that government has no obligation to subsidize a private party's efforts to petition the legislature regarding its views. Thus, if the challenged Regulations were confined to nonideological limitations upon the use of Title X funds for lobbying activities, there would exist no violation of the First Amendment. The advocacy Regulations at issue here, however, are not limited to lobbying, but extend to all speech having the effect of encouraging, promoting, or advocating abortion as a method of family planning. § 59.10(a). Thus, in addition to their impermissible focus upon the viewpoint of regulated speech, the provisions intrude upon a wide range of communicative conduct, including the very words spoken to a woman by her physician. By manipulating the content of the doctor/patient dialogue, the Regulations upheld today force each of the petitioners "to be an instrument for fostering public adherence to an ideological point of view [he or she] finds unacceptable." Wooley v. Maynard, 430 U.S. at 430 U. S. 715 . This type of intrusive, ideologically based regulation of speech goes far beyond the narrow lobbying limitations approved in Regan, and cannot be justified simply because it is a condition upon the receipt of a governmental benefit. [ Footnote 2/3 ] Page 500 U. S. 212 B The Court concludes that the challenged Regulations do not violate the First Amendment rights of Title X staff members, because any limitation of the employees' freedom of expression is simply a consequence of their decision to accept employment at a federally funded project. Ante at 500 U. S. 198 -199. But it has never been sufficient to justify an otherwise unconstitutional condition upon public employment that the employee may escape the condition by relinquishing his or her job. It is beyond question "that a government may not require an individual to relinquish rights guaranteed him by the First Amendment as a condition of public employment." Abood v. Detroit Board of Education, 431 U. S. 209 , 431 U. S. 234 (1977), citing Elrod v. Burns, 427 U. S. 347 , 427 U. S. 357 -360 (1976), and cases cited therein; Perry v. Sindermann, 408 U. S. 593 (1972); Keyishian v. Board of Regents, 385 U. S. 589 (1967). Nearly two decades ago, it was said: "For at least a quarter-century, this Court has made clear that, even though a person has no 'right' to a valuable governmental benefit, and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a Page 500 U. S. 213 person on a basis that infringes his constitutionally protected interests -- especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would, in effect, be penalized and inhibited. This would allow the government to 'produce a result which [it] could not command directly.'" Perry v. Sindermann, 408 U.S. at 408 U. S. 597 , quoting Speiser v. Randall, 357 U. S. 513 , 357 U. S. 526 (1958). The majority attempts to circumvent this principle by emphasizing that Title X physicians and counselors "remain free . . . to pursue abortion-related activities when they are not acting under the auspices of the Title X project." Ante at 500 U. S. 198 . "The regulations," the majority explains, "do not in any way restrict the activities of those persons acting as private individuals." Ibid. Under the majority's reasoning, the First Amendment could be read to tolerate any governmental restriction upon an employee's speech so long as that restriction is limited to the funded workplace. This is a dangerous proposition, and one the Court has rightly rejected in the past. In Abood, it was no answer to the petitioners' claim of compelled speech as a condition upon public employment that their speech outside the workplace remained unregulated by the State. Nor was the public employee's First Amendment claim in Rankin v. McPherson, 483 U. S. 378 (1987), derogated because the communication that her employer sought to punish occurred during business hours. At the least, such conditions require courts to balance the speaker's interest in the message against those of government in preventing its dissemination. Id. at 483 U. S. 384 ; Pickering v. Board of Education, 391 U. S. 563 , 391 U. S. 568 (1968). In the cases at bar, the speaker's interest in the communication is both clear and vital. In addressing the family planning needs of their clients, the physicians and counselors who staff Title X projects seek to provide them with the full range of information and options regarding their health and reproductive freedom. Indeed, the legitimate expectations Page 500 U. S. 214 of the patient and the ethical responsibilities of the medical profession demand no less. "The patient's right of self-decision can be effectively exercised only if the patient possesses enough information to enable an intelligent choice. . . . The physician has an ethical obligation to help the patient make choices from among the therapeutic alternatives consistent with good medical practice." Current Opinions, the Council on Ethical and Judicial Affairs of the American Medical Association � 8.08 (1989). See also President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Making Health Care Decisions 70 (1982); American College of Obstetricians & Gynecologists, Standards for Obstetric-Gynecologic Services 62 (7th ed.1989). When a client becomes pregnant, the full range of therapeutic alternatives includes the abortion option, and Title X counselors' interest in providing this information is compelling. The Government's articulated interest in distorting the doctor/patient dialogue -- ensuring that federal funds are not spent for a purpose outside the scope of the program -- falls far short of that necessary to justify the suppression of truthful information and professional medical opinion regarding constitutionally protected conduct. [ Footnote 2/4 ] Moreover, the offending Regulation is not narrowly tailored to serve this interest. For example, the governmental interest at stake could be served by imposing rigorous bookkeeping standards to ensure financial separation or adopting content-neutral rules for the balanced dissemination of family planning and health information. See Massachusetts v. Secretary of Health & Human Services, 899 F.2d 53, 74 (CA1 1990), cert. pending, No. 89-1929. By failing to balance or even to consider the free speech interests claimed by Title X physicians against the Government's asserted interest in suppressing the speech, the Court falters in its duty to implement the protection Page 500 U. S. 215 that the First Amendment clearly provides for this important message. C Finally, it is of no small significance that the speech the Secretary would suppress is truthful information regarding constitutionally protected conduct of vital importance to the listener. One can imagine no legitimate governmental interest that might be served by suppressing such information. Concededly, the abortion debate is among the most divisive and contentious issues that our Nation has faced in recent years. "But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order." West Virginia Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 642 (1943). III By far the most disturbing aspect of today's ruling is the effect it will have on the Fifth Amendment rights of the women who, supposedly, are beneficiaries of Title X programs. The majority rejects petitioners' Fifth Amendment claims summarily. It relies primarily upon the decisions in Harris v. McRae, 448 U. S. 297 (1980), and Webster v. Reproductive Health Services, 492 U. S. 490 (1989). There were dissents in those cases, and we continue to believe that they were wrongly and unfortunately decided. Be that as it may, even if one accepts as valid the Court's theorizing in those cases, the majority's reasoning in the present cases is flawed. Until today, the Court has allowed to stand only those restrictions upon reproductive freedom that, while limiting the availability of abortion, have left intact a woman's ability to decide without coercion whether she will continue her pregnancy to term. Maher v. Roe, 432 U. S. 464 (1977), McRae, and Webster are all to this effect. Today's decision abandons that principle, and with disastrous results. Page 500 U. S. 216 Contrary to the majority's characterization, this is not a case in which individuals seek government aid in exercising their fundamental rights. The Fifth Amendment right asserted by petitioners is the right of a pregnant woman to be free from affirmative governmental interference in her decision. Roe v. Wade, 410 U. S. 113 (1973), and its progeny are not so much about a medical procedure as they are about a woman's fundamental right to self-determination. Those cases serve to vindicate the idea that "liberty," if it means anything, must entail freedom from governmental domination in making the most intimate and personal of decisions. See, e.g., Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 , 462 U. S. 444 (1983) (governmental interest in ensuring that pregnant women receive medically relevant information "will not justify abortion regulations designed to influence the woman's informed choice between abortion or childbirth"); Maher v. Roe, 432 U.S. at 432 U. S. 473 (noting that the Court's abortion cases "recognize a constitutionally protected interest in making certain kinds of important decisions' free from governmental compulsion," quoting Whalen v. Roe, 429 U. S. 589 , 429 U. S. 599 (1977)); see also Harris v. McRae, 448 U.S. at 448 U. S. 312 ; Thornburgh, 476 U.S. at 476 U. S. 759 ; Roe v. Wade, 410 U.S. at 410 U. S. 169 -170 (Stewart, J., concurring). By suppressing medically pertinent information and injecting a restrictive ideological message unrelated to considerations of maternal health, the Government places formidable obstacles in the path of Title X clients' freedom of choice and thereby violates their Fifth Amendment rights. It is crystal clear that the aim of the challenged provisions -- an aim the majority cannot escape noticing -- is not simply to ensure that federal funds are not used to perform abortions, but to "reduce the incidence of abortion." 42 CFR § 59.2 (1990) (in definition of "family planning"). As recounted above, the Regulations require Title X physicians and counselors to provide information pertaining only to childbirth, Page 500 U. S. 217 to refer a pregnant woman for prenatal care irrespective of her medical situation, and, upon direct inquiry, to respond that abortion is not an "appropriate method" of family planning. The undeniable message conveyed by this forced speech, and the one that the Title X client will draw from it, is that abortion nearly always is an improper medical option. Although her physician's words, in fact, are strictly controlled by the Government, and wholly unrelated to her particular medical situation, the Title X client will reasonably construe them as professional advice to forgo her right to obtain an abortion. As would most rational patients, many of these women will follow that perceived advice and carry their pregnancy to term, despite their needs to the contrary and despite the safety of the abortion procedure for the vast majority of them. Others, delayed by the Regulations' mandatory prenatal referral, will be prevented from acquiring abortions during the period in which the process is medically sound and constitutionally protected. In view of the inevitable effect of the Regulations, the majority's conclusion that "[t]he difficulty that a woman encounters when a Title X project does not provide abortion counseling or referral leaves her in no different position than she would have been if the government had not enacted Title X," ante at 500 U. S. 202 , is insensitive and contrary to common human experience. Both the purpose and result of the challenged Regulations is to deny women the ability voluntarily to decide their procreative destiny. For these women, the Government will have obliterated the freedom to choose as surely as if it had banned abortions outright. The denial of this freedom is not a consequence of poverty, but of the Government's ill-intentioned distortion of information it has chosen to provide. [ Footnote 2/5 ] Page 500 U. S. 218 The substantial obstacles to bodily self-determination that the Regulations impose are doubly offensive because they are effected by manipulating the very words spoken by physicians and counselors to their patients. In our society, the doctor/patient dialogue embodies a unique relationship of trust. The specialized nature of medical science and the emotional distress often attendant to health-related decisions requires that patients place their complete confidence, and often their very lives, in the hands of medical professionals. One seeks a physician's aid not only for medication or diagnosis, but also for guidance, professional judgment, and vital emotional support. Accordingly, each of us attaches profound importance and authority to the words of advice spoken by the physician. It is for this reason that we have guarded so jealously the doctor/patient dialogue from governmental intrusion. "[I]n Roe and subsequent cases, we have 'stressed repeatedly the central role of the physician, both in consulting with the woman about whether or not to have an abortion, and in determining how any abortion was to be carried out.'" Akron, 462 U.S. at 462 U. S. 447 quoting Colautti v. Franklin, 439 U. S. 379 , 439 U. S. 387 (1979). See also Thornburgh, 476 U.S. at 476 U. S. 763 . The majority's approval of the Secretary's Regulations flies in the face of our repeated warnings that regulations tending to "confine the attending physician in an undesired and uncomfortable straitjacket in the practice of his profession," cannot endure. Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52 , 428 U. S. 67 , n. 8 (1976). The majority attempts to distinguish our holdings in Akron and Thornburgh on the post hoc basis that the governmental Page 500 U. S. 219 intrusions into the doctor/patient dialogue invalidated in those cases applied to all physicians within a jurisdiction while the Regulations now before the Court pertain to the narrow class of healthcare professionals employed at Title X projects. Ante at 500 U. S. 202 . But the rights protected by the Constitution are personal rights. Loving v. Virginia, 388 U. S. 1 , 388 U. S. 12 (1967); Shelley v. Kraemer, 334 U. S. 1 , 334 U. S. 22 (1948). And for the individual woman, the deprivation of liberty by the Government is no less substantial because it affects few, rather than many. It cannot be that an otherwise unconstitutional infringement of choice is made lawful because it touches only some of the Nation's pregnant women, and not all of them. The manipulation of the doctor/patient dialogue achieved through the Secretary's Regulations is clearly an effort "to deter a woman from making a decision that, with her physician, is hers to make." Thornburgh, 476 U.S. at 476 U. S. 759 . As such, it violates the Fifth Amendment. [ Footnote 2/6 ] IV In its haste further to restrict the right of every woman to control her reproductive freedom and bodily integrity, the majority disregards established principles of law and contorts this Court's decided cases to arrive at its preordained result. The majority professes to leave undisturbed the free speech protections upon which our society has come to rely, but one must wonder what force the First Amendment retains if it is read to countenance the deliberate manipulation by the Government Page 500 U. S. 220 of the dialogue between a woman and her physician. While technically leaving intact the fundamental right protected by Roe v. Wade, the Court, "through a relentlessly formalistic catechism," McRae, 448 U.S. at 448 U. S. 341 (MARSHALL, J., dissenting), once again has rendered the right's substance nugatory. See Webster v. Reproductive Health Services, 492 U.S. at 492 U. S. 537 (opinions concurring in part and dissenting in part). This is a course nearly as noxious as overruling Roe directly, for if a right is found to be unenforceable, even against flagrant attempts by government to circumvent it, then it ceases to be a right at all. This, I fear, may be the effect of today's decision. [ Footnote 2/1 ] The majority states: "There is no question but that the statutory prohibition contained in § 1008 is constitutional." Ante at 500 U. S. 192 . This statement simply begs the question. Were the Court to read § 1008 to prohibit only the actual performance of abortions with Title X fund as, indeed, the Secretary did until February 2, 1988, see 53 Bed.Reg. 2923 (1988) -- the provision would fall within the category of restrictions that the Court upheld in Harris v. McRae, 448 U. S. 297 (1980), and Maher v. Roe, 432 U. S. 464 (1977). By interpreting the statute to authorize the regulation of abortion-related speech between physician and patient, however, the Secretary, and now the Court, have rejected a constitutionally sound construction in favor of one that is by no means clearly constitutional. [ Footnote 2/2 ] In addition to requiring referral for prenatal care and adoption services, the Regulations permit general health services such as physical examinations, screening for breast cancer, treatment of gynecological problems, and treatment for sexually transmitted diseases. 53 Fed.Reg. 2927 (1988). None of the latter are strictly preventive, preconceptional services. [ Footnote 2/3 ] The majority attempts to obscure the breadth of its decision through its curious contention that "the Title X program regulations do not significantly impinge upon the doctor-patient relationship." Ante at 500 U. S. 200 . That the doctor-patient relationship is substantially burdened by a rule prohibiting the dissemination by the physician of pertinent medical information is beyond serious dispute. This burden is undiminished by the fact that the relationship at issue here is not an "all-encompassing" one. A woman seeking the services of a Title X clinic has every reason to expect, as do we all, that her physician will not withhold relevant information regarding the very purpose of her visit. To suggest otherwise is to engage in uninformed fantasy. Further, to hold that the doctor-patient relationship is somehow incomplete where a patient lacks the resources to seek comprehensive health care from a single provider is to ignore the situation of a vast number of Americans. As JUSTICE MARSHALL has noted in a different context: "It is perfectly proper for judges to disagree about what the Constitution requires. But it is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live." United States v. Kras, 409 U. S. 434 , 409 U. S. 460 (1973) (dissenting opinion). [ Footnote 2/4 ] It is to be noted that the Secretary has made no claim that the Regulations at issue reflect any concern for the health or welfare of Title X clients. [ Footnote 2/5 ] In the context of common law tort liability, commentators have recognized: "If there is no duty to go to the assistance of a person in difficulty or peril, there is at least a duty to avoid any affirmative acts which make his situation worse. . . . The same is true, of course, of a physician who accepts a charity patient. Such a defendant will then be liable for a failure to use reasonable care for the protection of the plaintiffs interests." P. Keeton et al., Prosser and Keeton on the Law of Torts 378 (5th ed.1984) (footnotes omitted). This observation seems equally appropriate to the cases at bar. [ Footnote 2/6 ] Significantly, the Court interprets the challenged regulations to allow a Title X project to refer a woman whose health would be seriously endangered by continued pregnancy to an abortion provider. Ante at 500 U. S. 195 . To hold otherwise would be to adopt an interpretation that would most certainly violate a patient's right to substantive due process. See, e.g., Youngberg v. Romeo, 457 U. S. 307 (1982); Revere v. Massachusetts General Hospital, 463 U. S. 239 (1983). The Solicitor General at oral argument, however, afforded the Regulations a far less charitable interpretation. See Tr. of Oral Arg. 44-47. JUSTICE STEVENS, dissenting. In my opinion, the Court has not paid sufficient attention to the language of the controlling statute or to the consistent interpretation accorded the statute by the responsible cabinet officers during four different Presidencies and 18 years. The relevant text of the "Family Planning Services and Population Research Act of 1970" has remained unchanged since its enactment. 84 Stat. 1504. The preamble to the Act states that it was passed: "To promote public health and welfare by expanding, improving, and better coordinating the family planning services and population research activities of the Federal Government, and for other purposes." Ibid. The declaration of congressional purposes emphasizes the importance of educating the public about family planning services. Thus, § 2 of the Act states, in part, that the purpose of the Act is: "(1) to assist in making comprehensive voluntary family planning services readily available to all persons desiring such services;" * * * * "(5) to develop and make readily available information (including educational materials) on family planning and Page 500 U. S. 221 population growth to all persons desiring such information." 42 U.S.C. § 300 (Congressional Declaration of Purpose). In contrast to the statutory emphasis on making relevant information readily available to the public, the statute contains no suggestion that Congress intended to authorize the suppression or censorship of any information by any Government employee or by any grant recipient. Section 6 of the Act authorizes the provision of federal funds to support the establishment and operation of voluntary family planning projects. The section also empowers the Secretary to promulgate regulations imposing conditions on grant recipients to ensure that "such grants will be effectively utilized for the purposes for which made." § 300a-4(b). Not a word in the statute, however, authorizes the Secretary to impose any restrictions on the dissemination of truthful information or professional advice by grant recipients. The word "prohibition" is used only once in the Act. Section 6, which adds to the Public Health Service Act the new Title X, covering the subject of population research and voluntary planning programs, includes the following provision: "PROHIBITION OF ABORTION" "SEC. 1008. None of the funds appropriated under this title shall be used in programs where abortion is a method of family planning." 84 Stat. 1508, 42 U.S.C. § 300a-6. Read in the context of the entire statute, this prohibition is plainly directed at conduct, rather than the dissemination of information or advice, by potential grant recipients. The original regulations promulgated in 1971 by the Secretary of Health, Education and Welfare so interpreted the statute. This " contemporaneous construction of [the] statute by the men charged with the responsibility of setting its machinery in motion'" is entitled to particular respect. See Power Reactor Development Co. v. Electrical Workers , 367 Page 500 U. S. 222 U.S. 396, 367 U. S. 408 (1961) (citation omitted); Udall v. Tallman, 380 U. S. 1 , 380 U. S. 16 (1965); Aluminum Co. of America v. Central Lincoln Peoples' Utility District, 467 U. S. 380 , 467 U. S. 390 (1984). The regulations described the kind of services that grant recipients had to provide in order to be eligible for federal funding, but they did not purport to regulate or restrict the kinds of advice or information that recipients might make available to their clients. Conforming to the language of the governing statute, the regulations provided that "[t]he project will not provide abortions as a method of family planning." 42 CFR § 59.5(a)(9) (1972) (emphasis added). Like the statute itself, the regulations prohibited conduct, not speech. The same is true of the regulations promulgated in 1986 by the Secretary of Health and Human Services. They also prohibited grant recipients from performing abortions, but did not purport to censor or mandate any kind of speech. See 42 CFR §§ 59.159.13 (1986). The entirely new approach adopted by the Secretary in 1988 was not, in my view, authorized by the statute. The new regulations did not merely reflect a change in a policy determination that the Secretary had been authorized by Congress to make. Cf. 467 U. S. S.A. Inc. v. Natural Resources Defense Counsel, Inc., 467 U. S. 837 , 467 U. S. 865 (1984). Rather, they represented an assumption of policymaking responsibility that Congress had not delegated to the Secretary. See id. at 467 U. S. 842 -843 ("If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress"). In a society that abhors censorship and in which policymakers have traditionally placed the highest value on the freedom to communicate, it is unrealistic to conclude that statutory authority to regulate conduct implicitly authorized the Executive to regulate speech. Because I am convinced that the 1970 Act did not authorize the Secretary to censor the speech of grant recipients or their Page 500 U. S. 223 employees, I would hold the challenged regulations invalid and reverse the judgment of the Court of Appeals. Even if I thought the statute were ambiguous, however, I would reach the same result for the reasons stated in JUSTICE O'CONNOR's dissenting opinion. As she also explains, if a majority of the Court had reached this result, it would be improper to comment on the constitutional issues that the parties have debated. Because the majority has reached out to decide the constitutional questions, however, I am persuaded that JUSTICE BLACKMUN is correct in concluding that the majority's arguments merit a response. I am also persuaded that JUSTICE BLACKMUN has correctly analyzed these issues. I have therefore joined Parts II and III of his opinion. JUSTICE O'CONNOR, dissenting. "[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress." Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U. S. 568 , 485 U. S. 575 (1988). JUSTICE BLACKMUN has explained well why this longstanding canon of statutory construction applies in this case, and I join 500 U. S. 500 U. S. which constitute the Secretary's interpretation of § 1008 of the Public Health Service Act, 84 Stat. 1508, 42 U.S.C. § 300a-6, "raise serious constitutional problems": the regulations place content-based restrictions on the speech of Title X fund recipients, restrictions directed precisely at speech concerning one of "the most divisive and contentious issues that our Nation has faced in recent years." Ante at 500 U. S. 215 . One may well conclude, as JUSTICE BLACKMUN does in 500 U. S. that the regulations are unconstitutional for this reason. I do not join Part II of the dissent, however, for the same reason that I do not join 500 U. S. in which JUSTICE Page 500 U. S. 224 BLACKMUN concludes that the regulations are unconstitutional under the Fifth Amendment. The canon of construction that JUSTICE BLACKMUN correctly applies here is grounded in large part upon our time-honored practice of not reaching constitutional questions unnecessarily. See DeBartolo, supra, at 485 U. S. 575 . "It is a fundamental rule of judicial restraint . . . that this Court will not reach constitutional questions in advance of the necessity of deciding them." Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P.C., 467 U. S. 138 , 467 U. S. 157 (1984). See also Alexander v. Louisiana, 405 U. S. 625 , 405 U. S. 633 (1972); Burton v. United States, 196 U. S. 283 , 196 U. S. 295 (1905); Liverpool, New York and Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U. S. 33 , 113 U. S. 39 (1885) (In the exercise of its jurisdiction to pronounce unconstitutional laws of the United States, this Court "has rigidly adhered" to the rule "never to anticipate a question of constitutional law in advance of the necessity of deciding it"). This Court acts at the limits of its power when it invalidates a law on constitutional grounds. In recognition of our place in the constitutional scheme, we must act with "great gravity and delicacy" when telling a coordinate branch that its actions are absolutely prohibited absent constitutional amendment. Adkins v. Children's Hospital of District of Columbia, 261 U. S. 525 , 261 U. S. 544 (1923). See also Blodgett v. Holden, 275 U. S. 142 , 275 U. S. 147 -148 (1927) (Holmes, J., concurring). In this case, we need only tell the Secretary that his regulations are not a reasonable interpretation of the statute; we need not tell Congress that it cannot pass such legislation. If we rule solely on statutory grounds, Congress retains the power to force the constitutional question by legislating more explicitly. It may instead choose to do nothing. That decision should be left to Congress; we should not tell Congress what it cannot do before it has chosen to do it. It is enough in this case to conclude that neither the language nor the history of § 1008 compels the Secretary's interpretation, Page 500 U. S. 225 and that the interpretation raises serious First Amendment concerns. On this basis alone, I would reverse the judgment of the Court of Appeals and invalidate the challenged regulations.

In *Rust v. Sullivan*, the U.S. Supreme Court upheld regulations prohibiting Title X family-planning projects from counseling, referring, or advocating for abortion as a method of family planning. The Court found that the regulations were a permissible interpretation of the Public Health Service Act, which states that federal funds under Title X cannot be used for programs where abortion is a method of family planning. The Court deferred to the Secretary of Health and Human Services' expertise and found that the regulations did not violate the First or Fifth Amendments.

Free Speech

R.A.V. v. City of St. Paul

https://supreme.justia.com/cases/federal/us/505/377/

OCTOBER TERM, 1991 Syllabus R. A. V. v. CITY OF ST. PAUL, MINNESOTA CERTIORARI TO THE SUPREME COURT OF MINNESOTA No. 90-7675. Argued December 4, 1991-Decided June 22,1992 After allegedly burning a cross on a black family's lawn, petitioner R. A. V. was charged under, inter alia, the St. Paul, Minnesota, Bias-Motivated Crime Ordinance, which prohibits the display of a symbol which one knows or has reason to know "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." The trial court dismissed this charge on the ground that the ordinance was substantially overbroad and impermissibly content based, but the State Supreme Court reversed. It rejected the overbreadth claim because the phrase "arouses anger, alarm or resentment in others" had been construed in earlier state cases to limit the ordinance's reach to "fighting words" within the meaning of this Court's decision in Chaplinsky v. New Hampshire, 315 U. S. 568 , 572, a category of expression unprotected by the First Amendment. The court also concluded that the ordinance was not impermissibly content based because it was narrowly tailored to serve a compelling governmental interest in protecting the community against bias-motivated threats to public safety and order. Held: The ordinance is facially invalid under the First Amendment. Pp.381-396. (a) This Court is bound by the state court's construction of the ordinance as reaching only expressions constituting "fighting words." However, R. A. Vo's request that the scope of the Chaplinsky formulation be modified, thereby invalidating the ordinance as substantially overbroad, need not be reached, since the ordinance unconstitutionally prohibits speech on the basis of the subjects the speech addresses. P.381. (b) A few limited categories of speech, such as obscenity, defamation, and fighting words, may be regulated because of their constitutionally proscribable content. However, these categories are not entirely invisible to the Constitution, and government may not regulate them based on hostility, or favoritism, towards a nonpros crib able message they contain. Thus the regulation of "fighting words" may not be based on nonproscribable content. It may, however, be underinclusive, addressing some offensive instances and leaving other, equally offensive, ones alone, so long as the selective proscription is not based on content, or there is no realistic possibility that regulation of ideas is afoot. Pp. 382-390. 378 Syllabus (c) The ordinance, even as narrowly construed by the State Supreme Court, is facially unconstitutional because it imposes special prohibitions on those speakers who express views on the disfavored subjects of "race, color, creed, religion or gender." At the same time, it permits displays containing abusive invective if they are not addressed to those topics. Moreover, in its practical operation the ordinance goes beyond mere content, to actual viewpoint, discrimination. Displays containing "fighting words" that do not invoke the disfavored subjects would seemingly be useable ad libitum by those arguing in favor of racial, color, etc., tolerance and equality, but not by their opponents. St. Paul's desire to communicate to minority groups that it does not condone the "group hatred" of bias-motivated speech does not justify selectively silencing speech on the basis of its content. Pp. 391-393. (d) The content-based discrimination reflected in the ordinance does not rest upon the very reasons why the particular class of speech at issue is pros crib able, it is not aimed only at the "secondary effects" of speech within the meaning of Renton v. Playtime Theatres, Inc., 475 U. S. 41, and it is not for any other reason the sort that does not threaten censorship of ideas. In addition, the ordinance's content discrimination is not justified on the ground that the ordinance is narrowly tailored to serve a compelling state interest in ensuring the basic human rights of groups historically discriminated against, since an ordinance not limited to the favored topics would have precisely the same beneficial effect. Pp. 393-396. 464 N. W. 2d 507, reversed and remanded. SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and KENNEDY, SOUTER, and THOMAS, JJ., joined. WHITE, J., filed an opinion concurring in the judgment, in which BLACKMUN and O'CONNOR, JJ., joined, and in which STEVENS, J., joined except as to Part I-A, post, p. 397. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 415. STEVENS, J., filed an opinion concurring in the judgment, in Part I of which WHITE and BLACKMUN, JJ., joined, post, p. 416. Edward J. Cleary argued the cause for petitioner. With him on the briefs was Michael F. Cromett. Tom Foley argued the cause for respondent. With him on the brief was Steven C. DeCoster. * *Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by Steven R. Shapiro, John A. Powell, and Mark R. Anfinson; for the Association of American Publishers et al. by 379 JUSTICE SCALIA delivered the opinion of the Court. In the predawn hours of June 21, 1990, petitioner and several other teenagers allegedly assembled a crudely made cross by taping together broken chair legs. They then allegedly burned the cross inside the fenced yard of a black family that lived across the street from the house where petitioner was staying. Although this conduct could have been pun- Bruce J. Ennis; and for the Center for Individual Rights by Gary B. Born and Michael P. McDonald. Briefs of amici curiae urging affirmance were filed for the State of Minnesota et al. by Hubert H. Humphrey III, Attorney General of Minnesota, and Richard S. Slowes, Assistant Attorney General, Jimmy Evans, Attorney General of Alabama, Grant Woods, Attorney General of Arizona, Richard Blumenthal, Attorney General of Connecticut, and John J. Kelly, Chief State's Attorney of Connecticut, Larry EchoHawk, Attorney General of Idaho, Roland W Burris, Attorney General of Illinois, Robert T. Stephan, Attorney General of Kansas, J. Joseph Curran, Jr., Attorney General of Maryland, Scott Harshbarger, Attorney General of Massachusetts, Frank J. Kelley, Attorney General of Michigan, Robert J. Del Tufo, Attorney General of New Jersey, Lee I. Fisher, Attorney General of Ohio, Susan B. Loving, Attorney General of Oklahoma, T. Travis Medlock, Attorney General of South Carolina, Charles W Burson, Attorney General of Tennessee, Mary Sue Terry, Attorney General of Virginia, and Paul Van Dam, Attorney General of Utah; for the Anti-Defamation League of B'nai B'rith by Allen I. Saeks, Jeffrey P. Sinensky, Steven M. Freeman, and Michael Lieberman; for the Asian American Legal Defense and Education Fund et al. by Angelo N. Ancheta; for the Center for Democratic Renewal et al. by Frank E. Deale; for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; for the League of Minnesota Cities et al. by Carla J. Heyl, Robert J. Alfton, and Jerome J. Segal; for the National Association for the Advancement of Colored People et al. by Ronald D. Maines, Dennis C. Hayes, Willie Abrams, and Kemp R. Harshman; for the National Black Women's Health Project by Catharine A. MacKinnon and Burke Marshall; for the National Institute of Municipal Law Officers et al. by Richard Ruda, Michael J. Wahoske, and Mark B. Rotenberg; and for People for the American Way by Richard S. Hoffman, Kevin J. Hasson, and Elliot M. Mincberg. Charles R. Sheppard filed a brief for the Patriot's Defense Foundation, Inc., as amicus curiae. 380 ished under any of a number of laws,l one of the two provisions under which respondent city of St. Paul chose to charge petitioner (then a juvenile) was the St. Paul Bias-Motivated Crime Ordinance, St. Paul, Minn., Legis. Code § 292.02 (1990), which provides: "Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor." Petitioner moved to dismiss this count on the ground that the St. Paul ordinance was substantially overbroad and impermissibly content based and therefore facially invalid under the First Amendment.2 The trial court granted this motion, but the Minnesota Supreme Court reversed. That court rejected petitioner's overbreadth claim because, as construed in prior Minnesota cases, see, e. g., In re Welfare of S. L. J., 263 N. W. 2d 412 (Minn. 1978), the modifying phrase "arouses anger, alarm or resentment in others" limited the reach of the ordinance to conduct that amounts to "fighting words," i. e., "conduct that itself inflicts injury or tends to incite immediate violence ... ," In re Welfare of R. A. 17:, 464 N. W. 2d 507, 510 (Minn. 1991) (citing Chaplin- 1 The conduct might have violated Minnesota statutes carrying significant penalties. See, e. g., Minn. Stat. § 609.713(1) (1987) (providing for up to five years in prison for terroristic threats); § 609.563 (arson) (providing for up to five years and a $10,000 fine, depending on the value of the property intended to be damaged); § 609.595 (Supp. 1992) (criminal damage to property) (providing for up to one year and a $3,000 fine, depending upon the extent of the damage to the property). 2 Petitioner has also been charged, in Count I of the delinquency petition, with a violation of Minn. Stat. § 609.2231(4) (Supp. 1990) (racially motivated assaults). Petitioner did not challenge this count. 381 sky v. New Hampshire, 315 U. S. 568 , 572 (1942)), and therefore the ordinance reached only expression "that the first amendment does not protect," 464 N. W. 2d, at 511. The court also concluded that the ordinance was not impermissibly content based because, in its view, "the ordinance is a narrowly tailored means toward accomplishing the compelling governmental interest in protecting the community against bias-motivated threats to public safety and order." Ibid. We granted certiorari, 501 U. S. 1204 (1991). I In construing the St. Paul ordinance, we are bound by the construction given to it by the Minnesota court. Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U. S. 328 , 339 (1986); New York v. Ferber, 458 U. S. 747 , 769, n. 24 (1982); Terminiello v. Chicago, 337 U. S. 1 , 4 (1949). Accordingly, we accept the Minnesota Supreme Court's authoritative statement that the ordinance reaches only those expressions that constitute "fighting words" within the meaning of Chaplinsky. 464 N. W. 2d, at 510-511. Petitioner and his amici urge us to modify the scope of the Chaplinsky formulation, thereby invalidating the ordinance as "substantially overbroad," Broadrick v. Oklahoma, 413 U. S. 601, 610 (1973). We find it unnecessary to consider this issue. Assuming, arguendo, that all of the expression reached by the ordinance is proscribable under the "fighting words" doctrine, we nonetheless conclude that the ordinance is facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.3 3 Contrary to JUSTICE WHITE'S suggestion, post, at 397-398, n. 1, petitioner's claim is "fairly included" within the questions presented in the petition for certiorari, see this Court's Rule 14.1(a). It was clear from the petition and from petitioner's other filings in this Court (and in the courts below) that his assertion that the St. Paul ordinance "violat[es] overbreadth ... principles of the First Amendment," Pet. for Cert. i, was not 382 The First Amendment generally prevents government from proscribing speech, see, e. g., Cantwell v. Connecticut, 310 U. S. 296 , 309-311 (1940), or even expressive conduct, see, e. g., Texas v. Johnson, 491 U. S. 397 , 406 (1989), because of disapproval of the ideas expressed. Content-based regulations are presumptively invalid. Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105 , 115 (1991); id., at 124 (KENNEDY, J., concurring in judgment); Consolidated Edison Co. of N. Y. v. Public Servo Comm'n of N. Y., 447 U. S. 530 , 536 (1980); Police Dept. of Chicago v. Mosley, 408 U. S. 92 , 95 (1972). From 1791 to the present, however, our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a just a technical "overbreadth" claim-i. e., a claim that the ordinance violated the rights of too many third parties-but included the contention that the ordinance was "overbroad" in the sense of restricting more speech than the Constitution permits, even in its application to him, because it is content based. An important component of petitioner's argument is, and has been all along, that narrowly construing the ordinance to cover only "fighting words" cannot cure this fundamental defect. Id., at 12, 14, 1516. In his briefs in this Court, petitioner argued that a narrowing construction was ineffective because (1) its boundaries were vague, Brief for Petitioner 26, and because (2) denominating particular expression a "fighting word" because of the impact of its ideological content upon the audience is inconsistent with the First Amendment, Reply Brief for Petitioner 5; id., at 13 ("[The ordinance] is overbroad, viewpoint discriminatory and vague as 'narrowly construed''') (emphasis added). At oral argument, counsel for petitioner reiterated this second point: "It is ... one of my positions, that in [punishing only some fighting words and not others], even though it is a subcategory, technically, of unprotected conduct, [the ordinance] still is picking out an opinion, a disfavored message, and making that clear through the State." Tr. of Oral Arg. 8. In resting our judgment upon this contention, we have not departed from our criteria of what is "fairly included" within the petition. See Arkansas Electric Cooperative Corp. V. Arkansas Pub. Servo Comm'n, 461 U. S. 375 , 382, n. 6 (1983); Brown V. Socialist Workers '74 Campaign Comm., 459 U. S. 87 , 94, n. 9 (1982); Eddings V. Oklahoma, 455 U. S. 104 , 113, n. 9 (1982); see generally R. Stern, E. Gressman, & S. Shapiro, Supreme Court Practice 361 (6th ed.1986). 383 few limited areas, which are "of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky, supra, at 572. We have recognized that "the freedom of speech" referred to by the First Amendment does not include a freedom to disregard these traditional limitations. See, e. g., Roth v. United States, 354 U. S. 476 (1957) (obscenity); Beauharnais v. Illinois, 343 U. S. 250 (1952) (defamation); Chaplinsky v. New Hampshire, supra (" 'fighting' words"); see generally Simon & Schuster, supra, at 124 (KENNEDY, J., concurring in judgment). Our decisions since the 1960's have narrowed the scope of the traditional categorical exceptions for defamation, see New York Times Co. v. Sullivan, 376 U. S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974); see generally Milkovich v. Lorain Journal Co., 497 U. S. 1 , 13-17 (1990), and for obscenity, see Miller v. California, 413 U. S. 15 (1973), but a limited categorical approach has remained an important part of our First Amendment jurisprudence. We have sometimes said that these categories of expression are "not within the area of constitutionally protected speech," Roth, supra, at 483; Beauharnais, supra, at 266; Chap linsky, supra, at 571-572, or that the "protection of the First Amendment does not extend" to them, Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485 , 504 (1984); Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 , 124 (1989). Such statements must be taken in context, however, and are no more literally true than is the occasionally repeated shorthand characterizing obscenity "as not being speech at all," Sunstein, Pornography and the First Amendment, 1986 Duke L. J. 589, 615, n. 46. What they mean is that these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.)not that they are categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for 384 content discrimination unrelated to their distinctively proscribable content. Thus, the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government. We recently acknowledged this distinction in Ferber, 458 U. S., at 763, where, in upholding New York's child pornography law, we expressly recognized that there was no "question here of censoring a particular literary theme .... " See also id., at 775 (O'CONNOR, J., concurring) ("As drafted, New York's statute does not attempt to suppress the communication of particular ideas"). Our cases surely do not establish the proposition that the First Amendment imposes no obstacle whatsoever to regulation of particular instances of such proscribable expression, so that the government "may regulate [them] freely," post, at 400 (WHITE, J., concurring in judgment). That would mean that a city council could enact an ordinance prohibiting only those legally obscene works that contain criticism of the city government or, indeed, that do not include endorsement of the city government. Such a simplistic, all-or-nothing-atall approach to First Amendment protection is at odds with common sense and with our jurisprudence as wel1.4 It is 4JUSTICE WHITE concedes that a city council cannot prohibit only those legally obscene works that contain criticism of the city government, post, at 406, but asserts that to be the consequence, not of the First Amendment, but of the Equal Protection Clause. Such content-based discrimination would not, he asserts, "be rationally related to a legitimate government interest." Ibid. But of course the only reason that government interest is not a "legitimate" one is that it violates the First Amendment. This Court itself has occasionally fused the First Amendment into the Equal Protection Clause in this fashion, but at least with the acknowledgment (which JUSTICE WHITE cannot afford to make) that the First Amendment underlies its analysis. See Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95 (1972) (ordinance prohibiting only nonlabor picketing violated the Equal Protection Clause because there was no "appropriate governmental interest" supporting the distinction inasmuch as "the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content"); Carey v. 385 not true that "fighting words" have at most a "de minimis" expressive content, ibid., or that their content is in all respects "worthless and undeserving of constitutional protection," post, at 401; sometimes they are quite expressive indeed. We have not said that they constitute "no part of the expression of ideas," but only that they constitute "no essential part of any exposition of ideas." Chap linsky, supra, at 572 (emphasis added). The proposition that a particular instance of speech can be proscribable on the basis of one feature (e. g., obscenity) but not on the basis of another (e. g., opposition to the city government) is commonplace and has found application in many contexts. We have long held, for example, that nonverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses-so that burning a flag in violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in violation of an ordinance against dishonoring the flag is not. See Johnson, 491 U. S., at 406-407. See also Barnes v. Glen Theatre, Inc., 501 U. S. 560 , 569-570 (1991) (plurality opinion); id., at 573-574 (SCALIA, J., concurring in judgment); id., at 581-582 (SOUTER, J., concurring in judgment); United Brown, 447 U. S. 455 (1980). See generally Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105 , 124 (1991) (KENNEDY, J., concurring in judgment). JUSTICE STEVENS seeks to avoid the point by dismissing the notion of obscene antigovernment speech as "fantastical," post, at 418, apparently believing that any reference to politics prevents a finding of obscenity. Unfortunately for the purveyors of obscenity, that is obviously false. A shockingly hard core pornographic movie that contains a model sporting a political tattoo can be found, "taken as a whole, [to] lac[k] serious literary, artistic, political, or scientific value," Miller v. California, 413 U. S. 15 ,24 (1973) (emphasis added). Anyway, it is easy enough to come up with other illustrations of a content-based restriction upon "unprotected speech" that is obviously invalid: the antigovernment libel illustration mentioned earlier, for one. See supra, at 384. And of course the concept of racist fighting words is, unfortunately, anything but a "highly speculative hypothetica[l]," post, at 419. 386 States v. O'Brien, 391 U. S. 367 , 376-377 (1968). Similarly, we have upheld reasonable "time, place, or manner" restrictions, but only if they are "justified without reference to the content of the regulated speech." Ward v. Rock Against Racism, 491 U. S. 781 , 791 (1989) (internal quotation marks omitted); see also Clark v. Community for Creative NonViolence, 468 U. S. 288 , 298 (1984) (noting that the O'Brien test differs little from the standard applied to time, place, or manner restrictions). And just as the power to proscribe particular speech on the basis of a noncontent element (e. g., noise) does not entail the power to proscribe the same speech on the basis of a content element; so also, the power to proscribe it on the basis of one content element (e. g., obscenity) does not entail the power to proscribe it on the basis of other content elements. In other words, the exclusion of "fighting words" from the scope of the First Amendment simply means that, for purposes of that Amendment, the unprotected features of the words are, despite their verbal character, essentially a "nonspeech" element of communication. Fighting words are thus analogous to a noisy sound truck: Each is, as Justice Frankfurter recognized, a "mode of speech," Niemotko v. Maryland, 340 U. S. 268 , 282 (1951) (opinion concurring in result); both can be used to convey an idea; but neither has, in and of itself, a claim upon the First Amendment. As with the sound truck, however, so also with fighting words: The government may not regulate use based on hostility-or favoritism-towards the underlying message expressed. Compare Frisby v. Schultz, 487 U. S. 474 (1988) (upholding, against facial challenge, a content-neutral ban on targeted residential picketing), with Carey v. Brown, 447 U. S. 455 (1980) (invalidating a ban on residential picketing that exempted labor picketing). 5 5 Although JUSTICE WHITE asserts that our analysis disregards "established principles of First Amendment law," post, at 415, he cites not a single case (and we are aware of none) that even involved, much less con- 387 The concurrences describe us as setting forth a new First Amendment principle that prohibition of constitutionally proscribable speech cannot be "underinclusiv[e]," post, at 402 (WHITE, J., concurring in judgment)-a First Amendment "absolutism" whereby "[w]ithin a particular 'proscribable' category of expression, ... a government must either proscribe all speech or no speech at all," post, at 419 (STEVENS, J., concurring in judgment). That easy target is of the concurrences' own invention. In our view, the First Amendment imposes not an "underinclusiveness" limitation but a "content discrimination" limitation upon a State's prohibition of proscribable speech. There is no problem whatever, for example, with a State's prohibiting obscenity (and other forms of proscribable expression) only in certain media or markets, for although that prohibition would be "underinclusive," it would not discriminate on the basis of content. See, e. g., Sable Communications, 492 U. S., at 124-126 (upholding 47 U. S. C. § 223(b)(1), which prohibits obscene telephone communications). Even the prohibition against content discrimination that we assert the First Amendment requires is not absolute. It applies differently in the context of proscribable speech than in the area of fully protected speech. The rationale of the general prohibition, after all, is that content discrimination "raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace," Simon & Schuster, 502 U. S., at 116; Leathers v. Medlock, 499 U. S. 439 , 448 (1991); FCC v. League of Women Voters of Cal., 468 U. S. 364 , 383-384 (1984); Consolidated Edison Co., 447 U. S., at 536; Police Dept. of Chicago v. Mosley, 408 U. S., sidered and resolved, the issue of content discrimination through regulation of "unprotected" speech-though we plainly recognized that as an issue in New York v. Ferber, 458 U. S. 747 (1982). It is of course contrary to all traditions of our jurisprudence to consider the law on this point conclusively resolved by broad language in cases where the issue was not presented or even envisioned. 388 at 95-98. But content discrimination among various instances of a class of proscribable speech often does not pose this threat. When the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists. Such a reason, having been adjudged neutral enough to support exclusion of the entire class of speech from First Amendment protection, is also neutral enough to form the basis of distinction within the class. To illustrate: A State might choose to prohibit only that obscenity which is the most patently offensive in its prurience i. e., that which involves the most lascivious displays of sexual activity. But it may not prohibit, for example, only that obscenity which includes offensive political messages. See Kucharek v. Hanaway, 902 F.2d 513 , 517 (CA7 1990), cert. denied, 498 U. S. 1041 (1991). And the Federal Government can criminalize only those threats of violence that are directed against the President, see 18 U. S. C. § 871-since the reasons why threats of violence are outside the First Amendment (protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur) have special force when applied to the person of the President. See Watts v. United States, 394 U. S. 705 , 707 (1969) (upholding the facial validity of § 871 because of the "overwhelmin[g] interest in protecting the safety of [the] Chief Executive and in allowing him to perform his duties without interference from threats of physical violence"). But the Federal Government may not criminalize only those threats against the President that mention his policy on aid to inner cities. And to take a final example (one mentioned by JUSTICE STEVENS, post, at 421422), a State may choose to regulate price advertising in one industry but not in others, because the risk of fraud (one of the characteristics of commercial speech that justifies depriving it of full First Amendment protection, see Virginia 389 State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 , 771-772 (1976)) is in its view greater there. Cf. Morales v. Trans World Airlines, Inc., 504 U. S. 374 (1992) (state regulation of airline advertising); Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978) (state regulation of lawyer advertising). But a State may not prohibit only that commercial advertising that depicts men in a demeaning fashion. See, e. g., Los Angeles Times, Aug. 8, 1989, section 4, p. 6, col. 1. Another valid basis for according differential treatment to even a content-defined subclass of proscribable speech is that the subclass happens to be associated with particular "secondary effects" of the speech, so that the regulation is "justified without reference to the content of the ... speech," Renton v. Playtime Theatres, Inc., 475 U. S. 41 , 48 (1986) (quoting, with emphasis, Virginia State Bd. of Pharmacy, supra, at 771); see also Young v. American Mini Theatres, Inc., 427 U. S. 50 , 71, n. 34 (1976) (plurality opinion); id., at 80-82 (Powell, J., concurring); Barnes, 501 U. S., at 586 (SOUTER, J., concurring in judgment). A State could, for example, permit all obscene live performances except those involving minors. Moreover, since words can in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the Nation's defense secrets), a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech. See id., at 571 (plurality opinion); id., at 577 (SCALIA, J., concurring in judgment); id., at 582 (SOUTER, J., concurring in judgment); FTC v. Superior Court Trial Lawyers Assn., 493 U. S. 411 , 425432 (1990); O'Brien, 391 U. S., at 376-377. Thus, for example, sexually derogatory "fighting words," among other words, may produce a violation of Title VII's general prohibition against sexual discrimination in employment practices, 42 U. S. C. § 2000e-2; 29 CFR § 1604.11 (1991). See also 18 390 u. S. C. § 242; 42 U. S. C. §§ 1981, 1982. Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy. These bases for distinction refute the proposition that the selectivity of the restriction is "even arguably 'conditioned upon the sovereign's agreement with what a speaker may intend to say.'" Metromedia, Inc. v. San Diego, 453 U. S. 490 , 555 (1981) (STEVENS, J., dissenting in part) (citation omitted). There may be other such bases as well. Indeed, to validate such selectivity (where totally proscribable speech is at issue) it may not even be necessary to identify any particular "neutral" basis, so long as the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot. (We cannot think of any First Amendment interest that would stand in the way of a State's prohibiting only those obscene motion pictures with blue-eyed actresses.) Save for that limitation, the regulation of "fighting words," like the regulation of noisy speech, may address some offensive instances and leave other, equally offensive, instances alone. See Posadas de Puerto Rico, 478 U. S., at 342-343.6 6 JUSTICE STEVENS cites a string of opinions as supporting his assertion that "selective regulation of speech based on content" is not presumptively invalid. Post, at 421-422. Analysis reveals, however, that they do not support it. To begin with, three of them did not command a majority of the Court, Young v. American Mini Theatres, Inc., 427 U. S. 50 , 63-73 (1976) (plurality opinion); FCC v. Pacifica Foundation, 438 U. S. 726 ,744748 (1978) (plurality opinion); Lehman v. Shaker Heights, 418 U. S. 298 (1974) (plurality opinion), and two others did not even discuss the First Amendment, Morales v. Trans World Airlines, Inc., 504 U. S. 374 (1992); Jacob Siegel Co. v. FTC, 327 U. S. 608 (1946). In any event, all that their contents establish is what we readily concede: that presumptive invalidity does not mean invariable invalidity, leaving room for such exceptions as reasonable and viewpoint-neutral content-based discrimination in nonpublie forums, see Lehman, supra, at 301-304; see also Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788 ,806 (1985), or with respect to certain speech by government employees, see Broadrick v. Oklahoma, 391 II Applying these principles to the St. Paul ordinance, we conclude that, even as narrowly construed by the Minnesota Supreme Court, the ordinance is facially unconstitutional. Although the phrase in the ordinance, "arouses anger, alarm or resentment in others," has been limited by the Minnesota Supreme Court's construction to reach only those symbols or displays that amount to "fighting words," the remaining, unmodified terms make clear that the ordinance applies only to "fighting words" that insult, or provoke violence, "on the basis of race, color, creed, religion or gender." Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. Those who wish to use "fighting words" in connection with other ideas-to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality-are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects. See Simon & Schuster, 502 U. S., at 116; Arkansas Writers' Project, Inc. v. Ragland, 481 U. S. 221 , 229230 (1987). In its practical operation, moreover, the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination. Displays containing some wordsodious racial epithets, for example-would be prohibited to proponents of all views. But "fighting words" that do not themselves invoke race, color, creed, religion, or genderaspersions upon a person's mother, for example-would seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc., tolerance and equality, but could not be used by those speakers' opponents. One could hold up a sign saying, for example, that all "anti- 413 U. S. 601 (1973); see also Civil Service Comm'n v. Letter Carriers, 413 U. S. 548, 564-567 (1973). 392 Catholic bigots" are misbegotten; but not that all "papists" are, for that would insult and provoke violence "on the basis of religion." St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules. What we have here, it must be emphasized, is not a prohibition of fighting words that are directed at certain persons or groups (which would be facially valid if it met the requirements of the Equal Protection Clause); but rather, a prohibition of fighting words that contain (as the Minnesota Supreme Court repeatedly emphasized) messages of "biasmotivated" hatred and in particular, as applied to this case, messages "based on virulent notions of racial supremacy." 464 N. W. 2d, at 508, 511. One must wholeheartedly agree with the Minnesota Supreme Court that "[i]t is the responsibility, even the obligation, of diverse communities to confront such notions in whatever form they appear," id., at 508, but the manner of that confrontation cannot consist of selective limitations upon speech. St. Paul's brief asserts that a general "fighting words" law would not meet the city's needs because only a content-specific measure can communicate to minority groups that the "group hatred" aspect of such speech "is not condoned by the majority." Brief for Respondent 25. The point of the First Amendment is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content. Despite the fact that the Minnesota Supreme Court and St. Paul acknowledge that the ordinance is directed at expression of group hatred, JUSTICE STEVENS suggests that this "fundamentally misreads" the ordinance. Post, at 433. I t is directed, he claims, not to speech of a particular content, but to particular "injur[ies]" that are "qualitatively different" from other injuries. Post, at 424. This is wordplay. What makes the anger, fear, sense of dishonor, etc., produced by violation of this ordinance distinct from the anger, fear, sense of dishonor, etc., produced by other fighting words is 393 nothing other than the fact that it is caused by a distinctive idea, conveyed by a distinctive message. The First Amendment cannot be evaded that easily. It is obvious that the symbols which will arouse "anger, alarm or resentment in others on the basis of race, color, creed, religion or gender" are those symbols that communicate a message of hostility based on one of these characteristics. St. Paul concedes in its brief that the ordinance applies only to "racial, religious, or gender-specific symbols" such as "a burning cross, Nazi swastika or other instrumentality of like import." Brief for Respondent 8. Indeed, St. Paul argued in the Juvenile Court that "[t]he burning of a cross does express a message and it is, in fact, the content of that message which the St. Paul Ordinance attempts to legislate." Memorandum from the Ramsey County Attorney to the Honorable Charles A. Flinn, Jr., dated July 13, 1990, in In re Welfare of R. A. V:, No. 89-D-1231 (Ramsey Cty. Juvenile Ct.), p. 1, reprinted in App. to Brief for Petitioner C-l. The content-based discrimination reflected in the St. Paul ordinance comes within neither any of the specific exceptions to the First Amendment prohibition we discussed earlier nor a more general exception for content discrimination that does not threaten censorship of ideas. It assuredly does not fall within the exception for content discrimination based on the very reasons why the particular class of speech at issue (here, fighting words) is proscribable. As explained earlier, see supra, at 386, the reason why fighting words are categorically excluded from the protection of the First Amendment is not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey. St. Paul has not singled out an especially offensive mode of expression-it has not, for example, selected for prohibition only those fighting words that communicate ideas in a threatening (as opposed to a merely obnoxious) manner. Rather, it has proscribed fight- 394 ing words of whatever manner that communicate messages of racial, gender, or religious intolerance. Selectivity of this sort creates the possibility that the city is seeking to handicap the expression of particular ideas. That possibility would alone be enough to render the ordinance presumptively invalid, but St. Paul's comments and concessions in this case elevate the possibility to a certainty. St. Paul argues that the ordinance comes within another of the specific exceptions we mentioned, the one that allows content discrimination aimed only at the "secondary effects" of the speech, see Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986). According to St. Paul, the ordinance is intended, "not to impact on [sic] the right of free expression of the accused," but rather to "protect against the victimization of a person or persons who are particularly vulnerable because of their membership in a group that historically has been discriminated against." Brief for Respondent 28. Even assuming that an ordinance that completely proscribes, rather than merely regulates, a specified category of speech can ever be considered to be directed only to the secondary effects of such speech, it is clear that the St. Paul ordinance is not directed to secondary effects within the meaning of Renton. As we said in Boos v. Barry, 485 U. S. 312 (1988), "Listeners' reactions to speech are not the type of 'secondary effects' we referred to in Renton." Id., at 321. "The emotive impact of speech on its audience is not a 'secondary effect.'" Ibid. See also id., at 334 (opinion of Brennan, J.).7 7 St. Paul has not argued in this case that the ordinance merely regulates that subclass of fighting words which is most likely to provoke a violent response. But even if one assumes (as appears unlikely) that the categories selected may be so described, that would not justify selective regulation under a "secondary effects" theory. The only reason why such expressive conduct would be especially correlated with violence is that it conveys a particularly odious message; because the "chain of causation" thus necessarily "run[s] through the persuasive effect of the expressive component" of the conduct, Barnes v. Glen Theatre, Inc., 501 U. S. 560 , 586 (1991) (SOUTER, J., concurring in judgment), it is clear that the St. Paul 395 It hardly needs discussion that the ordinance does not fall within some more general exception permitting all selectivity that for any reason is beyond the suspicion of official suppression of ideas. The statements of St. Paul in this very case afford ample basis for, if not full confirmation of, that suspicion. Finally, St. Paul and its amici defend the conclusion of the Minnesota Supreme Court that, even if the ordinance regulates expression based on hostility towards its protected ideological content, this discrimination is nonetheless justified because it is narrowly tailored to serve compelling state interests. Specifically, they assert that the ordinance helps to ensure the basic human rights of members of groups that have historically been subjected to discrimination, including the right of such group members to live in peace where they wish. We do not doubt that these interests are compelling, and that the ordinance can be said to promote them. But the "danger of censorship" presented by a facially contentbased statute, Leathers v. Medlock, 499 U. S., at 448, requires that that weapon be employed only where it is "necessary to serve the asserted [compelling] interest," Burson v. Freeman, 504 U. S. 191 , 199 (1992) (plurality opinion) (emphasis added); Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37 , 45 (1983). The existence of adequate contentneutral alternatives thus "undercut[s] significantly" any defense of such a statute, Boos v. Barry, supra, at 329, casting considerable doubt on the government's protestations that "the asserted justification is in fact an accurate description of the purpose and effect of the law," Burson, supra, at 213 (KENNEDY, J., concurring). See Boos, supra, at 324-329; cf. Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U. S. 575 , 586-587 (1983). The dispositive question in this case, therefore, is whether content discrimination is reasonably necessary to achieve St. Paul's compel- ordinance regulates on the basis of the "primary" effect of the speechi. e., its persuasive (or repellant) force. 396 ling interests; it plainly is not. An ordinance not limited to the favored topics, for example, would have precisely the same beneficial effect. In fact the only interest distinctively served by the content limitation is that of displaying the city council's special hostility towards the particular biases thus singled out.s That is precisely what the First Amendment forbids. The politicians of St. Paul are entitled to express that hostility-but not through the means of imposing unique limitations upon speakers who (however benightedly) disagree. *** Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire. The judgment of the Minnesota Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered. 8 A plurality of the Court reached a different conclusion with regard to the Tennessee antielectioneering statute considered earlier this Term in Burson v. Freeman, 504 U. S. 191 (1992). In light of the "logical connection" between electioneering and the State's compelling interest in preventing voter intimidation and election fraud-an inherent connection borne out by a "long history" and a "widespread and time-tested consensus," id., at 206, 208, n. 10, 211-the plurality concluded that it was faced with one of those "rare case[s]" in which the use of a facially content-based restriction was justified by interests unrelated to the suppression of ideas, id., at 211; see also id., at 213 (KENNEDY, J., concurring). JUSTICE WHITE and JUSTICE STEVENS are therefore quite mistaken when they seek to convert the Burson plurality's passing comment that "[t]he First Amendment does not require States to regulate for problems that do not exist," id., at 207, into endorsement of the revolutionary proposition that the suppression of particular ideas can be justified when only those ideas have been a source of trouble in the past. Post, at 405 (WHITE, J., concurring in judgment); post, at 434 (STEVENS, J., concurring in judgment). 397 JUSTICE WHITE, with whom JUSTICE BLACKMUN and JUSTICE O'CONNOR join, and with whom JUSTICE STEVENS joins except as to Part I-A, concurring in the judgment. I agree with the majority that the judgment of the Minnesota Supreme Court should be reversed. However, our agreement ends there. This case could easily be decided within the contours of established First Amendment law by holding, as petitioner argues, that the St. Paul ordinance is fatally overbroad because it criminalizes not only unprotected expression but expression protected by the First Amendment. See Part II, infra. Instead, "find[ing] it unnecessary" to consider the questions upon which we granted review,l ante, at 381, the 1 The Court granted certiorari to review the following questions: "1. May a local government enact a content-based, 'hate-crime' ordinance prohibiting the display of symbols, including a Nazi swastika or a burning cross, on public or private property, which one knows or has reason to know arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender without violating overbreadth and vagueness principles of the First Amendment to the United States Constitution? "2. Can the constitutionality of such a vague and substantially overbroad content-based restraint of expression be saved by a limiting construction, like that used to save the vague and overbroad content-neutral laws, restricting its application to 'fighting words' or 'imminent lawless action?'" Pet. for Cert. i. It has long been the rule of this Court that "[o]nly the questions set forth in the petition, or fairly included therein, will be considered by the Court." This Court's Rule 14.1(a). This Rule has served to focus the issues presented for review. But the majority reads the Rule so expansively that any First Amendment theory would appear to be "fairly included" within the questions quoted above. Contrary to the impression the majority attempts to create through its selective quotation of petitioner's briefs, see ante, at 381-382, n. 3, petitioner did not present to this Court or the Minnesota Supreme Court anything approximating the novel theory the majority adopts today. Most certainly petitioner did not "reiterat[e]" such a claim at argument; he responded to a question from the bench, Tr. of Oral Arg. 8. Previously, this Court has shown the restraint to refrain from deciding cases on the basis 398 WHITE, J., concurring in judgment Court holds the ordinance facially unconstitutional on a ground that was never presented to the Minnesota Supreme Court, a ground that has not been briefed by the parties before this Court, a ground that requires serious departures from the teaching of prior cases and is inconsistent with the plurality opinion in Burson v. Freeman, 504 U. S. 191 (1992), which was joined by two of the five Justices in the majority in the present case. This Court ordinarily is not so eager to abandon its precedents. Twice within the past month, the Court has declined to overturn longstanding but controversial decisions on questions of constitutional law. See Allied-Signal, Inc. v. Director, Division of Taxation, 504 U. S. 768 (1992); Quill Corp. v. North Dakota, 504 U. S. 298 (1992). In each case, we had the benefit of full briefing on the critical issue, so that the parties and amici had the opportunity to apprise us of the impact of a change in the law. And in each case, the Court declined to abandon its precedents, invoking the principle of stare decisis. Allied-Signal, Inc., supra, at 783-786; Quill Corp., supra, at 317-318. But in the present case, the majority casts aside longestablished First Amendment doctrine without the benefit of briefing and adopts an untried theory. This is hardly a judicious way of proceeding, and the Court's reasoning in reaching its result is transparently wrong. of its own theories when they have not been pressed or passed upon by a state court of last resort. See, e. g., Illinois v. Gates, 462 U. S. 213 , 217-224 (1983). Given this threshold issue, it is my view that the Court lacks jurisdiction to decide the case on the majority rationale. Cf. Arkansas Electric Cooperative Corp. v. Arkansas Pub. Servo Comm'n, 461 U. S. 375 , 382, n. 6 (1983). Certainly the preliminary jurisdictional and prudential concerns are sufficiently weighty that we would never have granted certiorari had petitioner sought review of a question based on the majority's decisional theory. 399 I A This Court's decisions have plainly stated that expression falling within certain limited categories so lacks the values the First Amendment was designed to protect that the Constitution affords no protection to that expression. Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), made the point in the clearest possible terms: "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem .... It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Id., at 571-572. See also Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485 , 504 (1984) (citing Chaplinsky). Thus, as the majority concedes, see ante, at 383-384, this Court has long held certain discrete categories of expression to be proscribable on the basis of their content. For instance, the Court has held that the individual who falsely shouts "fire" in a crowded theater may not claim the protection of the First Amendment. Schenck v. United States, 249 U. S. 47 , 52 (1919). The Court has concluded that neither child pornography nor obscenity is protected by the First Amendment. New York v. Ferber, 458 U. S. 747 , 764 (1982); Miller v. California, 413 U. S. 15 , 20 (1973); Roth v. United States, 354 U. S. 476 , 484-485 (1957). And the Court has observed that, "[l]eaving aside the special considerations when public officials [and public figures] are the target, a libelous publication is not protected by the Constitution." Ferber, supra, at 763 (citations omitted). 400 WHITE, J., concurring in judgment All of these categories are content based. But the Court has held that the First Amendment does not apply to them because their expressive content is worthless or of de minimis value to society. Chaplinsky, supra, at 571-572. We have not departed from this principle, emphasizing repeatedly that, "within the confines of [these] given classification[s], the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required." Ferber, supra, at 763-764; Bigelow v. Virginia, 421 U. S. 809 , 819 (1975). This categorical approach has provided a principled and narrowly focused means for distinguishing between expression that the government may regulate freely and that which it may regulate on the basis of content only upon a showing of compelling need.2 Today, however, the Court announces that earlier Courts did not mean their repeated statements that certain categories of expression are "not within the area of constitutionally protected speech." Roth, supra, at 483. See ante, at 383, citing Beauharnais v. Illinois, 343 U. S. 250 , 266 (1952); Chap linsky, supra, at 571-572; Bose Corp., supra, at 504; Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 , 124 (1989). The present Court submits that such clear statements "must be taken in context" and are not "literally true." Ante, at 383. To the contrary, those statements meant precisely what they said: The categorical approach is a firmly entrenched part of our First Amendment jurisprudence. Indeed, the Court in Roth reviewed the guarantees of freedom of expression in effect at the time of the ratification of the Constitution and concluded, "In light of this history, it is apparent that the unconditional phrasing of the First Amendment was 2 "In each of these areas, the limits of the unprotected category, as well as the unprotected character of particular communications, have been determined by the judicial evaluation of special facts that have been deemed to have constitutional significance." Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485 , 504-505 (1984). 401 not intended to protect every utterance." 354 U. S., at 482-483. In its decision today, the Court points to "[n]othing ... in this Court's precedents warrant[ing] disregard of this longstanding tradition." Burson, 504 U. S., at 216 (SCALIA, J., concurring in judgment); Allied-Signal, Inc., supra, at 783. Nevertheless, the majority holds that the First Amendment protects those narrow categories of expression long held to be undeserving of First Amendment protection-at least to the extent that lawmakers may not regulate some fighting words more strictly than others because of their content. The Court announces that such content-based distinctions violate the First Amendment because "[t]he government may not regulate use based on hostility-or favoritism-towards the underlying message expressed." Ante, at 386. Should the government want to criminalize certain fighting words, the Court now requires it to criminalize all fighting words. To borrow a phrase: "Such a simplistic, all-or-nothing-atall approach to First Amendment protection is at odds with common sense and with our jurisprudence as well." Ante, at 384. It is inconsistent to hold that the government may proscribe an entire category of speech because the content of that speech is evil, Ferber, supra, at 763-764; but that the government may not treat a subset of that category differently without violating the First Amendment; the content of the subset is by definition worthless and undeserving of constitutional protection. The majority's observation that fighting words are "quite expressive indeed," ante, at 385, is no answer. Fighting words are not a means of exchanging views, rallying supporters, or registering a protest; they are directed against individuals to provoke violence or to inflict injury. Chaplin sky, 315 U. S., at 572. Therefore, a ban on all fighting words or on a subset of the fighting words category would restrict only the social evil of hate speech, without creating the danger of driving viewpoints from the marketplace. See ante, at 387. 402 WHITE, J., concurring in judgment Therefore, the Court's insistence on inventing its brand of First Amendment underinclusiveness puzzles me.3 The overbreadth doctrine has the redeeming virtue of attempting to avoid the chilling of protected expression, Broadrick v. Oklahoma, 413 U. S. 601 , 612 (1973); Osborne v. Ohio, 495 U. S. 103 , 112, n. 8 (1990); Brockett v. Spokane Arcades, Inc., 472 U. S. 491 , 503 (1985); Ferber, supra, at 772, but the Court's new "underbreadth" creation serves no desirable function. Instead, it permits, indeed invites, the continuation of expressive conduct that in this case is evil and worthless in First Amendment terms, see Ferber, supra, at 763 764; Chaplinsky, supra, at 571-572, until the city of St. Paul cures the underbreadth by adding to its ordinance a catchall phrase such as "and all other fighting words that may constitutionally be subject to this ordinance." Any contribution of this holding to First Amendment jurisprudence is surely a negative one, since it necessarily signals that expressions of violence, such as the message of intimidation and racial hatred conveyed by burning a cross on someone's lawn, are of sufficient value to outweigh the social interest in order and morality that has traditionally placed such fighting words outside the First Amendment.4 Indeed, by characterizing fighting words as a form of "debate," ante, at 392, the majority legitimates hate speech as a form of public discussion. 3 The assortment of exceptions the Court attaches to its rule belies the majority's claim, see ante, at 387, that its new theory is truly concerned with content discrimination. See Part I-C, infra (discussing the exceptions). 4 This does not suggest, of course, that cross burning is always unprotected. Burning a cross at a political rally would almost certainly be protected expression. Cf. Brandenburg v. Ohio, 395 U. S. 444 , 445 (1969). But in such a context, the cross burning could not be characterized as a "direct personal insult or an invitation to exchange fisticuffs," Texas v. Johnson, 491 U. S. 397 , 409 (1989), to which the fighting words doctrine, see Part II, infra, applies. 403 Furthermore, the Court obscures the line between speech that could be regulated freely on the basis of content (i. e., the narrow categories of expression falling outside the First Amendment) and that which could be regulated on the basis of content only upon a showing of a compelling state interest (i. e., all remaining expression). By placing fighting words, which the Court has long held to be valueless, on at least equal constitutional footing with political discourse and other forms of speech that we have deemed to have the greatest social value, the majority devalues the latter category. See Burson v. Freeman, supra, at 196; Eu v. San Francisco Cty. Democratic Central Comm., 489 U. S. 214 , 222-223 (1989). B In a second break with precedent, the Court refuses to sustain the ordinance even though it would survive under the strict scrutiny applicable to other protected expression. Assuming, arguendo, that the St. Paul ordinance is a contentbased regulation of protected expression, it nevertheless would pass First Amendment review under settled law upon a showing that the regulation "'is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.'" Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105 , 118 (1991) (quoting Arkansas Writers' Project, Inc. v. Ragland, 481 U. S. 221 , 231 (1987)). St. Paul has urged that its ordinance, in the words of the majority, "helps to ensure the basic human rights of members of groups that have historically been subjected to discrimination .... " Ante, at 395. The Court expressly concedes that this interest is compelling and is promoted by the ordinance. Ibid. Nevertheless, the Court treats strict scrutiny analysis as irrelevant to the constitutionality of the legislation: "The dispositive question ... is whether content discrimination is reasonably necessary to achieve St. Paul's compelling interests; it plainly is not. An ordinance not 404 WHITE, J., concurring in judgment limited to the favored topics, for example, would have precisely the same beneficial effect." Ante, at 395-396. Under the majority's view, a narrowly drawn, content-based ordinance could never pass constitutional muster if the object of that legislation could be accomplished by banning a wider category of speech. This appears to be a general renunciation of strict scrutiny review, a fundamental tool of First Amendment analysis.5 This abandonment of the doctrine is inexplicable in light of our decision in Burson v. Freeman, 504 U. S. 191 (1992), which was handed down just a month ago.6 In Burson, seven of the eight participating Members of the Court agreed that the strict scrutiny standard applied in a case involving a First Amendment challenge to a content-based statute. See id., at 198 (plurality opinion); id., at 217 (STEVENS, J., 5 The majority relies on Boos v. Barry, 485 U. S. 312 (1988), in arguing that the availability of content-neutral alternatives "'undercut[s] significantly'" a claim that content-based legislation is "'necessary to serve the asserted [compelling] interest.''' Ante, at 395 (quoting Boos, supra, at 329, and Burson v. Freeman, 504 U. S. 191 , 199 (1992) (plurality opinion)). Boos does not support the majority's analysis. In Boos, Congress already had decided that the challenged legislation was not necessary, and the Court pointedly deferred to this choice. 485 U. S., at 329. St. Paul lawmakers have made no such legislative choice. Moreover, in Boos, the Court held that the challenged statute was not narrowly tailored because a less restrictive alternative was available. Ibid. But the Court's analysis today turns Boos inside-out by substituting the majority's policy judgment that a more restrictive alternative could adequately serve the compelling need identified by St. Paullawmakers. The result would be: (a) a statute that was not tailored to fit the need identified by the government; and (b) a greater restriction on fighting words, even though the Court clearly believes that fighting words have protected expressive content. Ante, at 384-385. 6 Earlier this Term, seven of the eight participating Members of the Court agreed that strict scrutiny analysis applied in Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105 (1991), in which we struck down New York's "Son of Sam" law, which required "that an accused or convicted criminal's income from works describing his crime be deposited in an escrow account." Id., at 108. 405 dissenting).7 The statute at issue prohibited the solicitation of votes and the display or distribution of campaign materials within 100 feet of the entrance to a polling place. The plurality concluded that the legislation survived strict scrutiny because the State had asserted a compelling interest in regulating electioneering near polling places and because the statute at issue was narrowly tailored to accomplish that goal. Id., at 208-210. Significantly, the statute in Burson did not proscribe all speech near polling places; it restricted only political speech. Id., at 197. The Burson plurality, which included THE CHIEF JUSTICE and JUSTICE KENNEDY, concluded that the distinction between types of speech required application of strict scrutiny, but it squarely rejected the proposition that the legislation failed First Amendment review because it could have been drafted in broader, content-neutral terms: "States adopt laws to address the problems that confront them. The First Amendment does not require States to regulate for problems that do not exist." Id., at 207 (emphasis added). This reasoning is in direct conflict with the majority's analysis in the present case, which leaves two options to lawmakers attempting to regulate expressions of violence: (1) enact a sweeping prohibition on an entire class of speech (thereby requiring "regulat[ion] for problems that do not exist"); or (2) not legislate at all. Had the analysis adopted by the majority in the present case been applied in Burson, the challenged election law would have failed constitutional review, for its content-based distinction between political and nonpolitical speech could not have been characterized as "reasonably necessary," ante, 7 The Burson dissenters did not complain that the plurality erred in applying strict scrutiny; they objected that the plurality was not sufficiently rigorous in its review. 504 U. S., at 225-226 (STEVENS, J., dissenting). 406 WHITE, J., concurring in judgment at 395, to achieve the State's interest in regulating polling place premises.8 As with its rejection of the Court's categorical analysis, the majority offers no reasoned basis for discarding our firmly established strict scrutiny analysis at this time. The majority appears to believe that its doctrinal revisionism is necessary to prevent our elected lawmakers from prohibiting libel against members of one political party but not another and from enacting similarly preposterous laws. Ante, at 384. The majority is misguided. Although the First Amendment does not apply to categories of unprotected speech, such as fighting words, the Equal Protection Clause requires that the regulation of unprotected speech be rationally related to a legitimate government interest. A defamation statute that drew distinctions on the basis of political affiliation or "an ordinance prohibiting only those legally obscene works that contain criticism of the city government," ibid., would unquestionably fail rational-basis review.9 8JU8TICE SCALIA concurred in the judgment in Burson, reasoning that the statute, "though content based, is constitutional [as] a reasonable, viewpoint-neutral regulation of a nonpublic forum." Id., at 214. However, nothing in his reasoning in the present case suggests that a contentbased ban on fighting words would be constitutional were that ban limited to nonpublic fora. Taken together, the two opinions suggest that, in some settings, political speech, to which "the First Amendment 'has its fullest and most urgent application,'" is entitled to less constitutional protection than fighting words. Eu v. San Francisco Cty. Democratic Central Comm., 489 U. S. 214 , 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 9 The majority is mistaken in stating that a ban on obscene works critical of government would fail equal protection review only because the ban would violate the First Amendment. Ante, at 384-385, n. 4. While decisions such as Police Dept. of Chicago v. Mosley, 408 U. S. 92 (1972), recognize that First Amendment principles may be relevant to an equal protection claim challenging distinctions that impact on protected expression, id., at 95-99, there is no basis for linking First and Fourteenth Amendment analysis in a case involving unprotected expression. Certainly, one 407 Turning to the St. Paul ordinance and assuming, arguendo, as the majority does, that the ordinance is not constitutionally overbroad (but see Part II, infra), there is no question that it would pass equal protection review. The ordinance proscribes a subset of "fighting words," those that injure "on the basis of race, color, creed, religion or gender." This selective regulation reflects the city's judgment that harms based on race, color, creed, religion, or gender are more pressing public concerns than the harms caused by other fighting words. In light of our Nation's long and painful experience with discrimination, this determination is plainly reasonable. Indeed, as the majority concedes, the interest is compelling. Ante, at 395. C The Court has patched up its argument with an apparently nonexhaustive list of ad hoc exceptions, in what can be viewed either as an attempt to confine the effects of its decision to the facts of this case, see post, at 415 (BLACKMUN, J., concurring in judgment), or as an effort to anticipate some of the questions that will arise from its radical revision of First Amendment law. For instance, if the majority were to give general application to the rule on which it decides this case, today's decision would call into question the constitutionality of the statute making it illegal to threaten the life of the President. 18 U. S. C. §871. See Watts v. United States, 394 U. S. 705 (1969) (per curiam). Surely, this statute, by singling out certain threats, incorporates a content-based distinction; it indicates that the Government especially disfavors threats against the President as opposed to threats against all oth- need not resort to First Amendment principles to conclude that the sort of improbable legislation the majority hypothesizes is based on senseless distinctions. 408 WHITE, J., concurring in judgment ers.10 See ante, at 391. But because the Government could prohibit all threats and not just those directed against the President, under the Court's theory, the compelling reasons justifying the enactment of special legislation to safeguard the President would be irrelevant, and the statute would fail First Amendment review. To save the statute, the majority has engrafted the following exception onto its newly announced First Amendment rule: Content-based distinctions may be drawn within an unprotected category of speech if the basis for the distinctions is "the very reason the entire class of speech at issue is proscribable." Ante, at 388. Thus, the argument goes, the statute making it illegal to threaten the life of the President is constitutional, "since the reasons why threats of violence are outside the First Amendment (protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur) have special force when applied to the person of the President." Ibid. The exception swallows the majority's rule. Certainly, it should apply to the St. Paul ordinance, since "the reasons why [fighting words] are outside the First Amendment ... have special force when applied to [groups that have historically been subjected to discrimination]." To avoid the result of its own analysis, the Court suggests that fighting words are simply a mode of communication, rather than a content-based category, and that the St. Paul ordinance has not singled out a particularly objectionable mode of communication. Ante, at 386, 393. Again, the majority confuses the issue. A prohibition on fighting words is not a time, place, or manner restriction; it is a ban on a class of speech that conveys an overriding message of personal injury and imminent violence, Chaplinsky, 315 U. S., at 572, a message that is at its ugliest when directed against groups 10 Indeed, such a law is content based in and of itself because it distinguishes between threatening and nonthreatening speech. 409 that have long been the targets of discrimination. Accordingly, the ordinance falls within the first exception to the majority's theory. As its second exception, the Court posits that certain content-based regulations will survive under the new regime if the regulated subclass "happens to be associated with particular 'secondary effects' of the speech ... ," ante, at 389, which the majority treats as encompassing instances in which "words can ... violate laws directed not against speech but against conduct ... ," ibidY Again, there is a simple explanation for the Court's eagerness to craft an exception to its new First Amendment rule: Under the general rule the Court applies in this case, Title VII hostile work environment claims would suddenly be unconstitutional. Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate "because of [an] individual's race, color, religion, sex, or national origin," 42 U. S. C. § 2000e-2(a)(1), and the regulations covering hostile workplace claims forbid "sexual harassment," which includes "[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature" that create "an intimidating, hostile, or offensive working environment," 29 CFR § 1604.11(a) (1991). The regulation does not prohibit workplace harassment generally; it focuses on what the majority would characterize as the "disfavored topi[c]" of sexual harassment. Ante, at 391. In this way, Title VII is similar to the St. Paul ordinance that the majority condemns because it "impose[s] special prohibitions on those speakers who express views on disfavored subjects." Ibid. Under the broad principle the Court uses to decide the present case, 11 The consequences of the majority's conflation of the rarely used secondary effects standard and the O'Brien test for conduct incorporating "speech" and "nonspeech" elements, see generally United States v. O'Brien, 391 U. S. 367 , 376-377 (1968), present another question that I fear will haunt us and the lower courts in the aftermath of the majority's opinion. 410 WHITE, J., concurring in judgment hostile work environment claims based on sexual harassment should fail First Amendment review; because a general ban on harassment in the workplace would cover the problem of sexual harassment, any attempt to proscribe the subcategory of sexually harassing expression would violate the First Amendment. Hence, the majority's second exception, which the Court indicates would insulate a Title VII hostile work environment claim from an underinclusiveness challenge because "sexually derogatory 'fighting words' ... may produce a violation of Title VII's general prohibition against sexual discrimination in employment practices." Ante, at 389. But application of this exception to a hostile work environment claim does not hold up under close examination. First, the hostile work environment regulation is not keyed to the presence or absence of an economic quid pro quo, Meritor Savings Bank, F. S. B. v. Vinson, 477 U. S. 57 , 65 (1986), but to the impact of the speech on the victimized worker. Consequently, the regulation would no more fall within a secondary effects exception than does the St. Paul ordinance. Ante, at 394. Second, the majority's focus on the statute's general prohibition on discrimination glosses over the language of the specific regulation governing hostile working environment, which reaches beyond any "incidental" effect on speech. United States v. O'Brien, 391 U. S. 367 , 376 (1968). If the relationship between the broader statute and specific regulation is sufficent to bring the Title VII regulation within O'Brien, then all St. Paul need do to bring its ordinance within this exception is to add some prefatory language concerning discrimination generally. As to the third exception to the Court's theory for deciding this case, the majority concocts a catchall exclusion to protect against unforeseen problems, a concern that is heightened here given the lack of briefing on the majority's decisional theory. This final exception would apply in cases in which "there is no realistic possibility that official suppression of ideas is afoot." Ante, at 390. As I have demon- 411 strated, this case does not concern the official suppression of ideas. See supra, at 401. The majority discards this notion out of hand. Ante, at 395. As I see it, the Court's theory does not work and will do nothing more than confuse the law. Its selection of this case to rewrite First Amendment law is particularly inexplicable, because the whole problem could have been avoided by deciding this case under settled First Amendment principles. II Although I disagree with the Court's analysis, I do agree with its conclusion: The St. Paul ordinance is unconstitutional. However, I would decide the case on overbreadth grounds. We have emphasized time and again that overbreadth doctrine is an exception to the established principle that "a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court." Broadrick v. Oklahoma, 413 U. S., at 610; Brockett v. Spokane Arcades, Inc., 472 U. S., at 503-504. A defendant being prosecuted for speech or expressive conduct may challenge the law on its face if it reaches protected expression, even when that person's activities are not protected by the First Amendment. This is because "the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted." Broadrick, supra, at 612; Osborne v. Ohio, 495 U. S., at 112, n. 8; New York v. Ferber, 458 U. S., at 768-769; Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 , 634 (1980); Gooding v. Wilson, 405 U. S. 518 , 521 (1972). However, we have consistently held that, because overbreadth analysis is "strong medicine," it may be invoked to strike an entire statute only when the overbreadth of the statute is not only "real, but substantial as well, judged in relation to the statute's plainly legitimate sweep," Broad- 412 WHITE, J., concurring in judgment rick, 413 U. S., at 615, and when the statute is not susceptible to limitation or partial invalidation, id., at 613; Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569, 574 (1987). "When a federal court is dealing with a federal statute challenged as overbroad, it should ... construe the statute to avoid constitutional problems, if the statute is subject to a limiting construction." Ferber, 458 U. S., at 769, n. 24. Of course, "[a] state court is also free to deal with a state statute in the same way." Ibid. See, e. g., Osborne, 495 U. S., at 113-114. Petitioner contends that the St. Paul ordinance is not susceptible to a narrowing construction and that the ordinance therefore should be considered as written, and not as construed by the Minnesota Supreme Court. Petitioner is wrong. Where a state court has interpreted a provision of state law, we cannot ignore that interpretation, even if it is not one that we would have reached if we were construing the statute in the first instance. Ibid.; Kolender v. Lawson, 461 U. S. 352 , 355 (1983); Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489 , 494, n. 5 (1982).12 Of course, the mere presence of a state court interpretation does not insulate a statute from overbreadth review. We have stricken legislation when the construction supplied by the state court failed to cure the overbreadth problem. 12 Petitioner can derive no support from our statement in Virginia v. American Booksellers Assn., Inc., 484 U. S. 383 , 397 (1988), that "the statute must be 'readily susceptible' to the limitation; we will not rewrite a state law to conform it to constitutional requirements." In American Booksellers, no state court had construed the language in dispute. In that instance, we certified a question to the state court so that it would have an opportunity to provide a narrowing interpretation. Ibid. In Erznoznik v. Jacksonville, 422 U. S. 205 , 216 (1975), the other case upon which petitioner principally relies, we observed not only that the ordinance at issue was not "by its plain terms ... easily susceptible of a narrowing construction," but that the state courts had made no effort to restrict the scope of the statute when it was challenged on overbreadth grounds. 413 See, e. g., Lewis v. New Orleans, 415 U. S. 130 , 132-133 (1974); Gooding, supra, at 524-525. But in such cases, we have looked to the statute as construed in determining whether it contravened the First Amendment. Here, the Minnesota Supreme Court has provided an authoritative construction of the St. Paul antibias ordinance. Consideration of petitioner's overbreadth claim must be based on that interpretation. I agree with petitioner that the ordinance is invalid on its face. Although the ordinance as construed reaches categories of speech that are constitutionally unprotected, it also criminalizes a substantial amount of expression that-however repugnant-is shielded by the First Amendment. In attempting to narrow the scope of the St. Paul antibias ordinance, the Minnesota Supreme Court relied upon two of the categories of speech and expressive conduct that fall outside the First Amendment's protective sphere: words that incite "imminent lawless action," Brandenburg v. Ohio, 395 U. S. 444, 449 (1969), and "fighting" words, Chaplinsky v. New Hampshire, 315 U. S., at 571-572. The Minnesota Supreme Court erred in its application of the Chaplinsky fighting words test and consequently interpreted the St. Paul ordinance in a fashion that rendered the ordinance facially overbroad. In construing the St. Paul ordinance, the Minnesota Supreme Court drew upon the definition of fighting words that appears in Chaplinsky-words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Id., at 572. However, the Minnesota court was far from clear in identifying the "injur[ies]" inflicted by the expression that St. Paul sought to regulate. Indeed, the Minnesota court emphasized (tracking the language of the ordinance) that "the ordinance censors only those displays that one knows or should know will create anger, alarm or resentment based on racial, ethnic, gender or religious bias." In re Welfare of R. A. V:, 464 N. W. 2d 507, 510 (1991). I 414 WHITE, J., concurring in judgment therefore understand the court to have ruled that St. Paul may constitutionally prohibit expression that "by its very utterance" causes "anger, alarm or resentment." Our fighting words cases have made clear, however, that such generalized reactions are not sufficient to strip expression of its constitutional protection. The mere fact that expressive activity causes hurt feelings, offense, or resentment does not render the expression unprotected. See United States v. Eichman, 496 U. S. 310 , 319 (1990); Texas v. Johnson, 491 U. S. 397 , 409, 414 (1989); Hustler Magazine, Inc. v. Falwell, 485 U. S. 46 , 55-56 (1988); FCC v. Pacifica Foundation, 438 U. S. 726 , 745 (1978); Hess v. Indiana, 414 U. S. 105 , 107-108 (1973); Cohen v. California, 403 U. S. 15 , 20 (1971); Street v. New York, 394 U. S. 576 , 592 (1969); Terminiello v. Chicago, 337 U. S. 1 (1949). In the First Amendment context, "[c]riminal statutes must be scrutinized with particular care; those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application." Houston v. Hill, 482 U. S. 451 , 459 (1987) (citation omitted). The St. Paul antibias ordinance is such a law. Although the ordinance reaches conduct that is unprotected, it also makes criminal expressive conduct that causes only hurt feelings, offense, or resentment, and is protected by the First Amendment. Cf. Lewis, supra, at 132.13 The ordinance is therefore fatally overbroad and invalid on its face. 13 Although the First Amendment protects offensive speech, Johnson v. Texas, 491 U. S., at 414, it does not require us to be subjected to such expression at all times, in all settings. We have held that such expression may be proscribed when it intrudes upon a "captive audience." Frisby v. Schultz, 487 U. S. 474 , 484-485 (1988); FCC v. Pacifica Foundation, 438 U. S. 726, 748-749 (1978). And expression may be limited when it merges into conduct. United States v. O'Brien, 391 U. S. 367 (1968); cf. Meritor Savings Bank, F. S. B. v. Vinson, 477 U. S. 57 ,65 (1986). However, because of the manner in which the Minnesota Supreme Court construed the St. Paul ordinance, those issues are not before us in this case. 415 III Today, the Court has disregarded two established principles of First Amendment law without providing a coherent replacement theory. Its decision is an arid, doctrinaire interpretation, driven by the frequently irresistible impulse of judges to tinker with the First Amendment. The decision is mischievous at best and will surely confuse the lower courts. I join the judgment, but not the folly of the opinion. JUSTICE BLACKMUN, concurring in the judgment. I regret what the Court has done in this case. The majority opinion signals one of two possibilities: It will serve as precedent for future cases, or it will not. Either result is disheartening. In the first instance, by deciding that a State cannot regulate speech that causes great harm unless it also regulates speech that does not (setting law and logic on their heads), the Court seems to abandon the categorical approach, and inevitably to relax the level of scrutiny applicable to contentbased laws. As JUSTICE WHITE points out, this weakens the traditional protections of speech. If all expressive activity must be accorded the same protection, that protection will be scant. The simple reality is that the Court will never provide child pornography or cigarette advertising the level of protection customarily granted political speech. If we are forbidden to categorize, as the Court has done here, we shall reduce protection across the board. It is sad that in its effort to reach a satisfying result in this case, the Court is willing to weaken First Amendment protections. In the second instance is the possibility that this case will not significantly alter First Amendment jurisprudence but, instead, will be regarded as an aberration-a case where the Court manipulated doctrine to strike down an ordinance whose premise it opposed, namely, that racial threats and verbal assaults are of greater harm than other fighting words. I fear that the Court has been distracted from its 416 STEVENS, J., concurring in judgment proper mission by the temptation to decide the issue over "politically correct speech" and "cultural diversity," neither of which is presented here. If this is the meaning of today's opinion, it is perhaps even more regrettable. I see no First Amendment values that are compromised by a law that prohibits hoodlums from driving minorities out of their homes by burning crosses on their lawns, but I see great harm in preventing the people of Saint Paul from specifically punishing the race-based fighting words that so prejudice their community. I concur in the judgment, however, because I agree with JUSTICE WHITE that this particular ordinance reaches beyond fighting words to speech protected by the First Amendment. JUSTICE STEVENS, with whom JUSTICE WHITE and JusTICE BLACKMUN join as to Part I, concurring in the judgment. Conduct that creates special risks or causes special harms may be prohibited by special rules. Lighting a fire near an ammunition dump or a gasoline storage tank is especially dangerous; such behavior may be punished more severely than burning trash in a vacant lot. Threatening someone because of her race or religious beliefs may cause particularly severe trauma or touch off a riot, and threatening a high public official may cause substantial social disruption; such threats may be punished more severely than threats against someone based on, say, his support of a particular athletic team. There are legitimate, reasonable, and neutral justifications for such special rules. This case involves the constitutionality of one such ordinance. Because the regulated conduct has some communicative content-a message of racial, religious, or gender hostility-the ordinance raises two quite different First Amendment questions. Is the ordinance "overbroad" be- 417 cause it prohibits too much speech? If not, is it "underbroad" because it does not prohibit enough speech? In answering these questions, my colleagues today wrestle with two broad principles: first, that certain "categories of expression [including 'fighting words'] are 'not within the area of constitutionally protected speech,'" ante, at 400 (WHITE, J., concurring in judgment); and second, that "[c]ontent-based regulations [of expression] are presumptively invalid," ante, at 382 (majority opinion). Although in past opinions the Court has repeated both of these maxims, it has-quite rightly-adhered to neither with the absolutism suggested by my colleagues. Thus, while I agree that the St. Paul ordinance is unconstitutionally overbroad for the reasons stated in Part II of JUSTICE WHITE'S opinion, I write separately to suggest how the allure of absolute principles has skewed the analysis of both the majority and JUSTICE WHITE'S opinions. I Fifty years ago, the Court articulated a categorical ap- proach to First Amendment jurisprudence. "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem .... It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky v. New Hampshire, 315 U. S. 568 , 571-572 (1942). We have, as JUSTICE WHITE observes, often described such categories of expression as "not within the area of constitutionally protected speech." Roth v. United States, 354 U. S. 476 , 483 (1957). 418 STEVENS, J., concurring in judgment The Court today revises this categorical approach. It is not, the Court rules, that certain "categories" of expression are "unprotected," but rather that certain "elements" of expression are wholly "proscribable." To the Court, an expressive act, like a chemical compound, consists of more than one element. Although the act may be regulated because it contains a proscribable element, it may not be regulated on the basis of another (nonproscribable) element it also contains. Thus, obscene antigovernment speech may be regulated because it is obscene, but not because it is antigovernment. Ante, at 384. It is this revision of the categorical approach that allows the Court to assume that the St. Paul ordinance proscribes only fighting words, while at the same time concluding that the ordinance is invalid because it imposes a content-based regulation on expressive activity. As an initial matter, the Court's revision of the categorical approach seems to me something of an adventure in a doctrinal wonderland, for the concept of "obscene antigovernment" speech is fantastical. The category of the obscene is very narrow; to be obscene, expression must be found by the trier of fact to "appea[l] to the prurient interest, ... depic[t] or describ[e], in a patently offensive way, sexual conduct, [and], taken as a whole, lac[k] serious literary, artistic, political, or scientific value." Miller v. California, 413 U. S. 15 , 24 (1973) (emphasis added). "Obscene antigovernment" speech, then, is a contradiction in terms: If expression is antigovernment, it does not "lac[k] serious ... political ... value" and cannot be obscene. The Court attempts to bolster its argument by likening its novel analysis to that applied to restrictions on the time, place, or manner of expression or on expressive conduct. It is true that loud speech in favor of the Republican Party can be regulated because it is loud, but not because it is proRepublican; and it is true that the public burning of the American flag can be regulated because it involves public burning and not because it involves the flag. But these anal- 419 ogies are inapposite. In each of these examples, the two elements (e. g., loudness and pro-Republican orientation) can coexist; in the case of "obscene antigovernment" speech, however, the presence of one element ("obscenity") by definition means the absence of the other. To my mind, it is unwise and unsound to craft a new doctrine based on such highly speculative hypotheticals. I am, however, even more troubled by the second step of the Court's analysis-namely, its conclusion that the St. Paul ordinance is an unconstitutional content-based regulation of speech. Drawing on broadly worded dicta, the Court establishes a near-absolute ban on content-based regulations of expression and holds that the First Amendment prohibits the regulation of fighting words by subject matter. Thus, while the Court rejects the "all-or-nothing-at-all" nature of the categorical approach, ante, at 384, it promptly embraces an absolutism of its own: Within a particular "proscribable" category of expression, the Court holds, a government must either proscribe all speech or no speech at all.1 This aspect of the Court's ruling fundamentally misunderstands the role and constitutional status of content-based regulations on speech, conflicts with the very nature of First Amendment jurisprudence, and disrupts well-settled principles of First Amendment law. 1 The Court disputes this characterization because it has crafted two exceptions, one for "certain media or markets" and the other for content discrimination based upon "the very reason that the entire class of speech at issue is proscribable." Ante, at 388. These exceptions are, at best, ill defined. The Court does not tell us whether, with respect to the former, fighting words such as cross burning could be proscribed only in certain neighborhoods where the threat of violence is particularly severe, or whether, with respect to the second category, fighting words that create a particular risk of harm (such as a race riot) would be proscribable. The hypothetical and illusory category of these two exceptions persuades me that either my description of the Court's analysis is accurate or that the Court does not in fact mean much of what it says in its opinion. 420 STEVENS, J., concurring in judgment Although the Court has, on occasion, declared that content-based regulations of speech are "never permitted," Police Dept. of Chicago v. Mosley, 408 U. S. 92 , 99 (1972), such claims are overstated. Indeed, in Mosley itself, the Court indicated that Chicago's selective proscription of nonlabor picketing was not per se unconstitutional, but rather could be upheld if the city demonstrated that nonlabor picketing was "clearly more disruptive than [labor] picketing." Id., at 100. Contrary to the broad dicta in Mosley and elsewhere, our decisions demonstrate that content-based distinctions, far from being presumptively invalid, are an inevitable and indispensable aspect of a coherent understanding of the First Amendment. This is true at every level of First Amendment law. In broadest terms, our entire First Amendment jurisprudence creates a regime based on the content of speech. The scope of the First Amendment is determined by the content of expressive activity: Although the First Amendment broadly protects "speech," it does not protect the right to "fix prices, breach contracts, make false warranties, place bets with bookies, threaten, [or] extort." Schauer, Categories and the First Amendment: A Play in Three Acts, 34 Vand. L. Rev. 265, 270 (1981). Whether an agreement among competitors is a violation of the Sherman Act or protected activity under the Noerr-Pennington doctrine2 hinges upon the content of the agreement. Similarly, "the line between permissible advocacy and impermissible incitation to crime or violence depends, not merely on the setting in which the speech occurs, but also on exactly what the speaker had to say." Young v. American Mini Theatres, Inc., 427 U. S. 50 , 66 (1976) (plurality opinion); see also Musser v. Utah, 333 U. S. 95 , 100-103 (1948) (Rutledge, J., dissenting). 2 See Mine Workers v. Pennington, 381 U. S. 657 (1965); Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127 (1961). 421 Likewise, whether speech falls within one of the categories of "unprotected" or "proscribable" expression is determined, in part, by its content. Whether a magazine is obscene, a gesture a fighting word, or a photograph child pornography is determined, in part, by its content. Even within categories of protected expression, the First Amendment status of speech is fixed by its content. New York Times Co. v. Sullivan, 376 U. S. 254 (1964), and Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749 (1985), establish that the level of protection given to speech depends upon its subject matter: Speech about public officials or matters of public concern receives greater protection than speech about other topics. It can, therefore, scarcely be said that the regulation of expressive activity cannot be predicated on its content: Much of our First Amendment jurisprudence is premised on the assumption that content makes a difference. Consistent with this general premise, we have frequently upheld content-based regulations of speech. For example, in Young v. American Mini Theatres, the Court upheld zoning ordinances that regulated movie theaters based on the content of the films shown. In FCC v. Pacifica Foundation, 438 U. S. 726 (1978) (plurality opinion), we upheld a restriction on the broadcast of specific indecent words. In Lehman v. Shaker Heights, 418 U. S. 298 (1974) (plurality opinion), we upheld a city law that permitted commercial advertising, but prohibited political advertising, on city buses. In Broadrick v. Oklahoma, 413 U. S. 601 (1973), we upheld a state law that restricted the speech of state employees, but only as concerned partisan political matters. We have long recognized the power of the Federal Trade Commission to regulate misleading advertising and labeling, see, e. g., Jacob Siegel Co. v. FTC, 327 U. S. 608 (1946), and the National Labor Relations Board's power to regulate an employer's election-related speech on the basis of its content, see, e. g., NLRB v. Gissel Packing Co., 395 U. S. 575 , 616-618 (1969). 422 STEVENS, J., concurring in judgment It is also beyond question that the Government may choose to limit advertisements for cigarettes, see 15 U. S. C. §§ 13311340,3 but not for cigars; choose to regulate airline advertising, see Morales v. Trans World Airlines, Inc., 504 U. S. 374 (1992), but not bus advertising; or choose to monitor solicitation by lawyers, see Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978), but not by doctors. All of these cases involved the selective regulation of speech based on content-precisely the sort of regulation the Court invalidates today. Such selective regulations are unavoidably content based, but they are not, in my opinion, "presumptively invalid." As these many decisions and examples demonstrate, the prohibition on content-based regulations is not nearly as total as the Mosley dictum suggests. Disregarding this vast body of case law, the Court today goes beyond even the overstatement in Mosley and applies the prohibition on content-based regulation to speech that the Court had until today considered wholly "unprotected" by the First Amendment-namely, fighting words. This new absolutism in the prohibition of content-based regulations severely contorts the fabric of settled First Amendment law. Our First Amendment decisions have created a rough hierarchy in the constitutional protection of speech. Core political speech occupies the highest, most protected position; commercial speech and nonobscene, sexually explicit speech are regarded as a sort of second-class expression; obscenity and fighting words receive the least protection of all. Assuming that the Court is correct that this last class of speech is not wholly "unprotected," it certainly does not follow that fighting words and obscenity receive the same sort of protection afforded core political speech. Yet in ruling that proscribable speech cannot be regulated based on subject 3 See also Packer Corp. v. Utah, 285 U. S. 105 (1932) (Brandeis, J.) (upholding a statute that prohibited the advertisement of cigarettes on billboards and streetcar placards). 423 matter, the Court does just that.4 Perversely, this gives fighting words greater protection than is afforded commercial speech. If Congress can prohibit false advertising directed at airline passengers without also prohibiting false advertising directed at bus passengers and if a city can prohibit political advertisements in its buses while allowing other advertisements, it is ironic to hold that a city cannot regulate fighting words based on "race, color, creed, religion or gender" while leaving unregulated fighting words based on "union membership ... or homosexuality." Ante, at 391. The Court today turns First Amendment law on its head: Communication that was once entirely unprotected (and that still can be wholly proscribed) is now entitled to greater protection than commercial speech-and possibly greater protection than core political speech. See Burson v. Freeman, 504 U. S. 191 , 195, 196 (1992). Perhaps because the Court recognizes these perversities, it quickly offers some ad hoc limitations on its newly extended prohibition on content-based regulations. First, the Court states that a content-based regulation is valid "[w]hen the basis for the content discrimination consists entirely of the very reason the entire class of speech ... is proscribable." Ante, at 388. In a pivotal passage, the Court writes: "[T]he Federal Government can criminalize only those threats of violence that are directed against the President, see 18 U. S. C. § 871-since the reasons why 4 The Court states that the prohibition on content-based regulations "applies differently in the context of pros crib able speech" than in the context of other speech, ante, at 387, but its analysis belies that claim. The Court strikes down the St. Paul ordinance because it regulates fighting words based on subject matter, despite the fact that, as demonstrated above, we have long upheld regulations of commercial speech based on subject matter. The Court's self-description is inapt: By prohibiting the regulation of fighting words based on its subject matter, the Court provides the same protection to fighting words as is currently provided to core political speech. 424 STEVENS, J., concurring in judgment threats of violence are outside the First Amendment (protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur) have special force when applied to the ... President." Ibid. As I understand this opaque passage, Congress may choose from the set of unprotected speech (all threats) to proscribe only a subset (threats against the President) because those threats are particularly likely to cause "fear of violence," "disruption," and actual "violence." Precisely this same reasoning, however, compels the conclusion that St. Paul's ordinance is constitutional. Just as Congress may determine that threats against the President entail more severe consequences than other threats, so St. Paul's City Council may determine that threats based on the target's race, religion, or gender cause more severe harm to both the target and to society than other threats. This latter judgment-that harms caused by racial, religious, and gender-based invective are qualitatively different from that caused by other fighting words-seems to me eminently reasonable and realistic. Next, the Court recognizes that a State may regulate advertising in one industry but not another because "the risk of fraud (one of the characteristics ... that justifies depriving [commercial speech] of full First Amendment protection ... )" in the regulated industry is "greater" than in other industries. Ibid. Again, the same reasoning demonstrates the constitutionality of St. Paul's ordinance. "[O]ne of the characteristics that justifies" the constitutional status of fighting words is that such words "by their very utterance inflict injury or tend to incite an immediate breach of the peace." Chap linsky, 315 U. S., at 572. Certainly a legislature that may determine that the risk of fraud is greater in the legal 425 trade than in the medical trade may determine that the risk of injury or breach of peace created by race-based threats is greater than that created by other threats. Similarly, it is impossible to reconcile the Court's analysis of the St. Paul ordinance with its recognition that "a prohibition of fighting words that are directed at certain persons or groups ... would be facially valid." Ante, at 392 (emphasis deleted). A selective proscription of unprotected expression designed to protect "certain persons or groups" (for example, a law proscribing threats directed at the elderly) would be constitutional if it were based on a legitimate determination that the harm created by the regulated expression differs from that created by the unregulated expression (that is, if the elderly are more severely injured by threats than are the nonelderly). Such selective protection is no different from a law prohibiting minors (and only minors) from obtaining obscene publications. See Ginsberg v. New York, 390 U. S. 629 (1968). St. Paul has determined-reasonably in my judgment-that fighting-word injuries "based on race, color, creed, religion or gender" are qualitatively different and more severe than fighting-word injuries based on other characteristics. Whether the selective proscription of proscribable speech is defined by the protected target ("certain persons or groups") or the basis of the harm (injuries "based on race, color, creed, religion or gender") makes no constitutional difference: What matters is whether the legislature's selection is based on a legitimate, neutral, and reasonable distinction. In sum, the central premise of the Court's ruling-that "[c]ontent-based regulations are presumptively invalid"has simplistic appeal, but lacks support in our First Amendment jurisprudence. To make matters worse, the Court today extends this overstated claim to reach categories of hitherto unprotected speech and, in doing so, wreaks havoc in an area of settled law. Finally, although the Court recog- 426 STEVENS, J., concurring in judgment nizes exceptions to its new principle, those exceptions undermine its very conclusion that the St. Paul ordinance is unconstitutional. Stated directly, the majority's position cannot withstand scrutiny. II Although I agree with much of JUSTICE WHITE'S analysis, I do not join Part I -A of his opinion because I have reservations about the "categorical approach" to the First Amendment. These concerns, which I have noted on other occasions, see, e. g., New York v. Ferber, 458 U. S. 747 , 778 (1982) (opinion concurring in judgment), lead me to find JUSTICE WHITE'S response to the Court's analysis unsatisfying. Admittedly, the categorical approach to the First Amendment has some appeal: Either expression is protected or it is not-the categories create safe harbors for governments and speakers alike. But this approach sacrifices subtlety for clarity and is, I am convinced, ultimately unsound. As an initial matter, the concept of "categories" fits poorly with the complex reality of expression. Few dividing lines in First Amendment law are straight and unwavering, and efforts at categorization inevitably give rise only to fuzzy boundaries. Our definitions of "obscenity," see, e. g., Marks v. United States, 430 U. S. 188 , 198 (1977) (STEVENS, J., concurring in part and dissenting in part), and "public forum," see, e. g., United States Postal Service v. Council of Greenburgh Civic Assns., 453 U. S. 114 , 126-131 (1981); id., at 136-140 (Brennan, J., concurring in judgment); id., at 147-151 (Marshall, J., dissenting); id., at 152-154 (STEVENS, J., dissenting) (all debating the definition of "public forum"), illustrate this all too well. The quest for doctrinal certainty through the definition of categories and subcategories is, in my opinion, destined to fail. Moreover, the categorical approach does not take seriously the importance of context. The meaning of any expression and the legitimacy of its regulation can only be determined 427 in context.5 Whether, for example, a picture or a sentence is obscene cannot be judged in the abstract, but rather only in the context of its setting, its use, and its audience. Similarly, although legislatures may freely regulate most nonobscene child pornography, such pornography that is part of "a serious work of art, a documentary on behavioral problems, or a medical or psychiatric teaching device" may be entitled to constitutional protection; the "question whether a specific act of communication is protected by the First Amendment always requires some consideration of both its content and its context." Ferber, 458 U. S., at 778 (STEVENS, J., concurring in judgment); see also Smith v. United States, 431 U. S. 291, 311-321 (1977) (STEVENS, J., dissenting). The categorical approach sweeps too broadly when it declares that all such expression is beyond the protection of the First Amendment. Perhaps sensing the limits of such an all-or-nothing approach, the Court has applied its analysis less categorically than its doctrinal statements suggest. The Court has recognized intermediate categories of speech (for example, for indecent nonobscene speech and commercial speech) and geographic categories of speech (public fora, limited public fora, nonpublic fora) entitled to varying levels of protection. The Court has also stringently delimited the categories of unprotected speech. While we once declared that "[l]ibelous utterances [are] not ... within the area of constitutionally protected speech," Beauharnais v. Illinois, 343 U. S. 250 , 266 (1952), our rulings in New York Times Co. v. Sullivan, 376 U. S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974), and Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749 (1985), have substantially qualified this 5 "A word," as Justice Holmes has noted, "is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." Towne v. Eisner, 245 U. S. 418 , 425 (1918); see also Jacobellis v. Ohio, 378 U. S. 184 , 201 (1964) (Warren, C. J., dissenting). 428 STEVENS, J., concurring in judgment broad claim. Similarly, we have consistently construed the "fighting words" exception set forth in Chaplinsky narrowly. See, e. g., Houston v. Hill, 482 U. S. 451 (1987); Lewis v. New Orleans, 415 U. S. 130 (1974); Cohen v. California, 403 U. S. 15 (1971). In the case of commercial speech, our ruling that "the Constitution imposes no ... restraint on government [regulation] as respects purely commercial advertising," Valentine v. Chrestensen, 316 U. S. 52 , 54 (1942), was expressly repudiated in Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976). In short, the history of the categorical approach is largely the history of narrowing the categories of unprotected speech. This evolution, I believe, indicates that the categorical approach is unworkable and the quest for absolute categories of "protected" and "unprotected" speech ultimately futile. My analysis of the faults and limits of this approach persuades me that the categorical approach presented in Part I-A of JUSTICE WHITE'S opinion is not an adequate response to the novel "underbreadth" analysis the Court sets forth today. III As the foregoing suggests, I disagree with both the Court's and part of JUSTICE WHITE'S analysis of the constitutionality of the St. Paul ordinance. Unlike the Court, I do not believe that all content-based regulations are equally infirm and presumptively invalid; unlike JUSTICE WHITE, I do not believe that fighting words are wholly unprotected by the First Amendment. To the contrary, I believe our decisions establish a more complex and subtle analysis, one that considers the content and context of the regulated speech, and the nature and scope of the restriction on speech. Applying this analysis and assuming, arguendo, (as the Court does) that the St. Paul ordinance is not overbroad, I conclude that such a selective, subject-matter regulation on proscribable speech is constitutional. 429 Not all content-based regulations are alike; our decisions clearly recognize that some content-based restrictions raise more constitutional questions than others. Although the Court's analysis of content-based regulations cannot be reduced to a simple formula, we have considered a number of factors in determining the validity of such regulations. First, as suggested above, the scope of protection provided expressive activity depends in part upon its content and character. We have long recognized that when government regulates political speech or "the expression of editorial opinion on matters of public importance," FCC v. League of Women Voters of Cal., 468 U. S. 364 , 375-376 (1984), "First Amendment protectio[n] is 'at its zenith,'" Meyer v. Grant, 486 U. S. 414 , 425 (1988). In comparison, we have recognized that "commercial speech receives a limited form of First Amendment protection," Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U. S. 328 , 340 (1986), and that "society's interest in protecting [sexually explicit films] is of a wholly different, and lesser, magnitude than [its] interest in untrammeled political debate," Young v. American Mini Theatres, 427 U. S., at 70; see also FCC v. Pacifica Foundation, 438 U. S. 726 (1978). The character of expressive activity also weighs in our consideration of its constitutional status. As we have frequently noted, "[t]he government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word." Texas v. Johnson, 491 U. S. 397 , 406 (1989); see also United States v. O'Brien, 391 U. S. 367 (1968). The protection afforded expression turns as well on the context of the regulated speech. We have noted, for example, that "[a]ny assessment of the precise scope of employer expression, of course, must be made in the context of its labor relations setting ... [and] must take into account the economic dependence of the employees on their employers." NLRB v. Gissel Packing Co., 395 U. S., at 617. Similarly, the distinctive character of a university environment, see 430 STEVENS, J., concurring in judgment Widmar v. Vincent, 454 U. S. 263 , 277-280 (1981) (STEVENS, J., concurring in judgment), or a secondary school environment, see Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260 (1988), influences our First Amendment analysis. The same is true of the presence of a "'captive audience[, one] there as a matter of necessity, not of choice.''' Lehman v. Shaker Heights, 418 U. S., at 302 (citation omitted).6 Perhaps the most familiar embodiment of the relevance of context is our "fora" jurisprudence, differentiating the levels of protection afforded speech in different locations. The nature of a contested restriction of speech also informs our evaluation of its constitutionality. Thus, for example, "[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U. S. 58 , 70 (1963). More particularly to the matter of content-based regulations, we have implicitly distinguished between restrictions on expression based on subject matter and restrictions based on viewpoint, indicating that the latter are particularly pernicious. "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U. S., at 414. "Viewpoint discrimination is censorship in its purest form," Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37 , 62 (1983) (Brennan, J., dissenting), and requires particular scrutiny, in part because such regulation often indicates a legislative effort to skew public debate on an issue, see, e. g., Schacht v. United States, 398 U. S. 58 , 63 (1970). "Especially where ... the legislature's suppression of speech suggests an attempt 6 Cf. In re Chase, 468 F.2d 128 , 139-140 (CA7 1972) (Stevens, J., dissenting) (arguing that defendant who, for reasons of religious belief, refused to rise and stand as the trial judge entered the courtroom was not subject to contempt proceedings because he was not present in the courtroom "as a matter of choice"). 431 to give one side of a debatable public question an advantage in expressing its views to the people, the First Amendment is plainly offended." First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 , 785-786 (1978). Thus, although a regulation that on its face regulates speech by subject matter may in some instances effectively suppress particular viewpoints, see, e. g., Consolidated Edison Co. of N. Y. v. Public Servo Comm'n of N. Y., 447 U. S. 530 , 546-547 (1980) (STEVENS, J., concurring in judgment), in general, viewpoint-based restrictions on expression require greater scrutiny than subjectmatter-based restrictions.7 Finally, in considering the validity of content-based regulations we have also looked more broadly at the scope of the restrictions. For example, in Young v. American Mini Theatres, 427 U. S., at 71, we found significant the fact that "what [was] ultimately at stake [was] nothing more than a limitation on the place where adult films may be exhibited." Similarly, in FCC v. Pacifica Foundation, the Court emphasized two dimensions of the limited scope of the FCC ruling. First, the ruling concerned only broadcast material which presents particular problems because it "confronts the citizen ... in the privacy of the home"; second, the ruling was not a complete ban on the use of selected offensive words, but rather merely a limitation on the times such speech could be broadcast. 438 U. S., at 748-750. All of these factors play some role in our evaluation of content-based regulations on expression. Such a multifaceted analysis cannot be confiated into two dimensions. Whatever the allure of absolute doctrines, it is just too simple to declare expression "protected" or "unprotected" or to proclaim a regulation "content based" or "content neutral." 7 Although the Court has sometimes suggested that subject-matterbased and viewpoint-based regulations are equally problematic, see, e. g., Consolidated Edison Co. of N Y. V. Public Servo Comm'n of N Y., 447 U. S., at 537, our decisions belie such claims. 432 STEVENS, J., concurring in judgment In applying this analysis to the St. Paul ordinance, I assume, arguendo-as the Court does-that the ordinance regulates only fighting words and therefore is not overbroad. Looking to the content and character of the regulated activity, two things are clear. First, by hypothesis the ordinance bars only low-value speech, namely, fighting words. By definition such expression constitutes "no essential part of any exposition of ideas, and [is] of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed by the social interest in order and morality." Chaplinsky, 315 U. S., at 572. Second, the ordinance regulates "expressive conduct [rather] than ... the written or spoken word." Texas v. Johnson, 491 U. S., at 406. Looking to the context of the regulated activity, it is again significant that the ordinance (by hypothesis) regulates only fighting words. Whether words are fighting words is determined in part by their context. Fighting words are not words that merely cause offense; fighting words must be directed at individuals so as to "by their very utterance inflict injury." By hypothesis, then, the St. Paul ordinance restricts speech in confrontational and potentially violent situations. The case at hand is illustrative. The cross burning in this case-directed as it was to a single African-American family trapped in their home-was nothing more than a crude form of physical intimidation. That this cross burning sends a message of racial hostility does not automatically endow it with complete constitutional protection.8 8 The Court makes much of St. Paul's description of the ordinance as regulating "a message." Ante, at 393. As always, however, St. Paul's argument must be read in context: "Finally, we ask the Court to reflect on the 'content' of the 'expressive conduct' represented by a 'burning cross.' It is no less than the first step in an act of racial violence. It was and unfortunately still is the equivalent of [the] waving of a knife before the thrust, the pointing of a gun before it is fired, the lighting of the match before the arson, the hanging of the noose before the lynching. It is not a political statement, or even 433 Significantly, the St. Paul ordinance regulates speech not on the basis of its subject matter or the viewpoint expressed, but rather on the basis of the harm the speech causes. In this regard, the Court fundamentally misreads the St. Paul ordinance. The Court describes the St. Paul ordinance as regulating expression "addressed to one of [several] specified disfavored topics," ante, at 391 (emphasis supplied), as policing "disfavored subjects," ibid. (emphasis supplied), and as "prohibit[ing] ... speech solely on the basis of the subjects the speech addresses," ante, at 381 (emphasis supplied). Contrary to the Court's suggestion, the ordinance regulates only a subcategory of expression that causes injuries based on "race, color, creed, religion or gender," not a subcategory that involves discussions that concern those characteristics.9 The ordinance, as construed by the Court, criminalizes expression that "one knows ... [by its very utterance inflicts injury on] others on the basis of race, color, creed, religion or a cowardly statement of hatred. It is the first step in an act of assault. It can be no more protected than holding a gun to a victim['s] head. It is perhaps the ultimate expression of 'fighting words.''' App. to Brief for Petitioner C-6. 9 The Court contends that this distinction is "wordplay," reasoning that "[w]hat makes [the harms caused by race-based threats] distinct from [the harms] produced by other fighting words is ... the fact that [the former are] caused by a distinctive idea." Ante, at 392-393 (emphasis added). In this way, the Court concludes that regulating speech based on the injury it causes is no different from regulating speech based on its subject matter. This analysis fundamentally miscomprehends the role of "race, color, creed, religion [and] gender" in contemporary American society. One need look no further than the recent social unrest in the Nation's cities to see that race-based threats may cause more harm to society and to individuals than other threats. Just as the statute prohibiting threats against the President is justifiable because of the place of the President in our social and political order, so a statute prohibiting race-based threats is justifiable because of the place of race in our social and political order. Although it is regrettable that race occupies such a place and is so incendiary an issue, until the Nation matures beyond that condition, laws such as St. Paul's ordinance will remain reasonable and justifiable. 434 STEVENS, J., concurring in judgment gender." In this regard, the ordinance resembles the child pornography law at issue in Ferber, which in effect singled out child pornography because those publications caused far greater harms than pornography involving adults. Moreover, even if the St. Paul ordinance did regulate fighting words based on its subject matter, such a regulation would, in my opinion, be constitutional. As noted above, subject-matter-based regulations on commercial speech are widespread and largely unproblematic. As we have long recognized, subject-matter regulations generally do not raise the same concerns of government censorship and the distortion of public discourse presented by viewpoint regulations. Thus, in upholding subject-matter regulations we have carefully noted that viewpoint-based discrimination was not implicated. See Young v. American Mini Theatres, 427 U. S., at 67 (emphasizing "the need for absolute neutrality by the government," and observing that the contested statute was not animated by "hostility for the point of view" of the theaters); FCC v. Pacifica Foundation, 438 U. S., at 745-746 (stressing that "government must remain neutral in the marketplace of ideas"); see also FCC v. League of Women's Voters of Cal., 468 U. S., at 412-417 (STEVENS, J., dissenting); Metromedia, Inc. v. San Diego, 453 U. S. 490 ,554-555 (1981) (STEVENS, J., dissenting in part). Indeed, some subjectmatter restrictions are a functional necessity in contemporary governance: "The First Amendment does not require States to regulate for problems that do not exist." Burson Contrary to the suggestion of the majority, the St. Paul ordinance does not regulate expression based on viewpoint. The Court contends that the ordinance requires proponents of racial intolerance to "follow the Marquis of Queensberry rules" while allowing advocates of racial tolerance to "fight freestyle." The law does no such thing. 435 The Court writes: "One could hold up a sign saying, for example, that all 'anti-Catholic bigots' are misbegotten; but not that all 'papists' are, for that would insult and provoke violence 'on the basis of religion.'" Ante, at 391-392. This may be true, but it hardly proves the Court's point. The Court's reasoning is asymmetrical. The response to a sign saying that "all [religious] bigots are misbegotten" is a sign saying that "all advocates of religious tolerance are misbegotten." Assuming such signs could be fighting words (which seems to me extremely unlikely), neither sign would be banned by the ordinance for the attacks were not "based on ... religion" but rather on one's beliefs about tolerance. Conversely (and again assuming such signs are fighting words), just as the ordinance would prohibit a Muslim from hoisting a sign claiming that all Catholics were misbegotten, so the ordinance would bar a Catholic from hoisting a similar sign attacking Muslims. The St. Paul ordinance is evenhanded. In a battle between advocates of tolerance and advocates of intolerance, the ordinance does not prevent either side from hurling fighting words at the other on the basis of their conflicting ideas, but it does bar both sides from hurling such words on the basis of the target's "race, color, creed, religion or gender." To extend the Court's pugilistic metaphor, the St. Paul ordinance simply bans punches "below the belt" by either party. It does not, therefore, favor one side of any debate.10 10 Cf. FCC v. League of Women Voters of Cal., 468 U. S. 364 , 418 (1984) (STEVENS, J., dissenting) ("In this case ... the regulation applies ... to a defined class of ... licensees [who] represent heterogenous points of view. There is simply no sensible basis for considering this regulation a viewpoint restriction--or ... to condemn it as 'content-based'-because it applies equally to station owners of all shades of opinion"). 436 STEVENS, J., concurring in judgment Finally, it is noteworthy that the St. Paul ordinance is, as construed by the Court today, quite narrow. The St. Paul ordinance does not ban all "hate speech," nor does it ban, say, all cross burnings or all swastika displays. Rather it only bans a subcategory of the already narrow category of fighting words. Such a limited ordinance leaves open and protected a vast range of expression on the subjects of racial, religious, and gender equality. As construed by the Court today, the ordinance certainly does not" 'rais[e] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.'" Ante, at 387. Petitioner is free to burn a cross to announce a rally or to express his views about racial supremacy, he may do so on private property or public land, at day or at night, so long as the burning is not so threatening and so directed at an individual as to "by its very [execution] inflict injury." Such a limited proscription scarcely offends the First Amendment. In sum, the St. Paul ordinance (as construed by the Court) regulates expressive activity that is wholly proscribable and does so not on the basis of viewpoint, but rather in recognition of the different harms caused by such activity. Taken together, these several considerations persuade me that the St. Paul ordinance is not an unconstitutional content-based regulation of speech. Thus, were the ordinance not overbroad, I would vote to uphold it.

The Supreme Court ruled that a St. Paul, Minnesota ordinance prohibiting the display of symbols that arouse anger, alarm, or resentment on the basis of race, color, creed, religion, or gender is unconstitutional. The Court found that the ordinance violates the First Amendment by imposing special prohibitions on speech about certain subjects while allowing similar speech on other topics. The Court also rejected the argument that the ordinance was a valid regulation of "fighting words," a category of speech that is not protected by the First Amendment.

Free Speech

Reno v. ACLU

https://supreme.justia.com/cases/federal/us/521/844/

OCTOBER TERM, 1996 Syllabus RENO, ATTORNEY GENERAL OF THE UNITED STATES, ET AL. v. AMERICAN CIVIL LIBERTIES UNION ET AL. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA No. 96-511. Argued March 19, 1997-Decided June 26, 1997 Two provisions of the Communications Decency Act of 1996 (CDA or Act) seek to protect minors from harmful material on the Internet, an international network of interconnected computers that enables millions of people to communicate with one another in "cyberspace" and to access vast amounts of information from around the world. Title 47 U. S. C. § 223(a)(I)(B)(ii) (1994 ed., Supp. II) criminalizes the "knowing" transmission of "obscene or indecent" messages to any recipient under 18 years of age. Section 223(d) prohibits the "knowin[g]" sending or displaying to a person under 18 of any message "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." M firmative defenses are provided for those who take "good faith, ... effective ... actions" to restrict access by minors to the prohibited communications, § 223(e)(5)(A), and those who restrict such access by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number, §223(e)(5)(B). A number of plaintiffs filed suit challenging the constitutionality of §§ 223(a)(I) and 223(d). After making extensive findings of fact, a three-judge District Court convened pursuant to the Act entered a preliminary injunction against enforcement of both challenged provisions. The court's judgment enjoins the Government from enforcing § 223(a)(I)(B)'s prohibitions insofar as they relate to "indecent" communications, but expressly preserves the Government's right to investigate and prosecute the obscenity or child pornography activities prohibited therein. The injunction against enforcement of § 223(d) is unqualified because that section contains no separate reference to obscenity or child pornography. The Government appealed to this Court under the Act's special review provisions, arguing that the District Court erred in holding that the CDA violated both the First Amendment because it is overbroad and the Fifth Amendment because it is vague. Held: The CDA's "indecent transmission" and "patently offensive display" provisions abridge "the freedom of speech" protected by the First Amendment. Pp. 864-885. 845 (a) Although the CDA's vagueness is relevant to the First Amendment overbreadth inquiry, the judgment should be affirmed without reaching the Fifth Amendment issue. P. 864. (b) A close look at the precedents relied on by the Government Ginsberg v. New York, 390 U. S. 629 ; FCC v. Pacifica Foundation, 438 U. S. 726; and Renton v. Playtime Theatres, Inc., 475 U. S. 41 -raises, rather than relieves, doubts about the CDA's constitutionality. The CDA differs from the various laws and orders upheld in those cases in many ways, including that it does not allow parents to consent to their children's use of restricted materials; is not limited to commercial transactions; fails to provide any definition of "indecent" and omits any requirement that "patently offensive" material lack socially redeeming value; neither limits its broad categorical prohibitions to particular times nor bases them on an evaluation by an agency familiar with the medium's unique characteristics; is punitive; applies to a medium that, unlike radio, receives full First Amendment protection; and cannot be properly analyzed as a form of time, place, and manner regulation because it is a content-based blanket restriction on speech. These precedents, then, do not require the Court to uphold the CDA and are fully consistent with the application of the most stringent review of its provisions. Pp. 864-868. (c) The special factors recognized in some of the Court's cases as justifying regulation of the broadcast media-the history of extensive Government regulation of broadcasting, see, e. g., Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 , 399-400; the scarcity of available frequencies at its inception, see, e. g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637-638; and its "invasive" nature, see Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 , 128-are not present in cyberspace. Thus, these cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to the Internet. Pp.868-870. (d) Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many ambiguities concerning the scope of its coverage render it problematic for First Amendment purposes. For instance, its use of the undefined terms "indecent" and "patently offensive" will provoke uncertainty among speakers about how the two standards relate to each other and just what they mean. The vagueness of such a content-based regulation, see, e. g., Gentile v. State Bar of Nev., 501 U. S. 1030 , coupled with its increased deterrent effect as a criminal statute, see, e. g., Dombrowski v. Pfister, 380 U. S. 479 , raise special First Amendment concerns because of its obvious chilling effect on free speech. Contrary to the Government's argument, the CDA is not saved from vagueness by the fact that its "patently offensive" stand- 846 ard repeats the second part of the three-prong obscenity test set forth in Miller v. California, 413 U. S. 15 ,24. The second Miller prong reduces the inherent vagueness of its own "patently offensive" term by requiring that the proscribed material be "specifically defined by the applicable state law." In addition, the Miller definition applies only to "sexual conduct," whereas the CDA prohibition extends also to "excretory activities" and "organs" of both a sexual and excretory nature. Each of Miller's other two prongs also critically limits the uncertain sweep of the obscenity definition. Just because a definition including three limitations is not vague, it does not follow that one of those limitations, standing alone, is not vague. The CDA's vagueness undermines the likelihood that it has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials. Pp.870-874. (e) The CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. Although the Government has an interest in protecting children from potentially harmful materials, see, e. g., Ginsberg, 390 U. S., at 639, the CDA pursues that interest by suppressing a large amount of speech that adults have a constitutional right to send and receive, see, e. g., Sable, 492 U. S., at 126. Its breadth is wholly unprecedented. The CDA's burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the Act's legitimate purposes. See, e. g., id., at 126. The Government has not proved otherwise. On the other hand, the District Court found that currently available user-based software suggests that a reasonably effective method by which parents can prevent their children from accessing material which the parents believe is inappropriate will soon be widely available. Moreover, the arguments in this Court referred to possible alternatives such as requiring that indecent material be "tagged" to facilitate parental control, making exceptions for messages with artistic or educational value, providing some tolerance for parental choice, and regulating some portions of the Internet differently from others. Particularly in the light of the absence of any detailed congressional findings, or even hearings addressing the CDA's special problems, the Court is persuaded that the CDA is not narrowly tailored. Pp.874-879. (f) The Government's three additional arguments for sustaining the CDA's affirmative prohibitions are rejected. First, the contention that the Act is constitutional because it leaves open ample "alternative channels" of communication is unpersuasive because the CDA regulates speech on the basis of its content, so that a "time, place, and manner" analysis is inapplicable. See, e. g., Consolidated Edison Co. of N. Y. v. 847 Public Servo Comm'n of N. Y., 447 U. S. 530 , 536. Second, the assertion that the CDA's "knowledge" and "specific person" requirements significantly restrict its permissible application to communications to persons the sender knows to be under 18 is untenable, given that most Internet forums are open to all comers and that even the strongest reading of the "specific person" requirement would confer broad powers of censorship, in the form of a "heckler's veto," upon any opponent of indecent speech. Finally, there is no textual support for the submission that material having scientific, educational, or other redeeming social value will necessarily fall outside the CDA's prohibitions. Pp. 879-881. (g) The § 223(e)(5) defenses do not constitute the sort of "narrow tailoring" that would save the CDA. The Government's argument that transmitters may take protective "good faith actio[n]" by "tagging" their indecent communications in a way that would indicate their contents, thus permitting recipients to block their reception with appropriate software, is illusory, given the requirement that such action be "effective": The proposed screening software does not currently exist, but, even if it did, there would be no way of knowing whether a potential recipient would actually block the encoded material. The Government also failed to prove that § 223(b)(5)'s verification defense would significantly reduce the CDA's heavy burden on adult speech. Although such verification is actually being used by some commercial providers of sexually explicit material, the District Court's findings indicate that it is not economically feasible for most noncommercial speakers. Pp.881-882. (h) The Government's argument that this Court should preserve the CDA's constitutionality by honoring its severability clause, § 608, and by construing nonseverable terms narrowly, is acceptable in only one respect. Because obscene speech may be banned totally, see Miller, 413 U. S., at 18, and § 223(a)'s restriction of "obscene" material enjoys a textual manifestation separate from that for "indecent" material, the Court can sever the term "or indecent" from the statute, leaving the rest of § 223(a) standing. Pp. 882-885. (i) The Government's argument that its "significant" interest in fostering the Internet's growth provides an independent basis for upholding the CDA's constitutionality is singularly unpersuasive. The dramatic expansion of this new forum contradicts the factual basis underlying this contention: that the unregulated availability of "indecent" and "patently offensive" material is driving people away from the Internet. P. 885. 929 F. Supp. 824, affirmed. 848 STEVENS, J., delivered the opinion of the Court, in which SCALIA, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C. J., joined, post, p. 886. Deputy Solicitor General Waxman argued the cause for appellants. On the briefs were Acting Solicitor General Dellinger, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Irving L. Gornstein, Barbara Bruce J. Ennis, Jr., argued the cause for appellees. With him on the brief for appellees American Library Association et al. were Ann M. Kappler, Paul M. Smith, Donald B. Verrilli, Jr., John B. Morris, Jr., Jill Lesser, Richard M. Schmidt, Jr., Bruce Rich, James Wheaton, Jerry Berman, Elliot M. Mincberg, Lawrence S. Ottinger, Andrew J. Schwartzman, Ronald L. Plesser, James J. Halpert, Michael Traynor, Robert P. Taylor, Rene Milam, Marc Jacobson, Bruce W Sanford, and Henry S. Hoberman. Christopher A. Hansen, Steven R. Shapiro, Marjorie Heins, Catherine Weiss, Stefan Presser, David L. Sobel, Marc Rotenberg, and Roger Evans filed a brief for appellees American Civil Liberties Union Foundation et al. * *Briefs of amici curiae urging reversal were filed for Member of Congress Dan Coats et al. by Bruce A. Taylor and Cathleen A. Cleaver; for Enough is Enough et al. by Ronald D. Maines; for the Family Life Project of the American Center for Law and Justice by Jay Alan Sekulow, James M. Henderson, Sr., Colby M. May, Keith A. Fournier, John G. Stepanovich, and Thomas P. Monaghan; for Morality in Media, Inc., by Paul J. McGeady and Robert W Peters; and for James J. Clancy by Mr. Clancy, pro se, and Carol A. Clancy. Briefs of amici curiae urging affirmance were filed for the American Association of University Professors et al. by James D. Crawford, Carl A. Solano, Theresa E. Loscalzo, Jennifer DuFault James, and Joseph T. Lukens; for Apollomedia Corporation et al. by William Bennett Turner; for the Association of National Advertisers, Inc., by P. Cameron DeVore, John J. Walsh, Steven G. Brody, Mary Elizabeth Taylor, Gilbert H. Weil, and Sol Schildhause; for the Chamber of Commerce of the United States by Clifford M. Sloan, Bert W Rein, Robert J. Butler, Stephen A. Bokat, and 849 JUSTICE STEVENS delivered the opinion of the Court. At issue is the constitutionality of two statutory provisions enacted to protect minors from "indecent" and "patently offensive" communications on the Internet. Notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials, we agree with the three-judge District Court that the statute abridges "the freedom of speech" protected by the First Amendment.1 I The District Court made extensive findings of fact, most of which were based on a detailed stipulation prepared by the parties. See 929 F. Supp. 824, 830-849 (ED Pa. 1996).2 The findings describe the character and the dimensions of the Internet, the availability of sexually explicit material in that medium, and the problems confronting age verification for recipients of Internet communications. Because those findings provide the underpinnings for the legal issues, we begin with a summary of the undisputed facts. The Internet The Internet is an international network of interconnected computers. It is the outgrowth of what began in 1969 as a Robin S. Conrad; for Feminists for Free Expression by Barbara M cDowell; for the National Association of Broadcasters et al. by Floyd Abrams, Jack N. Goodman, and Susanna M. Lowy; for Playboy Enterprises, Inc., by Robert Corn-Revere and Burton Joseph; for the Reporters Committee for Freedom of the Press et al. by Jane E. Kirtley and S. Mark Goodman; for Site Specific, Inc., et al. by Jamie B. W Stecher; and for Volunteer Lawyers for the Arts et al. by Daniel H. Weiner. Raphael Winick filed a brief of amicus curiae for the Speech Communication Association. 1 "Congress shall make no law ... abridging the freedom of speech." 2 The Court made 410 findings, including 356 paragraphs of the parties' stipulation and 54 findings based on evidence received in open court. See 929 F. Supp., at 830, n. 9, 842, n. 15. 850 military program called "ARPANET," 3 which was designed to enable computers operated by the military, defense contractors, and universities conducting defense-related research to communicate with one another by redundant channels even if some portions of the network were damaged in a war. While the ARPANET no longer exists, it provided an example for the development of a number of civilian networks that, eventually linking with each other, now enable tens of millions of people to communicate with one another and to access vast amounts of information from around the world. The Internet is "a unique and wholly new medium of worldwide human communication."4 The Internet has experienced "extraordinary growth." 5 The number of "host" computers-those that store information and relay communications-increased from about 300 in 1981 to approximately 9,400,000 by the time of the trial in 1996. Roughly 60% of these hosts are located in the United States. About 40 million people used the Internet at the time of trial, a number that is expected to mushroom to 200 million by 1999. Individuals can obtain access to the Internet from many different sources, generally hosts themselves or entities with a host affiliation. Most colleges and universities provide access for their students and faculty; many corporations provide their employees with access through an office network; many communities and local libraries provide free access; and an increasing number of storefront "computer coffee shops" provide access for a small hourly fee. Several major national "online services" such as America Online, CompuServe, the Microsoft Network, and Prodigy offer access to their own extensive proprietary networks as well as a link to the much larger resources of the Internet. These com- 3 An acronym for the network developed by the Advanced Research Project Agency. 4Id., at 844 (finding 81). 5Id., at 831 (finding 3). 851 mercial online services had almost 12 million individual subscribers at the time of trial. Anyone with access to the Internet may take advantage of a wide variety of communication and information retrieval methods. These methods are constantly evolving and difficult to categorize precisely. But, as presently constituted, those most relevant to this case are electronic mail (e-mail), automatic mailing list services ("mail exploders," sometimes referred to as "listservs"), "newsgroups," "chat rooms," and the "World Wide Web." All of these methods can be used to transmit text; most can transmit sound, pictures, and moving video images. Taken together, these tools constitute a unique medium-known to its users as "cyberspace" -located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet. E-mail enables an individual to send an electronic message-generally akin to a note or letter-to another individual or to a group of addressees. The message is generally stored electronically, sometimes waiting for the recipient to check her "mailbox" and sometimes making its receipt known through some type of prompt. A mail exploder is a sort of e-mail group. Subscribers can send messages to a common e-mail address, which then forwards the message to the group's other subscribers. Newsgroups also serve groups of regular participants, but these po stings may be read by others as well. There are thousands of such groups, each serving to foster an exchange of information or opinion on a particular topic running the gamut from, say, the music of Wagner to Balkan politics to AIDS prevention to the Chicago Bulls. About 100,000 new messages are posted every day. In most newsgroups, po stings are automatically purged at regular intervals. In addition to posting a message that can be read later, two or more individuals wishing to communicate more immediately can enter a chat room to engage in real-time dialogue-in other words, by typing messages to one another that appear almost immediately on 852 the others' computer screens. The District Court found that at any given time "tens of thousands of users are engaging in conversations on a huge range of subjects." 6 It is "no exaggeration to conclude that the content on the Internet is as diverse as human thought."7 The best known category of communication over the Internet is the World Wide Web, which allows users to search for and retrieve information stored in remote computers, as well as, in some cases, to communicate back to designated sites. In concrete terms, the Web consists of a vast number of documents stored in different computers all over the world. Some of these documents are simply files containing information. However, more elaborate documents, commonly known as Web "pages," are also prevalent. Each has its own address-"rather like a telephone number."s Web pages frequently contain information and sometimes allow the viewer to communicate with the page's (or "site's") author. They generally also contain "links" to other documents created by that site's author or to other (generally) related sites. Typically, the links are either blue or underlined text-sometimes images. Navigating the Web is relatively straightforward. A user may either type the address of a known page or enter one or more keywords into a commercial "search engine" in an effort to locate sites on a subject of interest. A particular Web page may contain the information sought by the "surfer," or, through its links, it may be an avenue to other documents located anywhere on the Internet. Users generally explore a given Web page, or move to another, by clicking a computer "mouse" on one of the page's icons or links. Access to most Web pages is freely available, but some allow access only to those who have purchased the right from a 6Id., at 835 (finding 27). 7Id., at 842 (finding 74). 8Id., at 836 (finding 36). 853 commercial provider. The Web is thus comparable, from the readers' viewpoint, to both a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services. From the publishers' point of view, it constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers. Any person or organization with a computer connected to the Internet can "publish" information. Publishers include government agencies, educational institutions, commercial entities, advocacy groups, and individuals.9 Publishers may either make their material available to the entire pool of Internet users, or confine access to a selected group, such as those willing to pay for the privilege. "No single organization controls any membership in the Web, nor is there any single centralized point from which individual Web sites or services can be blocked from the Web." 10 Sexually Explicit Material Sexually explicit material on the Internet includes text, pictures, and chat and "extends from the modestly titillating to the hardest-core." 11 These files are created, named, and posted in the same manner as material that is not sexually explicit, and may be accessed either deliberately or unintentionally during the course of an imprecise search. "Once a provider posts its content on the Internet, it cannot prevent that content from entering any community." 12 Thus, for example, 9 "Web publishing is simple enough that thousands of individual users and small community organizations are using the Web to publish their own personal 'home pages,' the equivalent of individualized newsletters about that person or organization, which are available to everyone on the Web." Id., at 837 (finding 42). l°Id., at 838 (finding 46). 11 Id., at 844 (finding 82). 12 Ibid. (finding 86). 854 "when the UCR/California Museum of Photography posts to its Web site nudes by Edward Weston and Robert Mapplethorpe to announce that its new exhibit will travel to Baltimore and New York City, those images are available not only in Los Angeles, Baltimore, and New York City, but also in Cincinnati, Mobile, or Beijing-wherever Internet users live. Similarly, the safer sex instructions that Critical Path posts to its Web site, written in street language so that the teenage receiver can understand them, are available not just in Philadelphia, but also in Provo and Prague." 13 Some of the communications over the Internet that originate in foreign countries are also sexually explicit.14 Though such material is widely available, users seldom encounter such content accidentally. "A document's title or a description of the document will usually appear before the document itself ... and in many cases the user will receive detailed information about a site's content before he or she need take the step to access the document. Almost all sexually explicit images are preceded by warnings as to the content." 15 For that reason, the "odds are slim" that a user would enter a sexually explicit site by accident.16 Unlike communications received by radio or television, "the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial. A child requires some sophistication and some ability to read to retrieve material and thereby to use the Internet unattended." 17 Systems have been developed to help parents control the material that may be available on a home computer with In- 13 Ibid. (finding 85). 14Id., at 848 (finding 117). 15Id., at 844-845 (finding 88). 16 Ibid. 17Id., at 845 (finding 89). 855 ternet access. A system may either limit a computer's access to an approved list of sources that have been identified as containing no adult material, it may block designated inappropriate sites, or it may attempt to block messages containing identifiable objectionable features. "Although parental control software currently can screen for certain suggestive words or for known sexually explicit sites, it cannot now screen for sexually explicit images."18 Nevertheless, the evidence indicates that "a reasonably effective method by which parents can prevent their children from accessing sexually explicit and other material which parents may believe is inappropriate for their children will soon be widely available." 19 Age Verification The problem of age verification differs for different uses of the Internet. The District Court categorically determined that there "is no effective way to determine the identity or the age of a user who is accessing material through e-mail, mail exploders, newsgroups or chat rooms." 20 The Government offered no evidence that there was a reliable way to screen recipients and participants in such forums for 18Id., at 842 (finding 72). 19 Ibid. (finding 73). 2°Id., at 845 (finding 90): "An e-mail address provides no authoritative information about the addressee, who may use an e-mail .alias. or an anonymous remailer. There is also no universal or reliable listing of e-mail addresses and corresponding names or telephone numbers, and any such listing would be or rapidly become incomplete. For these reasons, there is no reliable way in many instances for a sender to know if the e-mail recipient is an adult or a minor. The difficulty of e-mail age verification is compounded for mail exploders such as listservs, which automatically send information to all e-mail addresses on a sender's list. Government expert Dr. Olsen agreed that no current technology could give a speaker assurance that only adults were listed in a particular mail exploder's mailing list." 856 age. Moreover, even if it were technologically feasible to block minors' access to newsgroups and chat rooms containing discussions of art, politics, or other subjects that potentially elicit "indecent" or "patently offensive" contributions, it would not be possible to block their access to that material and "still allow them access to the remaining content, even if the overwhelming majority of that content was not indecent." 21 Technology exists by which an operator of a Web site may condition access on the verification of requested information such as a credit card number or an adult password. Credit card verification is only feasible, however, either in connection with a commercial transaction in which the card is used, or by payment to a verification agency. U sing credit card possession as a surrogate for proof of age would impose costs on noncommercial Web sites that would require many of them to shut down. For that reason, at the time of the trial, credit card verification was "effectively unavailable to a substantial number of Internet content providers." 929 F. Supp., at 846 (finding 102). Moreover, the imposition of such a requirement "would completely bar adults who do not have a credit card and lack the resources to obtain one from accessing any blocked material." 22 Commercial pornographic sites that charge their users for access have assigned them passwords as a method of age verification. The record does not contain any evidence concerning the reliability of these technologies. Even if passwords are effective for commercial purveyors of indecent material, the District Court found that an adult password requirement would impose significant burdens on noncommercial sites, both because they would discourage users from accessing their sites and because the cost of creating and 21 Ibid. (finding 93). 22Id., at 846 (finding 102). 857 maintaining such screening systems would be "beyond their reach." 23 In sum, the District Court found: "Even if credit card verification or adult password verification were implemented, the Government presented no testimony as to how such systems could ensure that the user of the password or credit card is in fact over 18. The burdens imposed by credit card verification and adult password verification systems make them effectively unavailable to a substantial number of Internet content providers." Ibid. (finding 107). II The Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56, was an unusually important legislative enactment. As stated on the first of its 103 pages, its primary purpose was to reduce regulation and encourage "the rapid deployment of new telecommunications technologies." The major components of the statute have nothing to do with the Internet; they were designed to promote competition in the local telephone service market, the multichannel video mar- 23Id., at 847 (findings 104-106): "At least some, if not almost all, non-commercial organizations, such as the ACLU, Stop Prisoner Rape or Critical Path AIDS Project, regard charging listeners to access their speech as contrary to their goals of making their materials available to a wide audience free of charge. "There is evidence suggesting that adult users, particularly casual Web browsers, would be discouraged from retrieving information that required use of a credit card or password. Andrew Anker testified that HotWired has received many complaints from its members about HotWired's registration system, which requires only that a member supply a name, e-mail address and self-created password. There is concern by commercial content providers that age verification requirements would decrease advertising and revenue because advertisers depend on a demonstration that the sites are widely available and frequently visited." 858 ket, and the market for over-the-air broadcasting. The Act includes seven Titles, six of which are the product of extensive committee hearings and the subject of discussion in Reports prepared by Committees of the Senate and the House of Representatives. By contrast, Title V-known as the "Communications Decency Act of 1996" (CDA)-contains provisions that were either added in executive committee after the hearings were concluded or as amendments offered during floor debate on the legislation. An amendment offered in the Senate was the source of the two statutory provisions challenged in this case.24 They are informally de- 24 See Exon Amendment No. 1268, 141 Congo Rec. 15536 (1995). See also id., at 15505. This amendment, as revised, became § 502 of the Telecommunications Act of 1996, 110 Stat. 133, 47 U. S. C. §§ 223(a)-(e) (1994 ed., Supp. II). Some Members of the House of Representatives opposed the Exon Amendment because they thought it "possible for our parents now to child-proof the family computer with these products available in the private sector." They also thought the Senate's approach would "involve the Federal Government spending vast sums of money trying to define elusive terms that are going to lead to a flood of legal challenges while our kids are unprotected." These Members offered an amendment intended as a substitute for the Exon Amendment, but instead enacted as an additional section of the Act entitled "Online Family Empowerment." See 110 Stat. 137, 47 U. S. C. §230 (1994 ed., Supp. II); 141 Congo Rec. 27881 (1995). No hearings were held on the provisions that became law. See S. Rep. No. 104-23, p. 9 (1995). After the Senate adopted the Exon Amendment, however, its Judiciary Committee did conduct a one-day hearing on "Cyberporn and Children." In his opening statement at that hearing, Senator Leahy observed: "It really struck me in your opening statement when you mentioned, Mr. Chairman, that it is the first ever hearing, and you are absolutely right. And yet we had a major debate on the floor, passed legislation overwhelmingly on a subject involving the Internet, legislation that could dramatically change-some would say even wreak havoc-on the Internet. The Senate went in willy-nilly, passed legislation, and never once had a hearing, never once had a discussion other than an hour or so on the floor." Cyberporn and Children: The Scope of the Problem, The State of the Technology, and the Need for Congressional Action, Hearing on S. 892 before the Senate Committee on the Judiciary, 104th Cong., 1st Sess., 7-8 (1995). 859 scribed as the "indecent transmission" provision and the "patently offensive display" provision.25 The first, 47 U. s. C. § 223(a) (1994 ed., Supp. II), prohibits the knowing transmission of obscene or indecent messages to any recipient under 18 years of age. It provides in pertinent part: "(a) Whoever- "(1) in interstate or foreign communications- "(B) by means of a telecommunications device knowingly- "(i) makes, creates, or solicits, and "(ii) initiates the transmission of, "any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication; "(2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity, "shall be fined under Title 18, or imprisoned not more than two years, or both." The second provision, § 223(d), prohibits the knowing sending or displaying of patently offensive messages in a manner that is available to a person under 18 years of age. It provides: 25 Although the Government and the dissent break § 223(d)(1) into two separate "patently offensive" and "display" provisions, we follow the convention of both parties below, as well as the District Court's order and opinion, in describing § 223(d)(1) as one provision. 860 "(d) Whoever- "(1) in interstate or foreign communications knowingly- "(A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or "(B) uses any interactive computer service to display in a manner available to a person under 18 years of age, "any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or "(2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity, "shall be fined under Title 18, or imprisoned not more than two years, or both." The breadth of these prohibitions is qualified by two affirmative defenses. See § 223(e)(5).26 One covers those who take "good faith, reasonable, effective, and appropriate actions" to restrict access by minors to the prohibited communications. § 223(e)(5)(A). The other covers those who 26 In full, § 223(e)(5) provides: "(5) It is a defense to a prosecution under subsection (a)(l)(B) or (d) of this section, or under subsection (a)(2) of this section with respect to the use of a facility for an activity under subsection (a)(l)(B) of this section that a person- "(A) has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections, which may involve any appropriate measures to restrict minors from such communications, including any method which is feasible under available technology; or "(B) has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number." 861 restrict access to covered material by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number or code. § 223(e)(5)(B). III On February 8, 1996, immediately after the President signed the statute, 20 plaintiffs 27 filed suit against the Attorney General of the United States and the Department of Justice challenging the constitutionality of §§ 223(a)(1) and 223(d). A week later, based on his conclusion that the term "indecent" was too vague to provide the basis for a criminal prosecution, District Judge Buckwalter entered a temporary restraining order against enforcement of § 223(a)(1)(B)(ii) insofar as it applies to indecent communications. A second suit was then filed by 27 additional plaintiffs,2S the two cases 27 American Civil Liberties Union; Human Rights Watch; Electronic Privacy Information Center; Electronic Frontier Foundation; Journalism Education Association; Computer Professionals for Social Responsibility; N ational Writers Union; Clarinet Communications Corp.; Institute for Global Communications; Stop Prisoner Rape; AIDS Education Global Information System; Bibliobytes; Queer Resources Directory; Critical Path AIDS Project, Inc.; Wildcat Press, Inc.; Declan McCullagh dba Justice on Campus; Brock Meeks dba Cyberwire Dispatch; John Troyer dba The Safer Sex Page; Jonathan Wallace dba The Ethical Spectacle; and Planned Parenthood Federation of America, Inc. 28 American Library Association; America Online, Inc.; American Booksellers Association, Inc.; American Booksellers Foundation for Free Expression; American Society of Newspaper Editors; Apple Computer, Inc.; Association of American Publishers, Inc.; Association of Publishers, Editors and Writers; Citizens Internet Empowerment Coalition; Commercial Internet Exchange Association; CompuServe Incorporated; Families Against Internet Censorship; Freedom to Read Foundation, Inc.; Health Sciences Libraries Consortium; Hotwired Ventures LLC; Interactive Digital Software Association; Interactive Services Association; Magazine Publishers of America; Microsoft Corporation; The Microsoft Network, L. L. C.; National Press Photographers Association; Netcom On-Line Communication Services, Inc.; Newspaper Association of America; Opnet, Inc.; Prodigy Services Company; Society of Professional Journalists; and Wired Ventures, Ltd. 862 were consolidated, and a three-judge District Court was convened pursuant to § 561 of the CDA.29 After an evidentiary hearing, that court entered a preliminary injunction against enforcement of both of the challenged provisions. Each of the three judges wrote a separate opinion, but their judgment was unanimous. Chief Judge Sloviter doubted the strength of the Government's interest in regulating "the vast range of online material covered or potentially covered by the CDA," but acknowledged that the interest was "compelling" with respect to some of that material. 929 F. Supp., at 853. She concluded, nonetheless, that the statute "sweeps more broadly than necessary and thereby chills the expression of adults" and that the terms "patently offensive" and "indecent" were "inherently vague." Id., at 854. She also determined that the affirmative defenses were not "technologically or economically feasible for most providers," specifically considering and rejecting an argument that providers could avoid liability by "tagging" their material in a manner that would allow potential readers to screen out unwanted transmissions. Id., at 856. Chief Judge Sloviter also rejected the Government's suggestion that the scope of the statute could be narrowed by construing it to apply only to commercial pornographers. Id., at 854-855. Judge Buckwalter concluded that the word "indecent" in § 223(a)(1)(B) and the terms "patently offensive" and "in context" in § 223(d)(1) were so vague that criminal enforcement of either section would violate the "fundamental constitutional principle" of "simple fairness," id., at 861, and the specific protections of the First and Fifth Amendments, id., at 858. He found no statutory basis for the Government's argument that the challenged provisions would be applied only to "pornographic" materials, noting that, unlike obscenity, "indecency has not been defined to exclude works of serious literary, artistic, political or scientific value." Id., at 863. 29110 Stat. 142-143, note following 47 U. S. C. §223 (1994 ed., Supp. II). 863 Moreover, the Government's claim that the work must be considered patently offensive "in context" was itself vague because the relevant context might "refer to, among other things, the nature of the communication as a whole, the time of day it was conveyed, the medium used, the identity of the speaker, or whether or not it is accompanied by appropriate warnings." Id., at 864. He believed that the unique nature of the Internet aggravated the vagueness of the statute. Id., at 865, n. 9. Judge Dalzell's review of "the special attributes of Internet communication" disclosed by the evidence convinced him that the First Amendment denies Congress the power to regulate the content of protected speech on the Internet. Id., at 867. His opinion explained at length why he believed the CDA would abridge significant protected speech, particularly by noncommercial speakers, while "[p]erversely, commercial pornographers would remain relatively unaffected." Id., at 879. He construed our cases as requiring a "medium-specific" approach to the analysis of the regulation of mass communication, id., at 873, and concluded that the Internet-as "the most participatory form of mass speech yet developed," id., at 883-is entitled to "the highest protection from governmental intrusion," ibid. 30 30 See also 929 F. Supp., at 877: "Four related characteristics of Internet communication have a transcendent importance to our shared holding that the CDA is unconstitutional on its face. We explain these characteristics in our Findings of fact above, and I only rehearse them briefly here. First, the Internet presents very low barriers to entry. Second, these barriers to entry are identical for both speakers and listeners. Third, as a result of these low barriers, astoundingly diverse content is available on the Internet. Fourth, the Internet provides significant access to all who wish to speak in the medium, and even creates a relative parity among speakers." According to Judge Dalzell, these characteristics and the rest of the District Court's findings "lead to the conclusion that Congress may not regulate indecency on the Internet at all." Ibid. Because appellees do not press this argument before this Court, we do not consider it. Appellees also do not dispute that the Government generally has a compelling interest in protecting minors from "indecent" and "patently offensive" speech. 864 The judgment of the District Court enjoins the Government from enforcing the prohibitions in § 223(a)(1)(B) insofar as they relate to "indecent" communications, but expressly preserves the Government's right to investigate and prosecute the obscenity or child pornography activities prohibited therein. The injunction against enforcement of §§ 223(d)(1) and (2) is unqualified because those provisions contain no separate reference to obscenity or child pornography. The Government appealed under the CDA's special review provisions, § 561, 110 Stat. 142-143, and we noted probable jurisdiction, see 519 U. S. 1025 (1996). In its appeal, the Government argues that the District Court erred in holding that the CDA violated both the First Amendment because it is overbroad and the Fifth Amendment because it is vague. While we discuss the vagueness of the CDA because of its relevance to the First Amendment overbreadth inquiry, we conclude that the judgment should be affirmed without reaching the Fifth Amendment issue. We begin our analysis by reviewing the principal authorities on which the Government relies. Then, after describing the overbreadth of the CDA, we consider the Government's specific contentions, including its submission that we save portions of the statute either by severance or by fashioning judicial limitations on the scope of its coverage. IV In arguing for reversal, the Government contends that the CDA is plainly constitutional under three of our prior decisions: (1) Ginsberg v. New York, 390 U. S. 629 (1968); (2) FCC v. Pacifica Foundation, 438 U. S. 726 (1978); and (3) Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986). A close look at these cases, however, raises-rather than relievesdoubts concerning the constitutionality of the CDA. In Ginsberg, we upheld the constitutionality of a New York statute that prohibited selling to minors under 17 years of age material that was considered obscene as to them even if not obscene as to adults. We rejected the defendant's broad 865 submission that "the scope of the constitutional freedom of expression secured to a citizen to read or see material concerned with sex cannot be made to depend on whether the citizen is an adult or a minor." 390 U. S., at 636. In rejecting that contention, we relied not only on the State's independent interest in the well-being of its youth, but also on our consistent recognition of the principle that "the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society." 31 In four important respects, the statute upheld in Ginsberg was narrower than the CDA. First, we noted in Ginsberg that "the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children." Id., at 639. Under the CDA, by contrast, neither the parents' consent-nor even their participationin the communication would avoid the application of the statute.32 Second, the New York statute applied only to commercial transactions, id., at 647, whereas the CDA contains no such limitation. Third, the New York statute cabined its definition of material that is harmful to minors with the requirement that it be "utterly without redeeming social importance for minors." Id., at 646. The CDA fails to provide us with any definition of the term "indecent" as used in § 223(a)(1) and, importantly, omits any requirement that the "patently offensive" material covered by § 223(d) lack serious literary, artistic, political, or scientific value. Fourth, the New York statute defined a minor as a person under the age 31390 U. S., at 639. We quoted from Prince v. Massachusetts, 321 U. S. 158 , 166 (1944): "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." 32 Given the likelihood that many e-mail transmissions from an adult to a minor are conversations between family members, it is therefore incorrect for the partial dissent to suggest that the provisions of the CDA, even in this narrow area, "are no different from the law we sustained in Ginsberg." Post, at 892. 866 of 17, whereas the CDA, in applying to all those under 18 years, includes an additional year of those nearest majority. In Pacifica, we upheld a declaratory order of the Federal Communications Commission, holding that the broadcast of a recording of a 12-minute monologue entitled "Filthy Words" that had previously been delivered to a live audience "could have been the subject of administrative sanctions." 438 U. S., at 730 (internal quotation marks omitted). The Commission had found that the repetitive use of certain words referring to excretory or sexual activities or organs "in an afternoon broadcast when children are in the audience was patently offensive" and concluded that the monologue was indecent "as broadcast." Id., at 735. The respondent did not quarrel with the finding that the afternoon broadcast was patently offensive, but contended that it was not "indecent" within the meaning of the relevant statutes because it contained no prurient appeal. After rejecting respondent's statutory arguments, we confronted its two constitutional arguments: (1) that the Commission's construction of its authority to ban indecent speech was so broad that its order had to be set aside even if the broadcast at issue was unprotected; and (2) that since the recording was not obscene, the First Amendment forbade any abridgment of the right to broadcast it on the radio. In the portion of the lead opinion not joined by Justices Powell and Blackmun, the plurality stated that the First Amendment does not prohibit all governmental regulation that depends on the content of speech. Id., at 742-743. Accordingly, the availability of constitutional protection for a vulgar and offensive monologue that was not obscene depended on the context of the broadcast. Id., at 744-748. Relying on the premise that "of all forms of communication" broadcasting had received the most limited First Amendment protection, id., at 748-749, the Court concluded that the ease with which children may obtain access to broadcasts, 867 "coupled with the concerns recognized in Ginsberg," justified special treatment of indecent broadcasting. Id., at 749-750. As with the New York statute at issue in Ginsberg, there are significant differences between the order upheld in Pa cifica and the CDA. First, the order in Pacifica, issued by an agency that had been regulating radio stations for decades, targeted a specific broadcast that represented a rather dramatic departure from traditional program content in order to designate when-rather than whether-it would be permissible to air such a program in that particular medium. The CDA's broad categorical prohibitions are not limited to particular times and are not dependent on any evaluation by an agency familiar with the unique characteristics of the Internet. Second, unlike the CDA, the Commission's declaratory order was not punitive; we expressly refused to decide whether the indecent broadcast "would justify a criminal prosecution." 438 U. S., at 750. Finally, the Commission's order applied to a medium which as a matter of history had "received the most limited First Amendment protection," id., at 748, in large part because warnings could not adequately protect the listener from unexpected program content. The Internet, however, has no comparable history. Moreover, the District Court found that the risk of encountering indecent material by accident is remote because a series of affirmative steps is required to access specific material. In Renton, we upheld a zoning ordinance that kept adult movie theaters out of residential neighborhoods. The ordinance was aimed, not at the content of the films shown in the theaters, but rather at the "secondary effects" -such as crime and deteriorating property values-that these theaters fostered: "'It is thee] secondary effect which these zoning ordinances attempt to avoid, not the dissemination of "offensive" speech.''' 475 U. S., at 49 (quoting Young v. American Mini Theatres, Inc., 427 U. S. 50 , 71, n. 34 (1976)). According to the Government, the CDA is constitutional be- 868 cause it constitutes a sort of "cyberzoning" on the Internet. But the CDA applies broadly to the entire universe of cyberspace. And the purpose of the CDA is to protect children from the primary effects of "indecent" and "patently offensive" speech, rather than any "secondary" effect of such speech. Thus, the CDA is a content-based blanket restriction on speech, and, as such, cannot be "properly analyzed as a form of time, place, and manner regulation." 475 U. S., at 46. See also Boos v. Barry, 485 U. S. 312 , 321 (1988) ("Regulations that focus on the direct impact of speech on its audience" are not properly analyzed under Renton); Forsyth County v. Nationalist Movement, 505 U. S. 123 , 134 (1992) ("Listeners' reaction to speech is not a content-neutral basis for regulation"). These precedents, then, surely do not require us to uphold the CDA and are fully consistent with the application of the most stringent review of its provisions. v In Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 , 557 (1975), we observed that "[e]ach medium of expression ... may present its own problems." Thus, some of our cases have recognized special justifications for regulation of the broadcast media that are not applicable to other speakers, see Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969); FCC v. Pacifica Foundation, 438 U. S. 726 (1978). In these cases, the Court relied on the history of extensive Government regulation of the broadcast medium, see, e. g., Red Lion, 395 U. S., at 399-400; the scarcity of available frequencies at its inception, see, e. g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 , 637-638 (1994); and its "invasive" nature, see Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 , 128 (1989). Those factors are not present in cyberspace. Neither before nor after the enactment of the CDA have the vast democratic forums of the Internet been subject to the type 869 of government supervision and regulation that has attended the broadcast industry.33 Moreover, the Internet is not as "invasive" as radio or television. The District Court specifically found that "[c]ommunications over the Internet do not 'invade' an individual's home or appear on one's computer screen unbidden. Users seldom encounter content 'by accident.' " 929 F. Supp., at 844 (finding 88). It also found that "[a]lmost all sexually explicit images are preceded by warnings as to the content," and cited testimony that" 'odds are slim' that a user would come across a sexually explicit sight by accident." Ibid. We distinguished Pacifica in Sable, 492 U. S., at 128, on just this basis. In Sable, a company engaged in the business of offering sexually oriented prerecorded telephone messages (popularly known as "dial-a-porn") challenged the constitutionality of an amendment to the Communications Act of 1934 that imposed a blanket prohibition on indecent as well as obscene interstate commercial telephone messages. We held that the statute was constitutional insofar as it applied to obscene messages but invalid as applied to indecent messages. In attempting to justify the complete ban and criminalization of indecent commercial telephone messages, the Government relied on Pacifica, arguing that the ban was necessary to prevent children from gaining access to such messages. We agreed that "there is a compelling interest in protecting the physical and psychological well-being of minors" which extended to shielding them from indecent messages that are not obscene by adult standards, 492 U. S., at 33 Cf. Pacifica Foundation v. FCC, 556 F.2d 9 , 36 (CADC 1977) (LevanthaI, J., dissenting), rev'd, FCC v. Pacifica Foundation, 438 U. S. 726 (1978). When Pacifica was decided, given that radio stations were allowed to operate only pursuant to federal license, and that Congress had enacted legislation prohibiting licensees from broadcasting indecent speech, there was a risk that members of the radio audience might infer some sort of official or societal approval of whatever was heard over the radio, see 556 F. 2d, at 37, n. 18. No such risk attends messages received through the Internet, which is not supervised by any federal agency. 870 126, but distinguished our "emphatically narrow holding" in Pacifica because it did not involve a complete ban and because it involved a different medium of communication, id., at 127. We explained that "the dial-it medium requires the listener to take affirmative steps to receive the communication." Id., at 127-128. "Placing a telephone call," we continued, "is not the same as turning on a radio and being taken by surprise by an indecent message." Id., at 128. Finally, unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a "scarce" expressive commodity. It provides relatively unlimited, low-cost capacity for communication of all kinds. The Government estimates that "[a]s many as 40 million people use the Internet today, and that figure is expected to grow to 200 million by 1999."34 This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real-time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, "the content on the Internet is as diverse as human thought." 929 F. Supp., at 842 (finding 74). We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium. VI Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many ambiguities concerning the scope of its coverage render it problematic for purposes of the First Amendment. For instance, each of the two parts 34 Juris. Statement 3 (citing 929 F. Supp., at 831 (finding 3)). 871 of the CDA uses a different linguistic form. The first uses the word "indecent," 47 U. s. C. § 223(a) (1994 ed., Supp. II), while the second speaks of material that "in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs," § 223(d). Given the absence of a definition of either term,35 this difference in language will provoke uncertainty among speakers about how the two standards relate to each other36 and just what they mean.37 Could a speaker confidently assume that a serious discussion about birth control practices, homosexuality, the First Amendment issues raised by the Appendix to our Pacifica opinion, or the consequences of prison rape would not violate the CDA? This uncertainty undermines the likelihood that the CDA has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials. The vagueness of the CDA is a matter of special concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such a regulation raises 35 "Indecent" does not benefit from any textual embellishment at all. "Patently offensive" is qualified only to the extent that it involves "sexual or excretory activities or organs" taken "in context" and "measured by contemporary community standards." 36 See Gozlon-Peretz v. United States, 498 U. S. 395 , 404 (1991) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion and exclusion" (internal quotation marks omitted)). 37 The statute does not indicate whether the "patently offensive" and "indecent" determinations should be made with respect to minors or the population as a whole. The Government asserts that the appropriate standard is "what is suitable material for minors." Reply Brief for Appellants 18, n. 13 (citing Ginsberg v. New York, 390 U. S. 629 , 633 (1968)). But the Conferees expressly rejected amendments that would have imposed such a "harmful to minors" standard. See S. Conf. Rep. No. 104-230, p. 189 (1996) (S. Conf. Rep.), 142 Congo Rec. H1145, H1165-H1166 (Feb. 1, 1996). The Conferees also rejected amendments that would have limited the proscribed materials to those lacking redeeming value. See ibid. 872 special First Amendment concerns because of its obvious chilling effect on free speech. See, e. g., Gentile v. State Bar of Nev., 501 U. S. 1030 , 1048-1051 (1991). Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA threatens violators with penalties including up to two years in prison for each act of violation. The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images. See, e. g., Dombrowski v. Pfister, 380 U. S. 479 , 494 (1965). As a practical matter, this increased deterrent effect, coupled with the "risk of discriminatory enforcement" of vague regulations, poses greater First Amendment concerns than those implicated by the civil regulation reviewed in Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727 (1996). The Government argues that the statute is no more vague than the obscenity standard this Court established in Miller v. California, 413 U. S. 15 (1973). But that is not so. In Miller, this Court reviewed a criminal conviction against a commercial vendor who mailed brochures containing pictures of sexually explicit activities to individuals who had not requested such materials. Id., at 18. Having struggled for some time to establish a definition of obscenity, we set forth in Miller the test for obscenity that controls to this day: "(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Id., at 24 (internal quotation marks and citations omitted). 873 Because the CDA's "patently offensive" standard (and, we assume, arguendo, its synonymous "indecent" standard) is one part of the three-prong Miller test, the Government reasons, it cannot be unconstitutionally vague. The Government's assertion is incorrect as a matter of fact. The second prong of the Miller test-the purportedly analogous standard-contains a critical requirement that is omitted from the CDA: that the proscribed material be "specifically defined by the applicable state law." This requirement reduces the vagueness inherent in the open-ended term "patently offensive" as used in the CDA. Moreover, the Miller definition is limited to "sexual conduct," whereas the CDA extends also to include (1) "excretory activities" as well as (2) "organs" of both a sexual and excretory nature. The Government's reasoning is also flawed. Just because a definition including three limitations is not vague, it does not follow that one of those limitations, standing by itself, is not vague.38 Each of Miller's additional two prongs-(l) that, taken as a whole, the material appeal to the "prurient" interest, and (2) that it "lac[k] serious literary, artistic, political, or scientific value"-critically limits the uncertain sweep of the obscenity definition. The second requirement is particularly important because, unlike the "patently offensive" and "prurient interest" criteria, it is not judged by contemporary community standards. See Pope v. Illinois, 481 U. S. 497 , 500 (1987). This "societal value" requirement, absent in the CDA, allows appellate courts to impose some limitations and regularity on the definition by setting, as a matter of law, a national floor for socially redeeming value. The Government's contention that courts will be able to give such legal limitations to the CDA's standards is belied by Miller's own rationale for having juries determine whether material 38 Even though the word "trunk," standing alone, might refer to luggage, a swimming suit, the base of a tree, or the long nose of an animal, its meaning is clear when it is one prong of a three-part description of a species of gray animals. 874 is "patently offensive" according to community standards: that such questions are essentially ones of fact. 39 In contrast to Miller and our other previous cases, the CDA thus presents a greater threat of censoring speech that, in fact, falls outside the statute's scope. Given the vague contours of the coverage of the statute, it unquestionably silences some speakers whose messages would be entitled to constitutional protection. That danger provides further reason for insisting that the statute not be overly broad. The CDA's burden on protected speech cannot be justified if it could be avoided by a more carefully drafted statute. VII We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve. In evaluating the free speech rights of adults, we have made it perfectly clear that "[s]exual expression which is indecent but not obscene is protected by the First Amendment." Sable, 492 U. S., at 126. See also Carey v. Population Services Int'l, 431 U. S. 678 , 701 (1977) ("[W]here obscenity is not involved, we have consistently held that the 39413 U. S., at 30 (Determinations of "what appeals to the 'prurient interest' or is 'patently offensive' ... are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists"). The CDA, which implements the "contemporary community standards" language of Miller, thus conflicts with the Conferees' own assertion that the CDA was intended "to establish a uniform national standard of content regulation." S. Conf. Rep., at 191. 875 fact that protected speech may be offensive to some does not justify its suppression"). Indeed, Pacifica itself admonished that "the fact that society may find speech offensive is not a sufficient reason for suppressing it." 438 U. S., at 745. It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. See Ginsberg, 390 U. S., at 639; Pacifica, 438 U. S., at 749. But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may not "reduc[e] the adult population ... to ... only what is fit for children." Denver, 518 U. S., at 759 (internal quotation marks omitted) (quoting Sable, 492 U. S., at 128).40 "[R]egardless of the strength of the government's interest" in protecting children, "[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox." Bolger v. Youngs Drug Products Corp., 463 U. S. 60 , 74-75 (1983). The District Court was correct to conclude that the CDA effectively resembles the ban on "dial-a-porn" invalidated in Sable. 929 F. Supp., at 854. In Sable, 492 U. S., at 129, this Court rejected the argument that we should defer to the congressional judgment that nothing less than a total ban would be effective in preventing enterprising youngsters from gaining access to indecent communications. Sable thus made clear that the mere fact that a statutory regulation of speech was enacted for the important purpose of protecting children from exposure to sexually explicit material does not foreclose inquiry into its validity.41 As we pointed out last 40 Accord, Butler v. Michigan, 352 U. S. 380 , 383 (1957) (ban on sale to adults of books deemed harmful to children unconstitutional); Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 , 128 (1989) (ban on "dial-aporn" messages unconstitutional); Bolger v. Youngs Drug Products Corp., 463 U. S. 60 , 73 (1983) (ban on mailing of unsolicited advertisement for contraceptives unconstitutional). 41 The lack of legislative attention to the statute at issue in Sable suggests another parallel with this case. Compare 492 U. S., at 129-130 ("[A]side from conc1usory statements during the debates by proponents of 876 Term, that inquiry embodies an "overarching commitment" to make sure that Congress has designed its statute to accomplish its purpose "without imposing an unnecessarily great restriction on speech." Denver, 518 U. S., at 741. In arguing that the CDA does not so diminish adult communication, the Government relies on the incorrect factual premise that prohibiting a transmission whenever it is known that one of its recipients is a minor would not interfere with adult-to-adult communication. The findings of the District Court make clear that this premise is untenable. Given the size of the potential audience for most messages, in the absence of a viable age verification process, the sender must be charged with knowing that one or more minors will likely view it. Knowledge that, for instance, one or more members of a 100-person chat group will be a minor-and therefore that it would be a crime to send the group an indecent message-would surely burden communication among adults.42 The District Court found that at the time of trial existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults. The Court found no effective way to determine the age of a user who is accessing material through e-mail, mail exploders, newsgroups, or chat rooms. 929 F. Supp., at 845 (findings 90-94). As a practical matter, the Court also found the bill, as well as similar assertions in hearings on a substantially identical bill the year before, ... the congressional record presented to us contains no evidence as to how effective or ineffective the FCC's most recent regulations were or might prove to be .... No Congressman or Senator purported to present a considered judgment with respect to how often or to what extent minors could or would circumvent the rules and have access to dial-a-porn messages" (footnote omitted)), with n. 24, supra. 42 The Government agrees that these provisions are applicable whenever "a sender transmits a message to more than one recipient, knowing that at least one of the specific persons receiving the message is a minor." Opposition to Motion to Affirm and Reply to Juris. Statement 4-5, n. 1. 877 that it would be prohibitively expensive for noncommercialas well as some commercial-speakers who have Web sites to verify that their users are adults. Id., at 845-848 (findings 95-116).43 These limitations must inevitably curtail a significant amount of adult communication on the Internet. By contrast, the District Court found that "[dJespite its limitations, currently available user-based software suggests that a reasonably effective method by which parents can prevent their children from accessing sexually explicit and other material which parents may believe is inappropriate for their children will soon be widely available." Id., at 842 (finding 73) (emphases added). The breadth of the CDA's coverage is wholly unprecedented. Unlike the regulations upheld in Ginsberg and Pa cifica, the scope of the CDA is not limited to commercial speech or commercial entities. Its open-ended prohibitions embrace all nonprofit entities and individuals posting indecent messages or displaying them on their own computers in the presence of minors. The general, undefined terms "indecent" and "patently offensive" cover large amounts of nonpornographic material with serious educational or other value.44 Moreover, the "community standards" criterion as applied to the Internet means that any communication avail- 43 The Government asserts that "[t]here is nothing constitutionally suspect about requiring commercial Web site operators ... to shoulder the modest burdens associated with their use." Brief for Appellants 35. As a matter of fact, however, there is no evidence that a "modest burden" would be effective. 44 Transmitting obscenity and child pornography, whether via the Internet or other means, is already illegal under federal law for both adults and juveniles. See 18 U. S. C. §§ 1464-1465 (criminalizing obscenity); § 2251 (criminalizing child pornography). In fact, when Congress was considering the CDA, the Government expressed its view that the law was unnecessary because existing laws already authorized its ongoing efforts to prosecute obscenity, child pornography, and child solicitation. See 141 Congo Rec. 16026 (1995) (letter from Kent Markus, Acting Assistant Attorney General, U. S. Department of Justice, to Sen. Leahy). 878 able to a nationwide audience will be judged by the standards of the community most likely to be offended by the message.45 The regulated subject matter includes any of the seven "dirty words" used in the Pacifica monologue, the use of which the Government's expert acknowledged could constitute a felony. See Olsen Testimony, Tr. Vol. V, 53:1654:10. It may also extend to discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalog of the Carnegie Library. For the purposes of our decision, we need neither accept nor reject the Government's submission that the First Amendment does not forbid a blanket prohibition on all "indecent" and "patently offensive" messages communicated to a 17-year-old-no matter how much value the message may contain and regardless of parental approval. It is at least clear that the strength of the Government's interest in protecting minors is not equally strong throughout the coverage of this broad statute. Under the CDA, a parent allowing her 17-year-old to use the family computer to obtain information on the Internet that she, in her parental judgment, deems appropriate could face a lengthy prison term. See 47 U. S. C. § 223(a)(2) (1994 ed., Supp. II). Similarly, a parent who sent his 17-year-old college freshman information on birth control via e-mail could be incarcerated even though neither he, his child, nor anyone in their home community found the material "indecent" or "patently offensive," if the college town's community thought otherwise. 45 Citing Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993), among other cases, appellees offer an additional reason why, in their view, the CDA fails strict scrutiny. Because so much sexually explicit content originates overseas, they argue, the CDA cannot be "effective." Brief for Appellees American Library Association et al. 33-34. This argument raises difficult issues regarding the intended, as well as the permissible scope of, extraterritorial application of the CDA. We find it unnecessary to address those issues to dispose of this case. 879 The breadth of this content-based restriction of speech imposes an especially heavy burden on the Government to explain why a less restrictive provision would not be as effective as the CDA. It has not done so. The arguments in this Court have referred to possible alternatives such as requiring that indecent material be "tagged" in a way that facilitates parental control of material coming into their homes, making exceptions for messages with artistic or educational value, providing some tolerance for parental choice, and regulating some portions of the Internet-such as commercial Web sites-differently from others, such as chat rooms. Particularly in the light of the absence of any detailed findings by the Congress, or even hearings addressing the special problems of the CDA, we are persuaded that the CDA is not narrowly tailored if that requirement has any meaning at all. VIII In an attempt to curtail the CDA's facial overbreadth, the Government advances three additional arguments for sustaining the Act's affirmative prohibitions: (1) that the CDA is constitutional because it leaves open ample "alternative channels" of communication; (2) that the plain meaning of the CDA's "knowledge" and "specific person" requirement significantly restricts its permissible applications; and (3) that the CDA's prohibitions are "almost always" limited to material lacking redeeming social value. The Government first contends that, even though the CDA effectively censors discourse on many of the Internet's modalities-such as chat groups, newsgroups, and mail exploders-it is nonetheless constitutional because it provides a "reasonable opportunity" for speakers to engage in the restricted speech on the World Wide Web. Brief for Appellants 39. This argument is unpersuasive because the CDA regulates speech on the basis of its content. A "time, place, and manner" analysis is therefore inapplicable. See Consolidated Edison Co. of N. Y. v. Public Servo Comm'n of N. Y., 880 447 U. S. 530 , 536 (1980). It is thus immaterial whether such speech would be feasible on the Web (which, as the Government's own expert acknowledged, would cost up to $10,000 if the speaker's interests were not accommodated by an existing Web site, not including costs for data base management and age verification). The Government's position is equivalent to arguing that a statute could ban leaflets on certain subjects as long as individuals are free to publish books. In invalidating a number of laws that banned leafletting on the streets regardless of their content, we explained that "one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place." Schneider v. State (Town of Irvington), 308 U. S. 147 , 163 (1939). The Government also asserts that the "knowledge" requirement of both §§ 223(a) and (d), especially when coupled with the "specific child" element found in § 223(d), saves the CDA from overbreadth. Because both sections prohibit the dissemination of indecent messages only to persons known to be under 18, the Government argues, it does not require transmitters to "refrain from communicating indecent material to adults; they need only refrain from disseminating such materials to persons they know to be under 18." Brief for Appellants 24. This argument ignores the fact that most Internet forums-including chat rooms, newsgroups, mail exploders, and the Web-are open to all comers. The Government's assertion that the knowledge requirement somehow protects the communications of adults is therefore untenable. Even the strongest reading of the "specific person" requirement of § 223(d) cannot save the statute. It would confer broad powers of censorship, in the form of a "heckler's veto," upon any opponent of indecent speech who might simply log on and inform the would-be discoursers that his 17-year-old child-a "specific person ... under 18 years of age," 47 U. S. C. §223(d)(1)(A) (1994 ed., Supp. H)-would be present. 881 Finally, we find no textual support for the Government's submission that material having scientific, educational, or other redeeming social value will necessarily fall outside the CDA's "patently offensive" and "indecent" prohibitions. See also n. 37, supra. IX The Government's three remaining arguments focus on the defenses provided in § 223(e)(5).46 First, relying on the "good faith, reasonable, effective, and appropriate actions" provision, the Government suggests that "tagging" provides a defense that saves the constitutionality of the CDA. The suggestion assumes that transmitters may encode their indecent communications in a way that would indicate their contents, thus permitting recipients to block their reception with appropriate software. It is the requirement that the good-faith action must be "effective" that makes this defense illusory. The Government recognizes that its proposed screening software does not currently exist. Even if it did, there is no way to know whether a potential recipient will actually block the encoded material. Without the impossible knowledge that every guardian in America is screening for the "tag," the transmitter could not reasonably rely on its action to be "effective." For its second and third arguments concerning defenseswhich we can consider together-the Government relies on the latter half of § 223(e)(5), which applies when the transmitter has restricted access by requiring use of a verified credit card or adult identification. Such verification is not only technologically available but actually is used by commercial providers of sexually explicit material. These providers, therefore, would be protected by the defense. Under the findings of the District Court, however, it is not economically feasible for most noncommercial speakers to employ such verification. Accordingly, this defense would not signifi- 46 For the full text of § 223(e )(5), see n. 26, supra. 882 cantly narrow the statute's burden on noncommercial speech. Even with respect to the commercial pornographers that would be protected by the defense, the Government failed to adduce any evidence that these verification techniques actually preclude minors from posing as adults.47 Given that the risk of criminal sanctions "hovers over each content provider, like the proverbial sword of Damocles,"48 the District Court correctly refused to rely on unproven future technology to save the statute. The Government thus failed to prove that the proffered defense would significantly reduce the heavy burden on adult speech produced by the prohibition on offensive displays. We agree with the District Court's conclusion that the CDA places an unacceptably heavy burden on protected speech, and that the defenses do not constitute the sort of "narrow tailoring" that will save an otherwise patently invalid unconstitutional provision. In Sable, 492 U. S., at 127, we remarked that the speech restriction at issue there amounted to "'burn[ing] the house to roast the pig.'" The CDA, casting a far darker shadow over free speech, threatens to torch a large segment of the Internet community. X At oral argument, the Government relied heavily on its ultimate fall-back position: If this Court should conclude that the CDA is insufficiently tailored, it urged, we should save the statute's constitutionality by honoring the severability clause, see 47 U. S. C. § 608, and construing nonseverable terms narrowly. In only one respect is this argument acceptable. A severability clause requires textual provisions that can be severed. We will follow § 608's guidance by leaving con- 47 Thus, ironically, this defense may significantly protect commercial purveyors of obscene postings while providing little (or no) benefit for transmitters of indecent messages that have significant social or artistic value. 48929 F. Supp., at 855-856. 883 stitutional textual elements of the statute intact in the one place where they are, in fact, severable. The "indecency" provision, 47 U. S. C. § 223(a) (1994 ed., Supp. II), applies to "any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent." (Emphasis added.) Appellees do not challenge the application of the statute to obscene speech, which, they acknowledge, can be banned totally because it enjoys no First Amendment protection. See Miller, 413 U. S., at 18. As set forth by the statute, the restriction of "obscene" material enjoys a textual manifestation separate from that for "indecent" material, which we have held unconstitutional. Therefore, we will sever the term "or indecent" from the statute, leaving the rest of § 223(a) standing. In no other respect, however, can § 223(a) or § 223(d) be saved by such a textual surgery. The Government also draws on an additional, less traditional aspect of the CDA's severability clause, 47 U. S. C. § 608, which asks any reviewing court that holds the statute facially unconstitutional not to invalidate the CDA in application to "other persons or circumstances" that might be constitutionally permissible. It further invokes this Court's admonition that, absent "countervailing considerations," a statute should "be declared invalid to the extent it reaches too far, but otherwise left intact." Brockett v. Spokane Arcades, Inc., 472 U. S. 491 , 503-504 (1985). There are two flaws in this argument. First, the statute that grants our jurisdiction for this expedited review, § 561 of the Telecommunications Act of 1961, note following 47 U. S. C. § 223 (1994 ed., Supp. II), limits that jurisdictional grant to actions challenging the CDA "on its face." Consistent with § 561, the plaintiffs who brought this suit and the three-judge panel that decided it treated it as a facial challenge. We have no authority, in this particular posture, to convert this litigation into an "as-applied" challenge. Nor, given the vast array of plaintiffs, the range of their expressive activities, and the vagueness of the stat- 884 ute, would it be practicable to limit our holding to a judicially defined set of specific applications. Second, one of the "countervailing considerations" mentioned in Brockett is present here. In considering a facial challenge, this Court may impose a limiting construction on a statute only if it is "readily susceptible" to such a construction. Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 397 (1988). See also Erznoznik v. Jacksonville, 422 U. S. 205 , 216 (1975) ("readily subject" to narrowing construction). The open-ended character of the CDA provides no guidance whatever for limiting its coverage. This case is therefore unlike those in which we have construed a statute narrowly because the text or other source of congressional intent identified a clear line that this Court could draw. Cf., e. g., Brockett, 472 U. S., at 504-505 (invalidating obscenity statute only to the extent that word "lust" was actually or effectively excised from statute); United States v. Grace, 461 U. S. 171 , 180-183 (1983) (invalidating federal statute banning expressive displays only insofar as it extended to public sidewalks when clear line could be drawn between sidewalks and other grounds that comported with congressional purpose of protecting the building, grounds, and people therein). Rather, our decision in United States v. Treasury Employees, 513 U. S. 454 , 479, n. 26 (1995), is applicable. In that case, we declined to "dra[w] one or more lines between categories of speech covered by an overly broad statute, when Congress has sent inconsistent signals as to where the new line or lines should be drawn" because doing so "involves a far more serious invasion of the legislative domain."49 This Court "will not rewrite a ... law 49 As this Court long ago explained: "It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government." United States v. Reese, 92 U. S. 214 , 221 (1876). In part because of these 885 to conform it to constitutional requirements." American Booksellers, 484 U. S., at 397.50 XI In this Court, though not in the District Court, the Government asserts that-in addition to its interest in protecting children-its "[e]qually significant" interest in fostering the growth of the Internet provides an independent basis for upholding the constitutionality of the CDA. Brief for Appellants 19. The Government apparently assumes that the unregulated availability of "indecent" and "patently offensive" material on the Internet is driving countless citizens away from the medium because of the risk of exposing themselves or their children to harmful material. We find this argument singularly unpersuasive. The dramatic expansion of this new marketplace of ideas contradicts the factual basis of this contention. The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship. For the foregoing reasons, the judgment of the District Court is affirmed. It is so ordered. separation-of-powers concerns, we have held that a severability clause is "an aid merely; not an inexorable command." Dorchy v. Kansas, 264 U. S. 286 , 290 (1924). 50 See also Osborne v. Ohio, 495 U. S. 103 , 121 (1990) (judicial rewriting of statutes would derogate Congress' "incentive to draft a narrowly tailored law in the first place"). 886 JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE joins, concurring in the judgment in part and dissenting in part. I write separately to explain why I view the Communications Decency Act of 1996 (CDA) as little more than an attempt by Congress to create "adult zones" on the Internet. Our precedent indicates that the creation of such zones can be constitutionally sound. Despite the soundness of its purpose, however, portions of the CDA are unconstitutional because they stray from the blueprint our prior cases have developed for constructing a "zoning law" that passes constitutional muster. Appellees bring a facial challenge to three provisions of the CDA. The first, which the Court describes as the "indecency transmission" provision, makes it a crime to knowingly transmit an obscene or indecent message or image to a person the sender knows is under 18 years old. 47 U. S. C. § 223(a)(1)(B) (1994 ed., Supp. II). What the Court classifies as a single" 'patently offensive display'" provision, see ante, at 859, is in reality two separate provisions. The first of these makes it a crime to knowingly send a patently offensive message or image to a specific person under the age of 18 ("specific person" provision). § 223(d)(1)(A). The second criminalizes the display of patently offensive messages or images "in a[ny] manner available" to minors ("display" provision). § 223(d)(1)(B). None of these provisions purports to keep indecent (or patently offensive) material away from adults, who have a First Amendment right to obtain this speech. Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 , 126 (1989) ("Sexual expression which is indecent but not obscene is protected by the First Amendment"). Thus, the undeniable purpose of the CDA is to segregate indecent material on the Internet into certain areas that minors cannot access. See S. Conf. Rep. No. 104-230, p. 189 (1996) (CDA imposes "access restrictions ... to protect minors from exposure to indecent material"). 887 The creation of "adult zones" is by no means a novel concept. States have long denied minors access to certain establishments frequented by adults.1 States have also denied minors access to speech deemed to be "harmful to minors." 2 1 See, e. g., Alaska Stat. Ann. § 11.66.300 (1996) (no minors in "adult entertainment" places); Ariz. Rev. Stat. Ann. § 13-3556 (1989) (no minors in places where people expose themselves); Ark. Code Ann. §§ 5-27-223, 5-27-224 (1993) (no minors in poolrooms and bars); Colo. Rev. Stat. § 18-7502(2) (1986) (no minors in places displaying movies or shows that are "harmful to children"); Del. Code Ann., Tit. 11, § 1365(i)(2) (1995) (same); D. C. Code Ann. § 22-2001(b)(I)(B) (1996) (same); Fla. Stat. § 847.013(2) (1994) (same); Ga. Code Ann. § 16-12-103(b) (1996) (same); Haw. Rev. Stat. § 712-1215(1)(b) (1994) (no minors in movie houses or shows that are "pornographic for minors"); Idaho Code § 18-1515(2) (1987) (no minors in places displaying movies or shows that are "harmful to minors"); La. Rev. Stat. Ann. § 14:91.11(B) (West 1986) (no minors in places displaying movies that depict sex acts and appeal to minors' prurient interest); Md. Ann. Code, Art. 27, §416E (1996) (no minors in establishments where certain enumerated acts are performed or portrayed); Mich. Compo Laws § 750.141 (1991) (no minors without an adult in places where alcohol is sold); Minn. Stat. § 617.294 (1987 and Supp. 1997) (no minors in places displaying movies or shows that are "harmful to minors"); Miss. Code Ann. § 97-5-11 (1994) (no minors in poolrooms, billiard halls, or where alcohol is sold); Mo. Rev. Stat. § 573.507 (1995) (no minors in adult cabarets); Neb. Rev. Stat. § 28-809 (1995) (no minors in places displaying movies or shows that are "harmful to minors"); Nev. Rev. Stat. §201.265(3) (1997) (same); N. H. Rev. Stat. Ann. § 571-B:2(II) (1986) (same); N. M. Stat. Ann. § 30-37-3 (1989) (same); N. Y. Penal Law §235.21(2) (McKinney 1989) (same); N. D. Cent. Code § 12.1-27.1-03 (1985 and Supp. 1995) (same); 18 Pa. Cons. Stat. § 5903(a) (Supp. 1997) (same); S. D. Compo Laws Ann. §22-24-30 (1988) (same); Tenn. Code Ann. §39-17-911(b) (1991) (same); Vt. Stat. Ann., Tit. 13, §2802(b) (1974) (same); Va. Code Ann. § 18.2-391 (1996) (same). 2 See, e. g., Ala. Code § 13A-12-200.5 (1994); Ariz. Rev. Stat. Ann. § 133506 (1989); Ark. Code Ann. § 5-68-502 (1993); Cal. Penal Code Ann. §313.1 (West Supp. 1997); Colo. Rev. Stat. § 18-7-502(1) (1986); Conn. Gen. Stat. § 53a-196 (1994); Del. Code Ann., Tit. 11, § 1365(i)(I) (1995); D. C. Code Ann. § 22-2001(b)(I)(A) (1996); Fla. Stat. § 847.012 (1994); Ga. Code Ann. § 16-12-103(a) (1996); Haw. Rev. Stat. § 712-1215(1) (1994); Idaho Code § 18-1515(1) (1987); Ill. Compo Stat., ch. 720, § 5/11-21 (1993); Ind. Code § 35-49-3-3(1) (Supp. 1996); Iowa Code § 728.2 (1993); Kan. Stat. Ann. §21-4301c(a)(2) (1988); La. Rev. Stat. Ann. § 14:91.11(B) (West 1986); 888 The Court has previously sustained such zoning laws, but only if they respect the First Amendment rights of adults and minors. That is to say, a zoning law is valid if (i) it does not unduly restrict adult access to the material; and (ii) minors have no First Amendment right to read or view the banned material. As applied to the Internet as it exists in 1997, the "display" provision and some applications of the "indecency transmission" and "specific person" provisions fail to adhere to the first of these limiting principles by restricting adults' access to protected materials in certain circumstances. Unlike the Court, however, I would invalidate the provisions only in those circumstances. I Our cases make clear that a "zoning" law is valid only if adults are still able to obtain the regulated speech. If they cannot, the law does more than simply keep children away from speech they have no right to obtain-it interferes with the rights of adults to obtain constitutionally protected speech and effectively "reduce[s] the adult population ... to reading only what is fit for children." Butler v. Michigan, 352 U. S. 380 , 383 (1957). The First Amendment does not tolerate such interference. See ibid. (striking down a Michi- Md. Ann. Code, Art. 27, §416B (1996); Mass. Gen. Laws, ch. 272, §28 (1992); Minn. Stat. § 617.293 (1987 and Supp. 1997); Miss. Code Ann. § 975-11 (1994); Mo. Rev. Stat. § 573.040 (1995); Mont. Code Ann. § 45-8-206 (1995); Neb. Rev. Stat. § 28-808 (1995); Nev. Rev. Stat. §§ 201.265(1), (2) (1997); N. H. Rev. Stat. Ann. § 571-B:2(I) (1986); N. M. Stat. Ann. § 30-37-2 (1989); N. Y. Penal Law § 235.21(1) (McKinney 1989); N. C. Gen. Stat. § 14190.15(a) (1993); N. D. Cent. Code § 12.1-27.1-03 (1985 and Supp. 1995); Ohio Rev. Code Ann. § 2907.31(A)(I) (Supp. 1997); Okla. Stat., Tit. 21, § 1040.76(2) (Supp. 1997); 18 Pa. Cons. Stat. § 5903(c) (Supp. 1997); R. 1. Gen. Laws § 11-31-10(a) (1996); S. C. Code Ann. § 16-15-385(A) (Supp. 1996); S. D. Compo Laws Ann. §22-24-28 (1988); Tenn. Code Ann. §39-17911(a) (1991); Tex. Penal Code Ann. § 43.24(b) (1994); Utah Code Ann. § 7610-1206(2) (1995); Vt. Stat. Ann., Tit. 13, §2802(a) (1974); Va. Code Ann. § 18.2-391 (1996); Wash. Rev. Code § 9.68.060 (1988 and Supp. 1997); Wis. Stat. § 948.11(2) (Supp. 1995). 889 gan criminal law banning sale of books-to minors or adults-that contained words or pictures that" 'tende[d] to ... corrup[t] the morals of youth' "); Sable Communications, supra (invalidating federal law that made it a crime to transmit indecent, but nonobscene, commercial telephone messages to minors and adults); Bolger v. Youngs Drug Products Corp., 463 U. S. 60 , 74 (1983) (striking down a federal law prohibiting the mailing of unsolicited advertisements for contraceptives). If the law does not unduly restrict adults' access to constitutionally protected speech, however, it may be valid. In Ginsberg v. New York, 390 U. S. 629 , 634 (1968), for example, the Court sustained a New York law that barred store owners from selling pornographic magazines to minors in part because adults could still buy those magazines. The Court in Ginsberg concluded that the New York law created a constitutionally adequate adult zone simply because, on its face, it denied access only to minors. The Court did not question-and therefore necessarily assumed-that an adult zone, once created, would succeed in preserving adults' access while denying minors' access to the regulated speech. Before today, there was no reason to question this assumption, for the Court has previously only considered laws that operated in the physical world, a world that with two characteristics that make it possible to create "adult zones": geography and identity. See Lessig, Reading the Constitution in Cyberspace, 45 Emory L. J. 869, 886 (1996). A minor can see an adult dance show only if he enters an establishment that provides such entertainment. And should he attempt to do so, the minor will not be able to conceal completely his identity (or, consequently, his age). Thus, the twin characteristics of geography and identity enable the establishment's proprietor to prevent children from entering the establishment, but to let adults inside. The electronic world is fundamentally different. Because it is no more than the interconnection of electronic pathways, cyberspace allows speakers and listeners to mask their iden- 890 tities. Cyberspace undeniably reflects some form of geography; chat rooms and Web sites, for example, exist at fixed "locations" on the Internet. Since users can transmit and receive messages on the Internet without revealing anything about their identities or ages, see id., at 901, however, it is not currently possible to exclude persons from accessing certain messages on the basis of their identity. Cyberspace differs from the physical world in another basic way: Cyberspace is malleable. Thus, it is possible to construct barriers in cyberspace and use them to screen for identity, making cyberspace more like the physical world and, consequently, more amenable to zoning laws. This transformation of cyberspace is already underway. Id., at 888-889; id., at 887 (cyberspace "is moving ... from a relatively unzoned place to a universe that is extraordinarily well zoned"). Internet speakers (users who post material on the Internet) have begun to zone cyberspace itself through the use of "gateway" technology. Such technology requires Internet users to enter information about themselves-perhaps an adult identification number or a credit card number-before they can access certain areas of cyberspace, 929 F. Supp. 824, 845 (ED Pa. 1996), much like a bouncer checks a person's driver's license before admitting him to a nightclub. Internet users who access information have not attempted to zone cyberspace itself, but have tried to limit their own power to access information in cyberspace, much as a parent controls what her children watch on television by installing a lock box. This user-based zoning is accomplished through the use of screening software (such as Cyber Patrol or SurfWatch) or browsers with screening capabilities, both of which search addresses and text for keywords that are associated with "adult" sites and, if the user wishes, blocks access to such sites. Id., at 839-842. The Platform for Internet Content Selection project is designed to facilitate user-based zoning by encouraging Internet speakers to rate the content 891 of their speech using codes recognized by all screening programs. Id., at 838-839. Despite this progress, the transformation of cyberspace is not complete. Although gateway technology has been available on the World Wide Web for some time now, id., at 845; Shea v. Reno, 930 F. Supp. 916, 933-934 (SDNY 1996), it is not available to all Web speakers, 929 F. Supp., at 845-846, and is just now becoming technologically feasible for chat rooms and USE NET newsgroups, Brief for Appellants 3738. Gateway technology is not ubiquitous in cyberspace, and because without it "there is no means of age verification," cyberspace still remains largely unzoned-and unzoneable. 929 F. Supp., at 846; Shea, supra, at 934. U serbased zoning is also in its infancy. For it to be effective, (i) an agreed-upon code (or "tag") would have to exist; (ii) screening software or browsers with screening capabilities would have to be able to recognize the "tag"; and (iii) those programs would have to be widely available-and widely used-by Internet users. At present, none of these conditions is true. Screening software "is not in wide use today" and "only a handful of browsers have screening capabilities." Shea, supra, at 945-946. There is, moreover, no agreedupon "tag" for those programs to recognize. 929 F. Supp., at 848; Shea, supra, at 945. Although the prospects for the eventual zoning of the Internet appear promising, I agree with the Court that we must evaluate the constitutionality of the CDA as it applies to the Internet as it exists today. Ante, at 881. Given the present state of cyberspace, I agree with the Court that the "display" provision cannot pass muster. Until gateway technology is available throughout cyberspace, and it is not in 1997, a speaker cannot be reasonably assured that the speech he displays will reach only adults because it is impossible to confine speech to an "adult zone." Thus, the only way for a speaker to avoid liability under the CDA is to refrain completely from using indecent speech. But this 892 forced silence impinges on the First Amendment right of adults to make and obtain this speech and, for all intents and purposes, "reduce[s] the adult population [on the Internet] to reading only what is fit for children." Butler, 352 U. S., at 383. As a result, the "display" provision cannot withstand scrutiny. Accord, Sable Communications, 492 U. S., at 126 131; Bolger v. Youngs Drug Products Corp., 463 U. S., at 73-75. The "indecency transmission" and "specific person" provisions present a closer issue, for they are not unconstitutional in all of their applications. As discussed above, the "indecency transmission" provision makes it a crime to transmit knowingly an indecent message to a person the sender knows is under 18 years of age. 47 U. S. C. § 223(a)(1)(B) (1994 ed., Supp. II). The "specific person" provision proscribes the same conduct, although it does not as explicitly require the sender to know that the intended recipient of his indecent message is a minor. § 223(d)(1)(A). The Government urges the Court to construe the provision to impose such a knowledge requirement, see Brief for Appellants 2527, and I would do so. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568 , 575 (1988) ("[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress"). So construed, both provisions are constitutional as applied to a conversation involving only an adult and one or more minors-e. g., when an adult speaker sends an e-mail knowing the addressee is a minor, or when an adult and minor converse by themselves or with other minors in a chat room. In this context, these provisions are no different from the law we sustained in Ginsberg. Restricting what the adult may say to the minors in no way restricts the adult's ability to communicate with other adults. He is not prevented from 893 speaking indecently to other adults in a chat room (because there are no other adults participating in the conversation) and he remains free to send indecent e-mails to other adults. The relevant universe contains only one adult, and the adult in that universe has the power to refrain from using indecent speech and consequently to keep all such speech within the room in an "adult" zone. The analogy to Ginsberg breaks down, however, when more than one adult is a party to the conversation. If a minor enters a chat room otherwise occupied by adults, the CDA effectively requires the adults in the room to stop using indecent speech. If they did not, they could be prosecuted under the "indecency transmission" and "specific person" provisions for any indecent statements they make to the group, since they would be transmitting an indecent message to specific persons, one of whom is a minor. Accord, ante, at 876. The CDA is therefore akin to a law that makes it a crime for a bookstore owner to sell pornographic magazines to anyone once a minor enters his store. Even assuming such a law might be constitutional in the physical world as a reasonable alternative to excluding minors completely from the store, the absence of any means of excluding minors from chat rooms in cyberspace restricts the rights of adults to engage in indecent speech in those rooms. The "indecency transmission" and "specific person" provisions share this defect. But these two provisions do not infringe on adults' speech in all situations. And as discussed below, I do not find that the provisions are overbroad in the sense that they restrict minors' access to a substantial amount of speech that minors have the right to read and view. Accordingly, the CDA can be applied constitutionally in some situations. Normally, this fact would require the Court to reject a direct facial challenge. United States v. Salerno, 481 U. S. 739 , 745 (1987) ("A facial challenge to a legislative Act [succeeds only if] the challenger ... establish[es] that no set of circum- 894 stances exists under which the Act would be valid"). Appellees' claim arises under the First Amendment, however, and they argue that the CDA is facially invalid because it is "substantially overbroad"-that is, it "sweeps too broadly ... [and] penaliz[es] a substantial amount of speech that is constitutionally protected," Forsyth County v. Nationalist Movement, 505 U. S. 123 , 130 (1992). See Brief for Appellees American Library Association et al. 48; Brief for Appellees American Civil Liberties Union et al. 39-41. I agree with the Court that the provisions are overbroad in that they cover any and all communications between adults and minors, regardless of how many adults might be part of the audience to the communication. This conclusion does not end the matter, however. Where, as here, "the parties challenging the statute are those who desire to engage in protected speech that the overbroad statute purports to punish, ... [t]he statute may forthwith be declared invalid to the extent that it reaches too far, but otherwise left intact." Brockett v. Spokane Arcades, Inc., 472 U. S. 491 , 504 (1985). There is no question that Congress intended to prohibit certain communications between one adult and one or more minors. See 47 U. S. C. § 223(a)(1)(B) (1994 ed., Supp. II) (punishing "[w]hoever ... initiates the transmission of [any indecent communication] knowing that the recipient of the communication is under 18 years of age"); § 223(d)(1)(A) (punishing "[w]hoever ... send[s] to a specific person or persons under 18 years of age [a patently offensive message]"). There is also no question that Congress would have enacted a narrower version of these provisions had it known a broader version would be declared unconstitutional. 47 U. S. C. § 608 ("If ... the application [of any provision of the CDA] to any person or circumstance is held invalid, ... the application of such provision to other persons or circumstances shall not be affected thereby"). I would therefore sustain the "indecency transmission" and "specific person" provisions to the extent they 895 apply to the transmission of Internet communications where the party initiating the communication knows that all of the recipients are minors. II Whether the CDA substantially interferes with the First Amendment rights of minors, and thereby runs afoul of the second characteristic of valid zoning laws, presents a closer question. In Ginsberg, the New York law we sustained prohibited the sale to minors of magazines that were "harmful to minors." Under that law, a magazine was "harmful to minors" only if it was obscene as to minors. 390 U. S., at 632-633. Noting that obscene speech is not protected by the First Amendment, Roth v. United States, 354 U. S. 476 , 485 (1957), and that New York was constitutionally free to adjust the definition of obscenity for minors, 390 U. S., at 638, the Court concluded that the law did not "invad[e] the area of freedom of expression constitutionally secured to minors," id., at 637. New York therefore did not infringe upon the First Amendment rights of minors. Cf. Erznoznik v. Jacksonville, 422 U. S. 205 , 213 (1975) (striking down city ordinance that banned nudity that was not "obscene even as to minors"). The Court neither "accept[s] nor reject[s]" the argument that the CDA is facially overbroad because it substantially interferes with the First Amendment rights of minors. Ante, at 878. I would reject it. Ginsberg established that minors may constitutionally be denied access to material that is obscene as to minors. As Ginsberg explained, material is obscene as to minors if it (i) is "patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable ... for minors"; (ii) appeals to the prurient interest of minors; and (iii) is "utterly without redeeming social importance for minors." 390 U. S., at 633. Because the CDA denies minors the right to obtain material that is "patently offensive"-even if it has some redeeming value for minors and even if it does not appeal to their pruri- 896 ent interests-Congress' rejection of the Ginsberg "harmful to minors" standard means that the CDA could ban some speech that is "indecent" (i. e., "patently offensive") but that is not obscene as to minors. I do not deny this possibility, but to prevail in a facial challenge, it is not enough for a plaintiff to show "some" overbreadth. Our cases require a proof of "real" and "substantial" overbreadth, Broadrick v. Oklahoma, 413 U. S. 601 , 615 (1973), and appellees have not carried their burden in this case. In my view, the universe of speech constitutionally protected as to minors but banned by the CDA-i. e., the universe of material that is "patently offensive," but which nonetheless has some redeeming value for minors or does not appeal to their prurient interest-is a very small one. Appellees cite no examples of speech falling within this universe and do not attempt to explain why that universe is substantial "in relation to the statute's plainly legitimate sweep." Ibid. That the CDA might deny minors the right to obtain material that has some "value," see ante, at 878, is largely beside the point. While discussions about prison rape or nude art, see ibid., may have some redeeming educational value for adults, they do not necessarily have any such value for minors, and under Ginsberg, minors only have a First Amendment right to obtain patently offensive material that has "redeeming social importance for minors," 390 U. S., at 633 (emphasis added). There is also no evidence in the record to support the contention that "many e-mail transmissions from an adult to a minor are conversations between family members," ante, at 865, n. 32, and no support for the legal proposition that such speech is absolutely immune from regulation. Accordingly, in my view, the CDA does not burden a substantial amount of minors' constitutionally protected speech. Thus, the constitutionality of the CDA as a zoning law hinges on the extent to which it substantially interferes with the First Amendment rights of adults. Because the rights 897 of adults are infringed only by the "display" provision and by the "indecency transmission" and "specific person" provisions as applied to communications involving more than one adult, I would invalidate the CDA only to that extent. Insofar as the "indecency transmission" and "specific person" provisions prohibit the use of indecent speech in communications between an adult and one or more minors, however, they can and should be sustained. The Court reaches a contrary conclusion, and from that holding I respectfully dissent.

The Communications Decency Act of 1996 (CDA) sought to protect minors from indecent or obscene material online. The Supreme Court held that the CDA's "indecent transmission" and "patently offensive display" provisions violated the First Amendment freedom of speech. The Court's decision was based on the CDA's overbreadth, as it could ban speech that is indecent but not obscene as to minors, and its vagueness, as it was unclear what constituted "indecent" or "patently offensive" material. The government argued that the CDA was necessary to protect minors, but the Court found that the CDA infringed on the First Amendment rights of adults and could have a chilling effect on free speech.

Free Speech

Legal Services Corp. v. Velazquez

https://supreme.justia.com/cases/federal/us/531/533/

OCTOBER TERM, 2000 Syllabus LEGAL SERVICES CORPORATION v. VELAZQUEZ ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 99-603. Argued October 4, 2000-Decided February 28, 2001 * The Legal Services Corporation Act authorizes petitioner Legal Services Corporation (LSC) to distribute funds appropriated by Congress to local grantee organizations providing free legal assistance to indigent clients in, inter alia, welfare benefits claims. In every annual appropriations Act since 1996, Congress has prohibited LSC funding of any organization that represented clients in an effort to amend or otherwise challenge existing welfare law. Grantees cannot continue representation in a welfare matter even where a constitutional or statutory validity challenge becomes apparent after representation is well under way. Respondents-lawyers employed by LSC grantees, together with othersfiled suit to declare, inter alia, the restriction invalid. The District Court denied them a preliminary injunction, but the Second Circuit invalidated the restriction, finding it impermissible viewpoint discrimination that violated the First Amendment. Held: The funding restriction violates the First Amendment. Pp.540-549. (a) LSC and the Government, also a petitioner, claim that Rust v. Sullivan, 500 U. S. 173 , in which this Court upheld a restriction prohibiting doctors employed by federally funded family planning clinics from discussing abortion with their patients, supports the restriction here. However, the Court has since explained that the Rust counseling activities amounted to governmental speech, sustaining viewpoint-based funding decisions in instances in which the government is itself the speaker, see Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217 ,229,235, or instances, like Rust, in which the government uses private speakers to transmit information pertaining to its own program, Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 , 833. Although the government has the latitude to ensure that its own message is being delivered, neither that latitude nor its rationale applies to subsidies for private speech in every instance. Like the Rosenberger *Together with No. 99-960, United States v. Velazquez et al., also on certiorari to the same court. 534 program, the LSC program was designed to facilitate private speech, not to promote a governmental message. An LSC attorney speaks on behalf of a private, indigent client in a welfare benefits claim, while the Government's message is delivered by the attorney defending the benefits decision. The attorney's advice to the client and advocacy to the courts cannot be classified as governmental speech even under a generous understanding of that concept. In this vital respect this suit is distinguishable from Rust. Pp. 540-543. (b) The private nature of the instant speech, and the extent of LSC's regulation of private expression, are indicated further by the circumstance that the Government seeks to control an existing medium of expression in ways which distort its usual functioning. Cases involving a limited forum, though not controlling, provide instruction for evaluating restrictions in governmental subsidies. Here the program presumes that private, nongovernmental speech is necessary, and a substantial restriction is placed upon that speech. By providing subsidies to LSC, the Government seeks to facilitate suits for benefits by using the State and Federal Judiciaries and the independent bar on which they depend for the proper performance of their duties and responsibilities. Restricting LSC attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the attorneys' traditional role in much the same way broadcast systems or student publication networks were changed in the limited forum cases of Arkansas Ed. Television Comm'n v. Forbes, 523 U. S. 666 , and Rosenberger v. Rector and Visitors of Univ. of Va., supra. The Government may not design a subsidy to effect such a serious and fundamental restriction on the advocacy of attorneys and the functioning of the judiciary. An informed, independent judiciary presumes an informed, independent bar. However, the instant restriction prevents LSC attorneys from advising the courts of serious statutory validity questions. It also threatens severe impairment of the judicial function by sifting out cases presenting constitutional challenges in order to insulate the Government's laws from judicial inquiry. The result of this restriction would be two tiers of cases. There would be lingering doubt whether an LSC attorney's truncated representation had resulted in complete analysis of the case, full advice to the client, and proper presentation to the court; and the courts and the public would come to question the adequacy and fairness of professional representations when the attorney avoided all reference to statutory validity and constitutional authority questions. A scheme so inconsistent with accepted separation-of-powers principles is an insufficient basis to sustain or uphold the restriction on speech. Pp. 543-546. 535 (c) That LSC attorneys can withdraw does not make the restriction harmless, for the statute is an attempt to draw lines around the LSC program to exclude from litigation arguments and theories Congress finds unacceptable but which by their nature are within the courts' province to consider. The restriction is even more problematic because in cases where the attorney withdraws, the indigent client is unlikely to find other counsel. There may be no alternative source of vital information on the client's constitutional or statutory rights, in stark contrast to Rust, where a patient could receive both governmentally subsidized counseling and consultation with independent or affiliate organizations. Finally, notwithstanding Congress' purpose to confine and limit its program, the restriction insulates current welfare laws from constitutional scrutiny and certain other legal challenges, a condition implicating central First Amendment concerns. There can be little doubt that the LSC Act funds constitutionally protected expression; and there is no programmatic message of the kind recognized in Rust and which sufficed there to allow the Government to specify the advice deemed necessary for its legitimate objectives. Pp. 546-549. (d) The Court of Appeals concluded that the funding restriction could be severed from the statute, leaving the remaining portions operative. Because that determination was not contested here, the Court in the exercise of its discretion and prudential judgment declines to address it. P. 549. 164 F.3d 757 , affirmed. KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a dissenting opinion in which REHNQUIST, C. J., and O'CONNOR and THOMAS, JJ., joined, post, p. 549. Alan Levine argued the cause for petitioner in No. 99-603. With him on the briefs was Stephen L. Ascher. Deputy Solicitor General Kneedler argued the cause for the United States in No. 99-960. With him on the briefs were Solicitor General Waxman, Acting Assistant Attorney General Ogden, Beth S. Brinkmann, Barbara L. Herwig, and Matthew M. Collette. Burt Neuborne argued the cause for respondents in both cases. With him on the brief were Laura K. Abel, Kimani 536 Paul-Emile, Paul K. Sonn, David S. Udell, Peter M. Fishbein, and Alan E. Rothman. t JUSTICE KENNEDY delivered the opinion of the Court. In 1974, Congress enacted the Legal Services Corporation Act, 88 Stat. 378, 42 U. S. C. § 2996 et seq. The Act establishes the Legal Services Corporation (LSC) as a District of Columbia nonprofit corporation. LSC's mission is to distribute funds appropriated by Congress to eligible local grantee organizations "for the purpose of providing financial support for legal assistance in noncriminal proceedings or matters to persons financially unable to afford legal assistance." § 2996b(a). LSC grantees consist of hundreds of local organizations governed, in the typical case, by local boards of directors. In many instances the grantees are funded by a combination of LSC funds and other public or private sources. The grantee organizations hire and supervise lawyers to provide free legal assistance to indigent clients. Each year LSC appropriates funds to grantees or recipients that hire and supervise lawyers for various professional activities, including representation of indigent clients seeking welfare benefits. This suit requires us to decide whether one of the conditions imposed by Congress on the use of LSC funds violates the First Amendment rights of LSC grantees and their clients. For purposes of our decision, the restriction, to be quoted in further detail, prohibits legal representation tBriefs of amici curiae urging reversal were filed for the Pacific Legal Foundation by John H. Findley; and for the Washington Legal Foundation et al. by Daniel J. Popeo and R. Shawn Gunnarson. Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Arthur N Eisenberg and Steven R. Shapiro; and for the New York State Bar Association et al. by Bruce A. Green and Lawrence S. Lustberg. Frederick A. O. Schwarz, Jr., filed a brief for the American Judicature Society as amicus curiae. 537 funded by recipients of LSC moneys if the representation involves an effort to amend or otherwise challenge existing welfare law. As interpreted by the LSC and by the Government, the restriction prevents an attorney from arguing to a court that a state statute conflicts with a federal statute or that either a state or federal statute by its terms or in its application is violative of the United States Constitution. Lawyers employed by New York City LSC grantees, together with private LSC contributors, LSC indigent clients, and various state and local public officials whose governments contribute to LSC grantees, brought suit in the United States District Court for the Eastern District of New York to declare the restriction, among other provisions of the Act, invalid. The United States Court of Appeals for the Second Circuit approved an injunction against enforcement of the provision as an impermissible viewpoint-based discrimination in violation of the First Amendment, 164 F.3d 757 (1999). We granted certiorari, and the parties who commenced the suit in the District Court are here as respondents. The LSC as petitioner is joined by the Government of the United States, which had intervened in the District Court. We agree that the restriction violates the First Amendment, and we affirm the judgment of the Court of Appeals. I From the inception of the LSC, Congress has placed restrictions on its use of funds. For instance, the LSC Act prohibits recipients from making available LSC funds, program personnel, or equipment to any political party, to any political campaign, or for use in "advocating or opposing any ballot measures." 42 U. S. C. § 2996e(d)(4). See § 2996e(d)(3). The Act further proscribes use of funds in most criminal proceedings and in litigation involving nontherapeutic abortions, secondary school desegregation, military desertion, or violations of the Selective Service statute. §§ 2996f(b)(8)-(10) (1994 ed. and Supp. IV). Fund recipients 538 are barred from bringing class-action suits unless express approval is obtained from LSC. § 2996e(d)(5). The restrictions at issue were part of a compromise set of restrictions enacted in the Omnibus Consolidated Rescissions and Appropriations Act of 1996 (1996 Act), § 504, 110 Stat. 1321-53, and continued in each subsequent annual appropriations Act. The relevant portion of § 504(a)(16) prohibits funding of any organization "that initiates legal representation or participates in any other way, in litigation, lobbying, or rulemaking, involving an effort to reform a Federal or State welfare system, except that this paragraph shall not be construed to preclude a recipient from representing an individual eligible client who is seeking specific relief from a welfare agency if such relief does not involve an effort to amend or otherwise challenge existing law in effect on the date of the initiation of the representation." The prohibitions apply to all of the activities of an LSC grantee, including those paid for by non-LSC funds. §§ 504(d)(1) and (2). We are concerned with the statutory provision which excludes LSC representation in cases which "involve an effort to amend or otherwise challenge existing law in effect on the date of the initiation of the representation." In 1997, LSC adopted final regulations clarifying § 504(a)(16). 45 CFR pt. 1639 (1999). LSC interpreted the statutory provision to allow indigent clients to challenge welfare agency determinations of benefit ineligibility under interpretations of existing law. For example, an LSC grantee could represent a welfare claimant who argued that an agency made an erroneous factual determination or that an agency misread or misapplied a term contained in an existing welfare statute. According to LSC, a grantee in that position could argue as well that an agency policy violated existing law. § 1639.4. Under LSC's interpretation, however, 539 grantees could not accept representations designed to change welfare laws, much less argue against the constitutionality or statutory validity of those laws. Brief for Petitioner in No. 99-603, p. 7. Even in cases where constitutional or statutory challenges became apparent after representation was well under way, LSC advised that its attorneys must withdraw. Ibid. After the instant suit was filed in the District Court alleging the restrictions on the use of LSC funds violated the First Amendment, see 985 F. Supp. 323 (1997), the court denied a preliminary injunction, finding no probability of success on the merits. Id., at 344. On appeal, the Court of Appeals for the Second Circuit affirmed in part and reversed in part. 164 F.3d 757 (1999). As relevant for our purposes, the court addressed respondents' challenges to the restrictions in § 504(a)(16). It concluded the section specified four categories of prohibited activities, of which "three appear[ed] to prohibit the type of activity named regardless of viewpoint, while one might be read to prohibit the activity only when it seeks reform." Id., at 768. The court upheld the restrictions on litigation, lobbying, and rulemaking "involving an effort to reform a Federal or State welfare system," since all three prohibited grantees' involvement in these activities regardless of the side of the issue. Id., at 768-769. The court next considered the exception to § 504(a)(16) that allows representation of "'an individual eligible client who is seeking specific relief from a welfare agency.'" The court invalidated, as impermissible viewpoint discrimination, the qualification that representation could "not involve an effort to amend or otherwise challenge existing law," because it "clearly seeks to discourage challenges to the status quo." Id., at 769-770. Left to decide what part of the 1996 Act to strike as invalid, the court concluded that congressional intent regarding severability was unclear. It decided to "invalidate the 540 smallest possible portion of the statute, excising only the viewpoint-based proviso rather than the entire exception of which it is a part." Id., at 773. Dissenting in part, Judge Jacobs agreed with the majority except for its holding that the proviso banning challenges to existing welfare laws effected impermissible viewpointbased discrimination. The provision, in his view, was permissible because it merely defined the scope of services to be funded. Id., at 773-778 (opinion concurring in part and dissenting in part). LSC filed a petition for certiorari challenging the Court of Appeals' conclusion that the § 504(a)(16) suits-for-benefits proviso was unconstitutional. We granted certiorari, 529 U. S. 1052 (2000). II The United States and LSC rely on Rust v. Sullivan, 500 U. S. 173 (1991), as support for the LSC program restrictions. In Rust, Congress established program clinics to provide subsidies for doctors to advise patients on a variety of family planning topics. Congress did not consider abortion to be within its family planning objectives, however, and it forbade doctors employed by the program from discussing abortion with their patients. Id., at 179-180. Recipients of funds under Title X of the Public Health Service Act, §§ 1002, 1008, as added, 84 Stat. 1506, 1508, 42 U. S. C. §§ 300a, 300a-6, challenged the Act's restriction that provided that none of the Title X funds appropriated for family planning services could "be used in programs where abortion is a method of family planning." § 300a-6. The recipients argued that the regulations constituted impermissible viewpoint discrimination favoring an antiabortion position over a proabortion approach in the sphere of family planning. 500 U. S., at 192. They asserted as well that Congress had imposed an unconstitutional condition on recipients of federal funds by requiring them to relinquish their right to engage 541 in abortion advocacy and counseling in exchange for the subsidy. Id., at 196. We upheld the law, reasoning that Congress had not discriminated against viewpoints on abortion, but had "merely chosen to fund one activity to the exclusion of the other." Id., at 193. The restrictions were considered necessary "to ensure that the limits of the federal program [were] observed." Ibid. Title X did not single out a particular idea for suppression because it was dangerous or disfavored; rather, Congress prohibited Title X doctors from counseling that was outside the scope of the project. Id., at 194-195. The Court in Rust did not place explicit reliance on the rationale that the counseling activities of the doctors under Title X amounted to governmental speech; when interpreting the holding in later cases, however, we have explained Rust on this understanding. We have said that viewpoint-based funding decisions can be sustained in instances in which the government is itself the speaker, see Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 229, 235 (2000), or instances, like Rust, in which the government "used private speakers to transmit specific information pertaining to its own program." Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 , 833 (1995). As we said in Rosenberger, "[w]hen the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee." Ibid. The latitude which may exist for restrictions on speech where the government's own message is being delivered flows in part from our observation that, "[w]hen the government speaks, for instance to promote its own policies or to advance a particular idea, it is, in the end, accountable to the electorate and the political process for its advocacy. If the citizenry objects, newly elected officials later could espouse some different or con- 542 trary position." Board of Regents of Univ. of Wis. System Neither the latitude for government speech nor its rationale applies to subsidies for private speech in every instance, however. As we have pointed out, "[i]t does not follow ... that viewpoint-based restrictions are proper when the [government] does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers." Rosenberger, supra, at 834. Although the LSC program differs from the program at issue in Rosenberger in that its purpose is not to "encourage a diversity of views," the salient point is that, like the program in Rosenberger, the LSC program was designed to facilitate private speech, not to promote a governmental message. Congress funded LSC grantees to provide attorneys to represent the interests of indigent clients. In the specific context of § 504(a)(16) suits for benefits, an LSC-funded attorney speaks on the behalf of the client in a claim against the government for welfare benefits. The lawyer is not the government's speaker. The attorney defending the decision to deny benefits will deliver the government's message in the litigation. The LSC lawyer, however, speaks on the behalf of his or her private, indigent client. Cf. Polk County v. Dodson, 454 U. S. 312 , 321-322 (1981) (holding that a public defender does not act "under color of state law" because he "works under canons of professional responsibility that mandate his exercise of independent judgment on behalf of the client" and because there is an "assumption that counsel will be free of state control"). The Government has designed this program to use the legal profession and the established Judiciary of the States and the Federal Government to accomplish its end of assisting welfare claimants in determination or receipt of their benefits. The advice from the attorney to the client and the advocacy by the attorney to the courts cannot be classified 543 as governmental speech even under a generous understanding of the concept. In this vital respect this suit is distinguishable from Rust. The private nature of the speech involved here, and the extent of LSC's regulation of private expression, are indicated further by the circumstance that the Government seeks to use an existing medium of expression and to control it, in a class of cases, in ways which distort its usual functioning. Where the government uses or attempts to regulate a particular medium, we have been informed by its accepted usage in determining whether a particular restriction on speech is necessary for the program's purposes and limitations. In FCC v. League of Women Voters of Cal., 468 U. S. 364 (1984), the Court was instructed by its understanding of the dynamics of the broadcast industry in holding that prohibitions against editorializing by public radio networks were an impermissible restriction, even though the Government enacted the restriction to control the use of public funds. The First Amendment forbade the Government from using the forum in an unconventional way to suppress speech inherent in the nature of the medium. See id., at 396-397. In Arkansas Ed. Television Comm'n v. Forbes, 523 U. S. 666 , 676 (1998), the dynamics of the broadcasting system gave station programmers the right to use editorial judgment to exclude certain speech so that the broadcast message could be more effective. And in Rosenberger, the fact that student newspapers expressed many different points of view was an important foundation for the Court's decision to invalidate viewpoint-based restrictions. 515 U. S., at 836. When the government creates a limited forum for speech, certain restrictions may be necessary to define the limits and purposes of the program. Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37 (1983); see also Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993). The same is true when the government establishes a subsidy for specified ends. Rust v. Sullivan, 500 U. S. 173 544 (1991). As this suit involves a subsidy, limited forum cases such as Perry, Lamb's Chapel, and Rosenberger may not be controlling in a strict sense, yet they do provide some instruction. Here the program presumes that private, nongovernmental speech is necessary, and a substantial restriction is placed upon that speech. At oral argument and in its briefs the LSC advised us that lawyers funded in the Government program may not undertake representation in suits for benefits if they must advise clients respecting the questionable validity of a statute which defines benefit eligibility and the payment structure. The limitation forecloses advice or legal assistance to question the validity of statutes under the Constitution of the United States. It extends further, it must be noted, so that state statutes inconsistent with federal law under the Supremacy Clause may be neither challenged nor questioned. By providing subsidies to LSC, the Government seeks to facilitate suits for benefits by using the state and federal courts and the independent bar on which those courts depend for the proper performance of their duties and responsibilities. Restricting LSC attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of the attorneys in much the same way broadcast systems or student publication networks were changed in the limited forum cases we have cited. Just as government in those cases could not elect to use a broadcasting network or a college publication structure in a regime which prohibits speech necessary to the proper functioning of those systems, see Arkansas Ed. Television Comm'n, supra, and Rosenberger, supra, it may not design a subsidy to effect this serious and fundamental restriction on advocacy of attorneys and the functioning of the judiciary. LSC has advised us, furthermore, that upon determining a question of statutory validity is present in any anticipated or pending case or controversy, the LSC-funded attorney 545 must cease the representation at once. This is true whether the validity issue becomes apparent during initial attorneyclient consultations or in the midst of litigation proceedings. A disturbing example of the restriction was discussed during oral argument before the Court. It is well understood that when there are two reasonable constructions for a statute, yet one raises a constitutional question, the Court should prefer the interpretation which avoids the constitutional issue. Gomez v. United States, 490 U. S. 858 , 864 (1989); Ashwander v. TVA, 297 U. S. 288 , 346-348 (1936) (Brandeis, J., concurring). Yet, as the LSC advised the Court, if, during litigation, a judge were to ask an LSC attorney whether there was a constitutional concern, the LSC attorney simply could not answer. Tr. of Oral Arg. 8-9. Interpretation of the law and the Constitution is the primary mission of the judiciary when it acts within the sphere of its authority to resolve a case or controversy. Marbury v. Madison, 1 Cranch 137, 177 (1803) ("It is emphatically the province and the duty of the judicial department to say what the law is"). An informed, independent judiciary presumes an informed, independent bar. Under § 504(a)(16), however, cases would be presented by LSC attorneys who could not advise the courts of serious questions of statutory validity. The disability is inconsistent with the proposition that attorneys should present all the reasonable and well-grounded arguments necessary for proper resolution of the case. By seeking to prohibit the analysis of certain legal issues and to truncate presentation to the courts, the enactment under review prohibits speech and expression upon which courts must depend for the proper exercise of the judicial power. Congress cannot wrest the law from the Constitution which is its source. "Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law." Id., at 178. 546 The restriction imposed by the statute here threatens severe impairment of the judicial function. Section 504(a)(16) sifts out cases presenting constitutional challenges in order to insulate the Government's laws from judicial inquiry. If the restriction on speech and legal advice were to stand, the result would be two tiers of cases. In cases where LSC counsel were attorneys of record, there would be lingering doubt whether the truncated representation had resulted in complete analysis of the case, full advice to the client, and proper presentation to the court. The courts and the public would come to question the adequacy and fairness of professional representations when the attorney, either consciously to comply with this statute or unconsciously to continue the representation despite the statute, avoided all reference to questions of statutory validity and constitutional authority. A scheme so inconsistent with accepted separation-of-powers principles is an insufficient basis to sustain or uphold the restriction on speech. It is no answer to say the restriction on speech is harmless because, under LSC's interpretation of the Act, its attorneys can withdraw. This misses the point. The statute is an attempt to draw lines around the LSC program to exclude from litigation those arguments and theories Congress finds unacceptable but which by their nature are within the province of the courts to consider. The restriction on speech is even more problematic because in cases where the attorney withdraws from a representation, the client is unlikely to find other counsel. The explicit premise for providing LSC attorneys is the necessity to make available representation "to persons financially unable to afford legal assistance." 42 U. S. C. § 2996(a)(3). There often will be no alternative source for the client to receive vital information respecting constitutional and statutory rights bearing upon claimed benefits. Thus, with respect to the litigation services Congress has funded, there is no alternative channel for expression of the advocacy Con- 547 gress seeks to restrict. This is in stark contrast to Rust. There, a patient could receive the approved Title X family planning counseling funded by the Government and later could consult an affiliate or independent organization to receive abortion counseling. Unlike indigent clients who seek LSC representation, the patient in Rust was not required to forfeit the Government-funded advice when she also received abortion counseling through alternative channels. Because LSC attorneys must withdraw whenever a question of a welfare statute's validity arises, an individual could not obtain joint representation so that the constitutional challenge would be presented by a non-LSC attorney, and other, permitted, arguments advanced by LSC counsel. Finally, LSC and the Government maintain that § 504(a)(16) is necessary to define the scope and contours of the federal program, a condition that ensures funds can be spent for those cases most immediate to congressional concern. In support of this contention, they suggest the challenged limitation takes into account the nature of the grantees' activities and provides limited congressional funds for the provision of simple suits for benefits. In petitioners' view, the restriction operates neither to maintain the current welfare system nor insulate it from attack; rather, it helps the current welfare system function in a more efficient and fair manner by removing from the program complex challenges to existing welfare laws. The effect of the restriction, however, is to prohibit advice or argumentation that existing welfare laws are unconstitutional or unlawful. Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise. Here, notwithstanding Congress' purpose to confine and limit its program, the restriction operates to insulate current welfare laws from constitutional scrutiny and certain other legal challenges, a condition implicating central First Amendment concerns. In no lawsuit funded by the Govern- 548 ment can the LSC attorney, speaking on behalf of a private client, challenge existing welfare laws. As a result, arguments by indigent clients that a welfare statute is unlawful or unconstitutional cannot be expressed in this Governmentfunded program for petitioning the courts, even though the program was created for litigation involving welfare benefits, and even though the ordinary course of litigation involves the expression of theories and postulates on both, or multiple, sides of an issue. It is fundamental that the First Amendment "'was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the peopie.'" New York Times Co. v. Sullivan, 376 U. S. 254 , 269 (1964) (quoting Roth v. United States, 354 U. S. 476 , 484 (1957)). There can be little doubt that the LSC Act funds constitutionally protected expression; and in the context of this statute there is no programmatic message of the kind recognized in Rust and which sufficed there to allow the Government to specify the advice deemed necessary for its legitimate objectives. This serves to distinguish § 504(a)(16) from any of the Title X program restrictions upheld in Rust, and to place it beyond any congressional funding condition approved in the past by this Court. Congress was not required to fund an LSC attorney to represent indigent clients; and when it did so, it was not required to fund the whole range of legal representations or relationships. The LSC and the United States, however, in effect ask us to permit Congress to define the scope of the litigation it funds to exclude certain vital theories and ideas. The attempted restriction is designed to insulate the Government's interpretation of the Constitution from judicial challenge. The Constitution does not permit the Government to confine litigants and their attorneys in this manner. We must be vigilant when Congress imposes rules and conditions which in effect insulate its own laws from legitimate judicial challenge. Where private speech is involved, even 549 Congress' antecedent funding decision cannot be aimed at the suppression of ideas thought inimical to the Government's own interest. Regan v. Taxation With Representation of Wash., 461 U. S. 540 , 548 (1983); Speiser v. Randall, 357 U. S. 513 , 519 (1958). For the reasons we have set forth, the funding condition is invalid. The Court of Appeals considered whether the language restricting LSC attorneys could be severed from the statute so that the remaining portions would remain operative. It reached the reasoned conclusion to invalidate the fragment of § 504(a)(16) found contrary to the First Amendment, leaving the balance of the statute operative and in place. That determination was not discussed in the briefs of either party or otherwise contested here, and in the exercise of our discretion and prudential judgment we decline to address it. The judgment of the Court of Appeals is Affirmed. JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE O'CONNOR, and JUSTICE THOMAS join, dissenting. Section 504(a)(16) of the Omnibus Consolidated Rescissions and Appropriations Act of 1996 (Appropriations Act) defines the scope of a federal spending program. I t does not directly regulate speech, and it neither establishes a public forum nor discriminates on the basis of viewpoint. The Court agrees with all this, yet applies a novel and unsupportable interpretation of our public-forum precedents to declare § 504(a)(16) facially unconstitutional. This holding not only has no foundation in our jurisprudence; it is flatly contradicted by a recent decision that is on all fours with the present cases. Having found the limitation upon the spending program unconstitutional, the Court then declines to consider the question of severability, allowing a judgment to stand that lets the program go forward under a version of 550 the statute Congress never enacted. I respectfully dissent from both aspects of the judgment. I The Legal Services Corporation Act of 1974 (LSC Act), 42 U. S. C. § 2996 et seq., is a federal subsidy program, the stated purpose of which is to "provid[e] financial support for legal assistance in noncriminal proceedings or matters to persons financially unable to afford legal assistance." § 2996b(a). Congress, recognizing that the program could not serve its purpose unless it was "kept free from the influence of or use by it of political pressures," § 2996(5), has from the program's inception tightly regulated the use of its funds. See ante, at 537-538. No Legal Services Corporation (LSC) funds may be used, for example, for "encouraging ... labor or antilabor activities," § 2996f(b)(6), for "litigation relating to the desegregation of any elementary or secondary school or school system," § 2996f(b)(9), or for "litigation which seeks to procure a nontherapeutic abortion," § 2996f(b)(8). Congress discovered through experience, however, that these restrictions did not exhaust the politically controversial uses to which LSC funds could be put. Accordingly, in 1996 Congress added new restrictions to the LSC Act and strengthened existing restrictions. Among the new restrictions is the one at issue here. Section 504(a)(16) of the Appropriations Act, 110 Stat. 1321-55 to 1321-56, withholds LSC funds from every entity that "participates in any ... way ... in litigation, lobbying, or rulemaking ... involving an effort to reform a Federal or State welfare system." It thus bans LSC-funded entities from participating on either side of litigation involving such statutes, from participating in rulemaking relating to the implementation of such legislation, and from lobbying Congress itself regarding any proposed changes to such legislation. See 45 CFR § 1639.3 (2000). 551 The restrictions relating to rulemaking and lobbying are superfluous; they duplicate general prohibitions on the use of LSC funds for those activities found elsewhere in the Appropriations Act. See §§ 504(a)(2), (3), (4). The restriction on litigation, however, is unique, and it contains a proviso specifying what the restriction does not cover. Funding recipients may "represen[t] an individual eligible client who is seeking specific relief from a welfare agency if such relief does not involve an effort to amend or otherwise challenge existing law in effect on the date of the initiation of the representation." The LSC declares in its brief, and respondents do not deny, that under these provisions the LSC can sponsor neither challenges to nor defenses of existing welfare reform law, Brief for Petitioner in No. 99-603, p. 29. The litigation ban is symmetrical: Litigants challenging the covered statutes or regulations do not receive LSC funding, and neither do litigants defending those laws against challenge. If a suit for benefits raises a claim outside the scope of the LSC program, the LSC-funded lawyer may not participate in the suit. As the Court explains, if LSC-funded lawyers anticipate that a forbidden claim will arise in a prospective client's suit, they "may not undertake [the] representation," ante, at 544. Likewise, if a forbidden claim arises unexpectedly at trial, "LSC-funded attorney[s] must cease the representation at once," ante, at 544-545. See also Brief for Petitioner in No. 99-603, at 7, n.4 (if the issue arises at trial, "the lawyer should discontinue the representation 'consistent with the applicable rules of professional responsibility' "). The lawyers may, however, and indeed must explain to the client why they cannot represent him. See 164 F.3d 757 , 765 (CA2 1999). They are also free to express their views of the legality of the welfare law to the client, and they may refer the client to another attorney who can accept the representation, ibid. See 985 F. Supp. 323, 335336 (EDNY 1997). 552 II The LSC Act is a federal subsidy program, not a federal regulatory program, and "[t]here is a basic difference between [the two]." Maher v. Roe, 432 U. S. 464 , 475 (1977). Regulations directly restrict speech; subsidies do not. Subsidies, it is true, may indirectly abridge speech, but only if the funding scheme is "'manipulated' to have a 'coercive effeet'" on those who do not hold the subsidized position. National Endowment for Arts v. Finley, 524 U. S. 569 , 587 (1998) (quoting Arkansas Writers' Project, Inc. v. Ragland, 481 U. S. 221 , 237 (1987) (SCALIA, J., dissenting)). Proving unconstitutional coercion is difficult enough when the spending program has universal coverage and excludes only certain speech-such as a tax exemption scheme excluding lobbying expenses. The Court has found such programs unconstitutional only when the exclusion was "aimed at the suppression of dangerous ideas." Speiser v. Randall, 357 U. S. 513, 519 (1958) (internal quotation marks omitted); see also Regan v. Taxation With Representation of Wash., 461 U. S. 540, 550 (1983). Proving the requisite coercion is harder still when a spending program is not universal but limited, providing benefits to a restricted number of recipients, see Rust v. Sullivan, 500 U. S. 173 , 194-195 (1991). The Court has found such selective spending unconstitutionally coercive only once, when the government created a public forum with the spending program but then discriminated in distributing funding within the forum on the basis of viewpoint. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 , 829-830 (1995). When the limited spending program does not create a public forum, proving coercion is virtually impossible, because simply denying a subsidy "does not 'coerce' belief," Lyng v. Automobile Workers, 485 U. S. 360, 369 (1988), and because the criterion of unconstitutionality is whether denial of the subsidy threatens "to drive certain ideas or viewpoints from the marketplace," National Endowment for Arts v. Finley, supra, at 587 (internal quota- 553 tion marks omitted). Absent such a threat, "the Government may allocate ... funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake." 524 U. S., at 587-588. In Rust v. Sullivan, supra, the Court applied these principles to a statutory scheme that is in all relevant respects indistinguishable from § 504(a)(16). The statute in Rust authorized grants for the provision of family planning services, but provided that "[n]one of the funds ... shall be used in programs where abortion is a method of family planning." Id., at 178. Valid regulations implementing the statute required funding recipients to refer pregnant clients "for appropriate prenatal ... services by furnishing a list of available providers that promote the welfare of mother and unborn child," but forbade them to refer a pregnant woman specifically to an abortion provider, even upon request. Id., at 180. We rejected a First Amendment free-speech challenge to the funding scheme, explaining that "[t]he Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem another way." Id., at 193. This was not, we said, the type of "discriminat[ion] on the basis of viewpoint" that triggers strict scrutiny, ibid., because the" 'decision not to subsidize the exercise of a fundamental right does not infringe the right,'" ibid. (quoting Regan v. Taxation With Representation of Wash., supra, at 549). The same is true here. The LSC Act, like the scheme in Rust, see 500 U. S., at 200, does not create a public forum. Far from encouraging a diversity of views, it has always, as the Court accurately states, "placed restrictions on its use of funds," ante, at 537. Nor does § 504(a)(16) discriminate on the basis of viewpoint, since it funds neither challenges to nor defenses of existing welfare law. The provision simply declines to subsidize a certain class of litigation, and under 554 Rust that decision "does not infringe the right" to bring such litigation. Cf. Ortwein v. Schwab, 410 U. S. 656 , 658-660, and n. 5 (1973) (per curiam) (government not required by First Amendment or Due Process Clause to waive filing fee for welfare benefits litigation). The Court's repeated claims that § 504(a)(16) "restricts" and "prohibits" speech, see, e. g., ante, at 545, 546, and "insulates" laws from judicial review, see, e. g., ante, at 547, are simply baseless. No litigant who, in the absence of LSC funding, would bring a suit challenging existing welfare law is deterred from doing so by § 504(a)(16). Rust thus controls these cases and compels the conclusion that § 504(a)(16) is constitutional. The Court contends that Rust is different because the program at issue subsidized government speech, while the LSC funds private speech. See ante, at 541-542. This is so unpersuasive it hardly needs response. If the private doctors' confidential advice to their patients at issue in Rust constituted "government speech," it is hard to imagine what subsidized speech would not be government speech. Moreover, the majority's contention that the subsidized speech in these cases is not government speech because the lawyers have a professional obligation to represent the interests of their clients founders on the reality that the doctors in Rust had a professional obligation to serve the interests of their patients, see 500 U. S., at 214 (Blackmun, J., dissenting) ("ethical responsibilities of the medical profession")-which at the time of Rust we had held to be highly relevant to the permissible scope of federal regulation, see Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747 , 763 (1986) ("professional responsibilities" of physicians), overruled in part on other grounds, Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). Even respondents agree that "the true speaker in Rust was not the government, but a doctor." Brief for Respondents 19, n. 17. The Court further asserts that these cases are different from Rust because the welfare funding restriction "seeks to 555 use an existing medium of expression and to control it ... in ways which distort its usual functioning," ante, at 543. This is wrong on both the facts and the law. It is wrong on the law because there is utterly no precedent for the novel and facially implausible proposition that the First Amendment has anything to do with government funding that-though it does not actually abridge anyone's speech-"distorts an existing medium of expression." None of the three cases cited by the Court mentions such an odd principle. In Ro senberger v. Rector and Visitors of Univ. of Va., the point critical to the Court's analysis was not, as the Court would have it, that it is part of the "usual functioning" of student newspapers to "expres[s] many different points of view," ante, at 543 (it surely is not), but rather that the spending program itself had been created "to encourage a diversity of views from private speakers," 515 U. S., at 834. What could not be distorted was the public forum that the spending program had created. As for Arkansas Ed. Television Comm'n v. Forbes, 523 U. S. 666 (1998), that case discussed the nature of television broadcasting, not to determine whether government regulation would alter its "usual functioning" and thus violate the First Amendment (no government regulation was even at issue in the case), but rather to determine whether state-owned television is a "public forum" under our First Amendment jurisprudence. Id., at 673-674. And finally, the passage the Court cites from FCC v. League of Women Voters of Cal., 468 U. S. 364 , 396-397 (1984), says nothing whatever about "using the forum [of public radio] in an unconventional way to suppress speech inherent in the nature of the medium," ante, at 543. It discusses why the Government's asserted interest in "preventing [public radio] stations from becoming a privileged outlet for the political and ideological opinions of station owners and managers," 468 U. S., at 396 (internal quotation marks omitted), was insubstantial and thus could not justify the statute's restriction on editorializing. Even worse for the Court, after invalidat- 556 ing the restriction on this conventional First Amendment ground, League of Women Voters goes on to say that "[o]f course," the restriction on editorializing "would plainly be valid" if "Congress were to adopt a revised version of [the statute] that permitted [public radio] stations to establish 'affiliate' organizations which could then use the station's facilities to editorialize with nonfederal funds." Id., at 400. But of course that is the case here. Regulations permit funding recipients to establish affiliate organizations to conduct litigation and other activities that fall outside the scope of the LSC program. See 45 CFR pt. 1610 (2000). Far from supporting the Court's nondistortion analysis, League of Women Voters dooms the Court's case. The Court's "nondistortion" principle is also wrong on the facts, since there is no basis for believing that § 504(a)(16), by causing "cases [to] be presented by LSC attorneys who [can]not advise the courts of serious questions of statutory validity," ante, at 545, will distort the operation of the courts. It may well be that the bar of § 504(a)(16) will cause LSCfunded attorneys to decline or to withdraw from cases that involve statutory validity. But that means at most that fewer statutory challenges to welfare laws will be presented to the courts because of the unavailability of free legal services for that purpose. So what? The same result would ensue from excluding LSC-funded lawyers from welfare litigation entirely. It is not the mandated, nondistortable function of the courts to inquire into all "serious questions of statutory validity" in all cases. Courts must consider only those questions of statutory validity that are presented by litigants, and if the Government chooses not to subsidize the presentation of some such questions, that in no way "distorts" the courts' role. It is remarkable that a Court that has so studiously avoided deciding whether Congress could entirely eliminate federal jurisdiction over certain matters, see, e. g., Webster v. Doe, 486 U. S. 592 , 603 (1988); Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667 , 557 681, n. 12 (1986), would be so eager to hold the much lesser step of declining to subsidize the litigation unconstitutional under the First Amendment. Nor will the judicial opinions produced by LSC cases systematically distort the interpretation of welfare laws. Judicial decisions do not stand as binding "precedent" for points that were not raised, not argued, and hence not analyzed. See, e. g., United States v. Verdugo-Urquidez, 494 U. S. 259 , 272 (1990); Hagans v. Lavine, 415 U. S. 528 , 533, n. 5 (1974); United States v. L. A. Tucker Truck Lines, Inc., 344 U. S. 33 , 37-38 (1952); United States v. More, 3 Cranch 159, 172 (1805) (Marshall, C. J.). The statutory validity that courts assume in LSC cases will remain open for full determination in later cases. Finally, the Court is troubled "because in cases where the attorney withdraws from a representation, the client is unlikely to find other counsel." Ante, at 546. That is surely irrelevant, since it leaves the welfare recipient in no worse condition than he would have been in had the LSC program never been enacted. Respondents properly concede that even if welfare claimants cannot obtain a lawyer anywhere else, the Government is not required to provide one. Brief for Respondents 16; accord, Goldberg v. Kelly, 397 U. S. 254 , 270 (1970) (government not required to provide counsel at hearing regarding termination of welfare benefits). It is hard to see how providing free legal services to some welfare claimants (those whose claims do not challenge the applicable statutes) while not providing it to others is beyond the range of legitimate legislative choice. Rust rejected a similar argument: "Petitioners contend, however, that most Title X clients are effectively precluded by indigency and poverty from seeing a health-care provider who will provide abortion-related services. But once again, even these Title X clients are in no worse position than if Congress had never enacted Title X. The financial constraints 558 that restrict an indigent woman's ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortion, but rather of her indigency." 500 U. S., at 203 (internal quotation marks omitted). The only conceivable argument that can be made for distinguishing Rust is that there even patients who wished to receive abortion counseling could receive the nonabortion services that the Government-funded clinic offered, whereas here some potential LSC clients who wish to receive representation on a benefits claim that does not challenge the statutes will be unable to do so because their cases raise a reform claim that an LSC lawyer may not present. This difference, of course, is required by the same ethical canons that the Court elsewhere does not wish to distort. Rather than sponsor "truncated representation," ante, at 546, Congress chose to subsidize only those cases in which the attorneys it subsidized could work freely. See, e. g., 42 U. S. C. § 2996(6) ("[A]ttorneys providing legal assistance must have full freedom to protect the best interests of their clients"). And it is impossible to see how this difference from Rust has any bearing upon the First Amendment question, which, to repeat, is whether the funding scheme is "'manipulated' to have a 'coercive effect'" on those who do not hold the subsidized position. National Endowment for Arts v. Finley, 524 U. S., at 587 (quoting Arkansas Writers' Project, Inc. v. Ragland, 481 U. S., at 237 (SCALIA, J., dissenting)). It could be claimed to have such an effect if the client in a case ineligible for LSC representation could eliminate the ineligibility by waiving the claim that the statute is invalid; but he cannot. No conceivable coercive effect exists. This has been a very long discussion to make a point that is embarrassingly simple: The LSC subsidy neither prevents anyone from speaking nor coerces anyone to change speech, and is indistinguishable in all relevant respects from the sub- 559 sidy upheld in Rust v. Sullivan, supra. There is no legitimate basis for declaring § 504(a)(16) facially unconstitutional. III Even were I to accept the Court's First Amendment analysis, I could not join its decision to conclude this litigation without reaching the issue of severability. That issue, although decided by the Second Circuit, was not included within the question on which certiorari was granted, and, as the Court points out, was not briefed or argued here. I nonetheless think it an abuse of discretion to ignore it. The Court has said that "[w]e may consider questions outside the scope of the limited order [granting certiorari] when resolution of those questions is necessary for the proper disposition of the case." Piper Aircraft Co. v. Reyno, 454 U. S. 235 ,246-247, n. 12 (1981). I think it necessary to a "proper disposition" here because the statute concocted by the Court of Appeals bears little resemblance to what Congress enacted, funding without restriction welfare-benefits litigation that Congress funded only under the limitations of § 504(a)(16). Although no party briefed severability in Den ver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727 (1996), the Justices finding partial unconstitutionality considered it necessary to address the issue. Id., at 767 (plurality opinion) ("[W]e must ask whether § 10(a) is severable"); accord, New York v. United States, 505 U. S. 144 , 186 (1992). I think we have that same obligation here. Moreover, by exercising our "discretion" to leave the severability question open, we fail to resolve the basic, real-world dispute at issue: whether LSC attorneys may represent welfare claimants who challenge the applicable welfare laws. Indeed, we leave the LSC program subject to even a greater uncertainty than the one we purport to have eliminated, since other circuits may conclude (as I do) that if the limitation upon welfare representation is unconstitutional, LSC attorneys cannot engage in welfare litigation at all. 560 "The inquiry into whether a statute is severable is essentially an inquiry into legislative intent." Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U. S. 172 , 191 (1999). If Congress "would not have enacted those provisions which are within its power, independently of that which is not," then courts must strike the provisions as a piece. Alaska Airlines, Inc. v. Brock, 480 U. S. 678 , 684 (1987) (internal quotation marks omitted). One determines what Congress would have done by examining what it did. Perhaps the most that can be said on the subject is contained in a passage written by Chief Justice Shaw of the Supreme Judicial Court of Massachusetts that we have often quoted: "[I]f [a statute's provisions] are so mutually connected with and dependent on each other, as conditions, considerations or compensations for each other, as to warrant a belief that the legislature intended them as a whole, and that, if all could not be carried into effect, the legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which as thus dependent, conditional or connected, must fall with them." Warren v. Mayor and Aldermen of Charlestown, 68 Mass. 84, 99 (1854). It is clear to me that the LSC Act's funding of welfare benefits suits and its prohibition on suits challenging or defending the validity of existing law are "conditions, considerations [and] compensations for each other" that cannot be severed. Congress through the LSC Act intended "to provide high quality legal assistance to those who would be otherwise unable to afford adequate legal counsel," 42 U. S. C. § 2996(2), but only if the program could at the same time "be kept free from the influence of or use by it of political pressures," § 2996(5). More than a dozen times in § 504(a) Congress made the decision that certain activities could not be funded at all without crippling the LSC program with political pressures. See, e. g., § 504(a)(1) (reapportionment 561 litigation); § 504(a)(4) (local, state, and federal lobbying); § 504(a)(7) (class-action lawsuits); § 504(a)(12) (training programs for, inter alia, boycotts, picketing, and demonstrations); § 504(a)(14) (litigation with respect to abortion). The severability question here is, essentially, whether, without the restriction that the Court today invalidates, the permission for conducting welfare litigation would have been accorded. As far as appears from the best evidence (which is the structure of the statute), I think the answer must be no. We have in some cases stated that when an "excepting proviso is found unconstitutional the substantive provisions which it qualifies cannot stand," for "to hold otherwise would be to extend the scope of the law ... so as to embrace [situations] which the legislature passing the statute had, by its very terms, expressly excluded." Frost v. Corporation Comm'n of Okla., 278 U. S. 515 , 525 (1929); see also Davis v. Wallace, 257 U. S. 478 , 484 (1922) ("Where an excepting provision in a statute is found unconstitutional, courts very generally hold that this does not work an enlargement of the scope or operation of other provisions with which that provision was enacted, and which it was intended to qualify or restrain"). I frankly doubt whether this approach has been followed consistently enough to be called the "general" rule, but if there were ever an instance in which it is appropriate it is here. To strike the restriction on welfare benefits suits is to void § 504(a)(16) altogether. Subsection (a)(16) prohibits involvement in three types of activities with respect to welfare reform: lobbying, rulemaking, and litigation. But the proscriptions against using LSC funds to participate in welfare lobbying and rulemaking are superfluous, since as described above subsections (a)(2), (a)(3), and (a)(4) of § 504 withhold LSC funds from those activities generally. What is unique about subsection (a)(16)-the only thing it achieves-is its limit on litigation. To remove that limit is to repeal subsection (a)(16) altogether, and thus to eliminate a significant quid pro quo of the legislative compromise. We 562 have no authority to "rewrite [the] statute and give it an effect altogether different" from what Congress agreed to. Railroad Retirement Bd. v. Alton R. Co., 295 U. S. 330 , 362 (1935) (quoted in Carter v. Carter Coal Co., 298 U. S. 238 , 313 (1936)). *** It is illuminating to speculate how these cases would have been decided if Congress had enacted § 504(a)(16) without its proviso (prescribing only the general ban against "litigation, lobbying, or rulemaking, involving an effort to reform a Federal or State welfare system"), and if the positions of the parties before us here were reversed. If the LSC-funded lawyers were here arguing that the statute permitted representation of individual welfare claimants who did not challenge existing law, I venture to say that the Court would endorse their argument-perhaps with stirring language about the importance of aid to welfare applicants and the Court's unwillingness to presume without clear indication that Congress would want to eliminate it. And I have little doubt that in that context the Court would find its current First Amendment musings as unpersuasive as I find them today. Today's decision is quite simply inexplicable on the basis of our prior law. The only difference between Rust and the present cases is that the former involved "distortion" of (that is to say, refusal to subsidize) the normal work of doctors, and the latter involves "distortion" of (that is to say, refusal to subsidize) the normal work of lawyers. The Court's decision displays not only an improper special solicitude for our own profession; it also displays, I think, the very fondness for "reform through the courts"-the making of innumerable social judgments through judge-pronounced constitutional imperatives-that prompted Congress to restrict publicly funded litigation of this sort. The Court says today, through an unprecedented (and indeed previously rejected) interpretation of the First Amendment, that we will not allow this 563 restriction-and then, to add insult to InJury, permits to stand a judgment that awards the general litigation funding that the statute does not contain. I respectfully dissent. 564 The next page is purposely numbered 801. The numbers between 563 and 801 were intentionally omitted, in order to make it possible to publish the orders with permanent page numbers, thus making the official citations available upon publication of the preliminary prints of the United States Reports. 565 OCTOBER 2, 2000 Certiorari Granted-Vacated and Remanded No. 99-1870. ADLER ET AL. V. DUVAL COUNTY SCHOOL BOARD ET AL. C. A. 11th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Santa Fe Independent School Dist. V. Doe, 530 U. S. 290 (2000). Reported below: 206 F.3d 1070 . No. 99-6775. BLUE V. UNITED STATES. C. A. 4th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Apprendi V. New Jersey, 530 U. S. 466 (2000). Reported below: 187 F.3d 631 . No. 99-7351. GIBSON, AKA WILLIS V. UNITED STATES. C. A. 4th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Apprendi V. New Jersey, 530 U. S. 466 (2000). Reported below: 187 F.3d 631 . No. 99-8958. WIMS V. UNITED STATES. C. A. 11th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Apprendi V. New Jersey, 530 U. S. 466 (2000). Reported below: 207 F.3d 661 . No. 99-9902. BURTON V. UNITED STATES. C. A. 5th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Apprendi V. New Jersey, 530 U. S. 466 (2000). Reported below: 211 F.3d 125 . No. 99-9924. MARTIN V. CAIN, WARDEN. C. A. 5th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for fur801

In Legal Services Corporation v. Velazquez, the Supreme Court ruled that a restriction on funding for organizations that represent clients in welfare benefits claims violates the First Amendment. The Court distinguished this case from Rust v. Sullivan, where the Court upheld a restriction on abortion counseling, by noting that the Legal Services Corporation Act facilitates private speech, not governmental speech. The Court found that the funding restriction was impermissible viewpoint discrimination and could not be justified by the government's interest in ensuring that its message is delivered.

Free Speech

National Endowment for the Arts v. Finley

https://supreme.justia.com/cases/federal/us/524/569/

OCTOBER TERM, 1997 Syllabus NATIONAL ENDOWMENT FOR THE ARTS ET AL. v. FINLEY ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No.97-371. Argued March 31, 1998-Decided June 25,1998 The National Foundation on the Arts and the Humanities Act of 1965 vests the National Endowment for the Arts (NEA) with substantial discretion to award financial grants to support the arts; it identifies only the broadest funding priorities, including "artistic and cultural significance, giving emphasis to ... creativity and cultural diversity," "professional excellence," and the encouragement of "public ... education ... and appreciation of the arts." See 20 U. S. C. §§ 954(c)(1)-(10). Applications for NEA funding are initially reviewed by advisory panels of experts in the relevant artistic field. The panels report to the National Council on the Arts (Council), which, in turn, advises the NEA Chairperson. In 1989, controversial photographs that appeared in two NEA-funded exhibits prompted public outcry over the agency's grant-making procedures. Congress reacted to the controversy by inserting an amendment into the NEA's 1990 reauthorization bill. The amendment became § 954(d)(1), which directs the Chairperson to ensure that "artistic excellence and artistic merit are the criteria by which [grant] applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public." The NEA has not promulgated an official interpretation of the provision, but the Council adopted a resolution to implement § 954(d)(1) by ensuring that advisory panel members represent geographic, ethnic, and esthetic diversity. The four individual respondents are performance artists who applied for NEA grants before § 954(d)(1) was enacted. An advisory panel recommended approval of each of their projects, but the Council subsequently recommended disapproval, and funding was denied. They filed suit for restoration of the recommended grants or reconsideration of their applications, asserting First Amendment and statutory claims. When Congress enacted § 954(d)(1), respondents, now joined by the N ational Association of Artists' Organizations, amended their complaint to challenge the provision as void for vagueness and impermissibly viewpoint based. The District Court granted summary judgment in favor of respondents on their facial constitutional challenge to § 954(d)(1). 570 The Ninth Circuit affirmed, holding that § 954(d)(1), on its face, impermissibly discriminates on the basis of viewpoint and is void for vagueness under the First and Fifth Amendments. Held: Section 954(d)(1) is facially valid, as it neither inherently interferes with First Amendment rights nor violates constitutional vagueness principles. pp. 580-590. (a) Respondents confront a heavy burden in advancing their facial constitutional challenge, and they have not demonstrated a substantial risk that application of § 954(d)(1) will lead to the suppression of free expression, see Broadrick v. Oklahoma, 413 U. S. 601 , 615. The premise of respondents' claim is that § 954(d)(1) constrains the agency's ability to fund certain categories of artistic expression. The provision, however, simply adds "considerations" to the grant-making process; it does not preclude awards to projects that might be deemed "indecent" or "disrespectful," nor place conditions on grants, or even specify that those factors must be given any particular weight in reviewing an application. Regardless of whether the NEA's view that the formulation of diverse advisory panels is sufficient to comply with Congress' command is in fact a reasonable reading, § 954(d)(1)'s plain text clearly does not impose a categorical requirement. Furthermore, the political context surrounding the "decency and respect" clause's adoption is inconsistent with respondents' assertion. The legislation was a bipartisan proposal introduced as a counterweight to amendments that would have eliminated the NEA's funding or substantially constrained its grant-making authority. Section 954(d)(1) merely admonishes the NEA to take "decency and respect" into consideration, and the Court does not perceive a realistic danger that it will be utilized to preclude or punish the expression of particular views. The Court typically strikes down legislation as facially unconstitutional when the dangers are both more evident and more substantial. See, e. g., R. A. V. v. St. Paul, 505 U. S. 377 . Given the varied interpretations of the "decency and respect" criteria urged by the parties, and the provision's vague exhortation to "take them into consideration," it seems unlikely that § 954(d)(1) will significantly compromise First Amendment values. The NEA's enabling statute contemplates a number of indisputably constitutional applications for both the "decency" and the "respect" prongs of § 954(d)(1). It is well established that "decency" is a permissible factor where "educational suitability" motivates its consideration. See, e. g., Board of Ed., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U. S. 853 , 871. And the statute already provides that the agency must take "cultural diversity" into account. References to permissible applications would not alone be sufficient to sustain the statute, 571 but neither is the Court persuaded that, in other applications, the language of § 954(d)(1) itself will give rise to the suppression of protected expression. Any content-based considerations that may be taken into account are a consequence of the nature of arts funding; the NEA has limited resources to allocate among many "artistically excellent" projects, and it does so on the basis of a wide variety of subjective criteria. Respondent's reliance on Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 , 837-in which the Court overturned a public university's objective decision denying funding to all student publications having religious editorial viewpoints-is therefore misplaced. The NEA's mandate is to make esthetic judgments, and the inherently content-based "excellence" threshold for NEA support sets it apart from the subsidy at issue in Rosenberger. Moreover, although the First Amendment applies in the subsidy context, Congress has wide latitude to set spending priorities. See, e. g., Regan v. Taxation with Representation of Wash., 461 U. S. 540 , 549. Unless § 954(d)(1) is applied in a manner that raises concern about the suppression of disfavored viewpoints, the Court will uphold it. Pp. 580-588. (b) The lower courts also erred in invalidating § 954(d)(1) as unconstitutionally vague. The First and Fifth Amendments protect speakers from arbitrary and discriminatory enforcement of vague standards. See NAACP v. Button, 371 U. S. 415 , 432-433. Section 954(d)(1)'s terms are undeniably opaque, and if they appeared in a criminal statute or regulatory scheme, they could raise substantial vagueness concerns. It is unlikely, however, that speakers will be compelled to steer too far clear of any forbidden area in the context of NEA grants. As a practical matter, artists may conform their speech to what they believe to be the NEA decisionmaking criteria in order to acquire funding. But when the Government is acting as patron rather than sovereign, the consequences of imprecision are not constitutionally severe. In the context of selective subsidies, it is not always feasible for Congress to legislate with clarity. Indeed, to accept respondents' vagueness argument would be to call into question the constitutionality of the many valuable Government programs awarding scholarships and grants on the basis of subjective criteria such as "excellence." pp. 588-590. 100 F.3d 671 , reversed and remanded. O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and STEVENS, KENNEDY, and BREYER, JJ., joined, and in all but Part II-B of which GINSBURG, J., joined. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined, post, p. 590. SOUTER, J., filed a dissenting opinion, post, p. 600. 572 Solicitor General Waxman argued the cause for petitioners. With him on the briefs were Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Deputy Assistant Attorney General Preston, Jeffrey P. Minear, William Kanter, Alfred Mollin, and Karen Christensen. David Cole argued the cause for respondents. With him on the briefs were Ellen Yaroshefsky, Marjorie Heins, Steven R. Shapiro, Mary D. Dorman, and Carol Sobel. * JUSTICE O'CONNOR delivered the opinion of the Court.t The National Foundation on the Arts and the Humanities Act of 1965, as amended in 1990, 104 Stat. 1963, requires the Chairperson of the National Endowment for the Arts (NEA) to ensure that "artistic excellence and artistic merit are the criteria by which [grant] applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public." 20 U. S. C. § 954(d)(1). In this case, we review the Court of Ap- *Briefs of amici curiae urging reversal were filed for the American Center for Law and Justice by Jay A. Sekulow, Colby M. May, James M. Henderson, Sr., and John P. Tuskey; for Liberty Counsel by Mathew D. Staver and Frederick H. Nelson; and for the National Family Legal Foundation by Len L. Munsil. Briefs of amici curiae urging affirmance were filed for the American Association of University Professors et al. by John Joshua Wheeler, Jonathan R. Alger, and Jeffrey P. Cunard; for Americans United for Separation of Church and State by Steven K. Green, Julie A. Segal, and Edward Tabash; for the Family Research Institute of Wisconsin by Daniel Kelly; for the New School for Social Research et al. by Floyd Abrams, Burt Neuborne, Kathleen M. Sullivan, Jonathan Sherman, Elai Katz, and Deborah Goldberg; for the Rockefeller Foundation by Donald B. Verrilli, Jr.; for Twenty-Six Arts, Broadcast, Library, Museum and Publishing Amici Curiae by James F. Fitzpatrick, James A. Dobkin, Matthew T. Heartney, Mark R. Drozdowski, Elliot M. Mincberg, and Lawrence S. Ottinger; for Volunteer Lawyers for the Arts et al. by Marci A. Hamilton; and for Claes Oldenburg et al. by Gloria C. Phares. Paul J. M cGeady and Robert W Peters filed a brief for Morality in Media, Inc., as amicus curiae. tJUSTICE GINSBURG joins all but Part II-B of this opinion. 573 peals' determination that § 954(d)(1), on its face, impermissibly discriminates on the basis of viewpoint and is void for vagueness under the First and Fifth Amendments. We conclude that § 954(d)(1) is facially valid, as it neither inherently interferes with First Amendment rights nor violates constitutional vagueness principles. I A With the establishment of the NEA in 1965, Congress embarked on a "broadly conceived national policy of support for the ... arts in the United States," see § 953(b), pledging federal funds to "help create and sustain not only a climate encouraging freedom of thought, imagination, and inquiry but also the material conditions facilitating the release of ... creative talent." § 951(7). The enabling statute vests the NEA with substantial discretion to award grants; it identifies only the broadest funding priorities, including "artistic and cultural significance, giving emphasis to American creativity and cultural diversity," "professional excellence," and the encouragement of "public knowledge, education, understanding, and appreciation of the arts." See §§ 954(c)(1)-(10). Applications for NEA funding are initially reviewed by advisory panels composed of experts in the relevant field of the arts. Under the 1990 amendments to the enabling statute, those panels must reflect "diverse artistic and cultural points of view" and include "wide geographic, ethnic, and minority representation," as well as "lay individuals who are knowledgeable about the arts." §§ 959(c)(1)-(2). The panels report to the 26-member National Council on the Arts (Council), which, in turn, advises the NEA Chairperson. The Chairperson has the ultimate authority to award grants but may not approve an application as to which the Council has made a negative recommendation. § 955(f). 574 Since 1965, the NEA has distributed over $3 billion in grants to individuals and organizations, funding that has served as a catalyst for increased state, corporate, and foundation support for the arts. Congress has recently restricted the availability of federal funding for individual artists, confining grants primarily to qualifying organizations and state arts agencies, and constraining subgranting. See Department of the Interior and Related Agencies Appropriations Act, 1998, § 329, 111 Stat. 1600. By far the largest portion of the grants distributed in fiscal year 1998 were awarded directly to state arts agencies. In the remaining categories, the most substantial grants were allocated to symphony orchestras, fine arts museums, dance theater foundations, and opera associations. See National Endowment for the Arts, FY 1998 Grants, Creation & Presentation 5-8, 21,20,27. Throughout the NEA's history, only a handful of the agency's roughly 100,000 awards have generated formal complaints about misapplied funds or abuse of the public's trust. Two provocative works, however, prompted public controversy in 1989 and led to congressional revaluation of the NEA's funding priorities and efforts to increase oversight of its grant-making procedures. The Institute of Contemporary Art at the University of Pennsylvania had used $30,000 of a visual arts grant it received from the NEA to fund a 1989 retrospective of photographer Robert Mapplethorpe's work. The exhibit, entitled The Perfect Moment, included homoerotic photographs that several Members of Congress condemned as pornographic. See, e. g., 135 Congo Rec. 22372 (1989). Members also denounced artist Andres Serrano's work Piss Christ, a photograph of a crucifix immersed in urine. See, e. g., id., at 9789. Serrano had been awarded a $15,000 grant from the Southeast Center for Contemporary Art, an organization that received NEA support. When considering the NEA's appropriations for fiscal year 1990, Congress reacted to the controversy surrounding the 575 Mapplethorpe and Serrano photographs by eliminating $45,000 from the agency's budget, the precise amount contributed to the two exhibits by NEA grant recipients. Congress also enacted an amendment providing that no NEA funds "may be used to promote, disseminate, or produce materials which in the judgment of [the NEA] may be considered obscene, including but not limited to, depictions of sadomasochism, homoeroticism, the sexual exploitation of children, or individuals engaged in sex acts and which, when taken as a whole, do not have serious literary, artistic, political, or scientific value." Department of the Interior and Related Agencies Appropriations Act, 1990, 103 Stat. 738-742. The NEA implemented Congress' mandate by instituting a requirement that all grantees certify in writing that they would not utilize federal funding to engage in projects inconsistent with the criteria in the 1990 appropriations bill. That certification requirement was subsequently invalidated as unconstitutionally vague by a Federal District Court, see Bella Lewitzky Dance Foundation v. Frohnmayer, 754 F. Supp. 774 (CD Cal. 1991), and the NEA did not appeal the decision. In the 1990 appropriations bill, Congress also agreed to create an Independent Commission of constitutional law scholars to review the NEA's grant-making procedures and assess the possibility of more focused standards for public arts funding. The Commission's report, issued in September 1990, concluded that there is no constitutional obligation to provide arts funding, but also recommended that the NEA rescind the certification requirement and cautioned against legislation setting forth any content restrictions. Instead, the Commission suggested procedural changes to enhance the role of advisory panels and a statutory reaffirmation of "the high place the nation accords to the fostering of mutual respect for the disparate beliefs and values among us." See Independent Commission, Report to Congress on the N a- 576 tional Endowment for the Arts 83-91 (Sept. 1990), 3 Record, Doc. No. 51, Exh. K (hereinafter Report to Congress). Informed by the Commission's recommendations, and cognizant of pending judicial challenges to the funding limitations in the 1990 appropriations bill, Congress debated several proposals to reform the NEA's grant-making process when it considered the agency's reauthorization in the fall of 1990. The House rejected the Crane Amendment, which would have virtually eliminated the NEA, see 136 Congo Rec. 28656-28657 (1990), and the Rohrabacher Amendment, which would have introduced a prohibition on awarding any grants that could be used to "promote, distribute, disseminate, or produce matter that has the purpose or effect of denigrating the beliefs, tenets, or objects of a particular religion" or "of denigrating an individual, or group of individuals, on the basis of race, sex, handicap, or national origin," id., at 28657-28664. Ultimately, Congress adopted the Williams/ Coleman Amendment, a bipartisan compromise between Members opposing any funding restrictions and those favoring some guidance to the agency. In relevant part, the Amendment became § 954(d)(1), which directs the Chairperson, in establishing procedures to judge the artistic merit of grant applications, to "tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public." * *Title 20 U. S. C. § 954(d) provides in full that: "No payment shall be made under this section except upon application therefor which is submitted to the National Endowment for the Arts in accordance with regulations issued and procedures established by the Chairperson. In establishing such regulations and procedures, the Chairperson shall ensure that- "(1) artistic excellence and artistic merit are the criteria by which applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public; and "(2) applications are consistent with the purposes of this section. Such regulations and procedures shall clearly indicate that obscenity is without artistic merit, is not protected speech, and shall not be funded." 577 The NEA has not promulgated any official interpretation of the provision, but in December 1990, the Council unanimously adopted a resolution to implement § 954(d)(1) merely by ensuring that the members of the advisory panels that conduct the initial review of grant applications represent geographic, ethnic, and esthetic diversity. See Minutes of the Dec. 1990 Retreat of the National Council on the Arts, reprinted in App. 12-13; Transcript of the Dec. 1990 Retreat of the National Council on the Arts, reprinted in id., at 3233. John Frohnmayer, then Chairperson of the NEA, also declared that he would "count on [the] procedures" ensuring diverse membership on the peer review panels to fulfill Congress' mandate. See id., at 40. B The four individual respondents in this case, Karen Finley, John Fleck, Holly Hughes, and Tim Miller, are performance artists who applied for NEA grants before § 954(d)(1) was enacted. An advisory panel recommended approval of respondents' projects, both initially and after receiving Frohnmayer's request to reconsider three of the applications. A majority of the Council subsequently recommended disapproval, and in June 1990, the NEA informed respondents that they had been denied funding. Respondents filed suit, alleging that the NEA had violated their First Amendment rights by rejecting the applications on political grounds, had failed to follow statutory procedures by basing the denial on criteria other than those set forth in the NEA's enabling statute, and had breached the confidentiality of their grant applications through the release of quotations to the press, in violation of the Privacy Act of 1974, 5 U. S. C. § 552(a). Respondents sought restoration of the recommended grants or reconsideration of their applications, as well as damages for the alleged Privacy Act violations. When Congress enacted § 954(d)(1), respondents, now joined by the National Association of Artists' Organizations (NAAO), amended 578 their complaint to challenge the provision as void for vagueness and impermissibly viewpoint based. First Amended Complaint ~ 1. The District Court denied the NEA's motion for judgment on the pleadings, 795 F. Supp. 1457, 1463-1468 (CD Cal. 1992), and, after discovery, the NEA agreed to settle the individual respondents' statutory and as-applied constitutional claims by paying the artists the amount of the vetoed grants, damages, and attorney's fees. See Stipulation and Settlement Agreement, 6 Record, Doc. No. 128, pp. 3-5. The District Court then granted summary judgment in favor of respondents on their facial constitutional challenge to § 954(d)(1) and enjoined enforcement of the provision. See 795 F. Supp., at 1476. The court rejected the argument that the NEA could comply with § 954(d)(1) by structuring the grant selection process to provide for diverse advisory panels. Id., at 1471. The provision, the court stated, "fails adequately to notify applicants of what is required of them or to circumscribe NEA discretion." Id., at 1472. Reasoning that "the very nature of our pluralistic society is that there are an infinite number of values and beliefs, and correlatively, there may be no national 'general standards of decency,'" the court concluded that § 954(d)(1) "cannot be given effect consistent with the Fifth Amendment's due process requirement." Id., at 1471-1472 (citing Grayned v. City of Rockford, 408 U. S. 104 , 108-109 (1972)). Drawing an analogy between arts funding and public universities, the court further ruled that the First Amendment constrains the NEA's grant-making process, and that because § 954(d)(1) "clearly reaches a substantial amount of protected speech," it is impermissibly overbroad on its face. 795 F. Supp., at 1476. The Government did not seek a stay of the District Court's injunction, and consequently the NEA has not applied § 954(d)(1) since June 1992. A divided panel of the Court of Appeals affirmed the District Court's ruling. 100 F.3d 671 (CA9 1996). The major- 579 ity agreed with the District Court that the NEA was compelled by the adoption of § 954(d)(1) to alter its grant-making procedures to ensure that applications are judged according to the "decency and respect" criteria. The Chairperson, the court reasoned, "has no discretion to ignore this obligation, enforce only part of it, or give it a cramped construction." I d., at 680. Concluding that the "decency and respect" criteria are not "susceptible to objective definition," the court held that § 954(d)(1) "gives rise to the danger of arbitrary and discriminatory application" and is void for vagueness under the First and Fifth Amendments. I d., at 680-681. In the alternative, the court ruled that § 954(d)(1) violates the First Amendment's prohibition on viewpoint-based restrictions on protected speech. Government funding of the arts, the court explained, is both a "traditional sphere of free expression," Rust v. Sullivan, 500 U. S. 173 , 200 (1991), and an area in which the Government has stated its intention to "encourage a diversity of views from private speakers," Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 , 834 (1995). 100 F. 3d, at 681-682. Accordingly, finding that § 954(d)(1) "has a speech-based restriction as its sole rationale and operative principle," Rosenberger, supra, at 834, and noting the NEA's failure to articulate a compelling interest for the provision, the court declared it facially invalid. 100 F. 3d, at 683. The dissent asserted that the First Amendment protects artists' rights to express themselves as indecently and disrespectfully as they like, but does not compel the Government to fund that speech. Id., at 684 (opinion of Kleinfeld, J.). The challenged provision, the dissent contended, did not prohibit the NEA from funding indecent or offensive art, but merely required the agency to consider the "decency and respect" criteria in the grant selection process. Id., at 689690. Moreover, according to the dissent's reasoning, the vagueness principles applicable to the direct regulation of speech have no bearing on the selective award of prizes, and 580 the Government may draw distinctions based on content and viewpoint in making its funding decisions. Id., at 684-688. Three judges dissented from the denial of rehearing en bane, maintaining that the panel's decision gave the statute an "implausible construction," applied the "'void for vagueness' doctrine where it does not belong," and extended "First Amendment principles to a situation that the First Amendment doesn't cover." 112 F.3d 1015 , 1016-1017 (CA9 1997). We granted certiorari, 522 U. S. 991 (1997), and now reverse the judgment of the Court of Appeals. II A Respondents raise a facial constitutional challenge to § 954(d)(1), and consequently they confront "a heavy burden" in advancing their claim. Rust, supra, at 183. Facial invalidation "is, manifestly, strong medicine" that "has been employed by the Court sparingly and only as a last resort." Broadrick v. Oklahoma, 413 U. S. 601 , 613 (1973); see also FW/PBS, Inc. v. Dallas, 493 U. S. 215 , 223 (1990) (noting that "facial challenges to legislation are generally disfavored"). To prevail, respondents must demonstrate a substantial risk that application of the provision will lead to the suppression of speech. See Broadrick, supra, at 615. Respondents argue that the provision is a paradigmatic example of viewpoint discrimination because it rejects any artistic speech that either fails to respect mainstream values or offends standards of decency. The premise of respondents' claim is that § 954(d)(1) constrains the agency's ability to fund certain categories of artistic expression. The NEA, however, reads the provision as merely hortatory, and contends that it stops well short of an absolute restriction. Section 954(d)(1) adds "considerations" to the grant-making process; it does not preclude awards to projects that might be deemed "indecent" or "disrespectful," nor place conditions on grants, or even specify that those factors must be given 581 any particular weight in reviewing an application. Indeed, the agency asserts that it has adequately implemented § 954(d)(1) merely by ensuring the representation of various backgrounds and points of view on the advisory panels that analyze grant applications. See Declaration of Randolph McAusland, Deputy Chairman for Programs at the NEA, reprinted in App. 79 (stating that the NEA implements the provision "by ensuring that the peer review panels represent a variety of geographical areas, aesthetic views, professions, areas of expertise, races and ethnic groups, and gender, and include a lay person"). We do not decide whether the NEA's view-that the formulation of diverse advisory panels is sufficient to comply with Congress' command-is in fact a reasonable reading of the statute. It is clear, however, that the text of § 954(d)(1) imposes no categorical requirement. The advisory language stands in sharp contrast to congressional efforts to prohibit the funding of certain classes of speech. When Congress has in fact intended to affirmatively constrain the NEA's grant-making authority, it has done so in no uncertain terms. See § 954(d)(2) ("[O]bscenity is without artistic merit, is not protected speech, and shall not be funded"). Furthermore, like the plain language of § 954(d), the political context surrounding the adoption of the "decency and respect" clause is inconsistent with respondents' assertion that the provision compels the NEA to deny funding on the basis of viewpoint discriminatory criteria. The legislation was a bipartisan proposal introduced as a counterweight to amendments aimed at eliminating the NEA's funding or substantially constraining its grant-making authority. See, e. g., 136 Congo Rec. 28626, 28632, 28634 (1990). The Independent Commission had cautioned Congress against the adoption of distinct viewpoint-based standards for funding, and the Commission's report suggests that "additional criteria for selection, if any, should be incorporated as part of the selection process (perhaps as part of a definition of 'artistic excel- 582 lence'), rather than isolated and treated as exogenous considerations." Report to Congress 89. In keeping with that recommendation, the criteria in § 954(d)(1) inform the assessment of artistic merit, but Congress declined to disallow any particular viewpoints. As the sponsors of § 954(d)(1) noted in urging rejection of the Rohrabacher Amendment: "[I]f we start down that road of prohibiting categories of expression, categories which are indeed constitutionally protected speech, where do we end? Where one Member's aversions end, others with different sensibilities and with different values begin." 136 Congo Rec. 28624 (statement of Rep. Coleman); see also id., at 28663 (statement of Rep. Williams) (arguing that the Rohrabacher Amendment would prevent the funding of Jasper Johns' flag series, The Merchant of Venice, Chorus Line, Birth of a Nation, and the Grapes of Wrath). In contrast, before the vote on § 954(d)(1), one of its sponsors stated: "If we have done one important thing in this amendment, it is this. We have maintained the integrity of freedom of expression in the United States." Id., at 28674. That § 954(d)(1) admonishes the NEA merely to take "decency and respect" into consideration and that the legislation was aimed at reforming procedures rather than precluding speech undercut respondents' argument that the provision inevitably will be utilized as a tool for invidious viewpoint discrimination. In cases where we have struck down legislation as facially unconstitutional, the dangers were both more evident and more substantial. In R. A. v: v. St. Paul, 505 U. S. 377 (1992), for example, we invalidated on its face a municipal ordinance that defined as a criminal offense the placement of a symbol on public or private property" 'which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.'" See id., at 380. That provision set forth a clear penalty, proscribed views on particular "disfavored subjects," id., at 391, and suppressed "distinctive idea[s], conveyed by a distinctive message," id., at 393. 583 In contrast, the "decency and respect" criteria do not silence speakers by expressly "threaten[ing] censorship of ideas." See ibid. Thus, we do not perceive a realistic danger that § 954(d)(1) will compromise First Amendment values. As respondents' own arguments demonstrate, the considerations that the provision introduces, by their nature, do not engender the kind of directed viewpoint discrimination that would prompt this Court to invalidate a statute on its face. Respondents assert, for example, that "[o]ne would be hard-pressed to find two people in the United States who could agree on what the 'diverse beliefs and values of the American public' are, much less on whether a particular work of art 'respects' them"; and they claim that" '[d]ecency' is likely to mean something very different to a septegenarian in Tuscaloosa and a teenager in Las Vegas." Brief for Respondents 41. The NEA likewise views the considerations enumerated in § 954(d)(1) as susceptible to multiple interpretations. See Department of the Interior and Related Agencies Appropriations for 1992, Hearing before the Subcommittee on Interior and Related Agencies of the House Committee on Appropriations, 102d Cong., 1st Sess., 234 (1991) (testimony of John Frohnmayer) ("[N]o one individual is wise enough to be able to consider general standards of decency and the diverse values and beliefs of the American people all by him or herself. These are group decisions"). Accordingly, the provision does not introduce considerations that, in practice, would effectively preclude or punish the expression of particular views. Indeed, one could hardly anticipate how "decency" or "respect" would bear on grant applications in categories such as funding for symphony orchestras. Respondents' claim that the provision is facially unconstitutional may be reduced to the argument that the criteria in § 954(d)(1) are sufficiently subjective that the agency could utilize them to engage in viewpoint discrimination. Given the varied interpretations of the criteria and the vague ex- 584 hortation to "take them into consideration," it seems unlikely that this provision will introduce any greater element of selectivity than the determination of "artistic excellence" itself. And we are reluctant, in any event, to invalidate legislation "on the basis of its hypothetical application to situations not before the Court." FCC v. Pacifica Foundation, 438 U. S. 726 , 743 (1978). The NEA's enabling statute contemplates a number of indisputably constitutional applications for both the "decency" prong of § 954(d)(1) and its reference to "respect for the diverse beliefs and values of the American public." Educational programs are central to the NEA's mission. See § 951(9) ("Americans should receive in school, background and preparation in the arts and humanities"); § 954(c)(5) (listing "projects and productions that will encourage public knowledge, education, understanding, and appreciation of the arts" among the NEA's funding priorities); National Endowment for the Arts, FY 1999 Application Guidelines 18-19 (describing "Education & Access" category); Brief for Twentysix Arts, Broadcast, Library, Museum and Publishing Amici Curiae 5, n. 2 (citing NEA Strategic Plan FY 1997-FY 2002, which identifies children's festivals and museums, art education, at-risk youth projects, and artists in schools as examples of the NEA's activities). And it is well established that "decency" is a permissible factor where "educational suitability" motivates its consideration. Board of Ed., Island Trees Union Free School Dist. No. 26 v. Pico, 457 U. S. 853 , 871 (1982); see also Bethel School Dist. No . .1,03 v. Fraser, 478 U. S. 675, 683 (1986) ("Surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse"). Permissible applications of the mandate to consider "respect for the diverse beliefs and values of the American public" are also apparent. In setting forth the purposes of the NEA, Congress explained that "[i]t is vital to a democracy to honor and preserve its multicultural artistic heritage." 585 § 951(10). The agency expressly takes diversity into account, giving special consideration to "projects and productions ... that reach, or reflect the culture of, a minority, inner city, rural, or tribal community," § 954(c)(4), as well as projects that generally emphasize "cultural diversity," § 954(c)(1). Respondents do not contend that the criteria in § 954(d)(1) are impermissibly applied when they may be justified, as the statute contemplates, with respect to a project's intended audience. We recognize, of course, that reference to these permissible applications would not alone be sufficient to sustain the statute against respondents' First Amendment challenge. But neither are we persuaded that, in other applications, the language of § 954(d)(1) itself will give rise to the suppression of protected expression. Any content-based considerations that may be taken into account in the grant-making process are a consequence of the nature of arts funding. The NEA has limited resources, and it must deny the majority of the grant applications that it receives, including many that propose "artistically excellent" projects. The agency may decide to fund particular projects for a wide variety of reasons, "such as the technical proficiency of the artist, the creativity of the work, the anticipated public interest in or appreciation of the work, the work's contemporary relevance, its educational value, its suitability for or appeal to special audiences (such as children or the disabled), its service to a rural or isolated community, or even simply that the work could increase public knowledge of an art form." Brief for Petitioners 32. As the dissent below noted, it would be "impossible to have a highly selective grant program without denying money to a large amount of constitutionally protected expression." 100 F. 3d, at 685 (opinion of Kleinfeld, J.). The "very assumption" of the NEA is that grants will be awarded according to the "artistic worth of competing applicants," and absolute neutrality is simply "inconceivable." Advo- 586 cates for the Arts v. Thomson, 532 F.2d 792 , 795-796 (CA1), cert. denied, 429 U. S. 894 (1976). Respondents' reliance on our decision in Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995), is therefore misplaced. In Rosenberger, a public university declined to authorize disbursements from its Student Activities Fund to finance the printing of a Christian student newspaper. We held that by subsidizing the Student Activities Fund, the University had created a limited public forum, from which it impermissibly excluded all publications with religious editorial viewpoints. Id., at 837. Although the scarcity of NEA funding does not distinguish this case from Rosenberger, see id., at 835, the competitive process according to which the grants are allocated does. In the context of arts funding, in contrast to many other subsidies, the Government does not indiscriminately "encourage a diversity of views from private speakers," id., at 834. The NEA's mandate is to make esthetic judgments, and the inherently content-based "excellence" threshold for NEA support sets it apart from the subsidy at issue in Rosenberger-which was available to all student organizations that were" 'related to the educational purpose of the University,'" id., at 824-and from comparably objective decisions on allocating public benefits, such as access to a school auditorium or a municipal theater, see Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 , 386 (1993); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 , 555 (1975), or the second class mailing privileges available to "'all newspapers and other periodical publications,'" see Hannegan v. Esquire, Inc., 327 U. S. 146 , 148, n. 1 (1946). Respondents do not allege discrimination in any particular funding decision. (In fact, after filing suit to challenge § 954(d)(1), two of the individual respondents received NEA grants. See 4 Record, Doc. No. 57, Exh. 35 (Sept. 30, 1991, letters from the NEA informing respondents Hughes and Miller that they had been awarded Solo Performance The- 587 ater Artist Fellowships).) Thus, we have no occasion here to address an as-applied challenge in a situation where the denial of a grant may be shown to be the product of invidious viewpoint discrimination. If the NEA were to leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints, then we would confront a different case. We have stated that, even in the provision of subsidies, the Government may not "ai[m] at the suppression of dangerous ideas," Regan v. Taxation with Representation of Wash., 461 U. S. 540 , 550 (1983) (internal quotation marks omitted), and if a subsidy were "manipulated" to have a "coercive effect," then relief could be appropriate. See Arkansas Writers' Project, Inc. v. Ragland, 481 U. S. 221, 237 (1987) (SCALIA, J., dissenting); see also Leathers v. Medlock, 499 U. S. 439 , 447 (1991) ("[D]ifferential taxation of First Amendment speakers is constitutionally suspect when it threatens to suppress the expression of particular ideas or viewpoints"). In addition, as the NEA itself concedes, a more pressing constitutional question would arise if Government funding resulted in the imposition of a disproportionate burden calculated to drive "certain ideas or viewpoints from the marketplace." Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105 , 116 (1991); see Brief for Petitioners 38, n. 12. Unless § 954(d)(1) is applied in a manner that raises concern about the suppression of disfavored viewpoints, however, we uphold the constitutionality of the provision. Cf. Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 , 396 (1969) ("[WJe will not now pass upon the constitutionality of these regulations by envisioning the most extreme applications conceivable, but will deal with those problems if and when they arise" (citation omitted)). B Finally, although the First Amendment certainly has application in the subsidy context, we note that the Government may allocate competitive funding according to criteria 588 that would be impermissible were direct regulation of speech or a criminal penalty at stake. So long as legislation does not infringe on other constitutionally protected rights, Congress has wide latitude to set spending priorities. See Regan, supra, at 549. In the 1990 amendments that incorporated § 954(d)(1), Congress modified the declaration of purpose in the NEA's enabling Act to provide that arts funding should "contribute to public support and confidence in the use of taxpayer funds," and that "[p]ublic funds ... must ultimately serve public purposes the Congress defines." § 951(5). And as we held in Rust, Congress may "selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way." 500 U. S., at 193. In doing so, "the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other." Ibid.; see also Maher v. Roe, 432 U. S. 464 , 475 (1977) ("There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy"). III The lower courts also erred in invalidating § 954(d)(1) as unconstitutionally vague. Under the First and Fifth Amendments, speakers are protected from arbitrary and discriminatory enforcement of vague standards. See NAACP v. Button, 371 U. S. 415 , 432-433 (1963). The terms of the provision are undeniably opaque, and if they appeared in a criminal statute or regulatory scheme, they could raise substantial vagueness concerns. It is unlikely, however, that speakers will be compelled to steer too far clear of any "forbidden area" in the context of grants of this nature. Cf. Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569 , 574 (1987) (facially invalidating a flat ban 589 on any "First Amendment" activities in an airport); Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489 , 499 (1982) ("prohibitory and stigmatizing effect" of a "quasicriminal" ordinance relevant to the vagueness analysis); Grayned v. City of Rockford, 408 U. S., at 108 (requiring clear lines between "lawful and unlawful" conduct). We recognize, as a practical matter, that artists may conform their speech to what they believe to be the decisionmaking criteria in order to acquire funding. See Statement of Charlotte Murphy, Executive Director of NAAO, reprinted in App. 2122. But when the Government is acting as patron rather than as sovereign, the consequences of imprecision are not constitutionally severe. In the context of selective subsidies, it is not always feasible for Congress to legislate with clarity. Indeed, if this statute is unconstitutionally vague, then so too are all Government programs awarding scholarships and grants on the basis of subjective criteria such as "excellence." See, e. g., 2 U. S. C. § 802 (establishing the Congressional Award Program to "promote initiative, achievement, and excellence among youths in the areas of public service, personal development, and physical and expedition fitness"); 20 U. S. C. § 956(c)(1) (providing funding to the National Endowment for the Humanities to promote "progress and scholarship in the humanities"); § 1134h(a) (authorizing the Secretary of Education to award fellowships to "students of superior ability selected on the basis of demonstrated achievement and exceptional promise"); 22 U. S. C. § 2452(a) (authorizing the award of Fulbright grants to "strengthen international cooperative relations"); 42 U. S. C. § 7382c (authorizing the Secretary of Energy to recognize teachers for "excellence in mathematics or science education"). To accept respondents' vagueness argument would be to call into question the constitutionality of these valuable Government programs and countless others like them. 590 Section 954(d)(1) merely adds some imprecise considerations to an already subjective selection process. It does not, on its face, impermissibly infringe on First or Fifth Amendment rights. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in the judgment. "The operation was a success, but the patient died." What such a procedure is to medicine, the Court's opinion in this case is to law. It sustains the constitutionality of 20 U. S. C. § 954(d)(1) by gutting it. The most avid congressional opponents of the provision could not have asked for more. I write separately because, unlike the Court, I think that § 954(d)(1) must be evaluated as written, rather than as distorted by the agency it was meant to control. By its terms, it establishes content- and viewpoint-based criteria upon which grant applications are to be evaluated. And that is perfectly constitutional. I THE STATUTE MEANS WHAT IT SAYS Section 954(d)(1) provides: "No payment shall be made under this section except upon application therefor which is submitted to the National Endowment for the Arts in accordance with regulations issued and procedures established by the Chairperson. In establishing such regulations and procedures, the Chairperson shall ensure that- "(1) artistic excellence and artistic merit are the criteria by which applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public." 591 The phrase "taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public" is what my grammar-school teacher would have condemned as a dangling modifier: There is no noun to which the participle is attached (unless one jumps out of paragraph (1) to press "Chairperson" into service). Even so, it is clear enough that the phrase is meant to apply to those who do the judging. The application reviewers must take into account "general standards of decency" and "respect for the diverse beliefs and values of the American public" when evaluating artistic excellence and merit. One can regard this as either suggesting that decency and respect are elements of what Congress regards as artistic excellence and merit, or as suggesting that decency and respect are factors to be taken into account in addition to artistic excellence and merit. But either way, it is entirely, 100% clear that decency and respect are to be taken into account in evaluating applications. This is so apparent that I am at a loss to understand what the Court has in mind (other than the gutting of the statute) when it speculates that the statute is merely "advisory." Ante, at 581. General standards of decency and respect for Americans' beliefs and values must (for the statute says that the Chairperson "shall ensure" this result) be taken into account, see, e. g., American Heritage Dictionary 402 (3d ed. 1992) ("consider ... [t]o take into account; bear in mind"), in evaluating all applications. This does not mean that those factors must always be dispositive, but it does mean that they must always be considered. The method of compliance proposed by the National Endowment for the Arts (NEA)selecting diverse review panels of artists and nonartists that reflect a wide range of geographic and cultural perspectives-is so obviously inadequate that it insults the intelligence. A diverse panel membership increases the odds that, if and when the panel takes the factors into account, it will reach an accurate assessment of what they demand. But it 592 in no way increases the odds that the panel will take the factors into consideration-much less ensures that the panel will do so, which is the Chairperson's duty under the statute. Moreover, the NEA's fanciful reading of § 954(d)(1) would make it wholly superfluous. Section 959(c) already requires the Chairperson to "issue regulations and establish procedures ... to ensure that all panels are composed, to the extent practicable, of individuals reflecting ... diverse artistic and cultural points of view." The statute requires the decency and respect factors to be considered in evaluating all applications-not, for example, just those applications relating to educational programs, ante, at 584, or intended for a particular audience, ante, at 585. Just as it would violate the statute to apply the artistic excellence and merit requirements to only select categories of applications, it would violate the statute to apply the decency and respect factors less than universally. A reviewer may, of course, give varying weight to the factors depending on the context, and in some categories of cases (such as the Court's example of funding for symphony orchestras, ante, at 583) the factors may rarely if ever affect the outcome; but § 954(d)(1) requires the factors to be considered in every case. I agree with the Court that § 954(d)(1) "imposes no categorical requirement," ante, at 581, in the sense that it does not require the denial of all applications that violate general standards of decency or exhibit disrespect for the diverse beliefs and values of Americans. Cf. § 954(d)(2) ("[O]bscenity ... shall not be funded"). But the factors need not be conclusive to be discriminatory. To the extent a particular applicant exhibits disrespect for the diverse beliefs and values of the American public or fails to comport with general standards of decency, the likelihood that he will receive a grant diminishes. In other words, the presence of the "tak[e] into consideration" clause "cannot be regarded as mere surplusage; it means something," Potter v. United 593 States, 155 U. S. 438 , 446 (1894). And the "something" is that the decisionmaker, all else being equal, will favor applications that display decency and respect, and disfavor applications that do not. This unquestionably constitutes viewpoint discrimination.1 That conclusion is not altered by the fact that the statute does not "compe[l]" the denial of funding, ante, at 581, any more than a provision imposing a five-point handicap on all black applicants for civil service jobs is saved from being race discrimination by the fact that it does not compel the rejection of black applicants. If viewpoint discrimination in this context is unconstitutional (a point I shall address anon), the law is invalid unless there are some situations in which the decency and respect factors do not constitute viewpoint discrimination. And there is none. The applicant who displays "decency," that is, "[c]onformity to prevailing standards of propriety or modesty," American Heritage Dictionary, at 483 (def. 2), and the applicant who displays "respect," that is, "deferential regard," for the diverse beliefs and values of the American people, id., at 1536 (def. 1), will always have an edge over an applicant who displays the opposite. And finally, the conclusion of viewpoint discrimination is not affected by the fact that what constitutes "'decency''' or "'the diverse values and beliefs of the American people'" is difficult to pin down, ante, at 583-any more than a civil service preference in favor of those who display "Republican-Party values" would be rendered nondiscriminatory by the fact that there is plenty of room for argument as to what Republican-Party values might be. 1 If there is any uncertainty on the point, it relates only to the adjective, which is not at issue in the current discussion. That is, one might argue that the decency and respect factors constitute content discrimination rather than viewpoint discrimination, which would render them easier to uphold. Since I believe this statute must be upheld in either event, I pass over this conundrum and assume the worst. 594 The "political context surrounding the adoption of the 'decency and respect' clause," which the Court discusses at some length, ante, at 581, does not change its meaning or affect its constitutionality. All that is proved by the various statements that the Court quotes from the Report of the Independent Commission and the floor debates is (1) that the provision was not meant categorically to exclude any particular viewpoint (which I have conceded, and which is plain from the text), and (2) that the language was not meant to do anything that is unconstitutional. That in no way propels the Court's leap to the countertextual conclusion that the provision was merely "aimed at reforming procedures," and cannot be "utilized as a tool for invidious viewpoint discrimination," ante, at 582. It is evident in the legislative history that § 954(d)(1) was prompted by, and directed at, the public funding of such offensive productions as Serrano's "Piss Christ," the portrayal of a crucifix immersed in urine, and Mapplethorpe's show of lurid homoerotic photographs. Thus, even if one strays beyond the plain text it is perfectly clear that the statute was meant to disfavor-that is, to discriminate against-such productions. Not to ban their funding absolutely, to be sure (though as I shall discuss, that also would not have been unconstitutional), but to make their funding more difficult. More fundamentally, of course, all this legislative history has no valid claim upon our attention at all. It is a virtual certainty that very few of the Members of Congress who voted for this language both (1) knew of, and (2) agreed with, the various statements that the Court has culled from the Report of the Independent Commission and the floor debate (probably conducted on an almost empty floor). And it is wholly irrelevant that the statute was a "bipartisan proposal introduced as a counterweight" to an alternative proposal that would directly restrict funding on the basis of viewpoint. See ante, at 581-582. We do not judge statutes as 595 if we are surveying the scene of an accident; each one is reviewed, not on the basis of how much worse it could have been, but on the basis of what it says. See United States v. Estate of Romani, 523 U. S. 519, 535 (1998) (SCALIA, J., concurring in part and concurring in judgment). It matters not whether this enactment was the product of the most partisan alignment in history or whether, upon its passage, the Members all linked arms and sang, "The more we get together, the happier we'll be." It is "not consonant with our scheme of government for a court to inquire into the motives of legislators." Tenney v. Brandhove, 341 U. S. 367 , 377 (1951). The law at issue in this case is to be found in the text of § 954(d)(1), which passed both Houses and was signed by the President, U. S. Const., Art. I, § 7. And that law unquestionably disfavors-discriminates against-indecency and disrespect for the diverse beliefs and values of the American people. I turn, then, to whether such viewpoint discrimination violates the Constitution. II WHAT THE STATUTE SAYS Is CONSTITUTIONAL The Court devotes so much of its opinion to explaining why this statute means something other than what it says that it neglects to cite the constitutional text governing our analysis. The First Amendment reads: "Congress shall make no law ... abridging the freedom of speech." U. S. Const., Amdt. 1 (emphasis added). To abridge is "to contract, to diminish; to deprive of." T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796). With the enactment of § 954(d)(1), Congress did not abridge the speech of those who disdain the beliefs and values of the American public, nor did it abridge indecent speech. Those who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of this statute. Avant-garde artistes such as respondents remain 596 entirely free to epater les bourgeois;2 they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it. It is preposterous to equate the denial of taxpayer subsidy with measures" '''aimed at the suppression of dangerous ideas."'" Regan v. Taxation with Representation of Wash., 461 U. S. 540 , 550 (1983) (emphasis added) (quoting Cammarano v. United States, 358 U. S. 498 , 513 (1959), in turn quoting Speiser v. Randall, 357 U. S. 513 , 519 (1958)). "The reason that denial of participation in a tax exemption or other subsidy scheme does not necessarily 'infringe' a fundamental right is that-unlike direct restriction or prohibition-such a denial does not, as a general rule, have any significant coercive effect." Arkansas Writers' Project, Inc. v. Ragland, 481 U. S. 221 , 237 (1987) (SCALIA, J., dissenting). One might contend, I suppose, that a threat of rejection by the only available source of free money would constitute coercion and hence "abridgment" within the meaning of the First Amendment. Cf. Norwood v. Harrison, 413 U. S. 455 , 465 (1973). I would not agree with such a contention, which would make the NEA the mandatory patron of all art too 2Which they do quite well. The oeuvres d'art for which the four individual plaintiffs in this case sought funding have been described as follows: "Finley's controversial show, 'We Keep Our Victims Ready,' contains three segments. In the second segment, Finley visually recounts a sexual assault by stripping to the waist and smearing chocolate on her breasts and by using profanity to describe the assault. Holly Hughes' monologue 'World Without End' is a somewhat graphic recollection of the artist's realization of her lesbianism and reminiscence of her mother's sexuality. John Fleck, in his stage performance 'Blessed Are All the Little Fishes,' confronts alcoholism and Catholicism. During the course of the performance, Fleck appears dressed as a mermaid, urinates on the stage and creates an altar out of a toilet bowl by putting a photograph of Jesus Christ on the lid. Tim Miller derives his performance 'Some Golden States' from childhood experiences, from his life as a homosexual, and from the constant threat of AIDS. Miller uses vegetables in his performances to represent sexual symbols." Note, 48 Wash. & Lee L. Rev. 1545, 1546, n. 2 (1991) (citations omitted). 597 indecent, too disrespectful, or even too kitsch to attract private support. But even if one accepts the contention, it would have no application here. The NEA is far from the sole source of funding for art-even indecent, disrespectful, or just plain bad art. Accordingly, the Government may earmark NEA funds for projects it deems to be in the public interest without thereby abridging speech. Regan v. Taxation with Representation of Wash., supra, at 549. Section 954(d)(1) is no more discriminatory, and no less constitutional, than virtually every other piece of funding legislation enacted by Congress. "The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program .... " Rust v. Sullivan, 500 U. S. 173 , 193 (1991). As we noted in Rust, when Congress chose to establish the National Endowment for Democracy it was not constitutionally required to fund programs encouraging competing philosophies of government-an example of funding discrimination that cuts much closer than this one to the core of political speech which is the primary concern of the First Amendment. See id., at 194. It takes a particularly high degree of chutzpah for the NEA to contradict this proposition, since the agency itself discriminates-and is required by law to discriminate-in favor of artistic (as opposed to scientific, or political, or theological) expression. Not all the common folk, or even all great minds, for that matter, think that is a good idea. In 1800, when John Marshall told John Adams that a recent immigration of Frenchmen would include talented artists, "Adams denounced all Frenchmen, but most especially 'schoolmasters, painters, poets, &C.' He warned Marshall that the fine arts were like germs that infected healthy constitutions." J. Ellis, After the Revolution: Profiles of Early American Culture 36 (1979). Surely the NEA itself is nothing less than an institutionalized discrimination against that point of view. Nonetheless, it is consti- 598 tutional, as is the congressional determination to favor decency and respect for beliefs and values over the opposite because such favoritism does not "abridge" anyone's freedom of speech. Respondents, relying on Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 , 833 (1995), argue that viewpoint-based discrimination is impermissible unless the government is the speaker or the government is "disburs[ing] public funds to private entities to convey a governmental message." Ibid. It is impossible to imagine why that should be so; one would think that directly involving the government itself in the viewpoint discrimination (if it is unconstitutional) would make the situation even worse. Respondents are mistaken. It is the very business of government to favor and disfavor points of view on (in modern times, at least) innumerable subjects-which is the main reason we have decided to elect those who run the government, rather than save money by making their posts hereditary. And it makes not a bit of difference, insofar as either common sense or the Constitution is concerned, whether these officials further their (and, in a democracy, our) favored point of view by achieving it directly (having government-employed artists paint pictures, for example, or government-employed doctors perform abortions); or by advocating it officially (establishing an Office of Art Appreciation, for example, or an Office of Voluntary Population Control); or by giving money to others who achieve or advocate it (funding private art classes, for example, or Planned Parenthood).3 None of this has anything to do with abridging anyone's speech. Rosenberger, as the Court explains, ante, at 586, found the view- 3 I suppose it would be unconstitutional for the government to give money to an organization devoted to the promotion of candidates nominated by the Republican Party-but it would be just as unconstitutional for the government itself to promote candidates nominated by the Republican Party, and I do not think that that unconstitutionality has anything to do with the First Amendment. 599 point discrimination unconstitutional, not because funding of "private" speech was involved, but because the government had established a limited public forum-to which the NEA's granting of highly selective (if not highly discriminating) awards bears no resemblance. The nub of the difference between me and the Court is that I regard the distinction between "abridging" speech and funding it as a fundamental divide, on this side of which the First Amendment is inapplicable. The Court, by contrast, seems to believe that the First Amendment, despite its words, has some ineffable effect upon funding, imposing constraints of an indeterminate nature which it announces (without troubling to enunciate any particular test) are not violated by the statute here-or, more accurately, are not violated by the quite different, emasculated statute that it imagines. "[T]he Government," it says, "may allocate competitive funding according to criteria that would be impermissible were direct regulation of speech or a criminal penalty at stake," ante, at 587-588. The Government, I think, may allocate both competitive and noncompetitive funding ad libitum, insofar as the First Amendment is concerned. Finally, what is true of the First Amendment is also true of the constitutional rule against vague legislation: it has no application to funding. Insofar as it bears upon First Amendment concerns, the vagueness doctrine addresses the problems that arise from government regulation of expressive conduct, see Grayned v. City of Rockford, 408 U. S. 104 , 108-109 (1972), not government grant programs. In the former context, vagueness produces an abridgment of lawful speech; in the latter it produces, at worst, a waste of money. I cannot refrain from observing, however, that if the vagueness doctrine were applicable, the agency charged with making grants under a statutory standard of "artistic excellence"-and which has itself thought that standard met by everything from the playing of Beethoven to a depiction of 600 a crucifix immersed in urine-would be of more dubious constitutional validity than the "decency" and "respect" limitations that respondents (who demand to be judged on the same strict standard of "artistic excellence") have the humorlessness to call too vague. *** In its laudatory description of the accomplishments of the NEA, ante, at 574, the Court notes with satisfaction that "only a handful of the agency's roughly 100,000 awards have generated formal complaints," ibid. The Congress that felt it necessary to enact § 954(d)(1) evidently thought it much more noteworthy that any money exacted from American taxpayers had been used to produce a crucifix immersed in urine or a display of homoerotic photographs. It is no secret that the provision was prompted by, and directed at, the funding of such offensive productions. Instead of banning the funding of such productions absolutely, which I think would have been entirely constitutional, Congress took the lesser step of requiring them to be disfavored in the evaluation of grant applications. The Court's opinion today renders even that lesser step a nullity. For that reason, I concur only in the judgment. JUSTICE SOUTER, dissenting. The question here is whether the italicized segment of this statute is unconstitutional on its face: "[A]rtistic excellence and artistic merit are the criteria by which applications [for grants from the National Endowment for the Arts (NEA)] are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public." 20 U. S. C. § 954(d) (emphasis added). It is. The decency and respect proviso mandates viewpointbased decisions in the disbursement of Government subsidies, and the Government has wholly failed to explain why the statute should be afforded an exemption from the funda- 601 mental rule of the First Amendment that viewpoint discrimination in the exercise of public authority over expressive activity is unconstitutional. The Court's conclusions that the proviso is not viewpoint based, that it is not a regulation, and that the NEA may permissibly engage in viewpoint-based discrimination, are all patently mistaken. Nor may the question raised be answered in the Government's favor on the assumption that some constitutional applications of the statute are enough to satisfy the demand of facial constitutionality, leaving claims of the proviso's obvious invalidity to be dealt with later in response to challenges of specific applications of the discriminatory standards. This assumption is irreconcilable with our longstanding and sensible doctrine of facial overbreadth, applicable to claims brought under the First Amendment's speech clause. I respectfully dissent. I "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U. S. 397 , 414 (1989). "[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message [or] its ideas," Police Dept. of Chicago v. Mosley, 408 U. S. 92 , 95 (1972), which is to say that "[t]he principle of viewpoint neutrality ... underlies the First Amendment," Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485 , 505 (1984). Because this principle applies not only to affirmative suppression of speech, but also to disqualification for government favors, Congress is generally not permitted to pivot discrimination against otherwise protected speech on the offensiveness or unacceptability of the views it expresses. See, e. g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995) (public university's student activities funds may not be disbursed on viewpoint-based terms); Lamb's Chapel v. Center Moriches 602 Union Free School Dist., 508 U. S. 384 (1993) (after-hours access to public school property may not be withheld on the basis of viewpoint); Leathers v. Medlock, 499 U. S. 439 , 447 (1991) ("[DJifferential taxation of First Amendment speakers is constitutionally suspect when it threatens to suppress the expression of particular ideas or viewpoints"); Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U. S. 1 (1986) (government-mandated access to public utility's billing envelopes must not be viewpoint based); Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789 , 804 (1984) ("[T]he First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others"). It goes without saying that artistic expression lies within this First Amendment protection. See, e. g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 , 569 (1995) (remarking that examples of painting, music, and poetry are "unquestionably shielded"); Ward v. Rock Against Racism, 491 U. S. 781 , 790 (1989) ("Music, as a form of expression and communication, is protected under the First Amendment"); Schad v. Mount Ephraim, 452 U. S. 61 , 65 (1981) ("Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee"); Kaplan v. California, 413 U. S. 115 , 119-120 (1973) ("[P]ictures, films, paintings, drawings, and engravings ... have First Amendment protection"). The constitutional protection of artistic works turns not on the political significance that may be attributable to such productions, though they may indeed comment on the political,l but simply on their expressive character, which 1 Art "may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression." Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 , 501 (1952). 603 falls within a spectrum of protected "speech" extending outward from the core of overtly political declarations. Put differently, art is entitled to full protection because our "cultural life," just like our native politics, "rest[s] upon [the] ideal" of governmental viewpoint neutrality. Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 , 641 (1994). When called upon to vindicate this ideal, we characteristically begin by asking "whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government's purpose is the controlling consideration." Ward v. Rock Against Racism, supra, at 791 (citation omitted). The answer in this case is damning. One need do nothing more than read the text of the statute to conclude that Congress's purpose in imposing the decency and respect criteria was to prevent the funding of art that conveys an offensive message; the decency and respect provision on its face is quintessentially viewpoint based, and quotations from the Congressional Record merely confirm the obvious legislative purpose. In the words of a cosponsor of the bill that enacted the proviso, "[w]orks which deeply offend the sensibilities of significant portions of the public ought not to be supported with public funds." 136 Congo Rec. 28624 (1990).2 Another supporter of the bill observed that "the Endowment's support for artists like Robert Mapplethorpe and Andre[s] Serrano has offended and angered many citizens," behooving "Congress ... to listen to these complaints about the NEA and make sure that exhibits like [these] are not funded again." Id., at 28642. Indeed, if there were any question at all about what Congress had in 2 There is, of course, nothing whatsoever unconstitutional about this view as a general matter. Congress has no obligation to support artistic enterprises that many people detest. The First Amendment speaks up only when Congress decides to participate in the Nation's artistic life by legal regulation, as it does through a subsidy scheme like the NEA. If Congress does choose to spend public funds in this manner, it may not discriminate by viewpoint in deciding who gets the money. 604 mind, a definitive answer comes in the succinctly accurate remark of the proviso's author, that the bill "add[s] to the criteria of artistic excellence and artistic merit, a shell, a screen, a viewpoint that must be constantly taken into account." Id., at 28631.3 II In the face of such clear legislative purpose, so plainly expressed, the Court has its work cut out for it in seeking a 3 On the subject of legislative history and purpose, it is disturbing that the Court upholds § 954(d) in part because the statute was drafted in hope of avoiding constitutional objections, with some Members of Congress proclaiming its constitutionality on the congressional floor. See ante, at 581582. Like the Court, I assume that many Members of Congress believed the bill to be constitutional. Indeed, Members of Congress must take an oath or affirmation to support the Constitution, see U. S. Const., Art. VI, cl. 3, and we should presume in every case that Congress believed its statute to be consistent with the constitutional commands, see, e. g., United States v. X-Citement Video, Inc., 513 U. S. 64 , 73 (1994) ("[W]e do not impute to Congress an intent to pass legislation that is inconsistent with the Constitution"); Yates v. United States, 354 U. S. 298 , 319 (1957). But courts cannot allow a legislature's conc1usory belief in constitutionality, however sincere, to trump incontrovertible unconstitutionality, for "[i]t is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803). I recognize, as the court explains, ante, at 581, that the amendment adding the decency and respect proviso was a bipartisan counterweight to more severe alternatives, and that some Members of Congress may have voted for it simply because it seemed the least among various evils. See, e. g., 136 Congo Rec. 28670 (1990) ("I am not happy with all aspects of the Williams-Coleman substitute .... It ... contains language concerning standards of decency that I find very troubling. But I applaud Mr. WILLIAMS for his efforts in achieving this compromise under very difficult circumstances .... I support the Williams-Coleman substitute"). Perhaps the proviso was the mildest alternative available, but that simply proves that the bipartisan push to reauthorize the NEA could succeed only by including at least some viewpoint-based limitations. An appreciation of alternatives does not alter the fact that Congress passed decency and respect restrictions, and it did so knowing and intending that those restrictions would prevent future controversies stemming from the NEA's funding of inflammatory art projects, by declaring the inflammatory to be disfavored for funding. 605 constitutional reading of the statute. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568 , 575 (1988). A The Court says, first, that because the phrase "general standards of decency and respect for the diverse beliefs and values of the American public" is imprecise and capable of multiple interpretations, "the considerations that the provision introduces, by their nature, do not engender the kind of directed viewpoint discrimination that would prompt this Court to invalidate a statute on its face." Ante, at 583. Unquestioned case law, however, is clearly to the contrary. "Sexual expression which is indecent but not obscene is protected by the First Amendment," Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 , 126 (1989), and except when protecting children from exposure to indecent material, see FCC v. Pacifica Foundation, 438 U. S. 726 (1978), the First Amendment has never been read to allow the government to rove around imposing general standards of decency, see, e. g., Reno v. American Civil Liberties Union, 521 U. S. 844 (1997) (striking down on its face a statute that regulated "indecency" on the Internet). Because "the normal definition of 'indecent' ... refers to nonconformance with accepted standards of morality," FCC v. Pacifica Foundation, supra, at 740, restrictions turning on decency, especially those couched in terms of "general standards of decency," are quintessentially viewpoint based: they require discrimination on the basis of conformity with mainstream mores. The Government's contrary suggestion that the NEA's decency standards restrict only the "form, mode, or style" of artistic expression, not the underlying viewpoint or message, Brief for Petitioners 39-41, may be a tempting abstraction (and one not lacking in support, cf. Bolger v. Youngs Drug Products Corp., 463 U. S. 60 , 83-84 (1983) (STEVENS, J., concurring in judgment)). But here it suffices to realize that "form, mode, or style" are not subject to ab- 606 straction from artistic viewpoint, and to quote from an opinion just two years old: "In artistic ... settings, indecency may have strong communicative content, protesting conventional norms or giving an edge to a work by conveying otherwise inexpressible emotions .... Indecency often is inseparable from the ideas and viewpoints conveyed, or separable only with loss of truth or expressive power." Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727 ,805 (1996) (KENNEDY, J., joined by GINSBURG, J., concurring) (citation and internal quotation marks omitted); see also Cohen v. California, 403 U. S. 15 , 26 (1971) ("[WJe cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process"). "[T]he inextricability of indecency from expression," Denver Area Ed. Telecommunications Consortium, supra, at 805, is beyond dispute in a certain amount of entirely lawful artistic enterprise. Starve the mode, starve the message. Just as self-evidently, a statute disfavoring speech that fails to respect America's "diverse beliefs and values" is the very model of viewpoint discrimination; it penalizes any view disrespectful to any belief or value espoused by someone in the American populace. Boiled down to its practical essence, the limitation obviously means that art that disrespects the ideology, opinions, or convictions of a significant segment of the American public is to be disfavored, whereas art that reinforces those values is not. After all, the whole point of the proviso was to make sure that works like Serrano's ostensibly blasphemous portrayal of Jesus would not be funded, see supra, at 603, while a reverent treatment, conventionally respectful of Christian sensibilities, would not run afoul of the law. Nothing could be more viewpoint based than that. Cf. Rosenberger, 515 U. S., at 831 (a statute targeting a "prohibited perspective, not the general subject matter" of religion is viewpoint based); United States v. Eichman, 496 U. S. 310 , 317 (1990) (striking down anti-flag- 607 burning statute because it impermissibly prohibited speech that was "disrespectful" of the flag). The fact that the statute disfavors art insufficiently respectful of America's "diverse" beliefs and values alters this conclusion not one whit: the First Amendment does not validate the ambition to disqualify many disrespectful viewpoints instead of merely one. See Rosenberger, supra, at 831-832. B Another alternative for avoiding unconstitutionality that the Court appears to regard with some favor is the Government's argument that the NEA may comply with § 954(d) merely by populating the advisory panels that analyze grant applications with members of diverse backgrounds. See ante, at 577, 581. Would that it were so easy; this asserted implementation of the law fails even to "reflec[t] a plausible construction of the plain language of the statute." Rust v. Sullivan, 500 U. S. 173 , 184 (1991). The Government notes that § 954(d) actually provides that "[i]n establishing ... regulations and procedures, the Chairperson [of the NEA] shall ensure that (1) artistic excellence and artistic merit are the criteria by which applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public." According to the Government, this language requires decency and respect to be considered not in judging applications, but in making regulations. If, then, the Chairperson takes decency and respect into consideration through regulations ensuring diverse panels, the statute is satisfied. But it would take a great act of will to find any plausibility in this reading. The reference to considering decency and respect occurs in the subparagraph speaking to the "criteria by which applications are judged," not in the preamble directing the Chairperson to adopt regulations; it is in judging applications that decency and respect are most obviously to be considered. It is no surprise, then, that the 608 Government's reading is directly contradicted by the legislative history. According to the provision's author, the decency and respect proviso "mandates that in the awarding of funds, in the award process itself, general standards of decency must be accorded." 136 Congo Rec. 28672 (1990). Or, as the cosponsor of the bill put it, "the decisions of artistic excellence must take into consideration general standards of decency and respect for the diverse beliefs and values of the American public." Id., at 28624. The Government offers a variant of this argument in suggesting that even if the NEA must take decency and respect into account in the active review of applications, it may satisfy the statute by doing so in an indirect way through the natural behavior of diversely constituted panels. This, indeed, has apparently been the position of the Chairperson of the NEA since shortly after the legislation was first passed. But the problems with this position are obvious. First, it defies the statute's plain language to suggest that the NEA complies with the law merely by allowing decency and respect to have their way through the subconscious inclinations of panel members. "[T]aking into consideration" is a conscious activity. See Webster's New International Dictionary 2570 (2d ed. 1949) (defining "take into consideration" as "[t]o make allowance in judging for"); id., at 569 (defining "consideration" as the "[a]ct or process of considering; continuous and careful thought; examination; deliberation; attention"); id., at 568 (defining "consider" as "to think on with care ... to bear in mind"). Second, even assuming that diverse panel composition would produce a sufficient response to the proviso, that would merely mean that selection for decency and respect would occur derivatively through the inclinations of the panel members, instead of directly through the intentional application of the criteria; at the end of the day, the proviso would still serve its purpose to screen out offending artistic works, and it would still be unconstitutional. Finally, a less obvious but equally dispositive re- 609 sponse is that reading the statute as a mandate that may be satisfied merely by selecting diverse panels renders § 954(d)(1) essentially redundant of § 959(c), which provides that the review panels must comprise "individuals reflecting a wide geographic, ethnic, and minority representation as well as individuals reflecting diverse artistic and cultural points of view." Statutory interpretations that "render superfluous other provisions in the same enactment" are strongly disfavored. Freytag v. Commissioner, 501 U. S. 868 , 877 (1991) (internal quotation marks omitted). C A third try at avoiding constitutional problems is the Court's disclaimer of any constitutional issue here because "[§] 954(d)(1) adds 'considerations' to the grant-making process; it does not preclude awards to projects that might be deemed 'indecent' or 'disrespectful,' nor place conditions on grants, or even specify that those factors must be given any particular weight in reviewing an application." Ante, at 580-581. Since "§ 954(d)(1) admonishes the NEA merely to take 'decency and respect' into consideration," ante, at 582, not to make funding decisions specifically on those grounds, the Court sees no constitutional difficulty. That is not a fair reading. Just as the statute cannot be read as anything but viewpoint based, or as requiring nothing more than diverse review panels, it cannot be read as tolerating awards to spread indecency or disrespect, so long as the review panel, the National Council on the Arts, and the Chairperson have given some thought to the offending qualities and decided to underwrite them anyway. That, after all, is presumably just what prompted the congressional outrage in the first place, and there was nothing naive about the Representative who said he voted for the bill because it does "not tolerate wasting Federal funds for sexually explicit photographs [or] sacrilegious works." 136 Congo Rec. 28676 (1990). 610 But even if I found the Court's view of "consideration" plausible, that would make no difference at all on the question of constitutionality. What if the statute required a panel to apply criteria "taking into consideration the centrality of Christianity to the American cultural experience," or "taking into consideration whether the artist is a communist," or "taking into consideration the political message conveyed by the art," or even "taking into consideration the superiority of the white race"? Would the Court hold these considerations facially constitutional, merely because the statute had no requirement to give them any particular, much less controlling, weight? I assume not. In such instances, the Court would hold that the First Amendment bars the government from considering viewpoint when it decides whether to subsidize private speech, and a statute that mandates the consideration of viewpoint is quite obviously unconstitutional. Cf. Dawson v. Delaware, 503 U. S. 159 , 167 (1992) (holding that the First Amendment forbids reliance on a defendant's abstract beliefs at sentencing, even if they are considered as one factor among many); Ozonoff v. Berzak, 744 F.2d 224 , 233 (CA1 1984) (Breyer, J.) (holding that an Executive Order which provided that a person's political associations "may be considered" in determining security clearance violated the First Amendment). Section 954(d)(1) is just such a statute. III A second basic strand in the Court's treatment of today's question, see ante, at 585-587, and the heart of JUSTICE SCALIA'S, see ante, at 595-599, in effect assume that whether or not the statute mandates viewpoint discrimination, there is no constitutional issue here because government art subsidies fall within a zone of activity free from First Amendment restraints. The Government calls attention to the roles of government-as-speaker and government-as-buyer, in which the government is of course entitled to engage in view- 611 point discrimination: if the Food and Drug Administration launches an advertising campaign on the subject of smoking, it may condemn the habit without also having to show a cowboy taking a puff on the opposite page; 4 and if the Secretary of Defense wishes to buy a portrait to decorate the Pentagon, he is free to prefer George Washington over George the Third.5 The Government freely admits, however, that it neither speaks through the expression subsidized by the NEA,6 nor buys anything for itself with its NEA grants. On the contrary, believing that "[t]he arts ... reflect the high place accorded by the American people to the nation's rich cultural heritage," § 951(6), and that "[i]t is vital to a democracy ... to provide financial assistance to its artists and the organizations that support their work," § 951(10), the Government acts as a patron, financially underwriting the production of art by private artists and impresarios for independent consumption. Accordingly, the Government would have us liberate government-as-patron from First Amendment strictures not by placing it squarely within the categories of government-as-buyer or government-as-speaker, 4 See Rust v. Sullivan, 500 U. S. 173 , 194 (1991) ("When Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles, 22 U. S. C. § 4411 (b), it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as communism and fascism"). 5 On proposing the Public Works Art Project (PWAP), the New Deal program that hired artists to decorate public buildings, President Roosevelt allegedly remarked: "I can't have a lot of young enthusiasts painting Lenin's head on the Justice Building." Quoted in Mankin, Federal Arts Patronage in the New Deal, in America's Commitment to Culture: Government and the Arts 77 (K. Mulcahy & M. Wyszomirski eds. 1995). He was buying, and was free to take his choice. 6 Here, the "communicative element inherent in the very act of funding itself," Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 , 892-893, n. 11 (1995) (SOUTER, J., dissenting), is an endorsement of the importance of the arts collectively, not an endorsement of the individual message espoused in a given work of art. 612 but by recogmzmg a new category by analogy to those accepted ones. The analogy is, however, a very poor fit, and this patronage falls embarrassingly on the wrong side of the line between government-as-buyer or -speaker and government-as- regulator-of- private-speech. The division is reflected quite clearly in our precedents. Drawing on the notion of government-as-speaker, we held in Rust v. Sullivan, 500 U. S., at 194, that the Government was entitled to appropriate public funds for the promotion of particular choices among alternatives offered by health and social service providers (e. g., family planning with, and without, resort to abortion). When the government promotes a particular governmental program, "it is entitled to define the limits of that program," and to dictate the viewpoint expressed by speakers who are paid to participate in it. Ibid. 7 But we added the important qualifying language that "[t]his is not to suggest that funding by the Government, even when coupled with the freedom of the fund recipients to speak outside the scope of the Government-funded project, is invariably sufficient to justify Government control over the content of expression." Id., at 199. Indeed, outside of the contexts of government-as-buyer and government-as-speaker, we have held time and time again that Congress may not "discriminate invidiously in its subsidies in such a way as to aim at the suppression of ... ideas." Regan v. Taxation with Representation of Wash., 461 U. S. 540 , 548 (1983) (internal quotation marks and brackets omitted); see also Lamb's Chapel, 508 U. S., at 394 (when the government subsidizes private speech, it may not "favor some viewpoints or ideas at the expense of others"); Hannegan v. Esquire, Inc., 327 7 In Rust, "the government did not create a program to encourage private speech but instead used private speakers to transmit specific information pertaining to its own program. We recognized that when the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes." Rosenberger, supra, at 833 (citing Rust, supra, at 194). 613 u. S. 146, 149 (1946) (the Postmaster General may not deny subsidies to certain periodicals on the ground that they are "'morally improper and not for the public welfare and the public good' "). Our most thorough statement of these principles is found in the recent case of Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995), which held that the University of Virginia could not discriminate on viewpoint in underwriting the speech of student-run publications. We recognized that the government may act on the basis of viewpoint "when the State is the speaker" or when the State "disburses public funds to private entities to convey a governmental message." Id., at 833. But we explained that the government may not act on viewpoint when it "does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers." Id., at 834. When the government acts as patron, subsidizing the expression of others, it may not prefer one lawfully stated view over another. Rosenberger controls here. The NEA, like the student activities fund in Rosenberger, is a subsidy scheme created to encourage expression of a diversity of views from private speakers. Congress brought the NEA into being to help all Americans "achieve a better understanding of the past, a better analysis of the present, and a better view of the future." § 951(3). The NEA's purpose is to "support new ideas" and "to help create and sustain ... a climate encouraging freedom of thought, imagination, and inquiry." §§ 951(10), (7); see also S. Rep. No. 300, 89th Cong., 1st Sess., 4 (1965) ("[T]he intent of this act should be the encouragement of free inquiry and expression"); H. R. Rep. No. 99-274, p. 13 (1985) (Committee Report accompanying bill to reauthorize and amend the NEA's governing statute) ("As the Preamble of the act directs, the Endowment['s] programs should be open and richly diverse, reflecting the ferment of ideas which has always made this Nation strong and free"). Given this 614 congressional choice to sustain freedom of expression, Ro senberger teaches that the First Amendment forbids decisions based on viewpoint popularity. So long as Congress chooses to subsidize expressive endeavors at large, it has no business requiring the NEA to turn down funding applications of artists and exhibitors who devote their "freedom of thought, imagination, and inquiry" to defying our tastes, our beliefs, or our values. It may not use the NEA's purse to "suppres[s] ... dangerous ideas." Regan v. Taxation with Representation of Wash., supra, at 548 (internal quotation marks omitted). The Court says otherwise, claiming to distinguish Rosenberger on the ground that the student activities funds in that case were generally available to most applicants, whereas NEA funds are disbursed selectively and competitively to a choice few. Ante, at 586. But the Court in Rosenberger anticipated and specifically rejected just this distinction when it held in no uncertain terms that "[t]he government cannot justify viewpoint discrimination among private speakers on the economic fact of scarcity." 515 U. S., at 835.8 Scarce money demands choices, of course, but choices "on some acceptable [viewpoint] neutral principle," like artistic excellence and artistic merit; 9 "nothing in our decision[s] in- 8 The Court's attempt to avoid Rosenberger by describing NEA funding in terms of competition, not scarcity, will not work. Competition implies scarcity, without which there is no exclusive prize to compete for; the Court's "competition" is merely a surrogate for "scarcity." 9While criteria of "artistic excellence and artistic merit" may raise intractable issues about the identification of artistic worth, and could no doubt be used covertly to filter out unwanted ideas, there is nothing inherently viewpoint discriminatory about such merit-based criteria. We have noted before that an esthetic government goal is perfectly legitimate. See Metromedia, Inc. v. San Diego, 453 U. S. 490 , 507-508 (1981) (plurality opinion). Decency and respect, on the other hand, are inherently and facially viewpoint based, and serve no legitimate and permissible end. The Court's assertion that the mere fact that grants must be awarded according to artistic merit precludes "absolute neutrality" on the part of the 615 dicate[s] that scarcity would give the State the right to exercise viewpoint discrimination that is otherwise impermissible." Ibid.; see also Arkansas Ed. Television Comm'n v. Forbes, 523 U. S. 666 , 676 (1998) (scarcity of air time does not justify viewpoint-based exclusion of candidates from a debate on public television; neutral selection criteria must be employed). If the student activities fund at issue in Rosenberger had awarded competitive, merit-based grants to only 50%, or even 5%, of the applicants, on the basis of "journalistic merit taking into consideration the message of the newspaper," it is obvious beyond peradventure that the Court would not have come out differently, leaving the University free to refuse funding after considering a publication's Christian perspective.10 A word should be said, finally, about a proposed alternative to this failed analogy. As the Solicitor General put it NEA, ante, at 585, is therefore misdirected. It is not to the point that the Government necessarily makes choices among competing applications, or even that its judgments about artistic quality may be branded as subjective to some greater or lesser degree; the question here is whether the Government may apply patently viewpoint-based criteria in making those choices. 10 JUSTICE SCALIA suggests that Rosenberger turned not on the distinction between government-as-speaker and government-as-facilitator-ofprivate-speech, but rather on the fact that "the government had established a limited public forum." Ante, at 599. Leaving aside the proper application of forum analysis to the NEA and its projects, I cannot agree that the holding of Rosenberger turned on characterizing its metaphorical forum as public in some degree. Like this case, Rosenberger involved viewpoint discrimination, and we have made it clear that such discrimination is impermissible in all forums, even nonpublic ones, Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S. 788 ,806 (1985), where, by definition, the government has not made public property generally available to facilitate private speech, Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U. S. 37 ,46 (1983) (defining a nonpublic forum as "[p]ublic property which is not by tradition or designation a forum for public communication"). Accordingly, Rosenberger's brief allusion to forum analysis was in no way determinative of the Court's holding. 616 at oral argument, "there is something unique ... about the Government funding of the arts for First Amendment purposes." Tr. of Oral Arg. 27. However different the governmental patron may be from the governmental speaker or buyer, the argument goes, patronage is also singularly different from traditional regulation of speech, and the limitations placed on the latter would be out of place when applied to viewpoint discrimination in distributing patronage. To this, there are two answers. The first, again, is Rosenberger, which forecloses any claim that the NEA and the First Amendment issues that arise under it are somehow unique. But even if we had no Rosenberger, and even if I thought the NEA's program of patronage was truly singular, I would not hesitate to reject the Government's plea to recognize a new, categorical patronage exemption from the requirement of viewpoint neutrality. I would reject it for the simple reason that the Government has offered nothing to justify recognition of a new exempt category. The question of who has the burden to justify a categorical exemption has never been explicitly addressed by this Court, despite our recognition of the speaker and buyer categories in the past. The answer is nonetheless obvious in a recent statement by the Court synthesizing a host of cases on viewpoint discrimination. "The First Amendment presumptively places this sort of discrimination beyond the power of the government." Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105 , 116 (1991). Because it takes something to defeat a presumption, the burden is necessarily on the Government to justify a new exception to the fundamental rules that give life to the First Amendment. It is up to the Government to explain why a sphere of governmental participation in the arts (unique or not) should be treated as outside traditional First Amendment limits. The Government has not carried this burden here, or even squarely faced it. 617 IV Although I, like the Court, recognize that "facial challenges to legislation are generally disfavored," FW/PBS, Inc. v. Dallas, 493 U. S. 215 , 223 (1990), the proviso is the type of statute that most obviously lends itself to such an attack. The NEA does not offer a list of reasons when it denies a grant application, and an artist or exhibitor whose subject raises a hint of controversy can never know for sure whether the decency and respect criteria played a part in any decision by the NEA to deny funding. Hence, the most that we could hope for in waiting for an as-applied challenge would be (a) a plaintiff whose rejected proposal raised some risk of offense and was not aimed at exhibition in a forum in which decency and respect might serve as permissible selection criteria, or (b) a plaintiff who sought funding for a project that had been sanitized to avoid rejection. But no one has denied here that the institutional plaintiff, the National Association of Artists' Organizations (NAAO), has representative standing on behalf of some such potential plaintiffs. See App. 21-25 (declaration of NAAO's Executive Director, listing examples of the potentially objectionable works produced by several member organizations). We would therefore gain nothing at all by dismissing this case and requiring those individuals or groups to bring essentially the same suit, restyled as an as-applied challenge raising one of the possibilities just mentioned. In entertaining this challenge, the Court finds § 954(d)(1) constitutional on its face in part because there are "a number of indisputably constitutional applications" for both the "decency" and the "respect" criteria, ante, at 584, and it is hard to imagine "how 'decency' or 'respect' would bear on grant applications in categories such as funding for symphony orchestras," ante, at 583. There are circumstances in which we have rejected facial challenges for similar reasons. "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger 618 must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U. S. 739 , 745 (1987). But quite apart from any question that might be raised about that statement as a general rule,l1 it is beyond question, as the Court freely concedes, that it can have no application here, it being well settled that the general rule does not limit challenges brought under the First Amendment's speech clause. There is an "exception to thee] [capable-of-constitutionalapplication] rule recognized in our jurisprudence [for] facial challenge[s] based upon First Amendment free-speech grounds. We have applied to statutes restricting speech a so-called 'overbreadth' doctrine, rendering such a statute invalid in all its applications (i. e., facially invalid) if it is invalid in any of them." Ada v. Guam Society of Obstetricians & Gynecologists, 506 U. S. 1011, 1012 (1992) (SCALIA, J., dissenting from denial of certiorari); 12 see, e. g., Reno v. American Civil Liberties Union, 521 U. S. 844 (1997) (striking down decency provision of Communications Decency Act as facially overbroad); id., at 893-894 (O'CONNOR, J., concurring in judgment in part and dissenting in part) (declining to apply the rule of Salerno because the plaintiffs' claim arose under the First Amendment); Schad v. Mount Ephraim, 452 U. S., at 66 ("Because appellants' claims are rooted in the First Amendment, they are entitled to ... raise an overbreadth challenge") (internal quotation marks omitted); Gooding v. Wilson, 405 U. S. 518 , 521-522 (1972).13 Thus, 11 Cf., e. g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 , 895 (1992) (statute restricting abortion will be struck down if, "in a large fraction of the cases in which [the statute] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion"). 12We have, however, recognized that "the overbreadth doctrine does not apply to commercial speech." Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489 , 497 (1982). 13 Cf. United States v. Salerno, 481 U. S. 739 , 745 (1987) ("The fact that the Bail Reform Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since 619 we have routinely understood the overbreadth doctrine to apply where the plaintiff mounts a facial challenge to a law investing the government with discretion to discriminate on viewpoint when it parcels out benefits in support of speech. See, e. g., City of Lakewood v. Plain Dealer Publishing Co., 486 U. S. 750 , 759 (1988) ("[A] facial challenge lies whenever a licensing law gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers"); Forsyth County v. Nationalist Movement, 505 U. S. 123 (1992) (applying overbreadth doctrine to invalidate on its face an ordinance allowing for content-based discrimination in the awarding of parade permits). To be sure, such a "facial challenge will not succeed unless the statute is 'substantially' overbroad," New York State Club Assn., Inc. v. City of New York, 487 U. S. 1 , 11 (1988), by which we mean that "a law should not be invalidated for overbreadth unless it reaches a substantial number of impermissible applications," New York v. Ferber, 458 U. S. 747 , 771 (1982). But that is no impediment to invalidation here. The Court speculates that the "decency" criterion might permissibly be applied to applications seeking to create or display art in schools 14 or children's museums, whereas the "respect" criterion might permissibly be applied to applications we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment"). 14 In placing such emphasis on the potential applicability of the decency criterion to educational programs, the Court neglects to point out the existence of § 954a, entitled "[a]ccess to the arts through support of education," which is concerned specifically with funding for arts education, especially in elementary and secondary schools. It seems that the NEA's "mission" to promote arts education, ante, at 584, is carried out primarily through § 954a, not § 954. While the decency standard might be constitutionally permissible when applied to applications for grants under § 954a, that standard does not appear to be relevant to such applications at all; the decency and respect provision appears in § 954(d), which governs grant applications under § 954, not under § 954a. 620 seeking to create art that celebrates a minority, tribal, rural, or inner-city culture. But even so, this is certainly a case in which the challenged statute "reaches a substantial number of impermissible applications," not one in which the statute's "legitimate reach dwarfs its arguably impermissible applications." Id., at 771, 773. On the contrary, nothing in the record suggests that the grant scheme administered under the broad authorization of the NEA's governing statute, see §§ 951, 954(c), devotes an overwhelming proportion of its resources to schools and ethnic commemoration. Since the decency and respect criteria may not be employed in the very many instances in which the art seeking a subsidy is neither aimed at children nor meant to celebrate a particular culture, the statute is facially overbroad. Cf. City of Lakewood, supra, at 766 ("[I]n a host of ... First Amendment cases we have ... considered on the merits facial challenges to statutes or policies that embodied discrimination based on the content or viewpoint of expression, or vested officials with open-ended discretion that threatened the same, even where it was assumed that a properly drawn law could have greatly restricted or prohibited the manner of expression or circulation at issue"). Accordingly, the Court's observation that there are a handful of permissible applications of the decency and respect proviso, even if true, is irrelevant.15 15 The Court seemingly concedes that these isolated constitutional applications are in fact of little matter. For after speaking of specific applications that may be valid, the Court goes on to admit that these "would not alone be sufficient to sustain the statute." Ante, at 585. The Court nonetheless upholds the statute because it is not "persuaded that, in other applications, the language of § 954(d)(1) itself will give rise to the suppression of protected expression." Ibid. This conclusion appears to rest on some combination of (a) the Court's competition rationale as distinguishing Rosenberger and justifying the discrimination, (b) the Court's reading of the decency and respect proviso as something other than viewpoint based, and (c) the Court's treatment of "taking into consideration" as establishing no firm mandate subject to constitutional scrutiny. As already explained, 621 The Government takes a different tack, arguing that overbreadth analysis is out of place in this case because the "prospect for 'chilling' expressive conduct," which forms the basis for the overbreadth doctrine, see, e. g., Massachusetts v. Oakes, 491 U. S. 576 , 584 (1989) (plurality opinion of O'CONNOR, J.), "is not present here." Brief for Petitioners 20-21, n. 5. But that is simply wrong. We have explained before that the prospect of a denial of government funding necessarily carries with it the potential to "chil[l] ... individual thought and expression." Rosenberger, 515 U. S., at 835. In the world of NEA funding, this is so because the makers or exhibitors of potentially controversial art will either trim their work to avoid anything likely to offend, or refrain from seeking NEA funding altogether. Either way, to whatever extent NEA eligibility defines a national mainstream, the proviso will tend to create a timid esthetic. And either way, the proviso's viewpoint discrimination will "chill the expressive activity of [persons] not before the court." Forsyth County, supra, at 129. See App. 22-24 (declaration of Charlotte Murphy, Executive Director of respondent NAAO) (recounting how some NAAO members have not applied for NEA grants for fear that their work would be found indecent or disrespectful, while others have applied but were "chilled in their applications and in the scope of their projects" by the decency and respect provision). Indeed, because NEA grants are often matched by funds from private donors, the constraining impact of § 954(d)(1) is significantly magnified: "[T]he chilling effect caused by [the NEA's viewpointbased selection criteria] is exacerbated by the practical realities of funding in the artistic community. Plainly stated, the NEA occupies a dominant and influential role in the financial affairs of the art world in the United however, fair reading of the text and attention to case law foreclose reliance on any, let alone all, of these arguments. 622 States. Because the NEA provides much of its support with conditions that require matching or co-funding from private sources, the NEA's funding involvement in a project necessarily has a multiplier effect in the competitive market for funding of artistic endeavors .... [In addition,] most non-federal funding sources regard the NEA award as an imprimatur that signifies the recipient's artistic merit and value. NEA grants lend prestige and legitimacy to projects and are therefore critical to the ability of artists and companies to attract non-federal funding sources. Grant applicants rely on the NEA well beyond the dollar value of any particular grant." Bella Lewitzky Dance Foundation v. Frohnmayer, 754 F. Supp. 774, 783 (CD Cal. 1991) (footnote and internal quotation marks omitted).16 Since the decency and respect proviso of § 954(d)(1) is substantially overbroad and carries with it a significant power to chill artistic production and display, it should be struck down on its face.17 16 See also, e. g., 131 Congo Rec. 24808 (1985) ("[S]upport from the Endowmen[t] has always represented a 'Good Housekeeping Seal' of approval which has helped grantees generate non-Federal dollars for projects and productions"). 17 I agree with the Court that § 954(d) is not unconstitutionally vague. Any chilling that results from imprecision in the drafting of standards (such as "artistic excellence and artistic merit") by which the Government awards scarce grants and scholarships is an inevitable and permissible consequence of distributing prizes on the basis of criteria dealing with a subject that defies exactness. The necessary imprecision of artisticmerit-based criteria justifies tolerating a degree of vagueness that might be intolerable when applying the First Amendment to attempts to regulate political discussion. Cf. Arkansas Ed. Television Comm'n V. Forbes, 523 U. S. 666 , 694-695 (1998) (STEVENS, J., dissenting). My problem is not with the chilling that may naturally result from necessarily open standards; it is with the unacceptable chilling of "dangerous ideas," Speiser V. Randall, 357 U. S. 513 , 519 (1958), that naturally results from explicitly viewpoint-based standards. 623 V The Court does not strike down the proviso, however. Instead, it preserves the irony of a statutory mandate to deny recognition to virtually any expression capable of causing offense in any quarter as the most recent manifestation of a scheme enacted to "create and sustain ... a climate encouraging freedom of thought, imagination, and inquiry." § 951(7).

The National Endowment for the Arts (NEA) et al. v. Finley et al.: **Issue:** Whether a statutory provision directing the NEA Chairperson to consider "general standards of decency and respect for diverse beliefs and values of the American public" when awarding grants violates the First Amendment and is void for vagueness. **Holding:** The Supreme Court held that the provision, § 954(d)(1), is facially valid and does not inherently interfere with First Amendment rights or violate vagueness principles. The Court found that the NEA's grant-making process was discretionary and that the provision's language was broad and flexible, allowing for a range of viewpoints and expressions. **Reasoning:** The Court emphasized the NEA's substantial discretion in awarding grants and the absence of a specific mandate to deny funding based on viewpoint or controversial content. It noted that the NEA had not interpreted the provision as a restriction on controversial art and that the provision's language was broad enough to encompass diverse artistic expressions. The Court also rejected the argument that the NEA's dominant role in arts funding heightened First Amendment concerns, finding that artists were free to create and display art regardless of NEA funding. **Dissent:** Justice Souter disagreed with the majority's conclusion, arguing that the provision's "decency and respect" criterion inherently favored certain viewpoints and disfavored others, thus violating the First Amendment. He also emphasized the NEA's significant influence in the arts funding community, which heightened the potential for chilling artistic expression.

Free Speech

Pleasant Grove City v. Summum

https://supreme.justia.com/cases/federal/us/555/460/

OPINION OF THE COURT PLEASANT GROVE CITY V. SUMMUM 555 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-665 PLEASANT GROVE CITY, UTAH, et al., PETITIONERS v. SUMMUM on writ of certiorari to the united states court of appeals for the tenth circuit [February 25, 2009]    Justice Alito delivered the opinion of the Court.    This case presents the question whether the Free Speech Clause of the First Amendment entitles a private group to insist that a municipality permit it to place a permanent monument in a city park in which other donated monuments were previously erected. The Court of Appeals held that the municipality was required to accept the monument because a public park is a traditional public forum. We conclude, however, that although a park is a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park is not a form of expression to which forum analysis applies. Instead, the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause. I A    Pioneer Park (or Park) is a 2.5 acre public park located in the Historic District of Pleasant Grove City (or City) in Utah. The Park currently contains 15 permanent displays, at least 11 of which were donated by private groups or individuals. These include an historic granary, a wishing well, the City’s first fire station, a September 11 monument, and a Ten Commandments monument donated by the Fraternal Order of Eagles in 1971.    Respondent Summum is a religious organization founded in 1975 and headquartered in Salt Lake City, Utah. On two separate occasions in 2003, Summum’s president wrote a letter to the City’s mayor requesting permission to erect a “stone monument,” which would contain “the Seven Aphorisms of SUMMUM”[ Footnote 1 ] and be similar in size and nature to the Ten Commandments monument. App. 57, 59. The City denied the requests and explained that its practice was to limit monuments in the Park to those that “either (1) directly relate to the history of Pleasant Grove, or (2) were donated by groups with longstanding ties to the Pleasant Grove community.” Id. , at 61. The following year, the City passed a resolution putting this policy into writing. The resolution also mentioned other criteria, such as safety and esthetics.    In May 2005, respondent’s president again wrote to the mayor asking to erect a monument, but the letter did not describe the monument, its historical significance, or Summum’s connection to the community. The city council rejected this request. B    In 2005, respondent filed this action against the City and various local officials (petitioners), asserting, among other claims, that petitioners had violated the Free Speech Clause of the First Amendment by accepting the Ten Commandments monument but rejecting the proposed Seven Aphorisms monument. Respondent sought a preliminary injunction directing the City to permit Summum to erect its monument in Pioneer Park. After the District Court denied Summum’s preliminary injunction request, No. 2:05CV00638, 2006 WL 3421838 (D Utah, Nov. 22, 2006), respondent appealed, pressing solely its free speech claim.    A panel of the Tenth Circuit reversed. 483 F. 3d 1044 (2007). The panel noted that it had previously found the Ten Commandments monument to be private rather than government speech. See Summum v. Ogden , 297 F. 3d 995 (2002). Noting that public parks have traditionally been regarded as public forums, the panel held that the City could not reject the Seven Aphorisms monument unless it had a compelling justification that could not be served by more narrowly tailored means. See 483 F. 3d, at 1054. The panel then concluded that the exclusion of respondent’s monument was unlikely to survive this strict scrutiny, and the panel therefore held that the City was required to erect Summum’s monument immediately.    The Tenth Circuit denied the City’s petition for rehearing en banc by an equally divided vote. 499 F. 3d 1170 (2007). Judge Lucero dissented, arguing that the Park was not a traditional public forum for the purpose of displaying monuments. Id ., at 1171. Judge McConnell also dissented, contending that the monuments in the Park constitute government speech. Id ., at 1174.    We granted certiorari, 552 U. S. ___ (2008), and now reverse. II    No prior decision of this Court has addressed the application of the Free Speech Clause to a government entity’s acceptance of privately donated, permanent monuments for installation in a public park, and the parties disagree sharply about the line of precedents that governs this situation. Petitioners contend that the pertinent cases are those concerning government speech. Respondent, on the other hand, agrees with the Court of Appeals panel that the applicable cases are those that analyze private speech in a public forum. The parties’ fundamental disagreement thus centers on the nature of petitioners’ conduct when they permitted privately donated monuments to be erected in Pioneer Park. Were petitioners engaging in their own expressive conduct? Or were they providing a forum for private speech? A    If petitioners were engaging in their own expressive conduct, then the Free Speech Clause has no application. The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech. See Johanns v. Livestock Marketing Assn. , 544 U. S. 550 , 553 (2005) (“[T]he Government’s own speech . . . is exempt from First Amendment scrutiny”); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94 , 139, n. 7 (1973) (Stewart, J., concurring) (“Government is not restrained by the First Amendment from controlling its own expression”). A government entity has the right to “speak for itself.” Board of Regents of Univ. of Wis. System v. Southworth , 529 U. S. 217 , 229 (2000). “[I]t is entitled to say what it wishes,” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 , 833 (1995), and to select the views that it wants to express. See Rust v. Sullivan , 500 U. S. 173 , 194 (1991); National Endowment for Arts v. Finley , 524 U. S. 569 , 598 (1998) (Scalia, J., concurring in judgment) (“It is the very business of government to favor and disfavor points of view”).    Indeed, it is not easy to imagine how government could function if it lacked this freedom. “If every citizen were to have a right to insist that no one paid by public funds express a view with which he disagreed, debate over issues of great concern to the public would be limited to those in the private sector, and the process of government as we know it radically transformed.” Keller v. State Bar of Cal. , 496 U. S. 1 , 12–13 (1990). See also Johanns , 544 U. S., at 574 (Souter, J., dissenting) (“To govern, government has to say something, and a First Amendment heckler’s veto of any forced contribution to raising the government’s voice in the ‘marketplace of ideas’ would be out of the question” (footnote omitted)).    A government entity may exercise this same freedom to express its views when it receives assistance from private sources for the purpose of delivering a government-controlled message. See id. , at 562 (opinion of the Court) (where the government controls the message, “it is not precluded from relying on the government-speech doctrine merely because it solicits assistance from nongovernmental sources”); Rosenberger , supra , at 833 (a government entity may “regulate the content of what is or is not expressed … when it enlists private entities to convey its own message”).    This does not mean that there are no restraints on government speech. For example, government speech must comport with the Establishment Clause. The involvement of public officials in advocacy may be limited by law, regulation, or practice. And of course, a government entity is ultimately “accountable to the electorate and the political process for its advocacy.” Southworth , 529 U. S., at 235. “If the citizenry objects, newly elected officials later could espouse some different or contrary position.” Ibid . B While government speech is not restricted by the Free Speech Clause, the government does not have a free hand to regulate private speech on government property. This Court long ago recognized that members of the public retain strong free speech rights when they venture into public streets and parks, “which ‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’ ” Perry Ed. Assn. v. Perry Local Educators’ Assn. , 460 U. S. 37 , 45 (1983) (quoting Hague v. Committee for Industrial Organization , 307 U. S. 496 , 515 (1939) (opinion of Roberts, J.)). In order to preserve this freedom, government entities are strictly limited in their ability to regulate private speech in such “traditional public fora.” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc. , 473 U. S. 788 , 800 (1985). Reasonable time, place, and manner restrictions are allowed, see Perry Ed. Assn. , supra , at 45, but any restriction based on the content of the speech must satisfy strict scrutiny, that is, the restriction must be narrowly tailored to serve a compelling government interest, see Cornelius , supra , at 800, and restrictions based on viewpoint are prohibited, see Carey v. Brown , 447 U. S. 455 , 463 (1980). With the concept of the traditional public forum as a starting point, this Court has recognized that members of the public have free speech rights on other types of government property and in certain other government programs that share essential attributes of a traditional public forum. We have held that a government entity may create “a designated public forum” if government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose. See Cornelius , 473 U. S., at 802. Government restrictions on speech in a designated public forum are subject to the same strict scrutiny as restrictions in a traditional public forum. Id. , at 800. The Court has also held that a government entity may create a forum that is limited to use by certain groups or dedicated solely to the discussion of certain subjects. Perry Ed. Assn. , supra , at 46, n. 7. In such a forum, a government entity may impose restrictions on speech that are reasonable and viewpoint-neutral. See Good News Club v. Milford Central School , 533 U. S. 98 , 106–107 (2001). III There may be situations in which it is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech, but this case does not present such a situation. Permanent monuments displayed on public property typically represent government speech. Governments have long used monuments to speak to the public. Since ancient times, kings, emperors, and other rulers have erected statues of themselves to remind their subjects of their authority and power. Triumphal arches, columns, and other monuments have been built to commemorate military victories and sacrifices and other events of civic importance. A monument, by definition, is a structure that is designed as a means of expression. When a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure. Neither the Court of Appeals nor respondent disputes the obvious proposition that a monument that is commissioned and financed by a government body for placement on public land constitutes government speech. Just as government-commissioned and government-financed monuments speak for the government, so do privately financed and donated monuments that the government accepts and displays to the public on government land. It certainly is not common for property owners to open up their property for the installation of permanent monuments that convey a message with which they do not wish to be associated. And because property owners typically do not permit the construction of such monuments on their land, persons who observe donated monuments routinely—and reasonably—interpret them as conveying some message on the property owner’s behalf. In this context, there is little chance that observers will fail to appreciate the identity of the speaker. This is true whether the monument is located on private property or on public property, such as national, state, or city park land. We think it is fair to say that throughout our Nation’s history, the general government practice with respect to donated monuments has been one of selective receptivity. A great many of the monuments that adorn the Nation’s public parks were financed with private funds or donated by private parties. Sites managed by the National Park Service contain thousands of privately designed or funded commemorative objects, including the Statue of Liberty, the Marine Corps War Memorial (the Iwo Jima monument), and the Vietnam Veterans Memorial. States and cities likewise have received thousands of donated monuments. See, e.g. , App. to Brief for International Municipal Lawyers Association as Amicus Curiae 15a–29a (hereinafter IMLA Brief) (listing examples); Brief for American Legion et al. as Amici Curiae 7, and n. 2 (same). By accepting monuments that are privately funded or donated, government entities save tax dollars and are able to acquire monuments that they could not have afforded to fund on their own. But while government entities regularly accept privately funded or donated monuments, they have exercised selectivity. An example discussed by the city of New York as amicus curiae is illustrative. In the wake of the controversy generated in 1876 when the city turned down a donated monument to honor Daniel Webster, the city adopted rules governing the acceptance of artwork for permanent placement in city parks, requiring, among other things, that “any proposed gift of art had to be viewed either in its finished condition or as a model before acceptance.” Brief for City of New York as Amicus Curiae 4–5 (hereinafter NYC Brief). Across the country, “municipalities generally exercise editorial control over donated monuments through prior submission requirements, design input, requested modifications, written criteria, and legislative approvals of specific content proposals.” IMLA Brief 21. Public parks are often closely identified in the public mind with the government unit that owns the land. City parks—ranging from those in small towns, like Pioneer Park in Pleasant Grove City, to those in major metropolises, like Central Park in New York City—commonly play an important role in defining the identity that a city projects to its own residents and to the outside world. Accordingly, cities and other jurisdictions take some care in accepting donated monuments. Government decisionmakers select the monuments that portray what they view as appropriate for the place in question, taking into account such content-based factors as esthetics, history, and local culture. The monuments that are accepted, therefore, are meant to convey and have the effect of conveying a government message, and they thus constitute government speech. IV A In this case, it is clear that the monuments in Pleasant Grove’s Pioneer Park represent government speech. Although many of the monuments were not designed or built by the City and were donated in completed form by private entities, the City decided to accept those donations and to display them in the Park. Respondent does not claim that the City ever opened up the Park for the placement of whatever permanent monuments might be offered by private donors. Rather, the City has “effectively controlled” the messages sent by the monuments in the Park by exercising “final approval authority” over their selection. Johanns , 544 U. S., at 560–561. The City has selected those monuments that it wants to display for the purpose of presenting the image of the City that it wishes to project to all who frequent the Park; it has taken ownership of most of the monuments in the Park, including the Ten Commandments monument that is the focus of respondent’s concern; and the City has now expressly set forth the criteria it will use in making future selections. B Respondent voices the legitimate concern that the government speech doctrine not be used as a subterfuge for favoring certain private speakers over others based on viewpoint. Respondent’s suggested solution is to require a government entity accepting a privately donated monument to go through a formal process of adopting a resolution publicly embracing “the message” that the monument conveys. See Brief for Respondent 33–34, 57. We see no reason for imposing a requirement of this sort. The parks of this country contain thousands of donated monuments that government entities have used for their own expressive purposes, usually without producing the sort of formal documentation that respondent now says is required to escape Free Speech Clause restrictions. Requiring all of these jurisdictions to go back and proclaim formally that they adopt all of these monuments as their own expressive vehicles would be a pointless exercise that the Constitution does not mandate. In this case, for example, although respondent argues that Pleasant Grove City has not adequately “controll[ed] the message,” id. , at 31, of the Ten Commandments monument, the City took ownership of that monument and put it on permanent display in a park that it owns and manages and that is linked to the City’s identity. All rights previously possessed by the monument’s donor have been relinquished. The City’s actions provided a more dramatic form of adoption than the sort of formal endorsement that respondent would demand, unmistakably signifying to all Park visitors that the City intends the monument to speak on its behalf. And the City has made no effort to abridge the traditional free speech rights—the right to speak, distribute leaflets, etc.—that may be exercised by respondent and others in Pioneer Park. What respondent demands, however, is that the City “adopt” or “embrace” “the message” that it associates with the monument. Id. , at 33–34, 57. Respondent seems to think that a monument can convey only one “message”—which is, presumably, the message intended by the donor—and that, if a government entity that accepts a monument for placement on its property does not formally embrace that message, then the government has not engaged in expressive conduct. This argument fundamentally misunderstands the way monuments convey meaning. The meaning conveyed by a monument is generally not a simple one like “ ‘Beef. It’s What’s for Dinner.’ ” Johanns , supra , at 554. Even when a monument features the written word, the monument may be intended to be interpreted, and may in fact be interpreted by different observers, in a variety of ways. Monuments called to our attention by the briefing in this case illustrate this phenomenon. What, for example, is “the message” of the Greco-Roman mosaic of the word “Imagine” that was donated to New York City’s Central Park in memory of John Lennon? See NYC Brief 18; App. to id. , at A5. Some observers may “imagine” the musical contributions that John Lennon would have made if he had not been killed. Others may think of the lyrics of the Lennon song that obviously inspired the mosaic and may “imagine” a world without religion, countries, possessions, greed, or hunger.[ Footnote 2 ] Or, to take another example, what is “the message” of the “large bronze statue displaying the word ‘peace’ in many world languages” that is displayed in Fayetteville, Arkansas?[ Footnote 3 ] These text-based monuments are almost certain to evoke different thoughts and sentiments in the minds of different observers, and the effect of monuments that do not contain text is likely to be even more variable. Consider, for example, the statue of Pancho Villa that was given to the city of Tucson, Arizona, in 1981 by the Government of Mexico with, according to a Tucson publication, “a wry sense of irony.”[ Footnote 4 ] Does this statue commemorate a “revolutionary leader who advocated for agrarian reform and the poor” or “a violent bandit”? IMLA Brief 13. Contrary to respondent’s apparent belief, it frequently is not possible to identify a single “message” that is conveyed by an object or structure, and consequently, the thoughts or sentiments expressed by a government entity that accepts and displays such an object may be quite different from those of either its creator or its donor.[ Footnote 5 ] By accepting a privately donated monument and placing it on city property, a city engages in expressive conduct, but the intended and perceived significance of that conduct may not coincide with the thinking of the monument’s donor or creator. Indeed, when a privately donated memorial is funded by many small donations, the donors themselves may differ in their interpretation of the monument’s significance.[ Footnote 6 ] By accepting such a monument, a government entity does not necessarily endorse the specific meaning that any particular donor sees in the monument. The message that a government entity conveys by allowing a monument to remain on its property may also be altered by the subsequent addition of other monuments in the same vicinity. For example, following controversy over the original design of the Vietnam Veterans Memorial, a compromise was reached that called for the nearby addition of a flagstaff and bronze Three Soldiers statue, which many believed changed the overall effect of the memorial. See, e.g. , J. Mayo, War Memorials as Political Landscape: The American Experience and Beyond 202–203, 205 (1988); K. Hass, Carried to the Wall: American Memory and the Vietnam Veterans Memorial 15–18 (1998). The “message” conveyed by a monument may change over time. A study of war memorials found that “people reinterpret” the meaning of these memorials as “historical interpretations” and “the society around them changes.” Mayo, supra , at 8–9. A striking example of how the interpretation of a monument can evolve is provided by one of the most famous and beloved public monuments in the United States, the Statue of Liberty. The statue was given to this country by the Third French Republic to express republican solidarity and friendship between the two countries. See J. Res. 6, 44th Cong., 2d Sess. (1877), 19 Stat. 410 (accepting the statue as an “expressive and felicitous memorial of the sympathy of the citizens of our sister Republic”). At the inaugural ceremony, President Cleveland saw the statue as an emblem of international friendship and the widespread influence of American ideals. See Inauguration of the Statue of Liberty Enlightening the World 30 (1887). Only later did the statue come to be viewed as a beacon welcoming immigrants to a land of freedom. See Public Papers of the Presidents, Ronald Reagan, Vol. 2, July 3, 1986, pp. 918–919 (1989), Remarks at the Opening Ceremonies of the Statue of Liberty Centennial Celebration in New York, New York; J. Higham, The Transformation of the Statue of Liberty, in Send These To Me 74–80 (rev. ed. 1984). C Respondent and the Court of Appeals analogize the installation of permanent monuments in a public park to the delivery of speeches and the holding of marches and demonstrations, and they thus invoke the rule that a public park is a traditional public forum for these activities. But “public forum principles . . . are out of place in the context of this case.” United States v. American Library Assn., Inc. , 539 U. S. 194 , 205 (2003). The forum doctrine has been applied in situations in which government-owned property or a government program was capable of accommodating a large number of public speakers without defeating the essential function of the land or the program. For example, a park can accommodate many speakers and, over time, many parades and demonstrations. The Combined Federal Campaign permits hundreds of groups to solicit donations from federal employees. See Cornelius , 473 U. S., at 804–805. A public university’s student activity fund can provide money for many campus activities. See Rosenberger , 515 U. S., at 825. A public university’s buildings may offer meeting space for hundreds of student groups. See Widmar v. Vincent , 454 U. S. 263 , 274–275 (1981). A school system’s internal mail facilities can support the transmission of many messages to and from teachers and school administrators. See Perry Ed. Assn. , 460 U. S., at 39, 46–47. See also Arkansas Ed. Television Comm’n v. Forbes , 523 U. S. 666 , 680–681 (1998) (noting that allowing any candidate to participate in a televised political debate would be burdensome on “logistical grounds” and “would result in less speech, not more”). By contrast, public parks can accommodate only a limited number of permanent monuments. Public parks have been used, “ ‘time out of mind, . . . for purposes of assembly, communicating thoughts between citizens, and discussing public questions,’ ” Perry Ed. Assn. , supra , at 45 (quoting Hague , 307 U. S., at 515), but “one would be hard pressed to find a ‘long tradition’ of allowing people to permanently occupy public space with any manner of monuments.” 499 F. 3d, at 1173 (Lucero, J., dissenting from denial of rehearing en banc). Speakers, no matter how long-winded, eventually come to the end of their remarks; persons distributing leaflets and carrying signs at some point tire and go home; monuments, however, endure. They monopolize the use of the land on which they stand and interfere permanently with other uses of public space. A public park, over the years, can provide a soapbox for a very large number of orators—often, for all who want to speak—but it is hard to imagine how a public park could be opened up for the installation of permanent monuments by every person or group wishing to engage in that form of expression. Respondent contends that this issue “can be dealt with through content-neutral time, place and manner restrictions, including the option of a ban on all unattended displays.” Brief for Respondent 14. On this view, when France presented the Statue of Liberty to the United States in 1884, this country had the option of either (a) declining France’s offer or (b) accepting the gift, but providing a comparable location in the harbor of New York for other statues of a similar size and nature ( e.g. , a Statue of Autocracy, if one had been offered by, say, the German Empire or Imperial Russia). While respondent and some of its amici deride the fears expressed about the consequences of the Court of Appeals holding in this case, those concerns are well founded. If government entities must maintain viewpoint neutrality in their selection of donated monuments, they must either “brace themselves for an influx of clutter” or face the pressure to remove longstanding and cherished monuments. See 499 F. 3d, at 1175 (McConnell, J., dissenting from denial of rehearing en banc). Every jurisdiction that has accepted a donated war memorial may be asked to provide equal treatment for a donated monument questioning the cause for which the veterans fought. New York City, having accepted a donated statue of one heroic dog (Balto, the sled dog who brought medicine to Nome, Alaska, during a diphtheria epidemic)[ Footnote 7 ] may be pressed to accept monuments for other dogs who are claimed to be equally worthy of commemoration. The obvious truth of the matter is that if public parks were considered to be traditional public forums for the purpose of erecting privately donated monuments, most parks would have little choice but to refuse all such donations. And where the application of forum analysis would lead almost inexorably to closing of the forum, it is obvious that forum analysis is out of place. Respondent compares the present case to Capitol Square Review and Advisory Bd. v. Pinette , 515 U. S. 753 (1995), but that case involved a very different situation—a request by a private group, the Ku Klux Klan, to erect a cross for a period of 16 days on public property that had been opened up for similar temporary displays, including a Christmas tree and a menorah. See id ., at 758. Although some public parks can accommodate and may be made generally available for temporary private displays, the same is rarely true for permanent monuments. To be sure, there are limited circumstances in which the forum doctrine might properly be applied to a permanent monument—for example, if a town created a monument on which all of its residents (or all those meeting some other criterion) could place the name of a person to be honored or some other private message. But as a general matter, forum analysis simply does not apply to the installation of permanent monuments on public property. V In sum, we hold that the City’s decision to accept certain privately donated monuments while rejecting respondent’s is best viewed as a form of government speech. As a result, the City’s decision is not subject to the Free Speech Clause, and the Court of Appeals erred in holding otherwise. We therefore reverse. It is so ordered. Footnote 1 Respondent’s brief describes the church and the Seven Aphorisms as follows: “The Summum church incorporates elements of Gnostic Christianity, teaching that spiritual knowledge is experiential and that through devotion comes revelation, which ‘modifies human perceptions, and transfigures the individual.’ See The Teachings of Summum are the Teachings of Gnostic Christianity, http://www.summum.us/philosophy/ gnosticism.shtml (visited Aug. 15, 2008). “Central to Summum religious belief and practice are the Seven Principles of Creation (the “Seven Aphorisms”). According to Summum doctrine, the Seven Aphorisms were inscribed on the original tablets handed down by God to Moses on Mount Sinai… . Because Moses believed that the Israelites were not ready to receive the Aphorisms, he shared them only with a select group of people. In the Summum Exodus account, Moses then destroyed the original tablets, traveled back to Mount Sinai, and returned with a second set of tablets con- taining the Ten Commandments. See The Aphorisms of Summum and the Ten Commandments, http://www.summum.us/philosophy/ tencommandments.shtml (visited Aug. 15, 2008).” Brief for Respondent 1–2. Footnote 2 The lyrics are as follows: “Imagine there’s no heaven It’s easy if you try No hell below us Above us only sky Imagine all the people Living for today... “Imagine there’s no countries It isn’t hard to do Nothing to kill or die for And no religion too Imagine all the people Living life in peace... “You may say I’m a dreamer But I’m not the only one I hope someday you’ll join us And the world will be as one “Imagine no possessions I wonder if you can No need for greed or hunger A brotherhood of man Imagine all the people Sharing all the world... “You may say I’m a dreamer But I’m not the only one I hope someday you’ll join us And the world will live as one.” J. Lennon, Imagine, on Imagine (Apple Records 1971). Footnote 3 See IMLA Brief 6–7. Footnote 4 The Presidio Trail: A Historical Walking Tour of Downtown Tucson, online at http://www.visittucson.org/includes/media/docs/ DowntownTour.pdf. Footnote 5 Museum collections illustrate this phenomenon. Museums display works of art that express many different sentiments, and the significance of a donated work of art to its creator or donor may differ markedly from a museum’s reasons for accepting and displaying the work. For example, a painting of a religious scene may have been commissioned and painted to express religious thoughts and feelings. Even if the painting is donated to the museum by a patron who shares those thoughts and feelings, it does not follow that the museum, by displaying the painting, intends to convey or is perceived as conveying the same “message.” Footnote 6 For example, the Vietnam Veterans Memorial Fund is a private organization that obtained funding from over 650,000 donors for the construction of the memorial itself. These donors expressed a wide range of personal sentiments in contributing money for the memorial. See, e.g. , J. Scruggs & J. Swerdlow, To Heal a Nation: The Vietnam Veterans Memorial 23–28, 159 (1985). Footnote 7 See NYC Brief 2; App. to Brief for American Catholic Lawyers Association as Amicus Curiae 1a–10. 555 U. S. ____ (2009) PLEASANT GROVE CITY V. SUMMUM 555 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-665 PLEASANT GROVE CITY, UTAH, et al., PETITIONERS v. SUMMUM on writ of certiorari to the united states court of appeals for the tenth circuit [February 25, 2009]    Justice Stevens, with whom Justice Ginsburg joins, concurring.    This case involves a property owner’s rejection of an offer to place a permanent display on its land. While I join the Court’s persuasive opinion, I think the reasons justifying the city’s refusal would have been equally valid if its acceptance of the monument, instead of being characterized as “government speech,” had merely been deemed an implicit endorsement of the donor’s message. See Capitol Square Review and Advisory Bd. v. Pinette , 515 U. S. 753 , 801–802 (1995) (Stevens, J., dissenting).    To date, our decisions relying on the recently minted government speech doctrine to uphold government action have been few and, in my view, of doubtful merit. See, e.g. , Garcetti v. Ceballos , 547 U. S. 410 (2006); Johanns v. Livestock Marketing Assn. , 544 U. S. 550 (2005); Rust v. Sullivan , 500 U. S. 173 (1991). The Court’s opinion in this case signals no expansion of that doctrine. And by joining the Court’s opinion, I do not mean to indicate agreement with our earlier decisions. Unlike other decisions relying on the government speech doctrine, our decision in this case excuses no retaliation for, or coercion of, private speech. Cf. Garcetti , 547 U. S., at 438 (Souter, J., dissenting); Rust , 500 U. S., at 212 (Blackmun, J., dissenting). Nor is it likely, given the near certainty that observers will associate permanent displays with the governmental property owner, that the government will be able to avoid political accountability for the views that it endorses or expresses through this means. Cf. Johanns , 544 U. S., at 571–572 (Souter, J., dissenting). Finally, recognizing permanent displays on public property as government speech will not give the government free license to communicate offensive or partisan messages. For even if the Free Speech Clause neither restricts nor protects government speech, government speakers are bound by the Constitution’s other proscriptions, including those supplied by the Establishment and Equal Protection Clauses. Together with the checks imposed by our democratic processes, these constitutional safeguards ensure that the effect of today’s decision will be limited. SCALIA, J., CONCURRING PLEASANT GROVE CITY V. SUMMUM 555 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-665 PLEASANT GROVE CITY, UTAH, et al., PETITIONERS v. SUMMUM on writ of certiorari to the united states court of appeals for the tenth circuit [February 25, 2009]    Justice Scalia, with whom Justice Thomas joins, concurring.    As framed and argued by the parties, this case presents a question under the Free Speech Clause of the First Amendment. I agree with the Court’s analysis of that question and join its opinion in full. But it is also obvious that from the start, the case has been litigated in the shadow of the First Amendment’s Establishment Clause: the city wary of associating itself too closely with the Ten Commandments monument displayed in the park, lest that be deemed a breach in the so-called “wall of separation between church and State,” Reynolds v. United States , 98 U. S. 145 , 164 (1879); respondent exploiting that hesitation to argue that the monument is not government speech because the city has not sufficiently “adopted” its message. Respondent menacingly observed that while the city could have formally adopted the monument as its own, that “might of course raise Establishment Clause issues.” Brief for Respondent 34, n. 11.    The city ought not fear that today’s victory has propelled it from the Free Speech Clause frying pan into the Establishment Clause fire. Contrary to respondent’s intimations, there are very good reasons to be confident that the park displays do not violate any part of the First Amendment.    In Van Orden v. Perry , 545 U. S. 677 (2005), this Court upheld against Establishment Clause challenge a virtually identical Ten Commandments monument, donated by the very same organization (the Fraternal Order of Eagles), which was displayed on the grounds surrounding the Texas State Capitol. Nothing in that decision suggested that the outcome turned on a finding that the monument was only “private” speech. To the contrary, all the Justices agreed that government speech was at issue, but the Establishment Clause argument was nonetheless rejected. For the plurality, that was because the Ten Commandments “have an undeniable historical meaning” in addition to their “religious significance,” id. , at 690 (opinion of Rehnquist, C. J.). Justice Breyer, concurring in the judgment, agreed that the monument conveyed a permissible secular message, as evidenced by its location in a park that contained multiple monuments and historical markers; by the fact that it had been donated by the Eagles “as part of that organization’s efforts to combat juvenile delinquency”; and by the length of time (40 years) for which the monument had gone unchallenged. Id. , at 701–703. See also id. , at 739–740 (Souter, J., dissenting).    Even accepting the narrowest reading of the narrowest opinion necessary to the judgment in Van Orden , there is little basis to distinguish the monument in this case: Pioneer Park includes “15 permanent displays,” ante , at 1–2; it was donated by the Eagles as part of its national effort to combat juvenile delinquency, Brief for Respondent 3; and it was erected in 1971, ibid. , which means it is approaching its (momentous!) 40th anniversary.    The city can safely exhale. Its residents and visitors can now return to enjoying Pioneer Park’s wishing well, its historic granary—and, yes, even its Ten Commandments monument—without fear that they are complicit in an establishment of religion. 555 U. S. ____ (2009) PLEASANT GROVE CITY V. SUMMUM 555 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-665 PLEASANT GROVE CITY, UTAH, et al., PETITIONERS v. SUMMUM on writ of certiorari to the united states court of appeals for the tenth circuit [February 25, 2009]    Justice Breyer, concurring. I agree with the Court and join its opinion. I do so, however, on the understanding that the “government speech” doctrine is a rule of thumb, not a rigid category. Were the City to discriminate in the selection of permanent monuments on grounds unrelated to the display’s theme, say solely on political grounds, its action might well violate the First Amendment. In my view, courts must apply categories such as “government speech,” “public forums,” “limited public forums,” and “nonpublic forums” with an eye towards their purposes—lest we turn “free speech” doctrine into a jurisprudence of labels. Cf. United States v. Kokinda , 497 U. S. 720 , 740–743 (1990) (Brennan, J., dissenting). Consequently, we must sometimes look beyond an initial categorization. And, in doing so, it helps to ask whether a government action burdens speech disproportionately in light of the action’s tendency to further a legitimate government objective. See, e.g., Ysursa v. Pocatello Ed. Assn. , ante , at 1–4 (Breyer, J., concurring in part and dissenting in part); Nixon v. Shrink Missouri Government PAC , 528 U. S. 377 , 404 (2000) (Breyer, J., concurring). Were we to do so here, we would find—for reasons that the Court sets forth—that the City’s action, while preventing Summum from erecting its monument, does not disproportionately restrict Summum’s freedom of expression. The City has not closed off its parks to speech; no one claims that the City prevents Summum’s members from engaging in speech in a form more transient than a permanent monument. Rather, the City has simply reserved some space in the park for projects designed to further other than free-speech goals. And that is perfectly proper. After all, parks do not serve speech-related interests alone. To the contrary, cities use park space to further a variety of recreational, historical, educational, aesthetic, and other civic interests. To reserve to the City the power to pick and choose among proposed monuments according to criteria reasonably related to one or more of these legitimate ends restricts Summum’s expression, but, given the impracticality of alternatives and viewed in light of the City’s legitimate needs, the restriction is not disproportionate. Analyzed either way, as “government speech” or as a proportionate restriction on Summum’s expression, the City’s action here is lawful. SOUTER, J., CONCURRING IN JUDGMENT PLEASANT GROVE CITY V. SUMMUM 555 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-665 PLEASANT GROVE CITY, UTAH, et al., PETITIONERS v. SUMMUM on writ of certiorari to the united states court of appeals for the tenth circuit [February 25, 2009]    Justice Souter, concurring in the judgment.    I agree with the Court that the Ten Commandments monument is government speech, that is, an expression of a government’s position on the moral and religious issues raised by the subject of the monument. See Board of Regents of Univ. of Wis. System v. Southworth , 529 U. S. 217 , 235 (2000) (noting government speech may “promote [government’s] own policies or . . . advance a particular idea”). And although the government should lose when the character of the speech is at issue and its governmental nature has not been made clear, see Johanns v. Livestock Marketing Assn. , 544 U. S. 550 , 577 (2005) (Souter, J., dissenting), I also agree with the Court that the city need not satisfy the particular formality urged by Summum as a condition of recognizing that the expression here falls within the public category. I have qualms, however, about accepting the position that public monuments are government speech categorically. See ante , at 8 (“Just as government-commissioned and government-financed monuments speak for the government, so do privately financed and donated monuments that the government accepts and displays to the public on government land”).    Because the government speech doctrine, as Justice Stevens notes, ante , at 1 (concurring opinion), is “recently minted,” it would do well for us to go slow in setting its bounds, which will affect existing doctrine in ways not yet explored. Even though, for example, Establishment Clause issues have been neither raised nor briefed before us, there is no doubt that this case and its government speech claim has been litigated by the parties with one eye on the Establishment Clause, see ante , at 1 (Scalia, J., concurring). The interaction between the “government speech doctrine” and Establishment Clause principles has not, however, begun to be worked out.    The case shows that it may not be easy to work out. After today’s decision, whenever a government maintains a monument it will presumably be understood to be engaging in government speech. If the monument has some religious character, the specter of violating the Establishment Clause will behoove it to take care to avoid the appearance of a flat-out establishment of religion, in the sense of the government’s adoption of the tenets expressed or symbolized. In such an instance, there will be safety in numbers, and it will be in the interest of a careful government to accept other monuments to stand nearby, to dilute the appearance of adopting whatever particular religious position the single example alone might stand for. As mementoes and testimonials pile up, however, the chatter may well make it less intuitively obvious that the government is speaking in its own right simply by maintaining the monuments.    If a case like that occurred, as suspicion grew that some of the permanent displays were not government speech at all (or at least had an equally private character associated with private donors), a further Establishment Clause prohibition would surface, the bar against preferring some religious speakers over others. See Wallace v. Jaffree , 472 U. S. 38 , 113 (1985) (Rehnquist, J., dissenting) (“The Clause was also designed to stop the Federal Government from asserting a preference for one religious denomination or sect over others”). But the government could well argue, as a development of government speech doctrine, that when it expresses its own views, it is free of the Establishment Clause’s stricture against discriminating among religious sects or groups. Under this view of the relationship between the two doctrines, it would be easy for a government to favor some private religious speakers over others by its choice of monuments to accept.    Whether that view turns out to be sound is more than I can say at this point. It is simply unclear how the relatively new category of government speech will relate to the more traditional categories of Establishment Clause analysis, and this case is not an occasion to speculate. It is an occasion, however, to try to keep the inevitable issues open, and as simple as they can be. One way to do that is to recognize that there are circumstances in which government maintenance of monuments does not look like government speech at all. Sectarian identifications on markers in Arlington Cemetery come to mind. And to recognize that is to forgo any categorical rule at this point.    To avoid relying on a per se rule to say when speech is governmental, the best approach that occurs to me is to ask whether a reasonable and fully informed observer would understand the expression to be government speech, as distinct from private speech the government chooses to oblige by allowing the monument to be placed on public land. This reasonable observer test for governmental character is of a piece with the one for spotting forbidden governmental endorsement of religion in the Establishment Clause cases. See, e.g. , County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter , 492 U. S. 573 , 630, 635–636 (1989) (O’Connor, J., concurring in part and concurring in judgment). The adoption of it would thus serve coherence within Establishment Clause law, and it would make sense of our common understanding that some monuments on public land display religious symbolism that clearly does not express a government’s chosen views.    Application of this observer test provides the reason I find the monument here to be government expression.

In Pleasant Grove City v. Summum, the Supreme Court ruled that a city's acceptance of a privately donated monument for display in a public park constitutes government speech, and therefore does not violate the Free Speech Clause of the First Amendment. The Court determined that a reasonable observer would understand the monument as conveying the government's own message, especially when considering the context of its placement in a public park with other monuments. This decision gives governments significant leeway in accepting or rejecting private monuments without triggering First Amendment concerns. However, Justice Souter's concurrence highlights potential issues with this approach, particularly regarding the Establishment Clause and religious monuments.

Free Speech

Ashcroft v. ACLU II

https://supreme.justia.com/cases/federal/us/542/656/

OPINION OF THE COURT ASHCROFT V. AMERICAN CIVIL LIBERTIES UNION 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-218 JOHN D. ASHCROFT, ATTORNEY GENERAL, PETITIONER v. AMERICAN CIVIL LIBERTIES UNION et al. on writ of certiorari to the united states court of appeals for the third circuit [June 29, 2004]    Justice Kennedy delivered the opinion of the Court.    This case presents a challenge to a statute enacted by Congress to protect minors from exposure to sexually explicit materials on the Internet, the Child Online Protection Act (COPA). 112 Stat. 2681–736, codified at 47 U. S. C. §231. We must decide whether the Court of Appeals was correct to affirm a ruling by the District Court that enforcement of COPA should be enjoined because the statute likely violates the First Amendment.    In enacting COPA, Congress gave consideration to our earlier decisions on this subject, in particular the decision in Reno v. American Civil Liberties Union , 521 U. S. 844 (1997). For that reason, “the Judiciary must proceed with caution and . . . with care before invalidating the Act.” Ashcroft v. American Civil Liberties Union , 535 U. S. 564 , 592 ( Ashcroft I ) (Kennedy, J., concurring in judgment). The imperative of according respect to the Congress, however, does not permit us to depart from well-established First Amendment principles. Instead, we must hold the Government to its constitutional burden of proof.    Content-based prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people. To guard against that threat the Constitution demands that content-based restrictions on speech be presumed invalid, R. A. V. v. St. Paul , 505 U. S. 377 , 382 (1992), and that the Government bear the burden of showing their constitutionality. United States v. Playboy Entertainment Group, Inc. , 529 U. S. 803 , 817 (2000). This is true even when Congress twice has attempted to find a constitutional means to restrict, and punish, the speech in question.    This case comes to the Court on certiorari review of an appeal from the decision of the District Court granting a preliminary injunction. The Court of Appeals reviewed the decision of the District Court for abuse of discretion. Under that standard, the Court of Appeals was correct to conclude that the District Court did not abuse its discretion in granting the preliminary injunction. The Government has failed, at this point, to rebut the plaintiffs’ contention that there are plausible less restrictive alternatives to the statute. Substantial practical considerations, furthermore, argue in favor of upholding the injunction and allowing the case to proceed to trial. For those reasons, we affirm the decision of the Court of Appeals upholding the preliminary injunction, and we remand the case so that it may be returned to the District Court for trial on the issues presented. I A    COPA is the second attempt by Congress to make the Internet safe for minors by criminalizing certain Internet speech.    The first attempt was the Communications Decency Act of 1996, Pub. L. 104–104, §502, 110 Stat. 133, 47 U. S. C. §223 (1994 ed., Supp. II). The Court held the CDA unconstitutional because it was not narrowly tailored to serve a compelling governmental interest and because less restrictive alternatives were available. Reno , supra .    In response to the Court’s decision in Reno , Congress passed COPA. COPA imposes criminal penalties of a $50,000 fine and six months in prison for the knowing posting, for “commercial purposes,” of World Wide Web content that is “harmful to minors.” §231(a)(1). Material that is "harmful to minors" is defined as: “any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that— “(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest; “(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and “(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.” §231(e)(6).    “Minors” are defined as “any person under 17 years of age.” §231(e)(7). A person acts for “commercial purposes only if such person is engaged in the business of making such communications.” “Engaged in the business,” in turn, “means that the person who makes a communication, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person’s trade or business, with the objective of earning a profit as a result of such activities (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person’s sole or principal business or source of income).” §231(e)(2).    While the statute labels all speech that falls within these definitions as criminal speech, it also provides an affirmative defense to those who employ specified means to prevent minors from gaining access to the prohibited materials on their Web site. A person may escape conviction under the statute by demonstrating that he “has restricted access by minors to material that is harmful to minors— “(A) by requiring use of a credit card, debit account, adult access code, or adult personal identification number; “(B) by accepting a digital certificate that verifies age, or “(C) by any other reasonable measures that are feasible under available technology.” §231(c)(1).    Since the passage of COPA, Congress has enacted additional laws regulating the Internet in an attempt to protect minors. For example, it has enacted a prohibition on misleading Internet domain names, 18 U. S. C. A. §2252B (Supp. 2004), in order to prevent Web site owners from disguising pornographic Web sites in a way likely to cause uninterested persons to visit them. See Brief for Petitioner 7 (giving, as an example, the Web site “whitehouse.com”). It has also passed a statute creating a “Dot Kids” second-level Internet domain, the content of which is restricted to that which is fit for minors under the age of 13. 47 U. S. C. A. §941 (Supp. 2004). B    Respondents, Internet content providers and others concerned with protecting the freedom of speech, filed suit in the United States District Court for the Eastern District of Pennsylvania. They sought a preliminary injunction against enforcement of the statute. After considering testimony from witnesses presented by both respondents and the Government, the District Court issued an order granting the preliminary injunction. The court first noted that the statute would place a burden on some protected speech. American Civil Liberties Union v. Reno , 31 F. Supp. 2d 473, 495 (1999). The court then concluded that respondents were likely to prevail on their argument that there were less restrictive alternatives to the statute: “On the record to date, it is not apparent … that [petitioner] can meet its burden to prove that COPA is the least restrictive means available to achieve the goal of restricting the access of minors” to harmful material. Id. , at 497. In particular, it noted that “[t]he record before the Court reveals that blocking or filtering technology may be at least as successful as COPA would be in restricting minors’ access to harmful material online without imposing the burden on constitutionally protected speech that COPA imposes on adult users or Web site operators.” Ibid .    The Government appealed the District Court’s decision to the United States Court of Appeals for the Third Circuit. The Court of Appeals affirmed the preliminary injunction, but on a different ground. 217 F. 3d 162, 166 (2000). The court concluded that the “community standards” language in COPA by itself rendered the statute unconstitutionally overbroad. Id. , at 166. We granted certiorari and reversed, holding that the community-standards language did not, standing alone, make the statute unconstitutionally overbroad. Ashcroft I , 535 U. S., at 585. We emphasized, however, that our decision was limited to that narrow issue. Ibid . We remanded the case to the Court of Appeals to reconsider whether the District Court had been correct to grant the preliminary injunction. On remand, the Court of Appeals again affirmed the District Court. 322 F. 3d 240 (2003). The Court of Appeals concluded that the statute was not narrowly tailored to serve a compelling Government interest, was overbroad, and was not the least restrictive means available for the Government to serve the interest of preventing minors from using the Internet to gain access to materials that are harmful to them. Id. , at 266–271. The Government once again sought review from this Court, and we again granted certiorari. 540 U. S. 944 (2003). II A    “This Court, like other appellate courts, has always applied the abuse of discretion standard on the review of a preliminary injunction.” Walters v . National Assn. of Radiation Survivors , 473 U. S. 305 , 336 (1985) (O’Connor, J., concurring) (internal quotation marks omitted). “The grant of appellate jurisdiction under [28 U. S. C.] §1252 does not give the Court license to depart from established standards of appellate review.” Ibid. If the underlying constitutional question is close, therefore, we should uphold the injunction and remand for trial on the merits. Applying this mode of inquiry, we agree with the Court of Appeals that the District Court did not abuse its discretion in entering the preliminary injunction. Our reasoning in support of this conclusion, however, is based on a narrower, more specific grounds than the rationale the Court of Appeals adopted. The Court of Appeals, in its opinion affirming the decision of the District Court, construed a number of terms in the statute, and held that COPA, so construed, was unconstitutional. None of those constructions of statutory terminology, however, were relied on by or necessary to the conclusions of the District Court. Instead, the District Court concluded only that the statute was likely to burden some speech that is protected for adults, 31 F. Supp.2d, at 495, which petitioner does not dispute. As to the definitional disputes, the District Court concluded only that respondents’ interpretation was “not unreasonable,” and relied on their interpretation only to conclude that respondents had standing to challenge the statute, id. , at 481, which, again, petitioner does not dispute. Because we affirm the District Court’s decision to grant the preliminary injunction for the reasons relied on by the District Court, we decline to consider the correctness of the other arguments relied on by the Court of Appeals.    The District Court, in deciding to grant the preliminary injunction, concentrated primarily on the argument that there are plausible, less restrictive alternatives to COPA. A statute that “effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another … is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.” Reno , 521 U. S., at 874. When plaintiffs challenge a content-based speech restriction, the burden is on the Government to prove that the proposed alternatives will not be as effective as the challenged statute. Id. , at 874.    In considering this question, a court assumes that certain protected speech may be regulated, and then asks what is the least restrictive alternative that can be used to achieve that goal. The purpose of the test is not to consider whether the challenged restriction has some effect in achieving Congress’ goal, regardless of the restriction it imposes. The purpose of the test is to ensure that speech is restricted no further than necessary to achieve the goal, for it is important to assure that legitimate speech is not chilled or punished. For that reason, the test does not begin with the status quo of existing regulations, then ask whether the challenged restriction has some additional ability to achieve Congress’ legitimate interest. Any restriction on speech could be justified under that analysis. Instead, the court should ask whether the challenged regulation is the least restrictive means among available, effective alternatives.    In deciding whether to grant a preliminary injunction stage, a district court must consider whether the plaintiffs have demonstrated that they are likely to prevail on the merits. See, e.g. , Doran v. Salem Inn , Inc. , 422 U. S. 922 , 931 (1975). (The court also considers whether the plaintiff has shown irreparable injury, see id. , at 931, but the parties in this case do not contest the correctness of the District Court’s conclusion that a likelihood of irreparable injury had been established. See 31 F. Supp. 2d, at 497–498). As the Government bears the burden of proof on the ultimate question of COPA’s constitutionality, respondents must be deemed likely to prevail unless the Government has shown that respondents’ proposed less restrictive alternatives are less effective than COPA. Applying that analysis, the District Court concluded that respondents were likely to prevail. Id. , at 496–497. That conclusion was not an abuse of discretion, because on this record there are a number of plausible, less restrictive alternatives to the statute.    The primary alternative considered by the District Court was blocking and filtering software. Blocking and filtering software is an alternative that is less restrictive than COPA, and, in addition, likely more effective as a means of restricting children’s access to materials harmful to them. The District Court, in granting the preliminary injunction, did so primarily because the plaintiffs had proposed that filters are a less restrictive alternative to COPA and the Government had not shown it would be likely to disprove the plaintiffs’ contention at trial. Ibid .    Filters are less restrictive than COPA. They impose selective restrictions on speech at the receiving end, not universal restrictions at the source. Under a filtering regime, adults without children may gain access to speech they have a right to see without having to identify themselves or provide their credit card information. Even adults with children may obtain access to the same speech on the same terms simply by turning off the filter on their home computers. Above all, promoting the use of filters does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished. All of these things are true, moreover, regardless of how broadly or narrowly the definitions in COPA are construed.    Filters also may well be more effective than COPA. First, a filter can prevent minors from seeing all pornography, not just pornography posted to the Web from America. The District Court noted in its factfindings that one witness estimated that 40% of harmful-to-minors content comes from overseas. Id. , at 484. COPA does not prevent minors from having access to those foreign harmful materials. That alone makes it possible that filtering software might be more effective in serving Congress’ goals. Effectiveness is likely to diminish even further if COPA is upheld, because the providers of the materials that would be covered by the statute simply can move their operations overseas. It is not an answer to say that COPA reaches some amount of materials that are harmful to minors; the question is whether it would reach more of them than less restrictive alternatives. In addition, the District Court found that verification systems may be subject to evasion and circumvention, for example by minors who have their own credit cards. See id. , at 484, 496–497. Finally, filters also may be more effective because they can be applied to all forms of Internet communication, including e-mail, not just communications available via the World Wide Web.    That filtering software may well be more effective than COPA is confirmed by the findings of the Commission on Child Online Protection, a blue-ribbon commission created by Congress in COPA itself. Congress directed the Commission to evaluate the relative merits of different means of restricting minors’ ability to gain access to harmful materials on the Internet. Note following 47 U. S. C. §231. It unambiguously found that filters are more effective than age-verification requirements. See Commission on Child Online Protection (COPA), Report to Congress, at 19–21, 23–25, 27 (Oct. 20, 2000) (assigning a score for “Effectiveness” of 7.4 for server-based filters and 6.5 for client-based filters, as compared to 5.9 for independent adult-id verification, and 5.5 for credit card verification). Thus, not only has the Government failed to carry its burden of showing the District Court that the proposed alternative is less effective, but also a Government Commission appointed to consider the question has concluded just the opposite. That finding supports our conclusion that the District Court did not abuse its discretion in enjoining the statute.    Filtering software, of course, is not a perfect solution to the problem of children gaining access to harmful-to-minors materials. It may block some materials that are not harmful to minors and fail to catch some that are. See 31 F. Supp. 2d, at 492. Whatever the deficiencies of filters, however, the Government failed to introduce specific evidence proving that existing technologies are less effective than the restrictions in COPA. The District Court made a specific factfinding that “[n]o evidence was presented to the Court as to the percentage of time that blocking and filtering technology is over- or underinclusive.” Ibid . In the absence of a showing as to the relative effectiveness of COPA and the alternatives proposed by respondents, it was not an abuse of discretion for the District Court to grant the preliminary injunction. The Government’s burden is not merely to show that a proposed less restrictive alternative has some flaws; its burden is to show that it is less effective. Reno , 521 U. S., at 874. It is not enough for the Government to show that COPA has some effect. Nor do respondents bear a burden to introduce, or offer to introduce, evidence that their proposed alternatives are more effective. The Government has the burden to show they are less so. The Government having failed to carry its burden, it was not an abuse of discretion for the District Court to grant the preliminary injunction.    One argument to the contrary is worth mentioning—the argument that filtering software is not an available alternative because Congress may not require it to be used. That argument carries little weight, because Congress undoubtedly may act to encourage the use of filters. We have held that Congress can give strong incentives to schools and libraries to use them. United States v. American Library Assn., Inc , 539 U.S. 194 (2003). It could also take steps to promote their development by industry, and their use by parents. It is incorrect, for that reason, to say that filters are part of the current regulatory status quo. The need for parental cooperation does not automatically disqualify a proposed less restrictive alternative. Playboy Entertainment Group , 529 U. S., at 824. (“A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act ” ). In enacting COPA, Congress said its goal was to prevent the “widespread availability of the Internet” from providing “opportunities for minors to access materials through the World Wide Web in a manner that can frustrate parental supervision or control.” Congressional Findings, note following 47 U. S. C. §231 (quoting Pub. L. 105–277, Tit. XIV, §1402(1), 112 Stat. 2681–736). COPA presumes that parents lack the ability, not the will, to monitor what their children see. By enacting programs to promote use of filtering software, Congress could give parents that ability without subjecting protected speech to severe penalties.    The closest precedent on the general point is our decision in Playboy Entertainment Group . Playboy Entertainment Group , like this case, involved a content-based restriction designed to protect minors from viewing harmful materials. The choice was between a blanket speech restriction and a more specific technological solution that was available to parents who chose to implement it. 529 U. S., at 825. Absent a showing that the proposed less restrictive alternative would not be as effective, we concluded, the more restrictive option preferred by Congress could not survive strict scrutiny. Id. , at 826 (reversing because “[t]he record is silent as to the comparative effectiveness of the two alternatives”). In the instant case, too, the Government has failed to show, at this point, that the proposed less restrictive alternative will be less effective. The reasoning of Playboy Entertainment Group , and the holdings and force of our precedents require us to affirm the preliminary injunction. To do otherwise would be to do less than the First Amendment commands. “The starch in our constitutional standards cannot be sacrificed to accommodate the enforcement choices of the Government.” Id., at 830 (Thomas, J., concurring). B     There are also important practical reasons to let the injunction stand pending a full trial on the merits. First, the potential harms from reversing the injunction outweigh those of leaving it in place by mistake. Where a prosecution is a likely possibility, yet only an affirmative defense is available, speakers may self-censor rather than risk the perils of trial. There is a potential for extraordinary harm and a serious chill upon protected speech. Cf. id., at 817 (“Error in marking that line exacts an extraordinary cost”). The harm done from letting the injunction stand pending a trial on the merits, in contrast, will not be extensive. No prosecutions have yet been undertaken under the law, so none will be disrupted if the injunction stands. Further, if the injunction is upheld, the Government in the interim can enforce obscenity laws already on the books.     Second, there are substantial factual disputes remaining in the case. As mentioned above, there is a serious gap in the evidence as to the effectiveness of filtering software. See supra , at 9. For us to assume, without proof, that filters are less effective than COPA would usurp the District Court’s factfinding role. By allowing the preliminary injunction to stand and remanding for trial, we require the Government to shoulder its full constitutional burden of proof respecting the less restrictive alternative argument, rather than excuse it from doing so.    Third, and on a related point, the factual record does not reflect current technological reality—a serious flaw in any case involving the Internet. The technology of the Internet evolves at a rapid pace. Yet the factfindings of the District Court were entered in February 1999, over five years ago. Since then, certain facts about the Internet are known to have changed. Compare, e.g., 31 F. Supp. 2d, at 481 (36.7 million Internet hosts as of July 1998) with Internet Systems Consortium, Internet Domain Survey, Jan. 2004, http://www.isc.org/index.pl?/ops/ds (as visited June 22, 2004, and available in the Clerk of Court’s case file) (233.1 million hosts as of Jan. 2004). It is reasonable to assume that other technological developments important to the First Amendment analysis have also occurred during that time. More and better filtering alternatives may exist than when the District Court entered its findings. Indeed, we know that after the District Court entered its factfindings, a congressionally appointed commission issued a report that found that filters are more effective than verification screens. See supra , at 8.    Delay between the time that a district court makes factfindings and the time that a case reaches this Court is inevitable, with the necessary consequence that there will be some discrepancy between the facts as found and the facts at the time the appellate court takes up the question. See, e.g ., Benjamin, Stepping into the Same River Twice: Rapidly Changing Facts and the Appellate Process, 78 Texas L. Rev. 269, 290–296 (1999) (noting the problems presented for appellate courts by changing facts in the context of cases involving the Internet, and giving as a specific example the Court’s decision in Reno , 521 U. S. 844 ). We do not mean, therefore, to set up an insuperable obstacle to fair review. Here, however, the usual gap has doubled because the case has been through the Court of Appeals twice. The additional two years might make a difference. By affirming the preliminary injunction and remanding for trial, we allow the parties to update and supplement the factual record to reflect current technological realities.    Remand will also permit the District Court to take account of a changed legal landscape. Since the District Court made its factfindings, Congress has passed at least two further statutes that might qualify as less restrictive alternatives to COPA—a prohibition on misleading domain names, and a statute creating a minors-safe “Dot Kids” domain. See supra , at 4. Remanding for trial will allow the District Court to take into account those additional potential alternatives.    On a final point, it is important to note that this opinion does not hold that Congress is incapable of enacting any regulation of the Internet designed to prevent minors from gaining access to harmful materials. The parties, because of the conclusion of the Court of Appeals that the statute’s definitions rendered it unconstitutional, did not devote their attention to the question whether further evidence might be introduced on the relative restrictiveness and effectiveness of alternatives to the statute. On remand, however, the parties will be able to introduce further evidence on this point. This opinion does not foreclose the District Court from concluding, upon a proper showing by the Government that meets the Government’s constitutional burden as defined in this opinion, that COPA is the least restrictive alternative available to accomplish Congress’ goal. * * *    On this record, the Government has not shown that the less restrictive alternatives proposed by respondents should be disregarded. Those alternatives, indeed, may be more effective than the provisions of COPA. The District Court did not abuse its discretion when it entered the preliminary injunction. The judgment of the Court of Appeals is affirmed, and the case is remanded for proceedings consistent with this opinion. It is so ordered. STEVENS, J., CONCURRING ASHCROFT V. AMERICAN CIVIL LIBERTIES UNION 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-218 JOHN D. ASHCROFT, ATTORNEY GENERAL, PETITIONER v. AMERICAN CIVIL LIBERTIES UNION et al. on writ of certiorari to the united states court of appeals for the third circuit [June 29, 2004]    Justice Stevens, with whom Justice Ginsburg joins, concurring.    When it first reviewed the constitutionality of the Child Online Protection Act (COPA), the Court of Appeals held that the statute’s use of “contemporary community standards” to identify materials that are “harmful to minors” was a serious, and likely fatal, defect. American Civil Liberties Union v. Reno , 217 F. 3d 162 (CA3 2000). I have already explained at some length why I agree with that holding. See Ashcroft v. American Civil Liberties Union, 535 U. S. 564 , 603 (2002) (dissenting opinion) (“In the context of the Internet, … community standards become a sword, rather than a shield. If a prurient appeal is offensive in a puritan village, it may be a crime to post it on the World Wide Web”). I continue to believe that the Government may not penalize speakers for making available to the general World Wide Web audience that which the least tolerant communities in America deem unfit for their children’s consumption, cf. Reno v. American Civil Liberties Union, 521 U. S. 844 , 878 (1997), and consider that principle a sufficient basis for deciding this case.    But COPA’s use of community standards is not the statute’s only constitutional defect. Today’s decision points to another: that, as far as the record reveals, encouraging deployment of user-based controls, such as filtering software, would serve Congress’ interest in protecting minors from sexually explicit Internet materials as well or better than attempting to regulate the vast content of the World Wide Web at its source, and at a far less significant cost to First Amendment values.    In registering my agreement with the Court’s less-restrictive-means analysis, I wish to underscore just how restrictive COPA is. COPA is a content-based restraint on the dissemination of constitutionally protected speech. It enforces its prohibitions by way of the criminal law, threatening noncompliant Web speakers with a fine of as much as $50,000, and a term of imprisonment as long as six months, for each offense. 47 U. S. C. §231(a). Speakers who “intentionally” violate COPA are punishable by a fine of up to $50,000 for each day of the violation. Ibid. And because implementation of the various adult-verification mechanisms described in the statute provides only an affirmative defense, §231(c)(1), even full compliance with COPA cannot guarantee freedom from prosecution. Speakers who dutifully place their content behind age screens may nevertheless find themselves in court, forced to prove the lawfulness of their speech on pain of criminal conviction. Cf. Ashcroft v. Free Speech Coalition, 535 U. S. 234 , 255 (2002).    Criminal prosecutions are, in my view, an inappropriate means to regulate the universe of materials classified as “obscene,” since “the line between communications which ‘offend’ and those which do not is too blurred to identify criminal conduct.” Smith v. United States, 431 U. S. 291 , 316 (1977) (Stevens, J., dissenting). See also Marks v. United States, 430 U. S. 188 , 198 (1977) (Stevens, J., concurring in part and dissenting in part). COPA’s creation of a new category of criminally punishable speech that is “harmful to minors” only compounds the problem. It may be, as Justice Breyer contends, that the statute’s coverage extends “only slightly” beyond the legally obscene, and therefore intrudes little into the realm of protected expression. Post, at 4 (dissenting opinion). But even with Justice Breyer’s guidance, I find it impossible to identify just how far past the already ill-defined territory of “obscenity” he thinks the statute extends. Attaching criminal sanctions to a mistaken judgment about the contours of the novel and nebulous category of “harmful to minors” speech clearly imposes a heavy burden on the exercise of First Amendment freedoms.    COPA’s criminal penalties are, moreover, strong medicine for the ill that the statute seeks to remedy. To be sure, our cases have recognized a compelling interest in protecting minors from exposure to sexually explicit materials. See, e.g., Ginsberg v. New York, 390 U. S. 629 , 640 (1968). As a parent, grandparent, and great-grandparent, I endorse that goal without reservation. As a judge, however, I must confess to a growing sense of unease when the interest in protecting children from prurient materials is invoked as a justification for using criminal regulation of speech as a substitute for, or a simple backup to, adult oversight of children’s viewing habits.    In view of the gravity of the burdens COPA imposes on Web speech, the possibility that Congress might have accomplished the goal of protecting children from harmful materials by other, less drastic means is a matter to be considered with special care. With that observation, I join the opinion of the Court. 542 U. S. ____ (2004) ASHCROFT V. AMERICAN CIVIL LIBERTIES UNION 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-218 JOHN D. ASHCROFT, ATTORNEY GENERAL, PETITIONER v. AMERICAN CIVIL LIBERTIES UNION et al. on writ of certiorari to the united states court of appeals for the third circuit [June 29, 2004]    Justice Scalia, dissenting.    I agree with Justice Breyer’s conclusion that the Child Online Protection Act (COPA), 47 U. S. C. §231, is constitutional. See post , at 14 (dissenting opinion). Both the Court and Justice Breyer err, however, in subjecting COPA to strict scrutiny. Nothing in the First Amendment entitles the type of material covered by COPA to that exacting standard of review. “We have recognized that commercial entities which engage in ‘the sordid business of pandering’ by ‘deliberately emphasiz[ing] the sexually provocative aspects of [their nonobscene products], in order to catch the salaciously disposed,’ engage in constitutionally unprotected behavior.” United States v. Playboy Entertainment Group, Inc., 529 U. S. 803 , 831 (2000) (Scalia, J., dissenting) (quoting Ginzburg v. United States, 383 U. S. 463 , 467, 472 (1966)). See also Los Angeles v. Alameda Books, Inc., 535 U. S. 425 , 443–444 (2002) (Scalia, J., concurring); FW/PBS, Inc. v. Dallas, 493 U. S. 215 , 256–261 (1990) (Scalia, J., concurring in part and dissenting in part).    There is no doubt that the commercial pornography covered by COPA fits this description. The statute applies only to a person who, “as a regular course of such person’s trade or business, with the objective of earning a profit,” 47 U. S. C. §231(e)(2)(B), and “with knowledge of the character of the material,” §231(a)(1), communicates material that depicts certain specified sexual acts and that “is designed to appeal to, or is designed to pander to, the prurient interest,” §231(e)(6)(A). Since this business could, consistent with the First Amendment, be banned entirely, COPA’s lesser restrictions raise no constitutional concern. BREYER, J., DISSENTING ASHCROFT V. AMERICAN CIVIL LIBERTIES UNION 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 03-218 JOHN D. ASHCROFT, ATTORNEY GENERAL, PETITIONER v. AMERICAN CIVIL LIBERTIES UNION et al. on writ of certiorari to the united states court of appeals for the third circuit [June 29, 2004]    Justice Breyer, with whom The Chief Justice and Justice O’Connor join, dissenting.    The Child Online Protection Act (Act), 47 U. S. C. §231, seeks to protect children from exposure to commercial pornography placed on the Internet. It does so by requiring commercial providers to place pornographic material behind Internet “screens” readily accessible to adults who produce age verification. The Court recognizes that we should “ ‘proceed … with care before invalidating the Act,’ ” while pointing out that the “imperative of according respect to the Congress … does not permit us to depart from well-established First Amendment principles.” Ante, at 1. I agree with these generalities. Like the Court, I would subject the Act to “the most exacting scrutiny,” Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 , 642 (1994), requiring the Government to show that any restriction of nonobscene expression is “narrowly drawn” to further a “compelling interest” and that the restriction amounts to the “least restrictive means” available to further that interest, Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 , 126 (1989). See also Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727 , 755–756 (1996).    Nonetheless, my examination of (1) the burdens the Act imposes on protected expression, (2) the Act’s ability to further a compelling interest, and (3) the proposed “less restrictive alternatives” convinces me that the Court is wrong. I cannot accept its conclusion that Congress could have accomplished its statutory objective—protecting children from commercial pornography on the Internet—in other, less restrictive ways. I     Although the Court rests its conclusion upon the existence of less restrictive alternatives, I must first examine the burdens that the Act imposes upon protected speech. That is because the term “less restrictive alternative” is a comparative term. An “alternative” is “less restrictive” only if it will work less First Amendment harm than the statute itself, while at the same time similarly furthering the “compelling” interest that prompted Congress to enact the statute. Unlike the majority, I do not see how it is possible to make this comparative determination without examining both the extent to which the Act regulates protected expression and the nature of the burdens it imposes on that expression. That examination suggests that the Act, properly interpreted, imposes a burden on protected speech that is no more than modest. A    The Act’s definitions limit the material it regulates to material that does not enjoy First Amendment protection, namely legally obscene material, and very little more. A comparison of this Court’s definition of unprotected, “legally obscene,” material with the Act’s definitions makes this clear.    Material is legally obscene if “(a) . . . ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest . . . ; (b) . . . the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) . . . the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Miller v. California, 413 U. S. 15 , 24 (1973). The present statute defines the material that it regulates as material that meets all of the following criteria: “(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors , [that the material] is designed to appeal to, or is designed to pander to, the prurient interest; “(B) [the material] depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and “(C) [the material] taken as a whole, lacks serious literary, artistic, political, or scientific value for minors .” 47 U. S. C. §231(e)(6) (emphasis added).    Both definitions define the relevant material through use of the critical terms “prurient interest” and “lacks serious literary, artistic, political, or scientific value.” Insofar as material appeals to, or panders to, “the prurient interest,” it simply seeks a sexual response. Insofar as “patently offensive” material with “no serious value” simply seeks that response, it does not seek to educate, it does not seek to elucidate views about sex, it is not artistic, and it is not literary. Compare, e.g., Erznoznik v. Jacksonville, 422 U. S. 205 , 213 (1975) (invalidating an ordinance regulating nudity in films, where the ban was not confined to “sexually explicit nudity” or otherwise limited), with Ginzburg v. United States, 383 U. S. 463 , 471 (1966) (finding unprotected material that was “created, represented, and sold solely as a claimed instrument of the sexual stimulation it would bring”). That is why this Court, in Miller, held that the First Amendment did not protect material that fit its definition.    The only significant difference between the present statute and Miller ’s definition consists of the addition of the words “with respect to minors,” §231(e)(6)(A), and “for minors,” §231(e)(6)(C). But the addition of these words to a definition that would otherwise cover only obscenity expands the statute’s scope only slightly. That is because the material in question (while potentially harmful to young children) must, first, appeal to the “prurient interest” of, i.e., seek a sexual response from, some group of adolescents or postadolescents (since young children normally do not so respond). And material that appeals to the “prurient interest[s]” of some group of adolescents or postadolescents will almost inevitably appeal to the “prurient interest[s]” of some group of adults as well.    The “lack of serious value” requirement narrows the statute yet further—despite the presence of the qualification “for minors.” That is because one cannot easily imagine material that has serious literary, artistic, political, or scientific value for a significant group of adults, but lacks such value for any significant group of minors. Thus, the statute, read literally, insofar as it extends beyond the legally obscene, could reach only borderline cases. And to take the words of the statute literally is consistent with Congress’ avowed objective in enacting this law; namely, putting material produced by professional pornographers behind screens that will verify the age of the viewer. See S. Rep. No. 105–225, p. 3 (1998) (hereinafter S. Rep.) (“The bill seeks to restrict access to commercial pornography on the Web by requiring those engaged in the business of the commercial distribution of material that is harmful to minors to take certain prescribed steps to restrict access to such material by minors …”); H. R. Rep. No. 105–775, pp. 5, 14 (1998) (hereinafter H. R. Rep.) (explaining that the bill is aimed at the sale of pornographic materials and provides a defense for the “commercial purveyors of pornography” that the bill seeks to regulate).    These limitations on the statute’s scope answer many of the concerns raised by those who attack its constitutionality. Respondents fear prosecution for the Internet posting of material that does not fall within the stat- ute’s ambit as limited by the “prurient interest” and “no serious value” requirements; for example: an essay about a young man’s experience with masturbation and sex- ual shame; “a serious discussion about birth control practices, homosexuality, . . . or the consequences of prison rape”; an account by a 15-year-old, written for therapeutic purposes, of being raped when she was 13; a guide to self-examination for testicular cancer; a graphic illustration of how to use a condom; or any of the other postings of modern literary or artistic works or discus- sions of sexual identity, homosexuality, sexually trans- mitted diseases, sex education, or safe sex, let alone Aldous Huxley’s Brave New World, J. D. Salinger’s Catcher in the Rye, or, as the complaint would have it, “Ken Starr’s report on the Clinton-Lewinsky scan- dal.” See G. Dillard, Shame on Me, Lodging 609–612; Reno v. American Civil Liberties Union, 521 U. S. 844 , 871 (1997); Brief for Respondents 29 (citing Lodging 732– 736); Brief for American Society of Journalists and Authors et al. as Amici Curiae 8, and n. 7 (referring to a guide on the medical advice site www.afraidtoask.com); 322 F. 3d 240, 268 (CA3 2003) (citing Safer Sex Institute, safersex.org/condoms/how.to.use); Complaint ¶ ;1, Lodging 40–41 (“a Mapplethorpe photograph,” referring to the work of controversial artist Robert Mapplethorpe); Id., at 667– 669 (Pl. Exh. 80, PlanetOut Youth Message Boards (Internet discussion board for gay teens)); declaration of Adam K. Glickman, president and CEO, Addazi, Inc. d/b/a Condomania, Supp. Lodging of Petitioner 4–10 (describing how Web site has been used for health education); declaration of Roberta Spyer, president and publisher, OBGYN.net, id., at 15–16 (describing Web site as resource for obstetrics, gynecology, and women’s health issues); Brief for Volunteer Lawyers for the Arts et al. as Amici Curiae 15 (listing works of literature removed from some schools); Complaint ¶ ;1, Lodging 40–41.    These materials are not both (1) “designed to appeal to, or . . . pander to, the prurient interest” of significant groups of minors and (2) lacking in “serious literary, artistic, political, or scientific value” for significant groups of minors. §§231(e)(6)(A), (C). Thus, they fall outside the statute’s definition of the material that it restricts, a fact the Government acknowledged at oral argument. Tr. of Oral Arg. 50–51.    I have found nothing elsewhere in the statute’s language that broadens its scope. Other qualifying phrases, such as “taking the material as a whole,” §§231(e)(6)(A), (C), and “for commercial purposes,” §231(a)(1), limit the statute’s scope still more, requiring, for example, that individual images be considered in context. See Roth v. United States, 354 U. S. 476 , 490 (1957). In sum, the Act’s definitions limit the statute’s scope to commercial pornography. It affects unprotected obscene material. Given the inevitable uncertainty about how to characterize close-to-obscene material, it could apply to (or chill the production of) a limited class of borderline material that courts might ultimately find is protected. But the examples I have just given fall outside that class. B    The Act does not censor the material it covers. Rather, it requires providers of the “harmful to minors” material to restrict minors’ access to it by verifying age. They can do so by inserting screens that verify age using a credit card, adult personal identification number, or other similar technology. See §231(c)(1). In this way, the Act requires creation of an internet screen that minors, but not adults, will find difficult to bypass.    I recognize that the screening requirement imposes some burden on adults who seek access to the regulated material, as well as on its providers. The cost is, in part, monetary. The parties agreed that a Web site could store card numbers or passwords at between 15 and 20 cents per number. American Civil Liberties Union v. Reno , 31 F. Supp. 2d 473, 488–489, ¶ ;¶ ;45–47 (ED Pa. 1999). And verification services provide free verification to Web site operators, while charging users less than $20 per year. Id., at 489–490, ¶ ;¶ ;48–53. According to the trade association for the commercial pornographers who are the statute’s target, use of such verification procedures is “standard practice” in their online operations. See S. Rep., at 7; Legislative Proposals to Protect Children from Inappropriate Materials on the Internet: Hearing on H. R. 3783 et al. before the House Subcommittee on Telecommunications, Trade and Consumer Protection of the House Committee on Commerce, 105th Cong., 2d Sess., 46, 48 (1998) (prepared statement of Jeffrey J. Douglas, Executive Director and Chairman, Free Speech Coalition (calling the proposed child-protecting mechanisms “effective and appropriate”)).    In addition to the monetary cost, and despite strict requirements that identifying information be kept confidential, see 47 U. S. C. §§231(d)(1), 501, the identification requirements inherent in age-screening may lead some users to fear embarrassment. See 31 F. Supp. 2d, at 495. Both monetary costs and potential embarrassment can deter potential viewers and, in that sense, the statute’s requirements may restrict access to a site. But this Court has held that in the context of congressional efforts to protect children, restrictions of this kind do not automatically violate the Constitution. And the Court has approved their use. See, e.g., United States v. American Library Assn., Inc., 539 U. S. 194 , 209 (2003) (plurality opinion) (“[T]he Constitution does not guarantee the right to acquire information at a public library without any risk of embarrassment”). Cf. Reno, 521 U. S., at 890 (O’Connor, J., concurring in judgment in part and dissenting in part) (calling the age-verification requirement similar to “a bouncer [who] checks a person’s driver’s license before admitting him to a nightclub”).    In sum, the Act at most imposes a modest additional burden on adult access to legally obscene material, perhaps imposing a similar burden on access to some protected borderline obscene material as well. II    I turn next to the question of “compelling interest,” that of protecting minors from exposure to commercial pornography. No one denies that such an interest is “compelling.” See Denver Area Ed. Telecommunications Consortium, Inc., 518 U. S., at 743 (opinion of Breyer, J.) (interest in protecting minors is “compelling”); Sable Communications , 492 U. S., at 126 (same); Ginsberg v. New York, 390 U. S. 629 , 639–640 (1968). Rather, the question here is whether the Act, given its restrictions on adult access, significantly advances that interest. In other words, is the game worth the candle?    The majority argues that it is not, because of the existence of “blocking and filtering software.” Ante, at 8–12. The majority refers to the presence of that software as a “less restrictive alternative.” But that is a misnomer—a misnomer that may lead the reader to believe that all we need do is look to see if the blocking and filtering software is less restrictive; and to believe that, because in one sense it is (one can turn off the software), that is the end of the constitutional matter.    But such reasoning has no place here. Conceptually speaking, the presence of filtering software is not an alternative legislative approach to the problem of protecting children from exposure to commercial pornography. Rather, it is part of the status quo, i.e., the backdrop against which Congress enacted the present statute. It is always true, by definition, that the status quo is less restrictive than a new regulatory law. It is always less restrictive to do nothing than to do something . But “doing nothing” does not address the problem Congress sought to address—namely that, despite the availability of filtering software, children were still being exposed to harmful material on the Internet.    Thus, the relevant constitutional question is not the question the Court asks: Would it be less restrictive to do nothing? Of course it would be. Rather, the relevant question posits a comparison of (a) a status quo that includes filtering software with (b) a change in that status quo that adds to it an age-verification screen requirement. Given the existence of filtering software, does the problem Congress identified remain significant? Does the Act help to address it? These are questions about the relation of the Act to the compelling interest. Does the Act, compared to the status quo, significantly advance the ball? (An affirmative answer to these questions will not justify “[a]ny restriction on speech,” as the Court claims, ante , at 8, for a final answer in respect to constitutionality must take account of burdens and alternatives as well.)    The answers to these intermediate questions are clear: Filtering software, as presently available, does not solve the “child protection” problem. It suffers from four serious inadequacies that prompted Congress to pass legislation instead of relying on its voluntary use. First, its filtering is faulty, allowing some pornographic material to pass through without hindrance. Just last year, in American Library Assn. , Justice Stevens described “fundamental defects in the filtering software that is now available or that will be available in the foreseeable future.” 539 U. S., at 221 (dissenting opinion). He pointed to the problem of underblocking: “Because the software relies on key words or phrases to block undesirable sites, it does not have the capacity to exclude a precisely defined category of images.” Ibid. That is to say, in the absence of words, the software alone cannot distinguish between the most obscene pictorial image and the Venus de Milo. No Member of this Court disagreed.    Second, filtering software costs money. Not every family has the $40 or so necessary to install it. See 31 F. Supp. 2d, at 492, ¶ ;65. By way of contrast, age screening costs less. See supra, at 7 (citing costs of up to 20 cents per password or $20 per user for an identification number).    Third, filtering software depends upon parents willing to decide where their children will surf the Web and able to enforce that decision. As to millions of American families, that is not a reasonable possibility. More than 28 million school age children have both parents or their sole parent in the work force, at least 5 million children are left alone at home without supervision each week, and many of those children will spend afternoons and evenings with friends who may well have access to computers and more lenient parents. See United States v. Playboy Entertainment Group, Inc., 529 U. S. 803 , 842 (2000) (Breyer, J., dissenting).    Fourth, software blocking lacks precision, with the result that those who wish to use it to screen out pornography find that it blocks a great deal of material that is valuable. As Justice Stevens pointed out, “the software’s reliance on words to identify undesirable sites necessarily results in the blocking of thousands of pages that contain content that is completely innocuous for both adults and minors, and that no rational person could conclude matches the filtering companies’ category definitions, such as pornography or sex.” American Library Assn., supra, at 222 (internal quotation marks and citations omitted). Indeed, the American Civil Liberties Union (ACLU), one of the respondents here, told Congress that filtering software “block[s] out valuable and protected information, such as information about the Quaker religion, and web sites including those of the American Association of University Women, the AIDS Quilt, the Town Hall Political Site (run by the Family Resource Center, Christian Coalition and other conservative groups).” Hearing on Internet Indecency before the Senate Committee on Commerce, Science, and Transportation, 105th Cong., 2d Sess., 64 (1998). The software “is simply incapable of discerning between constitutionally protected and unprotected speech.” Id., at 65. It “inappropriately blocks valuable, protected speech, and does not effectively block the sites [it is] intended to block.” Id., at 66 (citing reports documenting overblocking).    Nothing in the District Court record suggests the contrary. No respondent has offered to produce evidence at trial to the contrary. No party has suggested, for example, that technology allowing filters to interpret and discern among images has suddenly become, or is about to become, widely available. Indeed, the Court concedes that “[f]iltering software, of course, is not a perfect solution to the problem.” Ante, at 10.    In sum, a “filtering software status quo” means filtering that underblocks, imposes a cost upon each family that uses it, fails to screen outside the home, and lacks precision. Thus, Congress could reasonably conclude that a system that relies entirely upon the use of such software is not an effective system. And a law that adds to that system an age-verification screen requirement significantly increases the system’s efficacy. That is to say, at a modest additional cost to those adults who wish to obtain access to a screened program, that law will bring about better, more precise blocking, both inside and outside the home.    The Court’s response—that 40% of all pornographic material may be of foreign origin—is beside the point. Ante, at 9 (citing the District Court’s findings). Even assuming (I believe unrealistically) that all foreign originators will refuse to use screening, the Act would make a difference in respect to 60% of the Internet’s commercial pornography. I cannot call that difference insignificant.    The upshot is that Congress could reasonably conclude that, despite the current availability of filtering software, a child protection problem exists. It also could conclude that a precisely targeted regulatory statute, adding an age-verification requirement for a narrow range of material, would more effectively shield children from commercial pornography.    Is this justification sufficient? The lower courts thought not. But that is because those courts interpreted the Act as imposing far more than a modest burden. They assumed an interpretation of the statute in which it reached far beyond legally obscene and borderline-obscene material, affecting material that, given the interpretation set forth above, would fall well outside the Act’s scope. But we must interpret the Act to save it, not to destroy it. NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1 , 30 (1937). So interpreted, see supra, at 3–6, the Act imposes a far lesser burden on access to protected material. Given the modest nature of that burden and the likelihood that the Act will significantly further Congress’ compelling objective, the Act may well satisfy the First Amendment’s stringent tests. Cf. Sable Communications , 492 U. S., at 130. Indeed, it does satisfy the First Amendment unless, of course, there is a genuine alternative, “less restrictive” way similarly to further that objective. III    I turn, then, to the actual “less restrictive alternatives” that the Court proposes. The Court proposes two real alternatives, i.e., two potentially less restrictive ways in which Congress might alter the status quo in order to achieve its “compelling” objective.    First, the Government might “act to encourage” the use of blocking and filtering software. Ante, at 11. The problem is that any argument that rests upon this alternative proves too much. If one imagines enough government resources devoted to the problem and perhaps additional scientific advances, then, of course, the use of software might become as effective and less restrictive. Obviously, the Government could give all parents, schools, and Internet cafes free computers with filtering programs already installed, hire federal employees to train parents and teachers on their use, and devote millions of dollars to the development of better software. The result might be an alternative that is extremely effective.    But the Constitution does not, because it cannot, require the Government to disprove the existence of magic solutions, i.e., solutions that, put in general terms, will solve any problem less restrictively but with equal effectiveness. Otherwise, “the undoubted ability of lawyers and judges,” who are not constrained by the budgetary worries and other practical parameters within which Congress must operate, “to imagine some kind of slightly less drastic or restrictive an approach would make it impossible to write laws that deal with the harm that called the statute into being.” Playboy Entertainment Group, 529 U. S., at 841 (Breyer, J., dissenting). As Justice Blackmun recognized, a “judge would be unimaginative indeed if he could not come up with something a little less ‘drastic’ or a little less ‘restrictive’ in almost any situation, and thereby enable himself to vote to strike legislation down.” Illinois Bd. of Elections v. Socialist Workers Party, 440 U. S. 173 , 188–189 (1979) (concurring opinion). Perhaps that is why no party has argued seriously that additional expenditure of government funds to encourage the use of screening is a “less restrictive alternative.”    Second, the majority suggests decriminalizing the statute, noting the “chilling effect” of criminalizing a category of speech. Ante, at 9. To remove a major sanction, however, would make the statute less effective, virtually by definition. IV    My conclusion is that the Act, as properly interpreted, risks imposition of minor burdens on some protected material—burdens that adults wishing to view the material may overcome at modest cost. At the same time, it significantly helps to achieve a compelling congressional goal, protecting children from exposure to commercial pornography. There is no serious, practically available “less restrictive” way similarly to further this compelling interest. Hence the Act is constitutional. V    The Court’s holding raises two more general questions. First, what has happened to the “constructive discourse between our courts and our legislatures” that “is an integral and admirable part of the constitutional design”? Blakely v. Washington, ante, at 1 (Kennedy, J., dissenting). After eight years of legislative effort, two statutes, and three Supreme Court cases the Court sends this case back to the District Court for further proceedings. What proceedings? I have found no offer by either party to present more relevant evidence. What remains to be litigated? I know the Court says that the parties may “introduce further evidence” as to the “relative restrictiveness and effectiveness of alternatives to the statute.” Ante , at 14–15. But I do not understand what that new evidence might consist of.    Moreover, Congress passed the current statute “[i]n response to the Court’s decision in Reno ” striking down an earlier statutory effort to deal with the same problem. Ante, at 3. Congress read Reno with care. It dedicated itself to the task of drafting a statute that would meet each and every criticism of the predecessor statute that this Court set forth in Reno. It incorporated language from the Court’s precedents, particularly the Miller standard, virtually verbatim. Compare 413 U. S., at 24, with §231(e)(6). And it created what it believed was a statute that would protect children from exposure to obscene professional pornography without obstructing adult access to material that the First Amendment protects. See H. R. Rep., at 5 (explaining that the bill was “carefully drafted to respond to the Supreme Court’s decision in Reno” ); S. Rep., at 2 (same). What else was Congress supposed to do?    I recognize that some Members of the Court, now or in the past, have taken the view that the First Amendment simply does not permit Congress to legislate in this area. See, e.g., Ginzburg, 383 U. S., at 476 (Black, J., dissenting) (“[T]he Federal Government is without any power whatever under the Constitution to put any type of burden on speech and expression of ideas of any kind”). Others believe that the Amendment does not permit Congress to legislate in certain ways, e.g., through the imposition of criminal penalties for obscenity. See, e.g., ante, at 2 (Stevens, J., concurring). There are strong constitutional arguments favoring these views. But the Court itself does not adopt those views. Instead, it finds that the Government has not proved the nonexistence of “less restrictive alternatives.” That finding, if appropriate here, is universally appropriate. And if universally appropriate, it denies to Congress, in practice, the legislative leeway that the Court’s language seem to promise. If this statute does not pass the Court’s “less restrictive alternative” test, what does? If nothing does, then the Court should say so clearly.    As I have explained, I believe the First Amendment permits an alternative holding. We could construe the statute narrowly—as I have tried to do—removing nearly all protected material from its scope. By doing so, we could reconcile its language with the First Amendment’s demands. We would “save” the statute, “not . . . destroy it.” NLRB, 301 U. S., at 30. Accord, McConnell v. Federal Election Comm’n, 540 U. S. __, __ (2003) (slip op., at 72) (where a saving construction of the statute’s language “ ‘is fairly possible,’ ” we must adopt it (quoting Crowell v. Benson, 285 U.S. 22 , 62 (1932))). And in the process, we would permit Congress to achieve its basic child-protecting objectives.    Second, will the majority’s holding in practice mean greater or lesser protection for expression? I do not find the answer to this question obvious. The Court’s decision removes an important weapon from the prosecutorial arsenal. That weapon would have given the Government a choice—a choice other than “ban totally or do nothing at all.” The Act tells the Government that, instead of prosecuting bans on obscenity to the maximum extent possible (as respondents have urged as yet another “alternative”), it can insist that those who make available material that is obscene or close to obscene keep that material under wraps, making it readily available to adults who wish to see it, while restricting access to children. By providing this third option—a “middle way”—the Act avoids the need for potentially speech-suppressing prosecutions.    That matters in a world where the obscene and the nonobscene do not come tied neatly into separate, easily distinguishable, packages. In that real world, this middle way might well have furthered First Amendment interests by tempering the prosecutorial instinct in borderline cases. At least, Congress might have so believed. And this likelihood, from a First Amendment perspective, might ultimately have proved more protective of the rights of viewers to retain access to expression than the all-or-nothing choice available to prosecutors in the wake of the majority’s opinion.    For these reasons, I dissent.

The Supreme Court upheld a lower court's decision to block the enforcement of the Child Online Protection Act (COPA), a federal statute designed to protect minors from accessing sexually explicit material online. The Court found that the government failed to demonstrate the constitutionality of COPA's content-based restrictions on speech and did not present sufficient evidence to rebut arguments for less restrictive alternatives to the statute. The case was remanded for further proceedings.

Free Speech

Ashcroft v. ACLU I

https://supreme.justia.com/cases/federal/us/535/564/

OCTOBER TERM, 2001 Syllabus ASHCROFT, ATTORNEY GENERAL v. AMERICAN CIVIL LIBERTIES UNION ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 00-1293. Argued November 28, 200l-Decided May 13,2002 In Reno v. American Civil Liberties Union, 521 U. S. 844 , this Court found that the Communications Decency Act of 1996 (CDA)-Congress' first attempt to protect children from exposure to pornographic material on the Internet-ran afoul of the First Amendment in its regulation of indecent transmissions and the display of patently offensive material. That conclusion was based, in part, on the crucial consideration that the CDA's breadth was wholly unprecedented. After the Court's decision in Reno, Congress attempted to address this concern in the Child Online Protection Act (COPA). Unlike the CDA, COPA applies only to material displayed on the World Wide Web, covers only communications made for commercial purposes, and restricts only "material that is harmful to minors," 47 U. S. C. § 231(a)(I). In defining "material that is harmful to minors," COPA draws on the three-part obscenity test set forth in Miller v. California, 413 U. S. 15 , see § 231(e)(6), and thus requires jurors to apply "contemporary community standards" in assessing material, see §231(e)(6)(A). Respondents-who post or have members that post sexually oriented material on the Web-filed a facial challenge before COPA went into effect, claiming, inter alia, that the statute violated adults' First Amendment rights because it effectively banned constitutionally protected speech, was not the least restrictive means of accomplishing a compelling governmental purpose, and was substantially overbroad. The District Court issued a preliminary injunction barring the enforcement of COPA because it concluded that the statute was unlikely to survive strict scrutiny. The Third Circuit affirmed but based its decision on a ground not relied upon by the District Court: that COPA's use of "contemporary community standards," § 231(e)(6)(A), to identify material that is harmful to minors rendered the statute substantially overbroad. Held: COPA's reliance on "community standards" to identify what material "is harmful to minors" does not by itself render the statute substantially overbroad for First Amendment purposes. The Court, however, expresses no view as to whether COPA suffers from substantial overbreadth for reasons other than its use of community standards, whether the statute is unconstitutionally vague, or whether the statute survives 565 strict scrutiny. Prudence dictates allowing the Third Circuit to first examine these difficult issues. Because petitioner did not ask to have the preliminary injunction vacated, and because this Court could not do so without addressing matters the Third Circuit has yet to consider, the Government remains enjoined from enforcing COPA absent further action by the lower courts. Pp. 585-586. 217 F.3d 162 , vacated and remanded. THOMAS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and IV, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, and BREYER, JJ., joined, an opinion with respect to Part III-B, in which REHNQUIST, C. J., and O'CONNOR and SCALIA, JJ., joined, and an opinion with respect to Parts III -A, III -C, and III-D, in which REHNQUIST, C. J., and SCALIA, J., joined. O'CONNOR, J., post, p. 586, and BREYER, J., post, p. 589, filed opinions concurring in part and concurring in the judgment. KENNEDY, J., filed an opinion concurring in the judgment, in which SOUTER and GINSBURG, JJ., joined, post, p. 591. STEVENS, J., filed a dissenting opinion, post, p. 602. Solicitor General Olson argued the cause for petitioner. With him on the briefs were Acting Assistant Attorney General Schiffer, Deputy Solicitor General Kneedler, Irving L. Gornstein, Barbara L. Herwig, Jacob M. Lewis, and Charles Scarborough. Ann E. Beeson argued the cause for respondents. With her on the briefs were Christopher A. Hansen, Steven R. Shapiro, Stefan Presser, David L. Sobel, Alexandra A. E. Shapiro, and Christopher R. Harris. * *Briefs of amici curiae urging reversal were filed for the County of DuPage by Richard Hodyl, Jr., Joseph E. Birkett, and Nancy J. Wolfe; for the American Center for Law and Justice by Jay Alan Sekulow, James M. Henderson, Sr., Colby M. May, and Walter M. Weber; for Morality in Media, Inc., et al. by Paul J. McGeady, Robin S. Whitehead, and Janet M. LaRue; for Wallbuilders, Inc., by Barry C. Hodge; for Senator John S. McCain et al. by Bruce A. Taylor; and for Senator Raymond N. Haynes et al. by Richard D. Ackerman and Gary G. Kreep. Briefs of amici curiae urging affirmance were filed for the American Society of Journalists and Authors et al. by Carl A. Solano, Theresa E. Loscalzo, Jennifer DuFault James, Joseph T. Lukens, and Dionna K. Litvin; for the Association of National Advertisers, Inc., by Steven G. Brody 566 566 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION JUSTICE THOMAS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and IV, an opinion with respect to Parts III-A, III-C, and III-D, in which THE CHIEF JUSTICE and JUSTICE SCALIA join, and an opinion with respect to Part III-B, in which THE CHIEF JUSTICE, JUSTICE O'CONNOR, and JusTICE SCALIA join. This case presents the narrow question whether the Child Online Protection Act's (COPA or Act) use of "community standards" to identify "material that is harmful to minors" violates the First Amendment. We hold that this aspect of COPA does not render the statute facially unconstitutional. I "The Internet ... offer[s] a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity." 47 U. S. C. § 230(a)(3) (1994 ed., Supp. V). While "surfing" the World Wide Web, the primary method of remote information retrieval on the Internet today,1 see App. in No. 99-1324 (CA3), p. 180 (hereinafter App.), individuals can access material about topics ranging from aardvarks to Zoroastrianism. One can use the Web to read thousands of newspapers published around the globe, purchase tickets for a matinee at the neighborhood movie theater, or follow the progress of any Major League Baseball team on a pitch-by-pitch basis. The Web also contains a wide array of sexually explicit material, including hardcore pornography. See, e. g., Amer- and Gilbert H. Weil; for the Association of American Publishers, Inc., et al. by R. Bruce Rich and Jonathan Bloom; for the Chamber of Commerce of the United States by Jodie L. Kelley, Paul M. Smith, and Robert CornRevere; for the Society for the Scientific Study of Sexuality et al. by Marjorie Heins and Joan E. Bertin; and for Volunteer Lawyers for the Arts et al. by Charles L. Kerr, Elliot M. Mincberg, and Lawrence S. Ottinger. 1 For a thorough explanation of the history, structure, and operation of the Internet and World Wide Web, see Reno v. American Civil Liberties Union, 521 U. S. 844 , 849-853 (1997). 567 ican Civil Liberties Union v. Reno, 31 F. Supp. 2d 473, 484 (ED Pa. 1999). In 1998, for instance, there were approximately 28,000 adult sites promoting pornography on the Web. See H. R. Rep. No. 105-775, p. 7 (1998). Because "[n]avigating the Web is relatively straightforward," Reno v. American Civil Liberties Union, 521 U. S. 844 , 852 (1997), and access to the Internet is widely available in homes, schools, and libraries across the country,2 see App. 177-178, children may discover this pornographic material either by deliberately accessing pornographic Web sites or by stumbling upon them. See 31 F. Supp. 2d, at 476 ("A child with minimal knowledge of a computer, the ability to operate a browser, and the skill to type a few simple words may be able to access sexual images and content over the World Wide Web"). Congress first attempted to protect children from exposure to pornographic material on the Internet by enacting the Communications Decency Act of 1996 (CDA), 110 Stat. 133. The CDA prohibited the knowing transmission over the Internet of obscene or indecent messages to any recipient under 18 years of age. See 47 U. S. C. § 223(a). It also forbade any individual from knowingly sending over or displaying on the Internet certain "patently offensive" material in a manner available to persons under 18 years of age. See § 223(d). The prohibition specifically extended to "any comment, request, suggestion, proposal, image, or other communication that, in context, depict[ed] or describ[ed], in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." § 223(d)(1). 2 When this litigation commenced in 1998, "[a]pproximately 70.2 million people of all ages use[d] the Internet in the United States." App. 171. It is now estimated that 115.2 million Americans use the Internet at least once a month and 176.5 million Americans have Internet access either at home or at work. See More Americans Online, New York Times, Nov. 19, 2001, p. C7. 568 568 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION The CDA provided two affirmative defenses to those prosecuted under the statute. The first protected individuals who took "good faith, reasonable, effective, and appropriate actions" to restrict minors from accessing obscene, indecent, and patently offensive material over the Internet. See § 223(e)(5)(A). The second shielded those who restricted minors from accessing such material "by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number." § 223(e)(5)(B). Notwithstanding these affirmative defenses, in Reno v. American Civil Liberties Union, we held that the CDA's regulation of indecent transmissions, see § 223(a), and the display of patently offensive material, see § 223(d), ran afoul of the First Amendment. We concluded that "the CDA lack[ed] the precision that the First Amendment requires when a statute regulates the content of speech" because, "[i]n order to deny minors access to potentially harmful speech, the CDA effectively suppress[ed] a large amount of speech that adults ha[d] a constitutional right to receive and to address to one another." 521 U. S., at 874. Our holding was based on three crucial considerations. First, "existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults." Id., at 876. Second, "[t]he breadth of the CDA's coverage [was] wholly unprecedented." Id., at 877. "Its open-ended prohibitions embrace[d]," not only commercial speech or commercial entities, but also "all nonprofit entities and individuals posting indecent messages or displaying them on their own computers in the presence of minors." Ibid. In addition, because the CDA did not define the terms "indecent" and "patently offensive," the statute "cover[ed] large amounts of nonpornographic material with serious educational or other value." Ibid. As a result, regulated subject matter under the CDA extended to "discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card 569 catalog of the Carnegie Library." Id., at 878. Third, we found that neither affirmative defense set forth in the CDA "constitute[d] the sort of 'narrow tailoring' that [would] save an otherwise patently invalid unconstitutional provision." Id., at 882. Consequently, only the CDA's ban on the knowing transmission of obscene messages survived scrutiny because obscene speech enjoys no First Amendment protection. See id., at 883. After our decision in Reno v. American Civil Liberties Union, Congress explored other avenues for restricting minors' access to pornographic material on the Internet. In particular, Congress passed and the President signed into law the Child Online Protection Act, 112 Stat. 2681-736 (codified in 47 U. S. C. § 231 (1994 ed., Supp. V)). COPA prohibits any person from "knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, mak[ing] any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors." 47 U. S. C. § 231(a)(1). Apparently responding to our objections to the breadth of the CDA's coverage, Congress limited the scope of COPA's coverage in at least three ways. First, while the CDA applied to communications over the Internet as a whole, including, for example, e-mail messages, COPA applies only to material displayed on the World Wide Web. Second, unlike the CDA, COPA covers only communications made "for commercial purposes." 3 Ibid. And third, while the CDA pro- 3 The statute provides that "[a] person shall be considered to make a communication for commercial purposes only if such person is engaged in the business of making such communications." 47 U. S. C. §231(e)(2)(A) (1994 ed., Supp. V). COPA then defines the term "engaged in the business" to mean a person: "who makes a communication, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities (although it is not necessary that the 570 570 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION hibited "indecent" and "patently offensive" communications, COPA restricts only the narrower category of "material that is harmful to minors." Ibid. Drawing on the three-part test for obscenity set forth in Miller v. California, 413 U. S. 15 (1973), COPA defines "material that is harmful to minors" as "any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that- "(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest; "(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and "(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." 47 U. S. C. § 231(e)(6). Like the CDA, COPA also provides affirmative defenses to those subject to prosecution under the statute. An individual may qualify for a defense if he, "in good faith, has restricted access by minors to material that is harmful to minors-(A) by requiring the use of a credit card, debit account, adult access code, or adult personal identification number; (B) by accepting a digital certificate that verifies age; or (C) by any other reasonable measures that are feasible under available technology." § 231(c)(1). Persons violating COPA are subject to both civil and criminal sanctions. A civil penalty of up to $50,000 may be imposed for each violation of person make a profit or that the making or offering to make such communications be the person's sole or principal business or source of income)." § 231(e)(2)(B). 571 the statute. Criminal penalties consist of up to six months in prison and/or a maximum fine of $50,000. An additional fine of $50,000 may be imposed for any intentional violation of the statute. § 231(a). One month before COPA was scheduled to go into effect, respondents filed a lawsuit challenging the constitutionality of the statute in the United States District Court for the Eastern District of Pennsylvania. Respondents are a diverse group of organizations,4 most of which maintain their own Web sites. While the vast majority of content on their Web sites is available for free, respondents all derive income from their sites. Some, for example, sell advertising that is displayed on their Web sites, while others either sell goods directly over their sites or charge artists for the privilege of posting material. 31 F. Supp. 2d, at 487. All respondents either post or have members that post sexually oriented material on the Web. Id., at 480. Respondents' Web sites contain "resources on obstetrics, gynecology, and sexual health; visual art and poetry; resources designed for gays and lesbians; information about books and stock photographic images offered for sale; and online magazines." Id., at 484. In their complaint, respondents alleged that, although they believed that the material on their Web sites was valuable for adults, they feared that they would be prosecuted under COPA because some of that material "could be construed as 'harmful to minors' in some communities." App. 63. Respondents' facial challenge claimed, inter alia, that COPA violated adults' rights under the First and Fifth Amend- 4 Respondents include the American Civil Liberties Union, Androgony Books, Inc., d/b/a A Different Light Bookstores, the American Booksellers Foundation for Free Expression, Artnet Worldwide Corporation, BlackStripe, Addazi Inc. d/b/a Condomania, the Electronic Frontier Foundation, the Electronic Privacy Information Center, Free Speech Media, OBGYN.net, Philadelphia Gay News, PlanetOut Corporation, Powell's Bookstore, Riotgrrl, Salon Internet, Inc., and West Stock, Inc., now known as ImageState North America, Inc. 572 572 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION ments because it (1) "create[d] an effective ban on constitutionally protected speech by and to adults"; (2) "[was] not the least restrictive means of accomplishing any compelling governmental purpose"; and (3) "[was] substantially overbroad." 5 Id., at 100-10l. The District Court granted respondents' motion for a preliminary injunction, barring the Government from enforcing the Act until the merits of respondents' claims could be adjudicated. 31 F. Supp. 2d, at 499. Focusing on respondents' claim that COPA abridged the free speech rights of adults, the District Court concluded that respondents had established a likelihood of success on the merits. Id., at 498. The District Court reasoned that because COPA constitutes content-based regulation of sexual expression protected by the First Amendment, the statute, under this Court's precedents, was "presumptively invalid" and "subject to strict scrutiny." Id., at 493. The District Court then held that respondents were likely to establish at trial that COPA could not withstand such scrutiny because, among other reasons, it was not apparent that COPA was the least restrictive means of preventing minors from accessing "harmful to minors" material. Id., at 497. The Attorney General of the United States appealed the District Court's ruling. American Civil Liberties Union v. Reno, 217 F.3d 162 (CA3 2000). The United States Court of Appeals for the Third Circuit affirmed. Rather than reviewing the District Court's "holding that COPA was not likely to succeed in surviving strict scrutiny analysis," the Court of Appeals based its decision entirely on a ground that was not relied upon below and that was "virtually ignored by the parties and the amicus in their respective briefs." I d., at 173-174. The Court of Appeals concluded that 5 In three other claims, which are not relevant to resolving the dispute at hand, respondents alleged that COPA infringed the free speech rights of older minors, violated the right to "communicate and access information anonymously," and was "unconstitutionally vague." App. 101-102. 573 COPA's use of "contemporary community standards" to identify material that is harmful to minors rendered the statute substantially overbroad. Because "Web publishers are without any means to limit access to their sites based on the geographic location of particular Internet users," the Court of Appeals reasoned that COPA would require "any material that might be deemed harmful by the most puritan of communities in any state" to be placed behind an age or credit card verification system. Id., at 175. Hypothesizing that this step would require Web publishers to shield "vast amounts of material," ibid., the Court of Appeals was "persuaded that this aspect of COPA, without reference to its other provisions, must lead inexorably to a holding of a likelihood of unconstitutionality of the entire COPA statute," id., at 174. We granted the Attorney General's petition for certiorari, 532 U. S. 1037 (2001), to review the Court of Appeals' determination that COPA likely violates the First Amendment because it relies, in part, on community standards to identify material that is harmful to minors, and now vacate the Court of Appeals' judgment. II The First Amendment states that "Congress shall make no law ... abridging the freedom of speech." This provision embodies "[o]ur profound national commitment to the free exchange of ideas." Harte-Hanks Communications, Inc. v. Connaughton, 491 U. S. 657 , 686 (1989). "[A]s a general matter, 'the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.'" Bolger v. Youngs Drug Products Corp., 463 U. S. 60 , 65 (1983) (quoting Police Dept. of Chicago v. Mosley, 408 U. S. 92 , 95 (1972)). However, this principle, like other First Amendment principles, is not absolute. Cf. Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 56 (1988). 574 574 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION Obscene speech, for example, has long been held to fall outside the purview of the First Amendment. See, e. g., Roth v. United States, 354 U. S. 476 , 484-485 (1957). But this Court struggled in the past to define obscenity in a manner that did not impose an impermissible burden on protected speech. See Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 704 (1968) (Harlan, J., concurring in part and dissenting in part) (referring to the "intractable obscenity problem"); see also Miller v. California, 413 U. S., at 20-23 (reviewing "the somewhat tortured history of th[is] Court's obscenity decisions"). The difficulty resulted from the belief that "in the area of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression." Id., at 22-23. Ending over a decade of turmoil, this Court in Miller set forth the governing three-part test for assessing whether material is obscene and thus unprotected by the First Amendment: "(a) [W]hether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Id., at 24 (citations omitted; emphasis added). Miller adopted the use of "community standards" from Roth, which repudiated an earlier approach for assessing objectionable material. Beginning in the 19th century, English courts and some American courts allowed material to be evaluated from the perspective of particularly sensitive persons. See, e. g., Queen v. Hicklin [1868] L. R. 3 Q. B. 360; see also Roth, 354 U. S., at 488-489, and n. 25 (listing relevant cases). But in Roth, this Court held that this sensitive person standard was "unconstitutionally restrictive of 575 the freedoms of speech and press" and approved a standard requiring that material be judged from the perspective of "the average person, applying contemporary community standards." Id., at 489. The Court preserved the use of community standards in formulating the Miller test, explaining that they furnish a valuable First Amendment safeguard: "[T]he primary concern ... is to be certain that ... [material] will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person-or indeed a totally insensitive one." Miller, supra, at 33 (internal quotation marks omitted); see also Hamling v. United States, 418 U. S. 87 , 107 (1974) (emphasizing that the principal purpose of the community standards criterion "is to assure that the material is judged neither on the basis of each juror's personal opinion, nor by its effect on a particularly sensitive or insensitive person or group"). III The Court of Appeals, however, concluded that this Court's prior community standards jurisprudence "has no applicability to the Internet and the Web" because "Web publishers are currently without the ability to control the geographic scope of the recipients of their communications." 217 F. 3d, at 180. We therefore must decide whether this technological limitation renders COPA's reliance on community standards constitutionally infirm.6 6While petitioner contends that a speaker on the Web possesses the ability to communicate only with individuals located in targeted geographic communities, Brief for Petitioner 29, n. 3, he stipulated below that "[o]nce a provider posts its content on the Internet and chooses to make it available to all, it generally cannot prevent that content from entering any geographic community." App. 187. The District Court adopted this stipulation as a finding of fact, see American Civil Liberties Union v. Reno, 31 F. Supp. 2d 473, 484 (ED Pa. 1999), and petitioner points to no evidence in the record suggesting that this finding is clearly erroneous. 576 576 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION Opinion of THOMAS, J. A In addressing this question, the parties first dispute the nature of the community standards that jurors will be instructed to apply when assessing, in prosecutions under COPA, whether works appeal to the prurient interest of minors and are patently offensive with respect to minors.7 Respondents contend that jurors will evaluate material using "local community standards," Brief for Respondents 40, while petitioner maintains that jurors will not consider the community standards of any particular geographic area, but rather will be "instructed to consider the standards of the adult community as a whole, without geographic specification." Brief for Petitioner 38. In the context of this case, which involves a facial challenge to a statute that has never been enforced, we do not think it prudent to engage in speculation as to whether certain hypothetical jury instructions would or would not be consistent with COP A, and deciding this case does not require us to do so. It is sufficient to note that community standards need not be defined by reference to a precise geographic area. See Jenkins v. Georgia, 418 U. S. 153 , 157 (1974) ("A State may choose to define an obscenity offense in terms of 'contemporary community standards' as defined in Miller without further specification ... or it may choose to define the standards in more precise geographic terms, as was done by California in Miller"). Absent geographic 7 Although the phrase "contemporary community standards" appears only in the "prurient interest" prong of the Miller test, see Miller v. California, 413 U. S. 15 , 24 (1973), this Court has indicated that the "patently offensive" prong of the test is also a question of fact to be decided by a jury applying contemporary community standards. See, e. g., Pope v. Illinois, 481 U. S. 497 , 500 (1987). The parties here therefore agree that even though "contemporary community standards" are similarly mentioned only in the "prurient interest" prong of COPA's harmful-to-minors definition, see 47 U. S. C. § 231(e)(6)(A), jurors will apply "contemporary community standards" as well in evaluating whether material is "patently offensive with respect to minors," § 231(e)(6)(B). 577 specification, a juror applying community standards will inevitably draw upon personal "knowledge of the community or vicinage from which he comes." Hamling, supra, at 105. Petitioner concedes the latter point, see Reply Brief for Petitioner 3-4, and admits that, even if jurors were instructed under COPA to apply the standards of the adult population as a whole, the variance in community standards across the country could still cause juries in different locations to reach inconsistent conclusions as to whether a particular work is "harmful to minors." Brief for Petitioner 39. B Because juries would apply different standards across the country, and Web publishers currently lack the ability to limit access to their sites on a geographic basis, the Court of Appeals feared that COPA's "community standards" component would effectively force all speakers on the Web to abide by the "most puritan" community's standards. 217 F. 3d, at 175. And such a requirement, the Court of Appeals concluded, "imposes an overreaching burden and restriction on constitutionally protected speech." Id., at 177. In evaluating the constitutionality of the CDA, this Court expressed a similar concern over that statute's use of community standards to identify patently offensive material on the Internet. We noted that "the 'community standards' criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message." Reno, 521 U. S., at 877-878. The Court of Appeals below relied heavily on this observation, stating that it was "not persuaded that the Supreme Court's concern with respect to the 'community standards' criterion has been sufficiently remedied by Congress in COPA." 217 F. 3d, at 174. The CDA's use of community standards to identify patently offensive material, however, was particularly problem- 578 578 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION Opinion of THOMAS, J. atic in light of that statute's unprecedented breadth and vagueness. The statute covered communications depicting or describing "sexual or excretory activities or organs" that were "patently offensive as measured by contemporary community standards"-a standard somewhat similar to the second prong of Miller's three-prong test. But the CDA did not include any limiting terms resembling Miller's additional two prongs. See Reno, 521 U. S., at 873. It neither contained any requirement that restricted material appeal to the prurient interest nor excluded from the scope of its coverage works with serious literary, artistic, political, or scientific value. Ibid. The tremendous breadth of the CDA magnified the impact caused by differences in community standards across the country, restricting Web publishers from openly displaying a significant amount of material that would have constituted protected speech in some communities across the country but run afoul of community standards in others. COPA, by contrast, does not appear to suffer from the same flaw because it applies to significantly less material than did the CDA and defines the harmful-to-minors material restricted by the statute in a manner parallel to the Miller definition of obscenity. See supra, at 569-570, 574-575. To fall within the scope of COPA, works must not only "depic[t], describ[e], or represen[t], in a manner patently offensive with respect to minors," particular sexual acts or parts of the anatomy,S they must also be designed to appeal to the prurient interest of minors and, "taken as a whole, lac[k] serious 8 While the CDA allowed juries to find material to be patently offensive so long as it depicted or described "sexual or excretory activities or organs," COPA specifically delineates the sexual activities and anatomical features, the depictions of which may be found to be patently offensive: "an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast." 47 U. S. C. § 231(e)(6)(B). 579 literary, artistic, political, or scientific value for minors." 47 U. S. C. § 231(e)(6). These additional two restrictions substantially limit the amount of material covered by the statute. Material appeals to the prurient interest, for instance, only if it is in some sense erotic. Cf. Erznoznik v. Jacksonville, 422 U. S. 205 , 213, and n. 10 (1975).9 Of even more significance, however, is COPA's exclusion of material with serious value for minors. See 47 U. S. C. §231(e)(6)(C). In Reno, we emphasized that the serious value "requirement is particularly important because, unlike the 'patently offensive' and 'prurient interest' criteria, it is not judged by contemporary community standards." 521 U. S., at 873 (citing Pope v. Illinois, 481 U. S. 497 , 500 (1987)). This is because "the value of [a] work [does not] vary from community to community based on the degree of local acceptance it has won." Ibid. Rather, the relevant question is "whether a reasonable person would find ... value in the material, taken as a whole." Id., at 501. Thus, the serious value requirement "allows appellate courts to impose some limitations and regularity on the definition by setting, as a matter of law, a national floor for socially redeeming value." Reno, supra, at 873 (emphasis added), a safeguard nowhere present in the CDA.l0 9 JUSTICE STEVENS argues that the "prurient interest" prong does not "substantially narrow the category of images covered" by COPA because "[a]rguably every depiction of nudity-partial or full-is in some sense erotic with respect to minors," post, at 607-608 (dissenting opinion) (emphasis in original). We do not agree. For example, we have great difficulty understanding how pictures of a war victim's wounded nude body could reasonably be described under the vast majority of circumstances as erotic, especially when evaluated from the perspective of minors. See Webster's Ninth New Collegiate Dictionary 422 (1991) (defining erotic as "of, devoted to, or tending to arouse sexual love or desire"). 10 JUSTICE STEVENS contends that COPA's serious value prong only marginally limits the sweep of the statute because it does not protect all material with serious value but just those works with serious value for minors. See post, at 608. His dissenting opinion, however, does not refer to any evidence supporting this counterintuitive assertion, and there 580 580 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION Opinion of THOMAS, J. C When the scope of an obscenity statute's coverage is sufficiently narrowed by a "serious value" prong and a "prurient interest" prong, we have held that requiring a speaker disseminating material to a national audience to observe varying community standards does not violate the First Amendment. In Hamling v. United States, 418 U. S. 87 (1974), this Court considered the constitutionality of applying community standards to the determination of whether material is obscene under 18 U. S. C. § 1461, the federal statute prohibiting the mailing of obscene material. Although this statute does not define obscenity, the petitioners in Hamling were tried and convicted under the definition of obscenity set forth in Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Mass., 383 U. S. 413 (1966), which included both a "prurient interest" requirement and a requirement that prohibited material be "'utterly without redeeming social value.'" Hamling, supra, at 99 (quoting Memoirs, supra, at 418). Like respondents here, the dissenting opinion in Hamling argued that it was unconstitutional for a federal statute to rely on community standards to regulate speech. Justice Brennan maintained that "[n]ational distributors choosing to send their products in interstate travels [would] be forced to cope with the community standards of every hamlet into which their goods [might] wander." 418 U. S., at 144. As a result, he claimed that the inevitable result of this situation would be "debilitating self-censorship that abridges the First Amendment rights of the people." Ibid. This Court, however, rejected Justice Brennan's argument that the federal mail statute unconstitutionally compelled is certainly none in the record suggesting that COPA restricts about the same amount of material as did the CDA. Moreover, JUSTICE STEVENS does not dispute that COPA's "serious value" prong serves the important purpose of allowing appellate courts to set "as a matter of law, a national floor for socially redeeming value." Reno, 521 U. S., at 873. 581 speakers choosing to distribute materials on a national basis to tailor their messages to the least tolerant community: "The fact that distributors of allegedly obscene materials may be subjected to varying community standards in the various federal judicial districts into which they transmit the materials does not render a federal statute unconstitutional." Id., at 106. Fifteen years later, Hamling's holding was reaffirmed in Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989). Sable addressed the constitutionality of 47 U. S. C. § 223(b) (1982 ed., Supp. V), a statutory provision prohibiting the use of telephones to make obscene or indecent communications for commercial purposes. The petitioner in that case, a "dial-a-porn" operator, challenged, in part, that portion of the statute banning obscene phone messages. Like respondents here, the "dial-a-porn" operator argued that reliance on community standards to identify obscene material impermissibly compelled "message senders ... to tailor all their messages to the least tolerant community." 492 U. S., at 124.11 Relying on Hamling, however, this Court once again rebuffed this attack on the use of community standards in a federal statute of national scope: "There is no constitutional barrier under Miller to prohibiting communications that are obscene in some communities under local standards even though they are not obscene in others. If Sable's audience is comprised of different communities with different local standards, Sable ultimately bears the burden of complying with the prohibition on obscene messages." 492 U. S., at 125-126 (emphasis added). The Court of Appeals below concluded that Hamling and Sable "are easily distinguished from the present case" because in both of those cases "the defendants had the ability 11 Although nowhere mentioned in the relevant statutory text, this Court has held that the Miller test defines regulated speech for purposes of federal obscenity statutes such as 47 U. S. C. § 223(b) (1994 ed.). See, e. g., Smith v. United States, 431 U. S. 291 , 299 (1977). 582 582 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION Opinion of THOMAS, J. to control the distribution of controversial material with respect to the geographic communities into which they released it" whereas "Web publishers have no such comparable control." 217 F. 3d, at 175-176. In neither Hamling nor Sable, however, was the speaker's ability to target the release of material into particular geographic areas integral to the legal analysis. In Hamling, the ability to limit the distribution of material to targeted communities was not mentioned, let alone relied upon,12 and in Sable, a dial-a-porn operator's ability to screen incoming calls from particular areas was referenced only as a supplemental point, see 492 U. S., at 125.13 In the latter case, this Court made no effort to evaluate how burdensome it would have been for dial-aporn operators to tailor their messages to callers from thousands of different communities across the Nation, instead concluding that the burden of complying with the statute rested with those companies. See id., at 126. 12 This fact was perhaps omitted because under the federal statute at issue in Hamling v. United States, 418 U. S. 87 (1974), a defendant could be prosecuted in any district through which obscene mail passed while it was on route to its destination, see id., at 143-144 (Brennan, J., dissenting), and a postal customer obviously lacked the ability to control the path his letter traveled as it made its way to its intended recipient. 13 JUSTICE STEVENS' contention that this Court "upheld the application of community standards to a nationwide medium" in Sable due to the fact that "[it] was at least possible" for dial-a-porn operators to tailor their messages to particular communities is inaccurate. See post, at 605 (dissenting opinion). This Court's conclusion clearly did not hinge either on the fact that dial-a-porn operators could prevent callers in particular communities from accessing their messages or on an assessment of how burdensome it would have been for dial-a-porn operators to take that step. Rather, these companies were required to abide by the standards of various communities for the sole reason that they transmitted their material into those communities. See Sable, 492 U. S., at 126 ("If Sable's audience is comprised of different communities with different local standards, Sable ultimately bears the burden of complying with the prohibition on obscene messages"). 583 While JUSTICE KENNEDY and JUSTICE STEVENS question the applicability of this Court's community standards jurisprudence to the Internet, we do not believe that the medium's "unique characteristics" justify adopting a different approach than that set forth in Hamling and Sable. See post, at 594-595 (KENNEDY, J., concurring in judgment). If a publisher chooses to send its material into a particular community, this Court's jurisprudence teaches that it is the publisher's responsibility to abide by that community's standards. The publisher's burden does not change simply because it decides to distribute its material to every community in the Nation. See Sable, supra, at 125-126. Nor does it change because the publisher may wish to speak only to those in a "community where avant garde culture is the norm," post, at 595 (KENNEDY, J., concurring in judgment), but nonetheless utilizes a medium that transmits its speech from coast to coast. If a publisher wishes for its material to be judged only by the standards of particular communities, then it need only take the simple step of utilizing a medium that enables it to target the release of its material into those communities.14 Respondents offer no other grounds upon which to distinguish this case from Hamling and Sable. While those cases involved obscenity rather than material that is harmful to minors, we have no reason to believe that the practical effect of varying community standards under COPA, given the statute's definition of "material that is harmful to minors," is significantly greater than the practical effect of varying 14 In addition, COPA does not, as JUSTICE KENNEDY suggests, "'foreclose an entire medium of expression.''' Post, at 596 (quoting City of Ladue v. Gilleo, 512 U. S. 43 , 55 (1994)). While JUSTICE KENNEDY and JUSTICE STEVENS repeatedly imply that COPA banishes from the Web material deemed harmful to minors by reference to community standards, see, e. g., post, at 596 (opinion concurring in judgment); post, at 608-609, 612 (dissenting opinion), the statute does no such thing. It only requires that such material be placed behind adult identification screens. 584 584 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION Opinion of THOMAS, J. community standards under federal obscenity statutes. It is noteworthy, for example, that respondents fail to point out even a single exhibit in the record as to which coverage under COPA would depend upon which community in the country evaluated the material. As a result, if we were to hold COPA unconstitutional because of its use of community standards, federal obscenity statutes would likely also be unconstitutional as applied to the Web,15 a result in substantial tension with our prior suggestion that the application of the CDA to obscene speech was constitutional. See Reno, 521 U. S., at 877, n. 44, 882-883. D Respondents argue that COPA is "unconstitutionally overbroad" because it will require Web publishers to shield some material behind age verification screens that could be displayed openly in many communities across the Nation if Web speakers were able to limit access to their sites on a geographic basis. Brief for Respondents 33-34. "[T]o prevail in a facial challenge," however, "it is not enough for a plaintiff to show 'some' overbreadth." Reno, supra, at 896 (O'CONNOR, J., concurring in judgment in part and dissenting in part). Rather, "the overbreadth of a statute must not only be real, but substantial as well." Broadrick v. Okla homa, 413 U. S. 601 , 615 (1973). At this stage of the litigation, respondents have failed to satisfy this burden, at least solely as a result of COPA's reliance on community standards.16 Because Congress has narrowed the range of con- 15 Obscene material, for instance, explicitly falls within the coverage of COPA. See 47 U. S. C. §231(e)(6) (1994 ed., Supp. V). 16 JUSTICE STEVENS' conclusion to the contrary is based on little more than "speculation." See, e. g., post, at 598 (KENNEDY, J., concurring in judgment). The only objective evidence cited in the dissenting opinion for the proposition that COPA "will restrict a substantial amount of protected speech that would not be considered harmful to minors in many communities" are various anecdotes compiled in an amici brief. See post, at 611, and n. 7 (citing Brief for Volunteer Lawyers for the Arts et al. as Amici 585 tent restricted by COPA in a manner analogous to Miller's definition of obscenity, we conclude, consistent with our holdings in Hamling and Sable, that any variance caused by the statute's reliance on community standards is not substantial enough to violate the First Amendment. IV The scope of our decision today is quite limited. We hold only that COPA's reliance on community standards to identify "material that is harmful to minors" does not by itself render the statute substantially overbroad for purposes of the First Amendment. We do not express any view as to whether COPA suffers from substantial overbreadth for other reasons, whether the statute is unconstitutionally vague, or whether the District Court correctly concluded that the statute likely will not survive strict scrutiny analy- Curiae 4-10). JUSTICE STEVENS, however, is not even willing to represent that these anecdotes relate to material restricted under COPA, see post, at 611, and we understand his reluctance for the vast majority of the works cited in that brief, if not all of them, are likely unaffected by the statute. See Brief for Volunteer Lawyer for the Arts et al. as Amici Curiae 4-10 (describing, among other incidents, controversies in various communities regarding Maya Angelou's I Know Why The Caged Bird Sings, Judy Blume's Are You There God? It's Me, Margaret, Aldous Huxley's Brave New World, J. D. Salinger's Catcher in the Rye, 1993 Academy Award Best Picture nominee The Piano, the American Broadcasting Corporation television network's NYPD Blue, and songs of the "popular folkrock duo" the Indigo Girls). These anecdotes are therefore of questionable relevance to the matter at hand and certainly do not constitute a sufficient basis for invalidating a federal statute. Moreover, we do not agree with JUSTICE KENNEDY'S suggestion that it is necessary for the Court of Appeals to revisit this question upon remand. See post, at 597-599. The lack of evidence in the record relevant to the question presented does not indicate that "we should vacate for further consideration." Post, at 599. Rather, it indicates that respondents, by offering little more than "speculation," have failed to meet their burden of demonstrating in this facial challenge that COPA's reliance on community standards renders the statute substantially overbroad. 586 586 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION Opinion of O'CONNOR, J. sis once adjudication of the case is completed below. While respondents urge us to resolve these questions at this time, prudence dictates allowing the Court of Appeals to first examine these difficult issues. Petitioner does not ask us to vacate the preliminary injunction entered by the District Court, and in any event, we could not do so without addressing matters yet to be considered by the Court of Appeals. As a result, the Government remains enjoined from enforcing COPA absent further action by the Court of Appeals or the District Court. For the foregoing reasons, we vacate the judgment of the Court of Appeals and remand the case for further proceedings. It is so ordered. JUSTICE O'CONNOR, concurring in part and concurring in the judgment. I agree with the plurality that even if obscenity on the Internet is defined in terms of local community standards, respondents have not shown that the Child Online Protection Act (COPA) is overbroad solely on the basis of the variation in the standards of different communities. See ante, at 577579. Like JUSTICE BREYER, however, see post, at 589 (opinion concurring in part and concurring in judgment), I write separately to express my views on the constitutionality and desirability of adopting a national standard for obscenity for regulation of the Internet. The plurality's opinion argues that, even under local community standards, the variation between the most and least restrictive communities is not so great with respect to the narrow category of speech covered by COPA as to, alone, render the statute substantially overbroad. See ante, at 577-579. I agree, given respondents' failure to provide examples of materials that lack literary, artistic, political, and scientific value for minors, which would nonetheless result in variation among communities judging the other elements of the test. Respondents' examples of material for which com- 587 munity standards would vary include such things as the appropriateness of sex education and the desirability of adoption by same-sex couples. Brief for Respondents 43. Material addressing the latter topic, however, seems highly unlikely to be seen to appeal to the prurient interest in any community, and educational material like the former must, on any objective inquiry, see ante, at 579, have scientific value for minors. But respondents' failure to prove substantial overbreadth on a facial challenge in this case still leaves open the possibility that the use of local community standards will cause problems for regulation of obscenity on the Internet, for adults as well as children, in future cases. In an as-applied challenge, for instance, individual litigants may still dispute that the standards of a community more restrictive than theirs should apply to them. And in future facial challenges to regulation of obscenity on the Internet, litigants may make a more convincing case for substantial overbreadth. Where adult speech is concerned, for instance, there may in fact be a greater degree of disagreement about what is patently offensive or appeals to the prurient interest. Nor do I think such future cases can be resolved by application of the approach we took in Hamling v. United States, 418 U. S. 87 (1974), and Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989). I agree with JUSTICE KENNEDY that, given Internet speakers' inability to control the geographic location of their audience, expecting them to bear the burden of controlling the recipients of their speech, as we did in Hamling and Sable, may be entirely too much to ask, and would potentially suppress an inordinate amount of expression. See post, at 594-596 (opinion concurring in judgment); contra, ante, at 580-584. For these reasons, adoption of a national standard is necessary in my view for any reasonable regulation of Internet obscenity. Our precedents do not forbid adoption of a national standard. Local community-based standards originated with 588 588 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION Opinion of O'CONNOR, J. Miller v. California, 413 U. S. 15 (1973). In that case, we approved jury instructions that based the relevant "community standards" on those of the State of California rather than on the Nation as a whole. In doing so, we held that "[n]othing in the First Amendment requires" that a jury consider national standards when determining if something is obscene as a matter of fact. Id., at 31. The First Amendment, we held, did not require that "the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City." Id., at 32. But we said nothing about the constitutionality of jury instructions that would contemplate a national standard-i. e., requiring that the people who live in all of these places hold themselves to what the nationwide community of adults would find was patently offensive and appealed to the prurient interest. Later, in Jenkins v. Georgia, 418 U. S. 153 , 157 (1974), we confirmed that "Miller approved the use of [instructions based on local standards]; it did not mandate their use." The instructions we approved in that case charged the jury with applying "community standards" without designating any particular "community." In holding that a State may define the obscenity standard by stating the Miller standard without further specification, 418 U. S., at 157, Jenkins left open the possibility that jurors would apply any number of standards, including a national standard, in evaluating material's obscenity. To be sure, the Court in Miller also stated that a national standard might be "unascertainable," 413 U. S., at 31, and "[un]realistic," id., at 32. But where speech on the Internet is concerned, I do not share that skepticism. It is true that our Nation is diverse, but many local communities encompass a similar diversity. For instance, in Miller itself, the jury was instructed to consider the standards of the entire State of California, a large (today, it has a population of greater than 33 million people, see U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 23 (120th 589 ed. 2000) (Table 20)) and diverse State that includes both Berkeley and Bakersfield. If the Miller Court believed generalizations about the standards of the people of California were possible, and that jurors would be capable of assessing them, it is difficult to believe that similar generalizations are not also possible for the Nation as a whole. Moreover, the existence of the Internet, and its facilitation of national dialogue, has itself made jurors more aware of the views of adults in other parts of the United States. Although jurors asked to evaluate the obscenity of speech based on a national standard will inevitably base their assessments to some extent on their experience of their local communities, I agree with JUSTICE BREYER that the lesser degree of variation that would result is inherent in the jury system and does not necessarily pose a First Amendment problem. See post, at 591. In my view, a national standard is not only constitutionally permissible, but also reasonable. While I would prefer that the Court resolve the issue before it by explicitly adopting a national standard for defining obscenity on the Internet, given respondents' failure to demonstrate substantial overbreadth due solely to the variation between local communities, I join Parts I, II, III-B, and IV of JUSTICE THOMAS' opinion and the judgment. JUSTICE BREYER, concurring in part and concurring in the judgment. I write separately because I believe that Congress intended the statutory word "community" to refer to the N ation's adult community taken as a whole, not to geographically separate local areas. The statutory language does not explicitly describe the specific "community" to which it refers. It says only that the "average person, applying contemporary community standards," must find that the "material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest .... " 47 U. S. C. § 231(e)(6) (1994 ed., Supp. V). 590 590 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION Opinion of BREYER, J. In the statute's legislative history, however, Congress made clear that it did not intend this ambiguous statutory phrase to refer to separate standards that might differ significantly among different communities. The relevant House of Representatives Report says: "The Committee recognizes that the applicability of community standards in the context of the Web is controversial, but understands it as an 'adult' standard, rather than a 'geographic' standard, and one that is reasonably constant among adults in America with respect to what is suitable for minors." H. R. Rep. No. 105-775, p. 28 (1998) (emphasis added). This statement, reflecting what apparently was a uniform view within Congress, makes clear that the standard, and the relevant community, is national and adult. At the same time, this view of the statute avoids the need to examine the serious First Amendment problem that would otherwise exist. See Almendarez-Torres v. United States, 523 U. S. 224 , 237-238 (1998); Ashwander v. TV A, 297 U. S. 288, 348 (1936) (Brandeis, J., concurring) (" 'When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided' "). To read the statute as adopting the community standards of every locality in the United States would provide the most puritan of communities with a heckler's Internet veto affecting the rest of the Nation. The technical difficulties associated with efforts to confine Internet material to particular geographic areas make the problem particularly serious. See American Civil Liberties Union v. Reno, 217 F.3d 162 , 175-176 (CA3 2000). And these special difficulties also potentially weaken the authority of prior cases in which they were not present. Cf. Sable 591 Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989); Hamling v. United States, 418 U. S. 87 (1974). A nationally uniform adult-based standard-which Congress, in its Committee Report, said that it intended-significantly alleviates any special need for First Amendment protection. Of course some regional variation may remain, but any such variations are inherent in a system that draws jurors from a local geographic area and they are not, from the perspective of the First Amendment, problematic. See id., at 105-106. For these reasons I do not join Part III of JUSTICE THOMAS' opinion, although I agree with much of the reasoning set forth in Parts III-B and III-D, insofar as it explains the conclusion to which I just referred, namely, that variation reflecting application of the same national standard by different local juries does not violate the First Amendment. JUSTICE KENNEDY, with whom JUSTICE SOUTER and JUSTICE GINSBURG join, concurring in the judgment. I If a law restricts substantially more speech than is justified, it may be subject to a facial challenge. Broadrick v. Oklahoma, 413 U. S. 601 , 615 (1973). There is a very real likelihood that the Child Online Protection Act (COPA or Act) is overbroad and cannot survive such a challenge. Indeed, content-based regulations like this one are presumptively invalid abridgments of the freedom of speech. See R. A. v: v. St. Paul, 505 U. S. 377 , 382 (1992). Yet COPA is a major federal statute, enacted in the wake of our previous determination that its predecessor violated the First Amendment. See Reno v. American Civil Liberties Union, 521 U. S. 844 (1997). Congress and the President were aware of our decision, and we should assume that in seeking to comply with it they have given careful consideration to the constitutionality of the new enactment. For these reasons, even if this facial challenge appears to have consider- 592 592 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION KENNEDY, J., concurring in judgment able merit, the Judiciary must proceed with caution and identify overbreadth with care before invalidating the Act. In this case, the District Court issued a preliminary injunction against enforcement of COPA, finding it too broad across several dimensions. The Court of Appeals affirmed, but on a different ground. COPA defines "material that is harmful to minors" by reference to "contemporary community standards," 47 U. s. C. § 231(e)(6) (1994 ed., Supp. V); and on the theory that these vary from place to place, the Court of Appeals held that the definition dooms the statute "without reference to its other provisions." American Civil Liberties Union v. Reno, 217 F.3d 162 , 174 (CA3 2000). The Court of Appeals found it unnecessary to construe the rest of the Act or address the District Court's reasoning. This single, broad proposition, stated and applied at such a high level of generality, cannot suffice to sustain the Court of Appeals' ruling. To observe only that community standards vary across the country is to ignore the antecedent question: community standards as to what? Whether the national variation in community standards produces overbreadth requiring invalidation of COPA, see Broadrick, supra, depends on the breadth of COPA's coverage and on what community standards are being invoked. Only by identifying the universe of speech burdened by COPA is it possible to discern whether national variation in community standards renders the speech restriction overbroad. In short, the ground on which the Court of Appeals relied cannot be separated from those that it overlooked. The statute, for instance, applies only to "communication for commercial purposes." 47 U. S. C. § 231(e)(2)(A). The Court of Appeals, however, did not consider the amount of commercial communication, the number of commercial speakers, or the character of commercial speech covered by the Act. Likewise, the statute's definition of "harmful to minors" requires material to be judged "as a whole." § 231(e)(6)(C). The notion of judging work as a whole is 593 familiar in other media, but more difficult to define on the World Wide Web. It is unclear whether what is to be judged as a whole is a single image on a Web page, a whole Web page, an entire multipage Web site, or an interlocking set of Web sites. Some examination of the group of covered speakers and the categories of covered speech is necessary in order to comprehend the extent of the alleged overbreadth. The Court of Appeals found that COP A in effect subjects every Internet speaker to the standards of the most puritanical community in the United States. This concern is a real one, but it alone cannot suffice to invalidate COPA without careful examination of the speech and the speakers within the ambit of the Act. For this reason, I join the judgment of the Court vacating the opinion of the Court of Appeals and remanding for consideration of the statute as a whole. Unlike JUSTICE THOMAS, however, I would not assume that the Act is narrow enough to render the national variation in community standards unproblematic. Indeed, if the District Court correctly construed the statute across its other dimensions, then the variation in community standards might well justify enjoining enforcement of the Act. I would leave that question to the Court of Appeals in the first instance. II COPA provides a three-part conjunctive definition of "material that is harmful to minors." The first part of the definition is that "the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, [that it] is designed to appeal to, or is designed to pander to, the prurient interest." 47 U. S. C. § 231(e)(6)(A). (The parties agree that the second part of the definition, § 231(e)(6)(B), likewise invokes contemporary community standards, though only implicitly. See ante, at 576, n. 7.) The nub of the problem is, as the Court has said, that "the 'community standards' criterion as applied to the Internet means that any communication available to 594 594 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION KENNEDY, J., concurring in judgment a nationwide audience will be judged by the standards of the community most likely to be offended by the message." Reno, 521 U. S., at 877-878. If material might be considered harmful to minors in any community in the United States, then the material is covered by COPA, at least when viewed in that place. This observation was the linchpin of the Court of Appeals' analysis, and we must now consider whether it alone suffices to support the holding below. The quoted sentence from Reno was not casual dicta; rather, it was one rationale for the holding of the case. In Reno, the Court found "[t]he breadth of [COPA's predecessor] ... wholly unprecedented," id., at 877, in part because of variation in community standards. The Court also relied on that variation to assess the strength of the Government's interest, which it found "not equally strong throughout the coverage of this broad statute." Id., at 878. The Court illustrated the point with an example: A parent who e-mailed birth control information to his 17-year-old child at college might violate the Act, "even though neither he, his child, nor anyone in their home community found the material 'indecent' or 'patently offensive,' if the college town's community thought otherwise." Ibid. Variation in community standards rendered the statute broader than the scope of the Government's own expressed compelling interest. It is true, as JUSTICE THOMAS points out, ante, at 580-583, that requiring a speaker addressing a national audience to meet varying community standards does not always violate the First Amendment. See Hamling v. United States, 418 U. S. 87, 106 (1974) (obscene mailings); Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 , 125-126 (1989) (obscene phone messages). These cases, however, are of limited utility in analyzing the one before us, because each mode of expression has its own unique characteristics, and each "must be assessed for First Amendment purposes by standards suited to it." Southeastern Promotions, Ltd. v. Con- 595 rad, 420 U. S. 546 , 557 (1975). Indeed, when Congress purports to abridge the freedom of a new medium, we must be particularly attentive to its distinct attributes, for "differences in the characteristics of new media justify differences in the First Amendment standards applied to them." Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 , 386 (1969). The economics and the technology of each medium affect both the burden of a speech restriction and the Government's interest in maintaining it. In this case the District Court found as a fact that "[o]nce a provider posts its content on the Internet and chooses to make it available to all, it generally cannot prevent that content from entering any geographic community." American Civil Liberties Union v. Reno, 31 F. Supp. 2d 473, 484 (ED Pa. 1999). By contrast, in upholding a ban on obscene phone messages, we emphasized that the speaker could "hire operators to determine the source of the calls or engag[e] with the telephone company to arrange for the screening and blocking of out-of-area calls or fined] another means for providing messages compatible with community standards." Sable, supra, at 125. And if we did not make the same point in Hamling, that is likely because it is so obvious that mailing lends itself to geographic restriction. (The Court has had no occasion to consider whether venue would be proper in "every hamlet into which [obscene mailings] may wander," Hamling, supra, at 144 (dissenting opinion), for the petitioners in Hamling did not challenge the statute as overbroad on its face.) A publisher who uses the mails can choose the location of his audience. The economics and technology of Internet communication differ in important ways from those of telephones and mail. Paradoxically, as the District Court found, it is easy and cheap to reach a worldwide audience on the Internet, see 31 F. Supp. 2d, at 482, but expensive if not impossible to reach a geographic subset, id., at 484. A Web publisher in a community where avant garde culture is the norm may have no 596 596 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION KENNEDY, J., concurring in judgment desire to reach a national market; he may wish only to speak to his neighbors; nevertheless, if an eavesdropper in a more traditional, rural community chooses to listen in, there is nothing the publisher can do. As a practical matter, COPA makes the eavesdropper the arbiter of propriety on the Web. And it is no answer to say that the speaker should "take the simple step of utilizing a [different] medium." Ante, at 583 (principal opinion of THOMAS, J.). "Our prior decisions have voiced particular concern with laws that foreclose an entire medium of expression .... [T]he danger they pose to the freedom of speech is readily apparent-by eliminating a common means of speaking, such measures can suppress too much speech." City of Ladue v. Gilleo, 512 U. S. 43 , 55 (1994). JUSTICE BREYER would alleviate the problem oflocal variation in community standards by construing the statute to comprehend the "N ation's adult community taken as a whole," rather than the local community from which the jury is drawn. Ante, at 589 (opinion concurring in part and concurring in judgment); see also ante, at 586-589 (O'CONNOR, J., concurring in part and concurring in judgment). There is one statement in a House Committee Report to this effect, "reflecting," JUSTICE BREYER writes, "what apparently was a uniform view within Congress." Ante, at 590. The statement, perhaps, reflects the view of a majority of one House committee, but there is no reason to believe that it reflects the view of a majority of the House of Representatives, let alone the "uniform view within Congress." Ibid. In any event, we need not decide whether the statute invokes local or national community standards to conclude that vacatur and remand are in order. If the statute does incorporate some concept of national community standards, the actual standard applied is bound to vary by community nevertheless, as the Attorney General concedes. See ante, at 577 (principal opinion of THOMAS, J.); Brief for Petitioner 39. 597 For this reason the Court of Appeals was correct to focus on COPA's incorporation of varying community standards; and it may have been correct as well to conclude that in practical effect COPA imposes the most puritanical community standard on the entire country. We have observed that it is "neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City." Miller v. California, 413 U. S. 15 , 32 (1973). On the other hand, it is neither realistic nor beyond constitutional doubt for Congress, in effect, to impose the community standards of Maine or Mississippi on Las Vegas and New York. "People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity." Id., at 33. In striking down COPA's predecessor, the Reno Court identified this precise problem, and if the Hamling and Sable Courts did not find the problem fatal, that is because those cases involved quite different media. The national variation in community standards constitutes a particular burden on Internet speech. III The question that remains is whether this observation "by itself" suffices to enjoin the Act. See ante, at 585. I agree with the Court that it does not. Ibid. We cannot know whether variation in community standards renders the Act substantially overbroad without first assessing the extent of the speech covered and the variations in community standards with respect to that speech. First, the breadth of the Act itself will dictate the degree of overbreadth caused by varying community standards. Indeed, JUSTICE THOMAS sees this point and uses it in an attempt to distinguish the Communications Decency Act of 1996, which was at issue in Reno. See ante, at 577-578 ("The CDA's use of community standards to identify patently 598 598 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION KENNEDY, J., concurring in judgment offensive material, however, was particularly problematic in light of that statute's unprecedented breadth and vagueness"); ante, at 578 ("The tremendous breadth of the CDA magnified the impact caused by differences in community standards across the country"). To explain the ways in which COPA is narrower than the CDA, JUSTICE THOMAS finds that he must construe sections of COPA elided by the Court of Appeals. Though I agree with the necessity for doing so, JUSTICE THOMAS' interpretation-undertaken without substantial arguments or briefing-is not altogether persuasive, and I would leave this task to the Court of Appeals in the first instance. As this case comes to us, once it is accepted that we cannot strike down the Act based merely on the phrase "contemporary community standards," we should go no further than to vacate and remand for a more comprehensive analysis of the Act. Second, community standards may have different degrees of variation depending on the question posed to the community. Defining the scope of the Act, therefore, is not relevant merely to the absolute number of Web pages covered, as JusTICE STEVENS suggests, post, at 609-610 (dissenting opinion); it is also relevant to the proportion of overbreadth, "judged in relation to the statute's plainly legitimate sweep," Broadrick, 413 U. S., at 615. Because this issue was "virtually ignored by the parties and the amicus" in the Court of Appeals, 217 F. 3d, at 173, we have no information on the question. Instead, speculation meets speculation. On the one hand, the Court of Appeals found "no evidence to suggest that adults everywhere in America would share the same standards for determining what is harmful to minors." Id., at 178. On the other hand, JUSTICE THOMAS finds "no reason to believe that the practical effect of varying community standards under COPA ... is significantly greater than the practical effect of varying community standards under federal obscenity statutes." Ante, at 583-584. When a key issue has "no evidence" on one side and "no reason to be- 599 lieve" the other, it is a good indication that we should vacate for further consideration. The District Court attempted a comprehensive analysis of COPA and its various dimensions of potential overbreadth. The Court of Appeals, however, believed that its own analysis of "contemporary community standards" obviated all other concerns. It dismissed the District Court's analysis in a footnote: "[W]e do not find it necessary to address the District Court's analysis of the definition of 'commercial purposes'; whether the breadth of the forms of content covered by COPA could have been more narrowly tailored; whether the affirmative defenses impose too great a burden on Web publishers or whether those affirmative defenses should have been included as elements of the crime itself; whether COPA's inclusion of criminal as well as civil penalties was excessive; whether COPA is designed to include communications made in chat rooms, discussion groups and links to other Web sites; whether the government is entitled to so restrict communications when children will continue to be able to access foreign Web sites and other sources of material that is harmful to them; what taken 'as a whole' should mean in the context of the Web and the Internet; or whether the statute's failure to distinguish between material that is harmful to a six year old versus a sixteen year old is problematic." 217 F. 3d, at 174, n. 19. As I have explained, however, any problem caused by variation in community standards cannot be evaluated in a vacuum. In order to discern whether the variation creates substantial overbreadth, it is necessary to know what speech COPA regulates and what community standards it invokes. It is crucial, for example, to know how limiting is the Act's limitation to "communication for commercial purposes." 47 U. S. C. §231(e)(2)(A). In Reno, we remarked that COPA's 600 600 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION KENNEDY, J., concurring in judgment predecessor was so broad in part because it had no such limitation. 521 U. S., at 877. COPA, by contrast, covers a speaker only if: "the person who makes a communication or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person's sole or principal business or source of income)." 47 U. S. C. § 231(e)(2)(B). So COPA is narrower across this dimension than its predecessor; but how much narrower is a matter of debate. In the District Court, the Attorney General contended that the Act applied only to professional panderers, but the court rejected that contention, finding "nothing in the text of the COPA ... that limits its applicability to so-called commercial pornographers only." 31 F. Supp. 2d, at 480. Indeed, the plain text of the Act does not limit its scope to pornography that is offered for sale; it seems to apply even to speech provided for free, so long as the speaker merely hopes to profit as an indirect result. The statute might be susceptible of some limiting construction here, but again the Court of Appeals did not address itself to this question. The answer affects the breadth of the Act and hence the significance of any variation in community standards. Likewise, it is essential to answer the vexing question of what it means to evaluate Internet material "as a whole," 47 U. S. C. §§ 231(e)(6)(A), (C), when everything on the Web is connected to everything else. As a general matter, "[t]he artistic merit of a work does not depend on the presence of a single explicit scene .... [T]he First Amendment requires 601 that redeeming value be judged by considering the work as a whole. Where the scene is part of the narrative, the work itself does not for this reason become obscene, even though the scene in isolation might be offensive." Ashcroft v. Free Speech Coalition, ante, at 248. COPA appears to respect this principle by requiring that the material be judged "as a whole," both as to its prurient appeal, § 231(e)(6)(A), and as to its social value, § 231(e)(6)(C). It is unclear, however, what constitutes the denominator-that is, the material to be taken as a whole-in the context of the World Wide Web. See 31 F. Supp. 2d, at 483 ("Although information on the Web is contained in individual computers, the fact that each of these computers is connected to the Internet through World Wide Web protocols allows all of the information to become part of a single body of knowledge"); id., at 484 ("From a user's perspective, [the World Wide Web] may appear to be a single, integrated system"). Several of the respondents operate extensive Web sites, some of which include only a small amount of material that might run afoul of the Act. The Attorney General contended that these respondents had nothing to fear from COP A, but the District Court disagreed, noting that the Act prohibits communication that "includes" any material harmful to minors. § 231(a)(1). In the District Court's view, "it logically follows that [COPA] would apply to any Web site that contains only some harmful to minors material." Id., at 480. The denominator question is of crucial significance to the coverage of the Act. Another issue is worthy of mention, because it too may inform whether the variation in community standards renders the Act substantially overbroad. The parties and the Court of Appeals did not address the question of venue, though it would seem to be bound up with the issue of varying community standards. COPA does not address venue in explicit terms, so prosecution may be proper "in any district in which [an] offense was begun, continued, or completed." 18 U. S. C. § 3237(a). The Act's prohibition includes an inter- 602 602 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION STEVENS, J., dissenting state commerce element, 47 U. S. C. § 231(a)(1), and "[a]ny offense involving ... interstate ... commerce ... may be inquired of and prosecuted in any district from, through, or into which such commerce ... moves." 18 U. S. C. § 3237(a). In the context of COPA, it seems likely that venue would be proper where the material originates or where it is viewed. Whether it may be said that a Web site moves "through" other venues in between is less certain. And since, as discussed above, juries will inevitably apply their own community standards, the choice of venue may be determinative of the choice of standard. The more venues the Government has to choose from, the more speech will be chilled by variation across communities. IV In summary, the breadth of the Act depends on the issues discussed above, and the significance of varying community standards depends, in turn, on the breadth of the Act. The Court of Appeals was correct to focus on the national variation in community standards, which can constitute a substantial burden on Internet communication; and its ultimate conclusion may prove correct. There may be grave doubts that COPA is consistent with the First Amendment; but we should not make that determination with so many questions unanswered. The Court of Appeals should undertake a comprehensive analysis in the first instance. JUSTICE STEVENS, dissenting. Appeals to prurient interests are commonplace on the Internet, as in older media. Many of those appeals lack serious value for minors as well as adults. Some are offensive to certain viewers but welcomed by others. For decades, our cases have recognized that the standards for judging their acceptability vary from viewer to viewer and from community to community. Those cases developed the requirement that communications should be protected if they do not violate contemporary community standards. In its original 603 form, the community standard provided a shield for communications that are offensive only to the least tolerant members of society. Thus, the Court "has emphasized on more than one occasion that a principal concern in requiring that a judgment be made on the basis of 'contemporary community standards' is to assure that the material is judged neither on the basis of each juror's personal opinion, nor by its effect on a particularly sensitive or insensitive person or group." Hamling v. United States, 418 U. S. 87 , 107 (1974). In the context of the Internet, however, community standards become a sword, rather than a shield. If a prurient appeal is offensive in a puritan village, it may be a crime to post it on the World Wide Web. The Child Online Protection Act (COPA) restricts access by adults as well as children to materials that are "harmful to minors." 47 U. S. C. § 231(a)(1) (1994 ed., Supp. V). COPA is a substantial improvement over its predecessor, the Communications Decency Act of 1996 (CDA), which we held unconstitutional five years ago in Reno v. American Civil Liberties Union, 521 U. S. 844 (1997) (ACLU 1). Congress has thoughtfully addressed several of the First Amendment problems that we identified in that case. Nevertheless, COPA preserves the use of contemporary community standards to define which materials are harmful to minors. As we explained in ACLU I, 521 U. S., at 877-878, "the 'community standards' criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message." We have recognized that the State has a compelling interest in protecting minors from harmful speech, Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 , 126 (1989), and on one occasion we upheld a restriction on indecent speech that was made available to the general public, because it could be accessed by minors, FCC v. Pacifica Foundation, 438 U. S. 726 (1978). Our decision in that case was influ- 604 604 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION STEVENS, J., dissenting enced by the distinctive characteristics of the broadcast medium, as well as the expertise of the agency, and the narrow scope of its order. Id., at 748-750; see also ACLU I, 521 U. S., at 867. On the other hand, we have repeatedly rejected the position that the free speech rights of adults can be limited to what is acceptable for children. See id., at 875 (quoting Bolger v. Youngs Drug Products Corp., 463 U. S. 60 , 74-75 (1983) ("[R]egardless of the strength of the government's interest" in protecting children, "[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox" (internal quotation marks omitted))); Sable, 492 U. S., at 128; Butler v. Michigan, 352 U. S. 380 , 383 (1957). Petitioner relies on our decision in Ginsberg v. New York, 390 U. S. 629 (1968), for the proposition that Congress can prohibit the display of materials that are harmful to minors. But the statute upheld in Ginsberg prohibited selling indecent materials directly to children, id., at 633 (describing N. Y. Penal Law § 484-h, making it unlawful "'knowingly to sell ... to a minor ... ' "), whereas the speech implicated here is simply posted on a medium that is accessible to both adults and children, 47 U. S. C. § 231(a)(1) (prohibiting anyone from "knowingly ... mak[ing] any communication for commercial purposes that is available to any minor ... "). Like the restriction on indecent "dial-a-porn" numbers invalidated in Sable, the prohibition against mailing advertisements for contraceptives invalidated in Bolger, and the ban against selling adult books found impermissible in Butler, COPA seeks to limit protected speech that is not targeted at children, simply because it can be obtained by them while surfing the Web.1 In evaluating the overbreadth of such a 1 Petitioner cites examples of display statutes in 23 States that require magazine racks to shield minors from the covers of pornographic magazines. Brief for Petitioner 22, 3a. This Court has yet to rule on the constitutionality of any of these statutes, which are in any event of little relevance to regulation of speech on the Internet. As we recognized in 605 statute, we should be mindful of Justice Frankfurter's admonition not to "burn the house to roast the pig," Butler, 352 U. S., at 383. COPA not only restricts speech that is made available to the general public, it also covers a medium in which speech cannot be segregated to avoid communities where it is likely to be considered harmful to minors. The Internet presents a unique forum for communication because information, once posted, is accessible everywhere on the network at once. The speaker cannot control access based on the location of the listener, nor can it choose the pathways through which its speech is transmitted. By approving the use of community standards in this context, JUSTICE THOMAS endorses a construction of COPA that has "the intolerable consequence of denying some sections of the country access to material, there deemed acceptable, which in others might be considered offensive to prevailing community standards of decency." Manual Enterprises, Inc. v. Day, 370 U. S. 478 , 488 (1962). If the material were forwarded through the mails, as in Hamling, or over the telephone, as in Sable, the sender could avoid destinations with the most restrictive standards. Indeed, in Sable, we upheld the application of community standards to a nationwide medium because the speaker was "free to tailor its messages ... to the communities it chooses to serve," by either "hir[ing] operators to determine the source of the calls ... [or] arrang[ing] for the screening and blocking of out-of-area calls." 492 U. S., at 125 (emphasis added). Our conclusion that it was permissible for the speaker to bear the ultimate burden of compliance, id., at 126, assumed that such compliance was at least possible without requiring the speaker to choose another medium or to limit its speech to what all would find acceptable. Given the ACLU I, 521 U. S. 844 , 854 (1997), '''the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial' "--or scanning a magazine rack. 606 606 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION STEVENS, J., dissenting undisputed fact that a provider who posts material on the Internet cannot prevent it from entering any geographic community, see ante, at 575, n. 6 (opinion of THOMAS, J.), a law that criminalizes a particular communication in just a handful of destinations effectively prohibits transmission of that message to all of the 176.5 million Americans that have access to the Internet, see ante, at 567, n. 2 (majority opinion). In light of this fundamental difference in technologies, the rules applicable to the mass mailing of an obscene montage or to obscene dial-a-porn should not be used to judge the legality of messages on the World Wide Web.2 In his attempt to fit this case within the framework of Hamling and Sable, JUSTICE THOMAS overlooks the more obvious comparison-namely, the CDA invalidated in ACLU 1. When we confronted a similar attempt by Congress to limit speech on the Internet based on community standards, we explained that because Web publishers cannot control who accesses their Web sites, using community standards to regulate speech on the Internet creates an overbreadth problem. "[T]he 'community standards' criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message." 521 U. S., at 877-878. Although our holding in ACLU I did not turn on that factor alone, we did not adopt the position relied on by JUSTICE THOMAs-that applying community standards to the Internet is constitutional based on Hamling and 2 It is hardly a solution to say, as JUSTICE THOMAS suggests, ante, at 583, that a speaker need only choose a different medium in order to avoid having its speech judged by the least tolerant community. Our overbreadth doctrine would quickly become a toothless protection if we were to hold that substituting a more limited forum for expression is an acceptable price to pay. Since a content-based restriction is presumptively invalid, I would place the burden on parents to "take the simple step of utilizing a medium that enables," ibid., them to avoid this material before requiring the speaker to find another forum. 607 Sable. See Reply Brief for Appellants in Reno v. ACLU, O. T. 1996, No. 96-511, p. 19.3 JUSTICE THOMAS points to several other provisions in COPA to argue that any overbreadth will be rendered insubstantial by the rest of the statute. Ante, at 578-579. These provisions afford little reassurance, however, as they only marginally limit the sweep of the statute. It is true that, in addition to COP A's "appeals to the prurient interest of minors" prong, the material must be "patently offensive with respect to minors" and it must lack "serious literary, artistic, political, or scientific value for minors." 47 U. S. C. § 231(e)(6). Nonetheless, the "patently offensive" prong is judged according to contemporary community standards as well, ante, at 576, n. 7 (opinion of THOMAS, J.). Whatever disparity exists between various communities' assessment of the content that appeals to the prurient interest of minors will surely be matched by their differing opinions as to 3 JUSTICE BREYER seeks to avoid the problem by effectively reading the phrase "contemporary national standards" into the statute, ante, at 589 (opinion concurring in part and concurring in judgment). While the legislative history of COPA provides some support for this reading, it is contradicted by the clear text of the statute, which directs jurors to consider "community" standards. This phrase is a term of art that has taken on a particular meaning in light of our precedent. Although we have never held that applying a national standard would be constitutionally impermissible, we have said that asking a jury to do so is "an exercise in futility," Miller v. California, 413 U. S. 15 , 30 (1973), and that "[a] juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination," Hamling v. United States, 418 U. S. 87 , 104 (1974). Any lingering doubts about the meaning of the phrase were certainly dispelled by our discussion of the issue in ACLU 1,521 U. S., at 874, n. 39, and we presume that Congress legislates against the backdrop of our decisions. Therefore, JUSTICE THOMAS has correctly refused to rewrite the statute to substitute a standard that Congress clearly did not choose. And even if the plurality were willing to do so, we would still have to acknowledge, as petitioner does, that jurors instructed to apply a national, or adult, standard will reach widely different conclusions throughout the country, see ante, at 577; Brief for Petitioner 39. 608 608 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION STEVENS, J., dissenting whether descriptions of sexual acts or depictions of nudity are patently offensive with respect to minors. Nor does the requirement that the material be "in some sense erotic," see ante, at 579 (citing Erznoznik v. Jacksonville, 422 U. S. 205 , 213, and n. 10 (1975)), substantially narrow the category of images covered. Arguably every depiction of nudity-partial or full-is in some sense erotic with respect to minors. 4 Petitioner's argument that the "serious value" prong minimizes the statute's overbreadth is also unpersuasive. Although we have recognized that the serious value determination in obscenity cases should be based on an objective, reasonable person standard, Pope v. Illinois, 481 U. S. 497 , 500 (1987), this criterion is inadequate to cure COPA's overbreadth because COPA adds an important qualifying phrase to the standard Miller v. California, 413 U. S. 15 (1973), formulation of the serious value prong. The question for the jury is not whether a reasonable person would conclude that the materials have serious value; instead, the jury must determine whether the materials have serious value for minors. Congress reasonably concluded that a substantial number of works, which have serious value for adults, do not have serious value for minors. Cf. ACLU I, 521 U. S., at 896 (O'CONNOR, J., concurring in judgment in part and dissenting in part) ("While discussions about prison rape or nude art ... may have some redeeming educational value for adults, they do not necessarily have any such value for minors"). Thus, even though the serious value prong limits the total amount of speech covered by the statute, it remains true that there is a significant amount of protected speech within the category of materials that have no serious value for minors. That speech is effectively prohibited whenever 4 Of course, JUSTICE THOMAS' example of the image "of a war victim's wounded nude body," ante, at 579, n. 9, would not be covered by the statute unless it depicted "a lewd exhibition of the genitals or post-pubescent female breast" and lacked serious political value for minors, 47 U. S. C. §§ 231(e)(6)(B)-(C) (1994 ed., Supp. V). 609 the least tolerant communities find it harmful to minors.5 While the objective nature of the inquiry may eliminate any worry that the serious value determination will be made by the least tolerant community, it does not change the fact that, within the subset of images deemed to have no serious value for minors, the decision whether minors and adults throughout the country will have access to that speech will still be made by the most restrictive community. JUSTICE KENNEDY makes a similar misstep, ante, at 592 (opinion concurring in judgment), when he ties the overbreadth inquiry to questions about the scope of the other provisions of the statute. According to his view, we cannot determine whether the statute is substantially overbroad based on its use of community standards without first determining how much of the speech on the Internet is saved by the other restrictions in the statute. But this represents a fundamental misconception of our overbreadth doctrine. As Justice White explained in Broadrick v. Oklahoma, 413 U. s. 5 The Court also notes that the limitation to communications made for commercial purposes narrows the category of speech as compared to the CDA, ante, at 569. While it is certainly true that this condition limits the scope of the statute, the phrase "commercial purposes" is somewhat misleading. The definition of commercial purposes, 47 U. S. C. § 231(e)(2)(B), covers anyone who generates revenue from advertisements or merchandise, regardless of the amount of advertising or whether the advertisements or products are related to the images that allegedly are harmful to minors. As the District Court noted: "There is nothing in the text of the COPA, however, that limits its applicability to so-called commercial pornographers only; indeed, the text of COPA imposes liability on a speaker who knowingly makes any communication for commercial purposes 'that includes any material that is harmful to minors,'" App. to Pet. for Cert. 52a. In the context of the Internet, this is hardly a serious limitation. A 1998 study, for example, found that 83 percent of Web sites contain commercial content. Lawrence & Giles, Accessibility of information of the web, 400 Nature 107-109 (1999); Guernsey, Seek-but on the Web, You Might Not Find, N. Y. Times, July 8, 1999, p. G3. Interestingly, this same study found that only 1.5 percent of the 2.8 million sites cataloged contained pornographic content. 610 610 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION STEVENS, J., dissenting 601, 615 (1973), "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." (Emphasis added.) Regardless of how the Court of Appeals interprets the "commercial purposes" or "as a whole" provisions on remand, the question we must answer is whether the statute restricts a substantial amount of protected speech relative to its legitimate sweep by virtue of the fact that it uses community standards.6 These other provisions may reduce the absolute number of Web pages covered by the statute, but even the narrowest version of the statute abridges a substantial amount of protected speech that many communities would not find harmful to minors. Because Web speakers cannot limit access to those specific communities, the statute is substantially overbroad regardless of how its other provisions are construed. JUSTICE THOMAS acknowledges, and petitioner concedes, that juries across the country will apply different standards and reach different conclusions about whether particular works are harmful to minors. See ante, at 577; Brief for Petitioner 3-4, 39. We recognized as much in ACLU I when we noted that "discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalog of the Carnegie Library" might offend some community's standards and not others, 521 U. S., at 878. In fact, our own division on that question provides further evidence of the range of attitudes about such material. See, e. g., id., at 896 (O'CONNOR, J., concurring in judg- 6JUSTICE KENNEDY accuses the Court of Appeals of evaluating overbreadth in a vacuum by dismissing most of the concerns raised by the District Court, ante, at 599. But most of those concerns went to whether COPA survives strict scrutiny, not overbreadth. Even under JUSTICE KENNEDY'S formulation, it is unclear why it is relevant to an overbreadth analysis, for example, whether COPA could have been more narrowly tailored, whether the affirmative defenses impose too great a burden, or whether inclusion of criminal as well as civil penalties was excessive. 611 ment in part and dissenting in part). Moreover, amici for respondents describe studies showing substantial variation among communities in their attitudes toward works involving homosexuality, masturbation, and nudity. 7 Even if most, if not all, of these works would be excluded from COPA's coverage by the serious value prong, they illustrate the diversity of public opinion on the underlying themes depicted. This diversity of views surely extends to whether materials with the same themes, that do not have serious value for minors, appeal to their prurient interests and are patently offensive. There is no reason to think the differences between communities' standards will disappear once the image or description is no longer within the context of a work that has serious value for minors.8 Because communities differ widely in their attitudes toward sex, particularly when minors are concerned, the Court of Appeals was correct to conclude that, regardless of how COP A's other provisions are construed, applying community standards to the Internet will restrict a substantial amount of protected speech that would not be considered harmful to minors in many communities. Whether that consequence is appropriate depends, of course, on the content of the message. The kind of hardcore pornography involved in Hamling, which I assume would be obscene under any community's standard, does not belong on the Internet. Perhaps "teasers" that serve no function except to invite viewers to examine hardcore materials, or the hidden terms written into a Web site's "metatags" in order to dupe unwitting Web surfers into visiting pornographic sites, deserve the same fate. But COPA ex- 7 Brief for Volunteer Lawyers for the Arts et al. as Amici Curiae 4-10 (describing findings of the People for the American Way Foundation Annual Freedom to Learn Reports). 8 Nor is there any reason to expect that a particular community's view of the material will change based on how the Court of Appeals construes the statute's "for commercial purposes" or "as a whole" provisions. 612 612 ASHCROFT v. AMERICAN CIVIL LIBERTIES UNION STEVENS, J., dissenting tends to a wide range of prurient appeals in advertisements, online magazines, Web-based bulletin boards and chat rooms, stock photo galleries, Web diaries, and a variety of illustrations encompassing a vast number of messages that are unobjectionable in most of the country and yet provide no "serious value" for minors. It is quite wrong to allow the standards of a minority consisting of the least tolerant communities to regulate access to relatively harmless messages in this burgeoning market. In the context of most other media, using community standards to differentiate between permissible and impermissible speech has two virtues. As mentioned above, community standards originally served as a shield to protect speakers from the least tolerant members of society. By aggregating values at the community level, the Miller test eliminated the outliers at both ends of the spectrum and provided some predictability as to what constitutes obscene speech. But community standards also serve as a shield to protect audience members, by allowing people to self-sort based on their preferences. Those who abhor and those who tolerate sexually explicit speech can seek out like-minded people and settle in communities that share their views on what is acceptable for themselves and their children. This sorting mechanism, however, does not exist in cyberspace; the audience cannot self-segregate. As a result, in the context of the Internet this shield also becomes a sword, because the community that wishes to live without certain material rids not only itself, but the entire Internet, of the offending speech. In sum, I would affirm the judgment of the Court of Appeals and therefore respectfully dissent.

The Supreme Court case Ashcroft v. American Civil Liberties Union dealt with the Child Online Protection Act (COPA), which aimed to protect minors from exposure to harmful material on the internet. The case centered on the question of whether COPA's use of "community standards" to identify harmful material rendered the statute substantially overbroad and in violation of the First Amendment. The Court held that the use of community standards alone did not make COPA substantially overbroad, but expressed no view on other potential issues with the statute, such as vagueness or strict scrutiny. The Court left it to the Third Circuit to examine these remaining issues. The case highlights the challenges of regulating speech on the internet while balancing the protection of minors and the freedom of speech rights of adults.

Free Speech

Virginia v. Black

https://supreme.justia.com/cases/federal/us/538/343/

OCTOBER TERM, 2002 Syllabus VIRGINIA v. BLACK ET AL. CERTIORARI TO THE SUPREME COURT OF VIRGINIA No. 01-1107. Argued December 11, 2002-Decided April 7, 2003 Respondents were convicted separately of violating a Virginia statute that makes it a felony "for any person . . ., with the intent of intimidating any person or group . . . , to burn a cross on the property of another, a highway or other public place," and specifies that "[a]ny such burning . . . shall be prima facie evidence of an intent to intimidate a person or group." When respondent Black objected on First Amendment grounds to his trial court's jury instruction that cross burning by itself is sufficient evidence from which the required "intent to intimidate" could be inferred, the prosecutor responded that the instruction was taken straight out of the Virginia Model Instructions. Respondent O'Mara pleaded guilty to charges of violating the statute, but reserved the right to challenge its constitutionality. At respondent Elliott's trial, the judge instructed the jury as to what the Commonwealth had to prove, but did not give an instruction on the meaning of the word "intimidate," nor on the statute's prima facie evidence provision. Consolidating all three cases, the Virginia Supreme Court held that the crossburning statute is unconstitutional on its face; that it is analytically indistinguishable from the ordinance found unconstitutional in R. A. V. v. St. Paul , 505 U. S. 377 ; that it discriminates on the basis of content and viewpoint since it selectively chooses only cross burning because of its distinctive message; and that the prima facie evidence provision renders the statute overbroad because the enhanced probability of prosecution under the statute chills the expression of protected speech. Held: The judgment is affirmed in part, vacated in part, and remanded. 262 Va. 764, 553 S. E. 2d 738, affirmed in part, vacated in part, and remanded. JUSTICE O'CONNOR delivered the opinion of the Court with respect to Parts I, II, and III, concluding that a State, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate. Pp. 352-363. (a) Burning a cross in the United States is inextricably intertwined with the history of the Ku Klux Klan, which, following its formation in 1866, imposed a reign of terror throughout the South, whipping, threatening, and murdering blacks, southern whites who disagreed with the Klan, and "carpetbagger" northern whites. The Klan has often used cross burnings as a tool of intimidation and a threat of impending vio- [344] lence, although such burnings have also remained potent symbols of shared group identity and ideology, serving as a central feature of Klan gatherings. To this day, however, regardless of whether the message is a political one or is also meant to intimidate, the burning of a cross is a "symbol of hate." Capitol Square Review and Advisory Bd. v. Pinette , 515 U. S. 753 , 771. While cross burning does not inevitably convey a message of intimidation, often the cross burner intends that the recipients of the message fear for their lives. And when a cross burning is used to intimidate, few if any messages are more powerful. Pp. 352-357. (b) The protections the First Amendment affords speech and expressive conduct are not absolute. This Court has long recognized that the government may regulate certain categories of expression consistent with the Constitution. See, e. g., Chaplinsky v. New Hampshire , 315 U. S. 568 , 571-572. For example, the First Amendment permits a State to ban "true threats," e. g., Watts v. United States , 394 U. S. 705 , 708 (per curiam) , which encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals, see, e. g., ibid. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence and the disruption that fear engenders, as well as from the possibility that the threatened violence will occur. R. A. V. , supra , at 388. Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. Respondents do not contest that some cross burnings fit within this meaning of intimidating speech, and rightly so. As the history of cross burning in this country shows, that act is often intimidating, intended to create a pervasive fear in victims that they are a target of violence. pp. 358-360. (c) The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross burning's long and pernicious history as a signal of impending violence. A ban on cross burning carried out with the intent to intimidate is fully consistent with this Court's holding in R. A. V. Contrary to the Virginia Supreme Court's ruling, R. A. V. did not hold that the First Amendment prohibits all forms of contentbased discrimination within a proscribable area of speech. Rather, the Court specifically stated that a particular type of content discrimination does not violate the First Amendment when the basis for it consists [345] entirely of the very reason its entire class of speech is proscribable. 505 U. S., at 388. For example, it is permissible to prohibit only that obscenity that is most patently offensive in its prurience-i. e. , that which involves the most lascivious displays of sexual activity. Ibid. Similarly, Virginia's statute does not run afoul of the First Amendment insofar as it bans cross burning with intent to intimidate. Unlike the statute at issue in R. A. V. , the Virginia statute does not single out for opprobrium only that speech directed toward "one of the specified disfavored topics." Id. , at 391. It does not matter whether an individual burns a cross with intent to intimidate because of the victim's race, gender, or religion, or because of the victim's "political affiliation, union membership, or homosexuality." Ibid. Thus, just as a State may regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm. Pp. 360-363. JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE STEVENS, and JUSTICE BREYER, concluded in Parts IV and V that the Virginia statute's prima facie evidence provision, as interpreted through the jury instruction given in respondent Black's case and as applied therein, is unconstitutional on its face. Because the instruction is the same as the Commonwealth's Model Jury Instruction, and because the Virginia Supreme Court had the opportunity to expressly disavow it, the instruction's construction of the prima facie provision is as binding on this Court as if its precise words had been written into the statute. E. g., Terminiello v. Chicago , 337 U. S. 1 , 4. As construed by the instruction, the prima facie provision strips away the very reason why a State may ban cross burning with the intent to intimidate. The provision permits a jury to convict in every cross burning case in which defendants exercise their constitutional right not to put on a defense. And even where a defendant like Black presents a defense, the provision makes it more likely that the jury will find an intent to intimidate regardless of the particular facts of the case. It permits the Commonwealth to arrest, prosecute, and convict a person based solely on the fact of cross burning itself. As so interpreted, it would create an unacceptable risk of the suppression of ideas. E.g., Secretary of State of Md. v. Joseph H. Munson Co. , 467 U. S. 947 , 965, n. 13. The act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation, or it may mean only that the person is engaged in core political speech. The prima facie evidence provision blurs the line between these meanings, ignoring all of the contextual factors that are necessary to decide whether a particular cross burning is intended to intimidate. The First Amendment does not permit such a shortcut. Thus, Black's conviction cannot stand, and the judgment as [346] to him is affirmed. Conversely, Elliott's jury did not receive any instruction on the prima facie provision, and the provision was not an issue in O'Mara's case because he pleaded guilty. The possibility that the provision is severable, and if so, whether Elliott and O'Mara could be retried under the statute, is left open. Also left open is the theoretical possibility that, on remand, the Virginia Supreme Court could interpret the prima facie provision in a manner that would avoid the constitutional objections described above. Pp. 363-368. JUSTICE SCALIA agreed that this Court should vacate and remand the judgment of the Virginia Supreme Court with respect to respondents Elliott and O'Mara so that that court can have an opportunity authoritatively to construe the cross-burning statute's prima-facie-evidence provision. Pp. 368, 379. JUSTICE SOUTER, joined by JUSTICE KENNEDY and JUSTICE GINSBURG, concluded that the Virginia statute is unconstitutional and cannot be saved by any exception under R. A. V. v. St. Paul , 505 U. S. 377 , and therefore concurred in the Court's judgment insofar as it affirms the invalidation of respondent Black's conviction. Pp. 380-381, 387. O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III, in which REHNQUIST, C. J., and STEVENS, SCALIA, and BREYER, JJ., joined, and an opinion with respect to Parts IV and V, in which REHNQUIST, C. J., and STEVENS and BREYER, JJ., joined. STEVENS, J., filed a concurring opinion, post , p. 368. SCALIA, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which THOMAS, J., joined as to Parts I and II, post , p. 368. SOUTER, J., filed an opinion concurring in the judgment in part and dissenting in part, in which KENNEDY and GINSBURG, JJ., joined, post , p. 380. THOMAS, J., filed a dissenting opinion, post , p. 388. William H. Hurd , State Solicitor of Virginia, argued the cause for petitioner. With him on the brief were Jerry W Kilgore , Attorney General, Maureen Riley Matsen and William E. Thro , Deputy State Solicitors, and Alison P. Landry , Assistant Attorney General. Deputy Solicitor General Dreeben argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorney General Boyd, Barbara McDowell, Jessica Dunsay Silver, and Linda F. Thome. [347] Rodney A. Smolla argued the cause for respondents. With him on the brief were James O. Broccoletti, David P. Baugh, and Kevin E. Martingayle.[ Footnote * ] JUSTICE O'CONNOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III, and an opinion with respect to Parts IV and V, in which THE CHIEF JUSTICE, JUSTICE STEVENS, and JUSTICE BREYER join. In this case we consider whether the Commonwealth of Virginia's statute banning cross burning with "an intent to intimidate a person or group of persons" violates the First Amendment. Va. Code Ann. § 18.2-423 (1996). We conclude that while a State, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate, the provision in the Virginia statute treating any [348] cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional in its current form. I Respondents Barry Black, Richard Elliott, and Jonathan O'Mara were convicted separately of violating Virginia's cross-burning statute, § 18.2-423. That statute provides: "It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony. "Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons." On August 22, 1998, Barry Black led a Ku Klux Klan rally in Carroll County, Virginia. Twenty-five to thirty people attended this gathering, which occurred on private property with the permission of the owner, who was in attendance. The property was located on an open field just off Brushy Fork Road (State Highway 690) in Cana, Virginia. When the sheriff of Carroll County learned that a Klan rally was occurring in his county, he went to observe it from the side of the road. During the approximately one hour that the sheriff was present, about 40 to 50 cars passed the site, a "few" of which stopped to ask the sheriff what was happening on the property. App. 71. Eight to ten houses were located in the vicinity of the rally. Rebecca Sechrist, who was related to the owner of the property where the rally took place, "sat and watched to see wha[t] [was] going on" from the lawn of her in-laws' house. She looked on as the Klan prepared for the gathering and subsequently conducted the rally itself. Id. , at 103. During the rally, Sechrist heard Klan members speak about "what they were" and "what they believed in." Id. , [349] at 106. The speakers "talked real bad about the blacks and the Mexicans." Id. , at 109. One speaker told the assembled gathering that "he would love to take a .30/.30 and just random[ly] shoot the blacks." Ibid. The speakers also talked about "President Clinton and Hillary Clinton," and about how their tax money "goes to . . . the black people." Ibid. Sechrist testified that this language made her "very . . . scared." Id. , at 110. At the conclusion of the rally, the crowd circled around a 25- to 30-foot cross. The cross was between 300 and 350 yards away from the road. According to the sheriff, the cross "then all of a sudden . . . went up in a flame." Id. , at 71. As the cross burned, the Klan played Amazing Grace over the loudspeakers. Sechrist stated that the cross burning made her feel "awful" and "terrible." Id. , at 110. When the sheriff observed the cross burning, he informed his deputy that they needed to "find out who's responsible and explain to them that they cannot do this in the State of Virginia." Id. , at 72. The sheriff then went down the driveway, entered the rally, and asked "who was responsible for burning the cross." Id. , at 74. Black responded, "I guess I am because I'm the head of the rally." Ibid. The sheriff then told Black, "[T]here's a law in the State of Virginia that you cannot burn a cross and I'll have to place you under arrest for this." Ibid. Black was charged with burning a cross with the intent of intimidating a person or group of persons, in violation of § 18.2-423. At his trial, the jury was instructed that "intent to intimidate means the motivation to intentionally put a person or a group of persons in fear of bodily harm. Such fear must arise from the willful conduct of the accused rather than from some mere temperamental timidity of the victim." Id. , at 146. The trial court also instructed the jury that "the burning of a cross by itself is sufficient evidence from which you may infer the required intent." Ibid. When Black objected to this last instruction on First Amendment grounds, [350] the prosecutor responded that the instruction was "taken straight out of the [Virginia] Model Instructions." Id. , at 134. The jury found Black guilty, and fined him $2,500. The Court of Appeals of Virginia affirmed Black's conviction. Rec. No. 1581-99-3 (Va. App., Dec. 19, 2000), App. 201. On May 2, 1998, respondents Richard Elliott and Jonathan O'Mara, as well as a third individual, attempted to burn a cross on the yard of James Jubilee. Jubilee, an AfricanAmerican, was Elliott's next-door neighbor in Virginia Beach, Virginia. Four months prior to the incident, Jubilee and his family had moved from California to Virginia Beach. Before the cross burning, Jubilee spoke to Elliott's mother to inquire about shots being fired from behind the Elliott home. Elliott's mother explained to Jubilee that her son shot firearms as a hobby, and that he used the backyard as a firing range. On the night of May 2, respondents drove a truck onto Jubilee's property, planted a cross, and set it on fire. Their apparent motive was to "get back" at Jubilee for complaining about the shooting in the backyard. Id. , at 241. Respondents were not affiliated with the Klan. The next morning, as Jubilee was pulling his car out of the driveway, he noticed the partially burned cross approximately 20 feet from his house. After seeing the cross, Jubilee was "very nervous" because he "didn't know what would be the next phase," and because "a cross burned in your yard . . . tells you that it's just the first round." Id. , at 231. Elliott and O'Mara were charged with attempted cross burning and conspiracy to commit cross burning. O'Mara pleaded guilty to both counts, reserving the right to challenge the constitutionality of the cross-burning statute. The judge sentenced O'Mara to 90 days in jail and fined him $2,500. The judge also suspended 45 days of the sentence and $1,000 of the fine. At Elliott's trial, the judge originally ruled that the jury would be instructed "that the burning of a cross by itself is [351] sufficient evidence from which you may infer the required intent." Id. , at 221-222. At trial, however, the court instructed the jury that the Commonwealth must prove that "the defendant intended to commit cross burning," that "the defendant did a direct act toward the commission of the cross burning," and that "the defendant had the intent of intimidating any person or group of persons." Id. , at 250. The court did not instruct the jury on the meaning of the word "intimidate," nor on the prima facie evidence provision of § 18.2-423. The jury found Elliott guilty of attempted cross burning and acquitted him of conspiracy to commit cross burning. It sentenced Elliott to 90 days in jail and a $2,500 fine. The Court of Appeals of Virginia affirmed the convictions of both Elliott and O'Mara. O'Mara v. Common wealth, 33 Va. App. 525, 535 S. E. 2d 175 (2000). Each respondent appealed to the Supreme Court of Virginia, arguing that § 18.2-423 is facially unconstitutional. The Supreme Court of Virginia consolidated all three cases, and held that the statute is unconstitutional on its face. 262 Va. 764, 553 S. E. 2d 738 (2001). It held that the Virginia cross-burning statute "is analytically indistinguishable from the ordinance found unconstitutional in R. A. V. v. St. Paul , 505 U. S. 377 (1992)]." Id. , at 772, 553 S. E. 2d, at 742. The Virginia statute, the court held, discriminates on the basis of content since it "selectively chooses only cross burning because of its distinctive message." Id. , at 774, 553 S. E. 2d, at 744. The court also held that the prima facie evidence provision renders the statute overbroad because "[t]he enhanced probability of prosecution under the statute chills the expression of protected speech." Id. , at 777, 553 S. E. 2d, at 746. Three justices dissented, concluding that the Virginia cross-burning statute passes constitutional muster because it proscribes only conduct that constitutes a true threat. The justices noted that unlike the ordinance found unconstitutional in R. A. V. v. St. Paul , 505 U. S. 377 (1992), the Virginia [352] statute does not just target cross burning "on the basis of race, color, creed, religion or gender." 262 Va., at 791, 553 S. E. 2d, at 753. Rather, "the Virginia statute applies to any individual who burns a cross for any reason provided the cross is burned with the intent to intimidate." Ibid. The dissenters also disagreed with the majority's analysis of the prima facie provision because the inference alone "is clearly insufficient to establish beyond a reasonable doubt that a defendant burned a cross with the intent to intimidate." Id. , at 795, 553 S. E. 2d, at 756. The dissent noted that the burden of proof still remains on the Commonwealth to prove intent to intimidate. We granted certiorari. 535 U. S. 1094 (2002).[ Footnote 1 ] II Cross burning originated in the 14th century as a means for Scottish tribes to signal each other. See M. Newton & J. Newton, The Ku Klux Klan: An Encyclopedia 145 (1991). Sir Walter Scott used cross burnings for dramatic effect in The Lady of the Lake, where the burning cross signified both a summons and a call to arms. See W. Scott, The Lady of The Lake, canto third. Cross burning in this country, however, long ago became unmoored from its Scottish ancestry. Burning a cross in the United States is inextricably intertwined with the history of the Ku Klux Klan. The first Ku Klux Klan began in Pulaski, Tennessee, in the spring of 1866. Although the Ku Klux Klan started as a social club, it soon changed into something far different. The Klan fought Reconstruction and the corresponding drive to allow freed blacks to participate in the political process. [353] Soon the Klan imposed "a veritable reign of terror" throughout the South. S. Kennedy, Southern Exposure 31 (1991) (hereinafter Kennedy). The Klan employed tactics such as whipping, threatening to burn people at the stake, and murder. W. Wade, The Fiery Cross: The Ku Klux Klan in America 48-49 (1987) (hereinafter Wade). The Klan's victims included blacks, southern whites who disagreed with the Klan, and "carpetbagger" northern whites. The activities of the Ku Klux Klan prompted legislative action at the national level. In 1871, "President Grant sent a message to Congress indicating that the Klan's reign of terror in the Southern States had rendered life and property insecure." Jett v. Dallas Independent School Dist., 491 U. S. 701, 722 (1989) (internal quotation marks and alterations omitted). In response, Congress passed what is now known as the Ku Klux Klan Act. See "An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes," 17 Stat. 13 (now codified at 42 U. S. C. §§ 1983,1985, and 1986). President Grant used these new powers to suppress the Klan in South Carolina, the effect of which severely curtailed the Klan in other States as well. By the end of Reconstruction in 1877, the first Klan no longer existed. The genesis of the second Klan began in 1905, with the publication of Thomas Dixon's The Clansmen: An Historical Romance of the Ku Klux Klan. Dixon's book was a sympathetic portrait of the first Klan, depicting the Klan as a group of heroes "saving" the South from blacks and the "horrors" of Reconstruction. Although the first Klan never actually practiced cross burning, Dixon's book depicted the Klan burning crosses to celebrate the execution of former slaves. Id. , at 324-326; see also Capitol Square Review and Advisory Bd. v. Pinette , 515 U. S. 753 , 770-771 (1995) (THOMAS, J., concurring). Cross burning thereby became associated with the first Ku Klux Klan. When D. W. Griffith turned Dixon's book into the movie The Birth of a Nation in 1915, [354] the association between cross burning and the Klan became indelible. In addition to the cross burnings in the movie, a poster advertising the film displayed a hooded Klansman riding a hooded horse, with his left hand holding the reins of the horse and his right hand holding a burning cross above his head. Wade 127. Soon thereafter, in November 1915, the second Klan began. From the inception of the second Klan, cross burnings have been used to communicate both threats of violence and messages of shared ideology. The first initiation ceremony occurred on Stone Mountain near Atlanta, Georgia. While a 40-foot cross burned on the mountain, the Klan members took their oaths of loyalty. See Kennedy 163. This cross burning was the second recorded instance in the United States. The first known cross burning in the country had occurred a little over one month before the Klan initiation, when a Georgia mob celebrated the lynching of Leo Frank by burning a "gigantic cross" on Stone Mountain that was "visible throughout" Atlanta. Wade 144 (internal quotation marks omitted). The new Klan's ideology did not differ much from that of the first Klan. As one Klan publication emphasized, "We avow the distinction between [the] races, . . . and we shall ever be true to the faithful maintenance of White Supremacy and will strenuously oppose any compromise thereof in any and all things." Id. , at 147-148 (internal quotation marks omitted). Violence was also an elemental part of this new Klan. By September 1921, the New York World newspaper documented 152 acts of Klan violence, including 4 murders, 41 floggings, and 27 tar-and-featherings. Wade 160. Often, the Klan used cross burnings as a tool of intimidation and a threat of impending violence. For example, in 1939 and 1940, the Klan burned crosses in front of synagogues and churches. See Kennedy 175. After one cross burning at a synagogue, a Klan member noted that if the cross burning did not "shut the Jews up, we'll cut a few [355] throats and see what happens." Ibid. (internal quotation marks omitted). In Miami in 1941, the Klan burned four crosses in front of a proposed housing project, declaring, "We are here to keep niggers out of your town . . . . When the law fails you, call on us." Id. , at 176 (internal quotation marks omitted). And in Alabama in 1942, in "a whirlwind climax to weeks of flogging and terror," the Klan burned crosses in front of a union hall and in front of a union leader's home on the eve of a labor election. Id. , at 180. These cross burnings embodied threats to people whom the Klan deemed antithetical to its goals. And these threats had special force given the long history of Klan violence. The Klan continued to use cross burnings to intimidate after World War II. In one incident, an African-American "school teacher who recently moved his family into a block formerly occupied only by whites asked the protection of city police . . . after the burning of a cross in his front yard." Richmond News Leader, Jan. 21, 1949, p. 19, App. 312. And after a cross burning in Suffolk, Virginia, during the late 1940's, the Virginia Governor stated that he would "not allow any of our people of any race to be subjected to terrorism or intimidation in any form by the Klan or any other organization." D. Chalmers, Hooded Americanism: The History of the Ku Klux Klan 333 (1980) (hereinafter Chalmers). These incidents of cross burning, among others, helped prompt Virginia to enact its first version of the cross-burning statute in 1950. The decision of this Court in Brown v. Board of Education , 347 U. S. 483 (1954), along with the civil rights movement of the 1950's and 1960's, sparked another outbreak of Klan violence. These acts of violence included bombings, beatings, shootings, stabbings, and mutilations. See, e.g. , Chalmers 349-350; Wade 302-303. Members of the Klan burned crosses on the lawns of those associated with the civil rights movement, assaulted the Freedom Riders, bombed churches, and murdered blacks as well as whites [356] whom the Klan viewed as sympathetic toward the civil rights movement. Throughout the history of the Klan, cross burnings have also remained potent symbols of shared group identity and ideology. The burning cross became a symbol of the Klan itself and a central feature of Klan gatherings. According to the Klan constitution (called the kloran), the "fiery cross" was the "emblem of that sincere, unselfish devotedness of all klansmen to the sacred purpose and principles we have espoused." The Ku Klux Klan Hearings before the House Committee on Rules, 67th Cong., 1st Sess., 114, Exh. G (1921); see also Wade 419. And the Klan has often published its newsletters and magazines under the name The Fiery Cross. See id. , at 226, 489. At Klan gatherings across the country, cross burning became the climax of the rally or the initiation. Posters advertising an upcoming Klan rally often featured a Klan member holding a cross. See N. MacLean, Behind the Mask of Chivalry: The Making of the Second Ku Klux Klan 142-143 (1994). Typically, a cross burning would start with a prayer by the "Klavern" minister, followed by the singing of Onward Christian Soldiers. The Klan would then light the cross on fire, as the members raised their left arm toward the burning cross and sang The Old Rugged Cross. Wade 185. Throughout the Klan's history, the Klan continued to use the burning cross in their ritual ceremonies. For its own members, the cross was a sign of celebration and ceremony. During a joint Nazi-Klan rally in 1940, the proceeding concluded with the wedding of two Klan members who "were married in full Klan regalia beneath a blazing cross." Id. , at 271. In response to antimasking bills introduced in state legislatures after World War II, the Klan burned crosses in protest. See Chalmers 340. On March 26, 1960, the Klan engaged in rallies and cross burnings throughout the South in an attempt to recruit 10 million members. See Wade 305. Later in 1960, the Klan became [357] an issue in the third debate between Richard Nixon and John Kennedy, with both candidates renouncing the Klan. After this debate, the Klan reiterated its support for Nixon by burning crosses. See id. , at 309. And cross burnings featured prominently in Klan rallies when the Klan attempted to move toward more nonviolent tactics to stop integration. See id. , at 323; cf. Chalmers 368-369, 371-372, 380, 384. In short, a burning cross has remained a symbol of Klan ideology and of Klan unity. To this day, regardless of whether the message is a political one or whether the message is also meant to intimidate, the burning of a cross is a "symbol of hate." Capitol Square Review and Advisory Bd. v. Pinette , 515 U. S., at 771 (THOMAS, J., concurring). And while cross burning sometimes carries no intimidating message, at other times the intimidating message is the only message conveyed. For example, when a cross burning is directed at a particular person not affiliated with the Klan, the burning cross often serves as a message of intimidation, designed to inspire in the victim a fear of bodily harm. Moreover, the history of violence associated with the Klan shows that the possibility of injury or death is not just hypothetical. The person who burns a cross directed at a particular person often is making a serious threat, meant to coerce the victim to comply with the Klan's wishes unless the victim is willing to risk the wrath of the Klan. Indeed, as the cases of respondents Elliott and O'Mara indicate, individuals without Klan affiliation who wish to threaten or menace another person sometimes use cross burning because of this association between a burning cross and violence. In sum, while a burning cross does not inevitably convey a message of intimidation, often the cross burner intends that the recipients of the message fear for their lives. And when a cross burning is used to intimidate, few if any messages are more powerful. [358] III A The First Amendment, applicable to the States through the Fourteenth Amendment, provides that "Congress shall make no law . . . abridging the freedom of speech." The hallmark of the protection of free speech is to allow "free trade in ideas"-even ideas that the overwhelming majority of people might find distasteful or discomforting. Abrams v. United States , 250 U. S. 616 , 630 (1919) (Holmes, J., dissenting); see also Texas v. Johnson , 491 U. S. 397 , 414 (1989) ("If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable"). Thus, the First Amendment "ordinarily" denies a State "the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence." Whitney v. California , 274 U. S. 357 , 374 (1927) (Brandeis, J., concurring). The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech. See, e.g., R. A. V. v. City of St. Paul , 505 U. S., at 382; Texas v. Johnson, supra , at 405-406; United States v. O'Brien , 391 U. S. 367 , 376-377 (1968); Tinker v. Des Moines Independent Community School Dist. , 393 U. S. 503 , 505 (1969). The protections afforded by the First Amendment, however, are not absolute, and we have long recognized that the government may regulate certain categories of expression consistent with the Constitution. See, e. g., Chaplinsky v. New Hampshire , 315 U. S. 568 , 571-572 (1942) ("There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem"). The First Amendment permits "restrictions upon the content of speech in a few limited areas, which are 'of such slight social value [359] as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.'" R. A. V. v. City of St. Paul, supra , at 382-383 (quoting Chaplinsky v. New Hampshire, supra , at 572). Thus, for example, a State may punish those words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, supra , at 572; see also R. A. V. v. City of St. Paul, supra , at 383 (listing limited areas where the First Amendment permits restrictions on the content of speech). We have consequently held that fighting words-"those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction" -are generally proscribable under the First Amendment. Cohen v. California, 403 U. S. 15, 20 (1971); see also Chaplinsky v. New Hampshire, supra , at 572. Furthermore, "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio , 395 U. S. 444 , 447 (1969) (per curiam). And the First Amendment also permits a State to ban a "true threat." Watts v. United States, 394 U. S. 705, 708 (1969) (per curiam) (internal quotation marks omitted); accord, R. A. V. v. City of St. Paul, supra , at 388 ("[T]hreats of violence are outside the First Amendment"); Madsen v. Women's Health Center, Inc. , 512 U. S. 753 , 774 (1994); Schenck v. Pro-Choice Network of Western N.Y. , 519 U. S. 357 , 373 (1997). "True threats" encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. See Watts v. United States, supra , at 708 ("political hyberbole" is not a true threat); R. A. V. v. City of St. Paul , 505 U. S., at 388. The [360] speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats "protect[s] individuals from the fear of violence" and "from the disruption that fear engenders," in addition to protecting people "from the possibility that the threatened violence will occur." Ibid. Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. Respondents do not contest that some cross burnings fit within this meaning of intimidating speech, and rightly so. As noted in Part II, supra , the history of cross burning in this country shows that cross burning is often intimidating, intended to create a pervasive fear in victims that they are a target of violence. B The Supreme Court of Virginia ruled that in light of R. A. V. v. City of St. Paul, supra , even if it is constitutional to ban cross burning in a content-neutral manner, the Virginia cross-burning statute is unconstitutional because it discriminates on the basis of content and viewpoint. 262 Va., at 771-776, 553 S. E. 2d, at 742-745. It is true, as the Supreme Court of Virginia held, that the burning of a cross is symbolic expression. The reason why the Klan burns a cross at its rallies, or individuals place a burning cross on someone else's lawn, is that the burning cross represents the message that the speaker wishes to communicate. Individuals burn crosses as opposed to other means of communication because cross burning carries a message in an effective and dramatic manner.[ Footnote 2 ] [361] The fact that cross burning is symbolic expression, however, does not resolve the constitutional question. The Supreme Court of Virginia relied upon R. A. V. v. City of St. Paul , supra, to conclude that once a statute discriminates on the basis of this type of content, the law is unconstitutional. We disagree. In R. A. V. , we held that a local ordinance that banned certain symbolic conduct, including cross burning, when done with the knowledge that such conduct would "'arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender'" was unconstitutional. Id. , at 380 (quoting the St. Paul Bias-Motivated Crime Ordinance, St. Paul, Minn., Legis. Code § 292.02 (1990)). We held that the ordinance did not pass constitutional muster because it discriminated on the basis of content by targeting only those individuals who "provoke violence" on a basis specified in the law. 505 U. S., at 391. The ordinance did not cover "[t]hose who wish to use 'fighting words' in connection with other ideas-to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality." Ibid. This content-based discrimination was unconstitutional because it allowed the city "to impose special prohibitions on those speakers who express views on disfavored subjects." Ibid. We did not hold in R. A. V. that the First Amendment prohibits all forms of content-based discrimination within a proscribable area of speech. Rather, we specifically stated that some types of content discrimination did not violate the First Amendment: "When the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or [362] viewpoint discrimination exists. Such a reason, having been adjudged neutral enough to support exclusion of the entire class of speech from First Amendment protection, is also neutral enough to form the basis of distinction within the class." Id. , at 388. Indeed, we noted that it would be constitutional to ban only a particular type of threat: "[T]he Federal Government can criminalize only those threats of violence that are directed against the President . . . since the reasons why threats of violence are outside the First Amendment . . . have special force when applied to the person of the President." Ibid. And a State may "choose to prohibit only that obscenity which is the most patently offensive in its prurience--i. e. , that which involves the most lascivious displays of sexual activity." Ibid. (emphasis in original). Consequently, while the holding of R. A. V. does not permit a State to ban only obscenity based on "offensive political messages," ibid. , or "only those threats against the President that mention his policy on aid to inner cities," ibid. , the First Amendment permits content discrimination "based on the very reasons why the particular class of speech at issue . . . is proscribable," id. , at 393. Similarly, Virginia's statute does not run afoul of the First Amendment insofar as it bans cross burning with intent to intimidate. Unlike the statute at issue in R. A. V. , the Virginia statute does not single out for opprobrium only that speech directed toward "one of the specified disfavored topics." Id. , at 391. It does not matter whether an individual burns a cross with intent to intimidate because of the victim's race, gender, or religion, or because of the victim's "political affiliation, union membership, or homosexuality." Ibid. Moreover, as a factual matter it is not true that cross burners direct their intimidating conduct solely to racial or religious minorities. See, e. g., supra , at 355 (noting the instances of cross burnings directed at union members); State v. Miller , 6 Kan. App. 2d 432,629 P. 2d 748 (1981) (describing [363] the case of a defendant who burned a cross in the yard of the lawyer who had previously represented him and who was currently prosecuting him). Indeed, in the case of Elliott and O'Mara, it is at least unclear whether the respondents burned a cross due to racial animus. See 262 Va., at 791, 553 S. E. 2d, at 753 (Hassell, J., dissenting) (noting that "these defendants burned a cross because they were angry that their neighbor had complained about the presence of a firearm shooting range in the Elliott's yard, not because of any racial animus"). The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross burning's long and pernicious history as a signal of impending violence. Thus, just as a State may regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm. A ban on cross burning carried out with the intent to intimidate is fully consistent with our holding in R. A. V. and is proscribable under the First Amendment. IV The Supreme Court of Virginia ruled in the alternative that Virginia's cross-burning statute was unconstitutionally overbroad due to its provision stating that "[a]ny such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons." Va. Code Ann. § 18.2-423 (1996). The Commonwealth added the prima facie provision to the statute in 1968. The court below did not reach whether this provision is severable from the rest of the cross-burning statute under Virginia law. See § 1-17.1 ("The provisions of all statutes are severable unless . . . it is [364] Opinion of O'CONNOR, J. apparent that two or more statutes or provisions must operate in accord with one another"). In this Court, as in the Supreme Court of Virginia, respondents do not argue that the prima facie evidence provision is unconstitutional as applied to anyone of them. Rather, they contend that the provision is unconstitutional on its face. The Supreme Court of Virginia has not ruled on the meaning of the prima facie evidence provision. It has, however, stated that "the act of burning a cross alone, with no evidence of intent to intimidate, will nonetheless suffice for arrest and prosecution and will insulate the Commonwealth from a motion to strike the evidence at the end of its case-inchief." 262 Va., at 778, 553 S. E. 2d, at 746. The jury in the case of Richard Elliott did not receive any instruction on the prima facie evidence provision, and the provision was not an issue in the case of Jonathan O'Mara because he pleaded guilty. The court in Barry Black's case, however, instructed the jury that the provision means: "The burning of a cross, by itself, is sufficient evidence from which you may infer the required intent." App. 196. This jury instruction is the same as the Model Jury Instruction in the Commonwealth of Virginia. See Virginia Model Jury Instructions, Criminal, Instruction No. 10.250 (1998 and Supp. 2001). The prima facie evidence provision, as interpreted by the jury instruction, renders the statute unconstitutional. Because this jury instruction is the Model Jury Instruction, and because the Supreme Court of Virginia had the opportunity to expressly disavow the jury instruction, the jury instruction's construction of the prima facie provision "is a ruling on a question of state law that is as binding on us as though the precise words had been written into" the statute. E. g., Terminiello v. Chicago , 337 U. S. 1 , 4 (1949) (striking down an ambiguous statute on facial grounds based upon the instruction given to the jury); see also New York v. Ferber , 458 U. S. 747 , 768, n. 21 (1982) (noting that Terminiello involved a facial challenge to the statute); Secretary of State [365] of Md. v. Joseph H. Munson Co. , 467 U. S. 947 , 965, n. 13 (1984); Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844, 845-846, n. 8 (1970); Monaghan, Overbreadth, 1981 S. Ct. Rev. 1, 10-12; Blakey & Murray, Threats, Free Speech, and the Jurisprudence of the Federal Criminal Law, 2002 B. Y. U. L. Rev. 829, 883, n. 133. As construed by the jury instruction, the prima facie provision strips away the very reason why a State may ban cross burning with the intent to intimidate. The prima facie evidence provision permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense. And even where a defendant like Black presents a defense, the prima facie evidence provision makes it more likely that the jury will find an intent to intimidate regardless of the particular facts of the case. The provision permits the Commonwealth to arrest, prosecute, and convict a person based solely on the fact of cross burning itself. It is apparent that the provision as so interpreted "'would create an unacceptable risk of the suppression of ideas.''' Secretary of State of Md. v. Joseph H. Munson Co., supra , at 965, n. 13 (quoting Members of City Council of Los Angeles v. Taxpayers for Vincent , 466 U. S. 789 , 797 (1984)). The act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation. But that same act may mean only that the person is engaged in core political speech. The prima facie evidence provision in this statute blurs the line between these two meanings of a burning cross. As interpreted by the jury instruction, the provision chills constitutionally protected political speech because of the possibility that the Commonwealth will prosecute-and potentially convict-somebody engaging only in lawful political speech at the core of what the First Amendment is designed to protect. As the history of cross burning indicates, a burning cross is not always intended to intimidate. Rather, sometimes the cross burning is a statement of ideology, a symbol of group [366] Opinion of O'CONNOR, J. solidarity. It is a ritual used at Klan gatherings, and it is used to represent the Klan itself. Thus, "[b]urning a cross at a political rally would almost certainly be protected expression." R. A. V. v. St. Paul , 505 U. S., at 402, n. 4 (White, J., concurring in judgment) (citing Brandenburg v. Ohio, 395 U. S., at 445). Cf. National Socialist Party of America v. Skokie , 432 U. S. 43 (1977) (per curiam). Indeed, occasionally a person who burns a cross does not intend to express either a statement of ideology or intimidation. Cross burnings have appeared in movies such as Mississippi Burning, and in plays such as the stage adaptation of Sir Walter Scott's The Lady of the Lake. The prima facie provision makes no effort to distinguish among these different types of cross burnings. It does not distinguish between a cross burning done with the purpose of creating anger or resentment and a cross burning done with the purpose of threatening or intimidating a victim. It does not distinguish between a cross burning at a public rally or a cross burning on a neighbor's lawn. It does not treat the cross burning directed at an individual differently from the cross burning directed at a group of like-minded believers. It allows a jury to treat a cross burning on the property of another with the owner's acquiescence in the same manner as a cross burning on the property of another without the owner's permission. To this extent I agree with JUSTICE SOUTER that the prima facie evidence provision can "skew jury deliberations toward conviction in cases where the evidence of intent to intimidate is relatively weak and arguably consistent with a solely ideological reason for burning." Post , at 385 (opinion concurring in judgment in part and dissenting in part). It may be true that a cross burning, even at a political rally, arouses a sense of anger or hatred among the vast majority of citizens who see a burning cross. But this sense of anger or hatred is not sufficient to ban all cross burnings. As Gerald Gunther has stated, "The lesson I have drawn [367] from my childhood in Nazi Germany and my happier adult life in this country is the need to walk the sometimes difficult path of denouncing the bigot's hateful ideas with all my power, yet at the same time challenging any community's attempt to suppress hateful ideas by force of law." Casper, Gerry, 55 Stan. L. Rev. 647, 649 (2002) (internal quotation marks omitted). The prima facie evidence provision in this case ignores all of the contextual factors that are necessary to decide whether a particular cross burning is intended to intimidate. The First Amendment does not permit such a shortcut. For these reasons, the prima facie evidence provision, as interpreted through the jury instruction and as applied in Barry Black's case, is unconstitutional on its face. We recognize that the Supreme Court of Virginia has not authoritatively interpreted the meaning of the prima facie evidence provision. Unlike JUSTICE SCALIA, we refuse to speculate on whether any interpretation of the prima facie evidence provision would satisfy the First Amendment. Rather, all we hold is that because of the interpretation of the prima facie evidence provision given by the jury instruction, the provision makes the statute facially invalid at this point. We also recognize the theoretical possibility that the court, on remand, could interpret the provision in a manner different from that so far set forth in order to avoid the constitutional objections we have described. We leave open that possibility. We also leave open the possibility that the provision is severable, and if so, whether Elliott and O'Mara could be retried under § 18.2-423. V With respect to Barry Black, we agree with the Supreme Court of Virginia that his conviction cannot stand, and we affirm the judgment of the Supreme Court of Virginia. With respect to Elliott and O'Mara, we vacate the judgment [368] Opinion of SCALIA, J. of the Supreme Court of Virginia, and remand the case for further proceedings. It is so ordered. JUSTICE STEVENS, concurring. Cross burning with "an intent to intimidate," Va. Code Ann. § 18.2-423 (1996), unquestionably qualifies as the kind of threat that is unprotected by the First Amendment. For the reasons stated in the separate opinions that Justice White and I wrote in R. A. V. v. St. Paul , 505 U. S. 377 (1992), that simple proposition provides a sufficient basis for upholding the basic prohibition in the Virginia statute even though it does not cover other types of threatening expressive conduct. With this observation, I join JUSTICE O'CONNOR'S opinion. JUSTICE SCALIA, with whom JUSTICE THOMAS joins as to Parts I and II, concurring in part, concurring in the judgment in part, and dissenting in part. I agree with the Court that, under our decision in R. A. V. v. St. Paul , 505 U. S. 377 (1992), a State may, without infringing the First Amendment, prohibit cross burning carried out with the intent to intimidate. Accordingly, I join Parts I-III of the Court's opinion. I also agree that we should vacate and remand the judgment of the Virginia Supreme Court so that that court can have an opportunity authoritatively to construe the prima-facie-evidence provision of Va. Code Ann. § 18.2-423 (1996). I write separately, however, to describe what I believe to be the correct interpretation of § 18.2-423, and to explain why I believe there is no justification for the plurality's apparent decision to invalidate that provision on its face. I Section 18.2-423 provides that the burning of a cross in public view "shall be prima facie evidence of an intent to intimidate." In order to determine whether this component [369] of the statute violates the Constitution, it is necessary, first, to establish precisely what the presentation of prima facie evidence accomplishes. Typically, "prima facie evidence" is defined as: "Such evidence as, in the judgment of the law, is sufficient to establish a given fact . . . and which if not rebutted or contradicted, will remain sufficient. [Such evidence], if unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the issue which it supports, but [it] may be contradicted by other evidence." Black's Law Dictionary 1190 (6th ed. 1990). The Virginia Supreme Court has, in prior cases, embraced this canonical understanding of the pivotal statutory language. e.g. , Babbitt v. Miller , 192 Va. 372, 379-380, 64 S. E. 2d 718, 722 (1951) ("Prima facie evidence is evidence which on its first appearance is sufficient to raise a presumption of fact or establish the fact in question unless rebutted"). For example, in Nance v. Commonwealth , 203 Va. 428, 124 S. E. 2d 900 (1962), the Virginia Supreme Court interpreted a law of the Commonwealth that (1) prohibited the possession of certain "burglarious" tools "with intent to commit burglary, robbery, or larceny . . . ," and (2) provided that "[t]he possession of such burglarious tools . . . shall be prima facie evidence of an intent to commit burglary, robbery or larceny." Va. Code Ann. § 18.1-87 (1960). The court explained that the prima-facie-evidence provision "cuts off no defense nor interposes any obstacle to a contest of the facts, and 'relieves neither the court nor the jury of the duty to determine all of the questions of fact from the weight of the whole evidence.'" Nance v. Commonwealth , 203 Va., at 432, 124 S. E. 2d, at 903-904; see also ibid. , 124 S. E. 2d, at 904 (noting that the prima-facie-evidence provision" 'is merely a rule of evidence and not the determination of a fact . . .'"). The established meaning in Virginia, then, of the term "prima facie evidence" appears to be perfectly orthodox: It [370] is evidence that suffices, on its own, to establish a particular fact. But it is hornbook law that this is true only to the extent that the evidence goes unrebutted. "Prima facie evidence of a fact is such evidence as, in judgment of law, is sufficient to establish the fact; and, if not rebutted, remains sufficient for the purpose." 7B Michie's Jurisprudence of Virginia and West Virginia § 32 (1998) (emphasis added). To be sure, Virginia is entirely free, if it wishes, to discard the canonical understanding of the term "prima facie evidence." Its courts are also permitted to interpret the phrase in different ways for purposes of different statutes. In this case, however, the Virginia Supreme Court has done nothing of the sort. To the extent that tribunal has spoken to the question of what "prima facie evidence" means for purposes of § 18.2-423, it has not deviated a whit from its prior practice and from the ordinary legal meaning of these words. Rather, its opinion explained that under § 18.2-423, "the act of burning a cross alone, with no evidence of intent to intimidate, will . . . suffice for arrest and prosecution and will insulate the Commonwealth from a motion to strike the evidence at the end of its case-in-chief." 262 Va. 764, 778, 553 S. E. 2d 738,746 (2001). Put otherwise, where the Commonwealth has demonstrated through its case in chief that the defendant burned a cross in public view, this is sufficient, at least until the defendant has come forward with rebuttal evidence, to create a jury issue with respect to the intent element of the offense. It is important to note that the Virginia Supreme Court did not suggest (as did the trial court's jury instructions in respondent Black's case, see infra , at 377) that a jury may, in light of the prima-facie-evidence provision, ignore any rebuttal evidence that has been presented and, solely on the basis of a showing that the defendant burned a cross, find that he intended to intimidate. Nor, crucially, did that court say that the presentation of prima facie evidence is always sufficient to get a case to a jury, i. e. , that a court may never [371] direct a verdict for a defendant who has been shown to have burned a cross in public view, even if, by the end of trial, the defendant has presented rebuttal evidence. Instead, according to the Virginia Supreme Court, the effect of the prima-facie-evidence provision is far more limited. It suffices to "insulate the Commonwealth from a motion to strike the evidence at the end of its case-in-chief," but it does nothing more. 262 Va., at 778, 553 S. E. 2d, at 746 (emphasis added). That is, presentation of evidence that a defendant burned a cross in public view is automatically sufficient, on its own, to support an inference that the defendant intended to intimidate only until the defendant comes forward with some evidence in rebuttal. II The question presented, then, is whether, given this understanding of the term "prima facie evidence," the crossburning statute is constitutional. The Virginia Supreme Court answered that question in the negative. It stated that "§ 18.2-423 sweeps within its ambit for arrest and prosecution, both protected and unprotected speech." Ibid. "The enhanced probability of prosecution under the statute chills the expression of protected speech sufficiently to render the statute overbroad." Id. , at 777, 553 S. E. 2d, at 746. This approach toward overbreadth analysis is unprecedented. We have never held that the mere threat that individuals who engage in protected conduct will be subject to arrest and prosecution suffices to render a statute overbroad. Rather, our overbreadth jurisprudence has consistently focused on whether the prohibitory terms of a particular statute extend to protected conduct; that is, we have inquired whether individuals who engage in protected conduct can be convicted under a statute, not whether they might be subject to arrest and prosecution. E. g., Houston v. Hill , 482 U. S. 451 , 459 (1987) (a statute "that makers] unlawful a substantial amount of constitutionally protected conduct may be held facially invalid" (emphasis added)); Grayned v. City of Rock- [372] ford , 408 U. S. 104 , 114 (1972) (a statute may be overbroad "if in its reach it prohibits constitutionally protected conduct" (emphasis added)); R. A. V. v. St. Paul , 505 U. S., at 397 (White, J., concurring in judgment) (deeming the ordinance at issue "fatally overbroad because it criminalizes . . . expression protected by the First Amendment" (emphasis added)). Unwilling to embrace the Virginia Supreme Court's novel mode of overbreadth analysis, today's opinion properly focuses on the question of who may be convicted, rather than who may be arrested and prosecuted, under § 18.2-423. Thus, it notes that "[t]he prima facie evidence provision permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense."[ Footnote 1 ] Ante , at 365 (emphasis added). In such cases, the plurality explains, "[t]he provision permits the Commonwealth to arrest, prosecute, and convict a person based solely on the fact of cross burning itself." Ibid. (emphasis added). And this, according to the plurality, is constitutionally problematic because "a burning cross is not always intended to intimidate," and nonintimidating cross burning cannot be prohibited. Ibid. In particular, the opinion notes that cross burning may serve as "a statement of ideology" or "a symbol of group solidarity" at Ku Klux Klan rituals, and may even serve artistic purposes as in the case of the film Mississippi Burning. Ante , at 365-366. The plurality is correct in all of this--and it means that some individuals who engage in protected speech may, be- [373] cause of the prima-facie-evidence provision, be subject to conviction. Such convictions, assuming they are unconstitutional, could be challenged on a case-by-case basis. The plurality, however, with little in the way of explanation, leaps to the conclusion that the possibility of such convictions justifies facial invalidation of the statute. In deeming § 18.2-423 facially invalid, the plurality presumably means to rely on some species of overbreadth doctrine.[ Footnote 2 ] But it must be a rare species indeed. We have noted that "[i]n a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct." Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U. S. 489 , 494 (1982). If one looks only to the core provision of § 18.2-423--"[i]t shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross . . . "--it appears not to capture any protected conduct; that language is limited in its reach to con- [374] duct which a State is, under the Court's holding, ante , at 363, allowed to prohibit. In order to identify any protected conduct that is affected by Virginia's cross-burning law, the plurality is compelled to focus not on the statute's core prohibition, but on the prima-facie-evidence provision, and hence on the process through which the prohibited conduct may be found by a jury.[ Footnote 3 ] And even in that context, the plurality cannot claim that improper convictions will result from the operation of the prima-facie-evidence provision alone. As the plurality concedes, the only persons who might impermissibly be convicted by reason of that provision are those who adopt a particular trial strategy, to wit, abstaining from the presentation of a defense. The plurality is thus left with a strikingly attenuated argument to support the claim that Virginia's cross-burning statute is facially invalid. The class of persons that the plurality contemplates could impermissibly be convicted under § 18.2-423 includes only those individuals who (1) burn a cross in public view, (2) do not intend to intimidate, (3) are nonetheless charged and prosecuted, and (4) refuse to present a defense. Ante , at 365 ("The prima facie evidence provision permits a jury to convict in every cross-burning case in which defendants exercise their constitutional right not to put on a defense"). Conceding (quite generously, in my view) that this class of persons exists, it cannot possibly give rise to a viable facial challenge, not even with the aid of our First Amendment [375] overbreadth doctrine. For this Court has emphasized repeatedly that "where a statute regulates expressive conduct, the scope of the statute does not render it unconstitutional unless its overbreadth is not only real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Osborne v. Ohio , 495 U. S. 103 , 112 (1990) (internal quotation marks omitted; emphasis added). See also Houston v. Hill , 482 U. S., at 458 ("Only a statute that is substantially overbroad may be invalidated on its face"); Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 800 (1984) ("[T]he mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge"); New York v. Ferber , 458 U. S. 747 , 771 (1982) ("[A] law should not be invalidated for overbreadth unless it reaches a substantial number of impermissible applications . . . "). The notion that the set of cases identified by the plurality in which convictions might improperly be obtained is sufficiently large to render the statute substantially overbroad is fanciful. The potential improper convictions of which the plurality complains are more appropriately classified as the sort of "marginal applications" of a statute in light of which "facial invalidation is inappropriate." Parker v. Levy , 417 U. S. 733 , 760 (1974).[ Footnote 4 ] [376] Perhaps more alarming, the plurality concedes, ante , at 364, 365, that its understanding of the prima-facie-evidence provision is premised on the jury instructions given in respondent Black's case. This would all be well and good were it not for the fact that the plurality facially invalidates § 18.2-423. Ante , at 367 ("[T]he prima facie evidence provision, as interpreted through the jury instruction and as applied in Barry Black's case, is unconstitutional on its face"). I am aware of no case--and the plurality cites none--in which we have facially invalidated an ambiguous statute on the basis of a constitutionally troubling jury instruction.[ Footnote 5 ] And it is alto- [377] gether unsurprising that there is no precedent for such a holding. For where state law is ambiguous, treating jury instructions as binding interpretations would cede an enormous measure of power over state law to trial judges. A single judge's idiosyncratic reading of a state statute could trigger its invalidation. In this case, the troubling instruction--"The burning of a cross, by itself, is sufficient evidence from which you may infer the required intent," App. 196--was taken verbatim from Virginia's Model Jury Instructions. But these Model Instructions have been neither promulgated by the legislature nor formally adopted by the Virginia Supreme Court. And it is hornbook law, in Virginia as elsewhere, that "[p]roffered instructions which do not correctly state the law . . . are erroneous and should be refused." lOA Michie's Jurisprudence of Virginia and West Virginia, Instructions § 15, p. 35 (Supp. 2000). The plurality's willingness to treat this jury instruction as binding (and to strike down § 18.2-423 on that basis) would be shocking enough had the Virginia Supreme Court offered no guidance as to the proper construction of the prima-facieevidence provision. For ordinarily we would decline to pass upon the constitutionality of an ambiguous state statute until that State's highest court had provided a binding construc- [378] tion. E. g., Arizonans for Official English v. Arizona, 520 U. S. 43, 78 (1997). If there is any exception to that rule, it is the case where one of two possible interpretations of the state statute would clearly render it unconstitutional, and the other would not. In that situation, applying the maxim "ut res magis valeat quam pereat" we would do precisely the opposite of what the plurality does here-that is, we would adopt the alternative reading that renders the statute constitutional rather than unconstitutional. The plurality's analysis is all the more remarkable given the dissonance between the interpretation of § 18.2-423 implicit in the jury instruction and the one suggested by the Virginia Supreme Court. That court's opinion did not state that, once proof of public cross burning is presented, a jury is permitted to infer an intent to intimidate solely on this basis and regardless of whether a defendant has offered evidence to rebut any such inference. To the contrary, in keeping with the black-letter understanding of "prima facie evidence," the Virginia Supreme Court explained that such evidence suffices only to "insulate the Commonwealth from a motion to strike the evidence at the end of its case-in-chief." 262 Va., at 778, 553 S. E. 2d, at 746. The court did not so much as hint that a jury is permitted, under § 18.2-423, to ignore rebuttal evidence and infer an intent to intimidate strictly on the basis of the prosecution's prima facie case. And unless and until the Supreme Court of Virginia tells us that the prima-facieevidence provision permits a jury to infer intent under such conditions, this Court is entirely unjustified in facially invalidating § 18.2-423 on this basis. As its concluding performance, in an apparent effort to paper over its unprecedented decision facially to invalidate a statute in light of an errant jury instruction, the plurality states: "We recognize that the Supreme Court of Virginia has not authoritatively interpreted the meaning of the prima facie evidence provision . . . . We also recognize the [379] theoretical possibility that the court, on remand, could interpret the provision in a manner different from that so far set forth in order to avoid the constitutional objections we have described. We leave open that possibility." Ante , at 367. Now this is truly baffling. Having declared, in the immediately preceding sentence, that § 18.2-423 is "unconstitutional on its face," ibid. (emphasis added), the plurality holds out the possibility that the Virginia Supreme Court will offer some saving construction of the statute. It should go without saying that if a saving construction of § 18.2-423 is possible, then facial invalidation is inappropriate. E. g., Harrison v. NAACp , 360 U. S. 167 , 176 (1959) ("[N]o principle has found more consistent or clear expression than that the federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them"). So, what appears to have happened is that the plurality has facially invalidated not § 18.2-423, but its own hypothetical interpretation of § 18.2-423, and has then remanded to the Virginia Supreme Court to learn the actual interpretation of § 18.2-423. Words cannot express my wonderment at this virtuoso performance. III As the analysis in Part I, supra , demonstrates, I believe the prima-facie-evidence provision in Virginia's crossburning statute is constitutionally unproblematic. Nevertheless, because the Virginia Supreme Court has not yet offered an authoritative construction of § 18.2-423, I concur in the Court's decision to vacate and remand the judgment with respect to respondents Elliott and O'Mara. I also agree that respondent Black's conviction cannot stand. As noted above, the jury in Black's case was instructed that "[t]he burning of a cross, by itself , is sufficient evidence from which you may infer the required intent." App. 196 (emphasis [380] added). Where this instruction has been given, it is impossible to determine whether the jury has rendered its verdict (as it must) in light of the entire body of facts before it-- including evidence that might rebut the presumption that the cross burning was done with an intent to intimidate--or, instead, has chosen to ignore such rebuttal evidence and focused exclusively on the fact that the defendant burned a cross.[ Footnote 6 ] Still, I cannot go along with the Court's decision to affirm the judgment with respect to Black. In that judgment, the Virginia Supreme Court, having erroneously concluded that § 18.2-423 is overbroad, not only vacated Black's conviction, but dismissed the indictment against him as well. 262 Va., at 779, 553 S. E. 2d, at 746. Because I believe the constitutional defect in Black's conviction is rooted in a jury instruction and not in the statute itself, I would not dismiss the indictment and would permit the Commonwealth to retry Black if it wishes to do so. It is an interesting question whether the plurality's willingness to let the Virginia Supreme Court resolve the plurality's make-believe facial invalidation of the statute extends as well to the facial invalidation insofar as it supports dismissal of the indictment against Black. Logically, there is no reason why it would not. JUSTICE SOUTER, with whom JUSTICE KENNEDY and JusTICE GINSBURG join, concurring in the judgment in part and dissenting in part. I agree with the majority that the Virginia statute makes a content-based distinction within the category of punishable intimidating or threatening expression, the very type of dis- [381] tinction we considered in R. A. V. v. St. Paul , 505 U. S. 377 (1992). I disagree that any exception should save Virginia's law from unconstitutionality under the holding in R. A. V. or any acceptable variation of it. I The ordinance struck down in R. A. V. , as it had been construed by the State's highest court, prohibited the use of symbols (including but not limited to a burning cross) as the equivalent of generally proscribable fighting words, but the ordinance applied only when the symbol was provocative " 'on the basis of race, color, creed, religion or gender.''' Id. , at 380 (quoting St. Paul, Minn., Legis. Code § 292.02 (1990)). Although the Virginia statute in issue here contains no such express "basis of" limitation on prohibited subject matter, the specific prohibition of cross burning with intent to intimidate selects a symbol with particular content from the field of all proscribable expression meant to intimidate. To be sure, that content often includes an essentially intimidating message, that the cross burner will harm the victim, most probably in a physical way, given the historical identification of burning crosses with arson, beating, and lynching. But even when the symbolic act is meant to terrify, a burning cross may carry a further, ideological message of white Protestant supremacy. The ideological message not only accompanies many threatening uses of the symbol, but is also expressed when a burning cross is not used to threaten but merely to symbolize the supremacist ideology and the solidarity of those who espouse it. As the majority points out, the burning cross can broadcast threat and ideology together, ideology alone, or threat alone, as was apparently the choice of respondents Elliott and O'Mara. Ante , at 354357,363. The issue is whether the statutory prohibition restricted to this symbol falls within one of the exceptions to R. A. V. 's general condemnation of limited content-based proscription [382] within a broader category of expression proscribable generally. Because of the burning cross's extraordinary force as a method of intimidation, the R. A. V. exception most likely to cover the statute is the first of the three mentioned there, which the R. A. V. opinion called an exception for content discrimination on a basis that "consists entirely of the very reason the entire class of speech at issue is proscribable." 505 U. S., at 388. This is the exception the majority speaks of here as covering statutes prohibiting "particularly virulent" proscribable expression. Ante , at 363. I do not think that the Virginia statute qualifies for this virulence exception as R. A. V. explained it. The statute fits poorly with the illustrative examples given in R. A. V. , none of which involves communication generally associated with a particular message, and in fact, the majority's discussion of a special virulence exception here moves that exception toward a more flexible conception than the version in R. A. V. I will reserve judgment on that doctrinal development, for even on a pragmatic conception of R. A. V. and its exceptions the Virginia statute could not pass muster, the most obvious hurdle being the statute's prima facie evidence provision. That provision is essential to understanding why the statute's tendency to suppress a message disqualifies it from any rescue by exception from R. A. V. 's general rule. II R. A. V. defines the special virulence exception to the rule barring content-based subclasses of categorically pros cribable expression this way: prohibition by subcategory is nonetheless constitutional if it is made "entirely" on the "basis" of "the very reason" that "the entire class of speech at issue is proscribable" at all. 505 U. S., at 388. The Court explained that when the subcategory is confined to the most obviously proscribable instances, "no significant danger of idea or viewpoint discrimination exists," ibid. , and the expla- [383] nation was rounded out with some illustrative examples. None of them, however, resembles the case before us.[ Footnote 1 ] The first example of permissible distinction is for a prohibition of obscenity unusually offensive "in its prurience," ibid. (emphasis deleted), with citation to a case in which the Seventh Circuit discussed the difference between obscene depictions of actual people and simulations. As that court noted, distinguishing obscene publications on this basis does not suggest discrimination on the basis of the message conveyed. Kucharek v. Hanaway , 902 F.2d 513 , 517-518 (1990). The opposite is true, however, when a general prohibition of intimidation is rejected in favor of a distinct proscription of intimidation by cross burning. The cross may have been selected because of its special power to threaten, but it may also have been singled out because of disapproval of its message of white supremacy, either because a legislature thought white supremacy was a pernicious doctrine or because it found that dramatic, public espousal of it was a civic embarrassment. Thus, there is no kinship between the cross-burning statute and the core prurience example. Nor does this case present any analogy to the statute prohibiting threats against the President, the second of R. A. V. 's examples of the virulence exception and the one the majority relies upon. Ante , at 362. The content discrimination in that statute relates to the addressee of the threat and reflects the special risks and costs associated with threatening the President. Again, however, threats against the President are not generally identified by reference to the content of any message that may accompany the threat, let alone any viewpoint, and there is no obvious correlation in fact between victim and message. Millions of statements are made about the President every day on every subject [384] and from every standpoint; threats of violence are not an integral feature of anyone subject or viewpoint as distinct from others. Differential treatment of threats against the President, then, selects nothing but special risks, not special messages. A content-based proscription of cross burning, on the other hand, may be a subtle effort to ban not only the intensity of the intimidation cross burning causes when done to threaten, but also the particular message of white supremacy that is broadcast even by nonthreatening cross burning. I thus read R. A. V. 's examples of the particular virulence exception as covering prohibitions that are not clearly associated with a particular viewpoint, and that are consequently different from the Virginia statute. On that understanding of things, I necessarily read the majority opinion as treating R. A. V. 's virulence exception in a more flexible, pragmatic manner than the original illustrations would suggest. Ante , at 363. Actually, another way of looking at today's decision would see it as a slight modification of R. A. V. 's third exception, which allows content-based discrimination within a proscribable category when its "nature" is such "that there is no realistic possibility that official suppression of ideas is afoot." R. A. V. , supra , at 390. The majority's approach could be taken as recognizing an exception to R. A. V. when circumstances show that the statute's ostensibly valid reason for punishing particularly serious proscribable expression probably is not a ruse for message suppression, even though the statute may have a greater (but not exclusive) impact on adherents of one ideology than on others, ante , at 362-363. III My concern here, in any event, is not with the merit of a pragmatic doctrinal move. For whether or not the Court should conceive of exceptions to R. A. V. 's general rule in a more practical way, no content-based statute should survive even under a pragmatic recasting of R. A. V. without a high probability that no "official suppression of ideas is afoot," [385] 505 U. S., at 390. I believe the prima facie evidence provision stands in the way of any finding of such a high probability here. Virginia's statute provides that burning a cross on the property of another, a highway, or other public place is "prima facie evidence of an intent to intimidate a person or group of persons." Va. Code Ann. § 18.2-423 (1996). While that language was added by amendment to the earlier portion of the statute criminalizing cross burning with intent to intimidate, ante , at 363 (plurality opinion), it was a part of the prohibitory statute at the time these respondents burned crosses, and the whole statute at the time of respondents' conduct is what counts for purposes of the First Amendment. As I see the likely significance of the evidence provision, its primary effect is to skew jury deliberations toward conviction in cases where the evidence of intent to intimidate is relatively weak and arguably consistent with a solely ideological reason for burning. To understand how the provision may work, recall that the symbolic act of burning a cross, without more, is consistent with both intent to intimidate and intent to make an ideological statement free of any aim to threaten. Ante , at 354-357. One can tell the intimidating instance from the wholly ideological one only by reference to some further circumstance. In the real world, of course, and in real-world prosecutions, there will always be further circumstances, and the factfinder will always learn something more than the isolated fact of cross burning. Sometimes those circumstances will show an intent to intimidate, but sometimes they will be at least equivocal, as in cases where a white supremacist group burns a cross at an initiation ceremony or political rally visible to the public. In such a case, if the factfinder is aware of the prima facie evidence provision, as the jury was in respondent Black's case, ante , at 349-350, the provision will have the practical effect of tilting the jury's thinking in favor of the prosecution. What is significant is not that the provision [386] permits a factfinder's conclusion that the defendant acted with proscribable and punishable intent without any further indication, because some such indication will almost always be presented. What is significant is that the provision will encourage a factfinder to err on the side of a finding of intent to intimidate when the evidence of circumstances fails to point with any clarity either to the criminal intent or to the permissible one. The effect of such a distortion is difficult to remedy, since any guilty verdict will survive sufficiency review unless the defendant can show that, "viewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U. S. 307 , 319 (1979). The provision will thus tend to draw nonthreatening ideological expression within the ambit of the prohibition of intimidating expression, as JUSTICE O'CONNOR notes. Ante , at 365-366 (plurality opinion). To the extent the prima facie evidence provision skews prosecutions, then, it skews the statute toward suppressing ideas. Thus, the appropriate way to consider the statute's prima facie evidence term, in my view, is not as if it were an overbroad statutory definition amenable to severance or a narrowing construction. The question here is not the permissible scope of an arguably overbroad statute, but the claim of a clearly content-based statute to an exception from the general prohibition of content-based proscriptions, an exception that is not warranted if the statute's terms show that suppression of ideas may be afoot. Accordingly, the way to look at the prima facie evidence provision is to consider it for any indication of what is afoot. And if we look at the provision for this purpose, it has a very obvious significance as a mechanism for bringing within the statute's prohibition some expression that is doubtfully threatening though certainly distasteful. It is difficult to conceive of an intimidation case that could be easier to prove than one with cross burning, assum- [387] ing any circumstances suggesting intimidation are present. The provision, apparently so unnecessary to legitimate prosecution of intimidation, is therefore quite enough to raise the question whether Virginia's content-based statute seeks more than mere protection against a virulent form of intimidation. It consequently bars any conclusion that an exception to the general rule of R. A. V. is warranted on the ground "that there is no realistic [or little realistic] possibility that official suppression of ideas is afoot," 505 U. S., at 390.[ Footnote 2 ] Since no R. A. V. exception can save the statute as content based, it can only survive if narrowly tailored to serve a compelling state interest, id. , at 395-396, a stringent test the statute cannot pass; a content-neutral statute banning intimidation would achieve the same object without singling out particular content. IV I conclude that the statute under which all three of the respondents were prosecuted violates the First Amendment, since the statute's content-based distinction was invalid at the time of the charged activities, regardless of whether the prima facie evidence provision was given any effect in any respondent's individual case. In my view, severance of the prima facie evidence provision now could not eliminate the unconstitutionality of the whole statute at the time of the respondents' conduct. I would therefore affirm the judgment of the Supreme Court of Virginia vacating the respondents' convictions and dismissing the indictments. Accordingly, I concur in the Court's judgment as to respondent Black and dissent as to respondents Elliott and O'Mara. [388] In every culture, certain things acquire meaning well beyond what outsiders can comprehend. That goes for both the sacred, see Texas v. Johnson , 491 U. S. 397 , 422-429 (1989) (REHNQUIST, C. J., dissenting) (describing the unique position of the American flag in our Nation's 200 years of history), and the profane. I believe that cross burning is the paradigmatic example of the latter. I Although I agree with the majority's conclusion that it is constitutionally permissible to "ban . . . cross burning carried out with the intent to intimidate," ante , at 363, I believe that the majority errs in imputing an expressive component to the activity in question, see ante , at 362 (relying on one of the exceptions to the First Amendment's prohibition on content-based discrimination outlined in R. A. V. v. St. Paul , 505 U. S. 377 (1992)). In my view, whatever expressive value cross burning has, the legislature simply wrote it out by banning only intimidating conduct undertaken by a particular means. A conclusion that the statute prohibiting cross burning with intent to intimidate sweeps beyond a prohibition on certain conduct into the zone of expression overlooks not only the words of the statute but also reality. A "In holding [the ban on cross burning with intent to intimidate] unconstitutional, the Court ignores Justice Holmes' familiar aphorism that 'a page of history is worth a volume of logic.'" Texas v. Johnson, supra , at 421 (REHNQUIST, C. J., dissenting) (quoting New York Trust Co. v. Eisner , 256 U. S. 345 , 349 (1921)). "The world's oldest, most persistent terrorist organization is not European or even Middle Eastern in origin. Fifty years before the Irish Republican Army was orga- [389] nized, a century before Al Fatah declared its holy war on Israel, the Ku Klux Klan was actively harassing, torturing, and murdering in the United States. Today . . . its members remain fanatically committed to a course of violent opposition to social progress and racial equality in the United States." M. Newton & J. Newton, The Ku Klux Klan: An Encyclopedia vii (1991) (hereinafter Newton & Newton). To me, the majority's brief history of the Ku Klux Klan only reinforces this common understanding of the Klan as a terrorist organization, which, in its endeavor to intimidate, or even eliminate those it dislikes, uses the most brutal of methods. Such methods typically include cross burning-"a tool for the intimidation and harassment of racial minorities, Catholics, Jews, Communists, and any other groups hated by the Klan." Capitol Square Review and Advisory Bd. v. Pinette , 515 U. S. 753 , 770 (1995) (THOMAS, J., concurring). For those not easily frightened, cross burning has been followed by more extreme measures, such as beatings and murder. J. Williams, Eyes on the Prize: America's Civil Rights Years, 1954-1965, p. 39 (1987). As the Government points out, the association between acts of intimidating cross burning and violence is well documented in recent American history. Brief for United States as Amicus Curiae 3-4, and n. 2.[ Footnote 1 ] [390] Indeed, the connection between cross burning and violence is well ingrained, and lower courts have so recognized: "After the mother saw the burning cross, she was crying on her knees in the living room. [She] felt feelings of frustration and intimidation and feared for her husband's life. She testified what the burning cross symbolized to her as a black American: 'Nothing good. Murder, hanging, rape, lynching. Just anything bad [391] that you can name. It is the worst thing that could happen to a person.' . . . Mr. Heisser told the probation officer that at the time of the occurrence, if the family did not leave, he believed someone would return to commit murder . . . . Seven months after the incident, the family still lived in fear . . . . This is a reaction reasonably to be anticipated from this criminal conduct." United States v. Skillman , 922 F.2d 1370 , 1378 (CA9 1991) (emphasis added). But the perception that a burning cross is a threat and a precursor of worse things to come is not limited to blacks. Because the modern Klan expanded the list of its enemies beyond blacks and "radical[sJ" to include Catholics, Jews, most immigrants, and labor unions, Newton & Newton ix, a burning cross is now widely viewed as a signal of impending terror and lawlessness. I wholeheartedly agree with the observation made by the Commonwealth of Virginia: "A white, conservative, middle-class Protestant, waking up at night to find a burning cross outside his home, will reasonably understand that someone is threatening him. His reaction is likely to be very different than if he were to find, say, a burning circle or square. In the latter case, he may call the fire department. In the former, he will probably call the police." Brief for Petitioner 26. In our culture, cross burning has almost invariably meant lawlessness and understandably instills in its victims wellgrounded fear of physical violence. B Virginia's experience has been no exception. In Virginia, though facing widespread opposition in the 1920's, the Klan developed localized strength in the southeastern part of the Commonwealth, where there were reports of scattered raids and floggings. Newton & Newton 585. Although the Klan was disbanded at the national level in 1944, ibid. , a series of [392] cross burnings in Virginia took place between 1949 and 1952. See 262 Va. 764, 771, n. 2, 553 S. E. 2d 738, 742, n. 2 (2001) (collecting newspaper accounts of cross burnings in Virginia during that time period); see also Cross Fired Near Suffolk Stirs Probe, Burning Second in Past Week, Richmond Times-Dispatch, Jan. 23, 1949, section 2, p. 1, App. 313, 314-315 (The second reported cross burning within a week in 1949 "brought to eight the number which have occurred in Virginia during the past year. Six of the incidents have occurred in N ansemond County. Four crosses were burned near Suffolk last Spring, and about 150 persons took part in the December 11 cross burning near Whaleyville. No arrests have been made in connection with any of the incidents"). Most of the crosses were burned on the lawns of black families, who either were business owners or lived in predominantly white neighborhoods. See Police Aid Requested by Teacher, Cross is Burned in Negro's Yard, Richmond News Leader, Jan. 21, 1949, p. 19, App. 312; Cross Fired Near Suffolk Stirs Probe, Burning Second in Past Week, supra , at 313; Cross is Burned at Reedville Home, Richmond News Leader, Apr. 14, 1951, p. 1, App. 321. At least one of the cross burnings was accompanied by a shooting. Cross Burned at Manakin, Third in Area, supra n. 1, at 318. The crosses burned near residences were about five to six feet tall, while a "huge cross reminiscent of the Ku Klux Klan days" that burned "atop a hill" as part of the initiation ceremony of the secret organization of the Knights of Kavaliers was 12 feet tall. Huge Cross is Burned on Hill Just South of Covington, Richmond Times-Dispatch, Apr. 14, 1950, p. 6, App. 316. These incidents were, in the words of the time, "terroristic [sic]" and "un-American act[s], designed to intimidate Negroes from seeking their rights as citizens." Cross Fired Near Suffolk Stirs Probe, Burning Second in Past Week, supra , at 315 (emphasis added). [393] In February 1952, in light of this series of cross burnings and attendant reports that the Klan, "long considered dead in Virginia, is being revitalized in Richmond," Governor Battle announced that "Virginia 'might well consider passing legislation' to restrict the activities of the Ku Klux Klan." "State Might Well Consider" Restrictions on Ku Klux Klan, Governor Battle Comments, Richmond Times-Dispatch, Feb. 6, 1952, p. 7, App. 321. As newspapers reported at the time, the bill was "to ban the burning of crosses and other similar evidences of terrorism." Name Rider Approved by House, Richmond News Leader, Feb. 23,1952, p.1, App. 325 (emphasis added). The bill was presented to the House of Delegates by a former FBI agent and future two-term Governor, Delegate Mills E. Godwin, Jr. "Godwin said law and order in the State were impossible if organized groups could create fear by intimidation." Bill to Curb KKK Passed By the House, Action is Taken Without Debate, Richmond TimesDispatch, Mar. 8, 1952, p. 5, App. 325 (emphasis added). That in the early 1950's the people of Virginia viewed cross burning as creating an intolerable atmosphere of terror is not surprising: Although the cross took on some religious significance in the 1920's when the Klan became connected with certain southern white clergy, by the postwar period it had reverted to its original function "as an instrument of intimidation." W. Wade, The Fiery Cross: The Ku Klux Klan in America 185, 279 (1987). Strengthening Delegate Godwin's explanation, as well as my conclusion, that the legislature sought to criminalize terrorizing conduct is the fact that at the time the statute was enacted, racial segregation was not only the prevailing practice, but also the law in Virginia.[ Footnote 2 ] And, just two years [394] after the enactment of this statute, Virginia's General Assembly embarked on a campaign of "massive resistance" in response to Brown v. Board of Education , 347 U. S. 483 (1954). See generally Griffin v. School Bd. of Prince Edward Cty. , 377 U. S. 218 , 221 (1964); Harrison v. Day, 200 Va. 439, 448-454, 106 S. E. 2d 636, 644-648 (1959) (describing massive resistance as legislatively mandated attempt to close public schools rather than desegregate). It strains credulity to suggest that a state legislature that adopted a litany of segregationist laws self-contradictorily intended to squelch the segregationist message. Even for segregationists, violent and terroristic conduct, the Siamese twin of cross burning, was intolerable. The ban on cross burning with intent to intimidate demonstrates that even segregationists understood the difference between intimidating and terroristic conduct and racist expression. It is simply beyond belief that, in passing the statute now under review, the Virginia Legislature was concerned with anything but penalizing conduct it must have viewed as particularly vicious. Accordingly, this statute prohibits only conduct, not expression. And, just as one cannot burn down someone's house to make a political point and then seek refuge in the First Amendment, those who hate cannot terrorize and intimidate to make their point. In light of my conclusion that [395] the statute here addresses only conduct, there is no need to analyze it under any of our First Amendment tests. II Even assuming that the statute implicates the First Amendment, in my view, the fact that the statute permits a jury to draw an inference of intent to intimidate from the cross burning itself presents no constitutional problems. Therein lies my primary disagreement with the plurality. A "The threshold inquiry in ascertaining the constitutional analysis applicable to [a jury instruction involving a presumption] is to determine the nature of the presumption it describes." Francis v. Franklin , 471 U. S. 307 , 313-314 (1985) (internal quotation marks omitted). We have categorized the presumptions as either permissive inferences or mandatory presumptions. Id. , at 314. To the extent we do have a construction of this statute by the Virginia Supreme Court, we know that both the majority and the dissent agreed that the presumption was "a statutorily supplied inference," 262 Va., at 778, 553 S. E. 2d, at 746 (emphasis added); id. , at 795, 553 S. E. 2d, at 755 (Hassell, J., dissenting) ("Code § 18.2-423 creates a statutory inference" (emphasis added)). Under Virginia law, the term "inference" has a well-defined meaning and is distinct from the term "presumption." Martin v. Phillips , 235 Va. 523, 526, 369 S. E. 2d 397, 399 (1988). "A presumption is a rule of law that compels the fact finder to draw a certain conclusion or a certain inference from a given set of facts.[1] The primary significance of a presumption is that it operates to shift to the opposing party the burden of producing evidence tending to rebut the presumption.[2] No presumption, however, can operate to shift the ultimate burden of persuasion from the party upon whom it was originally cast. [396] "[1] In contrast, an inference, sometimes loosely referred to as a presumption of fact, does not compel a specific conclusion. An inference merely applies to the rational potency or probative value of an evidentiary fact to which the fact finder may attach whatever force or weight it deems best. 9 J. Wigmore, Evidence in Trials at Common Law § 2491(1), at 304 (Chad. rev. 1981). "[2] An inference, on the other hand, does not invoke this procedural consequence of shifting the burden of production. Id. " Ibid. (some citations omitted; emphasis added). Both the majority and the dissent below classified the clause in question as an "inference," and I see no reason to disagree, particularly in light of the instructions given to the jury in Black's case, requiring it to find guilt beyond a reasonable doubt both as to the fact that "the defendant burned or caused to be burned a cross in a public place," and that "he did so with the intent to intimidate any person or group of persons," 262 Va., at 796, 553 S. E. 2d, at 756 (Hassell, J., dissenting) (quoting jury instructions in Black's case). Even though under Virginia law the statutory provision at issue here is characterized as an "inference," the Court must still inquire whether the label Virginia attaches corresponds to the categorization our cases have given such clauses. In this respect, it is crucial to observe that what Virginia law calls an "inference" is what our cases have termed a "permissive inference or presumption." County Court of Ulster Cty. v. Allen , 442 U. S. 140 , 157 (1979).[ Footnote 3 ] Given that this 3 As the Court explained in Allen , a permissive inference or presumption "allows-but does not require-the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant. In that situation the basic fact may constitute prima facie evidence of the elemental fact . . . . Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the 'beyond a reasonable doubt' standard only if, under the facts of the case, there is no rational way the trier could make the connection permit- [397] Court's definitions of a "permissive inference" and a "mandatory presumption" track Virginia's definitions of "inference" and "presumption," the Court should judge the Virginia statute based on the constitutional analysis applicable to "inferences": they raise no constitutional flags unless there is "no rational way the trier could make the connection permitted by the inference." Ibid. As explained in Part I, supra, not making a connection between cross burning and intimidation would be irrational. But even with respect to statutes containing a mandatory irrebuttable presumption as to intent, the Court has not shown much concern. For instance, there is no scienter requirement for statutory rape. See, e.g. , Tenn. Code Ann. § 39-13-506 (1997); Ore. Rev. Stat. Ann. § 163.365 (1989); Mo. Rev. Stat. § 566.032 (2000); Ga. Code Ann. § 16-6-3 (1996). That is, a person can be arrested, prosecuted, and convicted for having sex with a minor, without the government ever producing any evidence, let alone proving beyond a reasonable doubt, that a minor did not consent. In fact, "[f]or purposes of the child molesting statute . . . consent is irrelevant. The legislature has determined in such cases that children under the age of sixteen (16) cannot, as a matter of law, consent to have sexual acts performed upon them, or consent to engage in a sexual act with someone over the age of sixteen (16)." Warrick v. State , 538 N. E. 2d 952, 954 (Ind. App. 1989) (citing Ind. Code § 35-42-4-3 (1988)). The legislature finds the behavior so reprehensible that the intent is satisfied by the mere act committed by a perpetrator. Considering [398] the horrific effect cross burning has on its victims, it is also reasonable to presume intent to intimidate from the act itself. Statutes prohibiting possession of drugs with intent to distribute operate much the same way as statutory rape laws. Under these statutes, the intent to distribute is effectively satisfied by possession of some threshold amount of drugs. See, e.g. , Del. Code Ann., Tit. 16, §4753A (1987); Mass. Gen. Laws, ch. 94C , § 32E (West 1997); S. C. Code Ann. § 44-53-370 (West 2000). As with statutory rape, the presumption of intent in such statutes is irrebuttable-not only can a person be arrested for the crime of possession with intent to distribute (or "trafficking") without any evidence of intent beyond quantity of drugs, but such person cannot even mount a defense to the element of intent. However, as with statutory rape statutes, our cases do not reveal any controversy with respect to the presumption of intent in these drug statutes. Because the prima facie clause here is an inference, not an irrebuttable presumption, there is all the more basis under our due process precedents to sustain this statute. B The plurality, however, is troubled by the presumption because this is a First Amendment case. The plurality laments the fate of an innocent cross burner who burns a cross, but does so without an intent to intimidate. The plurality fears the chill on expression because, according to the plurality, the inference permits "the Commonwealth to arrest, prosecute, and convict a person based solely on the fact of cross burning itself." Ante , at 365. First, it is, at the very least, unclear that the inference comes into play during arrest and initiation of a prosecution, that is, prior to the instructions stage of an actual trial. Second, as I explained above, the inference is rebuttable and, as the jury instructions given in this case demonstrate, Virginia law still re- [399] quires the jury to find the existence of each element, including intent to intimidate, beyond a reasonable doubt. Moreover, even in the First Amendment context, the Court has upheld such regulations where conduct that initially appears culpable ultimately results in dismissed charges. A regulation of pornography is one such example. While possession of child pornography is illegal, New York v. Ferber , 458 U. S. 747 , 764 (1982), possession of adult pornography, as long as it is not obscene, is allowed, Miller v. California , 413 U. S. 15 (1973). As a result, those pornographers trafficking in images of adults who look like minors may be not only deterred but also arrested and prosecuted for possessing what a jury might find to be legal materials. This "chilling" effect has not, however, been a cause for grave concern with respect to overbreadth of such statutes among the Members of this Court. That the First Amendment gives way to other interests is not a remarkable proposition. What is remarkable is that, under the plurality's analysis, the determination whether an interest is sufficiently compelling depends not on the harm a regulation in question seeks to prevent, but on the area of society at which it aims. For instance, in Hill v. Colorado , 530 U. S. 703 (2000), the Court upheld a restriction on protests near abortion clinics, explaining that the State had a legitimate interest, which was sufficiently narrowly tailored, in protecting those seeking services of such establishments from "unwanted advice" and "unwanted communication," id. , at 708, 716, 717, 729. In so concluding, the Court placed heavy reliance on the "vulnerable physical and emotional conditions" of patients. Id. , at 729. Thus, when it came to the rights of those seeking abortions, the Court deemed restrictions on "unwanted advice," which, notably, can be given only from a distance of at least eight feet from a prospective patient, justified by the countervailing interest in obtaining an abortion. Yet, here, the plurality strikes down the statute because one day an individual might wish to burn a cross, [400] but might do so without an intent to intimidate anyone. That cross burning subjects its targets, and, sometimes, an unintended audience, see 262 Va., at 782, 553 S. E. 2d, at 748-749 (Hassell, J., dissenting); see also App. 93-97, to extreme emotional distress, and is virtually never viewed merely as "unwanted communication," but rather, as a physical threat, is of no concern to the plurality. Henceforth, under the plurality's view, physical safety will be valued less than the right to be free from unwanted communications. III Because I would uphold the validity of this statute, I respectfully dissent. Notes [ Footnote * ] Briefs of amici curiae urging reversal were filed for the State of California by Bill Lockyer , Attorney General, Manuel M. Medeiros , State Solicitor General, Richard M. Frank , Chief Assistant Attorney General, and Angela Sierra , Deputy Attorney General; for the State of New Jersey et al. by David Samson , Attorney General of New Jersey, and Carol Johnston , Deputy Attorney General, and by the Attorneys General for their respective States as follows: Janet Napolitano of Arizona, Richard Blumenthal of Connecticut, Thomas J. Miller of Iowa, J. Joseph Curran, Jr. , of Maryland, Thomas F. Reilly of Massachusetts, Jennifer M. Granholm of Michigan, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Roy Cooper of North Carolina, W A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Mark L. Shurtleff of Utah, and William H. Sorrell of Vermont; and for the Criminal Justice Legal Foundation by Kent Briefs of amici curiae urging affirmance were filed for the Council of Conservative Citizens by Edgar J. Steele; for the Rutherford Institute by John W Whitehead and Steven H. Aden; and for the Thomas Jefferson Center for the Protection of Free Expression by Robert M. O'Neil and J. Joshua Wheeler. Martin E. Karlinsky , Howard W. Goldstein , Steven M. Freeman , Frederick M. Lawrence , and Elliot M. Mincberg filed a brief for the Anti-Defamation League et al. as amici curiae . [ Footnote 1 ] After we granted certiorari, the Commonwealth enacted another statute designed to remedy the constitutional problems identified by the state court. See Va. Code Ann. § 18.2-423.01 (2002). Section 18.2-423.01 bans the burning of "an object" when done "with the intent of intimidating any person or group of persons." The statute does not contain any prima facie evidence provision. Section 18.2-423.01, however, did not repeal § 18.2-423, the cross-burning statute at issue in this case. [ Footnote 2 ] JUSTICE THOMAS argues in dissent that cross burning is "conduct, not expression." Post , at 394. While it is of course true that burning a cross is conduct, it is equally true that the First Amendment protects symbolic conduct as well as pure speech. See supra , at 358. As JUSTICE THOMAS has previously recognized, a burning cross is a "symbol of hate," and a "a symbol of white supremacy." Capitol Square Review and Advisory Bd. v. Pinette , 515 U. S. 753 , 770-771 (1995) (concurring opinion). [ Footnote 1 ] The plurality also asserts that "even where a defendant like Black presents a defense, the prima facie evidence provision makes it more likely that the jury will find an intent to intimidate regardless of the particular facts of the case." Ante , at 365. There is no basis for this assertion. The Virginia Supreme Court's opinion in Nance v. Commonwealth, 203 Va. 428, 432, 124 S. E. 2d 900, 903-904 (1962), states, in no uncertain terms, that the presentation of a prima facie case "'relieves neither the court nor the jury of the duty to determine all of the questions of fact from the weight of the whole evidence.'" (Emphasis added.) [ Footnote 2 ] Overbreadth was, of course, the framework of analysis employed by the Virginia Supreme Court. See 262 Va. 764, 777-778, 553 S. E. 2d 738, 745-746 (2001) (examining the prima-facie-evidence provision in a section labeled "OVERBREADTH ANALYSIS" and holding that the provision "is overbroad"). Likewise, in their submissions to this Court, the parties' analyses of the prima-facie-evidence provision focus on the question of overbreadth. Brief for Petitioner 41-50 (confining its discussion of the prima-facie-evidence provision to a section titled "THE VIRGINIA STATUTE IS NOT OVERBROAD"); Brief for Respondents 39-41 (arguing that "[t]he prima facie evidence provision . . . render[s] [the statute] overbroad"); Reply Brief for Petitioner 13-20 (dividing its discussion of the prima-facie-evidence provision into sections titled "There Is No Real Overbreadth" and "There Is No Substantial Overbreadth"). This reliance on overbreadth doctrine is understandable. This Court has made clear that to succeed in a facial challenge without relying on overbreadth doctrine, "the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno , 481 U. S. 739 ,745 (1987). As the Court's opinion concedes, some of the speech covered by § 18.2-423 can constitutionally be proscribed, ante , at 363. [ Footnote 3 ] Unquestionably, the process through which elements of a criminal offense are established in a jury trial may raise serious constitutional concerns. Typically, however, such concerns sound in due process, not First Amendment overbreadth. E. g. , County Court of Ulster Cty. v. Allen , 442 U. S. 140 , 156-157 (1979); Barnes v. United States , 412 U. S. 837 ,838 (1973); In re Winship , 397 U. S. 358 , 359 (1970). Respondents in this case have not challenged § 18.2-423 under the Due Process Clause, and neither the plurality nor the Virginia Supreme Court relies on due process in declaring the statute invalid. [ Footnote 4 ] Confronted with the incontrovertible fact that this statute easily passes overbreadth analysis, the plurality is driven to the truly startling assertion that a statute which is not invalid in all of its applications may nevertheless be facially invalidated even if it is not overbroad. The only expression of that proposition that the plurality can find in our jurisprudence appears in footnote dictum in the 5-to-4 opinion in Secretary of State of Md. v. Joseph H. Munson Co. , 467 U. S. 947 , 965-966, n. 13 (1984). See id. , at 975 (REHNQUIST, J., joined by Burger, C. J., and Powell and O'CONNOR, JJ., dissenting). Stare decisis cannot explain the newfound affection for this errant doctrine (even if stare decisis applied to dictum), because the holding of a later opinion (joined by six Justices) flatly repudiated it. See United States v. Salerno, supra , at 745 (REHNQUIST, C. J., joined by White, Blackmun, Powell, O'CONNOR, and SCALIA, JJ.) (to succeed in a facial challenge without relying on overbreadth doctrine, "the challenger must establish that no set of circumstances exists under which the Act would be valid"). Even if I were willing, as the plurality apparently is, to ignore our repudiation of the Munson dictum, that case provides no foundation whatever for facially invalidating a statute under the conditions presented here. Our willingness facially to invalidate the statute in Munson without reliance on First Amendment overbreadth was premised on our conclusion that the challenged provision was invalid in all of its applications. We explained that "there is no core of easily identifiable and constitutionally proscribable conduct that the statute prohibits." Munson , 467 U. S., at 965-966. And we stated that "[t]he flaw in the statute is not simply that it includes within its sweep some impermissible applications, but that in all its applications it operates on a fundamentally mistaken premise that high solicitation costs are an accurate measure of fraud." Id. , at 966. Unless the Court is prepared to abandon a contention that it takes great pains to establish-that "the history of cross burning in this country shows that cross burning is often intimidating, intended to create a pervasive fear in victims that they are a target of violence," ante , at 360-it is difficult to see how Munson has any bearing on the constitutionality of the prima-facie-evidence provision. [ Footnote 5 ] The plurality's reliance on Terminiello v. Chicago , 337 U. S. 1 (1949), is mistaken. In that case the Court deemed only the jury instruction, rather than the ordinance under review, to be constitutionally infirm. To be sure, it held that such a jury instruction could never support a constitutionally valid conviction, but that is quite different from holding the or dinance to be facially invalid. Insofar as the ordinance was concerned, Terminiello made repeated references to the as-applied nature of the challenge. Id. , at 3 (noting that the defendant "maintained at all times that the ordinance as applied to his conduct violated his right of free speech . . . " (emphasis added)); id. , at 5 (noting that "[aJs construed and applied [the provision] at least contains parts that are unconstitutional" (emphasis added)); id. , at 6 ("The pinch of the statute is in its application" (emphasis added)); ibid. ("The record makes clear that petitioner at all times challenged the constitutionality of the ordinance as construed and applied to him" (emphasis added)). See also Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement, 48 Am. U. L. Rev. 359, 433, n. 333 (1998) (characterizing Terminiello as "adopting a court's jury instruction as an authoritative narrowing construction of a breach of the peace ordinance but ultimately confining its decision to overturning the defendant's conviction rather than invalidating the statute on its face"). [ Footnote 6 ] Though the jury may well have embraced the former (constitutionally permissible) understanding of its duties, that possibility is not enough to dissipate the cloud of constitutional doubt. See Sandstrom v. Montana , 442 U. S. 510 , 517 (1979) (refusing to assume that the jury embraced a constitutionally sound understanding of an ambiguous instruction: "[W]e cannot discount the possibility that the jury may have interpreted the instruction [improperly]"). [ Footnote 1 ] Although three examples are given, the third may be skipped here. It covers misleading advertising in a particular industry in which the risk of fraud is thought to be great, and thus deals with commercial speech with its separate doctrine and standards. R. A. V. , 505 U. S., at 388-389. [ Footnote 2 ] The same conclusion also goes for the second R. A. V. exception relating to "'secondary effects.''' 505 U. S., at 389 (citing Renton v. Playtime Theatres, Inc. , 475 U. S. 41 , 48 (1986)). Our "secondary effects" jurisprudence presupposes that the regulation at issue is "unrelated to the suppression of free expression." Ibid. [ Footnote 1 ] United States v. Guest , 383 U. S. 745 , 747-748, n. 1 (1966) (quoting indictment charging conspiracy under 18 U. S. C. § 241 (1964 ed.) to interfere with federally secured rights by, inter alia , "burning crosses at night in public view," "shooting Negroes," "beating Negroes," "killing Negroes," "damaging and destroying property of Negroes," and "pursuing Negroes in automobiles and threatening them with guns"); United States v. Pospisil , 186 F.3d 1023 , 1027 (CA8 1999) (defendants burned a cross in victims' yard, slashed their tires, and fired guns), cert. denied, 529 U. S. 1089 (2000); United States v. Stewart , 65 F.3d 918 , 922 (CA11 1995) (cross burning precipitated an exchange of gunfire between victim and perpetrators), cert. denied sub nom. Daniel v. United States , 516 U. S. 1134 (1996); United States v. McDermott , 29 F.3d 404 , 405 (CA8 1994) (defendants sought to discourage blacks from using public park by burning a cross in the park, as well as by "waving baseball bats, axe handles, and knives; throwing rocks and bottles; veering cars towards black persons; and physically chasing black persons out of the park"); Cox v. State , 585 So. 2d 182, 202 (Ala. Crim. App. 1991) (defendant participated in evening of cross burning and murder), cert. denied, 503 U. S. 987 (1992); R. Caro, The Years of Lyndon Johnson: Master of the Senate 847 (2002) (referring to a wave of "southern bombings, beatings, sniper fire, and cross-burnings" in late 1956 in response to efforts to desegregate schools, buses, and parks); Newton & Newton 21 (observing that "Jewish merchants were subjected to boycotts, threats, cross burnings, and sometimes acts of violence" by the Klan and its sympathizers); id. , at 361-362 (describing cross burning and beatings directed at a black family that refused demands to sell the home); id. , at 382 (describing incident of cross burning and brick throwing at home of Jewish officeholder); id. , at 583 (describing campaign of cross burning and property damage directed at Vietnamese immigrant fishermen); W. Wade, The Fiery Cross: The Ku Klux Klan in America 262-263 (1987) (describing incidents of cross burning, beatings, kidnaping, and other "terrorism" directed against union organizers in the South); id. , at 376 (cross burnings associated with shooting into cars); id. , at 377 (cross burnings associated with assaults on blacks); 1 R. Kluger, Simple Justice 378 (1975) (describing cross burning at, and subsequent shooting into, home of federal judge who issued desegregation decisions); Rubinowitz & Perry, Crimes Without Punishment: White Neighbors' Resistance to Black Entry, 92 J. Crim. L. & C. 335, 342, 354-355, 388, 408-410, 419, 420, 421, 423 (Fall2001-Winter 2002) (noting that an "escalating campaign to eject a [minority] family" from a white neighborhood could begin with "cross burnings, window breaking, or threatening telephone calls," and culminate with bombings; describing other incidents of cross burning accompanied by violence); Cross Burned at Manakin, Third in Area, Richmond TimesDispatch, Feb. 26, 1951, p. 4, App. 318 (describing 1951 Virginia cross burning accompanied by gunfire). [ Footnote 2 ] See, e.g. , Va. Code Ann. § 18-327 (1950) (repealed 1960) (required separation of "white" and "colored" at any place of entertainment or other public assemblage; violation was misdemeanor); Va. Code Ann. § 20-54 (1960) (repealed 1968) (prohibited racial intermarriage); Va. Code Ann. § 22-221 (1969) (repealed 1972) ("White and colored persons shall not be taught in the same school"); Va. Code Ann. §24-120 (1969) (repealed 1970) (required separate listings for "white and colored persons" who failed to pay poll tax); Va. Code Ann. § 38-281 (1950) (repealed 1952) (prohibited fraternal associations from having "both white and colored members"); Va. Code Ann. § 53-42 (1967) (amended to remove "race" 1968) (required racial separation in prison); Va. Code Ann. § 56-114 (1974) (repealed 1975) (authorized State Corporation Commission to require "separate waiting rooms" for "white and colored races"); Va. Code Ann. § 56-326 (1969) (repealed 1970) (required motor carriers to "separate" their "white and colored passengers," violation was misdemeanor); §§ 56-390 and 56-396 (repealed 1970) (same for railroads); § 58-880 (repealed 1970) (required separate personal property tax books for "white[s]" and "colored"). [ Footnote 3 ] As the Court explained in Allen , a permissive inference or presumption "allows-but does not require-the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant. In that situation the basic fact may constitute prima facie evidence of the elemental fact . . . . Because this permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the 'beyond a reasonable doubt' standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference." 442 U. S., at 157 (citations omitted). By contrast, "[a] mandatory presumption . . . may affect not only the strength of the 'no reasonable doubt' burden but also the placement of that burden; it tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts." Ibid.

The Supreme Court of the United States ruled on a case regarding the constitutionality of a Virginia statute that criminalizes cross burning with the intent to intimidate. The Court affirmed in part, vacated in part, and remanded the judgment of the Virginia Supreme Court, which had held the statute unconstitutional on First Amendment grounds. The Court's decision focused on the historical context of cross burning in the United States, particularly its association with the Ku Klux Klan and its use as a tool of intimidation and violence. The Court recognized that cross burning conveys a symbolic message that is often meant to intimidate and instill fear. The Court concluded that a state may ban cross burning carried out with the intent to intimidate, as such an act is a true threat that falls outside the protection of the First Amendment. However, the Court also noted that the Virginia statute's prima facie evidence provision, which allowed intent to intimidate to be inferred from the act of cross burning alone, raised overbreadth concerns by potentially chilling protected speech. The Court affirmed the Virginia Supreme Court's judgment that the statute was unconstitutional but vacated its decision to invalidate the entire statute. The case was remanded for further proceedings consistent with the Supreme Court's opinion, allowing for a narrower interpretation or application of the statute that addressed the overbreadth concerns.

Free Speech

Republican Party of Minnesota v. White

https://supreme.justia.com/cases/federal/us/536/765/

OCTOBER TERM, 2001 Syllabus REPUBLICAN PARTY OF MINNESOTA ET AL. v. WHITE, CHAIRPERSON, MINNESOTA BOARD OF JUDICIAL STANDARDS, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No.01-521. Argued March 26, 2002-Decided June 27, 2002 The Minnesota Supreme Court has adopted a canon of judicial conduct that prohibits a "candidate for a judicial office" from "announc[ing] his or her views on disputed legal or political issues" (hereinafter announce clause). While running for associate justice of that court, petitioner Gregory Wersal (and others) filed this suit seeking a declaration that the announce clause violates the First Amendment and an injunction against its enforcement. The District Court granted respondent officials summary judgment, and the Eighth Circuit affirmed. Held: The announce clause violates the First Amendment. Pp. 770-788. (a) The record demonstrates that the announce clause prohibits a judicial candidate from stating his views on any specific nonfancifullegal question within the province of the court for which he is running, except in the context of discussing past decisions-and in the latter context as well, if he expresses the view that he is not bound by stare decisis. Pp. 770-774. (b) The announce clause both prohibits speech based on its content and burdens a category of speech that is at the core of First Amendment freedoms-speech about the qualifications of candidates for public office. The Eighth Circuit concluded, and the parties do not dispute, that the proper test to be applied to determine the constitutionality of such a restriction is strict scrutiny, under which respondents have the burden to prove that the clause is (1) narrowly tailored, to serve (2) a compelling state interest. E. g., Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214 , 222. That court found that respondents had established two interests as sufficiently compelling to justify the announce clause: preserving the state judiciary's impartiality and preserving the appearance of that impartiality. Pp. 774-775. (c) Under any definition of "impartiality," the announce clause fails strict scrutiny. First, it is plain that the clause is not narrowly tailored to serve impartiality (or its appearance) in the traditional sense of the word, i. e., as a lack of bias for or against either party to the proceeding. Indeed, the clause is barely tailored to serve that interest at all, inasmuch as it does not restrict speech for or against particular parties, 766 but rather speech for or against particular issues. Second, although "impartiality" in the sense of a lack of preconception in favor of or against a particular legal view may well be an interest served by the announce clause, pursuing this objective is not a compelling state interest, since it is virtually impossible, and hardly desirable, to find a judge who does not have preconceptions about the law, see Laird v. Tatum, 409 U. S. 824 , 835. Third, the Court need not decide whether achieving "impartiality" (or its appearance) in the sense of openmindedness is a compelling state interest because, as a means of pursuing this interest, the announce clause is so woefully underinclusive that the Court does not believe it was adopted for that purpose. See, e. g., City of Ladue v. Gilleo, 512 U. S. 43 , 52-53. Respondents have not carried the burden imposed by strict scrutiny of establishing that statements made during an election campaign are uniquely destructive of openmindedness. See, e. g., Landmark Communications, Inc. v. Virginia, 435 U. S. 829 , 841. Pp. 775-784. (d) A universal and long-established tradition of prohibiting certain conduct creates a strong presumption that the prohibition is constitutional, see McIntyre v. Ohio Elections Comm'n, 514 U. S. 334 , 375-377. However, the practice of prohibiting speech by judicial candidates is neither ancient nor universal. The Court knows of no such prohibitions throughout the 19th and the first quarter of the 20th century, and they are still not universally adopted. This does not compare well with the traditions deemed worthy of attention in, e. g., Burson v. Freeman, 504 (e) There is an obvious tension between Minnesota's Constitution, which requires judicial elections, and the announce clause, which places most subjects of interest to the voters off limits. The First Amendment does not permit Minnesota to leave the principle of elections in place while preventing candidates from discussing what the elections are about. See, e. g., Renne v. Geary, 501 U. S. 312 , 349. Pp. 787-788. 247 F.3d 854 , reversed and remanded. SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, and THOMAS, JJ., joined. O'CONNOR, J., post, p. 788, and KENNEDY, J., post, p. 792, filed concurring opinions. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined, post, p. 797. GINSBURG, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined, post, p. 803. James Bopp, Jr., argued the cause for petitioners Republican Party of Minnesota et al. With him on the briefs were 767 Thomas J. Marzen, Richard E. Coleson, and Ronald D. Rotunda. William F. Mohrman and Erick G. Kaardal filed briefs for petitioners Wersal et al. Alan 1. Gilbert, Chief Deputy and Solicitor General of Minnesota, argued the cause for respondents. With him on the brief were Mike Hatch, Attorney General, Kristine L. Eiden, Deputy Attorney General, and Julie Ralston Aoki, Mark B. Lev inger, and Thomas C. Vasaly, Assistant Attorneys General. * *Briefs of amici curiae urging reversal were filed for the American Center for Law and Justice by Jay Alan Sekulow, James H. Henderson, Sr., Colby M. May, and Walter M. Weber; for the American Civil Liberties Union et al. by David B. Isbell, David H. Remes, and Steven R. Shapiro; for the Chamber of Commerce of the United States by Jan Witold Baran and Stephen A. Bokat; for Minnesota State Representative Philip Krinkie et al. by Raymond C. Ortman, Jr.; for Public Citizen by Allison M. Zieve, David C. Vladeck, and Scott L. Nelson; and for State Supreme Court Justices by Erik S. Jaffe. Briefs of amici curiae urging affirmance were filed for the State of California et al. by Bill Lockyer, Attorney General of California, and Manuel M. Medeiros, State Solicitor, and by the Attorneys General for their respective States as follows: Janet Napolitano of Arizona, Jeremiah W (Jay) Nixon of Missouri, Mike McGrath of Montana, W A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, John Cornyn of Texas, and Christine Q Gregoire of Washington; for the Ad hoc Committee of Former Justices and Friends Dedicated to an Independent Judiciary by S. Shawn Stephens and Andy Taylor; for the American Bar Association by Robert E. Hirshon, Reagan Wm. Simpson, and Warren S. Huang; for the Minnesota State Bar Association by Wayne D. Struble; for the Brennan Center for Justice at NYU School of Law et al. by Scott Bales and Deborah Goldberg; for the Conference of Chief Justices by Roy A. Schotland, George T. Patton, Jr., Sarah Steele Riordan, and Robert F. Bauer; for the Missouri Bar by Joseph C. Blanton, Jr.; and for Pennsylvanians for Modern Courts by Edmund B. Spaeth, Jr., and Brett G. Sweitzer. Briefs of amici curiae were filed for the Idaho Conservation League et al. by John D. Echeverria; and for the National Association of Criminal Defense Lawyers by David W Ogden, Jonathan J. Frankel, Neil M. Richards, and Lisa Kemler. 768 JUSTICE SCALIA delivered the opinion of the Court. The question presented in this case is whether the First Amendment permits the Minnesota Supreme Court to prohibit candidates for judicial election in that State from announcing their views on disputed legal and political issues. I Since Minnesota's admission to the Union in 1858, the State's Constitution has provided for the selection of all state judges by popular election. Minn. Const., Art. VI, § 7. Since 1912, those elections have been nonpartisan. Act of June 19, ch. 2,1912 Minn. Laws Special Sess., pp. 4-6. Since 1974, they have been subject to a legal restriction which states that a "candidate for a judicial office, including an incumbent judge," shall not "announce his or her views on disputed legal or political issues." Minn. Code of Judicial Conduct, Canon 5(A)(3)(d)(i) (2000). This prohibition, promulgated by the Minnesota Supreme Court and based on Canon 7(B) of the 1972 American Bar Association (ABA) Model Code of Judicial Conduct, is known as the "announce clause." Incumbent judges who violate it are subject to discipline, including removal, censure, civil penalties, and suspension without pay. Minn. Rules of Board on Judicial Standards 4(a)(6), l1(d) (2002). Lawyers who run for judicial office also must comply with the announce clause. Minn. Rule of Professional Conduct 8.2(b) (2002) ("A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct"). Those who violate it are subject to, inter alia, disbarment, suspension, and probation. Rule 8.4(a); Minn. Rules on Lawyers Professional Responsibility 8-14, 15(a) (2002). In 1996, one of the petitioners, Gregory Wersal, ran for associate justice of the Minnesota Supreme Court. In the course of the campaign, he distributed literature criticizing several Minnesota Supreme Court decisions on issues such as crime, welfare, and abortion. A complaint against Wersal 769 challenging, among other things, the propriety of this literature was filed with the Office of Lawyers Professional Responsibility, the agency which, under the direction of the Minnesota Lawyers Professional Responsibility Board,1 investigates and prosecutes ethical violations of lawyer candidates for judicial office. The Lawyers Board dismissed the complaint; with regard to the charges that his campaign materials violated the announce clause, it expressed doubt whether the clause could constitutionally be enforced. Nonetheless, fearing that further ethical complaints would jeopardize his ability to practice law, Wersal withdrew from the election. In 1998, Wersal ran again for the same office. Early in that race, he sought an advisory opinion from the Lawyers Board with regard to whether it planned to enforce the announce clause. The Lawyers Board responded equivocally, stating that, although it had significant doubts about the constitutionality of the provision, it was unable to answer his question because he had not submitted a list of the announcements he wished to make.2 Shortly thereafter, Wersal filed this lawsuit in Federal District Court against respondents,3 seeking, inter alia, a 1 The Eighth Circuit did not parse out the separate functions of these two entities in the case at hand, referring to the two of them collectively as the "Lawyers Board." We take the same approach. 2 Nor did Wersal have any success receiving answers from the Lawyers Board when he included "concrete examples," post, at 799, n. 2 (STEVENS, J., dissenting), in his request for an advisory opinion on other subjects a month later: "As you are well aware, there is pending litigation over the constitutionality of certain portions of Canon 5. You are a plaintiff in this action and you have sued, among others, me as Director of the Office of Lawyers Professional Responsibility and Charles Lundberg as the Chair of the Board of Lawyers Professional Responsibility. Due to this pending litigation, I will not be answering your request for an advisory opinion at this time." App. 153. 3 Respondents are officers of the Lawyers Board and of the Minnesota Board on Judicial Standards (Judicial Board), which enforces the ethical rules applicable to judges. 770 declaration that the announce clause violates the First Amendment and an injunction against its enforcement. Wersal alleged that he was forced to refrain from announcing his views on disputed issues during the 1998 campaign, to the point where he declined response to questions put to him by the press and public, out of concern that he might run afoul of the announce clause. Other plaintiffs in the suit, including the Minnesota Republican Party, alleged that, because the clause kept Wersal from announcing his views, they were unable to learn those views and support or oppose his candidacy accordingly. The parties filed cross-motions for summary judgment, and the District Court found in favor of respondents, holding that the announce clause did not violate the First Amendment. 63 F. Supp. 2d 967 (Minn. 1999). Over a dissent by Judge Beam, the United States Court of Appeals for the Eighth Circuit affirmed. Republican Party of Minn. v. Kelly, 247 F.3d 854 (2001). We granted certiorari. 534 U. S. 1054 (2001). II Before considering the constitutionality of the announce clause, we must be clear about its meaning. Its text says that a candidate for judicial office shall not "announce his or her views on disputed legal or political issues." Minn. Code of Judicial Conduct, Canon 5(A)(3)(d)(i) (2002). We know that "announc[ing] ... views" on an issue covers much more than promising to decide an issue a particular way. The prohibition extends to the candidate's mere statement of his current position, even if he does not bind himself to maintain that position after election. All the parties agree this is the case, because the Minnesota Code contains a so-called "pledges or promises" clause, which separately prohibits judicial candidates from making "pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office," ibid.-a prohibition that is not challenged here and on which we express no view. 771 There are, however, some limitations that the Minnesota Supreme Court has placed upon the scope of the announce clause that are not (to put it politely) immediately apparent from its text. The statements that formed the basis of the complaint against Wersal in 1996 included criticism of past decisions of the Minnesota Supreme Court. One piece of campaign literature stated that "[t]he Minnesota Supreme Court has issued decisions which are marked by their disregard for the Legislature and a lack of common sense." App. 37. It went on to criticize a decision excluding from evidence confessions by criminal defendants that were not tape-recorded, asking "[s]hould we conclude that because the Supreme Court does not trust police, it allows confessed criminals to go free?" Ibid. It criticized a decision striking down a state law restricting welfare benefits, asserting that "[i]t's the Legislature which should set our spending policies." Ibid. And it criticized a decision requiring public financing of abortions for poor women as "unprecedented" and a "pro-abortion stance." Id., at 38. Although one would think that all of these statements touched on disputed legal or political issues, they did not (or at least do not now) fall within the scope of the announce clause. The Judicial Board issued an opinion stating that judicial candidates may criticize past decisions, and the Lawyers Board refused to discipline Wersal for the foregoing statements because, in part, it thought they did not violate the announce clause. The Eighth Circuit relied on the Judicial Board's opinion in upholding the announce clause, 247 F. 3d, at 882, and the Minnesota Supreme Court recently embraced the Eighth Circuit's interpretation, In re Code of Judicial Conduct, 639 N. W. 2d 55 (2002). There are yet further limitations upon the apparent plain meaning of the announce clause: In light of the constitutional concerns, the District Court construed the clause to reach only disputed issues that are likely to come before the candidate if he is elected judge. 63 F. Supp. 2d, at 986. The 772 Eighth Circuit accepted this limiting interpretation by the District Court, and in addition construed the clause to allow general discussions of case law and judicial philosophy. 247 F. 3d, at 881-882. The Supreme Court of Minnesota adopted these interpretations as well when it ordered enforcement of the announce clause in accordance with the Eighth Circuit's opinion. In re Code of Judicial Conduct, supra. It seems to us, however, that-like the text of the announce clause itself-these limitations upon the text of the announce clause are not all that they appear to be. First, respondents acknowledged at oral argument that statements critical of past judicial decisions are not permissible if the candidate also states that he is against stare decisis. Tr. of Oral Arg. 33-34.4 Thus, candidates must choose between stating their views critical of past decisions and stating their views in opposition to stare decisis. Or, to look at it more concretely, they may state their view that prior decisions were erroneous only if they do not assert that they, if elected, have any power to eliminate erroneous decisions. Second, limiting the scope of the clause to issues likely to come before a court is not much of a limitation at all. One would hardly expect the "disputed legal or political issues" raised in the course of a state judicial election to include such matters as whether the Federal Government should end the embargo of Cuba. Quite obviously, they will be those legal or political disputes that are the proper (or by past decisions have been made the improper) business of the state courts. And within that relevant category, "[t]here is almost no legal or political issue that is unlikely to come before a judge of an American court, state or federal, of general jurisdiction." 4JUSTICE GINSBURG argues that we should ignore this concession at oral argument because it is inconsistent with the Eighth Circuit's interpretation of the announce clause. Post, at 810 (dissenting opinion). As she appears to acknowledge, however, the Eighth Circuit was merely silent on this particular question. Ibid. Silence is hardly inconsistent with what respondents conceded at oral argument. 773 Buckley v. Illinois Judicial Inquiry Bd., 997 F.2d 224 , 229 (CA7 1993). Third, construing the clause to allow "general" discussions of case law and judicial philosophy turns out to be of little help in an election campaign. At oral argument, respondents gave, as an example of this exception, that a candidate is free to assert that he is a "'strict constructionist.' " Tr. of Oral Arg. 29. But that, like most other philosophical generalities, has little meaningful content for the electorate unless it is exemplified by application to a particular issue of construction likely to come before a court-for example, whether a particular statute runs afoul of any provision of the Constitution. Respondents conceded that the announce clause would prohibit the candidate from exemplifying his philosophy in this fashion. Id., at 43. Without such application to real-life issues, all candidates can claim to be "strict constructionists" with equal (and unhelpful) plausibility. In any event, it is clear that the announce clause prohibits a judicial candidate from stating his views on any specific nonfanciful legal question within the province of the court for which he is running, except in the context of discussing past decisions-and in the latter context as well, if he expresses the view that he is not bound by stare decisis. 5 5 In 1990, in response to concerns that its 1972 Model Canon-which was the basis for Minnesota's announce clause-violated the First Amendment, see L. Milord, The Development of the ABA Judicial Code 50 (1992), the ABA replaced that canon with a provision that prohibits a judicial candidate from making "statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court." ABA Model Code of Judicial Conduct, Canon 5(A)(3)(d)(ii) (2000). At oral argument, respondents argued that the limiting constructions placed upon Minnesota's announce clause by the Eighth Circuit, and adopted by the Minnesota Supreme Court, render the scope of the clause no broader than the ABA's 1990 canon. Tr. of Oral Arg. 38. This argument is somewhat curious because, based on the same constitutional concerns that had motivated the ABA, the Minnesota Supreme Court was urged to replace the announce clause with the new ABA language, but, unlike other jurisdictions, declined. Final Report of the Advi- 774 Respondents contend that this still leaves plenty of topics for discussion on the campaign trail. These include a candidate's "character," "education," "work habits," and "how [he] would handle administrative duties if elected." Brief for Respondents 35-36. Indeed, the Judicial Board has printed a list of preapproved questions which judicial candidates are allowed to answer. These include how the candidate feels about cameras in the courtroom, how he would go about reducing the caseload, how the costs of judicial administration can be reduced, and how he proposes to ensure that minorities and women are treated more fairly by the court system. Minnesota State Bar Association Judicial Elections Task Force Report & Recommendations, App. C (June 19, 1997), reprinted at App. 97-103. Whether this list of preapproved subjects, and other topics not prohibited by the announce clause, adequately fulfill the First Amendment's guarantee of freedom of speech is the question to which we now turn. III As the Court of Appeals recognized, the announce clause both prohibits speech on the basis of its content and burdens a category of speech that is "at the core of our First Amendment freedoms"-speech about the qualifications of candidates for public office. 247 F. 3d, at 861, 863. The Court of Appeals concluded that the proper test to be applied to determine the constitutionality of such a restriction is what our cases have called strict scrutiny, id., at 864; the parties do not dispute that this is correct. Under the strict-scrutiny test, respondents have the burden to prove that the an- sory Committee to Review the ABA Model Code of Judicial Conduct and the Rules of the Minnesota Board on Judicial Standards 5-6 (June 29, 1994), reprinted at App. 367-368. The ABA, however, agrees with respondents' position, Brief for ABA as Amicus Curiae 5. We do not know whether the announce clause (as interpreted by state authorities) and the 1990 ABA canon are one and the same. No aspect of our constitutional analysis turns on this question. 775 nounce clause is (1) narrowly tailored, to serve (2) a compelling state interest. E. g., Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214 , 222 (1989). In order for respondents to show that the announce clause is narrowly tailored, they must demonstrate that it does not "unnecessarily circumscrib[e] protected expression." Brown v. Hartlage, 456 U. S. 45 , 54 (1982). The Court of Appeals concluded that respondents had established two interests as sufficiently compelling to justify the announce clause: preserving the impartiality of the state judiciary and preserving the appearance of the impartiality of the state judiciary. 247 F. 3d, at 867. Respondents reassert these two interests before us, arguing that the first is compelling because it protects the due process rights of litigants, and that the second is compelling because it preserves public confidence in the judiciary.6 Respondents are rather vague, however, about what they mean by "impartiality." Indeed, although the term is used throughout the Eighth Circuit's opinion, the briefs, the Minnesota Code of Judicial Conduct, and the ABA Codes of Judicial Conduct, none of these sources bothers to define it. Clarity on this point is essential before we can decide whether impartiality is indeed a compelling state interest, and, if so, whether the announce clause is narrowly tailored to achieve it. A One meaning of "impartiality" in the judicial context-and of course its root meaning-is the lack of bias for or against either party to the proceeding. Impartiality in this sense 6 Although the Eighth Circuit also referred to the compelling interest in an "independent" judiciary, 247 F. 3d, at 864-868, both it and respondents appear to use that term, as applied to the issues involved in this case, as interchangeable with "impartial." See id., at 864 (describing a judge's independence as his "ability to apply the law neutrally"); Brief for Respondents 20, n. 4 ("[J]udicial impartiality is linked to judicial independence"). 776 assures equal application of the law. That is, it guarantees a party that the judge who hears his case will apply the law to him in the same way he applies it to any other party. This is the traditional sense in which the term is used. See Webster's New International Dictionary 1247 (2d ed. 1950) (defining "impartial" as "[n]ot partial; esp., not favoring one more than another; treating all alike; unbiased; equitable; fair; just"). It is also the sense in which it is used in the cases cited by respondents and amici for the proposition that an impartial judge is essential to due process. Tumey v. Ohio, 273 U. S. 510 , 523, 531-534 (1927) (judge violated due process by sitting in a case in which it would be in his financial interest to find against one of the parties); Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813 , 822-825 (1986) (same); Ward v. Monroeville, 409 U. S. 57 , 58-62 (1972) (same); Johnson v. Mississippi, 403 U. S. 212 , 215-216 (1971) (per curiam) (judge violated due process by sitting in a case in which one of the parties was a previously successful litigant against him); Bracy v. Gramley, 520 U. S. 899 , 905 (1997) (would violate due process if a judge was disposed to rule against defendants who did not bribe him in order to cover up the fact that he regularly ruled in favor of defendants who did bribe him); In re Murchison, 349 U. S. 133 , 137-139 (1955) (judge violated due process by sitting in the criminal trial of defendant whom he had indicted). We think it plain that the announce clause is not narrowly tailored to serve impartiality (or the appearance of impartiality) in this sense. Indeed, the clause is barely tailored to serve that interest at all, inasmuch as it does not restrict speech for or against particular parties, but rather speech for or against particular issues. To be sure, when a case arises that turns on a legal issue on which the judge (as a candidate) had taken a particular stand, the party taking the opposite stand is likely to lose. But not because of any bias against that party, or favoritism toward the other party. 777 Any party taking that position is just as likely to lose. The judge is applying the law (as he sees it) evenhandedly.7 B It is perhaps possible to use the term "impartiality" in the judicial context (though this is certainly not a common usage) to mean lack of preconception in favor of or against a particular legal view. This sort of impartiality would be concerned, not with guaranteeing litigants equal application of the law, but rather with guaranteeing them an equal chance to persuade the court on the legal points in their case. Impartiality in this sense may well be an interest served by the announce clause, but it is not a compelling state interest, as strict scrutiny requires. A judge's lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law. As then-JusTICE REHNQUIST observed of our own Court: "Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual, but extraordinary, if they had 7 JUSTICE STEVENS asserts that the announce clause "serves the State's interest in maintaining both the appearance of this form of impartiality and its actuality." Post, at 801. We do not disagree. Some of the speech prohibited by the announce clause may well exhibit a bias against parties-including JUSTICE STEVENS'S example of an election speech stressing the candidate's unbroken record of affirming convictions for rape, ante, at 800-801. That is why we are careful to say that the announce clause is "barely tailored to serve that interest," supra, at 776 (emphasis added). The question under our strict scrutiny test, however, is not whether the announce clause serves this interest at all, but whether it is narrowly tailored to serve this interest. It is not. 778 not at least given opinions as to constitutional issues in their previous legal careers." Laird v. Tatum, 409 U. S. 824 , 835 (1972) (memorandum opinion). Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. "Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias." Ibid. The Minnesota Constitution positively forbids the selection to courts of general jurisdiction of judges who are impartial in the sense of having no views on the law. Minn. Const., Art. VI, § 5 ("Judges of the supreme court, the court of appeals and the district court shall be learned in the law"). And since avoiding judicial preconceptions on legal issues is neither possible nor desirable, pretending otherwise by attempting to preserve the "appearance" of that type of impartiality can hardly be a compelling state interest either. C A third possible meaning of "impartiality" (again not a common one) might be described as openmindedness. This quality in a judge demands, not that he have no preconceptions on legal issues, but that he be willing to consider views that oppose his preconceptions, and remain open to persuasion, when the issues arise in a pending case. This sort of impartiality seeks to guarantee each litigant, not an equal chance to win the legal points in the case, but at least some chance of doing so. It may well be that impartiality in this sense, and the appearance of it, are desirable in the judiciary, but we need not pursue that inquiry, since we do not believe the Minnesota Supreme Court adopted the announce clause for that purpose. Respondents argue that the announce clause serves the interest in openmindedness, or at least in the appearance of openmindedness, because it relieves a judge from pressure to rule a certain way in order to maintain consistency with 779 statements the judge has previously made. The problem is, however, that statements in election campaigns are such an infinitesimal portion of the public commitments to legal positions that judges (or judges-to-be) undertake, that this object of the prohibition is implausible. Before they arrive on the bench (whether by election or otherwise) judges have often committed themselves on legal issues that they must later rule upon. See, e. g., Laird, supra, at 831-833 (describing Justice Black's participation in several cases construing and deciding the constitutionality of the Fair Labor Standards Act, even though as a Senator he had been one of its principal authors; and Chief Justice Hughes's authorship of the opinion overruling Adkins v. Children's Hospital of D. c., 261 U. S. 525 (1923), a case he had criticized in a book written before his appointment to the Court). More common still is a judge's confronting a legal issue on which he has expressed an opinion while on the bench. Most frequently, of course, that prior expression will have occurred in ruling on an earlier case. But judges often state their views on disputed legal issues outside the context of adjudication-in classes that they conduct, and in books and speeches. Like the ABA Codes of Judicial Conduct, the Minnesota Code not only permits but encourages this. See Minn. Code of Judicial Conduct, Canon 4(B) (2002) ("A judge may write, lecture, teach, speak and participate in other extra-judicial activities concerning the law ... "); Minn. Code of Judicial Conduct, Canon 4(B), Comment. (2002) ("To the extent that time permits, a judge is encouraged to do so ... "). That is quite incompatible with the notion that the need for openmindedness (or for the appearance of openmindedness) lies behind the prohibition at issue here. The short of the matter is this: In Minnesota, a candidate for judicial office may not say "I think it is constitutional for the legislature to prohibit same-sex marriages." He may say the very same thing, however, up until the very day before he declares himself a candidate, and may say it repeat- 780 edly (until litigation is pending) after he is elected. As a means of pursuing the objective of openmindedness that respondents now articulate, the announce clause is so woefully underinclusive as to render belief in that purpose a challenge to the credulous. See City of Ladue v. Gilleo, 512 U. S. 43 , 52-53 (1994) (noting that underinclusiveness "diminish[es] the credibility of the government's rationale for restricting speech"); Florida Star v. B. J. F., 491 U. S. 524 , 541-542 (1989) (SCALIA, J., concurring in judgment) ("[A] law cannot be regarded as protecting an interest of the highest order, and thus as justifying a restriction upon truthful speech, when it leaves appreciable damage to that supposedly vital interest unprohibited" (internal quotation marks and citation omitted)). JUSTICE STEVENS asserts that statements made in an election campaign pose a special threat to openmindedness because the candidate, when elected judge, will have a particular reluctance to contradict them. Post, at 801. That might be plausible, perhaps, with regard to campaign promises. A candidate who says "If elected, I will vote to uphold the legislature's power to prohibit same-sex marriages" will positively be breaking his word if he does not do so (although one would be naive not to recognize that campaign promises are-by long democratic tradition-the least binding form of human commitment). But, as noted earlier, the Minnesota Supreme Court has adopted a separate prohibition on campaign "pledges or promises," which is not challenged here. The proposition that judges feel significantly greater compulsion, or appear to feel significantly greater compulsion, to maintain consistency with nonpromissory statements made during a judicial campaign than with such statements made before or after the campaign is not self-evidently true. It seems to us quite likely, in fact, that in many cases the opposite is true. We doubt, for example, that a mere statement of position enunciated during the pendency of an election will be regarded by a judge as more binding-or as more likely 781 to subject him to popular disfavor if reconsidered-than a carefully considered holding that the judge set forth in an earlier opinion denying some individual's claim to justice. In any event, it suffices to say that respondents have not carried the burden imposed by our strict-scrutiny test to establish this proposition (that campaign statements are uniquely destructive of openmindedness) on which the validity of the announce clause rests. See, e. g., Landmark Communications, Inc. v. Virginia, 435 U. S. 829 , 841 (1978) (rejecting speech restriction subject to strict scrutiny where the State "offered little more than assertion and conjecture to support its claim that without criminal sanctions the objectives of the statutory scheme would be seriously undermined"); United States v. Playboy Entertainment Group, Inc., 529 U. S. 803 , 816-825 (2000) (same).8 Moreover, the notion that the special context of electioneering justifies an abridgment of the right to speak out on disputed issues sets our First Amendment jurisprudence on its head. "[D]ebate on the qualifications of candidates" is "at the core of our electoral process and of the First Amendment freedoms," not at the edges. Eu, 489 U. S., at 222-223 (internal quotation marks omitted). "The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters 8We do not agree with JUSTICE STEVENS'S broad assertion that "to the extent that [statements on legal issues] seek to enhance the popularity of the candidate by indicating how he would rule in specific cases if elected, they evidence a lack offitness for office." Post, at 798 (emphasis added). Of course all statements on real-world legal issues "indicate" how the speaker would rule "in specific cases." And if making such statements (of honestly held views) with the hope of enhancing one's chances with the electorate displayed a lack of fitness for office, so would similarly motivated honest statements of judicial candidates made with the hope of enhancing their chances of confirmation by the Senate, or indeed of appointment by the President. Since such statements are made, we think, in every confirmation hearing, JUSTICE STEVENS must contemplate a federal bench filled with the unfit. 782 of current public importance." Wood v. Georgia, 370 U. S. 375 , 395 (1962). "It is simply not the function of government to select which issues are worth discussing or debating in the course of a political campaign." Brown, 456 U. S., at 60 (internal quotation marks and citation omitted). We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election. JUSTICE GINSBURG would do so-and much of her dissent confirms rather than refutes our conclusion that the purpose behind the announce clause is not openmindedness in the judiciary, but the undermining of judicial elections. She contends that the announce clause must be constitutional because due process would be denied if an elected judge sat in a case involving an issue on which he had previously announced his view. Post, at 816, 819. She reaches this conclusion because, she says, such a judge would have a "direct, personal, substantial, and pecuniary interest" in ruling consistently with his previously announced view, in order to reduce the risk that he will be "voted off the bench and thereby lose [his] salary and emoluments," post, at 816 (internal quotation marks and alterations omitted). But elected judges-regardless of whether they have announced any views beforehand-always face the pressure of an electorate who might disagree with their rulings and therefore vote them off the bench. Surely the judge who frees Timothy McVeigh places his job much more at risk than the judge who (horror of horrors!) reconsiders his previously announced view on a disputed legal issue. So if, as JUSTICE GINSBURG claims, it violates due process for a judge to sit in a case in which ruling one way rather than another increases his prospects for reelection, then-quite simply-the practice of electing judges is itself a violation of due process. I t is not difficult to understand how one with these views would approve the election-nullifying effect of the announce 783 clause.9 They are not, however, the views reflected in the Due Process Clause of the Fourteenth Amendment, which has coexisted with the election of judges ever since it was adopted, see infra, at 785-786. JUSTICE GINSBURG devotes the rest of her dissent to attacking arguments we do not make. For example, despite the number of pages she dedicates to disproving this proposition, post, at 805-809, we neither assert nor imply that the First Amendment requires campaigns for judicial office to sound the same as those for legislative office.lO What we do assert, and what JUSTICE GINSBURG ignores, is that, even if the First Amendment allows greater regulation of judicial election campaigns than legislative election campaigns, the announce clause still fails strict scrutiny because it is woefully underinclusive, prohibiting announcements by judges (and would-be judges) only at certain times and in certain forms. We rely on the cases involving speech during elections, supra, at 781-782, only to make the obvious point that this underinclusiveness cannot be explained by resort to the notion that the First Amendment provides less protection during an election campaign than at other times.ll 9 JUSTICE GINSBURG argues that the announce clause is not election nullifying because Wersal criticized past decisions of the Minnesota Supreme Court in his campaign literature and the Lawyers Board decided not to discipline him for doing so. Post, at 811-812. As we have explained, however, had Wersal additionally stated during his campaign that he did not feel bound to follow those erroneous decisions, he would not have been so lucky. Supra, at 772-773. This predicament hardly reflects "the robust communication of ideas and views from judicial candidate to voter." Post, at 812. 10 JUSTICE STEVENS devotes most of his dissent to this same argument that we do not make. 11 Nor do we assert that candidates for judicial office should be com pelled to announce their views on disputed legal issues. Thus, JUSTICE GINSBURG'S repeated invocation of instances in which nominees to this Court declined to announce such views during Senate confirmation hearings is pointless. Post, at 807-808, n. 1, 818-819, n. 4. That the practice 784 But in any case, JUSTICE GINSBURG greatly exaggerates the difference between judicial and legislative elections. She asserts that "the rationale underlying unconstrained speech in elections for political office-that representative government depends on the public's ability to choose agents who will act at its behest-does not carry over to campaigns for the bench." Post, at 806. This complete separation of the judiciary from the enterprise of "representative government" might have some truth in those countries where judges neither make law themselves nor set aside the laws enacted by the legislature. It is not a true picture of the American system. Not only do state-court judges possess the power to "make" common law, but they have the immense power to shape the States' constitutions as well. See, e. g., Baker v. State, 170 Vt. 194, 744 A. 2d 864 (1999). Which is precisely why the election of state judges became popular.12 of voluntarily demurring does not establish the legitimacy of legal compulsion to demur is amply demonstrated by the unredacted text of the sentence she quotes in part, post, at 819, from Laird v. Tatum, 409 U. S. 824 , 836, n. 5 (1972): "In terms of propriety, rather than disqualification, I would distinguish quite sharply between a public statement made prior to nomination for the bench, on the one hand, and a public statement made by a nominee to the bench." (Emphasis added.) 12 Although JUSTICE STEVENS at times appears to agree with JUSTICE GINSBURG'S premise that the judiciary is completely separated from the enterprise of representative government, post, at 798 ("[E]very good judge is fully aware of the distinction between the law and a personal point of view"), he eventually appears to concede that the separation does not hold true for many judges who sit on courts of last resort, ante, at 799 ("If he is not a judge on the highest court in the State, he has an obligation to follow the precedent of that court, not his personal views or public opinion polls"); post, at 799, n. 2. Even if the policymaking capacity of judges were limited to courts of last resort, that would only prove that the announce clause fails strict scrutiny. "[I]f announcing one's views in the context of a campaign for the State Supreme Court might be" protected speech, ibid., then-even if announcing one's views in the context of a campaign for a lower court were not protected speech, ibid.-the announce clause would not be narrowly tailored, since it applies to high- 785 IV To sustain the announce clause, the Eighth Circuit relied heavily on the fact that a pervasive practice of prohibiting judicial candidates from discussing disputed legal and political issues developed during the last half of the 20th century. 247 F. 3d, at 879-880. It is true that a "universal and longestablished" tradition of prohibiting certain conduct creates "a strong presumption" that the prohibition is constitutional: "Principles of liberty fundamental enough to have been embodied within constitutional guarantees are not readily erased from the Nation's consciousness." McIntyre v. Ohio Elections Comm'n, 514 U. S. 334 , 375-377 (1995) (SCALIA, J., dissenting). The practice of prohibiting speech by judicial candidates on disputed issues, however, is neither long nor universal. At the time of the founding, only Vermont (before it became a State) selected any of its judges by election. Starting with Georgia in 1812, States began to provide for judicial election, a development rapidly accelerated by Jacksonian democracy. By the time of the Civil War, the great majority of States elected their judges. E. Haynes, Selection and Tenure of Judges 99-135 (1944); Berkson, Judicial Selection in the United States: A Special Report, 64 Judicature 176 (1980). We know of no restrictions upon statements that could be made by judicial candidates (including judges) throughout the 19th and the first quarter of the 20th century. Indeed, judicial elections were generally partisan during this period, the movement toward nonpartisan judicial elections not even beginning until the 1870's. Id., at 176-177; and low-court candidates alike. In fact, however, the judges of inferior courts often "make law," since the precedent of the highest court does not cover every situation, and not every case is reviewed. JUSTICE STEVENS has repeatedly expressed the view that a settled course of lower court opinions binds the highest court. See, e. g., Reves v. Ernst & Young, 494 U. S. 56, 74 (1990) (concurring opinion); McNally v. United States, 483 U. S. 350 , 376-377 (1987) (dissenting opinion). 786 M. Comisky & P. Patterson, The Judiciary-Selection, Compensation, Ethics, and Discipline 4, 7 (1987). Thus, not only were judicial candidates (including judges) discussing disputed legal and political issues on the campaign trail, but they were touting party affiliations and angling for party nominations all the while. The first code regulating judicial conduct was adopted by the ABA in 1924. 48 ABA Reports 74 (1923) (report of Chief Justice Taft); P. McFadden, Electing Justice: The Law and Ethics of Judicial Election Campaigns 86 (1990). It contained a provision akin to the announce clause: "A candidate for judicial position ... should not announce in advance his conclusions of law on disputed issues to secure class support .... " ABA Canon of Judicial Ethics 30 (1924). The States were slow to adopt the canons, however. "By the end of World War II, the canons ... were binding by the bar associations or supreme courts of only eleven states." J. MacKenzie, The Appearance of Justice 191 (1974). Even today, although a majority of States have adopted either the announce clause or its 1990 ABA successor, adoption is not unanimous. Of the 31 States that select some or all of their appellate and general-jurisdiction judges by election, see American Judicature Society, Judicial Selection in the States: Appellate and General Jurisdiction Courts (Apr. 2002), 4 have adopted no candidate-speech restriction comparable to the announce clause,13 and 1 prohibits only the discussion of "pending litigation." 14 This practice, relatively new to judicial elections and still not universally adopted, does not compare well with the traditions deemed worthy of our attention in prior cases. E. g., Burson v. Freeman, 504 U. S. 191 ,205206 (1992) (crediting tradition of prohibiting speech around 13 Idaho Code of Judicial Conduct, Canon 7 (2001); Mich. Code of Judicial Conduct, Canon 7 (2002); N. C. Code of Judicial Conduct, Canon 7 (2001); Ore. Code of Judicial Conduct, Rule 4-102 (2002). All of these States save Idaho have adopted the pledges or promises clause. 14 Ala. Canon of Judicial Ethics 7(B)(1)(c) (2002). 787 polling places that began with the very adoption of the secret ballot in the late 19th century, and in which every State participated); id., at 214-216 (SCALIA, J., concurring in judgment) (same); McIntyre, supra, at 375-377 (SCALIA, J., dissenting) (crediting tradition of prohibiting anonymous election literature, which again began in 1890 and was universally adopted). *** There is an obvious tension between the article of Minnesota's popularly approved Constitution which provides that judges shall be elected, and the Minnesota Supreme Court's announce clause which places most subjects of interest to the voters off limits. (The candidate-speech restrictions of all the other States that have them are also the product of judicial fiat.15) The disparity is perhaps unsurprising, since the ABA, which originated the announce clause, has long been an opponent of judicial elections. See ABA Model Code of Judicial Conduct, Canon 5(C)(2), Comment (2000) ("[M]erit selection of judges is a preferable manner in which to select the judiciary"); An Independent Judiciary: Report of the ABA Commission on Separation of Powers and Judicial Independence 96 (1997) ("The American Bar Association strongly endorses the merit selection of judges, as opposed to their election .... Five times between August 1972 and August 1984 the House of Delegates has approved recommendations stating the preference for merit selection and encouraging bar associations in jurisdictions where judges are elected ... to work for the adoption of merit selection and retention"). That opposition may be well taken (it certainly had the sup- 15 These restrictions are all contained in these States' codes of judicial conduct, App. to Brief for ABA as Amicus Curiae. "In every state, the highest court promulgates the Code of Judicial Conduct, either by express constitutional provision, statutory authorization, broad constitutional grant, or inherent power." In the Supreme Court of Texas: Per Curiam Opinion Concerning Amendments to Canons 5 and 6 of the Code of Judicial Conduct, 61 Tex. B. J. 64, 66 (1998) (collecting provisions). 788 port of the Founders of the Federal Government), but the First Amendment does not permit it to achieve its goal by leaving the principle of elections in place while preventing candidates from discussing what the elections are about. "[T]he greater power to dispense with elections altogether does not include the lesser power to conduct elections under conditions of state-imposed voter ignorance. If the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process ... the First Amendment rights that attach to their roles." Renne v. Geary, 501 U. S. 312 , 349 (1991) (Marshall, J., dissenting); accord, Meyer v. Grant, 486 U. S. 414 , 424425 (1988) (rejecting argument that the greater power to end voter initiatives includes the lesser power to prohibit paid petition-circulators). The Minnesota Supreme Court's canon of judicial conduct prohibiting candidates for judicial election from announcing their views on disputed legal and political issues violates the First Amendment. Accordingly, we reverse the grant of summary judgment to respondents and remand the case for proceedings consistent with this opinion. It is so ordered. JUSTICE O'CONNOR, concurring. I join the opinion of the Court but write separately to express my concerns about judicial elections generally. Respondents claim that "[t]he Announce Clause is necessary ... to protect the State's compelling governmental interes[t] in an actual and perceived ... impartial judiciary." Brief for Respondents 8. I am concerned that, even aside from what judicial candidates may say while campaigning, the very practice of electing judges undermines this interest. We of course want judges to be impartial, in the sense of being free from any personal stake in the outcome of the cases to which they are assigned. But if judges are subject to regular elections they are likely to feel that they have at 789 least some personal stake in the outcome of every publicized case. Elected judges cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their reelection prospects. See Eule, Crocodiles in the Bathtub: State Courts, Voter Initiatives and the Threat of Electoral Reprisal, 65 U. Colo. L. Rev. 733, 739 (1994) (quoting former California Supreme Court Justice Otto Kaus' statement that ignoring the political consequences of visible decisions is "'like ignoring a crocodile in your bathtub' "); Bright & Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B. U. L. Rev. 759, 793-794 (1995) (citing statistics indicating that judges who face elections are far more likely to override jury sentences of life without parole and impose the death penalty than are judges who do not run for election). Even if judges were able to suppress their awareness of the potential electoral consequences of their decisions and refrain from acting on it, the public's confidence in the judiciary could be undermined simply by the possibility that judges would be unable to do so. Moreover, contested elections generally entail campaigning. And campaigning for a judicial post today can require substantial funds. See Schotland, Financing Judicial Elections, 2000: Change and Challenge, 2001 L. Rev. Mich. State U. Detroit College of Law 849, 866 (reporting that in 2000, the 13 candidates in a partisan election for 5 seats on the Alabama Supreme Court spent an average of $1,092,076 on their campaigns); American Bar Association, Report and Recommendations of the Task Force on Lawyers' Political Contributions, pt. 2 (July 1998) (reporting that in 1995, one candidate for the Pennsylvania Supreme Court raised $1,848,142 in campaign funds, and that in 1986, $2,700,000 was spent on the race for Chief Justice of the Ohio Supreme Court). Unless the pool of judicial candidates is limited to those wealthy enough to independently fund their campaigns, a limitation unrelated to judicial skill, the cost of 790 campaigning requires judicial candidates to engage in fundraising. Yet relying on campaign donations may leave judges feeling indebted to certain parties or interest groups. See Thomas, National L. J., Mar. 16, 1998, p. A8, col. 1 (reporting that a study by the public interest group Texans for Public Justice found that 40 percent of the $9,200,000 in contributions of $100 or more raised by seven of Texas' nine Supreme Court justices for their 1994 and 1996 elections "came from parties and lawyers with cases before the court or contributors closely linked to these parties"). Even if judges were able to refrain from favoring donors, the mere possibility that judges' decisions may be motivated by the desire to repay campaign contributors is likely to undermine the public's confidence in the judiciary. See Greenberg Quinlan Rosner Research, Inc., and American Viewpoint, National Public Opinion Survey Frequency Questionnaire 4 (2001) (available at http://www.justiceatstake. org/files/JASN ationalSurvey Results.pdf) (describing survey results indicating that 76 percent of registered voters believe that campaign contributions influence judicial decisions); id., at 7 (describing survey results indicating that two-thirds of registered voters believe individuals and groups who give money to judicial candidates often receive favorable treatment); Barnhizer, "On the Make": Campaign Funding and the Corrupting of the American Judiciary, 50 Cath. U. L. Rev. 361, 379 (2001) (relating anecdotes of lawyers who felt that their contributions to judicial campaigns affected their chance of success in court). Despite these significant problems, 39 States currently employ some form of judicial elections for their appellate courts, general jurisdiction trial courts, or both. American Judicature Society, Judicial Selection in the States: Appellate and General Jurisdiction Courts (Apr. 2002). Judicial elections were not always so prevalent. The first 29 States of the Union adopted methods for selecting judges that did not involve popular elections. See Croley, The Majoritarian Dif- 791 ficulty: Elective Judiciaries and the Rule of Law, 62 U. Chi. L. Rev. 689, 716 (1995). As the Court explains, however, beginning with Georgia in 1812, States began adopting systems for judicial elections. See ante, at 785. From the 1830's until the 1850's, as part of the Jacksonian movement toward greater popular control of public office, this trend accelerated, see Goldschmidt, Merit Selection: Current Status, Procedures, and Issues, 49 U. Miami L. Rev. 1, 5 (1994), and by the Civil War, 22 of the 34 States elected their judges, ibid. By the beginning of the 20th century, however, elected judiciaries increasingly came to be viewed as incompetent and corrupt, and criticism of partisan judicial elections mounted. Croley, supra, at 723. In 1906, Roscoe Pound gave a speech to the American Bar Association in which he claimed that "compelling judges to become politicians, in many jurisdictions has almost destroyed the traditional respect for the bench." The Causes of Popular Dissatisfaction with the Administration of Justice, 8 Baylor L. Rev. 1, 23 (1956) (reprinting Pound's speech). In response to such concerns, some States adopted a modified system of judicial selection that became known as the Missouri Plan (because Missouri was the first State to adopt it for most of its judicial posts). See Croley, 62 U. Chi. L. Rev., at 724. Under the Missouri Plan, judges are appointed by a high elected official, generally from a list of nominees put together by a nonpartisan nominating commission, and then subsequently stand for unopposed retention elections in which voters are asked whether the judges should be recalled. Ibid. If a judge is recalled, the vacancy is filled through a new nomination and appointment. Ibid. This system obviously reduces threats to judicial impartiality, even if it does not eliminate all popular pressure on judges. See Grodin, Developing a Consensus of Constraint: A Judge's Perspective on Judicial Retention Elections, 61 S. Cal. L. Rev. 1969, 1980 (1988) (admitting that he cannot be sure that his votes as a California Supreme Court Justice 792 in "critical cases" during 1986 were not influenced subconsciously by his awareness that the outcomes could affect his chances in the retention elections being conducted that year). The Missouri Plan is currently used to fill at least some judicial offices in 15 States. Croley, supra, at 725-726; American Judicature Society, supra. Thirty-one States, however, still use popular elections to select some or all of their appellate and/or general jurisdiction trial court judges, who thereafter run for reelection periodically. Ibid. Of these, slightly more than half use nonpartisan elections, and the rest use partisan elections. Ibid. Most of the States that do not have any form of judicial elections choose judges through executive nomination and legislative confirmation. See Croley, supra, at 725. Minnesota has chosen to select its judges through contested popular elections instead of through an appointment system or a combined appointment and retention election system along the lines of the Missouri Plan. In doing so the State has voluntarily taken on the risks to judicial bias described above. As a result, the State's claim that it needs to significantly restrict judges' speech in order to protect judicial impartiality is particularly troubling. If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges. JUSTICE KENNEDY, concurring. I agree with the Court that Minnesota's prohibition on judicial candidates' announcing their legal views is an unconstitutional abridgment of the freedom of speech. There is authority for the Court to apply strict scrutiny analysis to resolve some First Amendment cases, see, e. g., Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105 (1991), and the Court explains in clear and forceful terms why the Minnesota regulatory scheme fails that test. So I join its opinion. 793 I adhere to my view, however, that content-based speech restrictions that do not fall within any traditional exception should be invalidated without inquiry into narrow tailoring or compelling government interests. The speech at issue here does not come within any of the exceptions to the First Amendment recognized by the Court. "Here, a law is directed to speech alone where the speech in question is not obscene, not defamatory, not words tantamount to an act otherwise criminal, not an impairment of some other constitutional right, not an incitement to lawless action, and not calculated or likely to bring about imminent harm the State has the substantive power to prevent. No further inquiry is necessary to reject the State's argument that the statute should be upheld." Id., at 124 (KENNEDY, J., concurring in judgment). The political speech of candidates is at the heart of the First Amendment, and direct restrictions on the content of candidate speech are simply beyond the power of government to impose. Here, Minnesota has sought to justify its speech restriction as one necessary to maintain the integrity of its judiciary. Nothing in the Court's opinion should be read to cast doubt on the vital importance of this state interest. Courts, in our system, elaborate principles of law in the course of resolving disputes. The power and the prerogative of a court to perform this function rest, in the end, upon the respect accorded to its judgments. The citizen's respect for judgments depends in turn upon the issuing court's absolute probity. Judicial integrity is, in consequence, a state interest of the highest order. Articulated standards of judicial conduct may advance this interest. See Shepard, Campaign Speech: Restraint and Liberty in Judicial Ethics, 9 Geo. J. Legal Ethics 1059 (1996). To comprehend, then to codify, the essence of judicial integrity is a hard task, however. "The work of deciding cases goes on every day in hundreds of courts throughout the land. Any judge, one might suppose, would find it easy to describe 794 the process which he had followed a thousand times and more. Nothing could be farther from the truth." B. Cardozo, The Nature of the Judicial Process 9 (1921). Much the same can be said of explicit standards to ensure judicial integrity. To strive for judicial integrity is the work of a lifetime. That should not dissuade the profession. The difficulty of the undertaking does not mean we should refrain from the attempt. Explicit standards of judicial conduct provide essential guidance for judges in the proper discharge of their duties and the honorable conduct of their office. The legislative bodies, judicial committees, and professional associations that promulgate those standards perform a vital public service. See, e. g., Administrative Office of U. S. Courts, Code of Judicial Conduct for United States Judges (1999). Yet these standards may not be used by the State to abridge the speech of aspiring judges in a judicial campaign. Minnesota may choose to have an elected judiciary. It may strive to define those characteristics that exemplify judicial excellence. It may enshrine its definitions in a code of judicial conduct. It may adopt recusal standards more rigorous than due process requires, and censure judges who violate these standards. What Minnesota may not do, however, is censor what the people hear as they undertake to decide for themselves which candidate is most likely to be an exemplary judicial officer. Deciding the relevance of candidate speech is the right of the voters, not the State. See Brown v. Hartlage, 456 U. S. 45 , 60 (1982). The law in question here contradicts the principle that unabridged speech is the foundation of political freedom. The State of Minnesota no doubt was concerned, as many citizens and thoughtful commentators are concerned, that judicial campaigns in an age of frenetic fundraising and mass media may foster disrespect for the legal system. Indeed, from the beginning there have been those who believed that the rough-and-tumble of politics would bring our governmental institutions into ill repute. And some have sought to 795 cure this tendency with governmental restrictions on political speech. See Sedition Act of 1798, ch. 74, 1 Stat. 596. Cooler heads have always recognized, however, that these measures abridge the freedom of speech-not because the state interest is insufficiently compelling, but simply because content-based restrictions on political speech are" 'expressly and positively forbidden by''' the First Amendment. See New York Times Co. v. Sullivan, 376 U. S. 254 , 274 (1964) (quoting the Virginia Resolutions of 1798). The State cannot opt for an elected judiciary and then assert that its democracy, in order to work as desired, compels the abridgment of speech. If Minnesota believes that certain sorts of candidate speech disclose flaws in the candidate's credentials, democracy and free speech are their own correctives. The legal profession, the legal academy, the press, voluntary groups, political and civic leaders, and all interested citizens can use their own First Amendment freedoms to protest statements inconsistent with standards of judicial neutrality and judicial excellence. Indeed, if democracy is to fulfill its promise, they must do so. They must reach voters who are uninterested or uninformed or blinded by partisanship, and they must urge upon the voters a higher and better understanding of the judicial function and a stronger commitment to preserving its finest traditions. Free elections and free speech are a powerful combination: Together they may advance our understanding of the rule of law and further a commitment to its precepts. There is general consensus that the design of the Federal Constitution, including lifetime tenure and appointment by nomination and confirmation, has preserved the independence of the Federal Judiciary. In resolving this case, however, we should refrain from criticism of the State's choice to use open elections to select those persons most likely to achieve judicial excellence. States are free to choose this mechanism rather than, say, appointment and confirmation. 796 By condemning judicial elections across the board, we implicitly condemn countless elected state judges and without warrant. Many of them, despite the difficulties imposed by the election system, have discovered in the law the enlightenment, instruction, and inspiration that make them independent-minded and faithful jurists of real integrity. We should not, even by inadvertence, "impute to judges a lack of firmness, wisdom, or honor." Bridges v. California, 314 U. S. 252 , 273 (1941). These considerations serve but to reinforce the conclusion that Minnesota's regulatory scheme is flawed. By abridging speech based on its content, Minnesota impeaches its own system of free and open elections. The State may not regulate the content of candidate speech merely because the speakers are candidates. This case does not present the question whether a State may restrict the speech of judges because they are judges-for example, as part of a code of judicial conduct; the law at issue here regulates judges only when and because they are candidates. Whether the rationale of Pickering v. Board of Ed. of Township High School Dist.205, Will Cty., 391 U. S. 563 , 568 (1968), and Connick v. Myers, 461 U. S. 138 (1983), could be extended to allow a general speech restriction on sitting judges-regardless of whether they are campaigning-in order to promote the efficient administration of justice, is not an issue raised here. Petitioner Gregory Wersal was not a sitting judge but a challenger; he had not voluntarily entered into an employment relationship with the State or surrendered any First Amendment rights. His speech may not be controlled or abridged in this manner. Even the undoubted interest of the State in the excellence of its judiciary does not allow it to restrain candidate speech by reason of its content. Minnesota's attempt to regulate campaign speech is impermissible. 797 JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting. In her dissenting opinion, JUSTICE GINSBURG has cogently explained why the Court's holding is unsound. I therefore join her opinion without reservation. I add these comments to emphasize the force of her arguments and to explain why I find the Court's reasoning even more troubling than its holding. The limits of the Court's holding are evident: Even if the Minnesota Lawyers Professional Responsibility Board (Board) may not sanction a judicial candidate for announcing his views on issues likely to come before him, it may surely advise the electorate that such announcements demonstrate the speaker's unfitness for judicial office. If the solution to harmful speech must be more speech, so be it. The Court's reasoning, however, will unfortunately endure beyond the next election cycle. By obscuring the fundamental distinction between campaigns for the judiciary and the political branches, and by failing to recognize the difference between statements made in articles or opinions and those made on the campaign trail, the Court defies any sensible notion of the judicial office and the importance of impartiality in that context. The Court's disposition rests on two seriously flawed premises-an inaccurate appraisal of the importance of judicial independence and impartiality, and an assumption that judicial candidates should have the same freedom" 'to express themselves on matters of current public importance'" as do all other elected officials. Ante, at 781-782. Elected judges, no less than appointed judges, occupy an office of trust that is fundamentally different from that occupied by policymaking officials. Although the fact that they must stand for election makes their job more difficult than that of the tenured judge, that fact does not lessen their duty to respect essential attributes of the judicial office that have been embedded in Anglo-American law for centuries. 798 There is a critical difference between the work of the judge and the work of other public officials. In a democracy, issues of policy are properly decided by majority vote; it is the business of legislators and executives to be popular. But in litigation, issues of law or fact should not be determined by popular vote; it is the business of judges to be indifferent to unpopularity. Sir Matthew Hale pointedly described this essential attribute of the judicial office in words which have retained their integrity for centuries: "'11. That popular or court applause or distaste have no influence in anything I do, in point of distribution of justice. "'12. Not to be solicitous what men will say or think, so long as I keep myself exactly according to the rule of justice.'" 1 Consistent with that fundamental attribute of the office, countless judges in countless cases routinely make rulings that are unpopular and surely disliked by at least 50 percent of the litigants who appear before them. It is equally common for them to enforce rules that they think unwise, or that are contrary to their personal predilections. For this reason, opinions that a lawyer may have expressed before becoming a judge, or a judicial candidate, do not disqualify anyone for judicial service because every good judge is fully aware of the distinction between the law and a personal point of view. It is equally clear, however, that such expressions after a lawyer has been nominated to judicial office shed little, if any, light on his capacity for judicial service. Indeed, to the extent that such statements seek to enhance the popularity of the candidate by indicating how he would rule in specific cases if elected, they evidence a lack of fitness for the office. 12 J. Campbell, Lives of the Chief Justices of England 208 (1873) (quoting Hale's Rules For His Judicial Guidance, Things Necessary to be Continually Had in Remembrance). 799 Of course, any judge who faces reelection may believe that he retains his office only so long as his decisions are popular. Nevertheless, the elected judge, like the lifetime appointee, does not serve a constituency while holding that office. He has a duty to uphold the law and to follow the dictates of the Constitution. If he is not a judge on the highest court in the State, he has an obligation to follow the precedent of that court, not his personal views or public opinion polls.2 He may make common law, but judged on the merits of individual cases, not as a mandate from the voters. By recognizing a conflict between the demands of electoral politics and the distinct characteristics of the judiciary, we 2 The Court largely ignores the fact that judicial elections are not limited to races for the highest court in the State. Even if announcing one's views in the context of a campaign for the State Supreme Court might be permissible, the same statements are surely less appropriate when one is running for an intermediate or trial court judgeship. Such statements not only display a misunderstanding of the judicial role, but also mislead the voters by giving them the false impression that a candidate for the trial court will be able to and should decide cases based on his personal views rather than precedent. Indeed, the Court's entire analysis has a hypothetical quality to it that stems, in part, from the fact that no candidate has yet been sanctioned for violating the announce clause. The one complaint filed against petitioner Gregory Wersal for campaign materials during his 1996 election run was dismissed by the Board. App. 16-21. Moreover, when Wersal sought an advisory opinion during his 1998 campaign, the Board could not evaluate his request because he had "not specified what statement [he] would make that mayor may not be a view on a disputed, legal or political issue." Id., at 32. Since Wersal failed to provide examples of statements he wished to make, and because the Board had its own doubts about the constitutionality of the announce clause, it advised Wersal that "unless the speech at issue violates other prohibitions listed in Canon 5 or other portions of the Code of Judicial Conduct, it is our belief that this section is not, as written, constitutionally enforceable." Ibid. Consequently, the Court is left to decide a question of great constitutional importance in a case in which either the petitioner's statements were not subject to the prohibition in question, or he neglected to supply any concrete examples of statements he wished to make, and the Board refused to enforce the prohibition because of its own constitutional concerns. 800 do not have to put States to an all or nothing choice of abandoning judicial elections or having elections in which anything goes. As a practical matter, we cannot know for sure whether an elected judge's decisions are based on his interpretation of the law or political expediency. In the absence of reliable evidence one way or the other, a State may reasonably presume that elected judges are motivated by the highest aspirations of their office. But we do know that a judicial candidate, who announces his views in the context of a campaign, is effectively telling the electorate: "Vote for me because I believe X, and I will judge cases accordingly." Once elected, he may feel free to disregard his campaign statements, ante, at 780-781, but that does not change the fact that the judge announced his position on an issue likely to come before him as a reason to vote for him. Minnesota has a compelling interest in sanctioning such statements. A candidate for judicial office who goes beyond the expression of "general observation about the law ... in order to obtain favorable consideration" of his candidacy, Laird v. Tatum, 409 U. S. 824 , 836, n. 5 (1972) (memorandum of REHNQUIST, J., on motion for recusal), demonstrates either a lack of impartiality or a lack of understanding of the importance of maintaining public confidence in the impartiality of the judiciary. It is only by failing to recognize the distinction, clearly stated by then-JusTIcE REHNQUIST, between statements made during a campaign or confirmation hearing and those made before announcing one's candidacy, that the Court is able to conclude: "[S]ince avoiding judicial preconceptions on legal issues is neither possible nor desirable, pretending otherwise by attempting to preserve the 'appearance' of that type of impartiality can hardly be a compelling state interest either," ante, at 778. Even when "impartiality" is defined in its narrowest sense to embrace only "the lack of bias for or against either party to the proceeding," ante, at 775, the announce clause serves that interest. Expressions that stress a candidate's unbro- 801 ken record of affirming convictions for rape,3 for example, imply a bias in favor of a particular litigant (the prosecutor) and against a class of litigants (defendants in rape cases). Contrary to the Court's reasoning in its first attempt to define impartiality, ante, at 775-776, an interpretation of the announce clause that prohibits such statements serves the State's interest in maintaining both the appearance of this form of impartiality and its actuality. When the Court evaluates the importance of impartiality in its broadest sense, which it describes as "the interest in openmindedness, or at least in the appearance of openmindedness," ante, at 778, it concludes that the announce clause is "so woefully underinclusive as to render belief in that purpose a challenge to the credulous," ante, at 780. It is underinclusive, in the Court's view, because campaign statements are an infinitesimal portion of the public commitments to legal positions that candidates make during their professional careers. It is not, however, the number of legal views that a candidate may have formed or discussed in his prior career that is significant. Rather, it is the ability both to reevaluate them in the light of an adversarial presentation, and to apply the governing rule of law even when inconsistent with those views, that characterize judicial openmindedness. The Court boldly asserts that respondents have failed to carry their burden of demonstrating "that campaign statements are uniquely destructive of openmindedness," ante, at 781. But the very purpose of most statements prohibited by the announce clause is to convey the message that the candidate's mind is not open on a particular issue. The lawyer who writes an article advocating harsher penalties for polluters surely does not commit to that position to the same degree as the candidate who says "vote for me because I believe all polluters deserve harsher penalties." At the 3 See Buckley v. Illinois Judicial Inquiry Bd., 997 F.2d 224 , 226 (CA7 1993). 802 very least, such statements obscure the appearance of openmindedness. More importantly, like the reasoning in the Court's opinion, they create the false impression that the standards for the election of political candidates apply equally to candidates for judicial office.4 The Court seems to have forgotten its prior evaluation of the importance of maintaining public confidence in the "disinterestedness" of the judiciary. Commenting on the danger that participation by judges in a political assignment might erode that public confidence, we wrote: "While the problem of individual bias is usually cured through recusal, no such mechanism can overcome the appearance of institutional partiality that may arise from judiciary involvement in the making of policy. The legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship. That reputation may not be borrowed by the political Branches to cloak their work in the neutral colors of judicial action." Mistretta v. United States, 488 U. S. 361, 407 (1989). Conversely, the judicial reputation for impartiality and openmindedness is compromised by electioneering that emphasizes the candidate's personal predilections rather than his qualifications for judicial office. As an elected judge recently noted: "Informed criticism of court rulings, or of the professional or personal conduct of judges, should play an 4JUSTICE KENNEDY would go even further and hold that no contentbased restriction of a judicial candidate's speech is permitted under the First Amendment. Ante, at 793 (concurring opinion). While he does not say so explicitly, this extreme position would preclude even Minnesota's prohibition against "pledges or promises" by a candidate for judicial office. Minn. Code of Judicial Conduct, Canon 5(A)(3)(d)(i) (2002). A candidate could say "vote for me because I promise to never reverse a rape conviction," and the Board could do nothing to formally sanction that candidate. The unwisdom of this proposal illustrates why the same standards should not apply to speech in campaigns for judicial and legislative office. 803 important role in maintaining judicial accountability. However, attacking courts and judges-not because they are wrong on the law or the facts of a case, but because the decision is considered wrong simply as a matter of political judgment-maligns one of the basic tenets of judicial independence-intellectual honesty and dedication to enforcement of the rule of law regardless of popular sentiment. Dedication to the rule of law requires judges to rise above the political moment in making judicial decisions. What is so troubling about criticism of court rulings and individual judges based solely on political disagreement with the outcome is that it evidences a fundamentally misguided belief that the judicial branch should operate and be treated just like another constituency-driven political arm of government. Judges should not have 'political constituencies.' Rather, a judge's fidelity must be to enforcement of the rule of law regardless of perceived popular will." De Muniz, Politicizing State Judicial Elections: A Threat to Judicial Independence, 38 Willamette L. Rev. 367, 387 (2002). The disposition of this case on the flawed premise that the criteria for the election to judicial office should mirror the rules applicable to political elections is profoundly misguided. I therefore respectfully dissent. JUSTICE GINSBURG, with whom JUSTICE STEVENS, JusTICE SOUTER, and JUSTICE BREYER join, dissenting. Whether state or federal, elected or appointed, judges perform a function fundamentally different from that of the people's elected representatives. Legislative and executive officials act on behalf of the voters who placed them in office; "judge[s] represen[t] the Law." Chisom v. Roemer, 501 U. S. 380 , 411 (1991) (SCALIA, J., dissenting). Unlike their counterparts in the political branches, judges are expected to 804 refrain from catering to particular constituencies or committing themselves on controversial issues in advance of adversarial presentation. Their mission is to decide "individual cases and controversies" on individual records, Plaut v. Spendthrift Farm, Inc., 514 U. S. 211 , 266 (1995) (STEVENS, J., dissenting), neutrally applying legal principles, and, when necessary, "stand[ing] up to what is generally supreme in a democracy: the popular will," Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1180 (1989). A judiciary capable of performing this function, owing fidelity to no person or party, is a "longstanding AngloAmerican tradition," United States v. Will, 449 U. S. 200 , 217 (1980), an essential bulwark of constitutional government, a constant guardian of the rule of law. The guarantee of an independent, impartial judiciary enables society to "withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 , 638 (1943). "Without this, all the reservations of particular rights or privileges would amount to nothing." The Federalist No. 78, p. 466 (C. Rossiter ed. 1961). The ability of the judiciary to discharge its unique role rests to a large degree on the manner in which judges are selected. The Framers of the Federal Constitution sought to advance the judicial function through the structural protections of Article III, which provide for the selection of judges by the President on the advice and consent of the Senate, generally for lifetime terms. Through its own Constitution, Minnesota, in common with most other States, has decided to allow its citizens to choose judges directly in periodic elections. But Minnesota has not thereby opted to install a corps of political actors on the bench; rather, it has endeavored to preserve the integrity of its judiciary by other means. Recognizing that the influence of political parties is incompatible with the judge's role, for example, Minnesota 805 has designated all judicial elections nonpartisan. See Pe terson v. Stafford, 490 N. W. 2d 418, 425 (Minn. 1992). And it has adopted a provision, here called the Announce Clause, designed to prevent candidates for judicial office from "publicly making known how they would decide issues likely to come before them as judges." Republican Party of Minn. The question this case presents is whether the First Amendment stops Minnesota from furthering its interest in judicial integrity through this precisely targeted speech restriction. I The speech restriction must fail, in the Court's view, because an electoral process is at stake; if Minnesota opts to elect its judges, the Court asserts, the State may not rein in what candidates may say. See ante, at 781 (notion that "right to speak out on disputed issues" may be abridged in an election context "sets our First Amendment jurisprudence on its head"); ante, at 787-788 (power to dispense with elections does not include power to curtail candidate speech if State leaves election process in place); 247 F. 3d, at 897 (Beam, J., dissenting) ("[W]hen a state opts to hold an election, it must commit itself to a complete election, replete with free speech and association."); id., at 903 (same). I do not agree with this unilocular, "an election is an election," approach. Instead, I would differentiate elections for political offices, in which the First Amendment holds full sway, from elections designed to select those whose office it is to administer justice without respect to persons. Minnesota's choice to elect its judges, I am persuaded, does not preclude the State from installing an election process geared to the judicial office. Legislative and executive officials serve in representative capacities. They are agents of the people; their primary function is to advance the interests of their constituencies. Candidates for political offices, in keeping with their repre- 806 sentative role, must be left free to inform the electorate of their positions on specific issues. Armed with such information, the individual voter will be equipped to cast her ballot intelligently, to vote for the candidate committed to positions the voter approves. Campaign statements committing the candidate to take sides on contentious issues are therefore not only appropriate in political elections; they are "at the core of our electoral process," Williams v. Rhodes, 393 U. S. 23 , 32 (1968), for they "enhance the accountability of government officials to the people whom they represent," Brown v. Hartlage, 456 U. S. 45 , 55 (1982). Judges, however, are not political actors. They do not sit as representatives of particular persons, communities, or parties; they serve no faction or constituency. "[I]t is the business of judges to be indifferent to popularity." Chisom, 501 U. S., at 401, n. 29 (internal quotation marks omitted). They must strive to do what is legally right, all the more so when the result is not the one "the home crowd" wants. Rehnquist, Dedicatory Address: Act Well Your Part: Therein All Honor Lies, 7 Pepperdine L. Rev. 227, 229-300 (1980). Even when they develop common law or give concrete meaning to constitutional text, judges act only in the context of individual cases, the outcome of which cannot depend on the will of the public. See Barnette, 319 U. S., at 638 ("One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."). Thus, the rationale underlying unconstrained speech in elections for political office-that representative government depends on the public's ability to choose agents who will act at its behest-does not carryover to campaigns for the bench. As to persons aiming to occupy the seat of judgment, the Court's unrelenting reliance on decisions involving contests for legislative and executive posts is manifestly out of place. E. g., ante, at 781-782 (quoting Wood v. Georgia, 807 370 U. S. 375 , 395 (1962) ("The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance." (Emphasis added.))). See O'Neil, The Canons in the Courts: Recent First Amendment Rulings, 35 Ind. L. Rev. 701, 717 (2002) (reliance on cases involving nonjudicial campaigns, particularly Brown v. Hartlage, is "grievously misplaced"; "[h]ow any thoughtful judge could derive from that ruling any possible guidance for cases that involve judicial campaign speech seems baffling"). In view of the magisterial role judges must fill in a system of justice, a role that removes them from the partisan fray, States may limit judicial campaign speech by measures impermissible in elections for political office. See Buckley v. Illinois Judicial Inquiry Bd., 997 F.2d 224 , 228 (CA71993) ("Mode of appointment is only one factor that enables distinctions to be made among different kinds of public official. Judges remain different from legislators and executive officials, even when all are elected, in ways that bear on the strength of the state's interest in restricting their freedom of speech."). The Court sees in this conclusion, and in the Announce Clause that embraces it, "an obvious tension," ante, at 787: The Minnesota electorate is permitted to select its judges by popular vote, but is not provided information on "subjects of interest to the voters," ibid.-in particular, the voters are not told how the candidate would decide controversial cases or issues if elected. This supposed tension, however, rests on the false premise that by departing from the federal model with respect to who chooses judges, Minnesota necessarily departed from the federal position on the criteria relevant to the exercise of that choice.1 1 In the context of the federal system, how a prospective nominee for the bench would resolve particular contentious issues would certainly be "of interest" to the President and the Senate in the exercise of their respective nomination and confirmation powers, just as information of that type would "interest" a Minnesota voter. But in accord with a longstand- 808 The Minnesota Supreme Court thought otherwise: "The methods by which the federal system and other states initially select and then elect or retain judges are varied, yet the explicit or implicit goal of the constitutional provisions and enabling legislation is the same: to create and maintain an independent judiciary as free from political, economic and social pressure as possible so judges can decide cases without those influences." Peterson, 490 N. W. 2d, at 420. Nothing in the Court's opinion convincingly explains why Minnesota may not pursue that goal in the manner it did. Minnesota did not choose a judicial selection system with all the trappings of legislative and executive races. While providing for public participation, it tailored judicial selection to fit the character of third branch office holding. See id., at 425 (Minnesota's system "keep[s] the ultimate choice with the voters while, at the same time, recognizing the unique independent nature of the judicial function."). The balance the State sought to achieve-allowing the people to elect judges, but safeguarding the process so that the integrity of the judiciary would not be compromised-should en- ing norm, every Member of this Court declined to furnish such information to the Senate, and presumably to the President as well. See Brief for Respondents 17-42 (collecting statements at Senate confirmation hearings). Surely the Court perceives no tension here; the line each of us drew in response to preconfirmation questioning, the Court would no doubt agree, is crucial to the health of the Federal Judiciary. But by the Court's reasoning, the reticence of prospective and current federal judicial nominees dishonors Article II, for it deprives the President and the Senate of information that might aid or advance the decision to nominate or confirm. The point is not, of course, that this "practice of voluntarily demurring" by itself "establish[es] the legitimacy of legal compulsion to demur," ante, at 783-784, n. 11 (emphasis deleted). The federal norm simply illustrates that, contrary to the Court's suggestion, there is nothing inherently incongruous in depriving those charged with choosing judges of certain information they might desire during the selection process. 809 counter no First Amendment shoal. See generally O'Neil, supra, at 715-723. II Proper resolution of this case requires correction of the Court's distorted construction of the provision before us for review. According to the Court, the Announce Clause "prohibits a judicial candidate from stating his views on any specific nonfanciful legal question within the province of the court for which he is running, except in the context of discussing past decisions-and in the latter context as well, if he expresses the view that he is not bound by stare decisis." Ante, at 773. In two key respects, that construction misrepresents the meaning of the Announce Clause as interpreted by the Eighth Circuit and embraced by the Minnesota Supreme Court, In re Code of Judicial Conduct, 639 N. W. 2d 55 (2002), which has the final word on this matter, see Hortonville Joint School Dist. No. 1 v. Hortonville Ed. Assn., 426 U. S. 482 , 488 (1976) ("We are, of course, bound to accept the interpretation of [the State's] law by the highest court of the State."). First and most important, the Court ignores a cruciallimiting construction placed on the Announce Clause by the courts below. The provision does not bar a candidate from generally "stating [her] views" on legal questions, ante, at 773; it prevents her from "publicly making known how [she] would decide" disputed issues, 247 F. 3d, at 881-882 (emphasis added). That limitation places beyond the scope of the Announce Clause a wide range of comments that may be highly informative to voters. Consistent with the Eighth Circuit's construction, such comments may include, for example, statements of historical fact ("As a prosecutor, I obtained 15 drunk driving convictions"); qualified statements ("Judges should use sparingly their discretion to grant lenient sentences to drunk drivers"); and statements framed 810 at a sufficient level of generality ("Drunk drivers are a threat to the safety of every driver"). What remains within the Announce Clause is the category of statements that essentially commit the candidate to a position on a specific issue, such as "I think all drunk drivers should receive the maximum sentence permitted by law." See Tr. of Oral Arg. 45 (candidate may not say" 'I'm going to decide this particular issue this way in the future' "). Second, the Court misportrays the scope of the Clause as applied to a candidate's discussion of past decisions. Citing an apparent concession by respondents at argument, id., at 33-34, the Court concludes that "statements critical of past judicial decisions are not permissible if the candidate also states that he is against stare decisis," ante, at 772 (emphasis deleted). That conclusion, however, draws no force from the meaning attributed to the Announce Clause by the Eighth Circuit. In line with the Minnesota Board on Judicial Standards, the Court of Appeals stated without qualification that the Clause "does not prohibit candidates from discussing appellate court decisions." 247 F. 3d, at 882 (citing Minn. Bd. on Judicial Standards, Informal Opinion, Oct. 10, 1990, App. 55 ("In all election contests, a candidate for judicial office may discuss decisions and opinions of the Appellate courts.")). The Eighth Circuit's controlling construction should not be modified by respondents' on the spot answers to fast-paced hypothetical questions at oral argument. Moose Lodge No. 107 v. Irvis, 407 U. S. 163 , 170 (1972) ("We are loath to attach conclusive weight to the relatively spontaneous responses of counsel to equally spontaneous questioning from the Court during oral argument."). The Announce Clause is thus more tightly bounded, and campaigns conducted under that provision more robust, than the Court acknowledges. Judicial candidates in Minnesota may not only convey general information about themselves, see ante, at 774, they may also describe their conception of the role of a judge and their views on a wide range of sub- 811 jects of interest to the voters. See App. 97-103; Brief for Minnesota State Bar Association as Amicus Curiae 22-23 (e. g., the criteria for deciding whether to depart from sentencing guidelines, the remedies for racial and gender bias, and the balance between "free speech rights [and] the need to control [hate crimes]" (internal quotation marks omitted)). Further, they may discuss, criticize, or defend past decisions of interest to voters. What candidates may not do-simply or with sophistication-is remove themselves from the constraints characteristic of the judicial office and declare how they would decide an issue, without regard to the particular context in which it is presented, sans briefs, oral argument, and, as to an appellate bench, the benefit of one's colleagues' analyses. Properly construed, the Announce Clause prohibits only a discrete subcategory of the statements the Court's misinterpretation encompasses. The Court's characterization of the Announce Clause as "election-nullifying," ante, at 782, "plac[ing] most subjects of interest to the voters off limits," ante, at 787, is further belied by the facts of this case. In his 1996 bid for office, petitioner Gregory Wersal distributed literature sharply criticizing three Minnesota Supreme Court decisions. Of the court's holding in the first case-that certain unrecorded confessions must be suppressed-Wersal asked, "Should we conclude that because the Supreme Court does not trust police, it allows confessed criminals to go free?" App. 37. Of the second case, invalidating a state welfare law, Wersal stated: "The Court should have deferred to the Legislature. It's the Legislature which should set our spending policies." Ibid. And of the third case, a decision involving abortion rights, Wersal charged that the court's holding was "directly contrary to the opinion of the U. S. Supreme Court," "unprecedented," and a "pro-abortion stance." Id., at 38. When a complaint was filed against Wersal on the basis of those statements, id., at 12-15, the Lawyers Professional Responsibility Board concluded that no discipline was war- 812 ranted, in part because it thought the disputed campaign materials did not violate the Announce Clause, id., at 20-21. And when, at the outset of his 1998 campaign, Wersal sought to avoid the possibility of sanction for future statements, he pursued the option, available to all Minnesota judicial candidates, Tr. of Oral Arg. 12-13, of requesting an advisory opinion concerning the application of the Announce Clause. App. 24-26. In response to that request, the Board indicated that it did not anticipate any adverse action against him. Id., at 31-33.2 Wersal has thus never been sanctioned under the Announce Clause for any campaign statement he made. On the facts before us, in sum, the Announce Clause has hardly stifled the robust communication of ideas and views from judicial candidate to voter. III Even as it exaggerates the reach of the Announce Clause, the Court ignores the significance of that provision to the integrated system of judicial campaign regulation Minnesota has developed. Coupled with the Announce Clause in Minnesota's Code of Judicial Conduct is a provision that prohibits candidates from "mak[ing] pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office." Minn. Code of Judicial Conduct, Canon 5(A)(3)(d)(i) (2002). Although the Court is correct that this "pledges or promises" provision is not directly at issue in this case, see ante, at 770, the Court errs in overlooking the interdependence of that prohibition and the one before us. In my view, the constitutionality of the Announce 2 In deciding not to sanction Wersal for his campaign statements, and again in responding to his inquiry about the application of the Announce Clause, the Board expressed "doubts about the constitutionality of the current Minnesota Canon." App. 20; id., at 32. Those doubts, however, concerned the meaning of the Announce Clause before the Eighth Circuit applied, and the Minnesota Supreme Court adopted, the limiting constructions that now define that provision's scope. 813 Clause cannot be resolved without an examination of that interaction in light of the interests the pledges or promises provision serves. A All parties to this case agree that, whatever the validity of the Announce Clause, the State may constitutionally prohibit judicial candidates from pledging or promising certain results. See Brief for Petitioners Republican Party of Minnesota et al. 36-37; Tr. of Oral Arg. 14-16 (petitioners' acknowledgment that candidates may be barred from making a "pledge or promise of an outcome"); Brief for Respondents 11; see also Brief for Brennan Center for Justice et al. as Amici Curiae 23 ("All of the parties and amici in this case agree that judges should not make explicit promises or commitments to decide particular cases in a particular manner."). The reasons for this agreement are apparent. Pledges or promises of conduct in office, however commonplace in races for the political branches, are inconsistent "with the judge's obligation to decide cases in accordance with his or her role." Tr. of Oral Arg. 16; see Brief for Petitioners Republican Party of Minnesota et al. 36 ("[B]ecause [judges] have a duty to decide a case on the basis of the law and facts before them, they can be prohibited, as candidates, from making such promises."). This judicial obligation to avoid prejudgment corresponds to the litigant's right, protected by the Due Process Clause of the Fourteenth Amendment, to "an impartial and disinterested tribunal in both civil and criminal cases," Marshall v. Jerrico, Inc., 446 U. S. 238 , 242 (1980). The proscription against pledges or promises thus represents an accommodation of "constitutionally protected interests [that] lie on both sides of the legal equation." Nixon v. Shrink Missouri Government PAC, 528 U. S. 377 , 400 (2000) (BREYER, J., concurring). Balanced against the candidate's interest in free expression is the litigant's "powerful and independent constitutional interest in fair adjudicative procedure." Marshall, 446 U. S., at 243; see Buckley, 997 F. 2d, 814 at 227 ("Two principles are in conflict and must, to the extent possible, be reconciled .... The roots of both principles lie deep in our constitutional heritage."). The impartiality guaranteed to litigants through the Due Process Clause adheres to a core principle: "[N]o man is permitted to try cases where he has an interest in the outcome." In re Murchison, 349 U. S. 133 , 136 (1955). Our cases have "jealously guarded" that basic concept, for it "ensur[es] that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him." Marshall, 446 U. S., at 242. Applying this principle in Tumey v. Ohio, 273 U. S. 510 (1927), we held that due process was violated where a judge received a portion of the fines collected from defendants whom he found guilty. Such an arrangement, we said, gave the judge a "direct, personal, substantial[, and] pecuniary interest" in reaching a particular outcome and thereby denied the defendant his right to an impartial arbiter. Id., at 523. Ward v. Monroeville, 409 U. S. 57 (1972), extended Tumey's reasoning, holding that due process was similarly violated where fines collected from guilty defendants constituted a large part of a village's finances, for which the judge, who also served as the village mayor, was responsible. Even though the mayor did not personally share in those fines, we concluded, he "perforce occupie[d] two practically and seriously inconsistent positions, one partisan and the other judicial." 409 U. S., at 60 (internal quotation marks omitted). We applied the principle of Tumey and Ward most recently in Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813 (1986). That decision invalidated a ruling of the Alabama Supreme Court written by a justice who had a personal interest in the resolution of a dispositive issue. The Alabama Supreme Court's ruling was issued while the justice was pursuing a separate lawsuit in an Alabama lower court, and its outcome "had the clear and immediate effect of enhancing both the legal status 815 and the settlement value" of that separate suit. Id., at 824. As in Ward and Tumey, we held, the justice therefore had an interest in the outcome of the decision that unsuited him to participate in the judgment. 475 U. S., at 824. It mattered not whether the justice was actually influenced by this interest; "[t]he Due Process Clause," we observed, "may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties." Id., at 825 (internal quotation marks omitted). These cases establish three propositions important to this dispute. First, a litigant is deprived of due process where the judge who hears his case has a "direct, personal, substantial, and pecuniary" interest in ruling against him. Id., at 824 (internal quotation marks and alteration omitted). Second, this interest need not be as direct as it was in Tumey, where the judge was essentially compensated for each conviction he obtained; the interest may stem, as in Ward, from the judge's knowledge that his success and tenure in office depend on certain outcomes. "[T]he test," we have said, "is whether the ... situation is one 'which would offer a possible temptation to the average man as a judge [that] might lead him not to hold the balance nice, clear and true.''' Ward, 409 U. S., at 60 (quoting Tumey, 273 U. S., at 532). And third, due process does not require a showing that the judge is actually biased as a result of his self-interest. Rather, our cases have "always endeavored to prevent even the probability of unfairness." In re Murchison, 349 U. S., at 136. "[T]he requirement of due process of law in judicial procedure is not satisfied by the argument that men of the highest honor and the greatest self-sacrifice could carry it on without danger of injustice." Tumey, 273 U. S., at 532.3 3 To avoid the import of our due process decisions, the Court dissects the concept of judicial "impartiality," ante, at 775-779, concluding that only one variant of that concept-lack of prejudice against a party-is secured by the Fourteenth Amendment, ante, at 775-777. Our Due Proc- 816 The justification for the pledges or promises prohibition follows from these principles. When a judicial candidate promises to rule a certain way on an issue that may later reach the courts, the potential for due process violations is grave and manifest. If successful in her bid for office, the judicial candidate will become a judge, and in that capacity she will be under pressure to resist the pleas of litigants who advance positions contrary to her pledges on the campaign trail. If the judge fails to honor her campaign promises, she will not only face abandonment by supporters of her professed views; she will also "ris[k] being assailed as a dissembler," 247 F. 3d, at 878, willing to say one thing to win an election and to do the opposite once in office. A judge in this position therefore may be thought to have a "direct, personal, substantial, [and] pecuniary interest" in ruling against certain litigants, Tumey, 273 U. S., at 523, for she may be voted off the bench and thereby lose her salary and emoluments unless she honors the pledge that secured her election. See Shepard, Campaign Speech: Restraint and Liberty in Judicial Ethics, 9 Geo. J. Legal Ethics 1059, 10831092 (1996); see id., at 1088 ("[A] campaign promise [may be characterized as] a bribe offered to voters, paid with rulings consistent with that promise, in return for continued employ- ess Clause cases do not focus solely on bias against a particular party, but rather inquire more broadly into whether the surrounding circumstances and incentives compromise the judge's ability faithfully to discharge her assigned duties. See supra, at 815. To be sure, due process violations may arise where a judge has been so personally "enmeshed in matters" concerning one party that he is biased against him. See Johnson v. Mississippi, 403 U. S. 212 , 215 (1971) (per curiam) (judge had been "a defendant in one of petitioner's civil rights suits and a losing party at that"). They may also arise, however, not because of any predisposition toward a party, but rather because of the judge's personal interest in resolving an issue a certain way. See Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813 (1986). Due process will not countenance the latter situation, even though the self-interested judge "will apply the law to [the losing party] in the same way he [would apply] it to any other party" advancing the same position, ante, at 776. 817 ment as a judge."); see also The Federalist No. 79, p. 472 (C. Rossiter ed. 1961) ("In the general course of human nature, a power over a man's subsistence amounts to a power over his will." (emphasis deleted)). Given this grave danger to litigants from judicial campaign promises, States are justified in barring expression of such commitments, for they typify the "situatio[n] ... in which experience teaches that the probability of actual bias on the part of the judge ... is too high to be constitutionally tolerable." Withrow v. Larkin, 421 U. S. 35 , 47 (1975). By removing this source of "possible temptation" for a judge to rule on the basis of self-interest, Tumey, 273 U. S., at 532, the pledges or promises prohibition furthers the State's "compellin[g] interest in maintaining a judiciary fully capable of performing" its appointed task, Gregory v. Ashcroft, 501 U. S. 452, 472 (1991): "judging [each] particular controversy fairly on the basis of its own circumstances," United States v. Morgan, 313 U. S. 409 , 421 (1941). See O'Neil, 35 Ind. L. Rev., at 723 ("What is at stake here is no less than the promise of fairness, impartiality, and ultimately of due process for those whose lives and fortunes depend upon judges being selected by means that are not fully subject to the vagaries of American politics."). In addition to protecting litigants' due process rights, the parties in this case further agree, the pledges or promises clause advances another compelling state interest: preserving the public's confidence in the integrity and impartiality of its judiciary. See Tr. of Oral Arg. 16 (petitioners' statement that pledges or promises properly fosters "public perception of the impartiality of the judiciary"). See Cox v. Louisiana, 379 U. S. 559 , 565 (1965) ("A State may ... properly protect the judicial process from being misjudged in the minds of the public."); In re Murchison, 349 U. S., at 136 ("[T]o perform its high function in the best way[,] 'justice must satisfy the appearance of justice.'" (quoting Offutt v. United States, 348 U. S. 11 , 14 (1954))). Because courts con- 818 trol neither the purse nor the sword, their authority ultimately rests on public faith in those who don the robe. See Mistretta v. United States, 488 U. S. 361 , 407 (1989) ("The legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship."). As the Minnesota Supreme Court has recognized, all legal systems-regardless of their method of judicial selection-"can function only so long as the public, having confidence in the integrity of its judges, accepts and abides by judicial decisions." Complaint Concerning Winton, 350 N. W. 2d 337, 340 (1984). Prohibiting a judicial candidate from pledging or promising certain results if elected directly promotes the State's interest in preserving public faith in the bench. When a candidate makes such a promise during a campaign, the public will no doubt perceive that she is doing so in the hope of garnering votes. And the public will in turn likely conclude that when the candidate decides an issue in accord with that promise, she does so at least in part to discharge her undertaking to the voters in the previous election and to prevent voter abandonment in the next. The perception of that unseemly quid pro quo-a judicial candidate's promises on issues in return for the electorate's votes at the polls-inevitably diminishes the public's faith in the ability of judges to administer the law without regard to personal or political self-interest.4 Then-JusTICE REHNQUIST'S observations 4 The author of the Court's opinion declined on precisely these grounds to tell the Senate whether he would overrule a particular case: "Let us assume that I have people arguing before me to do it or not to do it. I think it is quite a thing to be arguing to somebody who you know has made a representation in the course of his confirmation hearings, and that is, by way of condition to his being confirmed, that he will do this or do that. I think I would be in a very bad position to adjudicate the case without being accused of having a less than impartial view of the matter." 13 R. Mersky & J. Jacobstein, The Supreme Court of the United States: Hearings and Reports on Successful and Unsuccessful Nominations of Supreme Court Justices by the Senate Judiciary Committee, 1916-1986, 819 about the federal system apply with equal if not greater force in the context of Minnesota's elective judiciary: Regarding the appearance of judicial integrity, "[one must] distinguish quite sharply between a public statement made prior to nomination for the bench, on the one hand, and a public statement made by a nominee to the bench. For the latter to express any but the most general observation about the law would suggest that, in order to obtain favorable consideration of his nomination, he deliberately was announcing in advance, without benefit of judicial oath, briefs, or argument, how he would decide a particular question that might come before him as a judge." Laird v. Tatum, 409 U. S. 824 , 836, n. 5 (1972) (memorandum opinion). B The constitutionality of the pledges or promises clause is thus amply supported; the provision not only advances due process of law for litigants in Minnesota courts, it also reinforces the authority of the Minnesota judiciary by promoting public confidence in the State's judges. The Announce Clause, however, is equally vital to achieving these compelling ends, for without it, the pledges or promises provision would be feeble, an arid form, a matter of no real importance. Uncoupled from the Announce Clause, the ban on pledges or promises is easily circumvented. By prefacing a campaign commitment with the caveat, "although I cannot promise anything," or by simply avoiding the language of promises or pledges altogether, a candidate could declare with impunity how she would decide specific issues. Semantic sanitizing of the candidate's commitment would not, however, diminish its pernicious effects on actual and perceived judicial impartiality. To use the Court's example, a candidate p. 131 (1989) (hearings before the Senate Judiciary Committee on the nomination of then-Judge Scalia). 820 who campaigns by saying, "If elected, I will vote to uphold the legislature's power to prohibit same-sex marriages," ante, at 780, will feel scarcely more pressure to honor that statement than the candidate who stands behind a podium and tells a throng of cheering supporters: "I think it is constitutional for the legislature to prohibit same-sex marriages," ante, at 779. Made during a campaign, both statements contemplate a quid pro quo between candidate and voter. Both effectively "bind [the candidate] to maintain that position after election." Ante, at 770. And both convey the impression of a candidate prejudging an issue to win votes. Contrary to the Court's assertion, the "nonpromissory" statement averts none of the dangers posed by the "promissory" one. See ante, at 780-781 (emphasis deleted). By targeting statements that do not technically constitute pledges or promises but nevertheless "publicly mak[e] known how [the candidate] would decide" legal issues, 247 F. 3d, at 881-882, the Announce Clause prevents this end run around the letter and spirit of its companion provision.5 No less than the pledges or promises clause itself, the Announce 5 In the absence of the Announce Clause, other components of the Minnesota Code of Judicial Conduct designed to maintain the nonpartisan character of the State's judicial elections would similarly unravel. A candidate would have no need to "attend political gatherings" or "make speeches on behalf of a political organization," Minn. Code of Judical Conduct, Canon 5(A)(1)(c), (d) (2002), for she could simply state her views elsewhere, counting on her supporters to carry those views to the party faithful. And although candidates would remain barred from "seek[ing], accept[ing,] or us[ing] endorsements from a political organization," Canon 5(A)(1)(d), parties might well provide such endorsements unsolicited upon hearing candidates' views on specific issues. Cf. ante, at 770 (Minnesota Republican Party sought to learn Wersal's views so party could support or oppose his candidacy). Those unsolicited endorsements, in turn, would render ineffective the prohibition against candidates "identify[ing] themselves as members of a political organization," Canon 5(A)(1)(a). "Indeed, it is not too much to say that the entire fabric of Minnesota's non[p]artisan elections hangs by the Announce clause thread." Brief for Minnesota State Bar Association as Amicus Curiae 20. 821 Clause is an indispensable part of Minnesota's effort to maintain the health of its judiciary, and is therefore constitutional for the same reasons. *** This Court has recognized in the past, as JUSTICE O'CONNOR does today, see ante, at 788-790 (concurring opinion), a "fundamental tension between the ideal character of the judicial office and the real world of electoral politics," Chisom, 501 U. S., at 400. We have no warrant to resolve that tension, however, by forcing States to choose one pole or the other. Judges are not politicians, and the First Amendment does not require that they be treated as politicians simply because they are chosen by popular vote. Nor does the First Amendment command States that wish to promote the integrity of their judges in fact and appearance to abandon systems of judicial selection that the people, in the exercise of their sovereign prerogatives, have devised. For more than three-quarters of a century, States like Minnesota have endeavored, through experiment tested by experience, to balance the constitutional interests in judicial integrity and free expression within the unique setting of an elected judiciary. P. McFadden, Electing Justice: The Law and Ethics of Judicial Election Campaigns 86 (1990); Brief for the Conference of Chief Justices as Amicus Curiae 5. The Announce Clause, borne of this long effort, "comes to this Court bearing a weighty title of respect," Teamsters v. Hanke, 339 U. S. 470 , 475 (1950). I would uphold it as an essential component in Minnesota's accommodation of the complex and competing concerns in this sensitive area. Accordingly, I would affirm the judgment of the Court of Appeals for the Eighth Circuit.

The Minnesota Supreme Court's canon of judicial conduct, which prohibits candidates from announcing their views on disputed legal or political issues, violates the First Amendment. The canon restricts speech based on content and burdens core political speech about candidate qualifications. While impartiality is an important judicial value, the canon is not narrowly tailored to achieve this goal as it restricts speech on specific issues rather than bias towards parties. The canon also fails to serve a compelling state interest as it is impossible to find judges without preconceived legal views, and judicial integrity can be maintained through other means such as recusal.

Free Speech

Snyder v. Phelps

https://supreme.justia.com/cases/federal/us/562/443/

OPINION OF THE COURT SNYDER V. PHELPS 562 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-751 ALBERT SNYDER, PETITIONER v. FRED W. PHELPS, SR., et al. on writ of certiorari to the united states court of appeals for the fourth circuit [March 2, 2011]    Chief Justice Roberts delivered the opinion of the Court.    A jury held members of the Westboro Baptist Church liable for millions of dollars in damages for picketing near a soldier’s funeral service. The picket signs reflected the church’s view that the United States is overly tolerant of sin and that God kills American soldiers as punishment. The question presented is whether the First Amendment shields the church members from tort liability for their speech in this case. I A    Fred Phelps founded the Westboro Baptist Church in Topeka, Kansas, in 1955. The church’s congregation believes that God hates and punishes the United States for its tolerance of homosexuality, particularly in America’s military. The church frequently communicates its views by picketing, often at military funerals. In the more than 20 years that the members of Westboro Baptist have publicized their message, they have picketed nearly 600 funerals. Brief for Rutherford Institute as Amicus Curiae 7, n. 14.    Marine Lance Corporal Matthew Snyder was killed in Iraq in the line of duty. Lance Corporal Snyder’s father selected the Catholic church in the Snyders’ hometown of Westminster, Maryland, as the site for his son’s funeral. Local newspapers provided notice of the time and location of the service.    Phelps became aware of Matthew Snyder’s funeral and decided to travel to Maryland with six other Westboro Baptist parishioners (two of his daughters and four of his grandchildren) to picket. On the day of the memorial service, the Westboro congregation members picketed on public land adjacent to public streets near the Maryland State House, the United States Naval Academy, and Matthew Snyder’s funeral. The Westboro picketers carried signs that were largely the same at all three locations. They stated, for instance: “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.”    The church had notified the authorities in advance of its intent to picket at the time of the funeral, and the picketers complied with police instructions in staging their demonstration. The picketing took place within a 10- by 25-foot plot of public land adjacent to a public street, behind a temporary fence. App. to Brief for Appellants in No. 08–1026 (CA4), pp. 2282–2285 (hereinafter App.). That plot was approximately 1,000 feet from the church where the funeral was held. Several buildings separated the picket site from the church. Id ., at 3758. The Westboro picketers displayed their signs for about 30 minutes before the funeral began and sang hymns and recited Bible verses. None of the picketers entered church property or went to the cemetery. They did not yell or use profanity, and there was no violence associated with the picketing. Id ., at 2168, 2371, 2286, 2293.    The funeral procession passed within 200 to 300 feet of the picket site. Although Snyder testified that he could see the tops of the picket signs as he drove to the funeral, he did not see what was written on the signs until later that night, while watching a news broadcast covering the event. Id. , at 2084–2086.[ Footnote 1 ] B    Snyder filed suit against Phelps, Phelps’s daughters, and the Westboro Baptist Church (collectively Westboro or the church) in the United States District Court for the District of Maryland under that court’s diversity jurisdiction. Snyder alleged five state tort law claims: defamation, publicity given to private life, intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. Westboro moved for summary judgment contending, in part, that the church’s speech was insulated from liability by the First Amendment. See 533 F. Supp. 2d 567, 570 (Md. 2008).    The District Court awarded Westboro summary judgment on Snyder’s claims for defamation and publicity given to private life, concluding that Snyder could not prove the necessary elements of those torts. Id., at 572–573. A trial was held on the remaining claims. At trial, Snyder described the severity of his emotional injuries. He testified that he is unable to separate the thought of his dead son from his thoughts of Westboro’s picketing, and that he often becomes tearful, angry, and physically ill when he thinks about it. Id., at 588–589. Expert witnesses testified that Snyder’s emotional anguish had resulted in severe depression and had exacerbated pre-existing health conditions.    A jury found for Snyder on the intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy claims, and held Westboro liable for $2.9 million in compensatory damages and $8 million in punitive damages. Westboro filed several post-trial motions, including a motion contending that the jury verdict was grossly excessive and a motion seeking judgment as a matter of law on all claims on First Amendment grounds. The District Court remitted the punitive damages award to $2.1 million, but left the jury verdict otherwise intact. Id., at 597.    In the Court of Appeals, Westboro’s primary argument was that the church was entitled to judgment as a matter of law because the First Amendment fully protected Westboro’s speech. The Court of Appeals agreed. 580 F. 3d 206, 221 (CA4 2009). The court reviewed the picket signs and concluded that Westboro’s statements were entitled to First Amendment protection because those statements were on matters of public concern, were not provably false, and were expressed solely through hyperbolic rhetoric. Id. , at 222–224.[ Footnote 2 ]    We granted certiorari. 559 U. S. ___ (2010). II    To succeed on a claim for intentional infliction of emotional distress in Maryland, a plaintiff must demonstrate that the defendant intentionally or recklessly engaged in extreme and outrageous conduct that caused the plaintiff to suffer severe emotional distress. See Harris v. Jones , 281 Md. 560, 565–566, 380 A. 2d 611, 614 (1977). The Free Speech Clause of the First Amendment—“Congress shall make no law … abridging the freedom of speech”—can serve as a defense in state tort suits, including suits for intentional infliction of emotional distress. See, e.g., Hustler Magazine, Inc. v. Falwell , 485 U. S. 46 , 50–51 (1988).[ Footnote 3 ]    Whether the First Amendment prohibits holding Westboro liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. “[S]peech on ‘matters of public concern’ … is ‘at the heart of the First Amendment’s protection.’ ” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. , 472 U. S. 749 , 758–759 (1985) (opinion of Powell, J.) (quoting First Nat. Bank of Boston v. Bellotti , 435 U. S. 765 , 776 (1978)). The First Amendment reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan , 376 U. S. 254 , 270 (1964). That is because “speech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana , 379 U. S. 64 , 74–75 (1964). Accordingly, “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” Connick v. Myers , 461 U. S. 138 , 145 (1983) (internal quotation marks omitted).    “ ‘[N]ot all speech is of equal First Amendment importance,’ ” however, and where matters of purely private significance are at issue, First Amendment protections are often less rigorous. Hustler , supra, at 56 (quoting Dun & Bradstreet , supra, at 758); see Connick , supra, at 145–147. That is because restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest: “[T]here is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas”; and the “threat of liability” does not pose the risk of “a reaction of self-censorship” on matters of public import. Dun & Bradstreet , supra, at 760 (internal quotation marks omitted).    We noted a short time ago, in considering whether public employee speech addressed a matter of public concern, that “the boundaries of the public concern test are not well defined.” San Diego v. Roe , 543 U. S. 77 , 83 (2004) ( per curiam ). Although that remains true today, we have articulated some guiding principles, principles that accord broad protection to speech to ensure that courts themselves do not become inadvertent censors.    Speech deals with matters of public concern when it can “be fairly considered as relating to any matter of politi- cal, social, or other concern to the community,” Connick , supra, at 146, or when it “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public,” San Diego , supra, at 83–84. See Cox Broadcasting Corp. v. Cohn , 420 U. S. 469 , 492–494 (1975); Time, Inc. v. Hill , 385 U. S. 374 , 387– 388 (1967). The arguably “inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.” Rankin v. McPherson , 483 U. S. 378 , 387 (1987).    Our opinion in Dun & Bradstreet , on the other hand, provides an example of speech of only private concern. In that case we held, as a general matter, that information about a particular individual’s credit report “concerns no public issue.” 472 U. S., at 762. The content of the report, we explained, “was speech solely in the individual interest of the speaker and its specific business audience.” Ibid. That was confirmed by the fact that the particular report was sent to only five subscribers to the reporting service, who were bound not to disseminate it further. Ibid. To cite another example, we concluded in San Diego v. Roe that, in the context of a government employer regulating the speech of its employees, videos of an employee engaging in sexually explicit acts did not address a public concern; the videos “did nothing to inform the public about any aspect of the [employing agency’s] functioning or operation.” 543 U. S., at 84.    Deciding whether speech is of public or private concern requires us to examine the “ ‘content, form, and context’ ” of that speech, “ ‘as revealed by the whole record.’ ” Dun & Bradstreet , supra, at 761 (quoting Connick , supra, at 147–148). As in other First Amendment cases, the court is obligated “to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ ” Bose Corp. v. Consumers Union of United States, Inc. , 466 U. S. 485 , 499 (1984) (quoting New York Times , supra, at 284–286). In considering content, form, and context, no factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said.    The “content” of Westboro’s signs plainly relates to broad issues of interest to society at large, rather than matters of “purely private concern.” Dun & Bradstreet , supra, at 759. The placards read “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Fag Troops,” “Semper Fi Fags,” “God Hates Fags,” “Maryland Taliban,” “Fags Doom Nations,” “Not Blessed Just Cursed,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “You’re Going to Hell,” and “God Hates You.” App. 3781–3787. While these messages may fall short of refined social or political commentary, the issues they highlight—the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import. The signs certainly convey Westboro’s position on those issues, in a manner designed, unlike the private speech in Dun & Bradstreet , to reach as broad a public audience as possible. And even if a few of the signs—such as “You’re Going to Hell” and “God Hates You”—were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro’s demonstration spoke to broader public issues.    Apart from the content of Westboro’s signs, Snyder contends that the “context” of the speech—its connection with his son’s funeral—makes the speech a matter of private rather than public concern. The fact that Westboro spoke in connection with a funeral, however, cannot by itself transform the nature of Westboro’s speech. Westboro’s signs, displayed on public land next to a public street, reflect the fact that the church finds much to condemn in modern society. Its speech is “fairly characterized as constituting speech on a matter of public concern,” Connick , 461 U. S., at 146, and the funeral setting does not alter that conclusion.    Snyder argues that the church members in fact mounted a personal attack on Snyder and his family, and then attempted to “immunize their conduct by claiming that they were actually protesting the United States’ tolerance of homosexuality or the supposed evils of the Catholic Church.” Reply Brief for Petitioner 10. We are not concerned in this case that Westboro’s speech on public matters was in any way contrived to insulate speech on a private matter from liability. Westboro had been actively engaged in speaking on the subjects addressed in its picketing long before it became aware of Matthew Snyder, and there can be no serious claim that Westboro’s picketing did not represent its “honestly believed” views on public issues. Garrison , 379 U. S., at 73. There was no pre-existing relationship or conflict between Westboro and Snyder that might suggest Westboro’s speech on public matters was intended to mask an attack on Snyder over a private matter. Contrast Connick , supra, at 153 (finding public employee speech a matter of private concern when it was “no coincidence that [the speech] followed upon the heels of [a] transfer notice” affecting the employee).    Snyder goes on to argue that Westboro’s speech should be afforded less than full First Amendment protection “not only because of the words” but also because the church members exploited the funeral “as a platform to bring their message to a broader audience.” Brief for Petitioner 44, 40. There is no doubt that Westboro chose to stage its picketing at the Naval Academy, the Maryland State House, and Matthew Snyder’s funeral to increase publicity for its views and because of the relation between those sites and its views—in the case of the military funeral, because Westboro believes that God is killing American soldiers as punishment for the Nation’s sinful policies.    Westboro’s choice to convey its views in conjunction with Matthew Snyder’s funeral made the expression of those views particularly hurtful to many, especially to Matthew’s father. The record makes clear that the applicable legal term—“emotional distress”—fails to capture fully the anguish Westboro’s choice added to Mr. Snyder’s already incalculable grief. But Westboro conducted its picketing peacefully on matters of public concern at a public place adjacent to a public street. Such space occupies a “special position in terms of First Amendment protection.” United States v. Grace , 461 U. S. 171 , 180 (1983). “[W]e have repeatedly referred to public streets as the archetype of a traditional public forum,” noting that “ ‘[t]ime out of mind’ public streets and sidewalks have been used for public assembly and debate.” Frisby v. Schultz , 487 U. S. 474 , 480 (1988).[ Footnote 4 ]    That said, “[e]ven protected speech is not equally permissible in all places and at all times.” Id., at 479 (quoting Cornelius v. NAACP Legal Defense & Ed. Fund, Inc. , 473 U. S. 788 , 799 (1985)). Westboro’s choice of where and when to conduct its picketing is not beyond the Government’s regulatory reach—it is “subject to reasonable time, place, or manner restrictions” that are consistent with the standards announced in this Court’s precedents. Clark v. Community for Creative Non-Violence , 468 U. S. 288 , 293 (1984). Maryland now has a law imposing restrictions on funeral picketing, Md. Crim. Law Code Ann. §10–205 (Lexis Supp. 2010), as do 43 other States and the Federal Government. See Brief for American Legion as Amicus Curiae 18–19, n. 2 (listing statutes). To the extent these laws are content neutral, they raise very different questions from the tort verdict at issue in this case. Maryland’s law, however, was not in effect at the time of the events at issue here, so we have no occasion to consider how it might apply to facts such as those before us, or whether it or other similar regulations are constitutional.[ Footnote 5 ]    We have identified a few limited situations where the location of targeted picketing can be regulated under provisions that the Court has determined to be content neutral. In Frisby , for example, we upheld a ban on such picketing “before or about” a particular residence, 487 U. S., at 477. In Madsen v. Women’s Health Center, Inc. , we approved an injunction requiring a buffer zone between protesters and an abortion clinic entrance. 512 U. S. 753 , 768 (1994). The facts here are obviously quite different, both with respect to the activity being regulated and the means of restricting those activities.    Simply put, the church members had the right to be where they were. Westboro alerted local authorities to its funeral protest and fully complied with police guidance on where the picketing could be staged. The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence.    The record confirms that any distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself. A group of parishioners standing at the very spot where Westboro stood, holding signs that said “God Bless America” and “God Loves You,” would not have been subjected to liability. It was what Westboro said that exposed it to tort damages.    Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson , 491 U. S. 397 , 414 (1989). Indeed, “the point of all speech protection … is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. , 515 U. S. 557 , 574 (1995).    The jury here was instructed that it could hold Westboro liable for intentional infliction of emotional distress based on a finding that Westboro’s picketing was “outrageous.” “Outrageousness,” however, is a highly malleable standard with “an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression.” Hustler , 485 U. S., at 55 (internal quotation marks omitted). In a case such as this, a jury is “unlikely to be neutral with respect to the content of [the] speech,” posing “a real danger of becoming an instrument for the suppression of … ‘vehement, caustic, and sometimes unpleasan[t]’ ” expression. Bose Corp. , 466 U. S., at 510 (quoting New York Times , 376 U. S., at 270). Such a risk is unacceptable; “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” Boos v. Barry , 485 U. S. 312 , 322 (1988) (some internal quotation marks omitted). What Westboro said, in the whole context of how and where it chose to say it, is entitled to “special protection” under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous.    For all these reasons, the jury verdict imposing tort liability on Westboro for intentional infliction of emotional distress must be set aside. III    The jury also found Westboro liable for the state law torts of intrusion upon seclusion and civil conspiracy. The Court of Appeals did not examine these torts independently of the intentional infliction of emotional distress tort. Instead, the Court of Appeals reversed the District Court wholesale, holding that the judgment wrongly “attache[d] tort liability to constitutionally protected speech.” 580 F. 3d, at 226.    Snyder argues that even assuming Westboro’s speech is entitled to First Amendment protection generally, the church is not immunized from liability for intrusion upon seclusion because Snyder was a member of a captive audience at his son’s funeral. Brief for Petitioner 45–46. We do not agree. In most circumstances, “the Constitution does not permit the government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer. Rather, … the burden normally falls upon the viewer to avoid further bombardment of [his] sensibilities simply by averting [his] eyes.” Erznoznik v. Jacksonville , 422 U. S. 205 , 210–211 (1975) (internal quotation marks omitted). As a result, “[t]he ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is … dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.” Cohen v. California , 403 U. S. 15 , 21 (1971).    As a general matter, we have applied the captive audience doctrine only sparingly to protect unwilling listeners from protected speech. For example, we have upheld a statute allowing a homeowner to restrict the delivery of offensive mail to his home, see Rowan v. Post Office Dept. , 397 U. S. 728 , 736–738 (1970), and an ordinance prohibiting picketing “before or about” any individual’s residence, Frisby , 487 U. S., at 484–485.    Here, Westboro stayed well away from the memorial service. Snyder could see no more than the tops of the signs when driving to the funeral. And there is no indication that the picketing in any way interfered with the funeral service itself. We decline to expand the captive audience doctrine to the circumstances presented here.    Because we find that the First Amendment bars Snyder from recovery for intentional infliction of emotional distress or intrusion upon seclusion—the alleged unlawful activity Westboro conspired to accomplish—we must likewise hold that Snyder cannot recover for civil conspiracy based on those torts. IV    Our holding today is narrow. We are required in First Amendment cases to carefully review the record, and the reach of our opinion here is limited by the particular facts before us. As we have noted, “the sensitivity and significance of the interests presented in clashes between First Amendment and [state law] rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case.” Florida Star v. B. J. F. , 491 U. S. 524 , 533 (1989).    Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its con-tribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.    Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.    The judgment of the United States Court of Appeals for the Fourth Circuit is affirmed. It is so ordered. Footnote 1 A few weeks after the funeral, one of the picketers posted a message on Westboro’s Web site discussing the picketing and containing religiously oriented denunciations of the Snyders, interspersed among lengthy Bible quotations. Snyder discovered the posting, referred to by the parties as the “epic,” during an Internet search for his son’s name. The epic is not properly before us and does not factor in our analysis. Although the epic was submitted to the jury and discussed in the courts below, Snyder never mentioned it in his petition for certiorari. See Pet. for Cert. i (“Snyder’s claim arose out of Phelps’ intentional acts at Snyder’s son’s funeral ” (emphasis added)); this Court’s Rule 14.1(g) (petition must contain statement “setting out the facts material to consideration of the question presented”). Nor did Snyder respond to the statement in the opposition to certiorari that “[t]hough the epic was asserted as a basis for the claims at trial, the petition … appears to be addressing only claims based on the picketing.” Brief in Opposition 9. Snyder devoted only one paragraph in the argument section of his opening merits brief to the epic. Given the foregoing and the fact that an Internet posting may raise distinct issues in this context, we decline to consider the epic in deciding this case. See Ontario v. Quon , 560 U. S. ___, ___ – ___ (2010) (slip op., at 10–12). Footnote 2 One judge concurred in the judgment on the ground that Snyder had failed to introduce sufficient evidence at trial to support a jury verdict on any of his tort claims. 580 F. 3d, at 227 (opinion of Shedd, J.). The Court of Appeals majority determined that the picketers had “voluntarily waived” any such contention on appeal. Id., at 216. Like the court below, we proceed on the unexamined premise that respondents’ speech was tortious. Footnote 3 The dissent attempts to draw parallels between this case and hy-pothetical cases involving defamation or fighting words. Post , at 10–11 (opinion of Alito, J.). But, as the court below noted, there is “no suggestion that the speech at issue falls within one of the categorical exclusions from First Amendment protection, such as those for obscenity or ‘fighting words.’ ” 580 F. 3d, at 218, n. 12; see United States v. Stevens , 559 U. S. ___ , ___ (2010) (slip op., at 5). Footnote 4 The dissent is wrong to suggest that the Court considers a public street “a free-fire zone in which otherwise actionable verbal attacks are shielded from liability.” Post , at 10–11. The fact that Westboro conducted its picketing adjacent to a public street does not insulate the speech from liability, but instead heightens concerns that what is at issue is an effort to communicate to the public the church’s views on matters of public concern. That is why our precedents so clearly recognize the special significance of this traditional public forum. Footnote 5 The Maryland law prohibits picketing within 100 feet of a funeral service or funeral procession; Westboro’s picketing would have complied with that restriction. BREYER, J., CONCURRING SNYDER V. PHELPS 562 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-751 ALBERT SNYDER, PETITIONER v. FRED W. PHELPS, Sr., et al. on writ of certiorari to the united states court of appeals for the fourth circuit [March 2, 2011]    Justice Breyer, concurring.    I agree with the Court and join its opinion. That opinion restricts its analysis here to the matter raised in the petition for certiorari, namely, Westboro’s picketing activity. The opinion does not examine in depth the effect of television broadcasting. Nor does it say anything about Internet postings. The Court holds that the First Amendment protects the picketing that occurred here, primarily because the picketing addressed matters of “public concern.”    While I agree with the Court’s conclusion that the picketing addressed matters of public concern, I do not believe that our First Amendment analysis can stop at that point. A State can sometimes regulate picketing, even picketing on matters of public concern. See Frisby v. Schultz , 487 U. S. 474 (1988). Moreover, suppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A’s use of unlawful, unprotected means. And in some circumstances the use of certain words as means would be similarly unprotected. See Chaplinsky v. New Hampshire , 315 U. S. 568 (1942) (“fighting words”).    The dissent recognizes that the means used here consist of speech. But it points out that the speech, like an assault, seriously harmed a private individual. Indeed, the state tort of “intentional infliction of emotional distress” forbids only conduct that produces distress “so severe that no reasonable man could be expected to endure it,” and which itself is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Post , at 2–3 (opinion of Alito, J.) (quoting Harris v. Jones , 281 Md. 560, 567, 571, 380 A. 2d 611, 614, 616 (1977); internal quotation marks omitted) . The dissent requires us to ask whether our holding unreasonably limits liability for intentional infliction of emotional distress—to the point where A (in order to draw attention to his views on a public matter) might launch a verbal assault upon B, a private person, publicly revealing the most intimate details of B’s private life, while knowing that the revelation will cause B severe emotional harm. Does our decision leave the State powerless to protect the individual against invasions of, e.g. , personal privacy, even in the most horrendous of such circumstances?    As I understand the Court’s opinion, it does not hold or imply that the State is always powerless to provide private individuals with necessary protection. Rather, the Court has reviewed the underlying facts in detail, as will sometimes prove necessary where First Amendment values and state-protected (say, privacy-related) interests seriously conflict. Cf. Florida Star v. B. J. F. , 491 U. S. 524 , 533 (1989); Bose Corp. v. Consumers Union of United States, Inc. , 466 U. S. 485 , 499 (1984). That review makes clear that Westboro’s means of communicating its views consisted of picketing in a place where picketing was lawful and in compliance with all police directions. The picketing could not be seen or heard from the funeral ceremony itself. And Snyder testified that he saw no more than the tops of the picketers’ signs as he drove to the funeral. To uphold the application of state law in these circumstances would punish Westboro for seeking to communicate its views on matters of public concern without proportionately advancing the State’s interest in protecting its citizens against severe emotional harm. Consequently, the First Amendment protects Westboro. As I read the Court’s opinion, it holds no more. ALITO, J., DISSENTING SNYDER V. PHELPS 562 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-751 ALBERT SNYDER, PETITIONER v. FRED W. PHELPS, Sr., et al. on writ of certiorari to the united states court of appeals for the fourth circuit [March 2, 2011]    Justice Alito, dissenting.    Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.    Petitioner Albert Snyder is not a public figure. He is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right. They first issued a press release and thus turned Matthew’s funeral into a tumultuous media event. They then appeared at the church, approached as closely as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury.[ Footnote 1 ] The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree. I    Respondents and other members of their church have strong opinions on certain moral, religious, and political issues, and the First Amendment ensures that they have almost limitless opportunities to express their views. They may write and distribute books, articles, and other texts; they may create and disseminate video and audio recordings; they may circulate petitions; they may speak to individuals and groups in public forums and in any private venue that wishes to accommodate them; they may picket peacefully in countless locations; they may appear on television and speak on the radio; they may post messages on the Internet and send out e-mails. And they may express their views in terms that are “uninhibited,” “vehement,” and “caustic.” New York Times Co. v. Sullivan , 376 U. S. 254 , 270 (1964).    It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate. To protect against such injury, “most if not all jurisdictions” permit recovery in tort for the intentional infliction of emotional distress (or IIED). Hustler Magazine , Inc. v. Falwell , 485 U. S. 46 , 53 (1988).    This is a very narrow tort with requirements that “are rigorous, and difficult to satisfy.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §12, p. 61 (5th ed. 1984). To recover, a plaintiff must show that the conduct at issue caused harm that was truly severe. See Figueiredo-Torres v. Nickel , 321 Md. 642, 653, 584 A. 2d 69, 75 (1991) (“[R]ecovery will be meted out sparingly, its balm reserved for those wounds that are truly severe and incapable of healing themselves” (internal quotation marks omitted)); Harris v. Jones , 281 Md. 560, 571, 380 A. 2d 611, 616 (1977) (the distress must be “ ‘so severe that no reasonable man could be expected to endure it’ ” (quoting Restatement (Second) of Torts §46, Comment j (1963–1964))).    A plaintiff must also establish that the defendant’s conduct was “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” Id. , at 567, 380 A. 2d, at 614 (quoting Restatement (Second) of Torts §46, Comment d ).    Although the elements of the IIED tort are difficult to meet, respondents long ago abandoned any effort to show that those tough standards were not satisfied here. On appeal, they chose not to contest the sufficiency of the evidence. See 580 F. 3d 206, 216 (CA4 2009). They did not dispute that Mr. Snyder suffered “ ‘wounds that are truly severe and incapable of healing themselves.’ ” Figueiredo-Torres , supra , at 653, 584 A. 2d, at 75. Nor did they dispute that their speech was “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” Harris , supra , at 567, 380 A. 2d, at 614. Instead, they maintained that the First Amendment gave them a license to engage in such conduct. They are wrong. II    It is well established that a claim for the intentional infliction of emotional distress can be satisfied by speech. Indeed, what has been described as “[t]he leading case” recognizing this tort involved speech. Prosser and Keeton, supra, §12, at 60 (citing Wilkinson v. Downton , [1897] 2 Q. B. 57); see also Restatement (Second) of Torts §46, illustration 1. And although this Court has not decided the question, I think it is clear that the First Amendment does not entirely preclude liability for the intentional infliction of emotional distress by means of speech.    This Court has recognized that words may “by their very utterance inflict injury” and that the First Amendment does not shield utterances that form “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky v. New Hampshire , 315 U. S. 568 , 572 (1942); see also Cantwell v. Connecticut , 310 U. S. 296 , 310 (1940) (“[P]ersonal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution”). When grave injury is intentionally inflicted by means of an attack like the one at issue here, the First Amendment should not interfere with recovery. III    In this case, respondents brutally attacked Matthew Snyder, and this attack, which was almost certain to inflict injury, was central to respondents’ well-practiced strategy for attracting public attention.    On the morning of Matthew Snyder’s funeral, respondents could have chosen to stage their protest at countless locations. They could have picketed the United States Capitol, the White House, the Supreme Court, the Pentagon, or any of the more than 5,600 military recruiting stations in this country. They could have returned to the Maryland State House or the United States Naval Academy, where they had been the day before. They could have selected any public road where pedestrians are allowed. (There are more than 4,000,000 miles of public roads in the United States.[ Footnote 2 ]) They could have staged their protest in a public park. (There are more than 20,000 public parks in this country.[ Footnote 3 ]) They could have chosen any Catholic church where no funeral was taking place. (There are nearly 19,000 Catholic churches in the United States.[ Footnote 4 ]) But of course, a small group picketing at any of these locations would have probably gone unnoticed.    The Westboro Baptist Church, however, has devised a strategy that remedies this problem. As the Court notes, church members have protested at nearly 600 military funerals. Ante , at 1. They have also picketed the funerals of police officers,[ Footnote 5 ] firefighters,[ Footnote 6 ] and the victims of natural disasters,[ Footnote 7 ] accidents,[ Footnote 8 ] and shocking crimes.[ Footnote 9 ] And in advance of these protests, they issue press releases to ensure that their protests will attract public attention.[ Footnote 10 ]       This strategy works because it is expected that respondents’ verbal assaults will wound the family and friends of the deceased and because the media is irresistibly drawn to the sight of persons who are visibly in grief. The more outrageous the funeral protest, the more publicity the Westboro Baptist Church is able to obtain. Thus, when the church recently announced its intention to picket the funeral of a 9-year-old girl killed in the shooting spree in Tucson—proclaiming that she was “better off dead”[ Footnote 11 ]—their announcement was national news,[ Footnote 12 ] and the church was able to obtain free air time on the radio in exchange for canceling its protest.[ Footnote 13 ] Similarly, in 2006, the church got air time on a talk radio show in exchange for canceling its threatened protest at the funeral of five Amish girls killed by a crazed gunman.[ Footnote 14 ]    In this case, respondents implemented the Westboro Baptist Church’s publicity-seeking strategy. Their press release stated that they were going “to picket the funeral of Lance Cpl. Matthew A. Snyder” because “God Almighty killed Lance Cpl. Snyder. He died in shame, not honor—for a fag nation cursed by God … . Now in Hell—sine die.” Supp. App. in No. 08–1026 (CA4), p. 158a. This announcement guaranteed that Matthew’s funeral would be transformed into a raucous media event and began the wounding process. It is well known that anticipation may heighten the effect of a painful event.    On the day of the funeral, respondents, true to their word, displayed placards that conveyed the message promised in their press release. Signs stating “God Hates You” and “Thank God for Dead Soldiers” reiterated the message that God had caused Matthew’s death in retribution for his sins. App. to Brief for Appellants in No. 08–1026 (CA4), pp. 3787, 3788 (hereinafter App.). Others, stating “You’re Going to Hell” and “Not Blessed Just Cursed,” conveyed the message that Matthew was “in Hell—sine die.” Id., at 3783.    Even if those who attended the funeral were not alerted in advance about respondents’ intentions, the meaning of these signs would not have been missed. Since respondents chose to stage their protest at Matthew Snyder’s funeral and not at any of the other countless available venues, a reasonable person would have assumed that there was a connection between the messages on the placards and the deceased. Moreover, since a church funeral is an event that naturally brings to mind thoughts about the afterlife, some of respondents’ signs— e.g ., “God Hates You,” “Not Blessed Just Cursed,” and “You’re Going to Hell”—would have likely been interpreted as referring to God’s judgment of the deceased.    Other signs would most naturally have been understood as suggesting—falsely—that Matthew was gay. Homosexuality was the theme of many of the signs. There were signs reading “God Hates Fags,” “Semper Fi Fags,” “Fags Doom Nations,” and “Fag Troops.” Id. , at 3781–3787. Another placard depicted two men engaging in anal intercourse. A reasonable bystander seeing those signs would have likely concluded that they were meant to suggest that the deceased was a homosexual.    After the funeral, the Westboro picketers reaffirmed the meaning of their protest. They posted an online account entitled “The Burden of Marine Lance Cpl. Matthew A. Snyder. The Visit of Westboro Baptist Church to Help the Inhabitants of Maryland Connect the Dots!” Id., at 3788.[ Footnote 15 ] Belying any suggestion that they had simply made general comments about homosexuality, the Catholic Church, and the United States military, the “epic” addressed the Snyder family directly:    “God blessed you, Mr. and Mrs. Snyder, with a resource and his name was Matthew. He was an arrow in your quiver! In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD—PERIOD! You did JUST THE OPPOSITE—you raised him for the devil. .     .     .     .     .    “Albert and Julie RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery. They taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity. Every dime they gave the Roman Catholic monster they condemned their own souls. They also, in supporting satanic Catholicism, taught Matthew to be an idolater. .     .     .     .     .    “Then after all that they sent him to fight for the United States of Sodom, a filthy country that is in lock step with his evil, wicked, and sinful manner of life, putting him in the cross hairs of a God that is so mad He has smoke coming from his nostrils and fire from his mouth! How dumb was that?” Id., at 3791.    In light of this evidence, it is abundantly clear that respondents, going far beyond commentary on matters of public concern, specifically attacked Matthew Snyder because (1) he was a Catholic and (2) he was a member of the United States military. Both Matthew and petitioner were private figures,[ Footnote 16 ] and this attack was not speech on a matter of public concern. While commentary on the Catholic Church or the United States military constitutes speech on matters of public concern, speech regarding Matthew Snyder’s purely private conduct does not.    Justice Breyer provides an apt analogy to a case in which the First Amendment would permit recovery in tort for a verbal attack: “[S]uppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A’s use of unlawful, unprotected means. And in some circumstances the use of certain words as means would be similarly unprotected.” Ante , at 1 (concurring opinion).    This captures what respondents did in this case. Indeed, this is the strategy that they have routinely employed—and that they will now continue to employ—inflicting severe and lasting emotional injury on an ever growing list of innocent victims. IV    The Court concludes that respondents’ speech was protected by the First Amendment for essentially three reasons, but none is sound.    First—and most important—the Court finds that “the overall thrust and dominant theme of [their] demonstration spoke to” broad public issues. Ante, at 8. As I have attempted to show, this portrayal is quite inaccurate; respondents’ attack on Matthew was of central importance. But in any event, I fail to see why actionable speech should be immunized simply because it is interspersed with speech that is protected. The First Amendment allows recovery for defamatory statements that are interspersed with nondefamatory statements on matters of public concern, and there is no good reason why respondents’ attack on Matthew Snyder and his family should be treated differently. Second, the Court suggests that respondents’ personal attack on Matthew Snyder is entitled to First Amendment protection because it was not motivated by a private grudge, see ante , at 9, but I see no basis for the strange distinction that the Court appears to draw. Respondents’ motivation—“to increase publicity for its views,” ibid. —did not transform their statements attacking the character of a private figure into statements that made a contribution to debate on matters of public concern. Nor did their publicity-seeking motivation soften the sting of their attack. And as far as culpability is concerned, one might well think that wounding statements uttered in the heat of a private feud are less, not more, blameworthy than similar statements made as part of a cold and calculated strategy to slash a stranger as a means of attracting public attention.    Third, the Court finds it significant that respondents’ protest occurred on a public street, but this fact alone should not be enough to preclude IIED liability. To be sure, statements made on a public street may be less likely to satisfy the elements of the IIED tort than statements made on private property, but there is no reason why a public street in close proximity to the scene of a funeral should be regarded as a free-fire zone in which otherwise actionable verbal attacks are shielded from liability. If the First Amendment permits the States to protect their residents from the harm inflicted by such attacks—and the Court does not hold otherwise—then the location of the tort should not be dispositive. A physical assault may occur without trespassing; it is no defense that the perpetrator had “the right to be where [he was].” See ante , at 11. And the same should be true with respect to unprotected speech. Neither classic “fighting words” nor defamatory statements are immunized when they occur in a public place, and there is no good reason to treat a verbal assault based on the conduct or character of a private figure like Matthew Snyder any differently.    One final comment about the opinion of the Court is in order. The Court suggests that the wounds inflicted by vicious verbal assaults at funerals will be prevented or at least mitigated in the future by new laws that restrict picketing within a specified distance of a funeral. See ante , at 10–11 . It is apparent, however, that the enactment of these laws is no substitute for the protection provided by the established IIED tort; according to the Court, the verbal attacks that severely wounded petitioner in this case complied with the new Maryland law regulating funeral picketing. See ante , at 11, n. 5. And there is absolutely nothing to suggest that Congress and the state legislatures, in enacting these laws, intended them to displace the protection provided by the well-established IIED tort.    The real significance of these new laws is not that they obviate the need for IIED protection. Rather, their enactment dramatically illustrates the fundamental point that funerals are unique events at which special protection against emotional assaults is in order. At funerals, the emotional well-being of bereaved relatives is particularly vulnerable. See National Archives and Records Admin. v. Favish , 541 U. S. 157 , 168 (2004). Exploitation of a funeral for the purpose of attracting public attention “intrud[es] upon their … grief,” ibid. , and may permanently stain their memories of the final moments before a loved one is laid to rest. Allowing family members to have a few hours of peace without harassment does not undermine public debate. I would therefore hold that, in this setting, the First Amendment permits a private figure to recover for the intentional infliction of emotional distress caused by speech on a matter of private concern. V    In reversing the District Court judgment in favor of petitioner, the Court of Appeals relied on several grounds not discussed in the opinion of this Court or in the separate opinion supporting affirmance. I now turn briefly to those issues.    First, the Court of Appeals held that the District Court erred by allowing the jury to decide whether respondents’ speech was “ ‘directed specifically at the Snyder family.’ ” 580 F. 3d, at 221. It is not clear whether the Court of Appeals thought that this was a question for the trial judge alone or a question on which the judge had to make a preliminary ruling before sending it to the jury. In either event, however, the submission of this question to the jury was not reversible error because, as explained above, it is clear that respondents’ statements targeted the Snyders.    Second, the Court of Appeals held that the trial judge went astray in allowing the jury to decide whether respondents’ speech was so “ ‘offensive and shocking as to not be entitled to First Amendment protection.’ ” Ibid. This instruction also did respondents no harm. Because their speech did not relate to a matter of public concern, it was not protected from liability by the First Amendment, and the only question for the jury was whether the elements of the IIED tort were met.    Third, the Court of Appeals appears to have concluded that the First Amendment does not permit an IIED plaintiff to recover for speech that cannot reasonably be interpreted as stating actual facts about an individual. See id., at 222. In reaching this conclusion, the Court of Appeals relied on two of our cases— Milkovich v. Lorain Journal Co ., 497 U. S. 1 (1990), and Hustler, 485 U. S. 46 —but neither supports the broad proposition that the Court of Appeals adopted. Milkovich was a defamation case, and falsity is an element of defamation. Nothing in Milkovich even hints that the First Amendment requires that this defamation element be engrafted onto the IIED tort. Hustler did involve an IIED claim, but the plaintiff there was a public figure, and the Court did not suggest that its holding would also apply in a case involving a private figure. Nor did the Court suggest that its holding applied across the board to all types of IIED claims. Instead, the holding was limited to “publications such as the one here at issue,” namely, a caricature in a magazine. 485 U. S., at 56. Unless a caricature of a public figure can reasonably be interpreted as stating facts that may be proved to be wrong, the caricature does not have the same potential to wound as a personal verbal assault on a vulnerable private figure.    Because I cannot agree either with the holding of this Court or the other grounds on which the Court of Appeals relied, I would reverse the decision below and remand for further proceedings.[ Footnote 17 ] VI    Respondents’ outrageous conduct caused petitioner great injury, and the Court now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he suffered.    In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner. I therefore respectfully dissent. Footnote 1 See 580 F. 3d 206, 213–214, 216 (CA4 2009). Footnote 2 See Dept. of Transp., Federal Highway Administration, Highway Statistics 2008, Table HM–12M, http://www.fhwa.dot.gov/policyinformation/ statistics/2008/hm12m.cfm (all Internet materials as visited Feb. 25, 2011, and available in Clerk of Court’s case file). Footnote 3 See Trust for Public Land, 2010 City Park Facts, http:// www.tpl.org/content_documents/CityParkFacts_2010.pdf. Footnote 4 See United States Conference of Catholic Bishops, Catholic Information Project, http://www.usccb.org/comm/cip.shtml#toc4. Footnote 5 See http://www.godhatesfags.com/fliers/20110124_St-Petersburg-FL- Dead-Police.pdf. Footnote 6 See http: //www.godhatesfags.com / fliers/20110120_Dead-Volunteer-Firefighter-Connecting_the_Dots-Baltimore-MD.pdf. Footnote 7 See http://www.godhatesfags.com/fliers/20110104_Newburg-and-Rolla-MO-Tornado-Connecting-the-Dots.pdf. Footnote 8 See http://www.godhatesfags.com/fliers/20101218_Wichita-KS-Two-Dead-Wichita-Bikers.pdf. Footnote 9 See http://www.godhatesfags.com/fliers/20110129_Tampa-FL-God-Sent-Military-Mom-Shooter-to-Kill-Kids.pdf. Footnote 10 See nn. 5–9, supra . Footnote 11 See http://www.godhatesfags.com/fliers/20110109_AZ-Shooter-Connecting-the-Dots-Day-2.pdf. Footnote 12 See, e.g., Stanglin, Anti-Gay Church Group Plans to Picket Tucson Funerals, USA Today, Jan. 10, 2011, http://content.usatoday.com/communities/ ondeadline / post / 2011/01/anti-gay-church-group-plans-to-picket-tucston- funerals/1; Mohanani, Group to Picket 9-Year-Old Tucson Victim’s Funeral, Palm Beach Post, Jan. 11, 2011, http://www.palmbeachpost.com/ news/nation/group-to-picket-9-year-old-tucson-victims-1177921.html; Mehta & Santa Cruz, Tucson Rallies to Protect Girl’s Family from Protesters, Los Angeles Times, Jan. 11, 2011, http://articles.latimes.com/ 2011/jan/11/nation/la-na-funeral-protest-20110112; Medrano, Funeral Protest: Arizona Rallies to Foil Westboro Baptist Church, Christian Science Monitor, Jan. 11, 2011, http://www.csmonitor.com/USA/2011/ 0111/Funeral-protest-Arizona-rallies-to-foil-Westboro-Baptist-Church. Footnote 13 See Santa Cruz & Mehta, Westboro Church Agrees Not to Take Protest to Shooting Victims’ Funerals, Los Angeles Times, Jan. 13, 2011, http://articles.latimes.com/2011/jan/13/nation/la-na-funeral-protest-20110113; http://www.godhatesfags.com/fliers/20110112_AZ-Shooter-Mike-Gallagher-Radio-Exchange.pdf. Footnote 14 See Steinberg, Air Time Instead of Funeral Protest, N. Y. Times, Oct. 6, 2006, p. A14. Footnote 15 The Court refuses to consider the epic because it was not discussed in Snyder’s petition for certiorari. Ante , at 3, n. 1. The epic, however, is not a distinct claim but a piece of evidence that the jury considered in imposing liability for the claims now before this Court. The protest and the epic are parts of a single course of conduct that the jury found to constitute intentional infliction of emotional distress. See 580 F. 3d, at 225 (“[T]he Epic cannot be divorced from the general context of the funeral protest”). The Court’s strange insistence that the epic “is not properly before us,” ante , at 3, n. 1, means that the Court has not actually made “an independent examination of the whole record,” ante , at 7 (internal quotation marks omitted). And the Court’s refusal to consider the epic contrasts sharply with its willingness to take notice of Westboro’s protest activities at other times and locations. See ante , at 9. Footnote 16 See 533 F. Supp. 2d 567, 577 (Md. 2008). Footnote 17 The Court affirms the decision of the Fourth Circuit with respect to petitioner’s claim of intrusion upon seclusion on a ground not addressed by the Fourth Circuit. I would not reach out to decide that issue but would instead leave it for the Fourth Circuit to decide on remand. I would likewise allow the Fourth Circuit on remand to decide whether the judgment on the claim of civil conspiracy can survive in light of the ultimate disposition of the IIED and intrusion upon seclusion claims.

In Snyder v. Phelps, the Supreme Court ruled that the First Amendment protected a church's right to engage in hate speech near a soldier's funeral, despite the hurtful and offensive nature of their picket signs. The court affirmed that free speech, even hateful speech, is a fundamental right in the United States.

Free Speech

Morse v. Frederick

https://supreme.justia.com/cases/federal/us/551/393/

OPINION OF THE COURT MORSE V. FREDERICK 551 U. S. ____ (2007) SUPREME COURT OF THE UNITED STATES NO. 06-278 DEBORAH MORSE, et al., PETITIONERS v. JOSEPH FREDERICK on writ of certiorari to the united states court of appeals for the ninth circuit [June 25, 2007]    Chief Justice Roberts delivered the opinion of the Court.    At a school-sanctioned and school-supervised event, a high school principal saw some of her students unfurl a large banner conveying a message she reasonably regarded as promoting illegal drug use. Consistent with established school policy prohibiting such messages at school events, the principal directed the students to take down the banner. One student—among those who had brought the banner to the event—refused to do so. The principal confiscated the banner and later suspended the student. The Ninth Circuit held that the principal’s actions violated the First Amendment, and that the student could sue the principal for damages.    Our cases make clear that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School Dist. , 393 U. S. 503 , 506 (1969). At the same time, we have held that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings,” Bethel School Dist. No. 403 v. Fraser , 478 U. S. 675 , 682 (1986), and that the rights of students “must be ‘applied in light of the special characteristics of the school environment.’ ” Hazelwood School Dist. v. Kuhlmeier , 484 U. S. 260 , 266 (1988) (quoting Tinker , supra, at 506). Consistent with these principles, we hold that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use. We conclude that the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending the student responsible for it. I    On January 24, 2002, the Olympic Torch Relay passed through Juneau, Alaska, on its way to the winter games in Salt Lake City, Utah. The torchbearers were to proceed along a street in front of Juneau-Douglas High School (JDHS) while school was in session. Petitioner Deborah Morse, the school principal, decided to permit staff and students to participate in the Torch Relay as an approved social event or class trip. App. 22–23. Students were allowed to leave class to observe the relay from either side of the street. Teachers and administrative officials monitored the students’ actions.    Respondent Joseph Frederick, a JDHS senior, was late to school that day. When he arrived, he joined his friends (all but one of whom were JDHS students) across the street from the school to watch the event. Not all the students waited patiently. Some became rambunctious, throwing plastic cola bottles and snowballs and scuffling with their classmates. As the torchbearers and camera crews passed by, Frederick and his friends unfurled a 14-foot banner bearing the phrase: “BONG HiTS 4 JESUS.” App. to Pet. for Cert. 70a. The large banner was easily readable by the students on the other side of the street.    Principal Morse immediately crossed the street and demanded that the banner be taken down. Everyone but Frederick complied. Morse confiscated the banner and told Frederick to report to her office, where she suspended him for 10 days. Morse later explained that she told Frederick to take the banner down because she thought it encouraged illegal drug use, in violation of established school policy. Juneau School Board Policy No. 5520 states: “The Board specifically prohibits any assembly or public expression that … advocates the use of substances that are illegal to minors … .” Id., at 53a. In addition, Juneau School Board Policy No. 5850 subjects “[p]upils who participate in approved social events and class trips” to the same student conduct rules that apply during the regular school program. Id., at 58a.    Frederick administratively appealed his suspension, but the Juneau School District Superintendent upheld it, limiting it to time served (8 days). In a memorandum setting forth his reasons, the superintendent determined that Frederick had displayed his banner “in the midst of his fellow students, during school hours, at a school-sanctioned activity.” Id., at 63a. He further explained that Frederick “was not disciplined because the principal of the school ‘disagreed’ with his message, but because his speech appeared to advocate the use of illegal drugs.” Id., at 61a.    The superintendent continued: “The common-sense understanding of the phrase ‘bong hits’ is that it is a reference to a means of smoking marijuana. Given [Frederick’s] inability or unwillingness to express any other credible meaning for the phrase, I can only agree with the principal and countless others who saw the banner as advocating the use of illegal drugs. [Frederick’s] speech was not political. He was not advocating the legalization of marijuana or promoting a religious belief. He was displaying a fairly silly message promoting illegal drug usage in the midst of a school activity, for the benefit of television cameras covering the Torch Relay. [Frederick’s] speech was potentially disruptive to the event and clearly disruptive of and inconsistent with the school’s educational mission to educate students about the dangers of illegal drugs and to discourage their use.” Id., at 61a–62a. Relying on our decision in Fraser , supra , the superintendent concluded that the principal’s actions were permissible because Frederick’s banner was “speech or action that intrudes upon the work of the schools.” App. to Pet. for Cert. 62a (internal quotation marks omitted). The Juneau School District Board of Education upheld the suspension.    Frederick then filed suit under 42 U. S. C. §1983, alleging that the school board and Morse had violated his First Amendment rights. He sought declaratory and injunctive relief, unspecified compensatory damages, punitive damages, and attorney’s fees. The District Court granted summary judgment for the school board and Morse, ruling that they were entitled to qualified immunity and that they had not infringed Frederick’s First Amendment rights. The court found that Morse reasonably interpreted the banner as promoting illegal drug use—a message that “directly contravened the Board’s policies relating to drug abuse prevention.” App. to Pet. for Cert. 36a–38a. Under the circumstances, the court held that “Morse had the authority, if not the obligation, to stop such messages at a school-sanctioned activity.” Id., at 37a.    The Ninth Circuit reversed. Deciding that Frederick acted during a “school-authorized activit[y],” and “proceed[ing] on the basis that the banner expressed a positive sentiment about marijuana use,” the court nonetheless found a violation of Frederick’s First Amendment rights because the school punished Frederick without demonstrating that his speech gave rise to a “risk of substantial disruption.” 439 F. 3d 1114, 1118, 1121–1123 (2006). The court further concluded that Frederick’s right to display his banner was so “clearly established” that a reasonable principal in Morse’s position would have understood that her actions were unconstitutional, and that Morse was therefore not entitled to qualified immunity. Id., at 1123–1125.    We granted certiorari on two questions: whether Frederick had a First Amendment right to wield his banner, and, if so, whether that right was so clearly established that the principal may be held liable for damages. 549 U. S. ___ (2006). We resolve the first question against Frederick, and therefore have no occasion to reach the second.[ Footnote 1 ] II    At the outset, we reject Frederick’s argument that this is not a school speech case—as has every other authority to address the question. See App. 22–23 (Principal Morse); App. to Pet. for Cert. 63a (superintendent); id., at 69a (school board); id., at 34a–35a (District Court); 439 F. 3d, at 1117 (Ninth Circuit). The event occurred during normal school hours. It was sanctioned by Principal Morse “as an approved social event or class trip,” App. 22–23, and the school district’s rules expressly provide that pupils in “approved social events and class trips are subject to district rules for student conduct.” App. to Pet. for Cert. 58a. Teachers and administrators were interspersed among the students and charged with supervising them. The high school band and cheerleaders performed. Frederick, standing among other JDHS students across the street from the school, directed his banner toward the school, making it plainly visible to most students. Under these circumstances, we agree with the superintendent that Frederick cannot “stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not at school.” Id., at 63a. There is some uncertainty at the outer boundaries as to when courts should apply school-speech precedents, see Porter v. Ascension Parish School Bd. , 393 F. 3d 608, 615, n. 22 (CA5 2004), but not on these facts. III    The message on Frederick’s banner is cryptic. It is no doubt offensive to some, perhaps amusing to others. To still others, it probably means nothing at all. Frederick himself claimed “that the words were just nonsense meant to attract television cameras.” 439 F. 3d, at 1117–1118. But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one.    As Morse later explained in a declaration, when she saw the sign, she thought that “the reference to a ‘bong hit’ would be widely understood by high school students and others as referring to smoking marijuana.” App. 24. She further believed that “display of the banner would be construed by students, District personnel, parents and others witnessing the display of the banner, as advocating or promoting illegal drug use”—in violation of school policy. Id., at 25; see ibid. (“I told Frederick and the other members of his group to put the banner down because I felt that it violated the [school] policy against displaying … material that advertises or promotes use of illegal drugs”).    We agree with Morse. At least two interpretations of the words on the banner demonstrate that the sign advocated the use of illegal drugs. First, the phrase could be interpreted as an imperative: “[Take] bong hits …”—a message equivalent, as Morse explained in her declaration, to “smoke marijuana” or “use an illegal drug.” Alternatively, the phrase could be viewed as celebrating drug use—“bong hits [are a good thing],” or “[we take] bong hits”—and we discern no meaningful distinction between celebrating illegal drug use in the midst of fellow students and outright advocacy or promotion. See Guiles v. Marineau , 461 F. 3d 320, 328 (CA2 2006) (discussing the present case and describing the sign as “a clearly pro-drug banner”).    The pro-drug interpretation of the banner gains further plausibility given the paucity of alternative meanings the banner might bear. The best Frederick can come up with is that the banner is “meaningless and funny.” 439 F. 3d, at 1116. The dissent similarly refers to the sign’s message as “curious,” post, at 1, “ambiguous,” ibid. , “nonsense,” post, at 2, “ridiculous,” post, at 6, “obscure,” post, at 7, “silly,” post, at 12, “quixotic,” post, at 13, and “stupid,” ibid. Gibberish is surely a possible interpretation of the words on the banner, but it is not the only one, and dismissing the banner as meaningless ignores its undeniable reference to illegal drugs.    The dissent mentions Frederick’s “credible and uncontradicted explanation for the message—he just wanted to get on television.” Post, at 12. But that is a description of Frederick’s motive for displaying the banner; it is not an interpretation of what the banner says. The way Frederick was going to fulfill his ambition of appearing on television was by unfurling a pro-drug banner at a school event, in the presence of teachers and fellow students.    Elsewhere in its opinion, the dissent emphasizes the importance of political speech and the need to foster “national debate about a serious issue,” post, at 16, as if to suggest that the banner is political speech. But not even Frederick argues that the banner conveys any sort of political or religious message. Contrary to the dissent’s suggestion, see post, at 14–16, this is plainly not a case about political debate over the criminalization of drug use or possession.     IV    The question thus becomes whether a principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. We hold that she may.    In Tinker , this Court made clear that “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students.” 393 U. S., at 506. Tinker involved a group of high school students who decided to wear black armbands to protest the Vietnam War. School officials learned of the plan and then adopted a policy prohibiting students from wearing armbands. When several students nonetheless wore armbands to school, they were suspended. Id., at 504. The students sued, claiming that their First Amendment rights had been violated, and this Court agreed. Tinker held that student expression may not be suppressed unless school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school.” Id., at 513. The essential facts of Tinker are quite stark, implicating concerns at the heart of the First Amendment. The students sought to engage in political speech, using the armbands to express their “disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them.” Id., at 514. Political speech, of course, is “at the core of what the First Amendment is designed to protect.” Virginia v. Black , 538 U. S. 343 , 365 (2003). The only interest the Court discerned underlying the school’s actions was the “mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint,” or “an urgent wish to avoid the controversy which might result from the expression.” Tinker , 393 U. S., at 509, 510. That interest was not enough to justify banning “a silent, passive expression of opinion, unaccompanied by any disorder or disturbance.” Id., at 508.    This Court’s next student speech case was Fraser , 478 U. S. 675 . Matthew Fraser was suspended for delivering a speech before a high school assembly in which he employed what this Court called “an elaborate, graphic, and explicit sexual metaphor.” Id., at 678. Analyzing the case under Tinker , the District Court and Court of Appeals found no disruption, and therefore no basis for disciplining Fraser. 478 U. S., at 679–680. This Court reversed, holding that the “School District acted entirely within its permissible authority in imposing sanctions upon Fraser in response to his offensively lewd and indecent speech.” Id., at 685.    The mode of analysis employed in Fraser is not entirely clear. The Court was plainly attuned to the content of Fraser’s speech, citing the “marked distinction between the political ‘message’ of the armbands in Tinker and the sexual content of [Fraser’s] speech.” Id., at 680. But the Court also reasoned that school boards have the authority to determine “what manner of speech in the classroom or in school assembly is inappropriate.” Id., at 683. Cf. id., at 689 (Brennan, J., concurring in judgment) (“In the present case, school officials sought only to ensure that a high school assembly proceed in an orderly manner. There is no suggestion that school officials attempted to regulate [Fraser’s] speech because they disagreed with the views he sought to express”).    We need not resolve this debate to decide this case. For present purposes, it is enough to distill from Fraser two basic principles. First, Fraser ’s holding demonstrates that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” Id., at 682. Had Fraser delivered the same speech in a public forum outside the school context, it would have been protected. See Cohen v. California , 403 U. S. 15 (1971); Fraser , supra, at 682–683. In school, however, Fraser’s First Amendment rights were circumscribed “in light of the special characteristics of the school environment.” Tinker , supra, at 506. Second, Fraser established that the mode of analysis set forth in Tinker is not absolute. Whatever approach Fraser employed, it certainly did not conduct the “substantial disruption” analysis prescribed by Tinker, supra, at 514. See Kuhlmeier , 484 U. S., at 271, n. 4 (disagreeing with the proposition that there is “no difference between the First Amendment analysis applied in Tinker and that applied in Fraser ,” and noting that the holding in Fraser was not based on any showing of substantial disruption).    Our most recent student speech case, Kuhlmeier , concerned “expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.” 484 U. S., at 271. Staff members of a high school newspaper sued their school when it chose not to publish two of their articles. The Court of Appeals analyzed the case under Tinker , ruling in favor of the students because it found no evidence of material disruption to classwork or school discipline. 795 F. 2d 1368, 1375 (CA8 1986). This Court reversed, holding that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Kuhlmeier, supra, at 273. Kuhlmeier does not control this case because no one would reasonably believe that Frederick’s banner bore the school’s imprimatur. The case is nevertheless instructive because it confirms both principles cited above. Kuhlmeier acknowledged that schools may regulate some speech “even though the government could not censor similar speech outside the school.” Id., at 266. And, like Fraser , it confirms that the rule of Tinker is not the only basis for restricting student speech.[ Footnote 2 ]    Drawing on the principles applied in our student speech cases, we have held in the Fourth Amendment context that “while children assuredly do not ‘shed their constitutional rights . . . at the schoolhouse gate,’ . . . the nature of those rights is what is appropriate for children in school.” Vernonia School Dist. 47J v. Acton , 515 U. S. 646 , 655–656 (1995) (quoting Tinker , supra, at 506). In particular, “the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily subject.” New Jersey v. T. L. O. , 469 U. S. 325 , 340 (1985). See Vernonia , supra, at 656 (“Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere . . .”); Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls , 536 U. S. 822 , 829-830 (2002) (“ ‘special needs’ inhere in the public school context”; “[w]hile schoolchildren do not shed their constitutional rights when they enter the schoolhouse, Fourth Amendment rights . . . are different in public schools than elsewhere; the ‘reasonableness’ inquiry cannot disregard the schools’ custodial and tutelary responsibility for children” (quoting Vernonia , 515 U. S., at 656; citation and some internal quotation marks omitted).    Even more to the point, these cases also recognize that deterring drug use by schoolchildren is an “important—indeed, perhaps compelling” interest. Id., at 661. Drug abuse can cause severe and permanent damage to the health and well-being of young people: “School years are the time when the physical, psychological, and addictive effects of drugs are most severe. Maturing nervous systems are more critically impaired by intoxicants than mature ones are; childhood losses in learning are lifelong and profound; children grow chemically dependent more quickly than adults, and their record of recovery is depressingly poor. And of course the effects of a drug-infested school are visited not just upon the users, but upon the entire student body and faculty, as the educational process is disrupted.” Id., at 661–662 (citations and internal quotation marks omitted). Just five years ago, we wrote: “The drug abuse problem among our Nation’s youth has hardly abated since Vernonia was decided in 1995. In fact, evidence suggests that it has only grown worse.” Earls , supra, at 834, and n. 5.    The problem remains serious today. See generally 1 National Institute on Drug Abuse, National Institutes of Health, Monitoring the Future: National Survey Results on Drug Use, 1975–2005, Secondary School Students (2006). About half of American 12th graders have used an illicit drug, as have more than a third of 10th graders and about one-fifth of 8th graders. Id., at 99. Nearly one in four 12th graders has used an illicit drug in the past month. Id., at 101. Some 25% of high schoolers say that they have been offered, sold, or given an illegal drug on school property within the past year. Dept. of Health and Human Services, Centers for Disease Control and Prevention, Youth Risk Behavior Surveillance—United States, 2005, 55 Morbidity and Mortality Weekly Report, Surveillance Summaries, No. SS–5, p. 19 (June 9, 2006).    Congress has declared that part of a school’s job is educating students about the dangers of illegal drug use. It has provided billions of dollars to support state and local drug-prevention programs, Brief for United States as Amicus Curiae 1, and required that schools receiving federal funds under the Safe and Drug-Free Schools and Communities Act of 1994 certify that their drug prevention programs “convey a clear and consistent message that … the illegal use of drugs [is] wrong and harmful.” 20 U. S. C. §7114(d)(6) (2000 ed., Supp. IV).    Thousands of school boards throughout the country—including JDHS—have adopted policies aimed at effectuating this message. See Pet. for Cert. 17–21. Those school boards know that peer pressure is perhaps “the single most important factor leading schoolchildren to take drugs,” and that students are more likely to use drugs when the norms in school appear to tolerate such behavior. Earls , supra, at 840 (Breyer, J., concurring). Student speech celebrating illegal drug use at a school event, in the presence of school administrators and teachers, thus poses a particular challenge for school officials working to protect those entrusted to their care from the dangers of drug abuse.    The “special characteristics of the school environment,” Tinker , 393 U. S., at 506, and the governmental interest in stopping student drug abuse—reflected in the policies of Congress and myriad school boards, including JDHS—allow schools to restrict student expression that they reasonably regard as promoting illegal drug use. Tinker warned that schools may not prohibit student speech because of “undifferentiated fear or apprehension of disturbance” or “a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Id., at 508, 509. The danger here is far more serious and palpable. The particular concern to prevent student drug abuse at issue here, embodied in established school policy, App. 92–95; App. to Pet. for Cert. 53a, extends well beyond an abstract desire to avoid controversy.    Petitioners urge us to adopt the broader rule that Frederick’s speech is proscribable because it is plainly “offensive” as that term is used in Fraser . See Reply Brief for Petitioners 14–15. We think this stretches Fraser too far; that case should not be read to encompass any speech that could fit under some definition of “offensive.” After all, much political and religious speech might be perceived as offensive to some. The concern here is not that Frederick’s speech was offensive, but that it was reasonably viewed as promoting illegal drug use.    Although accusing this decision of doing “serious violence to the First Amendment” by authorizing “viewpoint discrimination,” post, at 2, 5 (opinion of Stevens, J.), the dissent concludes that “it might well be appropriate to tolerate some targeted viewpoint discrimination in this unique setting,” post, at 6–7. Nor do we understand the dissent to take the position that schools are required to tolerate student advocacy of illegal drug use at school events, even if that advocacy falls short of inviting “imminent” lawless action. See post, at 7 (“[I]t is possible that our rigid imminence requirement ought to be relaxed at schools”). And even the dissent recognizes that the issues here are close enough that the principal should not be held liable in damages, but should instead enjoy qualified immunity for her actions. See post, at 1. Stripped of rhetorical flourishes, then, the debate between the dissent and this opinion is less about constitutional first principles than about whether Frederick’s banner constitutes promotion of illegal drug use. We have explained our view that it does. The dissent’s contrary view on that relatively narrow question hardly justifies sounding the First Amendment bugle. *  *  *    School principals have a difficult job, and a vitally important one. When Frederick suddenly and unexpectedly unfurled his banner, Morse had to decide to act—or not act—on the spot. It was reasonable for her to conclude that the banner promoted illegal drug use—in violation of established school policy—and that failing to act would send a powerful message to the students in her charge, including Frederick, about how serious the school was about the dangers of illegal drug use. The First Amendment does not require schools to tolerate at school events student expression that contributes to those dangers.    The judgment of the United States Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Justice Breyer would rest decision on qualified immunity without reaching the underlying First Amendment question. The problem with this approach is the rather significant one that it is inadequate to decide the case before us. Qualified immunity shields public officials from money damages only. See Wood v. Strickland , 420 U. S. 308 , 314, n. 6 (1975). In this case, Frederick asked not just for damages, but also for declaratory and injunctive relief. App. 13. Justice Breyer’s proposed decision on qualified immunity grounds would dispose of the damages claims, but Frederick’s other claims would remain unaddressed. To get around that problem, Justice Breyer hypothesizes that Frederick’s suspension—the target of his request for injunctive relief—“may well be justified on non-speech-related grounds.” See post, at 9. That hypothesis was never considered by the courts below, never raised by any of the parties, and is belied by the record, which nowhere suggests that the suspension would have been justified solely on non-speech-related grounds. Footnote 2 The dissent’s effort to find inconsistency between our approach here and the opinion in Federal Election Commission v. Wisconsin Right to Life, Inc. , 551 U. S. ___ (2007), see post, at 12 (opinion of Stevens, J.), overlooks what was made clear in Tinker , Fraser , and Kuhlmeier : student First Amendment rights are “applied in light of the special characteristics of the school environment.” Tinker , 393 U. S., at 506. See Fraser , 478 U. S., at 682; Kuhlmeier , 484 U. S., at 266. And, as discussed above, supra, at 8, there is no serious argument that Frederick’s banner is political speech of the sort at issue in Wisconsin Right to Life . ALITO, J., CONCURRING MORSE V. FREDERICK 551 U. S. ____ (2007) SUPREME COURT OF THE UNITED STATES NO. 06-278 DEBORAH MORSE, et al., PETITIONERS v. JOSEPH FREDERICK on writ of certiorari to the united states court of appeals for the ninth circuit [June 25, 2007]    Justice Alito, with whom Justice Kennedy joins, concurring.    I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.” See post , at 13 (Stevens, J., dissenting).    The opinion of the Court correctly reaffirms the recognition in Tinker v. Des Moines Independent Community School Dist. , 393 U. S. 503 , 506 (1969), of the fundamental principle that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The Court is also correct in noting that Tinker, which permits the regulation of student speech that threatens a concrete and “substantial disruption , ” id. , at 514, does not set out the only ground on which in-school student speech may be regulated by state actors in a way that would not be constitutional in other settings. But I do not read the opinion to mean that there are necessarily any grounds for such regulation that are not already recognized in the holdings of this Court. In addition to Tinker , the decision in the present case allows the restriction of speech advocating illegal drug use; Bethel School Dist. No. 403 v. Fraser , 478 U. S. 675 (1986), permits the regulation of speech that is delivered in a lewd or vulgar manner as part of a middle school program; and Hazelwood School Dist. v. Kuhlmeier , 484 U. S. 260 (1988), allows a school to regulate what is in essence the school’s own speech, that is, articles that appear in a publication that is an official school organ. I join the opinion of the Court on the understanding that the opinion does not hold that the special characteristics of the public schools necessarily justify any other speech restrictions.    The opinion of the Court does not endorse the broad argument advanced by petitioners and the United States that the First Amendment permits public school officials to censor any student speech that interferes with a school’s “educational mission.” See Brief for Petitioners 21; Brief for United States as Amicus Curiae 6. This argument can easily be manipulated in dangerous ways, and I would reject it before such abuse occurs. The “educational mission” of the public schools is defined by the elected and appointed public officials with authority over the schools and by the school administrators and faculty. As a result, some public schools have defined their educational missions as including the inculcation of whatever political and social views are held by the members of these groups.    During the Tinker era, a public school could have defined its educational mission to include solidarity with our soldiers and their families and thus could have attempted to outlaw the wearing of black armbands on the ground that they undermined this mission. Alternatively, a school could have defined its educational mission to include the promotion of world peace and could have sought to ban the wearing of buttons expressing support for the troops on the ground that the buttons signified approval of war. The “educational mission” argument would give public school authorities a license to suppress speech on political and social issues based on disagreement with the viewpoint expressed. The argument, therefore, strikes at the very heart of the First Amendment.    The public schools are invaluable and beneficent institutions, but they are, after all, organs of the State. When public school authorities regulate student speech, they act as agents of the State; they do not stand in the shoes of the students’ parents. It is a dangerous fiction to pretend that parents simply delegate their authority—including their authority to determine what their children may say and hear—to public school authorities. It is even more dangerous to assume that such a delegation of authority somehow strips public school authorities of their status as agents of the State. Most parents, realistically, have no choice but to send their children to a public school and little ability to influence what occurs in the school. It is therefore wrong to treat public school officials, for purposes relevant to the First Amendment, as if they were private, nongovernmental actors standing in loco parentis .    For these reasons, any argument for altering the usual free speech rules in the public schools cannot rest on a theory of delegation but must instead be based on some special characteristic of the school setting. The special characteristic that is relevant in this case is the threat to the physical safety of students. School attendance can expose students to threats to their physical safety that they would not otherwise face. Outside of school, parents can attempt to protect their children in many ways and may take steps to monitor and exercise control over the persons with whom their children associate. Similarly, students, when not in school, may be able to avoid threatening individuals and situations. During school hours, however, parents are not present to provide protection and guidance, and students’ movements and their ability to choose the persons with whom they spend time are severely restricted. Students may be compelled on a daily basis to spend time at close quarters with other students who may do them harm. Experience shows that schools can be places of special danger.    In most settings, the First Amendment strongly limits the government’s ability to suppress speech on the ground that it presents a threat of violence. See Brandenburg v. Ohio , 395 U. S. 444 (1969) (per curiam) . But due to the special features of the school environment, school officials must have greater authority to intervene before speech leads to violence. And, in most cases, Tinker ’s “substantial disruption” standard permits school officials to step in before actual violence erupts. See 393 U. S., at 508–509.    Speech advocating illegal drug use poses a threat to student safety that is just as serious, if not always as immediately obvious. As we have recognized in the past and as the opinion of the Court today details, illegal drug use presents a grave and in many ways unique threat to the physical safety of students. I therefore conclude that the public schools may ban speech advocating illegal drug use. But I regard such regulation as standing at the far reaches of what the First Amendment permits. I join the opinion of the Court with the understanding that the opinion does not endorse any further extension. THOMAS, J., CONCURRING MORSE V. FREDERICK 551 U. S. ____ (2007) SUPREME COURT OF THE UNITED STATES NO. 06-278 DEBORAH MORSE, et al., PETITIONERS v. JOSEPH FREDERICK on writ of certiorari to the united states court of appeals for the ninth circuit [June 25, 2007]    Justice Thomas, concurring.    The Court today decides that a public school may prohibit speech advocating illegal drug use. I agree and therefore join its opinion in full. I write separately to state my view that the standard set forth in Tinker v. Des Moines Independent Community School Dist. , 393 U. S. 503 (1969), is without basis in the Constitution. I    The First Amendment states that “Congress shall make no law … abridging the freedom of speech.” As this Court has previously observed, the First Amendment was not originally understood to permit all sorts of speech; instead, “[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire , 315 U. S. 568 , 571–572 (1942); see also Cox v. Louisiana , 379 U. S. 536 , 554 (1965). In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools. Although colonial schools were exclusively private, public education proliferated in the early 1800’s. By the time the States ratified the Fourteenth Amendment, public schools had become relatively common. W. Reese, America’s Public Schools: From the Common School to “No Child Left Behind” 11–12 (2005) (hereinafter Reese). If students in public schools were originally understood as having free-speech rights, one would have expected 19th-century public schools to have respected those rights and courts to have enforced them.[ Footnote 1 ] They did not. A    During the colonial era, private schools and tutors offered the only educational opportunities for children, and teachers managed classrooms with an iron hand. R. Butts & L. Cremin, A History of Education in American Culture 121, 123 (1953) (hereinafter Butts). Public schooling arose, in part, as a way to educate those too poor to afford private schools. See Kaestle & Vinovskis, From Apron Strings to ABCs: Parents, Children, and Schooling in Nineteenth-Century Massachusetts, 84 Am. J. Sociology S39, S49 (Supp. 1978). Because public schools were initially created as substitutes for private schools, when States developed public education systems in the early 1800’s, no one doubted the government’s ability to educate and discipline children as private schools did. Like their private counterparts, early public schools were not places for freewheeling debates or exploration of competing ideas. Rather, teachers instilled “a core of common values” in students and taught them self-control. Reese 23; A. Potter & G. Emerson, The School and the Schoolmaster: A Manual 125 (1843) (“By its discipline it contributes, insensibly, to generate a spirit of subordination to lawful authority, a power of self-control, and a habit of postponing present indulgence to a greater future good …”); D. Parkerson & J. Parkerson, The Emergence of the Common School in the U. S. Countryside 6 (1998) (hereinafter Parkerson) (noting that early education activists, such as Benjamin Rush, believed public schools “help[ed] control the innate selfishness of the individual”). Teachers instilled these values not only by presenting ideas but also through strict discipline. Butts 274–275. Schools punished students for behavior the school considered disrespectful or wrong. Parkerson 65 (noting that children were punished for idleness, talking, profanity, and slovenliness). Rules of etiquette were enforced, and courteous behavior was demanded. Reese 40. To meet their educational objectives, schools required absolute obedience. C. Northend, The Teacher’s Assistant or Hints and Methods in School Discipline and Instruction 44, 52 (1865) (“I consider a school judiciously governed, where order prevails; where the strictest sense of propriety is manifested by the pupils towards the teacher, and towards each other . . .” (internal quotation marks omitted)).[ Footnote 2 ] In short, in the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order. B Through the legal doctrine of in loco parentis , courts upheld the right of schools to discipline students, to enforce rules, and to maintain order.[ Footnote 3 ] Rooted in the English common law, in loco parentis originally governed the legal rights and obligations of tutors and private schools. 1 W. Blackstone, Commentaries on the Laws of England 441 (1765) (“[A parent] may also delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child; who is then in loco parentis , and has such a portion of the power of the parent committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed”). Chancellor James Kent noted the acceptance of the doctrine as part of American law in the early 19th century. 2 J. Kent, Commentaries on American Law *205, *206–*207 (“So the power allowed by law to the parent over the person of the child may be delegated to a tutor or instructor, the better to accomplish the purpose of education”).    As early as 1837, state courts applied the in loco parentis principle to public schools: “One of the most sacred duties of parents, is to train up and qualify their children, for becoming useful and virtuous members of society; this duty cannot be effectually performed without the ability to command obedience, to control stubbornness, to quicken diligence, and to reform bad habits … . The teacher is the substitute of the parent; … and in the exercise of these delegated duties, is invested with his power.” State v. Pendergrass , 19 N. C. 365, 365–366, (1837). Applying in loco parentis , the judiciary was reluctant to interfere in the routine business of school administration, allowing schools and teachers to set and enforce rules and to maintain order. Sheehan v. Sturges, 53 Conn. 481, 483–484, 2 A. 841, 842 (1885). Thus, in the early years of public schooling, schools and teachers had considerable discretion in disciplinary matters: “To accomplish th[e] desirable ends [of teaching self-restraint, obedience, and other civic virtues], the master of a school is necessarily invested with much discretionary power… . He must govern these pupils, quicken the slothful, spur the indolent, restrain the impetuous, and control the stubborn. He must make rules, give commands, and punish disobedience. What rules, what commands, and what punishments shall be imposed, are necessarily largely within the discretion of the master, where none are defined by the school board.” Patterson v. Nutter , 78 Me. 509, 511, 7 A. 273, 274 (1886).[ Footnote 4 ]    A review of the case law shows that in loco parentis allowed schools to regulate student speech as well. Courts routinely preserved the rights of teachers to punish speech that the school or teacher thought was contrary to the interests of the school and its educational goals. For example, the Vermont Supreme Court upheld the corporal punishment of a student who called his teacher “Old Jack Seaver” in front of other students. Lander v. Seaver , 32 Vt. 114, 115 (1859). The court explained its decision as follows: “[L]anguage used to other scholars to stir up disorder and subordination, or to heap odium and disgrace upon the master; writings and pictures placed so as to suggest evil and corrupt language, images and thoughts to the youth who must frequent the school; all such or similar acts tend directly to impair the usefulness of the school, the welfare of the scholars and the authority of the master. By common consent and by the universal custom in our New England schools, the master has always been deemed to have the right to punish such offences. Such power is essential to the preservation of order, decency, decorum and good government in schools.” Id. , at 121.    Similarly, the California Court of Appeal upheld the expulsion of a student who gave a speech before the student body that criticized the administration for having an unsafe building “because of the possibility of fire.” Wooster v. Sunderland , 27 Cal. App. 51, 52, 148 P. 959, (1915). The punishment was appropriate, the court stated, because the speech “was intended to discredit and humiliate the board in the eyes of the students, and tended to impair the discipline of the school.” Id. , at 55, 148 P., at 960. Likewise, the Missouri Supreme Court explained that a “rule which forbade the use of profane language [and] quarrelling” “was not only reasonable, but necessary to the orderly conduct of the school.” Deskins v. Gose , 85 Mo. 485, 487, 488 (1885). And the Indiana Supreme Court upheld the punishment of a student who made distracting demonstrations in class for “a breach of good deportment.” Vanvactor v. State , 113 Ind. 276, 281, 15 N. E. 341, 343 (1888).[ Footnote 5 ]    The doctrine of in loco parentis limited the ability of schools to set rules and control their classrooms in almost no way. It merely limited the imposition of excessive physical punishment. In this area, the case law was split. One line of cases specified that punishment was wholly discretionary as long as the teacher did not act with legal malice or cause permanent injury. E.g., Boyd v. State , 88 Ala. 169, 170–172, 7 So. 268, 269 (1890) (allowing liability where the “punishment inflicted is immoderate or excessive, and … it was induced by legal malice, or wickedness of motive”). Another line allowed courts to intervene where the corporal punishment was “ clearly excessive.” E.g., Lander, supra , at 124. Under both lines of cases, courts struck down only punishments that were excessively harsh; they almost never questioned the substantive restrictions on student conduct set by teachers and schools. E.g., Sheehan , supra , at 483–484, 2 A., at 842; Gardner v. State , 4 Ind. 632, 635 (1853); Anderson v. State , 40 Tenn. 455, 456 (1859); Hardy v. James , 5 Ky. Op. 36 (1872).[ Footnote 6 ] II Tinker effected a sea change in students’ speech rights, extending them well beyond traditional bounds. The case arose when a school punished several students for wearing black armbands to school to protest the Vietnam War. Tinker , 393 U. S., at 504. Determining that the punishment infringed the students’ First Amendment rights, this Court created a new standard for students’ freedom of speech in public schools: “[W]here there is no finding and no showing that engaging in the forbidden conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school, the prohibition cannot be sustained.” Id., at 509 (internal quotation marks omitted). Accordingly, unless a student’s speech would disrupt the educational process, students had a fundamental right to speak their minds (or wear their armbands)—even on matters the school disagreed with or found objectionable. Ibid. (“[The school] must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint”).    Justice Black dissented, criticizing the Court for “subject[ing] all the public schools in the country to the whims and caprices of their loudest-mouthed, but maybe not their brightest, students.” Id. , at 525. He emphasized the instructive purpose of schools: “[T]axpayers send children to school on the premise that at their age they need to learn, not teach.” Id. , at 522. In his view, the Court’s decision “surrender[ed] control of the American public school system to public school students.” Id. , at 526.    Of course, Tinker ’s reasoning conflicted with the traditional understanding of the judiciary’s role in relation to public schooling, a role limited by in loco parentis . Perhaps for that reason, the Court has since scaled back Tinker ’s standard, or rather set the standard aside on an ad hoc basis. In Bethel School Dist. No. 403 v. Fraser , 478 U. S. 675 , 677, 678 (1986), a public school suspended a student for delivering a speech that contained “an elaborate, graphic, and explicit sexual metaphor.” The Court of Appeals found that the speech caused no disruption under the Tinker standard, and this Court did not question that holding. 478 U. S., at 679–680. The Court nonetheless permitted the school to punish the student because of the objectionable content of his speech. Id. , at 685 (“A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students”). Signaling at least a partial break with Tinker , Fraser left the regulation of indecent student speech to local schools.[ Footnote 7 ] 478 U. S., at 683.    Similarly, in Hazelwood School Dist. v. Kuhlmeier , 484 U. S. 260 (1988), the Court made an exception to Tinker for school-sponsored activities. The Court characterized newspapers and similar school-sponsored activities “as part of the school curriculum” and held that “[e]ducators are entitled to exercise greater control over” these forms of student expression. 484 U. S., at 271. Accordingly, the Court expressly refused to apply Tinker ’s standard. 484 U. S., at 272–273. Instead, for school-sponsored activities, the Court created a new standard that permitted school regulations of student speech that are “reasonably related to legitimate pedagogical concerns.” Id. , at 273.    Today, the Court creates another exception. In doing so, we continue to distance ourselves from Tinker , but we neither overrule it nor offer an explanation of when it operates and when it does not. Ante , at 10–14. I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don’t—a standard continuously developed through litigation against local schools and their administrators. In my view, petitioners could prevail for a much simpler reason: As originally understood, the Constitution does not afford students a right to free speech in public schools. III    In light of the history of American public education, it cannot seriously be suggested that the First Amendment “freedom of speech” encompasses a student’s right to speak in public schools. Early public schools gave total control to teachers, who expected obedience and respect from students. And courts routinely deferred to schools’ authority to make rules and to discipline students for violating those rules. Several points are clear: (1) under in loco parentis , speech rules and other school rules were treated identically; (2) the in loco parentis doctrine imposed almost no limits on the types of rules that a school could set while students were in school; and (3) schools and teachers had tremendous discretion in imposing punishments for violations of those rules.    It might be suggested that the early school speech cases dealt only with slurs and profanity. But that criticism does not withstand scrutiny. First, state courts repeatedly reasoned that schools had discretion to impose discipline to maintain order. The substance of the student’s speech or conduct played no part in the analysis. Second, some cases involved punishment for speech on weightier matters, for instance a speech criticizing school administrators for creating a fire hazard. See Wooster , 27 Cal. App., at 52–53, 148 P., at 959. Yet courts refused to find an exception to in loco parentis even for this advocacy of public safety.    To be sure, our educational system faces administrative and pedagogical challenges different from those faced by 19th-century schools. And the idea of treating children as though it were still the 19th century would find little support today. But I see no constitutional imperative requiring public schools to allow all student speech. Parents decide whether to send their children to public schools. Cf. Hamilton v. Regents of Univ. of Cal. , 293 U. S. 245 , 262 (1934) (“California has not drafted or called them to attend the university. They are seeking education offered by the State and at the same time insisting that they be excluded from the prescribed course …”); id. , at 266 (Cardozo, J., concurring). If parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move. Whatever rules apply to student speech in public schools, those rules can be challenged by parents in the political process.    In place of that democratic regime, Tinker substituted judicial oversight of the day-to-day affairs of public schools. The Tinker Court made little attempt to ground its holding in the history of education or in the original understanding of the First Amendment.[ Footnote 8 ] Instead, it imposed a new and malleable standard: Schools could not inhibit student speech unless it “substantially interfere[d] with the requirements of appropriate discipline in the operation of the school.” 393 U. S., at 509 (internal quotation marks omitted). Inherent in the application of that standard are judgment calls about what constitutes interference and what constitutes appropriate discipline. See id. , at 517–518 (Black, J., dissenting) (arguing that the armbands in fact caused a disruption). Historically, courts reasoned that only local school districts were entitled to make those calls. The Tinker Court usurped that traditional authority for the judiciary.    And because Tinker utterly ignored the history of public education, courts (including this one) routinely find it necessary to create ad hoc exceptions to its central premise. This doctrine of exceptions creates confusion without fixing the underlying problem by returning to first principles. Just as I cannot accept Tinker ’s standard, I cannot subscribe to Kuhlmeier ’s alternative. Local school boards, not the courts, should determine what pedagogical interests are “legitimate” and what rules “reasonably relat[e]” to those interests. 484 U. S., at 273.    Justice Black may not have been “a prophet or the son of a prophet,” but his dissent in Tinker has proved prophetic. 393 U. S., at 525. In the name of the First Amendment, Tinker has undermined the traditional authority of teachers to maintain order in public schools. “Once a society that generally respected the authority of teachers, deferred to their judgment, and trusted them to act in the best interest of school children, we now accept defiance, disrespect, and disorder as daily occurrences in many of our public schools.” Dupre, Should Students Have Constitutional Rights? Keeping Order in the Public Schools, 65 Geo. Wash. L. Rev. 49, 50 (1996). We need look no further than this case for an example: Frederick asserts a constitutional right to utter at a school event what is either “[g]ibberish,” ante , at 7, or an open call to use illegal drugs. To elevate such impertinence to the status of constitutional protection would be farcical and would indeed be to “surrender control of the American public school system to public school students.” Tinker , supra , at 526 (Black, J., dissenting). *  *  *    I join the Court’s opinion because it erodes Tinker ’s hold in the realm of student speech, even though it does so by adding to the patchwork of exceptions to the Tinker standard. I think the better approach is to dispense with Tinker altogether, and given the opportunity, I would do so. Footnote 1 Although the First Amendment did not apply to the States until at least the ratification of the Fourteenth Amendment, most state constitutions included free-speech guarantees during the period when public education expanded. E.g. , Cal. Const., Art. I, §9 (1849); Conn. Const., Art. I, §5 (1818); Ind. Const., Art. I, §9 (1816). Footnote 2 Even at the college level, strict obedience was required of students: “The English model fostered absolute institutional control of students by faculty both inside and outside the classroom. At all the early American schools, students lived and worked under a vast array of rules and restrictions. This one-sided relationship between the student and the college mirrored the situation at English schools where the emphasis on hierarchical authority stemmed from medieval Christian theology and the unique legal privileges afforded the university corporation.” Note, 44 Vand. L. Rev. 1135, 1140 (1991) (footnote omitted). Footnote 3 My discussion is limited to elementary and secondary education. In these settings, courts have applied the doctrine of in loco parentis regardless of the student’s age. See, e.g., Stevens v. Fassett, 27 Me. 266, 281 (1847) (holding that a student over the age of 21 is “liab[le] to punishment” on the same terms as other students if he “present[s] himself as a pupil, [and] is received and instructed by the master”); State v. Mizner , 45 Iowa 248, 250–252 (1876) (same); Sheehan v. Sturges , 53 Conn. 481, 484, 2 A. 841, 843 (1885) (same). Therefore, the fact that Frederick was 18 and not a minor under Alaska law, 439 F. 3d 1114, 1117, n. 4 (CA9 2006), is inconsequential. Footnote 4 Even courts that did not favor the broad discretion given to teachers to impose corporal punishment recognized that the law provided it. Cooper v. McJunkin , 4 Ind. 290, 291 (1853) (stating that “[t]he public seem to cling to a despotism in the government of schools which has been discarded everywhere else”). Footnote 5 Courts also upheld punishment when children refused to speak after being requested to do so by their teachers. See Board of Ed. v. Helston , 32 Ill. App. 300, 305–307 (1890) (upholding the suspension of a boy who refused to provide information about who had defaced the school building); cf. Sewell v. Board of Ed. of Defiance Union School, 29 Ohio St. 89, 92 (1876) (upholding the suspension of a student who failed to complete a rhetorical exercise in the allotted time). Footnote 6 At least nominally, this Court has continued to recognize the applicability of the in loco parentis doctrine to public schools. See Vernonia School Dist. 47J v. Acton , 515 U. S. 646 , 654, 655 (1995) (“Traditionally at common law, and still today, unemancipated minors lack some of the most fundamental rights of self-determination … . They are subject … to the control of their parents or guardians. When parents place minor children in private schools for their education, the teachers and administrators of those schools stand in loco parentis over the children entrusted to them” (citation omitted)); Bethel School Dist. No. 403 v. Fraser , 478 U. S. 675 , 684 (1986) (“These cases recognize the obvious concern on the part of parents, and school authorities acting in loco parentis , to protect children—especially in a captive audience—from exposure to sexually explicit, indecent, or lewd speech”). Footnote 7 Distancing itself from Tinker ’s approach, the Fraser Court quoted Justice Black’s dissent in Tinker . 478 U. S., at 686. Footnote 8 The Tinker Court claimed that “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.” 393 U. S., at 506. But the cases the Court cited in favor of that bold proposition do not support it. Tinker chiefly relies upon Meyer v. Nebraska , 262 U. S. 390 (1923) (striking down a law prohibiting the teaching of German). However, Meyer involved a challenge by a private school, id. , at 396, and the Meyer Court was quick to note that no “challenge [has] been made of the State’s power to prescribe a curriculum for institutions which it supports.” Id. , at 402. Meyer provides absolutely no support for the proposition that that free-speech rights apply within schools operated by the State. And notably, Meyer relied as its chief support on the Lochner v. New York, 198 U. S. 45 (1905), line of cases, 262 U. S., at 399, a line of cases that has long been criticized, United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Management Authority , 550 U. S. ___ (2007). Tinker also relied on Pierce v. Society of Sisters , 268 U. S. 510 (1925). Pierce has nothing to say on this issue either. Pierce simply upheld the right of parents to send their children to private school. Id ., at 535. STEVENS, J., DISSENTING MORSE V. FREDERICK 551 U. S. ____ (2007) SUPREME COURT OF THE UNITED STATES NO. 06-278 DEBORAH MORSE, et al., PETITIONERS v. JOSEPH FREDERICK on writ of certiorari to the united states court of appeals for the ninth circuit [June 25, 2007]    Justice Stevens, with whom Justice Souter and Justice Ginsburg join, dissenting.    A significant fact barely mentioned by the Court sheds a revelatory light on the motives of both the students and the principal of Juneau-Douglas High School (JDHS). On January 24, 2002, the Olympic Torch Relay gave those Alaska residents a rare chance to appear on national television. As Joseph Frederick repeatedly explained, he did not address the curious message—“BONG HiTS 4 JESUS”—to his fellow students. He just wanted to get the camera crews’ attention. Moreover, concern about a nationwide evaluation of the conduct of the JDHS student body would have justified the principal’s decision to remove an attention-grabbing 14-foot banner, even if it had merely proclaimed “Glaciers Melt!”    I agree with the Court that the principal should not be held liable for pulling down Frederick’s banner. See Harlow v. Fitzgerald , 457 U. S. 800 , 818 (1982). I would hold, however, that the school’s interest in protecting its students from exposure to speech “reasonably regarded as promoting illegal drug use,” ante , at 1, cannot justify disciplining Frederick for his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs. The First Amendment demands more, indeed, much more.    The Court holds otherwise only after laboring to establish two uncontroversial propositions: first, that the constitutional rights of students in school settings are not coextensive with the rights of adults, see ante , at 8–12; and second, that deterring drug use by schoolchildren is a valid and terribly important interest, see ante , at 12–14. As to the first, I take the Court’s point that the message on Frederick’s banner is not necessarily protected speech, even though it unquestionably would have been had the banner been unfurled elsewhere. As to the second, I am willing to assume that the Court is correct that the pressing need to deter drug use supports JDHS’s rule prohibiting willful conduct that expressly “advocates the use of substances that are illegal to minors.” App. to Pet. for Cert. 53a. But it is a gross non sequitur to draw from these two unremarkable propositions the remarkable conclusion that the school may suppress student speech that was never meant to persuade anyone to do anything.    In my judgment, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. This nonsense banner does neither, and the Court does serious violence to the First Amendment in upholding—indeed, lauding—a school’s decision to punish Frederick for expressing a view with which it disagreed. I    In December 1965, we were engaged in a controversial war, a war that “divided this country as few other issues ever have.” Tinker v. Des Moines Independent Community School Dist. , 393 U. S. 503 , 524 (1969) (Black, J., dissenting). Having learned that some students planned to wear black armbands as a symbol of opposition to the country’s involvement in Vietnam, officials of the Des Moines public school district adopted a policy calling for the suspension of any student who refused to remove the armband. As we explained when we considered the propriety of that policy, “[t]he school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners.” Id., at 508. The district justified its censorship on the ground that it feared that the expression of a controversial and unpopular opinion would generate disturbances. Because the school officials had insufficient reason to believe that those disturbances would “materially and substantially interfere with the requirements of discipline in the operation of the school,” we found the justification for the rule to lack any foundation and therefore held that the censorship violated the First Amendment. Id., at 509 (internal quotation marks omitted).    Justice Harlan dissented, but not because he thought the school district could censor a message with which it disagreed. Rather, he would have upheld the district’s rule only because the students never cast doubt on the district’s anti-disruption justification by proving that the rule was motivated “by other than legitimate school concerns—for example, a desire to prohibit the expression of an unpopular point of view while permitting expression of the dominant opinion.” Id., at 526.    Two cardinal First Amendment principles animate both the Court’s opinion in Tinker and Justice Harlan’s dissent. First, censorship based on the content of speech, par- ticularly censorship that depends on the viewpoint of the speaker, is subject to the most rigorous burden of justification: “Discrimination against speech because of its message is presumed to be unconstitutional… . When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U. S. 819 , 828–829 (1995) (citation omitted). Second, punishing someone for advocating illegal conduct is constitutional only when the advocacy is likely to provoke the harm that the government seeks to avoid. See Brandenburg v. Ohio , 395 U. S. 444 , 449 (1969) (per curiam) (distinguishing “mere advocacy” of illegal conduct from “incitement to imminent lawless action”).    However necessary it may be to modify those principles in the school setting, Tinker affirmed their continuing vitality. 393 U. S., at 509 (“In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in that conduct would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school, the prohibition cannot be sustained” (internal quotation marks omitted)). As other federal courts have long recognized, under Tinker , “regulation of student speech is generally permissible only when the speech would substantially disrupt or interfere with the work of the school or the rights of other students. … Tinker requires a specific and significant fear of disruption, not just some remote apprehension of disturbance .” Saxe v. State College Area School Dist. , 240 F. 3d 200, 211 (CA3 2001) (Alito, J.) (emphasis added).    Yet today the Court fashions a test that trivializes the two cardinal principles upon which Tinker rests. See ante , at 14 (“[S]chools [may] restrict student expression that they reasonably regard as promoting illegal drug use”). The Court’s test invites stark viewpoint discrimination. In this case, for example, the principal has unabashedly acknowledged that she disciplined Frederick because she disagreed with the pro-drug viewpoint she ascribed to the message on the banner, see App. 25—a viewpoint, incidentally, that Frederick has disavowed, see id., at 28. Unlike our recent decision in Tennessee Secondary School Athletic Assn. v. Brentwood Academy , 551 U. S. ___, ___ (2007) (slip op., at 3), see also ante , at 3 (Alito, J., concurring), the Court’s holding in this case strikes at “the heart of the First Amendment” because it upholds a punishment meted out on the basis of a listener’s disagreement with her understanding (or, more likely, misunderstanding) of the speaker’s viewpoint. “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson , 491 U. S. 397 , 414 (1989).    It is also perfectly clear that “promoting illegal drug use,” ante , at 14, comes nowhere close to proscribable “incitement to imminent lawless action.” Brandenburg , 395 U. S., at 447. Encouraging drug use might well increase the likelihood that a listener will try an illegal drug, but that hardly justifies censorship: “Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. … Advocacy of law-breaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted upon.” Whitney v. California , 274 U. S. 357 , 376 (1927) (Brandeis, J., concurring). No one seriously maintains that drug advocacy (much less Frederick’s ridiculous sign) comes within the vanishingly small category of speech that can be prohibited because of its feared consequences. Such advocacy, to borrow from Justice Holmes, “ha[s] no chance of starting a present conflagration.” Gitlow v. New York , 268 U. S. 652 , 673 (1925) (dissenting opinion). II    The Court rejects outright these twin foundations of Tinker because, in its view, the unusual importance of protecting children from the scourge of drugs supports a ban on all speech in the school environment that promotes drug use. Whether or not such a rule is sensible as a matter of policy, carving out pro-drug speech for uniquely harsh treatment finds no support in our case law and is inimical to the values protected by the First Amendment.[ Footnote 1 ] See infra , at 14–16.    I will nevertheless assume for the sake of argument that the school’s concededly powerful interest in protecting its students adequately supports its restriction on “any assembly or public expression that . . . advocates the use of substances that are illegal to minors … .” App. to Pet. for Cert. 53a. Given that the relationship between schools and students “is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults,” Vernonia School Dist. 47J v. Acton , 515 U. S. 646 , 655 (1995), it might well be appropriate to tolerate some targeted viewpoint discrimination in this unique setting. And while conventional speech may be restricted only when likely to “incit[e] imminent lawless action,” Brandenburg , 395 U. S., at 449, it is possible that our rigid imminence requirement ought to be relaxed at schools. See Bethel School Dist. No. 403 v. Fraser , 478 U. S. 675 , 682 (1986) (“[T]he constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings”).    But it is one thing to restrict speech that advocates drug use. It is another thing entirely to prohibit an obscure message with a drug theme that a third party subjectively—and not very reasonably—thinks is tantamount to express advocacy. Cf. Masses Publishing Co. v. Patten , 244 F. 535, 540, 541 (SDNY 1917) (Hand, J.) (distinguishing sharply between “agitation, legitimate as such” and “the direct advocacy” of unlawful conduct). Even the school recognizes the paramount need to hold the line between, on the one hand, non-disruptive speech that merely expresses a viewpoint that is unpopular or contrary to the school’s preferred message, and on the other hand, advocacy of an illegal or unsafe course of conduct. The district’s prohibition of drug advocacy is a gloss on a more general rule that is otherwise quite tolerant of non-disruptive student speech: “Students will not be disturbed in the exercise of their constitutionally guaranteed rights to assemble peaceably and to express ideas and opinions, privately or publicly, provided that their activities do not infringe on the rights of others and do not interfere with the operation of the educational program.    “The Board will not permit the conduct on school premises of any willful activity … that interferes with the orderly operation of the educational program or offends the rights of others. The Board specifically prohibits … any assembly or public expression that . . . advocates the use of substances that are illegal to minors … .” App. to Pet. for Cert. 53a; see also ante , at 3 (quoting rule in part). There is absolutely no evidence that Frederick’s banner’s reference to drug paraphernalia “willful[ly]” infringed on anyone’s rights or interfered with any of the school’s educational programs.[ Footnote 2 ] On its face, then, the rule gave Frederick wide berth “to express [his] ideas and opinions” so long as they did not amount to “advoca[cy]” of drug use. Ibid. If the school’s rule is, by hypothesis, a valid one, it is valid only insofar as it scrupulously preserves adequate space for constitutionally protected speech. When First Amendment rights are at stake, a rule that “sweep[s] in a great variety of conduct under a general and indefinite characterization” may not leave “too wide a discretion in its application.” Cantwell v. Connecticut , 310 U. S. 296 , 308 (1940). Therefore, just as we insisted in Tinker that the school establish some likely connection between the armbands and their feared consequences, so too JDHS must show that Frederick’s supposed advocacy stands a meaningful chance of making otherwise-abstemious students try marijuana.    But instead of demanding that the school make such a showing, the Court punts. Figuring out just how it punts is tricky; “[t]he mode of analysis [it] employ[s] is not entirely clear,” see ante , at 9. On occasion, the Court suggests it is deferring to the principal’s “reasonable” judgment that Frederick’s sign qualified as drug advocacy.[ Footnote 3 ] At other times, the Court seems to say that it thinks the banner’s message constitutes express advocacy.[ Footnote 4 ] Either way, its approach is indefensible.    To the extent the Court defers to the principal’s ostensibly reasonable judgment, it abdicates its constitutional responsibility. The beliefs of third parties, reasonable or otherwise, have never dictated which messages amount to proscribable advocacy. Indeed, it would be a strange constitutional doctrine that would allow the prohibition of only the narrowest category of speech advocating unlawful conduct, see Brandenburg , 395 U. S., at 447–448, yet would permit a listener’s perceptions to determine which speech deserved constitutional protection.[ Footnote 5 ]    Such a peculiar doctrine is alien to our case law. In Abrams v. United States , 250 U. S. 616 (1919), this Court affirmed the conviction of a group of Russian “rebels, revolutionists, [and] anarchists,” id ., at 617–618 (internal quotation marks omitted), on the ground that the leaflets they distributed were thought to “incite, provoke, and encourage resistance to the United States,” id. , at 617 (internal quotation marks omitted). Yet Justice Holmes’ dissent—which has emphatically carried the day—never inquired into the reasonableness of the United States’ judgment that the leaflets would likely undermine the war effort. The dissent instead ridiculed that judgment: “nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so.” Id., at 628. In Thomas v. Collins , 323 U. S. 516 (1945) (opinion for the Court by Rutledge, J.), we overturned the conviction of a union organizer who violated a restraining order forbidding him from exhorting workers. In so doing, we held that the distinction between advocacy and incitement could not depend on how one of those workers might have understood the organizer’s speech. That would “pu[t] the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning.” Id ., at 535. In Cox v. Louisiana , 379 U. S. 536 , 543 (1965), we vacated a civil rights leader’s conviction for disturbing the peace, even though a Baton Rouge sheriff had “deem[ed]” the leader’s “appeal to … students to sit in at the lunch counters to be ‘inflammatory.’ ” We never asked if the sheriff’s in-person, on-the-spot judgment was “reasonable.” Even in Fraser , we made no inquiry into whether the school administrators reasonably thought the student’s speech was obscene or profane; we rather satisfied ourselves that “[t]he pervasive sexual innuendo in Fraser’s speech was plainly offensive to both teachers and students—indeed, to any mature person.” 478 U. S., at 683. Cf. Bose Corp. v. Consumers Union of United States, Inc. , 466 U. S. 485 , 499 (1984) (“[I]n cases raising First Amendment issues we have repeatedly held that an appellate court has an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression” (internal quotation marks omitted)).[ Footnote 6 ]    To the extent the Court independently finds that “BONG HiTS 4 JESUS” objectively amounts to the advocacy of illegal drug use—in other words, that it can most reasonably be interpreted as such—that conclusion practically refutes itself. This is a nonsense message, not advocacy. The Court’s feeble effort to divine its hidden meaning is strong evidence of that. Ante , at 7 (positing that the banner might mean, alternatively, “ ‘[Take] bong hits,’ ” “ ‘bong hits [are a good thing],’ ” or “ ‘[we take] bong hits’ ”). Frederick’s credible and uncontradicted explanation for the message—he just wanted to get on television—is also relevant because a speaker who does not intend to persuade his audience can hardly be said to be advocating anything.[ Footnote 7 ] But most importantly, it takes real imagination to read a “cryptic” message (the Court’s characterization, not mine, see ibid., at 6) with a slanting drug reference as an incitement to drug use. Admittedly, some high school students (including those who use drugs) are dumb. Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it. The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible. That the Court believes such a silly message can be proscribed as advocacy underscores the novelty of its position, and suggests that the principle it articulates has no stopping point.    Even if advocacy could somehow be wedged into Frederick’s obtuse reference to marijuana, that advocacy was at best subtle and ambiguous. There is abundant precedent, including another opinion The Chief Justice announces today, for the proposition that when the “First Amendment is implicated, the tie goes to the speaker,” Federal Election Comm’n v. Wisconsin Right to Life, Inc. , 551 U. S. ___ (2007) (slip op., at 21) and that “when it comes to defining what speech qualifies as the functional equivalent of express advocacy … we give the benefit of the doubt to speech, not censorship,” post, at 29. If this were a close case, the tie would have to go to Frederick’s speech, not to the principal’s strained reading of his quixotic message.    Among other things, the Court’s ham-handed, categorical approach is deaf to the constitutional imperative to permit unfettered debate, even among high-school students, about the wisdom of the war on drugs or of legalizing marijuana for medicinal use.[ Footnote 8 ] See Tinker , 393 U. S., at 511 (“[Students] may not be confined to the expression of those sentiments that are officially approved”). If Frederick’s stupid reference to marijuana can in the Court’s view justify censorship, then high school students everywhere could be forgiven for zipping their mouths about drugs at school lest some “reasonable” observer censor and then punish them for promoting drugs. See also ante , at 2 (Breyer, J., concurring in judgment in part and dissenting in part).    Consider, too, that the school district’s rule draws no distinction between alcohol and marijuana, but applies evenhandedly to all “substances that are illegal to minors.” App. to Pet. for Cert. 53a; see also App. 83 (expressly defining “ ‘drugs’ ” to include “all alcoholic beverages”). Given the tragic consequences of teenage alcohol consumption—drinking causes far more fatal accidents than the misuse of marijuana—the school district’s interest in deterring teenage alcohol use is at least comparable to its interest in preventing marijuana use. Under the Court’s reasoning, must the First Amendment give way whenever a school seeks to punish a student for any speech mentioning beer, or indeed anything else that might be deemed risky to teenagers? While I find it hard to believe the Court would support punishing Frederick for flying a “WINE SiPS 4 JESUS” banner—which could quite reasonably be construed either as a protected religious message or as a pro-alcohol message—the breathtaking sweep of its opinion suggests it would. III    Although this case began with a silly, nonsensical banner, it ends with the Court inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs, at least so long as someone could perceive that speech to contain a latent pro-drug message. Our First Amendment jurisprudence has identified some categories of expression that are less deserving of protection than others—fighting words, obscenity, and commercial speech, to name a few. Rather than reviewing our opinions discussing such categories, I mention two personal recollections that have no doubt influenced my conclusion that it would be profoundly unwise to create special rules for speech about drug and alcohol use.    The Vietnam War is remembered today as an unpopular war. During its early stages, however, “the dominant opinion” that Justice Harlan mentioned in his Tinker dissent regarded opposition to the war as unpatriotic, if not treason. 393 U. S., at 526. That dominant opinion strongly supported the prosecution of several of those who demonstrated in Grant Park during the 1968 Democratic Convention in Chicago, see United States v. Dellinger , 472 F. 2d 340 (CA7 1972), and the vilification of vocal opponents of the war like Julian Bond, cf. Bond v. Floyd , 385 U. S. 116 (1966). In 1965, when the Des Moines students wore their armbands, the school district’s fear that they might “start an argument or cause a disturbance” was well founded. Tinker , 393 U. S., at 508. Given that context, there is special force to the Court’s insistence that “our Constitution says we must take that risk; and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.” Id., at 508–509 (citation omitted). As we now know, the then-dominant opinion about the Vietnam War was not etched in stone.    Reaching back still further, the current dominant opinion supporting the war on drugs in general, and our antimarijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student. While alcoholic beverages are now regarded as ordinary articles of commerce, their use was then condemned with the same moral fervor that now supports the war on drugs. The ensuing change in public opinion occurred much more slowly than the relatively rapid shift in Americans’ views on the Vietnam War, and progressed on a state-by-state basis over a period of many years. But just as prohibition in the 1920’s and early 1930’s was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies, today the actions of literally millions of otherwise law-abiding users of marijuana,[ Footnote 9 ] and of the majority of voters in each of the several States that tolerate medicinal uses of the product,[ Footnote 10 ] lead me to wonder whether the fear of disapproval by those in the majority is silencing opponents of the war on drugs. Surely our national experience with alcohol should make us wary of dampening speech suggesting—however inarticulately—that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely.    Even in high school, a rule that permits only one point of view to be expressed is less likely to produce correct answers than the open discussion of countervailing views. Whitney , 274 U. S., at 377 (Brandeis, J., concurring); Abrams , 250 U. S., at 630 (Holmes, J., dissenting); Tinker , 393 U. S., at 512. In the national debate about a serious issue, it is the expression of the minority’s viewpoint that most demands the protection of the First Amendment. Whatever the better policy may be, a full and frank discussion of the costs and benefits of the attempt to prohibit the use of marijuana is far wiser than suppression of speech because it is unpopular.    I respectfully dissent. Footnote 1 I also seriously question whether such a ban could really be enforced. Consider the difficulty of monitoring student conversations between classes or in the cafeteria. Footnote 2 It is also relevant that the display did not take place “on school premises,” as the rule contemplates. App. to Pet. for Cert. 53a. While a separate district rule does make the policy applicable to “social events and class trips,” id., at 58a, Frederick might well have thought that the Olympic Torch Relay was neither a “social event” (for example, prom) nor a “class trip.” Footnote 3 See ante , at 1 (stating that the principal “reasonably regarded” Frederick’s banner as “promoting illegal drug use”); ante, at 6 (explaining that “Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one”); ante, at 8 (asking whether “a principal may … restrict student speech … when that speech is reasonably viewed as promoting illegal drug use”); ante, at 14 (holding that “schools [may] restrict student expression that they reasonably regard as promoting illegal drug use”); see also ante , at 1 (Alito, J., concurring) (“[A] public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use”). Footnote 4 See ante, at 7 (“We agree with Morse. At least two interpretations of the words on the banner demonstrate that the sign advocated the use of illegal drugs”); ante, at 15 (observing that “[w]e have explained our view” that “Frederick’s banner constitutes promotion of illegal drug use”). Footnote 5 The reasonableness of the view that Frederick’s message was unprotected speech is relevant to ascertaining whether qualified immunity should shield the principal from liability, not to whether her actions violated Frederick’s constitutional rights. Cf. Saucier v. Katz , 533 U. S. 194 , 202 (2001) (“The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted”). Footnote 6 This same reasoning applies when the interpreter is not just a listener, but a legislature. We have repeatedly held that “[d]eference to a legislative finding” that certain types of speech are inherently harmful “cannot limit judicial inquiry when First Amendment rights are at stake,” reasoning that “the judicial function commands analysis of whether the specific conduct charged falls within the reach of the statute and if so whether the legislation is consonant with the Constitution.” Landmark Communications, Inc. v. Virginia , 435 U. S. 829 , 843, 844 (1978); see also Whitney v. California , 274 U. S. 357 , 378–379 (1927) (Brandeis, J., concurring) (“[A legislative declaration] does not preclude enquiry into the question whether, at the time and under the circumstances, the conditions existed which are essential to validity under the Federal Constitution… . Whenever the fundamental rights of free speech and assembly are alleged to have been invaded, it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent; and whether the evil apprehended was so substantial as to justify the stringent restriction interposed by the legislature”). When legislatures are entitled to no deference as to whether particular speech amounts to a “clear and present danger,” id., at 379, it is hard to understand why the Court would so blithely defer to the judgment of a single school principal. Footnote 7 In affirming Frederick’s suspension, the JDHS superintendent acknowledged that Frederick displayed his message “for the benefit of television cameras covering the Torch Relay.” App. to Pet. for Cert. 62a. Footnote 8 The Court’s opinion ignores the fact that the legalization of marijuana is an issue of considerable public concern in Alaska. The State Supreme Court held in 1975 that Alaska’s constitution protects the right of adults to possess less than four ounces of marijuana for personal use. Ravin v. State , 537 P. 2d 494 (Alaska). In 1990, the voters of Alaska attempted to undo that decision by voting for a ballot initiative recriminalizing marijuana possession. Initiative Proposal No. 2, §§1–2 (effective Mar. 3, 1991), 11 Alaska Stat., p. 872 (Lexis 2006). At the time Frederick unfurled his banner, the constitutionality of that referendum had yet to be tested. It was subsequently struck down as unconstitutional. See Noy v. State , 83 P. 3d 538 (Alaska App. 2003). In the meantime, Alaska voters had approved a ballot measure decriminalizing the use of marijuana for medicinal purposes, 1998 Ballot Measure No. 8 (approved Nov. 3, 1998), 11 Alaska Stat., p. 882 (codified at Alaska Stat. §§11.71.090, 17.37.010–17.37.080), and had rejected a much broader measure that would have decriminalized marijuana possession and granted amnesty to anyone convicted of marijuana-related crimes, see 2000 Ballot Measure No. 5 (failed Nov. 7, 2000), 11 Alaska Stat., p. 886. Footnote 9 See Gonzales v. Raich , 545 U. S. 1 , 21, n. 31 (2005) (citing a Government estimate “that in 2000 American users spent $10.5 billion on the purchase of marijuana”). Footnote 10 Id., at 5 (noting that “at least nine States … authorize the use of marijuana for medicinal purposes”). DEBORAH MORSE, et al., PETITIONERS v. JOSEPH FREDERICK on writ of certiorari to the united states court of appeals for the ninth circuit [June 25, 2007]    Justice Breyer, concurring in the judgment in part and dissenting in part.    This Court need not and should not decide this difficult First Amendment issue on the merits. Rather, I believe that it should simply hold that qualified immunity bars the student’s claim for monetary damages and say no more. I    Resolving the First Amendment question presented in this case is, in my view, unwise and unnecessary. In part that is because the question focuses upon specific content narrowly defined: May a school board punish students for speech that advocates drug use and, if so, when? At the same time, the underlying facts suggest that Principal Morse acted as she did not simply because of the specific content and viewpoint of Joseph Frederick’s speech but also because of the surrounding context and manner in which Frederick expressed his views. To say that school officials might reasonably prohibit students during school-related events from unfurling 14-foot banners (with any kind of irrelevant or inappropriate message) designed to attract attention from television cameras seems unlikely to undermine basic First Amendment principles. But to hold, as the Court does, that “schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use” (and that “schools” may “restrict student expression that they reasonably regard as promoting illegal drug use”) is quite a different matter. Ante , at 2, 14. This holding, based as it is on viewpoint restrictions, raises a host of serious concerns.    One concern is that, while the holding is theoretically limited to speech promoting the use of illegal drugs, it could in fact authorize further viewpoint-based restrictions. Illegal drugs, after all, are not the only illegal substances. What about encouraging the underage consumption of alcohol? Moreover, it is unclear how far the Court’s rule regarding drug advocacy extends. What about a conversation during the lunch period where one student suggests that glaucoma sufferers should smoke marijuana to relieve the pain? What about deprecating commentary about an antidrug film shown in school? And what about drug messages mixed with other, more expressly political, content? If, for example, Frederick’s banner had read “LEGALIZE BONG HiTS,” he might be thought to receive protection from the majority’s rule, which goes to speech “encouraging illegal drug use.” Ante , at 2 (emphasis added). But speech advocating change in drug laws might also be perceived of as promoting the disregard of existing drug laws.    Legal principles must treat like instances alike. Those principles do not permit treating “drug use” separately without a satisfying explanation of why drug use is sui generis . To say that illegal drug use is harmful to students, while surely true, does not itself constitute a satisfying explanation because there are many such harms. During a real war, one less metaphorical than the war on drugs, the Court declined an opportunity to draw narrow subject-matter-based lines. Cf. West Virginia Bd. of Ed. v. Barnette , 319 U. S. 624 (1943) (holding students cannot be compelled to recite the Pledge of Allegiance during World War II). We should decline this opportunity today.    Although the dissent avoids some of the majority’s pitfalls, I fear that, if adopted as law, it would risk significant interference with reasonable school efforts to maintain discipline. What is a principal to do when a student unfurls a 14-foot banner (carrying an irrelevant or inappropriate message) during a school-related event in an effort to capture the attention of television cameras? Nothing? In my view, a principal or a teacher might reasonably view Frederick’s conduct, in this setting, as simply beyond the pale. And a school official, knowing that adolescents often test the outer boundaries of acceptable behavior, may believe it is important (for the offending student and his classmates) to establish when a student has gone too far.    Neither can I simply say that Morse may have taken the right action (confiscating Frederick’s banner) but for the wrong reason (“drug speech”). Teachers are neither lawyers nor police officers; and the law should not demand that they fully understand the intricacies of our First Amendment jurisprudence. As the majority rightly points out, the circumstances here called for a quick decision. See ante , at 15 (noting that “Morse had to decide to act—or not act—on the spot”). But this consideration is better understood in terms of qualified immunity than of the First Amendment. See infra, at 5–8.    All of this is to say that, regardless of the outcome of the constitutional determination, a decision on the underlying First Amendment issue is both difficult and unusually portentous. And that is a reason for us not to decide the issue unless we must.    In some instances, it is appropriate to decide a constitutional issue in order to provide “guidance” for the future. But I cannot find much guidance in today’s decision. The Court makes clear that school officials may “restrict” student speech that promotes “illegal drug use” and that they may “take steps” to “safeguard” students from speech that encourages “illegal drug use.” Ante , at 2, 8. Beyond “steps” that prohibit the unfurling of banners at school outings, the Court does not explain just what those “restrict[ions]” or those “steps” might be.     Nor, if we are to avoid the risk of interpretations that are too broad or too narrow, is it easy to offer practically valuable guidance. Students will test the limits of acceptable behavior in myriad ways better known to schoolteachers than to judges; school officials need a degree of flexible authority to respond to disciplinary challenges; and the law has always considered the relationship between teachers and students special. Under these circumstances, the more detailed the Court’s supervision becomes, the more likely its law will engender further disputes among teachers and students. Consequently, larger numbers of those disputes will likely make their way from the schoolhouse to the courthouse. Yet no one wishes to substitute courts for school boards, or to turn the judge’s chambers into the principal’s office.    In order to avoid resolving the fractious underlying constitutional question, we need only decide a different question that this case presents, the question of “qualified immunity.” See Pet. for Cert. 23–28. The principle of qualified immunity fits this case perfectly and, by saying so, we would diminish the risk of bringing about the adverse consequences I have identified. More importantly, we should also adhere to a basic constitutional obligation by avoiding unnecessary decision of constitutional questions. See Ashwander v. TVA , 297 U. S. 288 , 347 (1936) (Brandeis, J., concurring) (“The Court will not pass upon a constitutional question although properly presented on the record, if there is also present some other ground upon which the case may be disposed of ”). II A    The defense of “qualified immunity” requires courts to enter judgment in favor of a government employee unless the employee’s conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald , 457 U. S. 800 , 818 (1982). The defense is designed to protect “all but the plainly incompetent or those who knowingly violated the law.” Malley v. Briggs , 475 U. S. 335 , 341 (1986).    Qualified immunity applies here and entitles Principal Morse to judgment on Frederick’s monetary damages claim because she did not clearly violate the law during her confrontation with the student. At the time of that confrontation, Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 , 513 (1969), indicated that school officials could not prohibit students from wearing an armband in protest of the Vietnam War, where the conduct at issue did not “materially and substantially disrupt the work and discipline of the school;” Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675 (1986), indicated that school officials could restrict a student’s freedom to give a school assembly speech containing an elaborate sexual metaphor; and Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260 (1988), indicated that school officials could restrict student contributions to a school-sponsored newspaper, even without threat of imminent disruption. None of these cases clearly governs the case at hand.    The Ninth Circuit thought it “clear” that these cases did not permit Morse’s actions. See 439 F. 3d 1114, 1124 (2006). That is because, in the Ninth Circuit’s view, this case involved neither lewd speech, cf. Fraser , supra , nor school sponsored speech, cf. Kuhlmeier, supra , and hence Tinker ’s substantial disruption test must guide the inquiry. See 439 F. 3d, at 1123. But unlike the Ninth Circuit, other courts have described the tests these cases suggest as complex and often difficult to apply. See, e.g. , Guiles ex rel. Guiles v. Marineau , 461 F. 3d 320, 326 (CA2 2006) (“It is not entirely clear whether Tinker ’s rule applies to all student speech that is not sponsored by schools, subject to the rule of Fraser , or whether it applies only to political speech or to political viewpoint-based discrimination”); Baxter v. Vigo Cty. School Corp. , 26 F. 3d 728, 737 (CA7 1994) (pointing out that Fraser “cast some doubt on the extent to which students retain free speech rights in the school setting”). Indeed, the fact that this Court divides on the constitutional question (and that the majority reverses the Ninth Circuit’s constitutional determination) strongly suggests that the answer as to how to apply prior law to these facts was unclear.    The relative ease with which we could decide this case on the qualified immunity ground, and thereby avoid deciding a far more difficult constitutional question, underscores the need to lift the rigid “order of battle” decisionmaking requirement that this Court imposed upon lower courts in Saucier v. Katz , 533 U. S. 194 , 201–202 (2001). In Saucier , the Court wrote that lower courts’ “first inquiry must be whether a constitutional right would have been violated on the facts alleged.” Id. , at 200. Only if there is a constitutional violation, can lower courts proceed to consider whether the official is entitled to “qualified immunity.” See ibid. I have previously explained why I believe we should abandon Saucier ’s order-of-battle rule. See Scott v. Harris , 550 U. S. ___, ___ (2007) (slip op., at 1–2) (Breyer, J., concurring); Brosseau v. Haugen , 543 U. S. 194 , 201–202 (2004) (Breyer, J., concurring).  Sometimes the rule will require lower courts unnecessarily to answer difficult constitutional questions, thereby wasting judicial resources. Sometimes it will require them to resolve constitutional issues that are poorly presented. Sometimes the rule will immunize an incorrect constitutional holding from further review. And often the rule violates the longstanding principle that courts should “not … pass on questions of constitutionality … unless such adjudication is unavoidable.” Spector Motor Service, Inc. v. McLaughlin , 323 U. S. 101 , 105 (1944).    This last point warrants amplification. In resolving the underlying constitutional question, we produce several differing opinions. It is utterly unnecessary to do so. Were we to decide this case on the ground of qualified immunity, our decision would be unanimous , for the dissent concedes that Morse should not be held liable in damages for confiscating Frederick’s banner. Post , at 1 (opinion of Stevens, J.). And the “cardinal principle of judicial restraint” is that “if it is not necessary to decide more, it is necessary not to decide more.” PDK Labs., Inc. v. Drug Enforcement Admin. , 362 F. 3d 786, 799 (CADC 2004) (Roberts, J., concurring in part and concurring in judgment).    If it is Saucier that tempts this Court to adhere to the rigid “order of battle” that binds lower courts, it should resist that temptation. Saucier does not bind this Court. Regardless, the rule of Saucier has generated considerable criticism from both commentators and judges. See Leval, Judging Under the Constitution: Dicta About Dicta, 81 N. Y. U. L. Rev. 1249, 1275 (2006) (calling the requirement “a puzzling misadventure in constitutional dictum”); Dirrane v. Brookline Police Dept. , 315 F. 3d 65, 69–70 (CA1 2002) (referring to the requirement as “an uncomfortable exercise” when “the answer whether there was a violation may depend on a kaleidoscope of facts not yet fully developed”); Lyons v. Xenia , 417 F. 3d 565, 580–584 (CA6 2005) (Sutton, J., concurring). While Saucier justified its rule by contending that it was necessary to permit constitutional law to develop, see 533 U. S., at 201, this concern is overstated because overruling Saucier would not mean that the law prohibited judges from passing on constitutional questions, only that it did not require them to do so. Given that Saucier is a judge-made procedural rule, stare decisis concerns supporting preservation of the rule are weak. See, e.g. , Payne v. Tennessee , 501 U. S. 808 , 828 (1991) (“Considerations in favor of stare decisis ” are at their weakest in cases “involving procedural and evidentiary rules”).    Finally, several Members of this Court have previously suggested that always requiring lower courts first to answer constitutional questions is misguided. See County of Sacramento v. Lewis , 523 U. S. 833 , 859 (1998) (Stevens, J., concurring in judgment) (resolving the constitutional question first is inappropriate when that “question is both difficult and unresolved”); Bunting v. Mellen , 541 U. S. 1019 , 1025 (2004) (Scalia, J., dissenting from denial of certiorari) (“We should either make clear that constitutional determinations are not insulated from our re- view … or else drop any pretense at requiring the ordering in every case”); Saucier, supra , at 210 (Ginsburg, J., concurring in judgment) (“The two-part test today’s decision imposes holds large potential to confuse”); Siegert v. Gilley , 500 U. S. 226 , 235 (1991) (Kennedy, J., concurring) (“If it is plain that a plaintiff’s required malice allegations are insufficient but there is some doubt as to the constitutional right asserted, it seems to reverse the usual ordering of issues to tell the trial and appellate courts that they should resolve the constitutional question first”). I would end the failed Saucier experiment now. B    There is one remaining objection to deciding this case on the basis of qualified immunity alone. The plaintiff in this case has sought not only damages; he has also sought an injunction requiring the school district to expunge his suspension from its records. A “qualified immunity” defense applies in respect to damages actions, but not to injunctive relief. See, e.g. , Wood v. Strickland , 420 U. S. 308 , 314, n. 6 (1975). With respect to that claim, the underlying question of constitutionality, at least conceivably, remains.    I seriously doubt, however, that it does remain. At the plaintiff’s request, the school superintendent reviewed Frederick’s 10-day suspension. The superintendent, in turn, reduced the suspension to the eight days that Frederick had served before the appeal. But in doing so the superintendent noted that several actions independent of Frederick’s speech supported the suspension, including the plaintiff’s disregard of a school official’s instruction, his failure to report to the principal’s office on time, his “defiant [and] disruptive behavior,” and the “belligerent attitude” he displayed when he finally reported. App. to Pet. for Cert. 65a. The superintendent wrote that “were” he to “concede” that Frederick’s “speech . . . is protected, … the remainder of his behavior was not excused.” Id., at 66a.    The upshot is that the school board’s refusal to erase the suspension from the record may well be justified on non-speech-related grounds. In addition, plaintiff’s counsel appeared to agree with the Court’s suggestion at oral argument that Frederick “would not pursue” injunctive relief if he prevailed on the damages question. Tr. of Oral Arg. 46–48. And finding that Morse was entitled to qualified immunity would leave only the question of injunctive relief.    Given the high probability that Frederick’s request for an injunction will not require a court to resolve the constitutional issue, see Ashwander , 297 U. S., at 347 (Brandeis, J., concurring), I would decide only the qualified immunity question and remand the rest of the case for an initial consideration.

The Supreme Court ruled that schools can restrict student speech that promotes illegal drug use, upholding the suspension of a student who displayed a banner advocating drug use at a school-sanctioned event. The Court balanced students' free speech rights with schools' duty of care, concluding that the school's actions were reasonable and did not violate the First Amendment.

Free Speech

McConnell v. FEC

https://supreme.justia.com/cases/federal/us/540/93/

OPINION OF THE COURT MCCONNELL V. FEDERAL ELECTION COMM'N 540 U. S. ____ (2003) SUPREME COURT OF THE UNITED STATES NOS. 02-1674, 02-1675, 02-1676, 02-1702, 02-1727, 02-1733, 02-1734;02-1740, 02-1747, 02-1753, 02-1755, AND 02-1756 MITCH McCONNELL, UNITED STATES SENATOR, et al., APPELLANTS 02–1674 v . FEDERAL ELECTION COMMISSION, et al.; NATIONAL RIFLE ASSOCIATION, et al., APPELLANTS 02–1675 v . FEDERAL ELECTION COMMISSION, et al.; FEDERAL ELECTION COMMISSION, et al., APPELLANTS 02–1676 v . MITCH McCONNELL, UNITED STATES SENATOR, et al.; JOHN McCAIN, UNITED STATES SENATOR, et al., APPELLANTS 02–1702 v . MITCH McCONNELL, UNITED STATES SENATOR, et al.; REPUBLICAN NATIONAL COMMITTEE, et al., APPELLANTS 02–1727 v . FEDERAL ELECTION COMMISSION, et al.; NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al., APPELLANTS 02–1733 v . FEDERAL ELECTION COMMISSION, et al.; AMERICAN CIVIL LIBERTIES UNION, APPELLANTS 02–1734 v . FEDERAL ELECTION COMMISSION, et al.; VICTORIA JACKSON GRAY ADAMS, et al., APPELLANTS 02–1740 v . FEDERAL ELECTION COMMISSION, et al.; RON PAUL, UNITED STATES CONGRESSMAN, et al., APPELLANTS 02–1747 v . FEDERAL ELECTION COMMISSION, et al.; CALIFORNIA DEMOCRATIC PARTY, et al., APPELLANTS 02–1753 v . FEDERAL ELECTION COMMISSION, et al.; AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al., APPELLANTS 02–1755 v . FEDERAL ELECTION COMMISSION, et al.; CHAMBER OF COMMERCE OF THE UNITED STATES, et al., APPELLANTS 02–1756 v . FEDERAL ELECTION COMMISSION, et al. on appeals from the united states district court for the district of columbia [December 10, 2003]    Chief Justice Rehnquist delivered the opinion of the Court with respect to BCRA Titles III and IV.*    This opinion addresses issues involving miscellaneous Title III and IV provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA), 116 Stat. 81. For the reasons discussed below, we affirm the judgment of the District Court with respect to these provisions. BCRA §305 BCRA §305 amends the federal Communications Act of 1934 (Communications Act) §315(b), 48 Stat. 1088, as amended, 86 Stat. 4, which requires that, 45 days before a primary or 60 days before a general election, broadcast stations must sell a qualified candidate the “lowest unit charge of the station for the same class and amount of time for the same period,” 47 U. S. C. §315(b). Section 305’s amendment, in turn, denies a candidate the benefit of that lowest unit charge unless the candidate “provides written certification to the broadcast station that the candidate (and any authorized committee of the candidate) shall not make any direct reference to another candidate for the same office,” or the candidate, in the manner prescribed in BCRA §305(a)(3), clearly identifies herself at the end of the broadcast and states that she approves of the broadcast. 47 U. S. C. A. §§315(b)(2)(A), (C) (Supp. 2003). The McConnell plaintiffs challenge §305. They argue that Senator McConnell’s testimony that he plans to run advertisements critical of his opponents in the future and that he had run them in the past is sufficient to establish standing. We think not. Article III of the Constitution limits the “judicial power” to the resolution of “cases” and “controversies.” One element of the “bedrock” case-or-controversy requirement is that plaintiffs must establish that they have standing to sue. Raines v. Byrd, 521 U. S. 811 , 818 (1997). On many occasions, we have reiterated the three requirements that constitute the “ ‘irreducible constitutional minimum’ ” of standing. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765 , 771 (2000). First, a plaintiff must demonstrate an “injury in fact,” which is “concrete,” “distinct and palpable,” and “actual or imminent.” Whitmore v. Arkansas, 495 U. S. 149 , 155 (1990) (internal quotation marks and citation omitted). Second, a plaintiff must establish “a causal connection between the injury and the conduct complained of—the injury has to be ‘fairly trace[able] to the challenged action of the defendant, and not … th[e] result [of] some third party not before the court.’ ” Lujan v. Defenders of Wildlife, 504 U. S. 555 , 560–561 (1992) (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26 , 41–42 (1976)). Third, a plaintiff must show the “ ‘substantial likelihood’ that the requested relief will remedy the alleged injury in fact.” Stevens, supra, at 771.    As noted above, §305 amended the Communication Act’s requirements with respect to the lowest unit charge for broadcasting time. But this price is not available to qualified candidates until 45 days before a primary election or 60 days before a general election. Because Senator McConnell’s current term does not expire until 2009, the earliest day he could be affected by §305 is 45 days before the Republican primary election in 2008. This alleged injury in fact is too remote temporally to satisfy Article III standing. See Whitmore, supra, at 158 (“A threatened injury must be certainly impending to constitute injury in fact” (internal quotation marks and citations omitted)); see also Los Angeles v. Lyons, 461 U. S. 95 , 102 (1983) (A plaintiff seeking injunctive relief must show he is “ ‘immediately in danger of sustaining some direct injury’ as [a] result” of the challenged conduct). Because we hold that the McConnell plaintiffs lack standing to challenge §305, we affirm the District Court’s dismissal of the challenge to BCRA §305. BCRA §307 BCRA §307, which amends §315(a)(1) of the Federal Election Campaign Act of 1971 (FECA), 86 Stat. 3, as added, 90 Stat. 487, increases and indexes for inflation certain FECA contribution limits. The Adams and Paul plaintiffs challenge §307 in this Court. Both groups contend that they have standing to sue. Again, we disagree. The Adams plaintiffs, a group consisting of voters, organizations representing voters, and candidates, allege two injuries, and argue each is legally cognizable, “as established by case law outlawing electoral discrimination based on economic status … and upholding the right to an equally meaningful vote … .” Brief for Appellants Adams et al. in No. 02–1740, p. 31. First, they assert that the increases in hard money limits enacted by §307 deprive them of an equal ability to participate in the election process based on their economic status. But, to satisfy our standing requirements, a plaintiff’s alleged injury must be an invasion of a concrete and particularized legally protected interest. Lujan, supra , at 560. We have noted that “[a]lthough standing in no way depends on the merits of the plaintiff’s contention that particular conduct is illegal, … it often turns on the nature and source of the claim asserted.” Warth v. Seldin, 422 U. S. 490 , 500 (1975) (internal quotation marks and citations omitted). We have never recognized a legal right comparable to the broad and diffuse injury asserted by the Adams plaintiffs. Their reliance on this Court’s voting rights cases is misplaced. They rely on cases requiring nondiscriminatory access to the ballot and a single, equal vote for each voter. See, e.g. , Lubin v. Panish, 415 U. S. 709 (1974) (invalidating a statute requiring a ballot-access fee fixed at a percentage of the salary for the office sought because it unconstitutionally burdened the right to vote); Harper v. Virginia Bd. of Elections, 383 U. S. 663 , 666–668 (1966) (invalidating a state poll tax because it effectively denied the right to vote).    None of these plaintiffs claims a denial of equal access to the ballot or the right to vote. Instead, the plaintiffs allege a curtailment of the scope of their participation in the electoral process. But we have noted that “[p]olitical ‘free trade’ does not necessarily require that all who participate in the political marketplace do so with exactly equal resources.” Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238 , 257 (1986); see also Buckley v. Valeo, 424 U. S. 1 , 48 (1976) (per curiam) (rejecting the asserted government interest of “equalizing the relative ability of individuals and groups to influence the outcome of elections” to justify the burden on speech presented by expenditure limits). This claim of injury by the Adams plaintiffs is, therefore, not to a legally cognizable right.    Second, the Adams plaintiffs-candidates contend that they have suffered a competitive injury. Their candidates “do not wish to solicit or accept large campaign contributions as permitted by BCRA” because “[t]hey believe such contributions create the appearance of unequal access and influence.” Adams Complaint ¶ ;53. As a result, they claim that BCRA §307 puts them at a “fundraising disadvantage,” making it more difficult for them to compete in elections. See id. , ¶ ;56.    The second claimed injury is based on the same premise as the first: BCRA §307’s increased hard money limits allow plaintiffs-candidates’ opponents to raise more money, and, consequently, the plaintiffs-candidates’ ability to compete or participate in the electoral process is diminished. But they cannot show that their alleged injury is “fairly traceable” to BCRA §307. See Lujan, supra, at 562. Their alleged inability to compete stems not from the operation of §307, but from their own personal “wish” not to solicit or accept large contributions, i.e ., their personal choice. Accordingly, the Adams plaintiffs fail here to allege an injury in fact that is “fairly traceable” to BCRA.    The Paul plaintiffs maintain that BCRA §307 violates the Freedom of Press Clause of the First Amendment. They contend that their political campaigns and public interest advocacy involve traditional press activities and that, therefore, they are protected by the First Amendment’s guarantee of the freedom of press. The Paul plaintiffs argue that the contribution limits imposed by BCRA §307, together with the individual and political action committee contribution limitations of FECA §315, impose unconstitutional editorial control upon candidates and their campaigns. The Paul plaintiffs argue that by imposing economic burdens upon them, but not upon the institutional media, see 2 U. S. C. §431(9)(B)(i) (exempting “any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate” from the definition of expenditure), BCRA §307 and FECA §315 violate the freedom of the press.    The Paul plaintiffs cannot show the “ ‘substantial likelihood’ that the requested relief will remedy [their] alleged injury in fact,” Stevens , 529 U. S., at 771. The relief the Paul plaintiffs seek is for this Court to strike down the contribution limits, removing the alleged disparate editorial controls and economic burdens imposed on them. But §307 merely increased and indexed for inflation certain FECA contribution limits. This Court has no power to adjudicate a challenge to the FECA limits in this case because challenges to the constitutionality of FECA provisions are subject to direct review before an appropriate en banc court of appeals, as provided in 2 U. S. C. §437h, not in the three-judge District Court convened pursuant to BCRA §403(a). Although the Court has jurisdiction to hear a challenge to §307, if the Court were to strike down the increases and indexes established by BCRA §307, it would not remedy the Paul plaintiffs’ alleged injury because both the limitations imposed by FECA and the exemption for news media would remain unchanged. A ruling in the Paul plaintiffs’ favor, therefore, would not redress their alleged injury, and they accordingly lack standing. See Steel Co. v. Citizens for Better Environment, 523 U. S. 83 , 105–110 (1998).    For the reasons above, we affirm the District Court’s dismissal of the Adams and Paul plaintiffs’ challenges to BCRA §307 for lack of standing. BCRA §§304, 316, and 319 BCRA §§304 and 316, which amend FECA §315, and BCRA §319, which adds FECA §315A, collectively known as the “millionaire provisions,” provide for a series of staggered increases in otherwise applicable contribution-to-candidate limits if the candidate’s opponent spends a triggering amount of his personal funds.[ Footnote 1 ] The provisions also eliminate the coordinated expenditure limits in certain circumstances.[ Footnote 2 ] In their challenge to the millionaire provisions, the Adams plaintiffs allege the same injuries that they alleged with regard to BCRA §307. For the reasons discussed above, they fail to allege a cognizable injury that is “fairly traceable” to BCRA. Additionally, as the District Court noted, “none of the Adams plaintiffs is a candidate in an election affected by the millionaire provisions—i.e., one in which an opponent chooses to spend the triggering amount in his own funds—and it would be purely ‘conjectural’ for the court to assume that any plaintiff ever will be.” 251 F. Supp. 2d 176, 431 (DC 2003) (case below) (Henderson, J., concurring in judgment in part and dissenting in part) (quoting Lujan , 504 U. S., at 560). We affirm the District Court’s dismissal of the Adams plaintiffs’ challenge to the millionaire provisions for lack of standing. BCRA §311 FECA §318 requires that certain communications “authorized” by a candidate or his political committee clearly identify the candidate or committee or, if not so authorized, identify the payor and announce the lack of authorization. 2 U. S. C. A. §441d (main ed. and Supp. 2003). BCRA §311 makes several amendments to FECA §318, among them the expansion of this identification regime to include disbursements for “electioneering communications” as defined in BCRA §201. The McConnell and Chamber of Commerce plaintiffs challenge BCRA §311 by simply noting that §311, along with all of the “electioneering communications” provisions of BCRA, is unconstitutional. We disagree. We think BCRA §311’s inclusion of electioneering communications in the FECA §318 disclosure regime bears a sufficient relationship to the important governmental interest of “shed[ding] the light of publicity” on campaign financing. Buckley , 424 U. S., at 81. Assuming as we must that FECA §318 is valid to begin with, and that FECA §318 is valid as amended by BCRA §311’s amendments other than the inclusion of electioneering communications, the challenged inclusion of electioneering communications is not itself unconstitutional. We affirm the District Court’s decision upholding §311’s expansion of FECA §318(a) to include disclosure of disbursements for electioneering communications. BCRA §318 BCRA §318, which adds FECA §324, prohibits individuals “17 years old or younger” from making contributions to candidates and contributions or donations to political parties. 2 U. S. C. A. §441k (Supp. 2003). The McConnell and Echols plaintiffs challenge the provision; they argue that §318 violates the First Amendment rights of minors. We agree. Minors enjoy the protection of the First Amendment. See, e.g ., Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 , 511–513 (1969). Limitations on the amount that an individual may contribute to a candidate or political committee impinge on the protected freedoms of expression and association. See Buckley, supra, at 20–22. When the Government burdens the right to contribute, we apply heightened scrutiny. See ante , at 25–26 (joint opinion of Stevens and O’Connor, JJ.) (“[A] contribution limit involving even ‘significant interference’ with associational rights is nevertheless valid if it satisfies the ‘lesser demand’ of being ‘closely drawn’ to match a ‘sufficiently important interest.’ ” (quoting Federal Election Comm’n v. Beaumont, 539 U. S. ___, ___ (2003) (slip op., at 15)). We ask whether there is a “sufficiently important interest” and whether the statute is “closely drawn” to avoid unnecessary abridgment of First Amendment freedoms. Ante, at 25–26; Buckley , 424 U. S., at 25. The Government asserts that the provision protects against corruption by conduit; that is, donations by parents through their minor children to circumvent contribution limits applicable to the parents. But the Government offers scant evidence of this form of evasion.[ Footnote 3 ] Perhaps the Government’s slim evidence results from sufficient deterrence of such activities by §320 of FECA, which prohibits any person from “mak[ing] a contribution in the name of another person” or “knowingly accept[ing] a contribution made by one person in the name of another,” 2 U. S. C. §441f. Absent a more convincing case of the claimed evil, this interest is simply too attenuated for §318 to withstand heightened scrutiny. See Nixon v. Shrink Missouri Government PAC , 528 U. S. 377 , 391 (2000) (“The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised”).    Even assuming, arguendo , the Government advances an important interest, the provision is overinclusive. The States have adopted a variety of more tailored approaches— e.g., counting contributions by minors against the total permitted for a parent or family unit, imposing a lower cap on contributions by minors, and prohibiting contributions by very young children. Without deciding whether any of these alternatives is sufficiently tailored, we hold that the provision here sweeps too broadly. We therefore affirm the District Court’s decision striking down §318 as unconstitutional. BCRA §403(b) The National Right to Life plaintiffs argue that the District Court’s grant of intervention to the intervenor-defendants, pursuant to Federal Rule of Civil Procedure 24(a) and BCRA §403(b), must be reversed because the intervenor-defendants lack Article III standing. It is clear, however, that the Federal Election Commission (FEC) has standing, and therefore we need not address the standing of the intervenor-defendants, whose position here is identical to the FEC’s. See, e.g. , Clinton v. City of New York, 524 U. S. 417 , 431–432, n. 19 (1998); Bowsher v. Synar, 478 U. S. 714 , 721 (1986). Cf. Diamond v. Charles, 476 U. S. 54 , 68–69, n. 21 (1986) (reserving the question for another day).    For the foregoing reasons, we affirm the District Court’s judgment finding the plaintiffs’ challenges to BCRA §305, §307, and the millionaire provisions nonjusticiable, striking down as unconstitutional BCRA §318, and upholding BCRA §311. The judgment of the District Court is Affirmed. * Justice O’Connor, Justice Scalia, Justice Kennedy, and Justice Souter join this opinion in its entirety. Justice Stevens, Justice Ginsburg, and Justice Breyer join this opinion, except with respect to BCRA §305. Justice Thomas joins this opinion with respect to BCRA §§304, 305, 307, 316, 319, and 403(b). Footnote 1 To qualify for increased candidate contribution limits, the “opposition personal funds amount,” which depends on expenditures by a candidate and her self-financed opponent, must exceed a “threshold amount.” 2 U. S. C. A. §§441a(i)(1)(D), 441a–1(a)(2)(A) (Supp. 2003). Footnote 2 If the “opposition personal funds amount” is at least 10 times the “threshold amount” in a Senate race, or exceeds $350,000 in a House of Representatives race, the coordinated party expenditure limits do not apply. §§441a(i)(1)(C)(iii), 441a–1(a)(1)(C). Footnote 3 Although some examples were presented to the District Court, 251 F. Supp. 2d 176, 588–590 (2003) (Kollar-Kotelly, J.), none were offered to this Court. OPINION OF THE COURT MCCONNELL V. FEDERAL ELECTION COMM'N 540 U. S. ____ (2003) SUPREME COURT OF THE UNITED STATES NOS. 02-1674, 02-1675, 02-1676, 02-1702, 02-1727, 02-1733, 02-1734;02-1740, 02-1747, 02-1753, 02-1755, AND 02-1756 MITCH McCONNELL, UNITED STATES SENATOR, et al., APPELLANTS 02–1674 v . FEDERAL ELECTION COMMISSION, et al.; NATIONAL RIFLE ASSOCIATION, et al., APPELLANTS 02–1675 v . FEDERAL ELECTION COMMISSION, et al.; FEDERAL ELECTION COMMISSION, et al., APPELLANTS 02–1676 v . MITCH McCONNELL, UNITED STATES SENATOR, et al.; JOHN McCAIN, UNITED STATES SENATOR, et al., APPELLANTS 02–1702 v . MITCH McCONNELL, UNITED STATES SENATOR, et al.; REPUBLICAN NATIONAL COMMITTEE, et al., APPELLANTS 02–1727 v . FEDERAL ELECTION COMMISSION, et al.; NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al., APPELLANTS 02–1733 v . FEDERAL ELECTION COMMISSION, et al.; AMERICAN CIVIL LIBERTIES UNION, APPELLANTS 02–1734 v . FEDERAL ELECTION COMMISSION, et al.; VICTORIA JACKSON GRAY ADAMS, et al., APPELLANTS 02–1740 v . FEDERAL ELECTION COMMISSION, et al.; RON PAUL, UNITED STATES CONGRESSMAN, et al., APPELLANTS 02–1747 v . FEDERAL ELECTION COMMISSION, et al.; CALIFORNIA DEMOCRATIC PARTY, et al., APPELLANTS 02–1753 v . FEDERAL ELECTION COMMISSION, et al.; AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al., APPELLANTS 02–1755 v . FEDERAL ELECTION COMMISSION, et al.; CHAMBER OF COMMERCE OF THE UNITED STATES, et al., APPELLANTS 02–1756 v . FEDERAL ELECTION COMMISSION, et al. on appeals from the united states district court for the district of columbia [December 10, 2003]    Justice Stevens and Justice O’Connor delivered the opinion of the Court with respect to BCRA Titles I and II.*    The Bipartisan Campaign Reform Act of 2002 (BCRA), 116 Stat. 81, contains a series of amendments to the Federal Election Campaign Act of 1971 (FECA), 86 Stat. 11, as amended, 2 U. S. C. A. §431 et seq. (main ed. and Supp. 2003), the Communications Act of 1934, 48 Stat. 1088, as amended, 47 U. S. C. A. §315, and other portions of the United States Code, 18 U. S. C. A. §607 (Supp. 2003), 36 U. S. C. A. §§510–511, that are challenged in these cases.[ Footnote 1 ] In this opinion we discuss Titles I and II of BCRA. The opinion of the Court delivered by The Chief Justice, post, p. ___, discusses Titles III and IV, and the opinion of the Court delivered by Justice Breyer, post , p. ___, discusses Title V. I    More than a century ago the “sober-minded Elihu Root” advocated legislation that would prohibit political contributions by corporations in order to prevent “ ‘the great aggregations of wealth, from using their corporate funds, directly or indirectly,’ ” to elect legislators who would “ ‘vote for their protection and the advancement of their interests as against those of the public.’ ” United States v. Automobile Workers, 352 U. S. 567 , 571 (1957) (quoting E. Root, Addresses on Government and Citizenship 143 (R. Bacon & J. Scott eds. 1916)). In Root’s opinion, such legislation would “ ‘strik[e] at a constantly growing evil which has done more to shake the confidence of the plain people of small means of this country in our political institutions than any other practice which has ever obtained since the foundation of our Government.’ ” 352 U. S., at 571. The Congress of the United States has repeatedly enacted legislation endorsing Root’s judgment.    BCRA is the most recent federal enactment designed “to purge national politics of what was conceived to be the pernicious influence of ‘big money’ campaign contributions.” Id., at 572. As Justice Frankfurter explained in his opinion for the Court in Automobile Workers , the first such enactment responded to President Theodore Roosevelt’s call for legislation forbidding all contributions by corporations “ ‘to any political committee or for any political purpose.’ ” Ibid. (quoting 40 Cong. Rec. 96 (1906)). In his annual message to Congress in December 1905, President Roosevelt stated that “ ‘directors should not be permitted to use stockholders’ money’ ” for political purposes, and he recommended that “ ‘a prohibition’ ” on corporate political contributions “ ‘would be, as far as it went, an effective method of stopping the evils aimed at in corrupt practices acts.’ ” 352 U. S., at 352. The resulting 1907 statute completely banned corporate contributions of “money … in connection with” any federal election. Tillman Act, ch. 420, 34 Stat. 864. Congress soon amended the statute to require the public disclosure of certain contributions and expenditures and to place “maximum limits on the amounts that congressional candidates could spend in seeking nomination and election.” Automobile Workers, supra , at 575–576.    In 1925 Congress extended the prohibition of “contributions” “to include ‘anything of value,’ and made acceptance of a corporate contribution as well as the giving of such a contribution a crime.” Federal Election Comm’n v. National Right to Work Comm., 459 U. S. 197 , 209 (1982) (citing Federal Corrupt Practices Act, 1925, §§301, 313, 43 Stat. 1070, 1074). During the debates preceding that amendment, a leading Senator characterized “ ‘the apparent hold on political parties which business interests and certain organizations seek and sometimes obtain by reason of liberal campaign contributions’ ” as “ ‘one of the great political evils of the time.’ ” Automobile Workers, supra , at 576 (quoting 65 Cong. Rec. 9507–9508 (1924)). We upheld the amended statute against a constitutional challenge, observing that “[t]he power of Congress to protect the election of President and Vice President from corruption being clear, the choice of means to that end presents a question primarily addressed to the judgment of Congress.” Burroughs v. United States, 290 U. S. 534 , 547 (1934).    Congress’ historical concern with the “political potentialities of wealth” and their “untoward consequences for the democratic process,” Automobile Workers , supra , at 577–578, has long reached beyond corporate money. During and shortly after World War II, Congress reacted to the “enormous financial outlays” made by some unions in connection with national elections. 352 U. S., at 579. Congress first restricted union contributions in the Hatch Act, 18 U. S. C. §610,[ Footnote 2 ] and it later prohibited “union contributions in connection with federal elections … altogether.” National Right to Work, supra , at 209 (citing War Labor Disputes Act (Smith-Connally Anti-Strike Act), ch. 144, §9, 57 Stat. 167). Congress subsequently extended that prohibition to cover unions’ election-related expenditures as well as contributions, and it broadened the coverage of federal campaigns to include both primary and general elections. Labor Management Relations Act, 1947 (Taft-Hartley Act), 61 Stat. 136. See Automobile Workers, supra , at 578–584. During the consideration of those measures, legislators repeatedly voiced their concerns regarding the pernicious influence of large campaign contributions. See 93 Cong. Rec. 3428, 3522 (1947); H. R. Rep. No. 245, 80th Cong., 1st Sess. (1947); S. Rep. No. 1, 80th Cong., 1st Sess., pt. 2 (1947); H. R. Rep. No. 2093, 78th Cong., 2d Sess. (1945). As we noted in a unanimous opinion recalling this history, Congress’ “careful legislative adjustment of the federal election laws, in a ‘cautious advance, step by step,’ to account for the particular legal and economic attributes of corporations and labor organizations warrants considerable deference.” National Right to Work, 352 U. S., at 209 (citations omitted).    In early 1972 Congress continued its steady improvement of the national election laws by enacting FECA, 86 Stat. 3. As first enacted, that statute required disclosure of all contributions exceeding $100 and of expenditures by candidates and political committees that spent more than $1,000 per year. Id. , at 11–19. It also prohibited contributions made in the name of another person, id., at 19, and by Government contractors, id., at 10. The law ratified the earlier prohibition on the use of corporate and union general treasury funds for political contributions and expenditures, but it expressly permitted corporations and unions to establish and administer separate segregated funds (commonly known as political action committees, or PACs) for election-related contributions and expenditures. Id ., at 12–13.[ Footnote 3 ] See Pipefitters v. United States, 407 U. S. 385 , 409–410 (1972).    As the 1972 presidential elections made clear, however, FECA’s passage did not deter unseemly fundraising and campaign practices. Evidence of those practices persuaded Congress to enact the Federal Election Campaign Act Amendments of 1974, 88 Stat. 1263. Reviewing a constitutional challenge to the amendments, the Court of Appeals for the District of Columbia Circuit described them as “by far the most comprehensive … reform legislation [ever] passed by Congress concerning the election of the President, Vice-President and members of Congress.” Buckley v. Valeo , 519 F. 2d 821, 831 (1975) (en banc) (per curiam) .    The 1974 amendments closed the loophole that had allowed candidates to use an unlimited number of political committees for fundraising purposes and thereby to circumvent the limits on individual committees’ receipts and disbursements. They also limited individual political contributions to any single candidate to $1,000 per election, with an overall annual limitation of $25,000 by any contributor; imposed ceilings on spending by candidates and political parties for national conventions; required reporting and public disclosure of contributions and expenditures exceeding certain limits; and established the Federal Election Commission (FEC) to administer and enforce the legislation. Id ., at 831–834 . The Court of Appeals upheld the 1974 amendments almost in their entirety.[ Footnote 4 ] It concluded that the clear and compelling interest in preserving the integrity of the electoral process provided a sufficient basis for sustaining the substantive provisions of the Act. Id. , at 841. The court’s opinion relied heavily on findings that large contributions facilitated access to public officials[ Footnote 5 ] and described methods of evading the contribution limits that had enabled contributors of massive sums to avoid disclosure. Id. , at 837–841.[ Footnote 6 ]    The Court of Appeals upheld the provisions establishing contribution and expenditure limitations on the theory that they should be viewed as regulations of conduct rather than speech. Id. , at 840–841 (citing United States v. O’Brien, 391 U. S. 367 , 376–377 (1968)). This Court, however, concluded that each set of limitations raised serious—though different—concerns under the First Amendment. Buckley v. Valeo , 424 U. S. 1 , 14–23 (1976) (per curiam) . We treated the limitations on candidate and individual expenditures as direct restraints on speech, but we observed that the contribution limitations, in contrast, imposed only “a marginal restriction upon the contributor’s ability to engage in free communication.” Id. , at 20–21. Considering the “deeply disturbing examples” of corruption related to candidate contributions discussed in the Court of Appeals’ opinion, we determined that limiting contributions served an interest in protecting “the integrity of our system of representative democracy.” Id. , at 26–27. In the end, the Act’s primary purpose—“to limit the actuality and appearance of corruption resulting from large individual financial contributions”—provided “a constitutionally sufficient justification for the $1,000 contribution limitation.” Id., at 26.    We prefaced our analysis of the $1,000 limitation on expenditures by observing that it broadly encompassed every expenditure “ ‘relative to a clearly identified candidate.’ ” Id. , at 39 (quoting 18 U. S. C. §608(e)(1) (1970 ed., Supp. IV)). To avoid vagueness concerns we construed that phrase to apply only to “communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office.” 424 U. S., at 42– 44. We concluded, however, that as so narrowed, the provision would not provide effective protection against the dangers of quid pro quo arrangements, because persons and groups could eschew expenditures that expressly advocated the election or defeat of a clearly identified candidate while remaining “free to spend as much as they want to promote the candidate and his views.” Id. , at 45. We also rejected the argument that the expenditure limits were necessary to prevent attempts to circumvent the Act’s contribution limits, because FECA already treated expenditures controlled by or coordinated with the candidate as contributions, and we were not persuaded that independent expenditures posed the same risk of real or apparent corruption as coordinated expenditures. Id. , at 46–47. We therefore held that Congress’ interest in preventing real or apparent corruption was inadequate to justify the heavy burdens on the freedoms of expression and association that the expenditure limits imposed.    We upheld all of the disclosure and reporting requirements in the Act that were challenged on appeal to this Court after finding that they vindicated three important interests: providing the electorate with relevant information about the candidates and their supporters; deterring actual corruption and discouraging the use of money for improper purposes; and facilitating enforcement of the prohibitions in the Act. Id. , at 66–68. In order to avoid an overbreadth problem, however, we placed the same narrowing construction on the term “expenditure” in the disclosure context that we had adopted in the context of the expenditure limitations. Thus, we construed the reporting requirement for persons making expenditures of more than $100 in a year “to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate.” Id. , at 80 (footnote omitted).    Our opinion in Buckley addressed issues that primarily related to contributions and expenditures by individuals, since none of the parties challenged the prohibition on contributions by corporations and labor unions. We noted, however, that the statute authorized the use of corporate and union resources to form and administer segregated funds that could be used for political purposes. Id. , at 28–29, n. 31; see also n. 3, supra .    Three important developments in the years after our decision in Buckley persuaded Congress that further legislation was necessary to regulate the role that corporations, unions, and wealthy contributors play in the electoral process. As a preface to our discussion of the specific provisions of BCRA, we comment briefly on the increased importance of “soft money,” the proliferation of “issue ads,” and the disturbing findings of a Senate investigation into campaign practices related to the 1996 federal elections. Soft Money Under FECA, “contributions” must be made with funds that are subject to the Act’s disclosure requirements and source and amount limitations. Such funds are known as “federal” or “hard” money. FECA defines the term “contribution,” however, to include only the gift or advance of anything of value “made by any person for the purpose of influencing any election for Federal office.” 2 U. S. C. §431(8)(A)(i) (emphasis added). Donations made solely for the purpose of influencing state or local elections are therefore unaffected by FECA’s requirements and prohibitions. As a result, prior to the enactment of BCRA, federal law permitted corporations and unions, as well as individuals who had already made the maximum permissible contributions to federal candidates, to contribute “nonfederal money”—also known as “soft money”—to political parties for activities intended to influence state or local elections.    Shortly after Buckley was decided, questions arose concerning the treatment of contributions intended to influence both federal and state elections. Although a literal reading of FECA’s definition of “contribution” would have required such activities to be funded with hard money, the FEC ruled that political parties could fund mixed-purpose activities—including get-out-the-vote drives and generic party advertising—in part with soft money.[ Footnote 7 ] In 1995 the FEC concluded that the parties could also use soft money to defray the costs of “legislative advocacy media advertisements,” even if the ads mentioned the name of a federal candidate, so long as they did not expressly advocate the candidate’s election or defeat. FEC Advisory Op. 1995–25.    As the permissible uses of soft money expanded, the amount of soft money raised and spent by the national political parties increased exponentially. Of the two major parties’ total spending, soft money accounted for 5% ($21.6 million) in 1984, 11% ($45 million) in 1988, 16% ($80 million) in 1992, 30% ($272 million) in 1996, and 42% ($498 million) in 2000.[ Footnote 8 ] The national parties transferred large amounts of their soft money to the state parties, which were allowed to use a larger percentage of soft money to finance mixed-purpose activities under FEC rules.[ Footnote 9 ] In the year 2000, for example, the national parties diverted $280 million—more than half of their soft money—to state parties.    Many contributions of soft money were dramatically larger than the contributions of hard money permitted by FECA. For example, in 1996 the top five corporate soft-money donors gave, in total, more than $9 million in nonfederal funds to the two national party committees.[ Footnote 10 ] In the most recent election cycle the political parties raised almost $300 million—60% of their total soft-money fundraising—from just 800 donors, each of which contributed a minimum of $120,000.[ Footnote 11 ] Moreover, the largest corporate donors often made substantial contributions to both parties.[ Footnote 12 ] Such practices corroborate evidence indicating that many corporate contributions were motivated by a desire for access to candidates and a fear of being placed at a disadvantage in the legislative process relative to other contributors, rather than by ideological support for the candidates and parties.[ Footnote 13 ]    Not only were such soft-money contributions often designed to gain access to federal candidates, but they were in many cases solicited by the candidates themselves. Candidates often directed potential donors to party committees and tax-exempt organizations that could legally accept soft money. For example, a federal legislator running for reelection solicited soft money from a supporter by advising him that even though he had already “contributed the legal maximum” to the campaign committee, he could still make an additional contribution to a joint program supporting federal, state, and local candidates of his party.[ Footnote 14 ] Such solicitations were not uncommon.[ Footnote 15 ]    The solicitation, transfer, and use of soft money thus enabled parties and candidates to circumvent FECA’s limitations on the source and amount of contributions in connection with federal elections. Issue Advertising In Buckley we construed FECA’s disclosure and reporting requirements, as well as its expenditure limitations, “to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate.” 424 U. S., at 80 (footnote omitted). As a result of that strict reading of the statute, the use or omission of “magic words” such as “Elect John Smith” or “Vote Against Jane Doe” marked a bright statutory line separating “express advocacy” from “issue advocacy.” See id. , at 44, n. 52. Express advocacy was subject to FECA’s limitations and could be financed only using hard money. The political parties, in other words, could not use soft money to sponsor ads that used any magic words, and corporations and unions could not fund such ads out of their general treasuries. So-called issue ads, on the other hand, not only could be financed with soft money, but could be aired without disclosing the identity of, or any other information about, their sponsors.    While the distinction between “issue” and express advocacy seemed neat in theory, the two categories of advertisements proved functionally identical in important respects. Both were used to advocate the election or defeat of clearly identified federal candidates, even though the so-called issue ads eschewed the use of magic words.[ Footnote 16 ] Little difference existed, for example, between an ad that urged viewers to “vote against Jane Doe” and one that condemned Jane Doe’s record on a particular issue before exhorting viewers to “call Jane Doe and tell her what you think.”[ Footnote 17 ] Indeed, campaign professionals testified that the most effective campaign ads, like the most effective commercials for products such as Coca-Cola, should, and did, avoid the use of the magic words.[ Footnote 18 ] Moreover, the conclusion that such ads were specifically intended to affect election results was confirmed by the fact that almost all of them aired in the 60 days immediately preceding a federal election.[ Footnote 19 ] Corporations and unions spent hundreds of millions of dollars of their general funds to pay for these ads,[ Footnote 20 ] and those expenditures, like soft-money donations to the political parties, were unregulated under FECA. Indeed, the ads were attractive to organizations and candidates precisely because they were beyond FECA’s reach, enabling candidates and their parties to work closely with friendly interest groups to sponsor so-called issue ads when the candidates themselves were running out of money.[ Footnote 21 ]    Because FECA’s disclosure requirements did not apply to so-called issue ads, sponsors of such ads often used misleading names to conceal their identity. “Citizens for Better Medicare,” for instance, was not a grassroots organization of citizens, as its name might suggest, but was instead a platform for an association of drug manufacturers.[ Footnote 22 ] And “Republicans for Clean Air,” which ran ads in the 2000 Republican Presidential primary, was actually an organization consisting of just two individuals—brothers who together spent $25 million on ads supporting their favored candidate.[ Footnote 23 ]    While the public may not have been fully informed about the sponsorship of so-called issue ads, the record indicates that candidates and officeholders often were. A former Senator confirmed that candidates and officials knew who their friends were and “sometimes suggest[ed] that corporations or individuals make donations to interest groups that run ‘issue ads.’ ”[ Footnote 24 ] As with soft-money contributions, political parties and candidates used the availability of so-called issue ads to circumvent FECA’s limitations, asking donors who contributed their permitted quota of hard money to give money to nonprofit corporations to spend on “issue” advocacy.[ Footnote 25 ] Senate Committee Investigation In 1998 the Senate Committee on Governmental Affairs issued a six-volume report summarizing the results of an extensive investigation into the campaign practices in the 1996 federal elections. The report gave particular attention to the effect of soft money on the American political system, including elected officials’ practice of granting special access in return for political contributions. The committee’s principal findings relating to Democratic Party fundraising were set forth in the majority’s report, while the minority report primarily described Republican practices. The two reports reached consensus, however, on certain central propositions. They agreed that the “soft money loophole” had led to a “meltdown” of the campaign finance system that had been intended “to keep corporate, union and large individual contributions from influencing the electoral process.”[ Footnote 26 ] One Senator stated that “the hearings provided overwhelming evi- dence that the twin loopholes of soft money and bogus issue advertising have virtually destroyed our campaign finance laws, leaving us with little more than a pile of legal rubble.”[ Footnote 27 ] The report was critical of both parties’ methods of raising soft money, as well as their use of those funds. It concluded that both parties promised and provided special access to candidates and senior Government officials in exchange for large soft-money contributions. The Committee majority described the White House coffees that rewarded major donors with access to President Clinton,[ Footnote 28 ] and the courtesies extended to an international businessman named Roger Tamraz, who candidly acknowledged that his donations of about $300,000 to the DNC and to state parties were motivated by his interest in gaining the Federal Government’s support for an oil-line project in the Caucasus.[ Footnote 29 ] The minority described the promotional materials used by the RNC’s two principal donor programs, “Team 100” and the “Republican Eagles,” which promised “special access to high-ranking Republican elected officials, including governors, senators, and representatives.”[ Footnote 30 ] One fundraising letter recited that the chairman of the RNC had personally escorted a donor on appointments that “ ‘turned out to be very significant in legislation affecting public utility holding companies’ ” and made the donor “ ‘a hero in his industry.’ ”[ Footnote 31 ]    In 1996 both parties began to use large amounts of soft money to pay for issue advertising designed to influence federal elections. The Committee found such ads highly problematic for two reasons. Since they accomplished the same purposes as express advocacy (which could lawfully be funded only with hard money), the ads enabled unions, corporations, and wealthy contributors to circumvent protections that FECA was intended to provide. Moreover, though ostensibly independent of the candidates, the ads were often actually coordinated with, and controlled by, the campaigns.[ Footnote 32 ] The ads thus provided a means for evading FECA’s candidate contribution limits.    The report also emphasized the role of state and local parties. While the FEC’s allocation regime permitted national parties to use soft money to pay for up to 40% of the costs of both generic voter activities and issue advertising, they allowed state and local parties to use larger percentages of soft money for those purposes.[ Footnote 33 ] For that reason, national parties often made substantial transfers of soft money to “state and local political parties for ‘generic voter activities’ that in fact ultimately benefit[ed] federal candidates because the funds for all practical purposes remain[ed] under the control of the national committees.” The report concluded that “[t]he use of such soft money thus allow[ed] more corporate, union treasury, and large contributions from wealthy individuals into the system.”[ Footnote 34 ]    The report discussed potential reforms, including a ban on soft money at the national and state party levels and restrictions on sham issue advocacy by nonparty groups.[ Footnote 35 ] The majority expressed the view that a ban on the raising of soft money by national party committees would effectively address the use of union and corporate general treasury funds in the federal political process only if it required that candidate-specific ads be funded with hard money.[ Footnote 36 ] The minority similarly recommended the elimination of soft-money contributions to political parties from individuals, corporations, and unions, as well as “reforms addressing candidate advertisements masquerading as issue ads.”[ Footnote 37 ] II    In BCRA, Congress enacted many of the committee’s proposed reforms. BCRA’s central provisions are designed to address Congress’ concerns about the increasing use of soft money and issue advertising to influence federal elections. Title I regulates the use of soft money by political parties, officeholders, and candidates. Title II primarily prohibits corporations and labor unions from using general treasury funds for communications that are intended to, or have the effect of, influencing the outcome of federal elections.    Section 403 of BCRA provides special rules for actions challenging the constitutionality of any of the Act’s provisions. 2 U. S. C. A. §437h note (Supp. 2003). Eleven such actions were filed promptly after the statute went into effect in March 2002. As required by §403, those actions were filed in the District Court for the District of Columbia and heard by a three-judge court. Section 403 directed the District Court to advance the cases on the docket and to expedite their disposition “to the greatest possible extent.” The court received a voluminous record compiled by the parties and ultimately delivered a decision embodied in a two-judge per curiam opinion and three separate, lengthy opinions, each of which contained extensive commentary on the facts and a careful analysis of the legal issues. 251 F. Supp. 2d 176 (2003). The three judges reached unanimity on certain issues but differed on many. Their judgment, entered on May 1, 2003, held some parts of BCRA unconstitutional and upheld others. 251 F. Supp. 2d 948.    As authorized by §403, all of the losing parties filed direct appeals to this Court within 10 days. 2 U. S. C. A. §437h note. On June 5, 2003, we noted probable jurisdiction and ordered the parties to comply with an expedited briefing schedule and present their oral arguments at a special hearing on September 8, 2003. 539 U. S. ___. To simplify the presentation, we directed the parties challenging provisions of BCRA to proceed first on all issues, whether or not they prevailed on any issue in the District Court. Ibid . Mindful of §403’s instruction that we expedite our disposition of these appeals to the greatest extent possible, we also consider each of the issues in order. Accordingly, we first turn our attention to Title I of BCRA. III    Title I is Congress’ effort to plug the soft-money loophole. The cornerstone of Title I is new FECA §323(a), which prohibits national party committees and their agents from soliciting, receiving, directing, or spending any soft money. 2 U. S. C. A. §441i(a) (Supp. 2003).[ Footnote 38 ] In short, §323(a) takes national parties out of the soft-money business.    The remaining provisions of new FECA §323 largely reinforce the restrictions in §323(a). New FECA §323(b) prevents the wholesale shift of soft-money influence from national to state party committees by prohibiting state and local party committees from using such funds for activities that affect federal elections. 2 U. S. C. A. §441i(b). These “Federal election activit[ies],” defined in new FECA §301(20)(A), are almost identical to the mixed-purpose activities that have long been regulated under the FEC’s pre-BCRA allocation regime. 2 U. S. C. A. §431(20)(A). New FECA §323(d) reinforces these soft-money restrictions by prohibiting political parties from soliciting and donating funds to tax-exempt organizations that engage in electioneering activities. 2 U. S. C. A. §441i(d). New FECA §323(e) restricts federal candidates and officeholders from receiving, spending, or soliciting soft money in connection with federal elections and limits their ability to do so in connection with state and local elections. 2 U. S. C. A. §441i(e). Finally, new FECA §323(f) prevents circumvention of the restrictions on national, state, and local party committees by prohibiting state and local candidates from raising and spending soft money to fund advertisements and other public communications that promote or attack federal candidates. 2 U. S. C. A. §441i(f).    Plaintiffs mount a facial First Amendment challenge to new FECA §323, as well as challenges based on the Elections Clause, U. S. Const., Art. I, §4, principles of federalism, and the equal protection component of the Due Process Clause. We address these challenges in turn. A    In Buckley and subsequent cases, we have subjected restrictions on campaign expenditures to closer scrutiny than limits on campaign contributions. See, e.g., Federal Election Comm’n v. Beaumont, 539 U. S. ___, ___ (2003) (slip op., at 14); see also Nixon v. Shrink Missouri Government PAC, 528 U. S. 377 , 387–388 (2000); Buckley , 424 U. S., at 19. In these cases we have recognized that contribution limits, unlike limits on expenditures, “entai[l] only a marginal restriction upon the contributor’s ability to engage in free communication.” Id., at 20; see also, e.g., Beaumont , supra, at ___ (slip op., at 14); Shrink Missouri , supra, at 386–388. In Buckley we said that: “A contribution serves as a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support. The quantity of communication by the contributor does not increase perceptibly with the size of the contribution, since the expression rests solely on the undifferentiated, symbolic act of contributing. At most, the size of the contribution provides a very rough index of the intensity of the contributor’s support for the candidate. A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor’s freedom to discuss candidates and issues. While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor.” 424 U. S., at 21 (footnote omitted). Because the communicative value of large contributions inheres mainly in their ability to facilitate the speech of their recipients, we have said that contribution limits impose serious burdens on free speech only if they are so low as to “preven[t] candidates and political committees from amassing the resources necessary for effective advocacy.” Ibid. We have recognized that contribution limits may bear “more heavily on the associational right than on freedom to speak,” Shrink Missouri , supra , at 388, since contributions serve “to affiliate a person with a candidate” and “enabl[e] like-minded persons to pool their resources,” Buckley , 424 U. S., at 22. Unlike expenditure limits, however, which “preclud[e] most associations from effectively amplifying the voice of their adherents,” contribution limits both “leave the contributor free to become a member of any political association and to assist personally in the association’s efforts on behalf of candidates,” and allow associations “to aggregate large sums of money to promote effective advocacy.” Ibid. The “overall effect” of dollar limits on contributions is “merely to require candidates and political committees to raise funds from a greater number of persons.” Id., at 21–22. Thus, a contribution limit involving even “ ‘significant interference’ ” with associational rights is nevertheless valid if it satisfies the “lesser demand” of being “ ‘closely drawn’ ” to match a “ ‘sufficiently important interest.’ ” Beaumont , supra , at ___ (slip op., at 15) (quoting Shrink Missouri , supra , at 387–388).[ Footnote 39 ]    Our treatment of contribution restrictions reflects more than the limited burdens they impose on First Amendment freedoms. It also reflects the importance of the interests that underlie contribution limits—interests in preventing “both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption.” National Right to Work, 459 U. S., at 208; see also Federal Election Comm’n v. Colorado Republican Federal Campaign Comm., 533 U. S. 431 , 440–441 (2001) (Colorado II) . We have said that these interests directly implicate “ ‘the integrity of our electoral process, and, not less, the responsibility of the individual citizen for the successful functioning of that process.’ ” National Right to Work, supra , at 208 (quoting Automobile Workers, 352 U. S., at 570). Because the electoral process is the very “means through which a free society democratically translates political speech into concrete governmental action,” Shrink Missouri , 528 U. S., at 401 (Breyer, J., concurring), contribution limits, like other measures aimed at protecting the integrity of the process, tangibly benefit public participation in political debate. For that reason, when reviewing Congress’ decision to enact contribution limits, “there is no place for a strong presumption against constitutionality, of the sort often thought to accompany the words ‘strict scrutiny.’ ” Id. , at 400 (Breyer, J., concurring). The less rigorous standard of review we have applied to contribution limits ( Buckley ’s “closely drawn” scrutiny) shows proper deference to Congress’ ability to weigh competing constitutional interests in an area in which it enjoys particular expertise. It also provides Congress with sufficient room to anticipate and respond to concerns about circumvention of regulations designed to protect the integrity of the political process.    Our application of this less rigorous degree of scrutiny has given rise to significant criticism in the past from our dissenting colleagues. See, e.g. , Shrink Missouri , 528 U. S., at 405–410 (Kennedy, J., dissenting); id. , at 410–420 (Thomas, J., dissenting); Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604 , 635–644 (1996) (Colorado I) (Thomas, J., dissenting). We have rejected such criticism in previous cases for the reasons identified above. We are also mindful of the fact that in its lengthy deliberations leading to the enactment of BCRA, Congress properly relied on the recognition of its authority contained in Buckley and its progeny. Considerations of stare decisis , buttressed by the respect that the Legislative and Judicial Branches owe to one another, provide additional powerful reasons for adhering to the analysis of contribution limits that the Court has consistently followed since Buckley was decided. See Hilton v. South Carolina Public Railways Comm’n, 502 U. S. 197 , 202 (1991).[ Footnote 40 ]    Like the contribution limits we upheld in Buckley , §323’s restrictions have only a marginal impact on the ability of contributors, candidates, officeholders, and parties to engage in effective political speech. Beaumont , 539 U. S., at ___ (slip op., at 14). Complex as its provisions may be, §323, in the main, does little more than regulate the ability of wealthy individuals, corporations, and unions to contribute large sums of money to influence federal elections, federal candidates, and federal officeholders.    Plaintiffs contend that we must apply strict scrutiny to §323 because many of its provisions restrict not only contributions but also the spending and solicitation of funds raised outside of FECA’s contribution limits. But for purposes of determining the level of scrutiny, it is irrelevant that Congress chose in §323 to regulate contributions on the demand rather than the supply side. See, e.g. , National Right to Work, supra, at 206–211 (upholding a provision restricting PACs’ ability to solicit funds). The relevant inquiry is whether the mechanism adopted to implement the contribution limit, or to prevent circumvention of that limit, burdens speech in a way that a direct restriction on the contribution itself would not. That is not the case here.    For example, while §323(a) prohibits national parties from receiving or spending nonfederal money, and §323(b) prohibits state party committees from spending nonfederal money on federal election activities, neither provision in any way limits the total amount of money parties can spend. 2 U. S. C. A. §§441i(a), (b) (Supp. 2003). Rather, they simply limit the source and individual amount of donations. That they do so by prohibiting the spending of soft money does not render them expenditure limitations.[ Footnote 41 ]    Similarly, the solicitation provisions of §323(a) and §323(e), which restrict the ability of national party committees, federal candidates, and federal officeholders to solicit nonfederal funds, leave open ample opportunities for soliciting federal funds on behalf of entities subject to FECA’s source and amount restrictions. Even §323(d), which on its face enacts a blanket ban on party solicitations of funds to certain tax-exempt organizations, nevertheless allows parties to solicit funds to the organizations’ federal PACs. 2 U. S. C. A. §441i(d). As for those organizations that cannot or do not administer PACs, parties remain free to donate federal funds directly to such organizations, and may solicit funds expressly for that purpose. See infra , at 72–73 (construing §323(d)’s restriction on donations by parties to apply only to donations from a party committee’s nonfederal or soft-money account). And as with §323(a), §323(d) places no limits on other means of endorsing tax-exempt organizations or any restrictions on solicitations by party officers acting in their individual capacities. 2 U. S. C. A. §§441i(a), (d).    Section 323 thus shows “due regard for the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views.” Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 , 632 (1980). The fact that party committees and federal candidates and officeholders must now ask only for limited dollar amounts or request that a corporation or union contribute money through its PAC in no way alters or impairs the political message “intertwined” with the solicitation. Cf. Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781 , 795 (1988) (treating solicitation restriction that required fundraisers to disclose particular information as a content-based regulation subject to strict scrutiny because it “necessarily alter[ed] the content of the speech”). And rather than chill such solicitations, as was the case in Schaumburg , the restriction here tends to increase the dissemination of information by forcing parties, candidates, and officeholders to solicit from a wider array of potential donors. As with direct limits on contributions, therefore, §323’s spending and solicitation restrictions have only a marginal impact on political speech.[ Footnote 42 ]    Finally, plaintiffs contend that the type of associational burdens that §323 imposes are fundamentally different from the burdens that accompanied Buckley ’s contribution limits, and merit the type of strict scrutiny we have applied to attempts to regulate the internal processes of political parties. E.g. , California Democratic Party v. Jones, 530 U. S. 567 , 573–574 (2000). In making this argument, plaintiffs greatly exaggerate the effect of §323, contending that it precludes any collaboration among national, state, and local committees of the same party in fundraising and electioneering activities. We do not read the provisions in that way. See infra , at 51–52. Section 323 merely subjects a greater percentage of contributions to parties and candidates to FECA’s source and amount limitations. Buckley has already acknowledged that such limitations “leave the contributor free to become a member of any political association and to assist personally in the association’s efforts on behalf of candidates.” 424 U. S., at 22. The modest impact that §323 has on the ability of committees within a party to associate with each other does not independently occasion strict scrutiny. None of this is to suggest that the alleged associational burdens imposed on parties by §323 have no place in the First Amendment analysis; it is only that we account for them in the application, rather than the choice, of the appropriate level of scrutiny.[ Footnote 43 ]    With these principles in mind, we apply the less rigorous scrutiny applicable to contribution limits to evaluate the constitutionality of new FECA §323. Because the five challenged provisions of §323 implicate different First Amendment concerns, we discuss them separately. We are mindful, however, that Congress enacted §323 as an integrated whole to vindicate the Government’s important interest in preventing corruption and the appearance of corruption. New FECA §323(a)’s Restrictions on National Party Committees The core of Title I is new FECA §323(a), which provides that “national committee[s] of a political party … may not solicit, receive, or direct to another person a contribution, donation, or transfer of funds or any other thing of value, or spend any funds, that are not subject to the limitations, prohibitions, and reporting requirements of this Act.” 2 U. S. C. A. §441i(a)(1) (Supp. 2003). The prohibition extends to “any officer or agent acting on behalf of such a national committee, and any entity that is directly or indirectly established, financed, or maintained, or controlled by such a national committee.” §441(a)(2). The main goal of §323(a) is modest. In large part, it simply effects a return to the scheme that was approved in Buckley and that was subverted by the creation of the FEC’s allocation regime, which permitted the political parties to fund federal electioneering efforts with a combination of hard and soft money. See supra , at 11–13, and n. 7. Under that allocation regime, national parties were able to use vast amounts of soft money in their efforts to elect federal candidates. Consequently, as long as they directed the money to the political parties, donors could contribute large amounts of soft money for use in activities designed to influence federal elections.[ Footnote 44 ] New §323(a) is designed to put a stop to that practice. 1. Governmental Interests Underlying New FECA     §323(a) The Government defends §323(a)’s ban on national parties’ involvement with soft money as necessary to prevent the actual and apparent corruption of federal candidates and officeholders. Our cases have made clear that the prevention of corruption or its appearance constitutes a sufficiently important interest to justify political contribution limits. We have not limited that interest to the elimination of cash-for-votes exchanges. In Buckley , we expressly rejected the argument that antibribery laws provided a less restrictive alternative to FECA’s contribution limits, noting that such laws “deal[t] with only the most blatant and specific attempts of those with money to influence government action.” 424 U. S., at 28. Thus, “[i]n speaking of ‘improper influence’ and ‘opportunities for abuse’ in addition to ‘ quid pro quo arrangements,’ we [have] recognized a concern not confined to bribery of public officials, but extending to the broader threat from politicians too compliant with the wishes of large contributors.” Shrink Missouri , 528 U. S., at 389; see also Colorado II , 533 U. S., at 441 (acknowledging that corruption extends beyond explicit cash-for-votes agreements to “undue influence on an officeholder’s judgment”).    Of “almost equal” importance has been the Government’s interest in combating the appearance or perception of corruption engendered by large campaign contributions. Buckley , supra , at 27; see also Shrink Missouri, supra, at 390; Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480 , 496–497 (1985). Take away Congress’ authority to regulate the appearance of undue influence and “the cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.” Shrink Missouri , 528 U. S., at 390; see also id ., at 401 (Breyer, J., concurring). And because the First Amendment does not require Congress to ignore the fact that “candidates, donors, and parties test the limits of the current law,” Colorado II , 533 U. S., at 457, these interests have been sufficient to justify not only contribution limits themselves, but laws preventing the circumvention of such limits, id ., at 456 (“[A]ll Members of the Court agree that circumvention is a valid theory of corruption”).    “The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty or the plausibility of the justification raised.” Shrink Missouri, supra, at 391. The idea that large contributions to a national party can corrupt or, at the very least, create the appearance of corruption of federal candidates and officeholders is neither novel nor implausible. For nearly 30 years, FECA has placed strict dollar limits and source restrictions on contributions that individuals and other entities can give to national, state, and local party committees for the purpose of influencing a federal election. The premise behind these restrictions has been, and continues to be, that contributions to a federal candidate’s party in aid of that candidate’s campaign threaten to create—no less than would a direct contribution to the candidate—a sense of obligation. See Buckley , supra, at 38 (upholding FECA’s $25,000 limit on aggregate yearly contributions to a candidate, political committee, and political party committee as a “quite modest restraint … to prevent evasion of the $1,000 contribution limitation” by, among other things, “huge contributions to the candidate’s political party”). This is particularly true of contributions to national parties, with which federal candidates and officeholders enjoy a special relationship and unity of interest. This close affiliation has placed national parties in a unique position, “whether they like it or not,” to serve as “agents for spending on behalf of those who seek to produce obligated officeholders.” Colorado II , supra, at 452; see also Shrink Missouri , supra, at 406 (Kennedy, J., dissenting) (“[Respondent] asks us to evaluate his speech claim in the context of a system which favors candidates and officeholders whose campaigns are supported by soft money, usually funneled through political parties ” (emphasis added)). As discussed below, rather than resist that role, the national parties have actively embraced it.    The question for present purposes is whether large soft-money contributions to national party committees have a corrupting influence or give rise to the appearance of corruption. Both common sense and the ample record in these cases confirm Congress’ belief that they do. As set forth above, supra , at 11–13, and n. 7, the FEC’s allocation regime has invited widespread circumvention of FECA’s limits on contributions to parties for the purpose of influencing federal elections. Under this system, corporate, union, and wealthy individual donors have been free to contribute substantial sums of soft money to the national parties, which the parties can spend for the specific purpose of influencing a particular candidate’s federal election. It is not only plausible, but likely, that candidates would feel grateful for such donations and that donors would seek to exploit that gratitude.[ Footnote 45 ]    The evidence in the record shows that candidates and donors alike have in fact exploited the soft-money loophole, the former to increase their prospects of election and the latter to create debt on the part of officeholders, with the national parties serving as willing intermediaries. Thus, despite FECA’s hard-money limits on direct contributions to candidates, federal officeholders have commonly asked donors to make soft-money donations to national and state committees “solely in order to assist federal campaigns,” including the officeholder’s own. 251 F. Supp. 2d, at 472 (Kollar-Kotelly, J.) (quoting declaration of Wade Randlett, CEO, Dashboard Technology ¶ ;¶ ;6–9 (hereinafter Randlett Decl.), App. 713–714); see also 251 F. Supp. 2d, at 471–473, 478–479 (Kollar-Kotelly, J.); id ., at 842–843 (Leon, J.). Parties kept tallies of the amounts of soft money raised by each officeholder, and “the amount of money a Member of Congress raise[d] for the national political committees often affect[ed] the amount the committees g[a]ve to assist the Member’s campaign.” Id ., at 474–475 (Kollar-Kotelly, J.). Donors often asked that their contributions be credited to particular candidates, and the parties obliged, irrespective of whether the funds were hard or soft. Id ., at 477–478 (Kollar-Kotelly, J.); id ., at 824, 847 (Leon, J.). National party committees often teamed with individual candidates’ campaign committees to create joint fundraising committees, which enabled the candidates to take advantage of the party’s higher contribution limits while still allowing donors to give to their preferred candidate. Id ., at 478 (Kollar-Kotelly, J.); id ., at 847–848 (Leon, J.); see also App. 1286 (Krasno & Sorauf Expert Report (characterizing the joint fundraising committee as one “in which Senate candidates in effect rais[e] soft money for use in their own races”)). Even when not participating directly in the fundraising, federal officeholders were well aware of the identities of the donors: National party committees would distribute lists of potential or actual donors, or donors themselves would report their generosity to officeholders. 251 F. Supp. 2d, at 487–488 (Kollar-Kotelly, J.) (“[F]or a Member not to know the identities of these donors, he or she must actively avoid such knowledge, as it is provided by the national political parties and the donors themselves”); id ., at 853–855 (Leon, J.).    For their part, lobbyists, CEOs, and wealthy individuals alike all have candidly admitted donating substantial sums of soft money to national committees not on ideological grounds, but for the express purpose of securing influence over federal officials. For example, a former lobbyist and partner at a lobbying firm in Washington, D. C., stated in his declaration: “ ‘You are doing a favor for somebody by making a large [soft-money] donation and they appreciate it. Ordinarily, people feel inclined to reciprocate favors. Do a bigger favor for someone—that is, write a larger check—and they feel even more compelled to reciprocate. In my experience, overt words are rarely exchanged about contributions, but people do have understandings.’ ” Id., at 493 (Kollar-Kotelly, J.) (quoting declaration of Robert Rozen, partner, Ernst & Young ¶ ;14; see 8–R Defs. Exhs., Tab 33).[ Footnote 46 ] Particularly telling is the fact that, in 1996 and 2000, more than half of the top 50 soft-money donors gave substantial sums to both major national parties, leaving room for no other conclusion but that these donors were seeking influence, or avoiding retaliation, rather than promoting any particular ideology. See, e.g., 251 F. Supp. 2d, at 508–510 (Kollar-Kotelly, J.) (citing Mann Expert Report Tbls. 5–6); 251 F. Supp. 2d, at 509 (“ ‘Giving soft money to both parties, the Republicans and the Democrats, makes no sense at all unless the donor feels that he or she is buying access.’ ” (quoting declaration of former Sen. Dale Bumpers ¶ ;15, App. 175)).[ Footnote 47 ]    The evidence from the federal officeholders’ perspective is similar. For example, one former Senator described the influence purchased by nonfederal donations as follows: “ ‘Too often, Members’ first thought is not what is right or what they believe, but how it will affect fundraising. Who, after all, can seriously contend that a $100,000 donation does not alter the way one thinks about—and quite possibly votes on—an issue? … When you don’t pay the piper that finances your campaigns, you will never get any more money from that piper. Since money is the mother’s milk of politics, you never want to be in that situation.’ ” 251 F. Supp. 2d, at 481 (Kollar-Kotelly, J.) (quoting declaration of former Sen. Alan Simpson ¶ ;10 (hereinafter Simpson Decl.), App. 811); 251 F. Supp. 2d, at 851 (Leon, J.) (same). See also id ., at 489 (Kollar-Kotelly, J.) (“ ‘The majority of those who contribute to political parties do so for business reasons, to gain access to influential Members of Congress and to get to know new Members.” (quoting Hickmott Decl., Exh. A, ¶ ;46)). By bringing soft-money donors and federal candidates and officeholders together, “[p]arties are thus necessarily the instruments of some contributors whose object is not to support the party’s message or to elect party candidates across the board, but rather to support a specific candidate for the sake of a position on one narrow issue, or even to support any candidate who will be obliged to the contributors.” Colorado II , 533 U. S., at 451–452.    Plaintiffs argue that without concrete evidence of an instance in which a federal officeholder has actually switched a vote (or, presumably, evidence of a specific instance where the public believes a vote was switched), Congress has not shown that there exists real or apparent corruption. But the record is to the contrary. The evidence connects soft money to manipulations of the legislative calendar, leading to Congress’ failure to enact, among other things, generic drug legislation, tort reform, and tobacco legislation. See, e.g. , 251 F. Supp. 2d, at 482 (Kollar-Kotelly, J.); id ., at 852 (Leon, J.); App. 390–394 (declaration of Sen. John McCain ¶ ;¶ ;5, 8–11 (hereinafter McCain Decl.)); App. 811 (Simpson Decl. ¶ ;10) (“Donations from the tobacco industry to Republicans scuttled tobacco legislation, just as contributions from the trial lawyers to Democrats stopped tort reform”); App. 805 (declaration of former Sen. Paul Simon ¶ ;¶ ;13–14). To claim that such actions do not change legislative outcomes surely misunderstands the legislative process.    More importantly, plaintiffs conceive of corruption too narrowly. Our cases have firmly established that Congress’ legitimate interest extends beyond preventing simple cash-for-votes corruption to curbing “undue influence on an officeholder’s judgment, and the appearance of such influence.” Colorado II , supra , at 441. Many of the “deeply disturbing examples” of corruption cited by this Court in Buckley, 424 U. S., at 27, to justify FECA’s contribution limits were not episodes of vote buying, but evidence that various corporate interests had given substantial donations to gain access to high-level government officials. See Buckley , 519 F. 2d, at 821, 839–840, n. 36; nn. 5–6, supra. Even if that access did not secure actual influence, it certainly gave the “appearance of such influence.” Colorado II , supra , at 441; see also 519 F. 2d , at 838.    The record in the present case is replete with similar examples of national party committees peddling access to federal candidates and officeholders in exchange for large soft-money donations. See 251 F. Supp. 2d, at 492–506 (Kollar-Kotelly, J.). As one former Senator put it: “ ‘Special interests who give large amounts of soft money to political parties do in fact achieve their objectives. They do get special access. Sitting Senators and House Members have limited amounts of time, but they make time available in their schedules to meet with representatives of business and unions and wealthy individuals who gave large sums to their parties. These are not idle chit-chats about the philosophy of democracy… . Senators are pressed by their benefactors to introduce legislation, to amend legislation, to block legislation, and to vote on legislation in a certain way.’ ” Id. , at 496 (Kollar-Kotelly, J.) (quoting declaration of former Sen. Warren Rudman ¶ ;7 (hereinafter Rudman Decl.), App. 742); 251 F. Supp. 2d, at 858 (Leon, J.) (same). So pervasive is this practice that the six national party committees actually furnish their own menus of opportunities for access to would-be soft-money donors, with increased prices reflecting an increased level of access. For example, the DCCC offers a range of donor options, starting with the $10,000-per-year Business Forum program, and going up to the $100,000-per-year National Finance Board program. The latter entitles the donor to bimonthly conference calls with the Democratic House leadership and chair of the DCCC, complimentary invitations to all DCCC fundraising events, two private dinners with the Democratic House leadership and ranking members, and two retreats with the Democratic House leader and DCCC chair in Telluride, Colorado, and Hyannisport, Massachusetts. Id ., at 504–505 (Kollar-Kotelly, J.); see also id ., at 506 (describing records indicating that DNC offered meetings with President in return for large donations); id ., at 502–503 (describing RNC’s various donor programs); id ., at 503–504 (same for NRSC); id ., at 500–503 (same for DSCC); id ., at 504 (same for NRCC). Similarly, “the RNC’s donor programs offer greater access to federal office holders as the donations grow larger, with the highest level and most personal access offered to the largest soft money donors.” Id ., at 500–503 (finding, further, that the RNC holds out the prospect of access to officeholders to attract soft-money donations and encourages officeholders to meet with large soft-money donors); accord, id ., at 860–861 (Leon, J.).    Despite this evidence and the close ties that candidates and officeholders have with their parties, Justice Kennedy would limit Congress’ regulatory interest only to the prevention of the actual or apparent quid pro quo corruption “inherent in” contributions made directly to, contributions made at the express behest of, and expenditures made in coordination with, a federal officeholder or candidate. Post , at 8–10, 15. Regulation of any other donation or expenditure—regardless of its size, the recipient’s relationship to the candidate or officeholder, its potential impact on a candidate’s election, its value to the candidate, or its unabashed and explicit intent to purchase influence—would, according to Justice Kennedy, simply be out of bounds. This crabbed view of corruption, and particularly of the appearance of corruption, ignores precedent, common sense, and the realities of political fundraising exposed by the record in this litigation.[ Footnote 48 ]    Justice Kennedy’s interpretation of the First Amendment would render Congress powerless to address more subtle but equally dispiriting forms of corruption. Just as troubling to a functioning democracy as classic quid pro quo corruption is the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder. Even if it occurs only occasionally, the potential for such undue influence is manifest. And unlike straight cash-for-votes transactions, such corruption is neither easily detected nor practical to criminalize. The best means of prevention is to identify and to remove the temptation. The evidence set forth above, which is but a sampling of the reams of disquieting evidence contained in the record, convincingly demonstrates that soft-money contributions to political parties carry with them just such temptation.    Justice Kennedy likewise takes too narrow a view of the appearance of corruption. He asserts that only those transactions with “inherent corruption potential,” which he again limits to contributions directly to candidates, justify the inference “that regulating the conduct will stem the appearance of real corruption.” Post , at 14.[ Footnote 49 ] In our view, however, Congress is not required to ignore historical evidence regarding a particular practice or to view conduct in isolation from its context. To be sure, mere political favoritism or opportunity for influence alone is insufficient to justify regulation. Post , at 12–14. As the record demonstrates, it is the manner in which parties have sold access to federal candidates and officeholders that has given rise to the appearance of undue influence. Implicit (and, as the record shows, sometimes explicit) in the sale of access is the suggestion that money buys influence. It is no surprise then that purchasers of such access unabashedly admit that they are seeking to purchase just such influence. It was not unwarranted for Congress to conclude that the selling of access gives rise to the appearance of corruption.    In sum, there is substantial evidence to support Congress’ determination that large soft-money contributions to national political parties give rise to corruption and the appearance of corruption. 2. New FECA §323(a)’s Restriction on Spending and     Receiving Soft Money Plaintiffs and The Chief Justice contend that §323(a) is impermissibly overbroad because it subjects all funds raised and spent by national parties to FECA’s hard-money source and amount limits, including, for example, funds spent on purely state and local elections in which no federal office is at stake.[ Footnote 50 ] Post , 2–5 (Rehnquist, C. J., dissenting). Such activities, The Chief Justice asserts, pose “little or no potential to corrupt … federal candidates or officeholders.” Post, at 5 (dissenting opinion). This observation is beside the point. Section 323(a), like the remainder of §323, regulates contributions, not activities. As the record demonstrates, it is the close relationship between federal officeholders and the national parties, as well as the means by which parties have traded on that relationship, that have made all large soft-money contributions to national parties suspect.    As one expert noted, “ ‘[t]here is no meaningful distinction between the national party committees and the public officials who control them.’ ” 251 F. Supp. 2d, at 468–469 (Kollar-Kotelly, J.) (quoting Mann Expert Report 29). The national committees of the two major parties are both run by, and largely composed of, federal officeholders and candidates. Indeed, of the six national committees of the two major parties, four are composed entirely of federal officeholders. Ibid . The nexus between national parties and federal officeholders prompted one of Title I’s framers to conclude: “Because the national parties operate at the national level, and are inextricably intertwined with federal officeholders and candidates, who raise the money for the national party committees, there is a close connection between the funding of the national parties and the corrupting dangers of soft money on the federal political process. The only effective way to address this [soft-money] problem of corruption is to ban entirely all raising and spending of soft money by the national parties.” 148 Cong. Rec. H409 (Feb. 13, 2002) (statement of Rep. Shays). Given this close connection and alignment of interests, large soft-money contributions to national parties are likely to create actual or apparent indebtedness on the part of federal officeholders, regardless of how those funds are ultimately used.    This close affiliation has also placed national parties in a position to sell access to federal officeholders in exchange for soft-money contributions that the party can then use for its own purposes. Access to federal officeholders is the most valuable favor the national party committees are able to give in exchange for large donations. The fact that officeholders comply by donating their valuable time indicates either that officeholders place substantial value on the soft-money contribution themselves, without regard to their end use, or that national committees are able to exert considerable control over federal officeholders. See, e.g. , App. 1196–1198 (Expert Report of Donald P. Green, Yale University) (“Once elected to legislative office, public officials enter an environment in which political parties-in-government control the resources crucial to subsequent electoral success and legislative power. Political parties organize the legislative caucuses that make committee assignments”); App. 1298 (Krasno & Sorauf Expert Report) (indicating that officeholders’ re-election prospects are significantly influenced by attitudes of party leadership). Either way, large soft-money donations to national party committees are likely to buy donors preferential access to federal officeholders no matter the ends to which their contributions are eventually put. As discussed above, Congress had sufficient grounds to regulate the appearance of undue influence associated with this practice. The Government’s strong interests in preventing corruption, and in particular the appearance of corruption, are thus sufficient to justify subjecting all donations to national parties to the source, amount, and disclosure limitations of FECA.[ Footnote 51 ] 3. New FECA §323(a)’s Restriction on Soliciting or     Directing Soft Money Plaintiffs also contend that §323(a)’s prohibition on national parties’ soliciting or directing soft-money contributions is substantially overbroad. The reach of the solicitation prohibition, however, is limited. It bars only solicitations of soft money by national party committees and by party officers in their official capacities. The committees remain free to solicit hard money on their own behalf, as well as to solicit hard money on behalf of state committees and state and local candidates.[ Footnote 52 ] They also can contribute hard money to state committees and to candidates. In accordance with FEC regulations, furthermore, officers of national parties are free to solicit soft money in their individual capacities, or, if they are also officials of state parties, in that capacity. See 67 Fed. Reg. 49083 (2002). This limited restriction on solicitation follows sensibly from the prohibition on national committees’ receiving soft money. The same observations that led us to approve the latter compel us to reach the same conclusion regarding the former. A national committee is likely to respond favorably to a donation made at its request regardless of whether the recipient is the committee itself or another entity. This principle accords with common sense and appears elsewhere in federal laws. E.g. , 18 U. S. C. §201(b)(2) (prohibition on public officials “demand[ing] [or] seek[ing] … anything of value personally or for any other person or entity …” (emphasis added)); 5 CFR §2635.203(f)(2) (2003) (restriction on gifts to federal employees encompasses gifts “[g]iven to any other person, including any charitable organization, on the basis of designation, recommendation, or other specification by the employee”).    Plaintiffs argue that BCRA itself demonstrates the overbreadth of §323(a)’s solicitation ban. They point in particular to §323(e), which allows federal candidates and officeholders to solicit limited amounts of soft money from individual donors under certain circumstances. Compare 2 U. S. C. A §441i(a) with §441i(e) (Supp. 2003). The differences between §§323(a) and 323(e), however, are without constitutional significance. We have recognized that “the ‘differing structures and purposes’ of different entities ‘may require different forms of regulation in order to protect the integrity of the electoral process,’ ” National Right to Work , 459 U. S., at 210, and we respect Congress’ decision to proceed in incremental steps in the area of campaign finance regulation, see Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238 , 258, n. 11 (1986) (MCFL); Buckley , 424 U. S., at 105. The differences between the two provisions reflect Congress’ reasonable judgments about the function played by national committees and the interactions between committees and officeholders, subjects about which Members of Congress have vastly superior knowledge. 4. New FECA §323(a)’s Application to Minor Parties The McConnell and political party plaintiffs contend that §323(a) is substantially overbroad and must be stricken on its face because it impermissibly infringes the speech and associational rights of minor parties such as the Libertarian National Committee, which, owing to their slim prospects for electoral success and the fact that they receive few large soft-money contributions from corporate sources, pose no threat of corruption comparable to that posed by the RNC and DNC. In Buckley , we rejected a similar argument concerning limits on contributions to minor-party candidates, noting that “any attempt to exclude minor parties and independents en masse from the Act’s contribution limitations overlooks the fact that minor-party candidates may win elective office or have a substantial impact on the outcome of an election.” 424 U. S., at 34–35. We have thus recognized that the relevance of the interest in avoiding actual or apparent corruption is not a function of the number of legislators a given party manages to elect. It applies as much to a minor party that manages to elect only one of its members to federal office as it does to a major party whose members make up a majority of Congress. It is therefore reasonable to require that all parties and all candidates follow the same set of rules designed to protect the integrity of the electoral process.    We add that nothing in §323(a) prevents individuals from pooling resources to start a new national party. Post , at 5 (Kennedy, J., dissenting). Only when an organization has gained official status, which carries with it significant benefits for its members, will the proscriptions of §323(a) apply. Even then, a nascent or struggling minor party can bring an as-applied challenge if §323(a) prevents it from “amassing the resources necessary for effective advocacy.” Buckley , supra , at 21. 5. New FECA §323(a)’s Associational Burdens Finally, plaintiffs assert that §323(a) is unconstitutional because it impermissibly interferes with the ability of national committees to associate with state and local committees. By way of example, plaintiffs point to the Republican Victory Plans, whereby the RNC acts in concert with the state and local committees of a given State to plan and implement joint, full-ticket fundraising and electioneering programs. See App. 693, 694–697 (declaration of John Peschong, RNC Western Reg. Political Dir. (describing the Republican Victory Plans)). The political parties assert that §323(a) outlaws any participation in Victory Plans by RNC officers, including merely sitting down at a table and engaging in collective decisionmaking about how soft money will be solicited, received, and spent. Such associational burdens, they argue, are too great for the First Amendment to bear.    We are not persuaded by this argument because it hinges on an unnaturally broad reading of the terms “spend,” “receive,” “direct,” and “solicit.” 2 U. S. C. A. §441i(a) (Supp. 2003). Nothing on the face of §323(a) prohibits national party officers, whether acting in their official or individual capacities, from sitting down with state and local party committees or candidates to plan and advise how to raise and spend soft money. As long as the national party officer does not personally spend, receive, direct, or solicit soft money, §323(a) permits a wide range of joint planning and electioneering activity. Intervenor-defendants, the principal drafters and proponents of the legislation, concede as much. Brief for Intervenor-Defendants Sen. John McCain et al. in No. 02– 1674 et al., p. 22 (“BCRA leaves parties and candidates free to coordinate campaign plans and activities, political messages, and fundraising goals with one another”). The FEC’s current definitions of §323(a)’s terms are consistent with that view. See, e.g. , 11 CFR §300.2(m) (2002) (defining “solicit” as “to ask … another person” (emphasis added)); §300.2(n) (defining “direct” as “to ask a person who has expressed an intent to make a contribution . . . to make that contribution … including through a conduit or intermediary” (emphasis added)); §300.2(c) (laying out the factors that determine whether an entity will be considered to be controlled by a national committee).    Given the straightforward meaning of this provision, Justice Kennedy is incorrect that “[a] national party’s mere involvement in the strategic planning of fundraising for a state ballot initiative” or its assistance in developing a state party’s Levin-money fundraising efforts risks a finding that the officers are in “ ‘indirect control’ ” of the state party and subject to criminal penalties. Post , at 5–6. Moreover, §323(a) leaves national party committee officers entirely free to participate, in their official capacities, with state and local parties and candidates in soliciting and spending hard money; party officials may also solicit soft money in their unofficial capacities.    Accordingly, we reject the plaintiffs’ First Amendment challenge to new FECA §323(a). New FECA §323(b)’s Restrictions on State and Local Party Committees In constructing a coherent scheme of campaign finance regulation, Congress recognized that, given the close ties between federal candidates and state party committees, BCRA’s restrictions on national committee activity would rapidly become ineffective if state and local committees remained available as a conduit for soft-money donations.[ Footnote 53 ] Section 323(b) is designed to foreclose wholesale evasion of §323(a)’s anticorruption measures by sharply curbing state committees’ ability to use large soft-money contributions to influence federal elections. The core of §323(b) is a straightforward contribution regulation: It prevents donors from contributing nonfederal funds to state and local party committees to help finance “Federal election activity.” 2 U. S. C A. §441i(b)(1) (Supp. 2003). The term “Federal election activity” encompasses four distinct categories of electioneering: (1) voter registration activity during the 120 days preceding a regularly scheduled federal election; (2) voter identification, get-out-the-vote (GOTV), and generic campaign activity[ Footnote 54 ] that is “conducted in connection with an election in which a candidate for Federal office appears on the ballot”; (3) any “public communication”[ Footnote 55 ] that “refers to a clearly identified candidate for Federal office” and “promotes,” “supports,” “attacks,” or “opposes” a candidate for that office; and (4) the services provided by a state committee employee who dedicates more than 25% of his or her time to “activities in connection with a Federal election.” §§431(20)(A)(i)–(iv). The Act explicitly excludes several categories of activity from this definition: public communications that refer solely to nonfederal candidates;[ Footnote 56 ] contributions to nonfederal candidates;[ Footnote 57 ] state and local political conventions; and the cost of grassroots campaign materials like bumper stickers that refer only to state candidates. §431(20)(B). All activities that fall within the statutory definition must be funded with hard money. §441i(b)(1). Section 323(b)(2), the so-called Levin Amendment, carves out an exception to this general rule. A refinement on the pre-BCRA regime that permitted parties to pay for certain activities with a mix of federal and nonfederal funds, the Levin Amendment allows state and local party committees to pay for certain types of federal election activity with an allocated ratio of hard money and “Levin funds”—that is, funds raised within an annual limit of $10,000 per person. 2 U. S. C. A. §441i(b)(2). Except for the $10,000 cap and certain related restrictions to prevent circumvention of that limit, §323(b)(2) leaves regulation of such contributions to the States.[ Footnote 58 ] The scope of the Levin Amendment is limited in two ways. First, state and local parties can use Levin money to fund only activities that fall within categories (1) and (2) of the statute’s definition of federal election activity—namely, voter registration activity, voter identification drives, GOTV drives, and generic campaign activities. 2 U. S. C. A. §441i(b)(2)(A). And not all of these activities qualify: Levin funds cannot be used to pay for any activities that refer to “a clearly identified candidate for Federal office”; they likewise cannot be used to fund broadcast communications unless they refer “solely to a clearly identified candidate for State or local office.” §§441i(b)(2)(B)(i)–(ii). Second, both the Levin funds and the allocated portion of hard money used to pay for such activities must be raised entirely by the state or local committee that spends them. §441i(b)(2)(B)(iv). This means that a state party committee cannot use Levin funds transferred from other party committees to cover the Levin funds portion of a Levin Amendment expenditure. It also means that a state party committee cannot use hard money transferred from other party committees to cover the hard-money portion of a Levin Amendment expenditure. Furthermore, national committees, federal candidates, and federal officeholders generally may not solicit Levin funds on behalf of state committees, and state committees may not team up to raise Levin funds. §441i(b)(2)(C). They can, however, jointly raise the hard money used to make Levin expenditures. 1.  Governmental Interests Underlying New FECA     §323(b) We begin by noting that, in addressing the problem of soft-money contributions to state committees, Congress both drew a conclusion and made a prediction. Its conclusion, based on the evidence before it, was that the corrupting influence of soft money does not insinuate itself into the political process solely through national party committees. Rather, state committees function as an alternate avenue for precisely the same corrupting forces.[ Footnote 59 ] Indeed, both candidates and parties already ask donors who have reached the limit on their direct contributions to donate to state committees.[ Footnote 60 ] There is at least as much evidence as there was in Buckley that such donations have been made with the intent—and in at least some cases the effect—of gaining influence over federal officeholders.[ Footnote 61 ] Section 323(b) thus promotes an important governmental interest by confronting the corrupting influence that soft-money donations to political parties already have.    Congress also made a prediction. Having been taught the hard lesson of circumvention by the entire history of campaign finance regulation, Congress knew that soft-money donors would react to §323(a) by scrambling to find another way to purchase influence. It was “neither novel nor implausible,” Shrink Missouri , 528 U. S., at 391, for Congress to conclude that political parties would react to §323(a) by directing soft-money contributors to the state committees, and that federal candidates would be just as indebted to these contributors as they had been to those who had formerly contributed to the national parties. We “must accord substantial deference to the predictive judgments of Congress,” Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 , 665 (1994), particularly when, as here, those predictions are so firmly rooted in relevant history and common sense. Preventing corrupting activity from shifting wholesale to state committees and thereby eviscerating FECA clearly qualifies as an important governmental interest. 2. New FECA §323(b)’s Tailoring Plaintiffs argue that even if some legitimate interest might be served by §323(b), the provision’s restrictions are unjustifiably burdensome and therefore cannot be considered “closely drawn” to match the Government’s objectives. They advance three main contentions in support of this proposition. First, they argue that the provision is substantially overbroad because it federalizes activities that pose no conceivable risk of corrupting or appearing to corrupt federal officeholders. Second, they argue that the Levin Amendment imposes an unconstitutional burden on the associational rights of political parties. Finally, they argue that the provision prevents them from amassing the resources they need to engage in effective advocacy. We address these points in turn. a.  §323(b)’s Application to Federal Election Activity Plaintiffs assert that §323(b) represents a new brand of pervasive federal regulation of state-focused electioneering activities that cannot possibly corrupt or appear to corrupt federal officeholders and thus goes well beyond Congress’ concerns about the corruption of the federal electoral process. We disagree. It is true that §323(b) captures some activities that affect state campaigns for nonfederal offices. But these are the same sorts of activities that already were covered by the FEC’s pre-BCRA allocation rules, and thus had to be funded in part by hard money, because they affect federal as well as state elections. See 11 CFR §106.5 (2002). As a practical matter, BCRA merely codifies the principles of the FEC’s allocation regime while at the same time justifiably adjusting the formulas applicable to these activities in order to restore the efficacy of FECA’s longtime statutory restriction—approved by the Court and eroded by the FEC’s allocation regime—on contributions to state and local party committees for the purpose of influencing federal elections. See 2 U. S. C. §§431(8)(A), 441a(a)(1)(C); see also Buckley , 424 U. S., at 38 (upholding FECA’s $25,000 limit on aggregate contributions to candidates and political committees); cf. California Medical Assn. v. Federal Election Comm’n, 453 U. S. 182 (1981) (upholding FECA’s $5,000 limit on contributions to multicandidate political committees).    Like the rest of Title I, §323(b) is premised on Congress’ judgment that if a large donation is capable of putting a federal candidate in the debt of the contributor, it poses a threat of corruption or the appearance of corruption. As we explain below, §323(b) is narrowly focused on regulating contributions that pose the greatest risk of this kind of corruption: those contributions to state and local parties that can be used to benefit federal candidates directly. Further, these regulations all are reasonably tailored, with various temporal and substantive limitations designed to focus the regulations on the important anti-corruption interests to be served. We conclude that §323(b) is a closely-drawn means of countering both corruption and the appearance of corruption.    The first two categories of “Federal election activity,” voter registration efforts, §301(20)(A)(i), and voter identification, GOTV, and generic campaign activities conducted in connection with a federal election, §301(20)(A)(ii), clearly capture activity that benefits federal candidates. Common sense dictates, and it was “undisputed” below, that a party’s efforts to register voters sympathetic to that party directly assist the party’s candidates for federal office. 251 F. Supp. 2d, at 460 (Kollar-Kotelly, J.). It is equally clear that federal candidates reap substantial rewards from any efforts that increase the number of like-minded registered voters who actually go to the polls.[ Footnote 62 ] See, e.g. , id ., at 459 (“ ‘[The evidence] shows quite clearly that a campaign that mobilizes residents of a highly Republican precinct will produce a harvest of votes for Republican candidates for both state and federal offices. A campaign need not mention federal candidates to have a direct effect on voting for such a candidate… . [G]eneric campaign activity has a direct effect on federal elections’ ” (quoting Green Expert Report 14)). Representatives of the four major congressional campaign committees confirmed that they “ ‘transfe[r] federal and nonfederal money to state and/or local party committees for’ ” both voter registration and get-out-the-vote activities, and that “ ‘[t]hese efforts have a significant effect on the election of federal candidates.’ ” 251 F. Supp. 2d, at 459, 461 (citations omitted).    The record also makes quite clear that federal officeholders are grateful for contributions to state and local parties that can be converted into GOTV-type efforts. See id. , at 459 (quoting a letter thanking a California Democratic Party donor and noting that CDP’s voter registration and GOTV efforts would help “ ‘increase the number of Californian Democrats in the United States Congress’ ” and “ ‘deliver California’s 54 electoral votes’ ” to the Democratic presidential candidate).    Because voter registration, voter identification, GOTV, and generic campaign activity all confer substantial benefits on federal candidates, the funding of such activities creates a significant risk of actual and apparent corruption. Section 323(b) is a reasonable response to that risk. Its contribution limitations are focused on the subset of voter registration activity that is most likely to affect the election prospects of federal candidates: activity that occurs within 120 days before a federal election. And if the voter registration drive does not specifically mention a federal candidate, state committees can take advantage of the Levin Amendment’s higher contribution limits and relaxed source restrictions. 2 U. S. C. A. §§441i(b)(2)(B)(i)–(ii) (Supp. 2003). Similarly, the contribution limits applicable to §301(20)(A)(ii) activities target only those voter identification, GOTV, and generic campaign efforts that occur “in connection with an election in which a candidate for a Federal office appears on the ballot.” 2 U. S. C. A. §431(20)(A)(ii). Appropriately, in implementing this subsection, the FEC has categorically excluded all activity that takes place during the run-up to elections when no federal office is at stake.[ Footnote 63 ] Furthermore, state committees can take advantage of the Levin Amendment’s higher contribution limits to fund any §301(A)(20)(i) and §301(A)(20)(ii) activities that do not specifically mention a federal candidate. 2 U. S. C. A. §§441i(b)(2)(B)(i)–(ii). The prohibition on the use of soft money in connection with these activities is therefore closely drawn to meet the sufficiently important governmental interests of avoiding corruption and its appearance.    “Public communications” that promote or attack a candidate for federal office—the third category of “Federal election activity,” §301(20)(A)(iii)—also undoubtedly have a dramatic effect on federal elections. Such ads were a prime motivating force behind BCRA’s passage. See 3 1998 Senate Report 4535 (additional views of Sen. Collins) (“[T]he hearings provided overwhelming evidence that the twin loopholes of soft money and bogus issue advertising have virtually destroyed our campaign finance laws, leaving us with little more than a pile of legal rubble”). As explained below, any public communication that promotes or attacks a clearly identified federal candidate directly affects the election in which he is participating. The record on this score could scarcely be more abundant. Given the overwhelming tendency of public communications, as carefully defined in §301(20)(A)(iii), to benefit directly federal candidates, we hold that application of §323(b)’s contribution caps to such communications is also closely drawn to the anticorruption interest it is intended to address.[ Footnote 64 ]    As for the final category of “Federal election activity,” §301(20)(A)(iv), we find that Congress’ interest in preventing circumvention of §323(b)’s other restrictions justifies the requirement that state and local parties spend federal funds to pay the salary of any employee spending more than 25% of his or her compensated time on activities in connection with a federal election. In the absence of this provision, a party might use soft money to pay for the equivalent of a full-time employee engaged in federal electioneering, by the simple expedient of dividing the federal workload among multiple employees. Plaintiffs have suggested no reason for us to strike down this provision. Accordingly, we give “deference to [the] congressional determination of the need for [this] prophylactic rule.” National Conservative Political Action Comm. , 470 U. S., at 500. b. Associational Burdens Imposed by the Levin     Amendment Plaintiffs also contend that §323(b) is unconstitutional because the Levin Amendment unjustifiably burdens association among party committees by forbidding transfers of Levin funds among state parties, transfers of hard money to fund the allocable federal portion of Levin expenditures, and joint fundraising of Levin funds by state parties. We recognize, as we have in the past, the importance of preserving the associational freedom of parties. See, e.g. , California Democratic Party v. Jones , 530 U. S. 567 (2000); Eu v. San Francisco County Democratic Central Comm. , 489 U. S. 214 (1989). But not every minor restriction on parties’ otherwise unrestrained ability to associate is of constitutional dimension. See Colorado II , 533 U. S., at 450, n. 11.    As an initial matter, we note that state and local parties can avoid these associational burdens altogether by forgoing the Levin Amendment option and electing to pay for federal election activities entirely with hard money. But in any event, the restrictions on the use, transfer, and raising of Levin funds are justifiable anticircumvention measures. Without the ban on transfers of Levin funds among state committees, donors could readily circumvent the $10,000 limit on contributions to a committee’s Levin account by making multiple $10,000 donations to various committees that could then transfer the donations to the committee of choice.[ Footnote 65 ] The same anticircumvention goal undergirds the ban on joint solicitation of Levin funds. Without this restriction, state and local committees could organize “all hands” fundraisers at which individual, corporate, or union donors could make large soft-money donations to be divided between the committees. In that case, the purpose, if not the letter, of §323(b)(2)’s $10,000 limit would be thwarted: Donors could make large, visible contributions at fundraisers, which would provide ready means for corrupting federal officeholders. Given the delicate and interconnected regulatory scheme at issue here, any associational burdens imposed by the Levin Amendment restrictions are far outweighed by the need to prevent circumvention of the entire scheme.    Section 323(b)(2)(B)(iv)’s apparent prohibition on the transfer of hard money by a national, state, or local committee to help fund the allocable hard-money portion of a separate state or local committee’s Levin expenditures presents a closer question. 2 U. S. C. A. §441i(b)(2)(B)(iv) (Supp. 2003). The Government defends the restriction as necessary to prevent the donor committee, particularly a national committee, from leveraging the transfer of federal money to wrest control over the spending of the recipient committee’s Levin funds. This purported interest is weak, particularly given the fact that §323(a) already polices attempts by national parties to engage in such behavior. See 2 U. S. C. A. §441i(a)(2) (extending §323(a)’s restrictions to entities controlled by national party committees). However, the associational burdens posed by the hard-money transfer restriction are so insubstantial as to be de minimis . Party committees, including national party committees, remain free to transfer unlimited hard money so long as it is not used to fund Levin expenditures. State and local party committees can thus dedicate all “homegrown” hard money to their Levin activities while relying on outside transfers to defray the costs of other hard-money expenditures. Given the strong anticircumvention interest vindicated by §323(b)(2)(B)(iv)’s restriction on the transfer of Levin funds, we will not strike down the entire provision based upon such an attenuated claim of associational infringement. c. New FECA §323(b)’s Impact on Parties’ Ability     to Engage in Effective Advocacy Finally, plaintiffs contend that §323(b) is unconstitutional because its restrictions on soft-money contributions to state and local party committees will prevent them from engaging in effective advocacy. As Judge Kollar-Kotelly noted, the political parties’ evidence regarding the impact of BCRA on their revenues is “speculative and not based on any analysis.” 251 F. Supp. 2d, at 524. If the history of campaign finance regulation discussed above proves anything, it is that political parties are extraordinarily flexible in adapting to new restrictions on their fundraising abilities. Moreover, the mere fact that §323(b) may reduce the relative amount of money available to state and local parties to fund federal election activities is largely inconsequential. The question is not whether §323(b) reduces the amount of funds available over previous election cycles, but whether it is “so radical in effect as to … drive the sound of [the recipient’s] voice below the level of notice.” Shrink Missouri , 528 U. S., at 397. If indeed state or local parties can make such a showing, as-applied challenges remain available.    We accordingly conclude that §323(b), on its face, is closely drawn to match the important governmental interests of preventing corruption and the appearance of corruption. New FECA §323(d)’s Restrictions on Parties’ Solicitations for, and Donations to, Tax-Exempt Organizations Section 323(d) prohibits national, state, and local party committees, and their agents or subsidiaries, from “solicit[ing] any funds for, or mak[ing] or direct[ing] any donations” to, any organization established under §501(c) of the Internal Revenue Code[ Footnote 66 ] that makes expenditures in connection with an election for federal office, and any political organizations established under §527 “other than a political committee, a State, district, or local committee of a political party, or the authorized campaign committee of a candidate for State or local office.”[ Footnote 67 ] 2 U. S. C. A. §441i(d) (Supp. 2003). The District Court struck down the provision on its face. We reverse and uphold §323(d), narrowly construing the section’s ban on donations to apply only to the donation of funds not raised in compliance with FECA. 1. New FECA §323(d)’s Regulation of Solicitations The Government defends §323(d)’s ban on solicitations to tax-exempt organizations engaged in political activity as preventing circumvention of Title I’s limits on contributions of soft money to national, state, and local party committees. That justification is entirely reasonable. The history of Congress’ efforts at campaign finance reform well demonstrates that “candidates, donors, and parties test the limits of the current law.” Colorado II , 533 U. S., at 457. Absent the solicitation provision, national, state, and local party committees would have significant incentives to mobilize their formidable fundraising apparatuses, including the peddling of access to federal officeholders, into the service of like-minded tax-exempt organizations that conduct activities benefiting their candidates.[ Footnote 68 ] All of the corruption and appearance of corruption attendant on the operation of those fundraising apparatuses would follow. Donations made at the behest of party committees would almost certainly be regarded by party officials, donors, and federal officeholders alike as benefiting the party as well as its candidates. Yet, by soliciting the donations to third-party organizations, the parties would avoid FECA’s source-and-amount limitations, as well as its disclosure restrictions. See 251 F. Supp. 2d, at 348 (Henderson, J.) (citing various declarations demonstrating that, prior to BCRA, most tax-exempt organizations did not disclose the source or amount of contributions); id ., at 521 (Kollar-Kotelly, J.) (same). Experience under the current law demonstrates that Congress’ concerns about circumvention are not merely hypothetical. Even without the added incentives created by Title I, national, state, and local parties already solicit unregulated soft-money donations to tax-exempt organizations for the purpose of supporting federal electioneering activity. See , e.g., 3 1998 Senate Report 4013 (“In addition to direct contributions from the RNC to nonprofit groups, the senior leadership of the RNC helped to raise funds for many of the coalition’s nonprofit organizations”); id ., at 5983 (minority views) (“Tax-exempt ‘issue advocacy’ groups and other conduits were systematically used to circumvent federal campaign finance laws”); 251 F. Supp. 2d, at 517 (Kollar-Kotelly, J.); id ., at 848 (Leon, J.). Parties and candidates have also begun to take advantage of so-called “politician 527s,” which are little more than soft-money fronts for the promotion of particular federal officeholders and their interests. See id., at 519 (Kollar-Kotelly, J.) (“ ‘Virtually every member of Congress in a formal leadership position has his or her own 527 group… . In all, Public Citizen found 63 current members of Congress who have their own 527s’ ” (quoting Public Citizen Congress Watch, Congressional Leaders’ Soft Money Accounts Show Need for Campaign Finance Reform Bills, Feb. 26, 2002, p. 6)); 251 F. Supp. 2d, at 849–850 (Leon, J.). These 527s have been quite successful at raising substantial sums of soft money from corporate interests, as well as from the national parties themselves. See id. , at 519–520 (Kollar-Kotelly, J.) (finding that 27 industries had each donated over $100,000 in a single year to the top 25 politician 527 groups and that the DNC was the single largest contributor to politician 527 groups (citing Public Citizen Congress Watch, supra, at 10–11)); 251 F. Supp. 2d, at 850 (Leon, J.) (same). Given BCRA’s tighter restrictions on the raising and spending of soft money, the incentives for parties to exploit such organizations will only increase. Section 323(d)’s solicitation restriction is closely drawn to prevent political parties from using tax-exempt organizations as soft-money surrogates. Though phrased as an absolute prohibition, the restriction does nothing more than subject contributions solicited by parties to FECA’s regulatory regime, leaving open substantial opportunities for solicitation and other expressive activity in support of these organizations. First, and most obviously, §323(d) restricts solicitations only to those §501(c) groups “mak[ing] expenditures or disbursements in connection with an election for Federal office,” 2 U. S. C. A. §441i(d)(1) (Supp. 2003), and to §527 organizations, which by definition engage in partisan political activity, §441i(d)(2); 26 U. S. C. §527(e). Second, parties remain free to solicit hard-money contributions to a §501(c)’s federal PAC, as well as to §527 organizations that already qualify as federal PACs.[ Footnote 69 ] Third, §323(d) allows parties to endorse qualifying organizations in ways other than direct solicitations of unregulated donations. For example, with respect to §501(c) organizations that are prohibited from administering PACs, parties can solicit hard-money donations to themselves for the express purpose of donating to these organizations. See supra , at 72–73. Finally, as with §323(a), §323(d) in no way restricts solicitations by party officers acting in their individual capacities. 2 U. S. C. A. §441i(d) (extending restrictions to solicitations and donations made by “an officer or agent acting on behalf of any such party committee” (emphasis added)). In challenging §323(d)’s ban on solicitations, plaintiffs renew the argument they made with respect to §323(a)’s solicitation restrictions: that it cannot be squared with §323(e), which allows federal candidates and officeholders to solicit limited donations of soft money to tax-exempt organizations that engage in federal election activities. Compare 2 U. S. C. A. §441i(d) with §441i(e)(4). But if §323(d)’s restrictions on solicitations are otherwise valid, they are not rendered unconstitutional by the mere fact that Congress chose not to regulate the activities of another group as stringently as it might have. See National Right to Work , 459 U. S., at 210; see also Katzenbach v. Morgan, 384 U. S. 641 , 656–657 (1966). In any event, the difference between the two provisions is fully explained by the fact that national party officers, unlike federal candidates and officeholders, are able to solicit soft money on behalf of nonprofit organizations in their individual capacities. Section 323(e), which is designed to accommodate the individual associational and speech interests of candidates and officeholders in lending personal support to nonprofit organizations, also places tight content, source, and amount restrictions on solicitations of soft money by federal candidates and officeholders. Given those limits, as well as the less rigorous standard of review, the greater allowances of §323(e) do not render §323(d)’s solicitation restriction facially invalid. 2. New FECA §323(d)’s Regulation of Donations Section 323(d) also prohibits national, state, and local party committees from making or directing “any donatio[n]” to qualifying §501(c) or §527 organizations. 2 U. S. C. A. §441i(d) (Supp. 2003). The Government again defends the restriction as an anticircumvention measure. We agree insofar as it prohibits the donation of soft money. Absent such a restriction, state and local party committees could accomplish directly what the antisolicitation restrictions prevent them from doing indirectly— namely, raising large sums of soft money to launder through tax-exempt organizations engaging in federal election activities. Because the party itself would be raising and collecting the funds, the potential for corruption would be that much greater. We will not disturb Congress’ reasonable decision to close that loophole, particularly given a record demonstrating an already robust practice of parties’ making such donations. See 251 F. Supp. 2d, at 517–518 (Kollar-Kotelly); id ., at 848–849 (Leon, J.). The prohibition does raise overbreadth concerns if read to restrict donations from a party’s federal account— i.e. , funds that have already been raised in compliance with FECA’s source, amount, and disclosure limitations. Parties have many valid reasons for giving to tax-exempt organizations, not the least of which is to associate themselves with certain causes and, in so doing, to demonstrate the values espoused by the party. A complete ban on donations prevents parties from making even the “general expression of support” that a contribution represents. Buckley , 424 U. S., at 21. At the same time, prohibiting parties from donating funds already raised in compliance with FECA does little to further Congress’ goal of preventing corruption or the appearance of corruption of federal candidates and officeholders. The Government asserts that the restriction is necessary to prevent parties from leveraging their hard money to gain control over a tax-exempt group’s soft money. Even if we accepted that rationale, it would at most justify a dollar limit, not a flat ban. Moreover, any legitimate concerns over capture are diminished by the fact that the restrictions set forth in §§323(a) and (b) apply not only to party committees, but to entities under their control. See 2 U. S. C. A. §441i(a)(2) (extending prohibitions on national party committees to “any entity that is directly or indirectly established, financed, maintained, or controlled by such a national committee” (emphasis added)); §441i(b)(1) (same for state and local party committees). These observations do not, however, require us to sustain plaintiffs’ facial challenge to §323(d)’s donation restriction. “When the validity of an act of the Congress is drawn in question, and … a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson , 285 U. S. 22 , 62 (1932); see also Boos v. Barry , 485 U. S. 312 , 331 (1988); New York v. Ferber , 458 U. S. 747 , 769, n. 24 (1982). Given our obligation to avoid constitutional problems, we narrowly construe §323(d)’s ban to apply only to donations of funds not raised in compliance with FECA. This construction is consistent with the concerns animating Title I, whose purpose is to plug the soft-money loophole. Though there is little legislative history regarding BCRA generally, and almost nothing on §323(d) specifically, the abuses identified in the 1998 Senate report regarding campaign finance practices involve the use of nonprofit organizations as conduits for large soft-money donations. See, e.g. , 3 1998 Senate Report 4565 (“The evidence indicates that the soft-money loophole is fueling many of the campaign abuses investigated by the Committee… . Soft money also supplied the funds parties used to make contributions to tax-exempt groups, which in turn used the funds to pay for election-related activities”); id. , at 4568–4569 (describing as an “egregious exampl[e]” of misuse a $4.6 million donation of nonfederal funds by the RNC to Americans for Tax Reform, which the organization spent on “direct mail and phone bank operations to counter anti-Republican advertising”). We have found no evidence that Congress was concerned about, much less that it intended to prohibit, donations of money already fully regulated by FECA. Given Title I’s exclusive focus on abuses related to soft money, we would expect that if Congress meant §323(d)’s restriction to have this dramatic and constitutionally questionable effect, it would say so explicitly. Because there is nothing that compels us to conclude that Congress intended “donations” to include transfers of federal money, and because of the constitutional infirmities such an interpretation would raise, we decline to read §323(d) in that way. Thus, political parties remain free to make or direct donations of money to any tax-exempt organization that has otherwise been raised in compliance with FECA. New FECA §323(e)’s Restrictions on Federal Candidates and Officeholders New FECA §323(e) regulates the raising and soliciting of soft money by federal candidates and officeholders. 2 U. S. C. A. §441i(e) (Supp. 2003). It prohibits federal candidates and officeholders from “solicit[ing], receiv[ing], direct[ing], transfer[ing], or spend[ing]” any soft money in connection with federal elections. §441i(e)(1)(A). It also limits the ability of federal candidates and officeholders to solicit, receive, direct, transfer, or spend soft money in connection with state and local elections. §441i(e)(1)(B).[ Footnote 70 ] Section 323(e)’s general prohibition on solicitations admits of a number of exceptions. For instance, federal candidates and officeholders are permitted to “attend, speak, or be a featured guest” at a state or local party fundraising event. 2 U. S. C. A. §441i(e)(3). Section 323(e) specifically provides that federal candidates and officeholders may make solicitations of soft money to §501(c) organizations whose primary purpose is not to engage in “Federal election activit[ies]” as long as the solicitation does not specify how the funds will be spent, 2 U. S. C. A. §441i(e)(4)(A); to §501(c) organizations whose primary purpose is to engage in “Federal election activit[ies]” as long as the solicitations are limited to individuals and the amount solicited does not exceed $20,000 per year per individual, 2 U. S. C. A. §441i(e)(4)(B); and to §501(c) organizations for the express purpose of carrying out such activities, again so long as the amount solicited does not exceed $20,000 per year per individual, 2 U. S. C. A. §441(e)(4)(B). No party seriously questions the constitutionality of §323(e)’s general ban on donations of soft money made directly to federal candidates and officeholders, their agents, or entities established or controlled by them. Even on the narrowest reading of Buckley , a regulation restricting donations to a federal candidate, regardless of the ends to which those funds are ultimately put, qualifies as a contribution limit subject to less rigorous scrutiny. Such donations have only marginal speech and associational value, but at the same time pose a substantial threat of corruption. By severing the most direct link between the soft-money donor and the federal candidate, §323(e)’s ban on donations of soft money is closely drawn to prevent the corruption or the appearance of corruption of federal candidates and officeholders. Section 323(e)’s restrictions on solicitations are justified as valid anticircumvention measures. Large soft-money donations at a candidate’s or officeholder’s behest give rise to all of the same corruption concerns posed by contributions made directly to the candidate or officeholder. Though the candidate may not ultimately control how the funds are spent, the value of the donation to the candidate or officeholder is evident from the fact of the solicitation itself. Without some restriction on solicitations, federal candidates and officeholders could easily avoid FECA’s contribution limits by soliciting funds from large donors and restricted sources to like-minded organizations engaging in federal election activities. As the record demonstrates, even before the passage of BCRA, federal candidates and officeholders had already begun soliciting donations to state and local parties, as well as tax-exempt organizations, in order to help their own, as well as their party’s, electoral cause. See Colorado II , 533 U. S., at 458 (quoting fundraising letter from a Congressman explaining to contributor that “ ‘you are at the limit of what you can directly contribute to my campaign,’ but ‘you can further help my campaign by assisting the Colorado Republican Party’ ”); 251 F. Supp. 2d, at 479–480 (Kollar-Kotelly, J.) (surveying evidence of federal officeholders’ soliciting funds to state and local parties); id ., at 848 (Leon, J.) (same); id ., at 518 (Kollar-Kotelly, J.) (surveying evidence of federal officeholders’ soliciting funds for nonprofits for electioneering purposes); id ., at 849 (Leon, J.) (same). The incentives to do so, at least with respect to solicitations to tax-exempt organizations, will only increase with Title I’s restrictions on the raising and spending of soft money by national, state, and local parties. Section 323(e) addresses these concerns while accommodating the individual speech and associational rights of federal candidates and officeholders. Rather than place an outright ban on solicitations to tax-exempt organizations, §323(e)(4) permits limited solicitations of soft money. 2 U. S. C. A. §441i(e)(4). This allowance accommodates individuals who have long served as active members of nonprofit organizations in both their official and individual capacities. Similarly, §§323(e)(1)(B) and 323(e)(3) preserve the traditional fundraising role of federal officeholders by providing limited opportunities for federal candidates and officeholders to associate with their state and local colleagues through joint fundraising activities. 2 U. S. C. A. §§441i(e)(1)(B), 441i(e)(3). Given these many exceptions, as well as the substantial threat of corruption or its appearance posed by donations to or at the behest of federal candidates and officeholders, §323(e) is clearly constitutional. We accordingly uphold §323(e) against plaintiffs’ First Amendment challenge. New FECA §323(f)’s Restrictions on State Candidates and Officeholders The final provision of Title I is new FECA §323(f). 2 U. S. C. A. §441i(f) (Supp. 2003). Section 323(f) generally prohibits candidates for state or local office, or state or local officeholders, from spending soft money to fund “public communications” as defined in §301(20)(A)(iii)— i.e. , a communication that “refers to a clearly identified candidate for Federal office … and that promotes or supports a candidate for that office, or attacks or opposes a candidate for that office.” 2 U. S. C. A. §441i(f)(1); §431(20)(A)(iii). Exempted from this restriction are communications made in connection with an election for state or local office which refer only to the state or local candidate or officeholder making the expenditure or to any other candidate for the same state or local office. §441i(f)(2). Section 323(f) places no cap on the amount of money that state or local candidates can spend on any activity. Rather, like §§323(a) and 323(b), it limits only the source and amount of contributions that state and local candidates can draw on to fund expenditures that directly impact federal elections. And, by regulating only contributions used to fund “public communications,” §323(f) focuses narrowly on those soft-money donations with the greatest potential to corrupt or give rise to the appearance of corruption of federal candidates and officeholders. Plaintiffs advance two principal arguments against §323(f). We have already rejected the first argument, that the definition of “public communications” in new FECA §301(20)(A)(iii) is unconstitutionally vague and overbroad. See supra , 62, n. 64. We add only that, plaintiffs’ and Justice Kennedy’s contrary reading notwithstanding, post , at 34, this provision does not prohibit a state or local candidate from advertising that he has received a federal officeholder’s endorsement.[ Footnote 71 ] The second argument, that soft-money contributions to state and local candidates for “public communications” do not corrupt or appear to corrupt federal candidates, ignores both the record in this litigation and Congress’ strong interest in preventing circumvention of otherwise valid contribution limits. The proliferation of sham issue ads has driven the soft-money explosion. Parties have sought out every possible way to fund and produce these ads with soft money: They have labored to bring them under the FEC’s allocation regime; they have raised and transferred soft money from national to state party committees to take advantage of favorable allocation ratios; and they have transferred and solicited funds to tax-exempt organizations for production of such ads. We will not upset Congress’ eminently reasonable prediction that, with these other avenues no longer available, state and local candidates and officeholders will become the next conduits for the soft-money funding of sham issue advertising. We therefore uphold §323(f) against plaintiffs’ First Amendment challenge.[ Footnote 72 ] B Several plaintiffs contend that Title I exceeds Congress’ Election Clause authority to “make or alter” rules governing federal elections, U. S. Const., Art. I, §4, and, by impairing the authority of the States to regulate their own elections, violates constitutional principles of federalism. In examining congressional enactments for infirmity under the Tenth Amendment, this Court has focused its attention on laws that commandeer the States and state officials in carrying out federal regulatory schemes. See Printz v. United States , 521 U. S. 898 (1997); New York v. United States , 505 U. S. 144 (1992). By contrast, Title I of BCRA only regulates the conduct of private parties. It imposes no requirements whatsoever upon States or state officials, and, because it does not expressly pre-empt state legislation, it leaves the States free to enforce their own restrictions on the financing of state electoral campaigns. It is true that Title I, as amended, prohibits some fundraising tactics that would otherwise be permitted under the laws of various States, and that it may therefore have an indirect effect on the financing of state electoral campaigns. But these indirect effects do not render BCRA unconstitutional. It is not uncommon for federal law to prohibit private conduct that is legal in some States. See, e.g. , United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483 (2001). Indeed, such conflict is inevitable in areas of law that involve both state and federal concerns. It is not in and of itself a marker of constitutional infirmity. See Ex parte Siebold , 100 U. S. 371 , 392 (1879). Of course, in maintaining the federal system envisioned by the Founders, this Court has done more than just prevent Congress from commandeering the States. We have also policed the absolute boundaries of congressional power under Article I. See United States v. Morrison, 529 U. S. 598 (2000); United States v. Lopez, 514 U. S. 549 (1995). But plaintiffs offer no reason to believe that Congress has overstepped its Elections Clause power in enacting BCRA. Congress has a fully legitimate interest in maintaining the integrity of federal officeholders and preventing corruption of federal electoral processes through the means it has chosen. Indeed, our above analysis turns on our finding that those interests are sufficient to satisfy First Amendment scrutiny. Given that finding, we cannot conclude that those interests are insufficient to ground Congress’ exercise of its Elections Clause power. See Morrison , supra, at 607 (respect owed to coordinate branches “demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds”). C Finally, plaintiffs argue that Title I violates the equal protection component of the Due Process Clause of the Fifth Amendment because it discriminates against political parties in favor of special interest groups such as the National Rifle Association (NRA), American Civil Liberties Union (ACLU), and Sierra Club. As explained earlier, BCRA imposes numerous restrictions on the fundraising abilities of political parties, of which the soft-money ban is only the most prominent. Interest groups, however, remain free to raise soft money to fund voter registration, GOTV activities, mailings, and broadcast advertising (other than electioneering communications). We conclude that this disparate treatment does not offend the Constitution. As an initial matter, we note that BCRA actually favors political parties in many ways. Most obviously, party committees are entitled to receive individual contributions that substantially exceed FECA’s limits on contributions to nonparty political committees; individuals can give $25,000 to political party committees whereas they can give a maximum of $5,000 to nonparty political committees. In addition, party committees are entitled in effect to contribute to candidates by making coordinated expenditures, and those expenditures may greatly exceed the contribution limits that apply to other donors. See 2 U. S. C. A. §441a(d) (Supp. 2003). More importantly, however, Congress is fully entitled to consider the real-world differences between political parties and interest groups when crafting a system of campaign finance regulation. See National Right to Work , 459 U. S., at 210. Interest groups do not select slates of candidates for elections. Interest groups do not determine who will serve on legislative committees, elect congressional leadership, or organize legislative caucuses. Political parties have influence and power in the legislature that vastly exceeds that of any interest group. As a result, it is hardly surprising that party affiliation is the primary way by which voters identify candidates, or that parties in turn have special access to and relationships with federal officeholders. Congress’ efforts at campaign finance regulation may account for these salient differences. Taken seriously, appellants’ equal protection arguments would call into question not just Title I of BCRA, but much of the pre-existing structure of FECA as well. We therefore reject those arguments. Accordingly, we affirm the judgment of the District Court insofar as it upheld §§323(e) and 323(f). We reverse the judgment of the District Court insofar as it invalidated §§323(a), 323(b), and 323(d). IV Title II of BCRA, entitled “Noncandidate Campaign Expenditures,” is divided into two subtitles: “Electioneering Communications” and “Independent and Coordinated Expenditures.” We consider each challenged section of these subtitles in turn. BCRA §201’s Definition of “Electioneering Communication” The first section of Title II, §201, comprehensively amends FECA §304, which requires political committees to file detailed periodic financial reports with the FEC. The amendment coins a new term, “electioneering communication,” to replace the narrowing construction of FECA’s disclosure provisions adopted by this Court in Buckley . As discussed further below, that construction limited the coverage of FECA’s disclosure requirement to communications expressly advocating the election or defeat of particular candidates. By contrast, the term “electioneering communication” is not so limited, but is defined to encompass any “broadcast, cable, or satellite communication” that “(I) refers to a clearly identified candidate for Federal office; “(II) is made within— “(aa) 60 days before a general, special, or runoff election for the office sought by the candidate; or “(bb) 30 days before a primary or preference election, or a convention or caucus of a political party that has authority to nominate a candidate, for the office sought by the candidate; and “(III) in the case of a communication which refers to a candidate other than President or Vice President, is targeted to the relevant electorate.” 2 U. S. C. A. §434(f)(3)(A)(i) (Supp. 2003).[ Footnote 73 ] New FECA §304(f)(3)(C) further provides that a communication is “ ‘targeted to the relevant electorate’ ” if it “can be received by 50,000 or more persons” in the district or State the candidate seeks to represent. 2 U. S. C. A. §434(f )(3)(C). In addition to setting forth this definition, BCRA’s amendments to FECA §304 specify significant disclosure requirements for persons who fund electioneering communications. BCRA’s use of this new term is not, however, limited to the disclosure context: A later section of the Act (BCRA §203, which amends FECA §316(b)(2)) restricts corporations’ and labor unions’ funding of electioneering communications. Plaintiffs challenge the constitutionality of the new term as it applies in both the disclosure and the expenditure contexts. The major premise of plaintiffs’ challenge to BCRA’s use of the term “electioneering communication” is that Buckley drew a constitutionally mandated line between express advocacy and so-called issue advocacy, and that speakers possess an inviolable First Amendment right to engage in the latter category of speech. Thus, plaintiffs maintain, Congress cannot constitutionally require disclosure of, or regulate expenditures for, “electioneering communications” without making an exception for those “communications” that do not meet Buckley ’s definition of express advocacy. That position misapprehends our prior decisions, for the express advocacy restriction was an endpoint of statutory interpretation, not a first principle of constitutional law. In Buckley we began by examining then-18 U. S. C. §608(e)(1) (1970 ed., Supp. IV), which restricted expenditures “ ‘relative to a clearly identified candidate,’ ” and we found that the phrase “ ‘relative to’ ” was impermissibly vague. 424 U. S., at 40–42 . We concluded that the vagueness deficiencies could “be avoided only by reading §608(e)(1) as limited to communications that include explicit words of advocacy of election or defeat of a candidate.”[ Footnote 74 ] Id ., at 43. We provided examples of words of express advocacy, such as “ ‘vote for,’ ‘elect,’ ‘support,’ … ‘defeat,’ [and] ‘reject,’ ” id ., at 44, n. 52, and those examples eventually gave rise to what is now known as the “magic words” requirement. We then considered FECA’s disclosure provisions, including 2 U. S. C. §431(f) (1970 ed., Supp. IV), which defined “ ‘expenditur[e]’ ” to include the use of money or other assets “ ‘for the purpose of … influencing’ ” a federal election. Buckley, 424 U. S., at 77. Finding that the “ambiguity of this phrase” posed “constitutional problems,” ibid., we noted our “obligation to construe the statute, if that can be done consistent with the legislature’s purpose, to avoid the shoals of vagueness,” id ., at 77–78 (citations omitted). “To insure that the reach” of the disclosure requirement was “not impermissibly broad, we construe[d] ‘expenditure’ for purposes of that section in the same way we construed the terms of §608(e)—to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate.” Id ., at 80 (footnote omitted). Thus, a plain reading of Buckley makes clear that the express advocacy limitation, in both the expenditure and the disclosure contexts, was the product of statutory interpretation rather than a constitutional command.[ Footnote 75 ] In narrowly reading the FECA provisions in Buckley to avoid problems of vagueness and overbreadth, we nowhere suggested that a statute that was neither vague nor overbroad would be required to toe the same express advocacy line. Nor did we suggest as much in MCFL, 479 U. S. 238 (1986), in which we addressed the scope of another FECA expenditure limitation and confirmed the understanding that Buckley ’s express advocacy category was a product of statutory construction.[ Footnote 76 ] In short, the concept of express advocacy and the concomitant class of magic words were born of an effort to avoid constitutional infirmities. See NLRB v. Catholic Bishop of Chicago, 440 U. S. 490 , 500 (1979) (citing Murray v. Schooner Charming Betsy , 2 Cranch 64, 118 (1804)). We have long “rigidly adhered” to the tenet “ ‘never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied,’ ” United States v. Raines, 362 U. S. 17 , 21 (1960) (citation omitted), for “[t]he nature of judicial review constrains us to consider the case that is actually before us,” James B. Beam Distilling Co. v. Georgia, 501 U. S. 529 , 547 (1991) (Blackmun, J., dissenting). Consistent with that principle, our decisions in Buckley and MCFL were specific to the statutory language before us; they in no way drew a constitutional boundary that forever fixed the permissible scope of provisions regulating campaign-related speech. Nor are we persuaded, independent of our precedents, that the First Amendment erects a rigid barrier between express advocacy and so-called issue advocacy. That notion cannot be squared with our longstanding recognition that the presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad. See Buckley, supra , at 45. Indeed, the unmistakable lesson from the record in this litigation, as all three judges on the District Court agreed, is that Buckley ’s magic-words requirement is functionally meaningless. 251 F. Supp. 2d, at 303–304 (Henderson, J.); id. , at 534 (Kollar-Kotelly, J.); id. , at 875–879 (Leon, J.). Not only can advertisers easily evade the line by eschewing the use of magic words, but they would seldom choose to use such words even if permitted.[ Footnote 77 ] And although the resulting advertisements do not urge the viewer to vote for or against a candidate in so many words, they are no less clearly intended to influence the election.[ Footnote 78 ] Buckley ’s express advocacy line, in short, has not aided the legislative effort to combat real or apparent corruption, and Congress enacted BCRA to correct the flaws it found in the existing system. Finally we observe that new FECA §304(f)(3)’s definition of “electioneering communication” raises none of the vagueness concerns that drove our analysis in Buckley . The term “electioneering communication” applies only (1) to a broadcast (2) clearly identifying a candidate for federal office, (3) aired within a specific time period, and (4) targeted to an identified audience of at least 50,000 viewers or listeners. These components are both easily understood and objectively determinable. See Grayned v. City of Rockford, 408 U. S. 104 , 108–114 (1972). Thus, the constitutional objection that persuaded the Court in Buckley to limit FECA’s reach to express advocacy is simply inapposite here. BCRA §201’s Disclosure Requirements Having rejected the notion that the First Amendment requires Congress to treat so-called issue advocacy differently from express advocacy, we turn to plaintiffs’ other concerns about the use of the term “electioneering communication” in amended FECA §304’s disclosure provisions. Under those provisions, whenever any person makes disbursements totaling more than $10,000 during any calendar year for the direct costs of producing and airing electioneering communications, he must file a statement with the FEC identifying the pertinent elections and all persons sharing the costs of the disbursements. 2 U. S. C. A. §§434(f)(2)(A), (B), and (D) (Supp. 2003). If the disbursements are made from a corporation’s or labor union’s segregated account,[ Footnote 79 ] or by a single individual who has collected contributions from others, the statement must identify all persons who contributed $1,000 or more to the account or the individual during the calendar year. §§434(f)(2)(E), (F). The statement must be filed within 24 hours of each “disclosure date”—a term defined to include the first date and all subsequent dates on which a person’s aggregate undisclosed expenses for electioneering communications exceed $10,000 for that calendar year. §§434(f)(1), (2) and (4). Another subsection further provides that the execution of a contract to make a disbursement is itself treated as a disbursement for purposes of FECA’s disclosure requirements. §434(f)(5). In addition to the failed argument that BCRA’s amendments to FECA §304 improperly extend to both express and issue advocacy, plaintiffs challenge amended FECA §304’s disclosure requirements as unnecessarily (1) requiring disclosure of the names of persons who contributed $1,000 or more to the individual or group that paid for a communication, and (2) mandating disclosure of executory contracts for communications that have not yet aired. The District Court rejected the former submission but accepted the latter, finding invalid new FECA §304(f)(5), which governs executory contracts. Relying on BCRA’s severability provision,[ Footnote 80 ] the court held that invalidation of the executory contracts subsection did not render the balance of BCRA’s amendments to FECA §304 unconstitutional. 251 F. Supp. 2d, at 242 (per curiam) . We agree with the District Court that the important state interests that prompted the Buckley Court to uphold FECA’s disclosure requirements—providing the electorate with information, deterring actual corruption and avoiding any appearance thereof, and gathering the data necessary to enforce more substantive electioneering restrictions—apply in full to BCRA.[ Footnote 81 ] Accordingly, Buckley amply supports application of FECA §304’s disclosure requirements to the entire range of “electioneering communications.” As the authors of the District Court’s per curiam opinion concluded after reviewing evidence concerning the use of purported “issue ads” to influence federal elections: “The factual record demonstrates that the abuse of the present law not only permits corporations and labor unions to fund broadcast advertisements designed to influence federal elections, but permits them to do so while concealing their identities from the public. BCRA’s disclosure provisions require these organizations to reveal their identities so that the public is able to identify the source of the funding behind broadcast advertisements influencing certain elections. Plaintiffs’ disdain for BCRA’s disclosure pro-visions is nothing short of surprising. Plaintiffs chal-lenge BCRA’s restrictions on electioneering communications on the premise that they should be permitted to spend corporate and labor union general treasury funds in the sixty days before the federal elections on broadcast advertisements, which refer to federal candidates, because speech needs to be ‘uninhibited, robust, and wide-open.’ McConnell Br. at 44 (quoting New York Times Co. v. Sullivan, 376 U. S. 254 , 270 (1964)). Curiously, Plaintiffs want to preserve the ability to run these advertisements while hiding behind dubious and misleading names like: ‘The Coalition-Americans Working for Real Change’ (funded by business organizations opposed to organized labor), ‘Citizens for Better Medicare’ (funded by the pharmaceutical industry), ‘Republicans for Clean Air’ (funded by brothers Charles and Sam Wyly). Findings ¶ ;¶ ;44, 51, 52. Given these tactics, Plaintiffs never satisfactorily answer the question of how ‘uninhibited, robust, and wide-open’ speech can occur when organizations hide themselves from the scrutiny of the voting public. McConnell Br. at 44. Plaintiffs’ argument for striking down BCRA’s disclosure provisions does not reinforce the precious First Amendment values that Plaintiffs argue are trampled by BCRA, but ignores the competing First Amendment interests of individual citizens seeking to make informed choices in the political marketplace.” 251 F. Supp. 2d, at 237. The District Court was also correct that Buckley forecloses a facial attack on the new provision in §304 that requires disclosure of the names of persons contributing $1,000 or more to segregated funds or individuals that spend more than $10,000 in a calendar year on electioneering communications. Like our earlier decision in NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958),[ Footnote 82 ] Buckley recognized that compelled disclosures may impose an unconstitutional burden on the freedom to associate in support of a particular cause. Nevertheless, Buckley rejected the contention that FECA’s disclosure requirements could not constitutionally be applied to minor parties and independent candidates because the Government’s interest in obtaining information from such parties was minimal and the danger of infringing their rights substantial. In Buckley , unlike NAACP , we found no evidence that any party had been exposed to economic reprisals or physical threats as a result of the compelled disclosures. Buckley , 424 U. S., at 69–70. We acknowledged that such a case might arise in the future, however, and addressed the standard of proof that would then apply: “We recognize that unduly strict requirements of proof could impose a heavy burden, but it does not follow that a blanket exemption for minor parties is necessary. Minor parties must be allowed sufficient flexibility in the proof of injury to assure a fair consideration of their claim. The evidence offered need show only a reasonable probability that the compelled disclosure of a party’s contributors’ names will subject them to threats, harassment, or reprisals from either Government officials or private parties.” Id. , at 74. A few years later we used that standard to resolve a minor party’s challenge to the constitutionality of the State of Ohio’s disclosure requirements. We held that the First Amendment prohibits States from compelling disclosures that would subject identified persons to “threats, harassment, and reprisals,” and that the District Court’s findings had established a “reasonable probability” of such a result.[ Footnote 83 ] Brown v. Socialist Workers ’74 Campaign Comm. (Ohio), 459 U. S. 87 , 100 (1982). In this litigation the District Court applied Buckley ’s evidentiary standard and found—consistent with our conclusion in Buckley , and in contrast to that in Brown —that the evidence did not establish the requisite “reasonable probability” of harm to any plaintiff group or its members. The District Court noted that some parties had expressed such concerns, but it found a “lack of specific evidence about the basis for these concerns.” 251 F. Supp. 2d, at 247 (per curiam) . We agree, but we note that, like our refusal to recognize a blanket exception for minor parties in Buckley, our rejection of plaintiffs’ facial challenge to the requirement to disclose individual donors does not foreclose possible future challenges to particular applications of that requirement. We also are unpersuaded by plaintiffs’ challenge to new FECA §304(f)(5), which requires disclosure of executory contracts for electioneering communications: “Contracts to disburse “For purposes of this subsection, a person shall be treated as having made a disbursement if the person has executed a contract to make the disbursement.” 2 U. S. C. A. §434(f)(5) (Supp. 2003). In our view, this provision serves an important purpose the District Court did not advance. BCRA’s amendments to FECA §304 mandate disclosure only if and when a person makes disbursements totaling more than $10,000 in any calendar year to pay for electioneering communications. Plaintiffs do not take issue with the use of a dollar amount, rather than the number or dates of the ads, to identify the time when a person paying for electioneering communications must make disclosures to the FEC. Nor do they question the need to make the contents of parties’ disclosure statements available to curious voters in advance of elections. Given the relatively short time frames in which electioneering communications are made, the interest in assuring that disclosures are made promptly and in time to provide relevant information to voters is unquestionably significant. Yet fixing the deadline for filing disclosure statements based on the date when aggregate disbursements exceed $10,000 would open a significant loophole if advertisers were not required to disclose executory contracts. In the absence of that requirement, political supporters could avoid preelection disclosures concerning ads slated to run during the final week of a campaign simply by making a preelection downpayment of less than $10,000, with the balance payable after the election. Indeed, if the advertiser waited to pay that balance until the next calendar year then, as long as the balance did not itself exceed $10,000, the advertiser might avoid the disclosure requirements completely. The record contains little evidence identifying any harm that might flow from the enforcement of §304(f)(5)’s “advance” disclosure requirement. The District Court speculated that disclosing information about contracts “that have not been performed, and may never be performed, may lead to confusion and an unclear record upon which the public will evaluate the forces operating in the political marketplace.” 251 F. Supp. 2d, at 241 (per curiam) . Without evidence relating to the frequency of nonperformance of executed contracts, such speculation cannot outweigh the public interest in ensuring full disclosure before an election actually takes place. It is no doubt true that §304(f)(5) will sometimes require the filing of disclosure statements in advance of the actual broadcast of an advertisement.[ Footnote 84 ] But the same would be true in the absence of an advance disclosure requirement, if a television station insisted on advance payment for all of the ads covered by a contract. Thus, the possibility that amended §304 may sometimes require disclosures prior to the airing of an ad is as much a function of the use of disbursements (rather than the date of an ad) to trigger the disclosure requirement as it is a function of §304(f)(5)’s treatment of executory contracts. As the District Court observed, amended FECA §304’s disclosure requirements are constitutional because they “ ‘d[o] not prevent anyone from speaking.’ ” Ibid . (quoting Brief for FEC in Opposition in No. 02–582 et al. (DC), p. 112). Moreover, the required disclosures “ ‘would not have to reveal the specific content of the advertisements, yet they would perform an important function in informing the public about various candidates’ supporters before election day.’ ” 251 F. Supp. 2d, at 241 (quoting Brief for FEC in Opposition, supra , at 112) (emphasis in original). Accordingly, we affirm the judgment of the District Court insofar as it upheld the disclosure requirements in amended FECA §304 and rejected the facial attack on the provisions relating to donors of $1,000 or more, and reverse that judgment insofar as it invalidated FECA §304(f)(5). BCRA §202’s Treatment of “Coordinated Communications” as Contributions Section 202 of BCRA amends FECA §315(a)(7)(C) to provide that disbursements for “electioneering communication[s]” that are coordinated with a candidate or party will be treated as contributions to, and expenditures by, that candidate or party. 2 U. S. C. A. §441a(a)(7)(C) (Supp. 2003).[ Footnote 85 ] The amendment clarifies the scope of the preceding subsection, §315(a)(7)(B), which states more generally that “expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of  ” a candidate or party will constitute contributions. 2 U. S. C. §§441a(a)(7)(B)(i)–(ii). In Buckley we construed the statutory term “expenditure” to reach only spending for express advocacy. 424 U. S., at 40–43, and n. 52 (addressing 18 U. S. C. §608(e)(1) (1970 ed., Supp. IV), which placed a $1,000 cap on expenditures “ ‘relative to a clearly identified candidate’ ”). BCRA §202 pre-empts a possible claim that §315(a)(7)(B) is similarly limited, such that coordinated expenditures for communications that avoid express advocacy cannot be counted as contributions. As we explained above, see supra , at 83–86, Buckley ’s narrow interpretation of the term “expenditure” was not a constitutional limitation on Congress’ power to regulate federal elections. Accordingly, there is no reason why Congress may not treat coordinated disbursements for electioneering communications in the same way it treats all other coordinated expenditures. We affirm the judgment of the District Court insofar as it held that plaintiffs had advanced “no basis for finding Section 202 unconstitutional.” 251 F. Supp. 2d, at 250. BCRA §203’s Prohibition of Corporate and Labor Disbursements for Electioneering Communications Since our decision in Buckley , Congress’ power to prohibit corporations and unions from using funds in their treasuries to finance advertisements expressly advocating the election or defeat of candidates in federal elections has been firmly embedded in our law. The ability to form and administer separate segregated funds authorized by FECA §316, 2 U. S. C. A. §441b (main ed. and Supp. 2003), has provided corporations and unions with a constitutionally sufficient opportunity to engage in express advocacy. That has been this Court’s unanimous view,[ Footnote 86 ] and it is not challenged in this litigation. Section 203 of BCRA amends FECA §316(b)(2) to extend this rule, which previously applied only to express advocacy, to all “electioneering communications” covered by the definition of that term in amended FECA §304(f)(3), discussed above. 2 U. S. C. A. §441b(b)(2) (Supp. 2003).[ Footnote 87 ] Thus, under BCRA, corporations and unions may not use their general treasury funds to finance electioneering communications, but they remain free to organize and administer segregated funds, or PACs, for that purpose. Because corporations can still fund electioneering communications with PAC money, it is “simply wrong” to view the provision as a “complete ban” on expression rather than a regulation. Beaumont , 539 U. S., at ___, ___ (slip op., at 15). As we explained in Beaumont: “The PAC option allows corporate political participation without the temptation to use corporate funds for political influence, quite possibly at odds with the sentiments of some shareholders or members, and it lets the government regulate campaign activity through registration and disclosure, see [2 U. S. C.] §§432–434, without jeopardizing the associational rights of advocacy organizations’ members.” Id. , at ___ (slip op., at 16) (citation omitted). See also Austin v. Michigan Chamber of Commerce, 494 U. S. 652 , 658 (1990). Rather than arguing that the prohibition on the use of general treasury funds is a complete ban that operates as a prior restraint, plaintiffs instead challenge the expanded regulation on the grounds that it is both overbroad and underinclusive. Our consideration of plaintiffs’ challenge is informed by our earlier conclusion that the distinction between express advocacy and so-called issue advocacy is not constitutionally compelled. In that light, we must examine the degree to which BCRA burdens First Amendment expression and evaluate whether a compelling governmental interest justifies that burden. Id., at 657. The latter question—whether the state interest is compelling—is easily answered by our prior decisions regarding campaign finance regulation, which “represent respect for the ‘legislative judgment that the special characteristics of the corporate structure require particularly careful regulation.’ ” Beaumont , supra , at ___ (slip op., at 8) (quoting National Right to Work, 459 U. S., at 209–210). We have repeatedly sustained legislation aimed at “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” Austin, supra , at 660; see Beaumont, supra , at ___ (slip op., at 7–8); National Right to Work, supra , at 209–210. Moreover, recent cases have recognized that certain restrictions on corporate electoral involvement permissibly hedge against “ ‘circumvention of [valid] contribution limits.’ ” Beaumont , supra , at ___ (slip op., at 7) (quoting Colorado II, 533 U. S., at 456, and n. 18.) In light of our precedents, plaintiffs do not contest that the Government has a compelling interest in regulating advertisements that expressly advocate the election or defeat of a candidate for federal office. Nor do they contend that the speech involved in so-called issue advocacy is any more core political speech than are words of express advocacy. After all, “the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office,” Monitor Patriot Co. v. Roy, 401 U. S. 265 , 272 (1971), and “[a]dvocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation.” Buckley, 424 U. S., at 48. Rather, plaintiffs argue that the justifications that adequately support the regulation of express advocacy do not apply to significant quantities of speech encompassed by the definition of electioneering communications. This argument fails to the extent that the issue ads broadcast during the 30- and 60-day periods preceding federal primary and general elections are the functional equivalent of express advocacy. The justifications for the regulation of express advocacy apply equally to ads aired during those periods if the ads are intended to influence the voters’ decisions and have that effect. The precise percentage of issue ads that clearly identified a candidate and were aired during those relatively brief preelection time spans but had no electioneering purpose is a matter of dispute between the parties and among the judges on the District Court. See 251 F. Supp. 2d, at 307–312 (Henderson, J.); id ., at 583–587 (Kollar-Kotelly, J.); id ., at 796–798 (Leon, J.). Nevertheless, the vast majority of ads clearly had such a purpose. Annenberg Report 13–14; App. 1330–1348 (Krasno & Sorauf Expert Report); 251 F. Supp. 2d, at 573–578 (Kollar-Kotelly, J.); id ., at 826–827 (Leon, J.). Moreover, whatever the precise percentage may have been in the past, in the future corporations and unions may finance genuine issue ads during those time frames by simply avoiding any specific reference to federal candidates, or in doubtful cases by paying for the ad from a segregated fund.[ Footnote 88 ] We are therefore not persuaded that plaintiffs have carried their heavy burden of proving that amended FECA §316(b)(2) is overbroad. See Broadrick v. Oklahoma, 413 U. S. 601 , 613 (1973). Even if we assumed that BCRA will inhibit some constitutionally protected corporate and union speech, that assumption would not “justify prohibiting all enforcement” of the law unless its application to protected speech is substantial, “not only in an absolute sense, but also relative to the scope of the law’s plainly legitimate applications.” Virginia v. Hicks, 539 U. S. ___, ___ (2003) (slip op., at 5–6). Far from establishing that BCRA’s application to pure issue ads is substantial, either in an absolute sense or relative to its application to election-related advertising, the record strongly supports the contrary conclusion. Plaintiffs also argue that FECA §316(b)(2)’s segregated-fund requirement for electioneering communications is underinclusive because it does not apply to advertising in the print media or on the Internet. 2 U. S. C. A. §434(f)(3)(A) (Supp. 2003). The records developed in this litigation and by the Senate Committee adequately explain the reasons for this legislative choice. Congress found that corporations and unions used soft money to finance a virtual torrent of televised election-related ads during the periods immediately preceding federal elections, and that remedial legislation was needed to stanch that flow of money. 251 F. Supp. 2d, at 569–573 (Kollar-Kotelly, J.); id ., at 799 (Leon, J.); 3 1998 Senate Report 4465, 4474–4481; 5 id., at 7521–7525. As we held in Buckley, “reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.” 424 U. S., at 105 (internal quotation marks and citations omitted). One might just as well argue that the electioneering communication definition is underinclusive because it leaves advertising 61 days in advance of an election entirely unregulated. The record amply justifies Congress’ line drawing. In addition to arguing that §316(b)(2)’s segregated-fund requirement is underinclusive, some plaintiffs contend that it unconstitutionally discriminates in favor of media companies. FECA §304(f)(3)(B)(i) excludes from the definition of electioneering communications any “communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, unless such facilities are owned or controlled by any political party, political committee, or candidate.” 2 U. S. C. A. §434(f)(3)(B)(i) (Supp. 2003). Plaintiffs argue this provision gives free rein to media companies to engage in speech without resort to PAC money. Section 304(f)(3)(B)(i)’s effect, however, is much narrower than plaintiffs suggest. The provision excepts news items and commentary only; it does not afford carte blanche to media companies generally to ignore FECA’s provisions. The statute’s narrow exception is wholly consistent with First Amendment principles. “A valid distinction … exists between corporations that are part of the media industry and other corporations that are not involved in the regular business of imparting news to the public.” Austin, 494 U. S., at 668. Numerous federal statutes have drawn this distinction to ensure that the law “does not hinder or prevent the institutional press from reporting on, and publishing editorials about, newsworthy events.” Ibid . (citations omitted); see, e.g. , 2 U. S. C. §431(9)(B)(i) (exempting news stories, commentaries, and editorials from FECA’s definition of “expenditure”); 15 U. S. C. §§1801–1804 (providing a limited antitrust exemption for newspapers); 47 U. S. C. §315(a) (excepting newscasts, news interviews, and news documentaries from the requirement that broadcasters provide equal time to candidates for public office).[ Footnote 89 ] We affirm the District Court’s judgment to the extent that it upheld the constitutionality of FECA §316(b)(2); to the extent that it invalidated any part of §316(b)(2), we reverse the judgment. BCRA §204’s Application to Nonprofit Corporations Section 204 of BCRA, which adds FECA §316(c)(6), applies the prohibition on the use of general treasury funds to pay for electioneering communications to not-for-profit corporations.[ Footnote 90 ] Prior to the enactment of BCRA, FECA required such corporations, like business corporations, to pay for their express advocacy from segregated funds rather than from their general treasuries. Our recent decision in Federal Election Comm’n v. Beaumont , 539 U. S. ___ (2003), confirmed that the requirement was valid except insofar as it applied to a sub-category of corporations described as “ MCFL organizations,” as defined by our decision in MCFL, 479 U. S. 238 (1986).[ Footnote 91 ] The constitutional objection to applying FECA’s segregated-fund requirement to so-called MCFL organizations necessarily applies with equal force to FECA §316(c)(6). Our decision in MCFL related to a carefully defined category of entities. We identified three features of the organization at issue in that case that were central to our holding: “ First , it was formed for the express purpose of promoting political ideas, and cannot engage in business activities. If political fundraising events are expressly denominated as requests for contributions that will be used for political purposes, including direct expenditures, these events cannot be considered business activities. This ensures that political resources reflect political support. Second , it has no shareholders or other persons affiliated so as to have a claim on its assets or earnings. This ensures that persons connected with the organization will have no economic disincentive for disassociating with it if they disagree with its political activity. Third , MCFL was not established by a business corporation or a labor union, and it is its policy not to accept contributions from such entities. This prevents such corporations from serving as conduits for the type of direct spending that creates a threat to the political marketplace.” Id. , at 264. That FECA §316(c)(6) does not, on its face, exempt MCFL organizations from its prohibition is not a sufficient reason to invalidate the entire section. If a reasonable limiting construction “has been or could be placed on the challenged statute” to avoid constitutional concerns, we should embrace it. Broadrick, 413 U. S., at 613; Buckley, 424 U. S., at 44. Because our decision in the MCFL case was on the books for many years before BCRA was enacted, we presume that the legislators who drafted §316(c)(6) were fully aware that the provision could not validly apply to MCFL -type entities. See Bowen v. Massachusetts, 487 U. S. 879 , 896 (1988); Cannon v. University of Chicago, 441 U. S. 677 , 696–697 (1979). Indeed, the Government itself concedes that §316(c)(6) does not apply to MCFL organizations. As so construed, the provision is plainly valid. See Austin, 494 U. S., at 661–665 (holding that a segregated-fund requirement that did not explicitly carve out an MCFL exception could apply to a nonprofit corporation that did not qualify for MCFL status). Accordingly, the judgment of the District Court upholding §316(c)(6) as so limited is affirmed. BCRA §212’s Reporting Requirement for $1,000 Expenditures Section 212 of BCRA amends FECA §304 to add a new disclosure requirement, FECA §304(g), which applies to persons making independent expenditures of $1,000 or more during the 20-day period immediately preceding an election. Like FECA §304(f)(5), discussed above, new §304(g) treats the execution of a contract to make a disbursement as the functional equivalent of a payment for the goods or services covered by the contract.[ Footnote 92 ] In challenging this provision, plaintiffs renew the argument we rejected in the context of §304(f)(5): that they have a constitutional right to postpone any disclosure until after the performance of the services purchased by their expenditure. The District Court held that the challenge to FECA §304(g) was not ripe because the FEC has issued regulations “provid[ing] Plaintiffs with the exact remedy they seek”—that is, specifically declining to “require disclosure of independent express advocacy expenditures prior to their ‘publi[c] disseminat[ion].’ ” 251 F. Supp. 2d, at 251, and n. 85 (per curiam) (citing 68 Fed. Reg. 404, 452 (2003) (codified at 11 CFR §§109.10(c), (d) (2003))). We are not certain that a regulation purporting to limit the range of circumstances in which a speech-burdening statute will be enforced can render nonjusticiable a facial challenge to the (concededly broader) underlying statute. Nevertheless, we need not separately address the constitutionality of §304(g), for our ruling as to BCRA §201, see supra , at 82– 89, renders the issue essentially moot. BCRA §213’s Requirement that Political Parties Choose Between Coordinated and Independent Expenditures After Nominating a Candidate Section 213 of BCRA amends FECA §315(d)(4) to impose certain limits on party spending during the postnomination, preelection period.[ Footnote 93 ] At first blush, the text of §315(d)(4)(A) appears to require political parties to make a straightforward choice between using limited coordinated expenditures or unlimited independent expenditures to support their nominees. All three judges on the District Court concluded that the provision placed an unconstitutional burden on the parties’ right to make unlimited independent expenditures. 251 F. Supp. 2d, at 388 (Henderson, J.); id. , at 650–651 (Kollar-Kotelly, J.), id. , at 805–808 (Leon, J.). In the end, we agree with that conclusion but believe it important to identify certain complexities in the text of §315(d)(4) that affect our analysis of the issue. Section 315 of FECA sets forth various limitations on contributions and expenditures by individuals, political parties, and other groups. Section 315(a)(2) restricts “contributions” by parties to $5,000 per candidate. 2 U. S. C. A. §441a(a)(2). Because §315(a)(7) treats expenditures that are coordinated with a candidate as contributions to that candidate, 2 U. S. C. A. §441(a)(7) (Supp. 2003), the $5,000 limit also operates as a cap on parties’ coordinated expenditures. Section 315(d), however, provides that, “[n]otwithstanding any other provision of law with respect to limitations on expenditures or limitations on contributions,” political parties may make “expenditures” in support of their candidates under a formula keyed to the voting-age population of the candidate’s home State or, in the case of a candidate for President, the voting-age population of the United States. 2 U. S. C. A. §§441a(d)(1)–(3) (main ed. and Supp. 2003).[ Footnote 94 ] In the year 2000, that formula permitted expenditures ranging from $33,780 to $67,650 for House of Representatives races, and from $67,650 to $1.6 million for Senate races. Colorado II, 533 U. S., at 439, n. 3. We held in Colorado I that parties have a constitutional right to make unlimited independent expenditures, and we invalidated §315(d) to the extent that it restricted such expenditures. As a result of that decision, §315(d) applies only to coordinated expenditures, replacing the $5,000 cap on contributions set out in §315(a)(2) with the more generous limitations prescribed by §§315(d)(1)–(3). We sustained that limited application in Colorado II, supra . Section 213 of BCRA amends §315(d) by adding a new paragraph (4). New §315(d)(4)(A) provides that, after a party nominates a candidate for federal office, it must choose between two spending options. Under the first option, a party that “makes any independent expenditure (as defined in section [301(17)])” is thereby barred from making “any coordinated expenditure under this subsection.” 2 U. S. C. A. §441a(d)(4)(A)(i) (Supp. 2003). The phrase “this subsection” is a reference to subsection (d) of §315. Thus, the consequence of making an independent expenditure is not a complete prohibition of any coordinated expenditure: Although the party cannot take advantage of the increased spending limits under §§315(d)(1)–(3), it still may make up to $5,000 in coordinated expenditures under §315(a)(2). As the difference between $5,000 and $1.6 million demonstrates, however, that is a significant cost to impose on the exercise of a constitutional right. The second option is the converse of the first. It provides that a party that makes any coordinated expenditure “under this subsection” ( i.e. , one that exceeds the ordinary $5,000 limit) cannot make “any independent expenditure (as defined in section [301(17)]) with respect to the candidate.” 2 U. S. C. A. §441a(d)(4)(A)(ii). Section 301(17) defines “ ‘independent expenditure’ ” to mean a non-coordinated expenditure “expressly advocating the election or defeat of a clearly identified candidate.” 2 U. S. C. A. §431(17)(A).[ Footnote 95 ] Therefore, as was true of the first option, the party’s choice is not as stark as it initially appears: The consequence of the larger coordinated expenditure is not a complete prohibition of any independent expenditure, but the forfeiture of the right to make independent expenditures for express advocacy . As we explained in our discussion of the provisions relating to electioneering communications, supra , at 83–87, express advocacy represents only a tiny fraction of the political communications made for the purpose of electing or defeating candidates during a campaign. Regardless of which option parties choose, they remain free to make independent expenditures for the vast majority of campaign ads that avoid the use of a few magic words. In sum, the coverage of new FECA §315(d)(4) is much more limited than it initially appears. A party that wishes to spend more than $5,000 in coordination with its nominee is forced to forgo only the narrow category of independent expenditures that make use of magic words. But while the category of burdened speech is relatively small, it plainly is entitled to First Amendment protection. See Buckley , 424 U. S., at 44–45, 48. Under §315(d)(4), a political party’s exercise of its constitutionally protected right to engage in “core First Amendment expression,” id., at 48, results in the loss of a valuable statutory benefit that has been available to parties for many years. To survive constitutional scrutiny, a provision that has such consequences must be supported by a meaningful governmental interest. The interest in requiring political parties to avoid the use of magic words is not such an interest. We held in Buckley that a $1,000 cap on expenditures that applied only to express advocacy could not be justified as a means of avoiding circumvention of contribution limits or preventing corruption and the appearance of corruption because its restrictions could easily be evaded: “So long as persons and groups eschew expenditures that in express terms advocate the election or defeat of a clearly identified candidate, they are free to spend as much as they want to promote the candidate and his views.” Id. , at 45. The same is true in this litigation. Any claim that a restriction on independent express advocacy serves a strong Government interest is belied by the overwhelming evidence that the line between express advocacy and other types of election-influencing expression is, for Congress’ purposes, functionally meaningless. Indeed, Congress enacted the new “electioneering communication[s]” provisions precisely because it recognized that the express advocacy test was woefully inadequate at capturing communications designed to influence candidate elections. In light of that recognition, we are hard pressed to conclude that any meaningful purpose is served by §315(d)(4)’s burden on a party’s right to engage independently in express advocacy. The Government argues that §315(d)(4) nevertheless is constitutional because it is not an outright ban (or cap) on independent expenditures, but rather offers parties a voluntary choice between a constitutional right and a statutory benefit. Whatever merit that argument might have in the abstract, it fails to account for new §315(d)(4)(B), which provides: “For purposes of this paragraph, all political committees established and maintained by a national political party (including all congressional campaign committees) and all political committees established and maintained by a State political party (including any subordinate committee of a State committee) shall be considered to be a single political committee.” 2 U. S. C. A. §441a(d)(4)(B) (Supp. 2003). Given that provision, it simply is not the case that each party committee can make a voluntary and independent choice between exercising its right to engage in independent advocacy and taking advantage of the increased limits on coordinated spending under §§315(d)(1)–(3). Instead, the decision resides solely in the hands of the first mover, such that a local party committee can bind both the state and national parties to its chosen spending option.[ Footnote 96 ] It is one thing to say that Congress may require a party committee to give up its right to make independent expenditures if it believes that it can accomplish more with coordinated expenditures. It is quite another thing, however, to say that the RNC must limit itself to $5,000 in coordinated expenditures in support of its presidential nominee if any state or local committee first makes an independent expenditure for an ad that uses magic words. That odd result undermines any claim that new §315(d)(4) can withstand constitutional scrutiny simply because it is cast as a voluntary choice rather than an outright prohibition on independent expenditures. The portion of the judgment of the District Court invalidating BCRA §213 is affirmed. BCRA §214’s Changes in FECA’s Provisions Covering Coordinated Expenditures Ever since our decision in Buckley , it has been settled that expenditures by a noncandidate that are “controlled by or coordinated with the candidate and his campaign” may be treated as indirect contributions subject to FECA’s source and amount limitations. 424 U. S., at 46. Thus, FECA §315(a)(7)(B)(i) long has provided that “expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate.” 2 U. S. C. A. §441a(a)(7)(B)(i) (Supp. 2003). Section 214(a) of BCRA creates a new FECA §315(a)(7)(B)(ii) that applies the same rule to expenditures coordinated with “a national, State, or local committee of a political party.” 2 U. S. C. A. §441a(a)(7)(B)(ii).[ Footnote 97 ] Sections 214(b) and (c) direct the FEC to repeal its current regulations[ Footnote 98 ] and to promulgate new regulations dealing with “coordinated communications” paid for by persons other than candidates or their parties. Subsection (c) provides that the new “regulations shall not require agreement or formal collaboration to establish coordination.” 2 U. S. C. A. §441a(a) note. Plaintiffs do not dispute that Congress may apply the same coordination rules to parties as to candidates. They argue instead that new FECA §315(a)(7)(B)(ii) and its implementing regulations are overbroad and unconstitutionally vague because they permit a finding of coordination even in the absence of an agreement. Plaintiffs point out that political supporters may be subjected to criminal liability if they exceed the contribution limits with expenditures that ultimately are deemed coordinated. Thus, they stress the importance of a clear definition of “coordination” and argue any definition that does not hinge on the presence of an agreement cannot provide the “precise guidance” that the First Amendment demands. Brief for Chamber of Commerce of the United States et al., Appellant in No. 02–1756, p. 48. As plaintiffs readily admit, that argument reaches beyond BCRA, calling into question FECA’s pre-existing provisions governing expenditures coordinated with candidates. We are not persuaded that the presence of an agreement marks the dividing line between expenditures that are coordinated—and therefore may be regulated as indirect contributions—and expenditures that truly are independent. We repeatedly have struck down limitations on expenditures “made totally independently of the candidate and his campaign,” Buckley , 424 U. S., at 47, on the ground that such limitations “impose far greater restraints on the freedom of speech and association” than do limits on contributions and coordinated expenditures, id. , at 44, while “fail[ing] to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process,” id ., at 47–48. See also Colorado I, 518 U. S., at 613–614 (striking down limit on expenditure made by party officials prior to nomination of candidates and without any consultation with potential nominees). We explained in Buckley: “Unlike contributions, … independent expenditures may well provide little assistance to the candidate’s campaign and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.” 424 U. S., at 47. Thus, the rationale for affording special protection to wholly independent expenditures has nothing to do with the absence of an agreement and everything to do with the functional consequences of different types of expenditures. Independent expenditures “are poor sources of leverage for a spender because they might be duplicative or counterproductive from a candidate’s point of view.” Colorado II, 533 U. S., at 446. By contrast, expenditures made after a “wink or nod” often will be “as useful to the candidate as cash.” Id. , at 442, 446. For that reason, Congress has always treated expenditures made “at the request or suggestion of” a candidate as coordinated.[ Footnote 99 ] 2 U. S. C. A. §441a(a)(7)(B)(i) (Supp. 2003). A supporter easily could comply with a candidate’s request or suggestion without first agreeing to do so, and the resulting expenditure would be “ ‘virtually indistinguishable from [a] simple contributio[n],’ ” Colorado II , supra , at 444–445. Therefore, we cannot agree with the submission that new FECA §315(a)(7)(B)(ii) is overbroad because it permits a finding of coordination or cooperation notwithstanding the absence of a pre-existing agreement. Nor are we persuaded that the absence of an agreement requirement renders §315(a)(7)(B)(ii) unconstitutionally vague. An agreement has never been required to support a finding of coordination with a candidate under §315(a)(7)(B)(i), which refers to expenditures made “in cooperation, consultation, or concer[t] with, or at the request or suggestion of” a candidate. Congress used precisely the same language in new §315(a)(7)(B)(ii) to address expenditures coordinated with parties. FECA’s longstanding definition of coordination “delineates its reach in words of common understanding.” Cameron v. Johnson, 390 U. S. 611 , 616 (1968). Not surprisingly, therefore, the relevant statutory language has survived without constitutional challenge for almost three decades. Although that fact does not insulate the definition from constitutional scrutiny, it does undermine plaintiffs’ claim that the language of §315(a)(7)(B)(ii) is intolerably vague. Plaintiffs do not present any evidence that the definition has chilled political speech, whether between candidates and their supporters or by the supporters to the general public. See Reno v. American Civil Liberties Union, 521 U. S. 844 , 874 (1997) (noting risk that vague statutes may chill protected expression). And, although plaintiffs speculate that the FEC could engage in intrusive and politically motivated investigations into alleged coordination, they do not even attempt to explain why an agreement requirement would solve that problem. Moreover, the only evidence plaintiffs have adduced regarding the enforcement of the coordination provision during its 27-year history concerns three investigations in the late 1990’s into groups on different sides of the political aisle. Such meager evidence does not support the claim that §315(a)(7)(B)(ii) will “foster ‘arbitrary and discriminatory application.’ ” Buckley, supra, at 41, n. 48 (quoting Grayned v. City of Rockford , 408 U. S., at 108–109). We conclude that FECA’s definition of coordination gives “fair notice to those to whom [it] is directed,” American Communications Assn. v. Douds, 339 U. S. 382 , 412 (1950), and is not unconstitutionally vague. Finally, portions of plaintiffs’ challenge to BCRA §214 focus on the regulations the FEC has promulgated under §214(c). 11 CFR §109.21 (2003). As the District Court explained, issues concerning the regulations are not appropriately raised in this facial challenge to BCRA, but must be pursued in a separate proceeding. Thus, we agree with the District Court that plaintiffs’ challenge to §§214(b) and (c) is not ripe to the extent that the alleged constitutional infirmities are found in the implementing regulations rather than the statute itself. The portions of the District Court judgment rejecting plaintiffs’ challenges to BCRA §214 are affirmed. V Many years ago we observed that “[t]o say that Congress is without power to pass appropriate legislation to safeguard … an election from the improper use of money to influence the result is to deny to the nation in a vital particular the power of self protection.” Burroughs v. United States, 290 U. S., at 545. We abide by that conviction in considering Congress’ most recent effort to confine the ill effects of aggregated wealth on our political system. We are under no illusion that BCRA will be the last congressional statement on the matter. Money, like water, will always find an outlet. What problems will arise, and how Congress will respond, are concerns for another day. In the main we uphold BCRA’s two principal, complementary features: the control of soft money and the regulation of electioneering communications. Accordingly, we affirm in part and reverse in part the District Court’s judgment with respect to Titles I and II. It is so ordered. * Justice Souter, Justice Ginsburg, and Justice Breyer join this opinion in its entirety. Footnote 1 The parties to the litigation are described in the findings of the District Court. 251 F. Supp. 2d 176, 221–226 (DC 2003) (per curiam) . For the sake of clarity, we refer to the parties who challenged the law in the District Court as the “plaintiffs,” referring to specific plaintiffs by name where necessary. We refer to the parties who intervened in defense of the law as the “intervenor-defendants.” Footnote 2 The Hatch Act also limited both the amount political committees could expend and the amount they could receive in contributions. Act of July 19, 1940, ch. 640, 54 Stat. 767. Senator Bankhead, in offering the amendment from the Senate floor, said: “ ‘We all know that money is the chief source of corruption. We all know that large contributions to political campaigns not only put the political party under obligation to the large contributors, who demand pay in the way of legislation, but we also know that large sums of money are used for the purpose of conducting expensive campaigns through the newspapers and over the radio; in the publication of all sorts of literature, true and untrue; and for the purpose of paying the expenses of campaigners sent out into the country to spread propaganda, both true and untrue.’ ” United States v. Automobile Workers, 352 U. S. 567 , 577–578 (1957) (quoting 86 Cong. Rec. 2720 (1940)). Footnote 3 As a general rule, FECA permits corporations and unions to solicit contributions to their PACs from their shareholders or members, but not from outsiders. 2 U. S. C. §§441b(b)(4)(A), (C); see Federal Election Comm’n v. National Right to Work Comm., 459 U. S. 197 , 198–199, and n. 1 (1982). Footnote 4 The court held that one disclosure provision was unconstitutionally vague and overbroad. Buckley v. Valeo , 519 F. 2d 821, 832 (CADC 1975) (en banc) (per curiam) (invalidating 2 U. S. C. §437a (1970 ed., Supp. V)). No appeal was taken from that holding. Buckley v. Valeo , 424 U. S. 1 , 10, n. 7 (1976) (per curiam) . Footnote 5 The Court of Appeals found: “Large contributions are intended to, and do, gain access to the elected official after the campaign for consideration of the contributor’s particular concerns. Senator Mathias not only describes this but also the corollary, that the feeling that big contributors gain special treatment produces a reaction that the average American has no significant role in the political process.” Buckley , 519 F. 2d, at 838 (footnotes omitted). The court also noted: “Congress found and the District Court confirmed that such contributions were often made for the purpose of furthering business or private interests by facilitating access to government officials or influencing governmental decisions, and that, conversely, elected officials have tended to afford special treatment to large contributors. See S. Rep. No. 93–689, 93d Cong., 2d Sess. 4–5; Findings I, ¶ ;¶ ;108, 110, 118, 170.” Id. , at 838, n. 32. Citing further evidence of corruption, the court explained: “The disclosures of illegal corporate contributions in 1972 included the testimony of executives that they were motivated by the perception that this was necessary as a ‘calling card, something that would get us in the door and make our point of view heard,’ Hearings before the Senate Select Comm. on Presidential Campaign Activities , 93d Cong., 1st Sess. 5442 (1973) (Ashland Oil Co.—Orin Atkins, Chairman) or ‘in response to pressure for fear of a competitive disadvantage that might result,’ id. at 5495, 5514 (American Airlines—George Spater, former chairman); see Findings I, ¶ ;105. The record before Congress was replete with specific examples of improper attempts to obtain governmental favor in return for large campaign contributions. See Findings I, ¶ ;¶ ;159–64.” Id. , at 839, n. 37. Footnote 6 The court cited the intricate scheme of the American Milk Producers, Inc., as an example of the lengths to which contributors went to avoid their duty to disclose: “Since the milk producers, on legal advice, worked on a $2500 limit per committee, they evolved a procedure, after consultation in November 1970 with Nixon fund raisers, to break down [their $2 million donation] into numerous smaller contributions to hundreds of committees in various states which could then hold the money for the President’s reelection campaign, so as to permit the producers to meet independent reporting requirements without disclosure.” Id., at 839, n. 36. The milk producers contributed large sums to the Nixon campaign “in order to gain a meeting with White House officials on price supports.” Ibid. Footnote 7 In 1977 the FEC promulgated a rule allowing parties to allocate their administrative expenses “on a reasonable basis” between accounts containing funds raised in compliance with FECA and accounts containing nonfederal funds, including corporate and union donations. 11 CFR §102.6(a)(2). In advisory opinions issued in 1978 and 1979, the FEC allowed parties similarly to allocate the costs of voter registration and get-out-the-vote drives between federal and nonfederal accounts. FEC Advisory Op. 1978–10; FEC Advisory Op. 1979–17. See 251 F. Supp. 2d, at 195–197 (per curiam) . In 1990 the FEC clarified the phrase “on a reasonable basis” by promulgating fixed allocation rates. 11 CFR §106.5 (1991). The regulations required the Republican National Committee (RNC) and Democratic National Committee (DNC) to pay for at least 60% of mixed-purpose activities (65% in presidential election years) with funds from their federal accounts. §106.5(b)(2). By contrast, the regulations required state and local committees to allocate similar expenditures based on the ratio of federal to nonfederal offices on the State’s ballot, §106.5(d)(1), which in practice meant that they could expend a substantially greater proportion of soft money than national parties to fund mixed-purpose activities affecting both federal and state elections. See 251 F. Supp. 2d, at 198–199 (per curiam) . Footnote 8 1 Defs. Exhs., Tab 1, Tbl. 2 (report of Thomas E. Mann, Chair & Sr. Fellow, Brookings Institution (hereinafter Mann Expert Report)); 251 F. Supp. 2d, at 197–201 (per curiam). Footnote 9 Mann Expert Report 26; 251 F. Supp. 2d, at 441 (Kollar-Kotelly, J.). Footnote 10 Id., at 494 (Kollar-Kotelly, J.). Footnote 11 Mann Expert Report 24. Footnote 12 In the 2000 election cycle, 35 of the 50 largest soft-money donors gave to both parties; 28 of the 50 gave more than $100,000 to both parties. Mann Expert Report Tbl. 6; see also 251 F. Supp. 2d, at 509 (Kollar-Kotelly, J.); id. , at 785, n. 77 (Leon, J.). Footnote 13 A former chief executive officer of a large corporation explained: “Business and labor leaders believe, based on their experience, that disappointed Members, and their party colleagues, may shun or disfavor them because they have not contributed. Equally, these leaders fear that if they refuse to contribute (enough), competing interests who do contribute generously will have an advantage in gaining access to and influencing key Congressional leaders on matters of importance to the company or union.” App. 283, ¶ ;9 (declaration of Gerald Greenwald, United Airlines (hereinafter Greenwald Decl.)). Amici Curiae Committee for Economic Development and various business leaders attest that corporate soft-money contributions are “coerced and, at bottom, wholly commercial” in nature, and that “[b]usiness leaders increasingly wish to be freed from the grip of a system in which they fear the adverse consequences of refusing to fill the coffers of the major parties.” Brief for Committee for Economic Development et al. as Amici Curiae 28. Footnote 14 See 251 F. Supp. 2d, at 480 (Kollar-Kotelly, J.); id. , at 842 (Leon, J.). Footnote 15 See id. , at 479–480 (Kollar-Kotelly, J.); id. , at 842–843 (Leon, J.). One former party official explained to the District Court: “ ‘Once you’ve helped a federal candidate by contributing hard money to his or her campaign, you are sometimes asked to do more for the candidate by making donations of hard and/or soft money to the national party committees, the relevant state party (assuming it can accept corporate contributions), or an outside group that is planning on doing an independent expenditure or issue advertisement to help the candidate’s campaign.’ ” Id. , at 479 (Kollar-Kotelly, J.). Footnote 16 Id. , at 532–537 (Kollar-Kotelly, J.); id ., at 875–879 (Leon, J.). As the former chair of one major advocacy organization’s PAC put it, “ ‘[i]t is foolish to believe there is any practical difference between issue advocacy and advocacy of a political candidate. What separates issue advocacy and political advocacy is a line in the sand drawn on a windy day.’ ” Id., at 536–537 (Kollar-Kotelly, J.) (quoting Tanya K. Metaksa, Opening Remarks at the American Assn. of Political Consultants Fifth General Session on “Issue Advocacy,” Jan. 17, 1997, p. 2); 251 F. Supp. 2d, at 878–879 (Leon, J.) (same). Footnote 17 Id., at 304 (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 534 (Kollar-Kotelly, J.); id. , at 875–879 (Leon, J.). Footnote 18 It is undisputed that very few ads—whether run by candidates, parties, or interest groups—used words of express advocacy. Id., at 303 (Henderson, J.); id. , at 529 (Kollar-Kotelly, J.); id. , at 874 (Leon, J.). In the 1998 election cycle, just 4% of candidate advertisements used magic words; in 2000, that number was a mere 5%. App. 1334 (report of Jonathan S. Krasno, Yale University, & Frank J. Sorauf, University of Minnesota, pp. 53–54 (hereinafter Krasno & Sorauf Expert Report); see 1 Defs. Exhs., Tab 2, pp. 53–54). Footnote 19 251 F. Supp. 2d, at 564, and n. 6 (Kollar-Kotelly, J.) (citing report of Kenneth M. Goldstein, University of Wisconsin-Madison, App. A, Tbl. 16; see 3–R Defs. Exhs., Tab 7); Tr. of Oral Arg. 202–203; see also 251 F. Supp. 2d, at 305 (Henderson, J.). Footnote 20 The spending on electioneering communications climbed dramatically during the last decade. In the 1996 election cycle, $135 to $150 million was spent on multiple broadcasts of about 100 ads. In the next cycle (1997-1998), 77 organizations aired 423 ads at a total cost between $270 and $340 million. By the 2000 election, 130 groups spent over an estimated $500 million on more than 1,100 different ads. Two out of every three dollars spent on issue ads in the 2000 cycle were attributable to the two major parties and six major interest groups. Id., at 303–304 (Henderson, J.) (citing Annenberg Public Policy Center, Issue Advertising in the 1999–2000 Election Cycle 1–15 (2001) (hereinafter Annenberg Report); see 38 Defs. Exhs., Tab 22); 251 F. Supp. 2d, at 527 (Kollar-Kotelly, J.) (same); id ., at 879 (Leon, J.) (same). Footnote 21 Id., at 540 (Kollar-Kotelly, J.) (quoting internal AFL-CIO Memorandum from Brian Weeks to Mike Klein, “Electronic Buy for Illinois Senator,” (Oct. 9, 1996), AFL-CIO 005244); 251 F. Supp. 2d, at 886 (Leon, J.) (same). Footnote 22 The association was known as the Pharmaceutical Research and Manufacturers of America (PhRMA). Id. , at 232 (per curiam) . Footnote 23 Id ., at 232–233. Other examples of mysterious groups included “Voters for Campaign Truth,” “Aretino Industries,” “Montanans for Common Sense Mining Laws,” “American Seniors, Inc.,” “American Family Voices,” App. 1355 (Krasno & Sorauf Expert Report 71–77), and the “Coalition to Make our Voices Heard,” 251 F. Supp. 2d, at 538 (Kollar-Kotelly, J.). Some of the actors behind these groups frankly acknowledged that “ ‘in some places it’s much more effective to run an ad by the ‘Coalition to Make Our Voices Heard’ than it is to say paid for by ‘the men and women of the AFL–CIO.’ ” Ibid. (Kollar-Kotelly, J.) (quoting report of David B. Magleby, Brigham Young University 18–19 (hereinafter Magleby Expert Report), App. 1484–1485). Footnote 24 251 F. Supp. 2d, at 518–519 (Kollar-Kotelly, J.). Footnote 25 Id., at 478–479 (Kollar-Kotelly, J.) (citing declaration of Robert Hickmott, Senior V. P., Smith-Free Group, ¶ ;8 (hereinafter Hickmott Decl.); see 6–R Defs. Exhs., Tab 19, ¶ ;8). Footnote 26 S. Rep. No. 105–167, vol. 4, p. 4611 (1998) (hereinafter 1998 Senate Report); 5 id., at 7515. Footnote 27 3 id., at 4535 (additional views of Sen. Collins). Footnote 28 1 id., at 41–42, 195–200. The report included a memorandum written by the DNC finance chairman suggesting the use of White House coffees and “overnights” to give major donors “quality time” with the President, and noted that the guests accounted for $26.4 million in contributions. Id. , at 194, 196. Footnote 29 2 id., at 2913–2914, 2921. Despite concerns about Tamraz’s background and a possible conflict with United States foreign policy interests, he was invited to six events attended by the President. Id. , at 2920–2921. Similarly, the minority noted that in exchange for Michael Kojima’s contribution of $500,000 to the 1992 President’s Dinner, he and his wife had been placed at the head table with President and Mrs. Bush. Moreover, Kojima received several additional meetings with the President, other administration officials, and United States embassy officials. 4 id., at 5418, 5422, 5428. Footnote 30 The former requires an initial contribution of $100,000, and $25,000 for each of the next three years; the latter requires annual contributions of $15,000. 5 id., at 7968. Footnote 31 Id. , at 7971. Footnote 32 1 id., at 49; 3 id., at 3997–4006. Footnote 33 Id ., at 4466. Footnote 34 Ibid. Footnote 35 Id. , at 4468–4470, 4480–4481, 4491–4494. Footnote 36 Id. , at 4492. Footnote 37 6 id., at 9394. Footnote 38 The national party committees of the two major political parties are: the Republican National Committee (RNC); the Democratic National Committee (DNC); the National Republican Senatorial Committee (NRSC); the National Republican Congressional Committee (NRCC); the Democratic Senatorial Campaign Committee (DSCC); and the Democratic Congressional Campaign Committee (DCCC). 251 F. Supp. 2d, at 468 (Kollar-Kotelly, J.). Footnote 39 Justice Kennedy accuses us of engaging in a sleight of hand by conflating “unseemly corporate speech” with the speech of political parties and candidates, and then adverting to the “corporate speech rationale as if it were the linchpin of the litigation.” Post , at 7 (opinion concurring in part and dissenting in part). This is incorrect. The principles set forth here and relied upon in assessing Title I are the same principles articulated in Buckley and its progeny that regulations of contributions to candidates, parties, and political committees are subject to less rigorous scrutiny than direct restraints on speech—including “unseemly corporate speech.” Footnote 40 Since our decision in Buckley , we have consistently applied less rigorous scrutiny to contribution restrictions aimed at the prevention of corruption and the appearance of corruption. See, e.g. , 424 U. S., at 23–36 (applying less rigorous scrutiny to FECA’s $1,000 limit on individual contributions to a candidate and FECA’s $5,000 limit on PAC contributions to a candidate); id. , at 38 (applying less rigorous scrutiny to FECA’s $25,000 aggregate yearly limit on contributions to candidates, political party committees, and political committees); California Medical Assn. v. Federal Election Comm’n, 453 U. S. 182 , 195–196 (1981) (plurality opinion) (applying less rigorous scrutiny to FECA’s $5,000 limit on contributions to multicandidate political committees); National Right to Work , 459 U. S., at 208–211 (applying less rigorous scrutiny to antisolicitation provision buttressing an otherwise valid contribution limit); Colorado II , 533 U. S. 431 , 456 (2001) (applying less rigorous scrutiny to expenditures coordinated with a candidate); Federal Election Comm’n v . Beaumont, 539 U. S.___, ___ (2003) (slip op., at 14–15) (applying less rigorous scrutiny to provisions intended to prevent circumvention of otherwise valid contribution limits). Footnote 41 Indeed, Congress structured §323(b) in such a way as to free individual, corporate, and union donations to state committees for nonfederal elections from federal source and amount restrictions. Footnote 42 Justice Kennedy’s contention that less rigorous scrutiny applies only to regulations burdening political association, rather than political speech, misreads Buckley . In Buckley , we recognized that contribution limits burden both protected speech and association, though they generally have more significant impacts on the latter. 424 U. S., at 20–22. We nevertheless applied less rigorous scrutiny to FECA’s contribution limits because neither burden was sufficiently weighty to overcome Congress’ countervailing interest in protecting the integrity of the political process. See Nixon v. Shrink Missouri Government PAC , 528 U. S. 377 , 388 (2000) (“While we did not [in Buckley ] attempt to parse [the] distinctions between the speech and association standards of scrutiny for contribution limits, we did make it clear that those restrictions bore more heavily on the associational right than on [the] freedom to speak. We consequently proceeded on the understanding that a contribution limitation surviving a claim of associational abridgment would survive a speech challenge as well, and we held the standard satisfied by the contribution limits under review.” (citation omitted)). It is thus simply untrue in the campaign finance context that all “burdens on speech necessitate strict scrutiny review.” Post , at 29. Footnote 43 Justice Kennedy is no doubt correct that the associational burdens imposed by a particular piece of campaign-finance regulation may at times be so severe as to warrant strict scrutiny. Ibid. In light of our interpretation of §323(a), however, see infra, at 46–47, §323 does not present such a case. As Justice Kennedy himself acknowledges, even “ significant interference” with “protected rights of association” are subject to less rigorous scrutiny. Beaumont , 539 U. S., at _____ (slip op., at 15); see post , at 28. There is thus nothing inconsistent in our decision to account for the particular associational burdens imposed by §323(a) when applying the appropriate level of scrutiny. Footnote 44 The fact that the post-1990 explosion in soft-money spending on federal electioneering was accompanied by a series of efforts in Congress to clamp down on such uses of soft money (culminating, of course, in BCRA) underscores the fact that the FEC regulations permitted more than Congress, in enacting FECA, had ever intended. See J. Cantor, Congressional Research Service Report for Congress: Campaign Finance Legislation in the 101st Congress (1990) (9 bills seeking to limit the influence of soft money introduced); J. Cantor, CRS Report for Congress: Campaign Finance Legislation in the 102nd Congress (1991) (10 such bills introduced); J. Cantor, CRS Report for Congress: Campaign Finance Legislation in the 103rd Congress (1993) (16 bills); J. Cantor, CRS Report for Congress: Campaign Finance Legislation in the 104th Congress (1996) (18 bills); see also 251 F. Supp. 2d, at 201–206 (per curiam) (discussing legislative efforts to curb soft money in 105th and subsequent Congresses). Footnote 45 Justice Kennedy contends that the plurality’s observation in Colorado I that large soft-money donations to a political party pose little threat of corruption “establish[es] that” such contributions are not corrupting. Post , at 17–18 (citing Colorado I , 518 U. S. 604 , 616, 617–618 (1996)). The cited dictum has no bearing on the present case. Colorado I addressed an entirely different question—namely, whether Congress could permissibly limit a party’s independent expenditures—and did so on an entirely different set of facts. It also had before it an evidentiary record frozen in 1990—well before the soft-money explosion of the 1990’s. See Federal Election Comm’n v. Colorado Republican Fed. Campaign Comm. , 839 F. Supp. 1448, 1451 (Colo. 1993). Footnote 46 Other business leaders agreed. For example, the chairman of the board and CEO of a major toy company explained: “ ‘Many in the corporate world view large soft money donations as a cost of doing business. … I remain convinced that in some of the more publicized cases, federal officeholders actually appear to have sold themselves and the party cheaply. They could have gotten even more money, because of the potential importance of their decisions to the affected business.’ ” 251 F. Supp. 2d, at 491 (Kollar-Kotelly, J.) (quoting declaration of Alan G. Hassenfeld, CEO, Hasbro, Inc., ¶ ;16; see 6–R Defs. Exhs., Tab 17). Similarly the chairman emeritus of a major airline opined: “ ‘Though a soft money check might be made out to a political party, labor and business leaders know that those checks open the doors of the offices of individual and important Members of Congress and the Administration… . Labor and business leaders believe—based on experience and with good reason—that such access gives them an opportunity to shape and affect governmental decisions and that their ability to do so derives from the fact that they have given large sums of money to the parties.’ ” 251 F. Supp. 2d, at 498 (Kollar-Kotelly, J.) (quoting Greenwald Decl. ¶ ;12, App. 283–284, ¶ ;10); 251 F. Supp. 2d, at 858–859 (Leon, J.) (same). Footnote 47 Even more troubling is evidence in the record showing that national parties have actively exploited the belief that contributions purchase influence or protection to pressure donors into making contributions. As one CEO explained: “ ‘[I]f you’re giving a lot of soft money to one side, the other side knows. For many economically-oriented donors, there is a risk in giving to only one side, because the other side may read through FEC reports and have staff or a friendly lobbyist call and indicate that someone with interests before a certain committee has had their contributions to the other side noticed. They’ll get a message that basically asks: ‘Are you sure you want to be giving only to one side? Don’t you want to have friends on both sides of the aisle?’ If your interests are subject to anger from the other side of the aisle, you need to fear that you may suffer a penalty if you don’t give… . [D]uring the 1990’s, it became more and more acceptable to call someone, saying you saw he gave to this person, so he should also give to you or the person’s opponent.’ ” Id. , at 510 (Kollar-Kotelly, J.) (quoting Randlett Decl. ¶ ;12, App. 715); 251 F. Supp. 2d, at 868 (Leon, J.) (same). Footnote 48 In addition to finding no support in our recent cases, see, e.g. , Colorado II , 533 U. S., at 441 (defining corruption more broadly than quid pro quo arrangements); Shrink Missouri , 528 U. S., at 389 (same), Justice Kennedy’s contention that Buckley limits Congress to regulating contributions to a candidate ignores Buckley itself. There, we upheld FECA’s $25,000 limit on aggregate yearly contributions to candidates, political committees , and party committees out of recognition that FECA’s $1,000 limit on candidate contributions would be meaningless if individuals could instead make “huge contributions to the candidate’s political party.” 424 U. S., at 38. Likewise, in California Medical Assn. v. Federal Election Comm’n, 453 U. S. 182 (1981), we upheld FECA’s $5,000 limit on contributions to multicandidate political committees. It is no answer to say that such limits were justified as a means of preventing individuals from using parties and political committees as pass-throughs to circumvent FECA’s $1,000 limit on individual contributions to candidates. Given FECA’s definition of “contribution,” the $5,000 and $25,000 limits restricted not only the source and amount of funds available to parties and political committees to make candidate contributions, but also the source and amount of funds available to engage in express advocacy and numerous other noncoordinated expenditures. If indeed the First Amendment prohibited Congress from regulating contributions to fund the latter, the otherwise-easy-to-remedy exploitation of parties as pass-throughs ( e.g. , a strict limit on donations that could be used to fund candidate contributions) would have provided insufficient justification for such overbroad legislation. Footnote 49 At another point, describing our “flawed reasoning,” Justice Kennedy seems to suggest that Congress’ interest in regulating the appearance of corruption extends only to those contributions that actually “create … corrupt donor favoritism among … officeholders.” Post , at 16. This latter formulation would render Congress’ interest in stemming the appearance of corruption indistinguishable from its interest in preventing actual corruption. Footnote 50 In support of this claim, the political party plaintiffs assert that, in 2001, the RNC spent $15.6 million of nonfederal funds (30% of the nonfederal amount raised that year) on purely state and local election activity, including contributions to state and local candidates, transfers to state parties, and direct spending. See Tr. of Oral Arg. 102–103 (statement of counsel Bobby R. Burchfield); 251 F. Supp. 2d, at 336–337 (Henderson, J.); id ., at 464–465 (Kollar-Kotelly, J.); id. , at 830 (Leon, J.). Footnote 51 The close relationship of federal officeholders and candidates to their parties answers not only The Chief Justice’s concerns about §323(a), but also his fear that our analysis of §323’s remaining provisions bespeaks no limiting principle. Post , at 6–7 (dissenting opinion). As set forth in our discussion of those provisions, the record demonstrates close ties between federal officeholders and the state and local committees of their parties. That close relationship makes state and local parties effective conduits for donors desiring to corrupt federal candidates and officeholders. Thus, in upholding §§323(b), (d), and (f), we rely not only on the fact that they regulate contributions used to fund activities influencing federal elections, but also that they regulate contributions to or at the behest of entities uniquely positioned to serve as conduits for corruption. We agree with The Chief Justice that Congress could not regulate financial contributions to political talk show hosts or newspaper editors on the sole basis that their activities conferred a benefit on the candidate. Post , at 7 (dissenting opinion). Footnote 52 Plaintiffs claim that the option of soliciting hard money for state and local candidates is an illusory one, since several States prohibit state and local candidates from establishing multiple campaign accounts, which would preclude them from establishing separate accounts for federal funds. See Cal. Fair Pol. Practs. Comm’n Advisory Op. A–91–448 (Dec. 16, 1991), 1991 WL 772902; Colo. Const., Art. XXVIII, §2(3); Iowa Code §56.5A (Supp. 2003); and Ohio Rev. Code Ann. §3517.10(J) (Anderson Supp. 2002). Plaintiffs maintain that §323(a) combines with these state laws to make it impossible for state and local candidates to receive hard-money donations. But the challenge we are considering is a facial one, and on its face §323(a) permits solicitations. The fact that a handful of States might interfere with the mechanism Congress has chosen for such solicitations is an argument that may be addressed in an as-applied challenge. Footnote 53 Even opponents of campaign finance reform acknowledged that “a prohibition of soft money donations to national party committees alone would be wholly ineffective.” The Constitution and Campaign Reform: Hearings on S. 522 before the Senate Committee on Rules and Administration, 106th Cong., 2d Sess., 301 (2000) (statement of Bobby R. Burchfield, Partner, Covington & Burling). Footnote 54 Generic campaign activity promotes a political party rather than a specific candidate. 2 U. S. C. A. §431(21). Footnote 55 A public communication is “a communication by means of any broadcast, cable, or satellite communication, newspaper, magazine, outdoor advertising facility, mass mailing, or telephone bank to the general public, or any other form of general public political advertising.” §431(22). Footnote 56 So long as the communication does not constitute voter registration, voter identification, GOTV, or generic campaign activity. §431(20)(B)(i). Footnote 57 Unless the contribution is earmarked for federal election activity. §431(20)(B)(ii). Footnote 58 The statute gives the FEC responsibility for setting the allocation ratio. §441i(b)(2)(A); see also 11 CFR §300.33(b) (2003) (defining allocation ratios). Footnote 59 One former Senator noted: “ ‘The fact is that much of what state and local parties do helps to elect federal candidates. The national parties know it; the candidates know it; the state and local parties know it. If state and local parties can use soft money for activities that affect federal elections, then the problem will not be solved at all. The same enormous incentives to raise the money will exist; the same large contributions by corporations, unions, and wealthy individuals will be made; the federal candidates who benefit from state party use of these funds will know exactly whom their benefactors are; the same degree of beholdenness and obligation will arise; the same distortions on the legislative process will occur; and the same public cynicism will erode the foundations of our democracy—except it will all be worse in the public’s mind because a perceived reform was undercut once again by a loophole that allows big money into the system.’ ” 251 F. Supp. 2d, at 467 (Kollar-Kotelly, J.) (quoting Rudman Decl. ¶ ;19, App. 746). Footnote 60 E.g ., 251 F. Supp. 2d, at 479 (Kollar-Kotelly, J.) (“ ‘It is … not uncommon for the RNC to put interested donors in touch with various state parties. This often occurs when a donor has reached his or her federal dollar limits to the RNC, but wishes to make additional contributions to the state party’ ” (quoting declaration of Thomas Josefiak, RNC Chief Counsel ¶ ;68, App 308)); see also Colorado II , 533 U. S., at 458 (quoting Congressman Wayne Allard’s Aug. 27, 1996, fundraising letter informing the recipient that “ ‘you are at the limit of what you can directly contribute to my campaign,’ ” but “ ‘you can further help my campaign by assisting the Colorado Republican Party’ ”); 251 F. Supp 2d, at 454 (Kollar-Kotelly, J.) (“ ‘Both political parties have found spending soft money with its accompanying hard money match through their state parties to work smoothly, for the most part, and state officials readily acknowledge they are simply ‘pass throughs’ to the vendors providing the broadcast ads or direct mail’ ” (quoting Magleby Expert Report 37, App. 1510–1511.)). Footnote 61 The 1998 Senate Report found that, in exchange for a substantial donation to state Democratic committees and candidates, the DNC arranged meetings for the donor with the President and other federal officials. 1 1998 Senate Report 43–44; 2 id. , at 2907–2931; 5 id ., at 7519. That same Report also detailed how Native American tribes that operated casinos made sizable soft-money contributions to state Democratic committees in apparent exchange for access and influence. 1 id ., at 44–46; 2 id., at 3167–3194; see also McCain Decl., Exh. I (Weisskopf, The Busy Back-Door Men, Time, Mar. 31, 1997, p. 40)). Footnote 62 Since voter identification is a necessary precondition of any GOTV program, the findings regarding GOTV funding obviously apply with equal force to the funding of voter identification efforts. Footnote 63 With respect to GOTV, voter identification, and other generic campaign activity, the FEC has interpreted §323(b) to apply only to those activities conducted after the earliest filing deadline for access to the federal election ballot or, in States that do not conduct primaries, after January 1 of even-numbered years. 11 CFR §100.24(a)(1) (2002). Any activities conducted outside of those periods are completely exempt from regulation under §323(b). Of course, this facial challenge does not present the question of the FEC regulations’ constitutionality. But the fact that the statute provides this basis for the FEC reasonably to narrow §301(20)(A)(ii) further calls into question plaintiffs’ claims of facial overbreadth. See Broadrick v. Oklahoma, 413 U. S. 601 , 613 (1973). Footnote 64 We likewise reject the argument that §301(20)(A)(iii) is unconstitutionally vague. The words “promote,” “oppose,” “attack,” and “support” clearly set forth the confines within which potential party speakers must act in order to avoid triggering the provision. These words “provide explicit standards for those who apply them” and “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.” Grayned v. City of Rockford, 408 U. S. 104 , 108–109 (1972). This is particularly the case here, since actions taken by political parties are presumed to be in connection with election campaigns. See Buckley , 424 U. S., at 79 (noting that a general requirement that political committees disclose their expenditures raised no vagueness problems because the term “political committee” “need only encompass organizations that are under the control of a candidate or the major purpose of which is the nomination or election of a candidate” and thus a political committee’s expenditures “are, by definition, campaign related”). Furthermore, should plaintiffs feel that they need further guidance, they are able to seek advisory opinions for clarification, see 2 U. S. C. §437f (a)(1), and thereby “remove any doubt there may be as to the meaning of the law,” Civil Service Comm’n v. Letter Carriers, 413 U. S. 548 , 580 (1973). Footnote 65 Any doubts that donors would engage in such a seemingly complex scheme are put to rest by the record evidence in Buckley itself. See n. 6, supra (setting forth the Court of Appeals’ findings regarding the efforts of milk producers to obtain a meeting with White House officials). Footnote 66 Section 501(c) organizations are groups generally exempted from taxation under the Internal Revenue Code. 26 U. S. C. §501(a). These include §501(c)(3) charitable and educational organizations, as well as §501(c)(4) social welfare groups. Footnote 67 Section 527 “political organizations” are, unlike §501(c) groups, organized for the express purpose of engaging in partisan political activity. They include any “party, committee, association, fund, or other organization (whether or not incorporated) organized and operated primarily for the purpose of directly or indirectly accepting contributions or making expenditures” for the purpose of “influencing or attempting to influence the selection, nomination, or appointment of any individual for Federal, State, or local public office.” 26 U. S. C. §527(e). Footnote 68 The record shows that many of the targeted tax-exempt organizations engage in sophisticated and effective electioneering activities for the purpose of influencing federal elections, including waging broadcast campaigns promoting or attacking particular candidates and conducting large-scale voter registration and GOTV drives. For instance, during the final weeks of the 2000 presidential campaign, the NAACP’s National Voter Fund registered more than 200,000 people, promoted a GOTV hotline, ran three newspaper print ads, and made several direct mailings. 251 F. Supp. 2d, at 348–349 (Henderson, J.). The NAACP reports that the program turned out one million additional African-American voters and increased turnout over 1996 among targeted groups by 22% in New York, 50% in Florida, and 140% in Missouri. Ibid . The effort, which cost $10 million, was funded primarily by a $7 million contribution from an anonymous donor. Id., at 349 (citing cross-examination of Donald P. Green, Yale University 15–20, Exh. 3; see I Defs. Refiling Trs. on Pub. Record); 251 F. Supp. 2d, at 522 (Kollar-Kotelly, J.) (same); id ., at 851 (Leon, J.) (same); see also id., at 349 (Henderson, J.) (stating that in 2000 the National Abortion and Reproductive Rights Action League (NARAL) spent $7.5 million and mobilized 2.1 million pro-choice voters (citing declaration of Mary Jane Gallagher, Exec. V. P., NARAL, 8, App. 271–272, ¶ ;24)); 251 F. Supp. 2d, at 522 (Kollar-Kotelly, J.) (same). Footnote 69 Notably, the FEC has interpreted §323(d)(2) to permit state, district, and local party committees to solicit donations to §527 organizations that are state-registered PACs, that support only state or local candidates, and that do not make expenditures or disbursements in connection with federal elections. 11 CFR §300.37(a)(3)(iv) (2003). The agency determined that this interpretation of “political committee”—at least with respect to state, district, and local committees—was consistent with BCRA’s fundamental purpose of prohibiting soft money from being used in connection with federal elections. 67 Fed. Reg. 49106 (2002). Footnote 70 Section 323(e)(1)(B) tightly constrains the ability of federal candidates and officeholders to solicit or spend nonfederal money in connection with state or local elections. Contributions cannot exceed FECA’s analogous hard-money contribution limits or come from prohibited sources. In effect, §323(e)(1)(B) doubles the limits on what individuals can contribute to or at the behest of federal candidates and officeholders, while restricting the use of the additional funds to activities not related to federal elections. If the federal candidate or officeholder is also a candidate for state or local office, he or she may solicit, receive, and spend an unlimited amount of nonfederal money in connection with that election, subject only to state regulation and the requirement that such solicitation or expenditures refer only to the relevant state or local office. 2 U. S. C. A. §441i(e)(2). Footnote 71 See 148 Cong. Rec. S2143 (Mar. 20, 2002) (statement of Sen. Feingold) (Section 323(f) does not prohibit “spending non-federal money to run advertisements that mention that [state or local candidates] have been endorsed by a Federal candidate or say that they identify with a position of a named Federal candidate, so long as those advertisements do not support, attack, promote or oppose the Federal candidate”). Footnote 72 Justice Kennedy faults our “unwillingness” to confront that “Title I’s entirety … look[s] very much like an incumbency protection plan,” citing §323(e), which provides officeholders and candidates with greater opportunities to solicit soft money than §§323(a) and (d) permit party officers. Post , at 23–24. But, §323(e) applies to both officeholders and candidates and allows only minimally greater opportunities for solicitation out of regard for the fact that candidates and officeholders, unlike party officers, can never step out of their official roles. Supra , at 70–71; 42 U. S. C. A. §441i(e). Any concern that Congress might opportunistically pass campaign-finance regulation for self-serving ends is taken into account by the applicable level of scrutiny. Congress must show concrete evidence that a particular type of financial transaction is corrupting or gives rise to the appearance of corruption and that the chosen means of regulation are closely drawn to address that real or apparent corruption. It has done so here. At bottom, Justice Kennedy has long disagreed with the basic holding of Buckley and its progeny that less rigorous scrutiny—which shows a measure of deference to Congress in an area where it enjoys particular expertise—applies to assess limits on campaign contributions. Colorado II , 533 U. S., at 465 (Thomas, J., dissenting) (joining Justice Thomas for the proposition that “ Buckley should be overrruled” (citation omitted)); Shrink Missouri , 528 U. S., at 405–410 (Kennedy, J., dissenting). Footnote 73 BCRA also provides a “backup” definition of “electioneering communication,” which would become effective if the primary definition were “held to be constitutionally insufficient by final judicial decision to support the regulation provided herein.” 2 U. S. C. A. §434(f)(3)(A)(ii). We uphold all applications of the primary definition and accordingly have no occasion to discuss the backup definition. Footnote 74 We then held that, so construed, the expenditure restriction did not advance a substantial government interest, because independent express advocacy did not pose a danger of real or apparent corruption, and the line between express advocacy and other electioneering activities was easily circumvented. Concluding that §608(e)(1)’s heavy First Amendment burden was not justified, we invalidated the provision. Buckley, 424 U. S., at 45–48. Footnote 75 Our adoption of a narrowing construction was consistent with our vagueness and overbreadth doctrines. See Broadrick, 413 U. S., at 613; Grayned, 408 U. S., at 108–114. Footnote 76 The provision at issue in MCFL —2 U. S. C. §441b (1982 ed.)—required corporations and unions to use separate segregated funds, rather than general treasury moneys, on expenditures made “ ‘in connection with’ ” a federal election. MCFL, 479 U. S., at 241. We noted that Buckley had limited the statutory term “ ‘expenditure’ ” to words of express advocacy “in order to avoid problems of overbreadth.” 479 U. S., at 248. We held that “a similar construction ” must apply to the expenditure limitation before us in MCFL and that the reach of 2 U. S. C. §441b was therefore constrained to express advocacy. 479 U. S., at 249 (emphasis added). Footnote 77 As one major-party political consultant testified, “ ‘it is rarely advisable to use such clumsy words as “vote for” or “vote against.” ’ ” 251 F. Supp. 2d, at 305 (Henderson, J.) (quoting declaration of Douglas L. Bailey, founder, Bailey, Deardourff & Assoc., 1–2, App. 24, ¶ ;3). He explained: “ ‘All advertising professionals understand that the most effective advertising leads the viewer to his or her own conclusion without forcing it down their throat.’ ” 251 F. Supp. 2d, at 305 (Henderson, J.). Other political professionals and academics confirm that the use of magic words has become an anachronism. See id ., at 531 (Kollar-Kotelly, J.) (quoting declaration of Raymond D. Strother, Pres., Strother/Duffy/Strother ¶ ;4, 9 Defs. Exhs., Tab 40); see Unsealed Pp. Vol., Tab 7); App. 1334–1335 (Krasno & Sorauf Expert Report)); see also 251 F. Supp. 2d, at 305 (Henderson, J.); id. , at 532 (Kollar-Kotelly, J.); id. , at 875–76 (Leon, J.). Footnote 78 One striking example is an ad that a group called “Citizens for Reform” sponsored during the 1996 Montana congressional race, in which Bill Yellowtail was a candidate. The ad stated: “Who is Bill Yellowtail? He preaches family values but took a swing at his wife. And Yellowtail’s response? He only slapped her. But ‘her nose was not broken.’ He talks law and order … but is himself a convicted felon. And though he talks about protecting children, Yellowtail failed to make his own child support payments—then voted against child support enforcement. Call Bill Yellowtail. Tell him to support family values.” 5 1998 Senate Report 6305 (minority views). The notion that this advertisement was designed purely to discuss the issue of family values strains credulity. Footnote 79 As discussed below, infra , at 97–103, BCRA §203 bars corporations and labor unions from funding electioneering communications with money from their general treasuries, instead requiring them to establish a “separate segregated fund” for such expenditures. 2 U. S. C. A. §441b(b)(2). Footnote 80 Section 401 of BCRA provides: “If any provision of this Act or amendment made by this Act . . ., or the application of a provision or amendment to any person or circumstance, is held to be unconstitutional, the remainder of this Act and amendments made by this Act, and the application of the provisions and amendment to any person or circumstance, shall not be affected by the holding.” 2 U. S. C. A. §454 note. Footnote 81 The disclosure requirements that BCRA §201 added to FECA §304 are actually somewhat less intrusive than the comparable requirements that have long applied to persons making independent expenditures. For example, the previous version of §304 required groups making independent expenditures to identify donors who contributed more than $200. 2 U. S. C. §434(c)(2)(C) (2000 ed.). The comparable requirement in the amendments applies only to donors of $1,000 or more. 2 U. S. C. A. §§434(f)(2)(E), (F) (Supp. 2003). Footnote 82 NAACP v. Alabama arose out of a judgment holding the NAACP in contempt for refusing to produce the names and addresses of its members and agents in Alabama. The NAACP “made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members ha[d] exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.” 357 U. S., at 462. We thought it apparent that the compelled disclosure would “affect adversely” the NAACP and its members’ ability “to pursue their collective effort to foster beliefs which they admittedly have the right to advocate.” Id. , at 462–463. Under these circumstances, we concluded that Alabama’s interest in determining whether the NAACP was doing business in the State was plainly insufficient to justify its production order. Id. , at 464–466. Footnote 83 We stated: “The District Court properly applied the Buckley test to the facts of this case. The District Court found ‘substantial evidence of both governmental and private hostility toward and harassment of [Socialist Workers Party (SWP)] members and supporters.’ Appellees introduced proof of specific incidents of private and government hostility toward the SWP and its members within the four years preceding the trial. These incidents, many of which occurred in Ohio and neighboring States, included threatening phone calls and hate mail, the burning of SWP literature, the destruction of SWP members’ property, police harassment of a party candidate, and the firing of shots at an SWP office. There was also evidence that in the 12-month period before trial 22 SWP members, including 4 in Ohio, were fired because of their party membership. Although appellants contend that two of the Ohio firings were not politically motivated, the evidence amply supports the District Court’s conclusion that ‘private hostility and harassment toward SWP members make it difficult for them to maintain employment.’ The District Court also found a past history of Government harassment of the SWP.” Brown v. Socialist Workers ’74 Campaign Comm. (Ohio), 459 U. S. 87 , 98–99 (1982) (paragraph break omitted). Footnote 84 We cannot judge the likelihood that this will occur, as the record contains little if any description of the contractual provisions that commonly govern payments for electioneering communications. Nor does the record contain any evidence relating to Justice Kennedy’s speculation, post , at 39–40, that advance disclosure may disadvantage an advertiser. Footnote 85 New FECA §315(a)(7)(C) reads as follows: “if — “(i) any person makes, or contracts to make, any disbursement for any electioneering communication (within the meaning of section 434(f)(3) of this title); and “(ii) such disbursement is coordinated with a candidate or an authorized committee of such candidate, a Federal, State, or local political party or committee thereof, or an agent or official of any such candidate, party, or committee; such disbursement or contracting shall be treated as a contribution to the candidate supported by the electioneering communication or that candidate’s party and as an expenditure by that candidate or that candidate’s party. . . .” 2 U. S. C. A. §441a(a)(7)(C). Footnote 86 We have explained: “The statutory purpose of §441b … is to prohibit contributions or expenditures by corporations or labor organizations in connection with federal elections. 2 U. S. C. §441b(a). The section, however, permits some participation of unions and corporations in the federal electoral process by allowing them to establish and pay the administrative expenses of ‘separate segregated fund[s],’ which may be ‘utilized for political purposes.’ 2 U. S. C. §441b(b)(2)(C). The Act restricts the operations of such segregated funds, however, by making it unlawful for a corporation to solicit contributions to a fund established by it from persons other than its ‘stockholders and their families and its executive or administrative personnel and their families.’ 2 U. S. C. §441b(b)(4)(A).” National Right to Work, 459 U. S., at 201–202. Footnote 87 The amendment is straightforward. Prior to BCRA, FECA §316(a) made it “unlawful … for any corporation whatever, or any labor organization, to make a contribution or expenditure in connection with” certain federal elections. 2 U. S. C. §441b(a) (2000 ed.). BCRA amends FECA §316(b)(2)’s definition of the term “contribution or expenditure” to include “any applicable electioneering communication.” 2 U. S. C. A. §441b(b)(2) (Supp. 2003). Footnote 88 As Justice Kennedy emphasizes in dissent, post , at 44–45, we assume that the interests that justify the regulation of campaign speech might not apply to the regulation of genuine issue ads. The premise that apparently underlies Justice Kennedy’s principal submission is a conclusion that the two categories of speech are nevertheless entitled to the same constitutional protection. If that is correct, Justice Kennedy must take issue with the basic holding in Buckley and, indeed, with our recognition in First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978), that unusually important interests underlie the regulation of corporations’ campaign-related speech. In Bellotti we cited Buckley , among other cases, for the proposition that “[p]reserving the integrity of the electoral process, preventing corruption, and ‘sustain[ing] the active, alert responsibility of the individual citizen in a democracy for the wise conduct of the government’ are interests of the highest importance.” 435 U. S., at 788–789 (citations and footnote omitted). “Preservation of the individual citizen’s confidence in government,” we added, “is equally important.” Id ., at 789. BCRA’s fidelity to those imperatives sets it apart from the statute in Bellotti —and, for that matter, from the Ohio statute banning the distribution of anonymous campaign literature, struck down in McIntyre v. Ohio Elections Comm’n, 514 U. S. 334 (1995). Footnote 89 In a different but somewhat related argument, one set of plaintiffs contends that political campaigns and issue advocacy involve press activities, and that BCRA therefore interferes with speakers’ rights under the Freedom of the Press Clause. U. S. Const., Amdt. 1. We affirm the District Court’s conclusion that this contention lacks merit. Footnote 90 The statutory scheme is somewhat complex. In its provision dealing with “Rules Relating to Electioneering Communications,” BCRA §203(c)(2) (adding FECA §316(c)(2)) makes a blanket exception for designated nonprofit organizations, which reads as follows: “Exception “Notwithstanding paragraph (1), the term ‘applicable electioneering communication’ does not include a communication by a section 501(c)(4) organization or a political organization (as defined in section 527(e)(1) of Title 26) made under section 434(f)(2)(E) or (F) of this title if the communication is paid for exclusively by funds provided directly by individuals who are United States citizens or nationals or lawfully admitted for permanent residence (as defined in section 1101(a)(20) of Title 8). For purposes of the preceding sentence, the term ‘provided directly by individuals’ does not include funds the source of which is an entity described in subsection (a) of this section.” 2 U. S. C. A. §441b(c)(2) (Supp. 2003). BCRA §204, however, amends FECA §316(c) to exclude “targeted communications” from that exception. New FECA §316(c)(6) states that the §316(c)(2) exception “shall not apply in the case of a targeted communication that is made by an organization described” in §316(b)(2). 2 U. S. C. A. ¶ ;441b(c)(6)(A). Subparagraph (B) then defines the term “targeted communication” for the purpose of the provision as including all electioneering communications. The parties and the judges on the District Court have assumed that amended FECA §316(c)(6) completely canceled the exemption for nonprofit corporations set forth in §316(c)(2). 251 F. Supp. 2d, at 804 (Leon, J.) (“Section 204 completely cancels out the exemption for all nonprofit corporations provided by Section 203”). Footnote 91 “[A] unanimous Court in National Right to Work did not think the regulatory burdens on PACs, including restrictions on their ability to solicit funds, rendered a PAC unconstitutional as an advocacy corporation’s sole avenue for making political contributions. See 459 U. S., at 201–202. There is no reason to think the burden on advocacy corporations is any greater today, or to reach a different conclusion here.” Beaumont , 539 U. S., at ___ (slip op., at 16). Footnote 92 New FECA §304(g) provides: “Time for reporting certain expenditures “(1) Expenditures aggregating $1,000 “(A) Initial report “A person (including a political committee) that makes or contracts to make independent expenditures aggregating $1,000 or more after the 20th day, but more than 24 hours, before the date of an election shall file a report describing the expenditures within 24 hours. “(B) Additional reports “After a person files a report under subparagraph (A), the person shall file an additional report within 24 hours after each time the person makes or contracts to make independent expenditures aggregating an additional $1,000 with respect to the same election as that to which the initial report relates.” 2 U. S. C. A. §434 (Supp. 2003). Footnote 93 New FECA §315(d)(4) reads as follows: “Independent versus coordinated expenditures by party “(A) In general “On or after the date on which a political party nominates a candidate, no committee of the political party may make— “(i) any coordinated expenditure under this subsection with respect to the candidate during the election cycle at any time after it makes any independent expenditure (as defined in section 431(17) of this title) with respect to the candidate during the election cycle; or “(ii) any independent expenditure (as defined in section 431(17) of this title) with respect to the candidate during the election cycle at any time after it makes any coordinated expenditure under this subsection with respect to the candidate during the election cycle. “(B) Application “For purposes of this paragraph, all political committees established and maintained by a national political party (including all congressional campaign committees) and all political committees established and maintained by a State political party (including any subordinate committee of a State committee) shall be considered to be a single political committee. “(C) Transfers “A committee of a political party that makes coordinated expenditures under this subsection with respect to a candidate shall not, during an election cycle, transfer any funds to, assign authority to make coordinated expenditures under this subsection to, or receive a transfer of funds from, a committee of the political party that has made or intends to make an independent expenditure with respect to the candidate.” 2 U. S. C. A. §441a(d)(4) (Supp. 2003). Footnote 94 After exempting political parties from the general contribution and expenditure limitations of the statute, 2 U. S. C. A. §441a(d)(1), FECA §315(d) imposes the following substitute limitations on party spending: “(2) The national committee of a political party may not make any expenditure in connection with the general election campaign of any candidate for President of the United States who is affiliated with such party which exceeds an amount equal to 2 cents multiplied by the voting age population of the United States (as certified under subsection (e) of this section). Any expenditure under this paragraph shall be in addition to any expenditure by a national committee of a political party serving as the principal campaign committee of a candidate for office of President of the United States. “(3) The national committee of a political party, or a State committee of a political party, including any subordinate committee of a State committee, may not make any expenditure in connection with the general election campaign of a candidate for Federal office in a State who is affiliated with such party which exceeds— “(A) in the case of a candidate for election to the office of Senator, or of Representative from a State which is entitled to only one Representative, the greater of— “(i) 2 cents multiplied by the voting age population of the State (as certified under subsection (e) of this section); or “(ii) $20,000; and “(B) in the case of a candidate for election to the officer of Representative, Delegate, or Resident Commissioner in any other State, $10,000.” 2 U. S. C. §§441a(d)(2)–(3). Footnote 95 As amended by BCRA, §301(17) provides: “Independent expenditure “The term ‘independent expenditure’ means an expenditure by a person— “(A) expressly advocating the election or defeat of a clearly identified candidate; and “(B) that is not made in concert or cooperation with or at the request or suggestion of such candidate, the candidate’s authorized political committee, or their agents, or a political party committee or its agents.” 2 U. S. C. A. §431(17) (Supp. 2003). The version of the definition prior to its amendment by BCRA also included the phrase “expressly advocating the election or defeat of a clearly identified candidate.” 2 U. S. C. §431(17) (2000 ed.). That definition had been adopted in 1976, presumably to reflect the narrowing construction that the Court adopted in Buckley . Federal Election Campaign Act Amendments of 1976, 90 Stat. 475. Footnote 96 Although the District Court and all the parties to this litigation endorse the interpretation set forth in the text, it is not clear that subparagraph (B) should be read so broadly: The reference to “a State” instead of “the States” suggests that Congress meant to distinguish between committees associated with the party for each State (which would be grouped together by State, with each grouping treated as a single committee for purposes of the choice) and committees associated with a national party (which would likewise be grouped together and treated as a separate political committee). We need not resolve the interpretive puzzle, however, because even under the more limited reading a local party committee would be able to tie the hands of a state committee or other local committees in the same State. Footnote 97 The italicized portion of the following partial quotation of FECA §315(a)(7) was added by §214 of BCRA: “For purposes of this subsection— “(A) contributions to a named candidate made to any political committee authorized by such candidate to accept contributions on his behalf shall be considered to be contributions made to such candidate; “(B)(i) expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate; “(ii) expenditures made by any person (other than a candidate or candidate’s authorized committee) in cooperation, consultation, or concert with, or at the request or suggestion of, a national, State, or local committee of a political party, shall be considered to be contributions made to such party committee … .” 2 U. S. C. A. §441a(a)(7) (Supp. 2003). Footnote 98 Pre-BCRA FEC regulations defined coordinated expenditures to include expenditures made “[a]t the request or suggestion of” a candidate or party; communications in which a candidate or party “exercised control or decision-making authority over the content, timing, location, mode, intended audience, volume of distribution, or frequency of placement”; and communications produced “[a]fter substantial discussion or negotiation” with a party or candidate, “the result of which is collaboration or agreement.” 11 CFR §100.23(c)(2) (2001). Footnote 99 Contrary to plaintiffs’ contention, the statutory framework was not significantly different at the time of our decision in Buckley . The relevant provision, 18 U. S. C. §608(e)(1), treated as coordinated any expenditures “authorized or requested by the candidate.” (Emphasis added.) And the legislative history, on which we relied for “guidance in differentiating individual expenditures that are contributions … from those treated as independent expenditures,” described as “independent” an expenditure made by a supporter “ ‘completely on his own, and not at the request or suggestion of the candidate or his agen[t].’ ” 424 U. S., at 46–47, n. 53 (quoting S. Rep. No. 93–689, p. 18 (1974)). OPINION OF THE COURT MCCONNELL V. FEDERAL ELECTION COMM'N 540 U. S. ____ (2003) SUPREME COURT OF THE UNITED STATES NOS. 02-1674, 02-1675, 02-1676, 02-1702, 02-1727, 02-1733, 02-1734;02-1740, 02-1747, 02-1753, 02-1755, AND 02-1756 MITCH McCONNELL, UNITED STATES SENATOR, et al., APPELLANTS 02–1674 v . FEDERAL ELECTION COMMISSION, et al.; NATIONAL RIFLE ASSOCIATION, et al., APPELLANTS 02–1675 v . FEDERAL ELECTION COMMISSION, et al.; FEDERAL ELECTION COMMISSION, et al., APPELLANTS 02–1676 v . MITCH McCONNELL, UNITED STATES SENATOR, et al.; JOHN McCAIN, UNITED STATES SENATOR, et al., APPELLANTS 02–1702 v . MITCH McCONNELL, UNITED STATES SENATOR, et al.; REPUBLICAN NATIONAL COMMITTEE, et al., APPELLANTS 02–1727 v . FEDERAL ELECTION COMMISSION, et al.; NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al., APPELLANTS 02–1733 v . FEDERAL ELECTION COMMISSION, et al.; AMERICAN CIVIL LIBERTIES UNION, APPELLANTS 02–1734 v . FEDERAL ELECTION COMMISSION, et al.; VICTORIA JACKSON GRAY ADAMS, et al., APPELLANTS 02–1740 v . FEDERAL ELECTION COMMISSION, et al.; RON PAUL, UNITED STATES CONGRESSMAN, et al., APPELLANTS 02–1747 v . FEDERAL ELECTION COMMISSION, et al.; CALIFORNIA DEMOCRATIC PARTY, et al., APPELLANTS 02–1753 v . FEDERAL ELECTION COMMISSION, et al.; AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al., APPELLANTS 02–1755 v . FEDERAL ELECTION COMMISSION, et al.; CHAMBER OF COMMERCE OF THE UNITED STATES, et al., APPELLANTS 02–1756 v . FEDERAL ELECTION COMMISSION, et al. on appeals from the united states district court for the district of columbia [December 10, 2003]    Justice Breyer delivered the opinion of the Court with respect to BCRA Title V.*    We consider here the constitutionality of §504 of the Bipartisan Campaign Reform Act of 2002 (BCRA), amending the Communications Act of 1934. That section requires broadcasters to keep publicly available records of politically related broadcasting requests. 47 U. S. C. A. §315(e) (Supp. 2003). The McConnell plaintiffs, who include the National Association of Broadcasters, argue that §504 imposes onerous administrative burdens, lacks any offsetting justification, and consequently violates the First Amendment. For similar reasons, the three judges on the District Court found BCRA §504 unconstitutional on its face. 251 F. Supp. 2d 176, 186 (DC 2003) (per curiam) (case below). We disagree, and we reverse that determination. I    BCRA §504’s key requirements are the following:    (1) A “candidate request” requirement calls for broadcasters to keep records of broadcast requests “made by or on behalf of” any “legally qualified candidate for public office.” 47 U. S. C. A. §315(e)(1)(A) (Supp. 2003).    (2) An “election message request” requirement calls for broadcasters to keep records of requests (made by anyone) to broadcast “message[s]” that refer either to a “legally qualified candidate” or to “any election to Federal office.” §§315(e)(1)(B)(i), (ii).    (3) An “issue request” requirement calls for broadcasters to keep records of requests (made by anyone) to broadcast “message[s]” related to a “national legislative issue of public importance,” §315(e)(1)(B)(iii), or otherwise relating to a “political matter of national importance,” §315(e)(1)(B).    We shall consider each provision in turn. II    BCRA §504’s “candidate request” requirements are virtually identical to those contained in a regulation that the Federal Communications Commission (FCC) promulgated as early as 1938 and which with slight modifications the FCC has maintained in effect ever since. 47 CFR §73.1943 (2002); compare 3 Fed. Reg. 1692 (1938) (47 CFR §36a4); 13 Fed. Reg. 7486 (1948) (47 CFR §§3.190(d), 3.290(d), 3.690(d)); 17 Fed. Reg. 4711 (1952) (47 CFR §3.590(d)); 19 Fed. Reg. 5949 (1954); 23 Fed. Reg. 7817 (1958); 28 Fed. Reg. 13593 (1963) (47 CFR §73.120(d)); 43 Fed. Reg. 32795 (1978) (47 CFR §73.1940(d)); 57 Fed. Reg. 210 (1992) (47 CFR §73.1943). See generally Brief in Opposition to Motion of Appellee National Association of Broadcasters for Summary Affirmance in No. 02–1676, pp. 9–10 (hereinafter Brief Opposing Summary Affirmance).    In its current form the FCC regulation requires broadcast licensees to “keep” a publicly available file “of all requests for broadcast time made by or on behalf of a candidate for public office,” along with a notation showing whether the request was granted, and (if granted) a history that includes “classes of time,” “rates charged,” and when the “spots actually aired.” 47 CFR §73.1943(a) (2002); §76.1701(a) (same for cable systems). These regulation-imposed requirements mirror the statutory requirements imposed by BCRA §504 with minor differences which no one here challenges. Compare 47 CFR §73.1943 with 47 U. S. C. A. §315(e)(2) (see Appendix, infra ).    The McConnell plaintiffs argue that these requirements are “intolerabl[y]” “burdensome and invasive.” Brief for Appellants/Cross-Appellees Senator Mitch McConnell et al. in No. 02–1674 et al., p. 74 (hereinafter Brief for McConnell Plaintiffs). But we do not see how that could be so. The FCC has consistently estimated that its “candidate request” regulation imposes upon each licensee an additional administrative burden of six to seven hours of work per year. See 66 Fed. Reg. 37468 (2001); id., at 18090; 63 Fed. Reg. 26593 (1998); id., at 10379; 57 Fed. Reg. 18492 (1992); see also 66 Fed. Reg. 29963 (2001) (total annual burden of one hour per cable system). That burden means annual costs of a few hundred dollars at most, a microscopic amount compared to the many millions of dollars of revenue broadcasters receive from candidates who wish to advertise.    Perhaps for this reason, broadcasters in the past did not strongly oppose the regulation or its extension. Cf., e.g. , 17 Fed. Reg. 4711 (1952) (“No comments adverse to the adoption of the proposed rule have been received”); 43 Fed. Reg. 32794 (1978) (no adverse comments). Indeed in 1992, “CBS” itself “suggest[ed]” that the candidate file “include a record of all requests for time.” 57 Fed. Reg. 206 (1992); cf. 63 Fed. Reg. 49493 (1998) (FCC “not persuaded that the current retention period [two years] is overly burdensome to licensees”).    In any event, as the FCC wrote in an analogous context, broadcaster recordkeeping requirements “ ‘simply run with the territory.’ ” 40 Fed. Reg. 18398 (1975). Broadcasters must keep and make publicly available numerous records. See 47 CFR §73.3526 (2002) (general description of select recordkeeping requirements for commercial stations); see also §§73.1202, 73.3526(e)(9)(i) (retention of all “written comments and suggestions [including letters and e-mail] received from the public regarding operation of the station” for three years); §73.1212(e) (sponsorship identification records, including the identification of a sponsoring entity’s executive officers and board-level members when sponsoring “political matter or matter involving the discussion of a controversial issue of public importance”); §73.1840 (retention of station logs); §73.1942 (candidate broadcast records); §73.2080 (equal employment oppor- tunities records); §§73.3526(e)(11)(i), (e)(12) (“list of programs that have provided the station’s most significant treatment of community issues during the preceding three month period,” including “brief narrative describing [the issues, and] time, date, duration, and title”); §§73.3526(e)(11)(ii), (iii) (reports of children’s program, and retention of records sufficient to substantiate “compliance with the commercial limits on children’s programming”); §73.3613(a) (network affiliation contracts); §§73.3613(b), 73.3615, 73.3526(e)(5) (ownership-related reports); §73.3613(c) (“[m]anagement consultant agreements”); §73.3613(d) (“[t]ime brokerage agreements”). Compared to these longstanding recordkeeping requirements, an additional six to seven hours is a small drop in a very large bucket.    The McConnell plaintiffs also claim that the “candidate requests” requirement fails significantly to further any important governmental interest. Brief for McConnell Plaintiffs 74. But, again, we cannot agree. The FCC has pointed out that “[t]hese records are necessary to permit political candidates and others to verify that licensees have complied with their obligations relating to use of their facilities by candidates for political office” pursuant to the “equal time” provision of 47 U. S. C. §315(a). 63 Fed. Reg. 49493 (1998). They also help the FCC determine whether broadcasters have violated their obligation to sell candidates time at the “lowest unit charge.” 47 U. S. C. §315(b). As reinforced by BCRA, the “candidate request” requirements will help the FCC, the Federal Election Commission, and “the public to evaluate whether broadcasters are processing [candidate] requests in an evenhanded fashion,” Brief Opposing Summary Affirmance 9, thereby helping to assure broadcasting fairness. 47 U. S. C. §315(a); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 , 390 (1969). They will help make the public aware of how much money candidates may be prepared to spend on broadcast messages. 2 U. S. C. A. §434 (main ed. and Supp. 2003); see ante , at 87–93 (joint opinion of Stevens and O’Connor, JJ.) (hereinafter joint opinion). And they will provide an independently compiled set of data for purposes of verifying candidates’ compliance with the disclosure requirements and source limitations of BCRA and the Federal Election Campaign Act of 1971. 2 U. S. C. A. §434; cf. Adventure Communications, Inc. v. Kentucky Registry of Election Finance , 191 F. 3d 429, 433 (CA4 1999) (candidate compliance verification); 63 Fed. Reg. 49493 (1998) (FCC finding record retention provision provides public with “necessary and adequate access”).       We note, too, that the FCC’s regulatory authority is broad. Red Lion , supra , at 380 (“broad” mandate to assure broadcasters operate in public interest); National Broadcasting Co. v. United States, 319 U. S. 190 , 219 (1943) (same). And we have previously found broad governmental authority for agency information demands from regulated entities. Compare United States v. Morton Salt Co., 338 U. S. 632 , 642–643 (1950); Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186 , 209 (1946); Donovan v. Lone Steer, Inc., 464 U. S. 408 , 414–415 (1984).        The Chief Justice suggests that the Government has not made these particular claims. But it has—though succinctly—for it has cross-referenced the relevant regulatory rules. Compare post , at 12–13 (opinion of Rehnquist, C. J.), with Brief Opposing Summary Affirmance; Brief for McConnell Plaintiffs 73–74; Brief for FEC et al. in No. 02–1674 et al., pp. 132–133. And succinctness through cross-reference was necessary given our procedural requirement that the Government set forth in a 140-page brief all its arguments concerning each of the 20 BCRA provisions here under contest. 251 F. Supp. 2d, at 186–188.    In sum, given the Government’s reference to the 65-year-old FCC regulation and the related considerations we have mentioned, we cannot accept the argument that the constitutionality of the “candidate request” provision lacks evidentiary support. The challengers have made no attempt to explain away the FCC’s own contrary conclusions and the mass of evidence in related FCC records and proceedings. E.g. , 57 Fed. Reg. 189 (1992); cf. s upra , at 4–5; ante , at 117–118 (joint opinion) (upholding BCRA’s coordination provision based, in part, on prior experience under similar provision). Because we cannot, on the present record, find the longstanding FCC regulation unconstitutional, we likewise cannot strike down the “candidate request” provision in BCRA §504; for the latter simply embodies the regulation in a statute, thereby blocking any agency attempt to repeal it. III    BCRA §504’s “election message request” requirements call for broadcasters to keep records of requests (made by any member of the public) to broadcast a “message” about “a legally qualified candidate” or “any election to Federal office.” 47 U. S. C. A. §§315(e)(1)(B)(i), (ii) (Supp. 2003). Although these requirements are somewhat broader than the “candidate request” requirement, they serve much the same purposes. A candidate’s supporters or opponents account for many of the requests to broadcast “message[s]” about a “candidate.” Requests to broadcast messages about an “election” may include messages that favor one candidate or another, along with other messages that may be more neutral.    Given the nature of many of the messages, recordkeeping can help both the regulatory agencies and the public evaluate broadcasting fairness, and determine the amount of money that individuals or groups, supporters or opponents, intend to spend to help elect a particular candidate. Cf. ante , at 100–101 (joint opinion) (upholding stringent restrictions on all election-time advertising that refers to a candidate because such advertising will often convey message of support or opposition). Insofar as the request is to broadcast neutral material about a candidate or election, the disclosure can help the FCC carry out other statutory functions, for example, determining whether a broadcasting station is fulfilling its licensing obligation to broadcast material important to the community and the public. 47 U. S. C. §315(a) (“obligation … to afford reasonable opportunity for the discussion of conflicting views on issues of public importance”); 47 CFR §73.1910 (2002); §§73.3526(e)(11)(i), (e)(12) (recordkeeping requirements for issues important to the community).    For reasons previously discussed, supra , at 4–5, and on the basis of the material presented, we cannot say that these requirements will impose disproportionate administrative burdens. They ask the broadcaster to keep information about the disposition of the request, and information identifying the individual or company requesting the broadcast time (name, address, contact information, or, if the requester is not an individual, the names of company officials). 47 U. S. C. A. §315(e)(2) (Supp. 2003). Insofar as the “request” is made by a candidate’s “supporters,” the “candidate request” regulation apparently already requires broadcasters to keep such records. 43 Fed. Reg. 32794 (1978). Regardless, the information should prove readily available, for the individual requesting a broadcast must provide it to the broadcaster should the broadcaster accept the request. 47 CFR §73.1212(e) (2002). And as we have previously pointed out, the recordkeeping requirements do not reach significantly beyond other FCC recordkeeping rules, for example, those requiring broadcasting licensees to keep material showing com- pliance with their license-related promises to broad- cast material on issues of public importance. See, e.g. , §§73.3526(e)(11)(i), (e)(12) (recordkeeping requirements for issues important to the community); supra , at 4–5 (collecting regulations); Office of Communication of United Church of Christ v. FCC , 707 F. 2d 1413, 1421–1422 (CADC 1983) (describing FCC rules, in force during 1960–1981, that required nonentertainment programming in 14 specific areas and mandated publicly available records detailing date, time, source, and description to substantiate compliance). If, as we have held, the “candidate request” requirements are constitutional, supra , at 7, the “election message” requirements, which serve similar governmental interests and impose only a small incremental burden, must be constitutional as well. IV    The “issue request” requirements call for broadcasters to keep records of requests (made by any member of the public) to broadcast “message[s]” about “a national legislative issue of public importance” or “any political matter of national importance.” 47 U. S. C. A. §§315(e)(1)(B), (e)(1)(B)(iii) (Supp. 2003). These recordkeeping requirements seem likely to help the FCC determine whether broadcasters are carrying out their “obligations to afford reasonable opportunity for the discussion of conflicting views on issues of public importance,” 47 CFR §73.1910 (2002), and whether broadcasters are too heavily favoring entertainment, and discriminating against broadcasts devoted to public affairs, see ibid.; 47 U. S. C §315(a); Red Lion , 395 U. S., at 380.    The McConnell plaintiffs claim that the statutory language—“political matter of national importance” or “national legislative issue of public importance”—is unconstitutionally vague or overbroad. Brief for McConnell Plaintiffs 74–75. But that language is no more general than the language that Congress has used to impose other obligations upon broadcasters. Compare 47 U. S. C. A. §315(e)(1)(B) (Supp. 2003) (“political matter of national importance”) and §315(e)(1)(B)(iii) (“national legislative issue of public importance”) (both added by BCRA §504), with 47 U. S. C. §315(a) (“obligation … to operate in the public interest” and to afford reasonable opportunity for discussion of “issues of public importance”); §317(a)(2) (FCC disclosure requirements relating to any “political program” or “discussion of any controversial issue”); cf. 47 CFR §73.1212(e) (2002) (“political matter or … a controversial issue of public importance”); and 9 Fed. Reg. 14734 (1944) (“public controversial issues”); ante , at 117–118 (joint opinion) (noting that the experience under longstanding regulations undermines claims of chilling effect). And that language is also roughly comparable to other language in BCRA that we uphold today. E.g. , ante , at 61–62, and n. 64 (joint opinion) (upholding 2 U. S. C. A. §431(20)(A)(iii) (Supp. 2003) (“public communication that refers to a clearly identified candidate for Federal office … and that promotes or supports a candidate for that office, or attacks or opposes a candidate for that office”)), ante, at 117–118 (upholding 2 U. S. C. A. §441a(a)(7)(B)(ii) (Supp. 2003) (counting as coordinated disbursements that are made “in cooperation, consultation, or concert with, or at the request or suggestion of [a political party]”) against challenge and noting that an “agreement” is not necessary for precision).    Whether these requirements impose disproportionate administrative burdens is more difficult to say. On the one hand, the burdens are likely less heavy than many that other FCC regulations have imposed, for example, the burden of keeping and disclosing “[a]ll written comments and suggestions” received from the public, including every e-mail. 47 CFR §§73.1202, 73.3526(e)(9) (2002); see also supra , at 4–5. On the other hand, the burdens are likely heavier than those imposed by BCRA §504’s other provisions, previously discussed.    The regulatory burden, in practice, will depend on how the FCC interprets and applies this provision. The FCC has adequate legal authority to write regulations that may limit, and make more specific, the provision’s potential linguistic reach. 47 U. S. C. §315(d). It has often ameliorated regulatory burdens by interpretation in the past, and there is no reason to believe it will not do so here. See 14 FCC Rcd. 4653, ¶ ;25 (1999) (relaxing the recordkeeping requirements in respect to cable systems that serve fewer than 5,000 subscribers); 14 FCC Rcd. 11121, ¶ ;¶ ;20–22 (1999) (requiring candidates to inspect the political file at a station rather than requiring licensees to send out photocopies of the files to candidates upon telephone request). The parties remain free to challenge the provisions, as interpreted by the FCC in regulations, or as otherwise applied. Any such challenge will likely provide greater information about the provisions’ justifications and administrative burdens. Without that additional information, we cannot now say that the burdens are so great, or the justifications so minimal, as to warrant finding the provisions unconstitutional on their face.    The McConnell plaintiffs and The Chief Justice make one final claim. They say that the “issue request” requirement will force them to disclose information that will reveal their political strategies to opponents, perhaps prior to a broadcast. See post , at 14–15 (dissenting opinion). We are willing to assume that the Constitution includes some form of protection against premature disclosure of campaign strategy—though, given the First Amendment interest in free and open discussion of campaign issues, we make this assumption purely for argument’s sake. Nonetheless, even on that assumption we do not see how BCRA §504 can be unconstitutional on its face.    For one thing, the statute requires disclosure of names, addresses, and the fact of a request; it does not require disclosure of substantive campaign content. See 47 U. S. C. A. §315(e)(2) (Supp. 2003). For another, the statutory words “as soon as possible,” §315(e)(3), would seem to permit FCC disclosure-timing rules that would avoid any premature disclosure that the Constitution itself would forbid. Further, the plaintiffs do not point to—and our own research cannot find—any specific indication of such a “strategy-disclosure” problem arising during the past 65 years in respect to the existing FCC “candidate request” requirement, where the strategic problem might be expected to be more acute. Finally, we today reject an analogous facial attack—premised on speculations of “advance disclosure”—on a similar BCRA provision. See ante , at 94 (joint opinion). Thus, the “strategy disclosure” argument does not show that BCRA §504 is unconstitutional on its face, but the plaintiffs remain free to raise this argument when §504 is applied. V    The Chief Justice makes two important arguments in response to those we have set forth. First, he says that we “approac[h] §504 almost exclusively from the perspective of the broadcast licensees, ignoring the interests of candidates and other purchasers, whose speech and association rights are affected.” Post , at 11 (dissenting opinion). The Chief Justice is certainly correct in emphasizing the importance of the speech interests of candidates and other potential speakers, but we have not ignored their First Amendment “perspective.”    To the contrary, we have discussed the speakers’ interests together with the broadcasters’ interests because the two sets of interests substantially overlap. For example, the speakers’ vagueness argument is no different from the broadcasters’, and it fails for the same reasons, e.g. , the fact that BCRA §504’s language is just as definite and precise as other language that we today uphold. See supra , at 10.    We have separately discussed the one and only speech-related claim advanced on behalf of candidates (or other speakers) that differs from the claims set forth by the broadcasters. See supra , at 11–12. This is the claim that the statute’s disclosure requirements will require candidates to reveal their political strategies to opponents. We just said, and we now repeat, that BCRA §504 can be applied, in a significant number of cases, without requiring any such political-strategy disclosure—either because disclosure in many cases will not create any such risk or because the FCC may promulgate rules requiring disclosure only after any such risk disappears, or both.    Moreover, candidates (or other speakers) whom §504 affects adversely in this way (or in other ways) remain free to challenge the lawfulness of FCC implementing regulations and to challenge the constitutionality of §504 as applied. To find that the speech-related interests of candidates and others may be vindicated in an as-applied challenge is not to “ignor[e]” those interests.    Second, The Chief Justice says that “the Government, in its brief, proffers no interest whatever to support §504 as a whole,” adding that the existence of “pre-existing unchallenged agency regulations imposing similar disclosure requirements” cannot “compel the conclusion that §504 is constitutional,” nor somehow “relieve the Government of its burden of advancing a constitutionally sufficient justification for §504.” Post , at 12–13 (dissenting opinion).    Again The Chief Justice is correct in saying that the mere existence of similar FCC regulation-imposed requirements—even if unchallenged for at least 65 years—cannot prove that those requirements are constitutional. But the existence of those regulations means that we must read beyond the briefs in this case before holding those requirements unconstitutional. Before evaluating the relevant burdens and justifications, we must at least become acquainted with the FCC’s own view of the matter. We must follow the Government’s regulation-related references to the relevant regulatory records, related FCC regulatory conclusions, and the FCC’s enforcement experience. We must take into account, for example, the likelihood that the reason there is “nothing in the record that indicates licensees have treated purchasers unfairly,” post , at 13 (Rehnquist, C. J., dissenting), is that for many decades similar FCC regulations have made that unfair treatment unlawful. And, if we are to avoid disrupting related agency law, we must evaluate what we find in agency records and related experience before holding this similar statutory provision unconstitutional on its face.    Even a superficial examination of those relevant agency materials reveals strong supporting justifications, and a lack of significant administrative burdens. And any additional burden that the statute, viewed facially, imposes upon interests protected by the First Amendment seems slight compared to the strong enforcement-related interests that it serves. Given the FCC regulations and their history, the statutory requirements must survive a facial attack under any potentially applicable First Amendment standard, including that of heightened scrutiny.    That is why the regulations are relevant. That is why the brevity of the Government’s discussion here cannot be determinative. That is why we fear that The Chief Justice’s contrary view would lead us into an unfortunate—and at present unjustified—revolution in communications law. And that is why we disagree with his dissent.    The portion of the judgment of the District Court invalidating BCRA §504 is reversed. It is so ordered. APPENDIX TO OPINION OF THE COURT    Title 47 U. S. C. A. §315(e) (Supp. 2003), as amended by BCRA §504, provides: “Political record    “(1) In general    “A licensee shall maintain, and make available for public inspection, a complete record of a request to purchase broadcast time that—    “(A) is made by or on behalf of a legally qualified candidate for public office; or    “(B) communicates a message relating to any political matter of national importance, including—    “(i) a legally qualified candidate;    “(ii) any election to Federal office; or    “(iii) a national legislative issue of public importance.    “(2) Contents of record    “A record maintained under paragraph (1) shall contain information regarding—    “(A) whether the request to purchase broadcast time is accepted or rejected by the licensee;    “(B) the rate charged for the broadcast time;    “(C) the date and time on which the communication is aired;    “(D) the class of time that is purchased;    “(E) the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable);    “(F) in the case of a request made by, or on behalf of, a candidate, the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee; and    “(G) in the case of any other request, the name of the person purchasing the time, the name, address, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or of the board of directors of such person.    “(3) Time to maintain file    “The information required under this subsection shall be placed in a political file as soon as possible and shall be retained by the licensee for a period of not less than 2 years.” Title 47 CFR §73.1943 (2002) provides: “Political file.    “(a) Every licensee shall keep and permit public inspection of a complete and orderly record (political file) of all requests for broadcast time made by or on behalf of a candidate for public office, together with an appropriate notation showing the disposition made by the licensee of such requests, and the charges made, if any, if the request is granted. The ‘disposition’ includes the schedule of time purchased, when spots actually aired, the rates charged, and the classes of time purchased.    “(b) When free time is provided for use by or on behalf of candidates, a record of the free time provided shall be placed in the political file.    “(c) All records required by this paragraph shall be placed in the political file as soon as possible and shall be retained for a period of two years. As soon as possible means immediately absent unusual circumstances.” *Justice Stevens, Justice O’Connor, Justice Souter, and Justice Ginsburg join this opinion in its entirety. REHNQUIST, C. J., DISSENTING MCCONNELL V. FEDERAL ELECTION COMM'N 540 U. S. ____ (2003) SUPREME COURT OF THE UNITED STATES NOS. 02-1674, 02-1675, 02-1676, 02-1702, 02-1727, 02-1733, 02-1734;02-1740, 02-1747, 02-1753, 02-1755, AND 02-1756 MITCH McCONNELL, UNITED STATES SENATOR, et al., APPELLANTS 02–1674 v . FEDERAL ELECTION COMMISSION, et al.; NATIONAL RIFLE ASSOCIATION, et al., APPELLANTS 02–1675 v . FEDERAL ELECTION COMMISSION, et al.; FEDERAL ELECTION COMMISSION, et al., APPELLANTS 02–1676 v . MITCH McCONNELL, UNITED STATES SENATOR, et al.; JOHN McCAIN, UNITED STATES SENATOR, et al., APPELLANTS 02–1702 v . MITCH McCONNELL, UNITED STATES SENATOR, et al.; REPUBLICAN NATIONAL COMMITTEE, et al., APPELLANTS 02–1727 v . FEDERAL ELECTION COMMISSION, et al.; NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al., APPELLANTS 02–1733 v . FEDERAL ELECTION COMMISSION, et al.; AMERICAN CIVIL LIBERTIES UNION, APPELLANTS 02–1734 v . FEDERAL ELECTION COMMISSION, et al.; VICTORIA JACKSON GRAY ADAMS, et al., APPELLANTS 02–1740 v . FEDERAL ELECTION COMMISSION, et al.; RON PAUL, UNITED STATES CONGRESSMAN, et al., APPELLANTS 02–1747 v . FEDERAL ELECTION COMMISSION, et al.; CALIFORNIA DEMOCRATIC PARTY, et al., APPELLANTS 02–1753 v . FEDERAL ELECTION COMMISSION, et al.; AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al., APPELLANTS 02–1755 v . FEDERAL ELECTION COMMISSION, et al.; CHAMBER OF COMMERCE OF THE UNITED STATES, et al., APPELLANTS 02–1756 v . FEDERAL ELECTION COMMISSION, et al. on appeals from the united states district court for the district of columbia [December 10, 2003]    Chief Justice Rehnquist, dissenting with respect to BCRA Titles I and V.*    Although I join Justice Kennedy’s opinion in full, I write separately to highlight my disagreement with the Court on Title I of the Bipartisan Campaign Reform Act of 2002 (BCRA), 116 Stat. 81, and to dissent from the Court’s opinion upholding §504 of Title V. I    The issue presented by Title I is not, as the Court implies, whether Congress can permissibly regulate campaign contributions to candidates, de facto or otherwise, or seek to eliminate corruption in the political process. Rather, the issue is whether Congress can permissibly regulate much speech that has no plausible connection to candidate contributions or corruption to achieve those goals. Under our precedent, restrictions on political contributions implicate important First Amendment values and are constitutional only if they are “closely drawn” to reduce the corruption of federal candidates or the appearance of corruption. Buckley v. Valeo, 424 U. S. 1 , 26– 27 (1976) (per curiam). Yet, the Court glosses over the breadth of the restrictions, characterizing Title I of BCRA as “do[ing] little more that regulat[ing] the ability of wealthy individuals, corporations, and unions to contribute large sums of money to influence federal elections, federal candidates, and federal officeholders.” Ante , at 28 (joint opinion of Stevens and O’Connor, JJ.). Because, in reality, Title I is much broader than the Court allows, regulating a good deal of speech that does not have the potential to corrupt federal candidates and officeholders, I dissent.    The lynchpin of Title I, new FECA §323(a), prohibits national political party committees from “solicit[ing],” “receiv[ing],” “direct[ing] to another person,” and “spend[ing]” any funds not subject to federal regulation, even if those funds are used for nonelection related activities. 2 U. S. C. A. §441i(a)(1) (Supp. 2003). The Court concludes that such a restriction is justified because under FECA, “donors have been free to contribute substantial sums of soft money to the national parties, which the parties can spend for the specific purpose of influencing a particular candidate’s federal election.” Ante , at 36. Accordingly, “[i]t is not only plausible, but likely, that candidates would feel grateful for such donations and that donors would seek to exploit that gratitude.” Ibid . But the Court misses the point. Certainly “infusions of money into [candidates’] campaigns,” Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480 , 497 (1985), can be regulated, but §323(a) does not regulate only donations given to influence a particular federal election; it regulates all donations to national political committees, no matter the use to which the funds are put.    The Court attempts to sidestep the unprecedented breadth of this regulation by stating that the “close relationship between federal officeholders and the national parties” makes all donations to the national parties “suspect.” Ante, at 45. But a close association with others, especially in the realm of political speech, is not a surrogate for corruption; it is one of our most treasured First Amendment rights. See California Democratic Party v. Jones, 530 U. S. 567 , 574 (2000); Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214 , 225 (1989); Tashjian v. Republican Party of Conn., 479 U. S. 208 , 214 (1986). The Court’s willingness to impute corruption on the basis of a relationship greatly infringes associational rights and expands Congress’ ability to regulate political speech. And there is nothing in the Court’s analysis that limits congressional regulation to national political parties. In fact, the Court relies in part on this closeness rationale to regulate nonprofit organizations . Ante , at 47–48, n. 51. Who knows what association will be deemed too close to federal officeholders next. When a donation to an organization has no potential to corrupt a federal officeholder, the relationship between the officeholder and the organization is simply irrelevant.    The Court fails to recognize that the national political parties are exemplars of political speech at all levels of government, in addition to effective fundraisers for federal candidates and officeholders. For sure, national political party committees exist in large part to elect federal candidates, but as a majority of the District Court found, they also promote coordinated political messages and participate in public policy debates unrelated to federal elections, promote, even in off-year elections, state and local candidates and seek to influence policy at those levels, and increase public participation in the electoral process. See 251 F. Supp. 2d 176, 334–337 (DC 2003) (per curiam) (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 820–821 (Leon, J.). Indeed, some national political parties exist primarily for the purpose of expressing ideas and generating debate. App. 185–186 (declaration of Stephen L. Dasbach et al. ¶ ;11 (describing Libertarian Party)).    As these activities illustrate, political parties often foster speech crucial to a healthy democracy, 251 F. Supp. 2d, at 820 (Leon, J.), and fulfill the need for like-minded individuals to ban together and promote a political philosophy, see Jones, supra , at 574; Eu , supra , at 225. When political parties engage in pure political speech that has little or no potential to corrupt their federal candidates and officeholders, the government cannot constitutionally burden their speech any more than it could burden the speech of individuals engaging in these same activities. E.g. , National Conservative Political Action Comm., supra , at 496–497; Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290 , 297–298 (1981); Buckley , 424 U. S., at 27. Notwithstanding the Court’s citation to the numerous abuses of FECA, under any definition of “exacting scrutiny,” the means chosen by Congress, restricting all donations to national parties no matter the purpose for which they are given or are used, are not “closely drawn to avoid unnecessary abridgment of associational freedoms,” id. , at 25.    BCRA’s overinclusiveness is not limited to national political parties. To prevent the circumvention of the ban on the national parties’ use of nonfederal funds, BCRA extensively regulates state parties, primarily state elections, and state candidates. For example, new FECA §323(b), by reference to new FECA §§301(20)(A)(i)–(ii), prohibits state parties from using nonfederal funds[ Footnote 1 ] for general partybuilding activities such as voter registration, voter identification, and get out the vote for state candidates even if federal candidates are not mentioned. See 2 U. S. C. A. §§441i(b), 431(20)(A)(i)–(ii) (Supp. 2003). New FECA §323(d) prohibits state and local political party committees, like their national counterparts, from soliciting and donating “any funds” to nonprofit organizations such as the National Rifle Association or the National Association for the Advancement of Colored People (NAACP). See 2 U. S. C. A. §441i(d). And, new FECA §323(f) requires a state gubernatorial candidate to abide by federal funding restrictions when airing a television ad that tells voters that, if elected, he would oppose the President’s policy of increased oil and gas exploration within the State because it would harm the environment. See 2 U. S. C. A. §§441i(f), 431(20)(A)(iii) (regulating “public communication[s] that refe[r] to a clearly identified candidate for Federal office (regardless of whether a candidate for State or local office is also mentioned or identified) and that … attacks or opposes a candidate for that office”).    Although these provisions are more focused on activities that may affect federal elections, there is scant evidence in the record to indicate that federal candidates or officeholders are corrupted or would appear corrupted by donations for these activities. See 251 F. Supp. 2d, at 403, 407, 416, 422 (Henderson, J., concurring in judgment in part and dissenting in part); id. , at 779–780, 791 (Leon, J.); see also Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604 , 616 (1996) (plurality opinion) (noting that “the opportunity for corruption posed by [nonfederal contributions for state elections, get-out-the-vote, and voter registration activities] is, at best, attenuated”). Nonetheless, the Court concludes that because these activities benefit federal candidates and officeholders, see ante , at 59 or prevent the circumvention of pre-existing or contemporaneously enacted restrictions,[ Footnote 2 ] see ante , at 57, 67, 71, 78, it must defer to the “ ‘predictive judgments of Congress,’ ” ante , at 57 (quoting Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 , 665 (1994)).    Yet the Court cannot truly mean what it says. Newspaper editorials and political talk shows benefit federal candidates and officeholders every bit as much as a generic voter registration drive conducted by a state party; there is little doubt that the endorsement of a major newspaper affects federal elections, and federal candidates and officeholders are surely “grateful,” ante , at 60, for positive media coverage. I doubt, however, the Court would seriously contend that we must defer to Congress’ judgment if it chose to reduce the influence of political endorsements in federal elections.[ Footnote 3 ] See Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 , 247, 250 (1974) (holding unconstitutional a state law that required newspapers to provide “right to reply” to any candidate who was personally or professionally assailed in order to eliminate the “abuses of bias and manipulative reportage” by the press).    It is also true that any circumvention rationale ultimately must rest on the circumvention itself leading to the corruption of federal candidates and officeholders. See Buckley, 424 U. S., at 38 (upholding restrictions on funds donated to national political parties “for the purpose of influencing any election for a Federal office” because they were prophylactic measures designed “to prevent evasion” of the contribution limit on candidates ). All political speech that is not sifted through federal regulation circumvents the regulatory scheme to some degree or another, and thus by the Court’s standard would be a “loophole” in the current system.[ Footnote 4 ] Unless the Court would uphold federal regulation of all funding of political speech, a rationale dependent on circumvention alone will not do. By untethering its inquiry from corruption or the appearance of corruption, the Court has removed the touchstone of our campaign finance precedent and has failed to replace it with any logical limiting principle.    But such an untethering is necessary to the Court’s analysis. Only by using amorphous language to conclude a federal interest, however vaguely defined, exists can the Court avoid the obvious fact that new FECA §§323(a), (b), (d), and (f ) are vastly overinclusive. Any campaign finance law aimed at reducing corruption will almost surely affect federal elections or prohibit the circumvention of federal law, and if broad enough, most laws will generally reduce some appearance of corruption. Indeed, it is precisely because broad laws are likely to nominally further a legitimate interest that we require Congress to tailor its restrictions; requiring all federal candidates to self-finance their campaigns would surely reduce the appearance of donor corruption, but it would hardly be constitutional. In allowing Congress to rely on general principles such as affecting a federal election or prohibiting the circumvention of existing law, the Court all but eliminates the “closely drawn” tailoring requirement and meaningful judicial review.    No doubt Congress was convinced by the many abuses of the current system that something in this area must be done. Its response, however, was too blunt. Many of the abuses described by the Court involve donations that were made for the “purpose of influencing a federal election,” and thus are already regulated. See Buckley , supra . Congress could have sought to have the existing restrictions enforced or to enact other restrictions that are “closely drawn” to its legitimate concerns. But it should not be able to broadly restrict political speech in the fashion it has chosen. Today’s decision, by not requiring tailored restrictions, has significantly reduced the protection for political speech having little or nothing to do with corruption or the appearance of corruption. II    BCRA §504 amends §315 of the Communications Act to require broadcast licensees to maintain and disclose records of any request to purchase broadcast time that “is made by or on behalf of a legally qualified candidate for public office” or that “communicates a message relating to any political matter of national importance,” including communications relating to “a legally qualified candidate,” “any election to Federal office,” and “a national legislative issue of public importance.” BCRA §504; 47 U. S. C. A. §315(e)(1) (Supp. 2003).[ Footnote 5 ] This section differs from other BCRA disclosure sections because it requires broadcast licensees to disclose requests to purchase broadcast time rather than requiring purchasers to disclose their disbursements for broadcast time. See, e.g. , BCRA §201. The Court concludes that §504 “must survive a facial attack under any potentially applicable First Amendment standard, including that of heightened scrutiny.” Ante , at 15 (opinion of Breyer, J.). I disagree.    This section is deficient because of the absence of a sufficient governmental interest to justify disclosure of mere requests to purchase broadcast time, as well as purchases themselves. The Court approaches §504 almost exclusively from the perspective of the broadcast licensees, ignoring the interests of candidates and other purchasers, whose speech and association rights are affected by §504. See, e.g. , ante, at 5 (noting that broadcasters are subject to numerous recordkeeping requirements); ante , at 7 (opining that this Court has recognized “broad governmental authority for agency information demands from regulated entities”); ante , at 8–9 (“[W]e cannot say that these requirements will impose disproportionate administrative burdens”). An approach that simply focuses on whether the administrative burden is justifiable is untenable. Because §504 impinges on core First Amendment rights, it is subject to a more demanding test than mere rational-basis review. The Court applies the latter by asking essentially whether there is any conceivable reason to support §504. See ante , at 8 (discussing the ways in which the disclosure “can help” the FCC and the public); ante , at 10 (noting that the “recordkeeping requirements seem likely to help the FCC” enforce the fairness doctrine).    Required disclosure provisions that deter constitutionally protected association and speech rights are subject to heightened scrutiny. See Buckley , 424 U. S., at 64. When applying heightened scrutiny, we first ask whether the Government has asserted an interest sufficient to justify the disclosure of requests to purchase broadcast time. Ibid.; see ante , at 89 (joint opinion of Stevens and O’Connor, JJ.) (concluding that the important state interests the Buckley Court held justified FECA’s disclosure requirements apply to BCRA §201’s disclosure requirement). But the Government, in its brief, proffers no interest whatever to support §504 as a whole.    Contrary to the Court’s suggestion, ante , at 7 (opinion of Breyer, J.), the Government’s brief does not succinctly present interests sufficient to support §504. The two paragraphs that the Court relies on provide the following:    “As explained in the government’s brief in opposition to the motion for summary affirmance on this issue filed by plaintiff National Association of Broadcasters (NAB), longstanding FCC regulations impose disclosure requirements with respect to the sponsorship of broadcast matter ‘involving the discussion of a controversial issue of public importance.’ 47 C. F. R. 73.1212(d) and (e) (2002); see 47 C. F. R. 76.1701(d) (2002) (same standard used in disclosure regulation governing cablecasting). By enabling viewers and listeners to identify the persons actually responsible for communications aimed at a mass audience, those regulations assist the public in evaluating the message transmitted. See Bellotti , 435 U.S. at 792 n. 32 (‘Identification of the source of advertising may be required … so that the people will be able to evaluate the arguments to which they are being subjected.’).    “The range of information required to be disclosed under BCRA §504 is comparable to the disclosures mandated by pre-existing FCC rules. Compare 47 U. S. C. 315(e)(2)(G) (added by BCRA §504), with 47 C. F. R. 73.1212(e) and 76.1701(d) (2002). Plaintiffs do not attempt to show that BCRA §504’s requirements are more onerous than the FCC’s longstanding rules, nor do they contend that the pre-existing agency regulations are themselves unconstitutional. See generally 02–1676 Gov’t Br. in Opp. to Mot. of NAB for Summ. Aff. 4–9. Because BCRA §504 is essentially a codification of established and unchallenged regulatory requirements, plaintiffs’ First Amendment claim should be rejected.” Brief for FEC et al. in No. 02–1674 et al., pp. 132–133; ante, at 7. While these paragraphs attempt to set forth a justification for the new Communications Act §315(e)(1)(B), discussed below, I fail to see any justification for BCRA §504 in its entirety. Nor do I find persuasive the Court’s and the Government’s argument that pre-existing unchallenged agency regulations imposing similar disclosure requirements compel the conclusion that §504 is constitutional and somehow relieve the Government of its burden of advancing a constitutionally sufficient justification for §504.    At oral argument, the Government counsel indicated that one of the interests supporting §504 in its entirety stems from the fairness doctrine, Tr. of Oral Arg. 192, which in general imposes an obligation on licensees to devote a “reasonable percentage” of broadcast time to issues of public importance in a way that reflects opposing views. See Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969). Assuming, arguendo , this latter-day assertion should be considered, I think the District Court correctly noted that there is nothing in the record that indicates licensees have treated purchasers unfairly. 251 F. Supp. 2d, at 812 (Leon, J.). In addition, this interest seems wholly unconnected to the central purpose of BCRA, and it is not at all similar to the governmental interests in Buckley that we found to be “sufficiently important to outweigh the possibility of infringement,” 424 U. S., at 66.    As to the disclosure requirements involving “any political matter of national importance” under the new Communications Act §315(e)(1)(B), the Government suggests that the disclosure enables viewers to evaluate the message transmitted.[ Footnote 6 ] First, insofar as BCRA §504 requires reporting of “request[s for] broadcast time” as well as actual broadcasts, it is not supported by this goal. Requests that do not mature into actual purchases will have no viewers, but the information may allow competitors or adversaries to obtain information regarding organizational or political strategies of purchasers. Second, even as to broadcasts themselves, in this noncandidate-related context, this goal is a far cry from the Government interests endorsed in Buckley , which were limited to evaluating and preventing corruption of federal candidates. Ibid.; see also McIntyre v. Ohio Elections Comm’n, 514 U. S. 334 , 354 (1995).    As to disclosure requirements with respect to candidates under the new Communications Act §315(e)(1)(A), BCRA §504 significantly overlaps with §201, which is today also upheld by this Court, ante , at 87–95 (joint opinion of Stevens and O’Connor, JJ.), and requires purchasers of “electioneering communications” to disclose a wide array of information, including the amount of each disbursement and the elections to which electioneering communications pertain. While I recognize that there is this overlap, §504 imposes a different burden on the purchaser’s First Amendment rights: as noted above, §201 is limited to purchasers’ disclosure of disbursements for electioneering communications, whereas §504 requires broadcast licensees’ disclosure of requests for broadcast time by purchasers. Not only are the purchasers’ requests, which may never result in an actual advertisement, subject to the disclosure requirements, but §504 will undoubtedly result in increased costs of communication because the licensees will shift the costs of the onerous disclosure and recordkeeping requirements to purchasers. The Government fails to offer a reason for the separate burden and apparent overlap.    The Government cannot justify, and for that matter, has not attempted to justify, its requirement that “request[s for] broadcast” time be publicized. On the record before this Court, I cannot even speculate as to a governmental interest that would allow me to conclude that the disclosure of “requests” should be upheld. Such disclosure risks, inter alia , allowing candidates and political groups the opportunity to ferret out a purchaser’s political strategy and, ultimately, unduly burdens the First Amendment freedoms of purchasers.    Absent some showing of a Government interest served by §504 and in light of the breadth of disclosure of “requests,” I must conclude that §504 fails to satisfy First Amendment scrutiny. * Justice Scalia and Justice Kennedy join this opinion in its entirety. Footnote 1 The Court points out that state parties may use Levin funds for certain activities. Levin funds, however, are still federal restrictions on speech, even if they are less onerous than the restrictions placed on national parties. Footnote 2 Ironically, in the Court’s view, Congress cannot be trusted to exercise judgment independent of its parties’ large donors in its usual voting decisions because donations may be used to further its members’ reelection campaigns, but yet must be deferred to when it passes a comprehensive regulatory regime that restricts election-related speech. It seems to me no less likely that Congress would create rules that favor its Members’ reelection chances, than be corrupted by the influx of money to its political parties, which may in turn be used to fund a portion of the Members’ reelection campaigns. Footnote 3 The Court’s suggestion that the “close relationship” between federal officeholders and state and local political parties in some way excludes the media from its rationale is unconvincing, see ante, at 24, n. 15 (Thomas, J., concurring in part, concurring in result in part, and dissenting in part), particularly because such a relationship may be proved with minimal evidence. Indeed, although the Court concludes that local political parties have a “close relationship” with federal candidates, thus warranting greater congressional regulation, I am unaware of any evidence in the record that indicates that local political parties have any relationship with federal candidates. Footnote 4 BCRA does not even close all of the “loopholes” that currently exist. Nonprofit organizations are currently able to accept, without disclosing, unlimited donations for voter registration, voter identification, and get-out-the-vote activities, and the record indicates that such organizations already receive large donations, sometimes in the millions of dollars, for these activities, 251 F. Supp. 2d 176, 323 (DC 2003) (Henderson, J., concurring in judgment in part and dissenting in part) (noting that the NAACP Voter Fund received a single, anonymous $7 million donation for get-out-the-vote activities). There is little reason why all donations to these nonprofit organizations, no matter the purpose for which the money is used, will deserve any more protection than the Court provides state parties if Congress decides to regulate them. And who knows what the next “loophole” will be. Footnote 5 Section 315(e), as amended by BCRA §504, provides:    “Political record    “(1) In general    “A licensee shall maintain, and make available for public inspection, a complete record of a request to purchase broadcast time that—    “(A) is made by or on behalf of a legally qualified candidate for public office; or    “(B) communicates a message relating to any political matter of national importance, including—    “(i) a legally qualified candidate;    “(ii) any election to Federal office; or    “(iii) a national legislative issue of public importance.    “(2) Contents of record    “A record maintained under paragraph (1) shall contain information regarding—    “(A) whether the request to purchase broadcast time is accepted or rejected by the licensee;    “(B) the rate charged for the broadcast time;    “(C) the date and time on which the communication is aired;    “(D) the class of time that is purchased;    “(E) the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable);    “(F) in the case of a request made by, or on behalf of, a candidate, the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee; and    “(G) in the case of any other request, the name of the person purchasing the time, the name, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or of the board of directors of such person.    “(3) Time to maintain file    “The information required under this subsection shall be placed in a political file as soon as possible and shall be retained by the licensee for a period of not less than 2 years.” Footnote 6 Communications relating to candidates will be covered by the new Communications Act §315(e)(1)(A), so, in this context, we must consider, for example, the plaintiff-organizations, which may attempt to use the broadcast medium to convey a message espoused by the organizations. STEVENS, J., DISSENTING MCCONNELL V. FEDERAL ELECTION COMM'N 540 U. S. ____ (2003) SUPREME COURT OF THE UNITED STATES NOS. 02-1674, 02-1675, 02-1676, 02-1702, 02-1727, 02-1733, 02-1734;02-1740, 02-1747, 02-1753, 02-1755, AND 02-1756 MITCH McCONNELL, UNITED STATES SENATOR, et al., APPELLANTS 02–1674 v . FEDERAL ELECTION COMMISSION, et al.; NATIONAL RIFLE ASSOCIATION, et al., APPELLANTS 02–1675 v . FEDERAL ELECTION COMMISSION, et al.; FEDERAL ELECTION COMMISSION, et al., APPELLANTS 02–1676 v . MITCH McCONNELL, UNITED STATES SENATOR, et al.; JOHN McCAIN, UNITED STATES SENATOR, et al., APPELLANTS 02–1702 v . MITCH McCONNELL, UNITED STATES SENATOR, et al.; REPUBLICAN NATIONAL COMMITTEE, et al., APPELLANTS 02–1727 v . FEDERAL ELECTION COMMISSION, et al.; NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al., APPELLANTS 02–1733 v . FEDERAL ELECTION COMMISSION, et al.; AMERICAN CIVIL LIBERTIES UNION, APPELLANTS 02–1734 v . FEDERAL ELECTION COMMISSION, et al.; VICTORIA JACKSON GRAY ADAMS, et al., APPELLANTS 02–1740 v . FEDERAL ELECTION COMMISSION, et al.; RON PAUL, UNITED STATES CONGRESSMAN, et al., APPELLANTS 02–1747 v . FEDERAL ELECTION COMMISSION, et al.; CALIFORNIA DEMOCRATIC PARTY, et al., APPELLANTS 02–1753 v . FEDERAL ELECTION COMMISSION, et al.; AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al., APPELLANTS 02–1755 v . FEDERAL ELECTION COMMISSION, et al.; CHAMBER OF COMMERCE OF THE UNITED STATES, et al., APPELLANTS 02–1756 v . FEDERAL ELECTION COMMISSION, et al. on appeals from the united states district court for the district of columbia [December 10, 2003]    Justice Stevens, dissenting with respect to §305.*    The Chief Justice, writing for the Court, concludes that the McConnell plaintiffs lack standing to challenge §305 of BCRA because Senator McConnell cannot be affected by the provision until “45 days before the Republican primary election in 2008.” Ante , at 4. I am not persuaded that Article III’s case-or-controversy requirement imposes such a strict temporal limit on our jurisdiction. By asserting that he has run attack ads in the past, that he plans to run such ads in his next campaign, and that §305 will adversely affect his campaign strategy, Senator McConnell has identified a “concrete,” “ ‘distinct,’ ” and “ ‘actual’ ” injury, Whitmore v. Arkansas, 495 U. S. 149 , 155 (1990). That the injury is distant in time does not make it illusory.    The second prong of the standing inquiry—whether the alleged injury is fairly traceable to the defendants’ challenged action and not the result of a third party’s independent choices† OPINION OF KENNEDY, J. MCCONNELL V. FEDERAL ELECTION COMM'N 540 U. S. ____ (2003) SUPREME COURT OF THE UNITED STATES NOS. 02-1674, 02-1675, 02-1676, 02-1702, 02-1727, 02-1733, 02-1734;02-1740, 02-1747, 02-1753, 02-1755, AND 02-1756 MITCH McCONNELL, UNITED STATES SENATOR, et al., APPELLANTS 02–1674 v . FEDERAL ELECTION COMMISSION, et al.; NATIONAL RIFLE ASSOCIATION, et al., APPELLANTS 02–1675 v . FEDERAL ELECTION COMMISSION, et al.; FEDERAL ELECTION COMMISSION, et al., APPELLANTS 02–1676 v . MITCH McCONNELL, UNITED STATES SENATOR, et al.; JOHN McCAIN, UNITED STATES SENATOR, et al., APPELLANTS 02–1702 v . MITCH McCONNELL, UNITED STATES SENATOR, et al.; REPUBLICAN NATIONAL COMMITTEE, et al., APPELLANTS 02–1727 v . FEDERAL ELECTION COMMISSION, et al.; NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al., APPELLANTS 02–1733 v . FEDERAL ELECTION COMMISSION, et al.; AMERICAN CIVIL LIBERTIES UNION, APPELLANTS 02–1734 v . FEDERAL ELECTION COMMISSION, et al.; VICTORIA JACKSON GRAY ADAMS, et al., APPELLANTS 02–1740 v . FEDERAL ELECTION COMMISSION, et al.; RON PAUL, UNITED STATES CONGRESSMAN, et al., APPELLANTS 02–1747 v . FEDERAL ELECTION COMMISSION, et al.; CALIFORNIA DEMOCRATIC PARTY, et al., APPELLANTS 02–1753 v . FEDERAL ELECTION COMMISSION, et al.; AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al., APPELLANTS 02–1755 v . FEDERAL ELECTION COMMISSION, et al.; CHAMBER OF COMMERCE OF THE UNITED STATES, et al., APPELLANTS 02–1756 v . FEDERAL ELECTION COMMISSION, et al. on appeals from the united states district court for the district of columbia [December 10, 2003]    Justice Kennedy, concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II.*    The First Amendment guarantees our citizens the right to judge for themselves the most effective means for the expression of political views and to decide for themselves which entities to trust as reliable speakers. Significant portions of Titles I and II of the Bipartisan Campaign Reform Act of 2002 (BCRA or Act) constrain that freedom. These new laws force speakers to abandon their own preference for speaking through parties and organizations. And they provide safe harbor to the mainstream press, suggesting that the corporate media alone suffice to alleviate the burdens the Act places on the rights and freedoms of ordinary citizens.    Today’s decision upholding these laws purports simply to follow Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam) , and to abide by stare decisis , see ante , at 27 (joint opinion of Stevens and O’Connor, JJ. (hereinafter Court or majority)); but the majority, to make its decision work, must abridge free speech where Buckley did not. Buckley did not authorize Congress to decide what shapes and forms the national political dialogue is to take. To reach today’s decision, the Court surpasses Buckley ’s limits and expands Congress’ regulatory power. In so doing, it replaces discrete and respected First Amendment principles with new, amorphous, and unsound rules, rules which dismantle basic protections for speech.    A few examples show how BCRA reorders speech rights and codifies the Government’s own preferences for certain speakers. BCRA would have imposed felony punishment on Ross Perot’s 1996 efforts to build the Reform Party. Compare Federal Election Campaign Act of 1971 (FECA) §§309(d)(1)(A), 315(a)(1)(B), and 323(a)(1) (prohibiting, by up to five years’ imprisonment, any individual from giving over $25,000 annually to a national party), with Spending By Perot, The Houston Chronicle, Dec. 13, 1996, p. 43 (reporting Perot’s $8 million founding contribution to the Reform Party). BCRA makes it a felony for an environmental group to broadcast an ad, within 60 days of an election, exhorting the public to protest a Congressman’s impending vote to permit logging in national forests. See BCRA §203. BCRA escalates Congress’ discrimination in favor of the speech rights of giant media corporations and against the speech rights of other corporations, both profit and nonprofit. Compare BCRA §203, with Austin v. Michigan Chamber of Commerce, 494 U. S. 652 , 659–660 (1990) (first sanctioning this type of discrimination).    To the majority, all this is not only valid under the First Amendment but also is part of Congress’ “steady improvement of the national election laws.” Ante , at 6. We should make no mistake. It is neither. It is the codification of an assumption that the mainstream media alone can protect freedom of speech. It is an effort by Congress to ensure that civic discourse takes place only through the modes of its choosing. And BCRA is only the beginning, as its congressional proponents freely admit: “This is a modest step, it is a first step, it is an essential step, but it does not even begin to address, in some ways, the fundamental problems that exist with the hard money aspect of the system.” 148 Cong. Rec. S2101 (Mar. 20, 2002) (statement of Sen. Feingold). Id., at S2097 (statement of Sen. Wellstone) (“[P]assing this legislation … will whet people’s appetite for more”); id., at S2101 (statement of Sen. Boxer) (“[T]his bill is not the be-all or the end-all, but it is a strong start”); id., at S2152 (statement of Sen. Corzine) (“[T]his should not and will not be the last time campaign finance reform is debated on the Senate floor. We have many more important campaign finance issues to explore”); id., at S2157 (statement of Sen. Torricelli) (“Make [BCRA] the beginning of a reform, not the end of reform”); id., at H442 (Feb. 13, 2002) (statement of Rep. Doggett) (“Mr. Chairman, if [BCRA] has any defect, it is that it does too little, not too much”).    Our precedents teach, above all, that Government cannot be trusted to moderate its own rules for suppression of speech. The dangers posed by speech regulations have led the Court to insist upon principled constitutional lines and a rigorous standard of review. The majority now abandons these distinctions and limitations.    With respect, I dissent from the majority opinion upholding BCRA Titles I and II. I concur in the judgment as to BCRA §213 and new FECA §323(e) and concur in the judgment in part and dissent in part as to BCRA §§201, 202, and 214. I. TITLE I AND COORDINATION PROVISIONS    Title I principally bans the solicitation, receipt, transfer and spending of soft money by the national parties (new FECA §323(a), 2 U. S. C. A. §441i(a) (Supp. 2003)). It also bans certain uses of soft money by state parties (new FECA §323(b)); the transfer of soft money from national parties to nonprofit groups (new FECA §323(d)); the solicitation, receipt, transfer, and spending of soft money by federal candidates and officeholders (new FECA §323(e)); and certain uses of soft money by state candidates (new FECA §323(f)). These provisions, and the other provisions with which this opinion is principally concerned, are set out in full, see Appendix, infra . Even a cursory review of the speech and association burdens these laws create makes their First Amendment infirmities obvious:    Title I bars individuals with shared beliefs from pooling their money above limits set by Congress to form a new third party. See new FECA §323(a).    Title I bars national party officials from soliciting or directing soft money to state parties for use on a state ballot initiative. This is true even if no federal office appears on the same ballot as the state initiative. See new FECA §323(a).    A national party’s mere involvement in the strategic planning of fundraising for a state ballot initiative risks a determination that the national party is exercising “indirect control” of the state party. If that determination is made, the state party must abide by federal regulations. And this is so even if the federal candidate on the ballot, if there is one, runs unopposed or is so certain of election that the only voter interest is in the state and local campaigns. See new FECA §323(a).    Title I compels speech. Party officials who want to engage in activity such as fundraising must now speak magic words to ensure the solicitation cannot be interpreted as anything other than a solicitation for hard, not soft, money. See ibid. Title I prohibits the national parties from giving any sort of funds to nonprofit entities, even federally regulated hard money, and even if the party hoped to sponsor the interest group’s exploration of a particular issue in advance of the party’s addition of it to their platform. See new FECA §323(d).    By express terms, Title I imposes multiple different forms of spending caps on parties, candidates, and their agents. See new FECA §§323(a), (e), and (f).    Title I allows state parties to raise quasi-soft money Levin funds for use in activities that might affect a federal election; but the Act prohibits national parties from assisting state parties in developing and executing these fundraising plans, even when the parties seek only to advance state election interests. See new FECA §323(b).    Until today’s consolidated cases, the Court has accepted but two principles to use in determining the validity of campaign finance restrictions. First is the anticorruption rationale. The principal concern, of course, is the agreement for a quid pro quo between officeholders (or candidates) and those who would seek to influence them. The Court has said the interest in preventing corruption allows limitations on receipt of the quid by a candidate or officeholder, regardless of who gives it or of the intent of the donor or officeholder. See Buckley , 424 U. S., at 26– 27, 45–48; infra , at  7–10. Second, the Court has analyzed laws that classify on the basis of the speaker’s corporate or union identity under the corporate speech rationale. The Court has said that the willing adoption of the entity form by corporations and unions justifies regulating them differently: Their ability to give candidates quids may be subject not only to limits but also to outright bans; their electoral speech may likewise be curtailed. See Austin, 494 U. S., at 659–660; Federal Election Comm’n v. National Right to Work Comm., 459 U. S. 197 , 201–211 (1982).    The majority today opens with rhetoric that suggests a conflation of the anticorruption rationale with the corporate speech rationale. See ante , at 3–6 (hearkening back to, among others, Elihu Root and his advocacy against the use of corporate funds in political campaigning). The conflation appears designed to cast the speech regulated here as unseemly corporate speech. The effort, however, is unwarranted, and not just because money is not per se the evil the majority thinks. Most of the regulations at issue, notably all of the Title I soft money bans and the Title II coordination provisions, do not draw distinctions based on corporate or union status. Referring to the corporate speech rationale as if it were the linchpin of the case, when corporate speech is not primarily at issue, adds no force to the Court’s analysis. Instead, the focus must be on Buckley ’s anticorruption rationale and the First Amendment rights of individual citizens. A. Constitutionally Sufficient Interest    In Buckley, the Court held that one, and only one, interest justified the significant burden on the right of association involved there: eliminating, or preventing, actual corruption or the appearance of corruption stemming from contributions to candidates. “It is unnecessary to look beyond the Act’s primary purpose—to limit the actuality and appearance of corruption resulting from large individual financial contributions—in order to find a constitutionally sufficient justification for the $1,000 contribution limitation.” 424 U. S., at 26. See also ibid. (concluding this corruption interest was sufficiently “significant” to sustain “closely drawn” interference with protected First Amendment rights).    In parallel, Buckley concluded the expenditure limitations in question were invalid because they did not advance that same interest. See id., at 47–48 (“[T]he independent expenditure ceiling thus fails to serve any substantial governmental interest in stemming the reality or appearance of corruption in the electoral process”); see also id., at 45, 46.    Thus, though Buckley subjected expenditure limits to strict scrutiny and contribution limits to less exacting review, it held neither could withstand constitutional challenge unless it was shown to advance the anticorruption interest. In these consolidated cases, unless Buckley is to be repudiated, we must conclude that the regulations further that interest before considering whether they are closely drawn or narrowly tailored. If the interest is not advanced, the regulations cannot comport with the Constitution, quite apart from the standard of review. Buckley made clear, by its express language and its context, that the corruption interest only justifies regulating candidates’ and officeholders’ receipt of what we can call the “ quids ” in the quid pro quo formulation. The Court rested its decision on the principle that campaign finance regulation that restricts speech without requiring proof of particular corrupt action withstands constitutional challenge only if it regulates conduct posing a demonstrable quid pro quo danger: “To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined.” Id., at 26–27. See also id., at 45 (“[A]ssuming, arguendo, that large independent expenditures pose the same dangers of actual or apparent quid pro quo arrangements as do large contributions …”). That Buckley rested its decision on this quid pro quo standard is not a novel observation. We have held this was the case: “The exception [of contribution limits being justified under the First Amendment] relates to the perception of undue influence of large contributions to a candidate: ‘ To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined.’ ” Citizens Against Rent Control/Coalition for Fair Housing v. Berkeley, 454 U. S. 290 , 297 (1981) (quoting Buckley, supra, at 26–27). See also Federal Election Comm’n v. Beaumont , 539 U. S. ___ (2003) (furthering this anticorruption rationale by upholding limits on contributions given directly to candidates); Nixon v. Shrink Missouri Government PAC, 528 U. S. 377 (2000) (same).    Despite the Court’s attempt to rely on language from cases like Shrink Missouri to establish that the standard defining corruption is broader than conduct that presents a quid pro quo danger, see ante , at 43, n. 48, in those cases the Court in fact upheld limits on conduct possessing quid pro quo dangers, and nothing more. See also infra , 12. For example, the Shrink Missouri Court’s distinguishing of what was at issue there and quid pro quo , in fact, shows only that it used the term quid pro quo to refer to actual corrupt, vote-buying exchanges, as opposed to interactions that possessed quid pro quo potential even if innocently undertaken. Thus, the Court said: “[W]e spoke in Buckley of the perception of corruption ‘inherent in a regime of large individual financial contributions’ to candidates for public office . . . as a source of concern “almost equal” to quid pro quo improbity.” 528 U. S., at 390 (citations omitted). Thus, the perception of corruption that the majority now asserts is somehow different from the quid pro quo potential discussed in this opinion, was created by an exchange featuring quid pro quo potential—contributions directly to a candidate.    In determining whether conduct poses a quid pro quo danger the analysis is functional. In Buckley , the Court confronted an expenditure limitation provision that capped the amount of money individuals could spend on any activity intended to influence a federal election ( i.e. , it reached to both independent and coordinated expenditures). See 424 U. S., at 46–47. The Court concluded that though the limitation reached both coordinated and independent expenditures, there were other valid FECA provisions that barred coordinated expenditures. Hence, the limit at issue only added regulation to independent expenditures. On that basis it concluded the provision was unsupported by any valid corruption interest. The conduct to which it added regulation (independent expenditures) posed no quid pro quo danger. See ibid .    Placing Buckley ’s anticorruption rationale in the context of the federal legislative power yields the following rule: Congress’ interest in preventing corruption provides a basis for regulating federal candidates’ and officeholders’ receipt of quids , whether or not the candidate or officeholder corruptly received them. Conversely, the rule requires the Court to strike down campaign finance regulations when they do not add regulation to “actual or apparent quid pro quo arrangements.” Id., at 45.    The Court ignores these constitutional bounds and in effect interprets the anticorruption rationale to allow regulation not just of “actual or apparent quid pro quo arrangements,” ibid., but of any conduct that wins goodwill from or influences a Member of Congress. It is not that there is any quarrel between this opinion and the majority that the inquiry since Buckley has been whether certain conduct creates “undue influence.” See ante , at 40–41. On that we agree. The very aim of Buckley ’s standard, however, was to define undue influence by reference to the presence of quid pro quo involving the officeholder. The Court, in contrast, concludes that access, without more, proves influence is undue. Access, in the Court’s view, has the same legal ramifications as actual or apparent corruption of officeholders. This new definition of corruption sweeps away all protections for speech that lie in its path.    The majority says it is not abandoning our cases in this way, but its reasoning shows otherwise:    “More importantly, plaintiffs conceive of corruption too narrowly. Our cases have firmly established that Congress’ legitimate interest extends beyond preventing simple cash-for-votes corruption to curbing ‘undue influence on an officeholder’s judgment, or the appearance of such influence.’ [ Federal Election Comm’n v. Colorado Republican Federal Campaign Comm., 533 U. S. 431 , 441 (2001) (Colorado II) ]. Many of the ‘deeply disturbing examples’ of corruption cited by this Court in Buckley to justify FECA’s contribution limits were not episodes of vote buying, but evidence that various corporate interests had given substantial donations to gain access to high-level government officials. Even if that access did not secure actual influence, it certainly gave the ‘appearance of such influence.’ Colorado II , supra , at 441; see also [ Buckley v. Valeo, 519 F. 2d 821, 838 (CADC 1975)].    “The record in the present case is replete with similar examples of national party committees peddling access to federal candidates and officeholders in exchange for large soft-money donations. See [251 F. Supp. 2d 176, 492–506 (DC 2003) (Kollar-Kotelly, J.)].” Ante, at 40–41.    The majority notes that access flowed from the regulated conduct at issue in Buckley and its progeny, then uses that fact as the basis for concluding that access peddling by the parties equals corruption by the candidates. That conclusion, however, is tenable only by a quick and subtle shift, and one that breaks new ground: The majority ignores the quid pro quo nature of the regulated conduct central to our earlier decisions. It relies instead solely on the fact that access flowed from the conduct.    To ignore the fact that in Buckley the money at issue was given to candidates, creating an obvious quid pro quo danger as much as it led to the candidates also providing access to the donors, is to ignore the Court’s comments in Buckley that show quid pro quo was of central importance to the analysis. See 424 U. S., at 26–27, 45. The majority also ignores that in Buckley , and ever since, those party contributions that have been subject to congressional limit were not general party-building contributions but were only contributions used to influence particular elections. That is, they were contributions that flowed to a particular candidate’s benefit, again posing a quid pro quo danger. And it ignores that in Colorado II , the party spending was that which was coordinated with a particular candidate, thereby implicating quid pro quo dangers. In all of these ways the majority breaks the necessary tether between quid and access and assumes that access, all by itself, demonstrates corruption and so can support regulation. See also ante , at 47 (“[L]arge soft-money donations to national party committees are likely to buy donors preferential access to federal officeholders no matter the ends to which their contributions are eventually put”).    Access in itself, however, shows only that in a general sense an officeholder favors someone or that someone has influence on the officeholder. There is no basis, in law or in fact, to say favoritism or influence in general is the same as corrupt favoritism or influence in particular. By equating vague and generic claims of favoritism or influence with actual or apparent corruption, the Court adopts a definition of corruption that dismantles basic First Amendment rules, permits Congress to suppress speech in the absence of a quid pro quo threat, and moves beyond the rationale that is Buckley ’s very foundation.    The generic favoritism or influence theory articulated by the Court is at odds with standard First Amendment analyses because it is unbounded and susceptible to no limiting principle. Any given action might be favored by any given person, so by the Court’s reasoning political loyalty of the purest sort can be prohibited. There is no remaining principled method for inquiring whether a campaign finance regulation does in fact regulate corruption in a serious and meaningful way. We are left to defer to a congressional conclusion that certain conduct creates favoritism or influence.    Though the majority cites common sense as the foundation for its definition of corruption, see ante, at 35, 43, in the context of the real world only a single definition of corruption has been found to identify political corruption successfully and to distinguish good political responsiveness from bad—that is quid pro quo . Favoritism and influence are not, as the Government’s theory suggests, avoidable in representative politics. It is in the nature of an elected representative to favor certain policies, and, by necessary corollary, to favor the voters and contributors who support those policies. It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness. Q uid pro quo corruption has been, until now, the only agreed upon conduct that represents the bad form of responsiveness and presents a justiciable standard with a relatively clear limiting principle: Bad responsiveness may be demonstrated by pointing to a relationship between an official and a quid .    The majority attempts to mask its extension of Buckley under claims that BCRA prevents the appearance of corruption, even if it does not prevent actual corruption, since some assert that any donation of money to a political party is suspect. See ante , at 40–42. Under Buckley ’s holding that Congress has a valid “interest in stemming the reality or appearance of corruption,” 424 U. S., at 47–48, however, the inquiry does not turn on whether some persons assert that an appearance of corruption exists. Rather, the inquiry turns on whether the Legislature has established that the regulated conduct has inherent corruption potential, thus justifying the inference that regulating the conduct will stem the appearance of real corruption. Buckley was guided and constrained by this analysis. In striking down expenditure limits the Court in Buckley did not ask whether people thought large election expenditures corrupt, because clearly at that time many persons, including a majority of Congress and the President, did. See id., at 25 (“According to the parties and amici , the primary interest served . . . by the Act as a whole, is the prevention of corruption and the appearance of corruption”). Instead, the Court asked whether the Government had proved that the regulated conduct, the expenditures, posed inherent quid pro quo corruption potential. See id., at 46.    The Buckley decision made this analysis even clearer in upholding contribution limitations. It stated that even if actual corrupt contribution practices had not been proved, Congress had an interest in regulating the appearance of corruption that is “inherent in a regime of large individual financial contributions.” Id., at 27 (discussing contributions to candidates). See also id., at 28, 30. The quid pro quo nature of candidate contributions justified the conclusion that the contributions pose inherent corruption potential; and this in turn justified the conclusion that their regulation would stem the appearance of real corruption.    From that it follows that the Court today should not ask, as it does, whether some persons, even Members of Congress, conclusorily assert that the regulated conduct appears corrupt to them. Following Buckley , it should instead inquire whether the conduct now prohibited inherently poses a real or substantive quid pro quo danger, so that its regulation will stem the appearance of quid pro quo corruption. 1. New FECA §§323(a), (b), (d), and (f)    Sections 323(a), (b), (d), and (f), 2 U. S. C. A. §§441i(a), (b), (d), and (f ) (Supp. 2003), cannot stand because they do not add regulation to conduct that poses a demonstrable quid pro quo danger. They do not further Buckley ’s corruption interest.    The majority, with a broad brush, paints §323(a) as aimed at limiting contributions possessing federal officeholder corruption potential. From there it would justify §323’s remaining provisions as necessary complements to ensure the national parties cannot circumvent §323(a)’s prohibitions. The broad brush approach fails, however, when the provisions are reviewed under Buckley ’s proper definition of corruption potential.    On its face §323(a) does not regulate federal candidates’ or officeholders’ receipt of quids because it does not regulate contributions to, or conduct by, candidates or officeholders. See BCRA §101(a) (setting out new FECA §323(a): National parties may not “solicit, receive, or direct to another person … or spend any [soft money]”).    The realities that underlie the statute, furthermore, do not support the majority’s interpretation. Before BCRA’s enactment, parties could only use soft money for a candidate’s “benefit” ( e.g. , through issue ads, which all parties now admit may influence elections) independent of that candidate. And, as discussed later, §323(e) validly prohibits federal candidate and officeholder solicitation of soft money party donations. See infra , at 31. Section 323(a), therefore, only adds regulation to soft money party donations not solicited by, or spent in coordination with, a candidate or officeholder.    These donations (noncandidate or officeholder solicited soft money party donations that are independently spent) do not pose the quid pro quo dangers that provide the basis for restricting protected speech. Though the government argues §323(a) does regulate federal candidates’ and officeholders’ receipt of quids , it bases its argument on this flawed reasoning:    (1) “[F]ederal elected officeholders are inextricably linked to their political parties,” Brief for Appellees/Cross Appellants FEC et al. in No. 02–1674 et al., p. 21; cf. Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604 , 626 (1996) (Colorado I) (Kennedy, J., concurring in judgment and dissenting in part).    (2) All party receipts must be connected to, and must create, corrupt donor favoritism among these officeholders.    (3) Therefore, regulation of party receipts equals regulation of quids to the party’s officeholders.    The reasoning is flawed because the Government’s reliance on reasoning parallel to the Colorado I concurrence only establishes the first step in its chain of logic: that a party is a proxy for its candidates generally. It does not establish the second step: that as a proxy for its candidates generally, all moneys the party receives (not just candidate solicited-soft money donations, or donations used in coordinated activity) represent quids for all the party’s candidates and officeholders. The Government’s analysis is inconsistent with what a majority of the Justices, in different opinions, have said.    Justice Thomas’ dissent in Colorado II , 533 U. S., at 476–477, taken together with Justice Breyer’s opinion announcing the judgment of the Court in Colorado I , rebuts the second step of the Government’s argument. Justice Thomas demonstrated that a general party-candidate corruption linkage does not exist. As he pointed out: “The dearth of evidence [of such corruption] is unsurprising in light of the unique relationship between a political party and its candidates: ‘The very aim of a political party is to influence its candidate’s stance on issues and, if the candidate takes office or is reelected, his votes.’ If coordinated expenditures help achieve this aim, the achievement ‘does not … constitute “a subversion of the political process.” ’ ” Colorado II, supra, at 476–477 (citations omitted) . Justice Breyer reached the same conclusion about the corrupting effect general party receipts could have on particular candidates, though on narrower grounds. He concluded that independent party conduct lacks quid pro quo corruption potential. See Colorado I, 518 U. S., at 617–618; id., at 617 (“If anything, an independent [party] expenditure made possible by a $20,000 donation, but controlled and directed by a party rather than the donor, would seem less likely to corrupt than the same (or a much larger) independent expenditure made directly by that donor”); id., at 616 (“[T]he opportunity for corruption posed by [soft money] contributions is, at best, attenuated” because they may not be used for the purposes of influencing a federal election under FECA).    These opinions establish that independent party activity, which by definition includes independent receipt and spending of soft money, lacks a possibility for quid pro quo corruption of federal officeholders. This must be all the more true of a party’s independent receipt and spending of soft money donations neither directed to nor solicited by a candidate.    The Government’s premise is also unsupported by the record before us. The record confirms that soft money party contributions, without more, do not create quid pro quo corruption potential. As a conceptual matter, generic party contributions may engender good will from a can- didate or officeholder because, as the Government says: “[A] Member of Congress can be expected to feel a natural temptation to favor those persons who have helped the ‘team,’ ” Brief for Appellees/Cross-Appellants FEC et al. in No. 02–1674 et al., p. 33. Still, no Member of Congress testified this favoritism changed voting behavior.    The piece of record evidence the Government puts forward on this score comes by way of deposition testimony from former Senator Simon and Senator Feingold. See 251 F. Supp. 2d 176, 482 (DC 2003) (Kollar-Kotelly, J.). Senator Simon reported an unidentified colleague indicated frustration with Simon’s opposition to legislation that would benefit a party contributor on the grounds that “ ‘we’ve got to pay attention to who is buttering our bread’ ” and testified he did not think there was any question “ ‘this’ ” ( i.e. , “donors getting their way”) was why the legislation passed. See App. 805. Senator Feingold, too, testified an unidentified colleague suggested he support the legislation because “ ‘they [ i.e. , the donor] just gave us [ i.e. , the party] $100,000.’ ” 251 F. Supp. 2d, at 482 (Kollar-Kotelly, J.).    That evidence in fact works against the Government. These two testifying Senators expressed disgust toward the favoring of a soft money giver, and not the good will one would have expected under the Government’s theory. That necessarily undercuts the inference of corruption the Government would have us draw from the evidence.    Even more damaging to the Government’s argument from the testimony is the absence of testimony that the Senator who allegedly succumbed to corrupt influence had himself solicited soft money from the donor in question. Equally, there is no indication he simply favored the company with his vote because it had, without any involvement from him, given funds to the party to which he belonged. This fact is crucial. If the Senator himself had been the solicitor of the soft money funds in question, the incident does nothing more than confirm that Congress’ efforts at campaign finance reform ought to be directed to conduct that implicates quid pro quo relationships. Only if there was some evidence that the officeholder had not solicited funds from the donor could the Court extrapolate from this episode that general party contributions function as quids , inspiring corrupt favoritism among party members. The episode is the single one of its type reported in the record and does not seem sufficient basis for major incursions into settled practice. Given the Government’s claim that the corrupt favoritism problem is widespread, its inability to produce more than a single instance purporting to illustrate the point demonstrates the Government has not fairly characterized the general attitudes of Members towards soft money donors from whom they have not solicited.    Other aspects of the record confirm the Government has not produced evidence that Members corruptly favor soft money donors to their party as a per se matter. Most testimony from which the Government would have the Court infer corruption is testimony that Members are rewarded by their parties for soliciting soft money. See i d., at 438–521 (Kollar-Kotelly, J.). This says nothing about how Members feel about a party’s soft money donors from whom they have not solicited. Indeed, record evidence on this point again cuts against the Government: “ ‘As a Member of the Senate Finance Committee, I experienced the pressure first hand. On several occasions when we were debating important tax bills, I needed a police escort to get into the Finance Committee hearing room because so many lobbyists were crowding the halls, trying to get one last chance to make their pitch to each Senator. Senators generally knew which lobbyist represented the interests of which large donor. I was often glad that I limited the amount of soft money fundraising I did and did not take PAC contributions, because it would be extremely difficult not to feel beholden to these donors otherwise.’ ” Id., at 482 (testimony of former Senator Boren; see 6–R Defs. Exhs., Tab 8, ¶ ;8). Thus, one of the handful of Senators on whom the Government relies to make its case candidly admits the pressure of appeasing soft money donors derives from the Members’ solicitation of donors, not from those donors’ otherwise giving to their party.    In light of all this, §323(a) has no valid anticorruption interest. The anticircumvention interests the Government offers in defense of §§323(b), (d), and (f) must also fall with the interests asserted to justify §323(a). Any anticircumvention interest can be only as compelling as the interest justifying the underlying regulation.    None of these other sections has an independent justifying interest. Section 323(b), for example, adds regulation only to activity undertaken by a state party. In the District Court two of the three judges found as fact that particular state and local parties exist primarily to participate in state and local elections, that they spend the majority of their resources on those elections, and that their voter registration and Get Out The Vote (GOTV) activities, in particular, are directed primarily at state and local elections. See 251 F. Supp. 2d, at 301–302 (Henderson, J., concurring in judgment in part and dissenting in part); id., at 837–840 (Leon, J.). These findings, taken together with BCRA’s other, valid prohibitions barring coordination with federal candidates or officeholders and their soft money solicitation, demonstrate that §323(b) does not add regulation to conduct that poses a danger of a federal candidate’s or officeholder’s receipt of quids .    Even §323(b)’s narrowest regulation, which bans state party soft money funded ads that (1) refer to a clearly identified federal candidate, and (2) either support or attack any candidate for the office of the clearly mentioned federal candidate, see new FECA §301(20)(A)(iii), fails the constitutional test. The ban on conduct that by the statute’s own definition may serve the interest of a federal candidate suggests to the majority that it is conduct that poses quid pro quo danger for federal candidates or officeholders. Yet, even this effect—considered after excising the coordination and candidate-solicited funding aspects elsewhere prohibited by BCRA §§202 and 214(a) and new FECA §323(a)—poses no danger of a federal candidate’s or officeholder’s receipt of a quid . That conduct is no different from an individual’s independent expenditure referring to and supporting a clearly identified candidate—and this poses no regulable danger.    Section 323(d), which governs relationships between the national parties and nonprofit groups, fails for similar reasons. It is worth noting that neither the record nor our own experience tells us how significant these funds transfers are at this time. It is plain, however, that the First Amendment ought not to be manipulated to permit Congress to forbid a political party from aiding other speakers whom the party deems more effective in addressing discrete issues. One of the central flaws in BCRA is that Congress is determining what future course the creation of ideas and the expression of views must follow. Its attempt to foreclose new and creative partnerships for speech, as illustrated here, is consistent with neither the traditions nor principles of our Free Speech guarantee, which insists that the people, and not the Congress, decide what modes of expression are the most legitimate and effective.    The majority’s upholding §323(d) is all the more unsettling because of the way it ignores the Act as Congress wrote it. Congress said national parties “shall not solicit any funds for, or make or direct any donations to” §501(c) nonprofit organizations that engage in federal election activity or to §527 political committees. The Court, however, reads out the word “any” and construes the words “funds” and “donations” to mean “soft money funds” and “soft money donations.” See ante , at 72 (“This construction is consistent with the concerns animating Title I, whose purpose is to plug the soft-money loophole”). The Court’s statutory amendment may be consistent with its anti-soft-money rationale; it is not, however, consistent with the plain and unavoidable statutory text Congress has given us. Even as construed by the Court, moreover, it is invalid.    The majority strains to save the provision from what must seem to it an unduly harsh First Amendment. It does so by making a legislative determination Congress chose not to make: to prefer hard money to soft money within the construct of national party relationships with nonprofit groups. Congress gave no indication of a preference to regulate either hard money or soft in this context. Rather, it simply proscribed all transfers of money between the two organizations and all efforts by the national parties to raise any money on the nonprofit groups’ behalf. The question the Court faces is not which part of a text to sever and strike, but whether Congress can prohibit such transfers altogether. The answer, as the majority recognizes, is no. See ante , at 71 (“[P]rohibiting parties from donating funds already raised in compliance with FECA does little to further Congress’ goal of preventing corruption or the appearance of corruption of federal candidates and officeholders”).    Though §323(f) in effect imposes limits on candidate contributions, it does not address federal candidate and officeholder contributions. Yet it is the possibility of federal officeholder quid pro quo corruption potential that animates Buckley ’s rule as it relates to Acts of Congress (as opposed to Acts of state legislatures). See 424 U. S., at 13 (“The constitutional power of Congress to regulate federal elections is well established”).    When one recognizes that §§323(a), (b), (d), and (f) do not serve the interest the anticorruption rationale contemplates, Title I’s entirety begins to look very much like an incumbency protection plan. See J. Miller, Monopoly Politics 84–101 (1999) (concluding that regulations limiting election fundraising and spending constrain challengers more than incumbents). That impression is worsened by the fact that Congress exempted its officeholders from the more stringent prohibitions imposed on party officials. Compare new FECA §323(a) with new FECA §323(e). Section 323(a) raises an inflexible bar against soft money solicitation, in any way, by parties or party officials. Section 323(e), in contrast, enacts exceptions to the rule for federal officeholders (the very centerpiece of possible corruption), and allows them to solicit soft money for various uses and organizations.    The law in some respects even weakens the regulation of federal candidates and officeholders. Under former law, officeholders were understood to be limited to receipt of hard money by their campaign committees. See 2 U. S. C. §§431, 441a (setting out the pre-BCRA FECA regime). BCRA, however, now allows them and their campaign committees to receive soft money that fits the hard money source and amount restrictions, so long as the officeholders direct that money on to other nonfederal candidates. See new FECA §323(e)(1)(B). The majority’s characterization of this weakening of the regime as “tightly constrain[ing]” candidates, ante, at 73, n. 70, is a prime example of its unwillingness to confront Congress’ own interest or the persisting fact that the regulations violate First Amendment freedoms. The more lenient treatment accorded to incumbency-driven politicians than to party officials who represent broad national constituencies must render all the more suspect Congress’ claim that the Act’s sole purpose is to stop corruption.    The majority answers this charge by stating the obvious, that “§323(e) applies to both officeholders and candidates .” Ante , at 78, n. 72. The controlling point, of course, is the practical burden on challengers. That the prohibition applies to both incumbents and challengers in no way establishes that it burdens them equally in that regard. Name recognition and other advantages held by incumbents ensure that as a general rule incumbents will be advantaged by the legislation the Court today upholds.    The Government identifies no valid anticorruption interest justifying §§323(a), (b), (d), and (f). The very nature of the restrictions imposed by these provisions makes one all the more skeptical of the Court’s explanation of the interests at stake. These provisions cannot stand under the First Amendment. 2. New FECA §323(e)    Ultimately, only one of the challenged Title I provisions satisfies Buckley ’s anticorruption rationale and the First Amendment’s guarantee. It is §323(e). This provision is the sole aspect of Title I that is a direct and necessary regulation of federal candidates’ and officeholders’ receipt of quids . Section 323(e) governs “candidate[s], individual[s] holding Federal office, agent[s] of a candidate or an individual holding Federal office, or an entity directly or indirectly established, financed, maintained or controlled by or acting on behalf of 1 or more candidates or individuals holding Federal office.” 2 U. S. C. A. §441i(e) (Supp. 2003). These provisions, and the regulations that follow, limit candidates’ and their agents’ solicitation of soft money. The regulation of a candidate’s receipt of funds furthers a constitutionally sufficient interest. More difficult, however, is the question whether regulation of a candidate’s solicitation of funds also furthers this interest if the funds are given to another.    I agree with the Court that the broader solicitation regulation does further a sufficient interest. The making of a solicited gift is a quid both to the recipient of the money and to the one who solicits the payment (by granting his request). Rules governing candidates’ or officeholders’ solicitation of contributions are, therefore, regulations governing their receipt of quids . This regulation fits under Buckley ’s anticorruption rationale. B. Standard of Review    It is common ground between the majority and this opinion that a speech-suppressing campaign finance regulation, even if supported by a sufficient Government interest, is unlawful if it cannot satisfy our designated standard of review. See ante , at 24–27. In Buckley , we applied “closely drawn” scrutiny to contribution limitations and strict scrutiny to expenditure limitations. Compare 424 U. S., at 25, with id., at 44–45. Against that backdrop, the majority assumes that because Buckley applied the rationale in the context of contribution and expenditure limits, its application gives Congress and the Court the capacity to classify any challenged campaign finance regulation as either a contribution or an expenditure limit. Thus, it first concludes Title I’s regulations are contributions limits and then proceeds to apply the lesser scrutiny. “Complex as its provisions may be, §323, in the main, does little more than regulate the ability of wealthy individuals, corporations, and unions to contribute large sums of money to influence federal elections, federal candidates, and federal officeholders.” Ante, at 28.    Though the majority’s analysis denies it, Title I’s dynamics defy this facile, initial classification.    Title I’s provisions prohibit the receipt of funds; and in most instances, but not all, this can be defined as a contribution limit. They prohibit the spending of funds; and in most instances this can be defined as an expenditure limit. They prohibit the giving of funds to nonprofit groups; and this falls within neither definition as we have ever defined it. Finally, they prohibit fundraising activity; and the parties dispute the classification of this regulation (the challengers say it is core political association, while the Government says it ultimately results only in a limit on contribution receipts).    The majority’s classification overlooks these competing characteristics and exchanges Buckley ’s substance for a formulaic caricature of it. Despite the parties’ and the majority’s best efforts on both sides of the question, it ignores reality to force these regulations into one of the two legal categories as either contribution or expenditure limitations. Instead, these characteristics seem to indicate Congress has enacted regulations that are neither contribution nor expenditure limits, or are perhaps both at once.    Even if the laws could be classified in broad terms as only contribution limits, as the majority is inclined to do, that still leaves the question what “contribution limits” can include if they are to be upheld under Buckley . Buckley ’s application of a less exacting review to contribution limits must be confined to the narrow category of money gifts that are directed, in some manner, to a candidate or officeholder. Any broader definition of the category contradicts Buckley ’s quid pro quo rationale and overlooks Buckley ’s language, which contemplates limits on contributions to a candidate or campaign committee in explicit terms. See 424 U. S., at 13 (applying less exacting review to “contribution … limitations in the Act prohibit[ing] individuals from contributing more than $25,000 in a single year or more than $1,000 to any single candidate for an election campaign”); id., at 45 (“[T]he contribution limitations’ [apply a] total ban on the giving of large amounts of money to candidates”). See also id., at 20, 25, 28.    The Court, it must be acknowledged, both in Buckley and on other occasions, has described contribution limits due some more deferential review in less than precise terms. At times it implied that donations to political parties would also qualify as contributions whose limitation too would be subject to less exacting review. See id., at 23–24, n. 24 (“[T]he general understanding of what constitutes a political contribution[:] Funds provided to a candidate or political party or campaign committee either directly or indirectly through an intermediary constitute a contribution”). See also Federal Election Comm’n v. Beaumont , 539 U. S., at ___ (2003) (slip op., at 14) (“ ‘[C]ontributions may result in political expression if spent by a candidate or an association’ ”).    These seemingly conflicting statements are best reconciled by reference to Buckley ’s underlying rationale for applying less exacting review. In a similar, but more imperative, sense proper application of the standard of review to regulations that are neither contribution nor expenditure limits (or which are both at once) can only be determined by reference to that rationale. Buckley ’s underlying rationale is this: Less exacting review applies to Government regulations that “significantly interfere” with First Amendment rights of association. But any regulation of speech or associational rights creating “markedly greater interference” than such significant interference receives strict scrutiny. Unworkable and ill advised though it may be, Buckley unavoidably sets forth this test: “Even a ‘ “significant interference” with protected rights of political association’ may be sustained if the State demonstrates [1] a sufficiently important interest and [2] employs means closely drawn to avoid unnecessary abridgment of associational freedoms. Cousins v. Wigoda , [ 419 U. S. 477 , 488 (1975)]; NAACP v. Button, [ 371 U. S. 415 , 438 (1963)]; Shelton v. Tucker [ 364 U. S. 479 , 488 (1960)] .” 424 U. S., at 25. “The markedly greater burden on basic freedoms [referring to ‘the freedom of speech and association’] caused by [expenditure limits] thus cannot be sustained simply by invoking the interest in maximizing the effectiveness of the less intrusive contribution limitations. Rather, the constitutionality of [the expenditure limits] turns on whether the governmental interests advanced in its support satisfy the exacting scrutiny applicable to limitations on core First Amendment rights of political expression.” Id., at 44–45.† OPINION OF SCALIA, J. MCCONNELL V. FEDERAL ELECTION COMM'N 540 U. S. ____ (2003) SUPREME COURT OF THE UNITED STATES NOS. 02-1674, 02-1675, 02-1676, 02-1702, 02-1727, 02-1733, 02-1734;02-1740, 02-1747, 02-1753, 02-1755, AND 02-1756 MITCH McCONNELL, UNITED STATES SENATOR, et al., APPELLANTS 02–1674 v . FEDERAL ELECTION COMMISSION, et al.; NATIONAL RIFLE ASSOCIATION, et al., APPELLANTS 02–1675 v . FEDERAL ELECTION COMMISSION, et al.; FEDERAL ELECTION COMMISSION, et al., APPELLANTS 02–1676 v . MITCH McCONNELL, UNITED STATES SENATOR, et al.; JOHN McCAIN, UNITED STATES SENATOR, et al., APPELLANTS 02–1702 v . MITCH McCONNELL, UNITED STATES SENATOR, et al.; REPUBLICAN NATIONAL COMMITTEE, et al., APPELLANTS 02–1727 v . FEDERAL ELECTION COMMISSION, et al.; NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al., APPELLANTS 02–1733 v . FEDERAL ELECTION COMMISSION, et al.; AMERICAN CIVIL LIBERTIES UNION, APPELLANTS 02–1734 v . FEDERAL ELECTION COMMISSION, et al.; VICTORIA JACKSON GRAY ADAMS, et al., APPELLANTS 02–1740 v . FEDERAL ELECTION COMMISSION, et al.; RON PAUL, UNITED STATES CONGRESSMAN, et al., APPELLANTS 02–1747 v . FEDERAL ELECTION COMMISSION, et al.; CALIFORNIA DEMOCRATIC PARTY, et al., APPELLANTS 02–1753 v . FEDERAL ELECTION COMMISSION, et al.; AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al., APPELLANTS 02–1755 v . FEDERAL ELECTION COMMISSION, et al.; CHAMBER OF COMMERCE OF THE UNITED STATES, et al., APPELLANTS 02–1756 v . FEDERAL ELECTION COMMISSION, et al. on appeals from the united states district court for the district of columbia [December 10, 2003]    Justice Scalia, concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II.    With respect to Titles I, II, and V: I join in full the dissent of The Chief Justice; I join the opinion of Justice Kennedy, except to the extent it upholds new §323(e) of the Federal Election Campaign Act of 1971 (FECA) and §202 of the Bipartisan Campaign Reform Act of 2002 (BCRA) in part; and because I continue to believe that Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), was wrongly decided, I also join Parts I, II–A, and II–B of the opinion of Justice Thomas. With respect to Titles III and IV, I join The Chief Justice’s opinion for the Court. Because these cases are of such extraordinary importance, I cannot avoid adding to the many writings a few words of my own.    This is a sad day for the freedom of speech. Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography, Ashcroft v. Free Speech Coalition, 535 U. S. 234 (2002), tobacco advertising, Lorillard Tobacco Co. v. Reilly, 533 U. S. 525 (2001), dissemination of illegally intercepted communications, Bartnicki v. Vopper, 532 U. S. 514 (2001), and sexually explicit cable programming, United States v. Playboy Entertainment Group, Inc., 529 U. S. 803 (2000), would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government. For that is what the most offensive provisions of this legislation are all about. We are governed by Congress, and this legislation prohibits the criticism of Members of Congress by those entities most capable of giving such criticism loud voice: national political parties and corporations, both of the commercial and the not-for-profit sort. It forbids pre-election criticism of incumbents by corporations, even not-for-profit corporations, by use of their general funds; and forbids national-party use of “soft” money to fund “issue ads” that incumbents find so offensive.    To be sure, the legislation is evenhanded: It similarly prohibits criticism of the candidates who oppose Members of Congress in their reelection bids. But as everyone knows, this is an area in which evenhandedness is not fairness. If all electioneering were evenhandedly prohibited, incumbents would have an enormous advantage. Likewise, if incumbents and challengers are limited to the same quantity of electioneering, incumbents are favored. In other words, any restriction upon a type of campaign speech that is equally available to challengers and incumbents tends to favor incumbents.    Beyond that, however, the present legislation targets for prohibition certain categories of campaign speech that are particularly harmful to incumbents. Is it accidental, do you think, that incumbents raise about three times as much “hard money”—the sort of funding generally not restricted by this legislation—as do their challengers? See FEC, 1999–2000 Financial Activity of All Senate and House Campaigns (Jan. 1, 1999–Dec. 31, 2000) (last modified on May 15, 2001), http://www.fec.gov/press/ 051501congfinact/tables/allcong2000.xls (all Internet ma-terials as visited Dec. 4, 2003, and available in Clerk of Court’s case file). Or that lobbyists (who seek the favor of incumbents) give 92 percent of their money in “hard” contributions? See U. S. Public Interest Research Group (PIRG), The Lobbyist’s Last Laugh: How K Street Lob- byists Would Benefit from the McCain-Feingold Cam- paign Finance Bill 3 (July 5, 2001), http://www.pirg.org/ democracy/democracy.asp?id2=5068. Is it an oversight, do you suppose, that the so-called “millionaire provisions” raise the contribution limit for a candidate running against an individual who devotes to the campaign (as challengers often do) great personal wealth, but do not raise the limit for a candidate running against an individual who devotes to the campaign (as incumbents often do) a massive election “war chest”? See BCRA §§304, 316, and 319. And is it mere happenstance, do you estimate, that national-party funding, which is severely limited by the Act, is more likely to assist cash-strapped challengers than flush-with-hard-money incumbents? See A. Gierzynski & D. Breaux, The Financing Role of Parties, in Campaign Finance in State Legislative Elections 195–200 (J. Thompson & S. Moncrief eds. 1998). Was it unintended, by any chance, that incumbents are free personally to receive some soft money and even to solicit it for other organizations, while national parties are not? See new FECA §§323(a) and (e).    I wish to address three fallacious propositions that might be thought to justify some or all of the provisions of this legislation—only the last of which is explicitly embraced by the principal opinion for the Court, but all of which underlie, I think, its approach to these cases. (a)  Money is Not Speech    It was said by congressional proponents of this legislation, see 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer), 145 Cong. Rec. S12612 (Oct. 14, 1999) (remarks of Sen. Cleland), 147 Cong. Rec. S2436 (Mar. 19, 2001) (remarks of Sen. Dodd), with support from the law reviews, see, e.g. , Wright, Politics and the Constitution: Is Money Speech?, 85 Yale L. J. 1001 (1976), that since this legislation regulates nothing but the expenditure of money for speech, as opposed to speech itself, the burden it imposes is not subject to full First Amendment scrutiny; the government may regulate the raising and spending of campaign funds just as it regulates other forms of conduct, such as burning draft cards, see United States v. O’Brien, 391 U. S. 367 (1968), or camping out on the National Mall, see Clark v. Community for Creative Non&nbhyph;Violence, 468 U. S. 288 (1984). That proposition has been endorsed by one of the two authors of today’s principal opinion: “The right to use one’s own money to hire gladiators, [and] to fund ‘speech by proxy,’ … [are] property rights . . . not entitled to the same protection as the right to say what one pleases.” Nixon v. Shrink Missouri Government PAC, 528 U. S. 377 , 399 (2000) (Stevens, J., concurring). Until today, however, that view has been categorically rejected by our jurisprudence. As we said in Buckley, 424 U. S., at 16, “this Court has never suggested that the dependence of a communication on the expenditure of money operates itself to introduce a nonspeech element or to reduce the exacting scrutiny required by the First Amendment.”    Our traditional view was correct, and today’s cavalier attitude toward regulating the financing of speech (the “exacting scrutiny” test of Buckley , see ibid. , is not uttered in any majority opinion, and is not observed in the ones from which I dissent) frustrates the fundamental purpose of the First Amendment. In any economy operated on even the most rudimentary principles of division of labor, effective public communication requires the speaker to make use of the services of others. An author may write a novel, but he will seldom publish and distribute it himself. A freelance reporter may write a story, but he will rarely edit, print, and deliver it to subscribers. To a government bent on suppressing speech, this mode of organization presents opportunities: Control any cog in the machine, and you can halt the whole apparatus. License printers, and it matters little whether authors are still free to write. Restrict the sale of books, and it matters little who prints them. Predictably, repressive regimes have exploited these principles by attacking all levels of the production and dissemination of ideas. See, e.g. , Printing Act of 1662, 14 Car. II, c. 33, §§1, 4, 7 (punishing printers, importers, and booksellers); Printing Act of 1649, 2 Acts and Ordinances of the Interregnum 245, 246, 250 (punishing authors, printers, booksellers, importers, and buyers). In response to this threat, we have interpreted the First Amendment broadly. See, e.g. , Bantam Books, Inc. v. Sullivan, 372 U. S. 58 , 65, n. 6 (1963) (“The constitutional guarantee of freedom of the press embraces the circulation of books as well as their publication …”).    Division of labor requires a means of mediating exchange, and in a commercial society, that means is supplied by money. The publisher pays the author for the right to sell his book; it pays its staff who print and assemble the book; it demands payments from booksellers who bring the book to market. This, too, presents opportunities for repression: Instead of regulating the various parties to the enterprise individually, the government can suppress their ability to coordinate by regulating their use of money. What good is the right to print books without a right to buy works from authors? Or the right to publish newspapers without the right to pay deliverymen? The right to speak would be largely ineffective if it did not include the right to engage in financial transactions that are the incidents of its exercise.    This is not to say that any regulation of money is a regulation of speech. The government may apply general commercial regulations to those who use money for speech if it applies them evenhandedly to those who use money for other purposes. But where the government singles out money used to fund speech as its legislative object, it is acting against speech as such, no less than if it had targeted the paper on which a book was printed or the trucks that deliver it to the bookstore.    History and jurisprudence bear this out. The best early examples derive from the British efforts to tax the press after the lapse of licensing statutes by which the press was first regulated. The Stamp Act of 1712 imposed levies on all newspapers, including an additional tax for each advertisement. 10 Anne, c. 18, §113. It was a response to unfavorable war coverage, “obvious[ly] … designed to check the publication of those newspapers and pamphlets which depended for their sale on their cheapness and sensationalism.” F. Siebert, Freedom of the Press in England, 1476–1776, pp. 309–310 (1952). It succeeded in killing off approximately half the newspapers in England in its first year. Id. , at 312. In 1765, Parliament applied a similar Act to the Colonies. 5 Geo. III, c. 12, §1. The colonial Act likewise placed exactions on sales and advertising revenue, the latter at 2s. per advertisement, which was “by any standard . . . excessive, since the publisher himself received only from 3 to 5s. and still less for repeated insertions.” A. Schlesinger, Prelude to Independence: The Newspaper War on Britain, 1764–1776, p. 68 (1958). The founding generation saw these taxes as grievous incursions on the freedom of the press. See, e.g. , 1 D. Ramsay, History of the American Revolution 61–62 (L. Cohen ed. 1990); J. Adams, A Dissertation on the Canon and Feudal Law (1765), reprinted in 3 Life and Works of John Adams 445, 464 (C. Adams ed. 1851). See generally Grosjean v. American Press Co., 297 U. S. 233 , 245–249 (1936); Schlesinger, supra, at 67–84.    We have kept faith with the Founders’ tradition by prohibiting the selective taxation of the press. Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575 (1983) (ink and paper tax); Grosjean , supra (advertisement tax). And we have done so whether the tax was the product of illicit motive or not. See Minneapolis Star & Tribune Co., supra , at 592. These press-taxation cases belie the claim that regulation of money used to fund speech is not regulation of speech itself. A tax on a newspaper’s advertising revenue does not prohibit anyone from saying anything; it merely appropriates part of the revenue that a speaker would otherwise obtain. That is even a step short of totally prohibiting advertising revenue— which would be analogous to the total prohibition of certain campaign-speech contributions in the present cases. Yet it is unquestionably a violation of the First Amendment.     Many other cases exemplify the same principle that an attack upon the funding of speech is an attack upon speech itself. In Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980), we struck down an ordinance limiting the amount charities could pay their solicitors. In Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105 (1991), we held unconstitutional a state statute that appropriated the proceeds of criminals’ biographies for payment to the victims. And in Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995), we held unconstitutional a university’s discrimination in the disbursement of funds to speakers on the basis of viewpoint. Most notable, perhaps, is our famous opinion in New York Times Co. v. Sullivan, 376 U. S. 254 (1964), holding that paid advertisements in a newspaper were entitled to full First Amendment protection: “Any other conclusion would discourage newspapers from carrying ‘editorial advertisements’ of this type, and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities—who wish to exercise their freedom of speech even though they are not members of the press. The effect would be to shackle the First Amendment in its attempt to secure ‘the widest possible dissemination of information from diverse and antagonistic sources.’ ” Id ., at 266 (citations omitted). This passage was relied on in Buckley for the point that restrictions on the expenditure of money for speech are equivalent to restrictions on speech itself. 424 U. S., at 16–17. That reliance was appropriate. If denying protection to paid-for speech would “shackle the First Amendment,” so also does forbidding or limiting the right to pay for speech.    It should be obvious, then, that a law limiting the amount a person can spend to broadcast his political views is a direct restriction on speech. That is no different from a law limiting the amount a newspaper can pay its editorial staff or the amount a charity can pay its leafletters. It is equally clear that a limit on the amount a candidate can raise from any one individual for the purpose of speaking is also a direct limitation on speech. That is no different from a law limiting the amount a publisher can accept from any one shareholder or lender, or the amount a newspaper can charge any one advertiser or customer. (b)  Pooling Money is Not Speech    Another proposition which could explain at least some of the results of today’s opinion is that the First Amendment right to spend money for speech does not include the right to combine with others in spending money for speech. Such a proposition fits uncomfortably with the concluding words of our Declaration of Independence: “And for the support of this Declaration, . . . we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.” (Emphasis added.) The freedom to associate with others for the dissemination of ideas—not just by singing or speaking in unison, but by pooling financial resources for expressive purposes—is part of the freedom of speech. “Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents.” NAACP v. Button , 371 U. S. 415 , 431 (1963) (internal quotation marks omitted). “The First Amendment protects political association as well as political expression. The constitutional right of association explicated in NAACP v. Alabama, 357 U. S. 449 , 460 (1958), stemmed from the Court’s recognition that ‘[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.’ Subsequent decisions have made clear that the First and Fourteenth Amendments guarantee ‘ “freedom to associate with others for the common advancement of political beliefs and ideas,” ’ … .” Buckley, supra, at 15. We have said that “implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. United States Jaycees, 468 U. S. 609 , 622 (1984). That “right to associate . . . in pursuit” includes the right to pool financial resources.    If it were otherwise, Congress would be empowered to enact legislation requiring newspapers to be sole proprietorships, banning their use of partnership or corporate form. That sort of restriction would be an obvious violation of the First Amendment, and it is incomprehensible why the conclusion should change when what is at issue is the pooling of funds for the most important (and most perennially threatened) category of speech: electoral speech. The principle that such financial association does not enjoy full First Amendment protection threatens the existence of all political parties. (c) Speech by Corporations Can Be Abridged    The last proposition that might explain at least some of today’s casual abridgment of free-speech rights is this: that the particular form of association known as a corporation does not enjoy full First Amendment protection. Of course the text of the First Amendment does not limit its application in this fashion, even though “[b]y the end of the eighteenth century the corporation was a familiar figure in American economic life.” C. Cooke, Corporation, Trust and Company 92 (1951). Nor is there any basis in reason why First Amendment rights should not attach to corporate associations—and we have said so. In First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978), we held unconstitutional a state prohibition of corporate speech designed to influence the vote on referendum proposals. We said:    “[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs. If the speakers here were not corporations, no one would suggest that the State could silence their proposed speech. It is the type of speech indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual. The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.” Id. , at 776–777 (internal quotation marks, footnotes, and citations omitted). In NAACP v. Button, supra , at 428–429, 431, we held that the NAACP could assert First Amendment rights “on its own behalf, . . . though a corporation,” and that the activities of the corporation were “modes of expression and association protected by the First and Fourteenth Amendments.” In Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal. , 475 U. S. 1 , 8 (1986), we held unconstitutional a state effort to compel corporate speech. “The identity of the speaker,” we said, “is not decisive in determining whether speech is protected. Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment seeks to foster.” And in Buckley , 424 U. S. 1 , we held unconstitutional FECA’s limitation upon independent corporate expenditures.    The Court changed course in Austin v. Michigan Chamber of Commerce , 494 U. S. 652 (1990), upholding a state prohibition of an independent corporate expenditure in support of a candidate for state office. I dissented in that case, see id ., at 679, and remain of the view that it was error. In the modern world, giving the government power to exclude corporations from the political debate enables it effectively to muffle the voices that best represent the most significant segments of the economy and the most passionately held social and political views. People who associate—who pool their financial resources—for purposes of economic enterprise overwhelmingly do so in the corporate form; and with increasing frequency, incorporation is chosen by those who associate to defend and promote particular ideas—such as the American Civil Liberties Union and the National Rifle Association, parties to these cases. Imagine, then, a government that wished to suppress nuclear power—or oil and gas exploration, or automobile manufacturing, or gun ownership, or civil liberties—and that had the power to prohibit corporate advertising against its proposals. To be sure, the individuals involved in, or benefited by, those industries, or interested in those causes, could (given enough time) form political action committees or other associations to make their case. But the organizational form in which those enterprises already exist , and in which they can most quickly and most effectively get their message across, is the corporate form. The First Amendment does not in my view permit the restriction of that political speech. And the same holds true for corporate electoral speech: A candidate should not be insulated from the most effective speech that the major participants in the economy and major incorporated interest groups can generate.    But what about the danger to the political system posed by “amassed wealth”? The most direct threat from that source comes in the form of undisclosed favors and payoffs to elected officials—which have already been criminalized, and will be rendered no more discoverable by the legislation at issue here. The use of corporate wealth (like individual wealth) to speak to the electorate is unlikely to “distort” elections— especially if disclosure requirements tell the people where the speech is coming from. The premise of the First Amendment is that the American people are neither sheep nor fools, and hence fully capable of considering both the substance of the speech presented to them and its proximate and ultimate source. If that premise is wrong, our democracy has a much greater problem to overcome than merely the influence of amassed wealth. Given the premises of democracy, there is no such thing as too much speech.    But, it is argued, quite apart from its effect upon the electorate, corporate speech in the form of contributions to the candidate’s campaign, or even in the form of independent expenditures supporting the candidate, engenders an obligation which is later paid in the form of greater access to the officeholder, or indeed in the form of votes on particular bills. Any quid-pro-quo agreement for votes would of course violate criminal law, see 18 U. S. C. §201, and actual payoff votes have not even been claimed by those favoring the restrictions on corporate speech. It cannot be denied, however, that corporate (like noncorporate) allies will have greater access to the officeholder, and that he will tend to favor the same causes as those who support him (which is usually why they supported him). That is the nature of politics—if not indeed human nature—and how this can properly be considered “corruption” (or “the appearance of corruption”) with regard to corporate allies and not with regard to other allies is beyond me. If the Bill of Rights had intended an exception to the freedom of speech in order to combat this malign proclivity of the officeholder to agree with those who agree with him, and to speak more with his supporters than his opponents, it would surely have said so. It did not do so, I think, because the juice is not worth the squeeze. Evil corporate (and private affluent) influences are well enough checked (so long as adequate campaign-expenditure disclosure rules exist) by the politician’s fear of being portrayed as “in the pocket” of so-called moneyed interests. The incremental benefit obtained by muzzling corporate speech is more than offset by loss of the information and persuasion that corporate speech can contain. That, at least, is the assumption of a constitutional guarantee which prescribes that Congress shall make no law abridging the freedom of speech.    But let us not be deceived. While the Government’s briefs and arguments before this Court focused on the horrible “appearance of corruption,” the most passionate floor statements during the debates on this legislation pertained to so-called attack ads, which the Constitution surely protects, but which Members of Congress analogized to “crack cocaine,” 144 Cong. Rec. S868 (Feb. 24, 1998) (remarks of Sen. Daschle), “drive-by shooting[s],” id., at S879 (remarks of Sen. Durbin), and “air pollution,” 143 Cong. Rec. 20505 (1997) (remarks of Sen. Dorgan). There is good reason to believe that the ending of negative campaign ads was the principal attraction of the legislation. A Senate sponsor said, “I hope that we will not allow our attention to be distracted from the real issues at hand—how to raise the tenor of the debate in our elections and give people real choices. No one benefits from negative ads. They don’t aid our Nation’s political dialog.” Id., at 20521–20522 (remarks of Sen. McCain). He assured the body that “[y]ou cut off the soft money, you are going to see a lot less of that [attack ads]. Prohibit unions and corporations, and you will see a lot less of that. If you demand full disclosure for those who pay for those ads, you are going to see a lot less of that . . . .” 147 Cong. Rec. S3116 (Mar. 29, 2001) (remarks of Sen. McCain). See also, e.g. , 148 Cong. Rec. S2117 (Mar. 20, 2002) (remarks of Sen. Cantwell) (“This bill is about slowing the ad war. . . . It is about slowing political advertising and making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves”); 143 Cong. Rec. 20746 (1997) (remarks of Sen. Boxer) (“These so-called issues ads are not regulated at all and mention candidates by name. They directly attack candidates without any accountability. It is brutal… . We have an opportunity in the McCain-Feingold bill to stop that . . .”); 145 Cong. Rec. S12606–S12607 (Oct. 14, 1999) (remarks of Sen. Wellstone) (“I think these issue advocacy ads are a nightmare. I think all of us should hate them… . [By passing the legislation], [w]e could get some of this poison politics off television”).    Another theme prominent in the legislative debates was the notion that there is too much money spent on elections. The first principle of “reform” was that “there should be less money in politics.” 147 Cong. Rec. S3236 (Apr. 2, 2001) (remarks of Sen. Murray). “The enormous amounts of special interest money that flood our political system have become a cancer in our democracy.” 148 Cong. Rec. S2151 (Mar. 20, 2002) (remarks of Sen. Kennedy). “[L]arge sums of money drown out the voice of the average voter.” 148 Cong. Rec. H373 (Feb. 13, 2002) (remarks of Rep. Langevin). The system of campaign finance is “drowning in money.” Id., at H404 (remarks of Rep. Menendez). And most expansively: “Despite the ever-increasing sums spent on campaigns, we have not seen an improvement in campaign discourse, issue discussion or voter education. More money does not mean more ideas, more substance or more depth. Instead, it means more of what voters complain about most. More 30-second spots, more negativity and an increasingly longer campaign period.” 148 Cong. Rec. S2150 (Mar. 20, 2002) (remarks of Sen. Kerry). Perhaps voters do detest these 30-second spots—though I suspect they detest even more hour-long campaign-debate interruptions of their favorite entertainment programming. Evidently, however, these ads do persuade voters, or else they would not be so routinely used by sophisticated politicians of all parties. The point, in any event, is that it is not the proper role of those who govern us to judge which campaign speech has “substance” and “depth” (do you think it might be that which is least damaging to incumbents?) and to abridge the rest.    And what exactly are these outrageous sums frittered away in determining who will govern us? A report prepared for Congress concluded that the total amount, in hard and soft money, spent on the 2000 federal elections was between $2.4 and $2.5 billion. J. Cantor, CRS Report for Congress, Campaign Finance in the 2000 Federal Elections: Overview and Estimates of the Flow of Money (2001). All campaign spending in the United States, including state elections, ballot initiatives, and judicial elections, has been estimated at $3.9 billion for 2000, Nelson, Spending in the 2000 Elections, in Financing the 2000 Election 24, Tbl. 2–1 (D. Magleby ed. 2002), which was a year that “shattered spending and contribution records,” id. , at 22. Even taking this last, larger figure as the benchmark, it means that Americans spent about half as much electing all their Nation’s officials, state and federal, as they spent on movie tickets ($7.8 billion); about a fifth as much as they spent on cosmetics and perfume ($18.8 billion); and about a sixth as much as they spent on pork (the nongovernmental sort) ($22.8 billion). See U. S. Dept. of Commerce, Bureau of Economic Analysis, Tbl. 2.6U (Col. AS; Rows 356, 214, and 139), http:// www.bea.doc.gov/bea/dn/206u.csv. If our democracy is drowning from this much spending, it cannot swim. * * *    Which brings me back to where I began: This litigation is about preventing criticism of the government. I cannot say for certain that many, or some, or even any, of the Members of Congress who voted for this legislation did so not to produce “fairer” campaigns, but to mute criticism of their records and facilitate reelection. Indeed, I will stipulate that all those who voted for the Act believed they were acting for the good of the country. There remains the problem of the Charlie Wilson Phenomenon, named after Charles Wilson, former president of General Motors, who is supposed to have said during the Senate hearing on his nomination as Secretary of Defense that “what’s good for General Motors is good for the country.”* Those in power, even giving them the benefit of the greatest good will, are inclined to believe that what is good for them is good for the country. Whether in prescient recognition of the Charlie Wilson Phenomenon, or out of fear of good old-fashioned, malicious, self-interested manipulation, “[t]he fundamental approach of the First Amendment . . . was to assume the worst, and to rule the regulation of political speech ‘for fairness’ sake’ simply out of bounds.” Austin , 494 U. S., at 693 (Scalia, J., dissenting). Having abandoned that approach to a limited extent in Buckley , we abandon it much further today.    We will unquestionably be called upon to abandon it further still in the future. The most frightening passage in the lengthy floor debates on this legislation is the following assurance given by one of the cosponsoring Senators to his colleagues: “This is a modest step, it is a first step, it is an essential step, but it does not even begin to address, in some ways, the fundamental problems that exist with the hard money aspect of the system.” 148 Cong. Rec. S2101 (Mar. 20, 2002) (statement of Sen. Feingold). The system indeed. The first instinct of power is the retention of power, and, under a Constitution that requires periodic elections, that is best achieved by the suppression of election-time speech. We have witnessed merely the second scene of Act I of what promises to be a lengthy tragedy. In scene 3 the Court, having abandoned most of the First Amendment weaponry that Buckley left intact, will be even less equipped to resist the incumbents’ writing of the rules of political debate. The federal election campaign laws, which are already (as today’s opinions show) so voluminous, so detailed, so complex, that no ordinary citizen dare run for office, or even contribute a significant sum, without hiring an expert advisor in the field, can be expected to grow more voluminous, more detailed, and more complex in the years to come—and always, always, with the objective of reducing the excessive amount of speech. * It is disillusioning to learn that the fabled quote is inaccurate. Wilson actually said: “[F]or years I thought what was good for our country was good for General Motors, and vice versa. The difference did not exist.” Hearings before the Senate Committee on Armed Services, 83d Cong., 1st Sess., 26 (1953). OPINION OF THOMAS, J. MCCONNELL V. FEDERAL ELECTION COMM'N 540 U. S. ____ (2003) SUPREME COURT OF THE UNITED STATES NOS. 02-1674, 02-1675, 02-1676, 02-1702, 02-1727, 02-1733, 02-1734;02-1740, 02-1747, 02-1753, 02-1755, AND 02-1756 MITCH McCONNELL, UNITED STATES SENATOR, et al., APPELLANTS 02–1674 v . FEDERAL ELECTION COMMISSION, et al.; NATIONAL RIFLE ASSOCIATION, et al., APPELLANTS 02–1675 v . FEDERAL ELECTION COMMISSION, et al.; FEDERAL ELECTION COMMISSION, et al., APPELLANTS 02–1676 v . MITCH McCONNELL, UNITED STATES SENATOR, et al.; JOHN McCAIN, UNITED STATES SENATOR, et al., APPELLANTS 02–1702 v . MITCH McCONNELL, UNITED STATES SENATOR, et al.; REPUBLICAN NATIONAL COMMITTEE, et al., APPELLANTS 02–1727 v . FEDERAL ELECTION COMMISSION, et al.; NATIONAL RIGHT TO LIFE COMMITTEE, INC., et al., APPELLANTS 02–1733 v . FEDERAL ELECTION COMMISSION, et al.; AMERICAN CIVIL LIBERTIES UNION, APPELLANTS 02–1734 v . FEDERAL ELECTION COMMISSION, et al.; VICTORIA JACKSON GRAY ADAMS, et al., APPELLANTS 02–1740 v . FEDERAL ELECTION COMMISSION, et al.; RON PAUL, UNITED STATES CONGRESSMAN, et al., APPELLANTS 02–1747 v . FEDERAL ELECTION COMMISSION, et al.; CALIFORNIA DEMOCRATIC PARTY, et al., APPELLANTS 02–1753 v . FEDERAL ELECTION COMMISSION, et al.; AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, et al., APPELLANTS 02–1755 v . FEDERAL ELECTION COMMISSION, et al.; CHAMBER OF COMMERCE OF THE UNITED STATES, et al., APPELLANTS 02–1756 v . FEDERAL ELECTION COMMISSION, et al. on appeals from the united states district court for the district of columbia [December 10, 2003]    Justice Thomas, concurring with respect to BCRA Titles III and IV, except for BCRA §§311 and 318, concurring in the result with respect to BCRA §318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §311.*    The First Amendment provides that “Congress shall make no law … abridging the freedom of speech.” Nevertheless, the Court today upholds what can only be described as the most significant abridgment of the freedoms of speech and association since the Civil War. With breathtaking scope, the Bipartisan Campaign Reform Act of 2002 (BCRA), directly targets and constricts core political speech, the “primary object of First Amendment protection.” Nixon v. Shrink Missouri Government PAC, 528 U. S. 377 , 410–411 (2000) (Thomas, J., dissenting). Because “the First Amendment ’has its fullest and most urgent application’ to speech uttered during a campaign for political office,” Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214 , 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U. S. 265 , 272 (1971)), our duty is to approach these restrictions “with the utmost skepticism” and subject them to the “strictest scrutiny.” Shrink Missouri , supra , at 412 (Thomas, J., dissenting).    In response to this assault on the free exchange of ideas and with only the slightest consideration of the appropriate standard of review or of the Court’s traditional role of protecting First Amendment freedoms, the Court has placed its imprimatur on these unprecedented restrictions. The very “purpose of the First Amendment [is] to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 , 390 (1969). Yet today the fundamental principle that “the best test of truth is the power of the thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U. S. 616 , 630 (1919) (Holmes, J., dissenting), is cast aside in the purported service of preventing “corruption,” or the mere “appearance of corruption.” Buckley v. Valeo, 424 U. S. 1 , 26 (1976) (per curiam). Apparently, the marketplace of ideas is to be fully open only to defamers, New York Times Co. v. Sullivan, 376 U. S. 254 (1964); nude dancers, Barnes v. Glen Theatre, Inc., 501 U. S. 560 (1991) (plurality opinion); pornographers, Ashcroft v. Free Speech Coalition, 535 U. S. 234 (2002); flag burners, United States v. Eichman, 496 U. S. 310 (1990); and cross burners, Virginia v. Black, 538 U. S. ___ (2003).    Because I cannot agree with the treatment given by Justice Stevens’ and Justice O’Connor’s opinion (hereinafter joint opinion) to speech that is “indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of modern industrial society,” Thornhill v. Alabama, 310 U. S. 88 , 103 (1940), I respectfully dissent. I also dissent from Justice Breyer’s opinion upholding BCRA §504. I join The Chief Justice’s opinion in regards to BCRA §§304, 305, 307, 316, 319, and 403(b); concur in the result as to §318; and dissent from the opinion as to §311. I also fully agree with Justice Kennedy’s discussion of §213 and join that portion of his opinion. Post , at 37–38. I A    “[C]ampaign finance laws are subject to strict scrutiny,” Federal Election Comm’n v. Beaumont , 539 U. S. ___, ___ (2003) (slip op., at 1) (Thomas, J., dissenting), and thus Title I must satisfy that demanding standard even if it were (incorrectly) conceived of as nothing more than a contribution limitation. The defendants do not even attempt to defend Title I under this standard, and for good reason: The various restrictions imposed by Title I are much less narrowly tailored to target only corrupting or problematic donations than even the contribution limits in Shrink Missouri . See 528 U. S., at 427–430 (Thomas, J., dissenting); see also Colorado Republican Federal Campaign Comm. v. Federal Election Comm’n, 518 U. S. 604 , 641–644 (1996) (Thomas, J., dissenting) (Colorado I). And, as I have previously noted, it is unclear why “[b]ribery laws [that] bar precisely the quid pro quo arrangements that are targeted here” and “disclosure laws” are not “less restrictive means of addressing [the Government’s] interest in curtailing corruption.” Shrink Missouri , supra , at 428.    The joint opinion not only continues the errors of Buckley v. Valeo, by applying a low level of scrutiny to contribution ceilings, but also builds upon these errors by expanding the anticircumvention rationale beyond reason. Admittedly, exploitation of an anticircumvention concept has a long pedigree, going back at least to Buckley itself. Buckley upheld a $1,000 contribution ceiling as a way to combat both the “actuality and appearance of corruption.” 424 U. S., at 26. The challengers in Buckley contended both that bribery laws represented “a less restrictive means of dealing with ‘proven and suspected quid pro quo arrangements,’ ” id ., at 27, and that the $1,000 contribution ceiling was overbroad as “most large contributors do not seek improper influence over a candidate’s position or an officeholder’s action,” id ., at 29. The Court rejected the first argument on the grounds that “laws making criminal the giving and taking of bribes deal with only the most blatant and specific attempts of those with money to influence governmental action,” id ., at 27–28, and rejected the second on the grounds that “it [is] difficult to isolate suspect contributions,” id ., at 30.[ Footnote 1 ] But a broadly drawn bribery law[ Footnote 2 ] would cover even subtle and general attempts to influence government officials corruptly, eliminating the Court’s first concern. And, an effective bribery law would deter actual quid pro quos and would, in all likelihood, eliminate any appearance of corruption in the system.    Hence, at root, the Buckley Court was concerned that bribery laws could not be effectively enforced to prevent quid pro quos between donors and officeholders, and the only rational reading of Buckley is that it approved the $1,000 contribution ceiling on this ground. The Court then, however, having at least in part concluded that individual contribution ceilings were necessary to prevent easy evasion of bribery laws, proceeded to uphold a separate contribution limitation, using, as the only justification, the “prevent[ion] [of] evasion of the $1,000 contribution limitation.” Id ., at 38. The need to prevent circumvention of a limitation that was itself an anticircumvention measure led to the upholding of another significant restriction on individuals’ freedom of speech.    The joint opinion now repeats this process. New Federal Election Campaign Act of 1971 (FECA) §323(a), 2 U. S. C. A. §441i(a) (Supp. 2003), is intended to prevent easy circumvention of the (now) $2,000 contribution ceiling. The joint opinion even recognizes this, relying heavily on evidence that, for instance, “candidates and donors alike have in fact exploited the soft-money loophole, the former to increase their prospects of election and the latter to create debt on the part of officeholders, with the national parties serving as willing intermediaries.” Ante , at 36. The joint opinion upholds §323(a), in part, on the grounds that it had become too easy to circumvent the $2,000 cap by using the national parties as go-betweens.    And the remaining provisions of new FECA §323 are upheld mostly as measures preventing circumvention of other contribution limits, including §323(a), ante, at 55–57 (§323(b)); ante, at 66–69 (§323(d)); ante, at 75 (§323(e)); ante, at 77–78 (§323(f)), which, as I have already explained, is a second-order anticircumvention measure. The joint opinion’s handling of §323(f) is perhaps most telling, as it upholds §323(f) only because of “Congress’ eminently reasonable prediction that … state and local candidates and officeholders will become the next conduits for the soft-money funding of sham issue advertising.” Ante, at 78 (emphasis added). That is, this Court upholds a third-order anticircumvention measure based on Congress’ anticipation of circumvention of these second-order anticircumvention measures that might possibly, at some point in the future, pose some problem.    It is not difficult to see where this leads. Every law has limits, and there will always be behavior not covered by the law but at its edges; behavior easily characterized as “circumventing” the law’s prohibition. Hence, speech regulation will again expand to cover new forms of “circumvention,” only to spur supposed circumvention of the new regulations, and so forth. Rather than permit this never-ending and self-justifying process, I would require that the Government explain why proposed speech restrictions are needed in light of actual Government interests, and, in particular, why the bribery laws are not sufficient. B    But Title I falls even on the joint opinion’s terms. This Court has held that “[t]he quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised.” Shrink Missouri , 528 U. S., at 391. And three Members of today’s majority have observed that “the opportunity for corruption” presented by “[u]nregulated ‘soft money’ contributions” is “at best, attenuated.” Colorado I , 518 U. S., at 616 (opinion of Breyer, J., joined by O’Connor and Souter, JJ.). Such an observation is quite clearly correct. A donation to a political party is a clumsy method by which to influence a candidate, as the party is free to spend the donation however it sees fit, and could easily spend the money as to provide no help to the candidate. And, a soft-money donation to a party will be of even less benefit to a candidate, “because of legal restrictions on how the money may be spent.” Brief for FEC et al. in No. 02–1674 et al., p. 43. It follows that the defendants bear an especially heavy empirical burden in justifying Title I.    The evidence cited by the joint opinion does not meet this standard and would barely suffice for anything more than rational-basis review. The first category of the joint opinion’s evidence is evidence that “federal officeholders have commonly asked donors to make soft-money donations to national and state committees solely in order to assist federal campaigns, including the officeholder’s own.” Ante , at 36 (internal quotation marks omitted). But to the extent that donors and federal officeholders have collaborated so that donors could give donations to a national party committee “for the purpose of influencing any election for Federal office,” the alleged soft-money donation is in actuality a regular “contribution” as already defined and regulated by FECA. See 2 U. S. C. §431(8)(A)(i). Neither the joint opinion nor the defendants present evidence that enforcement of pre-BCRA law has proved to be impossible, ineffective, or even particularly difficult.    The second category is evidence that “lobbyists, CEOs, and wealthy individuals” have “donat[ed] substantial sums of soft money to national committees not on ideological grounds, but for the express purpose of securing influence over federal officials.” Ante , at 37. Even if true (and the cited evidence consists of nothing more than vague allegations of wrongdoing), it is unclear why existing bribery laws could not address this problem. Again, neither the joint opinion nor the defendants point to evidence that the enforcement of bribery laws has been or would be ineffective. If the problem has been clear and widespread, as the joint opinion suggests, I would expect that convictions, or at least prosecutions, would be more frequent.    The third category is evidence characterized by the joint opinion as “connect[ing] soft money to manipulations of the legislative calendar, leading to Congress’ failure to enact, among other things, generic drug legislation, tort reform, and tobacco legislation.” Ante , at 40. But the evidence for this is no stronger than the evidence that there has been actual vote buying or vote switching for soft money. The joint opinion’s citations to the record do not stand for the propositions that they claim. For instance, the McCain declaration does not provide any evidence of any exchange of legislative action for donations of any kind (hard or soft).[ Footnote 3 ] Neither do the Simpson or Simon declarations, with perhaps one exception effectively addressed by Justice Kennedy’s opinion.[ Footnote 4 ] See post , at 18–19. In fact, the findings by two of the District Court’s judges confirm that the evidence of any quid pro quo corruption is exceedingly weak, if not nonexistent. See 251 F. Supp. 2d 176, 349–352 (DC 2003) (Henderson, J., concurring in judgment in part and dissenting in part); id ., at 851–853 (Leon, J.). The evidence cited by the joint opinion is properly described as “at best, [the Members of Congress’] personal conjecture regarding the impact of soft money donations on the voting practices of their present and former colleagues.” Id. , at 852 (Leon, J.).    The joint opinion also places a substantial amount of weight on the fact that “in 1996 and 2000, more than half of the top 50 soft-money donors gave substantial sums to both major national parties,” and suggests that this fact “leav[es] room for no other conclusion but that these donors were seeking influence, or avoiding retaliation, rather than promoting any particular ideology.” Ante , at 38 (emphasis in original). But that is not necessarily the case. The two major parties are not perfect ideological opposites, and supporters or opponents of certain policies or ideas might find substantial overlap between the two parties. If donors feel that both major parties are in general agreement over an issue of importance to them, it is unremarkable that such donors show support for both parties. This commonsense explanation surely belies the joint opinion’s too-hasty conclusion drawn from a relatively innocent fact.    The Court today finds such sparse evidence sufficient. This cannot be held to satisfy even the “relatively complaisant review” of Beaumont , 539 U. S., at ___ (slip op., at 14), unless, as it appears, the Court intends to abdicate entirely its role.[ Footnote 5 ] II    The Court is not content with “balanc[ing] away First Amendment freedoms,” Shrink Missouri, 528 U. S., at 410 (Thomas, J., dissenting), in the context of the restrictions imposed by Title I, which could arguably (if wrongly) be thought to be mere contribution limits. The Court also, in upholding virtually all of Title II, proceeds to do the same for limitations on expenditures, which constitute “political expression ‘at the core of our electoral process and of the First Amendment freedoms,’ ” Buckley, 424 U. S., at 39 (quoting Williams v. Rhodes , 393 U. S. 23 , 32 (1968)). Today’s holding continues a disturbing trend: the steady decrease in the level of scrutiny applied to restrictions on core political speech. See Buckley , supra , at 16 (First Amendment requires “exacting scrutiny”); Shrink Missouri , supra , at 387 (applying “ Buckley ’s standard of scrutiny”); Beaumont, supra , at ___ (slip op., at 14) (referencing “relatively complaisant review”).[ Footnote 6 ] Although this trend is most obvious in the review of contribution limits, it has now reached what even this Court today would presumably recognize as a direct restriction on core political speech: limitations on independent expenditures. A    Of course, by accepting Congress’ expansion of what constitutes “coordination” for purposes of treating expenditures as limitations, the Court can pretend that it is, in fact, still only restricting primarily “contributions.” I need not say much about this illusion. I have already discussed how the language used in new FECA §315(a)(7)(B)(ii) is, even under Buckley ’s framework, overly broad and restricts fully protected speech. See Federal Election Comm’n v. Colorado Republican Federal Campaign Comm., 533 U. S. 431 , 467–468 (2001) (Thomas, J., dissenting) (Colorado II). The particular language used, “expenditures made by any person … in cooperation, consultation, or concert with, or at the request or suggestion of, a national, State, or local committee of a political party,” BCRA §214(a)(2), captures expenditures with “no constitutional difference” from “a purely independent one.” Id., at 468 (Thomas, J., dissenting).[ Footnote 7 ] And new FECA §315(a)(7)(C), although using the neutral term “coordinated,” certainly has the purpose of “clarif[ying] the scope of the preceding subsection, §315(a)(7)(B),” ante , at 95 (joint opinion), and thus should be read to be as expansive as the overly broad language in §315(a)(7)(B). Hence, it too is unconstitutional. B As for §§203 and 204, the Court rests its decision on another vast expansion of the First Amendment framework described in Buckley , this time of the Court’s, rather than Congress’, own making. In Austin v. Michigan Chamber of Commerce, 494 U. S. 652 , 659–660 (1990), the Court recognized a “different type of corruption” from the “ ‘financial quid pro quo’ ” : the “corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.” The only effect, however, that the “immense aggregations” of wealth will have (in the context of independent expenditures) on an election is that they might be used to fund communications to convince voters to select certain candidates over others. In other words, the “corrosive and distorting effects” described in Austin are that corporations, on behalf of their shareholders, will be able to convince voters of the correctness of their ideas. Apparently, winning in the marketplace of ideas is no longer a sign that “the ultimate good” has been “reached by free trade in ideas,” or that the speaker has survived “the best test of truth” by having “the thought … get itself accepted in the competition of the market.” Abrams , 250 U. S., at 630 (Holmes, J., dissenting). It is now evidence of “corruption.” This conclusion is antithetical to everything for which the First Amendment stands. See, e.g., First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 , 790 (1978) (“[T]he fact that advocacy may persuade the electorate is hardly a reason to suppress it”); Kingsley Int’l Pictures Corp. v. Regents of Univ. of N. Y., 360 U. S. 684 , 689 (1959) (“[I]n the realm of ideas [the Constitution] protects expression which is eloquent no less than that which is unconvincing”). Because Austin ’s definition of “corruption” is incompatible with the First Amendment, I would overturn Austin and hold that the potential for corporations and unions to influence voters, via independent expenditures aimed at convincing these voters to adopt particular views, is not a form of corruption justifying any state regulation or suppression. Without Austin ’s peculiar variation of “corruption,” §§203 and 204 are supported by no compelling government interest. The joint opinion does not even argue that these provisions address quid pro quo corruption.[ Footnote 8 ] And the shareholder protection rationale is equally unavailing. The “shareholder invests in a corporation of his own volition and is free to withdraw his investment at any time and for any reason,” Bellotti, supra , at 794, n. 34. Hence, no compelling interest can be found in protecting minority shareholders from the corporation’s use of its general treasury, especially where, in other contexts, “equally important and controversial corporate decisions are made by management or by a predetermined percentage of the shareholders.” Ibid . C I must now address an issue on which I differ from all of my colleagues: the disclosure provisions in BCRA §201, now contained in new FECA §304(f). The “historical evidence indicates that Founding-era Americans opposed attempts to require that anonymous authors reveal their identities on the ground that forced disclosure violated the ‘freedom of the press.’ ” McIntyre v. Ohio Elections Comm’n, 514 U. S. 334 , 361 (1995) (Thomas, J., concurring).[ Footnote 9 ] Indeed, this Court has explicitly recognized that “the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry,” and thus that “an author’s decision to remain anonymous … is an aspect of the freedom of speech protected by the First Amendment.” Id ., at 342. The Court now backs away from this principle, allowing the established right to anonymous speech to be stripped away based on the flimsiest of justifications. The only plausible interest asserted by the defendants to justify the disclosure provisions is the interest in providing “information” about the speaker to the public. But we have already held that “[t]he simple interest in providing voters with additional relevant information does not justify a state requirement that a writer make statements or disclosures she would otherwise omit.” Id., at 348. Of course, Buckley upheld the disclosure requirement on expenditures for communications using words of express advocacy based on this informational interest. 424 U. S., at 81. And admittedly, McIntyre purported to distinguish Buckley . McIntyre , supra, at 355–356. But the two ways McIntyre distinguished Buckley —one, that the disclosure of “an expenditure and its use, without more, reveals far less information [than a forced identification of the author of a pamphlet,]” 514 U. S., at 355; and two, that in candidate elections, the “Government can identify a compelling state interest in avoiding the corruption that might result from campaign expenditures,” id ., at 356—are inherently implausible. The first is simply wrong. The revelation of one’s political expenditures for independent communications about candidates can be just as revealing as the revelation of one’s name on a pamphlet for a noncandidate election. See also id. , at 384 (Scalia, J., dissenting). The second was outright rejected in Buckley itself, where the Court concluded that independent expenditures did not create any substantial risk of real or apparent corruption. 424 U. S., at 47. Hence, the only reading of McIntyre that remains consistent with the principles it contains is that it overturned Buckley to the extent that Buckley upheld a disclosure requirement solely based on the governmental interest in providing information to the voters. The right to anonymous speech cannot be abridged based on the interests asserted by the defendants. I would thus hold that the disclosure requirements of BCRA §201 are unconstitutional. Because of this conclusion, the so-called advance disclosure requirement of §201 necessarily falls as well.[ Footnote 10 ] D I have long maintained that Buckley was incorrectly decided and should be overturned. See Colorado II , 533 U. S., at 465; Shrink Missouri , 528 U. S., at 410; Colorado I , 518 U. S., at 640. But, most of Title II should still be held unconstitutional even under the Buckley framework. Under Buckley and Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238 (1986) (MCFL) , it is, or at least was, clear that any regulation of political speech beyond communications using words of express advocacy is unconstitutional. Hence, even under the joint opinion’s framework, most of Title II is unconstitutional, as both the “primary definition” and “backup definition” of “electioneering communications” cover a significant number of communications that do not use words of express advocacy. 2 U. S. C. A. §434(f)(3)(A) (Supp. 2003).[ Footnote 11 ] In Buckley , the Court was presented with the ambiguous language “ ‘any expenditure … relative to a clearly identified candidate.’ ” 424 U. S., at 41. The Court noted that the “use of so indefinite a phrase as ‘relative to’ a candidate fails to clearly mark the boundary between permissible and impermissible speech.” Ibid . Hence, the Court read the phrase to mean “advocating the election or defeat of a candidate.” Id ., at 42 (internal quotation marks omitted). But this construction did not complete the vagueness inquiry. As the Court observed: “[T]he distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions. Not only do candidates campaign on the basis of their positions on various public issues, but campaigns themselves generate issues of public interest.” Ibid. The Court then recognized that the constitutional issues raised by the provision “can be avoided only by reading §608(e)(1) as limited to communications that include explicit words of advocacy of election or defeat of a candidate.” Id ., at 43. The joint opinion argues that Buckley adopted this narrow reading only to avoid addressing a constitutional question. “[T]he concept of express advocacy and the concomitant class of magic words were born of an effort to avoid constitutional infirmities,” concludes the joint opinion after examining the language of Buckley . Ante , at 85. This ignores the fact that the Court then struck down the expenditure limitation precisely because it was too narrow: “The exacting interpretation of the statutory language necessary to avoid unconstitutional vagueness thus undermines the limitation’s effectiveness as a loophole-closing provision by facilitating circumvention by those seeking to exert improper influence upon a candidate or officeholder. It would naively underestimate the ingenuity and resourcefulness of persons and groups desiring to buy influence to believe that they would have much difficulty devising expenditures that skirted the restriction on express advocacy of election or defeat but nevertheless benefited the candidate’s campaign. Yet no substantial societal interest would be served by a loophole-closing provision designed to check corruption that permitted unscrupulous persons and organizations to expend unlimited sums of money in order to obtain improper influence over candidates for elective office.” 424 U. S., at 45. Far from saving the provision from constitutional doubt, the Court read the provision in such a way as to guarantee its unconstitutionality. If there were some possibility that regulation of communications without words of express advocacy were constitutional, the provision would have to have been read to include these communications, and the constitutional question addressed head on.[ Footnote 12 ] Indeed, the exceedingly narrow reading of the relevant language in Buckley is far from mandated by the text; it is, in fact, a highly strained reading. “ ‘[A]ny expenditure … relative to a clearly identified candidate,’ ” id ., at 41, would be better read to cover, for instance, any expenditure for an advertisement aired close to an election that is “intended to influence the voters’ decisions and ha[s] that effect,” a standard apparently endorsed by the joint opinion as being sufficiently “equivalent” to express advocacy to justify its regulation. Ante , at 99–100. By deliberately adopting a strained and narrow reading of the statutory text and then striking down the provision in question for being too narrow, the Court made clear that regulation of nonexpress advocacy was strictly forbidden. This reading is confirmed by other portions of Buckley and by other cases. For instance, in limiting FECA’s disclosure provisions to expenditures involving express advocacy, the Court noted that it gave such a narrowing interpretation “[t]o insure that the reach of [the disclosure provision] is not impermissibly broad .” 424 U. S., at 80 (emphasis added). If overbreadth were a concern in limiting the scope of a disclosure provision, it surely was equally a concern in the limitation of an actual cap on expenditures. And, in MCFL , the Court arguably eliminated any ambiguity remaining in Buckley when it explicitly stated that the narrowing interpretations taken in Buckley were necessary “in order to avoid problems of overbreadth.” MCFL , 479 U. S., at 248. The joint opinion’s attempt to explain away MCFL ’s uncomfortable language is unpersuasive. The joint opinion emphasizes that the MCFL Court “held that a ‘similar construction ’ must apply to the expenditure limitation,” as if that somehow proved its point. Ante , at 85, n. 76 (emphasis in original). The fact that the MCFL Court said this does not establish anything, of course; adopting a narrow construction of a statute “in order to avoid problems of overbreadth,” 479 U. S., at 248, is perfectly consistent with a holding that, lacking the narrowing construction, the statute would be overly broad, i.e. , unconstitutional. The defendants’ principal argument in response is that “it would be bizarre to conclude that the Constitution permits Congress to prohibit the use of corporate or union general treasury funds for electioneering advertisements, but that the only standard that it can constitutionally use (express advocacy) is one that misses the vast majority (88.6 percent) of advertisements that candidates themselves use for electioneering.” Brief for FEC et al. in No. 02–1674 et al., p. 103 (emphasis in original). The joint opinion echoes this, stating that the express advocacy line “cannot be squared with our longstanding recognition that the presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad.” Ante , at 86. First, the presence of the “magic words” does differentiate in a meaningful way between categories of speech. Speech containing the “magic words” is “unambiguously campaign related,” Buckley , supra , at 81, while speech without these words is not. Second, it is far from bizarre to suggest that (potentially regulable) speech that is in practice impossible to differentiate from fully protected speech must be fully protected. It is, rather, part and parcel of First Amendment first principles. See, e.g., Free Speech Coalition, 535 U. S., at 255 (“The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter. The Constitution requires the reverse”). In fact, First Amendment protection was extended to that fundamental category of artistic and entertaining speech not for its own sake, but only because it was indistinguishable, practically, from speech intended to inform. See Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 , 501 (1952); Winters v. New York, 333 U. S. 507 , 510 (1948) (rejecting suggestion that “the constitutional protection for a free press applies only to the exposition of ideas” as the “line between the informing and the entertaining is too elusive for the protection of that basic right,” noting that “[w]hat is one man’s amusement, teaches another’s doctrine”). This principle clearly played a significant role in Buckley itself, see 424 U. S., at 42 (after noting that “the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application,” holding that the “express advocacy” standard must be adopted as the interpretation of the relevant language in FECA). The express-advocacy line was drawn to ensure the protection of the “discussion of issues and candidates,” not out of some strange obsession of the Court to create meaningless lines. And the joint opinion misses the point when it notes that “ Buckley ’s express advocacy line, in short, has not aided the legislative effort to combat real or apparent corruption.” Ante , at 86–87. Buckley did not draw this line solely to aid in combating real or apparent corruption, but rather also to ensure the protection of speech unrelated to election campaigns.[ Footnote 13 ] Nor is this to say that speech with words of express advocacy is somehow less protected, as the joint opinion claims. Ante, at 99. The Court in Buckley recognized an informational interest that justified the imposition of a disclosure requirement on campaign-related speech. See 424 U. S., at 81. This interest is not implicated with regard to speech that is unrelated to an election campaign. Hence, it would be unconstitutional to impose such a disclosure requirement on non-election-related speech. And, as “the distinction between discussion of issues and candidates … may often dissolve in practical application,” id ., at 42, the only way to prevent the unjustified burdening of nonelection speech is to impose the regulation only on speech that is “unambiguously campaign related,” id ., at 81, i.e. , speech using words of express advocacy. Hence, speech that uses words of express advocacy is protected under the same standard, strict scrutiny, as all other forms of speech. The only difference is that, under Buckley , there is a governmental interest supporting some regulation of those using words of express advocacy not present in other forms of speech. * * * The chilling endpoint of the Court’s reasoning is not difficult to foresee: outright regulation of the press. None of the rationales offered by the defendants, and none of the reasoning employed by the Court, exempts the press. “This is so because of the difficulty, and perhaps impossibility, of distinguishing, either as a matter of fact or constitutional law, media corporations from [nonmedia] corporations.” Bellotti, 435 U. S., at 796 (Burger, C. J., concurring). Media companies can run procandidate editorials as easily as nonmedia corporations can pay for advertisements. Candidates can be just as grateful to media companies as they can be to corporations and unions. In terms of “the corrosive and distorting effects” of wealth accumulated by corporations that has “little or no correlation to the public’s support for the corporation’s political ideas,” Austin , 494 U. S., at 660, there is no distinction between a media corporation and a nonmedia corporation.[ Footnote 14 ] Media corporations are influential. There is little doubt that the editorials and commentary they run can affect elections. Nor is there any doubt that media companies often wish to influence elections. One would think that the New York Times fervently hopes that its endorsement of Presidential candidates will actually influence people. What is to stop a future Congress from determining that the press is “too influential,” and that the “appearance of corruption” is significant when media organizations endorse candidates or run “slanted” or “biased” news stories in favor of candidates or parties? Or, even easier, what is to stop a future Congress from concluding that the availability of unregulated media corporations creates a loophole that allows for easy “circumvention” of the limitations of the current campaign finance laws?[ Footnote 15 ] Indeed, I believe that longstanding and heretofore unchallenged opinions such as Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), are in peril. There, the Court noted that “[c]hains of newspapers, national newspapers, national wire and news services, and one-newspaper towns, are the dominant features of a press that has become noncompetitive and enormously powerful and influential in its capacity to manipulate popular opinion and change the course of events.” Id ., at 249. Despite expressing some sympathy for those arguing for a legally created “right of access” to encourage diversity in viewpoints in the media, the Court struck down such laws, noting that these laws acted both to suppress speech and to “intru[de] into the function of editors” by interfering with “the exercise of editorial control and judgment.” Id ., at 257–258. Now, supporters of such laws need only argue that the press’ “capacity to manipulate popular opinion” gives rise to an “appearance of corruption,” especially when this capacity is used to promote a particular candidate or party. After drumming up some evidence,[ Footnote 16 ] laws regulating media outlets in their issuance of editorials would be upheld under the joint opinion’s reasoning (a result considered so beyond the pale in Miami Herald Publishing that the Court there used it as a reductio ad absurdum against the right-of-access law being addressed, see id ., at 256). Nor is there anything in the joint opinion that would prevent Congress from imposing the Fairness Doctrine, not just on radio and television broadcasters, but on the entire media. See Red Lion Broadcasting , 395 U. S., at 369 (defining the “fairness doctrine” as a “requirement that discussion of public issues be presented … and that each side of those issues must be given fair coverage”). Hence, “the freedom of the press,” described as “one of the greatest bulwarks of liberty,” 1 J. Elliot, Debates on the Federal Constitution 335 (___ ed. 1876) (declaration of Rhode Island upon the ratification of the Constitution),[ Footnote 17 ] could be next on the chopping block. Although today’s opinion does not expressly strip the press of First Amendment protection, there is no principle of law or logic that would prevent the application of the Court’s reasoning in that setting. The press now operates at the whim of Congress. *  Justice Scalia joins Parts I, II–A, and II–B of this opinion. Footnote 1 The Court also rejected an overbreadth challenge, reasoning that “Congress was justified in concluding that the interest in safeguarding against the appearance of impropriety requires that the opportunity for abuse inherent in the process of raising large monetary contributions be eliminated.” Buckley , 424 U. S., at 30. But this justification was inextricably intertwined with the Court’s concern over the difficulty of isolating suspect contributions. If it were easy to isolate suspect contributions, and if bribery laws could be quickly and effectively enforced, then there would be no “opportunity for abuse inherent in the process,” ibid., and hence no need for an otherwise overbroad contribution ceiling. Footnote 2 Arguably, the current antibribery statute, 18 U. S. C. §201, is broad enough to cover the unspecified other “attempts … to influence governmental action” that the Buckley Court seemed worried about. 424 U. S., at 28. Footnote 3 Indeed, the principal contents of Senator McCain’s declaration are his complaints that several bills he supported were defeated. The Senator also suggests, without evidence, that there had been some connection between the defeat of his favored policy outcomes and certain soft-money donors. See, e.g. , App. 393–394, ¶ ;10 (declaration of Sen. John McCain ¶ ;10) (noting Democratic “parliamentary procedural device” used to block one of Senator McCain’s proposed amendments to the Sarbanes-Oxley corporate governance bill). The possibility that his favored policy outcomes lost due to lack of public support, or because the opponents of the amendment honestly believed it would do harm to the public, does not appear to be addressed. Footnote 4 Former Senators Simpson and Simon both seem to have the same response as Senator McCain, see n. 3, supra, in having their favored interests voted down, and similarly do not consider alternative explanations for the failure of their proposals. See App. 811, ¶ ;11 (declaration of former Sen. Alan Simpson ¶ ;11); App. 805, ¶ ;14 (declaration of former Sen. Paul Simon ¶ ;14). Footnote 5 Because there is not an iota of evidence supporting the Government’s asserted interests in BCRA §318, I concur in the Court’s conclusion that this provision is unconstitutional. Footnote 6 The joint opinion continues yet another disturbing trend: the application of a complaisant level of scrutiny under the guise of “strict scrutiny.” See Grutter v. Bollinger , 539 U. S. ___ (2003). Footnote 7 This is doubly so now that the Court has decided that there is no constitutional need for the showing even of an “agreement” in order to transform an expenditure into a “coordinated expenditur[e]” and hence into a contribution for FECA purposes. Ante , at 115–117 (joint opinion). Footnote 8 The National Rifle Association (NRA) plaintiffs compellingly state that “[a]s a measure designed to prevent official corruption, of either the quid pro quo or the ‘gratitude’ variety, Title II … makes no more sense than a bribery statute requiring corporations to pay for their bribes using funds from PACs.” Brief for Appellants NRA et al. in No. 02–1675, pp. 24–25. And, regarding the appearance of corruption: “Defendants’ own witnesses concede that the public’s perceptions of ads is not affected in the slightest by whether they are purchased with general treasury funds or with PAC money.” Id ., at 25. Footnote 9 The fact that the Founders located the right to anonymous speech in the “freedom of the press” is of no moment, as “it makes little difference in terms of our analysis, which seeks to determine only whether the First Amendment, as originally understood, protects anonymous writing.” McIntyre , 514 U. S., at 360 (Thomas, J., concurring). Footnote 10 BCRA §212(a) is also unconstitutional. Although the plaintiffs only challenge the advance disclosure requirement of §212(a), by requiring disclosure of communications using express advocacy, the entire reporting requirement is unconstitutional for the same reasons that §201 is unconstitutional. Consequently, it follows that the advance disclosure provision is unconstitutional. BCRA §§311 and 504 also violate the First Amendment. By requiring any television or radio advertisement that satisfies the definition of “electioneering communication” to include the identity of the sponsor, and even a “full-screen view of a representative of the political committee or other person making the statement” in the case of a television advertisement, new FECA §318, §311 is a virtual carbon copy of the law at issue in McIntyre v. Ohio Elections Comm’n, 514 U. S. 334 (1995) (the only difference being the irrelevant distinction between a printed pamphlet and a television or radio advertisement). And §504 not only has the precise flaws of §201, but also sweeps broadly as well, covering any “message relating to any political matter of national importance, including … a national legislative issue of public importance.” Hence, both §§311 and 504 should be struck down. Footnote 11 The Court, in upholding most of its provisions by concluding that the “express advocacy” limitation derived by Buckley is not a constitutionally mandated line, has, in one blow, overturned every Court of Appeals that has addressed this question (except, perhaps, one). See Clifton v. FEC , 114 F. 3d 1309, 1312 (CA1 1997); Vermont Right to Life Comm., Inc. v. Sorrell , 221 F. 3d 376, 387 (CA2 2000); FEC v. Christian Action Network, Inc ., 110 F. 3d 1049, 1064 (CA4 1997); Chamber of Commerce v. Moore , 288 F. 3d 187, 193 (CA5 2000); Iowa Right to Life Comm., Inc. v. Williams , 187 F. 3d 963, 968–970 (CA8 1999); Citizens for Responsible Govt. State Political Action Comm. v. Davidson , 236 F. 3d 1174, 1187 (CA10 2000). The one possible exception is the Ninth Circuit. See FEC v. Furgatch , 807 F. 2d 857, 862–863 (1987). Footnote 12 After all, the constitutional avoidance doctrine counsels us to adopt constructions of statutes to “avoid decision of constitutional questions,” not to deliberately create constitutional questions. United States v. Thirty&nbhyph;seven Photographs, 402 U. S. 363 , 373 (1971); see also United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366 , 408 (1909). Footnote 13 This very case is an excellent example of why such a bright-line rule is necessary. The Court, having “rejected the notion that the First Amendment requires Congress to treat so-called issue advocacy differently from express advocacy,” ante , at 87–88, proceeds to uphold significant new restrictions on speech that is, in every sense of the word, pure issue-related speech. The Court abandons the bright-line rule, and now subjects political speech of virtually any kind to the risk of regulation by Congress. Footnote 14 Chief Justice Burger presciently commented on precisely this point in First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 , 796–797 (1978) (citations omitted): “In terms of ‘unfair advantage in the political process’ and ‘corporate domination of the electoral process,’ it could be argued that such media conglomerates as I describe pose a much more realistic threat to valid interests than do appellants and similar entities not regularly concerned with shaping popular opinion on public issues. See Miami Herald Publishing Co. v. Tornillo , [ 418 U. S. 241 (1974)]. In Tornillo , for example, we noted the serious contentions advanced that a result of the growth of modern media empires ‘has been to place in a few hands the power to inform the American people and shape public opinion.’ 418 U. S., at 250.” Footnote 15 It appears that “circumvention” of the campaign finance laws by exploiting media exemptions is already being planned by one of the plaintiffs in this litigation. See Theimer, NRA Seeks Status as News Outlet , Washington Post A09 (Dec. 7, 2003) (reporting that the NRA is looking to acquire a broadcast outlet and seeking to be classified as a news organization). Footnote 16 Given the quality of the evidence the Court relies upon to uphold Title I, the evidence should not be hard to come by. See Kane & Preston, Fox Chief on Hot Seat, Roll Call (June 12, 2003) (“GOP leaders such as House Majority Leader Tom DeLay (R-Texas) have labeled CNN as the ‘Communist News Network’ and the ‘Clinton News Network’—suggesting they only presented the liberal viewpoint and that of former President Clinton”); Jones, Fox News Moves from the Margins to the Mainstream, Shorenstein Center, Harvard (Dec. 1, 2002) (quoting Al Gore as describing Fox News and the Washington Times as “part and parcel of the Republican Party”). Footnote 17 See also 4 W. Blackstone, Commentaries on the Laws of England 151 (1769) (“The liberty of the press is indeed essential to the nature of a free state”).

In McConnell v. FEC, the Supreme Court upheld the constitutionality of the Bipartisan Campaign Reform Act of 2002, including its provisions on broadcast advertising and campaign finance regulations. The Court affirmed the District Court's judgment, finding that the Act's amendments to the Communications Act of 1934 were valid. The case addressed a range of issues related to political speech and campaign finance, with the Court ultimately siding with increased regulation.

Free Speech

Manhattan Community Access Corp. v. Halleck

https://supreme.justia.com/cases/federal/us/587/17-1702/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 17–1702 _________________ MANHATTAN COMMUNITY ACCESS CORPORATION, et al., PETITIONERS v. DEEDEE HALLECK, et al. on writ of certiorari to the united states court of appeals for the second circuit [June 17, 2019] Justice Kavanaugh delivered the opinion of the Court. The Free Speech Clause of the First Amendment constrains governmental actors and protects private actors. To draw the line between governmental and private, this Court applies what is known as the state-action doctrine. Under that doctrine, as relevant here, a private entity may be considered a state actor when it exercises a function “traditionally exclusively reserved to the State.” Jackson v. Metropolitan Edison Co. , 419 U.S. 345 , 352 (1974). This state-action case concerns the public access channels on Time Warner’s cable system in Manhattan. Public access channels are available for private citizens to use. The public access channels on Time Warner’s cable system in Manhattan are operated by a private nonprofit corporation known as MNN. The question here is whether MNN—even though it is a private entity—nonetheless is a state actor when it operates the public access channels. In other words, is operation of public access channels on a cable system a traditional, exclusive public function? If so, then the First Amendment would restrict MNN’s exercise of editorial discretion over the speech and speakers on the public access channels. Under the state-action doctrine as it has been articulated and applied by our precedents, we conclude that operation of public access channels on a cable system is not a traditional, exclusive public function. Moreover, a private entity such as MNN who opens its property for speech by others is not transformed by that fact alone into a state actor. In operating the public access channels, MNN is a private actor, not a state actor, and MNN therefore is not subject to First Amendment constraints on its editorial discretion. We reverse in relevant part the judgment of the Second Circuit, and we remand the case for further proceedings consistent with this opinion. I A Since the 1970s, public access channels have been a regular feature on cable television systems throughout the United States. In the 1970s, Federal Communications Commission regulations required certain cable operators to set aside channels on their cable systems for public access. In 1979, however, this Court ruled that the FCC lacked statutory authority to impose that mandate. See FCC v. Midwest Video Corp. , 440 U.S. 689 (1979). A few years later, Congress passed and President Reagan signed the Cable Communications Policy Act of 1984. 98Stat. 2779. The Act authorized state and local governments to require cable operators to set aside channels on their cable systems for public access. 47 U. S. C. §531(b). The New York State Public Service Commission regulates cable franchising in New York State and requires cable operators in the State to set aside channels on their cable systems for public access. 16 N. Y. Codes, Rules & Regs. §§895.1(f), 895.4(b) (2018). State law requires that use of the public access channels be free of charge and first-come, first-served. §§895.4(c)(4) and (6). Under state law, the cable operator operates the public access channels unless the local government in the area chooses to itself operate the channels or designates a private entity to operate the channels. §895.4(c)(1). Time Warner (now known as Charter) operates a cable system in Manhattan. Under state law, Time Warner must set aside some channels on its cable system for public access. New York City (the City) has designated a private nonprofit corporation named Manhattan Neighborhood Network, commonly referred to as MNN, to operate Time Warner’s public access channels in Manhattan. This case involves a complaint against MNN regarding its management of the public access channels. B Because this case comes to us on a motion to dismiss, we accept the allegations in the complaint as true. See Ashcroft v. Iqbal , 556 U.S. 662 , 678 (2009). DeeDee Halleck and Jesus Papoleto Melendez produced public access programming in Manhattan. They made a film about MNN’s alleged neglect of the East Harlem community. Halleck submitted the film to MNN for airing on MNN’s public access channels, and MNN later televised the film. Afterwards, MNN fielded multiple complaints about the film’s content. In response, MNN temporarily suspended Halleck from using the public access channels. Halleck and Melendez soon became embroiled in another dispute with MNN staff. In the wake of that dispute, MNN ultimately suspended Halleck and Melendez from all MNN services and facilities. Halleck and Melendez then sued MNN, among other parties, in Federal District Court. The two producers claimed that MNN violated their First Amendment free-speech rights when MNN restricted their access to the public access channels because of the content of their film. MNN moved to dismiss the producers’ First Amendment claim on the ground that MNN is not a state actor and therefore is not subject to First Amendment restrictions on its editorial discretion. The District Court agreed with MNN and dismissed the producers’ First Amendment claim. The Second Circuit reversed in relevant part. 882 F.3d 300, 308 (2018). In the majority opinion authored by Judge Newman and joined by Judge Lohier, the court stated that the public access channels in Manhattan are a public forum for purposes of the First Amendment. Reasoning that “public forums are usually operated by governments,” the court concluded that MNN is a state actor subject to First Amendment constraints. Id. , at 306–307. Judge Lohier added a concurring opinion, explaining that MNN also qualifies as a state actor for the independent reason that “New York City delegated to MNN the traditionally public function of administering and regulating speech in the public forum of Manhattan’s public access channels.” Id., at 309. Judge Jacobs dissented in relevant part, opining that MNN is not a state actor. He reasoned that a private entity’s operation of an open forum for speakers does not render the host entity a state actor. Judge Jacobs further stated that the operation of public access channels is not a traditional, exclusive public function. We granted certiorari to resolve disagreement among the Courts of Appeals on the question whether private operators of public access cable channels are state actors subject to the First Amendment. 586 U. S. __ (2018). Compare 882 F.3d 300 (case below), with Wilcher v. Akron , 498 F.3d 516 (CA6 2007); and Alliance for Commu- nity Media v. FCC , 56 F.3d 105 (CADC 1995). II Ratified in 1791, the First Amendment provides in relevant part that “Congress shall make no law . . . abridging the freedom of speech.” Ratified in 1868, the Fourteenth Amendment makes the First Amendment’s Free Speech Clause applicable against the States: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law . . . .” §1. The text and original meaning of those Amendments, as well as this Court’s longstanding precedents, establish that the Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech. See, e.g., Denver Area Ed. Telecommunications Consortium, Inc. v. FCC , 518 U.S. 727 , 737 (1996) (plurality opinion); Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. , 515 U.S. 557 , 566 (1995); Hudgens v. NLRB , 424 U.S. 507 , 513 (1976); cf. Miami Herald Publishing Co. v. Tornillo , 418 U.S. 241 , 256 (1974). In accord with the text and structure of the Constitution, this Court’s state-action doctrine distinguishes the government from individuals and private entities. See Brentwood Academy v. Tennessee Secondary School Athletic Assn. , 531 U.S. 288 , 295–296 (2001). By enforcing that constitutional boundary between the governmental and the private, the state-action doctrine protects a robust sphere of individual liberty. Here, the producers claim that MNN, a private entity, restricted their access to MNN’s public access channels because of the content of the producers’ film. The producers have advanced a First Amendment claim against MNN. The threshold problem with that First Amendment claim is a fundamental one: MNN is a private entity. Relying on this Court’s state-action precedents, the producers assert that MNN is nonetheless a state actor subject to First Amendment constraints on its editorial discretion. Under this Court’s cases, a private entity can qualify as a state actor in a few limited circumstances—including, for example, (i) when the private entity performs a traditional, exclusive public function, see, e.g., Jackson , 419 U. S., at 352–354; (ii) when the government compels the private entity to take a particular action, see, e.g., Blum v. Yaretsky , 457 U.S. 991 , 1004–1005 (1982); or (iii) when the government acts jointly with the private entity, see, e.g., Lugar v. Edmondson Oil Co. , 457 U.S. 922 , 941–942 (1982). The producers’ primary argument here falls into the first category: The producers contend that MNN exercises a traditional, exclusive public function when it operates the public access channels on Time Warner’s cable system in Manhattan. We disagree. A Under the Court’s cases, a private entity may qualify as a state actor when it exercises “powers traditionally exclusively reserved to the State.” Jackson , 419 U. S., at 352. It is not enough that the federal, state, or local government exercised the function in the past, or still does. And it is not enough that the function serves the public good or the public interest in some way. Rather, to qualify as a traditional, exclusive public function within the meaning of our state-action precedents, the government must have traditionally and exclusively performed the function. See Rendell-Baker v. Kohn , 457 U.S. 830 , 842 (1982); Jackson , 419 U. S., at 352–353; Evans v. Newton , 382 U.S. 296 , 300 (1966). The Court has stressed that “very few” functions fall into that category. Flagg Bros., Inc. v. Brooks , 436 U.S. 149 , 158 (1978). Under the Court’s cases, those functions include, for example, running elections and operating a company town. See Terry v. Adams , 345 U.S. 461 , 468–470 (1953) (elections); Marsh v. Alabama , 326 U.S. 501 , 505–509 (1946) (company town); Smith v. Allwright , 321 U.S. 649 , 662–666 (1944) (elections); Nixon v. Condon , 286 U.S. 73 , 84–89 (1932) (elections).[ 1 ] The Court has ruled that a variety of functions do not fall into that category, including, for example: running sports associations and leagues, administering insurance payments, operating nursing homes, providing special education, representing indigent criminal defendants, resolving private disputes, and supplying electricity. See American Mfrs. Mut. Ins. Co. v. Sullivan , 526 U.S. 40 , 55–57 (1999) (insurance payments); National Collegiate Athletic Assn. v. Tarkanian , 488 U.S. 179 , 197, n. 18 (1988) (college sports); San Francisco Arts & Athletics, Inc. v. United States Olympic Comm. , 483 U.S. 522 , 544–545 (1987) (amateur sports); Blum , 457 U. S., at 1011–1012 (nursing home); Rendell-Baker , 457 U. S., at 842 (special education); Polk County v. Dodson , 454 U.S. 312 , 318–319 (1981) (public defender); Flagg Bros. , 436 U. S., at 157–163 (private dispute resolution); Jackson , 419 U. S., at 352–354 (electric service). The relevant function in this case is operation of public access channels on a cable system. That function has not traditionally and exclusively been performed by government. Since the 1970s, when public access channels became a regular feature on cable systems, a variety of private and public actors have operated public access channels, including: private cable operators; private nonprofit organizations; municipalities; and other public and private community organizations such as churches, schools, and libraries. See Denver Area , 518 U. S., at 761–762 (plurality opinion); R. Oringel & S. Buske, The Access Manager’s Handbook: A Guide for Managing Community Television 14–17 (1987). The history of public access channels in Manhattan further illustrates the point. In 1971, public access channels first started operating in Manhattan. See D. Brenner, M. Price, & M. Meyerson, Cable Television and Other Nonbroadcast Video §6:29, p. 6–47 (2018). Those early Manhattan public access channels were operated in large part by private cable operators, with some help from private nonprofit organizations. See G. Gillespie, Public Access Cable Television in the United States and Canada 37–38 (1975); Janes, History and Structure of Public Access Television, 39 J. Film & Video, No. 3, pp. 15–17 (1987). Those private cable operators continued to operate the public access channels until the early 1990s, when MNN (also a private entity) began to operate the public access channels. In short, operating public access channels on a cable system is not a traditional, exclusive public function within the meaning of this Court’s cases. B To avoid that conclusion, the producers widen the lens and contend that the relevant function here is not simply the operation of public access channels on a cable system, but rather is more generally the operation of a public forum for speech. And according to the producers, operation of a public forum for speech is a traditional, exclusive public function. That analysis mistakenly ignores the threshold state-action question. When the government provides a forum for speech (known as a public forum), the government may be constrained by the First Amendment, meaning that the government ordinarily may not exclude speech or speakers from the forum on the basis of viewpoint, or sometimes even on the basis of content. See, e.g., Southeastern Promotions, Ltd. v. Conrad , 420 U.S. 546 , 547, 555 (1975) (private theater leased to the city); Police Dept. of Chicago v. Mosley , 408 U.S. 92 , 93, 96 (1972) (sidewalks); Hague v. Committee for Industrial Organization , 307 U.S. 496 , 515–516 (1939) (streets and parks). By contrast, when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum. This Court so ruled in its 1976 decision in Hudgens v. NLRB . There, the Court held that a shopping center owner is not a state actor subject to First Amendment requirements such as the public forum doctrine. 424 U. S., at 520–521; see also Lloyd Corp. v. Tanner , 407 U.S. 551 , 569–570 (1972); Central Hardware Co. v. NLRB , 407 U.S. 539 , 547 (1972); Alliance for Community Media , 56 F. 3d, at 121–123. The Hudgens decision reflects a commonsense principle: Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights. As Judge Jacobs persuasively explained, it “is not at all a near-exclusive function of the state to provide the forums for public expression, politics, information, or entertainment.” 882 F. 3d, at 311 (opinion concurring in part and dissenting in part). In short, merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints. If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether. “The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use.” Hudgens , 424 U. S., at 519 (internal quotation marks omitted). Benjamin Franklin did not have to operate his newspaper as “a stagecoach, with seats for everyone.” F. Mott, American Journalism 55 (3d ed. 1962). That principle still holds true. As the Court said in Hudgens , to hold that private property owners providing a forum for speech are constrained by the First Amendment would be “to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country.” 424 U. S., at 517 (internal quotation marks omitted). The Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property.[ 2 ] The producers here are seeking in effect to circumvent this Court’s case law, including Hudgens . But Hudgens is sound, and we therefore reaffirm our holding in that case.[ 3 ] C Next, the producers retort that this case differs from Hudgens because New York City has designated MNN to operate the public access channels on Time Warner’s cable system, and because New York State heavily regulates MNN with respect to the public access channels. Under this Court’s cases, however, those facts do not establish that MNN is a state actor. New York City’s designation of MNN to operate the public access channels is analogous to a government license, a government contract, or a government-granted monopoly. But as the Court has long held, the fact that the government licenses, contracts with, or grants a monopoly to a private entity does not convert the private entity into a state actor—unless the private entity is performing a traditional, exclusive public function. See, e.g., San Francisco Arts & Athletics , 483 U. S., at 543–544 (exclusive-use rights and corporate charters); Blum , 457 U. S., at 1011 (licenses); Rendell-Baker , 457 U. S., at 840–841 (contracts); Polk County , 454 U. S., at 319, n. 9, and 320–322 (law licenses); Jackson , 419 U. S., at 351–352 (electric monopolies); Columbia Broadcasting System, Inc. v. Democratic National Committee , 412 U.S. 94 , 120–121 (1973) (broadcast licenses); Moose Lodge No. 107 v. Irvis , 407 U.S. 163 , 176–177 (1972) (liquor licenses); cf. Trustees of Dartmouth College v. Woodward , 4 Wheat. 518, 638–639 (1819) (corporate charters). The same principle applies if the government funds or subsidizes a private entity. See Blum , 457 U. S., at 1011; Rendell - Baker , 457 U. S., at 840. Numerous private entities in America obtain government licenses, government contracts, or government-granted monopolies. If those facts sufficed to transform a private entity into a state actor, a large swath of private entities in America would suddenly be turned into state actors and be subject to a variety of constitutional constraints on their activities. As this Court’s many state-action cases amply demonstrate, that is not the law. Here, therefore, the City’s designation of MNN to operate the public access channels on Time Warner’s cable system does not make MNN a state actor. So, too, New York State’s extensive regulation of MNN’s operation of the public access channels does not make MNN a state actor. Under the State’s regulations, air time on the public access channels must be free, and programming must be aired on a first-come, first-served basis. Those regulations restrict MNN’s editorial discretion and in effect require MNN to operate almost like a common carrier. But under this Court’s cases, those restrictions do not render MNN a state actor. In Jackson v. Metropolitan Edison Co. , the leading case on point, the Court stated that the “fact that a business is subject to state regulation does not by itself convert its action into that of the State.” 419 U. S., at 350. In that case, the Court held that “a heavily regulated, privately owned utility, enjoying at least a partial monopoly in the providing of electrical service within its territory,” was not a state actor. Id. , at 358. The Court explained that the “mere existence” of a “regulatory scheme”—even if “extensive and detailed”—did not render the utility a state actor. Id., at 350, and n. 7. Nor did it matter whether the State had authorized the utility to provide electric service to the community, or whether the utility was the only entity providing electric service to much of that community. This case closely parallels Jackson . Like the electric utility in Jackson , MNN is “a heavily regulated, privately owned” entity. Id., at 358. As in Jackson , the regulations do not transform the regulated private entity into a state actor. Put simply, being regulated by the State does not make one a state actor. See Sullivan , 526 U. S., at 52; Blum , 457 U. S., at 1004; Rendell-Baker , 457 U. S., at 841–842; Jackson , 419 U. S., at 350; Moose Lodge , 407 U. S., at 176–177. As the Court’s cases have explained, the “being heavily regulated makes you a state actor” theory of state action is entirely circular and would significantly endanger individual liberty and private enterprise. The theory would be especially problematic in the speech context, because it could eviscerate certain private entities’ rights to exercise editorial control over speech and speakers on their properties or platforms. Not surprisingly, as Justice Thomas has pointed out, this Court has “never even hinted that regulatory control, and particularly direct regulatory control over a private entity’s First Amendment speech rights,” could justify subjecting the regulated private entity to the constraints of the First Amendment. Denver Area , 518 U. S., at 829 (opinion concurring in judgment in part and dissenting in part). In sum, we conclude that MNN is not subject to First Amendment constraints on how it exercises its editorial discretion with respect to the public access channels. To be sure, MNN is subject to state-law constraints on its editorial discretion (assuming those state laws do not violate a federal statute or the Constitution). If MNN violates those state laws, or violates any applicable contracts, MNN could perhaps face state-law sanctions or liability of some kind. We of course take no position on any potential state-law questions. We simply conclude that MNN, as a private actor, is not subject to First Amendment constraints on how it exercises editorial discretion over the speech and speakers on its public access channels. III Perhaps recognizing the problem with their argument that MNN is a state actor under ordinary state-action principles applicable to private entities and private property, the producers alternatively contend that the public access channels are actually the property of New York City, not the property of Time Warner or MNN. On this theory, the producers say (and the dissent agrees) that MNN is in essence simply managing government property on behalf of New York City. The short answer to that argument is that the public access channels are not the property of New York City. Nothing in the record here suggests that a government (federal, state, or city) owns or leases either the cable system or the public access channels at issue here. Both Time Warner and MNN are private entities. Time Warner is the cable operator, and it owns its cable network, which contains the public access channels. MNN operates those public access channels with its own facilities and equipment. The City does not own or lease the public access channels, and the City does not possess a formal easement or other property interest in those channels. The franchise agreements between the City and Time Warner do not say that the City has any property interest in the public access channels. On the contrary, the franchise agreements expressly place the public access channels “under the jurisdiction” of MNN. App. 22. Moreover, the producers did not allege in their complaint that the City has a property interest in the channels. And the producers have not cited any basis in state law for such a conclusion. Put simply, the City does not have “any formal easement or other property interest in those channels.” Denver Area , 518 U. S., at 828 (opinion of Thomas, J.). It does not matter that a provision in the franchise agreements between the City and Time Warner allowed the City to designate a private entity to operate the public access channels on Time Warner’s cable system. Time Warner still owns the cable system. And MNN still operates the public access channels. To reiterate, nothing in the franchise agreements suggests that the City possesses any property interest in Time Warner’s cable system, or in the public access channels on that system. It is true that the City has allowed the cable operator, Time Warner, to lay cable along public rights-of-way in the City. But Time Warner’s access to public rights-of-way does not alter the state-action analysis. For Time Warner, as for other cable operators, access to public rights-of-way is essential to lay cable and construct a physical cable infrastructure. See Turner Broadcasting System, Inc. v. FCC , 512 U.S. 622 , 628 (1994). But the same is true for utility providers, such as the electric utility in Jackson . Put simply, a private entity’s permission from government to use public rights-of-way does not render that private entity a state actor. Having said all that, our point here should not be read too broadly. Under the laws in certain States, including New York, a local government may decide to itself operate the public access channels on a local cable system (as many local governments in New York State and around the country already do), or could take appropriate steps to obtain a property interest in the public access channels. Depending on the circumstances, the First Amendment might then constrain the local government’s operation of the public access channels. We decide only the case before us in light of the record before us. *  *  * It is sometimes said that the bigger the government, the smaller the individual. Consistent with the text of the Constitution, the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty. Expanding the state-action doctrine beyond its traditional boundaries would expand governmental control while restricting individual liberty and private enterprise. We decline to do so in this case. MNN is a private entity that operates public access channels on a cable system. Operating public access channels on a cable system is not a traditional, exclusive public function. A private entity such as MNN who opens its property for speech by others is not transformed by that fact alone into a state actor. Under the text of the Constitution and our precedents, MNN is not a state actor subject to the First Amendment. We reverse in relevant part the judgment of the Second Circuit, and we remand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 Relatedly, this Court has recognized that a private entity may, under certain circumstances, be deemed a state actor when the government has outsourced one of its constitutional obligations to a private entity. In West v. Atkins , for example, the State was constitutionally obligated to provide medical care to prison inmates. 487 U.S. 42 , 56 (1988). That scenario is not present here because the government has no such obligation to operate public access channels. 2 A distinct question not raised here is the degree to which the First Amendment protects private entities such as Time Warner or MNN from government legislation or regulation requiring those private entities to open their property for speech by others. Cf. Turner Broadcasting System, Inc. v. FCC , 512 U.S. 622 , 636–637 (1994). 3 In Cornelius v. NAACP Legal Defense & Educational Fund, Inc. , this Court said in passing dicta that “a speaker must seek access to public property or to private property dedicated to public use to evoke First Amendment concerns.” 473 U.S. 788 , 801 (1985). But Cornelius dealt with government-owned property. As Justice Thomas explained in Denver Area Educational Telecommunications Consortium, Inc. v. FCC , the Court’s admittedly imprecise and overbroad phrase in Cornelius is not consistent with this Court’s case law and should not be read to suggest that private property owners or private lessees are subject to First Amendment constraints whenever they dedicate their private property to public use or otherwise open their property for speech. 518 U.S. 727 , 827–828 (1996) (opinion concurring in judgment in part and dissenting in part). SUPREME COURT OF THE UNITED STATES _________________ No. 17–1702 _________________ MANHATTAN COMMUNITY ACCESS CORPORATION, et al., PETITIONERS v. DEEDEE HALLECK, et al. on writ of certiorari to the united states court of appeals for the second circuit [June 17, 2019] Justice Sotomayor, with whom Justice Ginsburg, Justice Breyer, and Justice Kagan join, dissenting. The Court tells a very reasonable story about a case that is not before us. I write to address the one that is. This is a case about an organization appointed by the government to administer a constitutional public forum. (It is not, as the Court suggests, about a private property owner that simply opened up its property to others.) New York City (the City) secured a property interest in public-access television channels when it granted a cable franchise to a cable company. State regulations require those public-access channels to be made open to the public on terms that render them a public forum. The City contracted out the administration of that forum to a private organization, petitioner Manhattan Community Access Corporation (MNN). By accepting that agency relationship, MNN stepped into the City’s shoes and thus qualifies as a state actor, subject to the First Amendment like any other. I A A cable-television franchise is, essentially, a license to create a system for distributing cable TV in a certain area. It is a valuable right, usually conferred on a private company by a local government. See 47 U. S. C. §§522(9)–(10), 541(a)(2), (b)(1); Turner Broadcasting System , Inc. v. FCC , 512 U.S. 622 , 628 (1994). A private company cannot enter a local cable market without one. §541(b)(1). Cable companies transmit content through wires that stretch “between a transmission facility and the television sets of individual subscribers.” Id. , at 627–628. Creating this network of wires is a disruptive undertaking that “entails the use of public rights-of-way and easements.” Id. , at 628. New York State authorizes municipalities to grant cable franchises to cable companies of a certain size only if those companies agree to set aside at least one public access channel. 16 N. Y. Codes, Rules & Regs. §§895.1(f), 895.4(b)(1) (2016). New York then requires that those public-access channels be open to all comers on “a first-come, first-served, nondiscriminatory basis.” §895.4(c)(4). Likewise, the State prohibits both cable franchisees and local governments from “exercis[ing] any editorial control” over the channels, aside from regulating obscenity and other unprotected content. §§895.4(c)(8)–(9). B Years ago, New York City (no longer a party to this suit) and Time Warner Entertainment Company (never a party to this suit) entered into a cable-franchise agreement. App. 22. Time Warner received a cable franchise; the City received public-access channels. The agreement also provided that the public-access channels would be operated by an independent, nonprofit corporation chosen by the Manhattan borough president. But the City, as the practice of other New York municipalities confirms, could have instead chosen to run the channels itself. See §895.4(c)(1); Brief for Respondents 35 (citing examples). MNN is the independent nonprofit that the borough president appointed to run the channels; indeed, MNN appears to have been incorporated in 1991 for that precise purpose, with seven initial board members selected by the borough president (though only two thus selected today). See App. 23; Brief for Respondents 7, n. 1. The City arranged for MNN to receive startup capital from Time Warner and to be funded through franchise fees from Time Warner and other Manhattan cable franchisees. App. 23; Brief for New York County Lawyers Association (NYCLA) as Amicus Curiae 27; see also App. to Brief for Respondents 19a. As the borough president announced upon MNN’s formation in 1991, MNN’s “central charge is to administer and manage all the public access channels of the cable television systems in Manhattan.” App. to Brief for NYCLA as Amicus Curiae 1. As relevant here, respondents DeeDee Halleck and Jesus Papoleto Melendez sued MNN in U. S. District Court for the Southern District of New York under 42 U. S. C. §1983. They alleged that the public-access channels, “[r]equired by state regulation and [the] local franchise agreements,” are “a designated public forum of unlimited character”; that the City had “delegated control of that public forum to MNN”; and that MNN had, in turn, engaged in viewpoint discrimination in violation of respondents’ First Amendment rights. App. 39. The District Court dismissed respondents’ First Amendment claim against MNN. The U. S. Court of Appeals for the Second Circuit reversed that dismissal, concluding that the public-access channels “are public forums and that [MNN’s] employees were sufficiently alleged to be state actors taking action barred by the First Amendment.” 882 F.3d 300, 301–302 (2018). Because the case before us arises from a motion to dismiss, respondents’ factual allegations must be accepted as true. Hernandez v. Mesa , 582 U. S. ___, ___ (2017) ( per curiam ) (slip op., at 1). II I would affirm the judgment below. The channels are clearly a public forum: The City has a property interest in them, and New York regulations require that access to those channels be kept open to all. And because the City (1) had a duty to provide that public forum once it granted a cable franchise and (2) had a duty to abide by the First Amendment once it provided that forum, those obligations did not evaporate when the City delegated the administration of that forum to a private entity. Just as the City would have been subject to the First Amendment had it chosen to run the forum itself, MNN assumed the same responsibility when it accepted the delegation. A When a person alleges a violation of the right to free speech, courts generally must consider not only what was said but also in what context it was said. On the one hand, there are “public forums,” or settings that the government has opened in some way for speech by the public (or some subset of it). The Court’s precedents subdivide this broader category into various subcategories, with the level of leeway for government regulation of speech varying accordingly. See Minnesota Voters Alliance v. Mansky , 585 U. S. ___, ___ (2018) (slip op., at 7). Compare Frisby v. Schultz , 487 U.S. 474 , 480 (1988) (streets and public parks, traditional public forums), with Southeastern Promotions, Ltd. v. Conrad , 420 U.S. 546 , 555 (1975) (city-leased theater, designated public forum), with Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez , 561 U.S. 661 , 669, 679, and n. 12 (2010) (program for registered student organizations, limited public forum). But while many cases turn on which type of “forum” is implicated, the important point here is that viewpoint discrimination is impermissible in them all. See Good News Club v. Milford Central School , 533 U.S. 98 , 106 (2001). On the other hand, there are contexts that do not fall under the “forum” rubric. For one, there are contexts in which the government is simply engaging in its own speech and thus has freedom to select the views it prefers. See, e.g. , Walker v. Texas Div. , Sons of Confederate Veterans , Inc. , 576 U. S. ___, ___–___ (2015) (slip op., at 6–7) (specialty license plates); Pleasant Grove City v. Summum , 555 U.S. 460 , 467–469, 481 (2009) (privately donated permanent monuments in a public park).[ 1 ] In addition, there are purely private spaces, where the First Amendment is (as relevant here) inapplicable. The First Amendment leaves a private store owner (or homeowner), for example, free to remove a customer (or dinner guest) for expressing unwanted views. See, e.g. , Lloyd Corp. v. Tanner , 407 U.S. 551 , 569–570 (1972). In these settings, there is no First Amendment right against viewpoint discrimination. Here, respondents alleged viewpoint discrimination. App. 39. So a key question in this case concerns what the Manhattan public-access channels are: a public forum of some kind, in which a claim alleging viewpoint discrimination would be cognizable, or something else, such as government speech or purely private property, where picking favored viewpoints is appropriately commonplace.[ 2 ] Neither MNN nor the majority suggests that this is an instance of government speech. This case thus turns first and foremost on whether the public-access channels are or are not purely private property.[ 3 ] 1 This Court has not defined precisely what kind of governmental property interest (if any) is necessary for a public forum to exist. See Cornelius v. NAACP Legal Defense & Ed. Fund, Inc. , 473 U.S. 788 , 801 (1985) (“a speaker must seek access to public property or to private property dedicated to public use”). But see ante , at 11, n. 3 (appearing to reject the phrase “private property dedicated to public use” as “passing dicta”). I assume for the sake of argument in this case that public-forum analysis is inappropriate where the government lacks a “significant property interest consistent with the communicative purpose of the forum.” Denver Area Ed. Telecommunications Consortium, Inc. v. FCC , 518 U.S. 727 , 829 (1996) (Thomas, J., concurring in judgment in part and dissenting in part). Such an interest is present here. As described above, New York State required the City to obtain public-access channels from Time Warner in exchange for awarding a cable franchise. See supra , at 2. The exclusive right to use these channels (and, as necessary, Time Warner’s infrastructure) qualifies as a property interest, akin at the very least to an easement. The last time this Court considered a case centering on public-access channels, five Justices described an interest like the one here as similar to an easement. Although Justice Breyer did not conclude that a public-access channel was indeed a public forum, he likened the cable company’s agreement to reserve such channels “to the reservation of a public easement, or a dedication of land for streets and parks, as part of a municipality’s approval of a subdivision of land.” Denver Area , 518 U. S., at 760–761 (joined by Stevens and Souter, JJ.). And Justice Kennedy observed not only that an easement would be an appropriate analogy, id., at 793–794 (opinion concurring in part, concurring in judgment in part, and dissenting in part, joined by Ginsburg, J.), but also that “[p]ublic access channels meet the definition of a public forum,” id., at 791, “even though they operate over property to which the cable operator holds title,” id., at 792; see also id., at 792–793 (noting that the entire cable system’s existence stems from the municipality’s decision to grant the franchise). What those five Justices suggested in 1996 remains true today. “A common idiom describes property as a ‘bundle of sticks’—a collection of individual rights which, in certain combinations, constitute property.” United States v. Craft , 535 U.S. 274 , 278 (2002). Rights to exclude and to use are two of the most crucial sticks in the bundle. See id., at 283. “State law determines . . . which sticks are in a person’s bundle,” id., at 278, and therefore defining property itself is a state-law exercise.[ 4 ] As for whether there is a sufficient property interest to trigger First Amendment forum analysis, related precedents show that there is. As noted above, there is no disputing that Time Warner owns the wires themselves. See Turner , 512 U. S., at 628. If the wires were a road, it would be easy to define the public’s right to walk on it as an easement. See, e.g. , In re India Street , 29 N.Y.2d 97 , 100–103, 272 N. E 2d 518, 518–520 (1971). Similarly, if the wires were a theater, there would be no question that a government’s long-term lease to use it would be sufficient for public-forum pur- poses. Southeastern Promotions , 420 U. S., at 547, 555. But some may find this case more complicated because the wires are not a road or a theater that one can physically occupy; they are a conduit for transmitting signals that appear as television channels. In other words, the question is how to understand the right to place content on those channels using those wires. The right to convey expressive content using someone else’s physical infrastructure is not new. To give another low-tech example, imagine that one company owns a billboard and another rents space on that billboard. The renter can have a property interest in placing content on the billboard for the lease term even though it does not own the billboard itself. See, e.g., Naegele Outdoor Advertising Co. of Minneapolis v. Lakeville , 532 N.W.2d 249 , 253 (Minn. 1995); see also Matter of XAR Corp. v. Di Donato , 76 App. Div. 2d 972, 973, 429 N.Y.S.2d 59, 60 (1980) (“Although invariably labeled ‘leases,’ agreements to erect advertising signs or to place signs on walls or fences are easements in gross”). The same principle should operate in this higher tech realm. Just as if the channels were a billboard, the City obtained rights for exclusive use of the channels by the public for the foreseeable future; no one is free to take the channels away, short of a contract renegotiation. Cf. Craft , 535 U. S., at 283. The City also obtained the right to administer, or delegate the administration of, the channels. The channels are more intangible than a billboard, but no one believes that a right must be tangible to qualify as a property interest. See, e.g. , Armstrong v. United States , 364 U.S. 40 , 48–49 (1960) (treating destruction of valid liens as a taking); Adams Express Co. v. Ohio State Auditor , 166 U.S. 185 , 219 (1897) (treating “privileges, corporate franchises, contracts or obligations” as taxable property). And it is hardly unprecedented for a government to receive a right to transmit something over a private entity’s infrastructure in exchange for conferring something of value on that private entity; examples go back at least as far as the 1800s.[ 5 ] I do not suggest that the government always obtains a property interest in public-access channels created by franchise agreements. But the arrangement here is consistent with what the Court would treat as a governmental property interest in other contexts. New York City gave Time Warner the right to lay wires and sell cable TV. In exchange, the City received an exclusive right to send its own signal over Time Warner’s infrastructure—no different than receiving a right to place ads on another’s billboards. Those rights amount to a governmental property interest in the channels, and that property interest is clearly “consistent with the communicative purpose of the forum,” Denver Area , 518 U. S., at 829 (opinion of Thomas, J.). Indeed, it is the right to transmit the very content to which New York law grants the public open and equal access. 2 With the question of a governmental property interest resolved, it should become clear that the public-access channels are a public forum.[ 6 ] Outside of classic examples like sidewalks and parks, a public forum exists only where the government has deliberately opened up the setting for speech by at least a subset of the public. Cornelius , 473 U. S., at 802. “Accordingly, the Court has looked to the policy and practice of the government,” as well as the nature of the property itself, “to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum.” See ibid. For example, a state college might make its facilities open to student groups, or a municipality might open up an auditorium for certain public meetings. See id. , at 802–803. The requisite governmental intent is manifest here. As noted above, New York State regulations require that the channels be made available to the public “on a first-come, first-served, nondiscriminatory basis.” 16 N. Y. Codes, Rules & Regs. §895.4(c)(4); see also §§895.4(c)(8)–(9). The State, in other words, mandates that the doors be wide open for public expression. MNN’s contract with Time Warner follows suit. App. 23. And that is essentially how MNN itself describes things. See Tr. of Oral Arg. 9 (“We do not prescreen videos. We—they come into the door. We put them on the air”).[ 7 ] These regulations “evidenc[e] a clear intent to create a public forum.” Cornelius , 473 U. S., at 802. B If New York’s public-access channels are a public forum, it follows that New York cannot evade the First Amendment by contracting out administration of that forum to a private agent. When MNN took on the responsibility of administering the forum, it stood in the City’s shoes and became a state actor for purposes of 42 U. S. C. §1983. This conclusion follows from the Court’s decision in West v. Atkins , 487 U.S. 42 (1988). The Court in West unanimously held that a doctor hired to provide medical care to state prisoners was a state actor for purposes of §1983. Id. , at 54; see also id., at 58 (Scalia, J., concurring in part and concurring in judgment). Each State must provide medical care to prisoners, the Court explained, id., at 54, and when a State hires a private doctor to do that job, the doctor becomes a state actor, “ ‘clothed with the authority of state law,’ ” id. , at 55. If a doctor hired by the State abuses his role, the harm is “caused, in the sense relevant for state-action inquiry,” by the State’s having incarcerated the prisoner and put his medical care in that doctor’s hands. Ibid. The fact that the doctor was a private contractor, the Court emphasized, made no difference. Ibid. It was “the physician’s function within the state system,” not his private-contractor status, that determined whether his conduct could “fairly be attributed to the State.” Id. , at 55–56. Once the State imprisoned the plaintiff, it owed him duties under the Eighth Amendment; once the State delegated those duties to a private doctor, the doctor became a state actor. See ibid. ; see also id. , at 56–57. If the rule were any different, a State would “ ‘be free to contract out all services which it is constitutionally obligated to provide and leave its citizens with no means for vindication of those rights, whose protection has been delegated to ‘private’ actors, when they have been denied.’ ” Id., at 56, n. 14. West resolves this case. Although the settings are different, the legal features are the same: When a government (1) makes a choice that triggers constitutional obligations, and then (2) contracts out those constitutional responsibilities to a private entity, that entity—in agreeing to take on the job—becomes a state actor for purposes of §1983.[ 8 ] Not all acts of governmental delegation necessarily trigger constitutional obligations, but this one did. New York State regulations required the City to secure public-access channels if it awarded a cable franchise. 16 N. Y. Codes, Rules & Regs. §895.4(b)(1). The City did award a cable franchise. The State’s regulations then required the City to make the channels it obtained available on a “first-come, first-served, nondiscriminatory basis.”[ 9 ] §895.4(c)(4). That made the channels a public forum. See supra, at 9–10. Opening a public forum, in turn, entailed First Amendment obligations. The City could have done the job itself, but it instead delegated that job to a private entity, MNN. MNN could have said no, but it said yes. (Indeed, it appears to exist entirely to do this job.) By accepting the job, MNN accepted the City’s responsibilities. See West , 487 U. S., at 55. The First Amendment does not fall silent simply because a government hands off the administration of its constitutional duties to a private actor. III The majority acknowledges that the First Amendment could apply when a local government either (1) has a property interest in public-access channels or (2) is more directly involved in administration of those channels than the City is here. Ante , at 15. And it emphasizes that it “decide[s] only the case before us in light of the record before us.” Ibid . These case-specific qualifiers sharply limit the immediate effect of the majority’s decision, but that decision is still meaningfully wrong in two ways. First, the majority erroneously decides the property question against the plaintiffs as a matter of law. Second, and more fundamentally, the majority mistakes a case about the government choosing to hand off responsibility to an agent for a case about a private entity that simply enters a marketplace. A The majority’s explanation for why there is no governmental property interest here, ante , at 14–15, does not hold up. The majority focuses on the fact that “[b]oth Time Warner and MNN are private entities”; that Time Warner “owns its cable network, which contains the public access channels”; and that “MNN operates those public access channels with its own facilities and equipment.” Ante , at 14; see also ante , at 15. Those considerations cannot resolve this case. The issue is not who owns the cable network or that MNN uses its own property to operate the channels. The key question, rather, is whether the channels themselves are purely private property. An advertiser may not own a billboard, but that does not mean that its long-term lease is not a property interest. See supra , at 8. The majority also says that “[n]othing in the record here suggests that a government . . . owns or leases either the cable system or the public access channels at issue here.” Ante , at 14. But the cable system itself is irrelevant, and, as explained above, the details of the exchange that yielded Time Warner’s cable franchise suggest a governmental property interest in the channels. See supra, at 6–9. The majority observes that “the franchise agreements expressly place the public access channels ‘under the jurisdiction’ of MNN,” ante , at 14, but that language sim- ply describes the City’s appointment of MNN to administer the channels. The majority also chides respondents for failing to “alleg[e] in their complaint that the City has a property interest in the channels,” ibid. , but, fairly read, respondents’ complaint includes such an assertion.[ 10 ] In any event, any ambiguity or imprecision does not justify resolving the case against respondents at the motion-to-dismiss stage. To the extent the majority has doubts about respondents’ complaint—or factual or state-law issues that may bear upon the existence of a property interest—the more prudent course would be to vacate and remand for the lower courts to consider those matters more fully. In any event, as I have explained, the best course of all would be to affirm. B More fundamentally, the majority’s opinion erroneously fixates on a type of case that is not before us: one in which a private entity simply enters the marketplace and is then subject to government regulation. The majority swings hard at the wrong pitch. The majority focuses on Jackson v. Metropolitan Edison Co. , 419 U.S. 345 (1974), which is a paradigmatic example of a line of cases that reject §1983 liability for private actors that simply operate against a regulatory backdrop. Jackson emphasized that the “fact that a business is subject to state regulation does not by itself convert its action into that of the State.” Id. , at 350; accord, ante , at 12. Thus, the fact that a utility company entered the marketplace did not make it a state actor, even if it was highly regulated. See Jackson , 419 U. S., at 358; accord, ante , at 12–13. The same rule holds, of course, for private comedy clubs and grocery stores. See ante , at 9.[ 11 ] The Jackson line of cases is inapposite here. MNN is not a private entity that simply ventured into the marketplace. It occupies its role because it was asked to do so by the City, which secured the public-access channels in exchange for giving up public rights of way, opened those channels up (as required by the State) as a public forum, and then deputized MNN to administer them. That distinguishes MNN from a private entity that simply sets up shop against a regulatory backdrop. To say that MNN is nothing more than a private organization regulated by the government is like saying that a waiter at a restaurant is an independent food seller who just happens to be highly regulated by the restaurant’s owners. The majority also relies on the Court’s statements that its “public function” test requires that a function have been “traditionally and exclusively performed” by the government. Ante , at 6 (emphasis deleted); see Jackson , 419 U. S., at 352. Properly understood, that rule cabins liability in cases, such as Jackson , in which a private actor ventures of its own accord into territory shared (or regulated) by the government ( e.g. , by opening a power com- pany or a shopping center). The Court made clear in West that the rule did not reach further, explaining that “the fact that a state employee’s role parallels one in the private sector” does not preclude a finding of state action. 487 U. S., at 56, n. 15. When the government hires an agent, in other words, the question is not whether it hired the agent to do something that can be done in the private marketplace too. If that were the key question, the doctor in West would not have been a state actor. Nobody thinks that orthopedics is a function “traditionally exclusively reserved to the State,” Jackson , 419 U. S., at 352. The majority consigns West to a footnote, asserting that its “scenario is not present here because the government has no [constitutional] obligation to operate public access channels.” Ante , at 7, n. 1. The majority suggests that West is different because “the State was constitutionally obligated to provide medical care to prison inmates.” Ante , at 7, n. 1. But what the majority ignores is that the State in West had no constitutional obligation to open the prison or incarcerate the prisoner in the first place; the obligation to provide medical care arose when it made those prior choices. The City had a comparable constitutional obligation here—one brought about by its own choices, made against a state-law backdrop. The City, of course, had no constitutional obligation to award a cable franchise or to operate public-access channels. But once the City did award a cable franchise, New York law required the City to obtain public-access channels, see supra , at 2, and to open them up as a public forum, see supra , at 9–10. That is when the City’s obligation to act in accordance with the First Amendment with respect to the channels arose. That is why, when the City handed the administration of that forum off to an agent, the Constitution followed. See supra , at 10–13.[ 12 ] The majority is surely correct that “when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment.” Ante , at 9. That is because the majority is not talking about constitutional forums—it is talking about spaces where private entities have simply invited others to come speak. A comedy club can decide to open its doors as wide as it wants, but it cannot appoint itself as a government agent. The difference is between providing a service of one’s own accord and being asked by the government to administer a constitutional responsibility (indeed, here, existing to do so) on the government’s behalf.[ 13 ] To see more clearly the difference between the cases on which the majority fixates and the present case, leave aside the majority’s private comedy club. Imagine instead that a state college runs a comedy showcase each year, renting out a local theater and, pursuant to state regulations mandating open access to certain kinds of student activities, allowing students to sign up to perform on a first-come, first-served basis. Cf. Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U.S. 819 (1995). After a few years, the college decides that it is tired of running the show, so it hires a performing-arts nonprofit to do the job. The nonprofit prefers humor that makes fun of a certain political party, so it allows only student acts that share its views to participate. Does the majority believe that the nonprofit is indistinguishable, for purposes of state action, from a private comedy club opened by local entrepreneurs? I hope not. But two dangers lurk here regardless. On the one hand, if the City’s decision to outsource the channels to a private entity did render the First Amendment irrelevant, there would be substantial cause to worry about the potential abuses that could follow. Can a state university evade the First Amendment by hiring a nonprofit to apportion funding to student groups? Can a city do the same by appointing a corporation to run a municipal theater? What about its parks? On the other hand, the majority hastens to qualify its decision, see ante , at 7, n. 1, 15, and to cabin it to the specific facts of this case, ante , at 15. Those are prudent limitations. Even so, the majority’s focus on Jackson still risks sowing confusion among the lower courts about how and when government outsourcing will render any abuses that follow beyond the reach of the Constitution. In any event, there should be no confusion here. MNN is not a private entity that ventured into the marketplace and found itself subject to government regulation. It was asked to do a job by the government and compensated accordingly. If it does not want to do that job anymore, it can stop (subject, like any other entity, to its contractual obligations). But as long as MNN continues to wield the power it was given by the government, it stands in the government’s shoes and must abide by the First Amendment like any other government actor. IV This is not a case about bigger governments and smaller individuals, ante , at 16; it is a case about principals and agents. New York City opened up a public forum on public-access channels in which it has a property interest. It asked MNN to run that public forum, and MNN accepted the job. That makes MNN subject to the First Amendment, just as if the City had decided to run the public forum itself. While the majority emphasizes that its decision is narrow and factbound, ante , at 15, that does not make it any less misguided. It is crucial that the Court does not continue to ignore the reality, fully recognized by our precedents, that private actors who have been delegated constitutional responsibilities like this one should be accountable to the Constitution’s demands. I respectfully dissent. Notes 1 That does not mean that no restrictions apply at all to the government’s expression in such spaces, but it does mean that the government can pick and choose among different views. See Walker , 576 U. S., at ___, ___–___ (slip op., at 6, 17–18); Summum , 555 U. S., at 468. 2 The channels are not, of course, a physical place. Under the Court’s precedents, that makes no difference: Regardless of whether something “is a forum more in a metaphysical than in a spatial or geographic sense, . . . the same principles are applicable.” Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U.S. 819 , 830 (1995) (treating “Student Activities Fund” as the forum at issue and citing cases in which a school’s mail system and a charity drive were the relevant forums). 3 As discussed below, it is possible that some (or even many) public-access channels are government speech. The channels that MNN administers, however, are clearly better thought of as a public forum given the New York regulations mandating open and equal access. See infra , at 9–10, and n. 7. 4 The parties have not pointed this Court to any New York law definitively establishing the status of the channels. But even if there were uncertainty about the status of the channels under New York law, that would not be a reason to resolve the case against respondents (plaintiffs below) at the motion to dismiss stage. See infra , at 12, n. 9, 14. 5 For example, during the railroad boom, governments obtained not only physical easements in favor of the public over tracks used, owned, and managed by private railroads, including rights to use the rails and all relevant “fixtures and appurtenances,” see, e.g., Lake Superior & Mississippi R. Co. v. United States , 93 U.S. 442 , 444, 453–454 (1877), but also, in some situations, rights to transmit personnel and freight for free or at reduced rates, Ellis, Railroad Land Grant Rates, 1850–1945, 21 J. Land & P. U. Econ. 207, 209, 211–212 (1945). 6 Though the majority disagrees on the property question, I do not take it seriously to dispute that this point would follow. See ante , at 14–15. 7 New York may be uncommon (as it often is); public-access channels in other States may well have different policies and practices that make them more like government speech than constitutional forums. See Brief for Respondents 30–31; Brief for American Civil Liberties Union et al. as Amici Curiae 13–15. New York’s scheme, however, is the only one before us. 8 Governments are, of course, not constitutionally required to open prisons or public forums, but once they do either of these things, constitutional obligations attach. The rule that a government may not evade the Constitution by substituting a private administrator, meanwhile, is not a prison-specific rule. More than 50 years ago, for example, this Court made clear in Evans v. Newton , 382 U.S. 296 (1966), that the city of Macon, Georgia, could not evade the Fourteenth Amendment’s Equal Protection Clause by handing off control of a park to a group “of ‘private’ trustees.” Id. , at 301. Rather, “the public character of [the] park require[d] that it be treated as a public institution subject to the command of the Fourteenth Amendment, regardless of who ha[d] title under state law.” Id. , at 302. 9 Accordingly, this is not a case in which a private entity has been asked to exercise standardless discretion. See, e.g., American Mfrs. Mut. Ins. Co. v. Sullivan , 526 U.S. 40 , 52 (1999). Had New York law left MNN free to choose its favorite submissions, for example, a different result might well follow. MNN has suggested to this Court that its contract with Time Warner allows it “to curate content, to decide to put shows together on one of our channels or a different channel.” Tr. of Oral Arg. 6; see Reply Brief 9. But MNN’s contract cannot defeat New York law’s “first-come, first-served, nondiscriminatory” scheduling requirement, 16 N. Y. Codes, Rules & Regs. §895.4(c)(4), and the discretion MNN asserts seems to be at most some limited authority to coordinate the exact placement and timing of the content it is obliged to accept indiscriminately, see Tr. of Oral Arg. 25–26. That seems akin to the authority to make reasonable time, place, and manner provisions, which is consistent with administering any public forum. See Ward v. Rock Against Racism , 491 U.S. 781 , 791 (1989). As for any factual assertions about how the channels are operated in practice, this case arises from MNN’s motion to dismiss, so the facts asserted against it must be accepted as true. Hernandez v. Mesa , 582 U. S. ___, ___ (2017) ( per curiam ) (slip op., at 1). And any uncertainty about the facts or New York law, in any event, would be a reason to vacate and remand, not reverse. 10 Respondents alleged that the City “created an electronic public forum” and “delegat[ed] control of that forum to” MNN. App. 17. They further alleged that “[a]lmost all cable franchise agreements require cable operators—as a condition for easements to use the public rights-of-way—to dedicate some channels for programming by the public,” id ., at 20, invoked the state regulations requiring the designation of a channel here, id ., at 21, and then alleged that the City’s franchise agreement “requires Time Warner to set aside” the channels, id ., at 22. While the complaint does not use the words “property interest,” those allegations can be read to include the idea that whatever was “set aside” or “dedicate[d],” id ., at 20, 22, qualified as a sufficient City property interest to support respondents’ assertion of a public forum. Cf. People v. Brooklyn & Queens Transit Corp. , 273 N.Y. 394, 400–401, 7 N.E.2d 833, 835 (1937) (discussing dedications of property to public use); cf. also Denver Area Ed. Telecommunications Consortium, Inc. v. FCC , 518 U.S. 727 , 794 (1996) (Kennedy, J., concurring in part, concurring in judgment in part, and dissenting in part) (noting thistheory). 11 There was a time when this Court’s precedents may have portended the kind of First Amendment liability for purely private property owners that the majority spends so much time rejecting. See Marsh v. Alabama , 326 U.S. 501 , 505–509 (1946) (treating a company-owned town as subject to the First Amendment); Food Employees v. Logan Valley Plaza , Inc. , 391 U.S. 308 , 315–320, and n. 9, 325 (1968) (extending Marsh to cover a private shopping center to the extent that it sought to restrict speech about its businesses). But the Court soon stanched that trend. See Lloyd Corp. v. Tanner , 407 U.S. 551 , 561–567 (1972) (cabining Marsh and refusing to extend Logan Valley ); Hudgens v. NLRB , 424 U.S. 507 , 518 (1976) (making clear that “the rationale of Logan Valley did not survive” Lloyd ). Ever since, this Court has been reluctant to find a “public function” when it comes to “private commercial transactions” (even if they occur against a legal or regulatory backdrop), see, e.g., Flagg Bros. , Inc. v. Brooks , 436 U.S. 149 , 161–163 (1978), instead requiring a closer connection between the private entity and a government or its agents, see, e.g. , Brentwood Academy v. Tennessee Secondary School Athletic Assn. , 531 U.S. 288 , 298 (2001) (nonprofit interscholastic athletic association “pervasive[ly] entwine[d]” with governmental institutions and officials); Lugar v. Edmondson Oil Co. , 457 U.S. 922 , 942 (1982) (state-created system “whereby state officials [would] attach property on the ex parte application of one party to a private dispute”); see also Burton v. Wilmington Parking Authority , 365 U.S. 715 , 723–725 (1961) (restaurant in municipal parking garage partly maintained by municipal agency); accord, ante , at 6–7. Jackson exemplifies the line of cases that supplanted cases like Logan Valley —not cases like this one. 12 Jackson v. Metropolitan Edison Co ., 419 U.S. 345 (1974), by contrast, exemplifies a type of case in which a private actor provides a service that there is no governmental obligation to provide at all. See id ., at 353 (no state requirement for government to provide utility service); see also, e.g., Hudgens , 424 U.S. 507 (shopping center). In West v. Atkins , 487 U.S. 42 (1988), by contrast, the prison was obli-gated to provide health care in accordance with the Eighth Amendment to its prisoners once it incarcerated them, and here, the City was required to provide a public forum to its residents in accordance with the First Amendment once it granted the cable franchise. See supra, at 11–13. 13 Accordingly, the majority need not fear that “all private property owners and private lessees who open their property for speech [c]ould be subject to First Amendment constraints.” Ante , at 10. Those kinds of entities are not the government’s agents; MNN is. Whether such entities face “extensive regulation” or require “government licenses, government contracts, or government-granted monopolies,” ante , at 12, is immaterial, so long as they have not accepted the government’s request to fulfill the government’s duties on its behalf.

The Supreme Court ruled that a private nonprofit corporation, MNN, operating public access channels on a cable system in Manhattan, is not a state actor and is therefore not subject to First Amendment constraints on its editorial discretion. The Court applied the state-action doctrine, which distinguishes between governmental and private actors, and concluded that operating public access channels is not a traditional, exclusive public function. The Court also emphasized that a private entity opening its property for speech by others does not automatically become a state actor. This decision upholds the editorial discretion of private entities managing public access channels, even when granted a government-authorized monopoly.

Free Speech

Sorrel v. IMS Health, Inc.

https://supreme.justia.com/cases/federal/us/564/552/

OPINION OF THE COURT SORRELL V. IMS HEALTH INC. 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 10-779 WILLIAM H. SORRELL, ATTORNEY GENERAL OF VERMONT, et al., PETITIONERS v. IMS HEALTH INC. et al. on writ of certiorari to the united states court of appeals for the second circuit [June 23, 2011]    Justice Kennedy delivered the opinion of the Court.    Vermont law restricts the sale, disclosure, and use of pharmacy records that reveal the prescribing practices of individual doctors. Vt. Stat. Ann., Tit. 18, §4631 (Supp. 2010). Subject to certain exceptions, the information may not be sold, disclosed by pharmacies for marketing purposes, or used for marketing by pharmaceutical manufacturers. Vermont argues that its prohibitions safeguard medical privacy and diminish the likelihood that marketing will lead to prescription decisions not in the best interests of patients or the State. It can be assumed that these interests are significant. Speech in aid of pharmaceutical marketing, however, is a form of expression protected by the Free Speech Clause of the First Amendment. As a consequence, Vermont’s statute must be subjected to heightened judicial scrutiny. The law cannot satisfy that standard. I A    Pharmaceutical manufacturers promote their drugs to doctors through a process called “detailing.” This often in- volves a scheduled visit to a doctor’s office to persuade the doctor to prescribe a particular pharmaceutical. Detailers bring drug samples as well as medical studies that explain the “details” and potential advantages of various prescription drugs. Interested physicians listen, ask questions, and receive followup data. Salespersons can be more effective when they know the background and purchasing preferences of their clientele, and pharmaceutical salespersons are no exception. Knowledge of a physi- cian’s prescription practices—called “prescriber-identifying information”—enables a detailer better to ascertain which doctors are likely to be interested in a particular drug and how best to present a particular sales message. Detailing is an expensive undertaking, so pharmaceutical companies most often use it to promote high-profit brand-name drugs protected by patent. Once a brand-name drug’s patent expires, less expensive bioequivalent generic alternatives are manufactured and sold.    Pharmacies, as a matter of business routine and federal law, receive prescriber-identifying information when processing prescriptions. See 21 U. S. C. §353(b); see also Vt. Bd. of Pharmacy Admin. Rule 9.1 (2009); Rule 9.2. Many pharmacies sell this information to “data miners,” firms that analyze prescriber-identifying information and produce reports on prescriber behavior. Data miners lease these reports to pharmaceutical manufacturers subject to nondisclosure agreements. Detailers, who represent the manufacturers, then use the reports to refine their marketing tactics and increase sales.    In 2007, Vermont enacted the Prescription Confidentiality Law. The measure is also referred to as Act 80. It has several components. The central provision of the present case is §4631(d). “A health insurer, a self-insured employer, an electronic transmission intermediary, a pharmacy, or other similar entity shall not sell, license, or exchange for value regulated records containing prescriber-identifiable information, nor permit the use of regulated records containing prescriber-identifiable information for marketing or promoting a prescription drug, unless the prescriber consents … . Pharmaceutical manufacturers and pharmaceutical marketers shall not use prescriber-identifiable information for marketing or promoting a prescription drug unless the prescriber consents … .” The quoted provision has three component parts. The provision begins by prohibiting pharmacies, health insurers, and similar entities from selling prescriber-identifying information, absent the prescriber’s consent. The parties here dispute whether this clause applies to all sales or only to sales for marketing. The provision then goes on to prohibit pharmacies, health insurers, and similar enti- ties from allowing prescriber-identifying information to be used for marketing, unless the prescriber consents. This prohibition in effect bars pharmacies from disclosing the information for marketing purposes. Finally, the provision’s second sentence bars pharmaceutical manufacturers and pharmaceutical marketers from using prescriber-identifying information for marketing, again absent the prescriber’s consent. The Vermont attorney general may pursue civil remedies against violators. §4631(f).    Separate statutory provisions elaborate the scope of the prohibitions set out in §4631(d). “Marketing” is defined to include “advertising, promotion, or any activity” that is “used to influence sales or the market share of a prescription drug.” §4631(b)(5). Section 4631(c)(1) further provides that Vermont’s Department of Health must allow “a prescriber to give consent for his or her identifying information to be used for the purposes” identified in §4631(d). Finally, the Act’s prohibitions on sale, disclosure, and use are subject to a list of exceptions. For example, prescriber-identifying information may be disseminated or used for “health care research”; to enforce “compliance” with health insurance formularies, or preferred drug lists; for “care management educational communications provided to” patients on such matters as “treatment options”; for law enforcement operations; and for purposes “otherwise provided by law.” §4631(e).    Act 80 also authorized funds for an “evidence-based pre-scription drug education program” designed to provide doctors and others with “information and education on the therapeutic and cost-effective utilization of prescription drugs.” §4622(a)(1). An express aim of the program is to advise prescribers “about commonly used brand-name drugs for which the patent has expired” or will soon expire. §4622(a)(2). Similar efforts to promote the use of generic pharmaceuticals are sometimes referred to as “counter-detailing.” App. 211; see also IMS Health Inc. v. Ayotte , 550 F. 3d 42, 91 (CA1 2008) (Lipez, J., concurring and dissenting). The counterdetailer’s recommended substitute may be an older, less expensive drug and not a bioequivalent of the brand-name drug the physician might otherwise prescribe. Like the pharmaceutical manufacturers whose efforts they hope to resist, counterdetailers in some States use prescriber-identifying information to increase their effectiveness. States themselves may supply the prescriber-identifying information used in these programs. See App. 313; id. , at 375 (“[W]e use the data given to us by the State of Pennsylvania … to figure out which physicians to talk to”); see also id ., at 427–429 (Director of the Office of Vermont Health Access explaining that the office collects prescriber-identifying information but “does not at this point in time have a counterdetailing or detailing effort”). As first enacted, Act 80 also required detailers to provide information about alternative treatment options. The Vermont Legislature, however, later repealed that provision. 2008 Vt. Laws No. 89, §3.    Act 80 was accompanied by legislative findings. Vt. Acts No. 80, §1. Vermont found, for example, that the “goals of marketing programs are often in conflict with the goals of the state” and that the “marketplace for ideas on medicine safety and effectiveness is frequently one-sided in that brand-name companies invest in expensive pharmaceutical marketing campaigns to doctors.” §§1(3), (4). Detailing, in the legislature’s view, caused doctors to make decisions based on “incomplete and biased information.” §1(4). Because they “are unable to take the time to research the quickly changing pharmaceutical market,” Vermont doctors “rely on information provided by pharmaceutical representatives.” §1(13). The legislature further found that detailing increases the cost of health care and health insurance, §1(15); encourages hasty and excessive reliance on brand-name drugs, before the profession has observed their effectiveness as compared with older and less expensive generic alternatives, §1(7); and fosters disruptive and repeated marketing visits tantamount to harassment, §§1(27)–(28). The legislative findings further noted that use of prescriber-identifying information “increase[s] the effect of detailing programs” by allowing detailers to target their visits to particular doctors. §§1(23)–(26). Use of prescriber-identifying data also helps detailers shape their messages by “tailoring” their “presentations to individual prescriber styles, preferences, and attitudes.” §1(25). B    The present case involves two consolidated suits. One was brought by three Vermont data miners, the other by an association of pharmaceutical manufacturers that produce brand-name drugs. These entities are the respondents here. Contending that §4631(d) violates their First Amendment rights as incorporated by the Fourteenth Amendment, the respondents sought declaratory and injunctive relief against the petitioners, the Attorney General and other officials of the State of Vermont.    After a bench trial, the United States District Court for the District of Vermont denied relief. 631 F. Supp. 2d 434 (2009). The District Court found that “[p]harmaceutical manufacturers are essentially the only paying customers of the data vendor industry” and that, because detailing unpatented generic drugs is not “cost-effective,” pharmaceutical sales representatives “detail only branded drugs.” Id ., at 451, 442. As the District Court further con- cluded, “the Legislature’s determination that [prescriber-identifying] data is an effective marketing tool that enables detailers to increase sales of new drugs is supported in the record.” Id ., at 451. The United States Court of Appeals for the Second Circuit reversed and remanded. It held that §4631(d) violates the First Amendment by burdening the speech of pharmaceutical marketers and data miners without an adequate justification. 630 F. 3d 263. Judge Livingston dissented.    The decision of the Second Circuit is in conflict with de- cisions of the United States Court of Appeals for the First Circuit concerning similar legislation enacted by Maine and New Hampshire. See IMS Health Inc. v. Mills , 616 F. 3d 7 (CA1 2010) (Maine); Ayotte , supra (New Hamp- shire). Recognizing a division of authority regarding the constitutionality of state statutes, this Court granted certiorari. 562 U. S. __ (2011). II    The beginning point is the text of §4631(d). In the pro- ceedings below, Vermont stated that the first sentence of §4631(d) prohibits pharmacies and other regulated entities from selling or disseminating prescriber-identifying information for marketing. The information, in other words, could be sold or given away for purposes other than marketing. The District Court and the Court of Appeals accepted the State’s reading. See 630 F. 3d, at 276. At oral argument in this Court, however, the State for the first time advanced an alternative reading of §4631(d)—namely, that pharmacies, health insurers, and similar entities may not sell prescriber-identifying information for any purpose, subject to the statutory exceptions set out at §4631(e). See Tr. of Oral Arg. 19–20. It might be argued that the State’s newfound interpretation comes too late in the day. See Sprietsma v. Mercury Marine , 537 U. S. 51 , 56, n. 4 (2002) (waiver); New Hampshire v. Maine , 532 U. S. 742 , 749 (2001) (judicial estoppel). The respondents, the District Court, and the Court of Appeals were entitled to rely on the State’s plausible interpretation of the law it is charged with enforcing. For the State to change its position is particularly troubling in a First Amendment case, where plaintiffs have a special interest in obtaining a prompt adjudication of their rights, despite potential ambiguities of state law. See Houston v. Hill , 482 U. S. 451 , 467–468, and n. 17 (1987); Zwickler v. Koota , 389 U. S. 241 , 252 (1967).    In any event, §4631(d) cannot be sustained even under the interpretation the State now adopts. As a consequence this Court can assume that the opening clause of §4631(d) prohibits pharmacies, health insurers, and similar entities from selling prescriber-identifying information, subject to the statutory exceptions set out at §4631(e). Under that reading, pharmacies may sell the information to private or academic researchers, see §4631(e)(1), but not, for example, to pharmaceutical marketers. There is no dispute as to the remainder of §4631(d). It prohibits pharmacies, health insurers, and similar entities from disclosing or otherwise allowing prescriber-identifying information to be used for marketing. And it bars pharmaceutical manufacturers and detailers from using the information for marketing. The questions now are whether §4631(d) must be tested by heightened judicial scrutiny and, if so, whether the State can justify the law. A 1    On its face, Vermont’s law enacts content- and speaker-based restrictions on the sale, disclosure, and use of prescriber-identifying information. The provision first forbids sale subject to exceptions based in large part on the content of a purchaser’s speech. For example, those who wish to engage in certain “educational communications,” §4631(e)(4), may purchase the information. The measure then bars any disclosure when recipient speakers will use the information for marketing. Finally, the provision’s second sentence prohibits pharmaceutical manufacturers from using the information for marketing. The statute thus disfavors marketing, that is, speech with a particular content. More than that, the statute disfavors specific speakers, namely pharmaceutical manufacturers. As a result of these content- and speaker-based rules, detailers cannot obtain prescriber-identifying information, even though the information may be purchased or acquired by other speakers with diverse purposes and viewpoints. Detailers are likewise barred from using the information for marketing, even though the information may be used by a wide range of other speakers. For example, it appears that Vermont could supply academic organizations with prescriber-identifying information to use in countering the messages of brand-name pharmaceutical manufacturers and in promoting the prescription of generic drugs. But §4631(d) leaves detailers no means of purchasing, acquiring, or using prescriber-identifying information. The law on its face burdens disfavored speech by disfavored speakers.    Any doubt that §4631(d) imposes an aimed, content-based burden on detailers is dispelled by the record and by formal legislative findings. As the District Court noted, “[p]harmaceutical manufacturers are essentially the only paying customers of the data vendor industry”; and the almost invariable rule is that detailing by pharmaceutical manufacturers is in support of brand-name drugs. 631 F. Supp. 2d, at 451. Vermont’s law thus has the effect of preventing detailers—and only detailers—from communicating with physicians in an effective and informative manner. Cf. Edenfield v. Fane , 507 U. S. 761 , 766 (1993) (explaining the “considerable value” of in-person solicitation). Formal legislative findings accompanying §4631(d) confirm that the law’s express purpose and practical effect are to diminish the effectiveness of marketing by manufacturers of brand-name drugs. Just as the “inevitable effect of a statute on its face may render it unconstitutional,” a statute’s stated purposes may also be considered. United States v. O’Brien , 391 U. S. 367 , 384 (1968). Here, the Vermont Legislature explained that detailers, in particular those who promote brand-name drugs, convey messages that “are often in conflict with the goals of the state.” 2007 Vt. No. 80, §1(3). The legislature designed §4631(d) to target those speakers and their messages for disfavored treatment. “In its practical operation,” Vermont’s law “goes even beyond mere content discrimination, to actual viewpoint discrimination.” R. A. V. v. St. Paul , 505 U. S. 377 , 391 (1992). Given the legislature’s expressed statement of purpose, it is apparent that §4631(d) imposes burdens that are based on the content of speech and that are aimed at a particular viewpoint.    Act 80 is designed to impose a specific, content-based burden on protected expression. It follows that heightened judicial scrutiny is warranted. See Cincinnati v. Discovery Network, Inc. , 507 U. S. 410 , 418 (1993) (applying heightened scrutiny to “a categorical prohibition on the use of newsracks to disseminate commercial messages”); id ., at 429 (“[T]he very basis for the regulation is the difference in content between ordinary newspapers and commercial speech” in the form of “commercial handbills … . Thus, by any commonsense understanding of the term, the ban in this case is ‘content based’ ” (some internal quotation marks omitted)); see also Turner Broadcasting System, Inc. v. FCC , 512 U. S. 622 , 658 (1994) (explaining that strict scrutiny applies to regulations reflecting “aversion” to what “disfavored speakers” have to say). The Court has recognized that the “distinction between laws burdening and laws banning speech is but a matter of degree” and that the “Government’s content-based burdens must satisfy the same rigorous scrutiny as its content-based bans.” United States v. Playboy Entertainment Group, Inc. , 529 U. S. 803 , 812 (2000). Lawmakers may no more silence unwanted speech by burdening its utterance than by censoring its content. See Simon & Schuster, Inc. v. Mem- bers of N. Y. State Crime Victims Bd. , 502 U. S. 105 , 115 (1991) (content-based financial burden); Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue , 460 U. S. 575 (1983) (speaker-based financial burden).    The First Amendment requires heightened scrutiny whenever the government creates “a regulation of speech because of disagreement with the message it conveys.” Ward v. Rock Against Racism , 491 U. S. 781 , 791 (1989); see also Renton v. Playtime Theatres, Inc. , 475 U. S. 41 , 48 (1986) (explaining that “ ‘content-neutral’ speech regulations” are “those that are justified without reference to the content of the regulated speech” (internal quotation marks omitted)). A government bent on frustrating an impending demonstration might pass a law demanding two years’ notice before the issuance of parade permits. Even if the hypothetical measure on its face appeared neutral as to content and speaker, its purpose to suppress speech and its unjustified burdens on expression would render it unconstitutional. Ibid. Commercial speech is no exception. See Discovery Network , supra , at 429–430 (commercial speech restriction lacking a “neutral justification” was not content neutral). A “consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue.” Bates v. State Bar of Ariz. , 433 U. S. 350 , 364 (1977). That reality has great relevance in the fields of medicine and public health, where information can save lives. 2    The State argues that heightened judicial scrutiny is unwarranted because its law is a mere commercial regulation. It is true that restrictions on protected expression are distinct from restrictions on economic activity or, more generally, on nonexpressive conduct. It is also true that the First Amendment does not prevent restrictions directed at commerce or conduct from imposing inciden- tal burdens on speech. That is why a ban on race-based hiring may require employers to remove “ ‘White Applicants Only’ ” signs, Rumsfeld v. Forum for Academic and Institutional Rights, Inc. , 547 U. S. 47 , 62 (2006); why “an ordinance against outdoor fires” might forbid “burning a flag,” R. A. V. , supra , at 385; and why antitrust laws can prohibit “agreements in restraint of trade,” Giboney v. Empire Storage & Ice Co. , 336 U. S. 490 , 502 (1949).    But §4631(d) imposes more than an incidental burden on protected expression. Both on its face and in its practical operation, Vermont’s law imposes a burden based on the content of speech and the identity of the speaker. See supra , at 8–11. While the burdened speech results from an economic motive, so too does a great deal of vital expression. See Bigelow v. Virginia , 421 U. S. 809 , 818 (1975); New York Times Co. v. Sullivan , 376 U. S. 254 , 266 (1964); see also United States v. United Foods, Inc. , 533 U. S. 405 , 410–411 (2001) (applying “First Amendment scrutiny” where speech effects were not incidental and noting that “those whose business and livelihood depend in some way upon the product involved no doubt deem First Amendment protection to be just as important for them as it is for other discrete, little noticed groups”). Vermont’s law does not simply have an effect on speech, but is directed at certain content and is aimed at particular speakers. The Constitution “does not enact Mr. Herbert Spencer’s Social Statics.” Lochner v. New York , 198 U. S. 45 , 75 (1905) (Holmes, J., dissenting). It does enact the First Amendment.    Vermont further argues that §4631(d) regulates not speech but simply access to information. Prescriber-identifying information was generated in compliance with a legal mandate, the State argues, and so could be considered a kind of governmental information. This argument finds some support in Los Angeles Police Dept. v. United Reporting Publishing Corp. , 528 U. S. 32 (1999), where the Court held that a plaintiff could not raise a facial challenge to a content-based restriction on access to government- held information. Because no private party faced a threat of legal punishment, the Court characterized the law at issue as “nothing more than a governmental denial of access to information in its possession.” Id ., at 40. Under those circumstances the special reasons for permitting First Amendment plaintiffs to invoke the rights of others did not apply. Id. , at 38–39. Having found that the plaintiff could not raise a facial challenge, the Court remanded for consideration of an as-applied challenge. Id ., at 41. United Reporting is thus a case about the availability of facial challenges. The Court did not rule on the merits of any First Amendment claim. United Reporting is distinguishable in at least two respects. First, Vermont has imposed a restriction on access to information in private hands. This confronts the Court with a point reserved, and a situation not addressed, in United Reporting . Here, unlike in United Reporting , we do have “a case in which the government is prohibiting a speaker from conveying information that the speaker already possesses.” Id ., at 40. The difference is significant. An individual’s right to speak is implicated when information he or she possesses is subjected to “restraints on the way in which the information might be used” or disseminated. Seattle Times Co. v. Rhinehart , 467 U. S. 20 , 32 (1984); see also Bartnicki v. Vopper , 532 U. S. 514 , 527 (2001); Florida Star v. B. J. F. , 491 U. S. 524 (1989); New York Times Co. v. United States , 403 U. S. 713 (1971) (per curiam) . In Seattle Times , this Court applied heightened judicial scrutiny before sustaining a trial court order prohibiting a newspaper’s disclosure of information it learned through coercive discovery. It is true that the respondents here, unlike the newspaper in Seattle Times , do not themselves possess information whose disclosure has been curtailed. That information, however, is in the hands of pharmacies and other private entities. There is no question that the “threat of prosecution … hangs over their heads.” United Reporting , 528 U. S., at 41. For that reason United Reporting does not bar respondents’ facial challenge. United Reporting is distinguishable for a second and even more important reason. The plaintiff in United Reporting had neither “attempt[ed] to qualify” for access to the government’s information nor presented an as-applied claim in this Court. Id ., at 40. As a result, the Court assumed that the plaintiff had not suffered a personal First Amendment injury and could prevail only by invoking the rights of others through a facial challenge. Here, by contrast, the respondents claim—with good reason—that §4631(d) burdens their own speech. That argument finds support in the separate writings in United Reporting , which were joined by eight Justices. All of those writings recognized that restrictions on the disclosure of government-held information can facilitate or burden the expression of potential recipients and so transgress the First Amendment. See id ., at 42 (Scalia, J., concurring) (suggesting that “a restriction upon access that allows access to the press … but at the same time denies access to persons who wish to use the information for certain speech purposes, is in reality a restriction upon speech”); id. , at 43 (Ginsburg, J., concurring) (noting that “the provision of [government] information is a kind of subsidy to people who wish to speak” about certain subjects, “and once a State decides to make such a benefit available to the public, there are no doubt limits to its freedom to decide how that benefit will be distributed”); id ., at 46 (Stevens, J., dissenting) (concluding that, “because the State’s discrimination is based on its desire to prevent the information from being used for constitutionally protected purposes, [i]t must assume the burden of justifying its conduct”). Vermont’s law imposes a content- and speaker-based burden on respondents’ own speech. That consideration provides a separate basis for distinguishing United Reporting and requires heightened judicial scrutiny.    The State also contends that heightened judicial scrutiny is unwarranted in this case because sales, transfer, and use of prescriber-identifying information are conduct, not speech. Consistent with that submission, the United States Court of Appeals for the First Circuit has characterized prescriber-identifying information as a mere “commodity” with no greater entitlement to First Amend- ment protection than “beef jerky.” Ayotte , 550 F. 3d, at 52–53. In contrast the courts below concluded that a prohibition on the sale of prescriber-identifying information is a content-based rule akin to a ban on the sale of cookbooks, laboratory results, or train schedules. See 630 F. 3d, at 271–272 (“The First Amendment protects even dry information, devoid of advocacy, political relevance, or artistic expression” (internal quotation marks and alteration omitted)); 631 F. Supp. 2d, at 445 (“A restriction on disclosure is a regulation of speech, and the ‘sale’ of [information] is simply disclosure for profit”).    This Court has held that the creation and dissemination of information are speech within the meaning of the First Amendment. See, e.g. , Bartnicki , supra , at 527 (“[I]f the acts of ‘disclosing’ and ‘publishing’ information do not constitute speech, it is hard to imagine what does fall within that category, as distinct from the category of expressive conduct” (some internal quotation marks omitted)); Rubin v. Coors Brewing Co. , 514 U. S. 476 , 481 (1995) (“information on beer labels” is speech); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. , 472 U. S. 749 , 759 (1985) (plurality opinion) (credit report is “speech”). Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs. There is thus a strong argument that prescriber-identifying information is speech for First Amendment purposes.    The State asks for an exception to the rule that information is speech, but there is no need to consider that request in this case. The State has imposed content- and speaker-based restrictions on the availability and use of prescriber-identifying information. So long as they do not engage in marketing, many speakers can obtain and use the information. But detailers cannot. Vermont’s statute could be compared with a law prohibiting trade magazines from purchasing or using ink. Cf. Minneapolis Star , 460 U. S. 575 . Like that hypothetical law, §4631(d) imposes a speaker- and content-based burden on protected expression, and that circumstance is sufficient to justify application of heightened scrutiny. As a consequence, this case can be resolved even assuming, as the State argues, that prescriber-identifying information is a mere commodity. B    In the ordinary case it is all but dispositive to conclude that a law is content-based and, in practice, viewpoint-discriminatory. See R. A. V. , 505 U. S., at 382 (“Content-based regulations are presumptively invalid”); id. , at 391–392. The State argues that a different analysis applies here because, assuming §4631(d) burdens speech at all, it at most burdens only commercial speech. As in previous cases, however, the outcome is the same whether a special commercial speech inquiry or a stricter form of judicial scrutiny is applied. See, e.g. , Greater New Orleans Broadcasting Assn., Inc. v. United States , 527 U. S. 173 , 184 (1999). For the same reason there is no need to determine whether all speech hampered by §4631(d) is commercial, as our cases have used that term. Cf. Board of Trustees of State Univ. of N. Y. v. Fox , 492 U. S. 469 , 474 (1989) (discussing whether “pure speech and commercial speech” were inextricably intertwined, so that “the entirety must … be classified as noncommercial”).    Under a commercial speech inquiry, it is the State’s burden to justify its content-based law as consistent with the First Amendment. Thompson v. Western States Medical Center , 535 U. S. 357 , 373 (2002). To sustain the targeted, content-based burden §4631(d) imposes on protected expression, the State must show at least that the statute directly advances a substantial governmental interest and that the measure is drawn to achieve that interest. See Fox , supra , at 480–481; Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y. , 447 U. S. 557 , 566 (1980). There must be a “fit between the legislature’s ends and the means chosen to accomplish those ends.” Fox , supra , at 480 (internal quotation marks omitted). As in other contexts, these standards ensure not only that the State’s interests are proportional to the result- ing burdens placed on speech but also that the law does not seek to suppress a disfavored message. See Turner Broadcasting , 512 U. S., at 662–663.    The State’s asserted justifications for §4631(d) come under two general headings. First, the State contends that its law is necessary to protect medical privacy, including physician confidentiality, avoidance of harassment, and the integrity of the doctor-patient relationship. Second, the State argues that §4631(d) is integral to the achievement of policy objectives—namely, improved public health and reduced healthcare costs. Neither justification withstands scrutiny. 1    Vermont argues that its physicians have a “reasonable expectation” that their prescriber-identifying information “will not be used for purposes other than … filling and processing” prescriptions. See 2007 Vt. Laws No. 80, §1(29). It may be assumed that, for many reasons, physicians have an interest in keeping their prescription decisions confidential. But §4631(d) is not drawn to serve that interest. Under Vermont’s law, pharmacies may share prescriber-identifying information with anyone for any rea- son save one: They must not allow the information to be used for marketing. Exceptions further allow pharmacies to sell prescriber-identifying information for certain purposes, including “health care research.” §4631(e). And the measure permits insurers, researchers, journalists, the State itself, and others to use the information. See §4631(d); cf. App. 370–372; id ., at 211. All but conceding that §4631(d) does not in itself advance confidentiality interests, the State suggests that other laws might impose separate bars on the disclosure of prescriber-identifying information. See Vt. Bd. of Pharmacy Admin. Rule 20.1. But the potential effectiveness of other measures cannot justify the distinctive set of prohibitions and sanctions imposed by §4631(d).    Perhaps the State could have addressed physician confidentiality through “a more coherent policy.” Greater New Orleans Broadcasting , supra , at 195; see also Discovery Network , 507 U. S., at 428. For instance, the State might have advanced its asserted privacy interest by allowing the information’s sale or disclosure in only a few narrow and well-justified circumstances. See, e.g. , Health Insurance Portability and Accountability Act of 1996, 42 U. S. C. §1320d–2; 45 CFR pts. 160 and 164 (2010). A statute of that type would present quite a different case than the one presented here. But the State did not enact a statute with that purpose or design. Instead, Vermont made prescriber-identifying information available to an almost limitless audience. The explicit structure of the statute allows the information to be studied and used by all but a narrow class of disfavored speakers. Given the information’s widespread availability and many permissible uses, the State’s asserted interest in physician confidentiality does not justify the burden that §4631(d) places on protected expression.    The State points out that it allows doctors to forgo the advantages of §4631(d) by consenting to the sale, disclosure, and use of their prescriber-identifying information. See §4631(c)(1). It is true that private decisionmaking can avoid governmental partiality and thus insulate privacy measures from First Amendment challenge. See Rowan v. Post Office Dept. , 397 U. S. 728 (1970); cf. Bolger v. Youngs Drug Products Corp. , 463 U. S. 60 , 72 (1983). But that principle is inapposite here. Vermont has given its doctors a contrived choice: Either consent, which will allow your prescriber-identifying information to be disseminated and used without constraint; or, withhold consent, which will allow your information to be used by those speakers whose message the State supports. Section 4631(d) may offer a limited degree of privacy, but only on terms favorable to the speech the State prefers. Cf. Rowan , supra , at 734, 737, 739, n. 6 (sustaining a law that allowed private parties to make “unfettered,” “unlimited,” and “unreviewable” choices regarding their own privacy). This is not to say that all privacy measures must avoid content-based rules. Here, however, the State has conditioned privacy on acceptance of a content-based rule that is not drawn to serve the State’s asserted interest. To obtain the limited privacy allowed by §4631(d), Vermont physicians are forced to acquiesce in the State’s goal of burdening disfavored speech by disfavored speakers.    Respondents suggest that a further defect of §4631(d) lies in its presumption of applicability absent a physician’s election to the contrary. Vermont’s law might burden less speech if it came into operation only after an individual choice, but a revision to that effect would not necessarily save §4631(d). Even reliance on a prior election would not suffice, for instance, if available categories of coverage by design favored speakers of one political persuasion over another. Rules that burden protected expression may not be sustained when the options provided by the State are too narrow to advance legitimate interests or too broad to protect speech. As already explained, §4631(d) permits extensive use of prescriber-identifying information and so does not advance the State’s asserted interest in physician confidentiality. The limited range of available privacy options instead reflects the State’s impermissible purpose to burden disfavored speech. Vermont’s argument accordingly fails, even if the availability and scope of private election might be relevant in other contexts, as when the statute’s design is unrelated to any purpose to advance a preferred message.    The State also contends that §4631(d) protects doctors from “harassing sales behaviors.” 2007 Vt. Laws No. 80, §1(28). “Some doctors in Vermont are experiencing an undesired increase in the aggressiveness of pharmaceutical sales representatives,” the Vermont Legislature found, “and a few have reported that they felt coerced and harassed.” §1(20). It is doubtful that concern for “a few” physicians who may have “felt coerced and harassed” by pharmaceutical marketers can sustain a broad content-based rule like §4631(d). Many are those who must endure speech they do not like, but that is a necessary cost of freedom. See Erznoznik v. Jacksonville , 422 U. S. 205 , 210–211 (1975); Cohen v. California , 403 U. S. 15 , 21 (1971). In any event the State offers no explanation why remedies other than content-based rules would be inadequate. See 44 Liquormart, Inc. v. Rhode Island , 517 U. S. 484 , 503 (1996) (opinion of Stevens, J.). Physicians can, and often do, simply decline to meet with detailers, including detailers who use prescriber-identifying information. See, e.g. , App. 180, 333–334. Doctors who wish to forgo detailing altogether are free to give “No Solicitation” or “No Detailing” instructions to their office managers or to receptionists at their places of work. Personal privacy even in one’s own home receives “ample protection” from the “resident’s unquestioned right to refuse to engage in conversation with unwelcome visitors.” Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of Stratton , 536 U. S. 150 , 168 (2002); see also Bolger , supra , at 72. A physician’s office is no more private and is entitled to no greater protection.    Vermont argues that detailers’ use of prescriber-identifying information undermines the doctor-patient relationship by allowing detailers to influence treatment decisions. According to the State, “unwanted pressure occurs” when doctors learn that their prescription decisions are being “monitored” by detailers. 2007 Vt. Laws No. 80, §1(27). Some physicians accuse detailers of “spying” or of engaging in “underhanded” conduct in order to “subvert” prescription decisions. App. 336, 380, 407–408; see also id. , at 326–328. And Vermont claims that detailing makes people “anxious” about whether doctors have their patients’ best interests at heart. Id ., at 327. But the State does not explain why detailers’ use of prescriber-identifying information is more likely to prompt these objections than many other uses permitted by §4631(d). In any event, this asserted interest is contrary to basic First Amendment principles. Speech remains protected even when it may “stir people to action,” “move them to tears,” or “inflict great pain.” Snyder v. Phelps , 562 U. S. ___, ___ (2011) (slip op., at 15). The more benign and, many would say, beneficial speech of pharmaceutical marketing is also entitled to the protection of the First Amendment. If pharmaceutical marketing affects treatment decisions, it does so because doctors find it persuasive. Absent circumstances far from those presented here, the fear that speech might persuade provides no lawful basis for quieting it. Brandenburg v. Ohio , 395 U. S. 444 , 447 (1969) (per curiam) . 2    The State contends that §4631(d) advances impor- tant public policy goals by lowering the costs of medical services and promoting public health. If prescriber-identifying information were available for use by detailers, the State contends, then detailing would be effective in promoting brand-name drugs that are more expensive and less safe than generic alternatives. This logic is set out at length in the legislative findings accompanying §4631(d). Yet at oral argument here, the State declined to acknowledge that §4631(d)’s objective purpose and practical effect were to inhibit detailing and alter doctors’ prescription decisions. See Tr. of Oral Arg. 5–6. The State’s reluctance to embrace its own legislature’s rationale reflects the vulnerability of its position.    While Vermont’s stated policy goals may be proper, §4631(d) does not advance them in a permissible way. As the Court of Appeals noted, the “state’s own explanation of how” §4631(d) “advances its interests cannot be said to be direct.” 630 F. 3d, at 277. The State seeks to achieve its policy objectives through the indirect means of restraining certain speech by certain speakers—that is, by diminishing detailers’ ability to influence prescription decisions. Those who seek to censor or burden free expression often assert that disfavored speech has adverse effects. But the “fear that people would make bad decisions if given truthful information” cannot justify content-based burdens on speech. Thompson , 535 U. S., at 374; see also Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. , 425 U. S. 748 , 769–770 (1976). “The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.” 44 Liquormart , supra , at 503 (opinion of Stevens, J.); see also Linmark Associates, Inc. v. Willingboro , 431 U. S. 85 , 97 (1977). These precepts apply with full force when the audience, in this case prescribing physicians, consists of “sophisticated and experienced” consumers. Edenfield , 507 U. S., at 775.    As Vermont’s legislative findings acknowledge, the prem- ise of §4631(d) is that the force of speech can justify the government’s attempts to stifle it. Indeed the State defends the law by insisting that “pharmaceutical marketing has a strong influence on doctors’ prescribing practices.” Brief for Petitioners 49–50. This reasoning is incompatible with the First Amendment. In an attempt to reverse a disfavored trend in public opinion, a State could not ban campaigning with slogans, picketing with signs, or marching during the daytime. Likewise the State may not seek to remove a popular but disfavored product from the marketplace by prohibiting truthful, nonmisleading advertisements that contain impressive endorsements or catchy jingles. That the State finds expression too persuasive does not permit it to quiet the speech or to burden its messengers.    The defect in Vermont’s law is made clear by the fact that many listeners find detailing instructive. Indeed the record demonstrates that some Vermont doctors view targeted detailing based on prescriber-identifying information as “very helpful” because it allows detailers to shape their messages to each doctor’s practice. App. 274; see also id. , at 181, 218, 271–272. Even the United States, which appeared here in support of Vermont, took care to dispute the State’s “unwarranted view that the dangers of [n]ew drugs outweigh their benefits to patients.” Brief for United States as Amicus Curiae 24, n. 4. There are divergent views regarding detailing and the prescription of brand-name drugs. Under the Constitution, resolution of that debate must result from free and uninhibited speech. As one Vermont physician put it: “We have a saying in medicine, information is power. And the more you know, or anyone knows, the better decisions can be made.” App. 279. There are similar sayings in law, including that “information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.” Virginia Bd. , 425 U. S., at 770. The choice “between the dangers of suppressing information, and the dangers of its misuse if it is freely available” is one that “the First Amendment makes for us.” Ibid .    Vermont may be displeased that detailers who use prescriber-identifying information are effective in promoting brand-name drugs. The State can express that view through its own speech. See Linmark , 431 U. S., at 97; cf. §4622(a)(1) (establishing a prescription drug educational program). But a State’s failure to persuade does not allow it to hamstring the opposition. The State may not burden the speech of others in order to tilt public debate in a preferred direction. “The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish. Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience, not the government, assess the value of the information presented.” Edenfield , supra , at 767.    It is true that content-based restrictions on protected expression are sometimes permissible, and that principle applies to commercial speech. Indeed the government’s legitimate interest in protecting consumers from “commercial harms” explains “why commercial speech can be subject to greater governmental regulation than noncommercial speech.” Discovery Network , 507 U. S., at 426; see also 44 Liquormart , 517 U. S., 502 (opinion of Stevens, J.). The Court has noted, for example, that “a State may choose to regulate price advertising in one industry but not in others, because the risk of fraud … is in its view greater there.” R. A. V. , 505 U. S., at 388–389 (citing Virginia Bd. , supra , at 771–772). Here, however, Vermont has not shown that its law has a neutral justification.    The State nowhere contends that detailing is false or misleading within the meaning of this Court’s First Amendment precedents. See Thompson , 535 U. S., at 373. Nor does the State argue that the provision challenged here will prevent false or misleading speech. Cf. post , at 10–11 (Breyer, J., dissenting) (collecting regulations that the government might defend on this ground). The State’s interest in burdening the speech of detailers instead turns on nothing more than a difference of opinion. See Bolger , 463 U. S., at 69; Thompson , supra , at 376. *  *  *    The capacity of technology to find and publish personal information, including records required by the government, presents serious and unresolved issues with respect to personal privacy and the dignity it seeks to secure. In considering how to protect those interests, however, the State cannot engage in content-based discrimination to advance its own side of a debate.    If Vermont’s statute provided that prescriber-identifying information could not be sold or disclosed except in narrow circumstances then the State might have a stronger position. Here, however, the State gives possessors of the information broad discretion and wide latitude in disclosing the information, while at the same time restricting the information’s use by some speakers and for some purposes, even while the State itself can use the information to counter the speech it seeks to suppress. Privacy is a concept too integral to the person and a right too essential to freedom to allow its manipulation to support just those ideas the government prefers.    When it enacted §4631(d), the Vermont Legislature found that the “marketplace for ideas on medicine safety and effectiveness is frequently one-sided in that brand-name companies invest in expensive pharmaceutical marketing campaigns to doctors.” 2007 Vt. Laws No. 80, §1(4). “The goals of marketing programs,” the legislature said, “are often in conflict with the goals of the state.” §1(3). The text of §4631(d), associated legislative findings, and the record developed in the District Court establish that Vermont enacted its law for this end. The State has burdened a form of protected expression that it found too persuasive. At the same time, the State has left unburdened those speakers whose messages are in accord with its own views. This the State cannot do.    The judgment of the Court of Appeals is affirmed. It is so ordered. BREYER, J., DISSENTING SORRELL V. IMS HEALTH INC. 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 10-779 WILLIAM H. SORRELL, ATTORNEY GENERAL OF VERMONT, et al., PETITIONERS v. IMS HEALTH INC. et al. on writ of certiorari to the united states court of appeals for the second circuit [June 23, 2011]    Justice Breyer, with whom Justice Ginsburg and Justice Kagan join, dissenting.    The Vermont statute before us adversely affects expression in one, and only one, way. It deprives pharmaceutical and data-mining companies of data, collected pursuant to the government’s regulatory mandate, that could help pharmaceutical companies create better sales messages. In my view, this effect on expression is inextricably related to a lawful governmental effort to regulate a commercial enterprise. The First Amendment does not require courts to apply a special “heightened” standard of review when reviewing such an effort. And, in any event, the statute meets the First Amendment standard this Court has previously applied when the government seeks to regulate commercial speech. For any or all of these reasons, the Court should uphold the statute as constitutional. I    The Vermont statute before us says pharmacies and certain other entities “shall not [1] sell … regulated records containing prescriber-identifiable information, nor [2] permit the use of [such] records … for marketing or promoting a prescription drug, unless the prescriber consents.” Vt. Stat. Ann., Tit. 18, §4631(d) (Supp. 2010). It also says that “[3] [p]harmaceutical manufacturers and pharmaceutical marketers shall not use prescriber-identifiable information for marketing or promoting a prescription drug unless the prescriber consents.” Ibid. For the most part, I shall focus upon the first and second of these prohibitions. In Part IV, I shall explain why the third prohibition makes no difference to the result. II In Glickman v. Wileman Brothers & Elliott, Inc. , 521 U. S. 457 (1997), this Court considered the First Amendment’s application to federal agricultural commodity mar-keting regulations that required growers of fruit to make compulsory contributions to pay for collective adver- tising. The Court reviewed the lawfulness of the regulation’s negative impact on the growers’ freedom voluntarily to choose their own commercial messages “under the standard appropriate for the review of economic regulation.” Id. , at 469.    In this case I would ask whether Vermont’s regulatory provisions work harm to First Amendment interests that is disproportionate to their furtherance of legitimate regulatory objectives. And in doing so, I would give significant weight to legitimate commercial regulatory objectives—as this Court did in Glickman . The far stricter, specially “heightened” First Amendment standards that the majority would apply to this instance of commercial regulation are out of place here. Ante , at 1, 8, 9, 10, 11, 13, 14, 15. A    Because many, perhaps most, activities of human beings living together in communities take place through speech, and because speech-related risks and offsetting justifications differ depending upon context, this Court has distinguished for First Amendment purposes among different contexts in which speech takes place. See, e.g., Snyder v. Phelps , 562 U. S. ___, ___–___ (2011) (slip op., at 5–6). Thus, the First Amendment imposes tight constraints upon government efforts to restrict, e.g., “core” political speech, while imposing looser constraints when the government seeks to restrict, e.g., commercial speech, the speech of its own employees, or the regulation-related speech of a firm subject to a traditional regulatory program. Compare Boos v. Barry , 485 U. S. 312 , 321 (1988) (political speech), with Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y. , 447 U. S. 557 (1980) (commercial speech), Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty. , 391 U. S. 563 (1968) (government employees), and Glickman , supra (economic regulation).    These test-related distinctions reflect the constitutional importance of maintaining a free marketplace of ideas, a marketplace that provides access to “social, political, esthetic, moral, and other ideas and experiences.” Red Lion Broadcasting Co. v. FCC , 395 U. S. 367 , 390 (1969); see Abrams v. United States , 250 U. S. 616 , 630 (1919) (Holmes, J., dissenting). Without such a marketplace, the public could not freely choose a government pledged to implement policies that reflect the people’s informed will.    At the same time, our cases make clear that the First Amendment offers considerably less protection to the maintenance of a free marketplace for goods and services. See Florida Bar v. Went For It, Inc. , 515 U. S. 618 , 623 (1995) (“We have always been careful to distinguish commercial speech from speech at the First Amendment’s core”). And they also reflect the democratic importance of permitting an elected government to implement through effective programs policy choices for which the people’s elected representatives have voted.    Thus this Court has recognized that commercial speech including advertising has an “informational function” and is not “valueless in the marketplace of ideas.” Central Hudson , supra , at 563; Bigelow v. Virginia , 421 U. S. 809 , 826 (1975). But at the same time it has applied a less than strict, “intermediate” First Amendment test when the government directly restricts commercial speech. Under that test, government laws and regulations may significantly restrict speech, as long as they also “directly advance” a “substantial” government interest that could not “be served as well by a more limited restriction.” Central Hudson , supra , at 564. Moreover, the Court has found that “sales practices” that are “misleading, deceptive, or aggressive” lack the protection of even this “intermediate” standard. 44 Liquormart, Inc. v. Rhode Island , 517 U. S. 484 , 501 (1996) (opinion of Stevens, J.); see also Central Hudson , supra , at 563; Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. , 425 U. S. 748 , 772 (1976). And the Court has emphasized the need, in applying an “intermediate” test, to maintain the “ ‘commonsense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation , and other varieties of speech.” Ohralik v. Ohio State Bar Assn. , 436 U. S. 447 , 455–456 (1978) (quoting Virginia Bd. of Pharmacy , supra , at 771, n. 24; emphasis added).    The Court has also normally applied a yet more lenient approach to ordinary commercial or regulatory legislation that affects speech in less direct ways. In doing so, the Court has taken account of the need in this area of law to defer significantly to legislative judgment—as the Court has done in cases involving the Commerce Clause or the Due Process Clause. See Glickman , supra , at 475–476. “Our function” in such cases, Justice Brandeis said, “is only to determine the reasonableness of the legislature’s belief in the existence of evils and in the effectiveness of the remedy provided.” New State Ice Co. v. Liebmann , 285 U. S. 262 , 286–287 (1932) (dissenting opinion); Williamson v. Lee Optical of Okla., Inc. , 348 U. S. 483 , 488 (1955) (“It is enough that there is an evil at hand for correction, and that it might be thought that the particular legisla-tive measure was a rational way to correct it”); United States v. Carolene Products Co. , 304 U. S. 144 , 152 (1938) (“[R]egulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional” if it rests “upon some rational basis within the knowledge and experience of the legislators”).    To apply a strict First Amendment standard virtually as a matter of course when a court reviews ordinary economic regulatory programs (even if that program has a modest impact upon a firm’s ability to shape a commercial message) would work at cross-purposes with this more basic constitutional approach. Since ordinary regulatory programs can affect speech, particularly commercial speech, in myriad ways, to apply a “heightened” First Amendment standard of review whenever such a program burdens speech would transfer from legislatures to judges the primary power to weigh ends and to choose means, threatening to distort or undermine legitimate legislative ob-jectives. See Glickman , 521 U. S., at 476 (“Doubts concerning the policy judgments that underlie” a program requiring fruit growers to pay for advertising they disagree with does not “justify reliance on the First Amendment as a basis for reviewing economic regulations”). Cf. Johanns v. Livestock Marketing Assn. , 544 U. S. 550 , 560–562 (2005) (applying less scrutiny when the compelled speech is made by the Government); United States v. United Foods, Inc. , 533 U. S. 405 , 411 (2001) (applying greater scrutiny where compelled speech was not “ancillary to a more comprehensive program restricting marketing autonomy”). To apply a “heightened” standard of review in such cases as a matter of course would risk what then-Justice Rehnquist, dissenting in Central Hudson , described as a “retur[n] to the bygone era of Lochner v. New York , 198 U. S. 45 (1905), in which it was common practice for this Court to strike down economic regulations adopted by a State based on the Court’s own notions of the most appropriate means for the State to implement its considered policies.” 447 U. S., at 589. B    There are several reasons why the Court should review Vermont’s law “under the standard appropriate for the review of economic regulation,” not “under a heightened standard appropriate for the review of First Amendment issues.” Glickman , 521 U. S., at 469. For one thing, Vermont’s statute neither forbids nor requires anyone to say anything, to engage in any form of symbolic speech, or to endorse any particular point of view, whether ideological or related to the sale of a product. Cf. id. , at 469–470. (And I here assume that Central Hudson might otherwise apply. See Part III, infra .)    For another thing, the same First Amendment standards that apply to Vermont here would apply to similar regulatory actions taken by other States or by the Federal Government acting, for example, through Food and Drug Administration (FDA) regulation. (And the Federal Government’s ability to pre-empt state laws that interfere with existing or contemplated federal forms of regulation is here irrelevant.)    Further, the statute’s requirements form part of a tra-ditional, comprehensive regulatory regime. Cf. United Foods , supra , at 411. The pharmaceutical drug industry has been heavily regulated at least since 1906. See Pure Food and Drugs Act, 34 Stat. 768. Longstanding statutes and regulations require pharmaceutical companies to engage in complex drug testing to ensure that their drugs are both “safe” and “effective.” 21 U. S. C. §§355(b)(1), 355(d). Only then can the drugs be marketed, at which point drug companies are subject to the FDA’s exhaustive regulation of the content of drug labels and the manner in which drugs can be advertised and sold. §352(f)(2); 21 CFR pts. 201–203 (2010).    Finally, Vermont’s statute is directed toward information that exists only by virtue of government regulation. Under federal law, certain drugs can be dispensed only by a pharmacist operating under the orders of a medical practitioner. 21 U. S. C. §353(b). Vermont regulates the qualifications, the fitness, and the practices of pharmacists themselves, and requires pharmacies to maintain a “patient record system” that, among other things, tracks who prescribed which drugs. Vt. Stat. Ann., Tit. 26, §§2041(a), 2022(14) (Supp. 2010); Vt. Bd. of Pharmacy Admin. Rules (Pharmacy Rules) 9.1, 9.24(e) (2009). But for these regulations, pharmacies would have no way to know who had told customers to buy which drugs (as is the case when a doctor tells a patient to take a daily dose of aspirin).    Regulators will often find it necessary to create tailored restrictions on the use of information subject to their regulatory jurisdiction. A car dealership that obtains credit scores for customers who want car loans can be prohibited from using credit data to search for new customers. See 15 U. S. C. §1681b (2006 ed. and Supp. III); cf. Trans Union Corp. v. FTC , 245 F. 3d 809, reh’g denied, 267 F. 3d 1138 (CADC 2001). Medical specialists who obtain medical records for their existing patients cannot purchase those records in order to identify new patients. See 45 CFR §164.508(a)(3) (2010). Or, speaking hypothetically, a public utilities commission that directs local gas distributors to gather usage information for individual customers might permit the distributors to share the data with researchers (trying to lower energy costs) but forbid sales of the data to appliance manufacturers seeking to sell gas stoves.    Such regulatory actions are subject to judicial review, e.g., for compliance with applicable statutes. And they would normally be subject to review under the Administrative Procedure Act to make certain they are not “arbitrary, capricious, [or] an abuse of discretion.” 5 U. S. C. §706(2)(A) (2006 ed.). In an appropriate case, such review might be informed by First Amendment considerations. But regulatory actions of the kind present here have not previously been thought to raise serious additional constitutional concerns under the First Amendment. But cf. Trans Union LLC v. FTC , 536 U. S. 915 (2002) (Kennedy, J., dissenting from denial of certiorari) (questioning ban on use of consumer credit reports for target marketing). The ease with which one can point to actual or hypothet-ical examples with potentially adverse speech-related effects at least roughly comparable to those at issue here indicates the danger of applying a “heightened” or “intermediate” standard of First Amendment review where typical regulatory actions affect commercial speech (say, by withholding information that a commercial speaker might use to shape the content of a message).    Thus, it is not surprising that, until today, this Court has never found that the First Amendment prohibits the government from restricting the use of information gathered pursuant to a regulatory mandate—whether the information rests in government files or has remained in the hands of the private firms that gathered it. But cf. ante , at 11–14. Nor has this Court ever previously applied any form of “heightened” scrutiny in any even roughly similar case. See Los Angeles Police Dept. v. United Reporting Publishing Corp. , 528 U. S. 32 (1999) (no heightened scrutiny); compare Cincinnati v. Discovery Network, Inc. , 507 U. S. 410 , 426 (1993) (“[C]ommercial speech can be subject to greater governmental regulation than noncommercial speech” because of the government’s “interest in preventing commercial harms”), with ante , at 9–10, 11, 17–18, 24 (suggesting that Discovery Network supports heightened scrutiny when regulations target commercial speech). C    The Court (suggesting a standard yet stricter than Central Hudson ) says that we must give content-based restrictions that burden speech “heightened” scrutiny. It adds that “[c]ommercial speech is no exception.” Ante , at 10–11. And the Court then emphasizes that this is a case involving both “content-based” and “speaker-based” restrictions. See ante , at 8, 9, 10, 12, 14, 15, 16, 19, 20, 22, 24.    But neither of these categories—“content-based” nor “speaker-based”—has ever before justified greater scrutiny when regulatory activity affects commercial speech. See, e.g., Capital Broadcasting Co. v. Mitchell , 333 F. Supp. 582 (DC 1971) (three-judge court), summarily aff’d sub nom . Capital Broadcasting Co. v. Acting Attorney General , 405 U. S. 1000 (1972) (upholding ban on radio and television marketing of tobacco). And the absence of any such precedent is understandable.    Regulatory programs necessarily draw distinctions on the basis of content. Virginia Bd. of Pharmacy , 425 U. S., at 761, 762 (“If there is a kind of commercial speech that lacks all First Amendment protection, … it must be distinguished by its content”). Electricity regulators, for example, oversee company statements, pronouncements, and proposals, but only about electricity. See, e.g., Vt. Pub. Serv. Bd. Rules 3.100 (1983), 4.200 (1986), 5.200 (2004). The Federal Reserve Board regulates the content of statements, advertising, loan proposals, and interest rate disclosures, but only when made by financial institutions. See 12 CFR pts. 226, 230 (2011). And the FDA oversees the form and content of labeling, advertising, and sales proposals of drugs, but not of furniture. See 21 CFR pts. 201–203. Given the ubiquity of content-based regulatory categories, why should the “content-based” nature of typical regulation require courts (other things being equal) to grant legislators and regulators less deference? Cf. Board of Trustees of State Univ. of N. Y. v. Fox , 492 U. S. 469 , 481 (1989) (courts, in First Amendment area, should “provide the Legislative and Executive Branches needed leeway” when regulated industries are at issue).    Nor, in the context of a regulatory program, is it unusual for particular rules to be “speaker-based,” affecting only a class of entities, namely, the regulated firms. An energy regulator, for example, might require the manu-facturers of home appliances to publicize ways to reduce energy consumption, while exempting producers of industrial equipment. See, e.g., 16 CFR pt. 305 (2011) (prescribing labeling requirements for certain home appliances); Nev. Admin. Code §§704.804, 704.808 (2010) (requiring utilities to provide consumers with information on conservation). Or a trade regulator might forbid a particular firm to make the true claim that its cosmetic product contains “cleansing grains that scrub away dirt and ex-cess oil” unless it substantiates that claim with detailed backup testing, even though opponents of cosmetics use need not substantiate their claims. Morris, F. T. C. Orders Data to Back Ad Claims, N. Y. Times, Nov. 3, 1973, p. 32; Boys’ Life, Oct. 1973, p. 64; see 36 Fed. Reg. 12058 (1971). Or the FDA might control in detail just what a pharmaceutical firm can, and cannot, tell potential purchasers about its products. Such a firm, for example, could not suggest to a potential purchaser (say, a doctor) that he or she might put a pharmaceutical drug to an “off label” use, even if the manufacturer, in good faith and with considerable evidence, believes the drug will help. All the while, a third party (say, a researcher) is free to tell the doctor not to use the drug for that purpose. See 21 CFR pt. 99; cf. Buckman Co. v. Plaintiffs’ Legal Comm ., 531 U. S. 341 , 350–351 (2001) (discussing effect of similar regulations in respect to medical devices); see also Proposed Rule, Revised Effectiveness Determination; Sunscreen Drug Products for Over-the-Counter Human Use, 76 Fed. Reg. 35672 (2011) (proposing to prohibit marketing of sunscreens with sun protection factor (SPF) of greater than 50 due to insufficient data “to indicate that there is additional clinical benefit”).    If the Court means to create constitutional barriers to regulatory rules that might affect the content of a com-mercial message, it has embarked upon an unprecedented task—a task that threatens significant judicial interference with widely accepted regulatory activity. Cf., e.g., 21 CFR pts. 201–203. Nor would it ease the task to limit its “heightened” scrutiny to regulations that only affect certain speakers. As the examples that I have set forth illustrate, many regulations affect only messages sent by a small class of regulated speakers, for example, electricity generators or natural gas pipelines.    The Court also uses the words “aimed” and “targeted” when describing the relation of the statute to drug manufacturers. Ante , at 8, 9, 12, 16. But, for the reasons just set forth, to require “heightened” scrutiny on this basis is to require its application early and often when the State seeks to regulate industry. Any statutory initiative stems from a legislative agenda. See, e.g., Message to Congress, May 24, 1937, H. R. Doc. No. 255, 75th Cong., 1st Sess., 4 (request from President Franklin Roosevelt for legislation to ease the plight of factory workers). Any administrative initiative stems from a regulatory agenda. See, e.g., Exec. Order No. 12866, 58 Fed. Reg. 51735 (1993) (specifying how to identify regulatory priorities and requiring agencies to prepare agendas). The related statutes, regulations, programs, and initiatives almost always reflect a point of view, for example, of the Congress and the administration that enacted them and ultimately the voters. And they often aim at, and target, particular firms that engage in practices about the merits of which the Government and the firms may disagree. Section 2 of the Sherman Act, 15 U. S. C. §2, for example, which limits the truthful, nonmisleading speech of firms that, due to their market power, can affect the competitive landscape, is directly aimed at, and targeted at, monopolists.    In short, the case law in this area reflects the need to ensure that the First Amendment protects the “marketplace of ideas,” thereby facilitating the democratic creation of sound government policies without improperly hampering the ability of government to introduce an agenda, to implement its policies, and to favor them to the exclusion of contrary policies. To apply “heightened” scrutiny when the regulation of commercial activities (which often involve speech) is at issue is unnecessarily to undercut the latter constitutional goal. The majority’s view of this case presents that risk.    Moreover, given the sheer quantity of regulatory initiatives that touch upon commercial messages, the Court’s vision of its reviewing task threatens to return us to a happily bygone era when judges scrutinized legislation for its interference with economic liberty. History shows that the power was much abused and resulted in the constitutionalization of economic theories preferred by individual jurists. See Lochner v. New York , 198 U. S. 45 , 75–76 (1905) (Holmes, J., dissenting). By inviting courts to scrutinize whether a State’s legitimate regulatory interests can be achieved in less restrictive ways whenever they touch (even indirectly) upon commercial speech, today’s majority risks repeating the mistakes of the past in a manner not anticipated by our precedents. See Central Hudson , 447 U. S., at 589 (Rehnquist, J., dissenting); cf. Railroad Comm’n of Tex. v. Rowan & Nichols Oil Co. , 310 U. S. 573 , 580–581 (1940) (“A controversy like this always calls for fresh reminder that courts must not substitute their notions of expediency and fairness for those which have guided the agencies to whom the formulation and execution of policy have been entrusted”).    Nothing in Vermont’s statute undermines the ability of persons opposing the State’s policies to speak their mind or to pursue a different set of policy objectives through the democratic process. Whether Vermont’s regulatory statute “targets” drug companies (as opposed to affecting them unintentionally) must be beside the First Amendment point.    This does not mean that economic regulation having some effect on speech is always lawful. Courts typically review the lawfulness of statutes for rationality and of regulations (if federal) to make certain they are not “arbitrary, capricious, [or] an abuse of discretion.” 5 U. S. C. §706(2)(A). And our valuable free-speech tradition may play an important role in such review. But courts do not normally view these matters as requiring “heightened” First Amendment scrutiny—and particularly not the un-forgiving brand of “intermediate” scrutiny employed by the majority. Because the imposition of “heightened” scrutiny in such instances would significantly change the legislative/judicial balance, in a way that would significantly weaken the legislature’s authority to regulate commerce and industry, I would not apply a “heightened” First Amendment standard of review in this case. III    Turning to the constitutional merits, I believe Vermont’s statute survives application of Central Hudson ’s “intermediate” commercial speech standard as well as any more limited “economic regulation” test. A    The statute threatens only modest harm to commercial speech. I agree that it withholds from pharmaceutical companies information that would help those entities create a more effective selling message. But I cannot agree with the majority that the harm also involves unjustified discrimination in that it permits “pharmacies” to “share prescriber-identifying information with anyone for any reason” (but marketing). Ante , at 17. Whatever the First Amendment relevance of such discrimination, there is no evidence that it exists in Vermont. The record contains no evidence that prescriber-identifying data is widely disseminated. See App. 248, 255. Cf. Burson v. Freeman , 504 U. S. 191 , 207 (1992) (plurality opinion) (“States adopt laws to address the problems that confront them. The First Amendment does not require States to regulate for problems that do not exist”); Bates v. State Bar of Ariz. , 433 U. S. 350 , 380 (1977) (“[T]he justification for the application of overbreadth analysis applies weakly, if at all, in the ordinary commercial context”).    The absence of any such evidence likely reflects the presence of other legal rules that forbid widespread release of prescriber-identifying information. Vermont’s Pharmacy Rules, for example, define “unprofessional conduct” to include “[d]ivulging or revealing to unauthorized persons patient or practitioner information or the nature of professional pharmacy services rendered.” Rule 20.1(i) (emphasis added); see also Reply Brief for Petitioners 21. The statute reinforces this prohibition where pharmaceutical marketing is at issue. And the exceptions that it creates are narrow and concern common and often essential uses of prescription data. See Vt. Stat. Ann., Tit. 18, §4631(e)(1) (pharmacy reimbursement, patient care management, health care research); §4631(e)(2) (drug dispensing); §4631(e)(3) (communications between prescriber and pharmacy); §4631(e)(4) (information to patients); §§4631(e)(5)–(6) (as otherwise provided by state or federal law). Cf. Trans Union Corp. , 245 F. 3d, at 819 (rejecting an underinclusiveness challenge because an exception to the Fair Credit Reporting Act concerned “ ‘exactly the sort of thing the Act seeks to promote’ ” (quoting Trans Union Corp. v. FTC , 81 F. 3d 228, 234 (CADC 1996)).    Nor can the majority find record support for its claim that the statute helps “favored” speech and imposes a “burde[n]” upon “disfavored speech by disfavored speakers.” Ante , at 19. The Court apparently means that the statute (1) prevents pharmaceutical companies from creating individualized messages that would help them sell their drugs more effectively, but (2) permits “counterdetailing” programs, which often promote generic drugs, to create such messages using prescriber-identifying data. I am willing to assume, for argument’s sake, that this consequence would significantly increase the statute’s negative impact upon commercial speech. But cf. 21 CFR §§202.1(e)(1), 202.1(e)(5)(ii) (FDA’s “fair balance” requirement); App. 193 (no similar FDA requirement for nondrug manufacturers). The record before us, however, contains no evidentiary basis for the conclusion that any such individualized counterdetailing is widespread, or exists at all, in Vermont.    The majority points out, ante , at 4, that Act 80, of which §4631 was a part, also created an “evidence-based prescription drug education program,” in which the Vermont Department of Health, the Department of Vermont Health Access, and the University of Vermont, among others, work together “to provide information and education on the therapeutic and cost-effective utilization of prescription drugs” to health professionals responsible for prescribing and dispensing prescription drugs, Vt. Stat. Ann., Tit. 18, §4622(a)(1). See generally §§4621–4622. But that program does not make use of prescriber-identifying data. Reply Brief for Petitioners 11.    The majority cites testimony by two witnesses in support of its statement that “States themselves may supply the prescriber-identifying information used in [counterdetailing] programs.” Ante , at 4. One witness explained that academic detailers in Pennsylvania work with state health officials to identify physicians serving patients whose health care is likewise state provided. App. 375. The other, an IMS Health officer, observed that Vermont has its own multipayer database containing prescriber-identifying data, which could be used to talk to doctors about their prescription patterns and the lower costs associated with generics. Id. , at 313. But nothing in the record indicates that any “counterdetailing” of this kind has ever taken place in fact in Vermont . State-sponsored health care professionals sometimes meet with small groups of doctors to discuss best practices and generic drugs generally. See University of Vermont, College of Medicine, Office of Primary Care, Vermont Academic Detailing Program (July 2010), http://www.med.uvm.edu/ ahec/downloads/VTAD_overview_2010.07.08.pdf (all Inter-net materials as visited June 21, 2011, and available in Clerk of Court’s case file). Nothing in Vermont’s statute prohibits brand-name manufacturers from undertaking a similar effort.    The upshot is that the only commercial-speech-related harm that the record shows this statute to have brought about is the one I have previously described: The withholding of information collected through a regulatory program, thereby preventing companies from shaping a commercial message they believe maximally effective. The absence of precedent suggesting that this kind of harm is serious reinforces the conclusion that the harm here is modest at most. B    The legitimate state interests that the statute serves are “substantial.” Central Hudson , 447 U. S., at 564. Vermont enacted its statute “to advance the state’s interest in protecting the public health of Vermonters, protecting the privacy of prescribers and prescribing information, and to ensure costs are contained in the private health care sector, as well as for state purchasers of prescription drugs, through the promotion of less costly drugs and ensuring prescribers receive unbiased information.” §4631(a). These objectives are important. And the interests they embody all are “neutral” in respect to speech. Cf. ante , at 24.    The protection of public health falls within the traditional scope of a State’s police powers. Hillsborough County v. Automated Medical Laboratories, Inc. , 471 U. S. 707 , 719 (1985). The fact that the Court normally exempts the regulation of “misleading” and “deceptive” information even from the rigors of its “intermediate” commercial speech scrutiny testifies to the importance of securing “unbiased information,” see 44 Liquormart , 517 U. S., at 501 (opinion of Stevens, J.); Central Hudson , supra , at 563, as does the fact that the FDA sets forth as a federal regulatory goal the need to ensure a “fair balance” of information about marketed drugs, 21 CFR §§202.1(e)(1), 202.1(e)(5)(ii). As major payers in the health care system, health care spending is also of crucial state interest. And this Court has affirmed the importance of maintaining “privacy” as an important public policy goal—even in respect to information already disclosed to the public for particular purposes (but not others). See Department of Justice v. Reporters Comm. for Freedom of Press , 489 U. S. 749 , 762–771 (1989); see also Solove, A Taxonomy of Privacy, 154 U. Pa. L. Rev. 477, 520–522 (2006); cf. NASA v. Nelson , 562 U. S. ___, ___–___ (2011) (slip op., at 8–9) (discussing privacy interests in nondisclosure).    At the same time, the record evidence is sufficient to permit a legislature to conclude that the statute “directly advances” each of these objectives. The statute helps to focus sales discussions on an individual drug’s safety, effectiveness, and cost, perhaps compared to other drugs (including generics). These drug-related facts have everything to do with general information that drug manufacturers likely possess. They have little, if anything, to do with the name or prior prescription practices of the particular doctor to whom a detailer is speaking. Shaping a detailing message based on an individual doctor’s prior prescription habits may help sell more of a particular manufacturer’s particular drugs. But it does so by diverting attention from scientific research about a drug’s safety and effectiveness, as well as its cost. This diversion comes at the expense of public health and the State’s fiscal interests.    Vermont compiled a substantial legislative record to corroborate this line of reasoning. See Testimony of Sean Flynn (Apr. 11, 2007), App. in No. 09–1913–cv(L) etc. (CA2), p. A–1156 (hereinafter CA2 App.) (use of data mining helps drug companies “to cover up information that is not in the best of light of their drug and to highlight information that makes them look good”); Volker & Outterson, New Legislative Trends Threaten the Way Health Information Companies Operate, Pharmaceutical Pricing & Reimbursement 2007, id. , at A–4235 (one former detailer considered prescriber-identifying data the “ ‘greatest tool in planning our approach to manipulating doctors’ ” (quoting Whitney, Big (Brother) Pharma: How Drug Reps Know Which Doctors to Target, New Republic, Aug. 29, 2006, http://www.tnr.com/article/84056/health-care-eli-lilly-pfizer-ama); Testimony of Paul Harrington (May 3, 2007), id. , at A–1437 (describing data mining practices as “secret and manipulative activities by the marketers”); Testimony of Julie Brill (May 3, 2007), id. , at A–1445 (restrictions on data mining “ensur[e] that the FDA’s requirement of doctors receiving fair and balanced information actually occurs”); Written Statement of Jerry Avorn & Aaron Kesselheim, id. , at A–4310 (citing studies that “indicate that more physician-specific detailing will lead to more prescriptions of brand-name agents, often with no additional patient benefit but at much higher cost to patients and to state-based insurance programs, which will continue to drive up the cost of health care”); id. , at 4311 (“Making it more difficult for manufacturers to tailor their marketing strategies to the prescribing histories of individual physicians would actually encourage detailers to present physicians with a more neutral description of the product”); see also Record in No. 1:07–cv–00188–jgm (D Vt.), Doc. 414, pp. 53–57, 64 (hereinafter Doc. 414) (summarizing record evidence).    These conclusions required the legislature to make judgments about whether and how to ameliorate these problems. And it is the job of regulatory agencies and legislatures to make just these kinds of judgments. Vermont’s attempts to ensure a “fair balance” of information is no different from the FDA’s similar requirement, see 21 CFR §§202.1(e)(1), 202.1(e)(5)(ii). No one has yet suggested that substantial portions of federal drug regulation are unconstitutional. Why then should we treat Vermont’s law differently?    The record also adequately supports the State’s privacy objective. Regulatory rules in Vermont make clear that the confidentiality of an individual doctor’s prescribing practices remains the norm. See, e.g., Pharmacy Rule 8.7(c) (“Prescription and other patient health care information shall be secure from access by the public, and the information shall be kept confidential”); Pharmacy Rule 20.1(i) (forbidding disclosure of patient or prescriber information to “unauthorized persons” without consent). Exceptions to this norm are comparatively few. See, e.g., ibid . (identifying “authorized persons”); Vt. Stat. Ann., Tit. 18, §4631(e); App. 248, 255 (indicating that prescriber-identifying data is not widely disseminated). There is no indication that the State of Vermont, or others in the State, makes use of this information for counterdetailing efforts. See supra , at 15.    Pharmaceutical manufacturers and the data miners who sell information to those manufacturers would like to create (and did create) an additional exception, which means additional circulation of otherwise largely confi-dential information. Vermont’s statute closes that door. At the same time, the statute permits doctors who wish to permit use of their prescribing practices to do so. §§4631(c)–(d). For purposes of Central Hudson , this would seem sufficiently to show that the statute serves a meaningful interest in increasing the protection given to prescriber privacy. See Fox , 492 U. S., at 480 (in commercial speech area, First Amendment requires “a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served” (internal quotation marks omitted)); see also United States v. Edge Broadcasting Co. , 509 U. S. 418 , 434 (1993) (The First Amendment does not “require that the Government make progress on every front before it can make progress on any front”); Burson , 504 U. S., at 207 (plurality opinion). C    The majority cannot point to any adequately supported, similarly effective “more limited restriction.” Central Hudson , 447 U. S., at 564. It says that doctors “can, and often do, simply decline to meet with detailers.” Ante , at 20. This fact, while true, is beside the point. Closing the office door entirely has no similar tendency to lower costs (by focusing greater attention upon the comparative advantages and disadvantages of generic drug alternatives). And it would not protect the confidentiality of information already released to, say, data miners. In any event, physicians are unlikely to turn detailers away at the door, for those detailers, whether delivering a balanced or imbalanced message, are nonetheless providers of much useful information. See Manchanda & Honka, The Effects and Role of Direct-to-Physician Marketing in the Pharmaceutical Industry: An Integrative Review, 5 Yale J. Health Pol’y L. & Ethics 785, 793–797, 815–816 (2005); Ziegler, Lew, & Singer, The Accuracy of Drug Information from Pharmaceutical Sales Representatives, 273 JAMA 1296 (1995). Forcing doctors to choose between targeted detailing and no detailing at all could therefore jeopardize the State’s interest in promoting public health.    The majority also suggests that if the “statute provided that prescriber-identifying information could not be sold or disclosed except in narrow circumstances then the State might have a stronger position.” Ante , at 24–25; see also ante , at 17. But the disclosure-permitting exceptions here are quite narrow, and they serve useful, indeed essential purposes. See supra , at 14. Compare Vt. Stat. Ann., Tit. 18, §4631(e) with note following 42 U. S. C. §1320d–2, p. 1190, and 45 CFR §164.512 (uses and disclosures not requiring consent under the Health Insurance Portability and Accountability Act of 1996). Regardless, this alternative is not “a more limited restriction,” Central Hudson , supra , at 564 (emphasis added), for it would impose a greater , not a lesser , burden upon the dissemination of information.    Respondents’ alternatives are no more helpful. Respondents suggest that “Vermont can simply inform physicians that pharmaceutical companies … use prescription history information to communicate with doctors.” Brief for Respondent Pharmaceutical Research and Manufacturers of America 48. But how would that help serve the State’s basic purposes? It would not create the “fair balance” of information in pharmaceutical marketing that the State, like the FDA, seeks. Cf. Reno v. American Civil Liberties Union , 521 U. S. 844 , 874 (1997) (alternative must be “at least as effective in achieving the legitimate purpose that the statute was enacted to serve”). Respondents also suggest policies requiring use of generic drugs or educating doctors about their benefits. Brief for Respondent Pharmaceutical Research and Manufacturers of America 54–55. Such programs have been in effect for some time in Vermont or other States, without indication that they have prevented the imbalanced sales tactics at which Vermont’s statute takes aim. See, e.g., Written Statement of Jerry Avorn & Aaron Kesselheim, CA2 App. 4310; Doc. 414, at 60–61. And in any event, such laws do not help protect prescriber privacy.    Vermont has thus developed a record that sufficiently shows that its statute meaningfully furthers substantial state interests. Neither the majority nor respondents suggests any equally effective “more limited” restriction. And the First Amendment harm that Vermont’s statute works is, at most, modest. I consequently conclude that, even if we apply an “intermediate” test such as that in Central Hudson, this statute is constitutional. IV    What about the statute’s third restriction, providing that “[p]harmaceutical manufacturers and pharmaceutical marketers” may not “ use prescriber-identifiable information for marketing or promoting a prescription drug unless the prescriber consents”? Vt. Stat. Ann., Tit. 18, §4631(d) (emphasis added). In principle, I should not reach this question. That is because respondent pharmaceutical manufacturers, marketers, and data miners seek a declaratory judgment and injunction prohibiting the enforcement of this statute. See 28 U. S. C. §2201; App. 49–128. And they have neither shown nor claimed that they could obtain significant amounts of “prescriber-identifiable information” if the first two prohibitions are valid. If, as I believe, the first two statutory prohibitions (related to selling and disclosing the information) are valid, then the dispute about the validity of the third provision is not “ ‘real and substantial’ ” or “ ‘definite and concrete.’ ” MedImmune, Inc. v. Genentech, Inc. , 549 U. S. 118 , 127 (2007) (quoting Aetna Life Ins. Co. v. Haworth , 300 U. S. 227 , 240–241 (1937)) (Article III does not permit courts to entertain such disputes).    The Court, however, strikes down all three provisions, and so I add that I disagree with the majority as to the constitutionality of the third restriction as well—basically for the reasons I have already set out. The prohibition against pharmaceutical firms using this prescriber-identifying information works no more than modest First Amendment harm; the prohibition is justified by the need to ensure unbiased sales presentations, prevent unnecessarily high drug costs, and protect the privacy of prescribing physicians. There is no obvious equally effective, more limited alternative. V    In sum, I believe that the statute before us satisfies the “intermediate” standards this Court has applied to restrictions on commercial speech. A fortiori it satisfies less demanding standards that are more appropriately applied in this kind of commercial regulatory case—a case where the government seeks typical regulatory ends (lower drug prices, more balanced sales messages) through the use of ordinary regulatory means (limiting the commercial use of data gathered pursuant to a regulatory mandate). The speech-related consequences here are indirect, incidental, and entirely commercial. See supra , at 6–9.    The Court reaches its conclusion through the use of important First Amendment categories—“content-based,” “speaker-based,” and “neutral”—but without taking full account of the regulatory context, the nature of the speech effects, the values these First Amendment categories seek to promote, and prior precedent. See supra , at 2–6, 9–13, 17. At best the Court opens a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message. See, e.g., supra , at 7–8, 9–11. At worst, it reawakens Lochner ’s pre-New Deal threat of substituting judicial for democratic decisionmaking where ordinary economic regulation is at issue. See Central Hudson , 447 U. S., at 589 (Rehnquist, J., dissenting).    Regardless, whether we apply an ordinary commercial speech standard or a less demanding standard, I believe Vermont’s law is consistent with the First Amendment. And with respect, I dissent.

In *Sorrell v. IMS Health Inc.*, the Supreme Court ruled that a Vermont law restricting the sale and use of pharmacy records revealing doctors' prescribing practices violated the Free Speech Clause of the First Amendment. The Court applied heightened judicial scrutiny to the law, which prohibited pharmacies from selling or disclosing prescriber-identifying information for marketing purposes and pharmaceutical manufacturers from using such information for marketing. The Court found that while Vermont's interests in safeguarding medical privacy and promoting prescription decisions in the best interests of patients were significant, the law's restrictions on commercial speech failed to meet the required standard. Justice Kennedy delivered the opinion, stating that the law's speech-related consequences were indirect, incidental, and entirely commercial, and thus unconstitutional.

Free Speech

U.S. v. Alvarez

https://supreme.justia.com/cases/federal/us/567/709/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 11–210 _________________ UNITED STATES, PETITIONER v. XAVIER ALVAREZ on writ of certiorari to the united states court of appeals for the ninth circuit [June 28, 2012] Justice Kennedy announced the judgment of the Court and delivered an opinion, in which The Chief Justice, Justice Ginsburg, and Justice Sotomayor join. Lying was his habit. Xavier Alvarez, the respondent here, lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in announcing he held the Con-gressional Medal of Honor, respondent ventured onto new ground; for that lie violates a federal criminal statute, the Stolen Valor Act of 2005. 18 U. S. C. §704. In 2007, respondent attended his first public meeting as a board member of the Three Valley Water District Board. The board is a governmental entity with headquarters in Claremont, California. He introduced himself as follows: “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.” 617 F.3d 1198, 1201–1202 (CA9 2010). None of this was true. For all the record shows, respondent’s statements were but a pathetic attempt to gain respect that eluded him. The statements do not seem to have been made to secure employment or financial benefits or admission to privileges reserved for those who had earned the Medal. Respondent was indicted under the Stolen Valor Act for lying about the Congressional Medal of Honor at the meeting. The United States District Court for the Central District of California rejected his claim that the statute is invalid under the First Amendment. Respondent pleaded guilty to one count, reserving the right to appeal on his First Amendment claim. The United States Court of Appeals for the Ninth Circuit, in a decision by a divided panel, found the Act invalid under the First Amendment and reversed the conviction. Id. , at 1218. With further opinions on the issue, and over a dissent by seven judges, rehearing en banc was denied. 638 F.3d 666 (2011). This Court granted certiorari. 565 U. S. ___ (2011). After certiorari was granted, and in an unrelated case, the United States Court of Appeals for the Tenth Circuit, also in a decision by a divided panel, found the Act constitutional. United States v. Strandlof , 667 F.3d 1146 (2012). So there is now a conflict in the Courts of Appeals on the question of the Act’s validity. This is the second case in two Terms requiring the Court to consider speech that can disparage, or attempt to steal, honor that belongs to those who fought for this Nation in battle. See Snyder v. Phelps , 562 U. S. ___ (2011) (hateful protests directed at the funeral of a serviceman who died in Iraq). Here the statement that the speaker held the Medal was an intended, undoubted lie. It is right and proper that Congress, over a century ago, established an award so the Nation can hold in its high- est respect and esteem those who, in the course of carrying out the “supreme and noble duty of contributing to the defense of the rights and honor of the nation,” Selective Draft Law Cases, 245 U.S. 366 , 390 (1918), have acted with extraordinary honor. And it should be uncontested that this is a legitimate Government objective, indeed a most valued national aspiration and purpose. This does not end the inquiry, however. Fundamental constitutional principles require that laws enacted to honor the brave must be consistent with the precepts of the Constitution for which they fought. The Government contends the criminal prohibition is a proper means to further its purpose in creating and awarding the Medal. When content-based speech regulation is in question, however, exacting scrutiny is required. Statutes suppressing or restricting speech must be judged by the sometimes inconvenient principles of the First Amendment. By this measure, the statutory provisions under which respondent was convicted must be held invalid, and his conviction must be set aside. I Respondent’s claim to hold the Congressional Medal of Honor was false. There is no room to argue about in-terpretation or shades of meaning. On this premise, respondent violated §704(b); and, because the lie concerned the Congressional Medal of Honor, he was subject to an enhanced penalty under subsection (c). Those statutory provisions are as follows: “(b) False Claims About Receipt of Military Decorations or Medals.––Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States . . . shall be fined under this title, imprisoned not more than six months, or both. “(c) Enhanced Penalty for Offenses Involving Congressional Medal of Honor.–– “(1) In General.––If a decoration or medal involved in an offense under subsection (a) or (b) is a Congressional Medal of Honor, in lieu of the punishment provided in that subsection, the offender shall be fined under this title, imprisoned not more than 1 year, or both.” Respondent challenges the statute as a content-based suppression of pure speech, speech not falling within any of the few categories of expression where content-based regulation is permissible. The Government defends the statute as necessary to preserve the integrity and purpose of the Medal, an integrity and purpose it contends are compromised and frustrated by the false statements the statute prohibits. It argues that false statements “have no First Amendment value in themselves,” and thus “are protected only to the extent needed to avoid chilling fully protected speech.” Brief for United States 18, 20. Al-though the statute covers respondent’s speech, the Government argues that it leaves breathing room for pro-tected speech, for example speech which might criticize the idea of the Medal or the importance of the military. The Government’s arguments cannot suffice to save the statute. II “[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties Union , 535 U.S. 564 , 573 (2002) (internal quotation marks omitted). As a result, the Constitution “demands that content-based restrictions on speech be presumed invalid . . . and that the Government bear the burden of showing their constitutionality.” Ashcroft v. American Civil Liberties Union , 542 U.S. 656 , 660 (2004). In light of the substantial and expansive threats to free expression posed by content-based restrictions, this Court has rejected as “startling and dangerous” a “free-floating test for First Amendment coverage . . . [based on] an ad hoc balancing of relative social costs and benefits.” United States v. Stevens , 559 U. S. ___, ___ (2010) (slip op., at 7). Instead, content-based restrictions on speech have been permitted, as a general matter, only when confined to the few “ ‘historic and traditional categories [of expression] long familiar to the bar,’ ” Id., at ___ (slip op., at 5) (quoting Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd. , 502 U.S. 105 , 127 (1991) (Kennedy, J., concurring in judgment)). Among these categories are advocacy intended, and likely, to incite imminent lawless action, see Brandenburg v. Ohio , 395 U.S. 444 (1969) (per curiam); obscenity, see, e.g., Miller v. California , 413 U.S. 15 (1973); defamation, see, e.g., New York Times Co. v. Sullivan , 376 U.S. 254 (1964) (providing substantial protection for speech about public figures); Gertz v. Robert Welch, Inc. , 418 U.S. 323 (1974) (imposing some limits on liability for defaming a private figure); speech integral to criminal conduct, see, e.g., Giboney v. Empire Storage & Ice Co. , 336 U.S. 490 (1949); so-called “fighting words,” see Chaplinsky v. New Hampshire , 315 U.S. 568 (1942); child pornography, see New York v. Ferber , 458 U.S. 747 (1982); fraud, see Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. , 425 U.S. 748 , 771 (1976); true threats, see Watts v. United States , 394 U.S. 705 (1969) (per curiam); and speech presenting some grave and imminent threat the government has the power to prevent, see Near v. Minnesota ex rel. Olson , 283 U.S. 697 , 716 (1931), although a restriction under the last category is most difficult to sustain, see New York Times Co. v. United States , 403 U.S. 713 (1971) (per curiam) . These categories have a historical foundation in the Court’s free speech tradition. The vast realm of free speech and thought always protected in our tradition can still thrive, and even be furthered, by adherence to those categories and rules. Absent from those few categories where the law allows content-based regulation of speech is any general exception to the First Amendment for false statements. This comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private con-versation, expression the First Amendment seeks to guarantee. See Sullivan, supra, at 271 (“Th[e] erroneous statement is inevitable in free debate”). The Government disagrees with this proposition. It cites language from some of this Court’s precedents to support its contention that false statements have no value and hence no First Amendment protection. See also Brief for Eugene Volokh et al. as Amici Curiae 2–11. These isolated statements in some earlier decisions do not support the Government’s submission that false statements, as a general rule, are beyond constitutional protection. That conclusion would take the quoted language far from its proper context. For instance, the Court has stated “[f]alse statements of fact are particularly valueless [because] they interfere with the truth-seeking function of the marketplace of ideas,” Hustler Magazine, Inc. v. Falwell , 485 U.S. 46 , 52 (1988), and that false statements “are not protected by the First Amendment in the same manner as truthful statements,” Brown v. Hartlage , 456 U.S. 45 , 60–61 (1982). See also, e.g., Virginia Bd. of Pharmacy , supra , at 771 (“Untruthful speech, commercial or otherwise, has never been protected for its own sake”); Herbert v. Lando , 441 U.S. 153 , 171 (1979) (“Spreading false information in and of itself carries no First Amendment credentials”); Gertz , supra , at 340 (“[T]here is no constitutional value in false statements of fact”); Garrison v. Louisiana , 379 U.S. 64 , 75 (1964) (“[T]he knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection”). These quotations all derive from cases discussing def-amation, fraud, or some other legally cognizable harm associated with a false statement, such as an invasion of privacy or the costs of vexatious litigation. See Brief for United States 18–19. In those decisions the falsity of the speech at issue was not irrelevant to our analysis, but neither was it determinative. The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection. Our prior decisions have not confronted a measure, like the Stolen Valor Act, that targets falsity and nothing more. Even when considering some instances of defamation and fraud, moreover, the Court has been careful to instruct that falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood. See Sullivan , supra , at 280 (prohibiting recovery of damages for a defamatory falsehood made about a public official unless the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not”); see also Garrison , supra , at 73 (“[E]ven when the utterance is false, the great principles of the Constitution which secure freedom of expression . . . preclude attaching adverse consequences to any except the knowing or reckless falsehood”); Illinois ex rel. Madigan v. Telemarketing Associates, Inc. , 538 U.S. 600 , 620 (2003) (“False statement alone does not subject a fundraiser to fraud liability”). The Government thus seeks to use this principle for a new purpose. It seeks to convert a rule that limits liability even in defamation cases where the law permits recovery for tortious wrongs into a rule that expands liability in a different, far greater realm of discourse and expression. That inverts the rationale for the exception. The requirements of a knowing falsehood or reckless disregard for the truth as the condition for recovery in certain defamation cases exists to allow more speech, not less. A rule designed to tolerate certain speech ought not blossom to become a rationale for a rule restricting it. The Government then gives three examples of regulations on false speech that courts generally have found per-missible: first, the criminal prohibition of a false statement made to a Government official, 18 U. S. C. §1001; second, laws punishing perjury; and third, prohibi-tions on the false representation that one is speaking as a Government official or on behalf of the Government, see, e.g., §912; §709. These restrictions, however, do not establish a principle that all proscriptions of false statements are exempt from exacting First Amendment scrutiny. The federal statute prohibiting false statements to Government officials punishes “whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government . . . makes any mate-rially false, fictitious, or fraudulent statement or repre-sentation.” §1001. Section 1001’s prohibition on false statements made to Government officials, in communications concerning official matters, does not lead to the broader proposition that false statements are unprotected when made to any person, at any time, in any context. The same point can be made about what the Court has confirmed is the “unquestioned constitutionality of perjury statutes,” both the federal statute, §1623, and its state-law equivalents. United States v. Grayson , 438 U.S. 41 , 54 (1978). See also Konigsberg v. State Bar of Cal. , 366 U.S. 36 , 51, n. 10 (1961). It is not simply because perjured statements are false that they lack First Amendment protection. Perjured testimony “is at war with justice” because it can cause a court to render a “judgment not resting on truth.” In re Michael , 326 U.S. 224 , 227 (1945). Perjury undermines the function and province of the law and threatens the integrity of judgments that are the basis of the legal system. See United States v. Dunnigan , 507 U.S. 87 , 97 (1993) (“To uphold the integrity of our trial system . . . the constitutionality of perjury statutes is unquestioned”). Unlike speech in other contexts, testi-mony under oath has the formality and gravity necessary to remind the witness that his or her statements will be the basis for official governmental action, action that often affects the rights and liberties of others. Sworn testimony is quite distinct from lies not spoken under oath and sim-ply intended to puff up oneself. Statutes that prohibit falsely representing that one is speaking on behalf of the Government, or that prohibit im-personating a Government officer, also protect the integrity of Government processes, quite apart from merely restricting false speech. Title 18 U. S. C. §912, for ex-ample, prohibits impersonating an officer or employee of the United States. Even if that statute may not require proving an “actual financial or property loss” resulting from the deception, the statute is itself confined to “maintain[ing] the general good repute and dignity of . . . government . . . service itself.” United States v. Lepowitch , 318 U.S. 702 , 704 (1943) (internal quotation marks omitted). The same can be said for prohibitions on the unauthorized use of the names of federal agencies such as the Federal Bureau of Investigation in a manner calculated to convey that the communication is approved, see §709, or using words such as “Federal” or “United States” in the collection of private debts in order to convey that the communication has official authorization, see §712. These examples, to the extent that they implicate fraud or speech integral to criminal conduct, are inapplicable here. As our law and tradition show, then, there are instances in which the falsity of speech bears upon whether it is protected. Some false speech may be prohibited even if analogous true speech could not be. This opinion does not imply that any of these targeted prohibitions are somehow vulnerable. But it also rejects the notion that false speech should be in a general category that is presumptively unprotected. Although the First Amendment stands against any “freewheeling authority to declare new categories of speech outside the scope of the First Amendment,” Stevens , 559 U. S., at ___ (slip op., at 9), the Court has acknowledged that perhaps there exist “some categories of speech that have been historically unprotected . . . but have not yet been specifically identified or discussed . . . in our case law.” Ibid . Before exempting a category of speech from the normal prohibition on content-based re-strictions, however, the Court must be presented with “per-suasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription,” Brown v. Entertainment Merchants Assn., 564 U. S. ___, ___ (2011) (slip op., at 4). The Government has not demonstrated that false statements generally should constitute a new category of unprotected speech on this basis. III The probable, and adverse, effect of the Act on free- dom of expression illustrates, in a fundamental way, the reasons for the Law’s distrust of content-based speech prohibitions. The Act by its plain terms applies to a false statement made at any time, in any place, to any person. It can be assumed that it would not apply to, say, a theatrical performance. See Milkovich v. Lorain Journal Co. , 497 U.S. 1 , 20 (1990) (recognizing that some statements nominally purporting to contain false facts in reality “cannot reasonably be interpreted as stating actual facts about an individual” (internal quotation marks and brackets omitted)). Still, the sweeping, quite unprecedented reach of the statute puts it in conflict with the First Amendment. Here the lie was made in a public meeting, but the statute would apply with equal force to personal, whispered conversations within a home. The statute seeks to control and suppress all false statements on this one subject in almost limitless times and settings. And it does so en-tirely without regard to whether the lie was made for the purpose of material gain. See San Francisco Arts & Athletics, Inc. v. United States Olympic Comm. , 483 U.S. 522 , 539–540 (1987) (prohibiting a nonprofit corporation from exploiting the “commercial magnetism” of the word “Olym-pic” when organizing an athletic competition (internal quotation marks omitted)). Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003). Were this law to be sustained, there could be an endless list of subjects the National Government or the States could single out. Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment, it is well established that the Government may restrict speech without affronting the First Amendment. See, e.g., Virginia Bd. of Pharmacy , 425 U. S., at 771 (noting that fraudulent speech generally falls outside the protections of the First Amendment). But the Stolen Valor Act is not so limited in its reach. Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom. IV The previous discussion suffices to show that the Act conflicts with free speech principles. But even when examined within its own narrow sphere of operation, the Act cannot survive. In assessing content-based restrictions on protected speech, the Court has not adopted a free-wheeling approach, see Stevens , 559 U. S., at ___ (slip op., at 7) (“The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits”), but rather has applied the “most exacting scrutiny.” Turner Broadcasting System, Inc. v. FCC , 512 U.S. 622 , 642 (1994). Although the objectives the Government seeks to further by the statute are not without significance, the Court must, and now does, find the Act does not satisfy exacting scrutiny. The Government is correct when it states military medals “serve the important public function of recognizing and expressing gratitude for acts of heroism and sacrifice in military service,” and also “ ‘foste[r] morale, mission accomplishment and esprit de corps’ among service members.” Brief for United States 37, 38. General George Washington observed that an award for valor would “cherish a virtuous ambition in . . . soldiers, as well as foster and encourage every species of military merit.” General Orders of George Washington Issued at Newburgh on the Hudson, 1782–1783 (Aug. 7, 1782), p. 30 (E. Boynton ed. 1883). Time has not diminished this idea. In periods of war and peace alike public recognition of valor and noble sacrifice by men and women in uniform reinforces the pride and national resolve that the military relies upon to fulfill its mission. These interests are related to the integrity of the military honors system in general, and the Congressional Medal of Honor in particular. Although millions have served with brave resolve, the Medal, which is the highest military award for valor against an enemy force, has been given just 3,476 times. Established in 1861, the Medal is reserved for those who have distinguished themselves “conspicuously by gallantry and intrepidity at the risk of his life above and beyond the call of duty.” 10 U. S. C. §§3741 (Army), 6241 (Navy and Marine Corps), 8741 (Air Force), 14 U. S. C. §491 (Coast Guard). The stories of those who earned the Medal inspire and fascinate, from Dakota Meyer who in 2009 drove five times into the midst of a Taliban ambush to save 36 lives, see Curtis, President Obama Awards Medal of Honor to Dakota Meyer, The White House Blog (Sept. 15, 2011) (all Internet materials as visited June 25, 2012, and available in Clerk of Court’s case file); to Desmond Doss who served as an army medic on Okinawa and on June 5, 1945, rescued 75 fellow soldiers, and who, after being wounded, gave up his own place on a stretcher so others could be taken to safety, see America’s Heroes 88–90 (J. Willbanks ed. 2011); to William Carney who sustained multiple gunshot wounds to the head, chest, legs, and arm, and yet carried the flag to ensure it did not touch the ground during the Union army’s assault on Fort Wagner in July 1863, id., at 44–45. The rare acts of courage the Medal celebrates led President Truman to say he would “rather have that medal round my neck than . . . be president of the United States.” Truman Gives No. 1 Army Medal to 15 Heroes, Washington Post, Oct. 13, 1945, p. 5. The Government’s interest in protecting the integrity of the Medal of Honor is beyond question. But to recite the Government’s compelling interests is not to end the matter. The First Amendment requires that the Government’s chosen restriction on the speech at issue be “actually necessary” to achieve its interest. En-tertainment Merchants Assn. , 564 U. S., at ___ (slip op., at 12). There must be a direct causal link between the restriction imposed and the injury to be prevented. See ibid . The link between the Government’s interest in protecting the integrity of the military honors system and the Act’s restriction on the false claims of liars like respondent has not been shown. Although appearing to concede that “an isolated misrepresentation by itself would not tarnish the meaning of military honors,” the Government asserts it is “common sense that false representations have the tendency to dilute the value and meaning of military awards,” Brief for United States 49, 54. It must be acknowledged that when a pretender claims the Medal to be his own, the lie might harm the Government by demeaning the high purpose of the award, diminishing the honor it confirms, and creating the appearance that the Medal is awarded more often than is true. Furthermore, the lie may offend the true holders of the Medal. From one perspective it in-sults their bravery and high principles when falsehood puts them in the unworthy company of a pretender. Yet these interests do not satisfy the Government’s heavy burden when it seeks to regulate protected speech. See United States v. Playboy Entertainment Group, Inc. , 529 U.S. 803 , 818 (2000). The Government points to no evidence to support its claim that the public’s general perception of military awards is diluted by false claims such as those made by Alvarez. Cf. Entertainment Merchants Assn., supra, at ___–___ (slip op., at 12–13) (analyzing and rejecting the findings of research psychologists demonstrating the causal link between violent video games and harmful effects on children). As one of the Government’s amici notes “there is nothing that charlatans such as Xavier Alvarez can do to stain [the Medal winners’] honor.” Brief for Veterans of Foreign Wars of the United States et al. as Amici Curiae 1. This general proposition is sound, even if true holders of the Medal might experience anger and frustration. The lack of a causal link between the Government’s stated interest and the Act is not the only way in which the Act is not actually necessary to achieve the Government’s stated interest. The Government has not shown, and cannot show, why counterspeech would not suffice to achieve its interest. The facts of this case indicate that the dynamics of free speech, of counterspeech, of refutation, can overcome the lie. Respondent lied at a public meeting. Even before the FBI began investigating him for his false statements “Alvarez was perceived as a phony,” 617 F. 3d, at 1211. Once the lie was made public, he was ridiculed online, see Brief for Respondent 3, his actions were reported in the press, see Ortega, Alvarez Again Denies Claim, Ontario, CA, Inland Valley Daily Bulletin (Sept. 27, 2007), and a fellow board member called for his resignation, see, e.g., Bigham, Water District Rep Requests Alvarez Resign in Wake of False Medal Claim, San Bernardino Cty., CA, The Sun (May 21, 2008). There is good reason to believe that a similar fate would befall other false claimants. See Brief for Reporters Committee for Freedom of the Press et al. as Amici Curiae 30–33 (listing numerous examples of public exposure of false claimants). Indeed, the outrage and contempt expressed for respondent’s lies can serve to reawaken and reinforce the public’s respect for the Medal, its recipients, and its high purpose. The acclaim that recipients of the Congressional Medal of Honor receive also casts doubt on the proposition that the public will be misled by the claims of charlatans or become cynical of those whose heroic deeds earned them the Medal by right. See, e.g., Well Done, Washington Post, Feb. 5, 1943, p. 8 (reporting on Pres-ident Roosevelt’s awarding the Congressional Medal of Honor to Maj. Gen. Alexander Vandegrift); Devroy, Medal of Honor Given to 2 Killed in Somalia, Washington Post, May 24, 1994, p. A6 (reporting on President Clinton’s awarding the Congressional Medal of Honor to two special forces soldiers killed during operations in Somalia). The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth. See Whitney v. California , 274 U.S. 357 , 377 (1927) (Brandeis, J., concurring) (“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be ap-plied is more speech, not enforced silence”). The theory of our Constitution is “that the best test of truth is the power of the thought to get itself accepted in the competition of the market,” Abrams v. United States , 250 U.S. 616 , 630 (1919) (Holmes, J., dissenting). The First Amendment itself ensures the right to respond to speech we do not like, and for good reason. Freedom of speech and thought flows not from the beneficence of the state but from the inalienable rights of the person. And suppression of speech by the government can make exposure of falsity more difficult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates. Expressing its concern that counterspeech is insuf- ficient, the Government responds that because “some military records have been lost . . . some claims [are] un-verifiable,” Brief for United States 50. This proves little, however; for without verifiable records, successful criminal prosecution under the Act would be more difficult in any event. So, in cases where public refutation will not serve the Government’s interest, the Act will not either. In addition, the Government claims that “many [false claims] will remain unchallenged.” Id., at 55. The Government provides no support for the contention. And in any event, in order to show that public refutation is not an adequate alternative, the Government must demonstrate that unchallenged claims undermine the public’s perception of the military and the integrity of its awards system. This showing has not been made. It is a fair assumption that any true holders of the Medal who had heard of Alvarez’s false claims would have been fully vindicated by the community’s expression of outrage, showing as it did the Nation’s high regard for the Medal. The same can be said for the Government’s interest. The American people do not need the assistance of a government prosecution to express their high regard for the special place that military heroes hold in our tradi-tion. Only a weak society needs government protection or intervention before it pursues its resolve to preserve the truth. Truth needs neither handcuffs nor a badge for its vindication. In addition, when the Government seeks to regulate protected speech, the restriction must be the “least restrictive means among available, effective alternatives.” Ashcroft , 542 U. S., at 666. There is, however, at least one less speech-restrictive means by which the Government could likely protect the integrity of the military awards system. A Government-created database could list Congressional Medal of Honor winners. Were a database accessible through the Internet, it would be easy to verify and expose false claims. It appears some private individuals have already created databases similar to this, see Brief for Respondent 25, and at least one data- base of past winners is online and fully searchable, see Congressional Medal of Honor Society, Full Archive, http://www.cmohs.org/recipient-archive.php. The Solicitor General responds that although Congress and the Department of Defense investigated the feasibility of establishing a database in 2008, the Government “concluded that such a database would be impracticable and insuf-ficiently comprehensive.” Brief for United States 55. Without more explanation, it is difficult to assess the Gov-ernment’s claim, especially when at least one database of Congressional Medal of Honor winners already exists. The Government may have responses to some of these criticisms, but there has been no clear showing of the necessity of the statute, the necessity required by exacting scrutiny. *  *  * The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace. Though few might find respondent’s statements anything but contemptible, his right to make those statements is protected by the Constitution’s guarantee of freedom of speech and expression. The Stolen Valor Act infringes upon speech protected by the First Amendment. The judgment of the Court of Appeals is affirmed. It is so ordered. SUPREME COURT OF THE UNITED STATES _________________ No. 11–210 _________________ UNITED STATES, PETITIONER v. XAVIER ALVAREZ on writ of certiorari to the united states court of appeals for the ninth circuit [June 28, 2012] Justice Breyer, with whom Justice Kagan joins, con- curring in the judgment. I agree with the plurality that the Stolen Valor Act of 2005 violates the First Amendment. But I do not rest my conclusion upon a strict categorical analysis. Ante, at 4–10. Rather, I base that conclusion upon the fact that the statute works First Amendment harm, while the Government can achieve its legitimate objectives in less restrictive ways. I In determining whether a statute violates the First Amendment, this Court has often found it appropriate to examine the fit between statutory ends and means. In doing so, it has examined speech-related harms, justifications, and potential alternatives. In particular, it has taken account of the seriousness of the speech-related harm the provision will likely cause, the nature and importance of the provision’s countervailing objectives, the extent to which the provision will tend to achieve those objectives, and whether there are other, less restrictive ways of doing so. Ultimately the Court has had to determine whether the statute works speech-related harm that is out of proportion to its justifications. Sometimes the Court has referred to this approach as “intermediate scrutiny,” sometimes as “proportionality” review, sometimes as an examination of “fit,” and sometimes it has avoided the application of any label at all. See, e.g., Turner Broadcasting System, Inc. v. FCC , 512 U.S. 622 , 641–652 (1994) (intermediate scrutiny); Randall v. Sorrell , 548 U.S. 230 , 249 (2006) (plurality opinion) (proportionality); Board of Trustees of State Univ. of N. Y. v. Fox , 492 U.S. 469 , 480 (1989) (requiring a “fit” be- tween means and ends that is “ ‘in proportion to the in- terest served’ ”); In re R. M. J. , 455 U.S. 191 , 203 (1982) (“[I]nterference with speech must be in proportion to the [substantial governmental] interest served”); Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty. , 391 U.S. 563 , 568 (1968). Regardless of the label, some such approach is necessary if the First Amendment is to offer proper protection in the many instances in which a statute adversely affects constitutionally protected interests but warrants neither near-automatic condemnation (as “strict scrutiny” implies) nor near-automatic approval (as is implicit in “rational basis” review). See, e.g., Turner Broadcasting System, Inc. , supra , at 641–652 (“must-carry” cable regulations); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y. , 447 U.S. 557 , 566 (1980) (nonmisleading commercial speech); Burdick v. Takushi , 504 U.S. 428 , 433–434 (1992) (election regulation); Pickering , supra, at 568 (government employee speech); United States v. O’Brien , 391 U.S. 367 , 377 (1968) (application of generally appli- cable laws to expressive conduct). I have used the term “proportionality” to describe this approach. Thompson v. Western States Medical Center , 535 U.S. 357 , 388 (2002) (dissenting opinion); see also Bartnicki v. Vopper , 532 U.S. 514 , 536 (2001) (concurring opinion); Nixon v. Shrink Missouri Government PAC , 528 U.S. 377 , 402–403 (2000) (concurring opinion). But in this case, the Court’s term “intermediate scrutiny” describes what I think we should do. As the dissent points out, “there are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable dan- ger of suppressing truthful speech.” Post, at 14. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like raise such concerns, and in many contexts have called for strict scrutiny. But this case does not involve such a law. The dangers of suppressing valuable ideas are lower where, as here, the regulations concern false statements about easily verifiable facts that do not concern such subject matter. Such false factual statements are less likely than are true factual statements to make a valuable contribution to the marketplace of ideas. And the government often has good reasons to prohibit such false speech. See infra, at 5–7 (listing examples of statutes and doctrines regulating false factual speech). But its regulation can nonetheless threaten speech-related harms. Those circumstances lead me to apply what the Court has termed “intermediate scrutiny” here. II A The Stolen Valor Act makes it a crime “falsely” to “represen[t]” oneself “to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.” 18 U. S. C. §704(b). I would read the statute favorably to the Government as criminalizing only false factual statements made with knowledge of their fal- sity and with the intent that they be taken as true. See Staples v. United States , 511 U.S. 600 , 605 (1994) (courts construe statutes “in light of the background rules of the common law, . . . in which the requirement of some mens rea for a crime is firmly embedded”); cf. New York Times Co. v. Sullivan , 376 U.S. 254 , 279–280 (1964) ( First Amendment allows a public official to recover for defamation only upon a showing of “ ‘actual malice’ ”). As so interpreted the statute covers only lies. But although this interpretation diminishes the extent to which the statute endangers First Amendment values, it does not eliminate the threat. I must concede, as the Government points out, that this Court has frequently said or implied that false factual statements enjoy little First Amendment protection. See, e.g., BE&K Constr. Co. v. NLRB , 536 U.S. 516 , 531 (2002) (“[F]alse statements may be unprotected for their own sake”); Hustler Magazine, Inc. v. Falwell , 485 U.S. 46 , 52 (1988) (“False statements of fact are particularly valueless”); Gertz v. Robert Welch, Inc. , 418 U.S. 323 , 340 (1974) (“[T]he erroneous statement of fact is not worthy of constitutional protection”). But these judicial statements cannot be read to mean “no protection at all.” False factual statements can serve useful human objectives, for example: in social contexts, where they may prevent embarrassment, protect privacy, shield a person from prejudice, provide the sick with comfort, or preserve a child’s innocence; in public contexts, where they may stop a panic or otherwise preserve calm in the face of danger; and even in technical, philosophical, and scientific contexts, where (as Socrates’ methods suggest) examination of a false statement (even if made deliberately to mislead) can promote a form of thought that ultimately helps realize the truth. See, e.g., 638 F.3d 666, 673–675 (CA9 2011) (Kozinski, J., concurring in denial of rehearing en banc) (providing numerous examples); S. Bok, Lying: Moral Choice in Public and Private Life (1999) (same); New York Times Co. , supra, at 279, n. 19 (“Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error’ ” (quoting J. Mill, On Liberty 15 (Blackwell ed. 1947))). Moreover, as the Court has often said, the threat of criminal prosecution for making a false statement can inhibit the speaker from making true statements, thereby “chilling” a kind of speech that lies at the First Amendment’s heart. See, e.g., Gertz , supra, at 340–341. Hence, the Court emphasizes mens rea requirements that provide “breathing room” for more valuable speech by reducing an honest speaker’s fear that he may accidentally incur liability for speaking. Further, the pervasiveness of false statements, made for better or for worse motives, made thoughtlessly or de- liberately, made with or without accompanying harm, provides a weapon to a government broadly empowered to prosecute falsity without more. And those who are unpopular may fear that the government will use that weapon selectively, say by prosecuting a pacifist who sup- ports his cause by (falsely) claiming to have been a war hero, while ignoring members of other political groups who might make similar false claims. I also must concede that many statutes and common-law doctrines make the utterance of certain kinds of false statements unlawful. Those prohibitions, however, tend to be narrower than the statute before us, in that they limit the scope of their application, sometimes by requiring proof of specific harm to identifiable victims; sometimes by specifying that the lies be made in contexts in which a tangible harm to others is especially likely to occur; and sometimes by limiting the prohibited lies to those that are particularly likely to produce harm. Fraud statutes, for example, typically require proof of a misrepresentation that is material, upon which the victim relied, and which caused actual injury. See Restatement (Second) of Torts §525 (1976). Defamation statutes focus upon statements of a kind that harm the reputation of another or deter third parties from association or dealing with the victim. See id. , §§558, 559. Torts involving the intentional infliction of emotional distress (like torts involving placing a victim in a false light) concern falsehoods that tend to cause harm to a specific victim of an emotional-, dignitary-, or privacy-related kind. See id. , §652E. Perjury statutes prohibit a particular set of false statements—those made under oath—while requiring a showing of materiality. See, e.g., 18 U. S. C. §1621. Statutes forbidding lying to a government official (not under oath) are typically limited to circumstances where a lie is likely to work particular and specific harm by interfering with the functioning of a government department, and those statutes also require a showing of materiality. See, e.g., §1001. Statutes prohibiting false claims of terrorist attacks, or other lies about the commission of crimes or catastrophes, require proof that substantial public harm be directly foreseeable, or, if not, involve false statements that are very likely to bring about that harm. See, e.g., 47 CFR §73.1217 (2011) (requiring showing of foreseeability and actual substantial harm); 18 U. S. C. §1038(a)(1) (prohibiting knowing false statements claiming that terrorist attacks have taken, are taking, or will take, place). Statutes forbidding impersonation of a public official typically focus on acts of impersonation, not mere speech, and may require a showing that, for example, someone was deceived into following a “course [of action] he would not have pursued but for the deceitful conduct.” United States v. Lepowitch , 318 U.S. 702 , 704 (1943); see, e.g., §912 (liability attaches to “[w]hoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States . . . and acts as such ” (emphasis added)). Statutes prohibiting trademark infringement present, perhaps, the closest analogy to the present statute. Trademarks identify the source of a good; and infringement causes harm by causing confusion among potential customers (about the source) and thereby diluting the value of the mark to its owner, to consumers, and to the econ- omy. Similarly, a false claim of possession of a medal or other honor creates confusion about who is entitled to wear it, thus diluting its value to those who have earned it, to their families, and to their country. But trademark statutes are focused upon commercial and promotional activities that are likely to dilute the value of a mark. Indeed, they typically require a showing of likely confusion, a showing that tends to assure that the feared harm will in fact take place. See 15 U. S. C. §1114(1)(a); KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc. , 543 U.S. 111 , 117 (2004); see also San Francisco Arts & Athletics, Inc. v. United States Olympic Comm. , 483 U.S. 522 , 539–540, 548 (1987) (upholding statute giving the United States Olympic Committee the right to prohibit certain commercial and promotional uses of the word “Olympic”). While this list is not exhaustive, it is sufficient to show that few statutes, if any, simply prohibit without limitation the telling of a lie, even a lie about one particular matter. Instead, in virtually all these instances limitations of context, requirements of proof of injury, and the like, narrow the statute to a subset of lies where specific harm is more likely to occur. The limitations help to make certain that the statute does not allow its threat of liability or criminal punishment to roam at large, discouraging or forbidding the telling of the lie in contexts where harm is unlikely or the need for the prohibition is small. The statute before us lacks any such limiting features. It may be construed to prohibit only knowing and intentional acts of deception about readily verifiable facts within the personal knowledge of the speaker, thus reducing the risk that valuable speech is chilled. Supra, at 3–4. But it still ranges very broadly. And that breadth means that it creates a significant risk of First Amendment harm. As written, it applies in family, social, or other private contexts, where lies will often cause little harm. It also applies in political contexts, where although such lies are more likely to cause harm, the risk of censorious se- lectivity by prosecutors is also high. Further, given the potential haziness of individual memory along with the large number of military awards covered (ranging from medals for rifle marksmanship to the Congressional Medal of Honor), there remains a risk of chilling that is not completely eliminated by mens rea requirements; a speaker might still be worried about being prosecuted for a careless false statement, even if he does not have the intent required to render him liable. And so the prohibition may be applied where it should not be applied, for example, to bar stool braggadocio or, in the political arena, subtly but selectively to speakers that the Government does not like. These considerations lead me to believe that the statute as written risks significant First Amendment harm. B Like both the plurality and the dissent, I believe the statute nonetheless has substantial justification. It seeks to protect the interests of those who have sacrificed their health and life for their country. The statute serves this interest by seeking to preserve intact the country’s recognition of that sacrifice in the form of military honors. To permit those who have not earned those honors to claim otherwise dilutes the value of the awards. Indeed, the Nation cannot fully honor those who have sacrificed so much for their country’s honor unless those who claim to have received its military awards tell the truth. Thus, the statute risks harming protected interests but only in order to achieve a substantial countervailing objective. C We must therefore ask whether it is possible substantially to achieve the Government’s objective in less burdensome ways. In my view, the answer to this question is “yes.” Some potential First Amendment threats can be alleviated by interpreting the statute to require knowledge of falsity, etc. Supra, at 3–4. But other First Amendment risks, primarily risks flowing from breadth of coverage, remain. Supra, at 4–5, 7–8. As is indicated by the limitations on the scope of the many other kinds of statutes regulating false factual speech, supra, at 5–7, it should be possible significantly to diminish or eliminate these re- maining risks by enacting a similar but more finely tailored statute. For example, not all military awards are alike. Congress might determine that some warrant greater protection than others. And a more finely tailored statute might, as other kinds of statutes prohibiting false factual statements have done, insist upon a showing that the false statement caused specific harm or at least was material, or focus its coverage on lies most likely to be harmful or on contexts where such lies are most likely to cause harm. I recognize that in some contexts, particularly political contexts, such a narrowing will not always be easy to achieve. In the political arena a false statement is more likely to make a behavioral difference (say, by leading the listeners to vote for the speaker) but at the same time criminal prosecution is particularly dangerous (say, by radically changing a potential election result) and consequently can more easily result in censorship of speakers and their ideas. Thus, the statute may have to be significantly narrowed in its applications. Some lower courts have upheld the constitutionality of roughly comparable but narrowly tailored statutes in political contexts. See, e.g., United We Stand America, Inc. v. United We Stand, America New York, Inc. , 128 F.3d 86 , 93 (CA2 1997) (upholding against First Amendment challenge application of Lanham Act to a political organization); Treasure of the Committee to Elect Gerald D. Lostracco v. Fox , 150 Mich. App. 617, 389 N.W.2d 446 (1986) (upholding under First Amendment statute prohibiting campaign material falsely claiming that one is an incumbent). Without expressing any view on the validity of those cases, I would also note, like the plurality, that in this area more accurate information will normally counteract the lie. And an accurate, publicly available register of military awards, easily obtainable by political opponents, may well adequately protect the integrity of an award against those who would falsely claim to have earned it. See ante, at 17–18. And so it is likely that a more narrowly tailored statute combined with such information-disseminating devices will effectively serve Congress’ end. The Government has provided no convincing explanation as to why a more finely tailored statute would not work. In my own view, such a statute could significantly reduce the threat of First Amendment harm while permitting the statute to achieve its important protective objective. That being so, I find the statute as presently drafted works disproportionate constitutional harm. It consequently fails intermediate scrutiny, and so violates the First Amendment. For these reasons, I concur in the Court’s judgment. SUPREME COURT OF THE UNITED STATES _________________ No. 11–210 _________________ UNITED STATES, PETITIONER v. XAVIER ALVAREZ on writ of certiorari to the united states court of appeals for the ninth circuit [June 28, 2012] Justice Alito, with whom Justice Scalia and Jus- tice Thomas join, dissenting. Only the bravest of the brave are awarded the Congressional Medal of Honor, but the Court today holds that every American has a constitutional right to claim to have received this singular award. The Court strikes down the Stolen Valor Act of 2005, which was enacted to stem an epidemic of false claims about military decorations. These lies, Congress reasonably concluded, were undermining our country’s system of military honors and inflicting real harm on actual medal recipients and their families. Building on earlier efforts to protect the military awards system, Congress responded to this problem by crafting a narrow statute that presents no threat to the freedom of speech. The statute reaches only knowingly false statements about hard facts directly within a speaker’s per- sonal knowledge. These lies have no value in and of themselves, and proscribing them does not chill any valuable speech. By holding that the First Amendment nevertheless shields these lies, the Court breaks sharply from a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest. I would adhere to that principle and would thus uphold the constitutionality of this valuable law. I The Stolen Valor Act makes it a misdemeanor to “falsely represen[t]” oneself as having been awarded a medal, decoration, or badge for service in the Armed Forces of the United States. 18 U. S. C. §704(b). Properly construed, this statute is limited in five significant respects. First, the Act applies to only a narrow category of false representations about objective facts that can almost always be proved or disproved with near certainty. Second, the Act concerns facts that are squarely within the speaker’s personal knowledge. Third, as the Government maintains, see Brief for United States 15–17, and both the plurality, see ante, at 7, and the concurrence, see ante, at 3 (Breyer, J., concurring in judgment), seemingly accept, a conviction under the Act requires proof beyond a reasonable doubt that the speaker actually knew that the representation was false.[ 1 ] Fourth, the Act applies only to statements that could reasonably be interpreted as communicating actual facts; it does not reach dramatic performances, satire, parody, hyperbole, or the like.[ 2 ] Finally, the Act is strictly viewpoint neutral. The false statements proscribed by the Act are highly unlikely to be tied to any particular political or ideological message. In the rare cases where that is not so, the Act applies equally to all false statements, whether they tend to disparage or commend the Government, the military, or the system of mil- itary honors. The Stolen Valor Act follows a long tradition of efforts to protect our country’s system of military honors. When George Washington, as the commander of the Continental Army, created the very first “honorary badges of distinction” for service in our country’s military, he established a rigorous system to ensure that these awards would be received and worn by only the truly deserving. See General Orders of George Washington Issued at Newburgh on the Hudson, 1782–1783, p. 35 (E. Boynton ed. 1883) (reprint 1973) (requiring the submission of “incontest- ible proof” of “singularly meritorious action” to the Commander in Chief). Washington warned that anyone with the “insolence to assume” a badge that had not actually been earned would be “severely punished.” Id. , at 34. Building on this tradition, Congress long ago made it a federal offense for anyone to wear, manufacture, or sell certain military decorations without authorization. See Act of Feb. 24, 1923, ch. 110, 42Stat. 1286 (codified as amended at 18 U. S. C. §704(a)). Although this Court has never opined on the constitutionality of that particular provision, we have said that §702, which makes it a crime to wear a United States military uniform without authorization, is “a valid statute on its face.” Schacht v. United States , 398 U.S. 58 , 61 (1970). Congress passed the Stolen Valor Act in response to a proliferation of false claims concerning the receipt of military awards. For example, in a single year, more than 600 Virginia residents falsely claimed to have won the Medal of Honor.[ 3 ] An investigation of the 333 people listed in the online edition of Who’s Who as having received a top military award revealed that fully a third of the claims could not be substantiated.[ 4 ] When the Library of Congress compiled oral histories for its Veterans History Project, 24 of the 49 individuals who identified themselves as Medal of Honor recipients had not actually received that award.[ 5 ] The same was true of 32 individuals who claimed to have been awarded the Distinguished Service Cross and 14 who claimed to have won the Navy Cross.[ 6 ] Notorious cases brought to Congress’ attention included the case of a judge who falsely claimed to have been awarded two Medals of Honor and displayed counterfeit medals in his courtroom;[ 7 ] a television network’s military consultant who falsely claimed that he had received the Silver Star;[ 8 ] and a former judge advocate in the Marine Corps who lied about receiving the Bronze Star and a Purple Heart.[ 9 ] As Congress recognized, the lies proscribed by the Stolen Valor Act inflict substantial harm. In many instances, the harm is tangible in nature: Individuals often falsely represent themselves as award recipients in order to obtain financial or other material rewards, such as lucrative contracts and government benefits.[ 10 ] An investigation of false claims in a single region of the United States, for example, revealed that 12 men had defrauded the Department of Veterans Affairs out of more than $1.4 million in veteran’s benefits.[ 11 ] In other cases, the harm is less tangible, but nonetheless significant. The lies proscribed by the Stolen Valor Act tend to debase the distinctive honor of military awards. See Stolen Valor Act of 2005, §2, 120Stat. 3266, note following 18 U. S. C. §704 (finding that “[f]raudulent claims surrounding the receipt of [military decorations and medals] damage the reputation and meaning of such decorations and medals”). And legitimate award recipients and their families have expressed the harm they endure when an imposter takes credit for he- roic actions that he never performed. One Medal of Honor recipient described the feeling as a “ ‘slap in the face of veterans who have paid the price and earned their medals.’ ”[ 12 ] It is well recognized in trademark law that the proliferation of cheap imitations of luxury goods blurs the “ ‘signal’ given out by the purchasers of the originals.” Landes & Posner, Trademark Law: An Economic Perspective, 30 J. Law & Econ. 265, 308 (1987). In much the same way, the proliferation of false claims about military awards blurs the signal given out by the actual awards by making them seem more common than they really are, and this diluting effect harms the military by hampering its efforts to foster morale and esprit de corps. Surely it was reasonable for Congress to conclude that the goal of preserving the in- tegrity of our country’s top military honors is at least as worthy as that of protecting the prestige associated with fancy watches and designer handbags. Cf. San Francisco Arts & Athletics, Inc. v. United States Olympic Comm. , 483 U.S. 522 , 539–541 (1987) (rejecting First Amendment challenge to law prohibiting certain unauthorized uses of the word “Olympic” and recognizing that such uses harm the U. S. Olympic Committee by “lessening the distinctiveness” of the term). Both the plurality and Justice Breyer argue that Congress could have preserved the integrity of military honors by means other than a criminal prohibition, but Congress had ample reason to believe that alternative approaches would not be adequate. The chief alternative that is recommended is the compilation and release of a comprehensive list or database of actual medal recipients. If the public could readily access such a resource, it is argued, imposters would be quickly and easily exposed, and the proliferation of lies about military honors would come to an end. This remedy, unfortunately, will not work. The Department of Defense has explained that the most that it can do is to create a database of recipients of certain top military honors awarded since 2001. See Office of Undersecretary of Defense, Report to the Senate and House Armed Services Committees on a Searchable Military Valor Decorations Database 4–5 (2009).[ 13 ] Because a sufficiently comprehensive database is not practicable, lies about military awards cannot be remedied by what the plurality calls “counterspeech.” Ante, at 15. Without the requisite database, many efforts to refute false claims may be thwarted, and some legitimate award recipients may be erroneously attacked. In addition, a steady stream of stories in the media about the exposure of imposters would tend to increase skepticism among members of the public about the entire awards system. This would only exacerbate the harm that the Stolen Valor Act is meant to prevent. The plurality and the concurrence also suggest that Congress could protect the system of military honors by enacting a narrower statute. The plurality recommends a law that would apply only to lies that are intended to “secure moneys or other valuable considerations.” Ante , at 11. In a similar vein, the concurrence comments that “a more finely tailored statute might . . . insist upon a showing that the false statement caused specific harm.” Ante, at 9 (opinion of Breyer, J.). But much damage is caused, both to real award recipients and to the system of mili- tary honors, by false statements that are not linked to any financial or other tangible reward. Unless even a small financial loss—say, a dollar given to a homeless man falsely claiming to be a decorated veteran—is more important in the eyes of the First Amendment than the damage caused to the very integrity of the military awards system, there is no basis for distinguishing between the Stolen Valor Act and the alternative statutes that the plurality and concurrence appear willing to sustain. Justice Breyer also proposes narrowing the statute so that it covers a shorter list of military awards, ante, at 9 (opinion concurring in judgment), but he does not provide a hint about where he thinks the line must be drawn. Perhaps he expects Congress to keep trying until it eventually passes a law that draws the line in just the right place. II A Time and again, this Court has recognized that as a general matter false factual statements possess no intrinsic First Amendment value. See Illinois ex rel. Madigan v. Telemarketing Associates, Inc. , 538 U.S. 600 , 612 (2003) (“Like other forms of public deception, fraudulent charitable solicitation is unprotected speech”); BE&K Constr. Co. v. NLRB , 536 U.S. 516 , 531 (2002) (“[F]alse statements may be unprotected for their own sake”); Hustler Magazine, Inc. v. Falwell , 485 U.S. 46 , 52 (1988) (“False statements of fact are particularly valueless; they interfere with the truth-seeking function of the marketplace of ideas, and they cause damage to an individual’s reputation that cannot easily be repaired by counterspeech, however persuasive or effective”); Keeton v. Hustler Magazine, Inc. , 465 U.S. 770 , 776 (1984) (“There is ‘no constitutional value in false statements of fact’ ” (quoting Gertz v. Robert Welch, Inc. , 418 U.S. 323 , 340 (1974))); Bill John- son’s Restaurants, Inc. v. NLRB , 461 U.S. 731 , 743 (1983) (“[F]alse statements are not immunized by the First Amendment right to freedom of speech”); Brown v. Hartlage , 456 U.S. 45 , 60 (1982) (“Of course, demonstrable falsehoods are not protected by the First Amendment in the same manner as truthful statements”); Herbert v. Lando , 441 U.S. 153 , 171 (1979) (“Spreading false information in and of itself carries no First Amendment credentials”); Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. , 425 U.S. 748 , 771 (1976) (“Untruthful speech, commercial or otherwise, has never been protected for its own sake”); Gertz , supra, at 340 (“[T]he erroneous statement of fact is not worthy of constitutional protection”); Time, Inc. v. Hill , 385 U.S. 374 , 389 (1967) (“[T]he constitutional guarantees [of the First Amendment] can tolerate sanctions against calculated falsehood without significant impairment of their essential function”); Garrison v. Louisiana , 379 U.S. 64 , 75 (1964) (“[T]he knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection”). Consistent with this recognition, many kinds of false factual statements have long been proscribed without “ ‘rais[ing] any Constitutional problem.’ ” United States v. Stevens , 559 U. S. ___, ___ (2010) (slip op., at 6) (quoting Chaplinsky v. New Hampshire , 315 U.S. 568 , 571–572 (1942)). Laws prohibiting fraud, perjury, and defamation, for example, were in existence when the First Amendment was adopted, and their constitutionality is now beyond question. See, e.g., Donaldson v. Read Magazine, Inc. , 333 U.S. 178 , 190 (1948) (explaining that the government’s power “to protect people against fraud” has “always been recognized in this country and is firmly established”); United States v. Dunnigan , 507 U.S. 87 , 97 (1993) (observing that “the constitutionality of perjury statutes is unquestioned”); Beauharnais v. Illinois , 343 U.S. 250 , 256 (1952) (noting that the “prevention and punishment” of libel “have never been thought to raise any Constitutional problem”). We have also described as falling outside the First Amendment’s protective shield certain false factual statements that were neither illegal nor tortious at the time of the Amendment’s adoption. The right to freedom of speech has been held to permit recovery for the intentional infliction of emotional distress by means of a false statement, see Falwell , supra, at 56, even though that tort did not enter our law until the late 19th century, see W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §12, p. 60, and n. 47. (5th ed. 1984) (hereinafter Prosser and Keeton). And in Hill , supra, at 390, the Court concluded that the free speech right allows recovery for the even more modern tort of false-light invasion of privacy, see Prosser and Keeton §117, at 863. In line with these holdings, it has long been assumed that the First Amendment is not offended by prominent criminal statutes with no close common-law analog. The most well known of these is probably 18 U. S. C. §1001, which makes it a crime to “knowingly and willfully” make any “materially false, fictitious, or fraudulent statement or representation” in “any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.” Unlike perjury, §1001 is not limited to statements made under oath or before an official government tribunal. Nor does it require any showing of “pecuniary or property loss to the government.” United States v. Gilliland , 312 U.S. 86 , 93 (1941). Instead, the statute is based on the need to protect “agencies from the perversion which might result from the deceptive practices described.” Ibid. (emphasis added). Still other statutes make it a crime to falsely represent that one is speaking on behalf of, or with the approval of, the Federal Government. See, e.g., 18 U. S. C. §912 (making it a crime to falsely impersonate a federal officer); §709 (making it a crime to knowingly use, without authorization, the names of enumerated federal agencies, such as “Federal Bureau of Investigation,” in a manner reasonably calculated to convey the impression that a communication is approved or authorized by the agency). We have recognized that §912, like §1001, does not require a showing of pecuniary or property loss and that its purpose is to “ ‘maintain the general good repute and dignity’ ” of Government service. United States v. Lepowitch , 318 U.S. 702 , 704 (1943) (quoting United States v. Barnow , 239 U.S. 74 , 80 (1915)). All told, there are more than 100 federal criminal statutes that punish false statements made in connection with areas of federal agency concern. See United States v. Wells , 519 U.S. 482 , 505–507, and nn. 8–10 (1997) (Stevens, J., dissenting) (citing “at least 100 federal false statement statutes” in the United States Code). These examples amply demonstrate that false statements of fact merit no First Amendment protection in their own right.[ 14 ] It is true, as Justice Breyer notes, that many in our society either approve or condone certain discrete categories of false statements, including false statements made to prevent harm to innocent victims and so-called “white lies.” See ante , at 4. But respondent’s false claim to have received the Medal of Honor did not fall into any of these categories. His lie did not “prevent embarrassment, protect privacy, shield a person from prejudice, provide the sick with comfort, or preserve a child’s innocence.” Ibid . Nor did his lie “stop a panic or otherwise preserve calm in the face of danger” or further philosophical or scientific debate. Ibid. Respondent’s claim, like all those covered by the Stolen Valor Act, served no valid purpose. Respondent and others who join him in attacking the Stolen Valor Act take a different view. Respondent’s brief features a veritable paean to lying. According to respondent, his lie about the Medal of Honor was nothing out of the ordinary for 21st-century Americans. “Everyone lies,” he says. Brief for Respondent 10. “We lie all the time.” Ibid. “[H]uman beings are constantly forced to choose the persona we present to the world, and our choices nearly always involve intentional omissions and misrepresentations, if not outright deception.” Id., at 39. An academic amicus tells us that the First Amendment protects the right to construct “self-aggrandizing fabrications such as having been awarded a military decoration.” Brief for Jonathan D. Varat as Amicus Curiae 5. This radical interpretation of the First Amendment is not supported by any precedent of this Court. The lies covered by the Stolen Valor Act have no intrinsic value and thus merit no First Amendment protection unless their prohibition would chill other expression that falls within the Amendment’s scope. I now turn to that question. B While we have repeatedly endorsed the principle that false statements of fact do not merit First Amendment protection for their own sake, we have recognized that it is sometimes necessary to “exten[d] a measure of strategic protection” to these statements in order to ensure sufficient “ ‘breathing space’ ” for protected speech. Gertz , 418 U. S., at 342 (quoting NAACP v. Button , 371 U.S. 415 , 433 (1963)). Thus, in order to prevent the chilling of truthful speech on matters of public concern, we have held that liability for the defamation of a public official or figure requires proof that defamatory statements were made with knowledge or reckless disregard of their falsity. See New York Times Co. v. Sullivan , 376 U.S. 254 , 279–280 (1964) (civil liability); Garrison , 379 U. S., at 74–75 (criminal liability). This same requirement applies when public officials and figures seek to recover for the tort of intentional infliction of emotional distress. See Falwell , 485 U. S., at 55–56. And we have imposed “[e]xacting proof requirements” in other contexts as well when necessary to ensure that truthful speech is not chilled. Madigan , 538 U. S., at 620 (complainant in a fraud action must show that the defendant made a knowingly false statement of material fact with the intent to mislead the listener and that he succeeded in doing so); see also BE&K Constr. , 536 U. S., at 531 (regulation of baseless lawsuits limited to those that are both “objectively baseless and subjectively motivated by an unlawful purpose”); Hartlage , 456 U. S., at 61 (sustaining as-applied First Amendment challenge to law prohibiting certain “factual misstatements in the course of political debate” where there had been no showing that the disputed statement was made “other than in good faith and without knowledge of its falsity, or . . . with reckless disregard as to whether it was false or not”). All of these proof requirements inevitably have the effect of bringing some false factual statements within the protection of the First Amendment, but this is justified in order to prevent the chilling of other, valuable speech. These examples by no means exhaust the circumstances in which false factual statements enjoy a degree of instrumental constitutional protection. On the contrary, there are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern would present such a threat. The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth. Even where there is a wide scholarly consensus concerning a particular matter, the truth is served by allowing that consensus to be challenged without fear of reprisal. Today’s accepted wisdom sometimes turns out to be mistaken. And in these contexts, “[e]ven a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error.’ ” Sullivan , supra , at 279, n. 19 (quoting J. Mill, On Liberty 15 (R. McCallum ed. 1947)). Allowing the state to proscribe false statements in these areas also opens the door for the state to use its power for political ends. Statements about history illustrate this point. If some false statements about historical events may be banned, how certain must it be that a statement is false before the ban may be upheld? And who should make that calculation? While our cases prohibiting viewpoint discrimination would fetter the state’s power to some degree, see R. A. V. v. St. Paul , 505 U.S. 377 , 384–390 (1992) (explaining that the First Amendment does not permit the government to engage in viewpoint discrimination under the guise of regulating unprotected speech), the potential for abuse of power in these areas is simply too great. In stark contrast to hypothetical laws prohibiting false statements about history, science, and similar matters, the Stolen Valor Act presents no risk at all that valuable speech will be suppressed. The speech punished by the Act is not only verifiably false and entirely lacking in intrinsic value, but it also fails to serve any instrumen- tal purpose that the First Amendment might protect. Tell- ingly, when asked at oral argument what truthful speech the Stolen Valor Act might chill, even respondent’s counsel conceded that the answer is none. Tr. of Oral Arg. 36. C Neither of the two opinions endorsed by Justices in the majority claims that the false statements covered by the Stolen Valor Act possess either intrinsic or instrumental value. Instead, those opinions appear to be based on the distinct concern that the Act suffers from overbreadth. See ante, at 10 (plurality opinion) (the Act applies to “personal, whispered conversations within a home”); ante, at 8 (Breyer, J., concurring in judgment) (the Act “applies in family, social, or other private contexts” and in “political contexts”). But to strike down a statute on the basis that it is overbroad, it is necessary to show that the statute’s “overbreadth [is] substantial , not only in an absolute sense, but also relative to [its] plainly legitimate sweep.” United States v. Williams , 553 U.S. 285 , 292 (2008); see also ibid. (noting that this requirement has been “vigorously enforced”). The plurality and the concurrence do not even attempt to make this showing. The plurality additionally worries that a decision sustaining the Stolen Valor Act might prompt Congress and the state legislatures to enact laws criminalizing lies about “an endless list of subjects.” Ante, at 11. The plurality apparently fears that we will see laws making it a crime to lie about civilian awards such as college degrees or certificates of achievement in the arts and sports. This concern is likely unfounded. With very good reason, military honors have traditionally been regarded as quite different from civilian awards. Nearly a century ago, Congress made it a crime to wear a military medal without authorization; we have no comparable tradition regarding such things as Super Bowl rings, Oscars, or Phi Beta Kappa keys. In any event, if the plurality’s concern is not entirely fanciful, it falls outside the purview of the First Amendment. The problem that the plurality foresees—that legislative bodies will enact unnecessary and overly intrusive criminal laws—applies regardless of whether the laws in question involve speech or nonexpressive conduct. If there is a problem with, let us say, a law making it a criminal offense to falsely claim to have been a high school valedictorian, the problem is not the suppression of speech but the misuse of the criminal law, which should be reserved for conduct that inflicts or threatens truly serious societal harm. The objection to this hypothetical law would be the same as the objection to a law making it a crime to eat potato chips during the graduation ceremony at which the high school valedictorian is recognized. The safeguard against such laws is democracy, not the First Amendment. Not every foolish law is unconstitutional. The Stolen Valor Act represents the judgment of the people’s elected representatives that false statements about military awards are very different from false statements about civilian awards. Certainly this is true with respect to the high honor that respondent misappropri- ated. Respondent claimed that he was awarded the Medal of Honor in 1987 for bravery during the Iran hostage crisis. This singular award, however, is bestowed only on those members of the Armed Forces who “distinguis[h] [themselves] conspicuously by gallantry and intrepidity at the risk of [their lives] above and beyond the call of duty.” 10 U. S. C. §3741; see also §§6241, 8741. More than half of the heroic individuals to have been awarded the Medal of Honor after World War I received it posthumously.[ 15 ] Congress was entitled to conclude that falsely claiming to have won the Medal of Honor is qualitatively different from even the most prestigious civilian awards and that the misappropriation of that honor warrants criminal sanction. *  *  * The Stolen Valor Act is a narrow law enacted to address an important problem, and it presents no threat to freedom of expression. I would sustain the constitutionality of the Act, and I therefore respectfully dissent. Notes 1 Although the Act does not use the term “knowing” or “knowingly,” we have explained that criminal statutes must be construed “in light of the background rules of the common law . . . in which the requirement of some mens rea for a crime is firmly embedded.” Staples v. United States , 511 U.S. 600 , 605 (1994). The Act’s use of the phrase “falsely represents,” moreover, connotes a knowledge requirement. See Black’s Law Dictionary 1022 (8th ed. 2004) (defining a “misrepresentation” or “false representation” to mean “[t]he act of making a false or misleading assertion about something, usu. with the intent to deceive ” (emphasis added)). 2 See Black’s Law Dictionary, supra , at 1327 (defining “representation” to mean a “presentation of fact”); see also Milkovich v. Lorain Journal Co. , 497 U.S. 1 , 20 (1990) (explaining that the Court has protected “statements that cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual” so that “public debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of our Nation” (quoting Hustler Magazine, Inc. v. Falwell , 485 U.S. 46 , 50 (1988); alteration in original)). 3 Colimore, Pinning Crime on Fake Heroes: N. J. Agent Helps Expose and Convict Those with Bogus U. S. Medals, Philadelphia Inquirer, Feb. 11, 2004, http://articles.philly.com/2004-02-11/news/25374213_1_medals-military-imposters-distinguished-flying-cross (all Internet mate-rials as visited June 25, 2012, and available in Clerk of Court’s casefile). 4 Crewdson, Claims of Medals Amount to Stolen Valor, Chicago Tribune, Oct. 26, 2008, http://www.chicagotribune.com/news/local/chi-valor-oct25,0,4301227.story?page=1. 5 Half of MOH Entries in Oral History Project Are Incorrect, Marine Corps Times, Oct. 1, 2007, 2007 WLNR 27917486. 6 Ibid. 7 Young, His Honor Didn’t Get Medal of Honor, Chicago Tribune, Oct. 21, 1994, http://articles.chicagotribune.com/1994-10-21/news/941021031 8_1_congressional-medal-highest-fritz. 8 Rutenberg, At Fox News, the Colonel Who Wasn’t, N. Y. Times, Apr. 29, 2002, http://www.nytimes.com/2002/04/29/business/at-fox-news-the-colonel-who-wasn-t.html?pagewanted=all&src=pm. 9 B. Burkett & G. Whitley, Stolen Valor: How the Vietnam Generation Was Robbed of Its Heroes and Its History 179 (1998). 10 Indeed, the first person to be prosecuted under the Stolen ValorAct apparently “parlayed his medals into lucrative security consulting contracts.” Zambito, War Crime: FBI Targets Fake Heroes, New York Daily News, May 6, 2007, http://www.nydailynews.com/news/crime/war-crime-fbi-targets-fake-heroes-article-1.249168. 11 Dept. of Justice, Northwest Crackdown on Fake Veterans in “Operation Stolen Valor,” Sept. 21, 2007, http://www.justice.gov/usao/waw/ press/2007/sep/operationstolenvalor.html. 12 Cato, High Court Tussles With False Heroics: Free Speech or Fel-ony? Pittsburg Tribune Review, Feb. 23, 2012, http://triblive.com/ usworld/nation/1034434-85/court-military-law-false-medals-supreme-valor-act-federal-free. 13 In addition, since the Department may not disclose the Social Security numbers or birthdates of recipients, this database would be of limited use in ascertaining the veracity of a claim involving a person with a common name. Office of Undersecretary of Defense, Report, at 3–4. 14 The plurality rejects this rule. Although we have made clear that “[u]ntruthful speech . . . has never been protected for its own sake,” Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. , 425 U.S. 748 , 771 (1976), the most the plurality is willing to concede is that “the falsity of speech bears upon whether it is protected,” ante, at 9. This represents a dramatic—and entirely unjustified—departure from the sound approach taken in past cases. Respondent and his supporting amici attempt to limit this rule to certain subsets of false statements, see, e.g., Brief for Respondent 53 (asserting that, at most, only falsity that is proved to cause specific harm is stripped of its First Amendment protection), but the examples described above belie that attempt. These examples show that the rule at least applies to (1) specific types of false statements that were neither illegal nor tortious in 1791 (the torts of intentional infliction of emotional distress and false-light invasion of privacy did not exist when the First Amendment was adopted); (2) false speech that does not cause pecuniary harm (the harm remedied by the torts of defamation, intentional infliction of emotional distress, and false-light invasion of privacy is often nonpecuniary in nature, as is the harm inflicted by statements that are illegal under §§912 and 1001); (3) false speech that does not cause detrimental reliance (neither perjury laws nor many of the federal false statement statutes require that anyone actually rely on the false statement); (4) particular false statements that are not shown in court to have caused specific harm (damages can be presumed in defamation actions involving knowing or reckless falsehoods, and no showing of specific harm is required in prosecutions under many of the federal false statement statutes); and (5) false speech that does not cause harm to a specific individual (the purpose of many of the federal false statement statutes is to protect government processes). 15 See U. S. Army Center of Military History, Medal of Honor Statistics, http://www.history.army.mil/html/moh/mohstats.html.

The Supreme Court ruled that the Stolen Valor Act, which criminalizes lying about receiving military honors, is unconstitutional under the First Amendment. The Court found that the government's interest in protecting the integrity of the Medal of Honor does not justify restricting speech, even if it is false. The respondent, Xavier Alvarez, had falsely claimed to have received the Congressional Medal of Honor at a public meeting, but the Court determined that his lie was not sufficient to warrant criminal punishment.

Free Speech

Brown v. Entertainment Merchants Ass'n

https://supreme.justia.com/cases/federal/us/564/786/

OPINION OF THE COURT BROWN V. ENTERTAINMENT MERCHANTS ASSN. 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 08-1448 EDMUND G. BROWN, Jr., GOVERNOR OF CAL- IFORNIA, et al., PETITIONERS v. ENTERTAIN- MENT MERCHANTS ASSOCIATION et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 27, 2011]    Justice Scalia delivered the opinion of the Court.    We consider whether a California law imposing restrictions on violent video games comports with the First Amendment. I    California Assembly Bill 1179 (2005), Cal. Civ. Code Ann. §§1746–1746.5 (West 2009) (Act), prohibits the sale or rental of “violent video games” to minors, and requires their packaging to be labeled “18.” The Act covers games “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted” in a manner that “[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors,” that is “patently offensive to prevailing standards in the community as to what is suitable for minors,” and that “causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.” §1746(d)(1)(A). Violation of the Act is punishable by a civil fine of up to $1,000. §1746.3.    Respondents, representing the video-game and software industries, brought a preenforcement challenge to the Act in the United States District Court for the Northern District of California. That court concluded that the Act violated the First Amendment and permanently enjoined its enforcement. Video Software Dealers Assn. v. Schwarzenegger , No. C–05–04188 RMW (2007), App. to Pet. for Cert. 39a. The Court of Appeals affirmed, Video Software Dealers Assn. v. Schwarzenegger , 556 F. 3d 950 (CA9 2009), and we granted certiorari, 559 U. S. ____ (2010). II    California correctly acknowledges that video games qualify for First Amendment protection. The Free Speech Clause exists principally to protect discourse on public matters, but we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try. “Everyone is familiar with instances of propaganda through fiction. What is one man’s amusement, teaches another’s doctrine.” Winters v. New York , 333 U. S. 507 , 510 (1948). Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection. Under our Constitution, “esthetic and moral judgments about art and literature … are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.” United States v. Playboy Entertainment Group, Inc. , 529 U. S. 803 , 818 (2000). And whatever the challenges of applying the Constitution to ever-advancing technology, “the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary” when a new and different medium for communication appears. Joseph Burstyn, Inc. v. Wilson , 343 U. S. 495 , 503 (1952).    The most basic of those principles is this: “[A]s a general matter, … government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties Union , 535 U. S. 564 , 573 (2002) (internal quotation marks omitted). There are of course exceptions. “ ‘From 1791 to the present,’ … the First Amendment has ‘permitted restrictions upon the content of speech in a few limited areas,’ and has never ‘include[d] a freedom to disregard these traditional limitations.’ ” United States v. Stevens , 559 U. S. ___, ___ (2010) (slip op., at 5) (quoting R. A. V. v. St. Paul , 505 U. S. 377 , 382–383 (1992)). These limited areas—such as obscenity, Roth v. United States , 354 U. S. 476 , 483 (1957), incitement, Brandenburg v. Ohio , 395 U. S. 444 , 447–449 (1969) (per curiam) , and fighting words, Chaplinsky v. New Hampshire , 315 U. S. 568 , 572 (1942)—represent “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem,” id. , at 571–572.    Last Term, in Stevens , we held that new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated. Stevens concerned a federal statute purporting to criminalize the creation, sale, or possession of certain depictions of animal cruelty. See 18 U. S. C. §48 (amended 2010). The statute covered depictions “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed” if that harm to the animal was illegal where the “the creation, sale, or possession t[ook] place,” §48(c)(1). A saving clause largely borrowed from our obscenity jurisprudence, see Miller v. California , 413 U. S. 15 , 24 (1973), exempted depictions with “serious religious, political, scientific, educational, journalistic, historical, or artistic value,” §48(b). We held that statute to be an impermissible content-based restriction on speech. There was no American tradition of forbidding the depiction of animal cruelty—though States have long had laws against committing it.    The Government argued in Stevens that lack of a historical warrant did not matter; that it could create new categories of unprotected speech by applying a “simple balancing test” that weighs the value of a particular category of speech against its social costs and then punishes that category of speech if it fails the test. Stevens , 559 U. S., at ___ (slip op., at 7). We emphatically rejected that “startling and dangerous” proposition. Ibid. “Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law.” Id. , at ___ (slip op., at 9). But without persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription, a legislature may not revise the “judgment [of] the American people,” embodied in the First Amendment, “that the benefits of its restrictions on the Government outweigh the costs.” Id. , at ___ (slip op., at 7).    That holding controls this case.[ Footnote 1 ] As in Stevens , California has tried to make violent-speech regulation look like obscenity regulation by appending a saving clause required for the latter. That does not suffice. Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of “sexual conduct,” Miller , supra, at 24. See also Cohen v. California , 403 U. S. 15 , 20 (1971); Roth , supra, at 487, and n. 20. Stevens was not the first time we have encountered and rejected a State’s attempt to shoehorn speech about violence into obscenity. In Winters , we considered a New York criminal statute “forbid[ding] the massing of stories of bloodshed and lust in such a way as to incite to crime against the person,” 333 U. S., at 514. The New York Court of Appeals upheld the provision as a law against obscenity. “[T]here can be no more precise test of written indecency or obscenity,” it said, “than the continuing and changeable experience of the community as to what types of books are likely to bring about the corruption of public morals or other analogous injury to the public order. ” Id. , at 514 (internal quotation marks omitted). That is of course the same expansive view of governmental power to abridge the freedom of speech based on interest-balancing that we rejected in Stevens . Our opinion in Winters , which concluded that the New York statute failed a heightened vagueness standard applicable to restrictions upon speech entitled to First Amendment protection, 333 U. S., at 517–519, made clear that violence is not part of the obscenity that the Constitution permits to be regulated. The speech reached by the statute contained “no indecency or obscenity in any sense heretofore known to the law.” Id. , at 519.    Because speech about violence is not obscene, it is of no consequence that California’s statute mimics the New York statute regulating obscenity-for-minors that we upheld in Ginsberg v. New York , 390 U. S. 629 (1968). That case approved a prohibition on the sale to minors of sexual material that would be obscene from the perspective of a child.[ Footnote 2 ] We held that the legislature could “adjus[t] the definition of obscenity ‘to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interests …’ of … minors. ” Id. , at 638 (quoting Mishkin v. New York , 383 U. S. 502 , 509 (1966)). And because “obscenity is not protected expression,” the New York statute could be sustained so long as the legislature’s judgment that the proscribed materials were harmful to children “was not irrational.” 390 U. S., at 641.    The California Act is something else entirely. It does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults is not uncritically applied to children. California does not argue that it is empowered to prohibit selling offensively violent works to adults —and it is wise not to, since that is but a hair’s breadth from the argument rejected in Stevens . Instead, it wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children.    That is unprecedented and mistaken. “[M]inors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.” Erznoznik v. Jacksonville , 422 U. S. 205 , 212–213 (1975) (citation omitted). No doubt a State possesses legitimate power to protect children from harm, Ginsberg , supra , at 640–641; Prince v. Massachusetts , 321 U. S. 158 , 165 (1944), but that does not include a free-floating power to restrict the ideas to which children may be exposed. “Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” Erznoznik , supra, at 213–214.[ Footnote 3 ]    California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” The Complete Brothers Grimm Fairy Tales 198 (2006 ed.). Cinderella’s evil stepsisters have their eyes pecked out by doves. Id. , at 95. And Hansel and Gretel (children!) kill their captor by baking her in an oven. Id. , at 54.    High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. The Odyssey of Homer, Book IX, p. 125 (S. Butcher & A. Lang transls. 1909) (“Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame”). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface. Canto XXI, pp. 187–189 (A. Mandelbaum transl. Bantam Classic ed. 1982). And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island. W. Golding, Lord of the Flies 208–209 (1997 ed.).[ Footnote 4 ]    This is not to say that minors’ consumption of violent entertainment has never encountered resistance. In the 1800’s, dime novels depicting crime and “penny dreadfuls” (named for their price and content) were blamed in some quarters for juvenile delinquency. See Brief for Cato Institute as Amicus Curiae 6–7. When motion pictures came along, they became the villains instead. “The days when the police looked upon dime novels as the most dangerous of textbooks in the school for crime are drawing to a close… . They say that the moving picture machine … tends even more than did the dime novel to turn the thoughts of the easily influenced to paths which sometimes lead to prison.” Moving Pictures as Helps to Crime, N. Y. Times, Feb. 21, 1909, quoted in Brief for Cato Institute, at 8. For a time, our Court did permit broad censorship of movies because of their capacity to be “used for evil,” see Mutual Film Corp. v. Industrial Comm’n of Ohio , 236 U. S. 230 , 242 (1915), but we eventually reversed course, Joseph Burstyn, Inc. , 343 U. S., at 502; see also Erznoznik , supra, at 212–214 (invalidating a drive-in movies restriction designed to protect children). Radio dramas were next, and then came comic books. Brief for Cato Institute, at 10–11. Many in the late 1940’s and early 1950’s blamed comic books for fostering a “preoccupation with violence and horror” among the young, leading to a rising juvenile crime rate. See Note, Regulation of Comic Books, 68 Harv. L. Rev. 489, 490 (1955). But efforts to convince Congress to restrict comic books failed. Brief for Comic Book Legal Defense Fund as Amicus Curiae 11–15.[ Footnote 5 ] And, of course, after comic books came television and music lyrics.    California claims that video games present special problems because they are “interactive,” in that the player participates in the violent action on screen and determines its outcome. The latter feature is nothing new: Since at least the publication of The Adventures of You: Sugarcane Island in 1969, young readers of choose-your-own-adventure stories have been able to make decisions that determine the plot by following instructions about which page to turn to. Cf. Interactive Digital Software Assn. v. St. Louis County, 329 F. 3d 954, 957–958 (CA8 2003). As for the argument that video games enable participation in the violent action, that seems to us more a matter of degree than of kind. As Judge Posner has observed, all literature is interactive. “[T]he better it is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.” American Amusement Machine Assn. v. Kendrick , 244 F. 3d 572, 577 (CA7 2001) (striking down a similar restriction on violent video games).    Justice Alito has done considerable independent re-search to identify, see post , at 14–15, nn. 13–18, video games in which “the violence is astounding,” post , at 14. “Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. . . . Blood gushes, splatters, and pools.” Ibid. Justice Alito recounts all these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression. And the same is true of Justice Alito’s description, post , at 14–15, of those video games he has discovered that have a racial or ethnic motive for their violence—“ ‘ethnic cleansing’ [of] . . . African Americans, Latinos, or Jews.” To what end does he relate this? Does it somehow increase the “aggressiveness” that California wishes to suppress? Who knows? But it does arouse the reader’s ire, and the reader’s desire to put an end to this horrible message. Thus, ironically, Justice Alito’s argument highlights the precise danger posed by the California Act: that the ideas expressed by speech—whether it be violence, or gore, or racism—and not its objective effects, may be the real reason for governmental proscription. III    Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny—that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest. R. A. V. , 505 U. S., at 395. The State must specifically identify an “actual problem” in need of solving, Playboy , 529 U. S., at 822–823, and the curtailment of free speech must be actually necessary to the solution, see R. A. V. , supra, at 395. That is a demanding standard. “It is rare that a regulation restricting speech because of its content will ever be permissible.” Playboy , supra, at 818.    California cannot meet that standard. At the outset, it acknowledges that it cannot show a direct causal link between violent video games and harm to minors. Rather, relying upon our decision in Turner Broadcasting System, Inc. v. FCC , 512 U. S. 622 (1994), the State claims that it need not produce such proof because the legislature can make a predictive judgment that such a link exists, based on competing psychological studies. But reliance on Turner Broadcasting is misplaced. That decision applied intermediate scrutiny to a content-neutral regulation. Id. , at 661–662. California’s burden is much higher, and because it bears the risk of uncertainty, see Playboy , supra, at 816–817, ambiguous proof will not suffice.    The State’s evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them,[ Footnote 6 ] and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, “[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.” Video Software Dealers Assn. 556 F. 3d, at 964. They show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children’s feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game.[ Footnote 7 ]    Even taking for granted Dr. Anderson’s conclusions that violent video games produce some effect on children’s feelings of aggression, those effects are both small and indistinguishable from effects produced by other media. In his testimony in a similar lawsuit, Dr. Anderson admitted that the “effect sizes” of children’s exposure to violent video games are “about the same” as that produced by their exposure to violence on television. App. 1263. And he admits that the same effects have been found when children watch cartoons starring Bugs Bunny or the Road Runner, id., at 1304, or when they play video games like Sonic the Hedgehog that are rated “E” (appropriate for all ages), id., at 1270, or even when they “vie[w] a picture of a gun,” id., at 1315–1316.[ Footnote 8 ]    Of course, California has (wisely) declined to restrict Saturday morning cartoons, the sale of games rated for young children, or the distribution of pictures of guns. The consequence is that its regulation is wildly underinclusive when judged against its asserted justification, which in our view is alone enough to defeat it. Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint. See City of Ladue v. Gilleo , 512 U. S. 43 , 51 (1994); Florida Star v. B. J. F. , 491 U. S. 524 , 540 (1989). Here, California has singled out the purveyors of video games for disfavored treatment—at least when compared to booksellers, cartoonists, and movie producers—and has given no persuasive reason why.    The Act is also seriously underinclusive in another respect—and a respect that renders irrelevant the contentions of the concurrence and the dissents that video games are qualitatively different from other portrayals of violence. The California Legislature is perfectly willing to leave this dangerous, mind-altering material in the hands of children so long as one parent (or even an aunt or uncle) says it’s OK. And there are not even any requirements as to how this parental or avuncular relationship is to be verified; apparently the child’s or putative parent’s, aunt’s, or uncle’s say-so suffices. That is not how one addresses a serious social problem.    California claims that the Act is justified in aid of parental authority: By requiring that the purchase of violent video games can be made only by adults, the Act ensures that parents can decide what games are appropriate. At the outset, we note our doubts that punishing third parties for conveying protected speech to children just in case their parents disapprove of that speech is a proper governmental means of aiding parental authority. Accepting that position would largely vitiate the rule that “only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to [minors].” Erznoznik , 422 U. S., at 212–213.    But leaving that aside, California cannot show that the Act’s restrictions meet a substantial need of parents who wish to restrict their children’s access to violent video games but cannot do so. The video-game industry has in place a voluntary rating system designed to inform consumers about the content of games. The system, implemented by the Entertainment Software Rating Board (ESRB), assigns age-specific ratings to each video game submitted: EC (Early Childhood); E (Everyone); E10+ (Everyone 10 and older); T (Teens); M (17 and older); and AO (Adults Only—18 and older). App. 86. The Video Software Dealers Association encourages retailers to prominently display information about the ESRB system in their stores; to refrain from renting or selling adults-only games to minors; and to rent or sell “M” rated games to minors only with parental consent. Id., at 47. In 2009, the Federal Trade Commission (FTC) found that, as a result of this system, “the video game industry outpaces the movie and music industries” in “(1) restricting target-marketing of mature-rated products to children; (2) clearly and prominently disclosing rating information; and (3) re-stricting children’s access to mature-rated products at retail.” FTC, Report to Congress, Marketing Violent Entertainment to Children 30 (Dec. 2009), online at http:// www.ftc.gov / os/ 2009 / 12/ P994511violententertainment.pdf (as visited June 24, 2011, and available in Clerk of Court’s case file) (FTC Report). This system does much to ensure that minors cannot purchase seriously violent games on their own, and that parents who care about the matter can readily evaluate the games their children bring home. Filling the remaining modest gap in concerned-parents’ control can hardly be a compelling state interest.[ Footnote 9 ]    And finally, the Act’s purported aid to parental authority is vastly overinclusive. Not all of the children who are forbidden to purchase violent video games on their own have parents who care whether they purchase violent video games. While some of the legislation’s effect may indeed be in support of what some parents of the restricted children actually want, its entire effect is only in support of what the State thinks parents ought to want. This is not the narrow tailoring to “assisting parents” that restriction of First Amendment rights requires. *  *  *    California’s effort to regulate violent video games is the latest episode in a long series of failed attempts to censor violent entertainment for minors. While we have pointed out above that some of the evidence brought forward to support the harmfulness of video games is unpersuasive, we do not mean to demean or disparage the concerns that underlie the attempt to regulate them—concerns that may and doubtless do prompt a good deal of parental oversight. We have no business passing judgment on the view of the California Legislature that violent video games (or, for that matter, any other forms of speech) corrupt the young or harm their moral development. Our task is only to say whether or not such works constitute a “well-defined and narrowly limited clas[s] of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem,” Chaplinsky , 315 U. S., at 571–572 (the answer plainly is no); and if not, whether the regulation of such works is justified by that high degree of necessity we have described as a compelling state interest (it is not). Even where the protection of children is the object, the constitutional limits on governmental action apply.    California’s legislation straddles the fence between (1) addressing a serious social problem and (2) helping concerned parents control their children. Both ends are legitimate, but when they affect First Amendment rights they must be pursued by means that are neither seriously underinclusive nor seriously overinclusive. See Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U. S. 520 , 546 (1993). As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime. And the overbreadth in achieving one goal is not cured by the underbreadth in achieving the other. Legislation such as this, which is neither fish nor fowl, cannot survive strict scrutiny.    We affirm the judgment below. It is so ordered. Footnote 1 Justice Alito distinguishes Stevens on several grounds that seem to us ill founded. He suggests, post , at 10 (opinion concurring in judgment), that Stevens did not apply strict scrutiny. If that is so (and we doubt it), it would make this an a fortiori case. He says, post , at 9, 10, that the California Act punishes the sale or rental rather than the “creation” or “possession” of violent depictions. That distinction appears nowhere in Stevens itself, and for good reason: It would make permissible the prohibition of printing or selling books—though not the writing of them. Whether government regulation applies to creating, distributing, or consuming speech makes no difference. And finally, Justice Alito points out, post , at 10, that Stevens “left open the possibility that a more narrowly drawn statute” would be constitutional. True, but entirely irrelevant. Stevens said, 559 U. S., at ___ (slip op., at 19), that the “crush-video” statute at issue there might pass muster if it were limited to videos of acts of animal cruelty that violated the law where the acts were performed. There is no contention that any of the virtual characters depicted in the imaginative videos at issue here are criminally liable. Footnote 2 The statute in Ginsberg restricted the sale of certain depictions of “nudity, sexual conduct, sexual excitement, or sado-masochistic abuse,” that were “ ‘[h]armful to minors.’ ” A depiction was harmful to minors if it:    “(i) predominantly appeals to the prurient, shameful or morbid interests of minors, and    “(ii) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and    “(iii) is utterly without redeeming social importance for minors.” 390 U. S., at 646 (Appendix A to opinion of the Court) (quoting N. Y. Penal Law §484–h(1)(f)). Footnote 3 Justice Thomas ignores the holding of Erznoznik , and denies that persons under 18 have any constitutional right to speak or be spoken to without their parents’ consent. He cites no case, state or federal, supporting this view, and to our knowledge there is none. Most of his dissent is devoted to the proposition that parents have traditionally had the power to control what their children hear and say. This is true enough. And it perhaps follows from this that the state has the power to enforce parental prohibitions—to require, for example, that the promoters of a rock concert exclude those minors whose parents have advised the promoters that their children are forbidden to attend. But it does not follow that the state has the power to prevent children from hearing or saying anything without their parents’ prior consent . The latter would mean, for example, that it could be made criminal to admit persons under 18 to a political rally without their parents’ prior written consent—even a political rally in support of laws against corporal punishment of children, or laws in favor of greater rights for minors. And what is good for First Amendment rights of speech must be good for First Amendment rights of religion as well: It could be made criminal to admit a person under 18 to church, or to give a person under 18 a religious tract, without his parents’ prior consent. Our point is not, as Justice Thomas believes, post , at 16, n. 2, merely that such laws are “undesirable.” They are obviously an infringement upon the religious freedom of young people and those who wish to proselytize young people. Such laws do not enforce parental authority over children’s speech and religion; they impose governmental authority, subject only to a parental veto. In the absence of any precedent for state control, uninvited by the parents, over a child’s speech and religion (Justice Thomas cites none), and in the absence of any justification for such control that would satisfy strict scrutiny, those laws must be unconstitutional. This argument is not, as Justice Thomas asserts, “circular,” ibid. It is the absence of any historical warrant or compelling justification for such restrictions, not our ipse dixit , that renders them invalid. Footnote 4 Justice Alito accuses us of pronouncing that playing violent video games “is not different in ‘kind’ ” from reading violent literature. Post , at 2. Well of course it is different in kind, but not in a way that causes the provision and viewing of violent video games, unlike the provision and reading of books, not to be expressive activity and hence not to enjoy First Amendment protection. Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny—a question to which we devote our attention in Part III, infra. Even if we can see in them “nothing of any possible value to society . . . , they are as much entitled to the protection of free speech as the best of literature.” Winters v. New York , 333 U. S. 507 , 510 (1948). Footnote 5 The crusade against comic books was led by a psychiatrist, Frederic Wertham, who told the Senate Judiciary Committee that “as long as the crime comic books industry exists in its present forms there are no secure homes.” Juvenile Delinquency (Comic Books): Hearings before the Subcommittee to Investigate Juvenile Delinquency, 83d Cong., 2d Sess., 84 (1954). Wertham’s objections extended even to Superman comics, which he described as “particularly injurious to the ethical development of children.” Id. , at 86. Wertham’s crusade did convince the New York Legislature to pass a ban on the sale of certain comic books to minors, but it was vetoed by Governor Thomas Dewey on the ground that it was unconstitutional given our opinion in Winters, supra. See People v. Bookcase, Inc. , 14 N. Y. 2d 409, 412–413, 201 N. E. 2d 14, 15–16 (1964). Footnote 6 See Video Software Dealers Assn. v. Schwarzenegger, 556 F. 3d 950, 963–964 (CA9 2009); Interactive Digital Software Assn. v. St. Louis County, 329 F. 3d 954 (CA8 2003); American Amusement Machine Assn. v. Kendrick , 244 F. 3d 572, 578–579 (CA7 2001); Entertainment Software Assn. v. Foti , 451 F. Supp. 2d 823, 832–833 (MD La. 2006); Entertainment Software Assn. v. Hatch , 443 F. Supp. 2d 1065, 1070 (Minn. 2006), aff ’d, 519 F. 3d 768 (CA8 2008); Entertainment Software Assn. v. Granholm , 426 F. Supp. 2d 646, 653 (ED Mich. 2006); Entertainment Software Assn. v. Blagojevich , 404 F. Supp. 2d 1051, 1063 (ND Ill. 2005), aff ’d, 469 F. 3d 641 (CA7 2006). Footnote 7 One study, for example, found that children who had just finished playing violent video games were more likely to fill in the blank letter in “explo_e” with a “d” (so that it reads “explode”) than with an “r” (“explore”). App. 496, 506 (internal quotation marks omitted). The prevention of this phenomenon, which might have been anticipated with common sense, is not a compelling state interest. Footnote 8 Justice Alito is mistaken in thinking that we fail to take account of “new and rapidly evolving technology,” post , at 1. The studies in question pertain to that new and rapidly evolving technology, and fail to show, with the degree of certitude that strict scrutiny requires, that this subject-matter restriction on speech is justified. Nor is Justice Alito correct in attributing to us the view that “violent video games really present no serious problem.” Post , at 2. Perhaps they do present a problem, and perhaps none of us would allow our own children to play them. But there are all sorts of “problems”—some of them surely more serious than this one—that cannot be addressed by governmental restriction of free expression: for example, the problem of encouraging anti-Semitism ( National Socialist Party of America v. Skokie , 432 U. S. 43 (1977) (per curiam) ), the problem of spreading a political philosophy hostile to the Constitution ( Noto v. United States , 367 U. S. 290 (1961)), or the problem of encouraging disrespect for the Nation’s flag ( Texas v. Johnson , 491 U. S. 397 (1989)).    Justice Breyer would hold that California has satisfied strict scrutiny based upon his own research into the issue of the harmfulness of violent video games. See post , at 20–35 (Appendixes to dissenting opinion) (listing competing academic articles discussing the harmfulness vel non of violent video games). The vast preponderance of this research is outside the record—and in any event we do not see how it could lead to Justice Breyer’s conclusion, since he admits he cannot say whether the studies on his side are right or wrong. Post , at 15. Similarly, Justice Alito says he is not “sure” whether there are any constitutionally dispositive differences between video games and other media. Post , at 2. If that is so, then strict scrutiny plainly has not been satisfied. Footnote 9 Justice Breyer concludes that the remaining gap is compelling because, according to the FTC’s report, some “20% of those under 17 are still able to buy M-rated games.” Post , at 18 (citing FTC Report 28). But some gap in compliance is unavoidable. The sale of alcohol to minors, for example, has long been illegal, but a 2005 study suggests that about 18% of retailers still sell alcohol to those under the drinking age. Brief for State of Rhode Island et al . as Amici Curiae 18. Even if the sale of violent video games to minors could be deterred further by increasing regulation, the government does not have a compelling interest in each marginal percentage point by which its goals are advanced. ALITO, J., CONCURRING IN JUDGMENT BROWN V. ENTERTAINMENT MERCHANTS ASSN. 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 08-1448 EDMUND G. BROWN, Jr., GOVERNOR OF CAL- IFORNIA, et al., PETITIONERS v. ENTERTAIN- MENT MERCHANTS ASSOCIATION et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 27, 2011]    Justice Alito, with whom The Chief Justice joins, concurring in the judgment.    The California statute that is before us in this case represents a pioneering effort to address what the state legislature and others regard as a potentially serious social problem: the effect of exceptionally violent video games on impressionable minors, who often spend countless hours immersed in the alternative worlds that these games create. Although the California statute is well intentioned, its terms are not framed with the precision that the Constitution demands, and I therefore agree with the Court that this particular law cannot be sustained.    I disagree, however, with the approach taken in the Court’s opinion. In considering the application of unchanging constitutional principles to new and rapidly evolving technology, this Court should proceed with caution. We should make every effort to understand the new technology. We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar. And we should not hastily dismiss the judgment of legislators, who may be in a better position than we are to assess the implications of new technology. The opinion of the Court exhibits none of this caution.    In the view of the Court, all those concerned about the effects of violent video games—federal and state legislators, educators, social scientists, and parents—are unduly fearful, for violent video games really present no serious problem. See ante , at 10–13, 15–16. Spending hour upon hour controlling the actions of a character who guns down scores of innocent victims is not different in “kind” from reading a description of violence in a work of literature. See ante , at 10–11.    The Court is sure of this; I am not. There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show. I    Respondents in this case, representing the video-game industry, ask us to strike down the California law on two grounds: The broad ground adopted by the Court and the narrower ground that the law’s definition of “violent video game,” see Cal. Civ. Code Ann. §1746(d)(1)(A) (West 2009), is impermissibly vague. See Brief for Respondents 23–61. Because I agree with the latter argument, I see no need to reach the broader First Amendment issues addressed by the Court.[ Footnote 1 ] A    Due process requires that laws give people of ordinary intelligence fair notice of what is prohibited. Grayned v. City of Rockford , 408 U. S. 104 , 108 (1972). The lack of such notice in a law that regulates expression “raises special First Amendment concerns because of its obvious chilling effect on free speech.” Reno v. American Civil Liberties Union , 521 U. S. 844 , 871–872 (1997). Vague laws force potential speakers to “ ‘steer far wider of the unlawful zone’ … than if the boundaries of the forbidden areas were clearly marked.” Baggett v. Bullitt , 377 U. S. 360 , 372 (1964) (quoting Speiser v. Randall , 357 U. S. 513 , 526 (1958)). While “perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity,” Ward v. Rock Against Racism , 491 U. S. 781 , 794 (1989), “government may regulate in the area” of First Amendment freedoms “only with narrow specificity,” NAACP v. Button , 371 U. S. 415 , 433 (1963); see also Hoffman Estates v. Flipside, Hoffman Estates, Inc. , 455 U. S. 489 , 499 (1982). These principles apply to laws that regulate expression for the purpose of protecting children. See Interstate Circuit, Inc. v. Dallas , 390 U. S. 676 , 689 (1968).    Here, the California law does not define “violent video games” with the “narrow specificity” that the Constitution demands. In an effort to avoid First Amendment problems, the California Legislature modeled its violent video game statute on the New York law that this Court upheld in Ginsberg v. New York , 390 U. S. 629 (1968)—a law that prohibited the sale of certain sexually related materials to minors, see id. , at 631–633. But the California Legislature departed from the Ginsberg model in an important respect, and the legislature overlooked important differences between the materials falling within the scope of the two statutes. B    The law at issue in Ginsberg prohibited the sale to minors of materials that were deemed “harmful to minors,” and the law defined “harmful to minors” simply by adding the words “for minors” to each element of the definition of obscenity set out in what were then the Court’s leading obscenity decisions, see Roth v. United States , 354 U. S. 476 (1957), and Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Mass. , 383 U. S. 413 (1966).    Seeking to bring its violent video game law within the protection of Ginsberg , the California Legislature began with the obscenity test adopted in Miller v. California , 413 U. S. 15 (1973), a decision that revised the obscenity tests previously set out in Roth and Memoirs . The legislature then made certain modifications to accommodate the aim of the violent video game law.    Under Miller , an obscenity statute must contain a thresh-old limitation that restricts the statute’s scope to specifically described “hard core” materials. See 413 U. S., at 23–25, 27. Materials that fall within this “hard core” category may be deemed to be obscene if three additional requirements are met: (1) an “average person, applying contemporary community standards [must] find … the work, taken as a whole, appeals to the prurient interest”; (2) “the work [must] depic[t] or describ[e], in a patently offensive way, sexual conduct specifically defined by the applicable state law; and” (3) “the work, taken as a whole, [must] lac[k] serious literary, artistic, political, or scientific value.” Id. , at 24 (internal quotation marks omitted).    Adapting these standards, the California law imposes the following threshold limitation: “[T]he range of options available to a player [must] includ[e] killing, maiming, dismembering, or sexually assaulting an image of a human being.” §1746(d)(1). Any video game that meets this threshold test is subject to the law’s restrictions if it also satisfies three further requirements:    “(i) A reasonable person, considering the game as a whole, would find [the game] appeals to a deviant or morbid interest of minors.    “(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors.    “(iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.” §1746(d)(1)(A).[ Footnote 2 ] C    The first important difference between the Ginsberg law and the California violent video game statute concerns their respective threshold requirements. As noted, the Ginsberg law built upon the test for adult obscenity, and the current adult obscenity test, which was set out in Miller, requires an obscenity statute to contain a threshold limitation that restricts the statute’s coverage to specifically defined “hard core” depictions. See 413 U. S., at 23–25, 27. The Miller Court gave as an example a statute that applies to only “[p]atently offensive representations or descriptions of ultimate sexual acts,” “masturbation, excretory functions, and lewd exhibition of the genitals.” Id ., at 25. The Miller Court clearly viewed this threshold limitation as serving a vital notice function. “We are satisfied,” the Court wrote, “that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution.” Id. , at 27; see also Reno , supra , at 873 (observing that Miller ’s threshold limitation “reduces the vagueness inherent in the open-ended term ‘patently offensive’ ”).[ Footnote 3 ]    By contrast, the threshold requirement of the California law does not perform the narrowing function served by the limitation in Miller . At least when Miller was decided, depictions of “hard core” sexual conduct were not a common feature of mainstream entertainment. But nothing similar can be said about much of the conduct covered by the California law. It provides that a video game cannot qualify as “violent” unless “the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being . ” §1746(d)(1).    For better or worse, our society has long regarded many depictions of killing and maiming[ Footnote 4 ] as suitable features of popular entertainment, including entertainment that is widely available to minors. The California law’s threshold requirement would more closely resemble the limitation in Miller if it targeted a narrower class of graphic depictions.    Because of this feature of the California law’s threshold test, the work of providing fair notice is left in large part to the three requirements that follow, but those elements are also not up to the task. In drafting the violent video game law, the California Legislature could have made its own judgment regarding the kind and degree of violence that is acceptable in games played by minors (or by minors in particular age groups). Instead, the legislature relied on undefined societal or community standards.    One of the three elements at issue here refers expressly to “prevailing standards in the community as to what is suitable for minors.” §1746(d)(1)(A)(ii). Another element points in the same direction, asking whether “[a] reasonable person, considering [a] game as a whole,” would find that it “appeals to a deviant or morbid interest of minors.” §1746(d)(1)(A)(i) (emphasis added).    The terms “deviant” and “morbid” are not defined in the statute, and California offers no reason to think that its courts would give the terms anything other than their ordinary meaning. See Reply Brief for Petitioners 5 (arguing that “[a] reasonable person can make this judgment through … a common understanding and definition of the applicable terms”). I therefore assume that “deviant” and “morbid” carry the meaning that they convey in ordinary speech. The adjective “deviant” ordinarily means “deviating … from some accepted norm,” and the term “morbid” means “of, relating to, or characteristic of disease.” Webster’s 618, 1469. A “deviant or morbid interest” in violence, therefore, appears to be an interest that de- viates from what is regarded—presumably in accordance with some generally accepted standard—as normal and healthy. Thus, the application of the California law is heavily dependent on the identification of generally accepted standards regarding the suitability of violent entertainment for minors.    The California Legislature seems to have assumed that these standards are sufficiently well known so that a person of ordinary intelligence would have fair notice as to whether the kind and degree of violence in a particular game is enough to qualify the game as “violent.” And because the Miller test looks to community standards, the legislature may have thought that the use of undefined community standards in the violent video game law would not present vagueness problems.    There is a critical difference, however, between obscenity laws and laws regulating violence in entertainment. By the time of this Court’s landmark obscenity cases in the 1960’s, obscenity had long been prohibited, see Roth , 354 U. S., at 484–485, and this experience had helped to shape certain generally accepted norms concerning expression related to sex.    There is no similar history regarding expression related to violence. As the Court notes, classic literature contains descriptions of great violence, and even children’s stories sometimes depict very violent scenes. See ante , at 8–9.    Although our society does not generally regard all depictions of violence as suitable for children or adolescents, the prevalence of violent depictions in children’s literature and entertainment creates numerous opportunities for reasonable people to disagree about which depictions may excite “deviant” or “morbid” impulses. See Edwards & Berman, Regulating Violence on Television, 89 Nw. U. L. Rev. 1487, 1523 (1995) (observing that the Miller test would be difficult to apply to violent expression because “there is nothing even approaching a consensus on low-value violence”).    Finally, the difficulty of ascertaining the community standards incorporated into the California law is compounded by the legislature’s decision to lump all minors together. The California law draws no distinction between young children and adolescents who are nearing the age of majority.    In response to a question at oral argument, the attorney defending the constitutionality of the California law said that the State would accept a narrowing construction of the law under which the law’s references to “minors” would be interpreted to refer to the oldest minors—that is, those just short of 18. Tr. of Oral Arg. 11–12. However, “it is not within our power to construe and narrow state laws.” Grayned , 408 U. S., at 110. We can only “ ‘extrapolate [their] allowable meaning’ ” from the statutory text and authoritative interpretations of similar laws by courts of the State. Ibid . (quoting Garner v. Louisiana , 368 U. S. 157 , 174 (1961) (Frankfurter, J., concurring in judgment)).    In this case, California has not provided any evidence that the California Legislature intended the law to be limited in this way, or cited any decisions from its courts that would support an “oldest minors” construction.[ Footnote 5 ]    For these reasons, I conclude that the California violent video game law fails to provide the fair notice that the Constitution requires. And I would go no further. I would not express any view on whether a properly drawn statute would or would not survive First Amendment scrutiny. We should address that question only if and when it is necessary to do so. II    Having outlined how I would decide this case, I will now briefly elaborate on my reasons for questioning the wisdom of the Court’s approach. Some of these reasons are touched upon by the dissents, and while I am not prepared at this time to go as far as either Justice Thomas or Justice Breyer, they raise valid concerns. A    The Court is wrong in saying that the holding in United States v. Stevens , 559 U. S. ___ (2010), “controls this case.” Ante , at 4. First, the statute in Stevens differed sharply from the statute at issue here. Stevens struck down a law that broadly prohibited any person from creating, selling, or possessing depictions of animal cruelty for commercial gain. The California law involved here, by contrast, is limited to the sale or rental of violent video games to minors . The California law imposes no restriction on the creation of violent video games, or on the possession of such games by anyone, whether above or below the age of 18. The California law does not regulate the sale or rental of violent games by adults. And the California law does not prevent parents and certain other close relatives from buying or renting violent games for their children or other young relatives if they see fit.    Second, Stevens does not support the proposition that a law like the one at issue must satisfy strict scrutiny. The portion of Stevens on which the Court relies rejected the Government’s contention that depictions of animal cruelty were categorically outside the range of any First Amendment protection. 559 U. S., at __ (slip op., at 5). Going well beyond Steven s, the Court now holds that any law that attempts to prevent minors from purchasing violent video games must satisfy strict scrutiny instead of the more lenient standard applied in Ginsberg , 390 U. S. 629 , our most closely related precedent. As a result of today’s decision, a State may prohibit the sale to minors of what Ginsberg described as “girlie magazines,” but a State must surmount a formidable (and perhaps insurmountable) obstacle if it wishes to prevent children from purchasing the most violent and depraved video games imaginable.    Third, Stevens expressly left open the possibility that a more narrowly drawn statute targeting depictions of animal cruelty might be compatible with the First Amendment. See 559 U. S., at ___ (slip op., at 19). In this case, the Court’s sweeping opinion will likely be read by many, both inside and outside the video-game industry, as suggesting that no regulation of minors’ access to violent video games is allowed—at least without supporting evidence that may not be realistically obtainable given the nature of the phenomenon in question. B    The Court’s opinion distorts the effect of the California law. I certainly agree with the Court that the government has no “free-floating power to restrict the ideas to which children may be exposed,” ante , at 7, but the California law does not exercise such a power. If parents want their child to have a violent video game, the California law does not interfere with that parental prerogative. Instead, the California law reinforces parental decisionmaking in exactly the same way as the New York statute upheld in Ginsberg . Under both laws, minors are prevented from purchasing certain materials; and under both laws, parents are free to supply their children with these items if that is their wish.    Citing the video-game industry’s voluntary rating system, the Court argues that the California law does not “meet a substantial need of parents who wish to restrict their children’s access to violent video games but cannot do so.” Ante , at 15. The Court does not mention the fact that the industry adopted this system in response to the threat of federal regulation, Brief for Activision Blizzard, Inc., as Amicus Curiae 7–10, a threat that the Court’s opinion may now be seen as largely eliminating. Nor does the Court acknowledge that compliance with this system at the time of the enactment of the California law left much to be desired[ Footnote 6 ]—or that future enforcement may decline if the video-game industry perceives that any threat of government regulation has vanished. Nor does the Court note, as Justice Breyer points out, see post , at 11 (dissenting opinion), that many parents today are simply not able to monitor their children’s use of computers and gaming devices. C    Finally, the Court is far too quick to dismiss the possibility that the experience of playing video games (and the effects on minors of playing violent video games) may be very different from anything that we have seen before. Any assessment of the experience of playing video games must take into account certain characteristics of the video games that are now on the market and those that are likely to be available in the near future.    Today’s most advanced video games create realistic alternative worlds in which millions of players immerse themselves for hours on end. These games feature visual imagery and sounds that are strikingly realistic, and in the near future video-game graphics may be virtually indistinguishable from actual video footage.[ Footnote 7 ] Many of the games already on the market can produce high definition images,[ Footnote 8 ] and it is predicted that it will not be long before video-game images will be seen in three dimensions.[ Footnote 9 ] It is also forecast that video games will soon provide sensory feedback.[ Footnote 10 ] By wearing a special vest or other device, a player will be able to experience physical sensations supposedly felt by a character on the screen.[ Footnote 11 ] Some amici who support respondents foresee the day when “ ‘virtual-reality shoot-‘em-ups’ ” will allow children to “ ‘actually feel the splatting blood from the blown-off head’ ” of a victim. Brief for Reporters Comm. for Freedom of the Press et al. as Amici Curiae 29 (quoting H. Schechter, Savage Pastimes 18 (2005)).    Persons who play video games also have an unprecedented ability to participate in the events that take place in the virtual worlds that these games create. Players can create their own video-game characters and can use photos to produce characters that closely resemble actual people. A person playing a sophisticated game can make a multitude of choices and can thereby alter the course of the action in the game. In addition, the means by which players control the action in video games now bear a closer relationship to the means by which people control action in the real world. While the action in older games was often directed with buttons or a joystick, players dictate the action in newer games by engaging in the same motions that they desire a character in the game to perform.[ Footnote 12 ] For example, a player who wants a video-game character to swing a baseball bat—either to hit a ball or smash a skull—could bring that about by simulating the motion of actually swinging a bat.    These present-day and emerging characteristics of video games must be considered together with characteristics of the violent games that have already been marketed.    In some of these games, the violence is astounding.[ Footnote 13 ] Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws. Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters, and pools. Severed body parts and gobs of human remains are graphically shown. In some games, points are awarded based, not only on the number of victims killed, but on the killing technique employed.    It also appears that there is no antisocial theme too base for some in the video-game industry to exploit. There are games in which a player can take on the identity and reenact the killings carried out by the perpetrators of the murders at Columbine High School and Virginia Tech.[ Footnote 14 ] The objective of one game is to rape a mother and her daughters;[ Footnote 15 ] in another, the goal is to rape Native American women.[ Footnote 16 ] There is a game in which players engage in “ethnic cleansing” and can choose to gun down African-Americans, Latinos, or Jews.[ Footnote 17 ] In still another game, players attempt to fire a rifle shot into the head of President Kennedy as his motorcade passes by the Texas School Book Depository.[ Footnote 18 ]    If the technological characteristics of the sophisticated games that are likely to be available in the near future are combined with the characteristics of the most violent games already marketed, the result will be games that allow troubled teens to experience in an extraordinarily personal and vivid way what it would be like to carry out unspeakable acts of violence.    The Court is untroubled by this possibility. According to the Court, the “interactive” nature of video games is “nothing new” because “all literature is interactive.” Ante , at 10–11. Disagreeing with this assessment, the International Game Developers Association (IGDA)—a group that presumably understands the nature of video games and that supports respondents—tells us that video games are “far more concretely interactive.” Brief for IGDA et al. as Amici Curiae 3. And on this point, the game developers are surely correct.    It is certainly true, as the Court notes, that “ ‘[l]it-erature, when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.’ ” Ante , at 11 (quoting American Amusement Machine Assn. v. Kendrick , 244 F. 3d 572, 577 (CA7 2001)). But only an extraordinarily imaginative reader who reads a description of a killing in a literary work will experience that event as vividly as he might if he played the role of the killer in a video game. To take an example, think of a person who reads the passage in Crime and Punishment in which Raskolni- kov kills the old pawn broker with an axe. See F. Dostoyevsky, Crime and Punishment 78 (Modern Library ed. 1950). Compare that reader with a video-game player who creates an avatar that bears his own image; who sees a realistic image of the victim and the scene of the killing in high definition and in three dimensions; who is forced to decide whether or not to kill the victim and decides to do so; who then pretends to grasp an axe, to raise it above the head of the victim, and then to bring it down; who hears the thud of the axe hitting her head and her cry of pain; who sees her split skull and feels the sensation of blood on his face and hands. For most people, the two experiences will not be the same.[ Footnote 19 ]    When all of the characteristics of video games are taken into account, there is certainly a reasonable basis for thinking that the experience of playing a video game may be quite different from the experience of reading a book, listening to a radio broadcast, or viewing a movie. And if this is so, then for at least some minors, the effects of playing violent video games may also be quite different. The Court acts prematurely in dismissing this possibility out of hand. *  *  *    For all these reasons, I would hold only that the particular law at issue here fails to provide the clear notice that the Constitution requires. I would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem. If differently framed statutes are enacted by the States or by the Federal Government, we can consider the constitutionality of those laws when cases challenging them are presented to us. Footnote 1 It is well established that a judgment may be affirmed on an alternative ground that was properly raised but not addressed by the lower court. Washington v. Confederated Bands and Tribes of Yakima Nation , 439 U. S. 463 , 478, n. 20 (1979). Footnote 2 Under the California law, a game that meets the threshold requirement set out in text also qualifies as “violent” if it “[e]nables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim.” §1746(d)(1)(B). In the Court of Appeals, California conceded that this alternative definition is unconstitutional, 556 F. 3d 950, 954, n. 5 (CA9 2009), and therefore only the requirements set out in text are now before us. Footnote 3 The provision of New York law under which the petitioner was convicted in Ginsberg was framed with similar specificity. This provision applied to depictions of “nudity” and “sexual conduct,” and both those terms were specifically and unambiguously defined. See 390 U. S., at 645–647 (Appendix A to opinion of the Court). Footnote 4 The California law does not define the term “maiming,” nor has the State cited any decisions from its courts that define the term in this context. Accordingly, I take the term to have its ordinary meaning, which includes the infliction of any serious wound, see Webster’s Third New International Dictionary 1362 (2002) (hereinafter Webster’s). Footnote 5 At oral argument, California also proposed that the term “minors” could be interpreted as referring to the “typical age group of minors” who play video games. Tr. of Oral Arg. 11. But nothing in the law’s text supports such a limitation. Nor has California cited any decisions indicating that its courts would restrict the law in this way. And there is nothing in the record indicating what this age group might be. Footnote 6 A 2004 Federal Trade Commission Report showed that 69 percent of unaccompanied children ages 13 to 16 were able to buy M-rated games and that 56 percent of 13-year-olds were able to buy an M-rated game. Marketing Violent Entertainment to Children: A Fourth Follow-Up Review of Industry Practices in the Motion Picture, Music Recording & Electronic Game Industries 26–28 (July 2004), http://www.ftc.gov/os/ 2004/07/040708kidsviolencerpt.pdf (all Internet materials as visited June 24, 2011, and available in Clerk of Court’s case file). Footnote 7 See Chayka, Visual Games: Photorealism in Crisis, Kill Screen (May 2011), http://killscreendaily.com/articles/visual-games-photorealism-crisis. Footnote 8 To see brief video excerpts from games with highly realistic graphics, see Spike TV Video Game Awards 2010—Game of the Year Nominees, GameTrailers.com (Dec. 10, 2010), http://www.gametrailers.com/ video/game-of-spike-tv-vga/707755?type=flv. Footnote 9 See Selleck, Sony PS3 Launching 50 3D-Capable Video Games in the Near Future, SlashGear (Nov. 23, 2010), http://www.slashgear.com/ sony-ps3-launching-50-3d-capable-video-games-in-the-near-future-23115866; Sofge, Why 3D Doesn’t Work for TV, But Is Great for Gaming, Popu- lar Mechanics (Mar. 11, 2010), http://www.popularmechanics.com/ technology/digital/gaming/4342437. Footnote 10 T. Chatfield, Fun Inc.: Why Games are the Twenty-first Century’s Most Serious Business 211 (2010) (predicting that “[w]e can expect … physical feedback and motion detection as standard in every gaming device in the near future”); J. Blascovich & J. Bailenson, Infinite Reality: Avatars, Eternal Life, New Worlds, and the Dawn of the Virtual Revolution 2 (2011) (“Technological developments powering virtual worlds are accelerating, ensuring that virtual experiences will become more immersive by providing sensory information that makes people feel they are ‘inside’ virtual worlds” (emphasis in the original)). Footnote 11 See Topolsky, The Mindwire V5 Turns Gaming into Pure Electroshock Torture, Engadget (Mar. 9, 2008), http://www.engadget.com/ 2008 / 03 / 09 / the - mindwire - v5 - turns - gaming - into - pure-electroshock-torture; Greenemeier, Video Game Vest Simulates Sensation of Being Capped, Scientific American (Oct. 25, 2007), http://www.scientificamerican.com/ article.cfm?id=video-game-vest-simulates. Footnote 12 See Schiesel, A Real Threat Now Faces the Nintendo Wii, N. Y. Times, Dec. 3, 2010, p. F7 (describing how leading developers of video-game consoles are competing to deliver gesture-controlled gaming devices). Footnote 13 For a sample of violent video games, see Wilson, The 10 Most Violent Video Games of All Time, PCMag.com (Feb. 10, 2011), http://www.pcmag.com/article2/0,2817,2379959,00.asp. To see brief video excerpts from violent games, see Chomik, Top 10: Most Violent Video Games, AskMen.com, http://www.askmen.com/top_10/videogame/ top-10-most-violent-video-games.html; Sayed, 15 Most Violent Video Games That Made You Puke, Gamingbolt (May 2, 2010), http:// gamingbolt.com/15-most-violent-video-games-that-made-you-puke. Footnote 14 Webley, “School Shooter” Video Game to Reenact Columbine, Virginia Tech Killings, Time (Apr. 20, 2011), http://newsfeed.time.com/ 2011 / 04 / 20 / school - shooter - video - game - reenacts-columbine-virginia-tech-killings. After a Web site that made School Shooter available for download removed it in response to mounting criticism, the developer stated that it may make the game available on its own Web site. Inside the Sick Site of a School Shooter Mod (Mar. 26, 2011), http://ssnat.com. Footnote 15 Lah, “RapeLay” Video Game Goes Viral Amid Outrage, CNN (Mar. 30, 2010), http://articles.cnn.com/2010-03-30/world/japan.video. game.rape_1_game-teenage-girl-japanese-government?_s=PM:WORLD. Footnote 16 Graham, Custer May be Shot Down Again in a Battle of the Sexes Over X-Rated Video Games, People, Nov. 15, 1982, pp. 110, 115. Footnote 17 Scheeres, Games Elevate Hate to Next Level, Wired (Feb. 20, 2002), http://www.wired.com/culture/lifestyle/news/2002/02/50523. Footnote 18 Thompson, A View to a Kill: JFK Reloaded is Just Plain Creepy, Slate (Nov. 22, 2004), http://www.slate.com/id/2110034. Footnote 19 As the Court notes, there are a few children’s books that ask young readers to step into the shoes of a character and to make choices that take the stories along one of a very limited number of possible lines. See ante , at 10. But the very nature of the print medium makes it impossible for a book to offer anything like the same number of choices as those provided by a video game. THOMAS, J., DISSENTING BROWN V. ENTERTAINMENT MERCHANTS ASSN. 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 08-1448 EDMUND G. BROWN, Jr., GOVERNOR OF CAL- IFORNIA, et al., PETITIONERS v. ENTERTAIN- MENT MERCHANTS ASSOCIATION et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 27, 2011]    Justice Thomas, dissenting.    The Court’s decision today does not comport with the original public understanding of the First Amendment. The majority strikes down, as facially unconstitutional, a state law that prohibits the direct sale or rental of certain video games to minors because the law “abridg[es] the freedom of speech.” U. S. Const., Amdt. 1. But I do not think the First Amendment stretches that far. The practices and beliefs of the founding generation establish that “the freedom of speech,” as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians. I would hold that the law at issue is not facially unconstitutional under the First Amendment, and reverse and remand for further proceedings.[ Footnote 1 ] I    When interpreting a constitutional provision, “the goal is to discern the most likely public understanding of [that] provision at the time it was adopted.” McDonald v. Chicago , 561 U. S. ___, ___ (2010) (slip op., at 25) (Thomas, J., concurring in part and concurring in judgment). Because the Constitution is a written instrument, “its meaning does not alter.” McIntyre v. Ohio Elections Comm’n , 514 U. S. 334 , 359 (1995) (Thomas, J., concurring in judgment) (internal quotation marks omitted). “That which it meant when adopted, it means now.” Ibid. (internal quotation marks omitted). As originally understood, the First Amendment’s protection against laws “abridging the freedom of speech” did not extend to all speech. “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire , 315 U. S. 568 , 571–572 (1942); see also United States v. Stevens , 559 U. S. ___, ___ (2010) (slip op., at 5–6). Laws regulating such speech do not “abridg[e] the freedom of speech” because such speech is understood to fall outside “the freedom of speech.” See Ashcroft v. Free Speech Coalition , 535 U. S. 234 , 245–246 (2002). In my view, the “practices and beliefs held by the Founders” reveal another category of excluded speech: speech to minor children bypassing their parents. McIntyre , supra, at 360. The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. It would be absurd to suggest that such a society understood “the freedom of speech” to include a right to speak to minors (or a corresponding right of minors to access speech) without going through the minors’ parents. Cf. Brief for Common Sense Media as Amicus Curiae 12–15. The founding generation would not have considered it an abridgment of “the freedom of speech” to support parental authority by restricting speech that bypasses minors’ parents. A Attitudes toward children were in a state of transition around the time that the States ratified the Bill of Rights. A complete understanding of the founding generation’s views on children and the parent-child relationship must therefore begin roughly a century earlier, in colonial New England. In the Puritan tradition common in the New England Colonies, fathers ruled families with absolute authority. “The patriarchal family was the basic building block of Puritan society.” S. Mintz, Huck’s Raft 13 (2004) (hereinafter Mintz); see also R. MacDonald, Literature for Children in England and America from 1646 to 1774, p. 7 (1982) (hereinafter MacDonald). The Puritans rejected many customs, such as godparenthood, that they considered inconsistent with the patriarchal structure. Mintz 13. Part of the father’s absolute power was the right and duty “to fill his children’s minds with knowledge and … make them apply their knowledge in right action.” E. Morgan, The Puritan Family 97 (rev. ed. 1966) (herein-after Morgan). Puritans thought children were “innately sinful and that parents’ primary task was to suppress their children’s natural depravity.” S. Mintz & S. Kellogg, Domestic Revolutions 2 (1988) (hereinafter Mintz & Kellogg); see also B. Wadsworth, The Well-Ordered Family 55 (1712) (“Children should not be left to themselves … to do as they please; … not being fit to govern themselves”); C. Mather, A Family Well-Ordered 38 (1699). Accordingly, parents were not to let their children read “vain Books, profane Ballads, and filthy Songs” or “fond and amorous Romances, … fabulous Histories of Giants, the bom- bast Achievements of Knight Errantry, and the like.” The History of Genesis, pp. vi–vii (3d ed. corrected 1708). This conception of parental authority was reflected in laws at that time. In the Massachusetts Colony, for example, it was unlawful for tavern keepers (or anyone else) to entertain children without their parents’ consent. 2 Records and Files of the Quarterly Courts of Essex County, Massachusetts, p. 180 (1912); 4 id., at 237, 275 (1914); 5 id., at 143 (1916); see also Morgan 146. And a “stubborn or rebellious son” of 16 years or more committed a capital offense if he disobeyed “the voice of his Father, or the voice of his Mother.” The Laws and Liberties of Massachusetts 6 (1648) (reprint M. Farrand ed. 1929); see also J. Kamensky, Governing the Tongue 102, n. 14 (1997) (citing similar laws in the Connecticut, New Haven, Plymouth, and New Hampshire Colonies in the late 1600’s). B In the decades leading up to and following the Revolution, attitudes towards children changed. See, e.g., J. Reinier, From Virtue to Character: American Childhood, 1775–1850, p. 1 (1996) (hereinafter Reinier). Children came to be seen less as innately sinful and more as blank slates requiring careful and deliberate development. But the same overarching principles remained. Parents continued to have both the right and duty to ensure the proper development of their children. They exercised significant authority over their children, including control over the books that children read. And laws at the time continued to reflect strong support for parental author- ity and the sense that children were not fit to govern themselves. 1 The works of John Locke and Jean-Jacques Rousseau were a driving force behind the changed understanding of children and childhood. See Reinier 2–5; H. Brewer, By Birth or Consent 97 (2005) (hereinafter Brewer); K. Calvert, Children in the House 59–60 (1992) (hereinafter Calvert). Locke taught that children’s minds were blank slates and that parents therefore had to be careful and deliberate about what their children were told and observed. Parents had only themselves to blame if, “by hu-mouring and cockering” their children, they “poison’d the fountain” and later “taste[d] the bitter waters.” Some Thoughts Concerning Education (1692), in 37 English Philosophers of the Seventeenth and Eighteenth Centuries 27–28 (C. Eliot ed. 1910). All vices, he explained, were sowed by parents and “those about children.” Id., at 29. Significantly, Locke did not suggest circumscribing parental authority but rather articulated a new basis for it. Rousseau disagreed with Locke in important respects, but his philosophy was similarly premised on parental control over a child’s development. Although Rousseau advocated that children should be allowed to develop naturally, he instructed that the environment be directed by “a tutor who is given total control over the child and who removes him from society, from all competing sources of authority and influence.” J. Fliegelman, Prodigals and Pilgrims 30 (1982) (hereinafter Fliegelman); see also Reinier 15. These writings received considerable attention in America. Locke’s An Essay Concerning Human Understanding and his Some Thoughts Concerning Education were significantly more popular than his Two Treatises of Government, according to a study of 92 colonial libraries between 1700 and 1776. Lundberg & May, The Enlightened Reader in America, 28 American Quarterly 262, 273 (1976) (hereinafter Lundberg). And Rousseau’s Emile, a treatise on education, was more widely advertised and distributed than his political work, The Social Contract. Fliegelman 29; see also Lundberg 285. In general, the most popular books in the Colonies on the eve of the American Revolution were not political discourses but ones concerned with child rearing. See Mintz & Kellogg 45. 2 Locke’s and Rousseau’s writings fostered a new conception of childhood. Children were increasingly viewed as malleable creatures, and childhood came to be seen as an important period of growth, development, and preparation for adulthood. See Mintz & Kellogg 17, 21, 47; M. Grossberg, Governing the Hearth 8 (1985) (hereinafter Grossberg). Noah Webster, called the father of American education, wrote that “[t]he impressions received in early life usually form the characters of individuals.” On the Education of Youth in America (1790) (hereinafter Webster), in Essays on Education in the Early Republic 43 (F. Rudolph ed. 1965) (hereinafter Rudolph); cf. Slater, Noah Webster: Founding Father of American Scholarship and Education, in Noah Webster’s First Edition of an American Dictionary of the English Language (1967). Elizabeth Smith, sister-in-law to John Adams, similarly wrote: “The Infant Mind, I beleive[,] is a blank, that eassily receives any impression.” M. Norton, Liberty’s Daughters 101 (1996) (internal quotation marks omitted) (hereinafter Norton); see also S. Doggett, A Discourse on Education (1796) (hereinafter Doggett), in Rudolph 151 (“[I]n early youth, … every power and capacity is pliable and susceptible of any direction or impression”); J. Abbott, The Mother at Home 2 (1834) (hereinafter Abbott) (“What impressions can be more strong, and more lasting, than those received upon the mind in the freshness and the susceptibility of youth”). Children lacked reason and decisionmaking ability. They “have not Judgment or Will of their own,” John Adams noted. Letter to James Sullivan (May 26, 1776), in 4 Papers of John Adams 210 (R. Taylor ed. 1979); see also Vol. 1 1787: Drafting the Constitution, p. 229 (W. Benton ed. 1986) (quoting Gouvernor Morris in James Madison’s notes from the Constitutional Convention explaining that children do not vote because they “want prudence” and “have no will of their own”). Children’s “utter incapacity” rendered them “almost wholly at the mercy of their Parents or Instructors for a set of habits to regulate their whole conduct through life.” J. Burgh, Thoughts on Education 7 (1749) (hereinafter Burgh). This conception of childhood led to great concern about influences on children. “Youth are ever learning to do what they see others around them doing, and these imitations grow into habits.” Doggett, in Rudolph 151; see also B. Rush, A Plan for the Establishment of Public Schools (1786) (hereinafter Rush), in Rudolph 16 (“The vices of young people are generally learned from each other”); Webster, in Rudolph 58 (“[C]hildren, artless and unsuspecting, resign their hearts to any person whose manners are agreeable and whose conduct is respectable”). Books therefore advised parents “not to put children in the way of those whom you dare not trust.” L. Child, The Mother’s Book 149 (1831) (hereinafter Child); see also S. Coontz, The Social Origins of Private Life 149–150 (1988) (noting that it was “considered dangerous to leave children to the supervision of servants or apprentices”). As a result, it was widely accepted that children needed close monitoring and carefully planned development. See B. Wishy, The Child and the Republic 24–25, 32 (1968) (hereinafter Wishy); Grossberg 8. Managing the young mind was considered “infinitely important.” Doggett, in Rudolph 151; see also A. MacLeod, A Moral Tale 72–73 (1975) (hereinafter MacLeod). In an essay on the education of youth in America, Noah Webster described the human mind as “a rich field, which, without constant care, will ever be covered with a luxuriant growth of weeds.” Rudolph 54. He advocated sheltering children from “every low-bred, drunken, immoral character” and keeping their minds “untainted till their reasoning faculties have acquired strength and the good principles which may be planted in their minds have taken deep root.” Id., at 63; see also Rush, in id., at 16 (“[T]he most useful citizens have been formed from those youth who have never known or felt their own wills till they were one and twenty years of age”); Burgh 7 (“[T]he souls of Youth are more immediately committed to the care of Parents and Instructors than even those of a People are to their Pastor”). The Revolution only amplified these concerns. The Re-public would require virtuous citizens, which necessi- tated proper training from childhood. See Mintz 54, 71; MacLeod 40; Saxton, French and American Childhoods, in Children and Youth in a New Nation 69 (J. Marten ed. 2009) (hereinafter Marten); see also W. Cardell, Story of Jack Halyard, pp. xv–xvi (30th ed. 1834) (hereinafter Cardell) (“[T]he glory and efficacy of our institutions will soon rest with those who are growing up to succede us”). Children were “the pivot of the moral world,” and their proper development was “a subject of as high interest, as any to which the human mind ha[d] ever been called.” Id., at xvi. 3 Based on these views of childhood, the founding generation understood parents to have a right and duty to govern their children’s growth. Parents were expected to direct the development and education of their children and ensure that bad habits did not take root. See Calvert 58–59; MacLeod 72; Mintz & Kellogg 23. They were responsible for instilling “moral prohibitions, behavioral standards, and a capacity for self-government that would prepare a child for the outside world.” Mintz & Kellogg 58; see also Youth’s Companion, Apr. 16, 1827, p. 1 (hereinafter Youth’s Companion) (“Let [children’s] minds be formed, their hearts prepared, and their characters moulded for the scenes and the duties of a brighter day”). In short, “[h]ome and family bore the major responsibility for the moral training of children and thus, by implication, for the moral health of the nation.” MacLeod 29; see also Introduction, in Marten 6; Reinier, p. xi; Smith, Autonomy and Affection: Parents and Children in Eighteenth-Century Chesapeake Families, in Growing up in America 54 (N. Hiner & J. Hawes eds. 1985). This conception of parental rights and duties was exemplified by Thomas Jefferson’s approach to raising children. He wrote letters to his daughters constantly and often gave specific instructions about what the children should do. See, e.g., Letter to Martha Jefferson (Nov. 28, 1783), in S. Randolph, The Domestic Life of Thomas Jefferson 44 (1939) (dictating her daily schedule of music, dancing, drawing, and studying); Letter to Martha Jefferson (Dec. 22, 1783), in id., at 45–46 (“I do not wish you to be gaily clothed at this time of life … . [A]bove all things and at all times let your clothes be neat, whole, and properly put on”). Jefferson expected his daughter, Martha, to write “by every post” and instructed her, “Inform me what books you read [and] what tunes you learn.” Letter (Nov. 28, 1783), in id., at 44. He took the same approach with his nephew, Peter Carr, after Carr’s father died. See Letter (Aug. 19, 1785), in 8 The Papers of Thomas Jefferson 405–408 (J. Boyd ed. 1953) (detailing a course of reading and exercise, and asking for monthly progress reports describing “in what manner you employ every hour in the day”); see also 3 Dictionary of Virginia Biography 29 (2006). Jefferson’s rigorous management of his charges was not uncommon. “[M]uch evidence indicates that mothers and fathers both believed in giving their children a strict upbringing, enforcing obedience to their commands and stressing continued subjection to the parental will.” Norton 96. Two parenting books published in the 1830’s gave prototypical advice. In The Mother’s Book, Lydia Child advised that “[t]he first and most important step in management is, that whatever a mother says, always must be done.” Child 26. John Abbott, the author of The Mother at Home, likewise advised that “[o]bedience is absolutely essential to proper family government.” Abbott 18. Echoing Locke, Abbott warned that parents who indulged a child’s “foolish and unreasonable wishes” would doom that child to be indulgent in adulthood. Id., at 16. The concept of total parental control over children’s lives extended into the schools. “The government both of families and schools should be absolute,” declared Noah Webster. Rudolph 57–58. Dr. Benjamin Rush concurred: “In the education of youth, let the authority of our masters be as absolute as possible.” Id., at 16. Through the doctrine of in loco parentis , teachers assumed the “ ‘sacred dut[y] of parents … to train up and qualify their children’ ” and exercised the same authority “ ‘to command obedience, to control stubbornness, to quicken diligence, and to reform bad habits.’ ” Morse v. Frederick , 551 U. S. 393 , 413–414 (2007) (Thomas, J., concurring) (quoting State v. Pendergrass , 19 N. C. 365, 365–366 (1837)); see also Wishy 73. Thus, the quality of teachers and schools had to “be watched with the most scrupulous attention.” Webster, in Rudolph 64. For their part, children were expected to be dutiful and obedient. Mintz & Kellogg 53; Wishy 31; cf. J. Kett, Rites of Passage 45 (1977). Schoolbooks instructed children to do so and frequently featured vignettes illustrating the consequences of disobedience. See Adams, “Pictures of the Vicious ultimately overcome by misery and shame”: The Cultural Work of Early National Schoolbooks (hereinafter Adams), in Marten 156. One oft-related example was the hangings of 19 alleged witches in 1692, which, the schoolbooks noted, likely began with false complaints by two young girls. See J. Morse, The American Geography 191 (1789); see also Adams, in Marten 164. An entire genre of books, “loosely termed ‘advice to youth,’ ” taught similar lessons well into the 1800’s. J. Demos, Circles and Lines: The Shape of Life in Early America 73 (2004); cf. Wishy 54. “Next to your duty to God,” advised one book, “is your duty to your parents” even if the child did not “understand the reason of their commands.” L. Sigourney, The Girl’s Reading Book 44 (14th ed. 1843); see also Filial Duty Recommended and Enforced, Introduction, p. iii (c. 1798); The Parent’s Present 44 (3d ed. 1841). “Disobedience is generally punished in some way or other,” warned another, “and often very severely.” S. Goodrich, Peter Parley’s Book of Fables 43 (1836); see also The Country School-House 27 (1848) (“[T]he number of children who die from the effects of disobedience to their parents is very large”). 4 Society’s concern with children’s development extended to the books they read. “Vice always spreads by being published,” Noah Webster observed. Rudolph 62. “[Y]oung people are taught many vices by fiction, books, or pub- lic exhibitions, vices which they never would have known had they never read such books or attended such pub- lic places.” Ibid.; see also Cardell, p. xii (cautioning parents that “[t]he first reading lessons for children have an extensive influence on the acquisitions and habits of future years”); Youth’s Companion 1 (“[T]he capacities of children, and the peculiar situation and duties of youth, require select and appropriate reading”). Prominent children’s authors harshly criticized fairy tales and the use of anthropomorphic animals. See, e.g., S. Goodrich, 2 Recollections of a Lifetime 320, n.* (1856) (describing fairy tales as “calculated to familiarize the mind with things shocking and monstrous; to cultivate a taste for tales of bloodshed and violence; to teach the young to use coarse language, and cherish vulgar ideas; … and to fill [the youthful mind] with the horrors of a debased and debauched fancy”); 1 id., at 167 (recalling that children’s books were “full of nonsense” and “lies”); Cardell, p. xiv (“The fancy of converting inferior animals into ‘teachers of children,’ has been carried to ridiculous extravagance”); see also MacDonald 83, 103 (noting that fables and works of fantasy were not popular in America in the 1700’s). Adults carefully controlled what they published for children. Stories written for children were dedicated to moral instruction and were relatively austere, lacking details that might titillate children’s minds. See MacLeod 24–25, 42–48; see also id., at 42 (“The authors of juvenile fiction imposed the constraints upon themselves in the name of duty, and for the sake of giving children what they thought children should have, although they were often well aware that children might prefer more excit- ing fare”); Francis, American Children’s Literature, 1646–1880, in American Childhood 208–209 (J. Hawes & N. Hiner eds. 1985). John Newbery, the publisher often credited with creating the genre of children’s literature, removed traditional folk characters, like Tom Thumb, from their original stories and placed them in new morality tales in which good children were rewarded and disobedient children punished. Reinier 12 . Parents had total authority over what their children read. See A. MacLeod, American Childhood 177 (1994) (“Ideally, if not always actually, nineteenth-century parents regulated their children’s lives fully, certainly including their reading”). Lydia Child put it bluntly in The Mother’s Book: “Children … should not read anything without a mother’s knowledge and sanction; this is particularly necessary between the ages of twelve and sixteen.” Child 92; see also id., at 143 (“[P]arents, or some guardian friends, should carefully examine every volume they put into the hands of young people”); E. Monaghan, Learning to Read and Write in Colonial America 337 (2005) (reviewing a 12-year-old girl’s journal from the early 1770’s and noting that the child’s aunts monitored and guided her reading). 5 The law at the time reflected the founding generation’s understanding of parent-child relations. According to Sir William Blackstone, parents were responsible for maintaining, protecting, and education their children, and therefore had “power” over their children. 1 Commentaries on the Laws of England 434, 440 (1765); cf. Washington v. Glucksberg , 521 U. S. 702 , 712 (1997) (Blackstone’s Commentaries was “a primary legal authority for 18th- and 19th-century American lawyers”). Chancellor James Kent agreed. 2 Commentaries on American Law *189–*207. The law entitled parents to “the custody of their [children],” “the value of th[e] [children’s] labor and services,” and the “right to the exercise of such discipline as may be requisite for the discharge of their sacred trust.” Id., at *193, *203. Children, in turn, were charged with “obedience and assistance during their own minority, and gratitude and reverance during the rest of their lives.” Id., at *207. Thus, in case after case, courts made clear that parents had a right to the child’s labor and services until the child reached majority. In 1810, the Supreme Judicial Court of Massachusetts explained, “There is no question but that a father, who is entitled to the services of his minor son, and for whom he is obliged to provide, may, at the common law, assign those services to others, for a consideration to enure to himself.” Day v. Everett, 7 Mass. 145, 147; see also Benson v. Remington , 2 Mass. 113, 115 (1806) (opinion of Parsons, C. J.) (“The law is very well settled, that parents are under obligations to support their children, and that they are entitled to their earnings”). Similarly, the Supreme Court of Judicature of New Hampshire noted that the right of parents to recover for the services of their child, while a minor, “cannot be contested.” Gale v. Parrot , 1 N. H. 28, 29 (1817). And parents could bring tort suits against those who knowingly enticed a minor away from them. See, e.g., Kirkpatrick v. Lockhart , 2 Brev. 276 (S. C. Constitutional Ct. 1809); Jones v. Tevis , 4 Litt. 25 (Ky. App. 1823). Relatedly, boys could not enlist in the military without parental consent. Many of those who did so during the Revolutionary War found, afterwards, that their fathers were entitled to their military wages. See Cox, Boy Soldiers of the American Revolution, in Marten 21–24. And after the war, minors who enlisted without parental consent in violation of federal law could find themselves returned home on writs of habeas corpus issued at their parents’ request. See, e.g., United States v. Anderson , 24 F. Cas. 813 (No. 14,449) (CC Tenn. 1812); Commonwealth v. Callan , 6 Binn. 255 (Pa. 1814) (per curiam) . Laws also set age limits restricting marriage without parental consent. For example, from 1730 until at least 1849, Pennsylvania law required parental consent for the marriage of anyone under the age of 21. See 4 Statutes at Large of Pennsylvania 153 (J. Mitchell & H. Flanders eds. 1897) (hereinafter Pa. Stats. at Large); General Laws of Pennsylvania 82–83 (J. Dunlop 2d ed. 1849) (including the 1730 marriage law with no amendments); see also Perpetual Laws of the Commonwealth of Massachusetts 253 (1788), in The First Laws of the Commonwealth of Massachusetts (J. Cushing ed. 1981). In general, “[p]ost-Revolutionary marriage law assumed that below a certain age, children could … no[t] intellectually understand its significance.” Grossberg 105. Indeed, the law imposed age limits on all manner of activities that required judgment and reason. Children could not vote, could not serve on juries, and generally could not be witnesses in criminal cases unless they were older than 14. See Brewer 43, 145, 148, 159. Nor could they swear loyalty to a State. See, e.g., 9 Pa. Stats. at Large 111 (1903 ed.). Early federal laws granting aliens the ability to become citizens provided that those under 21 were deemed citizens if their fathers chose to naturalize. See, e.g., Act of Mar. 26, 1790, 1 Stat. 104; Act of Jan. 29, 1795, ch. 20, 1 Stat. 415. C The history clearly shows a founding generation that believed parents to have complete authority over their minor children and expected parents to direct the development of those children. The Puritan tradition in New England laid the foundation of American parental authority and duty. See MacDonald 6 (“The Puritans are virtually the inventors of the family as we know it today”). In the decades leading up to and following the Revolution, the conception of the child’s mind evolved but the duty and authority of parents remained. Indeed, society paid closer attention to potential influences on children than before. See Mintz 72 (“By weakening earlier forms of patriarchal authority, the Revolution enhanced the importance of childrearing and education in ensuring social stability”). Teachers and schools came under scrutiny, and children’s reading material was carefully supervised. Laws reflected these concerns and often supported parental authority with the coercive power of the state. II A In light of this history, the Framers could not possibly have understood “the freedom of speech” to include an unqualified right to speak to minors. Specifically, I am sure that the founding generation would not have understood “the freedom of speech” to include a right to speak to children without going through their parents. As a consequence, I do not believe that laws limiting such speech—for example, by requiring parental consent to speak to a minor—“abridg[e] the freedom of speech” within the original meaning of the First Amendment. We have recently noted that this Court does not have “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.” Stevens , 559 U. S., at ___ (slip op., at 9). But we also recognized that there may be “some categories of speech that have been historically unprotected [and] have not yet been specifically identified or discussed as such in our case law.” Ibid. In my opinion, the historical evidence here plainly reveals one such category.[ Footnote 2 ] B Admittedly, the original public understanding of a constitutional provision does not always comport with modern sensibilities. See Morse , 551 U. S., at 419 (Thomas, J., concurring) (treating students “as though it were still the 19th century would find little support today”). It may also be inconsistent with precedent. See McDonald , 561 U. S., at ___–___ (Thomas, J., concurring in part and concurring in judgment) (slip op., at 48– 52) (rejecting the Slaughter-House Cases , 16 Wall. 36 (1873), as inconsistent with the original public meaning of the Privileges or Immunities Clause of the Fourteenth Amendment). This, however, is not such a case. Although much has changed in this country since the Revolution, the notion that parents have authority over their children and that the law can support that authority persists today. For example, at least some States make it a crime to lure or entice a minor away from the minor’s parent. See, e.g., Cal. Penal Code Ann. §272(b)(1) (West 2008); Fla. Stat. §787.03 (2010). Every State in the Union still establishes a minimum age for marriage without parental or judicial consent. Cf. Roper v. Simmons , 543 U. S. 551 , 558 (Appendix D to opinion of Court) (2005). Individuals less than 18 years old cannot enlist in the military without parental consent. 10 U. S. C. §505(a). And minors remain subject to curfew laws across the country, see Brief for Louisiana et al. as Amici Curiae 16, and cannot unilaterally consent to most medical procedures, id., at 15. Moreover, there are many things minors today cannot do at all, whether they have parental consent or not. State laws set minimum ages for voting and jury duty. See Roper , supra, at 581–585 (Appendixes B and C to opinion of Court). In California (the State at issue here), minors cannot drive for hire or drive a school bus, Cal. Veh. Code Ann. §§12515, 12516 (West 2010), purchase tobacco, Cal. Penal Code Ann. §308(b) (West 2008), play bingo for money, §326.5(e), or execute a will, Cal. Probate Code Ann. §6220 (West 2009). My understanding of “the freedom of speech” is also consistent with this Court’s precedents. To be sure, the Court has held that children are entitled to the protection of the First Amendment, see, e.g., Erznoznik v. Jacksonville , 422 U. S. 205 , 212–213 (1975), and the government may not unilaterally dictate what children can say or hear, see id., at 213–214; Tinker v. Des Moines Independent Community School Dist. , 393 U. S. 503 , 511 (1969). But this Court has never held, until today, that “the freedom of speech” includes a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents. To the contrary, “[i]t is well settled that a State or municipality can adopt more stringent controls on communicative materials available to youths than on those available to adults.” Erznoznik , supra, at 212; cf. post , at 3 (Breyer, J., dissenting). The Court’s constitutional jurisprudence “historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children.” Parham v. J. R. , 442 U. S. 584 , 602 (1979). Under that case law, “legislature[s] [can] properly conclude that parents and others, teachers for example, who have … primary responsibility for children’s well-being are entitled to the support of laws designed to aid discharge of that responsibility.” Ginsberg v. New York , 390 U. S. 629 , 639 (1968); see also Bellotti v. Baird , 443 U. S. 622 , 635 (1979) (opinion of Powell, J.) (“[T]he State is entitled to adjust its legal system to account for children’s vulnerability and their needs for concern, … sympathy, and … paternal attention” (internal quotation marks omitted)). This is because “the tradition of parental authority is not inconsistent with our tradition of individual liberty; rather, the former is one of the basic presuppositions of the latter.” Id., at 638; id. , at 638–639 (“Legal restrictions on minors, especially those supportive of the parental role, may be important to the child’s chances for the full growth and maturity that make eventual participation in a free society meaningful and rewarding”). III The California law at issue here prohibits the sale or rental of “violent video game[s]” to minors, defined as anyone “under 18 years of age.” Cal. Civ. Code Ann. §§1746.1(a), 1746 (West 2009). A violation of the law is punishable by a civil fine of up to $1,000. §1746.3. Critically, the law does not prohibit adults from buying or renting violent video games for a minor or prohibit minors from playing such games. Cf. ante , at 10 (Alito, J., concurring in judgment); post , at 10 (Breyer, J., dissenting). The law also does not restrict a “minor’s parent, grandparent, aunt, uncle, or legal guardian” from selling or renting him a violent video game. §1746.1(c). Respondents, associations of companies in the video game industry, brought a preenforcement challenge to California’s law, claiming that on its face the law violates the free speech rights of their members. The Court holds that video games are speech for purposes of the First Amendment and finds the statute facially unconstitutional. See ante , at 2–3, 11–17. I disagree. Under any of this Court’s standards for a facial First Amendment challenge, this one must fail. The video game associations cannot show “that no set of circumstances exists under which [the law] would be valid,” “that the statute lacks any plainly legitimate sweep,” or that “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Stevens , 559 U. S., at ___ (slip op., at 10) (internal quotation marks omitted). Even assuming that video games are speech, in most applications the California law does not implicate the First Amendment. All that the law does is prohibit the direct sale or rental of a violent video game to a minor by someone other than the minor’s parent, grandparent, aunt, uncle, or legal guardian. Where a minor has a parent or guardian, as is usually true, the law does not prevent that minor from obtaining a violent video game with his parent’s or guardian’s help. In the typical case, the only speech affected is speech that bypasses a minor’s parent or guardian. Because such speech does not fall within “the freedom of speech” as originally understood, California’s law does not ordinarily implicate the First Amendment and is not facially unconstitutional.[ Footnote 3 ] *  *  * “The freedom of speech,” as originally understood, does not include a right to speak to minors without going through the minors’ parents or guardians. Therefore, I cannot agree that the statute at issue is facially unconstitutional under the First Amendment. I respectfully dissent. Footnote 1 Justice Alito concludes that the law is too vague to satisfy due process, but neither the District Court nor the Court of Appeals addressed that question. Ante , at 2–9 (opinion concurring in judgment). As we have often said, this Court is “one of final review, ‘not of first view.’ ” FCC v. Fox Television Stations, Inc. , 556 U. S. ___, ___ (2009) (slip op., at 25) (quoting Cutter v. Wilkinson , 544 U. S. 709 , 718, n. 7 (2005)). Footnote 2 The majority responds that “it does not follow” from the historical evidence “that the state has the power to prevent children from hearing … anything without their parents’ prior consent .” Ante , at 7, n. 3. Such a conclusion, the majority asserts, would lead to laws that, in its view, would be undesirable and “obviously” unconstitutional. Ibid. The majority’s circular argument misses the point. The question is not whether certain laws might make sense to judges or legislators today, but rather what the public likely understood “the freedom of speech” to mean when the First Amendment was adopted. See District of Columbia v. Heller , 554 U. S. 570 , 634–635 (2008). I believe it is clear that the founding public would not have understood “the freedom of speech” to include speech to minor children bypassing their parents. It follows that the First Amendment imposes no restriction on state regulation of such speech. To note that there may not be “precedent for [such] state control,” ante , at 8, n. 3, “is not to establish that [there] is a constitutional right,” McIntyre v. Ohio Elections Comm’n , 514 U. S. 334 , 373 (1995) (Scalia, J., dissenting). Footnote 3 Whether the statute would survive an as-applied challenge in the unusual case of an emancipated minor is a question for another day. To decide this case, it is enough that the statute is not unconstitutional on its face. BREYER, J., DISSENTING BROWN V. ENTERTAINMENT MERCHANTS ASSN. 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 08-1448 EDMUND G. BROWN, Jr., GOVERNOR OF CAL- IFORNIA, et al., PETITIONERS v. ENTERTAIN- MENT MERCHANTS ASSOCIATION et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 27, 2011]    Justice Breyer, dissenting.    California imposes a civil fine of up to $1,000 upon any person who distributes a violent video game in California without labeling it “18,” or who sells or rents a labeled violent video game to a person under the age of 18. Rep- resentatives of the video game and software industries, claiming that the statute violates the First Amendment on its face, seek an injunction against its enforcement. Applying traditional First Amendment analysis, I would uphold the statute as constitutional on its face and would consequently reject the industries’ facial challenge. I A    California’s statute defines a violent video game as: A game in which a player “kill[s], maim[s], dismember[s], or sexually assault[s] an image of a human being,” and “[a] reasonable person, considering the game as a whole, would find [the game] appeals to a deviant or morbid interest of minors,” and “[the game] is patently offensive to prevailing standards in the community as to what is suitable for minors,” and “the game, as a whole, … lack[s] serious literary, artistic, political, or scientific value for minors.” Cal. Civ. Code Ann. §1746(d)(1) (West 2009). The statute in effect forbids the sale of such a game to minors unless they are accompanied by a parent; it requires the makers of the game to affix a label identifying it as a game suitable only for those aged 18 and over; it exempts retailers from liability unless such a label is properly affixed to the game; and it imposes a civil fine of up to $1,000 upon a violator. See §§1746.1–1746.3. B A facial challenge to this statute based on the First Amendment can succeed only if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” United States v. Stevens , 559 U. S. __, __ (2010) (slip op., at 10) (internal quotation marks omitted) . Moreover, it is more difficult to mount a facial First Amendment attack on a statute that seeks to regulate activity that involves action as well as speech. See Broadrick v. Oklahoma , 413 U. S. 601 , 614–615 (1973). Hence, I shall focus here upon an area within which I believe the State can legitimately apply its statute, namely sales to minors under the age of 17 (the age cutoff used by the industry’s own ratings system), of highly realistic violent video games, which a reasonable game maker would know meet the Act’s criteria. That area lies at the heart of the statute. I shall assume that the number of instances in which the State will enforce the statute within that area is comparatively large, and that the number outside that area (for example, sales to 17-year-olds) is comparatively small. And the activity the statute regulates combines speech with action (a virtual form of target practice). C    In determining whether the statute is unconstitutional, I would apply both this Court’s “vagueness” precedents and a strict form of First Amendment scrutiny. In doing so, the special First Amendment category I find relevant is not (as the Court claims) the category of “depictions of violence,” ante , at 8, but rather the category of “protection of children.” This Court has held that the “power of the state to control the conduct of children reaches beyond the scope of its authority over adults.” Prince v. Massachusetts , 321 U. S. 158 , 170 (1944). And the “ ‘regulatio[n] of communication addressed to [children] need not conform to the requirements of the [F]irst [A]mendment in the same way as those applicable to adults.’ ” Ginsberg v. New York , 390 U. S. 629 , 638, n. 6 (1968) (quoting Emerson, Toward a General Theory of the First Amendment, 72 Yale L. J. 877, 939 (1963)).    The majority’s claim that the California statute, if upheld, would create a “new categor[y] of unprotected speech,” ante , at 3, 6, is overstated. No one here argues that depictions of violence, even extreme violence, automatically fall outside the First Amendment’s protective scope as, for example, do obscenity and depictions of child pornography. We properly speak of categories of expression that lack protection when, like “child pornography,” the category is broad, when it applies automatically, and when the State can prohibit everyone, including adults, from obtaining access to the material within it. But where, as here, careful analysis must precede a narrower judicial conclusion (say, denying protection to a shout of “fire” in a crowded theater, or to an effort to teach a terrorist group how to peacefully petition the United Nations), we do not normally describe the result as creating a “new category of unprotected speech.” See Schenck v. United States , 249 U. S. 47 , 52 (1919); Holder v. Humanitarian Law Project , 561 U. S. __ (2010).    Thus, in Stevens, after rejecting the claim that all de-pictions of animal cruelty (a category) fall outside the First Amendment’s protective scope, we went on to decide whether the particular statute at issue violates the First Amendment under traditional standards; and we held that, because the statute was overly broad, it was invalid. Similarly, here the issue is whether, applying traditional First Amendment standards, this statute does, or does not, pass muster. II    In my view, California’s statute provides “fair notice of what is prohibited,” and consequently it is not impermissibly vague. United States v. Williams , 553 U. S. 285 , 304 (2008). Ginsberg explains why that is so. The Court there considered a New York law that forbade the sale to minors of a “picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image of a person or portion of the human body which depicts nudity . . . ,” that “predominately appeals to the prurient, shameful or morbid interest of minors,” and “is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors,” and “is utterly without redeeming social importance for minors.” 390 U. S., at 646–647. This Court upheld the New York statute in Ginsberg (which is sometimes unfortunately confused with a very different, earlier case, Ginzburg v. United States , 383 U. S. 463 (1966)). The five-Justice majority, in an opinion written by Justice Brennan, wrote that the statute was suf- ficiently clear. 390 U. S., at 643–645. No Member of the Court voiced any vagueness objection. See id. , at 648–650 (Stewart, J., concurring in result); id. , at 650–671 (Douglas, J., joined by Black, J., dissenting); id. , at 671–675 (Fortas, J., dissenting).    Comparing the language of California’s statute (set forth supra , at 1–2) with the language of New York’s statute (set forth immediately above), it is difficult to find any vagueness-related difference. Why are the words “kill,” “maim,” and “dismember” any more difficult to understand than the word “nudity?” Justice Alito objects that these words do “not perform the narrowing function” that this Court has required in adult obscenity cases, where statutes can only cover “ ‘hard core’ ” depictions. Ante , at 6 (opinion concurring in judgment). But the relevant comparison is not to adult obscenity cases but to Ginsberg , which dealt with “nudity,” a category no more “narrow” than killing and maiming. And in any event, narrowness and vagueness do not necessarily have anything to do with one another. All that is required for vagueness purposes is that the terms “kill,” “maim,” and “dismember” give fair notice as to what they cover, which they do.    The remainder of California’s definition copies, almost word for word, the language this Court used in Miller v. California , 413 U. S. 15 (1973), in permitting a total ban on material that satisfied its definition (one enforced with criminal penalties). The California law’s reliance on “community standards” adheres to Miller , and in Fort Wayne Books, Inc. v. Indiana , 489 U. S. 46 , 57–58 (1989) , this Court specifically upheld the use of Miller’ s language against charges of vagueness. California only departed from the Miller formulation in two significant respects: It substituted the word “deviant” for the words “prurient” and “shameful,” and it three times added the words “for minors.” The word “deviant” differs from “prurient” and “shameful,” but it would seem no less suited to defining and narrowing the reach of the statute. And the addition of “for minors” to a version of the Miller standard was approved in Ginsberg , 390 U. S., at 643, even though the New York law “dr[ew] no distinction between young children and adolescents who are nearing the age of majority,” ante , at 8 (opinion of Alito, J.).    Both the Miller standard and the law upheld in Ginsberg lack perfect clarity. But that fact reflects the dif- ficulty of the Court’s long search for words capable of protecting expression without depriving the State of a legitimate constitutional power to regulate. As is well known, at one point Justice Stewart thought he could do no better in defining obscenity than, “I know it when I see it.” Jacobellis v. Ohio , 378 U. S. 184 , 197 (1964) (concurring opinion). And Justice Douglas dissented from Miller ’s standard, which he thought was still too vague. 413 U. S., at 39–40. Ultimately, however, this Court accepted the “community standards” tests used in Miller and Ginsberg . They reflect the fact that sometimes, even when a precise standard proves elusive, it is easy enough to identify instances that fall within a legitimate regulation. And they seek to draw a line, which, while favoring free expression, will nonetheless permit a legislature to find the words necessary to accomplish a legitimate constitutional objective. Cf. Williams , supra , at 304 (the Constitution does not always require “ ‘perfect clarity and precise guidance,’ ” even when “ ‘expressive activity’ ” is involved).    What, then, is the difference between Ginsberg and Miller on the one hand and the California law on the other? It will often be easy to pick out cases at which California’s statute directly aims, involving, say, a character who shoots out a police officer’s knee, douses him with gasoline, lights him on fire, urinates on his burning body, and finally kills him with a gunshot to the head. (Foot- age of one such game sequence has been submitted in the record.) See also ante , at 14–15 (Alito, J., concurring in judgment). As in Miller and Ginsberg , the California law clearly protects even the most violent games that possess serious literary, artistic, political, or scientific value. §1746(d)(1)(A)(iii). And it is easier here than in Miller or Ginsberg to separate the sheep from the goats at the statute’s border. That is because here the industry it- self has promulgated standards and created a review process, in which adults who “typically have experience with children” assess what games are inappropriate for minors. See Entertainment Software Rating Board, Rating Process, online at http://www.esrb.org/ratings/&ratings_ process.jsp (all Internet materials as visited June 24, 2011, and available in Clerk of Court’s case file).    There is, of course, one obvious difference: The Ginsberg statute concerned depictions of “nudity,” while California’s statute concerns extremely violent video games. But for purposes of vagueness, why should that matter? Justice Alito argues that the Miller standard sufficed because there are “certain generally accepted norms concerning expression related to sex,” whereas there are no similarly “accepted standards regarding the suitability of violent entertainment.” Ante , at 7–8. But there is no evidence that is so. The Court relied on “community standards” in Miller precisely because of the difficulty of articulating “accepted norms” about depictions of sex. I can find no difference—historical or otherwise—that is relevant to the vagueness question. Indeed, the majority’s examples of literary descriptions of violence, on which Justice Alito relies, do not show anything relevant at all.    After all, one can find in literature as many (if not more) descriptions of physical love as descriptions of violence. Indeed, sex “has been a theme in art and literature throughout the ages.” Ashcroft v. Free Speech Coalition , 535 U. S. 234 , 246 (2002) . For every Homer, there is a Titian. For every Dante, there is an Ovid. And for all the teenagers who have read the original versions of Grimm’s Fairy Tales, I suspect there are those who know the story of Lady Godiva.    Thus, I can find no meaningful vagueness-related dif-ferences between California’s law and the New York law upheld in Ginsberg . And if there remain any vagueness problems, the state courts can cure them through interpretation. See Erznoznik v. Jacksonville , 422 U. S. 205 , 216 (1975) (“[S]tate statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction by the state courts”). Cf. Ginsberg , supra , at 644 (relying on the fact that New York Court of Appeals would read a knowledge requirement into the statute); Berry v. Santa Barbara , 40 Cal. App. 4th 1075, 1088–1089, 47 Cal. Rptr. 2d 661, 669 (1995) (reading a knowledge requirement into a statute). Consequently, for purposes of this facial challenge, I would not find the statute unconstitutionally vague. III    Video games combine physical action with expression. Were physical activity to predominate in a game, government could appropriately intervene, say by requiring parents to accompany children when playing a game in-volving actual target practice, or restricting the sale of toys presenting physical dangers to children. See generally Consumer Product Safety Improvement Act of 2008, 122 Stat. 3016 (“Title I—Children’s Product Safety”). But because video games also embody important expressive and artistic elements, I agree with the Court that the First Amendment significantly limits the State’s power to regulate. And I would determine whether the State has exceeded those limits by applying a strict standard of review.    Like the majority, I believe that the California law must be “narrowly tailored” to further a “compelling interest,” without there being a “less restrictive” alternative that would be “at least as effective.” Reno v. American Civil Liberties Union , 521 U. S. 844 , 874, 875, 879 (1997). I would not apply this strict standard “mechanically.” United States v. Playboy Entertainment Group, Inc. , 529 U. S. 803 , 841 (2000) (Breyer, J., joined by Rehnquist, C. J., and O’Connor and Scalia, JJ., dissenting). Rather, in applying it, I would evaluate the degree to which the statute injures speech-related interests, the nature of the potentially-justifying “compelling interests,” the degree to which the statute furthers that interest, the nature and effectiveness of possible alternatives, and, in light of this evaluation, whether, overall, “the statute works speech-related harm . . . out of proportion to the benefits that the statute seeks to provide.” Ibid. See also Burson v. Freeman , 504 U. S. 191 , 210 (1992) (plurality opinion) (applying strict scrutiny and finding relevant the lack of a “significant impingement” on speech).    First Amendment standards applied in this way are difficult but not impossible to satisfy. Applying “strict scrutiny” the Court has upheld restrictions on speech that, for example, ban the teaching of peaceful dispute resolution to a group on the State Department’s list of terrorist organizations, Holder , 561 U. S., at ___ (slip op., at 22–34); but cf. id. , at ___ (slip op., at 1 ) (Breyer, J., dissenting), and limit speech near polling places, Burson , supra , at 210–211 (plurality opinion). And applying less clearly defined but still rigorous standards, the Court has allowed States to require disclosure of petition signers, Doe v. Reed , 561 U. S. ___ (2010), and to impose campaign contribution limits that were “ ‘closely drawn’ to match a ‘sufficiently important interest,’ ” Nixon v. Shrink Missouri Government PAC , 528 U. S. 377 , 387–388 (2000).    Moreover, although the Court did not specify the “level of scrutiny” it applied in Ginsberg , we have subsequently described that case as finding a “compelling interest” in protecting children from harm sufficient to justify limitations on speech. See Sable Communications of Cal., Inc. v. FCC , 492 U. S. 115 , 126 (1989). Since the Court in Ginsberg specified that the statute’s prohibition applied to material that was not obscene, 390 U. S., at 634, I cannot dismiss Ginsberg on the ground that it concerned obscenity. But cf. ante , at 6 (majority opinion). Nor need I depend upon the fact that the Court in Ginsberg insisted only that the legislature have a “rational” basis for finding the depictions there at issue harmful to children. 390 U. S., at 639. For in this case, California has substan-tiated its claim of harm with considerably stronger evidence. A    California’s law imposes no more than a modest restriction on expression. The statute prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child or adolescent from obtaining a game provided a parent is willing to help. §1746.1(c). All it prevents is a child or adolescent from buying, without a parent’s assistance, a gruesomely violent video game of a kind that the industry itself tells us it wants to keep out of the hands of those under the age of 17. See Brief for Respondents 8.    Nor is the statute, if upheld, likely to create a prece- dent that would adversely affect other media, say films, or videos, or books. A typical video game involves a significant amount of physical activity. See ante , at 13–14 (Alito, J., concurring in judgment) (citing examples of the increasing interactivity of video game controllers). And pushing buttons that achieve an interactive, virtual form of target practice (using images of human beings as targets), while containing an expressive component, is not just like watching a typical movie. See infra , at 14. B    The interest that California advances in support of the statute is compelling. As this Court has previously described that interest, it consists of both (1) the “basic” parental claim “to authority in their own household to direct the rearing of their children,” which makes it proper to enact “laws designed to aid discharge of [parental] responsibility,” and (2) the State’s “independent interest in the well-being of its youth.” Ginsberg , 390 U. S., at 639–640. Cf. id. , at 639, n. 7 (“ ‘[O]ne can well distinguish laws which do not impose a morality on children, but which support the right of parents to deal with the morals of their children as they see fit’ ” (quoting Henkin, Morals and the Constitution: The Sin of Obscenity, 63 Colum. L. Rev. 391, 413, n. 68 (1963))). And where these interests work in tandem, it is not fatally “underinclusive” for a State to advance its interests in protecting children against the special harms present in an interactive video game medium through a default rule that still allows parents to provide their children with what their parents wish.    Both interests are present here. As to the need to help parents guide their children, the Court noted in 1968 that “ ‘parental control or guidance cannot always be provided.’ ” 390 U. S., at 640. Today, 5.3 million grade-school-age children of working parents are routinely home alone. See Dept. of Commerce, Census Bureau, Who’s Minding the Kids? Child Care Arrangements: Spring 2005/Summer 2006, p. 12 (2010), online at http:// www.census.gov/prod/2010pubs/p70-121.pdf. Thus, it has, if anything, become more important to supplement parents’ authority to guide their children’s development.    As to the State’s independent interest, we have pointed out that juveniles are more likely to show a “ ‘lack of maturity’ ” and are “more vulnerable or susceptible to negative influences and outside pressures,” and that their “character . . . is not as well formed as that of an adult.” Roper v. Simmons , 543 U. S. 551 , 569–570 (2005). And we have therefore recognized “a compelling interest in protecting the physical and psychological well-being of minors.” Sable Communications , supra , at 126.    At the same time, there is considerable evidence that California’s statute significantly furthers this compelling interest. That is, in part, because video games are excellent teaching tools. Learning a practical task often means developing habits, becoming accustomed to performing the task, and receiving positive reinforcement when performing that task well. Video games can help develop habits, accustom the player to performance of the task, and reward the player for performing that task well. Why else would the Armed Forces incorporate video games into its training? See CNN, War Games: Military Train- ing Goes High-Tech (Nov. 22, 2001), online at http://articles.cnn.com / 2001–11–2 / tech /2war.games_1_ict- bill-swartout-real-world-training?_s=PM:TECH.    When the military uses video games to help soldiers train for missions, it is using this medium for a beneficial purpose. But California argues that when the teaching features of video games are put to less desirable ends, harm can ensue. In particular, extremely violent games can harm children by rewarding them for being violently aggressive in play, and thereby often teaching them to be violently aggressive in life. And video games can cause more harm in this respect than can typically passive media, such as books or films or television programs.    There are many scientific studies that support California’s views. Social scientists, for example, have found causal evidence that playing these games results in harm. Longitudinal studies, which measure changes over time, have found that increased exposure to violent video games causes an increase in aggression over the same period. See Möller & Krahé, Exposure to Violent Video Games and Aggression in German Adolescents: A Longitudinal Analysis, 35 Aggressive Behavior 75 (2009); Gentile & Gentile, Violent Video Games as Exemplary Teachers: A Conceptual Analysis, 37 J. Youth & Adolescence 127 (2008); Anderson et al., Longitudinal Effects of Violent Video Games on Aggression in Japan and the United States, 122 Pediatrics e1067 (2008); Wallenius & Punamäki, Digital Game Violence and Direct Aggression in Adolescence: A Longitudinal Study of the Roles of Sex, Age, and Parent-Child Communication, 29 J. Applied Developmental Psychology 286 (2008).    Experimental studies in laboratories have found that subjects randomly assigned to play a violent video game subsequently displayed more characteristics of aggression than those who played nonviolent games. See, e.g. , Anderson et al., Violent Video Games: Specific Effects of Violent Content on Aggressive Thoughts and Behavior, 36 Advances in Experimental Soc. Psychology 199 (2004).    Surveys of 8th and 9th grade students have found a correlation between playing violent video games and aggression. See, e.g. , Gentile, Lynch, Linder, & Walsh, The Effects of Violent Video Game Habits On Adolescent Hostility, Aggressive Behaviors, and School Performance, 27 J. Adolescence 5 (2004).    Cutting-edge neuroscience has shown that “virtual violence in video game playing results in those neural patterns that are considered characteristic for aggressive cognition and behavior.” Weber, Ritterfeld, & Mathiak, Does Playing Violent Video Games Induce Aggression? Empirical Evidence of a Functional Magnetic Resonance Imaging Study, 8 Media Psychology 39, 51 (2006).    And “meta-analyses,” i.e. , studies of all the studies, have concluded that exposure to violent video games “was positively associated with aggressive behavior, aggressive cognition, and aggressive affect,” and that “playing violent video games is a causal risk factor for long-term harmful outcomes.” Anderson et al., Violent Video Game Effects on Aggression, Empathy, and Prosocial Behavior in Eastern and Western Countries: A Meta-Analytic Review, 136 Psychological Bulletin 151, 167, 169 (2010) (emphasis added).    Some of these studies take care to explain in a common- sense way why video games are potentially more harmful than, say, films or books or television. In essence, they say that the closer a child’s behavior comes, not to watching, but to acting out horrific violence, the greater the potential psychological harm. See Bushman & Huesmann, Aggression, in 2 Handbook of Social Pscyhology 833, 851 (S. Fiske, D. Gilbert, & G. Lindzey eds., 5th ed. 2010) (video games stimulate more aggression because “[p]eople learn better when they are actively involved,” players are “more likely to identify with violent characters,” and “violent games directly reward violent behavior”); Polman, de Castro, & van Aken, Experimental Study of the Differential Effects of Playing Versus Watching Violent Video Games on Children’s Aggressive Behavior, 34 Aggressive Behavior 256 (2008) (finding greater aggression resulting from playing, as opposed to watching, a violent game); C. Anderson, D. Gentile, & K. Buckley, Violent Video Game Effects on Children and Adolescents 136–137 (2007) (three studies finding greater effects from games as opposed to television). See also infra , at 15–16 (statements of expert public health associations agreeing that interactive games can be more harmful than “passive” media like television); ante , at 12–17 (Alito, J., concurring in judgment).    Experts debate the conclusions of all these studies. Like many, perhaps most, studies of human behavior, each study has its critics, and some of those critics have produced studies of their own in which they reach different conclusions. (I list both sets of research in the appendixes.) I, like most judges, lack the social science expertise to say definitively who is right. But associations of public health professionals who do possess that expertise have reviewed many of these studies and found a significant risk that violent video games, when compared with more passive media, are particularly likely to cause children harm.    Eleven years ago, for example, the American Academy of Pediatrics, the American Academy of Child & Adolescent Psychiatry, the American Psychological Association, the American Medical Association, the American Academy of Family Physicians, and the American Psychiatric Association released a joint statement, which said: “[O]ver 1000 studies . . . point overwhelmingly to a causal connection between media violence and aggressive behavior in some children . . . [and, though less research had been done at that time, preliminary studies indicated that] the impact of violent interactive entertainment (video games and other interactive media) on young people . . . may be significantly more severe than that wrought by television, movies, or music.” Joint Statement on the Impact of Entertainment Violence on Children (2000) (emphasis added), online at http://www.aap.org/advocacy/releases/jstmtevc.htm.    Five years later, after more research had been done, the American Psychological Association adopted a resolution that said: “[C]omprehensive analysis of violent interactive video game research suggests such exposure . . . increases aggressive behavior, . . . increases aggressive thoughts, . . . increases angry feelings, . . . decreases helpful behavior, and . . . increases physio- logical arousal.” Resolution on Violence in Video Games and Interactive Media (2005), online at http:// www.apa.org / about / governance / council / policy/ interactive-media.pdf. The Association added: “[T]he practice, repetition, and rewards for acts of violence may be more conducive to increasing aggressive behavior among children and youth than passively watching violence on TV and in films.” Ibid. (emphasis added). Four years after that, in 2009, the American Academy of Pediatrics issued a statement in significant part about interactive media. It said: “Studies of these rapidly growing and ever-more-sophisticated types of media have indicated that the effects of child-initiated virtual violence may be even more profound than those of passive media such as television. In many games the child or teenager is ‘embedded’ in the game and uses a ‘joystick’ (handheld controller) that enhances both the experience and the aggressive feelings.” Policy Statement—Media Violence, 124 Pediatrics 1495, 1498 (2009) (emphasis added). It added: “Correlational and experimental studies have revealed that violent video games lead to increases in aggressive behavior and aggressive thinking and decreases in prosocial behavior. Recent longitudinal studies . . . have revealed that in as little as 3 months, high exposure to violent video games increased physical aggression. Other recent longitudinal studies . . . have revealed similar effects across 2 years.” Ibid. (footnotes omitted).    Unlike the majority, I would find sufficient grounds in these studies and expert opinions for this Court to defer to an elected legislature’s conclusion that the video games in question are particularly likely to harm children. This Court has always thought it owed an elected legislature some degree of deference in respect to legislative facts of this kind, particularly when they involve technical matters that are beyond our competence, and even in First Amendment cases. See Holder , 561 U. S., at ___ (slip op., at 28–29) (deferring, while applying strict scrutiny, to the Government’s national security judgments); Turner Broadcasting System, Inc. v. FCC , 520 U. S. 180 , 195–196 (1997) (deferring, while applying intermediate scrutiny, to the Government’s technological judgments). The majority, in reaching its own, opposite conclusion about the validity of the relevant studies, grants the legislature no deference at all. Compare ante , at 12–13 (stating that the studies do not provide evidence that violent video games “cause” harm (emphasis deleted)), with supra , at 12–13 (citing longitudinal studies finding causation). C    I can find no “less restrictive” alternative to California’s law that would be “at least as effective.” See Reno , 521 U. S., at 874. The majority points to a voluntary alternative: The industry tries to prevent those under 17 from buying extremely violent games by labeling those games with an “M” (Mature) and encouraging retailers to restrict their sales to those 17 and older. See ante , at 15–16. But this voluntary system has serious enforcement gaps. When California enacted its law, a Federal Trade Commission (FTC) study had found that nearly 70% of unaccompanied 13- to 16-year-olds were able to buy M-rated video games. FTC, Marketing Violent Entertainment to Children 27 (2004), online at http://www.ftc.gov/os/2004/ 07/040708kidsviolencerpt.pdf. Subsequently the volun- tary program has become more effective. But as of the FTC’s most recent update to Congress, 20% of those under 17 are still able to buy M-rated video games, and, breaking down sales by store, one finds that this num- ber rises to nearly 50% in the case of one large national chain. FTC, Marketing Violent Entertainment to Chil- dren 28 (2009), online at http://www.ftc.gov/os/2009/12/ P994511violententertainment.pdf. And the industry could easily revert back to the substantial noncompliance that existed in 2004, particularly after today’s broad ruling reduces the industry’s incentive to police itself.    The industry also argues for an alternative technological solution, namely “filtering at the console level.” Brief for Respondents 53. But it takes only a quick search of the Internet to find guides explaining how to circum- vent any such technological controls. YouTube viewers, for example, have watched one of those guides (called “How to bypass parental controls on the Xbox 360”) more than 47,000 times. See http://www.youtube.com/watch?v= CFlVfVmvN6k. IV    The upshot is that California’s statute, as applied to its heartland of applications ( i.e., buyers under 17; extremely violent, realistic video games), imposes a restriction on speech that is modest at most. That restriction is justified by a compelling interest (supplementing parents’ efforts to prevent their children from purchasing potentially harmful violent, interactive material). And there is no equally effective, less restrictive alternative. California’s statute is consequently constitutional on its face—though litigants remain free to challenge the statute as applied in particular instances, including any effort by the State to apply it to minors aged 17.    I add that the majority’s different conclusion creates a serious anomaly in First Amendment law. Ginsberg makes clear that a State can prohibit the sale to minors of depictions of nudity; today the Court makes clear that a State cannot prohibit the sale to minors of the most violent interactive video games. But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restrict- ing sales of that extremely violent video game only when the woman—bound, gagged, tortured, and killed—is also topless?    This anomaly is not compelled by the First Amendment. It disappears once one recognizes that extreme violence, where interactive, and without literary, artistic, or similar justification , can prove at least as, if not more, harmful to children as photographs of nudity. And the record here is more than adequate to support such a view. That is why I believe that Ginsberg controls the outcome here a fortiori. And it is why I believe California’s law is constitutional on its face.    This case is ultimately less about censorship than it is about education. Our Constitution cannot succeed in securing the liberties it seeks to protect unless we can raise future generations committed cooperatively to making our system of government work. Education, however, is about choices. Sometimes, children need to learn by making choices for themselves. Other times, choices are made for children—by their parents, by their teachers, and by the people acting democratically through their governments. In my view, the First Amendment does not disable government from helping parents make such a choice here—a choice not to have their children buy extremely violent, interactive video games, which they more than reasonably fear pose only the risk of harm to those children.    For these reasons, I respectfully dissent. APPENDIXES    With the assistance of the Supreme Court Library, I have compiled these two appendixes listing peer-reviewed academic journal articles on the topic of psychological harm resulting from playing violent video games. The library conducted a search for relevant articles on the following databases: PsycINFO, PubMed, Academic Search Premier, ArticleFirst (OCLC), and Dialog (files 1, 7, 34, 98, 121, 142, 144, 149). The following search terms were used: “(video* or computer or arcade or online) and (game*) and (attack* or fight* or aggress* or violen* or hostil* or ang* or arous* or prosocial or help* or desens* or empathy).” After eliminating irrelevant matches based on title or abstract, I categorized these articles as either supporting the hypothesis that violent video games are harmful (listed in Appendix A), or not supporting/rejecting the hypothesis that violent video games are harmful (listed in Appendix B).    Many, but not all, of these articles were available to the California Legislature or the parties in briefing this case. I list them because they suggest that there is substantial (though controverted) evidence supporting the expert associations of public health professionals that have concluded that violent video games can cause children psychological harm. See supra , at 15–16. And consequently, these studies help to substantiate the validity of the original judgment of the California Legislature, as well as that judgment’s continuing validity. A Anderson & Bushman, Effects of Violent Video Games on Aggressive Behavior, Aggressive Cognition, Aggressive Affect, Physiological Arousal, and Prosocial Behavior: A Meta-Analytic Review of the Scientific Literature, 12 Psychological Science: J. Am. Psychological Society 353 (2001). Anderson & Dill, Video Games and Aggressive Thoughts, Feelings, & Behavior in the Laboratory and in Life, 78 J. Personality & Soc. Psychology 772 (2000). Anderson et al., Violent Video Games: Specific Effects of Violent Content on Aggressive Thoughts and Behavior, 36 Advances in Experimental Soc. Psychology 199 (2004). Anderson & Ford, Affect of the Game Player: Short-Term Effects of Highly and Mildly Aggressive Video Games, 12 Personality & Soc. Psychology Bull. 390 (1986). 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Markey & Markey, Vulnerability to Violent Video Games: A Review and Integration of Personality Research, 14 Rev. Gen. Psychology 82 (2010). Markey & Scherer, An Examination of Psychoticism and Motion Capture Controls as Moderators of the Effects of Violent Video Games, 25 Computers in Human Behavior 407 (2009). Mitrofan, Paul, & Spencer, Is Aggression in Children With Behavioural and Emotional Difficulties Associated With Television Viewing and Video Game Playing? A Systematic Review, 35 Child: Care, Health & Development 5 (2009). Olson, Media Violence Research and Youth Violence Data: Why Do They Conflict? 28 Academic Psychiatry 144 (2004). Porter & Starcevic, Are Violent Video Games Harmful? 15 Australasian Psychiatry 422 (2007). Regenbogen, Herrmann, & Fehr, The Neural Processing of Voluntary Completed, Real and Virtual Violent and NonViolent Computer Game Scenarios Displaying Predefined Actions in Gamers and Nongamers, 5 Soc. Neuroscience 221 (2010). Scott, The Effect of Video Games on Feelings of Aggression, 129 J. Psychology 121 (1995). Sestir & Bartholow, Violent and Nonviolent Video Games Produce Opposing Effects on Aggressive and Prosocial Outcomes, 46 J. Experimental Soc. Psychology 934 (2010). Unsworth, Devilly, & Ward, The Effect of Playing Violent Video Games on Adolescents: Should Parents be Quaking in Their Boots? 13 Psychology, Crime & Law 383 (2007). Unsworth & Ward, Video Games and Aggressive Behavior. 36 Australian Psychologist 184 (2001). Williams & Skoric, Internet Fantasy Violence: A Test of Aggression in an Online Game, 72 Communication Monographs 217 (2005). Winkel, Novak, & Hopson, Personality Factors, Subject Gender, and the Effects of Aggressive Video Games on Aggression in Adolescents, 21 J. Research in Personality 211 (1987).

The Supreme Court ruled that video games are protected under the First Amendment, striking down a California law that restricted the sale of violent video games to minors.

Free Speech

Minnesota Voters Alliance v. Mansky

https://supreme.justia.com/cases/federal/us/585/16-1435/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 16–1435 _________________ MINNESOTA VOTERS ALLIANCE, et al., PETITIONERS v. JOE MANSKY, et al. on writ of certiorari to the united states court of appeals for the eighth circuit [June 14, 2018] Chief Justice Roberts delivered the opinion of the Court. Under Minnesota law, voters may not wear a political badge, political button, or anything bearing political insignia inside a polling place on Election Day. The question presented is whether this ban violates the Free Speech Clause of the First Amendment. I A Today, Americans going to their polling places on Election Day expect to wait in a line, briefly interact with an election official, enter a private voting booth, and cast an anonymous ballot. Little about this ritual would have been familiar to a voter in the mid-to-late nineteenth century. For one thing, voters typically deposited pri- vately prepared ballots at the polls instead of completing official ballots on-site. These pre-made ballots often took the form of “party tickets”—printed slates of candidate selections, often distinctive in appearance, that political parties distributed to their supporters and pressed upon others around the polls. See E. Evans, A History of the Australian Ballot System in the United States 6–11 (1917) (Evans); R. Bensel, The American Ballot Box in the Mid-Nineteenth Century 14–15 (2004) (Bensel). The physical arrangement confronting the voter was also different. The polling place often consisted simply of a “voting window” through which the voter would hand his ballot to an election official situated in a separate room with the ballot box. Bensel 11, 13; see, e.g., C. Rowell, Digest of Contested-Election Cases in the Fifty-First Congress 224 (1891) (report of Rep. Lacey) (considering whether “the ability to reach the window and actually tender the ticket to the [election] judges” is “essential in all cases to constitute a good offer to vote”); Holzer, Election Day 1860, Smithsonian Magazine (Nov. 2008), pp. 46, 52 (describing the interior voting window on the third floor of the Springfield, Illinois courthouse where Abraham Lincoln voted). As a result of this arrangement, “the actual act of voting was usually performed in the open,” frequently within view of interested onlookers. Rusk, The Effect of the Australian Ballot Reform on Split Ticket Voting: 1876–1908, Am. Pol. Sci. Rev. 1220, 1221 (1970) (Rusk); see Evans 11–13. As documented in Burson v. Freeman , 504 U. S. 191 (1992), “[a]pproaching the polling place under this system was akin to entering an open auction place.” Id., at 202 (plurality opinion). The room containing the ballot boxes was “usually quiet and orderly,” but “[t]he public space outside the window . . . was chaotic.” Bensel 13. Electioneering of all kinds was permitted. See id. , at 13, 16–17; R. Dinkin, Election Day: A Documentary History 19 (2002). Crowds would gather to heckle and harass voters who appeared to be supporting the other side. Indeed, “[u]nder the informal conventions of the period, election etiquette required only that a ‘man of ordinary courage’ be able to make his way to the voting window.” Bensel 20–21. “In short, these early elections were not a very pleasant spectacle for those who believed in democratic government.” Burson, 504 U. S., at 202 (plurality opinion) (internal quotation marks omitted). By the late nineteenth century, States began implementing reforms to address these vulnerabilities and improve the reliability of elections. Between 1888 and 1896, nearly every State adopted the secret ballot. See id., at 203–205. Because voters now needed to mark their state-printed ballots on-site and in secret, voting moved into a sequestered space where the voters could “deliberate and make a decision in . . . privacy.” Rusk 1221; see Evans 35; 1889 Minn. Stat. ch. 3, §§27–28, p. 21 (regulating, as part of Minnesota’s secret ballot law, the arrangement of voting compartments inside the polling place). In addition, States enacted “viewpoint-neutral restrictions on election-day speech” in the immediate vicinity of the polls. Burson, 504 U. S., at 214–215 (Scalia, J., concurring in judgment) (by 1900, 34 of 45 States had such restrictions). Today, all 50 States and the District of Columbia have laws curbing various forms of speech in and around polling places on Election Day. Minnesota’s such law contains three prohibitions, only one of which is challenged here. See Minn. Stat. §211B.11(1) (Supp. 2017). The first sentence of §211B.11(1) forbids any person to “display campaign material, post signs, ask, solicit, or in any manner try to induce or persuade a voter within a polling place or within 100 feet of the building in which a polling place is situ- ated” to “vote for or refrain from voting for a candidate or ballot question.” The second sentence prohibits the distribution of “political badges, political buttons, or other political insignia to be worn at or about the polling place.” The third sentence—the “political apparel ban”—states that a “political badge, political button, or other political insignia may not be worn at or about the polling place.” Versions of all three prohibitions have been on the books in Minnesota for over a century. See 1893 Minn. Laws ch. 4, §108, pp. 51–52; 1912 Minn. Laws, 1st Spec. Sess., ch. 3, p. 24; 1988 Minn. Laws ch. 578, Art. 3, §11, p. 594 (reenacting the prohibitions as part of §211B.11). There is no dispute that the political apparel ban applies only within the polling place, and covers articles of clothing and accessories with “political insignia” upon them. Minnesota election judges—temporary government employees working the polls on Election Day—have the authority to decide whether a particular item falls within the ban. App. to Pet. for Cert. I–1. If a voter shows up wearing a prohibited item, the election judge is to ask the individual to conceal or remove it. Id., at I–2. If the individual refuses, the election judge must allow him to vote, while making clear that the incident “will be recorded and referred to appropriate authorities.” Ibid. Violators are subject to an administrative process before the Minnesota Office of Administrative Hearings, which, upon finding a violation, may issue a reprimand or impose a civil penalty. Minn. Stat. §§211B.32, 211B.35(2) (2014). That administrative body may also refer the complaint to the county attorney for prosecution as a petty misdemeanor; the maximum penalty is a $300 fine. §§211B.11(4) (Supp. 2017), 211B.35(2) (2014), 609.02(4a) (2016). B Petitioner Minnesota Voters Alliance (MVA) is a nonprofit organization that “seeks better government through election reforms.” Pet. for Cert. 5. Petitioner Andrew Cilek is a registered voter in Hennepin County and the executive director of MVA; petitioner Susan Jeffers served in 2010 as a Ramsey County election judge. Five days before the November 2010 election, MVA, Jeffers, and other likeminded groups and individuals filed a lawsuit in Federal District Court challenging the political apparel ban on First Amendment grounds. The groups—calling themselves “Election Integrity Watch” (EIW)—planned to have supporters wear buttons to the polls printed with the words “Please I. D. Me,” a picture of an eye, and a telephone number and web address for EIW. (Minnesota law does not require individuals to show identification to vote.) One of the individual plaintiffs also planned to wear a “Tea Party Patriots” shirt. The District Court denied the plaintiffs’ request for a temporary restraining order and preliminary injunction and allowed the apparel ban to remain in effect for the upcoming election. In response to the lawsuit, officials for Hennepin and Ramsey Counties distributed to election judges an “Election Day Policy,” providing guidance on the enforcement of the political apparel ban. The Minnesota Secretary of State also distributed the Policy to election officials throughout the State. The Policy specified that examples of apparel falling within the ban “include, but are not limited to”: “• Any item including the name of a political party in Minnesota, such as the Republican, [Democratic-Farmer-Labor], Independence, Green or Libertar- ian parties. • Any item including the name of a candidate at any election. • Any item in support of or opposition to a ballot question at any election. • Issue oriented material designed to influence or impact voting (including specifically the ‘Please I. D. Me’ buttons). • Material promoting a group with recognizable political views (such as the Tea Party, MoveOn.org, and so on).” App. to Pet. for Cert. I–1 to I–2. As alleged in the plaintiffs’ amended complaint and supporting declarations, some voters associated with EIW ran into trouble with the ban on Election Day. One individual was asked to cover up his Tea Party shirt. Another refused to conceal his “Please I. D. Me” button, and an election judge recorded his name and address for possible referral. And petitioner Cilek—who was wearing the same button and a T-shirt with the words “Don’t Tread on Me” and the Tea Party Patriots logo—was twice turned away from the polls altogether, then finally permitted to vote after an election judge recorded his information. Back in court, MVA and the other plaintiffs (now joined by Cilek) argued that the ban was unconstitutional both on its face and as applied to their apparel. The District Court granted the State’s motions to dismiss, and the Court of Appeals for the Eighth Circuit affirmed in part and reversed in part. Minnesota Majority v. Mansky , 708 F. 3d 1051 (2013). In evaluating MVA’s facial challenge, the Court of Appeals observed that this Court had previously upheld a state law restricting speech “related to a political campaign” in a 100-foot zone outside a polling place; the Court of Appeals determined that Minnesota’s law likewise passed constitutional muster. Id., at 1056–1058 (quoting Burson , 504 U. S., at 197 (plurality opinion)). The Court of Appeals reversed the dismissal of the plaintiffs’ as-applied challenge, however, finding that the District Court had improperly considered matters outside the pleadings. 708 F. 3d, at 1059. Judge Shepherd concurred in part and dissented in part. In his view, Minnesota’s broad restriction on political apparel did not “rationally and reasonably” serve the State’s asserted interests. Id., at 1062. On remand, the District Court granted summary judgment for the State on the as-applied challenge, and this time the Court of Appeals affirmed. Minnesota Majority v. Mansky , 849 F. 3d 749 (2017). MVA, Cilek, and Jeffers (hereinafter MVA) petitioned for review of their facial First Amendment claim only. We granted certiorari. 583 U. S. ___ (2017). II The First Amendment prohibits laws “abridging the freedom of speech.” Minnesota’s ban on wearing any “political badge, political button, or other political insignia” plainly restricts a form of expression within the protection of the First Amendment. But the ban applies only in a specific location: the interior of a polling place. It therefore implicates our “ ‘forum based’ approach for assessing restrictions that the government seeks to place on the use of its property.” International Soc. for Krishna Consciousness, Inc. v. Lee , 505 U. S. 672, 678 (1992) ( ISKCON ). Generally speaking, our cases recognize three types of government-controlled spaces: traditional public forums, designated public forums, and nonpublic forums. In a traditional public forum—parks, streets, sidewalks, and the like—the government may impose reasonable time, place, and manner restrictions on private speech, but restrictions based on content must satisfy strict scrutiny, and those based on viewpoint are prohibited. See Pleasant Grove City v. Summum , 555 U. S. 460, 469 (2009). The same standards apply in designated public forums—spaces that have “not traditionally been regarded as a public forum” but which the government has “intentionally opened up for that purpose.” Id., at 469–470. In a nonpublic forum, on the other hand—a space that “is not by tradition or designation a forum for public communication”—the government has much more flexibility to craft rules limiting speech. Perry Ed. Assn. v. Perry Local Educators’ Assn. , 460 U. S. 37, 46 (1983). The government may reserve such a forum “for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Ibid. This Court employs a distinct standard of review to assess speech restrictions in nonpublic forums because the government, “no less than a private owner of property,” retains the “power to preserve the property under its control for the use to which it is lawfully dedicated.” Adderley v. Florida , 385 U. S. 39, 47 (1966). “Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc. , 473 U. S. 788, 799–800 (1985). Accordingly, our decisions have long recognized that the government may impose some content-based restrictions on speech in nonpublic forums, including restrictions that exclude political advocates and forms of political advocacy. See id., at 806–811; Greer v. Spock , 424 U. S. 828, 831–833, 838–839 (1976); Lehman v. Shaker Heights , 418 U. S. 298, 303–304 (1974) (plurality opin- ion); id., at 307–308 (Douglas, J., concurring in judgment). A polling place in Minnesota qualifies as a nonpublic forum. It is, at least on Election Day, government-controlled property set aside for the sole purpose of voting. The space is “a special enclave, subject to greater restriction.” ISKCON , 505 U. S., at 680. Rules strictly govern who may be present, for what purpose, and for how long. See Minn. Stat. §204C.06 (2014). And while the four-Justice plurality in Burson and Justice Scalia’s concurrence in the judgment parted ways over whether the public sidewalks and streets surrounding a polling place qualify as a nonpublic forum, neither opinion suggested that the interior of the building was anything but. See 504 U. S., at 196–197, and n. 2 (plurality opinion); id. , at 214–216 (opinion of Scalia, J.). We therefore evaluate MVA’s First Amendment challenge under the nonpublic forum standard. The text of the apparel ban makes no distinction based on the speaker’s political persuasion, so MVA does not claim that the ban discriminates on the basis of viewpoint on its face. The question accordingly is whether Minnesota’s ban on political apparel is “reasonable in light of the purpose served by the forum”: voting. Cornelius , 473 U. S., at 806. III A We first consider whether Minnesota is pursuing a permissible objective in prohibiting voters from wearing particular kinds of expressive apparel or accessories while inside the polling place. The natural starting point for evaluating a First Amendment challenge to such a restriction is this Court’s decision in Burson , which upheld a Tennessee law imposing a 100-foot campaign-free zone around polling place entrances. Under the Tennessee law—much like Minnesota’s buffer-zone provision—no person could solicit votes for or against a candidate, party, or ballot measure, distribute campaign materials, or “display . . . campaign posters, signs or other campaign materials” within the restricted zone. 504 U. S., at 193–194 (plurality opinion). The plurality found that the law withstood even the strict scrutiny applicable to speech restrictions in traditional public forums. Id., at 211. In his opinion concurring in the judgment, Justice Scalia argued that the less rigorous “reasonableness” standard of review should apply, and found the law “at least reasonable” in light of the plurality’s analysis. Id. , at 216. That analysis emphasized the problems of fraud, voter intimidation, confusion, and general disorder that had plagued polling places in the past. See id., at 200–204 (plurality opinion). Against that historical backdrop, the plurality and Justice Scalia upheld Tennessee’s determination, supported by overwhelming consensus among the States and “common sense,” that a campaign-free zone outside the polls was “necessary” to secure the advantages of the secret ballot and protect the right to vote. Id., at 200, 206–208, 211. As the plurality explained, “[t]he State of Tennessee has decided that [the] last 15 seconds before its citizens enter the polling place should be their own, as free from interference as possible.” Id., at 210. That was not “an unconstitutional choice.” Ibid. MVA disputes the relevance of Burson to Minnesota’s apparel ban. On MVA’s reading, Burson considered only “active campaigning” outside the polling place by campaign workers and others trying to engage voters approaching the polls. Brief for Petitioners 36–37. Minne- sota’s law, by contrast, prohibits what MVA characterizes as “passive, silent” self-expression by voters themselves when voting. Reply Brief 17. MVA also points out that the plurality focused on the extent to which the restricted zone combated “voter intimidation and election fraud,” 504 U. S., at 208—concerns that, in MVA’s view, have little to do with a prohibition on certain types of voter apparel. Campaign buttons and apparel did come up in the Burson briefing and argument, but neither the plurality nor Justice Scalia expressly addressed such applications of the law.[ 1 ] Nor did either opinion specifically consider the interior of the polling place as opposed to its environs, and it is true that the plurality’s reasoning focused on campaign activities of a sort not likely to occur in an area where, for the most part, only voters are permitted while voting. At the same time, Tennessee’s law swept broadly to ban even the plain “display” of a campaign-related message, and the Court upheld the law in full. The plurality’s conclusion that the State was warranted in designating an area for the voters as “their own” as they enter the polling place suggests an interest more significant, not less, within that place. Id., at 210. In any event, we see no basis for rejecting Minnesota’s determination that some forms of advocacy should be excluded from the polling place, to set it aside as “an island of calm in which voters can peacefully contemplate their choices.” Brief for Respondents 43. Casting a vote is a weighty civic act, akin to a jury’s return of a verdict, or a representative’s vote on a piece of legislation. It is a time for choosing, not campaigning. The State may reasonably decide that the interior of the polling place should reflect that distinction. To be sure, our decisions have noted the “nondisruptive” nature of expressive apparel in more mundane settings. Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc. , 482 U. S. 569, 576 (1987) (so characterizing “the wearing of a T-shirt or button that contains a political message” in an airport); Tinker v. Des Moines Independent Community School Dist. , 393 U. S. 503, 508 (1969) (students wearing black armbands to protest the Vietnam War engaged in “silent, passive expression of opinion, unaccompanied by any disorder or disturbance”). But those observations do not speak to the unique context of a polling place on Election Day. Members of the public are brought together at that place, at the end of what may have been a divisive election season, to reach considered decisions about their government and laws. The State may reasonably take steps to ensure that partisan discord not follow the voter up to the voting booth, and distract from a sense of shared civic obligation at the moment it counts the most. That interest may be thwarted by displays that do not raise significant concerns in other situations. Other States can see the matter differently, and some do.[ 2 ] The majority, however, agree with Minnesota that at least some kinds of campaign-related clothing and accessories should stay outside. [ 3 ] That broadly shared judgment is entitled to respect. Cf. Burson , 504 U. S., at 206 (plurality opinion) (finding that a “widespread and time-tested consensus” supported the constitutionality of campaign buffer zones). Thus, in light of the special purpose of the polling place itself, Minnesota may choose to prohibit certain apparel there because of the message it conveys, so that voters may focus on the important decisions immediately at hand. B But the State must draw a reasonable line. Although there is no requirement of narrow tailoring in a nonpublic forum, the State must be able to articulate some sensible basis for distinguishing what may come in from what must stay out. See Cornelius , 473 U. S., at 808–809. Here, the unmoored use of the term “political” in the Minnesota law, combined with haphazard interpretations the State has provided in official guidance and representations to this Court, cause Minnesota’s restriction to fail even this forgiving test. Again, the statute prohibits wearing a “political badge, political button, or other political insignia.” It does not define the term “political.” And the word can be expansive. It can encompass anything “of or relating to government, a government, or the conduct of governmental affairs,” Webster’s Third New International Dictionary 1755 (2002), or anything “[o]f, relating to, or dealing with the structure or affairs of government, politics, or the state,” American Heritage Dictionary 1401 (3d ed. 1996). Under a literal reading of those definitions, a button or T-shirt merely imploring others to “Vote!” could qualify. The State argues that the apparel ban should not be read so broadly. According to the State, the statute does not prohibit “any conceivably ‘political’ message” or cover “all ‘political’ speech, broadly construed.” Brief for Respondents 21, 23. Instead, the State interprets the ban to proscribe “only words and symbols that an objectively reasonable observer would perceive as conveying a message about the electoral choices at issue in [the] polling place.” Id., at 13; see id., at 19 (the ban “applies not to any message regarding government or its affairs, but to messages relating to questions of governmental affairs facing voters on a given election day”). At the same time, the State argues that the category of “political” apparel is not limited to campaign apparel. After all, the reference to “campaign material” in the first sentence of the statute—describing what one may not “display” in the buffer zone as well as inside the polling place—implies that the distinct term “political” should be understood to cover a broader class of items. As the State’s counsel explained to the Court, Minnesota’s law “expand[s] the scope of what is prohibited from campaign speech to additional political speech.” Tr. of Oral Arg. 50. We consider a State’s “authoritative constructions” in interpreting a state law. Forsyth County v. Nationalist Movement , 505 U. S. 123, 131 (1992). But far from clarifying the indeterminate scope of the political apparel provision, the State’s “electoral choices” construction introduces confusing line-drawing problems. Cf. Jews for Jesus, 482 U. S., at 575–576 (a resolution banning all “ First Amendment activities” in an airport could not be saved by a “murky” construction excluding “airport-related” activity). For specific examples of what is banned under its standard, the State points to the 2010 Election Day Pol- icy—which it continues to hold out as authoritative guidance regarding implementation of the statute. See Brief for Respondents 22–23. The first three examples in the Policy are clear enough: items displaying the name of a political party, items displaying the name of a candidate, and items demonstrating “support of or opposition to a ballot question.” App. to Pet. for Cert. I–2. But the next example—“[i]ssue oriented material designed to influence or impact voting,” id., at I–2—raises more questions than it answers. What qualifies as an “issue”? The answer, as far as we can tell from the State’s briefing and argument, is any subject on which a political candidate or party has taken a stance. See Tr. of Oral Arg. 37 (explaining that the “electoral choices” test looks at the “issues that have been raised” in a campaign “that are relevant to the election”). For instance, the Election Day Policy specifically notes that the “Please I. D. Me” buttons are prohibited. App. to Pet. for Cert. I–2. But a voter identification requirement was not on the ballot in 2010, see Brief for Respondents 47, n. 24, so a Minnesotan would have had no explicit “electoral choice” to make in that respect. The buttons were nonetheless covered, the State tells us, because the Republican candidates for Governor and Secretary of State had staked out positions on whether photo identification should be required. Ibid. ; see App. 58–60.[ 4 ] A rule whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot is not reason- able. Candidates for statewide and federal office and major political parties can be expected to take positions on a wide array of subjects of local and national import. See, e.g., Democratic Platform Committee, 2016 Democratic Party Platform (approved July 2016) (stating positions on over 90 issues); Republican Platform Committee, Republican Platform 2016 (approved July 2016) (similar). Would a “Support Our Troops” shirt be banned, if one of the candidates or parties had expressed a view on military funding or aid for veterans? What about a “#MeToo” shirt, referencing the movement to increase awareness of sexual harassment and assault? At oral argument, the State indicated that the ban would cover such an item if a candidate had “brought up” the topic. Tr. of Oral Arg. 64–65. The next broad category in the Election Day Policy—any item “promoting a group with recognizable political views,” App. to Pet. for Cert. I–2—makes matters worse. The State construes the category as limited to groups with “views” about “the issues confronting voters in a given election.” Brief for Respondents 23. The State does not, however, confine that category to groups that have endorsed a candidate or taken a position on a ballot question. Any number of associations, educational institutions, businesses, and religious organizations could have an opinion on an “issue[ ] confronting voters in a given election.” For instance, the American Civil Liberties Union, the AARP, the World Wildlife Fund, and Ben & Jerry’s all have stated positions on matters of public concern.[ 5 ] If the views of those groups align or conflict with the position of a candidate or party on the ballot, does that mean that their insignia are banned? See id., at 24, n. 15 (representing that “AFL–CIO or Chamber of Commerce apparel” would be banned if those organizations “had objectively recognizable views on an issue in the election at hand”). Take another example: In the run-up to the 2012 election, Presidential candidates of both major parties issued public statements regarding the then-existing policy of the Boy Scouts of America to exclude members on the basis of sexual orientation.[ 6 ] Should a Scout leader in 2012 stopping to vote on his way to a troop meeting have been asked to cover up his uniform? The State emphasizes that the ban covers only apparel promoting groups whose political positions are sufficiently “well-known.” Tr. of Oral Arg. 37. But that requirement, if anything, only increases the potential for erratic application. Well known by whom? The State tells us the lodestar is the “typical observer” of the item. Brief for Respondents 21. But that measure may turn in significant part on the background knowledge and media consumption of the particular election judge applying it. The State’s “electoral choices” standard, considered together with the nonexclusive examples in the Election Day Policy, poses riddles that even the State’s top lawyers struggle to solve. A shirt declaring “All Lives Matter,” we are told, could be “perceived” as political. Tr. of Oral Arg. 41. How about a shirt bearing the name of the National Rifle Association? Definitely out. Id. , at 39–40. That said, a shirt displaying a rainbow flag could be worn “ unless there was an issue on the ballot” that “related somehow . . . to gay rights.” Id. , at 38 (emphasis added). A shirt simply displaying the text of the Second Amendment? Prohibited. Id. , at 40. But a shirt with the text of the First Amendment? “It would be allowed.” Ibid. “[P]erfect clarity and precise guidance have never been required even of regulations that restrict expressive activ- ity.” Ward v. Rock Against Racism , 491 U. S. 781, 794 (1989). But the State’s difficulties with its restriction go beyond close calls on borderline or fanciful cases. And that is a serious matter when the whole point of the exercise is to prohibit the expression of political views. It is “self-evident” that an indeterminate prohibition carries with it “[t]he opportunity for abuse, especially where [it] has received a virtually open-ended interpretation.” Jews for Jesus , 482 U. S., at 576; see Heffron v. International Soc. for Krishna Consciousness, Inc. , 452 U. S. 640, 649 (1981) (warning of the “more covert forms of discrimination that may result when arbitrary discretion is vested in some governmental authority”). Election judges “have the authority to decide what is political” when screening individuals at the entrance to the polls. App. to Pet. for Cert. I–1. We do not doubt that the vast majority of election judges strive to enforce the statute in an evenhanded manner, nor that some degree of discretion in this setting is necessary. But that discretion must be guided by objective, workable standards. Without them, an election judge’s own politics may shape his views on what counts as “political.” And if voters experience or witness episodes of unfair or inconsistent enforcement of the ban, the State’s interest in maintaining a polling place free of distraction and disruption would be undermined by the very measure intended to further it. That is not to say that Minnesota has set upon an impossible task. Other States have laws proscribing displays (including apparel) in more lucid terms. See, e.g., Cal. Elec. Code Ann. §319.5 (West Cum. Supp. 2018) (prohibiting “the visible display . . . of information that advocates for or against any candidate or measure,” including the “display of a candidate’s name, likeness, or logo,” the “display of a ballot measure’s number, title, subject, or logo,” and “[b]uttons, hats,” or “shirts” containing such information); Tex. Elec. Code Ann. §61.010(a) (West 2010) (prohibiting the wearing of “a badge, insignia, emblem, or other similar communicative device relating to a candidate, measure, or political party appearing on the ballot, or to the conduct of the election”). We do not suggest that such provisions set the outer limit of what a State may proscribe, and do not pass on the constitutionality of laws that are not before us. But we do hold that if a State wishes to set its polling places apart as areas free of partisan discord, it must employ a more discernible approach than the one Minnesota has offered here.[ 7 ] *  *  * Cases like this “present[ ] us with a particularly difficult reconciliation: the accommodation of the right to engage in political discourse with the right to vote.” Burson , 504 U. S., at 198 (plurality opinion). Minnesota, like other States, has sought to strike the balance in a way that affords the voter the opportunity to exercise his civic duty in a setting removed from the clamor and din of electioneering. While that choice is generally worthy of our respect, Minnesota has not supported its good intentions with a law capable of reasoned application. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. APPENDIX State Laws Prohibiting Accessories or Apparel in the Polling Place[ 8 ]* Notes 1 The State of Tennessee represented that its prohibition on campaign displays extended both to items of apparel and to voters. Tr. of Oral Arg. in No. 90–1056, p. 33 (argument of Atty. Gen. Burson) (explaining that the statute banned “[t]ee-shirts,” “campaign buttons,” and “hats” because such items “implicate and invite the same problems,” and that voters would be “asked to take campaign button[s] off as they go in”); see Brief for State of Tennessee et al. as Amici Curiae 3, 28–30, and n. 3 (making the same representation in the present case). The Burson plaintiff also emphasized that the Tennessee law would cover apparel, including apparel worn by voters, see Brief for Respondent in No. 90–1056, p. 3; Tr. of Oral Arg. in No. 90–1056, p. 21, and Justice Stevens in dissent referred to the application of the law to campaign buttons, see Burson, 504 U. S., at 218–219, 224. 2 See, e.g., Ala. Secretary of State, 2018 Alabama Voter Guide 14 (voters may wear “campaign buttons or T-shirts with political advertisements”); 2018 Va. Acts ch. 700, §1 (prohibitions on exhibiting campaign material “shall not be construed” to prohibit a voter “from wearing a shirt, hat, or other apparel on which a candidate’s name or a political slogan appears or from having a sticker or button attached to his apparel on which a candidate’s name or a political slogan appears”); R. I. Bd. of Elections, Rules and Regulations for Polling Place Conduct 3 (2016) (voters may “display or wear any campaign or political party button, badge or other document or item designed or tending to aid, injure or defeat any candidate for public office or any political party or any question,” but they must “immediately exit the polling location without unreasonable delay” after voting). 3 See Appendix, infra . 4 The State also maintains that the “Please I. D. Me” buttons were properly banned because the buttons were designed to confuse other voters about whether they needed photo identification to vote. Brief for Respondents 46–47. We do not doubt that the State may prohibit messages intended to mislead voters about voting requirements and procedures. But that interest does not align with the State’s construction of “political” to refer to messages “about the electoral choices at issue in [the] polling place.” Id., at 13. 5 See, e.g., American Civil Liberties Union, Campaign for Smart Justice (2018), online at http://www.aclu.org/issues/mass-incarceration/smart-justice/campaign-smart-justice (taking positions on criminal justice reform) (all Internet materials as last visited June 11, 2018); AARP, Government & Elections, online at https://www.aarp.org/politics-society/government-elections/ (listing positions on Social Secu-rity and health care); World Wildlife Fund, A Win on Capitol Hill (Apr. 17, 2018), online at https://www.worldwildlife.org/stories/a-win-on-capitol-hill (describing the organization’s position on federal funding for international conservation programs); Ben & Jerry’s, Issues We Care About, online at https://www.benjerry.com/values/issues-we-care-about (sharing the corporation’s views on campaign finance reform, international conflict, and civil rights). 6 C. Camia, Obama, Romney Opposed to Boy Scouts Ban on Gays, USA Today OnPolitics (updated Aug. 08, 2012), online at http : / / content.usatoday.com/communities/onpolitics/post/2012/08/barack-obama-boy-scouts-gays-mitt-romney-/1. 7 The State argues that, in the event this Court concludes that there is a “substantial question” about the proper interpretation of §211B.11(1), we should postpone our decision and certify that issue to the Minnesota Supreme Court. Brief for Respondents 57; see Minn. Stat. §480.065(3) (2016). The dissent takes up this cause as well. See post, at 1 (opinion of Sotomayor, J.). The decision to certify, however, “rests in the sound discretion of the federal court.” Expressions Hair Design v. Schneiderman , 581 U. S. ___, ___ (2017) (Sotomayor, J., concurring in judgment) (slip op., at 8). We decline to exercise that discretion in this instance. Minnesota’s request for certification comes very late in the day: This litigation had been ongoing in the federal courts for over seven years before the State made its certification request in its merits brief before this Court. See Stenberg v. Carhart , 530 U. S. 914, 945 (2000) (noting, in denying certification, that the State had never asked the lower federal courts to certify). And the State has not offered sufficient reason to believe that certification would obviate the need to address the constitutional question. Our analysis today reflects the State’s proffered interpretation; nothing in that analysis would change if the State’s interpretation were also adopted by the Minnesota Supreme Court. Nor has the State (or the dissent) suggested a viable alternative construction that the Minnesota Supreme Court might adopt instead. See Brief for Respondents 56–58; post, at 5–8. 8 * Based on statutory or regulatory language and official resources, where available. SUPREME COURT OF THE UNITED STATES _________________ No. 16–1435 _________________ MINNESOTA VOTERS ALLIANCE, et al., PETITIONERS v. JOE MANSKY, et al. on writ of certiorari to the united states court of appeals for the eighth circuit [June 14, 2018] Justice Sotomayor, with whom Justice Breyer joins, dissenting. I agree with the Court that “[c]asting a vote is a weighty civic act” and that “State[s] may reasonably take steps to ensure that partisan discord not follow the voter up to the voting booth,” including by “prohibit[ing] certain apparel [in polling places] because of the message it conveys.” Ante, at 11–12. I disagree, however, with the Court’s decision to declare Minnesota’s political apparel ban unconstitutional on its face because, in its view, the ban is not “capable of reasoned application,” ante, at 19, when the Court has not first afforded the Minnesota state courts “ ‘a reasonable opportunity to pass upon’ ” and construe the statute, Babbitt v. Farm Workers , 442 U. S. 289, 308 (1979). I would certify this case to the Minnesota Supreme Court for a definitive interpretation of the political apparel ban under Minn. Stat. §211B.11(1) (Supp. 2017), which likely would obviate the hypothetical line-drawing problems that form the basis of the Court’s decision today. I As the Court acknowledges, Minnesota adopted its political apparel ban late in the 19th century against the backdrop of often “ ‘chaotic’ ” voting conditions where “[c]rowds would gather to heckle and harass voters who appeared to be supporting the other side.” Ante, at 2. Polling places became “highly charged ethnic, religious, and ideological battleground[s] in which individuals were stereotyped as friend or foe,” even “on the basis of clothing.” R. Bensel, The American Ballot Box in the Mid-Nineteenth Century 21 (2004). As a result, States began adopting reforms “to address these vulnerabilities and improve the reliability of elections.” Ante, at 3. Minnesota thus enacted the political apparel ban at issue in this case, which prohibits an individual from wearing “[a] political badge, political button, or other political insignia . . . at or about the polling place.” §211B.11(1). Respondents maintain that this prohibition, together with other election-day regulations, furthers Minnesota’s compelling interests in (1) “maintaining peace, order and decorum in the polling place,” (2) “protecting voters from confusion and undue influence such as intimidation,” and (3) “preserving the integrity of its election process.” Brief for Respondents 41 (internal quotation marks and alterations omitted); see Burson v. Freeman , 504 U. S. 191, 193, 199 (1992) (plurality opinion) (recognizing such interests as compelling). The majority accords due respect to the weight of these state interests in concluding that there is “no basis for rejecting Minnesota’s determination that some forms of advocacy should be excluded from the polling place, to set it aside as ‘an island of calm in which voters can peacefully contemplate their choices.’ ” Ante, at 11. Polling places today may not much resemble the chaotic scenes of the turn of the 20th century, but they remain vulnerable to interpersonal conflicts and partisan efforts to influence voters.[ 1 ] Even acts of interference that are “undetected or less than blatant . . . may nonetheless drive the voter away before remedial action can be taken.” Burson , 504 U. S., at 207; see also Brief for Campaign Legal Center as Amicus Curiae 9 (noting that, “[a]bsent a ban on political paraphernalia, [poll] workers might unintentionally exhibit unconscious bias against voters who wear the ‘wrong’ paraphernalia”). In holding that a polling place constitutes a nonpublic forum and that a State must establish only that its limitations on speech inside the polling place are reasonable, see ante, at 8–9, the Court goes a long way in preserving States’ discretion to determine what measures are appropriate to further important interests in maintaining order and decorum, preventing confusion and intimidation, and protecting the integrity of the voting process. The Court errs, however, in declaring Minnesota’s political apparel ban unconstitutional under that standard, without any guidance from the State’s highest court on the proper interpretation of that state law. Ante, at 13, 19, n. 7. II The Court invalidates Minnesota’s political apparel ban based on its inability to define the term “political” in §211B.11(1), so as to discern “some sensible basis for distinguishing what may come in from what must stay out” of a polling place. Ante, at 12–13. The majority believes that the law is not “capable of reasoned application,” ante, at 19, but it reaches that conclusion without taking the preferential step of first asking the state courts to provide “an accurate picture of how, exactly, the statute works,” Expressions Hair Design v. Schneiderman , 581 U. S. ___, ___ (2017) (Sotomayor, J., concurring in judgment) (slip op., at 5). It is a “cardinal principle” that, “when confronting a challenge to the constitutionality of a . . . statute,” courts “will first ascertain whether a construction . . . is fairly possible that will contain the statute within constitutional bounds,” and in the context of a challenge to a state statute, federal courts should be particularly hesitant to speculate as to possible constructions of the state law when “the state courts stand willing to address questions of state law on certification.” Arizonans for Official English v. Arizona , 520 U. S. 43, 78–79 (1997) (internal quotation marks omitted); see Minn. Stat. §480.065(3) (2016) (authorizing the Minnesota Supreme Court to answer certified questions). Certification “save[s] time, energy, and resources and helps build a cooperative judicial federalism.” Lehman Brothers v. Schein , 416 U. S. 386, 391 (1974). Neither of the majority’s proffered reasons for declining to certify this case justifies its holding. First, the Court notes that respondents’ “request for certification comes very late in the day,” as the litigation already had been ongoing for more than seven years before the request. Ante, at 19, n. 7. But certification is not an argument subject to forfeiture by the parties. It is a tool of the federal courts that serves to avoid “friction-generating error” where a federal court attempts to construe a statute “not yet reviewed by the State’s highest court.” Arizonans for Official English , 520 U. S., at 79. This Court has certified questions to a state court “sua sponte, even though the parties had not sought such relief and even though the district court and the court of appeals previously had resolved the disputed point of state law.” S. Shapiro, K. Geller, T. Bishop, E. Hartnett, & D. Himmelfarb, Supreme Court Practice §9.4, p. 611 (10th ed. 2013) (citing Elkins v. Moreno , 435 U. S. 647, 660–663, 668–669 (1978)); see also Massachusetts v. Feeney , 429 U. S. 66 (1976) ( per curiam ) (certifying a question to the Supreme Judicial Court of the Commonwealth of Massachusetts “on [the Court’s] own motion”). Respondents’ delay in asking for certification does nothing to alter this Court’s responsibility as a matter of state-federal comity to give due deference to the state courts in interpreting their own laws. Second, the majority maintains that respondents have “not offered sufficient reason to believe that certification would obviate the need to address the constitutional question,” as “nothing in [its] analysis would change if [respondents’] interpretation were also adopted by the Minnesota Supreme Court.” Ante, at 19, n. 7. The majority also relies on its view that respondents have not “suggested a viable alternative construction that the Minnesota Supreme Court might adopt instead.” Ibid. To presume that the Minnesota Supreme Court would adopt respondents’ interpretation wholesale or that it could not provide a construction of its own that is “capable of reasoned application,” ante, at 19, however, reflects precisely the “gratuitous” “ ‘[s]peculation . . . about the meaning of a state statute’ ” that this Court has discouraged, Arizonans for Official English , 520 U. S., at 79. It is at least “fairly possible” that the state court could “ascertain . . . a construction . . . that will contain the statute within constitutional bounds.” Id., at 78 (internal quotation marks omitted). Ultimately, the issue comes down to the meaning of the adjective “political,” as used to describe what constitutes a “political badge, political button, or other political insignia.” §211B.11(1). The word “political” is, of course, not inherently incapable of definition. This Court elsewhere has encountered little difficulty discerning its meaning in the context of statutes subject to First Amendment challenges. See, e.g., Civil Service Comm’n v. Letter Carriers , 413 U. S. 548, 550–551 (1973) (rejecting First Amendment overbreadth and vagueness challenge to §9(a) of the Hatch Act, then codified at 5 U. S. C. §7324(a)(2), which prohibited federal employees from taking “ ‘an active part in political management or in political campaigns’ ”); Broadrick v. Oklahoma , 413 U. S. 601, 602 (1973) (rejecting First Amendment overbreadth and vagueness challenge to a similar Oklahoma law that “restricts the political activities of the State’s classified civil servants”). Even here, the majority recognizes a substantial amount of speech that “clear[ly]” qualifies as “political,” such as “items displaying the name of a political party, items displaying the name of a candidate, and items demonstrating support of or opposition to a ballot question.” Ante, at 14 (internal quotation marks omitted). The fact that the majority has some difficulty deciphering guidance to §211B.11(1) that also proscribes “[i]ssue oriented material designed to influence or impact voting” and “[m]aterial promoting a group with recognizable political views,” App. to Pet. for Cert. I–2; see ante, at 14–17, does not mean that the statute as a whole is not subject to a construction that falls within constitutional bounds. As this Court has made clear in the context of the First Amendment overbreadth doctrine, the “mere fact” that petitioners “can conceive of some impermissible applications of [the] statute is not sufficient to render it” unconstitutional. United States v. Williams , 553 U. S. 285, 303 (2008) (internal quotation marks omitted). That is especially so where the state court is capable of clarifying the boundaries of state law in a manner that would permit the Court to engage in a comprehensive constitutional analysis. See, e.g., Virginia v. American Booksellers Assn., Inc. , 484 U. S. 383 (1988) (certifying questions to the Virginia Supreme Court for clarification as to whether a state statute was readily susceptible to a narrowing construction that would not violate the First Amendment); Commonwealth v. American Booksellers Assn., Inc. , 236 Va. 168, 372 S. E. 2d 618 (1988) (responding to certification with such a narrowing construction). Furthermore, the Court also should consider the history of Minnesota’s “implementation” of the statute in evaluating the facial challenge here. Forsyth County v. Nationalist Movement , 505 U. S. 123, 131 (1992). That history offers some assurance that the statute has not been interpreted or applied in an unreasonable manner. There is no evidence that any individual who refused to remove a political item has been prohibited from voting, and respondents maintain that no one has been referred for prosecution for violating the provision. See Brief for Respondents 4, n. 2. Since the political apparel ban was enacted in the late 19th century, this is the first time the statute has been challenged on the basis that certain speech is not “political.” Tr. of Oral Arg. 44. Even then, petitioners’ as-applied challenge was rejected by the District Court and the Court of Appeals for the Eighth Circuit. See Minnesota Majority v. Mansky , 62 F. Supp. 3d 870, 878 (Minn. 2014); Minnesota Majority v. Mansky , 2015 WL 13636675, *12 (D Minn., Mar. 23, 2015); Minnesota Majority v. Mansky , 849 F. 3d 749, 752–753 (CA8 2017). Petitioners did not seek review of those claims in this Court. See Pet. for Cert. i. On the whole, the historical application of the law helps illustrate that the statute is not so “indeterminate” so as to “carr[y] with it ‘[t]he opportunity for abuse.’ ” Ante, at 17. III Especially where there are undisputedly many constitutional applications of a state law that further weighty state interests, the Court should be wary of invalidating a law without giving the State’s highest court an opportunity to pass upon it. See Babbitt , 442 U. S., at 309; Arizonans for Official English , 520 U. S., at 79. Because the Court declines to take the obvious step of certification in this case, I respectfully dissent. Notes 1 See, e.g., J. Johnson, Fight Breaks Out at Polling Place (Nov. 8, 2016) (describing a fight in which a voter sprayed pepper spray at a campaign volunteer who allegedly had been handing out campaign materials), http://www.wpbf.com/article/fight-breaks-out-at-polling-place/8258506 (all Internet materials as last visited June 8, 2018); R. Reilly, A Guy in a Trump Shirt Carried a Gun Outside of a Virginia Polling Place. Authorities Say That’s Fine (Nov. 4, 2016) (describing a man wearing a shirt bearing the name of a candidate and carrying a weapon outside of a polling place), https://www.huffingtonpost.com/entry/trump-supporter - gun -voter-intimidation-virginia_us_581cf16ee4b0aac624846eb5; Houston Chronicle, Nov. 5, 2012, p. 2 (reporting that individuals wearing shirts bearing the name of a racial equality organization allegedly were “disruptive,” “took over” a polling place, and were “electioneering and voicing support” for a particular candidate); Orlando Sentinel, Nov. 8, 2006, p. A5 (reporting arrest of a poll worker who was “charged with assault and interfering with an election after allegedly choking a voter and pushing him out the door”); Orlando Sentinel, Mar. 2, 2005, p. B1 (reporting “[s]houting matches and rowdy behavior” and “harass[ment] and intimidat[ion] at the polls”).

The Supreme Court of the United States ruled that a Minnesota law banning voters from wearing political badges, buttons, or insignia inside polling places on Election Day violates the Free Speech Clause of the First Amendment. The Court found that the law was overly broad and could be interpreted to prohibit a wide range of expression, including non-political speech. The Court also noted that there are other ways to maintain order and decorum in polling places without restricting voters' freedom of expression.

Free Speech

City of Austin v. Reagan National Advertising of Austin

https://supreme.justia.com/cases/federal/us/596/20-1029/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 20–1029 _________________ City of Austin, Texas, PETITIONER v. Reagan National Advertising of Austin, LLC, et al. on writ of certiorari to the united states court of appeals for the fifth circuit [April 21, 2022] Justice Sotomayor delivered the opinion of the Court. Like thousands of jurisdictions around the country, the City of Austin, Texas (City), regulates signs that advertise things that are not located on the same premises as the sign, as well as signs that direct people to offsite locations. These are known as off-premises signs, and they include, most notably, billboards. The question presented is whether, under this Court’s precedents interpreting the Free Speech Clause of the First Amendment, the City’s regulation is subject to strict scrutiny. We hold that it is not. I A American jurisdictions have regulated outdoor advertisements for well over a century. See C. Taylor & W. Chang, The History of Outdoor Advertising Regulation in the United States, 15 J. of Macromarketing 47, 48 (Spring 1995). By some accounts, the proliferation of conspicuous patent-medicine advertisements on rocks and barns prompted States to begin regulating outdoor advertising in the late 1860s. Ibid. ; F. Presbrey, The History and Development of Advertising 500–501 (1929). As part of this regulatory tradition, federal, state, and local governments have long distinguished between signs (such as billboards) that promote ideas, products, or services located elsewhere and those that promote or identify things located onsite. For example, this Court in 1932 reviewed and approved of a Utah statute that prohibited signs advertising cigarettes and related products, but allowed businesses selling such products to post onsite signs identifying themselves as dealers. Packer Corp. v. Utah , 285 U.S. 105 , 107, 110. On-/off-premises distinctions, like the one at issue here, proliferated following the enactment of the Highway Beautification Act of 1965 (Act), 23 U. S. C. §131. In the Act, Congress directed States receiving federal highway funding to regulate outdoor signs in proximity to federal highways, in part by limiting off-premises signs. See §§131(b)–(c) (allowing exceptions for “signs, displays, and devices advertising the sale or lease of property upon which they are located” and “signs, displays, and devices . . . advertising activities conducted on the property on which they are located”). Under the Act, approximately two-thirds of States have implemented similar on-/off-premises distinctions. See App. A to Reply to Brief in Opposition (collecting statutes); Brief for State of Florida et al. as Amici Curiae 7, n. 3 (same). The City represents, and respondents have not disputed, that “tens of thousands of municipalities nationwide” have adopted analogous on-/off-premises distinctions in their sign codes. Brief for Petitioner 19; see also App. B to Reply to Brief in Opposition (collecting examples of ordinances); Brief for State of Florida et al. as Amici Curiae 8, n. 4 (same). The City of Austin is one such municipality. The City distinguishes between on-premises and off-premises signs in its sign code, and specially regulates the latter, in order to “protect the aesthetic value of the city and to protect public safety.” App. 39. During the time period relevant to this dispute, the City’s sign code defined the term “off-premise sign” to mean “a sign advertising a business, person, activity, goods, products, or services not located on the site where the sign is installed, or that directs persons to any location not on that site.” Austin, Tex., City Code §25–10–3(11) (2016). This definition was materially analogous to the one used in the federal Highway Beautification Act and many other state and local codes referenced above. The code prohibited the construction of any new off-premises signs, §25–10–102(1), but allowed existing off-premises signs to remain as grandfathered “non-conforming signs,” §25–10–3(10). An owner of a grandfathered off-premises sign could “continue or maintain [it] at its existing location” and could change the “face of the sign,” but could not “increase the degree of the existing nonconformity,” “change the method or technology used to convey a message,” or “increase the illumination of the sign.” §§25–10–152(A)–(B). By contrast, the code permitted the digitization of on-premises signs. §25–10–102(6) (permitting “electronically controlled changeable-copy sign[s]”).[ 1 ] B Respondents, Reagan National Advertising of Austin, LLC (Reagan), and Lamar Advantage Outdoor Company, L. P. (Lamar), are outdoor-advertising companies that own billboards in Austin. In April and June of 2017, Reagan sought permits from the City to digitize some of its off-premises billboards. The City denied the applications. Reagan filed suit against the City in state court alleging that the code’s prohibition against digitizing off-premises signs, but not on-premises signs, violated the Free Speech Clause of the First Amendment. The City removed the case to federal court, and Lamar intervened as a plaintiff.[ 2 ] After the parties stipulated to the pertinent facts, the District Court held a bench trial and entered judgment in favor of the City. 377 F. Supp. 3d 670, 673, 683 (WD Tex. 2019). As relevant, the court held that the challenged sign code provisions were content neutral under Reed v. Town of Gilbert , 576 U.S. 155 (2015). The court explained that “the on/off premises distinction [did] not impose greater restrictions for political messages, religious messages, or any other subject matter,” and “d[id] not require a viewer to evaluate the topic, idea, or viewpoint on the sign”; instead, it required the viewer only “to determine whether the subject matter is located on the same property as the sign.” 377 F. Supp. 3d, at 681. The court therefore held that the distinction was a facially content-neutral “regulation based on location.” Ibid. The court further found “no evidence in the record” that the City had applied the sign code provisions “differently for different messages or speakers” or that its stated concern for esthetics and safety was “pretext for any other purpose.” Id., at 681–682. Accordingly, the court reviewed the City’s on-/off-premises distinction under the standard of intermediate scrutiny applicable to content-neutral regulations of speech. Id., at 682. The court found that the distinction satisfied this standard. Id., at 682–683. The Court of Appeals reversed. 972 F.3d 696, 699 (CA5 2020). The court opined that because the City’s on-/off-premises distinction required a reader to inquire “who is the speaker and what is the speaker saying,” “both hallmarks of a content-based inquiry,” the distinction was content based. Id., at 706. It reasoned that “[t]he fact that a government official ha[s] to read a sign’s message to determine the sign’s purpose [i]s enough to” render a regulation content based and “subject [it] to strict scrutiny.” Ibid. (citing Thomas v. Bright , 937 F.3d 721, 730–731 (CA6 2019)); see also 972 F. 3d, at 704 (“To determine whether a sign is on-premises or off-premises, one must read the sign . . . ”). The court acknowledged that its interpretation of Reed was “broad,” but reasoned that the consequences were “not . . . unforeseen,” given the concerns raised by Justices who did not join the opinion of the Court. 972 F. 3d, at 707. Because the Court of Appeals determined that the City’s on-/off-premises distinction imposed a content-based restriction on speech, it reviewed that distinction under the onerous standard of strict scrutiny. Recognizing that strict scrutiny “is, understandably, a hard standard to meet” and that it “leads to almost certain legal condemnation,” id., at 709, the court held that the City’s justifications for the distinction could not meet that standard, rendering it unconstitutional, id., at 709–710.[ 3 ] This Court granted certiorari. 594 U. S. ___ (2021). II A regulation of speech is facially content based under the First Amendment if it “target[s] speech based on its communicative content”—that is, if it “applies to particular speech because of the topic discussed or the idea or message expressed.” Reed , 576 U. S., at 163. The Court of Appeals interpreted Reed to mean that if “[a] reader must ask: who is the speaker and what is the speaker saying” to apply a regulation, then the regulation is automatically content based. 972 F. 3d, at 706. This rule, which holds that a regulation cannot be content neutral if it requires reading the sign at issue, is too extreme an interpretation of this Court’s precedent. Unlike the regulations at issue in Reed , the City’s off-premises distinction requires an examination of speech only in service of drawing neutral, location-based lines. It is agnostic as to content. Thus, absent a content-based purpose or justification, the City’s distinction is content neutral and does not warrant the application of strict scrutiny. A The Reed Court confronted a very different regulatory scheme than the one at issue here: a comprehensive sign code that “single[d] out specific subject matter for differential treatment.” 576 U. S., at 169. The town of Gilbert, Arizona, had adopted a code that applied distinct size, placement, and time restrictions to 23 different categories of signs. Id., at 159. The Court focused its analysis on three categories defined by whether the signs displayed ideological, political, or certain temporary directional messages. The code gave the most favorable treatment to “ ‘Ideological Sign[s],’ ” defined as those “ ‘communicating a message or ideas for noncommercial purposes’ ” with certain exceptions. Id., at 159–160 (alteration in original). It offered less favorable treatment to “ ‘Political Sign[s],’ ” defined as those “ ‘designed to influence the outcome of an election.’ ” Id., at 160 (alteration in original). Most restricted of all were “ ‘Temporary Directional Signs Relating to a Qualifying Event,’ ” with qualifying events defined as gatherings “ ‘sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization.’ ” Id., at 160–161. The Reed Court determined that these restrictions were facially content based. Id., at 164–165. Rejecting the contention that the restrictions were content neutral because they did not discriminate on the basis of viewpoint, the Court explained: “[I]t is well established that ‘[t]he First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic.’ ” Id., at 169 (quoting Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y. , 447 U.S. 530 , 537 (1980)); accord, e.g., Police Dept. of Chicago v. Mosley , 408 U.S. 92 , 95 (1972) (explaining that “[t]he central problem” with a municipality’s effort to exempt labor picketing from a prohibition on picketing near public schools was “that it describes permissible picketing in terms of its subject matter”); Carey v. Brown , 447 U.S. 455 , 460–461 (1980) (subjecting a similar statute that “accord[ed] preferential treatment to the expression of views on one particular subject” to strict scrutiny).[ 4 ] Applying these principles, the Court reasoned that “a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter. . . . For example, a law banning the use of sound trucks for political speech—and only political speech—would be a content-based regulation, even if it imposed no limits on the political viewpoints that could be expressed.” 576 U. S., at 169. By treating ideological messages more favorably than political messages, and both more favorably than temporary directional messages, “[t]he Town’s Sign Code likewise single[d] out specific subject matter for differential treatment, even if it [did] not target viewpoints within that subject matter.” Ibid. In this case, enforcing the City’s challenged sign code provisions requires reading a billboard to determine whether it directs readers to the property on which it stands or to some other, offsite location. Unlike the sign code at issue in Reed , however, the City’s provisions at issue here do not single out any topic or subject matter for differential treatment. A sign’s substantive message itself is irrelevant to the application of the provisions; there are no content-discriminatory classifications for political messages, ideological messages, or directional messages concerning specific events, including those sponsored by religious and nonprofit organizations. Rather, the City’s provisions distinguish based on location: A given sign is treated differently based solely on whether it is located on the same premises as the thing being discussed or not. The message on the sign matters only to the extent that it informs the sign’s relative location. The on-/off-premises distinction is therefore similar to ordinary time, place, or manner restrictions. Reed does not require the application of strict scrutiny to this kind of location-based regulation. Cf. Frisby v. Schultz , 487 U.S. 474 , 482 (1988) (sustaining an ordinance that prohibited “only picketing focused on, and taking place in front of, a particular residence” as content neutral). B This Court’s First Amendment precedents and doctrines have consistently recognized that restrictions on speech may require some evaluation of the speech and nonetheless remain content neutral. Most relevant here, the First Amendment allows for regulations of solicitation—that is, speech “requesting or seeking to obtain something” or “[a]n attempt or effort to gain business.” Black’s Law Dictionary 1677 (11th ed. 2019). To identify whether speech entails solicitation, one must read or hear it first. Even so, the Court has reasoned that restrictions on solicitation are not content based and do not inherently present “the potential for becoming a means of suppressing a particular point of view,” so long as they do not discriminate based on topic, subject matter, or viewpoint. Heffron v. International Soc. for Krishna Consciousness, Inc. , 452 U.S. 640 , 649 (1981). Thus, in 1940, the Court invalidated a statute prohibiting solicitation for religious causes but observed that States were “free to regulate the time and manner of solicitation generally, in the interest of public safety, peace, comfort or convenience.” Cantwell v. Connecticut , 310 U.S. 296 , 306–307. Decades later, the Court reviewed just such a time, place, and manner regulation restricting all solicitation at the Minnesota State Fair, as well as all sale or distribution of merchandise, to a specific location. Heffron , 452 U. S., at 643–644. The State had applied the restriction against a religious practice that included “solicit[ing] donations for the support of the Krishna religion.” Id., at 645. As a result, members of the religion were free to roam the fairgrounds and discuss their beliefs, but they were prohibited from asking for donations for their cause outside of a designated location. Id., at 646, 655. The Court upheld the State’s application of this restriction as content neutral, emphasizing that it “applie[d] evenhandedly to all who wish[ed] . . . to solicit funds,” whether for “commercial or charitable” reasons. Id., at 649. Consistent with these precedents, the Court has previously understood distinctions between on-premises and off-premises signs, like the one at issue in this case, to be content neutral. In 1978, the Court summarily dismissed an appeal “for want of a substantial federal question” where a state court had approved of an on-/off-premises distinction as a permissible time, place, and manner restriction under the Free Speech Clause. Suffolk Outdoor Advertising Co. v. Hulse , 439 U.S. 808 (1978). Three years later, the Court upheld in relevant part an ordinance that prohibited all off-premises commercial advertising but allowed on-premises commercial advertising. Metromedia, Inc. v. San Diego , 453 U.S. 490 , 503–512 (1981) (plurality opinion).[ 5 ] The Metromedia Court did not need to decide whether the off-premises prohibition was content based, as it regulated only commercial speech and so was subject to intermediate scrutiny in any event. See id., at 507–512 (citing Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y. , 447 U.S. 557 (1980)). Shortly thereafter, however, the Court applied the relevant portion of Metromedia and described the off-premises prohibition as “a content-neutral prohibition against the use of billboards.” Members of City Council of Los Angeles v. Taxpayers for Vincent , 466 U.S. 789 , 807 (1984) (emphasis added). Underlying these cases and others is a rejection of the view that any examination of speech or expression inherently triggers heightened First Amendment concern. Rather, it is regulations that discriminate based on “the topic discussed or the idea or message expressed” that are content based. Reed , 576 U. S., at 171. The sign code provisions challenged here do not discriminate on those bases. C Reagan does not claim Reed expressly or implicitly overturned the precedents discussed above. Its argument relies primarily on one sentence in Reed recognizing that “[s]ome facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose.” Id., at 163. Seizing on this reference, Reagan asserts that the City’s sign code “defines off- premises signs based on their ‘function or purpose.’ ” Brief for Respondent Reagan 20 (quoting Reed , 576 U. S., at 163). It asks the Court to “reaffirm that, where a regulation ‘define[s] regulated speech by its function or purpose,’ it is content-based on its face and thus subject to strict scrutiny.” Brief for Respondent Reagan 34 (quoting Reed , 576 U. S., at 163). The argument stretches Reed ’s “function or purpose” language too far. The principle the Reed Court articulated is more straightforward. While overt subject-matter discrimination is facially content based (for example, “ ‘Ideological Sign[s],’ ” defined as those “ ‘communicating a message or ideas for noncommercial purposes’ ”), so, too, are subtler forms of discrimination that achieve identical results based on function or purpose (for example, “ ‘Political Sign[s],’ ” defined as those “ ‘designed to influence the outcome of an election’ ”). Id., at 159, 160, 163–164 (alterations in original). In other words, a regulation of speech cannot escape classification as facially content based simply by swapping an obvious subject-matter distinction for a “function or purpose” proxy that achieves the same result. That does not mean that any classification that considers function or purpose is always content based. Such a reading of “function or purpose” would contravene numerous precedents, including many of those discussed above. Reed did not purport to cast doubt on these cases. Nor did Reed cast doubt on the Nation’s history of regulating off-premises signs. Off-premises billboards of the sort that predominate today were not present in the founding era, but as large outdoor advertisements proliferated in the 1800s, regulation followed. As early as 1932, the Court had already approved a location-based differential for advertising signs. See Packer Corp. , 285 U. S., at 107, 110. Thereafter, for the last 50-plus years, federal, state, and local jurisdictions have repeatedly relied upon on-/off- premises distinctions to address the distinct safety and esthetic challenges posed by billboards and other methods of outdoor advertising. See supra, at 2. The unbroken tradition of on-/off-premises distinctions counsels against the adoption of Reagan’s novel rule. See Williams-Yulee v. Florida Bar , 575 U.S. 433, 446 (2015) (recognizing “history and tradition of regulation” as relevant when considering the scope of the First Amendment).[ 6 ] D Tellingly, even today’s dissent appears reluctant to embrace the read-the-sign rule adopted by the court below. Instead, the dissent attacks a straw man. Contrary to its accusations, we do not “nullif[y]” Reed ’s protections, “resuscitat[e]” a decision that we do not cite, or fashion a novel “specificity test” simply by quoting the standard repeatedly enunciated in Reed . Post, at 9, 11, 21 (opinion of Thomas, J.). Nor do we cast doubt on any of our precedents recognizing examples of topic or subject-matter discrimination as content based. See, e.g., post, at 9–10. We merely apply those precedents to reach the “commonsense” result that a location-based and content-agnostic on-/off-premises distinction does not, on its face, “singl[e] out specific subject matter for differential treatment.” Reed , 576 U. S., at 163, 169. It is the dissent that would upend settled understandings of the law. Where we adhere to the teachings of history, experience, and precedent, the dissent would hold that tens of thousands of jurisdictions have presumptively violated the First Amendment, some for more than half a century, and that they have done so by use of an on-/off-premises distinction this Court has repeatedly reviewed and never previously questioned. For the reasons we have explained, the Constitution does not require that bizarre result. III This Court’s determination that the City’s ordinance is facially content neutral does not end the First Amendment inquiry. If there is evidence that an impermissible purpose or justification underpins a facially content-neutral restriction, for instance, that restriction may be content based. See Reed , 576 U. S., at 164. Moreover, to survive intermediate scrutiny, a restriction on speech or expression must be “ ‘narrowly tailored to serve a significant governmental interest.’ ” Ward v. Rock Against Racism , 491 U.S. 781 , 791 (1989). The parties dispute whether the City can satisfy these requirements. This Court, however, is “a court of final review and not first view,” and it does not “[o]rdinarily . . . decide in the first instance issues not decided below.” Zivotofsky v. Clinton , 566 U.S. 189 , 201 (2012) (internal quotation marks omitted). “In particular, when we reverse on a threshold question, we typically remand for resolution of any claims the lower courts’ error prevented them from addressing.” Ibid. Because the Court of Appeals did not address these issues, the Court leaves them for remand and expresses no view on the matters. *  *  * For these reasons, the judgment of the Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 The City subsequently amended its sign code. The parties agree that the amendments do not affect this dispute. Reply to Brief in Opposition 11–12; Brief for Respondent Reagan 9. 2 Lamar did not participate in the proceedings on the merits before this Court. Brief for Respondent Reagan II. 3 The Court of Appeals further considered the possibility that the code provisions regulated only commercial speech, such that only intermediate scrutiny would apply even if the provisions were content based. 972 F. 3d, at 707–709; see Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y. , 447 U.S. 557 , 566 (1980). The court rejected this view because the provisions “applie[d] with equal force to both commercial and noncommercial messages.” 972 F. 3d, at 709. Before this Court, the City makes a similar argument, claiming that “[a]s applied to billboards like those owned by respondents,” the contested code provisions regulate commercial speech and so are subject to intermediate scrutiny. Brief for Petitioner 49. It is undisputed, however, that Reagan’s billboards also display noncommercial messages, meaning that the City’s denial of Reagan’s applications for digitization implicated Reagan’s commercial and noncommercial speech alike. See Brief for Respondent Reagan 45–46; App. 130–141. More importantly, as the Court of Appeals explained, the contested code provisions admit of no exception for noncommercial speech. The only way in which they differentiate speech is by distinguishing between on-premises and off-premises signs. The Court thus must determine which level of scrutiny applies to the manner in which the provisions actually regulate speech. 4 The concurrence in Reed , which spoke for three of the six Justices in the majority, similarly explained that “[c]ontent-based laws merit th[e] protection” of strict scrutiny “because they present, albeit sometimes in a subtler form, the same dangers as laws that regulate speech based on viewpoint. Limiting speech based on its ‘topic’ or ‘subject’ favors those who do not want to disturb the status quo. Such regulations may interfere with democratic self-government and the search for truth.” 576 U. S., at 174 (Alito, J., concurring) (quoting Consolidated Edison Co. of N. Y. , 447 U. S., at 537). 5 Although the opinion in Metromedia was labeled a plurality for four Justices, the relevant portion of the opinion was also joined by a fifth. See 453 U. S., at 541 (Stevens, J., dissenting in part) (“join[ing] Parts I through IV of Justice White’s opinion”). 6 The Court of Appeals, for its part, understood Reed to have deemed a regulation content based solely because “it ‘single[d] out signs bearing a particular message: the time and location of a specific event.’ ” 972 F.3d 696, 706 (CA5 2020) (quoting Reed , 576 U. S., at 171). Reagan does not rely as heavily on this language, and for good reason. As a preliminary matter, the Reed Court found that the provisions at issue in that case did not, in fact, “hinge on ‘whether and when an event is occurring.’ ” Id., at 170. More fundamentally, those provisions did not target all events generally, regardless of topic; they targeted “a specific event” (an election) “because of the topic discussed or the idea or message expressed” (political speech). Id., at 171. The Court of Appeals’ contrary reading would render the majority opinion in Reed irreconcilable with the concurrence, which recognized that “[r]ules imposing time restrictions on signs advertising a one-time event,” which “do not discriminate based on topic or subject,” would be content neutral. Id., at 174, 175 (Alito, J., concurring). SUPREME COURT OF THE UNITED STATES _________________ No. 20–1029 _________________ City of Austin, Texas, PETITIONER v. Reagan National Advertising of Austin, LLC, et al. on writ of certiorari to the united states court of appeals for the fifth circuit [April 21, 2022] Justice Breyer, concurring. Reed v. Town of Gilbert , 576 U.S. 155 (2015), is binding precedent here. Given that precedent, I join the majority’s opinion. I write separately because I continue to believe that the Court’s reasoning in Reed was wrong. The Court there struck down a city’s sign ordinance under the First Amendment. It wrote that the First Amendment requires strict scrutiny whenever a regulation “target[s] speech based on its communicative content.” Id., at 163. It therefore concluded that “[c]ontent-based laws . . . are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Ibid. But the First Amendment is not the Tax Code. Its purposes are often better served when judge-made categories (like “content discrimination”) are treated, not as bright-line rules, but instead as rules of thumb. And, where strict scrutiny’s harsh presumption of unconstitutionality is at issue, it is particularly important to avoid jumping to such presumptive conclusions without first considering “whether the regulation at issue works harm to First Amendment interests that is disproportionate in light of the relevant regulatory objectives.” Id., at 179 (Breyer, J., concurring in judgment); Barr v. American Assn. of Political Consultants, Inc. , 591 U. S. ___, ___–___ (2020) (Breyer, J., concurring in judgment and dissenting in part) (slip op., at 9–10); Sorrell v. IMS Health Inc. , 564 U.S. 552 , 582 (2011) (Breyer, J., dissenting). Here, I would conclude that the City of Austin’s (City’s) regulation of off-premises signs works no such disproportionate harm. I therefore agree with the majority’s conclusion that strict scrutiny and its attendant presumption of unconstitutionality are unwarranted. The majority reaches this conclusion by applying Reed ’s formal framework, as stare decisis requires. I would add that Reed ’s strict formalism can sometimes disserve the very First Amendment interests it was designed to protect. I The First Amendment helps to safeguard what Justice Holmes described as a marketplace of ideas. Abrams v. United States, 250 U.S. 616 , 630 (1919) (dissenting opinion). A democratic people must be able to freely “generate, debate, and discuss both general and specific ideas, hopes, and experiences.” Barr , 591 U. S., at ___ (opinion of Breyer, J.) (slip op., at 3). They “must then be able to transmit their resulting views and conclusions to their elected representatives, which they may do directly, or indirectly through the shaping of public opinion.” Ibid. Those representatives can respond by turning the people’s ideas into policies. The First Amendment, by protecting the “marketplace” and the “transmission” of ideas, thereby helps to protect the basic workings of democracy itself. See Meyer v. Grant , 486 U.S. 414 , 421 (1988) (“The First Amendment was ‘fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people’ ”). Courts help to protect these democratic values in part by strictly scrutinizing certain categories of laws that threaten to “ ‘drive certain ideas or viewpoints from the marketplace.’ ” R. A. V. v. St. Paul , 505 U.S. 377 , 387 (1992). We have recognized, for example, that First Amendment values are in danger when the government imposes restrictions upon “ ‘core political speech,’ ” Buckley v. American Constitutional Law Foundation, Inc. , 525 U.S. 182 , 186–187 (1999); when it discriminates against “particular views taken by speakers on a subject,” Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U.S. 819 , 829–830 (1995); and, in some contexts, when it removes “an entire topic” of discussion from public debate, Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y. , 447 U.S. 530 , 537–538 (1980). But not all laws that distinguish between speech based on its content fall into a category of this kind. That is in part because many ordinary regulatory programs may well turn on the content of speech without posing any “realistic possibility that official suppression of ideas is afoot.” R. A. V. , 505 U. S., at 390. Those regulations, rather than hindering the ability of the people to transmit their thoughts to their elected representatives, may constitute the very product of that transmission. Barr , 591 U. S., at ___ (opinion of Breyer, J.) (slip op., at 4). The U. S. Code (as well as its state and local equivalents) is filled with regulatory laws that turn, often necessarily, on the content of speech. Consider laws regulating census reporting requirements, e.g., 13 U. S. C. §224; securities- related disclosures, e.g., 15 U. S. C. §78 l ; copyright infringement, e.g., 17 U. S. C. §102; labeling of prescription drugs, e.g., 21 U. S. C. §353(b)(4)(A), or consumer electronics, e.g., 42 U. S. C. §6294; highway signs, e.g., 23 U. S. C. §131(c); tax disclosures, e.g., 26 U. S. C. §6039F; confidential medical records, e.g., 38 U. S. C. §7332; robocalls, e.g., 47 U. S. C. §227; workplace safety warnings, e.g., 29 CFR §1910.145 (2021); panhandling, e.g., Ala. Code §13A–11–9(a) (2022); solicitation on behalf of charities, e.g., N. Y. Exec. Law Ann. §174–b (West 2019); signs at petting zoos, e.g., N. Y. Gen. Bus. Law Ann. §399–ff(3) (West 2015); and many more. If Reed is taken as setting forth a formal rule that courts must strictly scrutinize regulations simply because they refer to particular content, we have good reason to fear the consequences of that decision. One possibility is that courts will strike down “ ‘entirely reasonable’ ” regulations that reflect the will of the people. Reed , 576 U. S., at 171; e.g., Barr , 591 U. S., at ___ (slip op., at 9) (striking down the Telephone Consumer Protection Act’s exception allowing robocalls that collect government debt); IMDB.com v. Becerra , 962 F.3d 1111, 1125–1127 (CA9 2020) (striking down a California law prohibiting certain websites from publishing the birthdates of entertainment professionals). If so, the Court’s content-based line-drawing will “substitut[e] judicial for democratic decisionmaking” and threaten the ability of the people to translate their ideas into policy. Sorrell , 564 U. S., at 603 (Breyer, J., dissenting). A second possibility is that courts instead will (perhaps unconsciously) dilute the stringent strict scrutiny standard in an effort to avoid striking down reasonable regulations. Doing so would “weaken the First Amendment’s protection in instances where ‘strict scrutiny’ should apply in full force.” Reed , 576 U. S., at 178 (opinion of Breyer, J.) . A third possibility is that courts will develop a matrix of formal subsidiary rules and exceptions that seek to distinguish between reasonable and unreasonable content-based regulations. Such a patchwork, however, may prove overly complex, unwieldy, or unworkable. And it may make it more difficult for ordinary Americans to understand the importance of First Amendment values and to live their lives in accord with those values. For these reasons, as I have said before, I would reject Reed’s approach, which too rigidly ties content discrimination to strict scrutiny (and, consequently, to “almost certain legal condemnation”). Id. , at 176. Instead, I would treat content discrimination as a rule of thumb to be applied with what Justice Kagan has called “a dose of common sense.” Id., at 183 (opinion concurring in judgment). Where content-based regulations are at issue, I would ask a more basic First Amendment question: Does “the regulation at issue wor[k] harm to First Amendment interests that is disproportionate in light of the relevant regulatory objectives”? Id., at 179 (opinion of Breyer, J.). I believe we should answer that question by examining “the seriousness of the harm to speech, the importance of the countervailing objectives, the extent to which the law will achieve those objectives, and whether there are other, less restrictive ways of doing so.” Ibid. II The regulation at issue in this case is the City of Austin’s sign code, which regulates billboards and other “off- premises” signs. The City defines an “off-premises” sign as “a sign advertising a business, person, activity, goods, products, or services not located on the site where the sign is installed, or that directs persons to any location not on that site.” Austin, Tex., City Code §25–10–3(11) (2016). Some years ago, the City forbid construction of new off-premises signs. §25–10–102(1). At the same time, it grandfathered in existing off-premises signs, allowing them to remain but subjecting them to regulation. §§25–10–3(10), 25–10–152(A), (B). Owners of grandfathered off-premises signs are allowed to change the face of their signs, but not to digitize them. Ibid. In the case before us, owners who wanted to digitize their off-premises signs challenged the City’s regulation on the ground that it violates the First Amendment. The Court remands for the lower courts to assess the constitutionality of this regulation in the first instance, so I need not answer that question conclusively now. I wish only to illustrate why I believe a strong presumption of unlawfulness is out of place here. Billboards and other roadside signs can generally be categorized as a form of outdoor advertising. Regulation of outdoor advertising in order to protect the public’s interest in “avoiding visual clutter,” Members of City Council of Los Angeles v. Taxpayers for Vincent , 466 U.S. 789 , 806 (1984), or minimizing traffic risks, Metromedia, Inc. v. San Diego , 453 U.S. 490 , 507–508 (1981), is unlikely to interfere significantly with the “marketplace of ideas.” In this case, for example, there is no evidence that the City regulated off-premises signs in order to censor a particular viewpoint or topic, or that its regulations have had that effect in practice. There is consequently little reason to apply a presumption of unconstitutionality to this kind of regulation. Without such a presumption, I would weigh the First Amendment harms that a regulation imposes against the regulatory objectives that it serves. The City’s regulation here appears to work at most a limited, niche-like harm to First Amendment interests. Respondents own a number of grandfathered off-premises signs. They can use those signs to communicate whatever messages they choose. They complain only that they cannot digitize the signs, which would allow them to display several messages in rapid succession. Perhaps digitization would enable them to make more effective use of their billboard space. But their inability to maximize the use of their space in this way is unlikely to meaningfully interfere with their participation in the “marketplace of ideas.” At the same time, the City has asserted a legitimate interest in maintaining the regulation. As I have said, the public has an interest in ensuring traffic safety and preserving an esthetically pleasing environment, supra this page, and the City here has reasonably explained how its regulation of off-premises signs in general, and digitization in particular, serves those interests. Amici tell us that billboards, especially digital ones, can distract drivers and cause accidents. See, e.g., Brief for United States as Amicus Curiae 21 (citing a study of 450 crashes in Alabama and Florida that “revealed that the presence of digital billboards increased the overall crash rates in areas of billboard influence”); Brief for National League of Cities et al. as Amici Curiae 22 (“ ‘The Wisconsin Department of Transport found a 35% increase in collisions near a variable message sign’ ” (alteration omitted)). They add that on-premises signs are less likely to cause accidents. Id., at 23 (“[A] 2014 study found no evidence that on premises digital signs led to an increase in crashes”). The City further says that billboards cause more visual clutter than on-premises signs because the latter are “typically ‘small in size’ and integrated into the premises.” Reply Brief 19. I would leave for the courts below to weigh these harms and interests, and any alternatives, in the first instance, without a strong presumption of unconstitutionality. SUPREME COURT OF THE UNITED STATES _________________ No. 20–1029 _________________ City of Austin, Texas, PETITIONER v. Reagan National Advertising of Austin, LLC, et al. on writ of certiorari to the united states court of appeals for the fifth circuit [April 21, 2022] Justice Alito, concurring in the judgment in part and dissenting in part. I agree with the majority that we must reverse the decision of the Court of Appeals holding that the provisions of the Austin City Code regulating on- and off-premises signs are facially unconstitutional. Ante , at 6. The Court of Appeals reasoned that those provisions impose content-based restrictions and that they cannot satisfy strict scrutiny, but the Court of Appeals did not apply the tests that must be met before a law is held to be facially unconstitutional. “Normally, a plaintiff bringing a facial challenge must ‘establish that no set of circumstances exists under which the [law] would be valid,’ or show that the law lacks ‘a plainly legitimate sweep.’ ” Americans for Prosperity Foundation v. Bonta , 594 U. S. ___, ___ (2021) (slip op., at 15) (citation omitted). A somewhat less demanding test applies when a law affects freedom of speech. Under our First Amendment “overbreadth” doctrine, a law restricting speech is unconstitutional “if a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” United States v. Stevens , 559 U.S. 460 , 473 (2010) (internal quotation marks omitted). In this case, the Court of Appeals did not apply either of those tests, and it is doubtful that they can be met. Many (and possibly the great majority) of the situations in which the relevant provisions may apply involve commercial speech, and under our precedents, regulations of commercial speech are analyzed differently. See Sorrell v. IMS Health Inc. , 564 U.S. 552 , 571–572 (2011). It is also questionable whether those code provisions are unconstitutional as applied to most of respondents’ billboards. It appears that most if not all of those billboards are located off-premises in both the usual sense of that term,[ 1 ] and in the sense in which the term is used in the Austin code. See Austin, Tex., City Code §25–10–3(11) (2016) (a sign is off-premises if it “advertis[es] a business, person, activity, goods, products, or services not located on the site where the sign is installed” or if it “directs persons to any location not on that site”). The record contains photos of some of these billboards, see App. 130–147, and all but one appears to be located on otherwise vacant land. Thus, they are clearly off-premises signs, and because they were erected before the enactment of the code provisions at issue, the only relevant restriction they face is that they cannot be digitized.[ 2 ] The distinction between a digitized and non-digitized sign is not based on content, topic, or subject matter. Even if the message on a billboard were written in a secret code, an observer would have no trouble determining whether it had been digitized. Because the Court of Appeals erred in holding that the code provisions are facially unconstitutional, I agree that we should reverse that decision. On remand, the lower courts should determine whether those provisions are unconstitutional as applied to each of the billboards at issue. Today’s decision, however, goes further and holds flatly that “[t]he sign code provisions challenged here do not discriminate” on the basis of “ ‘the topic discussed or the idea or message expressed,’ ” ante , at 10, and that categorical statement is incorrect. The provisions defining on- and off-premises signs clearly discriminate on those grounds, and at least as applied in some situations, strict scrutiny should be required. As the Court notes, under the provisions in effect when petitioner’s applications were denied, a sign was considered to be off-premises if it “advertis[ed],” among other things, a “person, activity, . . . or servic[e] not located on the site where the sign is installed” or if it “direct[ed] persons to any location not on that site.” Austin, Tex., City Code §25–10–3(11). Consider what this definition would mean as applied to signs posted in the front window of a commercial establishment, say, a little coffee shop. If the owner put up a sign advertising a new coffee drink, the sign would be classified as on-premises, but suppose the owner instead mounted a sign in the same location saying: “Contribute to X’s legal defense fund” or “Free COVID tests available at Y pharmacy” or “Attend City Council meeting to speak up about Z.” All those signs would appear to fall within the definition of an off-premises sign and would thus be disallowed. See also post , at 3–4 (Thomas, J., dissenting). Providing disparate treatment for the sign about a new drink and the signs about social and political matters constitutes discrimination on the basis of topic or subject matter. The code provisions adopted in 2017 are worded differently, but the new wording may not rule out similar results.[ 3 ] For these reasons, I would simply hold that the provisions at issue are not facially unconstitutional, and I would refrain from making any broader pronouncements. Notes 1 In ordinary usage, a sign that is attached to or located in close proximity to a building is not described as located “off-premises.” The distinction between on- and off-premises signs is based solely on location, and that is why such a classification is not content-based. See Reed v. Town of Gilbert , 576 U.S. 155, 175 (2015) (Alito, J., concurring). 2 A grandfathered sign can be maintained at its existing location, but the owner cannot “increase the degree of the existing nonconformity,” “change the method or technology used to convey a message,” or “increase the illumination of the sign.” Austin, Tex., City Code §§25–10–152(A)–(B). 3 The amended code now defines “off-premise[s] sign” as “a sign that displays any message directing attention to a business, product, service, profession, commodity, activity, event, person, institution, or other commercial message which is generally conducted, sold, manufactured, produced, offered, or occurs elsewhere than on the premises where the sign is located,” and defines an “on-premise[s] sign” as “a sign that is not an off-premise[s] sign.” Austin, Tex., City Code §§25–10–4(9)–(10) (2021). It is not clear that the inclusion of “other commercial message” modifies the terms “activity,” “event,” “person,” or “institution” such that the provision would not draw topic-based distinctions as applied to non-commercial speech. SUPREME COURT OF THE UNITED STATES _________________ No. 20–1029 _________________ City of Austin, Texas, PETITIONER v. Reagan National Advertising of Austin, LLC, et al. on writ of certiorari to the united states court of appeals for the fifth circuit [April 21, 2022] Justice Thomas, with whom Justice Gorsuch and Justice Barrett join, dissenting. In Reed v. Town of Gilbert , 576 U.S. 155 (2015), we held that a speech regulation is content based—and thus presumptively invalid—if it “draws distinctions based on the message a speaker conveys.” Id. , at 163. Here, the city of Austin imposes special restrictions on “off-premise[s] sign[s],” defined as signs that “advertis[e] a business, person, activity, goods, products, or services not located on the site where the sign is installed, or that direc[t] persons to any location not on that site.” Austin, Tex., City Code §25–10–3(11) (2016). Under Reed , Austin’s off-premises restriction is content based. It discriminates against certain signs based on the message they convey— e.g. , whether they promote an on- or off-site event, activity, or service. The Court nevertheless holds that the off-premises restriction is content neutral because it proscribes a sufficiently broad category of communicative content and, therefore, does not target a specific “topic or subject matter.” Ante , at 8. This misinterprets Reed ’s clear rule for content-based restrictions and replaces it with an incoherent and malleable standard. In so doing, the majority’s reasoning is reminiscent of this Court’s erroneous decision in Hill v. Colorado , 530 U.S. 703 (2000), which upheld a blatantly content-based prohibition on “counseling” near abortion clinics on the ground that it discriminated against “an extremely broad category of communications.” Id. , at 723. Because I would adhere to Reed rather than echo Hill ’s long-discredited approach, I respectfully dissent. I A The First Amendment, applicable to the States through the Fourteenth, prohibits laws “abridging the freedom of speech.” U. S. Const., Amdt. 1; see also Stromberg v. California , 283 U.S. 359 , 368 (1931). “When enforcing this prohibition, our precedents distinguish between content-based and content-neutral regulations.” National Institute of Family and Life Advocates v. Becerra , 585 U. S. ___, ___ (2018) (slip op., at 6). A content-based law is “presumptively invalid,” United States v. Playboy Entertainment Group , Inc. , 529 U.S. 803 , 817 (2000) (internal quotation marks omitted), and may generally be upheld only if the government proves that the regulation is narrowly tailored to serve compelling state interests, R. A. V. v. St. Paul , 505 U.S. 377 , 395 (1992).[ 1 ] In Reed v. Town of Gilbert , we held that courts should identify content-based restrictions by applying a “commonsense” test: A speech regulation is content based if it “target[s] speech based on its communicative content.” 576 U. S., at 163. Put another way, a law is content based “ ‘on its face’ [if it] draws distinctions based on the message a speaker conveys.” Ibid. While we noted that “[s]ome facial distinctions based on a message are obvious,” we emphasized that others could be “more subtle, defining regulated speech by its function or purpose.” Ibid . In all events, whether a law is characterized as targeting a “topic,” “idea,” “subject matter,” or “communicative content,” the law is content based if it draws distinctions based in any way “on the message a speaker conveys.” Id. , at 163–164.[ 2 ] Applying this standard, we held that the town of Gilbert’s sign code was “a paradigmatic example of content-based discrimination” because it classified “various categories of signs based on the type of information they convey[ed], [and] then subject[ed] each category to different restrictions.” Id. , at 169, 159. For instance, Gilbert defined “ ‘Temporary Directional Signs’ ” as any sign that “convey[ed] the message of directing the public to [a] ‘qualifying event,’ ” and permitted their display for no more than 12 hours before and 1 hour after the event occurred. Id. , at 164, 161. Meanwhile, “ ‘Ideological Sign[s],’ ” defined as any sign (not covered by another category) that “ ‘communicat[ed] a message or ideas for noncommercial purposes,’ ” were subject to no temporal limitations. Id. , at 159–160. In short, the restrictions on any given sign depended “on the communicative content of the sign.” Id. , at 164. Gilbert’s sign code was thus facially content based and presumptively unlawful. See id. , at 159. In contrast to Reed ’s “commonsense” test, Gilbert urged us to define “content based” as a “term of art that ‘should be applied flexibly’ with the goal of protecting ‘viewpoints and ideas from government censorship or favoritism.’ ” Id. , at 168. Such a functionalist test, Gilbert argued, could ferret out illicit government motives while obviating the need to subject reasonable laws to strict scrutiny. See ibid. We rejected Gilbert’s attempt to cast the phrase “content based” as a “term of art” because “[i]nnocent motives do not eliminate the danger of censorship presented by a facially content-based statute.” Id. , at 167. We noted that “one could easily imagine a Sign Code compliance manager who disliked [a] Church’s substantive teachings deploying the Sign Code to make it more difficult for the Church to inform the public of the location of its services.” Id. , at 167–168. Thus, we concluded that “a clear and firm rule governing content neutrality is an essential means of protecting the freedom of speech, even if laws that might seem entirely reasonable will sometimes be struck down because of their content-based nature.” Id. , at 171 (internal quotation marks omitted). We also rejected the Ninth Circuit’s reasoning that Gilbert’s sign restrictions were content neutral because they depended on “the content-neutral elements of . . . whether and when an event is occurring.” Id. , at 169 (internal quotation marks omitted). That is, whether a temporary directional sign was permissible depended, in part, on its temporal proximity to a “ ‘qualifying event.’ ” Id. , at 164. This partial dependence on content-neutral elements was immaterial, we explained, because the restrictions also depended on the signs’ communicative content. Gilbert officials still had to examine a sign’s message to determine what type of sign it was, and this “obvious content-based inquiry d[id] not evade strict scrutiny simply because an event [was] involved.” Id. , at 170. B Under Reed ’s approach for identifying content-based regulations, Austin’s off-premises sign restriction is content based. As relevant to this suit, Austin’s sign code imposes stringent restrictions on a category of “off-premise[s] sign[s].” §25–10–3(11). The code defines “off-premise[s] sign[s]” as those “advertising a business, person, activity, goods, products, or services not located on the site where the sign is installed,” or as signs “direct[ing] persons to any location not on that site.” Ibid. This broad definition sweeps in a wide swath of signs, from 14- by 48-foot billboards to 24- by 18-inch yard signs. The sign code prohibits new off-premises signs and makes it difficult (or impossible) to change existing off-premises signs, including by digitizing them. See ante , at 3. Like the town of Gilbert in Reed , Austin has identified a “categor[y] of signs based on the type of information they convey, [and] then subject[ed that] category to different restrictions.” 576 U. S., at 159. A sign that conveys a message about off-premises activities is restricted, while one that conveys a message about on-premises activities is not. See id. , at 171 (regulating signs based on “a particular message” about “the time and location of a specific event” is content based). And, per Reed , it does not matter that Austin’s code “defin[es] regulated speech by its function or purpose”— i.e. , advertising or directing passersby elsewhere. Id. , at 163. Again, all that matters is that the regulation “draws distinctions based on” a sign’s “communicative content,” which the off-premises restriction plainly does. Ibid . This conclusion is not undermined because the off- premises sign restriction depends in part on a content- neutral element: the location of the sign. Much like in Reed , that an Austin official applying the sign code must know where the sign is does not negate the fact that he also must know what the sign says. Take, for instance, a sign outside a Catholic bookstore. If the sign says, “Visit the Holy Land,” it is likely an off-premises sign because it conveys a message directing people elsewhere (unless the name of the bookstore is “Holy Land Books”). But if the sign instead says, “Buy More Books,” it is likely a permissible on- premises sign (unless the sign also contains the address of another bookstore across town). Finally, suppose the sign says, “Go to Confession.” After examining the sign’s message, an official would need to inquire whether a priest ever hears confessions at that location. If one does, the sign could convey a permissible “on-premises” message. If not, the sign conveys an impermissible off-premises message. Because enforcing the sign code in any of these instances “requires [Austin] officials to determine whether a sign” conveys a particular message, the sign code is content based under Reed . Id. , at 170. In sum, the off-premises rule is content based and thus invalid unless Austin can satisfy strict scrutiny. See Playboy Entertainment Group , 529 U. S., at 813. Because Austin has offered nothing to make that showing, the Court of Appeals did not err in holding that the off-premises rule violates the First Amendment. II To reach the opposite result, the majority implicitly rewrites Reed ’s bright-line rule for content-based restrictions. In the majority’s view, the off-premises restriction is not content based because it does not target a specific “topic or subject matter.” Ante , at 8. The upshot of the majority’s reasoning appears to be that a regulation based on a sufficiently general or broad category of communicative content is not actually content based. Such a rule not only conflicts with Reed and many pre- Reed precedents but is also incoherent and unworkable. Tellingly, the only decision that even remotely supports the majority’s rule is one it does not cite: Hill v. Colorado . There, the Court held that an undeniably content-based law was nonetheless content neutral because it discriminated against “an extremely broad category of communications,” supposedly without regard to “subject matter.” 530 U. S., at 723. The majority’s decision today is erroneous for the same reasons that Hill is an aberration in our case law. A The majority concedes that “[t]he message on the sign matters” when applying Austin’s sign code. Ante , at 8. That concession should end the inquiry under Reed . But the majority nonetheless finds the sign code to be content neutral by recasting facially content-based restrictions as only those that target sufficiently specific categories of communicative content and not as those that depend on communicative content simpliciter . For example, while Reed defined content-based restrictions as those that “dra[w] distinctions based on the message a speaker conveys,” 576 U. S., at 163 (emphasis added), the majority decides that Austin’s sign code is not content based because it draws no distinctions based on “[a] sign’s substantive message,” ante , at 8 (emphasis added). Elsewhere, the majority speaks not of “substantive message[s]” but of “topic[s] or subject matter[s],” which the majority thinks are sufficiently specific categories of communicative content. Ibid. As a result, the majority contends that a law targeting directional messages concerning “events generally, regardless of topic,” would not be content based, but one targeting “directional messages concerning specific events” ( e.g. , “religious” or “political” events) would be. Ante , at 12, n. 6, 8 (emphasis added).[ 3 ] Regardless of the label, the majority today excises, without a word of explanation, a subset of supposedly non-substantive or unspecific messages from the First Amendment’s protection against content-based restrictions. This understanding of content-based restrictions contravenes Reed , which held that a law is content based if it “target[s] speech based on its communicative content”—not “specific” or “substantive” categories of communicative content. 576 U. S., at 163; see also, e.g. , Norton v. Springfield , 806 F.3d 411, 412 (CA7 2015) (“ Reed effectively abolishes any distinction between content regulation and subject-matter regulation. Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification”). Only by jettisoning Reed ’s “commonsense” definition of what it means to be content based can the majority assert that the off-premises rule is strictly “location-based” and “agnostic as to content,” ante , at 6, even though the law undeniably depends on both location and communicative content, supra , at 5–6. Moreover, the majority’s suggestion that laws targeting broad categories of communicative content are not content based is hard to square with the sign categories that Reed invalidated. For instance, we found Gilbert’s expansive definition of “Ideological Sign[s]” to be content based even though it broadly covered any “sign communicating a message or ideas for noncommercial purposes” that did not already fall into one of the other categories. 576 U. S., at 159 (internal quotation marks omitted). Nor did we suggest that the outcome in Reed would have been different if the sign categories were defined even more generally. The majority answers that it is not “fashion[ing] a novel ‘specificity test,’ ” but instead “simply” “quoting the standard repeatedly enunciated in Reed .” Ante , at 13. The majority finds this alleged specificity test in a paragraph near the end of Reed , where we noted that a law “targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter,” and then affirmed that Gilbert’s sign code “single[d] out specific subject matter for differential treatment.” 576 U. S., at 169. These statements never purported to endorse a specificity test of the sort now suggested by the majority. Read in context, Reed ’s two references to “specific subject matter” naturally address laws that target a “subject matter,” however broadly defined, as opposed to some other subject matter; they did not refer only to laws targeting some sufficiently “specific” category of “subject matter.” Moreover, the concept of “specificity” or “generality” appears nowhere in the part of Reed that set forth its “commonsense” test for content neutrality. See id. , at 163–164. If Reed ’s content-neutrality test turned on specificity, we would have said so explicitly when stating the test. Finally, even crediting the majority’s strained reading of Reed ’s passing references to “specific subject matter,” the paragraph where they appear made clear that it was describing only “a paradigmatic example of content-based discrimination.” Id. , at 169 (emphasis added). That part of Reed never professed to announce a comprehensive rule with respect to all laws targeting speech based on its communicative content. Our pre- Reed precedents likewise foreclose a construction of “content based” that applies only to some content. We have held many capacious speech regulations to be content based, including restrictions on “ ‘advice or assistance derived from scientific, technical or other specialized knowledge,’ ” Holder v. Humanitarian Law Project , 561 U.S. 1 , 12–13 (2010); “ ‘advertising, promotion, or any activity . . . used to influence sales or the market share of a prescription drug,’ ” Sorrell v. IMS Health Inc. , 564 U.S. 552 , 559 (2011); “editorializing,” FCC v. League of Women Voters of Cal. , 468 U.S. 364 , 382–383, and n. 14 (1984); “ ‘[publication] for philatelic, numismatic, educational, historical, or newsworthy purposes,’ ” Regan v. Time , Inc. , 468 U.S. 641 , 644 (1984); and “anonymous speech,” McIntyre v. Ohio Elections Comm’n , 514 U.S. 334 , 348, 357 (1995). These speech categories are no more “specific” or “substantive” than messages regarding off-premises activities. And some of these examples, like “editorializing” or publishing “newsworthy” information, are clearly less so. What unites these speech restrictions is that their application turns “on the nature of the message being conveyed,” Carey v. Brown , 447 U.S. 455 , 461 (1980), not whether they regulate specific or general categories of speech, or whether they address substantive or non-substantive categories of speech. We have defined content-based restrictions to include all content-based distinctions because any other rule would be incoherent. After all, off-premises advertising could be considered a “subject” or a “topic” as those words are ordinarily used. See L. D. Management Co. v. Gray , 988 F.3d 836, 839 (CA6 2021) (off-premises billboard restriction “turns on the ‘ topic discussed’ ” (emphasis added)). And, in any event, there is no principled way to decide whether a category of communicative content is “substantive” or “specific” enough for the majority to deem it a “topic” or “subject” worthy of heightened protection. Although off-premises advertising is a more general category of speech than some ( e.g. , off-premises advertising of religious events), it is a more specific category than others ( e.g. , advertising generally). The majority offers only its own ipse dixit to explain why off-premises advertising is insufficiently specific to qualify as content based under Reed . Worse still, the majority does not explain how courts should draw the line between a sufficiently substantive or specific content-based classification and one that is insufficiently substantive or specific. On this point, Austin suggests there is no need to worry because our cases provide “guideposts” from which one can divine what “level of generality” renders a speech regulation content based. Tr. of Oral Arg. 18, 24. To be sure, that is the sort of inquiry the majority’s opaque test invites. But Reed directed us elsewhere—to the text of the law in question and whether that law “ ‘on its face’ draws distinctions based on the message a speaker conveys.” 576 U. S., at 163. The majority’s holding that some rules based on content are not, as it turns out, content based nullifies Reed ’s clear test. B The majority offers several reasons why its approach is consistent with Reed and other cases. None of these arguments is persuasive. Instead, they only serve to underscore the Court’s ill-advised departure from our doctrine. 1 The majority first suggests that deeming Austin’s sign code content based would require us to adopt an “extreme” reinterpretation of Reed . Ante , at 6. Specifically, the majority faults the Court of Appeals for concluding that Austin’s regulation was content based because, to enforce the off-premises rule, “ ‘[a] reader must ask: who is the speaker and what is the speaker saying’ ”? Ibid. (quoting 972 F.3d 696, 706 (CA5 2020)). In the majority’s view, Reed cannot stand for such a simplistic read-the-sign test. The majority’s skepticism is misplaced. We have often acknowledged that the need to examine the content of a message is a strong indicator that a speech regulation is content based. One year before Reed , for example, we stated that an abortion clinic buffer-zone law “would be content based if it required enforcement authorities to examine the content of the message that is conveyed to determine whether a violation has occurred.” McCullen v. Coakley , 573 U.S. 464 , 479 (2014) (internal quotation marks omitted). That statement was not an outlier. See, e.g. , Arkansas Writers’ Project , Inc. v. Ragland , 481 U.S. 221 , 230 (1987) (tax exemption for periodicals “uniformly devoted to religion or sports” was content based because it required state officials to “examine the content of the message” (internal quotation marks omitted)); Forsyth County v. Nationalist Movement , 505 U.S. 123 , 134 (1992) (regulation requiring parade organizers to pay a fee depending on the security costs anticipated for the event was content based because “[i]n order to assess accurately the cost of security for parade participants, the administrator must necessarily examine the content of the message that is conveyed” (internal quotation marks omitted)); League of Women Voters , 468 U. S., at 366, 383 (law forbidding public broadcasting stations from “engag[ing] in editorializing” was content based because it required “enforcement authorities [to] necessarily examine the content of the message that is conveyed” (internal quotation marks omitted)). Ultimately, the majority’s objection to the Court of Appeals’ reliance on a read-the-sign test is a red herring; its real objection is to Reed ’s rule that any law that draws distinctions based on communicative content is content based. 2 The majority next argues that Austin’s sign code is content neutral under our precedents. See ante , at 8–10. But none of the cases the majority cites supports its crabbed view of what constitutes a content-based restriction. First, in Heffron v. International Soc. for Krishna Consciousness , Inc. , 452 U.S. 640 (1981), the Court upheld, as content neutral, an ordinance providing that the “[s]ale or distribution of any merchandise, including printed or written material,” could occur only from certain booths at the fairgrounds. Id. , at 643 (internal quotation marks omitted). Such a statute is facially content neutral under Reed because it does not “ ‘on its face’ dra[w] distinctions based on the message a speaker conveys” when selling or distributing merchandise subject to the ordinance. 576 U. S., at 163. True, the Court construed the ordinance also to limit “fund solicitation operations,” 452 U. S., at 644, but that was not, as the majority claims, a prohibition on “asking for donations,” ante , at 9. Rather, anyone was free to “as[k] for donations” wherever he liked, because the ordinance did “not prevent respondents from wandering throughout the fairgrounds and directing interested donors or purchasers to their booth.” 452 U. S., at 664, n. 2 (Blackmun, J., concurring in part and dissenting in part). Then, once “at the booth,” the donor could “make a contribution.” Ibid. Second, in Cantwell v. Connecticut , 310 U.S. 296 (1940), the Court invalidated a licensing system for religious and charitable solicitation while acknowledging in dicta that a State could regulate the time, place, and manner of solicitation. Id. , at 304, 307. But here, we are not faced with a true time, place, or manner restriction, as even the majority concedes. See ante , at 8.[ 4 ] And, in any event, Cantwell did not suggest that a content-based restriction could be sustained as a time, place, or manner restriction; its analysis focused predominantly on the plaintiff ’s free exercise claim; and the case predated our modern content-neutrality doctrine by nearly three decades. Thus, nothing in Heffron or Cantwell supports the majority’s narrow approach to identifying content-based restrictions. Finally, the majority argues that we have “previously understood distinctions between on-premises and off-premises signs . . . to be content neutral.” Ante , at 9–10. To be sure, in both Suffolk Outdoor Adv. Co. v. Hulse , 439 U.S. 808 (1978), and Metromedia , Inc. v. San Diego , 453 U.S. 490 , 503–512 (1981) (plurality opinion), this Court suggested that some restrictions on off-premises advertising were constitutional. And later, in Members of City Council of Los Angeles v. Taxpayers for Vincent , 466 U.S. 789 (1984), the Court described Metromedia as upholding “a content- neutral prohibition against the use of billboards.” 466 U. S., at 807 (emphasis added). But the statement in Vincent was dictum, and, as the majority concedes, both our summary decision in Suffolk and the plurality opinion in Metromedia sanctioned off-premises restrictions only insofar as they applied to commercial speech. Ante , at 10. That is, the “Court did not need to decide”—and did not decide—“whether the off-premises prohibition was content based” because restrictions on commercial speech are “subject to intermediate scrutiny in any event.” Ibid. 3 The majority also claims that finding Austin’s sign code to be content based “would render the majority opinion in Reed irreconcilable with” Justice Alito’s Reed concurrence. Ante , at 12, n. 6. In particular, Justice Alito identified nine different types of sign regulations that he believed “would not be content based,” including “[r]ules distinguishing between on-premises and off-premises signs” and “[r]ules imposing time restrictions on signs advertising a one-time event.” 576 U. S., at 174–175. The majority evidently believes that these two types of sign regulations necessarily turn on a sign’s communicative content, like the off-premises sign restriction at issue here. That reading of the Reed concurrence makes little sense. First, there is no reason to interpret the concurrence as referring to off-premises or one-time-event rules that turn on a sign’s communicative content. Doing so would make those two rules categorically different from the other seven, none of which would ever turn on message content. See, e.g. , id. , at 174 (“Rules distinguishing between lighted and unlighted signs”). And although off-premises and one-time-event rules could be drafted in terms of a sign’s communicative content, as is true here, they need not be. “There might be many formulations of an on/off-premises distinction that are content-neutral.” Thomas v. Bright , 937 F.3d 721, 733 (CA6 2019); see also ante , at 2, n. 1 (Alito, J., concurring in judgment in part and dissenting in part) (explaining that “[i]n ordinary usage” an “off- premises” sign is one that is not “attached to or located in close proximity to a building”). For instance, a city could define “ ‘an o[n]-premise[s] sign as any sign within 500 feet of a building,’ ” 937 F. 3d, at 732, or a sign that is installed by “ ‘a business . . . licensed to occupy . . . the premises where the sign is located,’ ” Brief for Summus Outdoor as Amicus Curiae 10. As for regulations of one-time-event signs, Austin itself amended its sign code, at the behest of its lawyers, specifically to make its ordinance content neutral. See Austin, Tex., City Code §25–10–102(D) (2021); App. 152. Thus, interpreting Justice Alito’s concurrence as referring to rules that turn on communicative content, as opposed to rules that are content neutral, is unwarranted. Second, it would be strange to interpret the concurrence as proclaiming that all off-premises sign restrictions are content neutral considering the longstanding dispute over that question. In fact, 20 years before Reed , then-Judge Alito opined that there was “no easy answer to [the] question” whether “exceptions for ‘for sale’ signs and signs relating to on-site activities” would render a sign code content based. Rappa v. New Castle County , 18 F.3d 1043 , 1080 (CA3 1994) (concurring opinion); see also, e.g. , Ackerly Communications of Mass. , Inc. v. Cambridge , 88 F.3d 33 , 36, n. 7 (CA1 1996) (“In ‘commonsense’ terms, the distinction surely is content-based because determining whether a sign must stay up or must come down requires consideration of the message it carries”); Norton Outdoor Adv. , Inc. v. Arlington Heights , 69 Ohio St. 2d 539, 541, 433 N.E.2d 198, 200 (1982) (“In prohibiting all forms of offsite billboard advertising, the ordinance is thus inescapably directed to the content of protected speech”). Ultimately, it seems quite unlikely that Justice Alito’s quick recital of some content-neutral rules purported to pre-emptively decide an issue that had long perplexed federal and state courts. 4 Near the end of its analysis, the majority invokes an allegedly “unbroken tradition of on-/off-premises distinctions” that it claims “counsels against” faithful application of Reed . Ante , at 12. To be sure, history and tradition are relevant to identifying and defining those “few limited areas” where, “[f ]rom 1791 to the present,” “the First Amendment has permitted restrictions upon the content of speech.” Brown v. Entertainment Merchants Assn. , 564 U.S. 786 , 791 (2011) (internal quotation marks omitted); see supra , at 2, n. 1. But the majority openly admits that off-premises regulations “were not present [at] the founding.” Ante , at 12. And while it asserts that “large outdoor advertisements proliferated in the 1800s,” ibid. , it offers no evidence of any content-based restrictions from that period, let alone off-premises restrictions on noncommercial speech. The earliest example of an off-premises restriction that the majority cites arose in Packer Corp. v. Utah , 285 U.S. 105 (1932), but that case involved a restriction on commercial advertising and did not even feature a First Amendment claim. See id. , at 108–112. Ultimately, the majority’s only “historical” support is that regulations like Austin’s “proliferated following the enactment of the Highway Beautification Act of 1965.” Ante , at 2. The majority’s suggestion that the First Amendment should yield to a speech restriction that “proliferated”— under pressure from the Federal Government—some two centuries after the founding is both “startling and dangerous.” United States v. Stevens , 559 U.S. 460 , 470 (2010). This Court has never hinted that the government can, with a few decades of regulation, subject “new categories of speech” to less exacting First Amendment scrutiny. Id. , at 472. Regardless, even if this allegedly “unbroken tradition” did not fall short by a century or two, the majority offers no explanation why historical regulation is relevant to the question whether the off-premises restriction is content based under Reed and our modern content-neutrality jurisprudence. If Austin had met its burden of identifying a historical tradition of analogous regulation—as can be done, say, for obscenity or defamation—that would not make the off-premises rule content neutral. It might simply mean that the off-premises rule is a constitutional form of content-based discrimination. But content neutrality under Reed is an empirical question, not a historical one. Thus, the majority’s historical argument is not only meritless but misguided. C Despite asserting that the Court of Appeals’ analysis under Reed would “contravene numerous precedents,” ante , at 11, the majority identifies no decision of this Court supporting the idea that a speech restriction is not content based so long as it regulates a sufficiently broad or non- substantive category of communicative content. In fact, there is only one case that could possibly validate the majority’s aberrant analysis: Hill v. Colorado . That Hill is the majority’s only support underscores the danger that today’s decision poses to the First Amendment. Hill involved a law that prohibited persons outside abortion clinics from knowingly approaching within eight feet of another person without consent “for the purpose of . . . engaging in oral protest, education, or counseling.” 530 U. S., at 707 (internal quotation marks omitted). Hill concluded, implausibly, that this regulation was content neutral. The majority’s reasoning in this case is just as implausible. The majority asserts that the off-premises rule is not content based because it does not target a sufficiently “specific” or “substantive” category of communications. Ante , at 8. Hill correspondingly held that restrictions on “protest, education, or counseling” were not content-based classifications because they cover “an extremely broad category of communications.” 530 U. S., at 723. The majority also tries to disguise its redefinition of content neutrality by characterizing Austin’s rule as a “neutral, location-based” restriction. Ante , at 6. So too did Hill try to conceal its doctrinal innovation by characterizing the buffer-zone law as a neutral “place restriction.” 530 U. S., at 723. Finally, the majority finds it immaterial that Austin’s rule can be enforced only by “reading a [sign] to determine whether it” contains an off-premises message. Ante , at 8. Hill likewise found it irrelevant that “the content of the oral statements” would need to “be examined to determine whether” the prohibition applied. 530 U. S., at 720. The parallel between the majority’s opinion and Hill should be discomforting given that Hill represented “an unprecedented departure” from this Court’s First Amendment jurisprudence. Id. , at 772 (Kennedy, J., dissenting). Its content-neutrality analysis was, as Justice Scalia explained, “absurd” given that the buffer-zone law was “obviously and undeniably content based.” Id. , at 742–743 (dissenting opinion). First Amendment scholars from across the ideological spectrum agree. See, e.g. , M. McConnell, Professor Michael W. McConnell’s Response, in K. Sullivan, Sex, Money, and Groups: Free Speech and Association Decisions in the October 1999 Term, 28 Pepperdine L. Rev. 723, 748 (2001) (“The Court said that this statute is content-neutral. I just literally cannot see how they could possibly come to that conclusion”); Colloquium, id ., at 750 (Laurence Tribe stating Hill “was slam-dunk simple and slam-dunk wrong”); R. Fallon, Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1298, and n. 174 (2007) ( Hill “unconvincingly . . . maintain[ed] that a content-based restriction on speech [was] not really content-based”). And, since Hill , this Court has all but interred its flawed content-neutrality analysis in both McCullen , see supra , at 11, and Reed . See Price v. Chicago , 915 F.3d 1107, 1118 (CA7 2019) (“In the wake of McCullen and Reed , it’s not too strong to say that what Hill explicitly rejected is now prevailing law”). The majority’s refusal to acknowledge Hill simply underscores the decision’s defunct status. Again, Hill is the only case that could support the majority’s ill-conceived content-neutrality analysis, and yet the majority disclaims reliance on it. Lower courts should take the majority’s disclaimer at face value: Hill is “a decision that we do not cite.” Ante , at 13. And today’s decision amounts to little more than an ad hoc exemption for the “location-based” and supposedly “content-agnostic on-/off-premises distinction.” Ibid . Even so, the majority’s approach should offer little comfort because arbitrary carveouts from Reed undermine the “clear and firm rule governing content neutrality” that we understood to be “an essential means of protecting the freedom of speech.” 576 U. S., at 171. The majority’s deviation from that “clear and firm rule” poses two serious threats to the First Amendment’s protections. First, transforming Reed ’s clear definition of “content based regulation” back into an opaque and malleable “term of art” turns the concept of content neutrality into a “vehicl[e] for the implementation of individual judges’ policy preferences.” Tennessee v. Lane , 541 U.S. 509 , 556 (2004) (Scalia, J., dissenting). Hill exemplifies this danger. See 530 U. S., at 742 (Scalia, J., dissenting) (“I have no doubt that this regulation would be deemed content based in an instant if the case before us involved antiwar protesters, or union members seeking to ‘educate’ the public about the reasons for their strike”). The majority’s approach in this case is cut from the same cloth. As the majority transparently admits, it seeks to “apply [our] precedents to reach the ‘commonsense’ result ” and avoid what it perceives as a “bizarre result .” Ante , at 13 (emphasis added). But Reed mandates a “commonsense” test for content neutrality even if the result is that “laws that might seem entirely reasonable will sometimes be struck down.” 576 U. S., at 163, 171 (internal quotation marks omitted). Second, sanctioning certain content-based classifications but not others ignores that even seemingly reasonable content-based restrictions are ready tools for those who would “suppress disfavored speech.” Id ., at 167; see also Hill , 530 U. S., at 743 (Scalia, J., dissenting) (“ ‘The vice of content-based legislation . . . is not that it is always used for invidious, thought-control purposes, but that it lends itself to use for those purposes’ ”). This is because “the responsibility for distinguishing between” permissible and impermissible content “carries with it the potential for invidious discrimination of disfavored subjects.” Cincinnati v. Discovery Network , Inc. , 507 U.S. 410 , 423–424, n. 19 (1993). That danger only grows when the content-based distinctions are “by no means clear,” giving more leeway for government officials to punish disfavored speakers and ideas. Ibid. The content-based distinction drawn by Austin’s off-premises speech restriction is “by no means clear,” ibid. , and plainly lends itself “to suppress[ing] disfavored speech,” Reed , 576 U. S., at 167. As the Court of Appeals noted, Austin’s “prepared counsel” “struggled to answer whether” signs conveying messages like “ ‘God Loves You,’ ” “ ‘Vote for Kathy,’ ” or “ ‘Sally makes quilts here and sells them at 3200 Main Street’ ” would be regulated as off- premises signs. 972 F. 3d, at 706. Before us, Austin’s counsel had similar difficulties, and amici have proposed dozens of religious and political messages that would be next to impossible to categorize under Austin’s rule. See, e.g. , Brief for Alliance Defending Freedom et. al. as Amici Curiae 15–19; Brief for Institute for Justice as Amicus Curiae 3–9. These pervasive ambiguities offer enforcement officials ample opportunity to suppress disfavored views. And they underscore Reed ’s warning that “[i]nnocent motives do not eliminate the danger of censorship presented by a facially content-based statute.” 576 U. S., at 167. *  *  * Because Reed provided a clear and neutral rule that protected the freedom of speech from governmental caprice and viewpoint discrimination, I would adhere to that precedent rather than risk resuscitating Hill . I respectfully dissent. Notes 1 For several categories of historically unprotected speech, including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct, the government ordinarily may enact content-based restrictions without satisfying strict scrutiny. See United States v. Stevens , 559 U.S. 460 , 468–469 (2010). This Court’s precedents have also declined to apply strict scrutiny to several other types of content-based restrictions, including laws targeting “commercial speech.” Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y. , 447 U.S. 557 , 561–566 (1980). But see Lorillard Tobacco Co. v. Reilly , 533 U.S. 525 , 572 (2001) (Thomas, J., concurring in part and concurring in judgment). As the Court recognizes, Austin’s off-premises sign rule is not limited to any of these categories of speech. See ante, at 5, n. 3. 2 In Reed , we acknowledged that some prior decisions had skipped over this facial analysis and applied a justification-focused test. See 576 U. S., at 165–167. But we explained that the justification-focused test implicated a “separate and additional category of laws that, though facially content neutral, [are] content-based regulations [because they] cannot be ‘ “justified without reference to the content of the regulated speech,” ’ or . . . were adopted by the government ‘because of disagreement with the message [the speech] conveys.’ ” Id., at 164 (quoting Ward v. Rock Against Racism , 491 U.S. 781 , 791 (1989)). All agree that this second type of content-based regulation is not at issue here. 3 On this point, the majority’s analysis tracks the position advanced byAustin, which asserted that content neutrality was a “question of generality.” Tr. of Oral Arg. 14; see also id., at 19 (explaining that whether a law is content based turns on the “level of specificity” at which the government regulates speech). 4 The majority says only that Austin’s sign code is “similar” to a time-place-manner restriction, citing Frisby v. Schultz , 487 U.S. 474 (1988). Ante, at 8. But Frisby upheld an ordinance that regulated only where picketing may take place and not what message the picketers could communicate. See 487 U. S., at 477 (ordinance made it “unlawful for any person to engage in picketing before or about the residence or dwelling of any individual” (internal quotation marks omitted)); cf. Hill v. Colorado , 530 U.S. 703 , 766 (2000) (Kennedy, J., dissenting) (“[n]o examination of the content of a speaker’s message is required to determine whether an individual is picketing”).

The City of Austin, Texas, regulates off-premises signs, including billboards, and allows onsite signs. The Supreme Court held that this regulation is not subject to strict scrutiny under the First Amendment's Free Speech Clause. Justice Sotomayor delivered the opinion, citing historical precedent and the Highway Beautification Act of 1965, which allowed states to limit off-premises signs near federal highways. The Court's decision protects against governmental caprice and viewpoint discrimination.

Free Speech

Lindke v. Freed

https://supreme.justia.com/cases/federal/us/601/22-611/

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. SUPREME COURT OF THE UNITED STATES _________________ No. 22–611 _________________ KEVIN LINDKE, PETITIONER v. JAMES R. FREED on writ of certiorari to the united states court of appeals for the sixth circuit [March 15, 2024] Justice Barrett delivered the opinion of the Court. Like millions of Americans, James Freed maintained a Facebook account on which he posted about a wide range of topics, including his family and his job. Like most of those Americans, Freed occasionally received unwelcome comments on his posts. In response, Freed took a step familiar to Facebook users: He deleted the comments and blocked those who made them. For most people with a Facebook account, that would have been the end of it. But Kevin Lindke, one of the unwelcome commenters, sued Freed for violating his right to free speech. Because the First Amendment binds only the government, this claim is a nonstarter if Freed posted as a private citizen. Freed, however, is not only a private citizen but also the city manager of Port Huron, Michigan—and while Freed insists that his Facebook account was strictly personal, Lindke argues that Freed acted in his official capacity when he silenced Lindke’s speech. When a government official posts about job-related topics on social media, it can be difficult to tell whether the speech is official or private. We hold that such speech is attributable to the State only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media. I A Sometime before 2008, while he was a college student, James Freed created a private Facebook profile that he shared only with “friends.” In Facebook lingo, “friends” are not necessarily confidants or even real-life acquaintances. Users become “friends” when one accepts a “friend request” from another; after that, the two can generally see and comment on one another’s posts and photos. When Freed, an avid Facebook user, began nearing the platform’s 5,000-friend limit, he converted his profile to a public “page.” This meant that anyone could see and comment on his posts. Freed chose “public figure” for his page’s category, “James Freed” for its title, and “JamesRFreed1” as his username. Facebook did not require Freed to satisfy any special criteria either to convert his Facebook profile to a public page or to describe himself as a public figure. In 2014, Freed was appointed city manager of Port Huron, Michigan, and he updated his Facebook page to reflect the new job. For his profile picture, Freed chose a photo of himself in a suit with a city lapel pin. In the “About” section, Freed added his title, a link to the city’s website, and the city’s general email address. He described himself as “Daddy to Lucy, Husband to Jessie and City Manager, Chief Administrative Officer for the citizens of Port Huron, MI.” As before his appointment, Freed operated his Facebook page himself. And, as before his appointment, Freed posted prolifically (and primarily) about his personal life. He uploaded hundreds of photos of his daughter. He shared about outings like the Daddy Daughter Dance, dinner with his wife, and a family nature walk. He posted Bible verses, updates on home-improvement projects, and pictures of his dog, Winston. Freed also posted information related to his job. He described mundane activities, like visiting local high schools, as well as splashier ones, like starting reconstruction of the city’s boat launch. He shared news about the city’s efforts to streamline leaf pickup and stabilize water intake from a local river. He highlighted communications from other city officials, like a press release from the fire chief and an annual financial report from the finance department. On occasion, Freed solicited feedback from the public—for instance, he once posted a link to a city survey about housing and encouraged his audience to complete it. Freed’s readers frequently commented on his posts, sometimes with reactions (for example, “Good job it takes skills” on a picture of his sleeping daughter) and sometimes with questions (for example, “Can you allow city residents to have chickens?”). Freed often replied to the comments, including by answering inquiries from city residents. (City residents can have chickens and should “call the Planning Dept for details.”) He occasionally deleted comments that he thought were “derogatory” or “stupid.” After the COVID–19 pandemic began, Freed posted about that. Some posts were personal, like pictures of his family spending time at home and outdoors to “[s]tay safe” and “[s]ave lives.” Some contained general information, like case counts and weekly hospitalization numbers. Others related to Freed’s job, like a description of the city’s hiring freeze and a screenshot of a press release about a relief package that he helped prepare. Enter Kevin Lindke. Unhappy with the city’s approach to the pandemic, Lindke visited Freed’s page and said so. For example, in response to one of Freed’s posts, Lindke commented that the city’s pandemic response was “abysmal” and that “the city deserves better.” When Freed posted a photo of himself and the mayor picking up takeout from a local restaurant, Lindke complained that while “residents [we]re suffering,” the city’s leaders were eating at an expensive restaurant “instead of out talking to the community.” Initially, Freed deleted Lindke’s comments; ultimately, he blocked him. Once blocked, Lindke could see Freed’s posts but could no longer comment on them. B Lindke sued Freed under 42 U. S. C. §1983, alleging that Freed had violated his First Amendment rights. As Lindke saw it, he had the right to comment on Freed’s Facebook page, which he characterized as a public forum. Freed, Lindke claimed, had engaged in impermissible viewpoint discrimination by deleting unfavorable comments and blocking the people who made them. The District Court granted summary judgment to Freed. Because only state action can give rise to liability under §1983, Lindke’s claim depended on whether Freed acted in a “private” or “public” capacity. 563 F. Supp. 3d 704, 714 (ED Mich. 2021). The “prevailing personal quality of Freed’s post[s],” the absence of “government involvement” with his account, and the lack of posts conducting official business led the court to conclude that Freed managed his Facebook page in his private capacity, so Lindke’s claim failed. Ibid . The Sixth Circuit affirmed. It noted that “the caselaw is murky as to when a state official acts personally and when he acts officially” for purposes of §1983. 37 F. 4th 1199, 1202 (2022). To sort the personal from the official, that court “asks whether the official is ‘performing an actual or apparent duty of his office,’ or if he could not have behaved as he did ‘without the authority of his office.’ ” Id ., at 1203 (quoting Waters v. Morristown , 242 F.3d 353 , 359 (CA6 2001)). Applying this precedent to the social-media context, the Sixth Circuit held that an official’s activity is state action if the “text of state law requires an officeholder to maintain a social-media account,” the official “use[s] . . . state resources” or “government staff ” to run the account, or the “accoun[t] belong[s] to an office, rather than an individual officeholder.” 37 F. 4th, at 1203–1204. These situations, the Sixth Circuit explained, make an official’s social-media activity “ ‘fairly attributable’ ” to the State. Id ., at 1204 (quoting Lugar v. Edmondson Oil Co. , 457 U.S. 922 , 937 (1982)). And it concluded that Freed’s activity was not. The Sixth Circuit’s approach to state action in the social-media context differs from that of the Second and Ninth Circuits, which focus less on the connection between the official’s authority and the account and more on whether the account’s appearance and content look official. See, e . g ., Garnier v. O’Connor-Ratcliff , 41 F. 4th 1158, 1170–1171 (CA9 2022); Knight First Amdt. Inst. at Columbia Univ. v. Trump , 928 F.3d 226, 236 (CA2 2019), vacated as moot sub nom . Biden v. Knight First Amdt. Inst. at Columbia Univ ., 593 U. S. ___ (2021). We granted certiorari. 598 U. S. ___ (2023). II Section 1983 provides a cause of action against “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ” deprives someone of a federal constitutional or statutory right. (Emphasis added.) As its text makes clear, this provision protects against acts attributable to a State, not those of a private person. This limit tracks that of the Fourteenth Amendment, which obligates States to honor the constitutional rights that §1983 protects. §1 (“No State shall . . . nor shall any State deprive . . . ” (emphasis added)); see also Lugar , 457 U. S., at 929 (“[T]he statutory requirement of action ‘under color of state law’ and the ‘state action’ requirement of the Fourteenth Amendment are identical”). The need for governmental action is also explicit in the Free Speech Clause, the guarantee that Lindke invokes in this case. Amdt. 1 (“ Congress shall make no law . . . abridging the freedom of speech . . . ” (emphasis added)); see also Manhattan Community Access Corp. v. Halleck , 587 U.S. 802, 808 (2019) (“[T]he Free Speech Clause prohibits only governmental abridgment of speech,” not “ private abridgment of speech”). In short, the state-action requirement is both well established and reinforced by multiple sources.[ 1 ] In the run-of-the-mill case, state action is easy to spot. Courts do not ordinarily pause to consider whether §1983 applies to the actions of police officers, public schools, or prison officials. See, e . g ., Graham v. Connor , 490 U.S. 386 , 388 (1989) (police officers); Tinker v. Des Moines Independent Community School Dist. , 393 U.S. 503 , 504–505 (1969) (public schools); Estelle v. Gamble , 429 U.S. 97 , 98 (1976) (prison officials). And, absent some very unusual facts, no one would credit a child’s assertion of free speech rights against a parent, or a plaintiff ’s complaint that a nosy neighbor unlawfully searched his garage. Sometimes, however, the line between private conduct and state action is difficult to draw. Griffin v. Maryland is a good example. 378 U.S. 130 (1964). There, we held that a security guard at a privately owned amusement park engaged in state action when he enforced the park’s policy of segregation against black protesters. Id ., at 132–135. Though employed by the park, the guard had been “deputized as a sheriff of Montgomery County” and possessed “ ‘the same power and authority’ ” as any other deputy sheriff. Id ., at 132, and n. 1. The State had therefore allowed its power to be exercised by someone in the private sector. And the source of the power, not the identity of the employer, controlled. By and large, our state-action precedents have grappled with variations of the question posed in Griffin : whether a nominally private person has engaged in state action for purposes of §1983. See, e.g. , Marsh v. Alabama , 326 U.S. 501 , 502–503 (1946) (company town); Adickes v. S. H. Kress & Co. , 398 U.S. 144 , 146–147 (1970) (restaurant); Flagg Bros., Inc. v. Brooks , 436 U.S. 149 , 151–152 (1978) (warehouse company). Today’s case, by contrast, requires us to analyze whether a state official engaged in state action or functioned as a private citizen. This Court has had little occasion to consider how the state-action requirement applies in this circumstance. The question is difficult, especially in a case involving a state or local official who routinely interacts with the public. Such officials may look like they are always on the clock, making it tempting to characterize every encounter as part of the job. But the state-action doctrine avoids such broad-brush assumptions—for good reason. While public officials can act on behalf of the State, they are also private citizens with their own constitutional rights. By excluding from liability “acts of officers in the ambit of their personal pursuits,” Screws v. United States , 325 U.S. 91 , 111 (1945) (plurality opinion), the state-action requirement “protects a robust sphere of individual liberty” for those who serve as public officials or employees, Halleck , 587 U. S., at 808. The dispute between Lindke and Freed illustrates this dynamic. Freed did not relinquish his First Amendment rights when he became city manager. On the contrary, “the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v. Ceballos , 547 U.S. 410 , 417 (2006). This right includes the ability to speak about “information related to or learned through public employment,” so long as the speech is not “itself ordinarily within the scope of [the] employee’s duties.” Lane v. Franks , 573 U.S. 228 , 236, 240 (2014). Where the right exists, “editorial control over speech and speakers on [the public employee’s] properties or platforms” is part and parcel of it. Halleck , 587 U. S., at 816. Thus, if Freed acted in his private capacity when he blocked Lindke and deleted his comments, he did not violate Lindke’s First Amendment rights—instead, he exercised his own. So Lindke cannot hang his hat on Freed’s status as a state employee. The distinction between private conduct and state action turns on substance, not labels: Private parties can act with the authority of the State, and state officials have private lives and their own constitutional rights. Categorizing conduct, therefore, can require a close look. III A close look is definitely necessary in the context of a public official using social media. There are approximately 20 million state and local government employees across the Nation, with an extraordinarily wide range of job descriptions—from Governors, mayors, and police chiefs to teachers, healthcare professionals, and transportation workers. Many use social media for personal communication, official communication, or both—and the line between the two is often blurred. Moreover, social media involves a variety of different and rapidly changing platforms, each with distinct features for speaking, viewing, and removing speech. The Court has frequently emphasized that the state-action doctrine demands a fact-intensive inquiry. See, e.g. , Reitman v. Mulkey , 387 U.S. 369 , 378 (1967); Gilmore v. Montgomery , 417 U.S. 556 , 574 (1974). We repeat that caution here. That said, our precedent articulates principles that govern cases analogous to this one. For the reasons we explain below, a public official’s social-media activity constitutes state action under §1983 only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media. The appearance and function of the social-media activity are relevant at the second step, but they cannot make up for a lack of state authority at the first. A The first prong of this test is grounded in the bedrock requirement that “the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State .” Lugar , 457 U. S., at 937 (emphasis added). An act is not attributable to a State unless it is traceable to the State’s power or authority. Private action—no matter how “official” it looks—lacks the necessary lineage. This rule runs through our cases. Griffin stresses that the security guard was “possessed of state authority” and “purport[ed] to act under that authority.” 378 U. S., at 135. West v. Atkins states that the “traditional definition” of state action “requires that the defendant . . . have exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’ ” 487 U.S. 42 , 49 (1988) (quoting United States v. Classic , 313 U.S. 299 , 326 (1941)). Lugar emphasizes that state action exists only when “the claimed deprivation has resulted from the exercise of a right or privilege having its source in state authority.” 457 U. S., at 939; see also, e . g ., Edmonson v. Leesville Concrete Co. , 500 U.S. 614 , 620 (1991) (describing state action as the “exercise of a right or privilege having its source in state authority”); Screws , 325 U. S., at 111 (plurality opinion) (police-officer defendants “were authorized to make an arrest and to take such steps as were necessary to make the arrest effective”). By contrast, when the challenged conduct “entail[s] functions and obligations in no way dependent on state authority,” state action does not exist. Polk County v. Dodson , 454 U.S. 312 , 318–319 (1981) (no state action because criminal defense “is essentially a private function . . . for which state office and authority are not needed”); see also Jackson v. Metropolitan Edison Co. , 419 U.S. 345 , 358–359 (1974). Lindke’s focus on appearance skips over this crucial step. He insists that Freed’s social-media activity constitutes state action because Freed’s Facebook page looks and functions like an outlet for city updates and citizen concerns. But Freed’s conduct is not attributable to the State unless he was “possessed of state authority” to post city updates and register citizen concerns. Griffin , 378 U. S., at 135. If the State did not entrust Freed with these responsibilities, it cannot “fairly be blamed” for the way he discharged them. Lugar , 457 U. S., at 936. Lindke imagines that Freed can conjure the power of the State through his own efforts. Yet the presence of state authority must be real, not a mirage. Importantly, Lindke must show more than that Freed had some authority to communicate with residents on behalf of Port Huron. The alleged censorship must be connected to speech on a matter within Freed’s bailiwick. For example, imagine that Freed posted a list of local restaurants with health-code violations and deleted snarky comments made by other users. If public health is not within the portfolio of the city manager, then neither the post nor the deletions would be traceable to Freed’s state authority—because he had none. For state action to exist, the State must be “responsible for the specific conduct of which the plaintiff complains.” Blum v. Yaretsky , 457 U.S. 991 , 1004 (1982) (emphasis deleted). There must be a tie between the official’s authority and “the gravamen of the plaintiff ’s complaint.” Id ., at 1003. To be clear, the “[ m ] isuse of power, possessed by virtue of state law,” constitutes state action. Classic , 313 U. S., at 326 (emphasis added); see also, e . g ., Screws , 325 U. S., at 110 (plurality opinion) (state action where “the power which [state officers] were authorized to exercise was misused”). While the state-action doctrine requires that the State have granted an official the type of authority that he used to violate rights— e . g ., the power to arrest—it encompasses cases where his “particular action”— e.g. , an arrest made with excessive force—violated state or federal law. Griffin , 378 U. S., at 135; see also Home Telephone & Telegraph Co. v. Los Angeles , 227 U.S. 278 , 287–288 (1913) (the Fourteenth Amendment encompasses “abuse by a state officer . . . of the powers possessed”). Every §1983 suit alleges a misuse of power, because no state actor has the authority to deprive someone of a federal right. To misuse power, however, one must possess it in the first place. Where does the power come from? Section 1983 lists the potential sources: “statute, ordinance, regulation, custom, or usage.” Statutes, ordinances, and regulations refer to written law through which a State can authorize an official to speak on its behalf. “Custom” and “usage” encompass “persistent practices of state officials” that are “so permanent and well settled” that they carry “the force of law.” Adickes , 398 U. S., at 167–168. So a city manager like Freed would be authorized to speak for the city if written law like an ordinance empowered him to make official announcements. He would also have that authority even in the absence of written law if, for instance, prior city managers have purported to speak on its behalf and have been recognized to have that authority for so long that the manager’s power to do so has become “permanent and well settled.” Id. , at 168. And if an official has authority to speak for the State, he may have the authority to do so on social media even if the law does not make that explicit. Determining the scope of an official’s power requires careful attention to the relevant statute, ordinance, regulation, custom, or usage. In some cases, a grant of authority over particular subject matter may reasonably encompass authority to speak about it officially. For example, state law might grant a high-ranking official like the director of the state department of transportation broad responsibility for the state highway system that, in context, includes authority to make official announcements on that subject. At the same time, courts must not rely on “ ‘excessively broad job descriptions’ ” to conclude that a government employee is authorized to speak for the State. Kennedy v. Bremerton School Dist. , 597 U.S. 507, 529 (2022) (quoting Garcetti , 547 U. S., at 424). The inquiry is not whether making official announcements could fit within the job description; it is whether making official announcements is actually part of the job that the State entrusted the official to do. In sum, a defendant like Freed must have actual authority rooted in written law or longstanding custom to speak for the State. That authority must extend to speech of the sort that caused the alleged rights deprivation. If the plaintiff cannot make this threshold showing of authority, he cannot establish state action. B For social-media activity to constitute state action, an official must not only have state authority—he must also purport to use it. Griffin , 378 U. S., at 135. State officials have a choice about the capacity in which they choose to speak. “[G]enerally, a public employee” purports to speak on behalf of the State while speaking “in his official capacity or” when he uses his speech to fulfill “his responsibilities pursuant to state law.” West , 487 U. S., at 50. If the public employee does not use his speech in furtherance of his official responsibilities, he is speaking in his own voice. Consider a hypothetical from the offline world. A school board president announces at a school board meeting that the board has lifted pandemic-era restrictions on public schools. The next evening, at a backyard barbecue with friends whose children attend public schools, he shares that the board has lifted the pandemic-era restrictions. The former is state action taken in his official capacity as school board president; the latter is private action taken in his personal capacity as a friend and neighbor. While the substance of the announcement is the same, the context—an official meeting versus a private event—differs. He invoked his official authority only when he acted as school board president. The context of Freed’s speech is hazier than that of the hypothetical school board president. Had Freed’s account carried a label ( e.g. , “this is the personal page of James R. Freed”) or a disclaimer ( e.g. , “the views expressed are strictly my own”), he would be entitled to a heavy (though not irrebuttable) presumption that all of the posts on his page were personal. Markers like these give speech the benefit of clear context: Just as we can safely presume that speech at a backyard barbeque is personal, we can safely presume that speech on a “personal” page is personal (absent significant evidence indicating that a post is official).[ 2 ] Conversely, context can make clear that a social-media account purports to speak for the government—for instance, when an account belongs to a political subdivision ( e.g. , a “City of Port Huron” Facebook page) or is passed down to whomever occupies a particular office ( e.g. , an “@PHuronCityMgr” Instagram account). Freed’s page, however, was not designated either “personal” or “official,” raising the prospect that it was “mixed use”—a place where he made some posts in his personal capacity and others in his capacity as city manager. Categorizing posts that appear on an ambiguous page like Freed’s is a fact-specific undertaking in which the post’s content and function are the most important considerations. In some circumstances, the post’s content and function might make the plaintiff ’s argument a slam dunk. Take a mayor who makes the following announcement exclusively on his Facebook page: “Pursuant to Municipal Ordinance 22.1, I am temporarily suspending enforcement of alternate-side parking rules.” The post’s express invocation of state authority, its immediate legal effect, and the fact that the order is not available elsewhere make clear that the mayor is purporting to discharge an official duty. If, by contrast, the mayor merely repeats or shares otherwise available information—for example, by linking to the parking announcement on the city’s webpage—it is far less likely that he is purporting to exercise the power of his office. Instead, it is much more likely that he is engaging in private speech “relate[d] to his public employment” or “concern[ing] information learned during that employment.” Lane , 573 U. S., at 238. Hard-to-classify cases require awareness that an official does not necessarily purport to exercise his authority simply by posting about a matter within it. He might post job-related information for any number of personal reasons, from a desire to raise public awareness to promoting his prospects for reelection. Moreover, many public officials possess a broad portfolio of governmental authority that includes routine interaction with the public, and it may not be easy to discern a boundary between their public and private lives. Yet these officials too have the right to speak about public affairs in their personal capacities. See, e . g ., id ., at 235–236. Lest any official lose that right, it is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts. And when there is doubt, additional factors might cast light—for example, an official who uses government staff to make a post will be hard pressed to deny that he was conducting government business. One last point: The nature of the technology matters to the state-action analysis. Freed performed two actions to which Lindke objected: He deleted Lindke’s comments and blocked him from commenting again. So far as deletion goes, the only relevant posts are those from which Lindke’s comments were removed. Blocking, however, is a different story. Because blocking operated on a page-wide basis, a court would have to consider whether Freed had engaged in state action with respect to any post on which Lindke wished to comment. The bluntness of Facebook’s blocking tool highlights the cost of a “mixed use” social-media account: If page-wide blocking is the only option, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts.[ 3 ] A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability. *  *  * The state-action doctrine requires Lindke to show that Freed (1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts. To the extent that this test differs from the one applied by the Sixth Circuit, we vacate its judgment and remand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 Because local governments are subdivisions of the State, actions taken under color of a local government’s law, custom, or usage count as “state” action for purposes of §1983. See Monell v. New York City Dept. of Social Servs. , 436 U.S. 658 , 690–691 (1978). And when a state or municipal employee violates a federal right while acting “under color of law,” he can be sued in an individual capacity, as Freed was here. 2 An official cannot insulate government business from scrutiny by conducting it on a personal page. The Solicitor General offers the particularly clear example of an official who designates space on his nominally personal page as the official channel for receiving comments on a proposed regulation. Because the power to conduct notice-and-comment rulemaking belongs exclusively to the State, its exercise is necessarily governmental. Similarly, a mayor would engage in state action if he hosted a city council meeting online by streaming it only on his personalFacebook page. By contrast, a post that is compatible with either a “personal capacity” or “official capacity” designation is “personal” if it appears on a personal page. 3 On some platforms, a blocked user might be unable even to see the blocker’s posts. See, e . g ., Garnier v. O’Connor-Ratcliff , 41 F. 4th, 1158, 1164 (CA9 2022) (noting that “on Twitter, once a user has been ‘blocked,’ the individual can neither interact with nor view the blocker’s Twitter feed”); Knight First Amdt. Inst. at Columbia Univ . v. Trump , 928 F.3d 226, 231 (CA2 2019) (noting that a blocked user is unable to see, reply to, retweet, or like the blocker’s tweets).

The Supreme Court held that when a government official posts about job-related topics on social media, their speech is attributable to the state only if the official had the authority to speak on the state's behalf and purported to exercise that authority when speaking on social media. In this case, James Freed, the city manager of Port Huron, Michigan, deleted comments and blocked users on his Facebook page, including Kevin Lindke, who sued Freed for violating his right to free speech. The Court ruled that Freed's actions were not state action and that Lindke must show that Freed had the authority to speak for the state and intended to do so when silencing Lindke's speech. The case was sent back to the lower court to apply this test.

Free Speech

Counterman v. Colorado

https://supreme.justia.com/cases/federal/us/600/22-138/

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. SUPREME COURT OF THE UNITED STATES _________________ No. 22–138 _________________ BILLY RAYMOND COUNTERMAN, PETITIONER v. COLORADO on writ of certiorari to the court of appeals of colorado [June 27, 2023] Justice Kagan delivered the opinion of the Court. True threats of violence are outside the bounds of First Amendment protection and punishable as crimes. Today we consider a criminal conviction for communications falling within that historically unprotected category. The question presented is whether the First Amendment still requires proof that the defendant had some subjective understanding of the threatening nature of his statements. We hold that it does, but that a mental state of recklessness is sufficient. The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. The State need not prove any more demanding form of subjective intent to threaten another. I From 2014 to 2016, petitioner Billy Counterman sent hundreds of Facebook messages to C. W., a local singer and musician. The two had never met, and C. W. never responded. In fact, she repeatedly blocked Counterman. But each time, he created a new Facebook account and resumed his contacts. Some of his messages were utterly prosaic (“Good morning sweetheart”; “I am going to the store would you like anything?”)—except that they were coming from a total stranger. 3 App. 465. Others suggested that Counterman might be surveilling C. W. He asked “[w]as that you in the white Jeep?”; referenced “[a] fine display with your partner”; and noted “a couple [of] physical sightings.” 497 P.3d 1039, 1044 (Colo. App. 2021). And most critically, a number expressed anger at C. W. and envisaged harm befalling her: “Fuck off permanently.” Ibid. “Staying in cyber life is going to kill you.” Ibid. “You’re not being good for human relations. Die.” Ibid. The messages put C. W. in fear and upended her daily existence. She believed that Counterman was “threat[ening her] life”; “was very fearful that he was following” her; and was “afraid [she] would get hurt.” 2 App. 177, 181, 193. As a result, she had “a lot of trouble sleeping” and suffered from severe anxiety. Id. , at 200; see id. , at 194–198. She stopped walking alone, declined social engagements, and canceled some of her performances, though doing so caused her financial strain. See id. , at 182–183, 199, 201–206, 238–239. Eventually, C. W. decided that she had to contact the authorities. Id. , at 184. Colorado charged Counterman under a statute making it unlawful to “[r]epeatedly . . . make[ ] any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.” Colo. Rev. Stat. §18–3–602(1)(c) (2022). The only evidence the State proposed to introduce at trial were his Facebook messages.[ 1 ] Counterman moved to dismiss the charge on First Amendment grounds, arguing that his messages were not “true threats” and therefore could not form the basis of a criminal prosecution. In line with Colorado law, the trial court assessed the true-threat issue using an “objective ‘reasonable person’ standard.” People v. Cross , 127 P.3d 71 , 76 (Colo. 2006). Under that standard, the State had to show that a reasonable person would have viewed the Facebook messages as threatening. By contrast, the State had no need to prove that Counterman had any kind of “subjective intent to threaten” C. W. In re R. D. , 464 P.3d 717, 731, n. 21 (Colo. 2020). The court decided, after “consider[ing] the totality of the circumstances,” that Counterman’s statements “r[o]se to the level of a true threat.” 497 P. 3d, at 1045. Because that was so, the court ruled, the First Amendment posed no bar to prosecution. The court accordingly sent the case to the jury, which found Counterman guilty as charged. The Colorado Court of Appeals affirmed. Counterman had urged the court to hold that the First Amendment required the State to show that he was aware of the threatening nature of his statements. Relying on its precedent, the court turned the request down: It “decline[d] today to say that a speaker’s subjective intent to threaten is necessary” under the First Amendment to procure a conviction for threatening communications. Id. , at 1046 (quoting R. D. , 464 P. 3d, at 731, n. 21). Using the established objective standard, the court then approved the trial court’s ruling that Counterman’s messages were “true threats” and so were not protected by the First Amendment. 497 P. 3d, at 1050. The Colorado Supreme Court denied review. Courts are divided about (1) whether the First Amendment requires proof of a defendant’s subjective mindset in true-threats cases, and (2) if so, what mens rea standard is sufficient. We therefore granted certiorari. 598 U. S. ___ (2023). II True threats of violence, everyone agrees, lie outside the bounds of the First Amendment’s protection. And a statement can count as such a threat based solely on its objective content. The first dispute here is about whether the First Amendment nonetheless demands that the State in a true-threats case prove that the defendant was aware in some way of the threatening nature of his communications.[ 2 ] Colorado argues that there is no such requirement. Counterman contends that there is one, based mainly on the likelihood that the absence of such a mens rea requirement will chill protected, non-threatening speech. Counterman’s view, we decide today, is the more consistent with our precedent. To combat the kind of chill he references, our decisions have often insisted on protecting even some historically unprotected speech through the adoption of a subjective mental-state element. We follow the same path today, holding that the State must prove in true-threats cases that the defendant had some understanding of his statements’ threatening character. The second issue here concerns what precise mens rea standard suffices for the First Amendment purpose at issue. Again guided by our precedent, we hold that a recklessness standard is enough. Given that a subjective standard here shields speech not independently entitled to protection—and indeed posing real dangers—we do not require that the State prove the defendant had any more specific intent to threaten the victim. A “From 1791 to the present,” the First Amendment has “permitted restrictions upon the content of speech in a few limited areas.” United States v. Stevens , 559 U.S. 460 , 468 (2010). These “historic and traditional categories” are “long familiar to the bar” and perhaps, too, the general public. Ibid. One is incitement—statements “directed [at] producing imminent lawless action,” and likely to do so. Brandenburg v. Ohio , 395 U.S. 444 , 447 (1969) ( per curiam ). Another is defamation—false statements of fact harming another’s reputation. See Gertz v. Robert Welch, Inc. , 418 U.S. 323 , 340, 342 (1974). Still a third is obscenity—valueless material “appeal[ing] to the prurient interest” and describing “sexual conduct” in “a patently offensive way.” Miller v. California , 413 U.S. 15 , 24 (1973). This Court has “often described [those] historically unprotected categories of speech as being of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest” in their proscription. Stevens , 559 U. S., at 470 (internal quotation marks omitted; emphasis deleted). “True threats” of violence is another historically unprotected category of communications. Virginia v. Black , 538 U.S. 343 , 359 (2003); see United States v. Alvarez , 567 U.S. 709 , 717–718 (2012) (plurality opinion). The “true” in that term distinguishes what is at issue from jests, “hyperbole,” or other statements that when taken in context do not convey a real possibility that violence will follow (say, “I am going to kill you for showing up late”). Watts v. United States , 394 U.S. 705 , 708 (1969) ( per curiam ). True threats are “serious expression[s]” conveying that a speaker means to “commit an act of unlawful violence.” Black , 538 U. S., at 359. Whether the speaker is aware of, and intends to convey, the threatening aspect of the message is not part of what makes a statement a threat, as this Court recently explained. See Elonis v. United States , 575 U.S. 723, 733 (2015). The existence of a threat depends not on “the mental state of the author,” but on “what the statement conveys” to the person on the other end. Ibid. When the statement is understood as a true threat, all the harms that have long made threats unprotected naturally follow. True threats subject individuals to “fear of violence” and to the many kinds of “disruption that fear engenders.” Black , 538 U. S., at 360 (internal quotation marks omitted). The facts of this case well illustrate how.[ 3 ] Yet the First Amendment may still demand a subjective mental-state requirement shielding some true threats from liability. The reason relates to what is often called a chilling effect. Prohibitions on speech have the potential to chill, or deter, speech outside their boundaries. A speaker may be unsure about the side of a line on which his speech falls. Or he may worry that the legal system will err, and count speech that is permissible as instead not. See Philadelphia Newspapers, Inc. v. Hepps , 475 U.S. 767 , 777 (1986). Or he may simply be concerned about the expense of becoming entangled in the legal system. The result is “self-censorship” of speech that could not be proscribed—a “cautious and restrictive exercise” of First Amendment freedoms. Gertz , 418 U. S., at 340. And an important tool to prevent that outcome—to stop people from steering “wide[ ] of the unlawful zone”—is to condition liability on the State’s showing of a culpable mental state. Speiser v. Randall , 357 U.S. 513 , 526 (1958). Such a requirement comes at a cost: It will shield some otherwise proscribable (here, threatening) speech because the State cannot prove what the defendant thought. But the added element reduces the prospect of chilling fully protected expression. As this Court has noted, the requirement lessens “the hazard of self-censorship” by “compensat[ing]” for the law’s uncertainties. Mishkin v. New York , 383 U.S. 502 , 511 (1966). Or said a bit differently: “[B]y reducing an honest speaker’s fear that he may accidentally [or erroneously] incur liability,” a mens rea requirement “provide[s] ‘breathing room’ for more valuable speech.” Alvarez , 567 U. S., at 733 (Breyer, J., concurring in judgment). That kind of “strategic protection” features in our precedent concerning the most prominent categories of historically unprotected speech. Gertz , 418 U. S., at 342. Defamation is the best known and best theorized example. False and defamatory statements of fact, we have held, have “no constitutional value.” Id. , at 340; see Alvarez , 567 U. S., at 718–719 (plurality opinion). Yet a public figure cannot recover for the injury such a statement causes unless the speaker acted with “knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan , 376 U.S. 254 , 280 (1964); see Garrison v. Louisiana , 379 U.S. 64 , 74 (1964) (using the same standard for criminal libel). That rule is based on fear of “self-censorship”—the worry that without such a subjective mental-state requirement, the uncertainties and expense of litigation will deter speakers from making even truthful statements. Sullivan , 376 U. S., at 279. The First Amendment, we have concluded, “requires that we protect some falsehood in order to protect speech that matters.” Gertz , 418 U. S., at 341. The same idea arises in the law respecting obscenity and incitement to unlawful conduct. Like threats, incitement inheres in particular words used in particular contexts: Its harm can arise even when a clueless speaker fails to grasp his expression’s nature and consequence. But still, the First Amendment precludes punishment, whether civil or criminal, unless the speaker’s words were “intended” (not just likely) to produce imminent disorder. Hess v. Indiana , 414 U.S. 105 , 109 (1973) ( per curiam ); see Brandenburg , 395 U. S., at 447; NAACP v. Claiborne Hardware Co. , 458 U.S. 886 , 927–929 (1982). That rule helps prevent a law from deterring “mere advocacy” of illegal acts—a kind of speech falling within the First Amendment’s core. Brandenburg , 395 U. S., at 449. And for a similar reason, the First Amendment demands proof of a defendant’s mindset to make out an obscenity case. Obscenity is obscenity, whatever the purveyor’s mental state. But we have repeatedly recognized that punishment depends on a “vital element of scienter”—often described as the defendant’s awareness of “the character and nature” of the materials he distributed. Hamling v. United States , 418 U.S. 87 , 122–123 (1974); see Elonis , 575 U. S., at 739 (reiterating Hamling ). The rationale should by now be familiar. Yes, “obscene speech and writings are not protected.” Smith v. California , 361 U.S. 147 , 152 (1959). But punishing their distribution without regard to scienter would “have the collateral effect of inhibiting” protected expression. Id. , at 151. Given “the ambiguities inherent in the definition of obscenity,” the First Amendment “requires proof of scienter to avoid the hazard of self-censorship.” Mishkin , 383 U. S., at 511.[ 4 ] The same reasoning counsels in favor of requiring a subjective element in a true-threats case. This Court again must consider the prospect of chilling non-threatening expression, given the ordinary citizen’s predictable tendency to steer “wide[ ] of the unlawful zone.” Speiser , 357 U. S., at 526. The speaker’s fear of mistaking whether a statement is a threat; his fear of the legal system getting that judgment wrong; his fear, in any event, of incurring legal costs—all those may lead him to swallow words that are in fact not true threats. Some 50 years ago, Justice Marshall made the point when reviewing a true-threats prosecution arguably involving only political hyperbole. See Rogers v. United States , 422 U.S. 35 (1975). The Court in Rogers reversed the conviction on other grounds, but Justice Marshall focused on the danger of deterring non-threatening speech. An objective standard, turning only on how reasonable observers would construe a statement in context, would make people give threats “a wide berth.” Id. , at 47 (concurring opinion). And so use of that standard would discourage the “uninhibited, robust, and wide-open debate that the First Amendment is intended to protect.” Id. , at 48 (quoting Sullivan , 376 U. S., at 270). The reasoning—and indeed some of the words—came straight from this Court’s decisions insisting on a subjective element in other unprotected-speech cases, whether involving defamation, incitement, or obscenity. No doubt, the approach in all of those cases has a cost: Even as it lessens chill of protected speech, it makes prosecution of otherwise proscribable, and often dangerous, communications harder. And the balance between those two effects may play out differently in different contexts, as the next part of this opinion discusses. But the ban on an objective standard remains the same, lest true-threats prosecutions chill too much protected, non-threatening expression. B The next question concerns the type of subjective standard the First Amendment requires. The law of mens rea offers three basic choices. Purpose is the most culpable level in the standard mental-state hierarchy, and the hardest to prove. A person acts purposefully when he “consciously desires” a result—so here, when he wants his words to be received as threats. United States v. Bailey , 444 U.S. 394 , 404 (1980). Next down, though not often distinguished from purpose, is knowledge. Ibid. A person acts knowingly when “he is aware that [a] result is practically certain to follow”—so here, when he knows to a practical certainty that others will take his words as threats. Ibid. (internal quotation marks omitted). A greater gap separates those two from recklessness. A person acts recklessly, in the most common formulation, when he “consciously disregard[s] a substantial [and unjustifiable] risk that the conduct will cause harm to another.” Voisine v. United States , 579 U.S. 686, 691 (2016) (internal quotation marks omitted). That standard involves insufficient concern with risk, rather than awareness of impending harm. See Borden v. United States , 593 U. S. ___, ___ (2021) (plurality opinion) (slip op., at 5). But still, recklessness is morally culpable conduct, involving a “deliberate decision to endanger another.” Voisine , 579 U. S., at 694. In the threats context, it means that a speaker is aware “that others could regard his statements as” threatening violence and “delivers them anyway.” Elonis , 575 U. S., at 746 (Alito, J., concurring in part and dissenting in part).[ 5 ] Among those standards, recklessness offers the right path forward. We have so far mostly focused on the constitutional interest in free expression, and on the correlative need to take into account threat prosecutions’ chilling effects. But the precedent we have relied on has always recognized—and insisted on “accommodat[ing]”—the “competing value[ ]” in regulating historically unprotected expression. Gertz , 418 U. S., at 348. Here, as we have noted, that value lies in protecting against the profound harms, to both individuals and society, that attend true threats of violence—as evidenced in this case. See supra , at 2, 6. The injury associated with those statements caused history long ago to place them outside the First Amendment’s bounds. When despite that judgment we require use of a subjective mental-state standard, we necessarily impede some true-threat prosecutions. And as we go up the subjective mens rea ladder, that imposition on States’ capacity to counter true threats becomes still greater—and, presumably, with diminishing returns for protected expression. In advancing past recklessness, we make it harder for a State to substantiate the needed inferences about mens rea (absent, as is usual, direct evidence). And of particular importance, we prevent States from convicting morally culpable defendants. See Elonis , 575 U. S., at 745 (opinion of Alito, J.). For reckless defendants have done more than make a bad mistake. They have consciously accepted a substantial risk of inflicting serious harm. Using a recklessness standard also fits with the analysis in our defamation decisions. As noted earlier, the Court there adopted a recklessness rule, applicable in both civil and criminal contexts, as a way of accommodating competing interests. See supra , at 7–8. In the more than half-century in which that standard has governed, few have suggested that it needs to be higher—in other words, that still more First Amendment “breathing space” is required. Gertz , 418 U. S., at 342. And we see no reason to offer greater insulation to threats than to defamation. See Elonis , 575 U. S., at 748 (opinion of Alito, J.). The societal interests in countering the former are at least as high. And the protected speech near the borderline of true threats (even though sometimes political, as in Rogers ) is, if anything, further from the First Amendment’s central concerns than the chilled speech in Sullivan -type cases ( i.e. , truthful reputation-damaging statements about public officials and figures). It is true that our incitement decisions demand more—but the reason for that demand is not present here. When incitement is at issue, we have spoken in terms of specific intent, presumably equivalent to purpose or knowledge. See Hess , 414 U. S., at 109; supra , at 8. In doing so, we recognized that incitement to disorder is commonly a hair’s-breadth away from political “advocacy”—and particularly from strong protests against the government and prevailing social order. Brandenburg , 395 U. S., at 447. Such protests gave rise to all the cases in which the Court demanded a showing of intent. See ibid. ; Hess , 414 U. S., at 106; Claiborne Hardware Co. , 458 U. S., at 888, 928. And the Court decided those cases against a resonant historical backdrop: the Court’s failure, in an earlier era, to protect mere advocacy of force or lawbreaking from legal sanction. See, e.g. , Whitney v. California , 274 U.S. 357 (1927); Gitlow v. New York , 268 U.S. 652 (1925); Abrams v. United States , 250 U.S. 616 (1919). A strong intent requirement was, and remains, one way to guarantee history was not repeated. It was a way to ensure that efforts to prosecute incitement would not bleed over, either directly or through a chilling effect, to dissenting political speech at the First Amendment’s core. But the potency of that protection is not needed here. For the most part, the speech on the other side of the true-threats boundary line—as compared with the advocacy addressed in our incitement decisions—is neither so central to the theory of the First Amendment nor so vulnerable to government prosecutions. It is not just that our incitement decisions are distinguishable; it is more that they compel the use of a distinct standard here.[ 6 ] That standard, again, is recklessness. It offers “enough ‘breathing space’ for protected speech,” without sacrificing too many of the benefits of enforcing laws against true threats. Elonis , 575 U. S., at 748 (opinion of Alito, J.). As with any balance, something is lost on both sides: The rule we adopt today is neither the most speech-protective nor the most sensitive to the dangers of true threats. But in declining one of those two alternative paths, something more important is gained: Not “having it all”—because that is impossible—but having much of what is important on both sides of the scale.[ 7 ] III It is time to return to Counterman’s case, though only a few remarks are necessary. Counterman, as described above, was prosecuted in accordance with an objective standard. See supra , at 3. The State had to show only that a reasonable person would understand his statements as threats. It did not have to show any awareness on his part that the statements could be understood that way. For the reasons stated, that is a violation of the First Amendment. We accordingly vacate the judgment of the Colorado Court of Appeals and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. Notes 1 The statute Counterman was charged with violating is titled a “stalking” statute and also prohibits “[r]epeatedly follow[ing], approach[ing], contact[ing], [or] plac[ing] under surveillance” another person. §18–3–602(1)(c). But the State had no evidence, beyond what Counterman claimed, that he actually had followed or surveilled C. W. For example, C. W. had never noticed anything of that kind. So the prosecution based its case solely on Counterman’s “[r]epeated[ ] . . . communication[s]” with C. W. Ibid. 2 A preliminary clarification may be useful, concerning the difference between awareness of a communication’s contents and awareness of its threatening nature. Everyone agrees, again, that the State must prove the former—and Colorado law appears to hold as much. See Colo. Rev. Stat. §18–3–602(1)(c); Brief for Respondent 18. So, for example, if a defendant delivers a sealed envelope without knowing that a threatening letter is inside, he cannot be liable for the communication. So too (though this common example seems fairly preposterous) if a “foreigner, ignorant of the English language, who would not know the meaning of the words,” somehow manages to convey an English-language threat. Elonis v. United States , 575 U.S. 723, 738 (2015) (internal quotation marks omitted). The question in this case arises when the defendant (unlike in those hypotheticals) understands the content of the words, but may not grasp that others would find them threatening. Must he do so, under the First Amendment, for a true-threats prosecution to succeed? 3 The concurrence relies on Virginia v. Black , 538 U.S. 343 (2003), to argue that the category of true threats itself incorporates a mens rea element. See post , at 9–11, 14 (Sotomayor, J., concurring in part and concurring in judgment). But that claim is based on a misreading. The statements the concurrence quotes merely reflect that the statute involved in the case required a showing of intent. Black did not address whether the First Amendment demands such a showing, or why it might do so. See United States v. Jeffries , 692 F.3d 473, 479–480 (CA6 2012) (Sutton, J.); see also post , at 9–10, and n. 4 (Barrett, J., dissenting) (explaining that Black concerned a different part of the statute, preventing consideration of contextual factors in assessing whether a statement was a threat). 4 The dissent, in urging an objective standard here, reads the obscenity decisions as requiring merely that the defendant know “what the material depicts” (as a speaker must know a communication’s contents). Post , at 5–6 (opinion of Barrett, J.) (relying on Hamling , 418 U. S., at 120–123). But see the statements quoted above: That is not what they say. And indeed, this Court recently rejected the dissent’s revisionist reading, explaining in detail—and in response to a near-identical argument—that the obscenity decisions demand awareness of “the character of [the materials,] not simply [their] contents.” Elonis , 575 U. S., at 739–740 (discussing Hamling , 418 U. S., at 120–123, and Mishkin , 383 U. S., at 510). The dissent’s use of two other First Amendment categories—fighting words and false commercial speech—to support an objective test also falls flat. See post , at 3–4 (opinion of Barrett, J.). This Court has not upheld a conviction under the fighting-words doctrine in 80 years. At the least, that doctrine is today a poor candidate for spinning off other First Amendment rules. False commercial speech is also a poor analog, though for different reasons. Put aside that the line of cases the dissent invokes has never been listed among the historically unprotected categories of speech. See, e.g. , United States v. Stevens , 559 U.S. 460 , 468 (2010); see supra , at 5. Yet more relevant, the Court has often noted that commercial speech is less vulnerable to chill than most other speech is. See, e.g. , Board of Trustees of State Univ. of N. Y. v. Fox , 492 U.S. 469 , 481 (1989). And it is the fear of chill that has led to state-of-mind requirements in the context of unprotected speech. 5 Just to complete the mens rea hierarchy, the last level is negligence—but that is an objective standard, of the kind we have just rejected. A person acts negligently if he is not but should be aware of a substantial risk—here , that others will understand his words as threats. See Borden , 593 U. S., at ___ (plurality opinion) (slip op., at 5). That makes liability depend not on what the speaker thinks, but instead on what a reasonable person would think about whether his statements are threatening in nature. See Elonis , 575 U. S., at 738 (“Having liability turn on whether a reasonable person regards the communication as a threat—regardless of what the defendant thinks—reduces culpability . . . to negligence” (internal quotation marks omitted)). 6 Our obscenity decisions are of no help in this inquiry, because the Court has never determined the precise mens rea needed to impose punishment. In arguing to the contrary, the concurrence relies mainly on Hamling . Post , at 18–19 (opinion of Sotomayor, J.). But if the dissent is wrong in saying that Hamling (and other obscenity decisions) allowed an objective inquiry, see supra , at 9, n. 4, the concurrence is wrong in suggesting that it required use of a purpose or knowledge standard. As to the concurrence’s claim, Hamling held only that a statute with that standard was “constitutionally sufficient.” 418 U. S., at 123. The decision said nothing about whether it was constitutionally necessary, or instead whether a recklessness standard would suffice as well. 7 The dissent accuses the Court of making a “Goldilocks judgment” in favoring a recklessness standard. Post , at 13 (opinion of Barrett, J.). But in law, as in life, there are worse things than being “just right.” SUPREME COURT OF THE UNITED STATES _________________ No. 22–138 _________________ BILLY RAYMOND COUNTERMAN, PETITIONER v. COLORADO on writ of certiorari to the court of appeals of colorado [June 27, 2023] Justice Sotomayor, with whom Justice Gorsuch joins as to Parts I, II, III–A, and III–B, concurring in part and concurring in the judgment. When the government seeks to punish speech based on its content, the First Amendment typically imposes stringent requirements. This ensures that the government, even when pursuing compelling objectives, does not unduly burden our Nation’s commitment to free expression. “From 1791 to the present, however, the First Amendment has permitted restrictions upon the content of speech in a few limited areas.” United States v. Stevens , 559 U.S. 460 , 468 (2010) (internal quotation marks omitted). These categories must be “well-defined and narrowly limited” in light of the serious consequences that flow from carving out speech from ordinary First Amendment protections. Chaplinsky v. New Hampshire , 315 U.S. 568 , 571 (1942). “True threats” are one such category, and there is a tradition of criminalizing threats stretching back centuries. This includes punishing single utterances based on the message conveyed. One paradigmatic example of this would be writing and mailing a letter threatening to assassinate the President. Such laws are plainly important. There is no longstanding tradition, however, of punishing speech merely because it is unintentionally threatening. Instead, this Court’s precedent, along with historical statutes and cases, reflect a commonsense understanding that threatening someone is an intentional act. As to what intent is needed, “[t]raditionally, one intends certain consequences when he desires that his acts cause those consequences or knows that those consequences are substantially certain to result from his acts.” Tison v. Arizona , 481 U.S. 137 , 150 (1987) (internal quotation marks omitted). This does not require showing that an individual intends to carry through with the threat. But it does require showing that an individual desires to threaten or is substantially certain that her statements will be understood as threatening. Today, unfortunately, the Court unnecessarily departs from this traditional understanding. That is not to say that I disagree with the Court on everything. Far from it. I join the Court’s conclusion that some subjective mens rea is required in true-threats cases. I also agree that in this particular case, where petitioner was prosecuted for stalking that involved threatening statements, a mens rea of recklessness is amply sufficient. Where I part ways with the Court is that I would not reach the distinct and more complex question whether a mens rea of recklessness is sufficient for true-threats prosecutions generally. Further, requiring nothing more than a mens rea of recklessness is inconsistent with precedent, history, and the commitment to even harmful speech that the First Amendment enshrines. I therefore respectfully concur only in part and in the judgment. I As an initial matter, I do not believe that this Court should reach the question whether recklessness is sufficient for true-threats prosecutions. A key conceptual distinction is helpful for explaining why. On the one hand, there are statements that are objectively threatening. In some cases, such statements can be punished because they fall into the unprotected category of “true threats.” Yet such statements can also be punished if they fall into another category of unprotected speech, such as speech integral to criminal conduct. Or they might warrant less First Amendment protection for other reasons. On the other hand, there is the question of what constitutes the well-defined and longstanding category of unprotected true threats. It is with this latter question that I do not see the need to address whether a mens rea of recklessness is sufficient across the board. First, the courts below did not address whether recklessness was sufficient to prosecute true threats and neither of the actual parties have advocated a recklessness standard. Colorado disclaimed the idea that recklessness was required, and petitioner asserted, correctly, that recklessness had not been raised under traditional principles of party presentation. The briefing on recklessness consists almost entirely of a few pages of an argument in the alternative at the tail end of an amicus brief filed by the United States. Second, because petitioner was prosecuted for stalking involving threatening speech, this case does not require resort to the true-threats exemption to the First Amendment. True-threats doctrine covers content-based prosecutions for single utterances of “pure speech,” which need not even be communicated to the subject of the threat. Watts v. United States , 394 U.S. 705 , 707 (1969) ( per curiam ). The First Amendment would normally place strict limits on such prosecutions. So there is typically a need to determine whether the speech in question falls within the traditionally unprotected category of true threats. This is not such a case, however. Petitioner was convicted for “stalking [causing] serious emotional distress” for a combination of threatening statements and repeated, unwanted, direct contact with C. W. 497 P.3d 1039, 1043 (Colo. App. 2021).[ 1 ] This kind of prosecution raises fewer First Amendment concerns for a variety of reasons. Stalking can be carried out through speech but need not be, which requires less First Amendment scrutiny when speech is swept in. See, e.g. , Rumsfeld v. Forum for Academic and Institutional Rights, Inc. , 547 U.S. 47 , 62 (2006). The content of the repeated communications can sometimes be irrelevant, such as persistently calling someone and hanging up, or a stream of “utterly prosaic” communications. Ante , at 1. Repeatedly forcing intrusive communications directly into the personal life of “an unwilling recipient” also enjoys less protection. Rowan v. Post Office Dept. , 397 U.S. 728 , 738 (1970). Finally, while there is considerable risk with a single intemperate utterance that a speaker will “accidentally or erroneously incur liability,” ante , at 7 (internal quotation marks and alterations omitted), that risk is far reduced with a course of repeated unwanted contact. Take, for example, petitioner continuously contacting C. W. despite her blocking him. Given this, prosecuting threatening statements made as part of a course of stalking does not squarely present the hardest questions about the mens rea required to prosecute isolated utterances based solely on their content.[ 2 ] True-threats doctrine came up below only because of the lower courts’ doubtful assumption that petitioner could be prosecuted only if his actions fell under the true-threats exception. I do not think that is accurate, given the lessened First Amendment concerns at issue. In such cases, recklessness is amply sufficient. And I would stop there. There is simply no need to reach out in this stalking case to determine whether anything more than recklessness is needed for punishing true threats generally. II Lest there be any doubt, the First Amendment stakes around the definition of “true threats” are high indeed. The First Amendment’s mantle covers speech that is “vituperative, abusive and inexact.” Watts , 394 U. S., at 708. “It might be tempting to dismiss” seemingly low-value speech “as unworthy of . . . robust First Amendment protections.” Mahanoy Area School Dist. v. B. L. , 594 U. S. ___, ___ (2021) (slip op., at 11). Yet “[m]ost of what we say to one another lacks ‘religious, political, scientific, educational, journalistic, historical, or artistic value’ (let alone serious value), but it is still sheltered from Government regulation.” Stevens , 559 U. S., at 479 (emphasis deleted). First Amendment vigilance is especially important when speech is disturbing, frightening, or painful, because the undesirability of such speech will place a heavy thumb in favor of silencing it. In response, the Court has upheld First Amendment rights in the context of gruesome animal cruelty videos, id ., at 472; cross burning, Virginia v. Black , 538 U.S. 343 , 347–348 (2003); hateful rhetoric in protests of the funerals of fallen soldiers, Snyder v. Phelps , 562 U.S. 443 , 448–449, 458 (2011); and computer-generated images of child pornography, Ashcroft v. Free Speech Coalition , 535 U.S. 234 , 239–240, 258 (2002). The risk of overcriminalizing upsetting or frightening speech has only been increased by the internet. Our society’s discourse occurs more and more in “the ‘vast democratic forums of the Internet’ in general, and social media in particular.” Packingham v. North Carolina , 582 U.S. 98, 104 (2017) (citation omitted). “Rapid changes in the dynamics of communication and information transmission” have led to equally rapid and ever-evolving changes “in what society accepts as proper behavior.” Ontario v. Quon , 560 U.S. 746 , 759 (2010). Different corners of the internet have considerably different norms around appropriate speech. Online communication can also lack many normal contextual clues, such as who is speaking, tone of voice, and expression. Moreover, it is easy for speech made in a one context to inadvertently reach a larger audience. Without sufficient protection for unintentionally threatening speech, a high school student who is still learning norms around appropriate language could easily go to prison for sending another student violent music lyrics, or for unreflectingly using language he read in an online forum. “[A] drunken joke” in bad taste can lead to criminal prosecution. Perez v. Florida , 580 U.S. 1187 (2016) (Sotomayor, J., concurring in denial of certiorari). In the heat of the moment, someone may post an enraged comment under a news story about a controversial topic. Another person might reply equally heatedly. In a Nation that has never been timid about its opinions, political or otherwise, this is commonplace. Many of this Court’s true-threats cases involve such charged political speech. See Black , 538 U. S., at 348–349 (Ku Klux Klan rally); Watts , 394 U. S., at 707 (antiwar protest); Rogers v. United States , 422 U.S. 35 , 41–42, 47–48 (1975) (Marshall, J., concurring) (opposition to Nixon’s policies toward China). Amici give further contemporary examples of such speech from across the political spectrum. See, e.g. , Brief for American Civil Liberties Union et al. as Amici Curiae 24–29. Much of this speech exists in a gray area where it will be quite hard to predict whether a jury would find it threatening. And the ubiquity of such speech raises the possibility of highly discretionary enforcement. The burdens of overcriminalization will fall hardest on certain groups. A jury’s determination of when angry hyperbole crosses the line will depend on amorphous norms around language, which will vary greatly from one discursive community to another. Juries’ decisions will reflect their “background knowledge and media consumption.” Minnesota Voters Alliance v. Mansky , 585 U. S. ___, ___ (2018) (slip op., at 17). “[S]peakers whose ideas or views occupy the fringes of our society have more to fear, for their violent and extreme rhetoric, even if intended simply to convey an idea or express displeasure, is more likely to strike a reasonable person as threatening.” United States v. White , 670 F.3d 498, 525 (CA4 2012) (Floyd, J., concurring in part and dissenting in part). Members of certain groups, including religious and cultural minorities, can also use language that is more susceptible to being misinterpreted by outsiders. And unfortunately yet predictably, racial and cultural stereotypes can also influence whether speech is perceived as dangerous. See, e.g. , A. Dunbar, C. Kubrin, & N. Scurich, The Threatening Nature of “Rap” Music, 22 J. Psychol. Pub. Pol’y & L. 281, 281–282, 288–290 (2016). On the other hand, the internet has also made stalking and harassment even easier. Stalking can be devastating and dangerous. See Brief for First Amendment Scholars as Amici Curiae 7–8. Lives can be ruined, and in the most tragic instances, lives are lost. Ibid. Harassers can hide behind online anonymity while tormenting others. This happens in the context of intimate relationships and it happens with strangers. Overly constraining our society’s ability to respond to stalking would come at a real cost. For the reasons given, however, a mens rea standard for true threats would not hinder stalking prosecutions. See supra, at 3–5. Even isolated threatening speech can do real harm. Such speech not only disrupts lives, it can silence the speech of others who become afraid to speak out. A mens rea require- ment would not, however, present an uncommon or insurmountable barrier to true-threats prosecutions.[ 3 ] Nonetheless, under such a standard, there will be some speech that some find threatening that will not and should not land anyone in prison. III These high First Amendment stakes are further reason for caution when delineating the boundaries of what constitutes a true threat. In undertaking that analysis, the Court and I part ways on the order of operations. The Court begins by defining true threats as all objectively threatening speech, entirely independent of whether the speaker intended to be threatening, ante , at 6, and the lead dissent agrees, post , at 2–3 (opinion of Barrett, J.). The Court gets there by relying on this Court’s interpretation of the word “threat” in a federal statute. Ante , at 6 (citing Elonis v. United States , 575 U.S. 723, 733 (2015)). The Court declares all such speech categorically unprotected, and then asks what “buffer zone” is needed in order to protect other, unthreatening speech. See ante , at 4–7. Respectfully, I see the analysis differently. The first step in the analysis should instead be to ask about the scope of the well-defined and narrow category of “true threats” as a constitutional matter. This Court has already warned about the danger of creating new categories of “unprotected speech” exempt from the ordinary First Amendment framework for balancing our society’s commitment to free expression with other interests. Stevens , 559 U. S., at 470. If courts were at liberty to redefine what counts as a “threat” or “defamation” at will, this would achieve the same results as creating new categories of unprotected speech. Thus, the Court must first ask whether there is a long-standing tradition of punishing inadvertent threats as “true threats.” This Court’s prior definition of the word “threat” in a federal statute, looking primarily to dictionaries, Elonis , 575 U. S., at 733, does not tell us the scope of “true threats” for First Amendment purposes. Elonis itself made clear that it did “not . . . consider any First Amendment issues.” Id. , at 740. Instead, a careful examination of this Court’s true-threats precedent and the history of threat crimes does not support a long-settled tradition of punishing inadvertently threatening speech. A A natural place to begin, one might think, would be with this Court’s most recent decision involving the First Amendment, mens rea , and true threats. Yet to read the Court’s decision, one would have little idea that in a seminal 2003 decision, this Court held that a threat conviction could not stand because of an insufficient mens rea requirement. See Black , 538 U.S. 343 . Black plainly sets out a conception of true threats as including a mens rea requirement. In Black , the Court confronted the constitutionality of a Virginia statute that prohibited burning a cross with intent to intimidate. Only part of the decision in Black is contained in a five-Justice majority opinion. The other relevant parts of the decision were written by the Members of that majority, who split into a four-Justice plurality and Justice Scalia’s partial concurrence in judgment. The majority explained why a prohibition on cross burning with intent to threaten was constitutional, beginning by defining the category of true threats. “ ‘True threats,’ ” the majority explained “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence.” Id. , at 359 (emphasis added). However, “[t]he speaker need not actually intend to carry out the threat,” as true threats also include intimidation alone. Id. , at 359–360. And “[i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” Id. , at 360 (emphasis added). To the extent the Virginia statute covered intentionally threatening cross burning, it was thus tailored to cover only true threats. Critically, however, the statute also provided that “ ‘[a]ny such burning of a cross shall be prima facie evidence of an intent to intimidate.’ ” Id. , at 348. In other words, the all-important intent requirement could be satisfied by the mere conduct itself. Consistent with the majority’s definition of true threats, both the plurality and Justice Scalia agreed that the lack of a sufficient intent requirement meant that a conviction under the statute could not stand. Id. , at 367, 379. For the plurality, the intent requirement was “the very reason why a State may ban cross burning” because it “distinguish[ed]” between the constitutionally unprotected true threat of burning a cross with intent to intimidate and “cross burning [as] a statement of ideology.” Id. , at 365–366.[ 4 ] For Justice Scalia, the “plurality [was] correct in all of this.” Id. , at 372 (opinion concurring in part, concurring in judgment in part, and dissenting in part). There was a constitutional need for a distinction between cross burning “ ‘intended to intimidate’ ” and cross burning as “ ‘a statement of ideology.’ ” Ibid . The plurality and Justice Scalia only parted ways as to whether to hold that the statute was “facially invalid,” id. , at 367 (plurality opinion), or just that the jury instructions made it unclear “whether the jury has rendered its verdict ( as it must )” with sufficient consideration of “intent to intimidate,” id. , at 380 (opinion of Scalia, J.) (emphasis added). The through-line is not hard to discern. First, unprotected true threats include a subjective mens rea requirement. Id ., at 360 (majority opinion). Second, as a result, “Virginia’s statute does not run afoul of the First Amendment insofar as it bans cross burning with intent to intimidate.” Id. , at 362 (majority opinion). Third, a conviction could not stand if it had categorically dispensed with that intent requirement, id. , at 365–366 (plurality opinion), or if the jury had insufficiently considered “intent to intimidate,” id. , at 380 (opinion of Scalia, J.). In sum, all five Justices in the Black majority agreed that a true-threats prosecution could not stand under the First Amendment without a sufficient subjective mens rea requirement.[ 5 ] B In defining true threats as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence,” id ., at 359, the Court in Black echoed the traditional understanding of threats. Historically, threat crimes covered the same kind of subjectively threatening speech Black invoked. In reviewing this history, it is also vital to keep in mind the nature of the inquiry. Removing speech from normal First Amendment scrutiny is a major shift in the balance of expression and public interest that our Constitution generally strikes. The inquiry is therefore whether there is a “long-settled tradition” of prohibiting inadvertently threatening speech. Stevens , 559 U. S., at 469. None of the other opinions, however, identify a historical case that expressly raised the question whether a subjective mens rea is required and held that it is not. That is a remarkable thing when one considers that the sample size consists of decisions from both sides of the Atlantic across centuries. There was a long tradition of crimes for threatening another person in order to extort them. See, e.g. , 1796 N. J. Laws §57, p. 108. Colorado and the United States admit that this core category of threat crimes required intent. Even beyond that, a subjective mens rea remained a key component of threat offenses. An 18th-century English statute made it a capital offense to “knowingly send any letter . . . threatening to kill or murder any of his Majesty’s subject or subjects” or to threaten arson. 27 Geo. II, c. 15, in 21 Eng. Stat. at Large 184 (1754). A leading treatise explained that the statute was “levelled against such whose intention it was [to] obtain their object by creating terror in [the victim’s] mind.” 2 W. Russell & D. Davis, Crimes & Misdemeanors *1845 (emphasis added). Consistent with this, defendants were convicted of “knowingly, wilfully, and feloniously” sending threatening letters. Rex v. Tyler , 1 Mood. 428, 168 Eng. Rep. 1330 (1835); Rex v. Paddle , Russ. & Ry. 484, 168 Eng. Rep. 910 (1822) (indictment for “knowingly, unlawfully, wickedly, and feloniously” sending a threatening letter); see also King v. Girdwood , 1 Leach 142, 168 Eng. Rep. 173 (1776) (indictment for “feloniously” sending a threatening letter). “ ‘[K]nowingly and wilfully’ effecting any result applies to those who know that the acts performed will have that effect, and perform them with the intention that such shall be their operation.” 12 American and English Encyclopaedia of Law 522–524 (J. Merrill ed. 1890); see also J. Boag, Imperial Lexicon of the English Language 530 (1850) (defining “felonious” as “with the deliberate purpose to commit a crime”). The necessary mens rea could sometimes be inferred from the content of the letter, but could be rebutted by other evidence. See King v. Philipps , 6 East 464, 475, 102 Eng. Rep. 1365, 1369 (1805). Courts thus considered “the threat intended to be made by the prisoner” and “what he meant by what he had written” in determining whether he had violated the statute. Regina v. Hill , 5 Cox 233, 235 (Crim. Cas. 1851); see also King v. John and Mary Hammond , 1 Leach 444, 446, 168 Eng. Rep. 324, 325 (1787) (describing the offense of sending a threatening letter “to the party whose fears the threat it contains was calculated to alarm”). Threat laws in the United States were of a piece. Some state laws about threats expressly required maliciousness. See Me. Rev. Stat., Tit. 12, ch. 154, §26 (1840); 1884 La. Acts No. 64, §1, p. 86. Courts more generally emphasized the importance of a mens rea requirement. See, e.g. , State v. Benedict , 11 Vt. 236, 239 (1839). The North Carolina Su- preme Court, for example, singled out threats as quintessential examples of offenses where it is “necessary” to prove the “ intent of the particular letter.” State v. Murphy , 84 N. C. 742, 743–744 (1881). And where state statutes may have been silent on intent to threaten, courts read such requirements in. See Commonwealth v. Morton , 140 Ky. 628, 631, 131 S.W. 506, 507–508 (1910) (letter must be “calculated to alarm, disturb, intimidate, or injure”); see also State v. Stewart , 90 Mo. 507, 512, 2 S.W. 790, 792 (1887) (jury instruction requiring that “ ‘defendant intended to threaten’ ”). Leading treatises also explained the importance of mens rea . See 25 American and English Encyclopaedia of Law 1071 (C. Williams ed. 1894) (when there is a question as to “whether or not the letter contains the threat alleged, the intent is a question for the jury”); see also 2 R. Anderson, Wharton’s Criminal Law and Procedure §803, pp. 659–660 (1957) (threats must be “intended to put the person threatened in fear of bodily harm”); 2 J. Bishop, Commentaries on the Criminal Law §1201, p. 664 (6th ed. 1877) (“The intent, both under the unwritten law and under the statutes, must be evil”). Against that backdrop, I return to the inquiry at hand: whether there is a “long-settled” or “well-established” history of prosecuting inadvertently threatening speech. There is no line of cases or pattern of statutes affirmatively stating that an objective standard is sufficient. C Put together, Black and the history point to an intent requirement. When Black defined and analyzed true threats in terms of intent, there is no reason to think the Court used intent to mean anything less than its traditional definition of purpose or knowledge. See, e.g. , Tison , 481 U. S., at 150. Nor would a recklessness standard play the necessary role of distinguishing between cross burning that is “ ‘intended to intimidate’ . . . and nonintimidating cross burning [that] cannot be prohibited.” 538 U. S., at 372 (opinion of Scalia, J.). Given the violent history of the symbol, it is hard to imagine that any politically motivated cross burning done within view of the public could be carried out without awareness of some risk a reasonable spectator would feel threatened. See id. , at 388–391 (Thomas, J., dissenting). Recklessness, which turns so heavily on an objective person standard, would not have been enough. As to the history, it is true that over time courts have often used a wide variety of terms to describe mental states. See, e.g. , Morissette v. United States , 342 U.S. 246 , 252 (1952). Yet “[t]he element of intent in the criminal law has traditionally been viewed as a bifurcated concept embracing either the specific requirement of purpose or the more general one of knowledge or awareness.” United States v. United States Gypsum Co. , 438 U.S. 422 , 445 (1978); see also Tison , 481 U. S., at 150; Carter v. United States , 530 U.S. 255 , 270 (2000) (describing “feloniously” as equivalent to “ ‘intent’ ”). And at the very least, there is no well-settled history showing that it is enough for a defendant to be merely aware of some risk that their statements could be threatening. See, e.g. , Borden v. United States , 593 U. S. ___, ___ (2021) (plurality opinion) (slip op., at 5) (recklessness requires awareness of a level of risk that “need not come anywhere close to a likelihood”). The history is, instead, replete with the enduring and commonsense pairing of threats and intent. D The Court, eschewing Black and history, instead reaches its result based on the need for a “buffer zone” drawn by analogy to other categories of unprotected speech. Ante , at 4. For the reasons above, I do not think we can leap ahead to this question. With that caveat, I agree with the Court that precedent in other areas of unprotected speech and concerns about chilling support a subjective mens rea requirement for true threats. Yet these same chilling concerns only further buttress the conclusion that true threats should be limited to intentionally threatening speech. Indeed, in the concurrence by Justice Marshall that the Court invokes, ante , at 9–10, he advocated “requir[ing] proof that the speaker intended his statement to be taken as a threat,” based on concerns about punishing “pure speech.” Rogers , 422 U. S., at 47–48. In determining the appropriate mens rea , the Court analogizes to three categories of traditionally unprotected speech: incitement, obscenity, and defamation. None of these warrants expanding the narrow boundaries of true threats. 1 Speech inciting harm is the closest cousin to speech threatening harm. Both incitement and threats put other people at risk, and both “sprin[g] from [Justice] Holmes’s ‘clear and present danger’ test.” G. Blakey & B. Murray, Threats, Free Speech, and the Jurisprudence of the Federal Criminal Law, 2002 B. Y. U. L. Rev. 829, 1069 (2002). Like true threats, incitement’s scope is defined in terms of both intention and effect, covering speech “[1] intended to produce, and [2] likely to produce, imminent disorder.” Hess v. Indiana , 414 U.S. 105 , 109 (1973) ( per curiam ). Despite their similar nature and source, the Court today draws a hard line between the two. Incitement requires “ ‘inten[t].’ ” Ante , at 8. While for threats, the speaker need only be “aware that others could regard his statements as threatening violence and delive[r] them anyway.” Ante , at 11 (internal quotation marks omitted). The Court justifies this asymmetry by the idea “that incitement to disorder is commonly a hair’s-breadth away from political ‘advocacy,’ ” ante , at 13, and the lead dissent says much the same, post , at 7 (opinion of Barrett, J.). These opinions offer little basis for distinguishing threats on this ground, as this Court’s own cases show time and again how true-threats prosecutions sweep in political speech. See Black , 538 U. S., at 348–349; Watts , 394 U. S., at 707 (antiwar protest); Rogers , 422 U. S., at 41–42 (Marshall, J., concurring) (opposition to Nixon’s policies toward China).[ 6 ] Not only that, but incitement itself is often only a hair’s-breadth away from threats. Take the seminal incitement case NAACP v. Claiborne Hardware Co. , 458 U.S. 886 (1982). During a civil rights boycott, NAACP leader Charles Evers, brother of the murdered civil rights hero Medgar Evers, gave a series of heated speeches. See id. , at 898–902. He intoned that “boycott violators would be ‘disciplined’ ” and that “ ‘[i]f we catch any of you going in any of them racist stores, we’re gonna break your damn neck.’ ” Id. , at 902. The Court acknowledged that in this charged context, these speeches “might have been understood as inviting an unlawful form of discipline or, at least, as intending to create a fear of violence.” Id. , at 927. Yet inflammatory and threatening as these speeches were, they did not constitute incitement. That was because “there [was] no evidence—apart from the speeches themselves—that Evers authorized, ratified, or directly threatened acts of violence.” Id ., at 929. His speeches were thus not “ ‘directed to inciting or producing imminent lawless action’ ” and he had not “specifically intended to further an unlawful goal.” Id. , at 925, n. 68, 928. Under a recklessness rule, Claiborne would have come out the other way. So long as Evers had some subjective awareness of some risk that a reasonable person could re- gard his statements as threatening, that would be sufficient. It would be quite troubling indeed to adopt a rule rendering this Court’s admirable defense of the First Amendment wrongly decided. Nor is Claiborne the only example. The foundational incitement case, Brandenburg v. Ohio , 395 U.S. 444 (1969) ( per curiam ), extended First Amendment protections to armed Klan members uttering racial slurs, a warning that “there might have to be some revengeance taken,” and plans for a “ ‘four hundred thousand strong’ ” march in two cities. Id ., at 446. Then, as now, there would be at least some risk that a reasonable resident of those cities could feel threatened. These concrete examples illustrate a more general principle. Speech inciting imminent and dangerous unlawful activity will reasonably be threatening to those who would be harmed by that illegality. In all such cases, whether seminal decisions by this Court or guilty pleas that barely see the inside of a courtroom, the Court’s decision effectively downgrades to recklessness the mens rea required for incitement of unlawful force; prosecutors could now simply charge such offenses as true threats. This is particularly worrisome because the standard for recklessness decreases the lower the “social utility” of the conduct. 1 W. LaFave, Substantive Criminal Law §5.4(f ) (3d ed. 2018). That is a troubling standard for juries in a polarized nation to apply in cases involving heated political speech. This collateral damage can be avoided, however, if intent to threaten is understood as part of a true threat, just like intent to incite is part of incitement. 2 While obscenity is a step further afield of true threats and incitement, examination of this Court’s obscenity case law further supports an intent requirement for prosecutions of true threats. The Constitution “ ‘requires proof of scienter’ ” in part “ ‘to compensate for the ambiguities inherent in the definition of obscenity.’ ” Hamling v. United States , 418 U.S. 87 , 123 (1974). This is in line with this Court’s more general observation that “vagueness” of “content-based regulation of speech” is of “special concern” when it comes to “criminal statute[s].” Reno v. American Civil Liberties Union , 521 U.S. 844 , 871–872 (1997).[ 7 ] Specifically, the Court has held that a “knowledge” mens rea is sufficient for obscenity: “It is constitutionally sufficient that the prosecution show that a defendant had knowledge of the contents of the materials he distributed, and that he knew the character and nature of the materials.” Hamling , 418 U. S., at 123. This ensures that “not innocent but calculated purveyance of filth . . . is exorcised.” Id. , at 122 (internal quotation marks omitted). While the Court today asserts that this Court has “never determined the precise mens rea ” for obscenity, ante , at 13, n. 6, the Court has cited a knowledge standard approvingly for half a century, see Hamling , 418 U. S., at 123; Elonis , 575 U. S., at 739.[ 8 ] Applying that standard to threats, the “ ‘calculated purveyance’ of a threat would require that [a defendant] know the threatening nature of his communication.” Id ., at 739. The considerations that drove this Court to approve a higher mens rea for obscenity apply here as well. With obscenity, the ambiguity comes partly from the reliance on “ ‘contemporary community standards’ ” to define what is obscene. Hamling , 418 U. S., at 129. Such a standard is notoriously amorphous, and will change a great deal between communities and over time. The same chilling concerns apply to true threats. A recklessness standard based on what a reasonable person could find threatening will depend on ever-shifting community norms around language and when heated speech crosses the line from overly aggressive to criminal. See supra , at 5–7.[ 9 ] 3 Finally, the Court relies heavily upon this Court’s framework for defamation. Specifically, the Court analogizes to the “reckless disregard” standard for defamation of public figures or punitive damages for certain claims involving private figures. New York Times Co. v. Sullivan , 376 U.S. 254 , 279–280 (1964). Yet while civil defamation may be “the best known and best theorized example” of unprotected speech, ante , at 8, the same does not go for criminal prosecution of defamation. It is true that this Court in 1964 invalidated a prosecution for criminal libel for failing to apply the Sullivan standard, which covers “only those false statements made with a high degree of awareness of their probable falsity.” Garrison v. Louisiana , 379 U.S. 64 , 75 (1964). Yet the Court expressed strong skepticism of the very concept of criminal prosecutions for libel and noted the salutary trend of its “virtual disappearance.” Id. , at 69–70 . The Court approvingly cited the Model Penal Code’s recommendation that criminal libel be limited to speech likely to cause a breach of the peace and “calculated” to do so. Id. , at 70. This is not a promising theoretical springboard for determining the mens rea required to criminalize other speech. If the Court were correct that the Sullivan standard is the appropriate analogy, however, then this standard should guide how to analyze recklessness in true-threats prosecutions. The generic formulation of recklessness requires that an individual disregard a relatively unspecified level of risk that the harm in question will occur. See Borden , 593 U. S., at ___ (plurality opinion) (slip op., at 5). Within that potentially broad range, Sullivan provides a more definite and demanding level of risk, reflecting the First Amendment concerns at stake. The Court has “made clear that the defendant must have made the false publication with a high degree of awareness of probable falsity or must have entertained serious doubts as to the truth.” Harte-Hanks Communications, Inc. v. Connaughton , 491 U.S. 657 , 667 (1989) (internal quotation marks and ellipsis omitted). This makes sense. Allowing liability for awareness of a small chance that a story may be false would undermine the very shield Sullivan erects. For similar reasons, after today’s ruling, future courts grappling with how to articulate the appropriate level of recklessness in true-threats cases would be well served to consult the Sullivan standard. The equivalent to Sullivan for true threats would require a high degree of awareness that a statement was probably threatening or serious doubts as to the threatening nature of the statement. This could avoid the chilling that would arise from a more amorphous and easily satisfied standard. 4 This Court’s various frameworks for unprotected speech do not speak with one voice, as perhaps befits the First Amendment. The above survey does not, however, give reason to depart from the traditional understanding of true threats. To the contrary, this case law supports keeping true threats within their traditional bounds. Incitement similarly requires intent. The same chilling concerns that have led this Court to approve a knowledge requirement for obscenity are present with true threats. And to the extent the civil defamation context is relevant, at the very least, it points to a precise and demanding form of recklessness.[ 10 ] IV Maintaining true threats doctrine within its traditional boundaries will guard against the overcriminalization of a wide range of political, artistic, and everyday speech based on its content alone. This does not mean that unintentionally threatening communications are exempt from regulation, far from it. As explained above, there are far fewer First Amendment concerns with stalking laws that punish repeated, targeted, unwanted conduct and accompanying speech. For that reason, recklessness is quite sufficient. As to true threats, intent is neither an unusual nor an insurmountable bar. “[C]ourts and juries every day pass upon knowledge, belief and intent . . . having before them no more than evidence of . . . words and conduct, from which, in ordinary human experience, mental condition can be inferred.” American Communications Assn. v. Douds , 339 U.S. 382 , 411 (1950). *  *  * I agree with the Court’s conclusion that the First Amendment requires a subjective mens rea in true-threats cases, and I also agree that recklessness is amply sufficient for this case. Yet I would stop there, leaving for another day the question of the specific mens rea required to prosecute true threats generally. If that question is reached, however, the answer is that true threats encompass a narrow band of intentional threats. Especially in a climate of intense polarization, it is dangerous to allow criminal prosecutions for heated words based solely on an amorphous recklessness standard. Our society has often concluded that an intent standard sets a proper balance between safety and the need for a guilty mind, even in cases that do not involve the First Amendment. Surely when the power of the State is called upon to imprison someone based on the content of their words alone, this standard cannot be considered excessive. Because I part ways with the Court on this score, I respectfully concur only in part and in the judgment. Notes 1 The statute of conviction applies to someone who “[r]epeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person . . . in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . serious emotional distress.” Colo. Rev. Stat. §18–3–602(1)(c) (2022). 2 For these reasons, stalking prosecutions that do not rely on the content of communications would raise even fewer First Amendment concerns. 3 Intent requirements are common, including for incitement that results in actual violence, not just the threat of it. See infra , at 15–17. For that reason there are longstanding frameworks for determining when someone is not guilty by reason of insanity, and when delusions do (and do not) defeat a showing of intent. See, e.g. , 1 W. LaFave, Substantive Criminal Law §§7.1(a), (b) (3d ed. 2018); 2 id. , §9.2. 4 The lead dissent asserts that the Black plurality’s decision was based on how the statute “ ‘ignore[d] all of the contextual factors that are necessary to decide whether a particular cross burning’ was covered by the statute.” Post , at 9 (opinion of Barrett, J.) (quoting 538 U. S., at 367 (plurality opinion)). But some context is missing from this reading itself. The full sentence is “all of the contextual factors that are necessary to decide whether a particular cross burning is intended to intimidate .” Id. , at 367 (emphasis added). The plurality was thus concerned with context to the extent it was relevant to the mens rea requirement needed to render the statute constitutional. Id. , at 365–366. 5 According to the Court today and the lead dissent, however, Black somehow managed not to say anything about the First Amendment mens rea requirement for true-threats prosecutions—while striking down a true-threat conviction under the First Amendment for an insufficient mens rea requirement. On this reading, Black only discussed intent because “the statute involved in the case required a showing of intent.” Ante , at 6, n. 3; post , at 9, n. 4 (discussion of intent was “a reference to the statutory requirements for a conviction, not the constitutional requirements”). This puzzling interpretation does not explain why an illusory mens rea requirement in a Virginia law would pose any First Amendment problems if the Amendment did not impose a mens rea requirement of this kind. After all, “[w]hy would the First Amendment care how a jury goes about finding an [intent] element that is a matter of indifference to the Amendment?” United States v. Heineman , 767 F.3d 970, 980 (CA10 2014). The obvious answer, from Black ’s reasoning to its holding, is that such a mens rea requirement was necessary for the statute to target true threats. 6 Nor is this limited to decisions by this Court. Threats cases sweep in political speech. See, e.g. , State v. Taylor , 379 N. C. 589, 590, 866 S.E.2d 740, 744 (2021). Incitement cases can sweep in nonpolitical speech. See, e.g. , Rice v. Paladin Enterprises, Inc. , 128 F.3d 233 , 264, n. 11, 267 (CA4 1997). And still other cases show how incitement and threats can often go hand in hand. See, e.g. , State v. Caroll , 456 N. J. Super. 520, 544–545, 196 A.3d 106, 120–121 (App. Div. 2018). 7 Analogously, the Court’s civil defamation case law recognizes that heightened liability can require a heightened mens rea ; even as to nonpublic figures, a higher standard must be met for punitive damages in certain cases. See, e.g. , Gertz v. Robert Welch, Inc. , 418 U.S. 323 , 349–350 (1974). 8 The Court has held, however, that recklessness is sufficient for child pornography. See Osborne v. Ohio , 495 U.S. 103 , 115 (1990). This Court has emphasized time and again how child pornography is “a special case” because “[t]he market for child pornography [is] ‘intrinsically related’ to the underlying abuse” and thus “ ‘an integral part of the production of such materials, an activity illegal throughout the Nation.’ ” United States v. Stevens, 559 U.S. 460 , 471 (2010) (quoting New York v. Ferber , 458 U.S. 747 , 759, 761 (1982)); see also Osborne , 495 U. S., at 110–111. Child pornography, with its integral ties to separate criminal conduct, is not a strong analogue for threats, which can be fleeting statements in total isolation from any other criminality (though it is a stronger analogy to threats as part of an unlawful course of stalking). Yet the Court’s decision today puts child pornography on a First Amendment par with overheated political speech or violent song lyrics. 9 There is a further safeguard in obscenity cases. Something is obscene if “taken as a whole, [it] lacks serious literary, artistic, political, or scientific value.” Ashcroft v. American Civil Liberties Union , 535 U.S. 564 , 574 (2002) (internal quotation marks omitted). An intent requirement can provide a similar safeguard for threats. As Virginia v. Black , 538 U.S. 343 (2003), explained, requiring intent distinguishes between speech intended to intimidate and speech intended to express a political statement. Id. , at 365–366 (plurality opinion); id. , at 372 (opinion of Scalia, J.). 10 The lead dissent headlines its analysis by pointing to this Court’s case law on “fighting words.” Post , at 3–4 (opinion of Barrett, J.). This is an unlikely candidate for a broader theory of the First Amendment. For “nearly three-quarters of a century . . . the Court has never . . . upheld a fighting words conviction” and “[t]he cumulative impact of [the Court’s] decisions is to make it unlikely that a fighting words law could survive.” E. Chemerinsky, The First Amendment 1094 (6th ed. 2019). It is not hard to see why such convictions would be unlikely to pass First Amendment muster; the leading case involved a Jehovah’s Witness distributing literature who was arrested for breach of the peace for calling a public official a “ ‘damned Fascist.’ ” Chaplinsky v. New Hampshire , 315 U.S. 568 , 569, 573–574 (1942). Drawing upon a conviction like the one in Chaplinksy as the proper model for criminalizing political speech is proof itself of the serious risks with the lead dissent’s approach. In any event, as to the question at hand, when such breach of the peace offenses involved threats, intent to threaten was required. See 2 R. Anderson, Wharton’s Criminal Law and Procedure §803, pp. 659–660 (1957). SUPREME COURT OF THE UNITED STATES _________________ No. 22–138 _________________ BILLY RAYMOND COUNTERMAN, PETITIONER v. COLORADO on writ of certiorari to the court of appeals of colorado [June 27, 2023] Justice Thomas, dissenting. I join Justice Barrett’s dissent in full. I write separately to address the majority’s surprising and misplaced reliance on New York Times Co. v. Sullivan , 376 U.S. 254 (1964). In New York Times , this Court held that the First Amendment bars public figures from recovering damages for defamation unless they can show that the statement at issue was made with “ ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. , at 280. Like the majority’s decision today, “ New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law.” McKee v. Cosby , 586 U. S. ___, ___ (2019) (Thomas, J., concurring in denial of certiorari) (slip op., at 2). Instead of simply applying the First Amendment as it was understood at the time of the Founding, “the Court fashioned its own ‘ “federal rule[s]” ’ by balancing the ‘competing values at stake in defamation suits.’ ” Ibid. (quoting Gertz v. Robert Welch, Inc. , 418 U.S. 323 , 334, 348 (1974)); see also Bose Corp. v. Consumers Union of United States, Inc. , 466 U.S. 485 , 501–502 (1984) (acknowledging that “the rule enunciated in the New York Times case” is “largely a judge-made rule of law,” the “content” of which is “given meaning through the evolutionary process of common-law adjudication”). “The constitutional libel rules adopted by this Court in New York Times and its progeny broke sharply from the common law of libel, and there are sound reasons to question whether the First and Fourteenth Amendments displaced this body of common law.” McKee , 586 U. S., at ___ (opinion of Thomas, J.) (slip op., at 6). Thus, as I have previously noted, “[w]e should reconsider our jurisprudence in this area.” Id. , at ___ (slip op., at 14); see also Berisha v. Lawson , 594 U. S. ___ (2021) (Thomas, J., dissenting from denial of certiorari). I am far from alone. Many Members of this Court have questioned the soundness of New York Times and its numerous extensions. See, e.g. , Berisha , 594 U. S., at ___–___ (Gorsuch, J., dissenting from denial of certiorari) (slip op., at 5–8); Coughlin v. Westinghouse Broadcasting & Cable, Inc ., 476 U.S. 1187 (1986) (Burger, C. J., joined by Rehnquist, J., dissenting from denial of certiorari); Gertz , 418 U. S., at 370 (White, J., dissenting); Rosenbloom v. Metromedia, Inc ., 403 U.S. 29 , 62 (1971) (Harlan, J., dissenting); id ., at 78 (Marshall, J., dissenting); Rosenblatt v. Baer , 383 U.S. 75 , 92 (1966) (Stewart, J., concurring); see also E. Kagan, A Libel Story: Sullivan Then and Now, 18 L. & Soc. Inquiry 197, 207 (1993); J. Lewis & B. Ottley, New York Times v. Sullivan at 50, 64 DePaul L. Rev. 1, 35–36 (2014) (collecting statements from Justice Scalia); cf. Tah v. Global Witness Publishing, Inc ., 991 F.3d 231, 251–256 (CADC 2021) (Silberman, J., dissenting in part) (questioning the doctrine). It is thus unfortunate that the majority chooses not only to prominently and uncritically invoke New York Times , but also to extend its flawed, policy-driven First Amendment analysis to true threats, a separate area of this Court’s jurisprudence. SUPREME COURT OF THE UNITED STATES _________________ No. 22–138 _________________ BILLY RAYMOND COUNTERMAN, PETITIONER v. COLORADO on writ of certiorari to the court of appeals of colorado [June 27, 2023] Justice Barrett, with whom Justice Thomas joins, dissenting. Billy Counterman was convicted under a Colorado law that prohibits true threats. As everyone agrees, the statute requires that the speaker understand the meaning of his words. Ante , at 4, n. 1. The question is what more the First Amendment requires. Colorado maintains that an objective standard is enough—that is, the government must show that a reasonable person would regard the statement as a threat of violence. Counterman, however, argues that the First Amendment requires a subjective test—that is, the speaker himself must intend or know the threatening nature of the statement. It should be easy to choose between these positions. True threats do not enjoy First Amendment protection, and nearly every other category of unprotected speech may be restricted using an objective standard. Nonetheless, the Court adopts a subjective standard, though not quite the one advanced by Counterman. The Court holds that speakers must recklessly disregard the threatening nature of their speech to lose constitutional protection. Because this unjustifiably grants true threats preferential treatment, I respectfully dissent. I Since the founding, the First Amendment has allowed the government to regulate certain “areas of speech” “because of their constitutionally proscribable content.” R. A. V. v. St. Paul , 505 U.S. 377 , 382–383 (1992) (emphasis deleted). This includes true threats, which are “serious expression[s] of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black , 538 U.S. 343 , 359 (2003); see also R. A. V. , 505 U. S., at 388 (“[T]hreats of violence are outside the First Amendment”). True threats carry little value and impose great cost. See Chaplinsky v. New Hampshire , 315 U.S. 568 , 572 (1942) (“[A]ny benefit that may be derived from [true threats] is clearly outweighed by the social interest in order and morality”). “[B]y their very utterance,” true threats “inflict injury.” Ibid. They provoke “the fear of violence,” create “disruption,” give rise to “the possibility that the threatened violence will occur”—and the list goes on. Black , 538 U. S., at 360 (internal quotation marks omitted).[ 1 ] The nature of a true threat points to an objective test for determining the scope of First Amendment protection: Neither its “social value” nor its potential for “injury” depends on the speaker’s subjective intent. Chaplinsky , 315 U. S., at 572. They can relate, of course—a speaker who does not intend to threaten is less likely to utter a statement that could be taken that way. But the Constitution ultimately declines to protect true threats for objective reasons, not subjective ones. So an objective test “complements the explanation for excluding threats of violence from First Amendment protection in the first place.” United States v. Jeffries , 692 F.3d 473, 480 (CA6 2012). II The Court agrees that “[t]he existence of a threat depends not on ‘the mental state of the author,’ but on ‘what the statement conveys’ to the person on the other end.” Ante , at 6. And it acknowledges that “[w]hen the statement is understood as a true threat, all the harms that have long made threats unprotected naturally follow.” Ibid. Nonetheless, the Court holds Colorado’s statute unconstitutional. Why? Because the Court installs a prophylactic buffer zone to avoid chilling protected speech—a buffer zone that protects true threats unless the speaker “consciously disregarded a substantial risk that his communications would be viewed as threatening violence.” Ante , at 1, 4–5. That reasoning is flawed. A The Court’s first error is awarding true threats “pride of place among unprotected speech.” Elonis v. United States , 575 U.S. 723, 767 (2015) (Thomas, J., dissenting). We have held that nearly every category of unprotected speech may be regulated using an objective test. In concluding otherwise, the Court neglects certain cases and misreads others. Start with fighting words—a category of unprotected speech that the Court skips past. Fighting words are “personally abusive epithets” that are “inherently likely to provoke violent reaction.” Cohen v. California , 403 U.S. 15 , 20 (1971). Under our precedent, legislatures may regulate fighting words even when the speaker does not intend to provoke the listener (or does not recklessly disregard that possibility). Chaplinsky , 315 U. S., at 572–573 (rejecting First Amendment challenge to a state law punishing “fighting words” according to a reasonable-person standard); Cantwell v. Connecticut , 310 U.S. 296 , 309–310 (1940) (statements unprotected when they are “likely to provoke violence and disturbance of good order, even though no such eventuality be intended”). Instead, we ask only whether “the ordinary citizen,” using her “common knowledge,” would reasonably understand the statement as a “direct personal insult.” Cohen , 403 U. S., at 20; see also Texas v. Johnson , 491 U.S. 397 , 409 (1989). The Court similarly overlooks the category of “false, deceptive, or misleading” commercial speech. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio , 471 U.S. 626 , 638 (1985); In re R. M. J. , 455 U.S. 191 , 203 (1982) (“Truthful advertising . . . is entitled to the protections of the First Amendment,” but “[m]isleading advertising may be prohibited entirely”); Ibanez v. Florida Dept. of Business and Professional Regulation , Bd. of Accountancy , 512 U.S. 136 , 142 (1994) (“[F]alse, deceptive, or misleading commercial speech may be banned”). Here, too, our cases suggest that First Amendment protection depends on objective falsity rather than the speaker’s intention. See In re R. M. J. , 455 U. S., at 202 (“[R]egulation—and imposition of discipline—are permissible where the particular advertising is inherently likely to deceive or where the record indicates that a particular form or method of advertising has in fact been deceptive ” (emphasis added)); see also Milavetz , Gallop & Milavetz , P. A. v. United States , 559 U.S. 229 , 250–253 (2010). Thus, the government is “free to prevent the dissemination of commercial speech that is false, deceptive, or misleading,” without regard to whether the speaker knew that the recipient would be deceived or misled. Zauderer , 471 U. S., at 638. Or take obscenity, which we have long held is “not protected by the freedoms of speech and press.” Roth v. United States , 354 U.S. 476 , 481 (1957). Speech qualifies as obscene if the “ ‘average person, applying contemporary community standards,’ ” would conclude that “the work, taken as a whole, appeals to the prurient interest.” Miller v. California , 413 U.S. 15 , 24 (1973). The jury must also make an objective judgment about whether the speech “depicts or describes” sexual conduct “in a patently offensive way,” and whether it “lacks serious literary, artistic, political, or scientific value.” Ibid. The speaker’s “ ‘belief as to the obscenity or non-obscenity of the material is irrelevant.’ ” Hamling v. United States , 418 U.S. 87 , 120–121 (1974). So long as the defendant has “knowledge of the contents of the materials,” her speech may be constitutionally regulated. Id. , at 123. An objective, reasonable-person standard applies. In an effort to bolster its position, the Court floats a different standard for obscenity laws, asserting that “the First Amendment demands proof of a defendant’s mindset to make out an obscenity case.” Ante , at 8. By “mindset,” the Court apparently means that the defendant must have some awareness that an average person would consider the materials obscene. But the Court draws this conclusion from cases rejecting a strict liability standard—for example, we have held that the proprietor of a bookstore cannot be liable for possessing an obscene book unless he knew what was in it. Smith v. California , 361 U.S. 147 , 149, 155 (1959); Mishkin v. New York , 383 U.S. 502 , 510–512 (1966); see also Ginsberg v. New York , 390 U.S. 629 , 643–644 (1968).[ 2 ] Knowing what the material depicts is not the same as knowing how the average person would react to it—just as there is an important difference between Counterman’s knowledge of what his words meant and his knowledge of how they would be perceived. Though the Court conflates the two, our obscenity cases have repeatedly refused to require the latter as a matter of constitutional law. Hamling , 418 U. S., at 120–123; Rosen v. United States , 161 U.S. 29 , 41–42 (1896). So obscenity doctrine does not help Counterman. The Court leans hardest on defamation law, but its argument depends on a single, cherry-picked strand of the doctrine. Yes, New York Times Co. v. Sullivan requires public figures and public officials to show “actual malice” on a defamation claim, and we have defined “actual malice” as “knowledge that [the statement] was false” or “reckless disregard of whether it was false or not.” 376 U.S. 254 , 279–280 (1964). But that is not the full story. A private person need only satisfy an objective standard to recover actual damages for defamation. Gertz v. Robert Welch , Inc. , 418 U.S. 323 , 347–350 (1974). And if the defamatory speech does not involve a matter of public concern, she may recover punitive damages with the same showing. Dun & Bradstreet , Inc. v. Greenmoss Builders , Inc. , 472 U.S. 749 , 760–761 (1985) (plurality opinion). We have justified that distinction on the ground that public-figure defamation claims may deter “would-be critics of official conduct . . . from voicing their criticism,” which would “dampe[n] the vigor and limit the variety of public debate.” Sullivan , 376 U. S., at 279. Not only that, but “the state interest in protecting” public figures is weaker, since they tend to “enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements.” Gertz , 418 U. S., at 344. So, despite what the Court says, Sullivan does not stand for the broad proposition that the First Amendment “demand[s] a subjective mental-state requirement.” Ante , at 6. Instead, it simply raises the bar for borderline unprotected speech with high social value (because of its proximity to public discourse) and low potential for injury (because public figures can engage in counterspeech). Sullivan ’s rationale does not justify a heightened mens rea for true threats. Because true threats are not typically proximate to debate on matters of public concern, the Court’s newly erected buffer zone does not serve the end of protecting heated political commentary. Nor can public figures use counterspeech in the public square to protect themselves from serious threats of physical violence. And perversely, private individuals now have less protection from true threats than from defamation—even though they presumably value their lives more than their reputations. See Gertz , 418 U. S., at 347–350. The Court has therefore extended Sullivan in a way that makes no sense on Sullivan ’s own terms. I will give the Court this much: Speakers must specifically intend to incite violence before they lose First Amendment protection. Brandenburg v. Ohio , 395 U.S. 444 , 447 (1969) ( per curiam ) (defining incitement as “advocacy . . . directed to inciting or producing imminent lawless action and likely to incite or produce such action”); see also Hess v. Indiana , 414 U.S. 105 , 108–109 (1973) ( per curiam ). Once more, however, our precedent itself explains the difference. Incitement, as a form of “advocacy,” often arises in the political arena. See Brandenburg , 395 U. S., at 447 (Ku Klux Klan rally held to plan a “ ‘marc[h] on Congress’ ”); Hess , 414 U. S., at 106 (antiwar demonstration); Abrams v. United States , 250 U.S. 616 , 620 (1919) (pamphlets about the President’s “ ‘shameful, cowardly silence about the intervention in Russia’ ”). A specific intent requirement helps draw the line between incitement and “political rhetoric lying at the core of the First Amendment.” NAACP v. Claiborne Hardware Co. , 458 U.S. 886 , 926–927 (1982). The Court does not contend that targeted threats and political commentary share a similarly close relationship. In sum, our First Amendment precedent does not set a “baseline ban on an objective standard.” Ante , at 10. Precedent does more than allow an objective test for true threats; on balance, it affirmatively supports one. B The Court’s analysis also gives short shrift to how an objective test works in practice. Two key features of true threats already guard against the risk of silencing protected speech. Thus, there is no need to go further and adopt the Court’s heightened standard. First, only a very narrow class of statements satisfies the definition of a true threat. To make a true threat, the speaker must express “an intent to commit an act of unlawful violence .” Black , 538 U. S., at 359 (emphasis added). Speech that is merely “offensive,” “ ‘poorly chosen,’ ” or “unpopular” does not qualify. Brief for Petitioner 31, 36, 42. The statement must also threaten violence “to a particular individual or group of individuals”—not just in general. Black , 538 U. S., at 359. These tight guardrails distinguish true threats from public-figure defamation, the model for the Court’s rule. While defamatory statements can cover an infinite number of topics, true threats target one: unlawful violence. Second, the statement must be deemed threatening by a reasonable listener who is familiar with the “entire factual context” in which the statement occurs. State v. Taveras , 342 Conn. 563, 572, 271 A.3d 123, 129 (2022). This inquiry captures (among other things) the speaker’s tone, the audience, the medium for the communication, and the broader exchange in which the statement occurs.[ 3 ] Each consideration helps weed out protected speech from true threats. Our decision in Black illustrates the point. There, the Court considered a Virginia law that prohibited cross burning “ ‘with the intent of intimidating any person or group of persons.’ ” 538 U. S., at 348. Notably, the statute included a presumption: “ ‘Any such burning of a cross shall be prima facie evidence of an intent to intimidate.’ ” Ibid. After three men were convicted under the statute, they challenged it as facially unconstitutional. We upheld the general prohibition on cross burning, concluding that the First Amendment allows the government to ban “a particular type of threat.” Id. , at 362–363. A plurality then went on to address the statutory presumption. While cross burning “may mean that a person is engaging in constitutionally proscribable intimidation,” the plurality reasoned, the act is not monolithic. Id. , at 365. Cross burning could be directed “at an individual” or “at a group of like-minded believers”; it could be done “on a neighbor’s lawn” or “at a public rally”; it could be done with the property owner’s “permission” or without it. Id. , at 366 . The presumption “blur[red] the line” between these different situations and “ignore[d] all of the contextual factors that are necessary to decide whether a particular cross burning” was covered by the statute or not.[ 4 ] Id. , at 365, 367. Thus, the presumption was unconstitutionally overbroad. The Black plurality’s reasoning can be boiled down to the following insight: When context is ignored, true threats cannot be reliably distinguished from protected speech. The reverse also holds: When context is properly considered, constitutional concerns abate. See, e.g. , Watts v. United States , 394 U.S. 705 , 708 (1969) ( per curiam ) (concluding that a statement was “political hyperbole” instead of a true threat based on “context,” “the expressly conditional nature of the statement,” and the “reaction of the listeners”). One more point: Many States have long had statutes like Colorado’s on the books. See Brief for Illinois et al. as Amici Curiae 16–17. Before we took this case, the vast majority of Courts of Appeals and state high courts had upheld these statutes as constitutional. So objective tests are effectively the status quo today, yet Counterman still struggles to identify past prosecutions that came close to infringing on protected speech. Tr. of Oral Arg. 28–30. The silence is telling. C So is the silence in the historical record. Since 1791, true threats have been excluded from the “speech” protected by the First Amendment. R. A.V. , 505 U. S., at 382–383, 388. If Counterman could show that a subjective requirement has been inherent in the definition of “true threat” since the founding, he would have a compelling case. But Counterman cannot make that showing. For starters, he produces no evidence directly addressing the meaning of the First Amendment—nothing from state ratifying conventions, political commentary, or even early debates about efforts to regulate threats in ways that might threaten speech. That is not surprising at the federal level, because the Federal Government did not prohibit threats until the early 20th century. Elonis , 575 U. S., at 760 (Thomas, J., dissenting). Some States, however, both regulated threats and guaranteed the right to free speech in their own constitutions. Id. , at 760–761 . Yet even at the state level, there was apparently no discussion about the implications of these statutes for the constitutional right. That void notwithstanding, the state threat statutes are the evidence on which Counterman seizes. He argues that they imposed a subjective mens rea , demonstrating that the founding generation thought that threats could be punished on no less. But as Justice Thomas has already discussed in detail, this is incorrect. See id. , at 760–765. Rather than a subjective mens rea , these statutes used an objective standard resembling Colorado’s. Even if they did require a heightened mens rea , though, these statutes would not carry the day for Counterman. The enactment of a statute against the backdrop of a free speech guarantee tends to show that the legislature thought the statute consistent with that guarantee. Thus, if the question were whether such statutes violated the First Amendment, their existence would be evidence to the contrary. But the question here is whether a subjective intent requirement is the constitutional floor. And because the legislature is always free to exceed the floor, the enactment of legislation does not necessarily reflect the legislature’s view of the constitutional minimum. At the end of the day, then, the best historical case for Counterman does not add up to much. He is plainly not asking the Court to enforce a historically sanctioned rule, but rather to fashion a new one. D Even if a subjective test had a historical pedigree, the Court’s chosen standard of recklessness certainly does not. Where does recklessness come from? It was not raised by the parties. Only the Solicitor General noted this possibility—and briefly at that. Brief for United States as Amicus Curiae 28–31. Nor did the courts below address recklessness; indeed, very few courts (of the many that have taken up the question) have settled on recklessness as the constitutional floor for true threats. See, e.g. , State v. Mrozinski , 971 N.W.2d 233, 243–245 (Minn. 2022); In re J. J. M. , 265 A.3d 246, 269–270 (Pa. 2021). Still, the Court adopts recklessness as “the right path forward.” Ante , at 11. Its rationale is, at best, unclear. The Court begins by acknowledging the “ ‘competing value[s]’ ” of “free expression” on one hand, and “profound harms . . . to both individuals and society” on the other. Ante , at 11–12. But why do these considerations point to recklessness? A knowledge or purpose standard would allow more free expression, so maybe we should go higher. See ante , at 16 (Sotomayor, J., concurring in part and concurring in judgment) (“chilling concerns only further buttress the conclusion that true threats should be limited to intentionally threatening speech”). An objective standard would cause less harm to victims, so perhaps lower is better. The optimal balance strikes me as a question best left to the legislature, which could calibrate the mens rea to the circumstance—for example, higher for the criminal context and lower for the civil. See Brief for Illinois et al. as Amici Curiae 28–30 (States “have a range of policy reasons for using subjective standards for penalizing threats of violence” and many “choose to require proof of a speaker’s subjective mental state” in some situations but not others). Nor does our First Amendment precedent buttress the Court’s preferred standard. A recklessness requirement currently applies only to public-figure defamation claims. Incitement to violence calls for more. Fighting words, private-figure defamation, false commercial speech, and obscenity require less. I fail to see why, of all these categories of unprotected speech, public-figure defamation is the best analog for true threats. The reality is that recklessness is not grounded in law, but in a Goldilocks judgment: Recklessness is not too much, not too little, but instead “just right.” III Some may find Colorado’s statute harsh, and the Court’s decision seems driven in no small part by the heavy hammer of criminal punishment. See ante , at 12; ante , at 14–15, 20–21 (opinion of Sotomayor, J.). While an objective test is “a familiar feature of civil liability in tort law,” the “ ‘conventional requirement for criminal conduct’ ” is “ ‘ awareness of some wrongdoing.’ ” Elonis , 575 U. S., at 737–738. In keeping with this convention, we generally presume that “federal criminal statutes that are silent on the required mental state” nonetheless impose the “ mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct.” Id. , at 736 (internal quotation marks omitted). That is why we rejected an objective standard for the federal threat prohibition, 18 U. S. C. §875(c). 575 U. S., at 737–739. It is “the threatening nature of the communication” that “makes the conduct ‘wrongful’ ”; thus, the statute is best interpreted to require that the defendant be aware of the impact of his speech. Id. , at 737. But this case is about the scope of the First Amendment, not the interpretation of a criminal statute. Accordingly, the Court’s holding affects the civil consequences for true threats just as much as it restricts criminal liability. And the civil context underscores the danger of adopting a Sullivan -style buffer zone for true threats. Consider, for example, threat victims who seek restraining orders to protect themselves from their harassers. See, e.g. , United States v. Elonis , 841 F.3d 589, 593 (CA3 2016) (defendant’s wife sought a restraining order after he wrote on Facebook, “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts”). Civil orders can also keep individuals away from particular geographic areas. Imagine someone who threatens to bomb an airport, State v. Johnston , 156 Wash. 2d 355, 358–359, 127 P.3d 707 , 708–709 (2006), or “shoot up [a] courthous[e],” State v. Draskovich , 2017 S. D. 76, ¶3, 904 N.W.2d 759, 761. The speaker might well end up barred from the location in question—for good reason. Yet after today, such orders cannot be obtained without proof—not necessarily easy to secure—that the person who issued the threat anticipated that it would elicit fear. See Tr. of Oral Arg. 92–93. The government can also opt to counteract true threats by means of civil enforcement actions. For instance, 18 U. S. C. §248 prohibits “threat[s] of force” against any person “obtaining or providing reproductive health services” or “seeking to exercise the First Amendment right of religious freedom at a place of religious worship.” The statute imposes a range of civil penalties, and it allows enforcement suits by both private persons and government officials. See, e.g. , United States v. Dillard , 795 F.3d 1191, 1196–1197 (CA10 2015) (Government brought §248 action after defendant warned a health provider, “[y]ou will be checking under your car everyday—because maybe today is the day someone places an explosive under it”); McCullen v. Coakley , 573 U.S. 464 , 491 (2014) (noting that several States have similar laws). After today, these civil enforcement actions face a higher constitutional hurdle. In addition, employers and school administrators often discipline individuals who make true threats. Consider the student who was expelled after “draft[ing] two violent, misogynic, and obscenity-laden rants expressing a desire to molest, rape, and murder” his ex-girlfriend. Doe v. Pulaski Cty. Special School Dist. , 306 F.3d 616 , 619 (CA8 2002) (en banc). Or the one who was suspended after “ ‘talking about taking a gun to school’ to ‘shoot everyone he hates.’ ” D. J. M. v. Hannibal Public School Dist. No. 60 , 647 F.3d 754, 758 (CA8 2011); Lovell v. Poway Unified School District , 90 F.3d 367 , 369, 372–373 (CA9 1996) (similar); Haughwout v. Tordenti , 332 Conn. 559, 561–562, 211 A.3d 1, 3–4 (2019) (similar). True threats can also be expressed by a parent, a teacher, or an employee in another context altogether. See, e.g. , Taveras , 342 Conn., at 567–569, 578, 271 A. 3d, at 126–128, 133 (parent); Smith v. New York City Dept. of Ed. , 109 App. Div. 3d 701, 702–703, 972 N.Y.S.2d 221, 222 (2013) (teacher); Diggs v. St. Louis , 613 S.W.3d 858, 862, 864 (Mo. App. 2020) (correctional officer). Barring some reason why the speech receives lesser constitutional protection, e.g. , Mahanoy Area School Dist. v. B. L. , 594 U. S. ___, ___–___ (2021) (slip op., at 4–5), the Court’s new rule applies to all of these situations. That can make all the difference in some cases. A delusional speaker may lack awareness of the threatening nature of her speech; a devious speaker may strategically disclaim such awareness; and a lucky speaker may leave behind no evidence of mental state for the government to use against her. The Court’s decision thus sweeps much further than it lets on. *  *  * The bottom line is this: Counterman communicated true threats, which, “everyone agrees, lie outside the bounds of the First Amendment’s protection.” Ante , at 4. He knew what the words meant. Those threats caused the victim to fear for her life, and they “upended her daily existence.” Ante , at 2. Nonetheless, the Court concludes that Counterman can prevail on a First Amendment defense. Nothing in the Constitution compels that result. I respectfully dissent. Notes 1 Indeed, the Colorado Legislature considered these very harms when it enacted the statute at issue here. The statutory findings explain that stalking, harassment, and threats have “an immediate and long-lasting impact on quality of life as well as risks to security and safety of the victim and persons close to the victim.” Colo. Rev. Stat. §§18–3–601(1)(f), 18–3–602(1) (2022). So the legislature passed the statute to “encourag[e] and authoriz[e] effective intervention” before the covered conduct could “escalate into behavior that has even more serious consequences.” §18–3–601(2). 2 The Court also cites Elonis v. United States , ante , at 8, 9, n. 4, which Counterman argues puts a “gloss” on obscenity doctrine, Tr. of Oral Arg. 6–7. While Elonis briefly discusses the necessary mens rea for a conviction under a federal obscenity statute, it does so only in dicta. 575 U.S. 723, 739–740 (2015). Elonis does not alter the doctrinal framework for assessing the constitutionality of obscenity laws: That case involves true threats, not obscenity, and it interprets a federal statute, not the Constitution. 3 Colorado’s test provides a good example. Juries must apply the following nonexhaustive factors to determine whether a statement is a true threat: “(1) the statement’s role in a broader exchange, if any, including surrounding events; (2) the medium or platform through which the statement was communicated, including any distinctive conventions or architectural features; (3) the manner in which the statement was conveyed ( e.g. , anonymously or not, privately or publicly); (4) the relationship between the speaker and recipient(s); and (5) the subjective reaction of the statement’s intended or foreseeable recipient(s).” People in the Interest of R. D. , 464 P.3d 717, 721–722 (Colo. 2020). 4 As Justice Sotomayor emphasizes, ante , at 10, n. 4, the plurality said that context informs “whether a particular cross burning is intended to intimidate ,” 538 U. S., at 367 (emphasis added). But this was a reference to the statutory requirements for a conviction, not the constitutional requirements—the Virginia statute covered only threats made “ ‘with the intent of intimidating any person or group of persons.’ ” Id. , at 348. At no point did the Court hold that the First Amendment demands specific intent; on the contrary, it recognized that a statement made “with the intent of placing the victim in fear of bodily harm or death” is “ a type of true threat.” Id. , at 360 (emphasis added).

The Supreme Court ruled that true threats of violence are not protected by the First Amendment and are punishable as crimes. In the case of Billy Counterman, who sent threatening messages to a local singer, the Court held that the First Amendment requires proof that the defendant had a subjective understanding of the threatening nature of his statements, with a mental state of recklessness being sufficient. The Court also emphasized the impact of such threats on the victim, noting that they caused fear and significantly disrupted her life. However, Justice Sotomayor dissented, arguing that the majority's decision allowed Counterman to prevail on a First Amendment defense despite communicating true threats.

Equal Protection

Pace v. Alabama

https://supreme.justia.com/cases/federal/us/106/583/

U.S. Supreme Court Pace v. Alabama, 106 U.S. 583 (1883) Pace v. Alabama Decided January 29, 1883 106 U.S. 583 ERROR TO THE SUPREME COURT OF THE STATE OF ALABAMA Syllabus Section 4189 of the Code of Alabama, prohibiting a white person and a negro from living with each other in adultery or fornication, is not in conflict with the Constitution of the United States, although it prescribes penalties more severe than those to which the parties would be subject, were they of the same race and color. Section 4184 of the Code of Alabama provides that "If any man and woman live together in adultery or fornication, each of them must, on the first conviction of the offense, be fined not less than one hundred dollars, and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than six months. On the second conviction for the offense with the same person, the offender must be fined not less than three hundred dollars, and may be imprisoned in the county jail, or sentenced to hard labor for the county for not more than twelve months, and for a third or any subsequent conviction with the same person, must be imprisoned in the penitentiary, or sentenced to hard labor for the county for two years." Section 4189 of the same code declares that "If any white person and any negro, or the descendant of any negro to the third generation, inclusive, though one ancestor of each generation was a white person, intermarry or live in adultery or fornication with each other, each of them must, on conviction, be imprisoned in the penitentiary or sentenced to hard labor for the county for not less than two nor more than seven years. " Page 106 U. S. 584 In November, 1881, the plaintiff in error, Tony Pace, a negro man, and Mary J. Cox, a white woman, were indicted under sec. 4189 in a circuit court of Alabama for living together in a state of adultery or fornication, and were tried, convicted, and sentenced, each to two years' imprisonment in the state penitentiary. On appeal to the supreme court of the state, the judgment was affirmed and he brought the case here on writ of error, insisting that the act under which he was indicted and convicted is in conflict with the concluding clause of the first section of the Fourteenth Amendment of the Constitution, which declares that no state shall "deny to any person the equal protection of the laws." MR. JUSTICE FIELD delivered the opinion of the Court, and after stating the case as above, proceeded as follows: The counsel of the plaintiff in error compares secs. 4184 and 4189 of the Code of Alabama, and assuming that the latter relates to the same offense as the former and prescribes a greater punishment for it because one of the parties is a negro or of negro descent, claims that a discrimination is made against the colored person in the punishment designated which conflicts with the clause of the Fourteenth Amendment prohibiting a state from denying to any person within its jurisdiction the equal protection of the laws. The counsel is undoubtedly correct in his view of the purpose of the clause of the amendment in question -- that it was to prevent hostile and discriminating state legislation against any person or class of persons. Equality of protection under the laws implies not only accessibility by each one, whatever his race, on the same terms with others to the courts of the country for the security of his person and property, but that in the administration of criminal justice, he shall not be subjected for the same offense to any greater or different punishment. Such was the view of Congress in the reenactment of the Civil Rights Act of May 31, 1870, c. 114, after the adoption of the amendment. That act, after providing that all persons within Page 106 U. S. 585 the jurisdiction of the United States shall have the same right, in every state and territory, to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, declares, in sec. 16, that they shall be subject "to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding." The defect in the argument of counsel consists in his assumption that any discrimination is made by the laws of Alabama in the punishment provided for the offense for which the plaintiff in error was indicted when committed by a person of the African race and when committed by a white person. The two sections of the Code cited are entirely consistent. The one prescribes generally a punishment for an offense committed between persons of different sexes; the other prescribes a punishment for an offense which can only be committed where the two sexes are of different races. There is in neither section any discrimination against either race. Section 4184 equally includes the offense when the persons of the two sexes are both white and when they are both black. Section 4189 applies the same punishment to both offenders, the white and the black. Indeed, the offense against which this latter section is aimed cannot be committed without involving the persons of both races in the same punishment. Whatever discrimination is made in the punishment prescribed in the two sections is directed against the offense designated, and not against the person of any particular color or race. The punishment of each offending person, whether white or black, is the same. Judgment affirmed.

The Supreme Court upheld an Alabama law that prohibited interracial adultery or fornication and prescribed harsher penalties compared to similar laws for same-race couples. The Court reasoned that the law did not violate the Fourteenth Amendment's Equal Protection Clause because it applied equally to both races involved in the interracial relationship, with both the white and black individuals receiving the same punishment. The Court emphasized that the law targeted a specific offense that could only occur between races, and the harsher punishment was due to the nature of the offense, not racial discrimination.

Free Speech

303 Creative LLC v. Elenis

https://supreme.justia.com/cases/federal/us/600/21-476/

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. SUPREME COURT OF THE UNITED STATES _________________ No. 21–476 _________________ 303 CREATIVE LLC, et al., PETITIONERS v. AUBREY ELENIS, et al. on writ of certiorari to the united states court of appeals for the tenth circuit [June 30, 2023] Justice Gorsuch delivered the opinion of the Court. Like many States, Colorado has a law forbidding businesses from engaging in discrimination when they sell goods and services to the public. Laws along these lines have done much to secure the civil rights of all Americans. But in this particular case Colorado does not just seek to ensure the sale of goods or services on equal terms. It seeks to use its law to compel an individual to create speech she does not believe. The question we face is whether that course violates the Free Speech Clause of the First Amendment. I A Through her business, 303 Creative LLC, Lorie Smith offers website and graphic design, marketing advice, and social media management services. Recently, she decided to expand her offerings to include services for couples seeking websites for their weddings. As she envisions it, her websites will provide couples with text, graphic arts, and videos to “celebrate” and “conve[y ]” the “details” of their “unique love story.” App. to Pet. for Cert. 182a, 187a, 198a. The websites will discuss how the couple met, explain their backgrounds, families, and future plans, and provide information about their upcoming wedding. All of the text and graphics on these websites will be “original,” “customized,” and “tailored” creations. Id. , at 187a. The websites will be “expressive in nature,” designed “to communicate a particular message.” Id. , at 181a. Viewers will know, too, “that the websites are [Ms. Smith’s] original artwork,” for the name of the company she owns and operates by herself will be displayed on every one. Id. , at 187a. While Ms. Smith has laid the groundwork for her new venture, she has yet to carry out her plans. She worries that, if she does so, Colorado will force her to express views with which she disagrees. Ms. Smith provides her website and graphic services to customers regardless of their race, creed, sex, or sexual orientation. Id. , at 184a. But she has never created expressions that contradict her own views for anyone—whether that means generating works that encourage violence, demean another person, or defy her religious beliefs by, say, promoting atheism. See ibid. ; see also Tr. of Oral Arg. 19–20. Ms. Smith does not wish to do otherwise now, but she worries Colorado has different plans. Specifically, she worries that, if she enters the wedding website business, the State will force her to convey messages inconsistent with her belief that marriage should be reserved to unions between one man and one woman. App. to Pet. for Cert. 177a–190a. Ms. Smith acknowledges that her views about marriage may not be popular in all quarters. But, she asserts, the First Amendment’s Free Speech Clause protects her from being compelled to speak what she does not believe. The Constitution, she insists, protects her right to differ. B To clarify her rights, Ms. Smith filed a lawsuit in federal district court. In that suit, she sought an injunction to prevent the State from forcing her to create wedding websites celebrating marriages that defy her beliefs. App. 303–305. To secure relief, Ms. Smith first had to establish her standing to sue. That required her to show “a credible threat” existed that Colorado would, in fact, seek to compel speech from her that she did not wish to produce. Susan B. Anthony List v. Driehaus , 573 U.S. 149 , 159 (2014). Toward that end, Ms. Smith began by directing the court to the Colorado Anti-Discrimination Act (CADA). That law defines a “public accommodation” broadly to include almost every public-facing business in the State. Colo. Rev. Stat. §24–34–601(1) (2022). In what some call its “Accommodation Clause,” the law prohibits a public accommodation from denying “the full and equal enjoyment” of its goods and services to any customer based on his race, creed, disability, sexual orientation, or other statutorily enumerated trait. §24–34–601(2)(a). Either state officials or private citizens may bring actions to enforce the law. §§24–34–306, 24–34–602(1). And a variety of penalties can follow. Courts can order fines up to $500 per violation. §24–34–602(1)(a). The Colorado Commission on Civil Rights can issue cease-and-desist orders, §24–34–306(9), and require violators to take various other “affirmative action[s].” §24–34–605; §24–34–306(9). In the past, these have included participation in mandatory educational programs and the submission of ongoing compliance reports to state officials. See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n , 584 U. S. ___, ___ (2018) (slip op., at 8).[ 1 ] In her lawsuit, Ms. Smith alleged that, if she enters the wedding website business to celebrate marriages she does endorse, she faces a credible threat that Colorado will seek to use CADA to compel her to create websites celebrating marriages she does not endorse. 6 F. 4th 1160, 1173–1174 (CA10 2021). As evidence, Ms. Smith pointed to Colorado’s record of past enforcement actions under CADA, including one that worked its way to this Court five years ago. See Masterpiece Cakeshop , 584 U. S., at ___ (slip op., at 9); see also App. 25–155 (discussing Colorado’s other past enforcement actions). To facilitate the district court’s resolution of the merits of her case, Ms. Smith and the State stipulated to a number of facts: bullet10Ms. Smith is “willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender,” and she “will gladly create custom graphics and websites” for clients of any sexual orientation. App. to Pet. for Cert. 184a. bullet10She will not produce content that “contradicts biblical truth” regardless of who orders it. Ibid. bullet10Her belief that marriage is a union between one man and one woman is a sincerely held religious conviction. Id. , at 179a. bullet10All of the graphic and website design services Ms. Smith provides are “expressive.” Id. , at 181a. bullet10The websites and graphics Ms. Smith designs are “original, customized” creations that “contribut[e] to the overall messages” her business conveys “through the websites” it creates. Id. , at 181a–182a. bullet10Just like the other services she provides, the wedding websites Ms. Smith plans to create “will be expressive in nature.” Id. , at 187a. bullet10Those wedding websites will be “customized and tailored” through close collaboration with individual couples, and they will “express Ms. Smith’s and 303 Creative’s message celebrating and promoting” her view of marriage. Id. , at 186a–187a. bullet10Viewers of Ms. Smith’s websites “will know that the websites are [Ms. Smith’s and 303 Creative’s] original artwork.” Id. , at 187a. bullet10To the extent Ms. Smith may not be able to provide certain services to a potential customer, “[t]here are numerous companies in the State of Colorado and across the nation that offer custom website design services.” Id. , at 190a. C Ultimately, the district court ruled against Ms. Smith. 405 F. Supp. 3d 907, 912 (Colo. 2019). So did the Tenth Circuit. 6 F. 4th, at 1168. For its part, the Tenth Circuit held that Ms. Smith had standing to sue. In that court’s judgment, she had established a credible threat that, if she follows through on her plans to offer wedding website services, Colorado will invoke CADA to force her to create speech she does not believe or endorse. Id ., at 1172–1175. The court pointed to the fact that “Colorado has a history of past enforcement against nearly identical conduct— i.e. , Masterpiece Cakeshop ”; that anyone in the State may file a complaint against Ms. Smith and initiate “a potentially burdensome administrative hearing” process; and that “Colorado [has] decline[d] to disavow future enforcement” proceedings against her. Id. , at 1174. Before us, no party challenges these conclusions. Turning to the merits, however, the Tenth Circuit held that Ms. Smith was not entitled to the injunction she sought. The court acknowledged that Ms. Smith’s planned wedding websites qualify as “pure speech” protected by the First Amendment. Id ., at 1176. As a result, the court reasoned, Colorado had to satisfy “strict scrutiny” before compelling speech from her that she did not wish to create. Id ., at 1178. Under that standard, the court continued, the State had to show both that forcing Ms. Smith to create speech would serve a compelling governmental interest and that no less restrictive alternative exists to secure that interest. Ibid . Ultimately, a divided panel concluded that the State had carried these burdens. As the majority saw it, Colorado has a compelling interest in ensuring “equal access to publicly available goods and services,” and no option short of coercing speech from Ms. Smith can satisfy that interest because she plans to offer “unique services” that are, “by definition, unavailable elsewhere.” Id. , at 1179–1180 (internal quotation marks omitted). Chief Judge Tymkovich dissented. He observed that “ensuring access to a particular person’s” voice, expression, or artistic talent has never qualified as “a compelling state interest” under this Court’s precedents. Id. , at 1203. Nor, he submitted, should courts depart from those precedents now. “Taken to its logical end,” Chief Judge Tymkovich warned, his colleagues’ approach would permit the government to “regulate the messages communicated by all artists”—a result he called “unprecedented.” Id ., at 1204. We granted certiorari to review the Tenth Circuit’s disposition. 595 U. S. ___ (2022). II The framers designed the Free Speech Clause of the First Amendment to protect the “freedom to think as you will and to speak as you think.” Boy Scouts of America v. Dale , 530 U.S. 640 , 660–661 (2000) (internal quotation marks omitted). They did so because they saw the freedom of speech “both as an end and as a means.” Whitney v. California , 274 U.S. 357 , 375 (1927) (Brandeis, J., concurring); see also 12 The Papers of James Madison 193–194 (C. Hobson & R. Rutland eds. 1979). An end because the freedom to think and speak is among our inalienable human rights. See, e.g. , 4 Annals of Cong. 934 (1794) (Rep. Madison). A means because the freedom of thought and speech is “indispensable to the discovery and spread of political truth.” Whitney , 274 U. S., at 375 (Brandeis, J., concurring). By allowing all views to flourish, the framers understood, we may test and improve our own thinking both as individuals and as a Nation. For all these reasons, “[i]f there is any fixed star in our constitutional constellation,” West Virginia Bd. of Ed. v. Barnette , 319 U.S. 624 , 642 (1943), it is the principle that the government may not interfere with “an uninhibited marketplace of ideas,” McCullen v. Coakley , 573 U.S. 464 , 476 (2014) (internal quotation marks omitted). From time to time, governments in this country have sought to test these foundational principles. In Barnette , for example, the Court faced an effort by the State of West Virginia to force schoolchildren to salute the Nation’s flag and recite the Pledge of Allegiance. If the students refused, the State threatened to expel them and fine or jail their parents. Some families objected on the ground that the State sought to compel their children to express views at odds with their faith as Jehovah’s Witnesses. When the dispute arrived here, this Court offered a firm response. In seeking to compel students to salute the flag and recite a pledge, the Court held, state authorities had “transcend[ed] constitutional limitations on their powers.” 319 U. S., at 642. Their dictates “invade[d] the sphere of intellect and spirit which it is the purpose of the First Amendment . . . to reserve from all official control.” Ibid. A similar story unfolded in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. , 515 U.S. 557 (1995). There, veterans organizing a St. Patrick’s Day parade in Boston refused to include a group of gay, lesbian, and bisexual individuals in their event. The group argued that Massachusetts’s public accommodations statute entitled it to participate in the parade as a matter of law. Id. , at 560–561. Lower courts agreed. Id. , at 561–566. But this Court reversed. Id. , at 581. Whatever state law may demand, this Court explained, the parade was constitutionally protected speech and requiring the veterans to include voices they wished to exclude would impermissibly require them to “alter the expressive content of their parade.” Id. , at 572–573. The veterans’ choice of what to say (and not say) might have been unpopular, but they had a First Amendment right to present their message undiluted by views they did not share. Then there is Boy Scouts of America v. Dale . In that case, the Boy Scouts excluded James Dale, an assistant scoutmaster, from membership after learning he was gay. Mr. Dale argued that New Jersey’s public accommodations law required the Scouts to reinstate him. 530 U. S., at 644–645. The New Jersey Supreme Court sided with Mr. Dale, id. , at 646–647, but again this Court reversed, id. , at 661. The decision to exclude Mr. Dale may not have implicated pure speech, but this Court held that the Boy Scouts “is an expressive association” entitled to First Amendment protection. Id. , at 656. And, the Court found, forcing the Scouts to include Mr. Dale would “interfere with [its] choice not to propound a point of view contrary to its beliefs.” Id. , at 654. As these cases illustrate, the First Amendment protects an individual’s right to speak his mind regardless of whether the government considers his speech sensible and well intentioned or deeply “misguided,” Hurley , 515 U. S., at 574, and likely to cause “anguish” or “incalculable grief,” Snyder v. Phelps , 562 U.S. 443 , 456 (2011). Equally, the First Amendment protects acts of expressive association. See, e.g. , Dale , 530 U. S., at 647–656; Hurley , 515 U. S., at 568–570, 579. Generally, too, the government may not compel a person to speak its own preferred messages. See Tinker v. Des Moines Independent Community School Dist. , 393 U.S. 503 , 505–506 (1969); see also, e.g. , Miami Herald Publishing Co. v. Tornillo , 418 U.S. 241 , 256 (1974); Wooley v. Maynard , 430 U.S. 705 , 714 (1977); National Institute of Family and Life Advocates v. Becerra , 585 U. S. ___, ___ (2018) ( NIFLA ) (slip op., at 8). Nor does it matter whether the government seeks to compel a person to speak its message when he would prefer to remain silent or to force an individual to include other ideas with his own speech that he would prefer not to include. See Hurley, 515 U. S., at 568–570, 576; see also Rumsfeld v. Forum for Academic & Institutional Rights, Inc. , 547 U.S. 47 , 63–64 (2006) ( FAIR ) (discussing cases). All that offends the First Amendment just the same. III Applying these principles to this case, we align ourselves with much of the Tenth Circuit’s analysis. The Tenth Circuit held that the wedding websites Ms. Smith seeks to create qualify as “pure speech” under this Court’s precedents. 6 F. 4th, at 1176. We agree. It is a conclusion that flows directly from the parties’ stipulations. They have stipulated that Ms. Smith’s websites promise to contain “images, words, symbols, and other modes of expression.” App. to Pet. for Cert. 181a. They have stipulated that every website will be her “original, customized” creation. Id. , at 181a–182a. And they have stipulated that Ms. Smith will create these websites to communicate ideas—namely, to “celebrate and promote the couple’s wedding and unique love story” and to “celebrat[e] and promot[e]” what Ms. Smith understands to be a true marriage. Id. , at 186a–187a. A hundred years ago, Ms. Smith might have furnished her services using pen and paper. Those services are no less protected speech today because they are conveyed with a “voice that resonates farther than it could from any soapbox.” Reno v. American Civil Liberties Union , 521 U.S. 844 , 870 (1997). All manner of speech—from “pictures, films, paintings, drawings, and engravings,” to “oral utterance and the printed word”—qualify for the First Amendment’s protections; no less can hold true when it comes to speech like Ms. Smith’s conveyed over the Internet. Kaplan v. California , 413 U.S. 115 , 119–120 (1973); see also Shurtleff v. Boston , 596 U. S. ___, ___–___ (2022) (slip op., at 7–8) (flags); Brown v. Entertainment Merchants Assn. , 564 U.S. 786 , 790 (2011) (video games); Hurley , 515 U. S., at 568–570 (parades); Ward v. Rock Against Racism , 491 U.S. 781 , 790 (1989) (music); Joseph Burstyn, Inc. v. Wilson , 343 U.S. 495 , 501–502 (1952) (movies). We further agree with the Tenth Circuit that the wedding websites Ms. Smith seeks to create involve her speech. 6 F. 4th, at 1181, and n. 5. Again, the parties’ stipulations lead the way to that conclusion. See App. to Pet. for Cert. 181a, 187a. As the parties have described it, Ms. Smith intends to “ve[t]” each prospective project to determine whether it is one she is willing to endorse. Id. , at 185a. She will consult with clients to discuss “their unique stories as source material.” Id. , at 186a. And she will produce a final story for each couple using her own words and her own “original artwork.” Id. , at 182a–183a. Of course, Ms. Smith’s speech may combine with the couple’s in the final product. But for purposes of the First Amendment that changes nothing. An individual “does not forfeit constitutional protection simply by combining multifarious voices” in a single communication. Hurley , 515 U. S., at 569. As surely as Ms. Smith seeks to engage in protected First Amendment speech, Colorado seeks to compel speech Ms. Smith does not wish to provide. As the Tenth Circuit observed, if Ms. Smith offers wedding websites celebrating marriages she endorses, the State intends to “forc[e her] to create custom websites” celebrating other marriages she does not. 6 F. 4th, at 1178. Colorado seeks to compel this speech in order to “excis[e] certain ideas or viewpoints from the public dialogue.” Turner Broadcasting System, Inc. v. FCC , 512 U.S. 633, 642 (1994). Indeed, the Tenth Circuit recognized that the coercive “[e]liminati[on]” of dissenting “ideas” about marriage constitutes Colorado’s “very purpose” in seeking to apply its law to Ms. Smith. 6 F. 4th, at 1178. We part ways with the Tenth Circuit only when it comes to the legal conclusions that follow. While that court thought Colorado could compel speech from Ms. Smith consistent with the Constitution, our First Amendment precedents laid out above teach otherwise. In Hurley , the Court found that Massachusetts impermissibly compelled speech in violation of the First Amendment when it sought to force parade organizers to accept participants who would “affec[t] the[ir] message.” 515 U. S., at 572. In Dale , the Court held that New Jersey intruded on the Boy Scouts’ First Amendment rights when it tried to require the group to “propound a point of view contrary to its beliefs” by directing its membership choices. 530 U. S., at 654. And in Barnette , this Court found impermissible coercion when West Virginia required schoolchildren to recite a pledge that contravened their convictions on threat of punishment or expulsion. 319 U. S., at 626–629. Here, Colorado seeks to put Ms. Smith to a similar choice: If she wishes to speak, she must either speak as the State demands or face sanctions for expressing her own beliefs, sanctions that may include compulsory participation in “remedial . . . training,” filing periodic compliance reports as officials deem necessary, and paying monetary fines. App. 120; supra , at 3. Under our precedents, that “is enough,” more than enough, to represent an impermissible abridgment of the First Amendment’s right to speak freely. Hurley , 515 U. S., at 574. Consider what a contrary approach would mean. Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—if the topic somehow implicates a customer’s statutorily protected trait. 6 F. 4th, at 1198 (Tymkovich, C. J., dissenting). Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The government could require “an unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal,” so long as they would make films or murals for other members of the public with different messages. Id ., at 1199. Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage. See Brief for Petitioners 26–27. Countless other creative professionals, too, could be forced to choose between remaining silent, producing speech that violates their beliefs, or speaking their minds and incurring sanctions for doing so. See, e.g. , Brief for Creative Professionals et al. as Amici Curiae 5–10; Brief for First Amendment Scholars as Amici Curiae 19–22. As our precedents recognize, the First Amendment tolerates none of that. In saying this much, we do not question the vital role public accommodations laws play in realizing the civil rights of all Americans. This Court has recognized that governments in this country have a “compelling interest” in eliminating discrimination in places of public accommodation. Roberts v. United States Jaycees , 468 U.S. 609 , 628 (1984); see also Hurley , 515 U. S., at 571–572. This Court has recognized, too, that public accommodations laws “vindicate the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.” Heart of Atlanta Motel, Inc. v. United States , 379 U.S. 241 , 250 (1964) (internal quotation marks omitted); see also, e.g. , Katzenbach v. McClung , 379 U.S. 294 (1964); Newman v. Piggie Park Enterprises, Inc. , 390 U.S. 400 (1968) ( per curiam ). Over time, governments in this country have expanded public accommodations laws in notable ways too. Statutes like Colorado’s grow from nondiscrimination rules the common law sometimes imposed on common carriers and places of traditional public accommodation like hotels and restaurants. Dale , 530 U. S., at 656–657. Often, these enterprises exercised something like monopoly power or hosted or transported others or their belongings much like bailees. See, e.g., Liverpool & Great Western Steam Co. v. Phenix Ins. Co. , 129 U.S. 397 , 437 (1889); Primrose v. Western Union Telegraph Co. , 154 U.S. 1 , 14 (1894). Over time, some States, Colorado included, have expanded the reach of these nondiscrimination rules to cover virtually every place of business engaged in any sales to the public. Compare 1885 Colo. Sess. Laws pp. 132–133 (a short list of entities originally bound by the State’s public accommodations law) with Colo. Rev. Stat. §24–34–601(1) (currently defining a public accommodation to include “any place of business engaged in any sales to the public”). Importantly, States have also expanded their laws to prohibit more forms of discrimination. Today, for example, approximately half the States have laws like Colorado’s that expressly prohibit discrimination on the basis of sexual orientation.[ 2 ] And, as we have recognized, this is entirely “unexceptional.” Masterpiece Cakeshop , 584 U. S., at ___ (slip op., at 10). States may “protect gay persons, just as [they] can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. And there are no doubt innumerable goods and services that no one could argue implicate the First Amendment.” Ibid. ; see also Hurley , 515 U. S., at 571–572; 6 F. 4th, at 1203 (Tymkovich, C. J., dissenting). Consistent with all of this, Ms. Smith herself recognizes that Colorado and other States are generally free to apply their public accommodations laws, including their provisions protecting gay persons, to a vast array of businesses. Reply Brief 15; see Tr. of Oral Arg. 45–46. At the same time, this Court has also recognized that no public accommodations law is immune from the demands of the Constitution. In particular, this Court has held, public accommodations statutes can sweep too broadly when deployed to compel speech. In Hurley , the Court commented favorably on Massachusetts’ public accommodations law, but made plain it could not be “applied to expressive activity” to compel speech. 515 U. S., at 571, 578. In Dale , the Court observed that New Jersey’s public accommodations law had many lawful applications but held that it could “not justify such a severe intrusion on the Boy Scouts’ rights to freedom of expressive association.” 530 U. S., at 659. And, once more, what was true in those cases must hold true here. When a state public accommodations law and the Constitution collide, there can be no question which must prevail. U. S. Const., Art. VI, cl. 2. Nor is it any answer, as the Tenth Circuit seemed to suppose, that Ms. Smith’s services are “unique.” 6 F. 4th, at 1180. In some sense, of course, her voice is unique; so is everyone’s. But that hardly means a State may coopt an individual’s voice for its own purposes. In Hurley , the veterans had an “enviable” outlet for speech; after all, their parade was a notable and singular event. 515 U. S., at 560, 577–578. In Dale , the Boy Scouts offered what some might consider a unique experience. 530 U. S., at 649–650. But in both cases this Court held that the State could not use its public accommodations statute to deny speakers the right “to choose the content of [their] own message[s].” Hurley , 515 U. S., at 573; see Dale , 530 U. S., at 650–656. Were the rule otherwise, the better the artist, the finer the writer, the more unique his talent, the more easily his voice could be conscripted to disseminate the government’s preferred messages. That would not respect the First Amendment; more nearly, it would spell its demise. IV Before us, Colorado appears to distance itself from the Tenth Circuit’s reasoning. Now, the State seems to acknowledge that the First Amendment does forbid it from coercing Ms. Smith to create websites endorsing same-sex marriage or expressing any other message with which she disagrees. See Brief for Respondents 12 (disclaiming any interest in “interfer[ing] with [Ms. Smith’s] choice to offer only websites of [her] own design”); see also Brief for United States as Amicus Curiae 19 (conceding that “constitutional concerns” would arise if Colorado “require[d] petitione[r] to design a website” that she “would not create or convey for any client”). Instead, Colorado devotes most of its efforts to advancing an alternative theory for affirmance. The State’s alternative theory runs this way. To comply with Colorado law, the State says, all Ms. Smith must do is repurpose websites she will create to celebrate marriages she does endorse for marriages she does not . She sells a product to some, the State reasons, so she must sell the same product to all. Brief for Respondents 15, 20. At bottom, Colorado’s theory rests on a belief that the Tenth Circuit erred at the outset when it said this case implicates pure speech. Id. , at 19. Instead, Colorado says, this case involves only the sale of an ordinary commercial product and any burden on Ms. Smith’s speech is purely “incidental.” Id. , at 18, 25–28; see Tr. of Oral Arg. 65, 97–98. On the State’s telling, then, speech more or less vanishes from the picture—and, with it, any need for First Amendment scrutiny. In places, the dissent seems to advance the same line of argument. Post , at 29 (opinion of Sotomayor, J.). This alternative theory, however, is difficult to square with the parties’ stipulations. As we have seen, the State has stipulated that Ms. Smith does not seek to sell an ordinary commercial good but intends to create “customized and tailored” speech for each couple. App. to Pet. for Cert. 181a, 187a. The State has stipulated that “[e]ach website 303 Creative designs and creates is an original, customized creation for each client.” Id ., at 181a. The State has stipulated, too, that Ms. Smith’s wedding websites “will be expressive in nature, using text, graphics, and in some cases videos to celebrate and promote the couple’s wedding and unique love story.” Id. , at 187a. As the case comes to us, then, Colorado seeks to compel just the sort of speech that it tacitly concedes lies beyond the reach of its powers. Of course, as the State emphasizes, Ms. Smith offers her speech for pay and does so through 303 Creative LLC, a company in which she is “the sole member-owner.” Id. , at 181a; see also post , at 33 (opinion of Sotomayor, J.) (emphasizing Ms. Smith’s “commercial” activity). But none of that makes a difference. Does anyone think a speechwriter loses his First Amendment right to choose for whom he works if he accepts money in return? Or that a visual artist who accepts commissions from the public does the same? Many of the world’s great works of literature and art were created with an expectation of compensation. Nor, this Court has held, do speakers shed their First Amendment protections by employing the corporate form to disseminate their speech. This fact underlies our cases involving everything from movie producers to book publishers to newspapers. See, e.g., Joseph Burstyn, Inc. , 343 U. S., at 497–503; Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd. , 502 U.S. 105 , 114–116 (1991); Grosjean v. American Press Co. , 297 U.S. 233 , 240–241, 249 (1936). Colorado next urges us to focus on the reason Ms. Smith refuses to offer the speech it seeks to compel. She refuses, the State insists, because she objects to the “protected characteristics” of certain customers. Brief for Respondents 16; see also post , at 26–27, 31–32 (opinion of Sotomayor, J.) (reciting the same argument). But once more, the parties’ stipulations speak differently. The parties agree that Ms. Smith “will gladly create custom graphics and websites for gay, lesbian, or bisexual clients or for organizations run by gay, lesbian, or bisexual persons so long as the custom graphics and websites” do not violate her beliefs. App. to Pet. for Cert. 184a. That is a condition, the parties acknowledge, Ms. Smith applies to “all customers.” Ibid. Ms. Smith stresses, too, that she has not and will not create expressions that defy any of her beliefs for any customer, whether that involves encouraging violence, demeaning another person, or promoting views inconsistent with her religious commitments. See Tr. of Oral Arg. 18–20. Nor, in any event, do the First Amendment’s protections belong only to speakers whose motives the government finds worthy; its protections belong to all, including to speakers whose motives others may find misinformed or offensive. See Federal Election Comm’n v. Wisconsin Right to Life, Inc. , 551 U.S. 449 , 468–469 (2007) (opinion of Roberts, C. J.) (observing that “a speaker’s motivation is entirely irrelevant” (internal quotation marks omitted)); National Socialist Party of America v. Skokie , 432 U.S. 43 , 43–44 (1977) ( per curiam ) (upholding free-speech rights of participants in a Nazi parade); Snyder , 562 U. S., at 456–457 (same for protestors of a soldier’s funeral).[ 3 ] Failing all else, Colorado suggests that this Court’s decision in FAIR supports affirmance. See also post , at 25–26 (opinion of Sotomayor, J.) (making the same argument). In FAIR , a group of schools challenged a law requiring them, as a condition of accepting federal funds, to permit military recruiters space on campus on equal terms with other potential employers. 547 U. S., at 51–52, 58. The only expressive activity required of the law schools, the Court found, involved the posting of logistical notices along these lines: “ ‘The U. S. Army recruiter will meet interested students in Room 123 at 11 a.m.’ ” Id ., at 61–62. And, the Court reasoned, compelled speech of this sort was “incidental” and a “far cry” from the speech at issue in our “leading First Amendment precedents [that] have established the principle that freedom of speech prohibits the government from telling people what they must say.” Ibid. ; see also NIFLA , 585 U. S., at ___ (slip op., at 8). It is a far cry from this case too. To be sure, our cases have held that the government may sometimes “requir[e] the dissemination of purely factual and uncontroversial information,” particularly in the context of “commercial advertising.” Hurley , 515 U. S., at 573 (internal quotation marks omitted); see also NIFLA , 585 U. S., at ___ (slip op., at 8); Riley v. National Federation of Blind of N. C., Inc. , 487 U.S. 781 , 795–796 (1988). But this case involves nothing like that. Here, Colorado does not seek to impose an incidental burden on speech. It seeks to force an individual to “utter what is not in [her] mind” about a question of political and religious significance. Barnette , 319 U. S., at 634. And that, FAIR reaffirmed, is something the First Amendment does not tolerate. No government, FAIR recognized, may affect a “speaker’s message” by “forc[ing]” her to “accommodate” other views, 547 U. S., at 63; no government may “ ‘alter’ ” the “ ‘expressive content’ ” of her message, id. , at 63–64 (alteration omitted); and no government may “interfer[e] with” her “desired message,” id. , at 64. V It is difficult to read the dissent and conclude we are looking at the same case. Much of it focuses on the evolution of public accommodations laws, post , at 7–13, and the strides gay Americans have made towards securing equal justice under law, post , at 14–17. And, no doubt, there is much to applaud here. But none of this answers the question we face today: Can a State force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead? When the dissent finally gets around to that question—more than halfway into its opinion—it reimagines the facts of this case from top to bottom. The dissent claims that Colorado wishes to regulate Ms. Smith’s “conduct,” not her speech. Post , at 24–29. Forget Colorado’s stipulation that Ms. Smith’s activities are “expressive,” App. to Pet. for Cert. 181a, and the Tenth Circuit’s conclusion that the State seeks to compel “pure speech,” 6 F. 4th, at 1176. The dissent chides us for deciding a pre-enforcement challenge. Post , at 23. But it ignores the Tenth Circuit’s finding that Ms. Smith faces a credible threat of sanctions unless she conforms her views to the State’s. 6 F. 4th, at 1172–1175. The dissent suggests (over and over again) that any burden on speech here is “incidental.” Post , at 24, 26–30, 32–33. All despite the Tenth Circuit’s finding that Colorado intends to force Ms. Smith to convey a message she does not believe with the “very purpose” of “[e]liminating . . . ideas” that differ from its own. 6 F. 4th, at 1178.[ 4 ] Nor does the dissent’s reimagination end there. It claims that, “for the first time in its history,” the Court “grants a business open to the public” a “right to refuse to serve members of a protected class.” Post , at 1; see also id. , at 26, n. 10, 35. Never mind that we do no such thing and Colorado itself has stipulated Ms. Smith will (as CADA requires) “work with all people regardless of . . . sexual orientation.” App. to Pet. for Cert. 184a. Never mind, too, that it is the dissent that would have this Court do something truly novel by allowing a government to coerce an individual to speak contrary to her beliefs on a significant issue of personal conviction, all in order to eliminate ideas that differ from its own. There is still more. The dissent asserts that we “sweep under the rug petitioners’ challenge to CADA’s Communication Clause.” Post , at 26. This despite the fact the parties and the Tenth Circuit recognized that Ms. Smith’s Communication Clause challenge hinges on her Accommodation Clause challenge. (So much so that Colorado devoted less than two pages at the tail end of its brief to the Communication Clause and the Tenth Circuit afforded it just three paragraphs in its free-speech analysis. See Brief for Respondents 44–45; 6 F. 4th, at 1182–1183.)[ 5 ] The dissent even suggests that our decision today is akin to endorsing a “separate but equal” regime that would allow law firms to refuse women admission into partnership, restaurants to deny service to Black Americans, or businesses seeking employees to post something like a “White Applicants Only” sign. Post , at 1, 16–21, 26, 28–29, 32, and n. 13, 37. Pure fiction all. In some places, the dissent gets so turned around about the facts that it opens fire on its own position. For instance: While stressing that a Colorado company cannot refuse “the full and equal enjoyment of [its] services” based on a customer’s protected status, post , at 27, the dissent assures us that a company selling creative services “to the public” does have a right “to decide what messages to include or not to include,” post , at 28. But if that is true, what are we even debating? Instead of addressing the parties’ stipulations about the case actually before us, the dissent spends much of its time adrift on a sea of hypotheticals about photographers, stationers, and others, asking if they too provide expressive services covered by the First Amendment. Post , at 27–29, 31–32, 37. But those cases are not this case. Doubtless, determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions. But this case presents no complication of that kind. The parties have stipulated that Ms. Smith seeks to engage in expressive activity. And the Tenth Circuit has recognized her services involve “pure speech.” See supra , at 6, 9. Nothing the dissent says can alter this—nor can it displace the First Amendment protections that follow. The dissent’s treatment of precedent parallels its handling of the facts. Take its remarkable suggestion that a government forcing an individual to create speech on weighty issues with which she disagrees—all, as the Tenth Circuit found, with the goal of “[e]liminating” views it does not share, 6 F. 4th, at 1178—only “incidental[ly]” burdens First Amendment liberties. Post , at 26–35 . Far from embracing a notion like that, our cases have rejected it time after time—including in the context of public accommodations laws. See Parts II–IV, supra ; FAIR , 547 U. S., at 61–64 (no government may affect a “speaker’s own message” by “forc[ing]” her to “accommodate” views she does not hold); Hurley , 515 U. S., at 563, 566 (using a public accommodations law to compel parade organizers to include speech they did not believe was no mere “ ‘incidental’ ” infringement on First Amendment rights); Dale , 530 U. S., at 659 (employing a public accommodations law to require the Boy Scouts to alter their admissions policies had more than “an incidental effect on protected speech”).[ 6 ] When it finally gets around to discussing these controlling precedents, the dissent offers a wholly unpersuasive attempt to distinguish them. The First Amendment protections furnished in Barnette , Hurley , and Dale , the dissent declares, were limited to schoolchildren and “nonprofit[s],” and it is “dispiriting” to think they might also apply to Ms. Smith’s “commercial” activity. Post , at 32–35. But our precedents endorse nothing like the limits the dissent would project on them. Instead, as we have seen, the First Amendment extends to all persons engaged in expressive conduct, including those who seek profit (such as speechwriters, artists, and website designers). See supra , at 16–17. If anything is truly dispiriting here, it is the dissent’s failure to take seriously this Court’s enduring commitment to protecting the speech rights of all comers, no matter how controversial—or even repugnant—many may find the message at hand. Finally, the dissent comes out and says what it really means: Once Ms. Smith offers some speech, Colorado “would require [her] to create and sell speech, notwithstanding [her] sincere objection to doing so”—and the dissent would force her to comply with that demand. Post , at 29–30. Even as it does so, however, the dissent refuses to acknowledge where its reasoning leads. In a world like that, as Chief Judge Tymkovich highlighted, governments could force “an unwilling Muslim movie director to make a film with a Zionist message,” they could compel “an atheist muralist to accept a commission celebrating Evangelical zeal,” and they could require a gay website designer to create websites for a group advocating against same-sex marriage, so long as these speakers would accept commissions from the public with different messages. 6 F. 4th, at 1199 (dissenting opinion). Perhaps the dissent finds these possibilities untroubling because it trusts state governments to coerce only “enlightened” speech. But if that is the calculation, it is a dangerous one indeed.[ 7 ] The dissent is right about one thing—“[w]hat a difference” time can make. See post , at 2 (internal quotation marks omitted). Eighty years ago in Barnette , this Court affirmed that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” 319 U. S., at 642. The Court did so despite the fact that the speech rights it defended were deeply unpopular; at the time, the world was at war and many thought respect for the flag and the pledge “essential for the welfare of the state.” Id ., at 662–663 (Frankfurter, J., dissenting); see also id. , at 636, 640 (majority opinion). Fifty years ago, this Court protected the right of Nazis to march through a town home to many Holocaust survivors and along the way espouse ideas antithetical to those for which this Nation stands. See Skokie , 432 U. S., at 43–44; supra , at 17–18. Five years ago, in a case the dissenters highlight at the outset of their opinion, the Court stressed that “it is not . . . the role of the State or its officials to prescribe what shall be offensive.” Masterpiece Cakeshop , 584 U. S., at ___ (slip op., at 16). And just days ago, Members of today’s dissent joined in holding that the First Amendment restricts how States may prosecute stalkers despite the “harm[ful],” “low-value,” and “upsetting” nature of their speech. Counterman v. Colorado , 600 U. S. ___, ___ (2023) (slip op., at 6); id. , at ___ (Sotomayor, J., concurring in part and concurring in judgment) (slip op., at 5). Today, however, the dissent abandons what this Court’s cases have recognized time and time again: A commitment to speech for only some messages and some persons is no commitment at all. By approving a government’s effort to “[e]liminat[e]” disfavored “ideas,” 6 F. 4th, at 1178, today’s dissent is emblematic of an unfortunate tendency by some to defend First Amendment values only when they find the speaker’s message sympathetic. But “[i]f liberty means anything at all, it means the right to tell people what they do not want to hear.” 6 F. 4th, at 1190 (Tymkovich, C. J., dissenting) (quoting G. Orwell). * In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. In the past, other States in Barnette , Hurley , and Dale have similarly tested the First Amendment’s boundaries by seeking to compel speech they thought vital at the time. But, as this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong. Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider “unattractive,” post , at 38 (opinion of Sotomayor, J.), “misguided, or even hurtful,” Hurley , 515 U. S., at 574. But tolerance, not coercion, is our Nation’s answer. The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands. Because Colorado seeks to deny that promise, the judgment is Reversed. Notes 1 In addition to the Accommodation Clause, CADA contains a “Com-munication Clause” that prohibits a public accommodation from “publish[ing] . . . any written . . . communication” indicating that a person will be denied “the full and equal enjoyment” of services or that he will be “unwelcome, objectionable, unacceptable, or undesirable” based on a pro-tected classification. Colo. Rev. Stat. §24–34–601(2)(a) (2022). The Communication Clause, Ms. Smith notes, prohibits any speech inconsistent with the Accommodation Clause. Because Colorado concedes that its authority to apply the Communication Clause to Ms. Smith stands or falls with its authority to apply the Accommodation Clause, see Brief for Respondents 44–45, we focus our attention on the Accommodation Clause. 2 Besides Colorado, this includes Cal. Civ. Code Ann. §51 (West 2020); Conn. Gen. Stat. §46a–81d (2021); Del. Code Ann., Tit. 6, §4504 (2019); Haw. Rev. Stat. §489–3 (Cum. Supp. 2021); Ill. Comp. Stat., ch. 775, §5/1–102 (West 2021); Iowa Code §216.7 (2022); Me. Rev. Stat. Ann., Tit. 5, §4591 (2013); Md. State Govt. Code Ann. §20–304 (2021); Mass. Gen. Laws, ch. 272, §98 (2021); Mich. Comp. Laws Ann. §37.2302 (West 2013); Minn. Stat. §363 A. 11 (2022); Nev. Rev. Stat. §651.070 (2017); N. H. Rev. Stat. Ann. §354–A:17 (2022); N. J. Stat. Ann. §10:5–12 (West 2013); N. M. Stat. Ann. §28–1–7 (2022); N. Y. Exec. Law Ann. §291(2) (West 2019); Ore. Rev. Stat. §659 A. 403 (2021); R. I. Gen. Laws §11–24–2 (2002); Vt. Stat. Ann., Tit. 9, §4502(a) (2020); Va. Code Ann. §2.2–3904 (2022); Wash. Rev. Code §49.60.215 (2022); Wis. Stat. §106.52 (2019–2020). See also Brief for Local Governments et al. as Amici Curiae 5 (noting that many local governments have enacted similar rules). 3 The dissent labels the distinction between status and message “amusing” and “embarrassing.” Post , at 32. But in doing so, the dissent ignores a fundamental feature of the Free Speech Clause. While it does not protect status-based discrimination unrelated to expression, generally it does protect a speaker’s right to control her own message—even when we may disapprove of the speaker’s motive or the message itself. The dissent’s derision is no answer to any of this. It ignores, too, the fact that Colorado itself has, in other contexts, distinguished status-based discrimination (forbidden) from the right of a speaker to control his own message (protected). See App. 131, 137, 140, 143–144, 149, 152, 154. (Truth be told, even the dissent acknowledges “th[is] distinction” elsewhere in its opinion. Post , at 31, n. 11.) Nor is the distinction unusual in societies committed both to nondiscrimination rules and free expression. See, e.g. , Lee v. Ashers Baking Co. Ltd. , [2018] UKSC 49, p. 14 (“The less favourable treatment was afforded to the message not to the man.”). Does the dissent really find all that amusing and embarrassing? 4 Perplexingly, too, the dissent suggests that, by recounting the Tenth Circuit’s conclusion on this score, we “misunderstan[d] this case” and “invo[ke] . . . Orwellian thought policing.” Post , at 34, n. 14. 5 Why does the dissent try to refocus this case around the Communication Clause? Perhaps because the moment one acknowledges the parties’ stipulations—and the fact Colorado seeks to use its Accommodation Clause to compel speech in order to ensure conformity to its own views on a topic of major significance—the First Amendment implications become obvious. As does the fact that our case is nothing like a typical application of a public accommodations law requiring an ordinary, non-expressive business to serve all customers or consider all applicants. Our decision today does not concern—much less endorse—anything like the “ ‘straight couples only’ ” notices the dissent conjures out of thin air. Post , at 26, n. 10. Nor do the parties discuss anything of the sort in their stipulations. 6 The dissent observes that public accommodations laws may sometimes touch on speech incidentally as they work to ensure ordinary, non-expressive goods and services are sold on equal terms. Cf. post , at 24–27 (citing Sorrell v. IMS Health Inc. , 564 U.S. 552 (2011); Rumsfeld v. FAIR , 547 U.S. 47 (2006); United States v. O’Brien , 391 U.S. 367 (1968)). But as Hurley observed, there is nothing “incidental” about an infringement on speech when a public accommodations law is applied “peculiar[ly]” to compel expressive activity. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. , 515 U.S. 557 , 572 (1995).The dissent notes that our case law has not sustained every First Amendment objection to an antidiscrimination rule, as with a law firm that sought to exclude women from partnership. Post , at 19–21 (citing Hishon v. King & Spalding , 467 U.S. 69 (1984); Roberts v. United States Jaycees , 468 U.S. 609 (1984)). But the dissent disregards Dale ’s holding that context matters and that very different considerations come into play when a law is used to force individuals to toe the government’s preferred line when speaking (or associating to express themselves) on matters of significance. Boy Scouts of America v. Dale , 530 U.S. 640 , 648–653 (2000). 7 Perhaps the dissent finds these possibilities untroubling for another reason. It asserts that CADA does not apply to “[m]any filmmakers, visual artists, and writers” because they do not “hold out” their services to the public. Post , at 27. But the dissent cites nothing to support its claim and instead, once more, fights the facts. As we have seen, Colorado’s law today applies to “ any place of business engaged in any sales to the public.” Colo. Rev. Stat. §24–34–601(1) (emphasis added); see also Part III, supra . And the dissent can hardly dispute that many artists and writers accept commissions from the public. Brief for Creative Professionals et al. as Amici Curiae 5–21. Certainly, Colorado does not advance anything like the dissent’s argument; it calls any exemption to its law for “artists” and others who provide “custom” services “unworkable.” Brief for Respondents 28–31 (internal quotation marks omitted). SUPREME COURT OF THE UNITED STATES _________________ No. 21–476 _________________ 303 CREATIVE LLC, et al., PETITIONERS v. AUBREY ELENIS, et al. on writ of certiorari to the united states court of appeals for the tenth circuit [June 30, 2023] Justice Sotomayor, with whom Justice Kagan and Justice Jackson join, dissenting. Five years ago, this Court recognized the “general rule” that religious and philosophical objections to gay marriage “do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n , 584 U. S. ___, ___ (2018) (slip op., at 9). The Court also recognized the “serious stigma” that would result if “purveyors of goods and services who object to gay marriages for moral and religious reasons” were “allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages.’ ” Id. , at ___ (slip op., at 12). Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class. Specifically, the Court holds that the First Amendment exempts a website-design company from a state law that prohibits the company from denying wedding websites to same-sex couples if the company chooses to sell those websites to the public. The Court also holds that the company has a right to post a notice that says, “ ‘no [wedding websites] will be sold if they will be used for gay marriages.’ ” Ibid. “What a difference five years makes.” Carson v. Makin , 596 U. S. ___, ___ (2022) (Sotomayor, J., dissenting) (slip op., at 5). And not just at the Court. Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities. New forms of inclusion have been met with reactionary exclusion. This is heartbreaking. Sadly, it is also familiar. When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims. Now the Court faces a similar test. A business open to the public seeks to deny gay and lesbian customers the full and equal enjoyment of its services based on the owner’s religious belief that same-sex marriages are “false.” The business argues, and a majority of the Court agrees, that because the business offers services that are customized and expressive, the Free Speech Clause of the First Amendment shields the business from a generally applicable law that prohibits discrimination in the sale of publicly available goods and services. That is wrong. Profoundly wrong. As I will explain, the law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment. Our Constitution contains no right to refuse service to a disfavored group. I dissent. I A A “public accommodations law” is a law that guarantees to every person the full and equal enjoyment of places of public accommodation without unjust discrimination. The American people, through their elected representatives, have enacted such laws at all levels of government: The federal Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990 prohibit discrimination by places of public accommodation on the basis of race, color, religion, national origin, or disability.[ 1 ] All but five States have analogous laws that prohibit discrimination on the basis of these and other traits, such as age, sex, sexual orientation, and gender identity.[ 2 ] And numerous local laws offer similar protections. The people of Colorado have adopted the Colorado Anti-Discrimination Act (CADA), which provides: “It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, gender identity, gender expression, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.” Colo. Rev. Stat. §24–34–601(2)(a). This provision, known as the Act’s “Accommodation Clause,” applies to any business engaged in sales “to the public.” §24–34–601(1). The Accommodation Clause does not apply to any “church, synagogue, mosque, or other place that is principally used for religious purposes.” Ibid. In addition, CADA contains what is referred to as the Act’s “Communication Clause,” which makes it unlawful to advertise that services “will be refused, withheld from, or denied,” or that an individual is “unwelcome” at a place of public accommodation, based on the same protected traits. §24–34–601(2)(a). In other words, just as a business open to the public may not refuse to serve customers based on race, religion, or sexual orientation, so too the business may not hang a sign that says, “No Blacks, No Muslims, No Gays.” A public accommodations law has two core purposes. First, the law ensures “ equal access to publicly available goods and services.” Roberts v. United States Jaycees , 468 U.S. 609 , 624 (1984) (emphasis added). For social groups that face discrimination, such access is vital. All the more so if the group is small in number or if discrimination against the group is widespread. Equal access is mutually beneficial: Protected persons receive “equally effective and meaningful opportunity to benefit from all aspects of life in America,” 135 Cong. Rec. 8506 (1989) (remarks of Sen. Harkin) (Americans with Disabilities Act), and “society,” in return, receives “the benefits of wide participation in political, economic, and cultural life.” Roberts , 468 U. S., at 625. Second, a public accommodations law ensures equal dignity in the common market. Indeed, that is the law’s “fundamental object”: “to vindicate ‘the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.’ ” Heart of Atlanta Motel, Inc. v. United States , 379 U.S. 241 , 250 (1964) (quoting S. Rep. No. 872, 88th Cong., 2d Sess., 16 (1964)). This purpose does not depend on whether goods or services are otherwise available. “ ‘Discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public because of his [social identity]. It is equally the inability to explain to a child that regardless of education, civility, courtesy, and morality he will be denied the right to enjoy equal treatment.’ ” 379 U. S., at 292 (Goldberg, J., concurring). When a young Jewish girl and her parents come across a business with a sign out front that says, “ ‘No dogs or Jews allowed,’ ”[ 3 ] the fact that another business might serve her family does not redress that “stigmatizing injury,” Roberts , 468 U. S., at 625. Or, put another way, “the hardship Jackie Robinson suffered when on the road” with his baseball team “was not an inability to find some hotel that would have him; it was the indignity of not being allowed to stay in the same hotel as his white teammates.” J. Oleske, The Evolution of Accommodation, 50 Harv. Civ. Rights-Civ. Lib. L. Rev. 99, 138 (2015). To illustrate, imagine a funeral home in rural Mississippi agrees to transport and cremate the body of an elderly man who has passed away, and to host a memorial lunch. Upon learning that the man’s surviving spouse is also a man, however, the funeral home refuses to deal with the family. Grief stricken, and now isolated and humiliated, the family desperately searches for another funeral home that will take the body. They eventually find one more than 70 miles away. See First Amended Complaint in Zawadski v. Brewer Funeral Services, Inc. , No. 55CI1–17–cv–00019 (C. C. Pearl River Cty., Miss., Mar. 7, 2017), pp. 4–7.[ 4 ] This ostracism, this otherness, is among the most distressing feelings that can be felt by our social species. K. Williams, Ostracism, 58 Ann. Rev. Psychology 425, 432–435 (2007). Preventing the “unique evils” caused by “acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages” is a compelling state interest “of the highest order.” Roberts , 468 U. S., at 624, 628; see Board of Directors of Rotary Int’l v. Rotary Club of Duarte , 481 U.S. 537 , 549 (1987). Moreover, a law that prohibits only such acts by businesses open to the public is narrowly tailored to achieve that compelling interest. The law “responds precisely to the substantive problem which legitimately concerns the State”: the harm from status-based discrimination in the public marketplace. Roberts , 468 U. S., at 629 (internal quotation marks omitted). This last aspect of a public accommodations law deserves special emphasis: The law regulates only businesses that choose to sell goods or services “to the general public,” e.g. , Va. Code Ann. §2.2–3904, or “to the public,” e.g. , Mich. Comp. Laws §37.2301. Some public accommodations laws, such as the federal Civil Rights Act, list establishments that qualify, but these establishments are ones open to the public generally. See, e.g. , 42 U. S. C. §2000a(b) (hotels, restaurants, gas stations, movie theaters, concert halls, sports arenas, stadiums). A public accommodations law does not force anyone to start a business, or to hold out the business’s goods or services to the public at large. The law also does not compel any business to sell any particular good or service. But if a business chooses to profit from the public market, which is established and maintained by the state, the state may require the business to abide by a legal norm of nondiscrimination. In particular, the state may ensure that groups historically marked for second-class status are not denied goods or services on equal terms. The concept of a public accommodation thus embodies a simple, but powerful, social contract: A business that chooses to sell to the public assumes a duty to serve the public without unjust discrimination. J. Singer, No Right To Exclude: Public Accommodations and Private Property, 90 Nw. U. L. Rev. 1283, 1298 (1996) (Singer). B The legal duty of a business open to the public to serve the public without unjust discrimination is deeply rooted in our history. The true power of this principle, however, lies in its capacity to evolve, as society comes to understand more forms of unjust discrimination and, hence, to include more persons as full and equal members of “the public.” 1 “At common law, innkeepers, smiths, and others who ‘made profession of a public employment,’ were prohibited from refusing, without good reason, to serve a customer.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. , 515 U.S. 557 , 571 (1995) (quoting Lane v. Cotton , 12 Mod. 472, 485, 88 Eng. Rep. 1458, 1465 (K. B. 1701) (Holt, C. J.)). “Public employment” meant a business “in which the owner has held himself out as ready to serve the public by exercising his trade.” Singer 1307; see, e.g. , Gisbourn v. Hurst , 1 Salk. 249, 91 Eng. Rep. 220 (K. B. 1710). Take, for example, Lane v. Cotton , “[t]he leading English case” on the subject “cited over and over again in the nineteenth century in the United States.” Singer 1304. There, Lord Chief Justice Holt explained: “[W]here-ever any subject takes upon himself a public trust for the benefit of the rest of his fellow-subjects, he is eo ipso bound to serve the subject in all the things that are within the reach and comprehension of such an office, under pain of an action against him. . . . If on the road a shoe fall off my horse, and I come to a smith to have one put on, and the smith refuse to do it, an action will lie against him, because he has made profession of a trade which is for the public good, and has thereby exposed and vested an interest of himself in all the King’s subjects that will employ him in the way of his trade.” Lane v. Cotton , 12 Mod., at 484, 88 Eng. Rep., at 1464. That is to say, a business’s duty to serve all comers derived from its choice to hold itself out as ready to serve the public. This holding-out rationale became firmly established in early American law. See 2 J. Kent, Commentaries on American Law 464–465 (1827); J. Story, Commentaries on the Law of Bailments §§495, 591 (1832); see also, e.g. , Markham v. Brown , 8 N. H. 523, 528 (1837); Jencks v. Coleman , 13 F. Cas. 442, 443 (No. 7,258) (CC RI 1835) (Story, J.); Dwight v. Brewster , 18 Mass. 50, 53 (1822). The majority is therefore mistaken to suggest that public accommodations or common carriers historically assumed duties to serve all comers because they enjoyed monopolies or otherwise had market power. Ante , at 13. Tellingly, the majority cites no common-law case espousing the monopoly rationale.[ 5 ] That is because nowhere in the relevant case law “is monopoly suggested as the distinguishing characteristic.” E. Adler, Business Jurisprudence, 28 Harv. L. Rev. 135, 156 (1914) (“A distinction based on monopoly would require proof that the common carrier had some kind of a monopoly which the private carrier did not have, or that ‘common’ was synonymous with ‘monopoly.’ The plain meaning of the cases is [instead that] the common was the public, the professional, the business carrier or other trader”).[ 6 ] 2 After the Civil War, some States codified the common-law duty of public accommodations to serve all comers. See M. Konvitz & T. Leskes, A Century of Civil Rights 155–157 (1961). Early state public accommodations statutes prohibited discrimination based on race or color. Yet the principle was at times stated more broadly: to provide “a remedy against any unjust discrimination to the citizen in all public places.” Ferguson v. Gies , 82 Mich. 358, 365, 46 N.W. 718, 720 (1890). In 1885, Colorado adopted “ ‘An Act to Protect All Citizens in Their Civil Rights,’ which guaranteed ‘full and equal enjoyment’ of certain public facilities to ‘all citizens,’ ‘regardless of race, color or previous condition of servitude.’ ” Masterpiece Cakeshop , 584 U. S., at ___–___ (slip op., at 4–5) (quoting 1885 Colo. Sess. Laws p. 132). “A decade later, the [State] expanded the requirement to apply to ‘all other places of public accommodation.’ ” 584 U. S., at ___ (slip op., at 5) (quoting 1895 Colo. Sess. Laws ch. 61, p. 139). Congress, too, passed the Civil Rights Act of 1875, which established “[t]hat all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement . . . applicable alike to citizens of every race and color, regardless of any previous condition of servitude.” Act of Mar. 1, 1875, §1, 18Stat. 336. This Court, however, struck down the federal Civil Rights Act of 1875 as unconstitutional. Civil Rights Cases , 109 U.S. 3 , 25 (1883). Southern States repealed public accommodations statutes and replaced them with Jim Crow laws. And state courts construed any remaining right of access in ways that furthered de jure and de facto racial segregation.[ 7 ] Full and equal enjoyment came to mean “separate but equal” enjoyment. The result of this backsliding was “the replacement of a general right of access with a general right to exclude . . . in order to promote a racial caste system.” Singer 1295. In time, the civil rights movement of the mid-20th century again demanded racial equality in public places. In 1963, two decades after then–Howard University law student Pauli Murray organized sit-ins at cafeterias in Washington, D. C., a diverse group of students and faculty from Tougaloo College sat at Woolworth’s lunch counter in Jackson, Mississippi. For doing so, they were violently attacked by a white mob. See A. Moody, Coming of Age in Mississippi 235–240 (1992). Around the country, similar acts of protest against racial injustice, some big and some small, sought “to create such a crisis and foster such a tension” that the country would be “forced to confront the issue.” M. King, Letter from a Birmingham Jail, Apr. 16, 1963. That year, Congress once more set out to eradicate “discrimination . . . in places of accommodation and public facilities,” Heart of Atlanta Motel , 379 U. S., at 246, notwithstanding this Court’s previous declaration of a federal public accommodations law to be unconstitutional. Congress believed, rightly, that discrimination in places of public accommodation—“the injustice of being arbitrarily denied equal access to those facilities and accommodations which are otherwise open to the general public”—had “no place” in this country, the country “of the melting pot, of equal rights, of one nation and one people.” S. Rep. No. 872, at 8–9 (quoting President Kennedy, June 19, 1963). It therefore passed Title II of the Civil Rights Act of 1964, which declares: “All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation . . . without discrimination . . . on the ground of race, color, religion, or national origin.” 42 U. S. C. §2000a. In enacting this landmark civil rights statute, Congress invoked the holding-out rationale from antebellum common law: “one who employed his private property for purposes of commercial gain by offering goods or services to the public must stick to his bargain.” S. Rep. No. 872, at 22; see also id. , at 9–10 (endorsing Lord Holt’s view in Lane v. Cotton ). This bargain, America would soon realize, had long excluded half of society. Women, though having won the right to vote half a century earlier, were not equal in public. Instead, a “separate-spheres ideology” had “assigned women to the home and men to the market.” E. Sepper & D. Dinner, Sex in Public, 129 Yale L. J. 78, 83, 88–90 (2019) (Sepper & Dinner). Women were excluded from restaurants, bars, civic and professional organizations, financial institutions, and sports. “Just as it did for the civil rights struggle, public accommodations served as kindling for feminist mobilization.” Id. , at 83, 97–104; cf. S. Mayeri, Reasoning From Race: Feminism, Law, and the Civil Rights Revolution 9–40 (2011). In response to a movement for women’s liberation, numerous States banned discrimination in public accommodations on the basis of “sex.” See Sepper & Dinner 104, nn. 145–147 (collecting statutes). Colorado was the first State to do so. See 1969 Colo. Sess. Laws ch. 74, p. 200. In the decades that followed, the Nation opened its eyes to another injustice. People with disabilities, though inherently full and equal members of the public, had been excluded from many areas of public life. This exclusion worked harms not only to disabled people’s standards of living, but to their dignity too. So Congress, responding once again to a social movement, this time against the subordination of people with disabilities, banned discrimination on that basis and secured by law disabled people’s equal access to public spaces. See S. Bagenstos, Law and the Contradictions of the Disability Rights Movement 13–20 (2009); R. Colker, The Disability Pendulum 22–68 (2005). The centerpiece of this political and social action was the Americans with Disabilities Act of 1990 (ADA). Title III of the ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U. S. C. §12182(a). Not only have public accommodations laws expanded to recognize more forms of unjust discrimination, such as discrimination based on race, sex, and disability, such laws have also expanded to include more goods and services as “public accommodations.” What began with common inns, carriers, and smiths has grown to include restaurants, bars, movie theaters, sports arenas, retail stores, salons, gyms, hospitals, funeral homes, and transportation networks. See nn. 1–2, supra ; L. Lerman & A. Sanderson, Discrimination in Access to Public Places: A Survey of State and Federal Public Accommodations Laws, 7 N. Y. U. Rev. L. & Soc. Change 215, 217 (1978) (“ ‘Public accommodations’ is a term of art which was developed by the drafters of discrimination laws to refer to [public] places other than schools, work places, and homes”). Today, laws like Colorado’s cover “any place of business engaged in any sales to the public and any place offering services . . . to the public.” Colo. Rev. Stat. §24–34–601(1); see also, e.g. , Ohio Rev. Code Ann. §4112.01(9). Numerous other States extend such protections to businesses offering goods or services to “the general public.” Ariz. Rev. Stat. Ann. §41–1441(2); see also, e.g. , Mass. Gen. Laws, ch. 272, §92A. This broader scope, though more inclusive than earlier state public accommodations laws, is in keeping with the fundamental principle—rooted in the common law, but alive and blossoming in statutory law—that the duty to serve without unjust discrimination is owed to everyone, and it extends to any business that holds itself out as ready to serve the public. If you have ever taken advantage of a public business without being denied service because of who you are, then you have come to enjoy the dignity and freedom that this principle protects. 3 Lesbian, gay, bisexual, and transgender (LGBT) people, no less than anyone else, deserve that dignity and freedom. The movement for LGBT rights, and the resulting expansion of state and local laws to secure gender and sexual minorities’ full and equal enjoyment of publicly available goods and services, is the latest chapter of this great American story. LGBT people have existed for all of human history. And as sure as they have existed, others have sought to deny their existence, and to exclude them from public life. Those who would subordinate LGBT people have often done so with the backing of law. For most of American history, there were laws criminalizing same-sex intimacy. Obergefell v. Hodges , 576 U.S. 644, 660–661 (2015). “Gays and lesbians were [also] prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate.” Id. , at 661. “These policies worked to create and reinforce the belief that gay men and lesbians” constituted “an inferior class.” Brief for Organization of American Historians as Amicus Curiae in Obergefell v. Hodges , O. T. 2014, No. 14–556, p. 3. State-sponsored discrimination was compounded by discrimination in public accommodations, though the two often went hand in hand. The police raided bars looking for gays and lesbians so often that some bars put up signs saying, “ ‘We Do Not Serve Homosexuals.’ ” Id. , at 13 (quoting G. Chauncey, Why Marriage 8 (2004)). LGBT discrimination in public accommodations has continued well into the 21st century. See UCLA School of Law Williams Institute, C. Mallory & B. Sears, Evidence of Discrimination in Public Accommodations Based on Sexual Orientation and Gender Identity (2016). A social system of discrimination created an environment in which LGBT people were unsafe. Who could forget the brutal murder of Matthew Shepard? Matthew was targeted by two men, tortured, tied to a buck fence, and left to die for who he was. See K. Drake, Gay Man Beaten, Burned and Left Tied to Fence, Casper Star-Tribune, Oct. 10, 1998, p. A1. Or the Pulse nightclub massacre, the second-deadliest mass shooting in U. S. history? See S. Stolberg, For Gays Across America, a Massacre Punctuates Fitful Gains, N. Y. Times, June 13, 2016, p. A1. Rates of violent victimization are still significantly higher for LGBT people, with transgender persons particularly vulnerable to attack. See Dept. of Justice, J. Truman & R. Morgan, Violent Victimization by Sexual Orientation and Gender Identity, 2017–2020 (2022). Determined not to live as “social outcasts,” Masterpiece Cakeshop , 584 U. S., at ___ (slip op., at 9), LGBT people have risen up. The social movement for LGBT rights has been long and complex. See L. Faderman, The Gay Revolution (2015) (Faderman). But if there ever was an “earthquake,” it occurred in the final days of June in 1969 at the Stonewall Inn in Greenwich Village. Id. , at 169. The Stonewall Inn was a gay bar with a “varied and lively clientele.” Id. , at 171. Its “ ‘unruly’ element” made it “an especially inviting target” for police raids. J. D’Emilio, Sexual Politics, Sexual Communities 231 (1983) (D’Emilio). “Patrons of the Stonewall tended to be young and nonwhite. Many were drag queens. . . . ” Ibid. Just before midnight on June 27, the New York police’s Public Morals Squad showed up to the bar and started making arrests. Drag queens, for example, were arrested for offenses like being “disguised” in “unnatural attire.” N. Y. Penal Law Ann. §240.35(4) (West 1967). What started out as a fairly routine police raid, however, became anything but. Outside the Stonewall Inn, patrons who had been thrown out started to form a crowd. “Jeers and catcalls arose from the onlookers when a paddy wagon departed with the bartender, the Stonewall’s bouncer, and three drag queens.” D’Emilio 231. “A few minutes later, an officer attempted to steer the last of the patrons, a lesbian, through the bystanders to a nearby patrol car.” Id. , at 231–232. When she started to struggle, protests erupted. They lasted into the night and continued into the next. News of the Stonewall protests “spread rapidly,” and “within a year gay liberation groups had sprung into existence on college campuses and in cities around the nation.” Id. , at 233. From there, the path to LGBT rights has not been quick or easy. Nor is it over. Still, change has come: change in social attitudes, in representation, and in legal institutions. Faderman 535–629. One significant change has been the addition of sexual orientation and gender identity to public accommodations laws. State and local legislatures took note of the failure of such laws to protect LGBT people and, in response, acted to guarantee them “all the privileges . . . of any other member of society.” Hearings on S. B. 200 before the House Judiciary Committee, 66th Gen. Assem., 2d Reg. Sess., 4, 11–12 (Colo. 2008) (remarks of Sen. Judd). Colorado thus amended its antidiscrimination law in 2008 to prohibit the denial of publicly available goods or services on the basis of “sexual orientation.” 2008 Colo. Sess. Laws. ch. 341, pp. 1596–1597. About half of the States now provide such protections.[ 8 ] It is “ ‘unexceptional’ ” that they may do so. Ante , at 13 (quoting Masterpiece Cakeshop , 584 U. S., at ___ (slip op., at 10)). “These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society.” Romer v. Evans , 517 U.S. 620 , 631 (1996). LGBT people do not seek any special treatment. All they seek is to exist in public. To inhabit public spaces on the same terms and conditions as everyone else. C Yet for as long as public accommodations laws have been around, businesses have sought exemptions from them. The civil rights and women’s liberation eras are prominent examples of this. Backlashes to race and sex equality gave rise to legal claims of rights to discriminate, including claims based on First Amendment freedoms of expression and association. This Court was unwavering in its rejection of those claims, as invidious discrimination “has never been accorded affirmative constitutional protections.” Norwood v. Harrison , 413 U.S. 455 , 470 (1973). In particular, the refusal to deal with or to serve a class of people is not an expressive interest protected by the First Amendment. 1 Opponents of the Civil Rights Act of 1964 objected that the law would force business owners to defy their beliefs. Cf. ante , at 3. They argued that the Act would deny them “any freedom to speak or to act on the basis of their religious convictions or their deep-rooted preferences for associating or not associating with certain classifications of people.” 110 Cong. Rec. 7778 (1964) (remarks of Sen. Tower). Congress rejected those arguments. Title II of the Act, in particular, did not invade “rights of privacy [or] of free association,” Congress concluded, because the establishments covered by the law were “those regularly held open to the public in general.” H. R. Rep. No. 914, 88th Cong., 1st Sess., pt. 2, p. 9 (1963); see also S. Rep. No. 872, at 92. Having failed to persuade Congress, opponents of Title II turned to the federal courts. In Heart of Atlanta Motel , one of several arguments made by the plaintiff motel owner was that Title II violated his Fifth Amendment due process rights by “tak[ing] away the personal liberty of an individual to run his business as he sees fit with respect to the selection and service of his customers.” Brief for Appellant, O. T. 1964, No. 515, p. 32. This Court disagreed, based on “a long line of cases” holding that “prohibition of racial discrimination in public accommodations” did not “interfer[e] with personal liberty.” 379 U. S., at 260. In Katzenbach v. McClung , 379 U.S. 294 (1964), the owner of Ollie’s Barbecue (Ollie McClung) likewise argued that Title II’s application to his business violated the “personal rights of persons in their personal convictions” to deny services to Black people. Brief for Appellees, O. T. 1964, No. 543, p. 33 (citing, inter alia , West Virginia Bd. of Ed. v. Barnette , 319 U.S. 624 (1943)). Note that McClung did not refuse to transact with Black people. Oh, no. He was willing to offer them take-out service at a separate counter. See Brief for NAACP Legal Defense and Educational Fund, Inc., as Amicus Curiae in Katzenbach v. McClung , p. 4, n. 5. Only integrated table service, you see, violated McClung’s core beliefs. So he claimed a constitutional right to offer Black people a limited menu of his services. This Court rejected that claim, citing its decision in Heart of Atlanta Motel . See 379 U. S., at 298, n. 1. Next is Newman v. Piggie Park Enterprises, Inc. , 390 U.S. 400 (1968) ( per curiam ), in which the owner of a chain of drive-in establishments asserted that requiring him to “contribut[e]” to racial integration in any way violated the First Amendment by interfering with his religious liberty. App. to Pet. for Cert., O. T. 1967, No. 339, p. 21a. Title II could not be applied to his business, he argued, because that would “ ‘controven[e] the will of God.’ ” 390 U. S., at 402–403, n. 5. The Court found this argument “patently frivolous.” Ibid. Last but not least is Runyon v. McCrary , 427 U.S. 160 (1976), a case the majority studiously avoids. In Runyon , the Court confronted the question whether “commercially operated” schools had a First Amendment right to exclude Black children, notwithstanding a federal law against racial discrimination in contracting. Id. , at 168; see 42 U. S. C. §1981. The schools in question offered “educational services” for sale to “the general public.” 427 U. S., at 172. They argued that the law, as applied to them, violated their First Amendment rights of “freedom of speech, and association.” Pet. for Cert., O. T. 1976, No. 75–62, p. 6; see also Brief for Petitioners, O. T. 1976, No. 75–62, p. 12 (“Freedom to teach, to express ideas”). The Court, however, reasoned that the schools’ “ practice ” of denying educational services to racial minorities was not shielded by the First Amendment, for two reasons: First, “the Constitution places no value on discrimination.” 427 U. S., at 176 (alterations and internal quotations marks omitted). Second, the government’s regulation of conduct did not “inhibit” the schools’ ability to teach its preferred “ideas or dogma.” Ibid. (internal quotation marks omitted). Requiring the schools to abide by an antidiscrimination law was not the same thing as compelling the schools to express teachings contrary to their sincerely held “belief that racial segregation is desirable.” Ibid . 2 First Amendment rights of expression and association were also raised to challenge laws against sex discrimination. In Roberts v. United States Jaycees , the United States Jaycees sought an exemption from a Minnesota law that forbids discrimination on the basis of sex in public accommodations. The U. S. Jaycees was a civic organization, which until then had denied admission to women. The organization alleged that applying the law to require it to include women would violate its “members’ constitutional rights of free speech and association.” 468 U. S., at 615. “The power of the state to change the membership of an organization is inevitably the power to change the way in which it speaks ,” the Jaycees argued. Brief for Appellee, O. T. 1983, No. 83–724, p. 19 (emphasis added). Thus, “the right of the Jaycees to decide its own membership” was “inseparable,” in its view, “from its ability to freely express itself.” Ibid. This Court took a different view. The Court held that the “application of the Minnesota statute to compel the Jaycees to accept women” did not infringe the organization’s First Amendment “freedom of expressive association.” Roberts , 468 U. S., at 622. That was so because the State’s public accommodations law did “not aim at the suppression of speech” and did “not distinguish between prohibited and permitted activity on the basis of viewpoint.” Id. , at 623–624. If the State had applied the law “for the purpose of hampering the organization’s ability to express its views,” that would be a different matter. Id. , at 624 (emphasis added). “Instead,” the law’s purpose was “eliminating discrimination and assuring [the State’s] citizens equal access to publicly available goods and services.” Ibid. “That goal,” the Court reasoned, “was unrelated to the suppression of expression” and “plainly serves compelling state interests of the highest order.” Ibid. Justice O’Connor concurred in part and concurred in the judgment. See id. , at 631. She stressed that the U. S. Jaycees was a predominantly commercial entity open to the public. And she took the view that there was a First Amendment “dichotomy” between rights of commercial and expressive association. Id. , at 634. The State, for example, was “free to impose any rational regulation” on commercial transactions themselves. “A shopkeeper,” Justice O’Connor explained, “has no constitutional right to deal only with persons of one sex.” Ibid. To wit, the Court had just decided in Hishon v. King & Spalding , 467 U.S. 69 , 78 (1984), that a law partnership had no constitutional right to discriminate on the basis of sex in violation of Title VII. The law partnership was an act of association. Its services (legal advocacy) were expressive; indeed, they consisted of speech. So the law firm argued that requiring it to consider a woman for the partnership violated its First Amendment rights “of free expression” and “of commercial association.” Brief for Respondent, O. T. 1983, No. 82–940, pp. 14–18. This Court rejected that argument. The application of Title VII did not “infringe constitutional rights of expression or association,” the Court held, because compliance with Title VII did not “inhibi[t]” the partnership’s ability to advocate for certain “ideas and beliefs.” 467 U. S., at 78 (internal quotation marks omitted); see also supra , at 19 (discussing Runyon , 427 U. S., at 176). The Court reiterated: “ ‘[I]nvidious private discrimination . . . has never been accorded affirmative constitutional protections.’ ” 467 U. S., at 78 (quoting Norwood , 413 U. S., at 470). II Battling discrimination is like “battling the Hydra.” Shelby County v. Holder , 570 U.S. 529 , 560 (2013) (Ginsburg, J., dissenting). Whenever you defeat “one form of . . . discrimination,” another “spr[ings] up in its place.” Ibid. Time and again, businesses and other commercial entities have claimed constitutional rights to discriminate. And time and again, this Court has courageously stood up to those claims—until today. Today, the Court shrinks. A business claims that it would like to sell wedding websites to the general public, yet deny those same websites to gay and lesbian couples. Under state law, the business is free to include, or not to include, any lawful message it wants in its wedding websites. The only thing the business may not do is deny whatever websites it offers on the basis of sexual orientation. This Court, however, grants the business a broad exemption from state law and allows the business to post a notice that says: Wedding websites will be refused to gays and lesbians. The Court’s decision, which conflates denial of service and protected expression, is a grave error. A 303 Creative LLC is a limited liability company that sells graphic and website designs for profit. Lorie Smith is the company’s founder and sole member-owner. Smith believes same-sex marriages are “false,” because “ ‘God’s true story of marriage’ ” is a story of a “ ‘union between one man and one woman.’ ” Brief for Petitioners 4, 6–7 (quoting App. to Pet. for Cert. 188a, 189a); Tr. of Oral Arg. 36, 40–41. Same-sex marriage, according to her, “violates God’s will” and “harms society and children.” App. to Pet. for Cert. 186a. 303 Creative has never sold wedding websites. Smith now believes, however, that “God is calling her ‘to explain His true story about marriage.’ ” Brief for Petitioners 7 (quoting App. to Pet. for Cert. 188a). For that reason, she says, she wants her for-profit company to enter the wedding website business. There is only one thing: Smith would like her company to sell wedding websites “to the public,” App. to Pet. for Cert. 189a; Colo. Rev. Stat. §24–34–601(1), but not to same-sex couples. She also wants to post a notice on the company’s website announcing this intent to discriminate. App. to Pet. for Cert. 188a–189a. In Smith’s view, “it would violate [her] sincerely held religious beliefs to create a wedding website for a same-sex wedding because, by doing so, [she] would be expressing a message celebrating and promoting a conception of marriage that [she] believe[s] is contrary to God’s design.” Id. , at 189a. Again, Smith’s company has never sold a wedding website to any customer. Colorado, therefore, has never had to enforce its antidiscrimination laws against the company. As the majority puts it, however, Smith “worries that, if she enters the wedding website business, the State will force her to convey messages inconsistent with her belief that marriage should be reserved to unions between one man and one woman.” Ante , at 2. So Smith and her company, the petitioners here, sued the State in federal court. They sought a court decree giving them a special exemption from CADA’s Accommodation Clause (which, remember, makes it unlawful for a business to hold itself out to the public yet deny to any individual, because of sexual orientation, the full and equal enjoyment of the business’s goods or services, see supra , at 3–4) and CADA’s Communication Clause (which makes it unlawful to advertise that goods or services will be denied because of sexual orientation, see supra , at 4). App. 303–304. The breadth of petitioners’ pre-enforcement challenge is astounding. According to Smith, the Free Speech Clause of the First Amendment entitles her company to refuse to sell any “websites for same-sex weddings,” even though the company plans to offer wedding websites to the general public. Ibid. ; see also Brief for Petitioners 22–23, and n. 2; Tr. of Oral Arg. 37–38. In other words, the company claims a categorical exemption from a public accommodations law simply because the company sells expressive services. The sweeping nature of this claim should have led this Court to reject it. B The First Amendment does not entitle petitioners to a special exemption from a state law that simply requires them to serve all members of the public on equal terms. Such a law does not directly regulate petitioners’ speech at all, and petitioners may not escape the law by claiming an expressive interest in discrimination. The First Amendment likewise does not exempt petitioners from the law’s prohibition on posting a notice that they will deny goods or services based on sexual orientation. 1 This Court has long held that “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.” Sorrell v. IMS Health Inc. , 564 U.S. 552 , 567 (2011). “Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct.” Rumsfeld v. Forum for Academic and Institutional Rights, Inc. , 547 U.S. 47 , 62 (2006) ( FAIR ). This principle explains “why an ordinance against outdoor fires might forbid burning a flag and why antitrust laws can prohibit agreements in restraint of trade.” Sorrell , 564 U. S., at 567 (citation and internal quotation marks omitted). Consider United States v. O’Brien , 391 U.S. 367 (1968). In that case, the Court upheld the application of a law against the destruction of draft cards to a defendant who had burned his draft card to protest the Vietnam War. The protester’s conduct was indisputably expressive. Indeed, it was political expression, which lies at the heart of the First Amendment. Whitney v. California , 274 U.S. 357 , 375 (1927) (Brandeis, J., concurring). Yet the O’Brien Court focused on whether the Government’s interest in regulating the conduct was to burden expression. Because it was not, the regulation was subject to lesser constitutional scrutiny. 391 U. S., at 376–377, 381–382; Clark v. Community for Creative Non-Violence , 468 U.S. 288 , 294, 299 (1984). The O’Brien standard is satisfied if a regulation is unrelated to the suppression of expression and “ ‘promotes a substantial government interest that would be achieved less effectively absent the regulation.’ ” FAIR , 547 U. S., at 67 (quoting United States v. Albertini , 472 U.S. 675 , 689 (1985)).[ 9 ] FAIR confronted the interaction between this principle and an equal-access law. The law at issue was the Solomon Amendment, which prohibits an institution of higher education in receipt of federal funding from denying a military recruiter “the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access.” 547 U. S., at 55; see 10 U. S. C. §983(b). A group of law schools challenged the Solomon Amendment based on their sincere objection to the military’s “Don’t Ask, Don’t Tell” policy. For those who are too young to know, “Don’t Ask, Don’t Tell” was a homophobic policy that barred openly LGBT people from serving in the military. LGBT people could serve only if they kept their identities secret. The idea was that their open existence was a threat to the military. The law schools in FAIR claimed that the Solomon Amendment infringed the schools’ First Amendment freedom of speech. The schools provided recruiting assistance in the form of emails, notices on bulletin boards, and flyers. 547 U. S., at 60–61. As the Court acknowledged, those services “clearly involve speech.” Id. , at 60. And the Solomon Amendment required “schools offering such services to other recruiters” to provide them equally “on behalf of the military,” even if the school deeply objected to creating such speech. Id. , at 61. But that did not transform the equal provision of services into “compelled speech” of the kind barred by the First Amendment, because the school’s speech was “only ‘compelled’ if, and to the extent, the school provides such speech for other recruiters.” Id. , at 62. Thus, any speech compulsion was “plainly incidental to the Solomon Amendment’s regulation of conduct.” Ibid. 2 The same principle resolves this case. The majority tries to sweep under the rug petitioners’ challenge to CADA’s Communication Clause, so I will start with it. Recall that Smith wants to post a notice on her company’s homepage that the company will refuse to sell any website for a same-sex couple’s wedding. This Court, however, has already said that “a ban on race-based hiring may require employers to remove ‘White Applicants Only’ signs.” Sorrell , 564 U. S., at 567 (quoting FAIR , 547 U. S., at 62; some internal quotation marks omitted); see Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations , 413 U.S. 376 , 389 (1973). So petitioners concede that they are not entitled to an exemption from the Communication Clause unless they are also entitled to an exemption from the Accommodation Clause. Brief for Petitioners 34–35. That concession is all but fatal to their argument, because it shows that even “pure speech” may be burdened incident to a valid regulation of conduct.[ 10 ] CADA’s Accommodation Clause and its application here are valid regulations of conduct. It is well settled that a public accommodations law like the Accommodation Clause does not “target speech or discriminate on the basis of its content.” Hurley , 515 U. S., at 572. Rather, “the focal point of its prohibition” is “on the act of discriminating against individuals in the provision of publicly available goods, privileges, and services.” Ibid. (emphasis added). The State confirms this reading of CADA. The law applies only to status-based refusals to provide the full and equal enjoyment of whatever services petitioners choose to sell to the public. See Brief for Respondents 15–18. Crucially, the law “does not dictate the content of speech at all, which is only ‘compelled’ if, and to the extent,” the company offers “such speech” to other customers. FAIR , 547 U. S., at 62. Colorado does not require the company to “speak [the State’s] preferred message.” Ante , at 19. Nor does it prohibit the company from speaking the company’s preferred message. The company could, for example, offer only wedding websites with biblical quotations describing marriage as between one man and one woman. Brief for Respondents 15. (Just as it could offer only t-shirts with such quotations.) The company could also refuse to include the words “Love is Love” if it would not provide those words to any customer. All the company has to do is offer its services without regard to customers’ protected characteristics. Id. , at 15–16. Any effect on the company’s speech is therefore “incidental” to the State’s content-neutral regulation of conduct. FAIR , 547 U. S., at 62; see Hurley , 515 U. S., at 572–573. Once these features of the law are understood, it becomes clear that petitioners’ freedom of speech is not abridged in any meaningful sense, factual or legal. Petitioners remain free to advocate the idea that same-sex marriage betrays God’s laws. FAIR , 547 U. S., at 60; Hishon , 467 U. S., at 78; Runyon , 427 U. S., at 176. Even if Smith believes God is calling her to do so through her for-profit company, the company need not hold out its goods or services to the public at large. Many filmmakers, visual artists, and writers never do. (That is why the law does not require Steven Spielberg or Banksy to make films or art for anyone who asks. But cf. ante , at 12, 23–24.) Finally, and most importantly, even if the company offers its goods or services to the public, it remains free under state law to decide what messages to include or not to include. To repeat (because it escapes the majority): The company can put whatever “harmful” or “low-value” speech it wants on its websites. It can “tell people what they do not want to hear.” Ante , at 25 (internal quotation marks and brackets omitted). All the company may not do is offer wedding websites to the public yet refuse those same websites to gay and lesbian couples. See Runyon , 427 U. S., at 176 (distinguishing between schools’ ability to express their bigoted view “that racial segregation is desirable” and the schools’ proscribable “ practice of excluding racial minorities”). Another example might help to illustrate the point. A professional photographer is generally free to choose her subjects. She can make a living taking photos of flowers or celebrities. The State does not regulate that choice. If the photographer opens a portrait photography business to the public, however, the business may not deny to any person, because of race, sex, national origin, or other protected characteristic, the full and equal enjoyment of whatever services the business chooses to offer. That is so even though portrait photography services are customized and expressive. If the business offers school photos, it may not deny those services to multiracial children because the owner does not want to create any speech indicating that interracial couples are acceptable. If the business offers corporate headshots, it may not deny those services to women because the owner believes a woman’s place is in the home. And if the business offers passport photos, it may not deny those services to Mexican Americans because the owner opposes immigration from Mexico. The same is true for sexual-orientation discrimination. If a photographer opens a photo booth outside of city hall and offers to sell newlywed photos captioned with the words “Just Married,” she may not refuse to sell that service to a newlywed gay or lesbian couple, even if she believes the couple is not, in fact, just married because in her view their marriage is “false.” Tr. of Oral Arg. 36, 40–41. 3 Because any burden on petitioners’ speech is incidental to CADA’s neutral regulation of commercial conduct, the regulation is subject to the standard set forth in O’Brien . That standard is easily satisfied here because the law’s application “promotes a substantial government interest that would be achieved less effectively absent the regulation.” FAIR , 547 U. S., at 67 (internal quotation marks omitted). Indeed, this Court has already held that the State’s goal of “eliminating discrimination and assuring its citizens equal access to publicly available goods and services” is “unrelated to the suppression of expression” and “plainly serves compelling state interests of the highest order.” Roberts , 468 U. S., at 624. The Court has also held that by prohibiting only “ acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages,” the law “responds precisely to the substantive problem which legitimately concerns the State and abridges no more speech . . . than is necessary to accomplish that purpose.” Id. , at 628–629 (emphasis added; internal quotation marks omitted); see supra , at 4–7. C The Court reaches the wrong answer in this case because it asks the wrong questions. The question is not whether the company’s products include “elements of speech.” FAIR , 547 U. S., at 61. (They do.) The question is not even whether CADA would require the company to create and sell speech, notwithstanding the owner’s sincere objection to doing so, if the company chooses to offer “such speech” to the public. Id. , at 62. (It would.) These questions do not resolve the First Amendment inquiry any more than they did in FAIR . Instead, the proper focus is on the character of state action and its relationship to expression. Because Colorado seeks to apply CADA only to the refusal to provide same-sex couples the full and equal enjoyment of the company’s publicly available services, so that the company’s speech “is only ‘compelled’ if, and to the extent,” the company chooses to offer “such speech” to the public, any burden on speech is “plainly incidental” to a content-neutral regulation of conduct. Ibid. The majority attempts to distinguish this clear holding of FAIR by suggesting that the compelled speech in FAIR was “incidental” because it was “logistical” ( e.g. , “The U. S. Army recruiter will meet interested students in Room 123 at 11 a.m.”). Ante , at 18 (internal quotation marks omitted). This attempt fails twice over. First, the law schools in FAIR alleged that the Solomon Amendment required them to create and disseminate speech propagating the military’s message, which they deeply objected to, and to include military speakers in on- and off-campus forums (if the schools provided equally favorable services to other recruiters). 547 U. S., at 60–61; App. 27 and Brief for Respondents 5–8 in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. , O. T. 2005, No. 04–1152. The majority simply skips over the Court’s key reasoning for why any speech compulsion was nevertheless “incidental” to the Amendment’s regulation of conduct: It would occur only “if, and to the extent,” the regulated entity provided “such speech” to others. FAIR , 547 U. S., at 62. Likewise in O’Brien , the reason the burden on O’Brien’s expression was incidental was not because his message was factual or uncontroversial. But cf. ante , at 19. O’Brien burned his draft card to send a political message, and the burden on his expression was substantial. Still, the burden was “incidental” because it was ancillary to a regulation that did not aim at expression. 391 U. S., at 377. Second, the majority completely ignores the categorical nature of the exemption claimed by petitioners. Petitioners maintain, as they have throughout this litigation, that they will refuse to create any wedding website for a same-sex couple. Even an announcement of the time and place of a wedding (similar to the majority’s example from FAIR ) abridges petitioners’ freedom of speech, they claim, because “the announcement of the wedding itself is a concept that [Smith] believes to be false.” Tr. of Oral Arg. 41. Indeed, petitioners here concede that if a same-sex couple came across an opposite-sex wedding website created by the company and requested an identical website, with only the names and date of the wedding changed, petitioners would refuse. Id. , at 37–38.[ 11 ] That is status-based discrimination, plain and simple. Oblivious to this fact, the majority insists that petitioners discriminate based on message, not status. The company, says the majority, will not sell same-sex wedding websites to anyone. Ante , at 17. It will sell only opposite-sex wedding websites; that is its service. Petitioners, however, “cannot define their service as ‘opposite-sex wedding [websites]’ any more than a hotel can recast its services as ‘whites-only lodgings.’ ” Telescope Media Group v. Lucero , 936 F.3d 740, 769 (CA8 2019) (Kelly, J., concurring in part and dissenting in part). To allow a business open to the public to define the expressive quality of its goods or services to exclude a protected group would nullify public accommodations laws. It would mean that a large retail store could sell “passport photos for white people.” The majority protests that Smith will gladly sell her goods and services to anyone, including same-sex couples . Ante , at 2, 17. She just will not sell websites for same-sex weddings . Apparently, a gay or lesbian couple might buy a wedding website for their straight friends. This logic would be amusing if it were not so embarrassing.[ 12 ] I suppose the Heart of Atlanta Motel could have argued that Black people may still rent rooms for their white friends. Smith answers that she will sell other websites for gay or lesbian clients. But then she, like Ollie McClung, who would serve Black people take-out but not table service, discriminates against LGBT people by offering them a limited menu.[ 13 ] This is plain to see, for all who do not look the other way. The majority, however, analogizes this case to Hurley and Boy Scouts of America v. Dale , 530 U.S. 640 (2000). The law schools in FAIR likewise relied on Hurley and Dale to argue that the Solomon Amendment violated their free-speech rights. FAIR confirmed, however, that a neutral regulation of conduct imposes an incidental burden on speech when the regulation grants a right of equal access that requires the regulated party to provide speech only if, and to the extent, it provides such speech for others. Supra , at 25–26, 29–30. Hurley and Dale , by contrast, involved “peculiar” applications of public accommodations laws, not to “the act of discriminating . . . in the provision of publicly available goods” by “clearly commercial entities,” but rather to private, nonprofit expressive associations in ways that directly burdened speech. Hurley , 515 U. S., at 572 (private parade); Dale , 530 U. S., at 657 (Boy Scouts). The Court in Hurley and Dale stressed that the speech burdens in those cases were not incidental to prohibitions on status-based discrimination because the associations did not assert that “mere acceptance of a member from a particular group would impair [the association’s] message.” Dale , 530 U. S., at 653; see also ibid. (reasoning that Dale was excluded for being a gay rights activist, not for being gay); ibid. (explaining that in Hurley , “the parade organizers did not wish to exclude the GLIB [Irish-American gay, lesbian, and bisexual group] members because of their sexual orientations, but because they wanted to march behind a GLIB banner”); Hurley , 515 U. S., at 572–573. Here, the opposite is true. 303 Creative LLC is a “clearly commercial entit[y].” Dale , 530 U. S., at 657. The company comes under the regulation of CADA only if it sells services to the public, and only if it denies the equal enjoyment of such services because of sexual orientation. The State confirms that the company is free to include or not to include any message in whatever services it chooses to offer. Supra , at 26–28. And the company confirms that it plans to engage in status-based discrimination. Supra , at 22–23, 31–32. Therefore, any burden on the company’s expression is incidental to the State’s content-neutral regulation of commercial conduct. Frustrated by this inescapable logic, the majority dials up the rhetoric, asserting that “Colorado seeks to compel [the company’s] speech in order to excise certain ideas or viewpoints from the public dialogue.” The State’s “very purpose in seeking to apply its law,” in the majority’s view, is “the coercive elimination of dissenting ideas about marriage.” Ante , at 10–11 (internal quotation marks and brackets omitted).[ 14 ] That is an astonishing view of the law. It is contrary to the fact that a law requiring public-facing businesses to accept all comers “is textbook viewpoint neutral,” Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez , 561 U.S. 661 , 695 (2010); contrary to the fact that the Accommodation Clause and the State’s application of it here allows Smith to include in her company’s goods and services whatever “dissenting views about marriage” she wants; and contrary to this Court’s clear holdings that the purpose of a public accommodations law, as applied to the commercial act of discrimination in the sale of publicly available goods and services, is to ensure equal access to and equal dignity in the public marketplace, supra , at 4–6. So it is dispiriting to read the majority suggest that this case resembles West Virginia Bd. of Ed. v. Barnette , 319 U.S. 624 (1943). A content-neutral equal-access policy is “a far cry” from a mandate to “endorse” a pledge chosen by the Government. FAIR , 547 U. S., at 62. This Court has said “it trivializes the freedom protected in Barnette ” to equate the two. Ibid. Requiring Smith’s company to abide by a law against invidious discrimination in commercial sales to the public does not conscript her into espousing the government’s message. It does not “invad[e]” her “sphere of intellect” or violate her constitutional “right to differ.” Ante , at 2, 7 (internal quotation marks omitted). All it does is require her to stick to her bargain: “The owner who hangs a shingle and offers her services to the public cannot retreat from the promise of open service; to do so is to offer the public marked money. It is to convey the promise of a free and open society and then take the prize away from the despised few.” J. Singer, We Don’t Serve Your Kind Here: Public Accommodations and the Mark of Sodom, 95 B. U. L. Rev. 929, 949 (2015). III Today is a sad day in American constitutional law and in the lives of LGBT people. The Supreme Court of the United States declares that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class. The Court does so for the first time in its history. By issuing this new license to discriminate in a case brought by a company that seeks to deny same-sex couples the full and equal enjoyment of its services, the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status. In this way, the decision itself inflicts a kind of stigmatic harm, on top of any harm caused by denials of service. The opinion of the Court is, quite literally, a notice that reads: “Some services may be denied to same-sex couples.” “The truth is,” these “affronts and denials” “are intensely human and personal.” S. Rep. No. 872, at 15 (internal quotation marks omitted). Sometimes they may “harm the physical body, but always they strike at the root of the human spirit, at the very core of human dignity.” Ibid. To see how, imagine a same-sex couple browses the public market with their child. The market could be online or in a shopping mall. Some stores sell products that are customized and expressive. The family sees a notice announcing that services will be refused for same-sex weddings. What message does that send? It sends the message that we live in a society with social castes. It says to the child of the same-sex couple that their parents’ relationship is not equal to others’. And it reminds LGBT people of a painful feeling that they know all too well: There are some public places where they can be themselves, and some where they cannot. K. Yoshino, Covering 61–66 (2006). Ask any LGBT person, and you will learn just how often they are forced to navigate life in this way. They must ask themselves: If I reveal my identity to this co-worker, or to this shopkeeper, will they treat me the same way? If I hold the hand of my partner in this setting, will someone stare at me, harass me, or even hurt me? It is an awful way to live. Freedom from this way of life is the very object of a law that declares: All members of the public are entitled to inhabit public spaces on equal terms. This case cannot be understood outside of the context in which it arises. In that context, the outcome is even more distressing. The LGBT rights movement has made historic strides, and I am proud of the role this Court recently played in that history. Today, however, we are taking steps backward. A slew of anti-LGBT laws have been passed in some parts of the country,[ 15 ] raising the specter of a “bare . . . desire to harm a politically unpopular group.” Romer , 517 U. S., at 634 (internal quotation marks omitted). This is especially unnerving when “for centuries there have been powerful voices to condemn” this small minority. Lawrence v. Texas , 539 U.S. 558 , 571 (2003). In this pivotal moment, the Court had an opportunity to reaffirm its commitment to equality on behalf of all members of society, including LGBT people. It does not do so. Although the consequences of today’s decision might be most pressing for the LGBT community, the decision’s logic cannot be limited to discrimination on the basis of sexual orientation or gender identity. The decision threatens to balkanize the market and to allow the exclusion of other groups from many services. A website designer could equally refuse to create a wedding website for an interracial couple, for example. How quickly we forget that opposition to interracial marriage was often because “ ‘Almighty God . . . did not intend for the races to mix.’ ” Loving v. Virginia , 388 U.S. 1 , 3 (1967). Yet the reason for discrimination need not even be religious, as this case arises under the Free Speech Clause. A stationer could refuse to sell a birth announcement for a disabled couple because she opposes their having a child. A large retail store could reserve its family portrait services for “traditional” families. And so on.[ 16 ] Wedding websites, birth announcements, family portraits, epitaphs. These are not just words and images. They are the most profound moments in a human’s life. They are the moments that give that life personal and cultural meaning. You already heard the story of Bob and Jack, the elderly gay couple forced to find a funeral home more than an hour away. Supra , at 5–6, and n. 4. Now hear the story of Cynthia and Sherry, a lesbian couple of 13 years until Cynthia died from cancer at age 35. When Cynthia was diagnosed, she drew up a will, which authorized Sherry to make burial arrangements. Cynthia had asked Sherry to include an inscription on her headstone, listing the relationships that were important to her, for example, “daughter, granddaughter, sister, and aunt.” After Cynthia died, the cemetery was willing to include those words, but not the words that described Cynthia’s relationship to Sherry: “ ‘beloved life partner.’ ” N. Knauer, Gay and Lesbian Elders 102 (2011). There are many such stories, too many to tell here. And after today, too many to come. I fear that the symbolic damage of the Court’s opinion is done. But that does not mean that we are powerless in the face of the decision. The meaning of our Constitution is found not in any law volume, but in the spirit of the people who live under it. Every business owner in America has a choice whether to live out the values in the Constitution. Make no mistake: Invidious discrimination is not one of them. “[D]iscrimination in any form and in any degree has no justifiable part whatever in our democratic way of life.” Korematsu v. United States , 323 U.S. 214 , 242 (1944) (Murphy, J., dissenting). “It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States.” Ibid. The unattractive lesson of the majority opinion is this: What’s mine is mine, and what’s yours is yours. The lesson of the history of public accommodations laws is altogether different. It is that in a free and democratic society, there can be no social castes. And for that to be true, it must be true in the public market. For the “promise of freedom” is an empty one if the Government is “powerless to assure that a dollar in the hands of [one person] will purchase the same thing as a dollar in the hands of a[nother].” Jones v. Alfred H. Mayer Co. , 392 U.S. 409 , 443 (1968). Because the Court today retreats from that promise, I dissent. Notes 1 See 42 U. S. C. §2000a et seq. (Title II of Civil Rights Act of 1964); 42 U. S. C. §12181 et seq. (Title III of Americans with Disabilities Act of 1990). 2 See Alaska Stat. §18.80.230 (2023); Ariz. Rev. Stat. Ann. §41–1442 (2017); Ark. Code Ann. §16–123–107 (Supp. 2021); Cal. Civ. Code Ann. §51 (West 2020); Colo. Rev. Stat. §24–34–601 (2022); Conn. Gen. Stat. §§46a–64, 46a–81d (Cum. Supp. 2023); Del. Code Ann., Tit. 6, §4504 (Cum. Supp. 2022); Fla. Stat. §§413.08, 760.08 (2022); Haw. Rev. Stat. §489–3 (Cum. Supp. 2021); Idaho Code Ann. §67–5909 (2020); Ill. Comp. Stat., ch. 775, §5/1–102 (West Supp. 2021); Ind. Code §22–9–1–2 (2022); Iowa Code §216.7 (2023); Kan. Stat. Ann. §44–1001 (2021); Ky. Rev. Stat. Ann. §§344.120, 344.145 (West 2018); La. Rev. Stat. Ann. §51:2247 (West Cum. Supp. 2023); Me. Rev. Stat. Ann., Tit. 5, §4591 (Cum. Supp. 2023); Md. State Govt. Code Ann. §20–304 (2021); Mass. Gen. Laws, ch. 272, §98 (2020); Mich. Comp. Laws §§37.1102, 37.2302 (1981), as amended, 2023 Mich. Pub. Acts no. 6 ( sine die ); Minn. Stat. §363 A. 11 (2022); Mo. Rev. Stat. §213.065 (Cum. Supp. 2021); Mont. Code Ann. §49–2–304 (2021); Neb. Rev. Stat. §20–134 (2022); Nev. Rev. Stat. §651.070 (2017); N. H. Rev. Stat. Ann. §354–A:17 (2022); N. J. Stat. Ann. §10:5–12 (West Cum. Supp. 2023); N. M. Stat. Ann. §28–1–7 (2022); N. Y. Civ. Rights Law Ann. §40 (West 2019); N. D. Cent. Code Ann. §14–02.4–14 (2017); Ohio Rev. Code Ann. §4112.02 (Lexis Supp. 2023); Okla. Stat., Tit. 25, §1402 (2011); Ore. Rev. Stat. §659 A. 403 (2021); Pa. Stat. Ann., Tit. 43, §953 (Purdon 2020); R. I. Gen. Laws §11–24–2 (2002); S. C. Code Ann. §45–9–10 (2016); S. D. Codified Laws §20–13–23 (2016); Tenn. Code Ann. §4–21–501 (2021); Utah Code §13–7–3 (2022); Vt. Stat. Ann., Tit. 9, §4502 (2020); Va. Code Ann. §2.2–3904 (2022); Wash. Rev. Code §49.60.215 (2022); W. Va. Code Ann. §5–11–2 (Lexis 2022); Wis. Stat. §106.52 (2019–2020); Wyo. Stat. Ann. §6–9–101 (2021). 3 Hearings on the Nomination of Ruth Bader Ginsburg To Be Associate Justice of the Supreme Court of the United States before the Senate Committee on the Judiciary, 103d Cong., 1st Sess., 139 (1993). 4 The men in this story are Robert “Bob” Huskey and John “Jack” Zawadski. Bob and Jack were a loving couple of 52 years. They moved from California to Colorado to care for Bob’s mother, then to Wisconsin to farm apples and teach special education, and then to Mississippi to retire. Within weeks of this Court’s decision in Obergefell v. Hodges , 576 U.S. 644 (2015), Bob and Jack got married. They were 85 and 81 years old on their wedding day. A few months later, Bob’s health took a turn. He died the following spring. When Bob’s family was forced to find an alternative funeral home more than an hour from where Bob and Jack lived, the lunch in Bob’s memory had to be canceled. Jack died the next year. 5 For example, a case on which the majority relies found that it could “shortly dispos[e]” of the question whether a steamship company was a common carrier because the company was “the owner of a general ship, carrying goods for hire . . . and perform[ing]” that service “regular[ly].” Liverpool & Great Western Steam Co. v. Phenix Ins. Co. , 129 U.S. 397 , 437 (1889). No showing of market power was required. Ibid. 6 Nor does “host[ing] or transport[ing] others and their belongings,” ante , at 13, explain the right of access. Smiths, for instance, did not always practice their trade by holding property for others. And even when they did, any duty of care resulting from such bailment cannot explain the duty to serve all comers, which logically must be assumed beforehand. See Lane v. Cotton , 12 Mod. 472, 484, 88 Eng. Rep. 1458, 1464 (K. B. 1701) (Holt, C. J.). That duty instead came from somewhere else, and the weight of authority indicates that it came from a business’s act of holding itself out to the public as ready to serve anyone who would hire it. Singer 1304–1330; 3 W. Blackstone, Commentaries on the Laws of England 164 (1768); J. Story, Commentaries on the Law of Bailments §§495, 591 (1837); 1 T. Parsons, Law of Contracts 639, 643, 649 (1853). 7 Compare, e.g. , Chesapeake, O. & S. R. Co. v. Wells , 85 Tenn. 613, 615, 4 S.W. 5 (1887) (rejecting Ida B. Wells’s claim that she was denied “ ‘accommodations equal in all respects,’ ” when she tried to enter a train car “set apart for white ladies and their gentlemen” on account of tobacco smoke in her car, and was forcibly removed), with Memphis & C. R. Co. v. Benson , 85 Tenn. 627, 632, 4 S.W. 5, 7 (1887) (accepting that a white man would be permitted to ride standing in the ladies’ car on account of tobacco smoke in his car). 8 See Cal. Civ. Code Ann. §51; Colo. Rev. Stat. §24–34–601; Conn. Gen. Stat. §46a–81d; Del. Code Ann., Tit. 6, §4504; Haw. Rev. Stat. §489–3; Ill. Comp. Stat., ch. 775, §5/1–102; Iowa Code §216.7; Me. Rev. Stat. Ann., Tit. 5, §4591; Md. State Govt. Code Ann. §20–304; Mass. Gen. Laws, ch. 272, §98; Mich. Comp. Laws §37.2302, as amended; Minn. Stat. §363 A. 11; Nev. Rev. Stat. §651.070; N. H. Rev. Stat. Ann. §354–A:17; N. J. Stat. Ann. §10:5–12; N. M. Stat. Ann. §28–1–7; N. Y. Civ. Rights Law Ann. §40; Ore. Rev. Stat. §659 A. 403; R. I. Gen. Laws §11–24–2; Vt. Stat. Ann., Tit. 9, §4502; Va. Code Ann. §2.2–3904; Wash. Rev. Code §49.60.215; Wis. Stat. §106.52. 9 The majority commits a fundamental error in suggesting that a law does not regulate conduct if it ever applies to expressive activities. See ante , at 19, 22. This would come as a great surprise to the O’Brien Court. 10 The majority appears to find this discussion of the Communication Clause upsetting. See ante , at 20–21, and n. 5. It is easy to understand why: The Court’s prior First Amendment cases clearly explain that a ban on discrimination may require a business to take down a sign that expresses the business owner’s intent to discriminate. See, e.g. , FAIR , 547 U. S., at 62. This principle is deeply inconsistent with the majority’s position. Thus, a “straight couples only” notice, like the one the Court today allows, see App. to Pet. for Cert. 188a–189a, is itself a devastating indictment of the majority’s logic. 11 Because petitioners have never sold a wedding website to anyone, the record contains only a mockup website. The mockup confirms what you would expect: The website provides details of the event, a form to RSVP, a gift registry, etc. See App. 51–72. The customization of these elements pursuant to a content-neutral regulation of conduct does not unconstitutionally intrude upon any protected expression of the website designer. Yet Smith claims a First Amendment right to refuse to provide any wedding website for a same-sex couple. Her claim therefore rests on the idea that her act of service is itself a form of protected expression. In granting Smith’s claim, the majority collapses the distinction between status-based and message-based refusals of service. The history shows just how profoundly wrong that is. See Runyon v. McCrary , 427 U.S. 160 , 176 (1976); Hishon v. King & Spalding , 467 U.S. 69 , 78 (1984); Roberts v. United States Jaycees , 468 U.S. 609 , 622–629 (1984). 12 The majority tacitly acknowledges the absurdity. At the start of its opinion, it explains that Smith “decided to expand her offerings to include services for couples seeking websites for their weddings.” Ante , at 1 (emphasis added). 13 What is “ ‘embarrassing’ ” about this reasoning is not, as the Court claims, the “distinction between status and message.” Ante , at 18, n. 3. It is petitioners’ contrivance, embraced by the Court, that a prohibition on status-based discrimination can be avoided by asserting that a group can always buy services on behalf of others, or else that the group can access a “separate but equal” subset of the services made available to everyone else. 14 The majority’s repeated invocation of this Orwellian thought policing is revealing of just how much it misunderstands this case. See ante , at 10–12, 19–20, 24–25 (claiming that the State seeks to “eliminate ideas” and that it will punish Smith unless she “conforms her views to the State’s”). 15 These laws variously censor discussion of sexual orientation and gender identity in schools, see, e.g. , 2023 Ky. Acts pp. 775–779, and ban drag shows in public, see 2023 Tenn. Pub. Acts ch. 2. Yet we are told that the real threat to free speech is that a commercial business open to the public might have to serve all members of the public. 16 The potential implications of the Court’s logic are deeply troubling. Would Runyon v. McCrary have come out differently if the schools had argued that accepting Black children would have required them to create original speech, like lessons, report cards, or diplomas, that they deeply objected to? What if the law firm in Hishon v. King & Spalding had argued that promoting a woman to the partnership would have required it to alter its speech, like letterhead or court filings, in ways that it would rather not? Once you look closely, “compelled speech” (in the majority’s facile understanding of that concept) is everywhere.

The Supreme Court case 303 Creative LLC v. Elenis considers the conflict between Colorado's anti-discrimination law and the First Amendment right to free speech. Lorie Smith, the owner of 303 Creative LLC, offers website and graphic design services and wanted to expand into creating wedding websites for couples. She refused to serve same-sex couples, citing her religious beliefs, and challenged Colorado's anti-discrimination law on free speech grounds. The Court ruled in favor of Smith, arguing that Colorado's law compelled her to create speech that contradicted her beliefs, thus violating her right to free speech. This case sets a precedent for businesses to potentially override anti-discrimination laws by claiming that serving certain customers would require them to create speech contrary to their beliefs. Dissenting opinions highlight the potential implications for protecting minority groups from discrimination and the distinction between regulating conduct and compelling speech.

Free Speech

National Rifle Association of America v. Vullo

https://supreme.justia.com/cases/federal/us/602/22-842/

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. SUPREME COURT OF THE UNITED STATES _________________ No. 22–842 _________________ NATIONAL RIFLE ASSOCIATION OF AMERICA, PETITIONER v. MARIA T. VULLO on writ of certiorari to the united states court of appeals for the second circuit [May 30, 2024] Justice Sotomayor delivered the opinion of the Court. Six decades ago, this Court held that a government entity’s “threat of invoking legal sanctions and other means of coercion” against a third party “to achieve the suppression” of disfavored speech violates the First Amendment. Bantam Books, Inc. v. Sullivan , 372 U.S. 58 , 67 (1963). Today, the Court reaffirms what it said then: Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors. Petitioner National Rifle Association (NRA) plausibly alleges that respondent Maria Vullo did just that. As superintendent of the New York Department of Financial Services, Vullo allegedly pressured regulated entities to help her stifle the NRA’s pro-gun advocacy by threatening enforcement actions against those entities that refused to disassociate from the NRA and other gun-promotion advocacy groups. Those allegations, if true, state a First Amendment claim. I A Because this case comes to us at the motion-to-dismiss stage, the Court assumes the truth of “well-pleaded factual allegations” and “reasonable inference[s]” therefrom. Ashcroft v. Iqbal , 556 U.S. 662 , 678–679 (2009). Unless stated otherwise, the allegations aver as follows: The New York Department of Financial Services (DFS) oversees insurance companies and financial services institutions doing business in the State. See N. Y. Fin. Servs. Law Ann. §201(a) (West 2012). DFS can initiate investigations and civil enforcement actions against regulated entities, and can refer potential criminal violations to the State’s attorney general for prosecution. §§301(b), (c)(4). The DFS-regulated entities in this case are insurers that had business relationships with the NRA. Since 2000, the NRA has offered a variety of insurance programs as a benefit to its members. The NRA contracted with affiliates of Lockton Companies, LLC (Lockton), to administer the various policies of these affinity insurance programs, which Chubb Limited (Chubb) and Lloyd’s of London (Lloyd’s) would then underwrite. In return, the NRA received a percentage of its members’ premium payments. One of the NRA’s affinity products, Carry Guard, covered personal-injury and criminal-defense costs related to licensed firearm use, and “insured New York residents for intentional, reckless, and criminally negligent acts with a firearm that injured or killed another person.” 49 F. 4th 700, 707 (CA2 2022). In September 2017, a gun-control advocacy group contacted the New York County District Attorney’s office to tip them off to “compliance infirmities in Carry Guard.” App. to Pet. for Cert. 206, Second Amended Complaint ¶34. That office then passed on the allegations to DFS. The next month, then-Superintendent of DFS Vullo began investigating Carry Guard, focusing on Chubb and Lockton. The investigation revealed at least two kinds of violations of New York law: that Carry Guard insured intentional criminal acts, and the NRA promoted Carry Guard without an insurance producer license. By mid-November, upon finding out about the investigation following DFS information requests, Lockton and Chubb suspended Carry Guard. Vullo then expanded her investigation into the NRA’s other affinity insurance programs, many of which were underwritten by Lloyd’s and administered by Lockton. These NRA-endorsed programs provided similar coverage and suffered from the same legal infirmities. In the midst of the investigation, tragedy struck Parkland, Florida. On February 14, 2018, a gunman opened fire at Marjory Stoneman Douglas High School, murdering 17 students and staff members. Following the shooting, the NRA and other gun-advocacy groups experienced “intense backlash” across the country. 49 F. 4th, at 708. Major business institutions, including DFS-regulated entities, spoke out against the NRA, and some even cut ties with the organization. App. to Pet. for Cert. 244. MetLife, for example, ended a discount program it offered with the NRA. On February 25, 2018, Lockton’s chairman “placed a distraught telephone call to the NRA,” in which he privately shared that Lockton would sever all ties with the NRA to avoid “ ‘losing [its] license’ to do business in New York.” Id ., at 298, Complaint ¶42. Lockton publicly announced its decision the next day. Following Lockton’s decision, the NRA’s corporate insurance carrier also severed ties with the organization and refused to renew coverage at any price. The NRA contends that Lockton and the corporate insurance carrier took these steps not because of the Parkland shooting but because they feared “reprisa[l]” from Vullo. Id ., at 210, ¶44; see id ., at 209–210, ¶¶41–43. Around that time, Vullo also began to meet with executives at the insurance companies doing business with the NRA. On February 27, Vullo met with senior executives at Lloyd’s. There, speaking on behalf of DFS and then-Governor Andrew Cuomo, Vullo “presented [their] views on gun control and their desire to leverage their powers to combat the availability of firearms, including specifically by weakening the NRA.” Id ., at 221, ¶67. She also “discussed an array of technical regulatory infractions plaguing the affinity-insurance marketplace” in New York. Id ., at 199, ¶21. Vullo told the Lloyd’s executives “that DFS was less interested in pursuing the[se] infractions” unrelated to any NRA business “so long as Lloyd’s ceased providing insurance to gun groups, especially the NRA.” Id ., at 199–200, ¶21; accord, id ., at 223, ¶69 (alleging that Vullo made it clear to Lloyd’s that it “could avoid liability for infractions relating to other, similarly situated insurance policies, so long as it aided DFS’s campaign against gun groups”).[ 1 ] Vullo and Lloyd’s struck a deal: Lloyd’s “would instruct its syndicates to cease underwriting firearm-related policies and would scale back its NRA-related business,” and “in exchange, DFS would focus its forthcoming affinity-insurance enforcement action solely on those syndicates which served the NRA, and ignore other syndicates writing similar policies.” Ibid ., ¶69. On April 19, 2018, Vullo issued two virtually identical guidance letters on DFS letterhead entitled, “Guidance on Risk Management Relating to the NRA and Similar Gun Promotion Organizations.” Id ., at 246–251 (Guidance Letters). Vullo sent one of the letters to insurance companies and the other to financial services institutions. In the letters, Vullo pointed to the “social backlash” against the NRA and other groups “that promote guns that lead to senseless violence” following “several recent horrific shootings, including in Parkland, Florida.” Id ., at 246, 249. Vullo then cited recent instances of businesses severing their ties with the NRA as examples of companies “fulfilling their corporate social responsibility.” Id ., at 247, 250. In the Guidance Letters’ final paragraph, Vullo “encourage[d]” DFS-regulated entities to: (1) “continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations”; (2) “review any relationships they have with the NRA or similar gun promotion organizations”; and (3) “take prompt actions to manag[e] these risks and promote public health and safety.” Id ., at 248, 251.[ 2 ] The same day that DFS issued the Guidance Letters, Vullo and Governor Cuomo issued a joint press release that echoed many of the letters’ statements. The press release included a quote from Vullo “ ‘urg[ing] all insurance companies and banks doing business in New York’ ” to join those “ ‘that have already discontinued their arrangements with the NRA.’ ” Id ., at 244. The press release cited Chubb’s decision to stop underwriting Carry Guard as an example to emulate. The next day, Cuomo tweeted: “ ‘The NRA is an extremist organization. I urge companies in New York State to revisit any ties they have to the NRA and consider their reputations, and responsibility to the public.’ ” Id ., at 213, Complaint ¶51. Less than two weeks after the Guidance Letters and press release went out, DFS entered into consent decrees with Lockton (on May 2), and Chubb (on May 7). The decrees stipulated that Carry Guard violated New York insurance law because it provided insurance coverage for intentional criminal acts, and because the NRA promoted Carry Guard, along with other NRA-endorsed programs, without an insurance producer license. The decrees also listed other infractions of the State’s insurance law. Both Lockton and Chubb admitted liability, agreed not to provide any NRA-endorsed insurance programs (even if lawful) but were permitted to sell corporate insurance to the NRA, and agreed to pay fines of $7 million and $1.3 million respectively. On May 9, Lloyd’s officially instructed its syndicates to terminate existing agreements with the NRA and not to insure new ones. It publicly announced its decision to cut ties with the NRA that same day. On December 20, 2018, DFS and Lloyd’s entered into their own consent decree, which imposed similar terms and a $5 million fine. B The NRA sued Cuomo, Vullo, and DFS. The only claims before the Court today are those against Vullo—namely, claims that Vullo violated the First Amendment by coercing DFS-regulated parties to punish or suppress “the NRA’s pro- Second Amendment viewpoint” and “core political speech.” Id ., at 231, ¶91, 234, ¶101. The complaint asserts both censorship and retaliation First Amendment claims, which the parties and lower courts have analyzed together. Vullo moved to dismiss, arguing that the alleged conduct did not constitute impermissible coercion and that, in the alternative, she was entitled to qualified immunity because she did not violate clearly established law. The District Court denied Vullo’s motion to dismiss the NRA’s First-Amendment damages claims. The court held that the NRA plausibly alleged that “the combination of [Vullo’s and Cuomo’s] actions . . . could be interpreted as a veiled threat to regulated industries to disassociate with the NRA or risk DFS enforcement action.” NRA of Am. v. Cuomo , 525 F. Supp. 3d 382, 402–403 (NDNY 2021). That threat, the court said, crossed a First Amendment line. The District Court concluded that Vullo was not entitled to qualified immunity at the motion-to-dismiss stage. The Second Circuit reversed. It concluded that Vullo’s alleged actions constituted permissible government speech and legitimate law enforcement, and not unconstitutional coercion. The Second Circuit determined that the Guidance Letters and accompanying press release were not unconstitutionally coercive because they “were written in an even-handed, nonthreatening tone and employed words intended to persuade rather than intimidate.” 49 F. 4th, at 717. The court found it significant that Vullo “did not refer to any pending investigations or possible regulatory action” and alluded only to business-related risks “amid growing public concern over gun violence.” Ibid. As for Vullo’s meeting with the Lloyd’s executives, the court admitted that the allegations presented a “closer call.” Id ., at 718. Nonetheless, just as with the consent decrees, it found that Vullo “was merely carrying out her regulatory responsibilities.” Id., at 718–719. The Second Circuit also held that, even if the complaint stated a First Amendment violation, the law was not clearly established, and so Vullo was entitled to qualified immunity. The NRA filed a petition for a writ of certiorari, seeking either summary reversal or review of the First Amendment and qualified immunity holdings. This Court granted certiorari on only the first question presented whether the complaint states a First Amendment claim against Vullo. See 601 U. S. ___ (2023).[ 3 ] II As discussed below, Vullo was free to criticize the NRA and pursue the conceded violations of New York insurance law. She could not wield her power, however, to threaten enforcement actions against DFS-regulated entities in order to punish or suppress the NRA’s gun-promotion advocacy. Because the complaint plausibly alleges that Vullo did just that, the Court holds that the NRA stated a First Amendment violation. A At the heart of the First Amendment’s Free Speech Clause is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society. The Clause prohibits government entities and actors from “abridging the freedom of speech.” When government officials are “engaging in their own expressive conduct,” though, “the Free Speech Clause has no application.” Pleasant Grove City v. Summum , 555 U.S. 460 , 467 (2009). The government can “ ‘say what it wishes’ ” and “select the views that it wants to express.” Id. , at 467–468 (quoting Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U.S. 819 , 833 (1995)). That makes sense; the government could barely function otherwise. “When a government entity embarks on a course of action, it necessarily takes a particular viewpoint and rejects others,” and thus does not need to “maintain viewpoint-neutrality when its officers and employees speak about that venture.” Matal v. Tam , 582 U.S. 218, 234 (2017). A government official can share her views freely and criticize particular beliefs, and she can do so forcefully in the hopes of persuading others to follow her lead. In doing so, she can rely on the merits and force of her ideas, the strength of her convictions, and her ability to inspire others. What she cannot do, however, is use the power of the State to punish or suppress disfavored expression. See Rosenberger , 515 U. S., at 830 (explaining that governmental actions seeking to suppress a speaker’s particular views are presumptively unconstitutional). In such cases, it is “the application of state power which we are asked to scrutinize.” NAACP v. Alabama ex rel. Patterson , 357 U.S. 449 , 463 (1958). In Bantam Books , this Court explored the distinction between permissible attempts to persuade and impermissible attempts to coerce. There, a state commission used its power to investigate and recommend criminal prosecution to censor publications that, in its view, were “ ‘objectionable’ ” because they threatened “youthful morals.” 372 U. S., at 59–62, 71. The commission sent official notices to a distributor for blacklisted publications that highlighted the commission’s “duty to recommend to the Attorney General” violations of the State’s obscenity laws. Id ., at 62–63, and n. 5. The notices also informed the distributor that the lists of blacklisted publications “were circulated to local police departments,” and that the distributor’s cooperation in removing the publications from the shelves would “ ‘eliminate the necessity’ ” of any referral for prosecution. Ibid. A local police officer also conducted followup visits to ensure compliance. In response, the distributor took “steps to stop further circulation of copies of the listed publications” out of fear of facing “ ‘a court action.’ ” Id ., at 63. The publishers of the blacklisted publications sued the commission, alleging that this scheme of informal censorship violated their First Amendment rights. The commission responded that “it d[id] not regulate or suppress obscenity but simply exhort[ed] booksellers and advise[d] them of their legal rights.” Id ., at 66. This Court sided with the publishers, holding that the commission violated their free-speech rights by coercing the distributor to stop selling and displaying the listed publications. The Court explained that the First Amendment prohibits government officials from relying on the “threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression” of disfavored speech. Id ., at 67. Although the commission lacked the “power to apply formal legal sanctions,” the distributor “reasonably understood” the commission to threaten adverse action, and thus the distributor’s “compliance with the [c]ommission’s directives was not voluntary.” Id ., at 66–68. To reach this conclusion, the Court considered things like: the commission’s coordination with law enforcement and its authority to refer matters for prosecution; the notices themselves, which were “phrased virtually as orders” containing “thinly veiled threats to institute criminal proceedings” if the distributor did not come around; and the distributor’s reaction to the notices and followup visits. Id., at 68. Since Bantam Books , the Courts of Appeals have considered similar factors to determine whether a challenged communication is reasonably understood to be a coercive threat. Take the decision below, for example. The Second Circuit purported to consider: “(1) word choice and tone; (2) the existence of regulatory authority; (3) whether the speech was perceived as a threat; and, perhaps most importantly, (4) whether the speech refers to adverse consequences.” 49 F. 4th, at 715 (citations omitted).[ 4 ] Other Circuits have taken similarly fact-intensive approaches, utilizing a multifactor test or a totality-of-the-circumstances analysis. See, e . g ., Missouri v. Biden , 83 F. 4th 350, 380 (CA5 2023) (“[T]o help distinguish permissible persuasion from impermissible coercion, we turn to the Second (and Ninth) Circuit’s four-factor test”); Kennedy v. Warren , 66 F. 4th 1199, 1207 (CA9 2023) (applying the Second Circuit’s “useful non-exclusive four-factor framework”); Backpage.com, LLC v. Dart , 807 F.3d 229, 230–232 (CA7 2015) (considering the same factors as part of a totality-of-the-circumstances analysis); R. C. Maxwell Co. v. New Hope , 735 F.2d 85, 88 (CA3 1984) (same). The Courts of Appeals that employ a multifactor test agree that “[n]o one factor is dispositive.” 49 F. 4th, at 715; accord, Kennedy , 66 F. 4th, at 1210 (explaining that the absence of direct regulatory authority is not dispositive). Ultimately, Bantam Books stands for the principle that a government official cannot do indirectly what she is barred from doing directly: A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf. See, e . g ., 372 U. S., at 67–69; see also Backpage.com , 807 F. 3d, at 231 (holding that the First Amendment barred a sheriff from “using the power of his office to threaten legal sanctions against . . . credit-card companies for facilitating future speech”); Okwedy v. Molinari , 333 F.3d 339 , 344 (CA2 2003) ( per curiam ) (holding that a religious group stated a First Amendment claim against a borough president who wrote a letter “contain[ing] an implicit threat of retaliation” against a billboard company displaying the group’s disfavored message); cf. Penthouse Int’l, Ltd. v. Meese , 939 F. 2d, 1011, 1016 (CADC 1991) (“[W]hen the government threatens no sanction—criminal or otherwise—we very much doubt that the government’s criticism or effort to embarrass the [intermediary] threatens anyone’s First Amendment rights”). B The parties and the Solicitor General, who filed an amicus brief supporting vacatur, agree that Bantam Books provides the right analytical framework for claims that the government has coerced a third party to violate the First Amendment rights of another. They also embrace the lower courts’ multifactor test as a useful, though nonexhaustive, guide. Rightly so. Considerations like who said what and how, and what reaction followed, are just helpful guideposts in answering the question whether an official seeks to persuade or, instead, to coerce. Where the parties differ is on the application of the Bantam Books framework. The NRA and the Solicitor General reject the Second Circuit’s application of the framework, while Vullo defends it. The Court now agrees with the NRA and the Solicitor General. To state a claim that the government violated the First Amendment through coercion of a third party, a plaintiff must plausibly allege conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff ’s speech. See 372 U. S., at 67–68. Accepting the well-pleaded factual allegations in the complaint as true, the NRA plausibly alleged that Vullo violated the First Amendment by coercing DFS-regulated entities into disassociating with the NRA in order to punish or suppress the NRA’s gun-promotion advocacy. Consider first Vullo’s authority, which serves as a backdrop to the NRA’s allegations of coercion. The power that a government official wields, while certainly not dispositive, is relevant to the objective inquiry of whether a reasonable person would perceive the official’s communication as coercive. See id ., at 66–67. Generally speaking, the greater and more direct the government official’s authority, the less likely a person will feel free to disregard a directive from the official. For example, imagine a local affinity group in New York that receives a strongly worded letter. One would reasonably expect that organization to react differently if the letter came from, say, the U. S. Attorney for the Southern District of New York than if it came from an out-of-state school board. As DFS superintendent, Vullo had direct regulatory and enforcement authority over all insurance companies and financial service institutions doing business in New York. See N. Y. Fin. Servs. Law Ann. §§202, 301. Just like the commission in Bantam Books , Vullo could initiate investigations and refer cases for prosecution. Indeed, she could do much more than that. Vullo also had the power to notice civil charges and, as this case shows, enter into consent decrees that impose significant monetary penalties. Against this backdrop, consider Vullo’s communications with the DFS-regulated entities, particularly with Lloyd’s. According to the NRA, Vullo brought a variety of insurance-law violations to the Lloyd’s executives’ attention during a private meeting in February 2018. The violations included technical infractions that allegedly plagued the affinity insurance market in New York and that were unrelated to any NRA business. App. to Pet. for Cert. 199–200, Complaint ¶21; accord, id., at 207–208, ¶¶36–37; id ., at 223, ¶69. Vullo allegedly said she would be “less interested in pursuing the[se] infractions . . . so long as Lloyd’s ceased providing insurance to gun groups, especially the NRA.” Id ., at 199–200, ¶21. Vullo therefore wanted Lloyd’s to disassociate from all gun groups, although there was no indication that such groups had unlawful insurance policies similar to the NRA’s. Vullo also told the Lloyd’s executives she would “focus” her enforcement actions “solely” on the syndicates with ties to the NRA, “and ignore other syndicates writing similar policies.” Id ., at 223, ¶69. The message was therefore loud and clear: Lloyd’s “could avoid liability for [unrelated] infractions” if it “aided DFS’s campaign against gun groups” by terminating its business relationships with them. Ibid. As alleged, Vullo’s communications with Lloyd’s can be reasonably understood as a threat or as an inducement. Either of those can be coercive. As Vullo concedes, the “threat need not be explicit,” Brief for Respondent 47, and as the Solicitor General explains, “[t]he Constitution does not distinguish between ‘comply or I’ll prosecute’ and ‘comply and I’ll look the other way,’ ” Brief for United States as Amicus Curiae 18, n. 7. So, whether analyzed as a threat or as an inducement, the conclusion is the same: Vullo allegedly coerced Lloyd’s by saying she would ignore unrelated infractions and focus her enforcement efforts on NRA-related business alone, if Lloyd’s ceased underwriting NRA policies and disassociated from gun-promotion groups. The reaction from Lloyd’s further confirms the communications’ coercive nature. Cf. Bantam Books , 372 U. S., at 63, 68 (noting that the distributor’s “reaction on receipt of a notice was to take steps to stop further circulation of copies of the listed publications”). At the meeting itself, Lloyd’s “agreed that it would instruct its syndicates to cease underwriting firearm-related policies and would scale back its NRA-related business.” App. to Pet. for Cert. 223, Complaint ¶69. Minutes from a subsequent board of directors’ meeting reveal that Lloyd’s thought “the DFS investigation had transformed the gun issue into ‘a regulatory, legal[,] and compliance matter.’ ” 2 App. to Pet. for Cert. 29 (Sealed). That reaction is consistent with Lloyd’s public announcement that it had directed its syndicates to “terminate all insurance related to the NRA and not to provide any insurance to the NRA in the future.” App. to Pet. for Cert. 224, Complaint ¶72; accord, id ., at 306, ¶20 (consent decree memorializing commitment not to underwrite, or participate in, NRA-endorsed programs). Other allegations, viewed in context, reinforce the NRA’s First Amendment claim. Consider the April 2018 Guidance Letters and accompanying press release, which Vullo issued on official letterhead. Cf. Bantam Books , 372 U. S., at 61–63, and n. 5 (discussing notice issued in “official Commission stationery”). Just like in her meeting with the Lloyd’s executives, here too Vullo singled out the NRA and other gun-promotion organizations as the targets of her call to action. This time, the Guidance Letters reminded DFS-regulated entities of their obligation to consider their “reputational risks,” and then tied that obligation to an encouragement for “prompt actio[n] to manag[e] these risks.” App. to Pet. for Cert. 248, 251. Evocative of Vullo’s private conversation with the Lloyd’s executives a few weeks earlier, the press release revealed how to manage the risks by encouraging DFS-regulated entities to “ ‘discontinu[e] their arrangements with the NRA,’ ” just like Chubb did when it stopped underwriting Carry Guard. App. to Pet. for Cert. 244. A follow-on tweet from Cuomo reaffirmed the message: Businesses in New York should “ ‘consider their reputations’ ” and “ ‘revisit any ties they have to the NRA,’ ” which he called “ ‘an extremist organization.’ ” Id ., at 213, ¶51. In sum, the complaint, assessed as a whole, plausibly alleges that Vullo threatened to wield her power against those refusing to aid her campaign to punish the NRA’s gun-promotion advocacy. If true, that violates the First Amendment. C In holding otherwise, the Second Circuit found that: (1) the “Guidance Letters and Press Release are clear examples of permissible government speech”; and (2) the Lloyd’s meeting was “legitimate enforcement action” in which Vullo was “merely carrying out her regulatory responsibilities” by offering “leniency in the course of negotiating a resolution of the apparent insurance law violations.” 49 F. 4th, at 717–719. The Second Circuit could only reach this conclusion by taking the allegations in isolation and failing to draw reasonable inferences in the NRA’s favor in violation of this Court’s precedents. Cf. Iqbal , 556 U. S., at 678–679; Bell Atlantic Corp. v. Twombly , 550 U.S. 544 , 570 (2007). For example, the Second Circuit failed to analyze the Guidance Letters and press release against the backdrop of other allegations in the complaint, including the Lloyd’s meeting. Moreover, as discussed above, the complaint alleges that Vullo made a not-so-subtle, sanctions-backed threat to Lloyd’s to cut all business ties with the NRA and other gun-promotion groups, although there was no sign that other gun groups also had unlawful insurance policies. See supra , at 13. It is also relevant that Vullo made this alleged threat in a meeting where she presented her “desire to leverage [her] powers to combat the availability of firearms, including specifically by weakening the NRA.” App. to Pet. for Cert. 221, Complaint ¶67; id ., at 223, ¶69 (alleging Vullo hoped to enlist DFS-regulated entities in “aid[ing] DFS’s campaign against gun groups”). Given the obligation to draw reasonable inferences in the NRA’s favor and consider the allegations as a whole, the Second Circuit erred in reading the complaint as involving only individual instances of “permissible government speech” and the execution of Vullo’s “regulatory responsibilities.” 49 F. 4th, at 717–719. For the same reasons, this Court cannot simply credit Vullo’s assertion that “pursuing conceded violations of the law,” Brief for Respondent 29, is an “ ‘obvious alternative explanation’ ” for her actions that defeats the plausibility of any coercive threat raising First Amendment concerns, id ., at 37, 40, 42 (quoting Iqbal , 556 U. S., at 682). Of course, discovery in this case might show that the allegations of coercion are false, or that certain actions should be understood differently in light of newly disclosed evidence. At this stage, though, the Court must assume the well-pleaded factual allegations in the complaint are true.[ 5 ] Moreover, the conceded illegality of the NRA-endorsed insurance programs does not insulate Vullo from First Amendment scrutiny under the Bantam Books framework. Indeed, the commission in that case targeted the distribution and display of material that, in its view, violated the State’s obscenity laws. Nothing in that case turned on the distributor’s compliance with state law. On the contrary, Bantam Books held that the commission violated the First Amendment by invoking legal sanctions to suppress disfavored publications, some of which may or may not contain protected speech ( i . e ., nonobscene material). See 372 U. S., at 64, 67. Here, too, although Vullo can pursue violations of state insurance law, she cannot do so in order to punish or suppress the NRA’s protected expression. So, the contention that the NRA and the insurers violated New York law does not excuse Vullo from allegedly employing coercive threats to stifle gun-promotion advocacy. Vullo next argues that this case does not involve unconstitutional coercion because her challenged actions in fact targeted business practices and relationships, which qualify as “nonexpressive activity.” Brief for Respondent 32. The argument is misplaced. That Vullo “regulate[d]” business activities stemming from the NRA’s “relationships with insurers and banks,” ibid. , does not change the allegations that her actions were aimed at punishing or suppressing speech. In Bantam Books , the commission interfered with the business relationship between the distributor and the publishers in order to suppress the publishers’ disfavored speech. 372 U. S., at 66–71. Similarly, in Backpage.com , a sheriff interfered with a website’s business relationships with payments-service providers in order to eliminate the website’s “adult section” (if not the website itself ). 807 F. 3d, at 230–232, 235–236. In that case, the sheriff wanted to “suffocat[e]” the website, “depriving the company of ad revenues by scaring off its payments-service providers.” Id ., at 231. “The analogy,” the Seventh Circuit explained, “is to killing a person by cutting off his oxygen supply rather than by shooting him.” Ibid. So too here. One can reasonably infer from the complaint that Vullo coerced DFS-regulated entities to cut their ties with the NRA in order to stifle the NRA’s gun-promotion advocacy and advance her views on gun control. See, e . g ., supra , at 12–15; App. to Pet. for Cert. 221, 230–235, Complaint ¶¶67, 87–105. Vullo knew, after all, that the NRA relied on insurance and financing “to disseminate its message.” Id ., at 231, ¶92; see id ., at 203–204, ¶¶28–29.[ 6 ] Lastly, Vullo falls back on the argument that a ruling in the NRA’s favor would interfere with the government’s ability to function properly. She claims that the NRA’s position, if accepted, would stifle government speech and hamper legitimate enforcement efforts. This argument falls flat for the simple reason that it requires the Court to accept Vullo’s limited reading of the complaint. The Court does not break new ground in deciding this case. It only reaffirms the general principle from Bantam Books that where, as here, the complaint plausibly alleges coercive threats aimed at punishing or suppressing disfavored speech, the plaintiff states a First Amendment claim. III The NRA’s allegations, if true, highlight the constitutional concerns with the kind of intermediary strategy that Vullo purportedly adopted to target the NRA’s advocacy. Such a strategy allows government officials to “expand their regulatory jurisdiction to suppress the speech of organizations that they have no direct control over.” Brief for First Amendment Scholars as Amici Curiae Supporting Petitioner 8. It also allows government officials to be more effective in their speech-suppression efforts “[b]ecause intermediaries will often be less invested in the speaker’s message and thus less likely to risk the regulator’s ire.” Ibid. The allegations here bear this out. Although “the NRA was not even the directly regulated party,” Brief for Respondent 32, Vullo allegedly used the power of her office to target gun promotion by going after the NRA’s business partners. Insurers in turn followed Vullo’s lead, fearing regulatory hostility. Nothing in this case gives advocacy groups like the NRA a “right to absolute immunity from [government] investigation,” or a “right to disregard [state or federal] laws.” Patterson , 357 U. S., at 463. Similarly, nothing here prevents government officials from forcefully condemning views with which they disagree. For those permissible actions, the Constitution “relies first and foremost on the ballot box, not on rules against viewpoint discrimination, to check the government when it speaks.” Shurtleff v. Boston , 596 U.S. 243, 252 (2022). Yet where, as here, a government official makes coercive threats in a private meeting behind closed doors, the “ballot box” is an especially poor check on that official’s authority. Ultimately, the critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries. *  *  * For the reasons discussed above, the Court holds that the NRA plausibly alleged that Vullo violated the First Amendment by coercing DFS-regulated entities to terminate their business relationships with the NRA in order to punish or suppress the NRA’s advocacy. The judgment of the U. S. Court of Appeals for the Second Circuit is vacated, and the case remanded for further proceedings consistent with this opinion.[ 7 ] It is so ordered. Notes 1 According to the complaint, other affinity organizations offered similar insurance policies, including the New York State Bar Association, the New York City Bar, and the New York State Psychological Association, among others. See App. to Pet. for Cert. 207–208, Complaint ¶36. 2 The financial-regulatory term “reputational risk” is “ ‘the risk to current or projected financial condition and resilience arising from negative public opinion,’ which ‘may impair a bank’s competitiveness by affecting its ability to establish new relationships or services or continue servicing existing relationships.’ ” Brief for United States as Amicus Curiae 27–28, and n. 10 (quoting Office of the Comptroller of the Currency, Comptroller’s Handbook, Examination Process, Bank Supervision Process 28 (Sept. 2019)). DFS monitors the reputational risk of regulated institutions because of its potential effect on market stability. See Brief for Respondent 6. 3 Vullo argues that the Court must dismiss the case as improvidently granted because the Court deprived itself of jurisdiction by limiting its review to the First Amendment question and declining to review the Second Circuit’s alternative holding that Vullo is entitled to qualified immunity. See Brief for Respondent 21–24. Not so. In this case, “[a]n order limiting the grant of certiorari does not operate as a jurisdictional bar.” Piper Aircraft Co. v. Reyno , 454 U.S. 235 , 247, n. 12 (1981). Because the Second Circuit is free to revisit the qualified immunity question in light of this Court’s opinion, the NRA still could obtain “ ‘effectual relief ’ ” on remand. Chafin v. Chafin , 568 U.S. 165 , 172 (2013). In such circumstances, it cannot be said that the resolution of the First Amendment question is merely advisory. 4 The NRA posits a three-factor test that looks to: (1) the actor’s authority; (2) the content and purpose of the actor’s communications; and (3) the reactions of the recipient. Brief for Petitioner 26. The NRA concedes, however, that its test is the same as the Second Circuit’s, as it considers the fourth factor in the Second Circuit’s test of “ ‘whether the speech refers to adverse consequences’ ” to be an “aspect of the inquiry into the content and purpose of the communication.” Id ., at 27, n. 8. 5 Vullo also argues that she is entitled to absolute prosecutorial immunity for her enforcement actions. See Brief for Respondent 25–28. Putting aside whether a financial regulator like Vullo is entitled to such immunity in the administrative context, because Vullo did not raise this defense below with respect to the First Amendment claim (or even with respect to allegations unrelated to the consent decrees), the Court declines to consider that argument here in the first instance. 6 Vullo’s boss, Governor Cuomo, also urged businesses to disassociate with the NRA to put the organization “into financial jeopardy” and “shut them down.” App. 21 (Aug. 3, 2018, tweet). 7 On remand, the Second Circuit is free to reconsider whether Vullo is entitled to qualified immunity. SUPREME COURT OF THE UNITED STATES _________________ No. 22–842 _________________ NATIONAL RIFLE ASSOCIATION OF AMERICA, PETITIONER v. MARIA T. VULLO on writ of certiorari to the united states court of appeals for the second circuit [May 30, 2024] Justice Gorsuch, concurring. I write separately to explain my understanding of the Court’s opinion, which I join in full. Today we reaffirm a well-settled principle: “A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf.” Ante, at 11. As the Court mentions, many lower courts have taken to analyzing this kind of coercion claim under a four-pronged “multifactor test.” Ibid . These tests, the Court explains, might serve “as a useful, though nonexhaustive, guide.” Ante, at 12. But sometimes they might not. Cf. Axon Enterprise, Inc. v. FTC , 598 U.S. 175, 205–207 (2023) (Gorsuch, J., concurring in judgment). Indeed, the Second Circuit’s decision to break up its analysis into discrete parts and “tak[e] the [complaint’s] allegations in isolation” appears only to have contributed to its mistaken conclusion that the National Rifle Association failed to state a claim. Ante, at 15. Lower courts would therefore do well to heed this Court’s directive: Whatever value these “guideposts” serve, they remain “just” that and nothing more. Ante, at 12. “Ultimately, the critical” question is whether the plaintiff has “plausibly allege[d] conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff ’s speech.” Ante, at 12, 19. SUPREME COURT OF THE UNITED STATES _________________ No. 22–842 _________________ NATIONAL RIFLE ASSOCIATION OF AMERICA, PETITIONER v. MARIA T. VULLO on writ of certiorari to the united states court of appeals for the second circuit [May 30, 2024] Justice Jackson, concurring. Applying our decision in Bantam Books, Inc. v. Sullivan , 372 U.S. 58 (1963), the Court today explains that a “government official cannot coerce a private party to punish or suppress disfavored speech on her behalf.” Ante, at 11. I agree. I write separately to stress the important distinction between government coercion, on the one hand, and a violation of the First Amendment, on the other. I Coercion of a third party can be the means by which the government violates the First Amendment rights of another. But the fact of coercion, without more, does not state a First Amendment claim. Rather, in addition to finding that the government has crossed a line from persuasion to coercion, courts must assess how that coercion actually violates a speaker’s First Amendment rights. Our decision in Bantam Books provides one example of how government coercion of a third party can indirectly bring about a First Amendment violation. As the majority explains, ante, at 9–10, Bantam Books held that a Rhode Island commission’s efforts to coerce intermediary book distributors into pulling certain publications from circulation violated the First Amendment rights of the books’ publishers, 372 U. S., at 61–62, 66–67. Even though the state commission had not itself “seized or banned” any books, “the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation” against the distributors “directly and designedly stopped the circulation of publications in many parts of Rhode Island.” Id ., at 67–68. Essentially, the State’s threats to third parties—the distributors—erected through private hands an “effective state regulation . . . of obscenity.” Id ., at 69. And the government could not escape responsibility for the distributors’ actions merely because the commission did not itself seize any books. See id ., at 66–67. Notably, however, the government’s coercion of the distributors into doing its bidding was not—in and of itself—what offended the First Amendment. Rather, by threatening those third-party conduits of speech, the state commission had effectively “subject[ed] the distribution of publications to a system of prior administrative restraints” lacking the requisite constitutional safeguards. Id ., at 70. Put another way, by exerting pressure on a third party, the State had constructed a “system of informal censorship.” Id ., at 71. The lesson of Bantam Books is that “a government official cannot do indirectly what she is barred from doing directly.” Ante, at 11. That case does not hold that government coercion alone violates the First Amendment. And recognizing the distinction between government coercion and a First Amendment violation is important because our democracy can function only if the government can effectively enforce the rules embodied in legislation; by its nature, such enforcement often involves coercion in the form of legal sanctions. The existence of an allegation of government coercion of a third party thus merely invites, rather than answers, the question whether that coercion indirectly worked a violation of the plaintiff’s First Amendment rights. II Whether and how government coercion of a third party might violate another party’s First Amendment rights will depend on the facts of the case. Indeed, under our precedents, determining whether government action violates the First Amendment requires application of different doctrines that vary depending on the circumstances. Different circumstances—who is being coerced to do what, and why—may implicate different First Amendment inquiries. In Bantam Books and many cases applying it, the coercion and First Amendment inquiries practically merge. This is because those cases tend to follow a similar fact pattern: The plaintiff claims that the government coerced a distributor, purveyor, or conduit of expression—like a billboard company, television station, or book retailer—to shut down the speech of another party that relies on that distributor, purveyor, or conduit to spread its message.[ 1 ]* Coercing an entity in the business of disseminating speech to stop disseminating someone else’s speech obviously implicates the First Amendment, insofar as it may result in censorship similar to the prior restraint identified in Bantam Books . But, in my view, that censorship theory is an awkward fit with the facts of this case. According to the complaint, Vullo coerced various regulated entities to cut business ties with the National Rifle Association (NRA). See ante, at 3–5. The NRA does not contend that its (concededly unlawful) insurance products offered through those business relationships were themselves “speech,” akin to a billboard, a television ad, or a book. Nor does the complaint allege that Vullo pressured the printer of American Rifleman (a longstanding NRA periodical) to stop printing the magazine, or coerced a convention center into canceling the NRA’s annual meeting. See VDARE Foundation v. Colorado Springs , 11 F. 4th 1151, 1157 (CA10 2021). In other words, the effect of Vullo’s alleged coercion of regulated entities on the NRA’s speech is significantly more attenuated here than in Bantam Books or most decisions applying it. It is, for instance, far from obvious that Vullo’s conduct toward regulated entities established “a system of prior administrative restraints” against the NRA’s expression. Bantam Books , 372 U. S., at 70. Of course, as the majority correctly observes, none of that means that Vullo may target with impunity the NRA’s “ ‘nonexpressive’ ” activity if she is doing so to punish the NRA for its expression. See ante, at 17. But it does suggest that our First Amendment retaliation cases might provide a better framework for analyzing these kinds of allegations— i . e ., coercion claims that are not directly related to the publication or distribution of speech. And, fortunately for the NRA, the complaint in this case alleges both censorship and retaliation theories for how Vullo violated the First Amendment—theories that, in my opinion, deserve separate analyses. “ ‘[A]s a general matter,’ the First Amendment prohibits government officials from subjecting individuals to ‘retaliatory actions’ after the fact for having engaged in protected speech.” Houston Community College System v. Wilson , 595 U.S. 468, 474 (2022) (quoting Nieves v. Bartlett , 587 U.S. 391, 398 (2019)). “[A] plaintiff pursuing a First Amendment retaliation claim must show, among other things, that the government took an ‘adverse action’ in response to his speech that ‘would not have been taken absent the retaliatory motive.’ ” Wilson , 595 U. S., at 477 (quoting Nieves , 587 U. S., at 399). Although our analysis has varied by context, see Lozman v. Riviera Beach , 585 U.S. 87, 96–99 (2018), we have generally required plaintiffs claiming First Amendment retaliation to “establish a ‘causal connection’ between the government defendant’s ‘retaliatory animus’ and the plaintiff’s ‘subsequent injury,’ ” Nieves , 587 U. S., at 398 (quoting Hartman v. Moore , 547 U.S. 250 , 259 (2006)). Requiring that causal connection to a retaliatory motive is important, because “[s]ome official actions adverse to . . . a speaker might well be unexceptionable if taken on other grounds.” Id. , at 256. In this case, for example, analyzing causation matters because much of Vullo’s alleged conduct, if not done for retaliatory reasons, might otherwise be legitimate enforcement of New York’s insurance regulations. How a retaliation analysis should proceed in this case was not addressed below, so the Court rightly leaves that question unanswered today. But, importantly, any such analysis requires more than asking simply whether the government’s actions crossed the threshold from permissible persuasion to impermissible coercion. The NRA concedes that, at the very least, our burden-shifting framework from Mt. Healthy City Bd. of Ed. v. Doyle , 429 U.S. 274 (1977), likely applies. See Reply Brief 16–17. Should that test govern, the NRA would have to plausibly allege that a retaliatory motive was a “ ‘substantial’ ” or “ ‘motivating factor’ ” in Vullo’s targeting of the regulated entities doing business with the NRA. Mt. Healthy , 429 U. S., at 287. Vullo, in turn, could rebut that allegation by showing that she would have taken the same action “even in the absence of the [NRA’s] protected conduct.” Ibid. ; see Lozman , 585 U. S., at 96 (“[E]ven if retaliation might have been a substantial motive for the board’s action, still there was no liability unless the alleged constitutional violation was a but-for cause of the employment termination”). *  *  * The NRA’s complaint advances both censorship and retaliation claims, yet the lower courts in this case lumped these claims together and ultimately focused almost exclusively on whether Vullo’s conduct was coercive. See ante, at 6–7. Consequently, the strength of the NRA’s claim under the Mt. Healthy framework has received little attention thus far. On remand, the parties and lower courts should consider the censorship and retaliation theories independently, mindful of the distinction between government coercion and the ways in which such coercion might (or might not) have violated the NRA’s constitutional rights. That analysis can and should likewise consider which First Amendment framework best captures the NRA’s allegations in this case. See, e . g ., VDARE , 11 F. 4th, at 1159–1175 (separately analyzing censorship and retaliation claims). Notes 1 *See, e . g ., Okwedy v. Molinari , 333 F.3d 339 , 340, 342–344 (CA2 2003) ( per curiam ) (billboard company); R. C. Maxwell Co. v. New Hope , 735 F.2d 85, 85–88 (CA3 1984) (same); American Family Assn., Inc. v. City and County of San Francisco , 277 F.3d 1114 , 1119–1120 (CA9 2002) (television stations); Kennedy v. Warren , 66 F. 4th 1199, 1204–1205 (CA9 2023) (online book retailer); Penthouse Int’l, Ltd. v. Meese , 939 F.2d 1011, 1013–1016 (CADC 1991) (convenience stores carrying pornographic magazines); Hammerhead Enterprises, Inc. v. Brezenoff , 707 F.2d 33, 34–38 (CA2 1983) (department stores carrying satirical board game); VDARE Foundation v. Colorado Springs , 11 F. 4th 1151, 1156–1157 (CA10 2021) (resort hosting advocacy group conference).

Here is a summary of the National Rifle Association of America v. Maria T. Vullo case: The Supreme Court ruled that government officials cannot coerce private parties to suppress or punish views they disagree with, reaffirming a previous decision from six decades ago. The Court sent the case back to lower courts to determine if the NRA's allegations of retaliation by Maria Vullo, the superintendent of the New York Department of Financial Services, were true. The NRA claimed Vullo threatened enforcement actions against insurers with ties to the NRA to stifle its pro-gun advocacy. The Court emphasized the distinction between government coercion and retaliation, stating that the lower courts should analyze the NRA's censorship and retaliation claims independently.

Equal Protection

Gong Lum v. Rice

https://supreme.justia.com/cases/federal/us/275/78/

U.S. Supreme Court Gong Lum v. Rice, 275 U.S. 78 (1927) Gong Lum v. Rice No. 29 Submitted October 12, 1927 Decided November 21, 1927 275 U.S. 78 ERROR TO THE SUPREME COURT OF THE STATE OF MISSISSIPPI Syllabus A child of Chinese blood, born in and a citizen of the United States, is not denied the equal protection of the law by being classed by the state among the colored races who are assigned to public schools separate from those provided for the whites when equal facilities for education are afforded to both classes. P. 275 U. S. 85 . 139 Miss. 760 affirmed. Error to a judgment of the Supreme Court of Mississippi reversing a judgment awarding the writ of mandamus. The writ was applied for in the interest of Martha Lum, a child of Chinese blood, born in the United States, and was directed to the trustees of a high school district and the state Superintendent of Education, commanding them to cease discriminating against her and to admit her to the privileges of the high school specified, which was assigned to white children exclusively. Page 275 U. S. 79 MR. CHIEF JUSTICE TAFT delivered the opinion of the Court. This was a petition for mandamus filed in the state circuit court of Mississippi for the First judicial district of Bolivar County. Gong Lum is a resident of Mississippi, resides in the Rosedale Consolidated High School District, and is the father of Martha Lum. He is engaged in the mercantile business. Neither he nor she was connected with the consular service, or any other service, of the government of China, or any other government at the time of her birth. Page 275 U. S. 80 She was nine years old when the petition was filed, having been born January 21, 1915, and she sued by her next friend, Chew How, who is a native-born citizen of the United States and the State of Mississippi. The petition alleged that she was of good moral character, between the ages of 5 and 21 years, and that, as she was such a citizen and an educable child, it became her father's duty under the law to send her to school; that she desired to attend the Rosedale Consolidated High School; that, at the opening of the school, she appeared as a pupil, but at the noon recess she was notified by the superintendent that she would not be allowed to return to the school; that an order had been issued by the board of trustees, who are made defendants, excluding her from attending the school solely on the ground that she was of Chinese descent, and not a member of the white or Caucasian race, and that their order had been made in pursuance to instructions from the State Superintendent of Education of Mississippi, who is also made a defendant. The petitioners further show that there is no school maintained in the district for the education of children of Chinese descent, and none established in Bolivar County where she could attend. The Constitution of Mississippi requires that there shall be a county common school fund, made up of poll taxes from the various counties, to be retained in the counties where the same is collected, and a state common school fund to be taken from the general fund in the state treasury, which together shall be sufficient to maintain a common school for a term of four months in each scholastic year, but that any county or separate school district may levy an additional tax to maintain schools for a longer time than a term of four months, and that the said common school fund shall be distributed among the several counties and separate school districts in proportion to the number of educable children in each, to be collected Page 275 U. S. 81 from the data in the office of the State Superintendent of Education in the manner prescribed by law; that the legislature encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement by the establishment of a uniform system of free public schools by taxation or otherwise, for all children between the ages of 5 and 21 years, and. as soon as practicable, establish schools of higher grade. The petition alleged that, in obedience to this mandate of the constitution, the legislature has provided for the establishment and for the payment of the expenses of the Rosedale Consolidated High School, and that the plaintiff, Gong Lum, the petitioner's father, is a taxpayer and helps to support and maintain the school; that Martha Lum is an educable child, is entitled to attend the school as a pupil, and that this is the only school conducted in the district available for her as a pupil; that the right to attend it is a valuable right; that she is not a member of the colored race, nor is she of mixed blood, but that she is pure Chinese; that she is, by the action of the board of trustees and the state superintendent, discriminated against directly, and denied her right to be a member of the Rosedale school; that the school authorities have no discretion under the law as to her admission as a pupil in the school, but that they continue without authority of law to deny her the right to attend it as a pupil. For these reasons, the writ of mandamus is prayed for against the defendants, commanding them and each of them to desist from discriminating against her on account of her race or ancestry, and to give her the same rights and privileges that other educable children between the ages of 5 and 21 are granted in the Rosedale Consolidated High School. The petition was demurred to by the defendants on the ground, among others, that the bill showed on its face that plaintiff is a member of the Mongolian or yellow race, and Page 275 U. S. 82 therefore not entitled to attend the schools provided by law in the State of Mississippi for children of the white or Caucasian race. The trial court overruled the demurrer and ordered that a writ of mandamus issue to the defendants as prayed in the petition. The defendants then appealed to the Supreme Court of Mississippi, which heard the case. Rice v. Gong Lum, 139 Miss. 760. In its opinion, it directed its attention to the proper construction of § 207 of the state constitution of 1890, which provides: "Separate schools shall be maintained for children of the white and colored races." The court held that this provision of the constitution divided the educable children into those of the pure white or Caucasian race, on the one hand, and the brown, yellow, and black races, on the other, and therefore that Martha Lum, of the Mongolian or yellow race, could not insist on being classed with the whites under this constitutional division. The court said: "The legislature is not compelled to provide separate schools for each of the colored races, and unless and until it does provide such schools, and provide for segregation of the other races, such races are entitled to have the benefit of the colored public schools. Under our statutes, a colored public school exists in every county and in some convenient district, in which every colored child is entitled to obtain an education. These schools are within the reach of all the children of the state, and the plaintiff does not show by her petition that she applied for admission to such schools. On the contrary, the petitioner takes the position that, because there are no separate public schools for Mongolians, she is entitled to enter the white public schools in preference to the colored public schools. A consolidated school in this state is simply a common school conducted as other common schools are conducted; Page 275 U. S. 83 the only distinction being that two or more school districts have been consolidated into one school. Such consolidation is entirely discretionary with the county school board, having reference to the condition existing in the particular territory. Where a school district has an unusual amount of territory, with an unusual valuation of property therein, it may levy additional taxes. But the other common schools under similar statutes have the same power." "If the plaintiff desires, she may attend the colored public schools of her district, or, if she does not so desire, she may go to a private school. The compulsory school law of this state does not require the attendance at a public school, and a parent under the decisions of the Supreme Court of the United States has a right to educate his child in a private school if he so desires. But plaintiff is not entitled to attend a white public school." As we have seen, the plaintiffs aver that the Rosedale Consolidated High School is the only school conducted in that district available for Martha Lum as a pupil. They also aver that there is no school maintained in the district of Bolivar County for the education of Chinese children, and none in the county. How are these averments to be reconciled with the statement of the state supreme court that colored schools are maintained in every county by virtue of the constitution? This seems to be explained, in the language of the state supreme court, as follows: "By statute it is provided that all the territory of each county of the state shall be divided into school districts separately for the white and colored races -- that is to say, the whole territory is to be divided into white school districts, and then a new division of the county for colored school districts. In other words, the statutory scheme is to make the districts, outside of the separate school districts, districts for the particular race, white or colored, so that the territorial limits of the school districts need Page 275 U. S. 84 not be the same, but the territory embraced in a school district for the colored race may not be the same territory embraced in the school district for the white race, and vice versa, which system of creating the common school districts for the two races, white and colored, do not require schools for each race as such to be maintained in each district, but each child, no matter from what territory, is assigned to some school district, the school buildings being separately located and separately controlled, but each having the same curriculum, and each having the same number of months of school term, if the attendance is maintained for the said statutory period, which school district of the common or public schools has certain privileges, among which is to maintain a public school by local taxation for a longer period of time than the said term of four months under named conditions which apply alike to the common schools for the white and colored races." We must assume, then, that there are school districts for colored children in Bolivar County, but that no colored school is within the limits of the Rosedale Consolidated High School District. This is not inconsistent with there being at a place outside of that district and in a different district, a colored school which the plaintiff Martha Lum may conveniently attend. If so, she is not denied, under the existing school system, the right to attend and enjoy the privileges of a common school education in a colored school. If it were otherwise, the petition should have contained an allegation showing it. Had the petition alleged specifically that there was no colored school in Martha Lum's neighborhood to which she could conveniently go, a different question would have been presented, and this without regard to the state supreme court's construction of the state constitution as limiting the white schools provided for the education of children of the white or Caucasian race. But we do not find the petition to present such a situation. Page 275 U. S. 85 The case then reduces itself to the question whether a state can be said to afford to a child of Chinese ancestry, born in this country and a citizen of the United States, the equal protection of the laws by giving her the opportunity for a common school education in a school which receives only colored children of the brown, yellow, or black races. The right and power of the state to regulate the method of providing for the education of its youth at public expense is clear. In Cumming v. Richmond County Board of Education, 175 U. S. 528 , 175 U. S. 545 , persons of color sued the board of education to enjoin it from maintaining a high school for white children without providing a similar school for colored children, which had existed and had been discontinued. Mr. Justice Harlan, in delivering the opinion of the Court, said: "Under the circumstances disclosed, we cannot say that this action of the state court was, within the meaning of the Fourteenth Amendment, a denial by the state to the plaintiffs and to those associated with them of the equal protection of the laws, or of any privileges belonging to them as citizens of the United States. We may add that, while all admit that the benefits and burdens of public taxation must be shared by citizens without discrimination against any class on account of their race, the education of the people in schools maintained by state taxation is a matter belonging to the respective states, and any interference on the part of federal authority with the management of such schools cannot be justified, except in the case of a clear and unmistakable disregard of rights secured by the supreme law of the land." The question here is whether a Chinese citizen of the United States is denied equal protection of the laws when he is classed among the colored races and furnished facilities for education equal to that offered to all, whether white, brown, yellow, or black. Were this a new question, Page 275 U. S. 86 it would call for very full argument and consideration; but we think that it is the same question which has been many times decided to be within the constitutional power of the state legislature to settle, without intervention of the federal courts under the federal Constitution. Roberts v. City of Boston, 5 Cush. 198, 206, 208, 209; State ex rel. Garnes v. McCann, 21 Ohio St.198, 210; People ex rel. King v. Gallagher, 93 N.Y. 438; People ex rel. Cisco v. School Board, 161 N.Y. 598; Ward v. Flood, 48 Cal. 36; Wysinger v. Crookshank, 82 Cal. 588, 590; Reynolds v. Board of Education, 66 Kan. 672; McMillan v. School Committee, 107 N.C. 609; Cory v. Carter, 48 Ind. 327; Lehew v. Brummell, 103 Mo. 546; Dameron v. Bayless, 14 Ariz. 180; State ex rel. Stoutmeyer v. Duffy, 7 Nev. 342, 348, 355; Bertonneau v. Board, 3 Woods, 177, 3 Fed.Cas. 294, Case No. 1,361; United States v. Buntin, 10 F. 730, 735; Wong Him v. Callahan, 119 F. 381. In Plessy v. Ferguson, 163 U. S. 537 , 163 U. S. 544 -545, in upholding the validity under the Fourteenth Amendment of a statute of Louisiana requiring the separation of the white and colored races in railway coaches, a more difficult question than this, this Court, speaking of permitted race separation, said: "The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced." The case of Roberts v. City of Boston, supra, in which Chief Justice Shaw, of the Supreme Judicial Court of Massachusetts, announced the opinion of that court upholding the separation of colored and white schools under Page 275 U. S. 87 a state constitutional injunction of equal protection, the same as the Fourteenth Amendment, was then referred to, and this Court continued: "Similar laws have been enacted by Congress under its general power of legislation over the District of Columbia, Rev.Stat.D.C. §§ 281, 282, 283, 310, 319, as well as by the legislatures of many of the states, and have been generally, if not uniformly, sustained by the courts" -- citing many of the cases above named. Most of the cases cited arose, it is true, over the establishment of separate schools as between white pupils and black pupils, but we cannot think that the question is any different, or that any different result can be reached, assuming the cases above cited to be rightly decided, where the issue is as between white pupils and the pupils of the yellow races. The decision is within the discretion of the state in regulating its public schools, and does not conflict with the Fourteenth Amendment. The judgment of the Supreme Court of Mississippi is Affirmed.

In Gong Lum v. Rice, the U.S. Supreme Court ruled that a child of Chinese descent, born in the United States, was not denied equal protection under the law when they were classified as "colored" and assigned to a public school for non-whites, as long as equal educational facilities were provided for both white and non-white students. The Court upheld the power of states to separate students by race in public schools, as long as equal facilities were offered to both races. This decision reflected the Court's stance on racial segregation at the time, which allowed for separate but equal facilities for different races, as previously established in Plessy v. Ferguson.

Equal Protection

Civil Rights Cases

https://supreme.justia.com/cases/federal/us/109/3/

U.S. Supreme Court Civil Rights Cases, 109 U.S. 3 (1883) Civil Rights Cases Submitted October Term, 1882 Decided October 16th, 1888 109 U.S. 3 ON CERTIFICATE OF DIVISION FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KANSAS Syllabus 1. The 1st and 2d sections of the Civil Rights Act passed March 1st, 1876, are unconstitutional enactments as applied to the several States, not being authorized either by the XIIIth or XIVth Amendments of the Constitution. 2. The XIVth Amendment is prohibitory upon the States only, and the legislation authorized to be adopted by Congress for enforcing it is not direct legislation on the matters respecting which the States are prohibited from making or enforcing certain laws, or doing certain acts, but is corrective legislation such as may be necessary or proper for counteracting and redressing the effect of such laws or acts. Page 109 U. S. 4 The XIIIth Amendment relates only to slavery and involuntary servitude (which it abolishes), and, although, by its reflex action, it establishes universal freedom in the United States, and Congress may probably pass laws directly enforcing its provisions, yet such legislative power extends only to the subject of slavery and its incidents, and the denial of equal accommodations in inns, public conveyances, and places of public amusement (which is forbidden by the sections in question), imposes no badge of slavery or involuntary servitude upon the party but at most, infringes rights which are protected from State aggression by the XIVth Amendment. 4. Whether the accommodations and privileges sought to be protected by the 1st and 2d sections of the Civil Rights Act are or are not rights constitutionally demandable, and if they are, in what form they are to be protected, is not now decided. 5. Nor is it decided whether the law, as it stands, is operative in the Territories and District of Columbia, the decision only relating to its validity as applied to the States. 6. Nor is it decided whether Congress, under the commercial power, may or may not pass a law securing to all persons equal accommodations on lines of public conveyance between two or more States. These cases were all founded on the first and second sections of the Act of Congress known as the Civil Rights Act, passed March 1st, 1875, entitled "An Act to protect all citizens in their civil and legal rights." 18 Stat. 335. Two of the cases, those against Stanley and Nichols, were indictments for denying to persons of color the accommodations and privileges of an inn or hotel; two of them, those against Ryan and Singleton, were, one on information, the other an indictment, for denying to individuals the privileges and accommodations of a theatre, the information against Ryan being for refusing a colored person a seat in the dress circle of Maguire's theatre in San Francisco, and the indictment against Singleton was for denying to another person, whose color was not stated, the full enjoyment of the accommodations of the theatre known as the Grand Opera House in New York, "said denial not being made for any reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude." The case of Robinson and wife against the Memphis & Charleston R.R. Company was an action brought in the Circuit Court of the United States for the Western District of Tennessee to recover the penalty of five hundred dollars Page 109 U. S. 5 given by the second section of the act, and the gravamen was the refusal by the conductor of the railroad company to allow the wife to ride in the ladies' car, for the reason, as stated in one of the counts, that she was a person of African descent. The jury rendered a verdict for the defendants in this case upon the merits, under a charge of the court to which a bill of exceptions was taken by the plaintiffs. The case was tried on the assumption by both parties of the validity of the act of Congress, and the principal point made by the exceptions was that the judge allowed evidence to go to the jury tending to show that the conductor had reason to suspect that the plaintiff, the wife, was an improper person because she was in company with a young man whom he supposed to be a white man, and, on that account, inferred that there was some improper connection between them, and the judge charged the jury, in substance, that, if this was the conductor's bona fide reason for excluding the woman from the car, they might take it into consideration on the question of the liability of the company. The case was brought here by writ of error at the suit of the plaintiffs. The cases of Stanley, Nichols, and Singleton came up on certificates of division of opinion between the judges below as to the constitutionality of the first and second sections of the act referred to, and the case of Ryan on a writ of error to the judgment of the Circuit Court for the District of California sustaining a demurrer to the information. The Stanley, Ryan, Nichols, and Singleton cases were submitted together by the solicitor general at the last term of court, on the 7th day of November, 1882. There were no appearances, and no briefs filed for the defendants. The Robinson case was submitted on the briefs at the last term, on the 9th day of arch, 1883. Page 109 U. S. 8 MR. JUSTICE BRADLEY delivered the opinion of the court. After stating the facts in the above language, he continued: It is obvious that the primary and important question in all Page 109 U. S. 9 the cases is the constitutionality of the law, for if the law is unconstitutional, none of the prosecutions can stand. The sections of the law referred to provide as follows: "SEC. 1. That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theatres, and other places of public amusement, subject only to the conditions and limitations established by law and applicable alike to citizens of every race and color, regardless of any previous condition of servitude." "SEC. 2. That any person who shall violate the foregoing section by denying to any citizen, except for reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servitude, the full enjoyment of any of the accommodations, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such denial, shall for every such offence, forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered in an action of debt, with full costs, and shall also, for every such offence, be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than five hundred nor more than one thousand dollars, or shall be imprisoned not less than thirty days nor more than one year, Provided, That all persons may elect to sue for the penalty aforesaid, or to proceed under their rights at common law and by State statutes, and having so elected to proceed in the one mode or the other, their right to proceed in the other jurisdiction shall be barred. But this provision shall not apply to criminal proceedings, either under this act or the criminal law of any State; and provided further, that a judgment for the penalty in favor of the party aggrieved, or a judgment upon an indictment, shall be a bar to either prosecution respectively." Are these sections constitutional? The first section, which is the principal one, cannot be fairly understood without attending to the last clause, which qualifies the preceding part. The essence of the law is not to declare broadly that all persons shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, Page 109 U. S. 10 public conveyances, and theatres, but that such enjoyment shall not be subject to any conditions applicable only to citizens of a particular race or color, or who had been in a previous condition of servitude. In other words, it is the purpose of the law to declare that, in the enjoyment of the accommodations and privileges of inns, public conveyances, theatres, and other places of public amusement, no distinction shall be made between citizens of different race or color or between those who have, and those who have not, been slaves. Its effect is to declare that, in all inns, public conveyances, and places of amusement, colored citizens, whether formerly slaves or not, and citizens of other races, shall have the same accommodations and privileges in all inns, public conveyances, and places of amusement as are enjoyed by white citizens, and vice versa. The second section makes it a penal offence in any person to deny to any citizen of any race or color, regardless of previous servitude, any of the accommodations or privileges mentioned in the first section. Has Congress constitutional power to make such a law? Of course, no one will contend that the power to pass it was contained in the Constitution before the adoption of the last three amendments. The power is sought, first, in the Fourteenth Amendment, and the views and arguments of distinguished Senators, advanced whilst the law was under consideration, claiming authority to pass it by virtue of that amendment, are the principal arguments adduced in favor of the power. We have carefully considered those arguments, as was due to the eminent ability of those who put them forward, and have felt, in all its force, the weight of authority which always invests a law that Congress deems itself competent to pass. But the responsibility of an independent judgment is now thrown upon this court, and we are bound to exercise it according to the best lights we have. The first section of the Fourteenth Amendment (which is the one relied on), after declaring who shall be citizens of the United States, and of the several States, is prohibitory in its character, and prohibitory upon the States. It declares that: Page 109 U. S. 11 "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States or which injures them in life, liberty or property without due process of law, or which denies to any of them the equal protection of the laws. It not only does this, but, in order that the national will, thus declared, may not be a mere brutum fulmen, the last section of the amendment invests Congress with power to enforce it by appropriate legislation. To enforce what? To enforce the prohibition. To adopt appropriate legislation for correcting the effects of such prohibited State laws and State acts, and thus to render them effectually null, void, and innocuous. This is the legislative power conferred upon Congress, and this is the whole of it. It does not invest Congress with power to legislate upon subjects which are within the domain of State legislation, but to provide modes of relief against State legislation, or State action, of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights, but to provide modes of redress against the operation of State laws and the action of State officers executive or judicial when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the Fourteenth Amendment, but they are secured by way of prohibition against State laws and State proceedings affecting those rights and privileges, and by power given to Congress to legislate for the purpose of carrying such prohibition into effect, and such legislation must necessarily be predicated upon such supposed State laws or State proceedings, and be directed to the correction Page 109 U. S. 12 of their operation and effect. A quite full discussion of this aspect of the amendment may be found in United Sates v. Cruikshank, 92 U. S. 542 ; Virginia v. Rives, 100 U. S. 313 , and Ex parte Virginia, 100 U. S. 339 . An apt illustration of this distinction may be found in some of the provisions of the original Constitution. Take the subject of contracts, for example. The Constitution prohibited the States from passing any law impairing the obligation of contracts. This did not give to Congress power to provide laws for the general enforcement of contracts, nor power to invest the courts of the United States with jurisdiction over contracts, so as to enable parties to sue upon them in those courts. It did, however, give the power to provide remedies by which the impairment of contracts by State legislation might be counteracted and corrected, and this power was exercised. The remedy which Congress actually provided was that contained in the 25th section of the Judiciary Act of 1789, 1 Stat. 8, giving to the Supreme Court of the United States jurisdiction by writ of error to review the final decisions of State courts whenever they should sustain the validity of a State statute or authority alleged to be repugnant to the Constitution or laws of the United States. By this means, if a State law was passed impairing the obligation of a contract and the State tribunals sustained the validity of the law, the mischief could be corrected in this court. The legislation of Congress, and the proceedings provided for under it, were corrective in their character. No attempt was made to draw into the United States courts the litigation of contracts generally, and no such attempt would have been sustained. We do not say that the remedy provided was the only one that might have been provided in that case. Probably Congress had power to pass a law giving to the courts of the United States direct jurisdiction over contracts alleged to be impaired by a State law, and under the broad provisions of the act of March 3d 1875, ch. 137, 18 Stat. 470, giving to the circuit courts jurisdiction of all cases arising under the Constitution and laws of the United States, it is possible that such jurisdiction now exists. But under that, or any other law, it must appear as Page 109 U. S. 13 well by allegation, as proof at the trial, that the Constitution had been violated by the action of the State legislature. Some obnoxious State law passed, or that might be passed, is necessary to be assumed in order to lay the foundation of any federal remedy in the case, and for the very sufficient reason that the constitutional prohibition is against State laws impairing the obligation of contracts. And so, in the present case, until some State law has been passed, or some State action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the Fourteenth Amendment, no legislation of the United States under said amendment, nor any proceeding under such legislation, can be called into activity, for the prohibitions of the amendment are against State laws and acts done under State authority. Of course, legislation may, and should, be provided in advance to meet the exigency when it arises, but it should be adapted to the mischief and wrong which the amendment was intended to provide against, and that is State laws, or State action of some kind, adverse to the rights of the citizen secured by the amendment. Such legislation cannot properly cover the whole domain of rights appertaining to life, liberty and property, defining them and providing for their vindication. That would be to establish a code of municipal law regulative of all private rights between man and man in society. It would be to make Congress take the place of the State legislatures and to supersede them. It is absurd to affirm that, because the rights of life, liberty, and property (which include all civil rights that men have) are, by the amendment, sought to be protected against invasion on the part of the State without due process of law, Congress may therefore provide due process of law for their vindication in every case, and that, because the denial by a State to any persons of the equal protection of the laws is prohibited by the amendment, therefore Congress may establish laws for their equal protection. In fine, the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation, that is, such as may be necessary and proper for counteracting such laws as the States may Page 109 U. S. 14 adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing, or such acts and proceedings as the States may commit or take, and which, by the amendment, they are prohibited from committing or taking. It is not necessary for us to state, if we could, what legislation would be proper for Congress to adopt. It is sufficient for us to examine whether the law in question is of that character. An inspection of the law shows that it makes no reference whatever to any supposed or apprehended violation of the Fourteenth Amendment on the part of the States. It is not predicated on any such view. It proceeds ex directo to declare that certain acts committed by individuals shall be deemed offences, and shall be prosecuted and punished by proceedings in the courts of the United States. It does not profess to be corrective of any constitutional wrong committed by the States; it does not make its operation to depend upon any such wrong committed. It applies equally to cases arising in States which have the justest laws respecting the personal rights of citizens, and whose authorities are ever ready to enforce such laws, as to those which arise in States that may have violated the prohibition of the amendment. In other words, it steps into the domain of local jurisprudence, and lays down rules for the conduct of individuals in society towards each other, and imposes sanctions for the enforcement of those rules, without referring in any manner to any supposed action of the State or its authorities. If this legislation is appropriate for enforcing the prohibitions of the amendment, it is difficult to see where it is to stop. Why may not Congress, with equal show of authority, enact a code of laws for the enforcement and vindication of all rights of life, liberty, and property? If it is supposable that the States may deprive persons of life, liberty, and property without due process of law (and the amendment itself does suppose this), why should not Congress proceed at once to prescribe due process of law for the protection of every one of these fundamental rights, in every possible case, as well as to prescribe equal privileges in inns, public conveyances, and theatres? The truth is that the implication of a power to legislate in this manner is based Page 109 U. S. 15 upon the assumption that, if the States are forbidden to legislate or act in a particular way on a particular subject, and power is conferred upon Congress to enforce the prohibition, this gives Congress power to legislate generally upon that subject, and not merely power to provide modes of redress against such State legislation or action. The assumption is certainly unsound. It is repugnant to the Tenth Amendment of the Constitution, which declares that powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people. We have not overlooked the fact that the fourth section of the act now under consideration has been held by this court to be constitutional. That section declares "that no citizen, possessing all other qualifications which are or may be prescribed by law, shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude, and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid, shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than five thousand dollars." In Ex parte Virginia, 100 U. S. 339 , it was held that an indictment against a State officer under this section for excluding persons of color from the jury list is sustainable. But a moment's attention to its terms will show that the section is entirely corrective in its character. Disqualifications for service on juries are only created by the law, and the first part of the section is aimed at certain disqualifying laws, namely, those which make mere race or color a disqualification, and the second clause is directed against those who, assuming to use the authority of the State government, carry into effect such a rule of disqualification. In the Virginia case, the State, through its officer, enforced a rule of disqualification which the law was intended to abrogate and counteract. Whether the statute book of the State actually laid down any such rule of disqualification or not, the State, through its officer, enforced such a rule, and it is against such State action, through its officers and agents, that the last clause of the section is directed. Page 109 U. S. 16 This aspect of the law was deemed sufficient to divest it of any unconstitutional character, and makes it differ widely from the first and second sections of the same act which we are now considering. These sections, in the objectionable features before referred to, are different also from the law ordinarily called the "Civil Rights Bill," originally passed April 9th, 1866, 14 Stat. 27, ch. 31, and reenacted with some modifications in sections 16, 17, 18, of the Enforcement Act, passed ay 31st, 1870, 16 Stat. 140, ch. 114. That law, as reenacted, after declaring that all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses and exactions of every kind, and none other, any law, statute, ordinance, regulation or custom to the contrary notwithstanding, proceeds to enact that any person who, under color of any law, statute, ordinance, regulation or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any rights secured or protected by the preceding section (above quoted), or to different punishment, pains, or penalties, on account of such person's being an alien, or by reason of his color or race, than is prescribed for the punishment of citizens, shall be deemed guilty of a misdemeanor, and subject to fine and imprisonment as specified in the act. This law is clearly corrective in its character, intended to counteract and furnish redress against State laws and proceedings, and customs having the force of law, which sanction the wrongful acts specified. In the Revised Statutes, it is true, a very important clause, to-wit, the words "any law, statute, ordinance, regulation or custom to the contrary notwithstanding," which gave the declaratory section its point and effect, are omitted; but the penal part, by which the declaration is enforced, and which is really the effective part of the law, retains the reference to State laws by making the penalty apply only to those who should subject Page 109 U. S. 17 parties to a deprivation of their rights under color of any statute, ordinance, custom, etc., of any State or Territory, thus preserving the corrective character of the legislation. Rev. St. §§ 177, 1978, 1979, 5510. The Civil Rights Bill here referred to is analogous in its character to what a law would have been under the original Constitution, declaring that the validity of contracts should not be impaired, and that, if any person bound by a contract should refuse to comply with it, under color or pretence that it had been rendered void or invalid by a State law, he should be liable to an action upon it in the courts of the United States, with the addition of a penalty for setting up such an unjust and unconstitutional defence. In this connection, it is proper to state that civil rights, such as are guaranteed by the Constitution against State aggression, cannot be impaired by the wrongful acts of individuals, unsupported by State authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true, whether they affect his person, his property, or his reputation; but if not sanctioned in some way by the State, or not done under State authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the State for redress. An individual cannot deprive a man of his right to vote, to hold property, to buy and sell, to sue in the courts, or to be a witness or a juror; he may, by force or fraud, interfere with the enjoyment of the right in a particular case; he may commit an assault against the person, or commit murder, or use ruffian violence at the polls, or slander the good name of a fellow citizen; but, unless protected in these wrongful acts by some shield of State law or State authority, he cannot destroy or injure the right; he will only render himself amenable to satisfaction or punishment, and amenable therefor to the laws of the State where the wrongful acts are committed. Hence, in all those cases where the Constitution seeks to protect the rights of the citizen against discriminative and unjust laws of the State by prohibiting such laws, it is not individual offences, but abrogation and Page 109 U. S. 18 denial of rights, which it denounces and for which it clothes the Congress with power to provide a remedy. This abrogation and denial of rights for which the States alone were or could be responsible was the great seminal and fundamental wrong which was intended to be remedied. And the remedy to be provided must necessarily be predicated upon that wrong. It must assume that, in the cases provided for, the evil or wrong actually committed rests upon some State law or State authority for its excuse and perpetration. Of course, these remarks do not apply to those cases in which Congress is clothed with direct and plenary powers of legislation over the whole subject, accompanied with an express or implied denial of such power to the States, as in the regulation of commerce with foreign nations, among the several States, and with the Indian tribes, the coining of money, the establishment of post offices and post roads, the declaring of war, etc. In these cases, Congress has power to pass laws for regulating the subjects specified in every detail, and the conduct and transactions of individuals in respect thereof. But where a subject is not submitted to the general legislative power of Congress, but is only submitted thereto for the purpose of rendering effective some prohibition against particular State legislation or State action in reference to that subject, the power given is limited by its object, and any legislation by Congress in the matter must necessarily be corrective in its character, adapted to counteract and redress the operation of such prohibited State laws or proceedings of State officers. If the principles of interpretation which we have laid down are correct, as we deem them to be (and they are in accord with the principles laid down in the cases before referred to, as well as in the recent case of United States v. Harris, 106 U. S. 629 ), it is clear that the law in question cannot be sustained by any grant of legislative power made to Congress by the Fourteenth Amendment. That amendment prohibits the States from denying to any person the equal protection of the laws, and declares that Congress shall have power to enforce, by appropriate legislation, the provisions of the amendment. The law in question, without any reference to adverse State legislation on the subject, Page 109 U. S. 19 declares that all persons shall be entitled to equal accommodations and privileges of inns, public conveyances, and places of public amusement, and imposes a penalty upon any individual who shall deny to any citizen such equal accommodations and privileges. This is not corrective legislation; it is primary and direct; it takes immediate and absolute possession of the subject of the right of admission to inns, public conveyances, and places of amusement. It supersedes and displaces State legislation on the same subject, or only allows it permissive force. It ignores such legislation, and assumes that the matter is one that belongs to the domain of national regulation. Whether it would not have been a more effective protection of the rights of citizens to have clothed Congress with plenary power over the whole subject is not now the question. What we have to decide is whether such plenary power has been conferred upon Congress by the Fourteenth Amendment, and, in our judgment, it has not. We have discussed the question presented by the law on the assumption that a right to enjoy equal accommodation and privileges in all inns, public conveyances, and places of public amusement is one of the essential rights of the citizen which no State can abridge or interfere with. Whether it is such a right or not is a different question which, in the view we have taken of the validity of the law on the ground already stated, it is not necessary to examine. We have also discussed the validity of the law in reference to cases arising in the States only, and not in reference to cases arising in the Territories or the District of Columbia, which are subject to the plenary legislation of Congress in every branch of municipal regulation. Whether the law would be a valid one as applied to the Territories and the District is not a question for consideration in the cases before us, they all being cases arising within the limits of States. And whether Congress, in the exercise of its power to regulate commerce amongst the several States, might or might not pass a law regulating rights in public conveyances passing from one State to another is also a question which is not now before us, as the sections in question are not conceived in any such view. Page 109 U. S. 20 But the power of Congress to adopt direct and primary, as distinguished from corrective, legislation on the subject in hand is sought, in the second place, from the Thirteenth Amendment, which abolishes slavery. This amendment declares "that neither slavery, nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction," and it gives Congress power to enforce the amendment by appropriate legislation. This amendment, as well as the Fourteenth, is undoubtedly self-executing, without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances. By its own unaided force and effect, it abolished slavery and established universal freedom. Still, legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it, and to prescribe proper modes of redress for its violation in letter or spirit. And such legislation may be primary and direct in its character, for the amendment is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States. It is true that slavery cannot exist without law, any more than property in lands and goods can exist without law, and, therefore, the Thirteenth Amendment may be regarded as nullifying all State laws which establish or uphold slavery. But it has a reflex character also, establishing and decreeing universal civil and political freedom throughout the United States, and it is assumed that the power vested in Congress to enforce the article by appropriate legislation clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States, and, upon this assumption ,it is claimed that this is sufficient authority for declaring by law that all persons shall have equal accommodations and privileges in all inns, public conveyances, and places of amusement, the argument being that the denial of such equal accommodations and privileges is, in itself, a subjection to a species of servitude within the meaning of the amendment. Conceding the major proposition to be true, that Page 109 U. S. 21 Congress has a right to enact all necessary and proper laws for the obliteration and prevention of slavery with all its badges and incidents, is the minor proposition also true, that the denial to any person of admission to the accommodations and privileges of an inn, a public conveyance, or a theatre does subject that person to any form of servitude, or tend to fasten upon him any badge of slavery? If it does not, then power to pass the law is not found in the Thirteenth Amendment. In a very able and learned presentation of the cognate question as to the extent of the rights, privileges and immunities of citizens which cannot rightfully be abridged by state laws under the Fourteenth Amendment, made in a former case, a long list of burdens and disabilities of a servile character, incident to feudal vassalage in France, and which were abolished by the decrees of the National Assembly, was presented for the purpose of showing that all inequalities and observances exacted by one man from another were servitudes or badges of slavery which a great nation, in its effort to establish universal liberty, made haste to wipe out and destroy. But these were servitudes imposed by the old law, or by long custom, which had the force of law, and exacted by one man from another without the latter's consent. Should any such servitudes be imposed by a state law, there can be no doubt that the law would be repugnant to the Fourteenth, no less than to the Thirteenth, Amendment, nor any greater doubt that Congress has adequate power to forbid any such servitude from being exacted. But is there any similarity between such servitudes and a denial by the owner of an inn, a public conveyance, or a theatre of its accommodations and privileges to an individual, even though the denial be founded on the race or color of that individual? Where does any slavery or servitude, or badge of either, arise from such an act of denial? Whether it might not be a denial of a right which, if sanctioned by the state law, would be obnoxious to the prohibitions of the Fourteenth Amendment is another question. But what has it to do with the question of slavery? It may be that, by the Black Code (as it was called), in the times when slavery prevailed, the proprietors of inns and public Page 109 U. S. 22 conveyances were forbidden to receive persons of the African race because it might assist slaves to escape from the control of their masters. This was merely a means of preventing such escapes, and was no part of the servitude itself. A law of that kind could not have any such object now, however justly it might be deemed an invasion of the party's legal right as a citizen, and amenable to the prohibitions of the Fourteenth Amendment. The long existence of African slavery in this country gave us very distinct notions of what it was and what were its necessary incidents. Compulsory service of the slave for the benefit of the master, restraint of his movements except by the master's will, disability to hold property, to make contracts, to have a standing in court, to be a witness against a white person, and such like burdens and incapacities were the inseparable incidents of the institution. Severer punishments for crimes were imposed on the slave than on free persons guilty of the same offences. Congress, as we have seen, by the Civil Rights Bill of 1866, passed in view of the Thirteenth Amendment before the Fourteenth was adopted, undertook to wipe out these burdens and disabilities, the necessary incidents of slavery constituting its substance and visible form, and to secure to all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom, namely, the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell and convey property as is enjoyed by white citizens. Whether this legislation was fully authorized by the Thirteenth Amendment alone, without the support which it afterward received from the Fourteenth Amendment, after the adoption of which it was reenacted with some additions, it is not necessary to inquire. It is referred to for the purpose of showing that, at that time (in 1866), Congress did not assume, under the authority given by the Thirteenth Amendment, to adjust what may be called the social rights of men and races in the community, but only to declare and vindicate those fundamental rights which appertain to the essence of citizenship, and the enjoyment or deprivation of which constitutes the essential distinction between freedom and slavery. Page 109 U. S. 23 We must not forget that the province and scope of the Thirteenth and Fourteenth amendments are different: the former simply abolished slavery; the latter prohibited the States from abridging the privileges or immunities of citizens of the United States, from depriving them of life, liberty, or property without due process of law, and from denying to any the equal protection of the laws. The amendments are different, and the powers of Congress under them are different. What Congress has power to do under one it may not have power to do under the other. Under the Thirteenth Amendment, it has only to do with slavery and its incidents. Under the Fourteenth Amendment, it has power to counteract and render nugatory all State laws and proceedings which have the effect to abridge any of the privileges or immunities of citizens of the United States, or to deprive them of life, liberty or property without due process of law, or to deny to any of them the equal protection of the laws. Under the Thirteenth Amendment, the legislation, so far as necessary or proper to eradicate all forms and incidents of slavery and involuntary servitude, may be direct and primary, operating upon the acts of individuals, whether sanctioned by State legislation or not; under the Fourteenth, as we have already shown, it must necessarily be, and can only be, corrective in its character, addressed to counteract and afford relief against State regulations or proceedings. The only question under the present head, therefore, is whether the refusal to any persons of the accommodations of an inn or a public conveyance or a place of public amusement by an individual, and without any sanction or support from any State law or regulation, does inflict upon such persons any manner of servitude or form of slavery as those terms are understood in this country? Many wrongs may be obnoxious to the prohibitions of the Fourteenth Amendment which are not, in any just sense, incidents or elements of slavery. Such, for example, would be the taking of private property without due process of law, or allowing persons who have committed certain crimes (horse stealing, for example) to be seized and hung by the posse comitatus without regular trial, or denying to any person, or class of persons, the right to pursue any peaceful Page 109 U. S. 24 avocations allowed to others. What is called class legislation would belong to this category, and would be obnoxious to the prohibitions of the Fourteenth Amendment, but would not necessarily be so to the Thirteenth, when not involving the idea of any subjection of one man to another. The Thirteenth Amendment has respect not to distinctions of race or class or color, but to slavery. The Fourteenth Amendment extends its protection to races and classes, and prohibits any State legislation which has the effect of denying to any race or class, or to any individual, the equal protection of the laws. Now, conceding for the sake of the argument that the admission to an inn, a public conveyance, or a place of public amusement on equal terms with all other citizens is the right of every man and all classes of men, is it any more than one of those rights which the states, by the Fourteenth Amendment, are forbidden to deny to any person? And is the Constitution violated until the denial of the right has some State sanction or authority? Can the act of a mere individual, the owner of the inn, the public conveyance or place of amusement, refusing the accommodation, be justly regarded as imposing any badge of slavery or servitude upon the applicant, or only as inflicting an ordinary civil injury, properly cognizable by the laws of the State and presumably subject to redress by those laws until the contrary appears? After giving to these questions all the consideration which their importance demands, we are forced to the conclusion that such an act of refusal has nothing to do with slavery or involuntary servitude, and that, if it is violative of any right of the party, his redress is to be sought under the laws of the State, or, if those laws are adverse to his rights and do not protect him, his remedy will be found in the corrective legislation which Congress has adopted, or may adopt, for counteracting the effect of State laws or State action prohibited by the Fourteenth Amendment. It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theatre, or deal with in Page 109 U. S. 25 other matters of intercourse or business. Innkeepers and public carriers, by the laws of all the States, so far as we are aware, are bound, to the extent of their facilities, to furnish proper accommodation to all unobjectionable persons who in good faith apply for them. If the laws themselves make any unjust discrimination amenable to the prohibitions of the Fourteenth Amendment, Congress has full power to afford a remedy under that amendment and in accordance with it. When a man has emerged from slavery, and, by the aid of beneficent legislation, has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men's rights are protected. There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty and property the same as white citizens, yet no one at that time thought that it was any invasion of his personal status as a freeman because he was not admitted to all the privileges enjoyed by white citizens, or because he was subjected to discriminations in the enjoyment of accommodations in inns, public conveyances and places of amusement. Mere discriminations on account of race or color were not regarded as badges of slavery. If, since that time, the enjoyment of equal rights in all these respects has become established by constitutional enactment, it is not by force of the Thirteenth Amendment (which merely abolishes slavery), but by force of the Thirteenth and Fifteenth Amendments. On the whole, we are of opinion that no countenance of authority for the passage of the law in question can be found in either the Thirteenth or Fourteenth Amendment of the Constitution, and no other ground of authority for its passage being suggested, it must necessarily be declared void, at least so far as its operation in the several States is concerned. This conclusion disposes of the cases now under consideration. In the cases of the United States v. Michael Ryan, and of Richard A. Robinson and Wife v. The Memphis & Charleston Page 109 U. S. 26 Railroad Company, the judgments must be affirmed. In the other cases, the answer to be given will be that the first and second sections of the act of Congress of March 1st, 1875, entitled "An Act to protect all citizens in their civil and legal rights," are unconstitutional and void, and that judgment should be rendered upon the several indictments in those cases accordingly. And it is so ordered. MR. JUSTICE HARLAN dissenting. The opinion in these cases proceeds, it seems to me, upon grounds entirely too narrow and artificial. I cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism. "It is not the words of the law, but the internal sense of it that makes the law; the letter of the law is the body; the sense and reason of the law is the soul." Constitutional provisions, adopted in the interest of liberty and for the purpose of securing, through national legislation, if need be, rights inhering in a state of freedom and belonging to American citizenship have been so construed as to defeat the ends the people desired to accomplish, which they attempted to accomplish, and which they supposed they had accomplished by changes in their fundamental law. By this I do not mean that the determination of these cases should have been materially controlled by considerations of mere expediency or policy. I mean only, in this form, to express an earnest conviction that the court has departed from the familiar rule requiring, in the interpretation of constitutional provisions, that full effect be given to the intent with which they were adopted. The purpose of the first section of the act of Congress of March 1, 1875, was to prevent race discrimination in respect of the accommodations and facilities of inns, public conveyances, and places of public amusement. It does not assume to define the general conditions and limitations under which inns, public conveyances, and places of public amusement may be conducted, but only declares that such conditions and limitations, whatever they may be, shall not be applied so as to work a Page 109 U. S. 27 discrimination solely because of race, color, or previous condition of servitude. The second section provides a penalty against anyone denying, or aiding or inciting the denial, of any citizen, of that equality of right given by the first section except for reasons by law applicable to citizens of every race or color and regardless of any previous condition of servitude. There seems to be no substantial difference between my brethren and myself as to the purpose of Congress, for they say that the essence of the law is not to declare broadly that all persons shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances, and theatres, but that such enjoyment shall not be subject to conditions applicable only to citizens of a particular race or color, or who had been in a previous condition of servitude. The effect of the statute, the court says, is that colored citizens, whether formerly slaves or not, and citizens of other races shall have the same accommodations and privileges in all inns, public conveyances, and places of amusement as are enjoyed by white persons, and vice versa. The court adjudges, I think erroneously, that Congress is without power, under either the Thirteenth or Fourteenth Amendment, to establish such regulations, and that the first and second sections of the statute are, in all their parts, unconstitutional and void. Whether the legislative department of the government has transcended the limits of its constitutional powers, "is at all times," said this court in Fletcher v. Peck, 6 Cr. 128, "a question of much delicacy which ought seldom, if ever, to be decided in the affirmative in a doubtful case. . . . The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other." More recently, in Sinking Fund Cases, 99 U. S. 718 , we said: "It is our duty, when required in the regular course of judicial proceedings, to declare an act of Congress void if not within the legislative power of the United States, but this declaration should never be made except in a clear case. Every possible presumption is Page 109 U. S. 28 in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule." Before considering the language and scope of these amendments, it will be proper to recall the relations subsisting, prior to their adoption, between the national government and the institution of slavery, as indicated by the provisions of the Constitution, the legislation of Congress, and the decisions of this court. In this mode, we may obtain keys with which to open the mind of the people and discover the thought intended to be expressed. In section 2 of article IV of the Constitution, it was provided that "no person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due." Under the authority of this clause, Congress passed the Fugitive Slave Law of 1793, establishing a mode for the recovery of fugitive slaves and prescribing a penalty against any person who should knowingly and willingly obstruct or hinder the master, his agent, or attorney in seizing, arresting, and recovering the fugitive, or who should rescue the fugitive from him, or who should harbor or conceal the slave after notice that he was a fugitive. In Prigg v. Commonwealth of Pennsylvania , 16 Pet. 539, this court had occasion to define the powers and duties of Congress in reference to fugitives from labor. Speaking by MR. JUSTICE STORY, it laid down these propositions: That a clause of the Constitution conferring a right should not be so construed as to make it shadowy or unsubstantial, or leave the citizen without a remedial power adequate for its protection when another construction equally accordant with the words and the sense in which they were used would enforce and protect the right granted; That Congress is not restricted to legislation for the execution Page 109 U. S. 29 of its expressly granted powers, but, for the protection of rights guaranteed by the Constitution, may employ such means, not prohibited, as are necessary and proper, or such as are appropriate, to attain the ends proposed; That the Constitution recognized the master's right of property in his fugitive slave, and, as incidental thereto, the right of seizing and recovering him, regardless of any State law or regulation or local custom whatsoever; and, That the right of the master to have his slave, thus escaping, delivered up on claim, being guaranteed by the Constitution, the fair implication was that the national government was clothed with appropriate authority and functions to enforce it. The court said "The fundamental principle, applicable to all cases of this sort, would seem to be that, when the end is required the means are given, and when the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionary to whom it is entrusted." Again, "It would be a strange anomaly and forced construction to suppose that the national government meant to rely for the due fulfillment of its own proper duties, and the rights which it intended to secure, upon State legislation, and not upon that of the Union. A fortiori, it would be more objectionable to suppose that a power which was to be the same throughout the Union should be confided to State sovereignty, which could not rightfully act beyond its own territorial limits " The act of 1793 was, upon these grounds, adjudged to be a constitutional exercise of the powers of Congress. It is to be observed from the report of Priggs' case that Pennsylvania, by her attorney general, pressed the argument that the obligation to surrender fugitive slaves was on the States and for the States, subject to the restriction that they should not pass laws or establish regulations liberating such fugitives; that the Constitution did not take from the States the right to determine the status of all persons within their respective jurisdictions; that it was for the State in which the alleged fugitive was found to determine, through her courts or in such modes as she prescribed, whether the person arrested was, in fact, a freeman or a fugitive slave; that the sole power Page 109 U. S. 30 of the general government in the premises was, by judicial instrumentality, to restrain and correct, not to forbid and prevent in the absence of hostile State action, and that, for the general government to assume primary authority to legislate on the subject of fugitive slaves, to the exclusion of the States, would be a dangerous encroachment on State sovereignty. But to such suggestions, this court turned a deaf ear, and adjudged that primary legislation by Congress to enforce the master's right was authorized by the Constitution. We next come to the Fugitive Slave Act of 1850, the constitutionality of which rested, as did that of 1793, solely upon the implied power of Congress to enforce the master's rights. The provisions of that act were far in advance of previous legislation. They placed at the disposal of the master seeking to recover his fugitive slave substantially the whole power of the nation. It invested commissioners, appointed under the act, with power to summon the posse comitatus for the enforcement of its provisions, and commanded all good citizens to assist in its prompt and efficient execution whenever their services were required as part of the posse comitatus. Without going into the details of that act, it is sufficient to say that Congress omitted from it nothing which the utmost ingenuity could suggest as essential to the successful enforcement of the master's claim to recover his fugitive slave. And this court, in Ableman v. Booth , 21 How. 506, adjudged it to be "in all of its provisions, fully authorized by the Constitution of the United States." The only other case, prior to the adoption of the recent amendments, to which reference will be made, is that of Dred Scott v. Sanford , 19 How. 399. That case was instituted in a circuit court of the United States by Dred Scott, claiming to be a citizen of Missouri, the defendant being a citizen of another State. Its object was to assert the title of himself and family to freedom. The defendant pleaded in abatement that Scott -- being of African descent, whose ancestors, of pure African blood, were brought into this country and sold as slaves -- was not a citizen. The only matter in issue, said the court, was whether the descendants of slaves thus imported Page 109 U. S. 31 and sold, when they should be emancipated, or who were born of parents who had become free before their birth, are citizens of a State in the sense in which the word "citizen" is used in the Constitution of the United States. In determining that question, the court instituted an inquiry as to who were citizens of the several States at the adoption of the Constitution and who at that time were recognized as the people whose rights and liberties had been violated by the British government. The result was a declaration by this court, speaking by Chief Justice Taney, that the legislation and histories of the times, and the language used in the Declaration of Independence, showed "that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that instrument;" that "they had for more than a century before been regarded as beings of an inferior race, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit;" that he was "bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it;" and, that "this opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals, as well as in politics, which no one thought of disputing, or supposed to be open to dispute, and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without for a moment doubting the correctness of this opinion." The judgment of the court was that the words "people of the United States" and "citizens" meant the same thing, both describing "the political body who, according to our republican institutions, form the sovereignty and hold the power and conduct the government through their representatives;" that "they are what we familiarly call the 'sovereign people,' and Page 109 U. S. 32 every citizen is one of this people and a constituent member of this sovereignty;" but that the class of persons described in the plea in abatement did not compose a portion of this people, were not "included, and were not intended to be included, under the word citizens' in the Constitution;" that, therefore, they could "claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States;" that, "on the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them." Such were the relations which formerly existed between the government, whether national or state, and the descendants, whether free or in bondage, of those of African blood who had been imported into this country and sold as slaves. The first section of the Thirteenth Amendment provides that "neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." Its second section declares that "Congress shall have power to enforce this article by appropriate legislation." This amendment was followed by the Civil Rights Act of April 9, 1866, which, among other things, provided that "all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." 14 Stat. 27. The power of Congress, in this mode, to elevate the enfranchised race to national citizenship was maintained by the supporters of the act of 1866 to be as full and complete as its power, by general statute, to make the children, being of full age, of persons naturalized in this country, citizens of the United States without going through the process of naturalization. The act of 1866 in this respect was also likened to that of 1843, in which Congress declared "that the Stockbridge tribe of Indians, and each and every one of them, shall be deemed to be and are hereby declared to be, citizens of the United States to Page 109 U. S. 33 all intents and purposes, and shall be entitled to all the rights, privileges, and immunities of such citizens, and shall in all respects be subject to the laws of the United States." If the act of 1866 was valid in conferring national citizenship upon all embraced by its terms, then the colored race, enfranchised by the Thirteenth Amendment, became citizens of the United States prior to the adoption of the Fourteenth Amendment. But, in the view which I take of the present case, it is not necessary to examine this question. The terms of the Thirteenth Amendment are absolute and universal. They embrace every race which then was, or might thereafter be, within the United States. No race, as such, can be excluded from the benefits or rights thereby conferred. Yet it is historically true that that amendment was suggested by the condition, in this country, of that race which had been declared by this court to have had -- according to the opinion entertained by the most civilized portion of the white race at the time of the adoption of the Constitution -- "no rights which the white man was bound to respect," none of the privileges or immunities secured by that instrument to citizens of the United States. It had reference, in peculiar sense, to a people which (although the larger part of them were in slavery) had been invited by an act of Congress to aid in saving from overthrow a government which, theretofore, by all of its departments, had treated them as an inferior race, with no legal rights or privileges except such as the white race might choose to grant them. These are the circumstances under which the Thirteenth Amendment was proposed for adoption. They are now recalled only that we may better understand what was in the minds of the people when that amendment was considered, and what were the mischiefs to be remedied and the grievances to be redressed by its adoption. We have seen that the power of Congress, by legislation, to enforce the master's right to have his slave delivered up on claim was implied from the recognition of that right in the national Constitution. But the power conferred by the Thirteenth Amendment does not rest upon implication or Page 109 U. S. 34 inference. Those who framed it were not ignorant of the discussion, covering many years of our country's history, as to the constitutional power of Congress to enact the Fugitive Slave Laws of 1793 and 1850. When, therefore, it was determined, by a change in the fundamental law, to uproot the institution of slavery wherever it existed in the land and to establish universal freedom, there was a fixed purpose to place the authority of Congress in the premises beyond the possibility of a doubt. Therefore, ex industria, power to enforce the Thirteenth Amendment by appropriate legislation was expressly granted. Legislation for that purpose, my brethren concede, may be direct and primary. But to what specific ends may it be directed? This court has uniformly held that the national government has the power, whether expressly given or not, to secure and protect rights conferred or guaranteed by the Constitution. United States v. Reese, 92 U. S. 214 ; Strauder v. West Virginia, 100 U. S. 303 . That doctrine ought not now to be abandoned when the inquiry is not as to an implied power to protect the master's rights, but what may Congress, under powers expressly granted, do for the protection of freedom and the rights necessarily inhering in a state of freedom. The Thirteenth Amendment, it is conceded, did something more than to prohibit slavery as an institution resting upon distinctions of race and upheld by positive law. My brethren admit that it established and decreed universal civil freedom throughout the United States. But did the freedom thus established involve nothing more than exemption from actual slavery? Was nothing more intended than to forbid one man from owning another as property? Was it the purpose of the nation simply to destroy the institution, and then remit the race, theretofore held in bondage, to the several States for such protection, in their civil rights, necessarily growing out of freedom, as those States, in their discretion, might choose to provide? Were the States against whose protest the institution was destroyed to be left free, so far as national interference was concerned, to make or allow discriminations against that race, as such, in the enjoyment of those fundamental rights which, by universal concession, inhere in a state of freedom? Page 109 U. S. 35 Had the Thirteenth Amendment stopped with the sweeping declaration in its first section against the existence of slavery and involuntary servitude except for crime, Congress would have had the power, by implication, according to the doctrines of Prigg v. Commonwealth of Pennsylvania, repeated in Strauder v. West Virginia, to protect the freedom established, and consequently, to secure the enjoyment of such civil rights as were fundamental in freedom. That it can exert its authority to that extent is made clear, and was intended to be made clear, by the express grant of power contained in the second section of the Amendment. That there are burdens and disabilities which constitute badges of slavery and servitude, and that the power to enforce by appropriate legislation the Thirteenth Amendment may be exerted by legislation of a direct and primary character for the eradication not simply of the institution, but of its badges and incidents, are propositions which ought to be deemed indisputable. They lie at the foundation of the Civil Rights Act of 1866. Whether that act was authorized by the Thirteenth Amendment alone, without the support which it subsequently received from the Fourteenth Amendment, after the adoption of which it was reenacted with some additions, my brethren do not consider it necessary to inquire. But I submit, with all respect to them, that its constitutionality is conclusively shown by their opinion. They admit, as I have said, that the Thirteenth Amendment established freedom; that there are burdens and disabilities, the necessary incidents of slavery, which constitute its substance and visible form; that Congress, by the act of 1866, passed in view of the Thirteenth Amendment, before the Fourteenth was adopted, undertook to remove certain burdens and disabilities, the necessary incidents of slavery, and to secure to all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom, namely, the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell, and convey property as is enjoyed by white citizens; that, under the Thirteenth Amendment, Congress has to do with slavery and Page 109 U. S. 36 its incidents, and that legislation, so far as necessary or proper to eradicate all forms and incidents of slaver and involuntary servitude, may be direct and primary, operating upon the acts of individuals, whether sanctioned by State legislation or not. These propositions being conceded, it is impossible, as it seems to me, to question the constitutional validity of the Civil Rights Act of 1866. I do not contend that the Thirteenth Amendment invests Congress with authority, by legislation, to define and regulate the entire body of the civil rights which citizens enjoy, or may enjoy, in the several States. But I hold that, since slavery, as the court has repeatedly declared, Slaughterhouse Cases , 16 Wall. 36; Strauder West Virginia, 100 U. S. 303 , was the moving or principal cause of the adoption of that amendment, and since that institution rested wholly upon the inferiority, as a race, of those held in bondage, their freedom necessarily involved immunity from, and protection against, all discrimination against them, because of their race, in respect of such civil rights as belong to freemen of other races. Congress, therefore, under its express power to enforce that amendment by appropriate legislation, may enact laws to protect that people against the deprivation, because of their race, of any civil rights granted to other freemen in the same State, and such legislation may be of a direct and primary character, operating upon States, their officers and agents, and also upon at least such individuals and corporations as exercise public functions and wield power and authority under the State. To test the correctness of this position, let us suppose that, prior to the adoption of the Fourteenth Amendment, a State had passed a statute denying to freemen of African descent, resident within its limits, the same right which was accorded to white persons of making and enforcing contracts and of inheriting, purchasing, leasing, selling and conveying property; or a statute subjecting colored people to severer punishment for particular offences than was prescribed for white persons, or excluding that race from the benefit of the laws exempting homesteads from execution. Recall the legislation of 1865-1866 in some of the States, of which this court in the Slaughterhouse Page 109 U. S. 37 Cases said that it imposed upon the colored race onerous disabilities and burdens; curtailed their rights in the pursuit of life, liberty and property to such an extent that their freedom was of little value; forbade them to appear in the towns in any other character than menial servants; required them to reside on and cultivate the soil, without the right to purchase or own it; excluded them from many occupations of gain, and denied them the privilege of giving testimony in the courts where a white man was a party. 16 Wall. 83 U. S. 57 . Can there be any doubt that all such enactments might have been reached by direct legislation upon the part of Congress under its express power to enforce the Thirteenth Amendment? Would any court have hesitated to declare that such legislation imposed badges of servitude in conflict with the civil freedom ordained by that amendment? That it would have been also in conflict with the Fourteenth Amendment because inconsistent with the fundamental rights of American citizenship does not prove that it would have been consistent with the Thirteenth Amendment. What has been said is sufficient to show that the power of Congress under the Thirteenth Amendment is not necessarily restricted to legislation against slavery as an institution upheld by positive law, but may be exerted to the extent, at least, of protecting the liberated race against discrimination in respect of legal rights belonging to freemen where such discrimination is based upon race. It remains now to inquire what are the legal rights of colored persons in respect of the accommodations, privileges and facilities of public conveyances, inns, and places of public amusement? First, as to public conveyances on land and water. In New Jersey Steam Navigation Co. v. Merchants' Bank , 6 How. 344, this court, speaking by Mr. Justice Nelson, said that a common carrier is "in the exercise of a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned." To the same effect is Munn v. Illinois, 94 U. S. 113 . In Olcott v. Supervisor , 16 Wall. 678, it was ruled that Page 109 U. S. 38 railroads are public highways, established by authority of the State for the public use; that they are nonetheless public highways because controlled and owned by private corporations; that it is a part of the function of government to make and maintain highways for the convenience of the public; that no matter who is the agent, or what is the agency, the function performed is that of the State; that, although the owners may be private companies, they may be compelled to permit the public to use these works in the manner in which they can be used; that, upon these grounds alone have the courts sustained the investiture of railroad corporations with the State's right of eminent domain, or the right of municipal corporations, under legislative authority, to assess, levy and collect taxes to aid in the construction of railroads. So in Township of Queensbury v. Culver , 19 Wall. 83, it was said that a municipal subscription of railroad stock was in aid of the construction and maintenance of a public highway, and for the promotion of a public use. Again, in Township of Pine Grove v. Talcott , 19 Wall. 666: "Though the corporation [railroad] was private, its work was public, as much so as if it were to be constructed by the State." To the like effect are numerous adjudications in this and the State courts with which the profession is familiar. The Supreme Judicial Court of Massachusetts, in Inhabitants of Worcester v. The Western R.R. Corporation, 4 Met. 564, said in reference to a railroad: "The establishment of that great thoroughfare is regarded as a public work, established by public authority, intended for the public use and benefit, the use of which is secured to the whole community, and constitutes, therefore, like a canal, turnpike, or highway, a public easement. . . . It is true that the real and personal property, necessary to the establishment and management of the railroad is vested in the corporation, but it is in trust for the public." In Erie, Etc., R.R. Co. v. Casey, 26 Penn. St. 287, the court, referring to an act repealing the charter of a railroad, and under which the State took possession of the road, said: "It is a public highway, solemnly devoted to public use. When the lands were taken, it was for such use, or they could not have been taken at all. . . . Railroads established Page 109 U. S. 39 upon land taken by the right of eminent domain by authority of the commonwealth, created by her laws as thoroughfares for commerce, are her highways. No corporation has property in them, though it may have franchises annexed to and exercisable within them." In many courts it has been held that, because of the public interest in such a corporation, the land of a railroad company cannot be levied on and sold under execution by a creditor. The sum of the adjudged cases is that a railroad corporation is a governmental agency, created primarily for public purposes and subject to be controlled for the public benefit. Upon this ground, the State, when unfettered by contract, may regulate, in its discretion, the rates of fares of passengers and freight. And upon this ground, too, the State may regulate the entire management of railroads in all matters affecting the convenience and safety of the public, as, for example, by regulating speed, compelling stops of prescribed length at stations, and prohibiting discriminations and favoritism. If the corporation neglect or refuse to discharge its duties to the public, it may be coerced to do so by appropriate proceedings in the name or in behalf of the State. Such being the relations these corporations hold to the public, it would seem that the right of a colored person to use an improved public highway upon the terms accorded to freemen of other races is as fundamental, in the state of freedom established in this country, as are any of the rights which my brethren concede to be so far fundamental as to be deemed the essence of civil freedom. "Personal liberty consists," says Blackstone, "in the power of locomotion, of changing situation, or removing one's person to whatever places one's own inclination may direct, without restraint unless by due course of law." But of what value is this right of locomotion if it may be clogged by such burdens as Congress intended by the act of 1875 to remove? They are burdens which lay at the very foundation of the institution of slavery as it once existed. They are not to be sustained except upon the assumption that there is, in this land of universal liberty, a class which may still be discriminated against, even in respect of rights of a character Page 109 U. S. 40 so necessary and supreme that, deprived of their enjoyment in common with others, a freeman is not only branded as one inferior and infected, but, in the competitions of life, is robbed of some of the most essential means of existence, and all this solely because they belong to a particular race which the nation has liberated. The Thirteenth Amendment alone obliterated the race line so far as all rights fundamental in a state of freedom are concerned. Second, as to inns. The same general observations which have been made as to railroads are applicable to inns. The word "inn" has a technical legal signification. It means, in the act of 1875, just what it meant at common law. A mere private boarding house is not an inn, nor is its keeper subject to the responsibilities, or entitled to the privileges, of a common innkeeper. "To constitute one an innkeeper within the legal force of that term, he must keep a house of entertainment or lodging for all travelers or wayfarers who might choose to accept the same, being of good character or conduct." Redfield on Carriers, etc., § 7. Says Judge Story: "An innkeeper may be defined to be the keeper of a common inn for the lodging and entertainment of travelers and passengers, their horses and attendants. An innkeeper is bound to take in all travelers and wayfaring persons, and to entertain them, if he can accommodate them, for a reasonable compensation, and he must guard their goods with proper diligence. . . . If an innkeeper improperly refuses to receive or provide for a guest, he is liable to be indicted therefor. . . . They (carriers of passengers) are no more at liberty to refuse a passenger, if they have sufficient room and accommodations, than an innkeeper is to refuse suitable room and accommodations to a guest." "Story on Bailments §§ 475-476." In Rex v. Ivens, 7 Carrington & Payne 213, 32 E.C.L. 49, the court, speaking by Mr. Justice Coleridge, said: "An indictment lies against an innkeeper who refuses to receive a guest, he having at the time room in his house and either the price of the guest's entertainment being tendered to him or such circumstances occurring as will dispense with that Page 109 U. S. 41 tender. This law is founded in good sense. The innkeeper is not to select his guest. He has no right to say to one, you shall come to my inn, and to another, you shall not, as everyone coming and conducting himself in a proper manner has a right to be received, and, for this purpose innkeepers are a sort of public servants, they having, in return a kind of privilege of entertaining travelers and supplying them with what they want." These authorities are sufficient to show that a keeper of an inn is in the exercise of a quasi -public employment. The law gives him special privileges. and he is charged with certain duties and responsibilities to the public. The public nature of his employment forbids him from discriminating against any person asking admission as a guest on account of the race or color of that person. Third. As to places of public amusement. It may be argued that the managers of such places have no duties to perform with which the public are, in any legal sense, concerned, or with which the public have any right to interfere, and that the exclusion of a black man from a place of public amusement on account of his race, or the denial to him on that ground of equal accommodations at such places, violates no legal right for the vindication of which he may invoke the aid of the courts. My answer is that places of public amusement, within the meaning of the act of 1875, are such as are established and maintained under direct license of the law. The authority to establish and maintain them comes from the public. The colored race is a part of that public. The local government granting the license represents them as well as all other races within its jurisdiction. A license from the public to establish a place of public amusement imports in law equality of right at such places among all the members of that public. This must be so unless it be -- which I deny -- that the common municipal government of all the people may, in the exertion of its powers, conferred for the benefit of all, discriminate or authorize discrimination against a particular race solely because of its former condition of servitude. I also submit, whether it can be said -- in view of the doctrines of this court as announced in Munn v. State of Illinois , Page 109 U. S. 42 94 U. S. 113 , and reaffirmed in Peik v. Chicago & N.W. Railway Co., 94 U. S. 164 , 169 [argument of counsel -- omitted], that the management of places of public amusement is a purely private matter, with which government has no rightful concern? In the Munn case, the question was whether the State of Illinois could fix, by law, the maximum of charges for the storage of grain in certain warehouses in that State -- the private property of individual citizens. After quoting a remark attributed to Lord Chief Justice Hale, to the effect that, when private property is "affected with a public interest, it ceases to be juris privati only," the court says: "Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use, but, so long as he maintains the use, he must submit to the control." The doctrines of Munn v. Illinois have never been modified by this court, and I am justified upon the authority of that case in saying that places of public amusement, conducted under the authority of the law, are clothed with a public interest because used in a manner to make them of public consequence and to affect the community at large. The law may therefore regulate, to some extent, the mode in which they shall be conducted, and, consequently, the public have rights in respect of such places which may be vindicated by the law. It is consequently not a matter purely of private concern. Congress has not, in these matters, entered the domain of State control and supervision. It does not, as I have said, assume to prescribe the general conditions and limitations under which inns, public conveyances, and places of public amusement shall be conducted or managed. It simply declares, in effect, that, since the nation has established universal freedom in this country for all time, there shall be no discrimination, based merely upon race or color, in respect of the accommodations Page 109 U. S. 43 and advantages of public conveyances, inns, and places of public amusement. I am of the opinion that such discrimination practised by corporations and individuals in the exercise of their public or quasi -public functions is a badge of servitude the imposition of which Congress may prevent under its power, by appropriate legislation, to enforce the Thirteenth Amendment; and consequently, without reference to its enlarged power under the Fourteenth Amendment, the act of March 1, 1875, is not, in my judgment, repugnant to the Constitution. It remains now to consider these cases with reference to the power Congress has possessed since the adoption of the Fourteenth Amendment. Much that has been said as to the power of Congress under the Thirteenth Amendment is applicable to this branch of the discussion, and will not be repeated. Before the adoption of the recent amendments, it had become, as we have seen, the established doctrine of this court that negroes, whose ancestors had been imported and sold as slaves, could not become citizens of a State, or even of the United States, with the rights and privileges guaranteed to citizens by the national Constitution; further, that one might have all the rights and privileges of a citizen of a State without being a citizen in the sense in which that word was used in the national Constitution, and without being entitled to the privileges and immunities of citizens of the several States. Still further, between the adoption of the Thirteenth Amendment and the proposal by Congress of the Fourteenth Amendment, on June 16, 1866, the statute books of several of the States, as we have seen, had become loaded down with enactments which, under the guise of Apprentice, Vagrant, and contract regulations, sought to keep the colored race in a condition, practically, of servitude. It was openly announced that whatever might be the rights which persons of that race had as freemen, under the guarantees of the national Constitution, they could not become citizens of a State, with the privileges belonging to citizens, except by the consent of such State; consequently, that their civil rights as citizens of the State depended entirely upon State legislation. To meet this new peril to the black race, that the Page 109 U. S. 44 purposes of the nation might not be doubted or defeated, and by way of further enlargement of the power of Congress, the Fourteenth Amendment was proposed for adoption. Remembering that this court, in the Slaughterhouse Cases, declared that the one pervading purpose found in all the recent amendments, lying at the foundation of each and without which none of them would have been suggested, was "the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppression of those who had formerly exercised unlimited dominion over him" -- that each amendment was addressed primarily to the grievances of that race -- let us proceed to consider the language of the Fourteenth Amendment. Its first and fifth sections are in these words: "SEC. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." " * * * *" "SEC. 5. That Congress shall have power to enforce, by appropriate legislation, the provisions of this article." It was adjudged in Strauder v. West Virginia, 100 U. S. 303 , and Ex parte Virginia, 100 U. S. 339 , and my brethren concede, that positive rights and privileges were intended to be secured, and are, in fact, secured, by the Fourteenth Amendment. But when, under what circumstances, and to what extent may Congress, by means of legislation, exert its power to enforce the provisions of this amendment? The theory of the opinion of the majority of the court -- the foundation upon which their reasoning seems to rest -- is that the general government cannot, in advance of hostile State laws or hostile State Page 109 U. S. 45 proceedings, actively interfere for the protection of my of the rights, privileges, and immunities secured by the Fourteenth Amendment. It is said that such rights, privileges, and immunities are secured by way of prohibition against State laws and State proceedings affecting such rights and privileges, and by power given to Congress to legislate for the purpose of carrying such prohibition into effect; also, that congressional legislation must necessarily be predicated upon such supposed State laws or State proceedings, and be directed to the correction of their operation and effect. In illustration of its position, the court refers to the clause of the Constitution forbidding the passage by a State of any law impairing the obligation of contracts. That clause does not, I submit, furnish a proper illustration of the scope and effect of the fifth section of the Fourteenth Amendment. No express power is given Congress to enforce, by primary direct legislation, the prohibition upon State laws impairing the obligation of contracts. Authority is, indeed, conferred to enact all necessary and proper laws for carrying into execution the enumerated powers of Congress and all other powers vested by the Constitution in the government of the United States or in any department or officer thereof. And, as heretofore shown, there is also, by necessary implication, power in Congress, by legislation, to protect a right derived from the national Constitution. But a prohibition upon a State is not a power in Congress or in the national government. It is simply a denial of power to the State. And the only mode in which the inhibition upon State laws impairing the obligation of contracts can be enforced is indirectly, through the courts in suits where the parties raise some question as to the constitutional validity of such laws. The judicial power of the United States extends to such suits for the reason that they are suits arising under the Constitution. The Fourteenth Amendment presents the first instance in our history of the investiture of Congress with affirmative power, by legislation, to enforce an express prohibition upon the States. It is not said that the judicial power of the nation may be exerted for the enforcement of that amendment. No enlargement of the judicial power was required, for it is clear Page 109 U. S. 46 that, had the fifth section of the Fourteenth Amendment been entirely omitted, the judiciary could have stricken down all State laws and nullified all State proceedings in hostility to rights and privileges secured or recognized by that amendment. The power given is, in terms, by congressional legislation, to enforce the provisions of the amendment. The assumption that this amendment consists wholly of prohibitions upon State laws and State proceedings in hostility to its provisions is unauthorized by its language. The first clause of the first section -- "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside" -- is of a distinctly affirmative character. In its application to the colored race, previously liberated, it created and granted as well citizenship of the United States as citizenship of the State in which they respectively resided. It introduced all of that race whose ancestors had been imported and sold as slaves at once into the political community known as the "People of the United States." They became instantly citizens of the United States and of their respective States. Further, they were brought by this supreme act of the nation within the direct operation of that provision of the Constitution which declares that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." Art. 4, § 2. The citizenship thus acquired by that race in virtue of an affirmative grant from the nation may be protected not alone by the judicial branch of the government, but by congressional legislation of a primary direct character, this because the power of Congress is not restricted to the enforcement of prohibitions upon State laws or State action. It is, in terms distinct and positive, to enforce "the provisions of this article " of amendment; not simply those of a prohibitive character, but the provisions -- all of the provisions -- affirmative and prohibitive, of the amendment. It is, therefore, a grave misconception to suppose that the fifth section of the amendment has reference exclusively to express prohibitions upon State laws or State action. If any right was created by that amendment, the Page 109 U. S. 47 grant of power through appropriate legislation to enforce its provisions authorizes Congress, by means of legislation operating throughout the entire Union, to guard, secure, and protect that right. It is therefore an essential inquiry what, if any, right, privilege or immunity was given, by the nation to colored persons when they were made citizens of the State in which they reside? Did the constitutional grant of State citizenship to that race, of its own force, invest them with any rights, privileges and immunities whatever? That they became entitled, upon the adoption of the Fourteenth Amendment, "to all privileges and immunities of citizens in the several States," within the meaning of section 2 of article 4 of the Constitution, no one, I suppose, will for a moment question. What are the privileges and immunities to which, by that clause of the Constitution, they became entitled? To this it may be answered generally, upon the authority of the adjudged cases, that they are those which are fundamental in citizenship in a free republican government, such as are "common to the citizens in the latter States under their constitutions and laws by virtue of their being citizens." Of that provision it has been said, with the approval of this court, that no other one in the Constitution has tended so strongly to constitute the citizens of the United States one people. Ward v. Maryland , 12 Wall. 418; Corfield v. Coryell, 4 Wash.C.C. 371; Paul v. Virginia , 8 Wall. 168; Slaughterhouse Cases , 16 id. 36. Although this court has wisely forborne any attempt by a comprehensive definition to indicate all of the privileges and immunities to which the citizen of a State is entitled of right when within the jurisdiction of other States, I hazard nothing, in view of former adjudications, in saying that no State can sustain her denial to colored citizens of other States, while within her limits, of privileges or immunities fundamental in republican citizenship upon the ground that she accords such privileges and immunities only to her white citizens, and withholds them from her colored citizens. The colored citizens of other States, within the jurisdiction of that State, could claim, in virtue of section 2 of article 4 of the Constitution, every privilege and immunity Page 109 U. S. 48 which that State secures to her white citizens. Otherwise it would be in the power of any State, by discriminating class legislation against its own citizens of a particular race or color, to withhold from citizens of other States belonging to that proscribed race, when within her limits, privileges and immunities of the character regarded by all courts as fundamental in citizenship, and that too when the constitutional guaranty is that the citizens of each State shall be entitled to "all privileges and immunities of citizens of the several States." No State may, by discrimination against a portion of its own citizens of a particular race, in respect of privileges and immunities fundamental in citizenship, impair the constitutional right of citizens of other States, of whatever race, to enjoy in that State all such privileges and immunities as are there accorded to her most favored citizens. A colored citizen of Ohio or Indiana, while in the jurisdiction of Tennessee, is entitled to enjoy any privilege or immunity, fundamental in citizenship, which is given to citizens of the white race in the latter State. It is not to be supposed that anyone will controvert this proposition. But what was secured to colored citizens of the United States -- as between them and their respective States -- by the national grant to them of State citizenship? With what rights, privileges, or immunities did this grant invest them? There is one, if there be no other -- exemption from race discrimination in respect of any civil right belonging to citizens of the white race in the same State. That, surely, is their constitutional privilege when within the jurisdiction of other States. And such must be their constitutional right in their own State, unless the recent amendments be splendid baubles thrown out to delude those who deserved fair and generous treatment at the hands of the nation. Citizenship in this country necessarily imports at least equality of civil rights among citizens of every race in the same State. It is fundamental in American citizenship that, in respect of such rights, there shall be no discrimination by the State, or its officers, or by individuals or corporations exercising public functions or authority, against any citizen because of his race or previous condition of servitude. In United States v. Cruikshank, 92 U. S. 542 , it was said at page 92 U. S. 555 , that the Page 109 U. S. 49 rights of life and personal liberty are natural rights of man, and that "the equality of the rights of citizens is a principle of republicanism." And in Ex parte Virginia, 100 U. S. 334 , the emphatic language of this court is that "one great purpose of these amendments was to raise the colored race from that condition of inferiority and servitude in which most of them had previously stood into perfect equality of civil rights with all other persons within the jurisdiction of the States." So, in Strauder v. West Virginia, 100 U.S. at 100 U. S. 306 , the court, alluding to the Fourteenth Amendment, said: "This is one of a series of constitutional provisions having a common purpose, namely, securing to a race recently emancipated, a race that, through many generations, had been held in slavery, all the civil rights that the superior race enjoy." Again, in Neal v. Delaware, 103 U. S. 386 , it was ruled that this amendment was designed primarily "to secure to the colored race, thereby invested with the rights, privileges, and responsibilities of citizenship, the enjoyment of all the civil rights that, under the law, are enjoyed by white persons." The language of this court with reference to the Fifteenth Amendment adds to the force of this view. In United States v. Cruikshank, it was said: "In United States v. Reese, 92 U. S. 214 , we held that the Fifteenth Amendment has invested the citizens of the United States with a new constitutional right, which is exemption from discrimination in tho exercise of the elective franchise, on account of race, color, or previous condition of servitude. From this it appears that the right of suffrage is not a necessary attribute of national citizenship, but that exemption from discrimination in the exercise of that right on account of race, &c., is. The right to vote in the States comes from the States, but the right of exemption from the prohibited discrimination comes from the United States. The first has not been granted or secured by the Constitution of the United States, but the last has been." Here, in language at once clear and forcible, is stated the principle for which I contend. It can scarcely be claimed that exemption from race discrimination, in respect of civil rights, against those to whom State citizenship was granted by the Page 109 U. S. 50 nation, is any less, for the colored race, a new constitutional right, derived from and secured by the national Constitution, than is exemption from such discrimination in the exercise of the elective franchise. It cannot be that the latter is an attribute of national citizenship, while the other is not essential in national citizenship or fundamental in State citizenship. If, then, exemption from discrimination in respect of civil rights is a new constitutional right, secured by the grant of State citizenship to colored citizens of the United States -- and I do not see how this can now be questioned -- why may not the nation, by means of its own legislation of a primary direct character, guard, protect, and enforce that right? It is a right and privilege which the nation conferred. It did not come from the States in which those colored citizens reside. It has been the established doctrine of this court during all its history, accepted as essential to the national supremacy, that Congress, in the absence of a positive delegation of power to the State legislatures, may, by its own legislation, enforce and protect any right derived from or created by the national Constitution. It was so declared in Prigg v. Commonwealth of Pennsylvania. It was reiterated in United States v. Reese, 92 U. S. 214 , where the court said that "rights and immunities created by and dependent upon the Constitution of the United States can be protected by Congress. The form and manner of the protection may be such as Congress, in the legitimate exercise of its discretion, shall provide. These may be varied to meet the necessities of the particular right to be protected." It was distinctly reaffirmed in Strauder v. West Virginia, 100 U.S. at 100 U. S. 310 , where we said that "a right or immunity created by the Constitution or only guaranteed by it, even without any express delegation of power, may be protected by Congress." How then can it be claimed, in view of the declarations of this court in former cases, that exemption of colored citizens, within their States, from race discrimination in respect of the civil rights of citizens is not an immunity created or derived from the national Constitution? This court has always given a broad and liberal construction to the Constitution, so as to enable Congress, by legislation, to Page 109 U. S. 51 enforce rights secured by that instrument. The legislation which Congress may enact in execution of its power to enforce the provisions of this amendment is such as may be appropriate to protect the right granted. The word appropriate was undoubtedly used with reference to its meaning, as established by repeated decisions of this court. Under given circumstances, that which the court characterizes as corrective legislation might be deemed by Congress appropriate and entirely sufficient. Under other circumstances, primary direct legislation may be required. But it is for Congress, not the judiciary, to say that legislation is appropriate -- that is, best adapted to the end to be attained. The judiciary may not, with safety to our institutions, enter the domain of legislative discretion and dictate the means which Congress shall employ in the exercise of its granted powers. That would be sheer usurpation of the functions of a coordinate department, which, if often repeated, and permanently acquiesced in, would work a radical change in our system of government. In United States v. Fisher, 2 Cr. 38, the court said that "Congress must possess the choice of means, and must be empowered to use any means which are, in fact, conducive to the exercise of a power granted by the Constitution. . . . The sound construction of the Constitution," said Chief Justice Marshall, "must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional." McCulloch v. Maryland , 4 Wheat. 421. Must these rules of construction be now abandoned? Are the powers of the national legislature to be restrained in proportion as the rights and privileges, derived from the nation, are valuable? Are constitutional provisions, enacted to secure the dearest rights of freemen and citizens, to be subjected to that rule of construction, applicable to private instruments, Page 109 U. S. 52 which requires that the words to be interpreted must be taken most strongly against those who employ them? Or shall it be remembered that "a constitution of government, founded by the people for themselves and their posterity and for objects of the most momentous nature -- for perpetual union, for the establishment of justice, for the general welfare, and for a perpetuation of the blessings of liberty -- necessarily requires that every interpretation of its powers should have a constant reference to these objects? No interpretation of the words in which those powers are granted can be a sound one which narrows down their ordinary import so as to defeat those objects." Story Const. § 422. The opinion of the court, as I have said, proceeds upon the ground that the power of Congress to legislate for the protection of the rights and privileges secured by the Fourteenth Amendment cannot be brought into activity except with the view, and as it may become necessary, to correct and annul State laws and State proceedings in hostility to such rights and privileges. In the absence of State laws or State action adverse to such rights and privileges, the nation may not actively interfere for their protection and security, even against corporations and individuals exercising public or quasi -public functions. Such I understand to be the position of my brethren. If the grant to colored citizens of the United States of citizenship in their respective States imports exemption from race discrimination in their States in respect of such civil rights as belong to citizenship, then to hold that the amendment remits that right to the States for their protection, primarily, and stays the hands of the nation until it is assailed by State laws or State proceedings is to adjudge that the amendment, so far from enlarging the powers of Congress -- as we have heretofore said it did -- not only curtails them, but reverses the policy which the general government has pursued from its very organization. Such an interpretation of the amendment is a denial to Congress of the power, by appropriate legislation, to enforce one of its provisions. In view of the circumstances under which the recent amendments were incorporated into the Constitution, and especially in view of the peculiar character of the new Page 109 U. S. 53 rights they created and secured, it ought not to be presumed that the general government has abdicated its authority, by national legislation, direct and primary in its character, to guard and protect privileges and immunities secured by that instrument. Such an interpretation of the Constitution ought not to be accepted if it be possible to avoid it. Its acceptance would lead to this anomalous result: that, whereas, prior to the amendments, Congress, with the sanction of this court, passed the most stringent laws -- operating directly and primarily upon States and their officers and agents, as well as upon individuals -- in vindication of slavery and the right of the master, it may not now, by legislation of a like primary and direct character, guard, protect, and secure the freedom established, and the most essential right of the citizenship granted, by the constitutional amendments. With all respect for the opinion of others, I insist that the national legislature may, without transcending the limits of the Constitution, do for human liberty and the fundamental rights of American citizenship what it did, with the sanction of this court, for the protection of slavery and the rights of the masters of fugitive slaves. If fugitive slave laws, providing modes and prescribing penalties whereby the master could seize and recover his fugitive slave, were legitimate exercises of an implied power to protect and enforce a right recognized by the Constitution, why shall the hands of Congress be tied so that -- under an express power, by appropriate legislation, to enforce a constitutional provision granting citizenship -- it may not, by means of direct legislation, bring the whole power of this nation to bear upon States and their officers and upon such individuals and corporations exercising public functions as assume to abridge, impair, or deny rights confessedly secured by the supreme law of the land? It does not seem to me that the fact that, by the second clause of the first section of the Fourteenth Amendment, the States are expressly prohibited from making or enforcing laws abridging the privileges and immunities of citizens of the United States furnishes any sufficient reason for holding or maintaining that the amendment was intended to deny Congress the power, by general, primary, and direct legislation, of Page 109 U. S. 54 protecting citizens of the several States, being also citizens of the United States, against all discrimination in respect of their rights as citizens which is founded on race, color, or previous condition of servitude. Such an interpretation of the amendment is plainly repugnant to its fifth section, conferring upon Congress power, by appropriate legislation, to enforce not merely the provisions containing prohibitions upon the States, but all of the provisions of the amendment, including the provisions, express and implied, in the first clause of the first section of the article granting citizenship. This alone is sufficient for holding that Congress is not restricted to the enactment of laws adapted to counteract and redress the operation of State legislation, or the action of State officers, of the character prohibited by the amendment. It was perfectly well known that the great danger to the equal enjoyment by citizens of their rights as citizens was to be apprehended not altogether from unfriendly State legislation, but from the hostile action of corporations and individuals in the States. And it is to be presumed that it was intended by that section to clothe Congress with power and authority to meet that danger. If the rights intended to be secured by the act of 1875 are such as belong to the citizen in common or equally with other citizens in the same State, then it is not to be denied that such legislation is peculiarly appropriate to the end which Congress is authorized to accomplish, viz., to protect the citizen, in respect of such rights, against discrimination on account of his race. Recurring to the specific prohibition in the Fourteenth Amendment upon the making or enforcing of State laws abridging the privileges of citizens of the United States, I remark that if, as held in the Slaughterhouse Cases, the privileges here referred to were those which belonged to citizenship of the United States, as distinguished from those belonging to State citizenship, it was impossible for any State prior to the adoption of that amendment to have enforced laws of that character. The judiciary could have annulled all such legislation under the provision that the Constitution shall be the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding. The States were Page 109 U. S. 55 already under an implied prohibition not to abridge any privilege or immunity belonging to citizens of the United States as such. Consequently, the prohibition upon State laws in hostility to rights belonging to citizens of the United States was intended -- in view of the introduction into the body of citizens of a race formerly denied the essential rights of citizenship -- only as an express limitation on the powers of the States, and was not intended to diminish in the slightest degree the authority which the nation has always exercised of protecting, by means of its own direct legislation, rights created or secured by the Constitution. Any purpose to diminish the national authority in respect of privileges derived from the nation is distinctly negatived by the express grant of power by legislation to enforce every provision of the amendment, including that which, by the grant of citizenship in the State, secures exemption from race discrimination in respect of the civil rights of citizens. It is said that any interpretation of the Fourteenth Amendment different from that adopted by the majority of the court would imply that Congress had authority to enact a municipal code for all the States covering every matter affecting the life, liberty, and property of the citizens of the several States. Not so. Prior to the adoption of that amendment, the constitutions of the several States, without perhaps an exception, secured all persons against deprivation of life, liberty, or property otherwise than by due process of law, and, in some form, recognized the right of all persons to the equal protection of the laws. Those rights therefore existed before that amendment was proposed or adopted, and were not created by it. If, by reason of that fact, it be assumed that protection in these rights of persons still rests primarily with the States, and that Congress may not interfere except to enforce, by means of corrective legislation, the prohibitions upon State laws or State proceedings inconsistent with those rights, it does not at all follow that privileges which have been granted by the nation may not be protected by primary legislation upon the part of Congress. The personal rights and immunities recognized in the prohibitive clauses of the amendment were, prior to its adoption, Page 109 U. S. 56 under the protection, primarily, of the States, while rights, created by or derived from the United States have always been and, in the nature of things, should always be, primarily under the protection of the general government. Exemption from race discrimination in respect of the civil rights which are fundamental in citizenship in a republican government, is, as we have seen, a new right, created by the nation, with express power in Congress, by legislation, to enforce the constitutional provision from which it is derived. If, in some sense, such race discrimination is, within the letter of the last clause of the first section, a denial of that equal protection of the laws which is secured against State denial to all persons, whether citizens or not, it cannot be possible that a mere prohibition upon such State denial, or a prohibition upon State laws abridging the privileges and immunities of citizens of the United States, takes from the nation the power which it has uniformly exercised of protecting, by direct primary legislation, those privileges and immunities which existed under the Constitution before the adoption of the Fourteenth Amendment or have been created by that amendment in behalf of those thereby made citizens of their respective States. This construction does not in any degree intrench upon the just rights of the States in the control of their domestic affairs. It simply recognizes the enlarged powers conferred by the recent amendments upon the general government. In the view which I take of those amendments, the States possess the same authority which they have always had to define and regulate the civil rights which their own people, in virtue of State citizenship, may enjoy within their respective limits, except that its exercise is now subject to the expressly granted power of Congress, by legislation, to enforce the provisions of such amendments -- a power which necessarily carries with it authority, by national legislation, to protect and secure the privileges and immunities which are created by or are derived from those amendments. That exemption of citizens from discrimination based on race or color, in respect of civil rights, is one of those privileges or immunities can no longer be deemed an open question in this court. Page 109 U. S. 57 It was said of the case of Dred Scott v. Sandford that this court there overruled the action of two generations, virtually inserted a new clause in the Constitution, changed its character, and made a new departure in the workings of the federal government. I may be permitted to say that, if the recent amendments are so construed that Congress may not, in its own discretion and independently of the action or nonaction of the States, provide by legislation of a direct character for the security of rights created by the national Constitution, if it be adjudged that the obligation to protect the fundamental privileges and immunities granted by the Fourteenth Amendment to citizens residing in the several States rests primarily not on the nation, but on the States, if it be further adjudged that individuals and corporations exercising public functions or wielding power under public authority may, without liability to direct primary legislation on the part of Congress, make the race of citizens the ground for denying them that equality of civil rights which the Constitution ordains as a principle of republican citizenship, then not only the foundations upon which the national supremacy has always securely rested will be materially disturbed, but we shall enter upon an era of constitutional law when the rights of freedom and American citizenship cannot receive from the nation that efficient protection which heretofore was unhesitatingly accorded to slavery and the rights of the master. But if it were conceded that the power of Congress could not be brought into activity until the rights specified in the act of 1875 had been abridged or denied by some State law or State action, I maintain that the decision of the court is erroneous. There has been adverse State action within the Fourteenth Amendment as heretofore interpreted by this court. I allude to Ex parte Virginia, supra. It appears in that case that one Cole, judge of a county court, was charged with the duty by the laws of Virginia of selecting grand and petit jurors. The law of the State did not authorize or permit him, in making such selections, to discriminate against colored citizens because of their race. But he was indicted in the federal court, under the act of 1875, for making such discriminations. Page 109 U. S. 58 The attorney general of Virginia contended before us that the State had done its duty, and had not authorized or directed that county judge to do what he was charged with having done; that the State had not denied to the colored race the equal protection of the laws, and that consequently the act of Cole must be deemed his individual act, in contravention of the will of the State. Plausible as this argument was, it failed to convince this court, and after saying that the Fourteenth Amendment had reference to the political body denominated a State "by whatever instruments or in whatever modes that action may be taken," and that a State acts by its legislative, executive, and judicial authorities, and can act in no other way, we proceeded: "The constitutional provision, therefore, must mean that no agency of the State or of the officers or agents by whom its powers are exerted shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and, as he acts under the name and for the State, and is clothed with the State's power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning. Then the State has clothed one of its agents with power to annul or evade it. But the constitutional amendment was ordained for a purpose. It was to secure equal rights to all persons, and, to insure to all persons the enjoyment of such rights, power was given to Congress to enforce its provisions by appropriate legislation. Such legislation must act upon persons, not upon the abstract thing denominated a State, but upon the persons who are the agents of the State in the denial of the rights which were intended to be secured." Ex parte Virginia, 100 U. S. 346 -347. In every material sense applicable to the practical enforcement of the Fourteenth Amendment, railroad corporations, keepers of inns, and managers of places of public amusement are agents or instrumentalities of the State, because they are charged with Page 109 U. S. 59 duties to the public and are amenable, in respect of their duties and functions, to governmental regulation. It seems to me that, within the principle settled in Ex parte Virginia, a denial by these instrumentalities of the State to the citizen, because of his race, of that equality of civil rights secured to him by law is a denial by the State within the meaning of the Fourteenth Amendment. If it be not, then that race is left, in respect of the civil rights in question, practically at the mercy of corporations and individuals wielding power under the States. But the court says that Congress did not, in the act of 1866, assume, under the authority given by the Thirteenth Amendment, to adjust what may be called the social rights of men and races in the community. I agree that government has nothing to do with social, as distinguished from technically legal, rights of individuals. No government ever has brought, or ever can bring, its people into social intercourse against their wishes. Whether one person will permit or maintain social relations with another is a matter with which government has no concern. I agree that, if one citizen chooses not to hold social intercourse with another, he is not and cannot be made amenable to the law for his conduct in that regard, for even upon grounds of race, no legal right of a citizen is violated by the refusal of others to maintain merely social relations with him. What I affirm is that no State, nor the officers of any State, nor any corporation or individual wielding power under State authority for the public benefit or the public convenience, can, consistently either with the freedom established by the fundamental law or with that equality of civil rights which now belongs to every citizen, discriminate against freemen or citizens in those rights because of their race, or because they once labored under the disabilities of slavery imposed upon them as a race. The rights which Congress, by the act of 1875, endeavored to secure and protect are legal, not social, rights. The right, for instance, of a colored citizen to use the accommodations of a public highway upon the same terms as are permitted to white citizens is no more a social right than his right under the law to use the public streets of a city or a town, or a turnpike road, or a public market, or a post office, or his right to sit Page 109 U. S. 60 in a public building with others, of whatever race, for the purpose of hearing the political questions of the day discussed. Scarcely a day passes without our seeing in this courtroom citizens of the white and black races sitting side by side, watching the progress of our business. It would never occur to anyone that the presence of a colored citizen in a courthouse, or courtroom, was an invasion of the social rights of white persons who may frequent such places. And yet such a suggestion would be quite as sound in law -- I say it with all respect -- as is the suggestion that the claim of a colored citizen to use, upon the same terms as is permitted to white citizens, the accommodations of public highways, or public inns, or places of public amusement, established under the license of the law, is an invasion of the social rights of the white race. The court, in its opinion, reserves the question whether Congress, in the exercise of its power to regulate commerce amongst the several States, might or might not pass a law regulating rights in public conveyances passing from one State to another. I beg to suggest that that precise question was substantially presented here in the only one of these cases relating to railroads -- Robinson and Wife v. Memphis & Charleston Railroad Company. In that case, it appears that Mrs. Robinson, a citizen of Mississippi, purchased a railroad ticket entitling her to be carried from Grand Junction, Tennessee, to Lynchburg, Virginia. Might not the act of 1875 be maintained in that case as applicable at least to commerce between the States, notwithstanding it does not, upon its face, profess to have been passed in pursuance of the power of Congress to regulate commerce? Has it ever been held that the judiciary should overturn a statute because the legislative department did not accurately recite therein the particular provision of the Constitution authorizing its enactment? We have often enforced municipal bonds in aid of railroad subscriptions where they failed to recite the statute authorizing their issue, but recited one which did not sustain their validity. The inquiry in such cases has been was there, in any statute, authority for the execution of the bonds? Upon this branch of the case, it may be remarked that the State of Louisiana, in 1869, passed a statute Page 109 U. S. 61 giving to passengers, without regard to race or color, equality of right in the accommodations of railroad and street cars, steamboats or other watercrafts, stage coaches, omnibuses, or other vehicles. But in Hall v. De Cuir, 95 U. S. 487 , that act was pronounced unconstitutional so far as it related to commerce between the States, this court saying that, "if the public good requires such legislation, it must come from Congress, and not from the States." I suggest, that it may become a pertinent inquiry whether Congress may, in the exertion of its power to regulate commerce among the States, enforce among passengers on public conveyances equality of right, without regard to race, color or previous condition of servitude, if it be true -- which I do not admit -- that such legislation would be an interference by government with the social rights of the people. My brethren say that, when a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men's rights are protected. It is, I submit, scarcely just to say that the colored race has been the special favorite of the laws. The statute of 1875, now adjudged to be unconstitutional, is for the benefit of citizens of every race and color. What the nation, through Congress, has sought to accomplish in reference to that race is what had already been done in every State of the Union for the white race -- to secure and protect rights belonging to them as freemen and citizens, nothing more. It was not deemed enough "to help the feeble up, but to support him after." The one underlying purpose of congressional legislation has been to enable the black race to take the rank of mere citizens. The difficulty has been to compel a recognition of the legal right of the black race to take the rank of citizens, and to secure the enjoyment of privileges belonging, under the law, to them as a component part of the people for whose welfare and happiness government is ordained. Page 109 U. S. 62 At every step in this direction, the nation has been confronted with class tyranny, which a contemporary English historian says is, of all tyrannies, the most intolerable, "for it is ubiquitous in its operation and weighs perhaps most heavily on those whose obscurity or distance would withdraw them from the notice of a single despot." Today it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future time, it may be that some other race will fall under the ban of race discrimination. If the constitutional amendments be enforced according to the intent with which, as I conceive, they were adopted, there cannot be, in this republic, any class of human beings in practical subjection to another class with power in the latter to dole out to the former just such privileges as they may choose to grant. The supreme law of the land has decreed that no authority shall be exercised in this country upon the basis of discrimination, in respect of civil rights, against freemen and citizens because of their race, color, or previous condition of servitude. To that decree -- for the due enforcement of which, by appropriate legislation, Congress has been invested with express power -- everyone must bow, whatever may have been, or whatever now are, his individual views as to the wisdom or policy either of the recent changes in the fundamental law or of the legislation which has been enacted to give them effect. For the reasons stated, I feel constrained to withhold my assent to the opinion of the court.

In the Civil Rights Cases of 1883, the U.S. Supreme Court ruled that the Civil Rights Act of 1875, which prohibited discrimination in public accommodations, was unconstitutional as applied to the states. The Court interpreted the Fourteenth Amendment as prohibiting state action that discriminated against individuals but did not authorize Congress to regulate the conduct of private individuals or entities. The Court's decision effectively limited the reach of federal anti-discrimination laws and left the regulation of private discrimination to the states. This ruling was a significant setback for civil rights and contributed to the continued segregation and discrimination faced by racial minorities in the United States.

Equal Protection

U.S. v. Carolene Products Co.

https://supreme.justia.com/cases/federal/us/304/144/

U.S. Supreme Court United States v. Carolene Products Co., 304 U.S. 144 (1938) United States v. Carolene Products Co. No. 640 Argued April 6, 1938 Decided April 25, 1938 304 U.S. 144 APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF ILLINOIS Syllabus The Filled Milk Act of Congress of Mar. 4, 1923, defines the term Filled Milk as meaning any milk, cream, or skimmed milk, whether or not condensed or dried, etc., to which has been added, or which has been blended or compounded with, any fat or oil other than milk fat, so that the resulting product is in imitation or semblance of milk, cream, or skimmed milk, whether or not condensed, dried, etc.; it declares that Filled Milk, as so defined, "is an adulterated article of food, injurious to the public health, and its sale constitutes a fraud upon the public", and it forbids and penalizes the shipment of such Filled Milk in interstate commerce. Defendant was indicted for shipping interstate certain packages of an article described in the indictment as a compound of condensed skimmed milk and coconut oil made in the imitation or semblance of condensed milk or cream, and further characterized by the indictment in the words of the statute, as "an adulterated article of food, injurious to the public health." Held: Page 304 U. S. 145 1. That upon its face, and as supported by judicial knowledge, including facts found in the reports of the congressional committees, the Act is presumptively within the scope of the power to regulate interstate commerce and consistent with due process. Demurrer to the indictment should have been overruled. Hebe Co. v. Shaw, 248 U. S. 297 . P. 304 U. S. 147 . 2. It is no valid objection that the prohibition of the Act does not extend to oleomargarine or other butter substitutes in which vegetable fats or oils replace butter. P. 304 U. S. 151 . 3. The statutory characterization of filled milk as injurious to health and as a fraud upon the public may, for the purposes of this case, be considered as a declaration of legislative findings deemed to support the Act as a constitutional exertion of the legislative power, aiding informed judicial review by revealing the rationale of the legislation, as do the reports of legislative committees. P. 304 U. S. 152 . 7 F. Supp. 500 , reversed. APPEAL under the Criminal Appeals Act from a judgment sustaining a demurrer to an indictment. MR. JUSTICE STONE delivered the opinion of the Court The question for decision is whether the "Filled Milk Act" of Congress of March 4, 1923 (c. 262, 42 Stat. 1486, 21 U.S.C. § 61-63), [ Footnote 1 ] which prohibits the shipment in Page 304 U. S. 146 interstate commerce of skimmed milk compounded with any fat or oil other than milk fat, so as to resemble milk or cream, transcends the power of Congress to regulate interstate commerce or infringes the Fifth Amendment. Appellee was indicted in the district court for southern Illinois for violation of the Act by the shipment in interstate commerce of certain packages of "Milnut," a compound of condensed skimmed milk and coconut oil made in imitation or semblance of condensed milk or cream. The indictment states, in the words of the statute, that Milnut "is an adulterated article of food, injurious to the public health," and that it is not a prepared food product of the type excepted from the prohibition of the Act. The trial court sustained a demurrer to the indictment on the authority of an earlier case in the same court, United States v. Carolene Products Co., 7 F. Supp. 500 . The case was brought here on appeal under the Criminal Appeals Act of March 2, 1907, 34 Stat. 1246, 18 U.S.C. § 682. The Court of Appeals for the Seventh Circuit has meanwhile, in another case, upheld the Filled Milk Act as an appropriate exercise of the commerce power in Carolene Products Co. v. Evaporated Milk Assn., 93 F. (2d) 202. Appellee assails the statute as beyond the power of Congress over interstate commerce, and hence an invasion of a field of action said to be reserved to the states by the Tenth Amendment. Appellee also complains that the Page 304 U. S. 147 statute denies to it equal protection of the laws and, in violation of the Fifth Amendment, deprives it of its property without due process of law, particularly in that the statute purports to make binding and conclusive upon appellee the legislative declaration that appellee's product "is an adulterated article of food injurious to the public health and its sale constitutes a fraud on the public." First. The power to regulate commerce is the power "to prescribe the rule by which commerce is to be governed," Gibbons v. Ogden , 9 Wheat. 1, 22 U. S. 196 , and extends to the prohibition of shipments in such commerce. Reid v. Colorado, 187 U. S. 137 ; Lottery Case, 188 U. S. 321 ; United States v. Delaware & Hudson Co., 213 U. S. 366 ; Hope v. United States, 227 U. S. 308 ; Clark Distilling Co. v. Western Maryland R. Co., 242 U. S. 311 ; United States v. Hill, 248 U. S. 420 ; McCormick & Co. v. Brown, 286 U. S. 131 . The power "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed by the Constitution." Gibbons v. Ogden, supra, 22 U. S. 196 . Hence, Congress is free to exclude from interstate commerce articles whose use in the states for which they are destined it may reasonably conceive to be injurious to the public health, morals or welfare, Reid v. Colorado, supra; Lottery Case, supra; Hipolite Egg Co. v. United States, 220 U. S. 45 ; Hope v. United States, supra, or which contravene the policy of the state of their destination. Kentucky Whip & Collar Co. v. Illinois Central R. Co., 299 U. S. 334 . Such regulation is not a forbidden invasion of state power either because its motive or its consequence is to restrict the use of articles of commerce within the states of destination, and is not prohibited unless by the due process clause of the Fifth Amendment. And it is no objection to the exertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states. Seven Cases v. United States, 239 U. S. 510 , 239 U. S. 514 ; Hamilton v. Kentucky Page 304 U. S. 148 Distilleries & Warehouse Co., 251 U. S. 146 , 251 U. S. 156 . The prohibition of the shipment of filled milk in interstate commerce is a permissible regulation of commerce, subject only to the restrictions of the Fifth Amendment. Second. The prohibition of shipment of appellee's product in interstate commerce does not infringe the Fifth Amendment. Twenty years ago, this Court, in Hebe Co. v. Shaw, 248 U. S. 297 , held that a state law which forbids the manufacture and sale of a product assumed to be wholesome and nutritive, made of condensed skimmed milk, compounded with coconut oil, is not forbidden by the Fourteenth Amendment. The power of the legislature to secure a minimum of particular nutritive elements in a widely used article of food and to protect the public from fraudulent substitutions was not doubted, and the Court thought that there was ample scope for the legislative judgment that prohibition of the offending article was an appropriate means of preventing injury to the public. We see no persuasive reason for departing from that ruling here, where the Fifth Amendment is concerned, and since none is suggested, we might rest decision wholly on the presumption of constitutionality. But affirmative evidence also sustains the statute. In twenty years, evidence has steadily accumulated of the danger to the public health from the general consumption of foods which have been stripped of elements essential to the maintenance of health. The Filled Milk Act was adopted by Congress after committee hearings, in the course of which eminent scientists and health experts testified. An extensive investigation was made of the commerce in milk compounds in which vegetable oils have been substituted for natural milk fat, and of the effect upon the public health of the use of such compounds as a food substitute for milk. The conclusions drawn from evidence presented at the hearings were embodied in reports of the Page 304 U. S. 149 House Committee on Agriculture, H.R. No. 365, 67th Cong., 1st Sess., and the Senate Committee on Agriculture and Forestry, Sen.Rep. No. 987, 67th Cong., 4th Sess. Both committees concluded, as the statute itself declares, that the use of filled milk as a substitute for pure milk is generally injurious to health and facilitates fraud on the public. [ Footnote 2 ] There is nothing in the Constitution which compels a legislature, either national or state, to ignore such evidence, nor need it disregard the other evidence which amply supports the conclusions of the Congressional committees that the danger is greatly enhanced where an inferior product, like appellee's, is indistinguishable from Page 304 U. S. 150 a valuable food of almost universal use, thus making fraudulent distribution easy and protection of the consumer difficult. [ Footnote 3 ] Page 304 U. S. 151 Here, the prohibition of the statute is inoperative unless the product is "in imitation or semblance milk, cream, or skimmed milk, whether or not condensed." Whether in such circumstances the public would be adequately protected by the prohibition of false labels and false branding imposed by the Pure Food and Drugs Act, or whether it was necessary to go farther and prohibit a substitute food product thought to be injurious to health if used as a substitute when the two are not distinguishable, was a matter for the legislative Judgment, and not that of courts. Hebe Co. v. Shaw, supra; South Carolina v. Barnwell Bros. Inc., 303 U. S. 177 . It was upon this ground that the prohibition of the sale of oleomargarine made in imitation of butter was held not to infringe the Fourteenth Amendment in Powell v. Pennsylvania, 127 U. S. 678 ; Capital City Dairy Co. v. Ohio, 183 U. S. 238 . Compare McCray v. United States, 195 U. S. 27 , 195 U. S. 63 ; Purity Extract & Tonic Co. v. Lynch, 226 U. S. 192 . Appellee raises no valid objection to the present statute by arguing that its prohibition has not been extended to oleomargarine or other butter substitutes in which vegetable fats or oils are substituted for butter fat. The Fifth Amendment has no equal protection clause, and even that of the Fourteenth, applicable only to the states, does not compel their legislatures to prohibit all like evils, or none. A legislature may hit at an abuse which it has found, even though it has failed to strike at another. Central Lumber Co. v. South Dakota, 226 U. S. 157 , 226 U. S. 160 ; Miller v. Wilson, 236 U. S. 373 , 236 U. S. 384 ; Hall v. Geiger-Jones Co., 242 U. S. 539 , 242 U. S. 556 ; Farmers & Merchants Bank v. Federal Reserve Bank, 262 U. S. 649 , 262 U. S. 661 . Page 304 U. S. 152 Third. We may assume for present purposes that no pronouncement of a legislature can forestall attack upon the constitutionality of the prohibition which it enacts by applying opprobrious epithets to the prohibited act, and that a statute would deny due process which precluded the disproof in judicial proceedings of all facts which would show or tend to show that a statute depriving the suitor of life, liberty or property had a rational basis. But such we think is not the purpose or construction of the statutory characterization of filled milk as injurious to health and as a fraud upon the public. There is no need to consider it here as more than a declaration of the legislative findings deemed to support and justify the action taken as a constitutional exertion of the legislative power, aiding informed judicial review, as do the reports of legislative committees, by revealing the rationale of the legislation. Even in the absence of such aids, the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless, in the light of the facts made known or generally assumed, it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators. [ Footnote 4 ] See Metropolitan Casualty Ins. Co. v. Page 304 U. S. 153 Brownell, 294 U. S. 580 , 294 U. S. 584 , and cases cited. The present statutory findings affect appellee n more than the reports of the Congressional committees, and since, in the absence of the statutory findings, they would be presumed, their incorporation in the statute is no more prejudicial than surplusage. Where the existence of a rational basis for legislation whose constitutionality is attacked depends upon facts beyond the sphere of judicial notice, such facts may properly be male the subject of judicial inquiry, Boren's Farm Products Co. v. Baldwin, 293 U. S. 194 , and the constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist. Chastleton Corporation v. Sinclair, 264 U. S. 543 . Similarly we recognize that the constitutionality of a statute, valid on its face, may be assailed by proof of facts tending to show that the statute as applied to a particular Page 304 U. S. 154 article is without support in reason because the article, although within the prohibited class, is so different from others of the class as to be without the reason for the prohibition, Railroad Retirement Board v. Alton R. Co., 295 U. S. 330 , 295 U. S. 349 , 295 U. S. 351 , 295 U. S. 352 ; see Whitney v. California, 274 U. S. 357 , 274 U. S. 379 ; cf. Morf v. Bingaman, 298 U. S. 407 , 298 U. S. 413 , though the effect of such proof depends on the relevant circumstances of each case, as, for example, the administrative difficulty of excluding the article from the regulated class. Carmichael v. Southern Coal & Coke Co., 301 U. S. 495 , 301 U. S. 511 -512; South Carolina v. Barnwell Bros., 303 U. S. 177 , 303 U. S. 192 -193. But, by their very nature, such inquiries, where the legislative judgment is drawn in question, must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it. Here, the demurrer challenges the validity of the statute on its face, and it is evident from all the considerations presented to Congress, and those of which we may take judicial notice, that the question is at least debatable whether commerce in filled milk should be left unregulated, or in some measure restricted, or wholly prohibited. As that decision was for Congress, neither the finding of a court arrived at by weighing the evidence nor the verdict of a jury can be substituted for it. Price v. Illinois, 238 U. S. 446 , 238 U. S. 452 ; Hebe Co. v. Shaw, supra, 248 U. S. 303 ; Standard Oil Co. v. Marysville, 279 U. S. 582 , 279 U. S. 584 ; South Carolina v. Barnwell Bros., Inc., supra, 303 U. S. 191 , citing Worcester County Trust Co. v. Riley, 302 U. S. 292 , 302 U. S. 299 . The prohibition of shipment in interstate commerce of appellee's product, as described in the indictment, is a constitutional exercise of the power to regulate interstate commerce. As the statute is not unconstitutional on its face the demurrer should have been overruled, and the judgment will be Reversed. Page 304 U. S. 155 MR. JUSTICE BLACK concurs in the result and in all of the opinion except the part marked " Third. " MR. JUSTICE McREYNOLDS thinks that the judgment should be affirmed. MR. JUSTICE CARDOZO and MR. JUSTICE REED took no part in the consideration or decision of this case. [ Footnote 1 ] The relevant portions of the statute are as follows: "Section 61. . . . (c) The term 'filled milk' means any milk cream, or skimmed milk, whether or not condensed, evaporated, concentrated, powdered, dried, or desiccated, to which has been added, or which has been blended or compounded with, any fat or oil other than milk fat, so that the resulting product is in imitation or semblance of milk, cream, or skimmed milk, whether or not condensed, evaporated, concentrated, powdered, dried, or desiccated." "Section 62. . . . It is hereby declared that filled milk, as herein defined, is an adulterated article of food, injurious to the public health, and its sale constitutes a fraud upon the public. It shall be unlawful for any person to . . . ship or deliver for shipment in interstate or foreign commerce, any filled milk." Section 63 imposes as penalties for violations "a fine of not more than $1,000 or imprisonment of not more than one year, or both . . ." [ Footnote 2 ] The reports may be summarized as follows: there is an extensive commerce in milk compounds made of condensed milk from which the butter fat has been extracted and an equivalent amount of vegetable oil, usually coconut oil, substituted. These compounds resemble milk in taste and appearance, and are distributed in packages resembling those in which pure condensed milk is distributed. By reason of the extraction of the natural milk fat, the compounded product can be manufactured and sold at a lower cost than pure milk. Butter fat, which constitutes an important part of the food value of pure milk, is rich in vitamins, food elements which are essential to proper nutrition and are wanting in vegetable oils. The use of filled milk as a dietary substitute for pure milk results, especially in the case of children, in undernourishment, and induces diseases which attend malnutrition. Despite compliance with the branding and labeling requirements of the Pure Food and Drugs Act, there is widespread use of filled milk as a food substitute for pure milk. This is aided by their identical taste and appearance, by the similarity of the containers in which they are sold, by the practice of dealers in offering the inferior product to customers as being as good as or better than pure condensed milk sold at a higher price, by customers' ignorance of the respective food values of the two products, and, in many sections of the country, by their inability to read the labels placed on the containers. Large amounts of filled milk, much of it shipped and sold in bulk, are purchased by hotels and boarding houses, and by manufacturers of food products, such as ice cream, to whose customers labeling restrictions afford no protection. [ Footnote 3 ] There is now an extensive literature indicating wide recognition by scientists and dietitians of the great importance to the public health of butter fat and whole milk as the prime source of vitamins, which are essential growth producing and disease preventing elements in the diet. See Dr. Henry C. Sherman, The Meaning of Vitamin A, in Science, Dec. 21, 1928, p. 619; Dr. E. V. McCollum et al., The Newer Knowledge of Nutrition (1929 ed.), pp. 134, 170, 176, 177; Dr. A. S. Root, Food Vitamins (N.Car. State Board of Health, May 1931), p. 2; Dr. Henry C. Sherman, Chemistry of Food and Nutrition (1932), p. 367; Dr. Mary S. Rose, The Foundations of Nutrition (1933), p. 237. When the Filled Milk Act was passed, eleven states had rigidly controlled the exploitation of filled milk, or forbidden it altogether. H.R. 365, 67th Cong., 1st Sess. Some thirty-five states have now adopted laws which, in terms or by their operation, prohibit the sale of filled milk. Ala.Agri.Code, 1927, § 51, Art. 8; Ariz.Rev.Code, 1936 Supp., § 943y; Pope's Ark.Dig.1937, § 3103; Deering's Cal.Code, 1933 Supp., Tit. 149, Act 1943, p. 1302; Conn.Gen.Stat., 1930, § 2487, c. 135; Del.Rev.Code, 1935, § 649; Fla.Comp.Gen.Laws, 1927, §§ 3216, 7676; Ga.Code, 1933, § 42-511; Idaho Code, 1932, Tit. 36, §§ 502-504; Jones Ill.Stat.Ann., 1937 Supp., § 53.020(1), (2), (3); Burns Ind.Stat., 1933, § 35-1203; Iowa Code, 1935, § 3062; Kan.Gen.Stat., 1935, c. 65, § 707; Md.Ann.Code, Art. 27, § 281; Mass.Ann.Laws, 1933, § 17-A, c. 94; Mich.Comp.Laws, 1929, § 5358; Mason's Minn.Stat., 1927, § 3926; Mo.Rev.Stat., 1929, §§ 12408-12413; Mont.Rev.Code, Anderson and McFarland, 1935, c. 240, § 2620.39; Neb.Comp.Stat., 1929, § 81-1022; N.H.Pub.L.1926 v. 1, c. 163, § 37, p. 619; N.J.Comp.Stat., 1911-1924, § 8l-8j, p. 1400; Cahill's N.Y.Cons.Laws, 1930, § 60, c. 1; N.D. Comp.Laws, 1913-1925, Pol.Code, c. 38, § 2855(a) 1; Page's Ohio Gen.Code, § 12725; Purdon's Penna.Stat., 1936, Tit. 31, §§ 553, 582; S.D.Comp.Laws, 1929, c.192, § 7926-O, p. 2493; Williams Tenn.Code, 1934, c. 15, §§ 6549, 6551; Vernon's Tex.Pen.Code, Tit. 12, c. 2, Art. 713a; Utah Rev.Stat., 1933, §§ 3-10-59, 3-10-60; Vt.Pub.L., 1933, Tit. 34, c. 303, § 7724, p. 1288; Va.1936 Code, § 1197c; W.Va.1932 Code, § 2036; Wis.Stat., 11th ed.1931, c. 98, § 98.07, p. 1156; cf. N.Mex.Ann.Stat., 1929, §§ 25-104, 25-108. Three others have subjected its sale to rigid regulations. Colo.L.1921, c. 30, § 1007, p. 440; Ore.1930 Code v. 2, c. XII, §§ 41-1208 to 41-1210; Remington's Wash.Rev.Stat. v. 7, Tit. 40, c. 13, §§ 6206, 6207, 6713, 6714, p. 360, et seq. [ Footnote 4 ] There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California, 283 U. S. 359 , 283 U. S. 369 -370; Lovell v. Griffin, 303 U. S. 444 , 303 U. S. 452 . It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U. S. 536 ; Nixon v. Condon, 286 U. S. 73 ; on restraints upon the dissemination of information, see Near v. Minnesota ex rel. Olson, 283 U. S. 697 , 283 U. S. 713 -714, 283 U. S. 718 -720, 283 U. S. 722 ; Grosjean v. American Press Co., 297 U. S. 233 ; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 283 U. S. 369 ; Fiske v. Kansas, 274 U. S. 380 ; Whitney v. California, 274 U. S. 357 , 274 U. S. 373 -378; Herndon v. Lowry, 301 U. S. 242 , and see Holmes, J., in Gitlow v. New York, 268 U. S. 652 , 268 U. S. 673 ; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U. S. 353 , 299 U. S. 365 . Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U. S. 510 , or national, Meyer v. Nebraska, 262 U. S. 390 ; Bartels v. Iowa, 262 U. S. 404 ; Farrington v. Tokushige, 273 U. S. 284 , or racial minorities, Nixon v. Herndon, supra; Nixon v. Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare 17 U. S. Maryland, 4 Wheat. 316, 17 U. S. 428 ; South Carolina v. Barnwell Bros., 303 U. S. 177 , 303 U. S. 184 , n 2, and cases cited. MR. JUSTICE BUTLER. I concur in the result. Prima facie, the facts alleged in the indictment are sufficient to constitute a violation of the statute. But they are not sufficient conclusively to establish guilt of the accused. At the trial, it may introduce evidence to show that the declaration of the Act that the described product is injurious to public health and that the sale of it is a fraud upon the public are without any substantial foundation. Mobile, J. & K.C. R. Co. v. Turnipseed, 219 U. S. 35 , 219 U. S. 43 . Manley v. Georgia, 279 U. S. 1 , 279 U. S. 6 . The provisions on which the indictment rests should, if possible, be construed to avoid the serious question of constitutionality. Federal Trade Comm'n v. American Tobacco Co., 264 U. S. 298 , 264 U. S. 307 . Panama R. Co. v. Johnson, 264 U. S. 375 , 264 U. S. 390 . Missouri Pacific R. Co. v. Boone, 270 U. S. 466 , 270 U. S. 472 . Richmond Co. v. United States, 275 U. S. 331 , 275 U. S. 346 . If construed to exclude from interstate commerce wholesome food products that demonstrably are neither injurious to health nor calculated to deceive, they are repugnant to the Fifth Amendment. Weaver v. Palmer Bros. Co., 270 U. S. 402 , 270 U. S. 412 -13. See People v. Carolene Products Co., 345 Ill. 166. Carolene Products Co. v. McLaughlin, 365 Ill. 62, 5 N.E.2d 447. Carolene Products Co. v. Thomson, 276 Mich. 172, 267 N.W. 608. Carolene Products Co. v. Banning, 131 Neb. 429, 268 N.W. 313. The allegation of the indictment that Milnut "is an adulterated article of food, injurious to the public health," tenders an issue of fact to be determined upon evidence.

The Supreme Court upheld the Filled Milk Act of 1923, which prohibited the shipment of skimmed milk compounded with non-milk fats in interstate commerce, as a valid exercise of Congress's power to regulate interstate commerce. The Court found that the Act was presumptively constitutional and that the legislative findings supported it as a constitutional exertion of legislative power. The Court also noted that similar products, such as oleomargarine, were not included in the Act, but this did not invalidate the prohibition on filled milk. Justice Stone's opinion included a footnote suggesting that stricter judicial review may be warranted when laws target "discrete and insular minorities."

Free Speech

Moody v. NetChoice, LLC

https://supreme.justia.com/cases/federal/us/603/22-277/

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. SUPREME COURT OF THE UNITED STATES _________________ Nos. 22–277 and 22–555 _________________ ASHLEY MOODY, ATTORNEY GENERAL OF FLORIDA, et al., PETITIONERS 22–277 v. NETCHOICE, LLC, dba NETCHOICE, et al. on writ of certiorari to the united states court of appeals for the eleventh circuit NETCHOICE, LLC, dba NETCHOICE, et al., PETITIONERS 22–555 v. KEN PAXTON, ATTORNEY GENERAL OF TEXAS on writ of certiorari to the united states court of appeals for the fifth circuit [July 1, 2024] Justice Kagan delivered the opinion of the Court.[ 1 ]* Not even thirty years ago, this Court felt the need to explain to the opinion-reading public that the “Internet is an international network of interconnected computers.” Reno v. American Civil Liberties Union , 521 U.S. 844 , 849 (1997). Things have changed since then. At the time, only 40 million people used the internet. See id. , at 850. Today, Facebook and YouTube alone have over two billion users each. See App. in No. 22–555, p. 67a. And the public likely no longer needs this Court to define the internet. These years have brought a dizzying transformation in how people communicate, and with it a raft of public policy issues. Social-media platforms, as well as other websites, have gone from unheard-of to inescapable. They structure how we relate to family and friends, as well as to businesses, civic organizations, and governments. The novel services they offer make our lives better, and make them worse—create unparalleled opportunities and unprecedented dangers. The questions of whether, when, and how to regulate online entities, and in particular the social-media giants, are understandably on the front-burner of many legislatures and agencies. And those government actors will generally be better positioned than courts to respond to the emerging challenges social-media entities pose. But courts still have a necessary role in protecting those entities’ rights of speech, as courts have historically protected traditional media’s rights. To the extent that social-media platforms create expressive products, they receive the First Amendment’s protection. And although these cases are here in a preliminary posture, the current record suggests that some platforms, in at least some functions, are indeed engaged in expression. In constructing certain feeds, those platforms make choices about what third-party speech to display and how to display it. They include and exclude, organize and prioritize—and in making millions of those decisions each day, produce their own distinctive compilations of expression. And while much about social media is new, the essence of that project is something this Court has seen before. Traditional publishers and editors also select and shape other parties’ expression into their own curated speech products. And we have repeatedly held that laws curtailing their editorial choices must meet the First Amendment’s requirements. The principle does not change because the curated compilation has gone from the physical to the virtual world. In the latter, as in the former, government efforts to alter an edited compilation of third-party expression are subject to judicial review for compliance with the First Amendment. Today, we consider whether two state laws regulating social-media platforms and other websites facially violate the First Amendment. The laws, from Florida and Texas, restrict the ability of social-media platforms to control whether and how third-party posts are presented to other users. Or otherwise put, the laws limit the platforms’ capacity to engage in content moderation—to filter, prioritize, and label the varied messages, videos, and other content their users wish to post. In addition, though far less addressed in this Court, the laws require a platform to provide an individualized explanation to a user if it removes or alters her posts. NetChoice, an internet trade association, challenged both laws on their face—as a whole, rather than as to particular applications. The cases come to us at an early stage, on review of preliminary injunctions. The Court of Appeals for the Eleventh Circuit upheld such an injunction, finding that the Florida law was not likely to survive First Amendment review. The Court of Appeals for the Fifth Circuit reversed a similar injunction, primarily reasoning that the Texas law does not regulate any speech and so does not implicate the First Amendment. Today, we vacate both decisions for reasons separate from the First Amendment merits, because neither Court of Appeals properly considered the facial nature of NetChoice’s challenge. The courts mainly addressed what the parties had focused on. And the parties mainly argued these cases as if the laws applied only to the curated feeds offered by the largest and most paradigmatic social-media platforms—as if, say, each case presented an as-applied challenge brought by Facebook protesting its loss of control over the content of its News Feed. But argument in this Court revealed that the laws might apply to, and differently affect, other kinds of websites and apps. In a facial challenge, that could well matter, even when the challenge is brought under the First Amendment. As explained below, the question in such a case is whether a law’s unconstitutional applications are substantial compared to its constitutional ones. To make that judgment, a court must determine a law’s full set of applications, evaluate which are constitutional and which are not, and compare the one to the other. Neither court performed that necessary inquiry. To do that right, of course, a court must understand what kind of government actions the First Amendment prohibits. We therefore set out the relevant constitutional principles, and explain how one of the Courts of Appeals failed to follow them. Contrary to what the Fifth Circuit thought, the current record indicates that the Texas law does regulate speech when applied in the way the parties focused on below—when applied, that is, to prevent Facebook (or YouTube) from using its content-moderation standards to remove, alter, organize, prioritize, or disclaim posts in its News Feed (or homepage). The law then prevents exactly the kind of editorial judgments this Court has previously held to receive First Amendment protection. It prevents a platform from compiling the third-party speech it wants in the way it wants, and thus from offering the expressive product that most reflects its own views and priorities. Still more, the law—again, in that specific application—is unlikely to withstand First Amendment scrutiny. Texas has thus far justified the law as necessary to balance the mix of speech on Facebook’s News Feed and similar platforms; and the record reflects that Texas officials passed it because they thought those feeds skewed against politically conservative voices. But this Court has many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression—to “un-bias” what it thinks biased, rather than to leave such judgments to speakers and their audiences. That principle works for social-media platforms as it does for others. In sum, there is much work to do below on both these cases, given the facial nature of NetChoice’s challenges. But that work must be done consistent with the First Amendment, which does not go on leave when social media are involved. I As commonly understood, the term “social media platforms” typically refers to websites and mobile apps that allow users to upload content—messages, pictures, videos, and so on—to share with others. Those viewing the content can then react to it, comment on it, or share it themselves. The biggest social-media companies—entities like Facebook and YouTube—host a staggering amount of content. Facebook users, for example, share more than 100 billion messages every day. See App. in No. 22–555, at 67a. And YouTube sees more than 500 hours of video uploaded every minute. See ibid. In the face of that deluge, the major platforms cull and organize uploaded posts in a variety of ways. A user does not see everything—even everything from the people she follows—in reverse-chronological order. The platforms will have removed some content entirely; ranked or otherwise prioritized what remains; and sometimes added warnings or labels. Of particular relevance here, Facebook and YouTube make some of those decisions in conformity with content-moderation policies they call Community Standards and Community Guidelines. Those rules list the subjects or messages the platform prohibits or discourages—say, pornography, hate speech, or misinformation on select topics. The rules thus lead Facebook and YouTube to remove, disfavor, or label various posts based on their content. In 2021, Florida and Texas enacted statutes regulating internet platforms, including the large social-media companies just mentioned. The States’ laws differ in the entities they cover and the activities they limit. But both contain content-moderation provisions, restricting covered platforms’ choices about whether and how to display user- generated content to the public. And both include individualized-explanation provisions, requiring platforms to give reasons for particular content-moderation choices. Florida’s law regulates “social media platforms,” as defined expansively, that have annual gross revenue of over $100 million or more than 100 million monthly active users. Fla. Stat. §501.2041(1)(g) (2023).[ 2 ] The statute restricts varied ways of “censor[ing]” or otherwise disfavoring posts—including deleting, altering, labeling, or deprioritizing them—based on their content or source. §501.2041(1)(b). For example, the law prohibits a platform from taking those actions against “a journalistic enterprise based on the content of its publication or broadcast.” §501.2041(2)(j). Similarly, the law prevents deprioritizing posts by or about political candidates. See §501.2041(2)(h). And the law requires platforms to apply their content-moderation practices to users “in a consistent manner.” §501.2041(2)(b). In addition, the Florida law mandates that a platform provide an explanation to a user any time it removes or alters any of her posts. See §501.2041(2)(d)(1). The requisite notice must be delivered within seven days, and contain both a “thorough rationale” for the action and an account of how the platform became aware of the targeted material. §501.2041(3). The Texas law regulates any social-media platform, having over 50 million monthly active users, that allows its users “to communicate with other users for the primary purpose of posting information, comments, messages, or images.” Tex. Bus. & Com. Code Ann. §§120.001(1), 120.002(b) (West Cum. Supp. 2023).[ 3 ] With several exceptions, the statute prevents platforms from “censor[ing]” a user or a user’s expression based on viewpoint. Tex. Civ. Prac. & Rem. Code Ann. §§143A.002(a), 143 A. 006 (West Cum. Supp. 2023). That ban on “censor[ing]” covers any action to “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.” §143A.001(1). The statute also requires that “concurrently with the removal” of user content, the platform shall “notify the user” and “explain the reason the content was removed.” §120.103(a)(1). The user gets a right of appeal, and the platform must address an appeal within 14 days. See §§120.103(a)(2), 120.104. Soon after Florida and Texas enacted those statutes, NetChoice LLC and the Computer & Communications Industry Association (collectively, NetChoice)—trade associations whose members include Facebook and YouTube—brought facial First Amendment challenges against the two laws. District courts in both States entered preliminary injunctions, halting the laws’ enforcement. See 546 F. Supp. 3d 1082, 1096 (ND Fla. 2021); 573 F. Supp. 3d 1092, 1117 (WD Tex. 2021). Each court held that the suit before it is likely to succeed because the statute infringes on the constitutionally protected “editorial judgment” of NetChoice’s members about what material they will display. See 546 F. Supp. 3d, at 1090; 573 F. Supp. 3d, at 1107. The Eleventh Circuit upheld the injunction of Florida’s law, as to all provisions relevant here. The court held that the State’s restrictions on content moderation trigger First Amendment scrutiny under this Court’s cases protecting “editorial discretion.” 34 F. 4th 1196, 1209, 1216 (2022). When a social-media platform “removes or deprioritizes a user or post,” the court explained, it makes a “judgment rooted in the platform’s own views about the sorts of content and viewpoints that are valuable and appropriate for dissemination.” Id. , at 1210. The court concluded that the content-moderation provisions are unlikely to survive “intermediate—let alone strict—scrutiny,” because a State has no legitimate interest in counteracting “private ‘censorship’ ” by “tilt[ing] public debate in a preferred direction.” Id. , at 1227–1228. Similarly, the Eleventh Circuit thought the statute’s individualized-explanation requirements likely to fall. Applying the standard from Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio , 471 U.S. 626 (1985), the court held that the obligation to explain “millions of [decisions] per day” is “unduly burdensome and likely to chill platforms’ protected speech.” 34 F. 4th, at 1230. The Fifth Circuit disagreed across the board, and so reversed the preliminary injunction before it. In that court’s view, the platforms’ content-moderation activities are “not speech” at all, and so do not implicate the First Amendment. 49 F. 4th 439, 466, 494 (2022). But even if those activities were expressive, the court continued, the State could regulate them to advance its interest in “protecting a diversity of ideas.” Id. , at 482 (emphasis deleted). The court further held that the statute’s individualized- explanation provisions would likely survive, again even assuming that the platforms were engaged in speech. Those requirements, the court maintained, are not unduly burdensome under Zauderer because the platforms needed only to “scale up” a “complaint-and-appeal process” they already used. 49 F. 4th, at 487. We granted certiorari to resolve the split between the Fifth and Eleventh Circuits. 600 U. S. ___ (2023). II NetChoice chose to litigate these cases as facial challenges, and that decision comes at a cost. For a host of good reasons, courts usually handle constitutional claims case by case, not en masse. See Washington State Grange v. Washington State Republican Party , 552 U.S. 442 , 450–451 (2008). “Claims of facial invalidity often rest on speculation” about the law’s coverage and its future enforcement. Id. , at 450. And “facial challenges threaten to short circuit the democratic process” by preventing duly enacted laws from being implemented in constitutional ways. Id. , at 451. This Court has therefore made facial challenges hard to win. That is true even when a facial suit is based on the First Amendment, although then a different standard applies. In other cases, a plaintiff cannot succeed on a facial challenge unless he “establish[es] that no set of circumstances exists under which the [law] would be valid,” or he shows that the law lacks a “plainly legitimate sweep.” United States v. Salerno , 481 U.S. 739 , 745 (1987); Washington State Grange , 552 U. S., at 449. In First Amendment cases, however, this Court has lowered that very high bar. To “provide[ ] breathing room for free expression,” we have substituted a less demanding though still rigorous standard. United States v. Hansen , 599 U.S. 762, 769 (2023). The question is whether “a substantial number of [the law’s] applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Americans for Prosperity Foundation v. Bonta , 594 U.S. 595, 615 (2021); see Hansen , 599 U. S., at 770 (likewise asking whether the law “prohibits a substantial amount of protected speech relative to its plainly legitimate sweep”). So in this singular context, even a law with “a plainly legitimate sweep” may be struck down in its entirety. But that is so only if the law’s unconstitutional applications substantially outweigh its constitutional ones. So far in these cases, no one has paid much attention to that issue. In the lower courts, NetChoice and the States alike treated the laws as having certain heartland applications, and mostly confined their battle to that terrain. More specifically, the focus was on how the laws applied to the content-moderation practices that giant social-media platforms use on their best-known services to filter, alter, or label their users’ posts. Or more specifically still, the focus was on how the laws applied to Facebook’s News Feed and YouTube’s homepage. Reflecting the parties’ arguments, the Eleventh and Fifth Circuits also mostly confined their analysis in that way. See 34 F. 4th, at 1210, 1213 (considering “platforms like Facebook, Twitter, YouTube, and TikTok” and content moderation in “viewers’ feeds”); 49 F. 4th, at 445, 460, 478, 492 (considering platforms “such as Facebook, Twitter, and YouTube” and referencing users’ feeds); see also id. , at 501 (Southwick, J., concurring in part and dissenting in part) (analyzing a curated feed). On their way to opposing conclusions, they concentrated on the same issue: whether a state law can regulate the content-moderation practices used in Facebook’s News Feed (or near equivalents). They did not address the full range of activities the laws cover, and measure the constitutional against the unconstitutional applications. In short, they treated these cases more like as-applied claims than like facial ones. The first step in the proper facial analysis is to assess the state laws’ scope. What activities, by what actors, do the laws prohibit or otherwise regulate? The laws of course differ one from the other. But both, at least on their face, appear to apply beyond Facebook’s News Feed and its ilk. Members of this Court asked some of the relevant questions at oral argument. Starting with Facebook and the other giants: To what extent, if at all, do the laws affect their other services, like direct messaging or events management? See Tr. of Oral Arg. in No. 22–555, pp. 62–63; Tr. of Oral Arg. in No. 22–277, pp. 24–25; App. in No. 22–277, pp. 129, 159. And beyond those social-media entities, what do the laws have to say, if anything, about how an email provider like Gmail filters incoming messages, how an online marketplace like Etsy displays customer reviews, how a payment service like Venmo manages friends’ financial exchanges, or how a ride-sharing service like Uber runs? See Tr. of Oral Arg. in No. 22–277, at 74–79, 95–98; see also id. , at 153 (Solicitor General) (“I have some sympathy [for the Court] here. In preparation for this argument, I’ve been working with my team to say, does this even cover direct messaging? Does this even cover Gmail?”). Those are examples only. The online world is variegated and complex, encompassing an ever-growing number of apps, services, functionalities, and methods for communication and connection. Each might (or might not) have to change because of the provisions, as to either content moderation or individualized explanation, in Florida’s or Texas’s law. Before a court can do anything else with these facial challenges, it must address that set of issues—in short, must “determine what [the law] covers.” Hansen , 599 U. S., at 770. The next order of business is to decide which of the laws’ applications violate the First Amendment, and to measure them against the rest. For the content-moderation provisions, that means asking, as to every covered platform or function, whether there is an intrusion on protected editorial discretion. See infra , at 13–19. And for the individualized-explanation provisions, it means asking, again as to each thing covered, whether the required disclosures unduly burden expression. See Zauderer , 471 U. S., at 651. Even on a preliminary record, it is not hard to see how the answers might differ as between regulation of Facebook’s News Feed (considered in the courts below) and, say, its direct messaging service (not so considered). Curating a feed and transmitting direct messages, one might think, involve different levels of editorial choice, so that the one creates an expressive product and the other does not. If so, regulation of those diverse activities could well fall on different sides of the constitutional line. To decide the facial challenges here, the courts below must explore the laws’ full range of applications—the constitutionally impermissible and permissible both—and compare the two sets. Maybe the parties treated the content-moderation choices reflected in Facebook’s News Feed and YouTube’s homepage as the laws’ heartland applications because they are the principal things regulated, and should have just that weight in the facial analysis. Or maybe not: Maybe the parties’ focus had all to do with litigation strategy, and there is a sphere of other applications—and constitutional ones—that would prevent the laws’ facial invalidation. The problem for this Court is that it cannot undertake the needed inquiries. “[W]e are a court of review, not of first view.” Cutter v. Wilkinson , 544 U.S. 709 , 718, n. 7 (2005). Neither the Eleventh Circuit nor the Fifth Circuit performed the facial analysis in the way just described. And even were we to ignore the value of other courts going first, we could not proceed very far. The parties have not briefed the critical issues here, and the record is underdeveloped. So we vacate the decisions below and remand these cases. That will enable the lower courts to consider the scope of the laws’ applications, and weigh the unconstitutional as against the constitutional ones. III But it is necessary to say more about how the First Amendment relates to the laws’ content-moderation provisions, to ensure that the facial analysis proceeds on the right path in the courts below. That need is especially stark for the Fifth Circuit. Recall that it held that the content choices the major platforms make for their main feeds are “not speech” at all, so States may regulate them free of the First Amendment’s restraints. 49 F. 4th, at 494; see supra , at 8. And even if those activities were expressive, the court held, Texas’s interest in better balancing the marketplace of ideas would satisfy First Amendment scrutiny. See 49 F. 4th, at 482. If we said nothing about those views, the court presumably would repeat them when it next considers NetChoice’s challenge. It would thus find that significant applications of the Texas law—and so significant inputs into the appropriate facial analysis—raise no First Amendment difficulties. But that conclusion would rest on a serious misunderstanding of First Amendment precedent and principle. The Fifth Circuit was wrong in concluding that Texas’s restrictions on the platforms’ selection, ordering, and labeling of third-party posts do not interfere with expression. And the court was wrong to treat as valid Texas’s interest in changing the content of the platforms’ feeds. Explaining why that is so will prevent the Fifth Circuit from repeating its errors as to Facebook’s and YouTube’s main feeds. (And our analysis of Texas’s law may also aid the Eleventh Circuit, which saw the First Amendment issues much as we do, when next considering NetChoice’s facial challenge.) But a caveat: Nothing said here addresses any of the laws’ other applications, which may or may not share the First Amendment problems described below.[ 4 ] A Despite the relative novelty of the technology before us, the main problem in this case—and the inquiry it calls for—is not new. At bottom, Texas’s law requires the platforms to carry and promote user speech that they would rather discard or downplay. The platforms object that the law thus forces them to alter the content of their expression—a particular edited compilation of third-party speech. See Brief for NetChoice in No. 22–555, pp. 18–34. That controversy sounds a familiar note. We have repeatedly faced the question whether ordering a party to provide a forum for someone else’s views implicates the First Amendment. And we have repeatedly held that it does so if, though only if, the regulated party is engaged in its own expressive activity, which the mandated access would alter or disrupt. So too we have held, when applying that principle, that expressive activity includes presenting a curated compilation of speech originally created by others. A review of the relevant precedents will help resolve the question here. The seminal case is Miami Herald Publishing Co. v. Tornillo , 418 U.S. 241 (1974). There, a Florida law required a newspaper to give a political candidate a right to reply when it published “criticism and attacks on his record.” Id. , at 243. The Court held the law to violate the First Amendment because it interfered with the newspaper’s “exercise of editorial control and judgment.” Id. , at 258. Forcing the paper to print what “it would not otherwise print,” the Court explained, “intru[ded] into the function of editors.” Id. , at 256, 258. For that function was, first and foremost, to make decisions about the “content of the paper” and “[t]he choice of material to go into” it. Id. , at 258. In protecting that right of editorial control, the Court recognized a possible downside. It noted the access advocates’ view (similar to the States’ view here) that “modern media empires” had gained ever greater capacity to “shape” and even “manipulate popular opinion.” Id. , at 249–250. And the Court expressed some sympathy with that diagnosis. See id. , at 254. But the cure proposed, it concluded, collided with the First Amendment’s antipathy to state manipulation of the speech market. Florida, the Court explained, could not substitute “governmental regulation” for the “crucial process” of editorial choice. Id. , at 258. Next up was Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal. , 475 U.S. 1 (1986) ( PG&E ), which the Court thought to follow naturally from Tornillo . See 475 U. S., at 9–12 (plurality opinion); id. , at 21 (Burger, C. J., concurring). A private utility in California regularly put a newsletter in its billing envelopes expressing its views of energy policy. The State directed it to include as well material from a consumer-advocacy group giving a different perspective. The utility objected, and the Court held again that the interest in “offer[ing] the public a greater variety of views” could not justify the regulation. Id. , at 12. California was compelling the utility (as Florida had compelled a newspaper) “to carry speech with which it disagreed” and thus to “alter its own message.” Id. , at 11, n. 7, 16. In Turner Broadcasting System, Inc. v. FCC , 512 U.S. 622 (1994) ( Turner I ), the Court further underscored the constitutional protection given to editorial choice. At issue were federal “must-carry” rules, requiring cable operators to allocate some of their channels to local broadcast stations. The Court had no doubt that the First Amendment was implicated, because the operators were engaging in expressive activity. They were, the Court explained, “exercising editorial discretion over which stations or programs to include in [their] repertoire.” Id. , at 636. And the rules “interfere[d]” with that discretion by forcing the operators to carry stations they would not otherwise have chosen. Id. , at 643–644. In a later decision, the Court ruled that the regulation survived First Amendment review because it was necessary to prevent the demise of local broadcasting. See Turner Broadcasting System, Inc. v. FCC , 520 U.S. 180 , 185, 189–190 (1997) ( Turner II ); see infra , at 28, n. 10. But for purposes of today’s cases, the takeaway of Turner is this holding: A private party’s collection of third-party content into a single speech product (the operators’ “repertoire” of programming) is itself expressive, and intrusion into that activity must be specially justified under the First Amendment. The capstone of those precedents came in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. , 515 U.S. 557 (1995), when the Court considered (of all things) a parade. The question was whether Massachusetts could require the organizers of a St. Patrick’s Day parade to admit as a participant a gay and lesbian group seeking to convey a message of “pride.” Id. , at 561. The Court held unanimously that the First Amendment precluded that compulsion. The “selection of contingents to make a parade,” it explained, is entitled to First Amendment protection, no less than a newspaper’s “presentation of an edited compilation of [other persons’] speech.” Id. , at 570 (citing Tornillo , 418 U. S., at 258). And that meant the State could not tell the parade organizers whom to include. Because “every participating unit affects the message,” said the Court, ordering the group’s admittance would “alter the expressive content of the[ ] parade.” Hurley , 515 U. S., at 572–573. The parade’s organizers had “decided to exclude a message [they] did not like from the communication [they] chose to make,” and that was their decision alone. Id. , at 574. On two other occasions, the Court distinguished Tornillo and its progeny for the flip-side reason—because in those cases the compelled access did not affect the complaining party’s own expression. First, in PruneYard Shopping Center v. Robins , 447 U.S. 74 (1980), the Court rejected a shopping mall’s First Amendment challenge to a California law requiring it to allow members of the public to distribute handbills on its property. The mall owner did not claim that he (or the mall) was engaged in any expressive activity. Indeed, as the PG&E Court later noted, he “did not even allege that he objected to the content of the pamphlets” passed out at the mall. 475 U. S., at 12. Similarly, in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. , 547 U.S. 47 (2006) ( FAIR ), the Court reiterated that a First Amendment claim will not succeed when the entity objecting to hosting third-party speech is not itself engaged in expression. The statute at issue required law schools to allow the military to participate in on-campus recruiting. The Court held that the schools had no First Amendment right to exclude the military based on its hiring policies, because the schools “are not speaking when they host interviews.” Id. , at 64. Or stated again, with reference to the just-described precedents: Because a “law school’s recruiting services lack the expressive quality of a parade, a newsletter, or the editorial page of a newspaper,” the required “accommodation of a military recruiter[ ]” did not “interfere with any message of the school.” Ibid. That is a slew of individual cases, so consider three general points to wrap up. Not coincidentally, they will figure in the upcoming discussion of the First Amendment problems the statutes at issue here likely present as to Facebook’s News Feed and similar products. First, the First Amendment offers protection when an entity engaging in expressive activity, including compiling and curating others’ speech, is directed to accommodate messages it would prefer to exclude. “[T]he editorial function itself is an aspect of speech.” Denver Area Ed. Telecommunications Consortium, Inc. v. FCC , 518 U.S. 727 , 737 (1996) (plurality opinion). Or said just a bit differently: An entity “exercis[ing] editorial discretion in the selection and presentation” of content is “engage[d] in speech activity.” Arkansas Ed. Television Comm’n v. Forbes , 523 U.S. 666 , 674 (1998). And that is as true when the content comes from third parties as when it does not. (Again, think of a newspaper opinion page or, if you prefer, a parade.) Deciding on the third-party speech that will be included in or excluded from a compilation—and then organizing and presenting the included items—is expressive activity of its own. And that activity results in a distinctive expressive product. When the government interferes with such editorial choices—say, by ordering the excluded to be included—it alters the content of the compilation. (It creates a different opinion page or parade, bearing a different message.) And in so doing—in overriding a private party’s expressive choices—the government confronts the First Amendment.[ 5 ] Second, none of that changes just because a compiler includes most items and excludes just a few. That was the situation in Hurley . The St. Patrick’s Day parade at issue there was “eclectic”: It included a “wide variety of patriotic, commercial, political, moral, artistic, religious, athletic, public service, trade union, and eleemosynary themes, as well as conflicting messages.” 515 U. S., at 562. Or otherwise said, the organizers were “rather lenient in admitting participants.” Id. , at 569. No matter. A “narrow, succinctly articulable message is not a condition of constitutional protection.” Ibid. It “is enough” for a compiler to exclude the handful of messages it most “disfavor[s].” Id. , at 574. Suppose, for example, that the newspaper in Tornillo had granted a right of reply to all but one candidate. It would have made no difference; the Florida statute still could not have altered the paper’s policy. Indeed, that kind of focused editorial choice packs a peculiarly powerful expressive punch. Third, the government cannot get its way just by asserting an interest in improving, or better balancing, the marketplace of ideas. Of course, it is critically important to have a well-functioning sphere of expression, in which citizens have access to information from many sources. That is the whole project of the First Amendment. And the government can take varied measures, like enforcing competition laws, to protect that access. Cf., e.g. , Turner I , 512 U. S., at 647 (protecting local broadcasting); Hurley , 515 U. S., at 577 (discussing Turner I ). But in case after case, the Court has barred the government from forcing a private speaker to present views it wished to spurn in order to rejigger the expressive realm. The regulations in Tornillo , PG&E , and Hurley all were thought to promote greater diversity of expression. See supra , at 14–16. They also were thought to counteract advantages some private parties possessed in controlling “enviable vehicle[s]” for speech. Hurley , 515 U. S., at 577. Indeed, the Tornillo Court devoted six pages of its opinion to recounting a critique of the then-current media environment—in particular, the disproportionate “influen[ce]” of a few speakers—similar to one heard today (except about different entities). 418 U. S., at 249; see id. , at 248–254; supra , at 14–15. It made no difference. However imperfect the private marketplace of ideas, here was a worse proposal—the government itself deciding when speech was imbalanced, and then coercing speakers to provide more of some views or less of others. B “[W]hatever the challenges of applying the Constitution to ever-advancing technology, the basic principles” of the First Amendment “do not vary.” Brown v. Entertainment Merchants Assn. , 564 U.S. 786 , 790 (2011). New communications media differ from old ones in a host of ways: No one thinks Facebook’s News Feed much resembles an insert put in a billing envelope. And similarly, today’s social media pose dangers not seen earlier: No one ever feared the effects of newspaper opinion pages on adolescents’ mental health. But analogies to old media, even if imperfect, can be useful. And better still as guides to decision are settled principles about freedom of expression, including the ones just described. Those principles have served the Nation well over many years, even as one communications method has given way to another. And they have much to say about the laws at issue here. These cases, to be sure, are at an early stage; the record is incomplete even as to the major social-media platforms’ main feeds, much less the other applications that must now be considered. See supra , at 12. But in reviewing the District Court’s preliminary injunction, the Fifth Circuit got its likelihood-of-success finding wrong. Texas is not likely to succeed in enforcing its law against the platforms’ application of their content-moderation policies to the feeds that were the focus of the proceedings below. And that is because of the core teaching elaborated in the above-summarized decisions: The government may not, in supposed pursuit of better expressive balance, alter a private speaker’s own editorial choices about the mix of speech it wants to convey. Most readers are likely familiar with Facebook’s News Feed or YouTube’s homepage; assuming so, feel free to skip this paragraph (and maybe a couple more). For the uninitiated, though, each of those feeds presents a user with a continually updating stream of other users’ posts. For Facebook’s News Feed, any user may upload a message, whether verbal or visual, with content running the gamut from “vacation pictures from friends” to “articles from local or national news outlets.” App. in No. 22–555, at 139a. And whenever a user signs on, Facebook delivers a personalized collection of those stories. Similarly for YouTube. Its users upload all manner of videos. And any person opening the website or mobile app receives an individualized list of video recommendations. The key to the scheme is prioritization of content, achieved through the use of algorithms. Of the billions of posts or videos (plus advertisements) that could wind up on a user’s customized feed or recommendations list, only the tiniest fraction do. The selection and ranking is most often based on a user’s expressed interests and past activities. But it may also be based on more general features of the communication or its creator. Facebook’s Community Standards and YouTube’s Community Guidelines detail the messages and videos that the platforms disfavor. The platforms write algorithms to implement those standards—for example, to prefer content deemed particularly trustworthy or to suppress content viewed as deceptive (like videos promoting “conspiracy theor[ies]”). Id. , at 113a. Beyond rankings lie labels. The platforms may attach “warning[s], disclaimers, or general commentary”—for example, informing users that certain content has “not been verified by official sources.” Id. , at 75a. Likewise, they may use “information panels” to give users “context on content relating to topics and news prone to misinformation, as well as context about who submitted the content.” Id. , at 114a. So, for example, YouTube identifies content submitted by state-supported media channels, including those funded by the Russian Government. See id. , at 76a. But sometimes, the platforms decide, providing more information is not enough; instead, removing a post is the right course. The platforms’ content-moderation policies also say when that is so. Facebook’s Standards, for example, proscribe posts—with exceptions for “newsworth[iness]” and other “public interest value”—in categories and subcategories including: Violence and Criminal Behavior ( e.g. , violence and incitement, coordinating harm and publicizing crime, fraud and deception); Safety ( e.g. , suicide and self-injury, sexual exploitation, bullying and harassment); Objectionable Content ( e.g. , hate speech, violent and graphic content); Integrity and Authenticity ( e.g. , false news, manipulated media). Id. , at 412a–415a, 441a–442a. YouTube’s Guidelines similarly target videos falling within categories like: hate speech, violent or graphic content, child safety, and misinformation (including about elections and vaccines). See id. , at 430a–432a. The platforms thus unabashedly control the content that will appear to users, exercising authority to remove, label or demote messages they disfavor.[ 6 ] Except that Texas’s law limits their power to do so. As noted earlier, the law’s central provision prohibits the large social-media platforms (and maybe other entities [ 7 ]) from “censor[ing]” a “user’s expression” based on its “viewpoint.” §143A.002(a)(2); see supra , at 7. The law defines “expression” broadly, thus including pretty much anything that might be posted. See §143A.001(2). And it defines “censor” to mean “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.” §143A.001(1).[ 8 ] That is a long list of verbs, but it comes down to this: The platforms cannot do any of the things they typically do (on their main feeds) to posts they disapprove—cannot demote, label, or remove them—whenever the action is based on the post’s viewpoint.[ 9 ] And what does that “based on viewpoint” requirement entail? Doubtless some of the platforms’ content-moderation practices are based on characteristics of speech other than viewpoint ( e.g. , on subject matter). But if Texas’s law is enforced, the platforms could not—as they in fact do now—disfavor posts because they: support Nazi ideology; advocate for terrorism; espouse racism, Islamophobia, or anti-Semitism; glorify rape or other gender-based violence; encourage teenage suicide and self-injury; discourage the use of vaccines; advise phony treatments for diseases; advance false claims of election fraud. The list could continue for a while.[ 10 ] The point of it is not that the speech environment created by Texas’s law is worse than the ones to which the major platforms aspire on their main feeds. The point is just that Texas’s law profoundly alters the platforms’ choices about the views they will, and will not, convey. And we have time and again held that type of regulation to interfere with protected speech. Like the editors, cable operators, and parade organizers this Court has previously considered, the major social-media platforms are in the business, when curating their feeds, of combining “multifarious voices” to create a distinctive expressive offering. Hurley , 515 U. S., at 569. The individual messages may originate with third parties, but the larger offering is the platform’s. It is the product of a wealth of choices about whether—and, if so, how—to convey posts having a certain content or viewpoint. Those choices rest on a set of beliefs about which messages are appropriate and which are not (or which are more appropriate and which less so). And in the aggregate they give the feed a particular expressive quality. Consider again an opinion page editor, as in Tornillo , who wants to publish a variety of views, but thinks some things off-limits (or, to change the facts, worth only a couple of column inches). “The choice of material,” the “decisions made [as to] content,” the “treatment of public issues”—“whether fair or unfair”—all these “constitute the exercise of editorial control and judgment.” Tornillo , 418 U. S., at 258. For a paper, and for a platform too. And the Texas law (like Florida’s earlier right-of-reply statute) targets those expressive choices—in particular, by forcing the major platforms to present and promote content on their feeds that they regard as objectionable. That those platforms happily convey the lion’s share of posts submitted to them makes no significant First Amendment difference. Contra, 49 F. 4th, at 459–461 (arguing otherwise). To begin with, Facebook and YouTube exclude (not to mention, label or demote) lots of content from their News Feed and homepage. The Community Standards and Community Guidelines set out in copious detail the varied kinds of speech the platforms want no truck with. And both platforms appear to put those manuals to work. In a single quarter of 2021, Facebook removed from its News Feed more than 25 million pieces of “hate speech content” and almost 9 million pieces of “bullying and harassment content.” App. in No. 22–555, at 80a. Similarly, YouTube deleted in one quarter more than 6 million videos violating its Guidelines. See id. , at 116a. And among those are the removals the Texas law targets. What is more, this Court has already rightly declined to focus on the ratio of rejected to accepted content. Recall that in Hurley , the parade organizers welcomed pretty much everyone, excluding only those who expressed a message of gay pride. See supra , at 18. The Court held that the organizers’ “lenient” admissions policy—and their resulting failure to express a “particularized message”—did “not forfeit” their right to reject the few messages they found harmful or offensive. 515 U. S., at 569, 574. So too here, though the excluded viewpoints differ. That Facebook and YouTube convey a mass of messages does not license Texas to prohibit them from deleting posts with, say, “hate speech” based on “sexual orientation.” App. in No. 22–555, at 126a, 155a; see id. , at 431a. It is as much an editorial choice to convey all speech except in select categories as to convey only speech within them. Similarly, the major social-media platforms do not lose their First Amendment protection just because no one will wrongly attribute to them the views in an individual post. Contra, 49 F. 4th, at 462 (arguing otherwise). For starters, users may well attribute to the platforms the messages that the posts convey in toto . Those messages—communicated by the feeds as a whole—derive largely from the platforms’ editorial decisions about which posts to remove, label, or demote. And because that is so, the platforms may indeed “own” the overall speech environment. In any event, this Court has never hinged a compiler’s First Amendment protection on the risk of misattribution. The Court did not think in Turner —and could not have thought in Tornillo or PG&E —that anyone would view the entity conveying the third-party speech at issue as endorsing its content. See Turner I , 512 U. S., at 655 (“[T]here appears little risk” of such misattribution). Yet all those entities, the Court held, were entitled to First Amendment protection for refusing to carry the speech. See supra , at 14–16. To be sure, the Court noted in PruneYard and FAIR , when denying such protection, that there was little prospect of misattribution. See 447 U. S., at 87; 547 U. S., at 65. But the key fact in those cases, as noted above, was that the host of the third-party speech was not itself engaged in expression. See supra , at 16–17. The current record suggests the opposite as to Facebook’s News Feed and YouTube’s homepage. When the platforms use their Standards and Guidelines to decide which third-party content those feeds will display, or how the display will be ordered and organized, they are making expressive choices. And because that is true, they receive First Amendment protection. C And once that much is decided, the interest Texas relies on cannot sustain its law. In the usual First Amendment case, we must decide whether to apply strict or intermediate scrutiny. But here we need not. Even assuming that the less stringent form of First Amendment review applies, Texas’s law does not pass. Under that standard, a law must further a “substantial governmental interest” that is “unrelated to the suppression of free expression.” United States v. O’Brien , 391 U.S. 367 , 377 (1968). Many possible interests relating to social media can meet that test; nothing said here puts regulation of NetChoice’s members off-limits as to a whole array of subjects. But the interest Texas has asserted cannot carry the day: It is very much related to the suppression of free expression, and it is not valid, let alone substantial. Texas has never been shy, and always been consistent, about its interest: The objective is to correct the mix of speech that the major social-media platforms present. In this Court, Texas described its law as “respond[ing]” to the platforms’ practice of “favoring certain viewpoints.” Brief for Texas 7; see id. , at 27 (explaining that the platforms’ “discrimination” among messages “led to [the law’s] enactment”). The large social-media platforms throw out (or encumber) certain messages; Texas wants them kept in (and free from encumbrances), because it thinks that would create a better speech balance. The current amalgam, the State explained in earlier briefing, was “skewed” to one side. 573 F. Supp. 3d, at 1116. And that assessment mirrored the stated views of those who enacted the law, save that the latter had a bit more color. The law’s main sponsor explained that the “West Coast oligarchs” who ran social-media companies were “silenc[ing] conservative viewpoints and ideas.” Ibid. The Governor, in signing the legislation, echoed the point: The companies were fomenting a “dangerous movement” to “silence” conservatives. Id. , at 1108; see id. , at 1099 (“[S]ilencing conservative views is un- American, it’s un-Texan and it’s about to be illegal in Texas”). But a State may not interfere with private actors’ speech to advance its own vision of ideological balance. States (and their citizens) are of course right to want an expressive realm in which the public has access to a wide range of views. That is, indeed, a fundamental aim of the First Amendment. But the way the First Amendment achieves that goal is by preventing the government from “tilt[ing] public debate in a preferred direction.” Sorrell v. IMS Health Inc. , 564 U.S. 552 , 578–579 (2011). It is not by licensing the government to stop private actors from speaking as they wish and preferring some views over others. And that is so even when those actors possess “enviable vehicle[s]” for expression. Hurley , 515 U. S., at 577. In a better world, there would be fewer inequities in speech opportunities; and the government can take many steps to bring that world closer. But it cannot prohibit speech to improve or better balance the speech market. On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana. That is why we have said in so many contexts that the government may not “restrict the speech of some elements of our society in order to enhance the relative voice of others.” Buckley v. Valeo , 424 U.S. 1 , 48–49 (1976) ( per curiam ). That unadorned interest is not “unrelated to the suppression of free expression,” and the government may not pursue it consistent with the First Amendment. The Court’s decisions about editorial control, as discussed earlier, make that point repeatedly. See supra , at 18–19. Again, the question those cases had in common was whether the government could force a private speaker, including a compiler and curator of third-party speech, to convey views it disapproved. And in most of those cases, the government defended its regulation as yielding greater balance in the marketplace of ideas. But the Court—in Tornillo , in PG&E , and again in Hurley —held that such an interest could not support the government’s effort to alter the speaker’s own expression. “Our cases establish,” the PG&E Court wrote, “that the State cannot advance some points of view by burdening the expression of others.” 475 U. S., at 20. So the newspaper, the public utility, the parade organizer—whether acting “fair[ly] or unfair[ly]”—could exclude the unwanted message, free from government interference. Tornillo , 418 U. S., at 258; see United States Telecom Assn. v. FCC , 855 F.3d 381, 432 (CADC 2017) (Kavanaugh, J., dissenting from denial of rehearing en banc) (“[E]xcept in rare circumstances, the First Amendment does not allow the Government to regulate the content choices of private editors just so that the Government may enhance certain voices and alter the content available to the citizenry”).[ 11 ] The case here is no different. The interest Texas asserts is in changing the balance of speech on the major platforms’ feeds, so that messages now excluded will be included. To describe that interest, the State borrows language from this Court’s First Amendment cases, maintaining that it is preventing “viewpoint discrimination.” Brief for Texas 19; see supra , at 26–27. But the Court uses that language to say what governments cannot do: They cannot prohibit private actors from expressing certain views. When Texas uses that language, it is to say what private actors cannot do: They cannot decide for themselves what views to convey. The innocent-sounding phrase does not redeem the prohibited goal. The reason Texas is regulating the content- moderation policies that the major platforms use for their feeds is to change the speech that will be displayed there. Texas does not like the way those platforms are selecting and moderating content, and wants them to create a different expressive product, communicating different values and priorities. But under the First Amendment, that is a preference Texas may not impose. IV These are facial challenges, and that matters. To succeed on its First Amendment claim, NetChoice must show that the law at issue (whether from Texas or from Florida) “prohibits a substantial amount of protected speech relative to its plainly legitimate sweep.” Hansen , 599 U. S., at 770. None of the parties below focused on that issue; nor did the Fifth or Eleventh Circuits. But that choice, unanimous as it has been, cannot now control. Even in the First Amendment context, facial challenges are disfavored, and neither parties nor courts can disregard the requisite inquiry into how a law works in all of its applications. So on remand, each court must evaluate the full scope of the law’s coverage. It must then decide which of the law’s applications are constitutionally permissible and which are not, and finally weigh the one against the other. The need for NetChoice to carry its burden on those issues is the price of its decision to challenge the laws as a whole. But there has been enough litigation already to know that the Fifth Circuit, if it stayed the course, would get wrong at least one significant input into the facial analysis. The parties treated Facebook’s News Feed and YouTube’s homepage as the heartland applications of the Texas law. At least on the current record, the editorial judgments influencing the content of those feeds are, contrary to the Fifth Circuit’s view, protected expressive activity. And Texas may not interfere with those judgments simply because it would prefer a different mix of messages. How that matters for the requisite facial analysis is for the Fifth Circuit to decide. But it should conduct that analysis in keeping with two First Amendment precepts. First, presenting a curated and “edited compilation of [third party] speech” is itself protected speech. Hurley , 515 U. S., at 570. And second, a State “cannot advance some points of view by burdening the expression of others.” PG&E , 475 U. S., at 20. To give government that power is to enable it to control the expression of ideas, promoting those it favors and suppressing those it does not. And that is what the First Amendment protects all of us from. We accordingly vacate the judgments of the Courts of Appeals for the Fifth and Eleventh Circuits and remand the cases for further proceedings consistent with this opinion. It is so ordered. Notes 1 *Justice Jackson joins Parts I, II, and III–A of this opinion. 2 The definition of “social-media platforms” covers “any information service, system, Internet search engine, or access software provider” that “[p]rovides or enables computer access by multiple users to a computer server, including an Internet platform or a social media site.” Fla. Stat. §501.2041(1)(g)(1). 3 The statute further clarifies that it does not cover internet service providers, email providers, and any online service, website, or app consisting “primarily of news, sports, entertainment, or other information or content that is not user generated but is preselected by the provider.” §120.001(1). 4 Although the discussion below focuses on Texas’s content-moderation provisions, it also bears on how the lower courts should address the individualized-explanation provisions in the upcoming facial inquiry. As noted, requirements of that kind violate the First Amendment if they unduly burden expressive activity. See Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio , 471 U.S. 626 , 651 (1985); supra , at 11. So our explanation of why Facebook and YouTube are engaged in expression when they make content-moderation choices in their main feeds should inform the courts’ further consideration of that issue. 5 Of course, an entity engaged in expressive activity when performing one function may not be when carrying out another. That is one lesson of FAIR . The Court ruled as it did because the law schools’ recruiting services were not engaged in expression. See 547 U.S. 47 , 64 (2006). The case could not have been resolved on that ground if the regulation had affected what happened in law school classes instead. 6 We therefore do not deal here with feeds whose algorithms respond solely to how users act online—giving them the content they appear to want, without any regard to independent content standards. See post , at 2 (Barrett, J., concurring). Like them or loathe them, the Community Standards and Community Guidelines make a wealth of user-agnostic judgments about what kinds of speech, including what viewpoints, are not worthy of promotion. And those judgments show up in Facebook’s and YouTube’s main feeds. 7 The scope of the Texas law, a matter crucial to the facial inquiry, is unsettled, as previously discussed. See supra , at 10–11. The Texas solicitor general at oral argument stated that he understood the law to cover Facebook and YouTube, but “d[id]n’t know” whether it also covered other platforms and applications. Tr. of Oral Arg. in No. 22–555, pp. 61–62. 8 In addition to barring “censor[ship]” of “expression,” the law bars “censor[ship]” of people. More specifically, it prohibits taking the designated “censor[ial]” actions against any “user” based on his “viewpoint,” regardless of whether that “viewpoint is expressed on a social media platform.” §§143A.002(a)(1), (b); see supra , at 7. Because the Fifth Circuit did not focus on that provision, instead confining its analysis to the law’s ban on “censor[ing]” a “user’s expression” on the platform, we do the same. 9 The Texas solicitor general explained at oral argument that the Texas law allows the platforms to remove “categories” of speech, so long as they are not based on viewpoint. See Tr. of Oral Arg. in No. 22–555, at 69–70; §120.052 (Acceptable Use Policy). The example he gave was speech about Al-Qaeda. Under the law, a platform could remove all posts about Al-Qaeda, regardless of viewpoint. But it could not stop the “pro-Al-Qaeda” speech alone; it would have to stop the “anti-Al-Qaeda” speech too. Tr. of Oral Arg. in No. 22–555, at 70. So again, the law, as described by the solicitor general, prevents the platforms from disfavoring posts because they express one view of a subject. 10 Details on both the enumerated examples and similar ones are found in Facebook’s Community Standards and YouTube’s Community Guidelines. See https://transparency.meta.com/policies/community-standards; https://support.google.com/youtube/answer/9288567. 11 Texas claims Turner as a counter-example, but that decision offers no help to speak of. Turner did indeed hold that the FCC’s must-carry provisions, requiring cable operators to give some of their channel space to local broadcast stations, passed First Amendment muster. See supra , at 15. But the interest there advanced was not to balance expressive content; rather, the interest was to save the local-broadcast industry, so that it could continue to serve households without cable. That interest, the Court explained, was “unrelated to the content of expression” disseminated by either cable or broadcast speakers. Turner I , 512 U.S. 622 , 647 (1994). And later, the Hurley Court again noted the difference. It understood the Government interest in Turner as one relating to competition policy: The FCC needed to limit the cable operators’ “monopolistic,” gatekeeping position “in order to allow for the survival of broadcasters.” 515 U. S., at 577. Unlike in regulating the parade—or here in regulating Facebook’s News Feed or YouTube’s homepage—the Government’s interest was “not the alteration of speech.” Ibid . And when that is so, the prospects of permissible regulation are entirely different. SUPREME COURT OF THE UNITED STATES _________________ Nos. 22–277 and 22–555 _________________ ASHLEY MOODY, ATTORNEY GENERAL OF FLORIDA, et al., PETITIONERS 22–277 v. NETCHOICE, LLC, dba NETCHOICE, et al. on writ of certiorari to the united states court of appeals for the eleventh circuit NETCHOICE, LLC, dba NETCHOICE, et al., PETITIONERS 22–555 v. KEN PAXTON, ATTORNEY GENERAL OF TEXAS on writ of certiorari to the united states court of appeals for the fifth circuit [July 1, 2024] Justice Jackson, concurring in part and concurring in the judgment. These cases present a complex clash between two novel state laws and the alleged First Amendment rights of several of the largest social media platforms. Some things are already clear. Not every potential action taken by a social media company will qualify as expression protected under the First Amendment. But not every hypothesized regulation of such a company’s operations will necessarily be able to withstand the force of the First Amendment’s protections either. Beyond those broadest of statements, it is difficult to say much more at this time. With these records and lower court decisions, we are not able to adequately evaluate whether the challenged state laws are facially valid. That is in no small part because, as all Members of the Court acknowledge, plaintiffs bringing a facial challenge must clear a high bar. See ante, at 9–10 (majority opinion); post , at 13–14 (Alito, J., concurring in judgment). The Eleventh Circuit failed to appreciate the nature of this challenge, and the Fifth Circuit did not adequately evaluate it. That said, I agree with Justice Barrett that the Eleventh Circuit at least fairly stated our First Amendment precedent, whereas the Fifth Circuit did not. See ante , at 1 (concurring opinion); see also ante, at 13–19 (majority opinion). On remand, then, both courts will have to undertake their legal analyses anew. In doing so, the lower courts must address these cases at the right level of specificity. The question is not whether an entire category of corporations (like social media companies) or a particular entity (like Facebook) is generally engaged in expression. Nor is it enough to say that a given activity (say, content moderation) for a particular service (the News Feed, for example) seems roughly analogous to a more familiar example from our precedent. Cf. Red Lion Broadcasting Co. v. FCC , 395 U.S. 367 , 386 (1969) (positing that “differences in the characteristics of new media justify differences in the First Amendment standards applied to them”). Even when evaluating a broad facial challenge, courts must make sure they carefully parse not only what entities are regulated, but how the regulated activities actually function before deciding if the activity in question constitutes expression and therefore comes within the First Amendment’s ambit. See Brief for Knight First Amendment Institute at Columbia University as Amicus Curiae 11–12. Thus, further factual development may be necessary before either of today’s challenges can be fully and fairly addressed. In light of the high bar for facial challenges and the state of these cases as they come to us, I would not go on to treat either like an as-applied challenge and preview our potential ruling on the merits. Faced with difficult constitutional issues arising in new contexts on undeveloped records, this Court should strive to avoid deciding more than is necessary. See Ashwander v. TVA , 297 U.S. 288 , 346–347 (1936) (Brandeis, J., concurring). In my view, such restraint is warranted today. SUPREME COURT OF THE UNITED STATES _________________ Nos. 22–277 and 22–555 _________________ ASHLEY MOODY, ATTORNEY GENERAL OF FLORIDA, et al., PETITIONERS 22–277 v. NETCHOICE, LLC, dba NETCHOICE, et al. on writ of certiorari to the united states court of appeals for the eleventh circuit NETCHOICE, LLC, dba NETCHOICE, et al., PETITIONERS 22–555 v. KEN PAXTON, ATTORNEY GENERAL OF TEXAS on writ of certiorari to the united states court of appeals for the fifth circuit [July 1, 2024] Justice Thomas, concurring in the judgment. I agree with the Court’s decision to vacate and remand because NetChoice and the Computer and Communications Industry Association (together, the trade associations) have not established that Texas’s H. B. 20 and Florida’s S. B. 7072 are facially unconstitutional. I cannot agree, however, with the Court’s decision to opine on certain applications of those statutes. The Court’s discussion is unnecessary to its holding. See Jama v. Immigration and Customs Enforcement , 543 U.S. 335 , 351, n. 12 (2005) (“Dictum settles nothing, even in the court that utters it”). Moreover, the Court engages in the exact type of analysis that it chastises the Courts of Appeals for performing. It faults the Courts of Appeals for focusing on only one subset of applications, rather than determining whether each statute’s “full range of applications” are constitutional. See ante, at 10, 12. But, the Court repeats that very same error. Out of the sea of “variegated and complex” functions that platforms perform, ante , at 11, the Court plucks out two (Facebook’s News Feed and YouTube’s homepage), and declares that they may be protected by the First Amendment. See ante, at 26 (opining on what the “current record suggests”). The Court does so on a record that it itself describes as “incomplete” and “underdeveloped,” ante, at 12, 20, and by sidestepping several pressing factual and legal questions, see post , at 29–32 (Alito, J., concurring in judgment). As Justice Alito explains, the Court’s approach is both unwarranted and mistaken. See ibid . I agree with Justice Alito’s analysis and join his opinion in full. I write separately to add two observations on the merits and to highlight a more fundamental jurisdictional problem. The trade associations have brought facial challenges alleging that H. B. 20 and S. B. 7072 are unconstitutional in many or all of their applications. But, Art-icle III of the Constitution permits federal courts to exercise judicial power only over “Cases” and “Controversies.” Accordingly, federal courts can decide whether a statute is constitutional only as applied to the parties before them—they lack authority to deem a statute “facially” unconstitutional. I As Justice Alito explains, the trade associations have failed to provide many of the basic facts necessary to evaluate their challenges to H. B. 20 and S. B. 7072. See post , at 22–29. I make two additional observations. First, with respect to certain provisions of H. B. 20 and S. B. 7072, the Court assumes that the framework outlined in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio , 471 U.S. 626 (1985), applies. See ante , at 11. In that case, the Court held that laws requiring the disclosure of factual information in commercial advertising may satisfy the First Amendment if the disclosures are “reasonably related” to the Government’s interest in preventing consumer deception. 471 U. S., at 651. Because the trade associations did not contest Zauderer ’s applicability before the Eleventh Circuit and both lower courts applied its framework, I agree with the Court’s decision to rely upon Zauderer at this stage. However, I think we should reconsider Zauderer and its progeny. “I am skeptical of the premise on which Zauderer rests—that, in the commercial-speech context, the First Amendment interests implicated by disclosure requirements are substantially weaker than those at stake when speech is actually suppressed.” Milavetz, Gallop & Milavetz, P. A. v. United States , 559 U.S. 229 , 255 (2010) (Thomas, J., concurring in part and concurring in judgment) (internal quotation marks omitted). Second, the common-carrier doctrine should continue to guide the lower courts’ examination of the trade associations’ claims on remand. See post , at 18, and n. 17, 30 (opinion of Alito, J.). “[O]ur legal system and its British predecessor have long subjected certain businesses, known as common carriers, to special regulations, including a general requirement to serve all comers.” Biden v. Knight First Amendment Institute at Columbia Univ. , 593 U. S. ___, ___ (2021) (Thomas, J., concurring in grant of certiorari) (slip op., at 3). Moreover, “there is clear historical precedent for regulating transportation and communications networks in a similar manner as traditional common carriers” given their many similarities. Id ., at ___ (slip op., at 5). Though they reached different conclusions, both the Fifth Circuit and the Eleventh Circuit appropriately strove to apply the common-carrier doctrine in assessing the constitutionality of H. B. 20 and S. B. 7072 respectively. See 49 F. 4th 439, 469–480 (CA5 2022); NetChoice v. Attorney Gen., Fla ., 34 F. 4th 1196, 1219–1222 (CA11 2022). The common-carrier doctrine may have weighty implications for the trade associations’ claims. But, the same factual barriers that preclude the Court from assessing the trade associations’ claims under our First Amendment precedents also prevent us from applying the common-carrier doctrine in this posture. At a minimum, we would need to pinpoint the regulated parties and specific conduct being regulated. On remand, however, both lower courts should continue to consider the common-carrier doctrine. II The opinions in these cases detail many of the considerable hurdles that currently preclude resolution of the trade associations’ claims. See ante, at 9–10; ante , at 1–4 (Barrett, J., concurring); post , at 22–32 (opinion of Alito, J.). The most significant problem of all, however, has yet to be addressed: Federal courts lack authority to adjudicate the trade associations’ facial challenges. Rather than allege that the statutes impermissibly regulate them, the trade associations assert that H. B. 20 and S. B. 7072 are actually unconstitutional in most or all of their applications. This type of challenge, called a facial challenge, is “an attack on a statute itself as opposed to a particular application.” Los Angeles v. Patel , 576 U.S. 409 , 415 (2015). Facial challenges are fundamentally at odds with Article III. Because Article III limits federal courts’ judicial power to cases or controversies, federal courts “lac[k] the power to pronounce that [a] statute is unconstitutional” as applied to nonparties. Americans for Prosperity Foundation v. Bonta , 594 U.S. 595, 621 (2021) (Thomas, J., concurring in part and concurring in judgment) (internal quotation marks omitted). Entertaining facial challenges in spite of that limitation arrogates powers reserved to the political branches and disturbs the relationship between the Federal Government and the States. The practice of adjudicating facial challenges creates practical concerns as well. Facial challenges’ dubious historical roots further confirm that the doctrine should have no place in our jurisprudence. A 1 Article III empowers federal courts to exercise “judicial Power” only over “Cases” and “Controversies.” This Court has long recognized that those terms impose substantive constraints on the authority of federal courts. See Muskrat v. United States , 219 U.S. 346 , 356–358 (1911); see also Steel Co. v. Citizens for Better Environment , 523 U.S. 83 , 102 (1998). One corollary of the case-or-controversy requirement is that while federal courts can judge the constitutionality of statutes, they may do so only to the extent necessary to resolve the case at hand. “It is emphatically the province and duty of the judicial department to say what the law is,” but only because “[t]hose who apply the rule to particular cases, must of necessity expound and interpret that rule.” Marbury v. Madison , 1 Cranch 137, 177 (1803); see Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration , 113 U.S. 33 , 39 (1885) (“[The Court] has no jurisdiction to pronounce any statute . . . irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies”). Accordingly, “[e]xcept when necessary” to resolve a case or controversy, “courts have no charter to review and revise legislative and executive action.” Summers v. Earth Island Institute , 555 U.S. 488 , 492 (2009); see United States v. Raines , 362 U.S. 17 , 20–21 (1960). These limitations on the power of judicial review play an essential role in preserving our constitutional structure. Our Constitution sets forth a “tripartite allocation of power,” separating different types of powers across three co-equal branches. DaimlerChrysler Corp. v. Cuno , 547 U.S. 332 , 341 (2006) (internal quotation marks omitted). “[E]ach branch [is vested] with an exclusive form of power,” and “no branch can encroach upon the powers confided to the others.” Patchak v. Zinke , 583 U.S. 244, 250 (2018) (plurality opinion) (internal quotation marks omitted). In the Judicial Branch’s case, it is vested with the “ultimate and supreme” power of judicial review. Chicago & Grand Trunk R. Co. v. Wellman , 143 U.S. 339 , 345 (1892). That power includes the authority to refuse to apply a statute enacted and approved by the other two branches of the Federal Government. But, the power of judicial review can be wielded only in specific circumstances and to limited ends—to resolve cases and controversies. Without that limitation, the Judiciary would have an unchecked ability to enjoin duly enacted statutes. Respecting the case-or-controversy requirement is therefore necessary to “preven[t] the Federal Judiciary from intruding upon the powers given to the other branches, and confin[e] the federal courts to a properly judicial role.” Town of Chester v. Laroe Estates, Inc. , 581 U.S. 433, 438 (2017) (internal quotation marks and alteration omitted). 2 Facial challenges conflict with Article III’s case-or-controversy requirement because they ask a federal court to decide whether a statute might conflict with the Constitution in cases that are not before the court. To bring a facial challenge under our precedents, a plaintiff must ordinarily “establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno , 481 U.S. 739 , 745 (1987). In the First Amendment context, we have sometimes applied an even looser standard, called the overbreadth doctrine. The overbreadth doctrine requires a plaintiff to establish only that a statute “prohibits a substantial amount of protected speech,” “relative to [its] plainly legitimate sweep.” United States v. Williams , 553 U.S. 285 , 292 (2008). Facial challenges ask courts to issue holdings that are rarely, if ever, required to resolve a single case or controversy. The only way a plaintiff gets into a federal court is by showing that he “personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.” Blum v. Yaretsky , 457 U.S. 991 , 999 (1982) (internal quotation marks omitted). And, the only remedy a plaintiff should leave a federal court with is one “limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Lewis v. Casey , 518 U.S. 343 , 357 (1996). Accordingly, once a court decides whether a statute can be validly enforced against the plaintiff who challenges it, that case or controversy is resolved. Either the court remedies the plaintiff ’s injury, or it determines that the statute may be constitutionally applied to the plaintiff. Proceeding to decide the merits of possible constitutional challenges that could be brought by other plaintiffs is not necessary to resolve that case. Instead, any holding with respect to potential future plaintiffs would be “no more than an advisory opinion—which a federal court should never issue at all, and especially should not issue with regard to a constitutional question, as to which we seek to avoid even non advisory opinions.” Chicago v. Morales , 527 U.S. 41 , 77 (1999) (Scalia, J., dissenting) (citation omitted). Unsurprisingly, facial challenges are at odds with doctrines enforcing the case-or-controversy requirement. Pursuant to standing doctrine, for example, a plaintiff can maintain a suit in a federal court—and thus invoke judicial power—only if he has suffered an “injury” with a “traceable connection” to the “complained-of conduct of the defendant.” Steel Co. , 523 U. S., at 103. Facial challenges significantly relax those rules. Start with the injury requirement. Facial challenges allow a plaintiff to challenge applications of a statute that have not injured him. But see Acheson Hotels, LLC v. Laufer , 601 U.S. 1, 10 (2023) (Thomas, J., concurring in judgment) (“To have standing, a plaintiff must assert a violation of his [own] rights”). In fact, under our First Amendment overbreadth doctrine, a plaintiff need not be injured at all; he can challenge a statute that lawfully applies to him so long as it would be unlawful to enforce it against others. See United States v. Hansen , 599 U.S. 762, 769 (2023). Facial challenges also distort standing doctrine’s redressability requirement. The Court has held that a plaintiff has standing to sue only when his “requested relief will redress the alleged injury.” Steel Co. , 523 U. S., at 103. With a facial challenge, however, a plaintiff seeks to enjoin every application of a statute—including ones that have nothing to do with his injury. A plaintiff can ask, “Do [I] just want [the court] to say that this statute cannot constitutionally be applied to [me] in this case, or do [I] want to go for broke and try to get the statute pronounced void in all its applications?” Morales , 527 U. S., at 77 (opinion of Scalia, J.). In this sense, the remedy sought by a facial challenge is akin to a universal injunction—a practice that is itself “inconsistent with longstanding limits on equitable relief and the power of Article III courts.” Trump v. Hawaii , 585 U.S. 667, 713 (2018) (Thomas, J., concurring); see Department of Homeland Security v. New York , 589 U. S. ___, ___–___ (2020) (Gorsuch, J., concurring in grant of stay) (slip op., at 2–3); FDA v. Alliance for Hippocratic Medicine , 602 U.S. 367, 402 (2024) (Thomas, J., concurring). Because deciding the constitutionality of a statute as applied to nonparties is not necessary to resolve a case or controversy, it is beyond a federal court’s constitutional authority. Federal courts have “no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act.” Massachusetts v. Mellon , 262 U.S. 447 , 488 (1923). Resolving facial challenges thus violates Article III.[ 1 ] 3 Adjudicating facial challenges also intrudes upon powers reserved to the Legislative and Executive Branches and the States. When a federal court decides an issue unnecessary for resolving a case or controversy, the Judiciary assumes authority beyond what the Constitution granted. Supra , at 5–6. That necessarily alters the balance of powers: When one branch exceeds its vested power, it becomes stronger relative to the other branches. See Free Enterprise Fund v. Public Company Accounting Oversight Bd ., 561 U.S. 477 , 500 (2010). Moreover, by exceeding their Article III powers, federal courts risk interfering with the executive and legislative functions. Facial challenges enable federal courts to review the constitutionality of a statute in many or all of its applications—often before the statute has even been enforced. In practice, this provides federal courts a “general veto power . . . upon the legislation of Congress.” Muskrat , 219 U. S., at 357. But, the Judicial Branch has no such constitutional role in lawmaking. When courts take on the supervisory role of judging statutes in the abstract, they thus “assume a position of authority over the governmental acts of another and co-equal department, an authority which plainly [they] do not possess.” Mellon , 262 U. S., at 489. Comparing the effects of as-applied challenges and facial challenges makes this point clear. With an as-applied challenge, the Judiciary intrudes only as much as necessary on the will “ ‘of the elected representatives of the people.’ ” Washington State Grange v. Washington State Republican Party , 552 U.S. 442 , 451 (2008). Assuming a court adheres to traditional remedial limits, a successful as-applied challenge only prevents application of the statute against that plaintiff. The Executive Branch remains free to enforce the statute in all of its other applications. And, the court’s decision provides some notice to the political branches, enabling the Executive Branch to tailor future enforcement of the statute to avoid violating the Constitution or Congress to amend the statute. Facial challenges, however, force the Judiciary to take a maximalist approach. A single plaintiff can immediately call upon a federal court to declare an entire statute unconstitutional, even before it has been applied to him. The political branches have no opportunity to correct course, making legislation an all-or-nothing proposition. The end result is that “the democratic process” is “short circuit[ed]” and “laws embodying the will of the people [are prevented] from being implemented in a manner consistent with the Constitution.” Ibid. In a similar vein, facial challenges distort the relationship between the Federal Government and the States. The Constitution “establishes a system of dual sovereignty between the States and the Federal Government.” Gregory v. Ashcroft , 501 U.S. 452 , 457 (1991). The States retain all powers “not delegated” to the Federal Government and not “prohibited by [the Constitution] to the States.” Amdt. 10. Facial challenges can upset this division by shifting power from the States to the Federal Judiciary. Most obviously, when a state law is challenged, a facial challenge prevents that State from applying its own statute in a constitutional manner. But, facial challenges can also force federal courts to appropriate the role of state courts. To analyze whether a statute is valid on its face, a court must determine the statute’s scope. If a state court has yet to determine the scope of its statute (a common occurrence with facial challenges), the federal court must do so in the first instance. Facial challenges thus increase the likelihood that federal courts must interpret novel state-law questions—a role typically and appropriately reserved for state courts. B In addition to their constitutional infirmities, facial challenges also create practical problems. The case-or-controversy requirement serves as the foundation of our adversarial system. Rather than “ ‘sit[ting] as self-directed boards of legal inquiry and research,’ ” federal courts serve as “ ‘arbiters of legal questions presented and argued by the parties before them.’ ” NASA v. Nelson , 562 U.S. 134 , 147, n. 10 (2011) (quoting Carducci v. Regan , 714 F.2d 171, 177 (CADC 1983) (opinion for the court by Scalia, J.)). This system “assure[s] that the legal questions presented to the court will be resolved . . . in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. , 454 U.S. 464 , 472 (1982). Facial challenges disrupt the adversarial system and increase the risk of judicial error as a result. A plaintiff raising a facial challenge need not have any direct knowledge of how the statute applies to others. In fact, since a facial challenge may be brought before a statute has been enforced against anyone, a plaintiff often can only guess how the statute operates—even in his own case. For this reason, “[c]laims of facial invalidity often rest on speculation,” Washington State Grange , 552 U. S., at 450, and “factually barebones records,” Sabri v. United States , 541 U.S. 600 , 609 (2004). Federal courts are often called to give “premature interpretations of statutes in areas where their constitutional application might be cloudy.” Raines , 362 U. S., at 22. In short, facial challenges ask courts to resolve potentially thorny constitutional questions with little factual background and briefing by a party who may not be affected by the outcome. C The problems with facial challenges are particularly evident in the two cases before us. Even though the trade associations challenge two state laws, the state actors have been left out of the picture. State officials had no opportunity to tailor the laws’ enforcement. Nor could the legislatures amend the statutes before they were preliminarily enjoined. In addition, neither set of state courts had a chance to interpret their own State’s law or “accord [that] law a limiting construction to avoid constitutional questions.” Washington State Grange , 552 U. S., at 450. Instead, federal courts construed these novel state laws in the first instance. And, they did so with little factual record to assist them. The trade associations’ reliance on our questionable associational-standing doctrine is partially to blame.[ 2 ] But, the fact that the trade associations raise facial challenges has undeniably played a significant role. With even simple fact patterns, a court has little chance of determining whether a novel, never-before-enforced state law can be constitutionally enforced against nonparties without resorting to mere speculation. For cases such as these, where the constitutional analysis depends on complex, fact-specific questions, the task becomes impossible. D Facial challenges are particularly suspect given their origins. They appear to be the product of two doctrines that are themselves constitutionally questionable, vagueness and overbreadth. At the time of the founding, it was well understood that federal courts could hold a statute unconstitutional only insofar as necessary to resolve a particular case or controversy. See supra , at 5–6. The Founders were certainly familiar with alternative systems that provided for the free-floating review of duly enacted statutes. For example, the New York Constitution of 1777 created a Council of Revision, composed of the Governor, Chancellor, and New York Supreme Court. See Hansen , 599 U. S., at 786 (Thomas, J., concurring). The Council of Revision could object to “any measure of a [prospective] bill” based on “not only [its] constitutionality . . . but also [its] policy.” Id ., at 787. If the Council lodged an objection, the Legislature’s only options were to “conform to [the Council’s] objections, override them by a two-thirds vote of both Houses, or simply let the bill die.” Ibid. (internal quotation marks omitted). In our Constitution, the Founders refused to create a council of revision or involve the Federal Judiciary in the business of reviewing statutes in the abstract. “Despite the support of respected delegates . . . the Convention voted against creating a federal council of revision on four different occasions. No other proposal was considered and rejected so many times.” Id ., at 789 (citation omitted). Instead, the Founders created a Judiciary with “only the authority to resolve private disputes between particular parties, rather than matters affecting the general public.” Ibid. (internal quotation marks omitted). They considered judges “of all men the most unfit to have a veto on laws before their enactment.” Ibid . (internal quotation marks omitted). Therefore, they refused to enlist judges in the business of reviewing statutes other than “as an issue for decision in a concrete case or controversy.”[ 3 ] Ibid . For more than a century following the founding, the Court generally adhered to the original understanding of the narrow scope of judicial review. When the Court first discussed the concept of judicial review in Marbury v. Madison , it made clear that such review is limited to what is necessary for resolving “a particular cas[e]” before a court. 1 Cranch, at 177; see also supra , at 5–6. And, in case after case that followed Marbury , the Court reiterated that federal courts have no authority to reach beyond the parties before them to facially invalidate a statute.[ 4 ] As best I can tell, the Court’s first departure from those principles was the development of the vagueness doctrine. See Johnson v. United States , 576 U.S. 591 , 616–620 (2015) (Thomas, J., concurring in judgment) (describing history of vagueness doctrine). Before and at the time of the founding, American and English courts dealt with vague laws by “simply refus[ing] to apply them in individual cases.” Id ., at 615. After the unfortunate rise of “substantive” due process, however, American courts began striking down statutes wholesale as “unconstitutionally indefinite.” Id ., at 617. This Court first adopted that approach in 1914, see International Harvester Co. of America v. Kentucky , 234 U.S. 216 , and has since repeatedly used the vagueness doctrine “to strike down democratically enacted laws” in the name of substantive due process, Sessions v. Dimaya , 584 U.S. 148, 210 (2018) (Thomas, J., dissenting); see Johnson , 576 U. S., at 618–621 (opinion of Thomas, J.). As I have explained, I doubt that “our practice of striking down statutes as unconstitutionally vague is consistent with the original meaning of the Due Process Clause.” Dimaya , 584 U. S., at 206 (opinion of Thomas, J.); see Johnson , 576 U. S., at 622 (opinion of Thomas, J.). The vagueness doctrine was the direct ancestor of one subset of modern facial challenges, the overbreadth doctrine. See United States v. Sineneng-Smith , 590 U.S. 371, 385 (2020) (Thomas, J., concurring) (noting that the overbreadth doctrine “developed as a result of the vagueness doctrine’s application in the First Amendment context”). In Thornhill v. Alabama , 310 U.S. 88 (1940), the Court deemed an antipicketing statute “invalid on its face” due to its “sweeping proscription of freedom of discussion.” Id., at 101–106. The Thornhill Court did so “[w]ithout considering whether the defendant’s actual conduct was entitled to First Amendment protection,” instead invalidating the law because it “ ‘swept within its ambit . . . activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press.’ ” Sineneng-Smith , 590 U. S., at 383 (opinion of Thomas, J.) (quoting Thornhill , 310 U. S., at 97; alteration omitted). Thornhill ’s approach quickly gained traction in the First Amendment context. In the years to follow, the Court “invoked [its] rationale to facially invalidate a wide range of laws” concerning First Amendment rights—a practice that became known as the overbreadth doctrine. Sineneng-Smith , 590 U. S., at 383. Under that doctrine, a court can invalidate a statute if it “prohibits a substantial amount of protected speech,” “relative to the statute’s plainly legitimate sweep.”[ 5 ] Williams , 553 U. S., at 292. The Court has never attempted to ground the overbreadth doctrine “in the text or history of the First Amendment.” Sineneng-Smith , 590 U. S., at 384 (opinion of Thomas, J.). Instead, the Court has supplied only “policy considerations and value judgments.” Ibid . The overbreadth and vagueness doctrines’ method of facial invalidation eventually spread to other areas of law, setting in motion our modern facial challenge doctrine. For several decades after Thornhill , the Court continued to resist the broad use of facial challenges. For example, in Broadrick v. Oklahoma , 413 U.S. 601 (1973), the Court emphasized that “[c]onstitutional judgments, as Mr. Chief Justice Marshall recognized, are justified only out of the necessity of adjudicating rights in particular cases between the litigants brought before the Court.” Id., at 611. In that vein, the Court characterized “facial overbreadth adjudication [as] an exception to our traditional rules of practice.” Id ., at 615. But, the Court eventually entertained facial challenges more broadly where a plaintiff established that “no set of circumstances exists under which the Act would be valid.” [ 6 ] Salerno , 481 U. S., at 745. Just as with the overbreadth doctrine, the Court has yet to explain how facial challenges are consistent with the Constitution’s text or history. Given how our facial challenge doctrine seems to have developed—with one doctrinal mistake leading to another—it is no wonder that facial challenges create a host of constitutional and practical issues. See supra , at 6–13. Rather than perpetuate our mistakes, the Court should end them. “No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Simon v. Eastern Ky. Welfare Rights Organization , 426 U.S. 26 , 37 (1976). Because that requirement precludes courts from judging and enjoining statutes as applied to nonparties, the Court should discontinue the practice of facial challenges. *  *  * The Court has recognized the problems that facial challenges pose, emphasizing that they are “disfavored,” Washington State Grange , 552 U. S., at 450, and “best when infrequent,” Sabri , 541 U. S., at 608. The Court reiterates those sentiments today. Ante, at 9, 30. But, while sidelining facial challenges provides some measure of relief, it ignores the real problem. Because federal courts are bound by Article III’s case-or-controversy requirement, holding a statute unconstitutional as applied to nonparties is not simply disfavored—it exceeds the authority granted to federal courts. It is high time the Court reconsiders its facial challenge doctrine. Notes 1 This is not to say that federal courts can never adjudicate a constitutional claim if a plaintiff styles it as a facial challenge. Whenever a plaintiff alleges a statute is unconstitutional in many or all of its applications, that argument nearly always includes an allegation that the statute is unconstitutional as applied to the plaintiff. Federal courts are free to consider challenged statutes as applied to the plaintiff before them and limit any relief accordingly. See generally Americans for Prosperity Foundation v. Bonta , 594 U.S. 595, 618–619 (2021); id ., at 621 (Thomas, J., concurring in part and concurring in judgment). 2 The trade associations do not allege that they are subject to H. B. 20 and S. B. 7072, but have brought suit to vindicate the rights of their members. There is thus not a single party in these suits that is actually regulated by the challenged statutes and can explain how specific provisions will infringe on their First Amendment rights. Instead, the trade associations assert their understanding of how the challenged statutes will regulate nonparties. As I have recently explained, “[a]ssociational standing raises constitutional concerns.” See FDA v. Alliance for Hippocratic Medicine , 602 U.S. 367, 399 (2024) (concurring opinion). Associational standing appears to conflict with Article III’s injury and redressability requirements in many of the same ways as facial challenges. I have serious doubts that either trade association has standing to vicariously assert a member’s injury. See id ., at 400. 3 “The later history of the New York Council of Revision demonstrates the wisdom of the Framers’ decision.” United States v. Hansen , 599 U.S. 762, 790 (2023) (Thomas, J., concurring). The Council’s ability to lodge objections proved significant: “Over the course of its existence, [the Council] returned 169 bills to the legislature; the legislature, in turn, overrode only 51 of those vetoes and reenacted at least 26 bills with modifications.” Ibid . The Council did not shy away from controversial or weighty matters either. It vetoed, among other things, “a bill barring those convicted of adultery from remarrying” and a bill “declar[ing] Loyalists aliens.” Ibid . In fact, the bill authorizing the Erie Canal’s construction—“one of the most important measures in the Nation’s history—survived the Council’s review only because Chancellor James Kent changed his deciding vote at the last minute, seemingly on a whim.” Ibid. Concerns over the Council’s “intrusive involvement in the legislative process” eventually led to its abolition in 1820. Ibid. 4 See, e . g ., Austin v. Aldermen , 7 Wall. 694, 699 (1869) (holding that the Court could “only consider the statute in connection with the case before” it and thus “our jurisdiction [wa]s at an end” once it “ascertained that [the case] wrought no effect which the act forbids”); Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration , 113 U.S. 33 , 39 (1885) (the Court “has no jurisdiction to pronounce any statute . . . irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies”); Chicago & Grand Trunk R. Co. v. Wellman , 143 U.S. 339 , 345 (1892) (explaining that judicial review of a statute’s constitutionality “is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals”); Muskrat v. United States , 219 U.S. 346 , 357 (1911) (“[T]here [i]s no general veto power in the court upon the legislation of Congress”); Yazoo & Mississippi Valley R. Co. v. Jackson Vinegar Co. , 226 U.S. 217 , 219 (1912) (rejecting argument that statute was “void in toto ,” because the Court “must deal with the case in hand and not with imaginary ones”); Dahnke-Walker Milling Co. v. Bondurant , 257 U.S. 282 , 289 (1921) (“[A] litigant can be heard to question a statute’s validity only when and so far as it is being or is about to be applied to his disadvantage”); Massachusetts v . Mellon , 262 U.S. 447 , 488 (1923) (Federal courts “have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act”). 5 Although the Court’s precedents describe an unconstitutionally overbroad statute as facially “invalid,” “federal courts have no authority to erase a duly enacted law from the statute books.” J. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 936 (2018); see Sineneng-Smith , 590 U. S., at 387 (opinion of Thomas, J.). 6 Some Members of the Court subsequently sought to apply a more lenient standard to all facial challenges. See Washington State Grange v. Washington State Republican Party , 552 U.S. 442 , 449 (2008) (noting that “some Members of the Court have criticized the Salerno formulation”); United States v. Stevens , 559 U.S. 460 , 472 (2010) (reserving the question of which standard applies to “a typical facial attack”). SUPREME COURT OF THE UNITED STATES _________________ Nos. 22–277 and 22–555 _________________ ASHLEY MOODY, ATTORNEY GENERAL OF FLORIDA, et al., PETITIONERS 22–277 v. NETCHOICE, LLC, dba NETCHOICE, et al. on writ of certiorari to the united states court of appeals for the eleventh circuit NETCHOICE, LLC, dba NETCHOICE, et al., PETITIONERS 22–555 v. KEN PAXTON, ATTORNEY GENERAL OF TEXAS on writ of certiorari to the united states court of appeals for the fifth circuit [July 1, 2024] Justice Alito, with whom Justice Thomas and Justice Gorsuch join, concurring in the judgment. The holding in these cases is narrow: NetChoice failed to prove that the Florida and Texas laws they challenged are facially unconstitutional. Everything else in the opinion of the Court is nonbinding dicta. I agree with the bottom line of the majority’s central holding. But its description of the Florida and Texas laws, as well as the litigation that shaped the question before us, leaves much to be desired. Its summary of our legal precedents is incomplete. And its broader ambition of providing guidance on whether one part of the Texas law is unconstitutional as applied to two features of two of the many platforms that it reaches—namely, Facebook’s News Feed and YouTube’s homepage—is unnecessary and unjustified. But given the incompleteness of this record, there is no need and no good reason to decide anything other than the facial unconstitutionality question actually before us. After all, we do not know how the platforms “moderate” their users’ content, much less whether they do so in an inherently expressive way under the First Amendment. Nevertheless, the majority is undeterred. It inexplicably singles out a few provisions and a couple of platforms for special treatment. And it unreflectively assumes the truth of NetChoice’s unsupported assertion that social-media platforms—which use secret algorithms to review and moderate an almost unimaginable quantity of data today—are just as expressive as the newspaper editors who marked up typescripts in blue pencil 50 years ago. These as-applied issues are important, and we may have to decide them before too long. But these cases do not provide the proper occasion to do so. For these reasons, I am therefore compelled to provide a more complete discussion of those matters than is customary in an opinion that concurs only in the judgment. I As the Court has recognized, social-media platforms have become the “modern public square.” Packingham v. North Carolina , 582 U.S. 98, 107 (2017). In just a few years, they have transformed the way in which millions of Americans communicate with family and friends, perform daily chores, conduct business, and learn about and comment on current events. The vast majority of Americans use social media,[ 1 ] and the average person spends more than two hours a day on various platforms.[ 2 ] Young people now turn primarily to social media to get the news,[ 3 ] and for many of them, life without social media is unimaginable.[ 4 ] Social media may provide many benefits—but not without drawbacks. For example, some research suggests that social media are having a devastating effect on many young people, leading to depression, isolation, bullying, and intense pressure to endorse the trend or cause of the day.[ 5 ] In light of these trends, platforms and governments have implemented measures to minimize the harms unique to the social-media context. Social-media companies have created user guidelines establishing the kinds of content that users may post and the consequences of violating those guidelines, which often include removing nonconforming posts or restricting noncompliant users’ access to a platform. Such enforcement decisions can sometimes have serious consequences. Restricting access to social media can impair users’ ability to speak to, learn from, and do business with others. Deleting the account of an elected official or candidate for public office may seriously impair that individual’s efforts to reach constituents or voters, as well as the ability of voters to make a fully informed electoral choice. And what platforms call “content moderation” of the news or user comments on public affairs can have a substantial effect on popular views. Concerned that social-media platforms could abuse their enormous power, Florida and Texas enacted laws that prohibit them from disfavoring particular viewpoints and speakers. See S. B. 7072, 2021 Reg. Sess., §1(9) (Fla. 2021) (finding that “[s]ocial media platforms have unfairly censored . . . Floridians”); H. B. 20, 87th Leg., Called Sess. (Tex. 2021) (prohibiting the “censorship of . . . expression on social media platforms” in Texas). Both statutes have a broad reach, and it is impossible to determine whether they are unconstitutional in all their applications without surveying those applications. The majority, however, provides only a cursory outline of the relevant provisions of these laws and the litigation challenging their constitutionality. To remedy this deficiency, I will begin with a more complete summary. A 1 I start with Florida’s law, S. B. 7072, which regulates any internet platform that does “business in the state” and has either “annual gross revenues in excess of $100 million” or “at least 100 million monthly individual platform participants globally.” Fla. Stat. §501.2041(1)(g) (2023). This definition is broad. There is no dispute that it covers large social-networking websites like Facebook, X, YouTube, and Instagram, but it may also reach e-commerce and other non-social-networking websites that allow users to leave reviews, ask and answer questions, or communicate with others online. These may include Uber, Etsy, PayPal, Yelp, Wikipedia, and Gmail. See, e.g. , Tr. of Oral Arg. in No. 22–555, pp. 54–56, 69, 76–79, 155; Brief for Wikimedia Foundation as Amicus Curiae 6; Brief for Yelp Inc. as Amicus Curiae 4, n. 4. To prevent covered platforms from unfairly treating Floridians, S. B. 7072 imposes the following “content- moderation” and disclosure requirements: Content-moderation provisions . “Content moderation” is the gentle-sounding term used by internet platforms to denote actions they take purportedly to ensure that user- provided content complies with their terms of service and “community standards.” The Florida law eschews this neologism and instead uses the old-fashioned term “censorship.” To prevent platforms from discriminating against certain views or speakers, that law requires each regulated platform to enforce its “censorship . . . standards in a consistent manner among its users on the platform.” Fla. Stat. §501.2041(2)(b). The law defines “censorship” as any action taken to: “delete, regulate, restrict, edit, alter, [or] inhibit” users from posting their own content; “post an addendum to any content or material posted by a user”; or “inhibit the ability of a user to be viewable by or to interact with another user.” §501.2041(1)(b). To prevent platforms from attempting to evade this restriction by regularly modifying their practices, the law prohibits platforms from changing their censorship “rules, terms, and agreements . . . more than once every 30 days.” §501.2041(2)(c). And to give Floridians more control over how they view content on social-media websites, the law requires each platform to give its users the ability to “opt out” of its content-sorting “algorithms” and instead view posts sequentially or chronologically. §501.2041(2)(f ).[ 6 ] Although some platforms still have employees who monitor and organize social-media feeds, for most platforms, “the incredible volume of content shared each day makes human review of each new post impossible.” Brief for Developers Alliance et al. as Amici Curiae 4. Consequently, platforms rely heavily on algorithms to organize and censor content. Ibid. And it is likely that they will increasingly rely on artificial intelligence (AI), a machine learning tool that arranges, deletes, and modifies content and learns from its own choices. In addition to barring censorship, the Florida law attempts to prevent platforms from unfairly influencing elections or distorting public discourse. To do this, it requires platforms to host candidates for public office and journalistic enterprises.[ 7 ] §§501.2041(2)(h), (j). For the same reasons, the law also prohibits platforms from censoring posts made by or about candidates for public office. §501.2041(2)(h). Disclosure provisions . S. B. 7072 requires platforms to make both general and individual disclosures about how and when they censor the speech of Floridians. The law requires platforms to publish their content-moderation standards and to inform users of any changes. §§501.2041(2)(a), (c). And whenever a platform censors a user, S. B. 7072 requires it to: (1) notify the user of the censorship decision in writing within seven days; (2) provide “a thorough” explanation of the action and how the platform became aware of the affected content; and (3) allow the user “to access or retrieve all of the user’s information, content, material, and data for at least 60 days.” §§501.2041(2)(d), (i), (3). To ensure compliance with these provisions, S. B. 7072 authorizes the Florida attorney general to bring civil and administrative actions against noncomplying platforms. §501.2041(5). The law allows the Florida Elections Commission to fine platforms that fail to host candidates for public office. Fla. Stat. §106.072(3) (2023). And the law permits aggrieved users to sue and recover up to $100,000 for each violation of the content-moderation and disclosure provisions, along with actual damages, equitable relief, punitive damages, and attorney’s fees. §501.2041(6). To protect platforms, the law provides that it “may only be enforced to the extent not inconsistent with federal law,” including §203 of the Communications Decency Act of 1996. §501.2041(9). Section 230(c)(2)(A) of that Act shields internet platforms from liability for voluntary, good-faith efforts to restrict or remove content that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” 47 U. S. C. §230(c)(2)(A). 2 Days after S. B. 7072’s enactment, NetChoice filed suit in federal court, alleging that the new law violates the First Amendment in all its applications.[ 8 ] As a result, NetChoice asked the District Court to enter a preliminary injunction against any enforcement of any of its provisions before the law took effect. Florida defended the constitutionality of S. B. 7072. It argued that the law’s prohibition of censorship does not violate the freedom of speech because the First Amendment permits the regulation of the conduct of entities that do not express their own views but simply provide the means for others to communicate. See Record in No. 4:21–CV–00220 (ND Fla.), Doc. 106, p. 22 (citing Rumsfeld v. Forum for Academic and Institutional Rights, Inc. , 547 U.S. 47 , 64 (2006) ( FAIR )). And, in any event, Florida argued that NetChoice’s facial challenge was likely to fail at the threshold because NetChoice had not identified which of its members were required to comply with the new law or how each of its members’ presentation of third-party speech expressed that platform’s own message. Record, Doc. 106, at 30, 58–59; id ., Doc. 118, pp. 5, 24–25. Without this information, Florida said, it could not properly respond to NetChoice’s facial claim. Id ., Doc. 122, pp. 4–5. Florida requested a “meaningful opportunity to take discovery.” Tr. of Oral Arg. in No. 22–277, p. 154. NetChoice objected. Record, Doc. 122. Despite these arguments, the District Court enjoined S. B. 7072 in its entirety before the law could go into effect. Florida appealed, maintaining, among other things, that NetChoice was “unlikely to prevail on the merits of [its] facial First Amendment challenge.” Brief for Appellants in No. 21–12355 (CA11), p. 20; Reply Brief in No. 21–12355 (CA11), p. 15. With just one exception, the Eleventh Circuit affirmed. It first held that all the regulated platforms’ decisions about “whether, to what extent, and in what manner to disseminate third-party created content to the public” were constitutionally protected expression. NetChoice v. Attorney Gen., Fla. , 34 F. 4th 1196, 1212 (2022). Under that framing, the court found that the moderation and individual- disclosure provisions likely failed intermediate scrutiny, obviating the need to determine whether strict scrutiny applied. Id., at 1227.[ 9 ] But the court held that the general-disclosure provisions, which require only that platforms publish their censorship policies, met the intermediate-scrutiny standard set forth in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio , 471 U.S. 626 (1985). 34 F. 4th, at 1230. The Eleventh Circuit therefore vacated the portion of the District Court’s order that enjoined the enforcement of those general-disclosure provisions, while affirming all the rest of the injunction. Id., at 1231. B 1 Around the same time as the enactment of the Florida law, Texas adopted a similar measure, H. B. 20, which covers “social media platform[s]” with more than 50 million monthly users in the United States. Tex. Bus. & Com. Code Ann. §120.002(b) (West 2023). The statute defines a “ ‘[s]ocial media platform’ ” as an “[i]nternet website or application that is open to the public, allows a user to create an account, and enables users to communicate with other users for the primary purpose of posting information, comments, messages, or images.” §120.001(l). Unlike Florida’s broader law, however, Texas’s statute does not cover internet-service providers, email providers, and websites that “consis[t] primarily of news, sports, entertainment, or other information or content that is not user generated but is preselected by the provider.” §120.001(1)(C)(i). To ensure “the free exchange of ideas and information,” H. B. 20 requires regulated platforms to abide by the following content-moderation and disclosure requirements. Act of Sept. 2, 2021, 87th Leg., 2d Called Sess., ch. 3. Content-moderation provisions . H. B. 20 prevents social-media companies from “censoring” users—that is, acting to “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against”—based on their viewpoint or geographic location within Texas.[ 10 ],[ 11 ],[ 12 ] Tex. Civ. Prac. & Rem. Code Ann. §§143A.001(1), 143A.002(a)(1)–(3) (West Cum. Supp. 2023). However, the law allows platforms to censor speech that: federal law “specifically authorize[s]” them to censor; speech that the platform is told sexually exploits children or survivors of sexual abuse; speech that “directly incites criminal activity or consists of specific threats of violence targeted against a person or group because of race, color, disability, religion, national origin or ancestry, age, sex or status as peace officer or judge”; and speech that is otherwise unlawful or has been the subject of a user’s request for removal from his or her feed or profile. §§143A.006(a)–(b). Disclosure provisions . Like the Florida law, H. B. 20 also requires platforms to make general and individual disclosures about their censorship practices. Specifically, the law obligates each platform to tell the public how it “targets,” “promotes,” and “moderates” content. §§120.051(a)(1)–(3). And whenever a platform censors a user, the law requires it to inform the user why that was done. §120.103(a)(1).[ 13 ] Platforms must allow users to appeal removal decisions through “an easily accessible complaint system;” resolve such appeals within 14 business days (unless an enumerated exception applies); and, if the appeal is successful, provide “the reason for the reversal.” §§120.101, 120.103(a)(2), (a)(3)(B)–(b), 120.104. Users may sue any platform that violates these provisions, as may the Texas attorney general. §143A.007(d). But unlike the Florida law, H. B. 20 authorizes only injunctive relief. §§143A.007(a), 143 A. 008. It contains a strong severability provision, §8(a), which reaches “every provision, section, subsection, sentence, clause, phrase, or word in th[e] Act, and every application of [its] provisions.” 2 As it did in the Florida case, NetChoice sought a preliminary injunction in federal court, claiming that H. B. 20 violates the First Amendment in its entirety. In response, Texas argued that because H. B. 20 regulates NetChoice’s members “in their operation as publicly accessible conduits for the speech of others” rather than “as authors or editors” of their own speech, NetChoice could not prevail. Record in No. 1:21–CV–00840 (WD Tex.), Doc. 39, p. 23. But even if the platforms might have the right to use algorithms to censor their users’ speech, the State argued, the question of “ what these algorithms are doing is a critical, and so far, unexplained, aspect of this case.” Id ., at 24. This deficiency mattered, Texas contended, because the platforms could succeed on their facial challenge only by showing that “ all algorithms used by the Platforms are for the purposes of expressing viewpoints of those Platforms.” Id., at 27. And because NetChoice had not even explained what its members’ algorithms did, much less whether they did so in an expressive way, Texas argued that NetChoice had not shown that “all applications of H.B. 20 are unconstitutional.” Ibid. ; see also id ., Doc. 53, at 13 (arguing that NetChoice had failed to show that “H. B. 20 is . . . unconstitutional in all its applications” because “a number” of NetChoice’s members had conceded that the law did “ not burden or chill their speech”). To clarify these and other “threshold issues,” Texas moved for expedited discovery. Id ., Doc. 20, at 1. The District Court granted Texas’s motion in part, but after one month of discovery, it sided with NetChoice and enjoined H. B. 20 in its entirety before it could go into effect. Texas appealed, arguing that despite the District Court’s judgment to the contrary, “[l]aws requiring commercial entities to neutrally host speakers generally do not even implicate the First Amendment because they do not regulate the host’s speech at all—they regulate its conduct.” Brief for Appellant in No. 21–51178 (CA5), p. 16. The State also emphasized NetChoice’s alleged failure to show that H. B. 20 was unconstitutional in even a “ ‘substantial number of its applications,’ ” the “bare minimum” showing that NetChoice needed to make to prevail on its facial challenge. E.g., Reply Brief in No. 21–51178 (CA5), p. 8 (quoting Americans for Prosperity Foundation v. Bonta , 594 U.S. 595, 615 (2021)). A divided Fifth Circuit panel reversed, focusing primarily on NetChoice’s failure to “even try to show that HB 20 is ‘unconstitutional in all of its applications.’ ” 49 F. 4th 439, 449 (2022) (quoting Washington State Grange v. Washington State Republican Party , 552 U.S. 442 , 449 (2008)). The court also accepted Texas’s argument that H. B. 20 “does not regulate the Platforms’ speech at all” because “the Platforms are not ‘speaking’ when they host other people’s speech.” 49 F. 4th, at 448. Finally, the court upheld the law’s disclosure requirements on the ground that they involve the disclosure of the type of purely factual and uncontroversial information that may be compelled under Zauderer . 49 F. 4th, at 485. II NetChoice contends that the Florida and Texas statutes facially violate the First Amendment, meaning that they cannot be applied to anyone at any time under any circumstances without violating the Constitution. Such challenges are strongly disfavored. See Washington State Grange , 552 U. S., at 452. They often raise the risk of “ ‘premature interpretatio[n] of statutes’ on the basis of factually barebones records.” Sabri v. United States , 541 U.S. 600 , 609 (2004). They clash with the principle that courts should neither “ ‘anticipate a question of constitutional law in advance of the necessity of deciding it’ ” nor “ ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’ ” Ashwander v. TVA , 297 U.S. 288 , 346–347 (1936) (Brandeis, J., concurring). And they “threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.” Washington State Grange , 552 U. S., at 451. Facial challenges also strain the limits of the federal courts’ constitutional authority to decide only actual “Cases” and “Controversies.” Art. III, §2. “[L]itigants typically lack standing to assert the constitutional rights of third parties.” United States v. Hansen , 599 U.S. 762, 769 (2023). But when a court holds that a law cannot be enforced against anyone under any circumstances, it effectively grants relief with respect to unknown parties in disputes that have not yet materialized. For these reasons, we have insisted that parties mounting facial attacks satisfy demanding requirements. In United States v. Salerno , 481 U.S. 739 , 745 (1987), we held that a facial challenger must “establish that no set of circumstances exists under which the [law] would be valid.” “While some Members of the Court have criticized the Salerno formulation,” all have agreed “that a facial challenge must fail where the statute has a “ ‘plainly legitimate sweep.” ’ ” Washington State Grange , 552 U. S., at 449. In First Amendment cases, we have sometimes phrased the requirement as an obligation to show that a law “ ‘prohibits a substantial amount of protected speech’ ” relative to its ‘ “plainly legitimate sweep.’ ” Hansen , 599 U. S., at 770; Bonta , 594 U. S., at 615; United States v. Williams , 553 U.S. 285 , 292–293 (2008).[ 14 ] NetChoice and the Federal Government urge us not to apply any of these demanding tests because, they say, the States disputed only the “threshold question” whether their laws “cover expressive activity at all.” Tr. of Oral Arg. in No. 22–277, at 76; see also id., at 84, 125; Tr. of Oral Arg. in No. 22–555, at 92. The Court unanimously rejects that argument—and for good reason. First, the States did not “put all their eggs in [one] basket.” Tr. of Oral Arg. in No. 22–277, at 76. To be sure, they argued that their newly enacted laws were valid in all their applications. Ibid. Both the Federal Government and the States almost always defend the constitutionality of all provisions of their laws. But Florida and Texas did not stop there. Rather, as noted above, they went on to argue that NetChoice had failed to make the showing required for a facial challenge.[ 15 ] Therefore, the record does not support NetChoice’s attempt to use “the party presentation rules” as grounds for blocking our consideration of the question whether it satisfied the facial constitutionality test. Tr. of Oral Arg. in No. 22–555, at 92. Second, even if the States had not asked the lower courts to reject NetChoice’s request for blanket relief, it would have been improper for those courts to enjoin all applications of the challenged laws unless that test was met. “It is one thing to allow parties to forfeit claims, defenses, or lines of argument; it would be quite another to allow parties to stipulate or bind [a court] to the application of an incorrect legal standard.” Gardner v. Galetka , 568 F.3d 862, 879 (CA10 2009); see also Kairys v. Southern Pines Trucking, Inc ., 75 F. 4th 153, 160 (CA3 2023) (“But parties cannot forfeit the application of ‘controlling law’ ”); United States v. Escobar , 866 F.3d 333, 339, n. 13 (CA5 2017) ( per curiam ) (“ ‘A party cannot waive, concede, or abandon the applicable standard of review’ ” (quoting Ward v. Stephens , 777 F.3d 250, 257, n. 3 (CA5 2015)). Represented by sophisticated counsel, NetChoice made the deliberate choice to mount a facial challenge to both laws, and in doing so, it obviously knew what it would have to show in order to prevail. NetChoice decided to fight these laws on these terms, and the Court properly holds it to that decision. III I therefore turn to the question whether NetChoice established facial unconstitutionality, and I begin with the States’ content-moderation requirements. To show that these provisions are facially invalid, NetChoice had to demonstrate that they lack a plainly legitimate sweep under the First Amendment. Our precedents interpreting that Amendment provide the numerator (the number of unconstitutional applications) and denominator (the total number of possible applications) that NetChoice was required to identify in order to make that showing. Estimating the numerator requires an understanding of the First Amendment principles that must be applied here, and I therefore provide a brief review of those principles. A The First Amendment protects “the freedom of speech,” and most of our cases interpreting this right have involved government efforts to forbid, restrict, or compel a party’s own oral or written expression. Agency for Int’l Development v. Alliance for Open Society Int’l, Inc. , 570 U.S. 205 , 213 (2013); Wooley v. Maynard , 430 U.S. 705 , 714 (1977); West Virginia Bd. of Ed. v. Barnette , 319 U.S. 624 , 642 (1943). Some cases, however, have involved another aspect of the free speech right, namely, the right to “presen[t] . . . an edited compilation of speech generated by other persons” for the purpose of expressing a particular message. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. , 515 U.S. 557 , 570 (1995). As used in this context, the term “compilation” means any effort to present the expression of others in some sort of organized package. See ibid. An example such as the famous Oxford Book of English Poetry illustrates why a compilation may constitute expression on the part of the compiler. The editors’ selection of the poems included in this volume expresses their view about the poets and poems that most deserve the attention of their anticipated readers. Forcing the editors to exclude or include a poem could alter the expression that the editors wish to convey. Not all compilations, however, have this expressive characteristic. Suppose that the head of a neighborhood group prepares a directory consisting of contact information submitted by all the residents who want to be listed. This directory would not include any meaningful expression on the part of the compiler. Because not all compilers express a message of their own, not all compilations are protected by the First Amendment. Instead, the First Amendment protects only those compilations that are “inherently expressive” in their own right, meaning that they select and present speech created by other persons in order “to spread [the compiler’s] own message.” FAIR , 547 U. S., at 66; Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal. , 475 U.S. 1 , 10 (1986) ( PG&E ) (plurality opinion). If a compilation is inherently expressive, then the compiler may have the right to refuse to accommodate a particular speaker or message. See Hurley , 515 U. S., at 573. But if a compilation is not inherently expressive, then the government can require the compiler to host a message or speaker because the accommodation does not amount to compelled speech. Id. , at 578–581. To show that a hosting requirement would compel speech and thereby trigger First Amendment scrutiny, a claimant must generally show three things. 1 First, a claimant must establish that its practice is to exercise “editorial discretion in the selection and presentation” of the content it hosts. Arkansas Ed. Television Comm’n v. Forbes , 523 U.S. 666 , 674 (1998); Hurley , 515 U. S., at 574; ante, at 14. NetChoice describes this process as content “curation.” But whatever you call it, not all compilers do this, at least in a way that is inherently expressive. Some may serve as “passive receptacle[s]” of third-party speech or as “dumb pipes”[ 16 ] that merely emit what they are fed. Such entities communicate no message of their own, and accordingly, their conduct does not merit First Amendment protection.[ 17 ] Miami Herald Publishing Co. v. Tornillo , 418 U.S. 241 , 258 (1974). Determining whether an entity should be viewed as a “curator” or a “dumb pipe” may not always be easy because different aspects of an entity’s operations may take different approaches with respect to hosting third-party speech. The typical newspaper regulates the content and presentation of articles authored by its employees or others, PG&E , 475 U. S., at 8, but that same paper might also run nearly all the classified advertisements it receives, regardless of their content and without adding any expression of its own. Compare Tornillo , 418 U.S. 241 , with Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations , 413 U.S. 376 (1973). These differences may be significant for First Amendment purposes. The same may be true for a parade organizer. For example, the practice of a parade organizer may be to select the groups that are admitted, but not the individuals who are allowed to march as members of admitted groups. Hurley , 515 U. S., at 572–574. In such a case, each of these practices would have to be analyzed separately. 2 Second, the host must use the compilation of speech to express “some sort of collective point”—even if only at a fairly abstract level. Id. , at 568. Thus, a parade organizer who claims a First Amendment right to exclude certain groups or individuals would need to show at least that the message conveyed by the groups or individuals who are allowed to march comport with the parade’s theme. Id., at 560, 574. A parade comprising “unrelated segments” that lumber along together willy-nilly would likely not express anything at all. Id. , at 576. And although “a narrow, succinctly articulable message is not a condition of constitutional protection,” compilations that organize the speech of others in a non-expressive way ( e.g., chronologically) fall “beyond the realm of expressi[on].” Id., at 569; contra, ante, at 17–18 . Our decision in PruneYard illustrates this point. In that case, the Court held that a mall could be required to host third-party speech ( i.e. , to admit individuals who wanted to distribute handbills or solicit signatures on petitions) because the mall’s admission policy did not express any message, and because the mall was “open to the public at large.” PruneYard Shopping Center v. Robins , 447 U.S. 74 , 83, 87–88 (1980); 303 Creative LLC v. Elenis , 600 U.S. 570, 590 (2023). In such circumstances, we held that the First Amendment is not implicated merely because a host objects to a particular message or viewpoint. See PG&E , 475 U. S., at 12. 3 Finally, a compiler must show that its “own message [is] affected by the speech it [is] forced to accommodate.” FAIR , 547 U. S., at 63. In core examples of expressive compilations, such as a book containing selected articles, chapters, stories, or poems, this requirement is easily satisfied. But in other situations, it may be hard to identify any message that would be affected by the inclusion of particular third-party speech. Two precedents that the majority tries to downplay, if not forget, are illustrative. The first is PruneYard , which I have already discussed. The PruneYard Court rejected the mall’s First Amendment claim because “[t]he views expressed by members of the public in passing out pamphlets or seeking signatures for a petition [were] not likely [to] be identified with those of the owner.” 447 U. S., at 87. And if those who perused the handbills or petitions were not likely to make that connection, any message that the mall owner intended to convey would not be affected. The decision in FAIR rested on similar reasoning. In that case, the Court did not dispute the proposition that the law schools’ refusal to host military recruiters expressed the message that the military should admit and retain gays and lesbians. But the Court found no First Amendment violation because, as in PruneYard , it was unlikely that the views of the military recruiters “would be identified with” those of the schools themselves, and consequently, hosting the military recruiters did not “sufficiently interfere with any message of the school.” 547 U. S., at 64–65; contra, ante , at 25 (“[T]his Court has never hinged a compiler’s First Amendment protection on the risk of misattribution.”).[ 18 ] B A party that challenges government interference with its curation of content cannot win without making the three-part showing just outlined, but such a showing does not guarantee victory. To prevail, the party must go on and show that the challenged regulation of its curation practices violates the applicable level of First Amendment scrutiny. Our decision in Turner makes that clear. Although the television cable operators in that case made the showing needed to trigger First Amendment scrutiny, they did not ultimately prevail on their facial challenge to the Cable Act. After a remand and more than 18 months of additional factual development, the Court held that the law was adequately tailored to serve legitimate and important government interests, including “promoting the widespread dissemination of information from a multiplicity of sources.” Turner Broadcasting System, Inc. v. FCC , 520 U.S. 180 , 189 (1997). Here, the States assert a similar interest in fostering a free and open marketplace of ideas.[ 19 ] C With these standards in mind, I proceed to the question whether the content-moderation provisions are facially valid. For the following three reasons, NetChoice failed to meet its burden. 1 First, NetChoice did not establish which entities the statutes cover. This failure is critical because it is “impossible to determine whether a statute reaches too far without first knowing what the statute covers.” Williams , 553 U. S., at 293. When it sued Florida, NetChoice was reluctant to disclose which of its members were covered by S. B. 7072. Instead, it filed declarations revealing only that the law reached “Etsy, Facebook, and YouTube.” Tr. of Oral Arg. in No. 22–277, at 32. In this Court, NetChoice was a bit more forthcoming, representing that S. B. 7072 also covers In- stagram, X, Pinterest, Reddit, Gmail, Uber, and other e-commerce websites. Id., at 69, 76; Brief for Respondents in No. 22–277, at 7, 38, 49.[ 20 ] But NetChoice has still not provided a complete list. NetChoice was similarly reluctant to identify its affected members in the Texas case. At first, NetChoice “represented . . . that only Facebook, YouTube, and [X] are affected by the Texas law.” Brief for Appellant in No. 21–51178 (CA5), at 1, n. 1. But in its brief in this Court, NetChoice told us that H. B. 20 also regulates “some of the Internet’s most popular websites, including Facebook, Instagram, Pinterest, TikTok, Vimeo, X (formerly known as Twitter), and YouTube.” Brief for Petitioners in No. 22–555, p. 1. And websites such as Discord,[ 21 ] Reddit,[ 22 ] Wikipedia,[ 23 ] and Yelp[ 24 ] have filed amicus briefs claiming that they may be covered by both the Texas and Florida laws. It is a mystery how NetChoice could expect to prevail on a facial challenge without candidly disclosing the platforms that it thinks the challenged laws reach or the nature of the content moderation they practice. Without such information, we have no way of knowing whether the laws at issue here “cover websites that engage in primarily non- expressive conduct.” Tr. of Oral Arg. in No. 22–277, at 34; see also id., at 126. For example, among other things, NetChoice has not stated whether the challenged laws reach websites like WhatsApp[ 25 ] and Gmail,[ 26 ] which carry messages instead of curating them to create an independent speech product. Both laws also appear to cover Reddit[ 27 ] and BeReal,[ 28 ] and websites like Parler,[ 29 ] which claim to engage in little or no content moderation at all. And Florida’s law, which is even broader than Texas’s, plainly applies to e-commerce platforms like Etsy that make clear in their terms of service that they are “not a curated marketplace.”[ 30 ] In First Amendment terms, this means that these laws—in at least some of their applications—appear to regulate the kind of “passive receptacle[s]” of third-party speech that receive no First Amendment protection. Tornillo , 418 U. S., at 258. Given such uncertainty, it is impossible for us to determine whether these laws have a “plainly legitimate sweep.” Williams , 553 U. S., at 292; Washington State Grange , 552 U. S., at 449. 2 Second, NetChoice has not established what kinds of content appear on all the regulated platforms, and we cannot determine whether these platforms create an “inherently expressive” compilation of third-party speech until we know what is being compiled. We know that social-media platforms generally allow their users to create accounts; send direct messages through private inboxes; post written messages, photos, and videos; and comment on, repost, or otherwise interact with other users’ posts. And NetChoice acknowledges in fairly general terms that its members engage in most—though not all—of these functions. But such generalities are insufficient. For one thing, the ways in which users post, send direct messages, or interact with content may differ in meaningful ways from platform to platform. And NetChoice’s failure to account for these differences may be decisive. To see how, consider X and Yelp. Both platforms allow users to post comments and photos, but they differ in other respects.[ 31 ] X permits users to post (or “Tweet”) on a broad range of topics because its “purpose is to serve the public conversation,”[ 32 ] and as a result, many elected officials use X to communicate with constituents. Yelp, by contrast, allows users to post comments and pictures only for the purpose of advertising local businesses or providing “firsthand accounts” that reflect their “consumer experience” with businesses.[ 33 ] It does not permit “rants about political ideologies, a business’s employment practices, extraordinary circumstances, or other matters that don’t address the core of the consumer experience.”[ 34 ] As this example shows, X’s content is more political than Yelp’s, and Yelp’s content is more commercial than X’s. That difference may be significant for First Amendment purposes. See Pittsburgh Press , 413 U.S. 376 . But NetChoice has not developed the record on that front. Nor has it shown what kinds of content appear across the diverse array of regulated platforms. Social-media platforms are diverse, and each may be unique in potentially significant ways. On the present record, we are ill-equipped to account for the many platform-specific features that allow users to do things like sell or purchase goods,[ 35 ] live-stream events,[ 36 ] request a ride,[ 37 ] arrange a date,[ 38 ] create a discussion forum,[ 39 ] wire money to friends,[ 40 ] play a video game,[ 41 ] hire an employee,[ 42 ] log a run,[ 43 ] or agree to watch a dog.[ 44 ] The challenged laws may apply differently to these different functions, which may present different First Amendment issues. A court cannot invalidate the challenged laws if it has to speculate about their applications. 3 Third, NetChoice has not established how websites moderate content. NetChoice alleges that “[c]overed websites” generally use algorithms to organize and censor content appearing in “search results, comments, or in feeds.” Brief for Petitioners in No. 22–555, at 4, 6. But at this stage and on this record, we have no way of confirming whether all of the regulated platforms use algorithms to organize all of their content, much less whether these algorithms are expressive. See Hurley , 515 U. S., at 568. Facebook and Reddit, for instance, both allow their users to post about a wide range of topics.[ 45 ] But while Facebook uses algorithms to arrange and moderate its users’ posts, Reddit asserts that its content is moderated by Reddit users, “not by centralized algorithms.” Brief for Reddit, Inc., as Amicus Curiae 2. If Reddit and other platforms entirely outsource curation to others, they can hardly claim that their compilations express their own views. Perhaps recognizing this, NetChoice argues in passing that it cannot tell us how its members moderate content because doing so would embolden “malicious actors” and divulge “proprietary and closely held” information. E.g., Brief for Petitioners in No. 22–555, at 11. But these harms are far from inevitable. Various platforms already make similar disclosures—both voluntarily and to comply with the European Union’s Digital Services Act[ 46 ]—yet the sky has not fallen. And on remand, NetChoice will have the opportunity to contest whether particular disclosures are necessary and whether any relevant materials should be filed under seal. Various NetChoice members already disclose in broad strokes how they use algorithms to curate content. Many platforms claim to use algorithms to identify and remove violent, obscene, sexually explicit, and false posts that violate their community guidelines. Brief for Developers Alliance et al. as Amici Curiae 11. Some platforms—like X, for instance—say they use algorithms, not for the purpose of removing all nonconforming speech, but to “promot[e] counterspeech” that “presents facts to correct misstatements” or “denounces hateful or dangerous speech.”[ 47 ] Still others, like Parler,[ 48 ] Reddit,[ 49 ] and Signal Messenger,[ 50 ] say they engage in little or no content moderation. Some platforms have also disclosed that they use algorithms to help their users find relevant content. The e-commerce platform Etsy, for instance, uses an algorithm that matches a user’s search terms to the “attributes” that a seller ascribes to its wares.[ 51 ] Etsy’s algorithm also accounts for things like the date of the seller’s listing, the proximity of the seller and buyer, and the quality of the seller’s customer-service ratings. Ibid. YouTube says it answers search queries based on “relevance, engagement and quality”—taking into account how well a search query matches a video title, the kinds of videos a particular user viewed in the past, and each creator’s “expertise, authoritativeness, and trustworthiness on a given topic.”[ 52 ] These disclosures suggest that platforms can say something about their content-moderation practices without enabling malicious actors or disclosing proprietary information. They also suggest that not all platforms curate all third-party content in an inherently expressive way. Without more information about how regulated platforms moderate content, it is not possible to determine whether these laws lack “a ‘ “plainly legitimate sweep.” ’ ” Washington State Grange , 552 U. S., at 449. For all these reasons, NetChoice failed to establish whether the content-moderation provisions violate the First Amendment on their face. D Although the only question the Court must decide today is whether NetChoice showed that the Florida and Texas laws are facially unconstitutional, much of the majority opinion addresses a different question: whether the Texas law’s content-moderation provisions are constitutional as applied to two features of two platforms—Facebook’s News Feed and YouTube’s homepage. The opinion justifies this discussion on the ground that the Fifth Circuit cannot apply the facial constitutionality test without resolving that question, see, e.g., ante, at 13, 30, but that is not necessarily true. Especially in light of the wide reach of the Texas law, NetChoice may still fall far short of establishing facial unconstitutionality—even if it is assumed for the sake of argument that the Texas law is unconstitutional as applied to Facebook’s News Feed and YouTube’s homepage.[ 53 ] For this reason, the majority’s “guidance” on this issue may well be superfluous. Yet superfluity is not its most egregious flaw. The majority’s discussion also rests on wholly conclusory assumptions that lack record support. For example, the majority paints an attractive, though simplistic, picture of what Facebook’s News Feed and YouTube’s homepage do behind the scenes. Taking NetChoice at its word, the majority says that the platforms’ use of algorithms to enforce their community standards is per se expressive. But the platforms have refused to disclose how these algorithms were created and how they actually work. And the majority fails to give any serious consideration to key arguments pressed by the States. Most notable is the majority’s conspicuous failure to address the States’ contention that platforms like YouTube and Facebook—which constitute the 21st century equivalent of the old “public square”—should be viewed as common carriers. See Biden v. Knight First Amendment Institute at Columbia University , 593 U. S. ___, ___ (2021) (Thomas, J., concurring) (slip op., at 6). Whether or not the Court ultimately accepts that argument, it deserves serious treatment. Instead of seriously engaging with this and other arguments, the majority rests on NetChoice’s dubious assertion that there is no constitutionally significant difference between what newspaper editors did more than a half-century ago at the time of Tornillo and what Facebook and YouTube do today. Maybe that is right—but maybe it is not. Before mechanically accepting this analogy, perhaps we should take a closer look. Let’s start with size. Currently, Facebook and YouTube each produced—on a daily basis—more than four petabytes (4,000,000,000,000,000 bytes) of data.[ 54 ] By my calculation, that is roughly 1.3 billion times as many bytes as there are in an issue of the New York Times.[ 55 ] No human being could possibly review even a tiny fraction of this gigantic outpouring of speech, and it is therefore hard to see how any shared message could be discerned. And even if someone could view all this data and find such a message, how likely is it that the addition of a small amount of discordant speech would change the overall message? Now consider how newspapers and social-media platforms edit content. Newspaper editors are real human beings, and when the Court decided Tornillo (the case that the majority finds most instructive), editors assigned articles to particular reporters, and copyeditors went over typescript with a blue pencil. The platforms, by contrast, play no role in selecting the billions of texts and videos that users try to convey to each other. And the vast bulk of the “curation” and “content moderation” carried out by platforms is not done by human beings. Instead, algorithms remove a small fraction of nonconforming posts post hoc and prioritize content based on factors that the platforms have not revealed and may not even know. After all, many of the biggest platforms are beginning to use AI algorithms to help them moderate content. And when AI algorithms make a decision, “even the researchers and programmers creating them don’t really understand why the models they have built make the decisions they make.”[ 56 ] Are such decisions equally expressive as the decisions made by humans? Should we at least think about this? Other questions abound. Maybe we should think about the enormous power exercised by platforms like Facebook and YouTube as a result of “network effects.” Cf. Ohio v. American Express Co. , 585 U.S. 529 (2018). And maybe we should think about the unique ways in which social-media platforms influence public thought. To be sure, I do not suggest that we should decide at this time whether the Florida and Texas laws are constitutional as applied to Facebook’s News Feed or YouTube’s homepage. My argument is just the opposite. Such questions should be resolved in the context of an as-applied challenge. But no as-applied question is before us, and we do not have all the facts that we need to tackle the extraneous matters reached by the majority. Instead, when confronted with the application of a constitutional requirement to new technology, we should proceed with caution. While the meaning of the Constitution remains constant, the application of enduring principles to new technology requires an understanding of that technology and its effects. Premature resolution of such questions creates the risk of decisions that will quickly turn into embarrassments. IV Just as NetChoice failed to make the showing necessary to demonstrate that the States’ content-moderation provisions are facially unconstitutional, NetChoice’s facial attacks on the individual-disclosure provisions also fell short. Those provisions require platforms to explain to affected users the basis of each content-censorship decision. Because these regulations provide for the disclosure of “purely factual and uncontroversial information,” they must be reviewed under Zauderer ’s framework, which requires only that such laws be “reasonably related to the State’s interest in preventing deception of consumers” and not “unduly burde[n]” speech. 471 U. S., at 651.[ 57 ] For Zauderer purposes, a law is “unduly burdensome” if it threatens to “chil[l] protected commercial speech.” Ibid. Here, NetChoice claims that these disclosures have that effect and lead platforms to “conclude that the safe course is to . . . not exercis[e] editorial discretion at all” rather than explain why they remove “millions of posts per day.” Brief for Respondents in No. 22–277, at 39–40 (internal quotation marks omitted). Our unanimous agreement regarding NetChoice’s failure to show that a sufficient number of its members engage in constitutionally protected expression prevents us from accepting NetChoice’s argument regarding these provisions. In the lower courts, NetChoice did not even try to show how these disclosure provisions chill each platform’s speech. Instead, NetChoice merely identified one subset of one platform’s content that would be affected by these laws: billions of nonconforming comments that YouTube removes each year. 49 F. 4th, at 487; see also Brief for Appellees in No. 21–12355 (CA11), p. 13. But if YouTube uses automated processes to flag and remove these comments, it is not clear why having to disclose the bases of those processes would chill YouTube’s speech. And even if having to explain each removal decision would unduly burden YouTube’s First Amendment rights, the same does not necessarily follow with regard to all of NetChoice’s members. NetChoice’s failure to make this broader showing is especially problematic since NetChoice does not dispute the States’ assertion that many platforms already provide a notice-and-appeal process for their removal decisions. In fact, some have even advocated for such disclosure requirements. Before its change in ownership, the previous Chief Executive Officer of the platform now known as X went as far as to say that “all companies” should be required to explain censorship decisions and “provide a straightforward process to appeal decisions made by humans or algorithms.”[ 58 ] Moreover, as mentioned, many platforms are already providing similar disclosures pursuant to the European Union’s Digital Services Act. Yet complying with that law does not appear to have unduly burdened each platform’s speech in those countries. On remand, the courts might consider whether compliance with EU law chilled the platforms’ speech. *  *  * The only binding holding in these decisions is that NetChoice has yet to prove that the Florida and Texas laws they challenged are facially unconstitutional. Because the majority opinion ventures far beyond the question we must decide, I concur only in the judgment. Notes 1 J. Gottfried, Pew Research Center, Americans’ Social Media Use 3 (2024). As platforms incorporate new features and technology, the number of Americans who use social media is expected to grow. S. Dixon, Statista, Social Media Users in the United States 2020–2029 (Jan. 30, 2024), https://www.statista.com/statistics/278409/number-of-social-network-users-in-the-united-states. 2 V. Filak, Exploring Mass Communication: Connecting With the World of Media 210 (2024). 3 Social Media and News Platform Fact Sheet, Pew Research Center (Nov. 15, 2023), https://www.pewresearch.org/journalism/fact-sheet/social-media-and-news-fact-sheet. 4 M. Anderson, M. Faverio, & J. Gottfried, Pew Research Center, Teens, Social Media and Technology 2023 (Dec. 11, 2023), https://www.pewresearch.org/internet/2023/12/11/teens-social-media-and-technology-2023. 5 Ibid. ; see also J. Twenge, J. Haidt, J. Lozano, & K. Cummins, Specification Curve Analysis Shows That Social Media Use Is Linked to Poor Mental Health, Especially Among Girls, 224 Acta Psychologica 1, 8–12 (2022). 6 As relevant here, an “algorithm” is a program that platforms use to automatically “censor” or “moderate” content that violates their terms or conditions, to organize the results of a search query, or to display posts in a feed. 7 A “journalistic enterprise” is defined as any entity doing business in Florida that: (1) has published more than 100,000 words online and has at least 50,000 paid subscribers or 100,000 monthly users; (2) has published at least 100 hours of audio or video online and has at least 100 million annual viewers; (3) operates a cable channel that produces more than 40 hours of content per week to at least 100,000 subscribers; or (4) operates under a Federal Communications Commission broadcast license. Fla. Stat. §501.2041(1)(d). 8 NetChoice also argued that S. B. 7072 is preempted by 47 U. S. C. §230(c) and is unconstitutionally vague. Those arguments are not before us because the District Court did not rule on the vagueness issue, 546 F. Supp. 3d 1082, 1095 (ND Fla. 2021), and the Eleventh Circuit declined to reach the preemption issue, NetChoice v. Attorney Gen., Fla. , 34 F. 4th 1196, 1209 (2022). 9 See also id. , at 1214 (“unless posts and users are removed randomly , those sorts of actions necessarily convey some sort of message—most obviously, the platforms’ disagreement with . . . certain content”); id. , at 1223 (“S.B. 7072’s disclosure provisions implicate the First Amendment”). 10 In general, to “deplatform” means “to remove and ban a registered user from a mass communication medium (such as a social networking or blogging website).” Merriam-Webster’s Collegiate Dictionary (10th ed. 2024), (defining “deplatform”; some punctuation omitted), https://unabridged.merriam-webster.com/collegiate/deplatform (unless otherwise noted, all internet sites last accessed May 22, 2024). 11 “[D]emonetization” often refers to the act of preventing “online content from earning revenue (as from advertisements).” Ibid. (defining“demonetize”; some punctuation omitted), https://unabridged.merriam-webster.com/collegiate/demonetize. 12 “Boosting on social media means [paying] a platform to amplify . . . posts for more reach.” C. Williams, HubSpot, Social Media Definitions: The Ultimate Glossary of Terms You Should Know (June 23, 2023), https://blog.hubspot.com/marketing/social-media-terms. De-boosting thus usually refers to when platforms refuse to continue increasing a post’s or user’s visibility to other users. 13 Texas has represented that a brief computer-generated notification to an affected user would satisfy the provision’s notification requirement. Brief for Respondent in No. 22–555, p. 44. 14 At oral argument, NetChoice represented that “it’s the plainly legitimate sweep test, which is not synonymous with overbreadth,” that governs these cases. See Tr. of Oral Arg. in No. 22–277, p. 70; contra, ante, at 9 (suggesting that the overbreadth doctrine applies to all facial challenges brought under the First Amendment, including these cases). This representation makes sense given that the overbreadth doctrine applies only when there is “a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.” Members of City Council of Los Angeles v. Taxpayers for Vincent , 466 U.S. 789 , 801 (1984). And here, NetChoice appears to represent all—or nearly all—regulated parties. 15 See Reply Brief in No. 21–12355 (CA11), p. 15 (“Plaintiffs—in their facial challenge—have failed to demonstrate that even a significant subset of covered social media platforms engages in [expressive] conduct.” See also Brief for Appellants in No. 21–12355 (CA11), p. 20 (NetChoice is “unlikely to prevail on the merits of [its] facial First Amendment challenge”); Record in No. 4:21–CV–00220 (ND Fla.), Doc. 106, p. 30 (“Plaintiffs have not demonstrated that their members actually [express a message],” so there is “not a basis for sustaining Plaintiffs’ facial constitutional challenge”); Reply Brief in No. 21–51178 (CA5), p. 8 (arguing that NetChoice failed “to show at a bare minimum that [S. B. 20] is unconstitutional in a ‘substantial number of its applications’ ” (quoting Americans for Prosperity Foundation v. Bonta , 594 U.S. 595, 615 (2021))); Record in No. 1:21–CV–00840 (WD Tex.), Doc. 39, p. 27 (because “not all applications of H.B. 20 are unconstitutional,” “Plaintiffs’ delayed facial challenge [can]not succeed”). 16 American Broadcasting Cos. v. Aereo, Inc. , 573 U.S. 431 , 458 (2014) (Scalia, J., dissenting). 17 The majority states that it is irrelevant whether “a compiler includes most items and excludes just a few.” Ante , at 18. That may be true if the compiler carefully reviews, edits, and selects a large proportion of the items it receives. But if an entity, like some “sort of community billboard, regularly carr[ies] the messages of third parties” instead of selecting only those that contribute to a common theme, then this information becomes highly relevant. PG&E , 475 U.S. 1 , 23 (1986) (Marshall, J., concurring in judgment). Entities that have assumed the role of common carriers fall into this category, for example. And the States defend portions of their laws on the ground that at least some social-media platforms have taken on that role. The majority brushes aside that argument without adequate consideration. 18 To be sure, in Turner Broadcasting System, Inc. v. FCC , 512 U.S. 622 , 655 (1994), we held that the First Amendment applied even though there was “little risk” of misattribution in that case. But that is only because the claimants in that case had already shown that the Cable Act affected the quantity or reach of the messages that they communicated through “original programming” or television programs produced by others. Id. , at 636 (internal quotation marks omitted). In cases not involving core examples of expressive compilations, such as in PruneYard and FAIR , a compiler’s First Amendment protection has very much turned on the risk of misattribution. 19 Contrary to the majority’s suggestion, ante , at 27, this is not the only interest that Texas asserted. Texas has also invoked its interest in preventing platforms from discriminating against speakers who reside in Texas or engage in certain forms of off-platform speech. Brief for Respondent in No. 22–555, at 15. The majority opinion does not mention these features, much less the interests that Texas claims they serve. Texas also asserts an interest in preventing common carriers from engaging in “ ‘invidious discrimination in the distribution of publicly available goods, services, and other advantages.’ ” Id. , at 18. These are “compelling state interests of the highest order” too. Roberts v. United States Jaycees , 468 U.S. 609 , 624 (1984). 20 This concession suggests that S. B. 7072 may “cover websites that engage in primarily non-expressive conduct.” Tr. of Oral Arg. in No. 22–277, at 34. 21 Brief for Discord Inc. as Amicus Curiae 2, 21–27. “Discord is a real time messaging service with over 150 million active monthly users who communicate within a huge variety of interest-based communities, or ‘servers.’ ” Id., at 1. 22 Brief for Reddit, Inc., as Amicus Curiae 2. Reddit is an online forum that allows its “users to establish and enforce their own rules governing what topics are acceptable and how those topics may be discussed . . . . The display of content on Reddit is thus primarily driven by humans—not by centralized algorithms.” Ibid. 23 Brief for Wikimedia Foundation as Amicus Curiae 2. 24 Brief for Yelp Inc. as Amicus Curiae 3–4. 25 About WhatsApp, WhatsApp, https://whatsapp.com/about (last accessed Apr. 23, 2024). 26 Secure, Smart, and Easy To Use Email, Gmail, https://google.com/gmail/about (last accessed Apr. 23, 2024). 27 Reddit Content Policy, Reddit, https://www.redditinc.com/policies/content-policy (last accessed Apr. 23, 2024) (describing Reddit as a platform that is run and moderated by its users). 28 BeReal, which appears to have enough monthly users to be covered by the Texas law, allows users to share a photo with their friends once during a randomly selected 2-minute window each day. Time To BeReal, https://help.bereal.com/hc/en-us/articles/7350386715165--Time-to-BeReal (last accessed Apr. 23, 2024). Twenty-four hours later, those photos disappear. Because BeReal posts thus appear and disappear “ randomly ,” even the Eleventh Circuit would agree that BeReal likely is not an expressive compilation. 34 F. 4th, at 1214. 29 Community Guidelines, Parler, https://www.parler.com/community-guidelines (May 31, 2024) (“We honor the ability of all users to freely express themselves without interference from oppressive censorship or manipulation”). Parler probably does not have a sufficient number of monthly users to be covered by these statutes. But it is possible that other covered websites use a similar business model. 30 Our House Rules, Etsy, https://etsy.com/legal/prohibited (last accessed Apr. 23, 2024). 31 Yelp and X are both covered by S. B. 7072 and H. B. 20. See Brief for Yelp Inc. as Amicus Curiae 4, n. 4. 32 The X Rules, X, https://help.x.com/en/rules-and-policies/x-rules (last accessed Apr. 23, 2024). 33 Content Guidelines, Yelp, https://www.yelp.com/guidelines (last accessed Apr. 23, 2024). 34 Ibid. 35 E.g., Facebook Marketplace, Etsy. 36 E.g., X Live, Twitch. 37 E.g., Uber, Lyft. 38 E.g., Facebook Dating, Tinder. 39 E.g., Reddit, Quora. 40 E.g., Meta Pay, Venmo, PayPal. 41 E.g., Metaverse, Discord. 42 E.g., Indeed, LinkedIn. 43 E.g., Strava. 44 E.g., Rover. 45 Community Standards, Facebook, https://transparency.meta.com/policies/community-standards (“[Facebook] wants people to be able to talk openly about the issues that matter to them, whether through written comments, photos, music, or other artistic mediums”); Brief for Reddit, Inc., as Amicus Curiae 12 (“[T]he Reddit platform as a whole accommodates a wide range of communities and modes of discourse”). 46 Comm’n Reg. 2022/2065, Art. 17, 2022 O. J. (L. 277) 51–52. NetChoice does not dispute the States’ assertion that the regulated platforms are required to comply with this law. Compare Brief for Petitioners in No. 22–277, p. 49, with Reply Brief in No. 22–277, p. 24; Tr. of Oral Arg. in No. 22–555, pp. 20–21. If, on remand, the States show that the platforms have been able to comply with this law in Europe without having to forgo “exercising editorial discretion at all,” Brief for Respondents in No. 22–277, p. 40, then that might help them prove that their disclosure laws are not “unduly burdensome” under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio , 471 U.S. 626 (1985). 47 Our Approach to Policy Development and Enforcement Philosophy, X, http://www.help.x.com/en/rules-and-policies/enforcement-philosophy. 48 Community Guidelines, Parler, https://www.parler.com/community-guidelines. 49 Reddit Content Policy, Reddit, https://www.redditinc.com/policies/content-policy. 50 Signal Terms & Privacy Policy, Signal Messenger (May 25, 2018), https://www.signal.org/legal. 51 How Etsy Search Works, Etsy Help Center, https://help.etsy.com/hc/en-us/articles/115015745428–How-Etsy-Search-Works?segment=selling (visited Apr. 9, 2024). 52 YouTube Search, https://www.youtube.com/howyoutubeworks/product-features/search (last accessed Apr. 23, 2024). Unlike many other platforms, YouTube does not accept payment for better placement within organic search 53 This problem is even more pronounced for the Florida law, which covers more platforms and conduct than the Texas law. 54 Breaking Down the Numbers: How Much Data Does the World Create Daily in 2024? Edge Delta (Mar. 11, 2024), https://www. edgedelta.com/company/blog/how-much-data-is-created-per-day. 55 The average issue of the New York Times, excluding ads, contains about 150,000 words. A typical word consists of 10 to 20 bytes. Therefore, the average issue of the New York Times contains around 3 million bytes. 56 T. Xu, AI Makes Decisions We Don’t Understand—That’s a Pro-blem, (Jul. 19, 2021), https://builtin.com/artificial-intelligence/ai-right-explanation. 57 Both lower courts reviewed these provisions under the Zauderer test. And in the Florida case in particular, NetChoice did not contest—and accordingly forfeited—whether Zauderer applies here. See Brief for Appellants in No. 21–12355 (CA11), at 21; Brief for Appellees in No. 21–12355 (CA11), p. 44. 58 Does Section 230’s Sweeping Immunity Enable Big Tech Bad Behavior? Hearing before the Senate Committee on Commerce, Science, and Transportation, 116th Cong., 2d Sess., 2 (2020) (statement of Jack Dorsey, CEO, Twitter, Inc.). SUPREME COURT OF THE UNITED STATES _________________ Nos. 22–277 and 22–555 _________________ ASHLEY MOODY, ATTORNEY GENERAL OF FLORIDA, et al., PETITIONERS 22–277 v. NETCHOICE, LLC, dba NETCHOICE, et al. on writ of certiorari to the united states court of appeals for the eleventh circuit NETCHOICE, LLC, dba NETCHOICE, et al., PETITIONERS 22–555 v. KEN PAXTON, ATTORNEY GENERAL OF TEXAS on writ of certiorari to the united states court of appeals for the fifth circuit [July 1, 2024] Justice Barrett, concurring. I join the Court’s opinion, which correctly articulates and applies our First Amendment precedent. In this respect, the Eleventh Circuit’s understanding of the First Amendment’s protection of editorial discretion was generally correct; the Fifth Circuit’s was not. But for the reasons the Court gives, these cases illustrate the dangers of bringing a facial challenge. If NetChoice’s members are concerned about preserving their editorial discretion with respect to the services on which they have focused throughout this litigation— e . g ., Facebook’s Newsfeed and YouTube’s homepage—they would be better served by bringing a First Amendment challenge as applied to those functions. Analyzing how the First Amendment bears on those functions is complicated enough without simultaneously analyzing how it bears on a platform’s other functions— e.g. , Facebook Messenger and Google Search—much less to distinct platforms like Uber and Etsy. In fact, dealing with a broad swath of varied platforms and functions in a facial challenge strikes me as a daunting, if not impossible, task. A function qualifies for First Amendment protection only if it is inherently expressive. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. , 515 U.S. 557 , 568 (1995). Even for a prototypical social-media feed, making this determination involves more than meets the eye. Consider, for instance, how platforms use algorithms to prioritize and remove content on their feeds. Assume that human beings decide to remove posts promoting a particular political candidate or advocating some position on a public-health issue. If they create an algorithm to help them identify and delete that content, the First Amendment protects their exercise of editorial judgment—even if the algorithm does most of the deleting without a person in the loop. In that event, the algorithm would simply implement human beings’ inherently expressive choice “to exclude a message [they] did not like from” their speech compilation. Id. , at 574. But what if a platform’s algorithm just presents automatically to each user whatever the algorithm thinks the user will like— e . g ., content similar to posts with which the user previously engaged? See ante , at 22, n. 5. The First Amendment implications of the Florida and Texas laws might be different for that kind of algorithm. And what about AI, which is rapidly evolving? What if a platform’s owners hand the reins to an AI tool and ask it simply to remove “hateful” content? If the AI relies on large language models to determine what is “hateful” and should be removed, has a human being with First Amendment rights made an inherently expressive “choice . . . not to propound a particular point of view”? Hurley , 515 U. S., at 575. In other words, technology may attenuate the connection between content-moderation actions ( e . g ., removing posts) and human beings’ constitutionally protected right to “ decide for [themselves] the ideas and beliefs deserving of expression, consideration, and adherence.” Turner Broadcasting System, Inc. v. FCC , 512 U.S. 622 , 641 (1994) (emphasis added). So the way platforms use this sort of technology might have constitutional significance. There can be other complexities too. For example, the corporate structure and ownership of some platforms may be relevant to the constitutional analysis. A speaker’s right to “decide ‘what not to say’ ” is “enjoyed by business corporations generally.” Hurley , 515 U. S., at 573–574 (quoting Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal. , 475 U.S. 1 , 16 (1986)). Corporations, which are composed of human beings with First Amendment rights, possess First Amendment rights themselves. See Citizens United v. Federal Election Comm’n , 558 U.S. 310 , 365 (2010); cf. Burwell v. Hobby Lobby Stores, Inc. , 573 U.S. 682 , 706–707 (2014). But foreign persons and corporations located abroad do not. Agency for Int’l Development v. Alliance for Open Society Int’l, Inc. , 591 U.S. 430, 433–436 (2020). So a social-media platform’s foreign ownership and control over its content-moderation decisions might affect whether laws overriding those decisions trigger First Amendment scrutiny. What if the platform’s corporate leadership abroad makes the policy decisions about the viewpoints and content the platform will disseminate? Would it matter that the corporation employs Americans to develop and implement content- moderation algorithms if they do so at the direction of foreign executives? Courts may need to confront such questions when applying the First Amendment to certain platforms. These are just a few examples of questions that might arise in litigation that more thoroughly exposes the relevant facts about particular social-media platforms and functions. The answers in any given case might cast doubt on—or might vindicate—a social-media company’s invocation of its First Amendment rights. Regardless, the analysis is bound to be fact intensive, and it will surely vary from function to function and platform to platform. And in a facial challenge, answering all of those questions isn’t even the end of the story: The court must then find a way to measure the unconstitutional relative to the constitutional applications to determine whether the law “prohibits a substantial amount of protected speech relative to its plainly legitimate sweep.” United States v. Hansen , 599 U.S. 762, 770 (2023) (internal quotation marks omitted). A facial challenge to either of these laws likely forces a court to bite off more than it can chew. An as-applied challenge, by contrast, would enable courts to home in on whether and how specific functions—like feeds versus direct messaging—are inherently expressive and answer platform- and function-specific questions that might bear on the First Amendment analysis. While the governing constitutional principles are straightforward, applying them in one fell swoop to the entire social-media universe is not.

The Supreme Court's decision addresses the complex and evolving nature of social media platforms and their impact on public policy and communication. The Court acknowledges the need for legislative and agency responses to the challenges posed by these platforms while also emphasizing the role of courts in protecting the free speech rights of these entities. The Court suggests that social media platforms engage in expressive activities and possess First Amendment rights, but the extent of these rights depends on various factors, including the platform's functions, corporate structure, and ownership. The Court highlights the complexity of applying the First Amendment to social media platforms, especially in a facial challenge, and suggests that an as-applied challenge would be more appropriate to address specific functions and platform-related questions. The Court concludes that while the governing constitutional principles are clear, their application to the diverse and dynamic social media landscape is challenging and requires a fact-intensive analysis.

Equal Protection

Missouri ex rel. Gaines v. Canada

https://supreme.justia.com/cases/federal/us/305/337/

U.S. Supreme Court Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) Missouri ex rel. Gaines v. Canada No. 57 Argued November 9, 1938 Decided December 12, 1938 305 U.S. 337 CERTIORARI TO THE SUPREME COURT OF MISSOURI Syllabus 1. The State of Missouri provides separate schools and universities for whites and negroes. At the state university, attended by whites, there is a course in law; at the Lincoln University, attended by negroes, there is as yet none, but it is the duty of the curators of that institution to establish one there whenever in their opinion this shall be necessary and practicable, and pending such development, they are authorized to arrange for legal education of Missouri negroes, and to pay the tuition charges therefor, at law schools in adjacent States where negroes are accepted and where the training is equal to that obtainable at the Missouri State University. Pursuant to the State's policy of separating the races in its educational institutions, the curators of the state university refused to admit a negro as a student in the law school there because of his race; whereupon he sought a mandamus, in the state courts, which was denied. Held: (1) That inasmuch as the curators of the state university represented the State, in carrying out its policy, their action in denying the negro admission to the law school was state action within the meaning of the Fourteenth Amendment. P. 305 U. S. 343 . (2) The action of the State in furnishing legal education within the State to whites while not furnishing legal education within the State to negroes was a discrimination repugnant to the Fourteenth Amendment. P. 305 U. S. 344 . If a State furnishes higher education to white residents, it is bound to furnish substantially equal advantages to negro residents, though not necessarily in the same schools. (3) The unconstitutional discrimination is not avoided by the purpose of the State to establish a law school for negroes whenever necessary and practicable in the opinion of the curators of the University provided for negroes. P. 305 U. S. 346 . (4) Nor are the requirements of the equal protection clause satisfied by the opportunities afforded by Missouri to its negro citizens for legal education in other States. P. 305 U. S. 348 . The basic consideration here is not as to what sort of opportunities other States provide, or whether they are as good as those Page 305 U. S. 338 in Missouri, but as to what opportunities Missouri itself furnishes to white students and denies to negroes solely upon the ground of color. The admissibility of laws separating the races in the enjoyment of privileges afforded by the State rests wholly upon the equality of the privileges which the laws give to the separated groups within the State. By the operation of the laws of Missouri, a privilege has been created for white law students which is denied to negroes by reason of their race. The white resident is afforded legal education within the State; the negro resident having the same qualifications is refused it there, and must go outside the State to obtain it. That is a denial of the equality of legal right to the enjoyment of the privilege which the State has set up, and the provision for the payment of tuition fees in another State does not remove the discrimination. P. 305 U. S. 348 . (5) The obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. It is there that the equality of legal right must be maintained. That obligation is imposed by the Constitution upon the States severally as governmental entities each responsible for its own laws establishing the rights and duties of persons within its borders. P. 305 U. S. 350 . (6) The fact that there is but a limited demand in Missouri for the legal education of negroes does not excuse the discrimination in favor of whites. P. 305 U. S. 350 . (7) Inasmuch as the discrimination may last indefinitely -- so long as the curators find it unnecessary and impracticable to provide facilities for the legal education of negroes within the State, the alternative of attendance at law schools in other States being provided meanwhile -- it cannot be excused as a temporary discrimination. P. 305 U. S. 351 . 2. The state court decided this case upon the merits of the federal question, and not upon the propriety of remedy by mandamus. P. 305 U. S. 352 . 342 Mo. 121; 113 S.W.2d 783, reversed. CERTIORARI, post, p. 580, to review a judgment affirming denial of a writ of mandamus. Page 305 U. S. 342 MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court. Petitioner Lloyd Gaines, a negro, was refused admission to the School of Law at the State University of Missouri. Asserting that this refusal constituted a denial by the State of the equal protection of the laws in violation of the Fourteenth Amendment of the Federal Constitution, petitioner brought this action for mandamus to compel the curators of the University to admit him. On final hearing, an alternative writ was quashed and a peremptory writ was denied by the Circuit Court. The Supreme Court of the State affirmed the judgment. 113 S.W.2d 783. We granted certiorari, October 10, 1938. Petitioner is a citizen of Missouri. In August, 1935, he was graduated with the degree of Bachelor of Arts at the Lincoln University, an institution maintained by the State of Missouri for the higher education of negroes. That University has no law school. Upon the filing of his application for admission to the law school of the University of Missouri, the registrar advised him to communicate with the president of Lincoln University, and the latter directed petitioner's attention to § 9622 of the Revised Statutes of Missouri (1929), providing as follows: "Sec. 9622. May arrange for attendance at university of any adjacent state -- Tuition fees. -- Pending the full development of the Lincoln university, the board of Page 305 U. S. 343 curators shall have the authority to arrange for the attendance of negro residents of the state of Missouri at the university of any adjacent state to take any course or to study any subjects provided for at the state university of Missouri, and which are not taught at the Lincoln university and to pay the reasonable tuition fees for such attendance; provided that, whenever the board of curators deem it advisable, they shall have the power to open any necessary school or department. (Laws 1921, p. 86, § 7.)" Petitioner was advised to apply to the State Superintendent of Schools for aid under that statute. It was admitted on the trial that petitioner's "work and credits at the Lincoln University would qualify him for admission to the School of Law of the University of Missouri if he were found otherwise eligible." He was refused admission upon the ground that it was "contrary to the constitution, laws and public policy of the State to admit a negro as a student in the University of Missouri." It appears that there are schools of law in connection with the state universities of four adjacent States, Kansas, Nebraska, Iowa and Illinois, where nonresident negroes are admitted. The clear and definite conclusions of the state court in construing the pertinent state legislation narrow the issue. The action of the curators, who are representatives of the State in the management of the state university (R.S.Mo. § 9625), must be regarded as state action. [ Footnote 1 ] The state constitution provides that separate free public schools shall be established for the education of children of African descent (Art. XI, § 3), and, by statute, separate high school facilities are supplied for colored students equal to those provided for white students (R.S.Mo. Page 305 U. S. 344 §§ 9346-9349). While there is no express constitutional provision requiring that the white and negro races be separated for the purpose of higher education, the state court, on a comprehensive review of the state statutes, held that it was intended to separate the white and negro races for that purpose also. Referring in particular to Lincoln University, the court deemed it to be clear "that the Legislature intended to bring the Lincoln University up to the standard of the University of Missouri, and give to the whites and negroes an equal opportunity for higher education -- the whites at the University of Missouri, and the negroes at Lincoln University." Further, the court concluded that the provisions of § 9622 (above-quoted) to the effect that negro residents "may attend the university of any adjacent State with their tuition paid, pending the full development of Lincoln University," made it evident "that the Legislature did not intend that negroes and whites should attend the same university in this State." In that view, it necessarily followed that the curators of the University of Missouri acted in accordance with the policy of the State in denying petitioner admission to its School of Law upon the sole ground of his race. In answering petitioner's contention that this discrimination constituted a denial of his constitutional right, the state court has fully recognized the obligation of the State to provide negroes with advantages for higher education substantially equal to the advantages afforded to white students. The State has sought to fulfill that obligation by furnishing equal facilities in separate schools, a method the validity of which has been sustained by our decisions. Plessy v. Ferguson, 163 U. S. 537 , 163 U. S. 544 ; McCabe v. Atchison, T. & S.F. Ry. Co., 235 U. S. 151 , 235 U. S. 160 ; Gong Lum v. Rice, 275 U. S. 78 , 275 U. S. 85 , 275 U. S. 86 . Compare Cumming v. Board of Education, 175 U. S. 528 , 175 U. S. 544 , 175 U. S. 545 . Respondents' counsel have appropriately emphasized the special Page 305 U. S. 345 solicitude of the State for the higher education of negroes as shown in the establishment of Lincoln University, a state institution well conducted on a plane with the University of Missouri so far as the offered courses are concerned. It is said that Missouri is a pioneer in that field and is the only State in the Union which has established a separate university for negroes on the same basis as the state university for white students. But, commendable as is that action, the fact remains that instruction in law for negroes is not now afforded by the State, either at Lincoln University or elsewhere within the State, and that the State excludes negroes from the advantages of the law school it has established at the University of Missouri. It is manifest that this discrimination, if not relieved by the provisions we shall presently discuss, would constitute a denial of equal protection. That was the conclusion of the Court of Appeals of Maryland in circumstances substantially similar in that aspect. University of Maryland v. Murray, 169 Md. 478, 182 A. 590. It there appeared that the State of Maryland had "undertaken the function of education in the law," but had "omitted students of one race from the only adequate provision made for it, and omitted them solely because of their color"; that, if those students were to be offered "equal treatment in the performance of the function, they must, at present, be admitted to the one school provided." Id., p. 489. A provision for scholarships to enable negroes to attend colleges outside the State, mainly for the purpose of professional studies, was found to be inadequate ( Id. pp. 485, 486), and the question "whether with aid in any amount it is sufficient to send the negroes outside the State for legal education" the Court of Appeals found it unnecessary to discuss. Accordingly, a writ of mandamus to admit the applicant was issued to the officers and Page 305 U. S. 346 regents of the University of Maryland as the agents of the State entrusted with the conduct of that institution. The Supreme Court of Missouri in the instant case has distinguished the decision in Maryland upon the grounds -- (1) that, in Missouri, but not in Maryland, there is "a legislative declaration of a purpose to establish a law school for negroes at Lincoln University whenever necessary or practical", and (2) that, "pending the establishment of such a school, adequate provision has been made for the legal education of negro students in recognized schools outside of this State." 113 S.W.2d p. 791. As to the first ground, it appears that the policy of establishing a law school at Lincoln University has not yet ripened into an actual establishment, and it cannot be said that a mere declaration of purpose, still unfulfilled, is enough. The provision for legal education at Lincoln is at present entirely lacking. Respondents' counsel urge that, if, on the date when petitioner applied for admission to the University of Missouri, he had instead applied to the curators of Lincoln University, it would have been their duty to establish a law school; that this "agency of the State," to which he should have applied, was "specifically charged with the mandatory duty to furnish him what he seeks." We do not read the opinion of the Supreme Court as construing the state statute to impose such a "mandatory duty" as the argument seems to assert. The state court quoted the language of § 9618, R.S.Mo.1929, set forth in the margin, [ Footnote 2 ] making it the mandatory Page 305 U. S. 347 duty of the board of curators to establish a law school in Lincoln University "whenever necessary and practicable in their opinion." This qualification of their duty, explicitly stated in the statute, manifestly leaves it to the judgment of the curators to decide when it will be necessary and practicable to establish a law school, and the state court so construed the statute. Emphasizing the discretion of the curators, the court said: "The statute was enacted in 1921. Since its enactment, no negro, not even appellant, has applied to Lincoln University for a law education. This fact demonstrates the wisdom of the legislature in leaving it to the judgment of the board of curators to determine when it would be necessary or practicable to establish a law school for negroes at Lincoln University. Pending that time, adequate provision is made for the legal education of negroes in the university of some adjacent State, as heretofore pointed out." 113 S.W.2d p. 791. The state court has not held that it would have been the duty of the curators to establish a law school at Lincoln University for the petitioner on his application. Their duty, as the court defined it, would have been either to supply a law school at Lincoln University as provided in § 9618 or to furnish him the opportunity to obtain his legal training in another State, as provided in § 9622 Thus, the law left the curators free to adopt the latter course. The state court has not ruled or intimated that their failure or refusal to establish a law school for a very few students, still less for one student, would have been an abuse of the discretion with which the curators were entrusted. And, apparently, it was because of that discretion, Page 305 U. S. 348 and of the postponement which its exercise in accordance with the terms of the statute would entail until necessity and practicability appeared, that the state court considered and upheld as adequate the provision for the legal education of negroes, who were citizens of Missouri, in the universities of adjacent States. We may put on one side respondent's contention that there were funds available at Lincoln University for the creation of a law department and the suggestions with respect to the number of instructors who would be needed for that purpose and the cost of supplying them. The president of Lincoln University did not advert to the existence or prospective use of funds for that purpose when he advised petitioner to apply to the State Superintendent of Schools for aid under § 9622. At best, the evidence to which argument as to available funds is addressed admits of conflicting inferences, and the decision of the state court did not hinge on any such matter. In the light of its ruling, we must regard the question whether the provision for the legal education in other States of negroes resident in Missouri is sufficient to satisfy the constitutional requirement of equal protection as the pivot upon which this case turns. The state court stresses the advantages that are afforded by the law schools of the adjacent States -- Kansas, Nebraska, Iowa and Illinois -- which admit nonresident negroes. The court considered that these were schools of high standing where one desiring to practice law in Missouri can get "as sound, comprehensive, valuable legal education" as in the University of Missouri; that the system of education in the former is the same as that in the latter, and is designed to give the students a basis for the practice of law in any State where the Anglo-American system of law obtains; that the law school of the University of Missouri does not specialize in Missouri law, and that the course of study and the case books used Page 305 U. S. 349 in the five schools are substantially identical. Petitioner insists that, for one intending to practice in Missouri, there are special advantages in attending a law school there, both in relation to the opportunities for the particular study of Missouri law and for the observation of the local courts [ Footnote 3 ] and also in view of the prestige of the Missouri law school among the citizens of the State, his prospective clients. Proceeding with its examination of relative advantages, the state court found that the difference in distances to be traveled afforded no substantial ground of complaint, and that there was an adequate appropriation to meet the full tuition fees which petitioner would have to pay. We think that these matters are beside the point. The basic consideration is not as to what sort of opportunities other States provide, or whether they are as good as those in Missouri, but as to what opportunities Missouri itself furnishes to white students and denies to negroes solely upon the ground of color. The admissibility of laws separating the races in the enjoyment of privileges afforded by the State rests wholly upon the equality of the privileges which the laws give to the separated groups within the State. The question here is not of a duty of the State to supply legal training, or of the quality of the training which it does supply, but of its duty when it provides such training to furnish it to the residents of the State upon the basis of an equality of right. By the operation of the laws of Missouri, a privilege has been created for white law students which is denied to negroes by reason of their race. The white resident is afforded legal education within the State; the negro resident having the same qualifications is refused it there, and must go outside the State to obtain it. That is a denial of the equality of legal right to the enjoyment of the privilege Page 305 U. S. 350 which the State has set up, and the provision for the payment of tuition fees in another State does not remove the discrimination. The equal protection of the laws is "a pledge of the protection of equal laws." Yick Wo v. Hopkins, 118 U. S. 356 , 118 U. S. 369 . Manifestly, the obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. It is there that the equality of legal right must be maintained. That obligation is imposed by the Constitution upon the States severally as governmental entities -- each responsible for its own laws establishing the rights and duties of persons within its borders. It is an obligation the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do. That separate responsibility of each State within its own sphere is of the essence of statehood maintained under our dual system. It seems to be implicit in respondents' argument that, if other States did not provide courses for legal education, it would nevertheless be the constitutional duty of Missouri, when it supplied such courses for white students, to make equivalent provision for negroes. But that plain duty would exist because it rested upon the State independently of the action of other States. We find it impossible to conclude that what otherwise would be an unconstitutional discrimination, with respect to the legal right to the enjoyment of opportunities within the State, can be justified by requiring resort to opportunities elsewhere. That resort may mitigate the inconvenience of the discrimination, but cannot serve to validate it. Nor can we regard the fact that there is but a limited demand in Missouri for the legal education of negroes as excusing the discrimination in favor of whites. We had occasion to consider a cognate question in the case Page 305 U. S. 351 of McCabe v. Atchison, T. & S.F. Ry. Co., supra. There, the argument was advanced, in relation to the provision by a carrier of sleeping cars, dining, and chair cars, that the limited demand by negroes justified the State in permitting the furnishing of such accommodations exclusively for white persons. We found that argument to be without merit. It made, we said, the constitutional right "depend upon the number of persons who may be discriminated against, whereas the essence of the constitutional right is that it is a personal one. Whether or not particular facilities shall be provided may doubtless be conditioned upon there being a reasonable demand therefor, but, if facilities are provided, substantial equality of treatment of persons traveling under like conditions cannot be refused. It is the individual who is entitled to the equal protection of the laws, and if he is denied by a common carrier, acting in the matter under the authority of a state law, a facility or convenience in the course of his journey which under substantially the same circumstances is furnished to another traveler, he may properly complain that his constitutional privilege has been invaded." Id. pp. 235 U. S. 161 , 235 U. S. 162 . Here, petitioner's right was a personal one. It was as an individual that he was entitled to the equal protection of the laws, and the State was bound to furnish him within its borders facilities for legal education substantially equal to those which the State there afforded for persons of the white race, whether or not other negroes sought the same opportunity. It is urged, however, that the provision for tuition outside the State is a temporary one -- that it is intended to operate merely pending the establishment of a law department for negroes at Lincoln University. While, in that sense, the discrimination may be termed temporary, it may nevertheless continue for an indefinite period by reason of the discretion given to the curators of Lincoln Page 305 U. S. 352 University and the alternative of arranging for tuition in other States, as permitted by the state law as construed by the state court, so long as the curators find it unnecessary and impracticable to provide facilities for the legal instruction of negroes within the State. In that view, we cannot regard the discrimination as excused by what is called its temporary character. We do not find that the decision of the state court turns on any procedural question. The action was for mandamus, but it does not appear that the remedy would have been deemed inappropriate if the asserted federal right had been sustained. In that situation, the remedy by mandamus was found to be a proper one in University of Maryland v. Murray, supra. In the instant case, the state court did note that petitioner had not applied to the management of Lincoln University for legal training. But, as we have said, the state court did not rule that it would have been the duty of the curators to grant such an application, but, on the contrary, took the view, as we understand it, that the curators were entitled under the state law to refuse such an application and, in its stead, to provide for petitioner's tuition in an adjacent State. That conclusion presented the federal question as to the constitutional adequacy of such a provision while equal opportunity for legal training within the State was not furnished, and this federal question the state court entertained and passed upon. We must conclude that, in so doing, the court denied the federal right which petitioner set up and the question as to the correctness of that decision is before us. We are of the opinion that the ruling was error, and that petitioner was entitled to be admitted to the law school of the State University in the absence of other and proper provision for his legal training within the State. The judgment of the Supreme Court of Missouri is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. Reversed. Page 305 U. S. 353 [ Footnote 1 ] Ex parte Virginia, 100 U. S. 339 , 100 U. S. 346 , 347; Neal v. Delaware, 103 U. S. 370 , 103 U. S. 397 ; Carter v. Texas, 177 U. S. 442 , 177 U. S. 447 ; Norris v. Alabama, 294 U. S. 587 , 294 U. S. 589 . [ Footnote 2 ] Section 9618, R.S.Mo.1929, is as follows: "Sec. 9618. Board of curators authorized to reorganize. -- The board of curators of the Lincoln university shall be authorized and required to reorganize said institution so that it shall afford to the negro people of the state opportunity for training up to the standard furnished at the state university of Missouri whenever necessary and practicable in their opinion. To this end the board of curators shall be authorized to purchase necessary additional land, erect necessary additional buildings, to provide necessary additional equipment, and to locate, in the county of Cole the respective units of the university where, in their opinion, the various schools will most effectively promote the purposes of this article. (Laws of 1921, p. 86, § 3.)" [ Footnote 3 ] See University of Maryland v. Murray, 169 Md. 478, 486. Separate opinion of MR. JUSTICE McREYNOLDS. Considering the disclosures of the record, the Supreme Court of Missouri arrived at a tenable conclusion, and its judgment should be affirmed. That court well understood the grave difficulties of the situation, and rightly refused to upset the settled legislative policy of the State by directing a mandamus. In Cummming v. Richmond County Board of Education, 175 U. S. 528 , 175 U. S. 545 , this Court, through Mr. Justice Harlan, declared: "The education of the people in schools maintained by state taxation is a matter belonging to the respective States, and any interference on the part of Federal authority with the management of such schools cannot be justified except in the case of a clear and unmistakable disregard of rights secured by the supreme law of the land." Gong Lum v. Rice, 275 U. S. 78 , 275 U. S. 85 -- opinion by Mr. Chief Justice Taft -- asserts: "The right and power of the state to regulate the method of providing for the education of its youth at public expense is clear." For a long time, Missouri has acted upon the view that the best interest of her people demands separation of whites and negroes in schools. Under the opinion just announced, I presume she may abandon her law school, and thereby disadvantage her white citizens without improving petitioner's opportunities for legal instruction; or she may break down the settled practice concerning separate schools and thereby, as indicated by experience, damnify both races. Whether by some other course it may be possible for her to avoid condemnation is matter for conjecture. The State has offered to provide the negro petitioner opportunity for study of the law -- if perchance that is the thing really desired -- by paying his tuition at some nearby school of good standing. This is far from unmistakable disregard of his rights, and, in the circumstances, Page 305 U. S. 354 is enough to satisfy any reasonable demand for specialized training. It appears that never before has a negro applied for admission to the Law School, and none has ever asked that Lincoln University provide legal instruction. The problem presented obviously is a difficult and highly practical one. A fair effort to solve it has been made by offering adequate opportunity for study when sought in good faith. The State should not be unduly hampered through theorization inadequately restrained by experience. This proceeding commenced in April, 1936. Petitioner, then twenty-four years old, asked mandamus to compel his admission to the University in September, 1936, notwithstanding plain legislative inhibition. Mandamus is not a writ of right, but is granted only in the court's discretion upon consideration of all the circumstances. Duncan Townsite Co. v. Lane, 245 U. S. 308 , 245 U. S. 311 ; United States ex rel. Arant v. Lane, 249 U. S. 367 , 249 U. S. 371 . The Supreme Court of Missouri did not consider the propriety of granting the writ under the theory of the law now accepted here. That, of course, will be matter open for its consideration upon return of the cause.

In Missouri ex rel. Gaines v. Canada, the U.S. Supreme Court ruled that Missouri's policy of providing separate schools for whites and negroes was unconstitutional under the Fourteenth Amendment. The Court held that if a state provides higher education to white residents, it must also provide substantially equal advantages to negro residents, even if they are not in the same schools. The Court found that Missouri's denial of admission to a negro student at the state university's law school solely based on race was state action and violated the equal protection clause. The Court also rejected the state's argument that its plans to establish a law school for negroes or its offer to pay tuition for negro students to study law in other states satisfied the requirements of the Fourteenth Amendment.

Equal Protection

Plessy v. Ferguson

https://supreme.justia.com/cases/federal/us/163/537/

U.S. Supreme Court Plessy v. Ferguson, 163 U.S. 537 (1896) Plessy v. Ferguson No. 210 Argued April 18, 1896 Decided May 18, 1896 163 U.S. 537 ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA Syllabus The statute of Louisiana, acts of 1890, c. 111, requiring railway companies carrying passengers in their coaches in that State, to provide equal, but separate, accommodations for the white and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations; and providing that no person shall be permitted to occupy seats in coaches other than the ones assigned to them, on account Page 163 U. S. 538 of the race they belong to; and requiring the officer of the passenger train to assign each passenger to the coach or compartment assigned for the race to which he or she belong; and imposing fines or imprisonment upon passengers insisting on going into a coach or compartment other than the one set aide for the race to which he or she belongs; and conferring upon officers of the train power to refuse to carry on the train passengers refusing to occupy the coach or compartment assigned to them, and exempting the railway company from liability for such refusal, are not in conflict with the provisions either of the Thirteenth Amendment or of the Fourteenth Amendment to the Constitution of the United States. This was a petition for writs of prohibition and certiorari, originally filed in the Supreme Court of the State by Plessy, the plaintiff in error, against the Hon. John H. Ferguson, judge of the criminal District Court for the parish of Orleans, and setting forth in substance the following facts: That petitioner was a citizen of the United States and a resident of the State of Louisiana, of mixed descent, in the proportion of seven eighths Caucasian and one eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege and immunity secured to the citizens of the United States of the white race by its Constitution and laws; that, on June 7, 1892, he engaged and paid for a first class passage on the East Louisiana Railway from New Orleans to Covington, in the same State, and thereupon entered a passenger train, and took possession of a vacant seat in a coach where passengers of the white race were accommodated; that such railroad company was incorporated by the laws of Louisiana as a common carrier, and was not authorized to distinguish between citizens according to their race. But, notwithstanding this, petitioner was required by the conductor, under penalty of ejection from said train and imprisonment, to vacate said coach and occupy another seat in a coach assigned by said company for persons not of the white race, and for no other reason than that petitioner was of the colored race; that, upon petitioner's refusal to comply with such order, he was, with the aid of a police officer, forcibly ejected from said coach and hurried off to and imprisoned in the parish jail of Page 163 U. S. 539 New Orleans, and there held to answer a charge made by such officer to the effect that he was guilty of having criminally violated an act of the General Assembly of the State, approved July 10, 1890, in such case made and provided. That petitioner was subsequently brought before the recorder of the city for preliminary examination and committed for trial to the criminal District Court for the parish of Orleans, where an information was filed against him in the matter above set forth, for a violation of the above act, which act the petitioner affirmed to be null and void, because in conflict with the Constitution of the United States; that petitioner interposed a plea to such information based upon the unconstitutionality of the act of the General Assembly, to which the district attorney, on behalf of the State, filed a demurrer; that, upon issue being joined upon such demurrer and plea, the court sustained the demurrer, overruled the plea, and ordered petitioner to plead over to the facts set forth in the information, and that, unless the judge of the said court be enjoined by a writ of prohibition from further proceeding in such case, the court will proceed to fine and sentence petitioner to imprisonment, and thus deprive him of his constitutional rights set forth in his said plea, notwithstanding the unconstitutionality of the act under which he was being prosecuted; that no appeal lay from such sentence, and petitioner was without relief or remedy except by writs of prohibition and certiorari. Copies of the information and other proceedings in the criminal District Court were annexed to the petition as an exhibit. Upon the filing of this petition, an order was issued upon the respondent to show cause why a writ of prohibition should not issue and be made perpetual, and a further order that the record of the proceedings had in the criminal cause be certified and transmitted to the Supreme Court. To this order the respondent made answer, transmitting a certified copy of the proceedings, asserting the constitutionality of the law, and averring that, instead of pleading or admitting that he belonged to the colored race, the said Plessy declined and refused, either by pleading or otherwise, to admit Page 163 U. S. 540 that he was in any sense or in any proportion a colored man. The case coming on for a hearing before the Supreme Court, that court was of opinion that the law under which the prosecution was had was constitutional, and denied the relief prayed for by the petitioner. Ex parte Plessy, 45 La.Ann. 80. Whereupon petitioner prayed for a writ of error from this court, which was allowed by the Chief Justice of the Supreme Court of Louisiana. MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court. This case turns upon the constitutionality of an act of the General Assembly of the State of Louisiana, passed in 1890, providing for separate railway carriages for the white and colored races. Acts 1890, No. 111, p. 152. The first section of the statute enacts "that all railway companies carrying passengers in their coaches in this State shall provide equal but separate accommodations for the white and colored races by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations: Provided, That this section shall not be construed to apply to street railroads. No person or persons, shall be admitted to occupy seats in coaches other than the ones assigned to them on account of the race they belong to." By the second section, it was enacted "that the officers of such passenger trains shall have power and are hereby required Page 163 U. S. 541 to assign each passenger to the coach or compartment used for the race to which such passenger belongs; any passenger insisting on going into a coach or compartment to which by race he does not belong shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison, and any officer of any railroad insisting on assigning a passenger to a coach or compartment other than the one set aside for the race to which said passenger belongs shall be liable to a fine of twenty-five dollars, or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison; and should any passenger refuse to occupy the coach or compartment to which he or she is assigned by the officer of such railway, said officer shall have power to refuse to carry such passenger on his train, and for such refusal neither he nor the railway company which he represents shall be liable for damages in any of the courts of this State." The third section provides penalties for the refusal or neglect of the officers, directors, conductors, and employees of railway companies to comply with the act, with a proviso that "nothing in this act shall be construed as applying to nurses attending children of the other race." The fourth section is immaterial. The information filed in the criminal District Court charged in substance that Plessy, being a passenger between two stations within the State of Louisiana, was assigned by officers of the company to the coach used for the race to which he belonged, but he insisted upon going into a coach used by the race to which he did not belong. Neither in the information nor plea was his particular race or color averred. The petition for the writ of prohibition averred that petitioner was seven-eighths Caucasian and one eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every right, privilege and immunity secured to citizens of the United States of the white race; and that, upon such theory, he took possession of a vacant seat in a coach where passengers of the white race were accommodated, and was ordered by the conductor to vacate Page 163 U. S. 542 said coach and take a seat in another assigned to persons of the colored race, and, having refused to comply with such demand, he was forcibly ejected with the aid of a police officer, and imprisoned in the parish jail to answer a charge of having violated the above act. The constitutionality of this act is attacked upon the ground that it conflicts both with the Thirteenth Amendment of the Constitution, abolishing slavery, and the Fourteenth Amendment, which prohibits certain restrictive legislation on the part of the States. 1. That it does not conflict with the Thirteenth Amendment, which abolished slavery and involuntary servitude, except as a punishment for crime, is too clear for argument. Slavery implies involuntary servitude -- a state of bondage; the ownership of mankind as a chattel, or at least the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property and services. This amendment was said in the Slaughterhouse Cases , 16 Wall. 36, to have been intended primarily to abolish slavery as it had been previously known in this country, and that it equally forbade Mexican peonage or the Chinese coolie trade when they amounted to slavery or involuntary servitude, and that the use of the word "servitude" was intended to prohibit the use of all forms of involuntary slavery, of whatever class or name. It was intimated, however, in that case that this amendment was regarded by the statesmen of that day as insufficient to protect the colored race from certain laws which had been enacted in the Southern States, imposing upon the colored race onerous disabilities and burdens and curtailing their rights in the pursuit of life, liberty and property to such an extent that their freedom was of little value; and that the Fourteenth Amendment was devised to meet this exigency. So, too, in the Civil Rights Cases, 109 U. S. 3 , 109 U. S. 24 , it was said that the act of a mere individual, the owner of an inn, a public conveyance or place of amusement, refusing accommodations to colored people cannot be justly regarded as imposing any badge of slavery or servitude upon the applicant, but Page 163 U. S. 543 only as involving an ordinary civil injury, properly cognizable by the laws of the State and presumably subject to redress by those laws until the contrary appears. "It would be running the slavery argument into the ground," said Mr. Justice Bradley, "to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theatre, or deal with in other matters of intercourse or business." A statute which implies merely a legal distinction between the white and colored races -- a distinction which is founded in the color of the two races and which must always exist so long as white men are distinguished from the other race by color -- has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude. Indeed, we do not understand that the Thirteenth Amendment is strenuously relied upon by the plaintiff in error in this connection. 2. By the Fourteenth Amendment, all persons born or naturalized in the United States and subject to the jurisdiction thereof are made citizens of the United States and of the State wherein they reside, and the States are forbidden from making or enforcing any law which shall abridge the privileges or immunities of citizens of the United States, or shall deprive any person of life, liberty, or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws. The proper construction of this amendment was first called to the attention of this court in the Slaughterhouse Cases , 16 Wall. 36, which involved, however, not a question of race, but one of exclusive privileges. The case did not call for any expression of opinion as to the exact rights it was intended to secure to the colored race, but it was said generally that its main purpose was to establish the citizenship of the negro, to give definitions of citizenship of the United States and of the States, and to protect from the hostile legislation of the States the privileges and immunities of citizens of the United States, as distinguished from those of citizens of the States. Page 163 U. S. 544 The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which has been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced. One of the earliest of these cases is that of Roberts v. City of Boston, 5 Cush. 19, in which the Supreme Judicial Court of Massachusetts held that the general school committee of Boston had power to make provision for the instruction of colored children in separate schools established exclusively for them, and to prohibit their attendance upon the other schools. "The great principle," said Chief Justice Shaw, p. 206, "advanced by the learned and eloquent advocate for the plaintiff" (Mr. Charles Sumner), "is that, by the constitution and laws of Massachusetts, all persons without distinction of age or sex, birth or color, origin or condition, are equal before the law. . . . But when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment, but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law for their maintenance and security." It was held that the powers of the committee extended to the establishment Page 163 U. S. 545 of separate schools for children of different ages, sexes and colors, and that they might also establish special schools for poor and neglected children, who have become too old to attend the primary school and yet have not acquired the rudiments of learning to enable them to enter the ordinary schools. Similar laws have been enacted by Congress under its general power of legislation over the District of Columbia, Rev.Stat.D.C. §§ 281, 282, 283, 310, 319, as well as by the legislatures of many of the States, and have been generally, if not uniformly, sustained by the courts. State v. McCann, 21 Ohio St. 198; Lehew v. Brummell, 15 S.W.Rep. 765; Ward v. Flood, 48 California 36; Bertonneau v. School Directors, 3 Woods 177; People v. Gallagher, 93 N.Y. 438; Cory v. Carter, 48 Indiana 897; Dawson v. Lee, 3 Kentucky 49. Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the State. State v. Gibson, 36 Indiana 389. The distinction between laws interfering with the political equality of the negro and those requiring the separation of the two races in schools, theatres and railway carriages has been frequently drawn by this court. Thus, in Strauder v. West Virginia, 100 U. S. 303 , it was held that a law of West Virginia limiting to white male persons, 21 years of age and citizens of the State, the right to sit upon juries was a discrimination which implied a legal inferiority in civil society, which lessened the security of the right of the colored race, and was a step toward reducing them to a condition of servility. Indeed, the right of a colored man that, in the selection of jurors to pass upon his life, liberty and property, there shall be no exclusion of his race and no discrimination against them because of color has been asserted in a number of cases. Virginia v. Rives, 100 U. S. 313 ; Neal v. Delaware, 103 U. S. 370 ; Bush v. Kentucky, 107 U. S. 110 ; Gibson v. Mississippi, 162 U. S. 565 . So, where the laws of a particular locality or the charter of a particular railway corporation has provided that no person shall be excluded from the cars on account of Page 163 U. S. 546 color, we have held that this meant that persons of color should travel in the same car as white ones, and that the enactment was not satisfied by the company's providing cars assigned exclusively to people of color, though they were as good as those which they assigned exclusively to white persons. Railroad Company v. Brown , 17 Wall. 445. Upon the other hand, where a statute of Louisiana required those engaged in the transportation of passengers among the States to give to all persons traveling within that State, upon vessels employed in that business, equal rights and privileges in all parts of the vessel, without distinction on account of race or color, and subjected to an action for damages the owner of such a vessel, who excluded colored passengers on account of their color from the cabin set aside by him for the use of whites, it was held to be, so far as it applied to interstate commerce, unconstitutional and void. Hall v. De Cuir, 95 U. S. 48 . The court in this case, however, expressly disclaimed that it had anything whatever to do with the statute as a regulation of internal commerce, or affecting anything else than commerce among the States. In the Civil Rights Case, 109 U. S. 3 , it was held that an act of Congress entitling all persons within the jurisdiction of the United States to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, public conveyances, on land or water, theatres and other places of public amusement, and made applicable to citizens of every race and color, regardless of any previous condition of servitude, was unconstitutional and void upon the ground that the Fourteenth Amendment was prohibitory upon the States only, and the legislation authorized to be adopted by Congress for enforcing it was not direct legislation on matters respecting which the States were prohibited from making or enforcing certain laws, or doing certain acts, but was corrective legislation such as might be necessary or proper for counteracting and redressing the effect of such laws or acts. In delivering the opinion of the court, Mr. Justice Bradley observed that the Fourteenth Amendment "does not invest Congress with power to legislate upon subjects that are within the Page 163 U. S. 547 domain of state legislation, but to provide modes of relief against state legislation or state action of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights, but to provide modes of redress against the operation of state laws and the action of state officers, executive or judicial, when these are subversive of the fundamental rights specified in the amendment. Positive rights and privileges are undoubtedly secured by the Fourteenth Amendment, but they are secured by way of prohibition against state laws and state proceedings affecting those rights and privileges, and by power given to Congress to legislate for the purpose of carrying such prohibition into effect, and such legislation must necessarily be predicated upon such supposed state laws or state proceedings, and be directed to the correction of their operation and effect." Much nearer, and, indeed, almost directly in point is the case of the Louisville, New Orleans &c. Railway v. Mississippi, 133 U. S. 587 , wherein the railway company was indicted for a violation of a statute of Mississippi enacting that all railroads carrying passengers should provide equal but separate accommodations for the white and colored races by providing two or more passenger cars for each passenger train, or by dividing the passenger cars by a partition so as to secure separate accommodations. The case was presented in a different aspect from the one under consideration, inasmuch as it was an indictment against the railway company for failing to provide the separate accommodations, but the question considered was the constitutionality of the law. In that case, the Supreme Court of Mississippi, 66 Mississippi 662, had held that the statute applied solely to commerce within the State, and that, being the construction of the state statute by its highest court, was accepted as conclusive. "If it be a matter," said the court, p. 591, "respecting commerce wholly within a State, and not interfering with commerce between the States, then obviously there is no violation of the commerce clause of the Federal Constitution. . . . No question arises under this section as to the power of the State to separate in different compartments interstate passengers Page 163 U. S. 548 or affect in any manner the privileges and rights of such passengers. All that we can consider is whether the State has the power to require that railroad trains within her limits shall have separate accommodations for the two races; that affecting only commerce within the State is no invasion of the power given to Congress by the commerce clause." A like course of reasoning applies to the case under consideration, since the Supreme Court of Louisiana in the case of the State ex rel. Abbott v. Hicks, Judge, et al., 44 La.Ann. 770, held that the statute in question did not apply to interstate passengers, but was confined in its application to passengers traveling exclusively within the borders of the State. The case was decided largely upon the authority of Railway Co. v. State, 66 Mississippi 662, and affirmed by this court in 133 U. S. 587 . In the present case, no question of interference with interstate commerce can possibly arise, since the East Louisiana Railway appears to have been purely a local line, with both its termini within the State of Louisiana. Similar statutes for the separation of the to races upon public conveyances were held to be constitutional in West Chester &c. Railroad v. Miles, 55 Penn.St. 209; Day v. Owen, 5 Michigan 520; Chicago &c. Railway v. Williams, 5 Illinois 185; Chesapeake &c. Railroad v. Wells, 85 Tennessee 613; Memphis &c. Railroad v. Benson, 85 Tennessee 627; The Sue, 22 Fed.Rep. 83; Logwood v. Memphis &c. Railroad, 23 Fed.Rep. 318; McGuinn v. Forbes, 37 Fed.Rep. 639; People v. King, 18 N.E.Rep. 245; Houck v. South Pac. Railway, 38 Fed.Rep. 226; Heard v. Georgia Railroad Co., 3 Int.Com.Com'n 111; S.C., 1 Ibid. 428. While we think the enforced separation of the races, as applied to the internal commerce of the State, neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws within the meaning of the Fourteenth Amendment, we are not prepared to say that the conductor, in assigning passengers to the coaches according to their race, does not act at his peril, or that the provision of the second section of the act that denies to the passenger compensation Page 163 U. S. 549 in damages for a refusal to receive him into the coach in which he properly belongs is a valid exercise of the legislative power. Indeed, we understand it to be conceded by the State's Attorney that such part of the act as exempts from liability the railway company and its officers is unconstitutional. The power to assign to a particular coach obviously implies the power to determine to which race the passenger belongs, as well as the power to determine who, under the laws of the particular State, is to be deemed a white and who a colored person. This question, though indicated in the brief of the plaintiff in error, does not properly arise upon the record in this case, since the only issue made is as to the unconstitutionality of the act so far as it requires the railway to provide separate accommodations and the conductor to assign passengers according to their race. It is claimed by the plaintiff in error that, in any mixed community, the reputation of belonging to the dominant race, in this instance the white race, is property in the same sense that a right of action or of inheritance is property. Conceding this to be so for the purposes of this case, we are unable to see how this statute deprives him of, or in any way affects his right to, such property. If he be a white man and assigned to a colored coach, he may have his action for damages against the company for being deprived of his so-called property. Upon the other hand, if he be a colored man and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man. In this connection, it is also suggested by the learned counsel for the plaintiff in error that the same argument that will justify the state legislature in requiring railways to provide separate accommodations for the two races will also authorize them to require separate cars to be provided for people whose hair is of a certain color, or who are aliens, or who belong to certain nationalities, or to enact laws requiring colored people to walk upon one side of the street and white people upon the other, or requiring white men's houses to be painted white and colored men's black, or their vehicles or business signs to be of different colors, upon the theory that one side Page 163 U. S. 550 of the street is as good as the other, or that a house or vehicle of one color is as good as one of another color. The reply to all this is that every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion for the public good, and not for the annoyance or oppression of a particular class. Thus, in Yick Wo v. Hopkins, 118 U. S. 356 , it was held by this court that a municipal ordinance of the city of San Francisco to regulate the carrying on of public laundries within the limits of the municipality violated the provisions of the Constitution of the United States if it conferred upon the municipal authorities arbitrary power, at their own will and without regard to discretion, in the legal sense of the term, to give or withhold consent as to persons or places without regard to the competency of the persons applying or the propriety of the places selected for the carrying on of the business. It was held to be a covert attempt on the part of the municipality to make an arbitrary and unjust discrimination against the Chinese race. While this was the case of a municipal ordinance, a like principle has been held to apply to acts of a state legislature passed in the exercise of the police power. Railroad Company v. Husen, 95 U. S. 465 ; Louisville & Nashville Railroad v. Kentucky, 161 U. S. 677 , and cases cited on p. 161 U. S. 700 ; Duggett v. Hudson, 43 Ohio St. 548; Capen v. Foster, 12 Pick. 48; State ex rel. Wood v. Baker, 38 Wisconsin 71; Monroe v. Collins, 17 Ohio St. 66; Hulseman v. Rems, 41 Penn. St. 396; Orman v. Riley, 1 California 48. So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and, with respect to this, there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances Page 163 U. S. 551 is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures. We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case and is not unlikely to be so again, the colored race should become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals. As was said by the Court of Appeals of New York in People v. Gallagher, 93 N.Y. 438, 448, "this end can neither be accomplished nor promoted by laws which conflict with the general sentiment of the community upon whom they are designed to operate. When the government, therefore, has secured to each of its citizens equal rights before the law and equal opportunities for improvement and progress, it has accomplished the end for which it was organized, and performed all of the functions respecting social advantages with which it is endowed." Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly Page 163 U. S. 552 or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane. It is true that the question of the proportion of colored blood necessary to constitute a colored person, as distinguished from a white person, is one upon which there is a difference of opinion in the different States, some holding that any visible admixture of black blood stamps the person as belonging to the colored race ( State v. Chaver, 5 Jones [N.C.] 1, p. 11); others that it depends upon the preponderance of blood ( Gray v. State, 4 Ohio 354; Monroe v. Collins, 17 Ohio St. 665); and still others that the predominance of white blood must only be in the proportion of three-fourths. ( People v. Dean, 4 Michigan 406; Jones v. Commonwealth, 80 Virginia 538). But these are questions to be determined under the laws of each State, and are not properly put in issue in this case. Under the allegations of his petition, it may undoubtedly become a question of importance whether, under the laws of Louisiana, the petitioner belongs to the white or colored race. The judgment of the court below is, therefore, Affirmed. MR. JUSTICE HARLAN, dissenting. By the Louisiana statute the validity of which is here involved, all railway companies (other than street railroad companies) carrying passengers in that State are required to have separate but equal accommodations for white and colored persons "by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations." Under this statute, no colored person is permitted to occupy a seat in a coach assigned to white persons, nor any white person to occupy a seat in a coach assigned to colored persons. The managers of the railroad are not allowed to exercise any discretion in the premises, but are required to assign each passenger to some coach or compartment set apart for the exclusive use of his race. If a passenger insists upon going into a coach or compartment not set apart for persons of his race, Page 163 U. S. 553 he is subject to be fined or to be imprisoned in the parish jail. Penalties are prescribed for the refusal or neglect of the officers, directors, conductors and employees of railroad companies to comply with the provisions of the act. Only "nurses attending children of the other race " are excepted from the operation of the statute. No exception is made of colored attendants traveling with adults. A white man is not permitted to have his colored servant with him in the same coach, even if his condition of health requires the constant, personal assistance of such servant. If a colored maid insists upon riding in the same coach with a white woman whom she has been employed to serve, and who may need her personal attention while traveling, she is subject to be fined or imprisoned for such an exhibition of zeal in the discharge of duty. While there may be in Louisiana persons of different races who are not citizens of the United States, the words in the act "white and colored races" necessarily include all citizens of the United States of both races residing in that State. So that we have before us a state enactment that compels, under penalties, the separation of the two races in railroad passenger coaches, and makes it a crime for a citizen of either race to enter a coach that has been assigned to citizens of the other race. Thus, the State regulates the use of a public highway by citizens of the United States solely upon the basis of race. However apparent the injustice of such legislation may be, we have only to consider whether it is consistent with the Constitution of the United States. That a railroad is a public highway, and that the corporation which owns or operates it is in the exercise of public functions, is not, at this day, to be disputed. Mr. Justice Nelson, speaking for this court in New Jersey Steam Navigation Co. v. Merchants' Bank , 6 How. 344, 47 U. S. 382 , said that a common carrier was in the exercise "of a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate himself without the assent of the parties concerned." Mr. Justice Strong, delivering the judgment of Page 163 U. S. 554 this court in Olcott v. The Supervisors , 16 Wall. 678, 83 U. S. 694 , said: "That railroads, though constructed by private corporations and owned by them, are public highways has been the doctrine of nearly all the courts ever since such conveniences for passage and transportation have had any existence. Very early the question arose whether a State's right of eminent domain could be exercised by a private corporation created for the purpose of constructing a railroad. Clearly it could not unless taking land for such a purpose by such an agency is taking land for public use. The right of eminent domain nowhere justifies taking property for a private use. Yet it is a doctrine universally accepted that a state legislature may authorize a private corporation to take land for the construction of such a road, making compensation to the owner. What else does this doctrine mean if not that building a railroad, though it be built by a private corporation, is an act done for a public use." So, in Township of Pine Grove v. Talcott , 19 Wall. 666, 86 U. S. 676 : "Though the corporation [a railroad company] was private, its work was public, as much so as if it were to be constructed by the State." So, in Inhabitants of Worcester v. Western Railroad Corporation, 4 Met. 564: "The establishment of that great thoroughfare is regarded as a public work, established by public authority, intended for the public use and benefit, the use of which is secured to the whole community, and constitutes, therefore, like a canal, turnpike or highway, a public easement. It is true that the real and personal property necessary to the establishment and management of the railroad is vested in the corporation, but it is in trust for the public." In respect of civil rights common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and, under appropriate circumstances, when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the Page 163 U. S. 555 race of citizens when the civil rights of those citizens are involved. Indeed, such legislation as that here in question is inconsistent not only with that equality of rights which pertains to citizenship, National and State, but with the personal liberty enjoyed by everyone within the United States. The Thirteenth Amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged. But that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the Fourteenth Amendment, which added greatly to the dignity and glory of American citizenship and to the security of personal liberty by declaring that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside," and that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of his country, it as declared by the Fifteenth Amendment that "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude." These notable additions to the fundamental law were welcomed by the friends of liberty throughout the world. They removed the race line from our governmental systems. They had, as this court has said, a common purpose, namely to secure "to a race recently emancipated, a race that through Page 163 U. S. 556 many generations have been held in slavery, all the civil rights that the superior race enjoy." They declared, in legal effect, this court has further said, "that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color." We also said: "The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race -- the right to exemption from unfriendly legislation against them distinctively as colored -- exemption from legal discriminations, implying inferiority in civil society, Lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race." It was, consequently, adjudged that a state law that excluded citizens of the colored race from juries, because of their race and however well qualified in other respects to discharge the duties of jurymen, was repugnant to the Fourteenth Amendment. Strauder v. West Virginia, 100 U. S. 303 , 100 U. S. 306 , 100 U. S. 307 ; Virginia v. Rives, 100 U. S. 313 ; Ex parte Virginia, 100 U. S. 339 ; Neal v. Delaware, 103 U. S. 370 , 103 U. S. 386 ; Bush v. Kentucky, 107 U. S. 110 , 107 U. S. 116 . At the present term, referring to the previous adjudications, this court declared that "underlying all of those decisions is the principle that the Constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the General Government or the States against any citizen because of his race. All citizens are equal before the law." Gibson v. Mississippi, 162 U.S. 565 . The decisions referred to show the scope of the recent amendments of the Constitution. They also show that it is not within the power of a State to prohibit colored citizens, because of their race, from participating as jurors in the administration of justice. It as said in argument that the statute of Louisiana does Page 163 U. S. 557 not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Everyone knows that the statute in question had its origin in the purpose not so much to exclude white persons from railroad cars occupied by blacks as to exclude colored people from coaches occupied by or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor a to assert the contrary. The fundamental objection, therefore, to the statute is that it interferes with the personal freedom of citizens. "Personal liberty," it has been well said, "consists in the power of locomotion, of changing situation, or removing one's person to whatsoever places one's own inclination may direct, without imprisonment or restraint unless by due course of law." 1 Bl.Com. *134. If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so, and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each. It is one thing for railroad carriers to furnish, or to be required by law to furnish, equal accommodations for all whom they are under a legal duty to carry. It is quite another thing for government to forbid citizens of the white and black races from traveling in the same public conveyance, and to punish officers of railroad companies for permitting persons of the two races to occupy the same passenger coach. If a State can prescribe, as a rule of civil conduct, that whites and blacks shall not travel as passengers in the same railroad coach, why may it not so regulate the use of the streets of its cities and towns as to compel white citizens to keep on one side of a street and black citizens to keep on the other? Why may it not, upon like grounds, punish whites and blacks who ride together in streetcars or in open vehicles on a public road Page 163 U. S. 558 or street? Why may it not require sheriffs to assign whites to one side of a courtroom and blacks to the other? And why may it not also prohibit the commingling of the two races in the galleries of legislative halls or in public assemblages convened for the consideration of the political questions of the day? Further, if this statute of Louisiana is consistent with the personal liberty of citizens, why may not the State require the separation in railroad coaches of native and naturalized citizens of the United States, or of Protestants and Roman Catholics? The answer given at the argument to these questions was that regulations of the kind they suggest would be unreasonable, and could not, therefore, stand before the law. Is it meant that the determination of questions of legislative power depends upon the inquiry whether the statute whose validity is questioned is, in the judgment of the courts, a reasonable one, taking all the circumstances into consideration? A statute may be unreasonable merely because a sound public policy forbade its enactment. But I do not understand that the courts have anything to do with the policy or expediency of legislation. A statute may be valid and yet, upon grounds of public policy, may well be characterized as unreasonable. Mr. Sedgwick correctly states the rule when he says that, the legislative intention being clearly ascertained, "the courts have no other duty to perform than to execute the legislative will, without any regard to their views as to the wisdom or justice of the particular enactment." Stat. & Const.Constr. 324. There is a dangerous tendency in these latter days to enlarge the functions of the courts by means of judicial interference with the will of the people as expressed by the legislature. Our institutions have the distinguishing characteristic that the three departments of government are coordinate and separate. Each must keep within the limits defined by the Constitution. And the courts best discharge their duty by executing the will of the lawmaking power, constitutionally expressed, leaving the results of legislation to be dealt with by the people through their representatives. Statutes must always have a reasonable construction. Sometimes they are to be construed strictly; sometimes liberally, in order to carry out the legislative Page 163 U. S. 559 will. But however construed, the intent of the legislature is to be respected, if the particular statute in question is valid, although the courts, looking at the public interests, may conceive the statute to be both unreasonable and impolitic. If the power exists to enact a statute, that ends the matter so far as the courts are concerned. The adjudged cases in which statutes have been held to be void because unreasonable are those in which the means employed by the legislature were not at all germane to the end to which the legislature was competent. The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race. In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case. It was adjudged in that case that the descendants of Africans who were imported into this country and sold as slaves were not included nor intended to be included under the word "citizens" in the Constitution, and could not claim any of the rights and privileges which that instrument provided for and secured to citizens of the United States; that, at the time of the adoption of the Constitution, they were "considered as a subordinate and inferior class of beings, who had been subjugated by the dominant Page 163 U. S. 560 race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them." 19 How. 60 U. S. 393 , 60 U. S. 404 . The recent amendments of the Constitution, it was supposed, had eradicated these principles from our institutions. But it seems that we have yet, in some of the States, a dominant race -- a superior class of citizens, which assumes to regulate the enjoyment of civil rights, common to all citizens, upon the basis of race. The present decision, it may well be apprehended, will not only stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution, by one of which the blacks of this country were made citizens of the United States and of the States in which they respectively reside, and whose privileges and immunities, as citizens, the States are forbidden to abridge. Sixty millions of whites are in no danger from the presence here of eight millions of blacks. The destinies of the two races in this country are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which, in fact, proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens. That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana. The sure guarantee of the peace and security of each race is the clear, distinct, unconditional recognition by our governments, National and State, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States, without regard to race. State enactments regulating the enjoyment of civil rights upon the basis of race, and cunningly devised to defeat legitimate results of the Page 163 U. S. 561 war under the pretence of recognizing equality of rights, can have no other result than to render permanent peace impossible and to keep alive a conflict of races the continuance of which must do harm to all concerned. This question is not met by the suggestion that social equality cannot exist between the white and black races in this country. That argument, if it can be properly regarded as one, is scarcely worthy of consideration, for social equality no more exists between two races when traveling in a passenger coach or a public highway than when members of the same races sit by each other in a street car or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the street of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of voters, or when they approach the ballot box in order to exercise the high privilege of voting. There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But, by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the State and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race. It is scarcely just to say that a colored citizen should not object to occupying a public coach assigned to his own race. He does not object, nor, perhaps, would he object to separate coaches for his race if his rights under the law were recognized. But he objecting, and ought never to cease objecting, to the proposition that citizens of the white and black race can be adjudged criminals because they sit, or claim the right to sit, in the same public coach on a public highway. Page 163 U. S. 562 The arbitrary separation of citizens on the basis of race while they are on a public highway is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds. If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the law which, practically, puts the brand of servitude and degradation upon a large class of our fellow citizens, our equals before the law. The thin disguise of "equal" accommodations for passengers in railroad coaches will not mislead anyone, nor atone for the wrong this day done. The result of the whole matter is that, while this court has frequently adjudged, and at the present term has recognized the doctrine, that a State cannot, consistently with the Constitution of the United States, prevent white and black citizens, having the required qualifications for jury service, from sitting in the same jury box, it is now solemnly held that a State may prohibit white and black citizens from sitting in the same passenger coach on a public highway, or may require that they be separated by a "partition," when in the same passenger coach. May it not now be reasonably expected that astute men of the dominant race, who affect to be disturbed at the possibility that the integrity of the white race may be corrupted, or that its supremacy will be imperiled, by contact on public highways with black people, will endeavor to procure statutes requiring white and black jurors to be separated in the jury box by a "partition," and that, upon retiring from the courtroom to consult as to their verdict, such partition, if it be a moveable one, shall be taken to their consultation room and set up in such way as to prevent black jurors from coming too close to their brother jurors of the white race. If the "partition" used in the courtroom happens to be stationary, provision could be made for screens with openings through Page 163 U. S. 563 which jurors of the two races could confer as to their verdict without coming into personal contact with each other. I cannot see but that, according to the principles this day announced, such state legislation, although conceived in hostility to, and enacted for the purpose of humiliating, citizens of the United States of a particular race, would be held to be consistent with the Constitution. I do not deem it necessary to review the decisions of state courts to which reference was made in argument. Some, and the most important, of them are wholly inapplicable because rendered prior to the adoption of the last amendments of the Constitution, when colored people had very few rights which the dominant race felt obliged to respect. Others were made at a time when public opinion in many localities was dominated by the institution of slavery, when it would not have been safe to do justice to the black man, and when, so far as the rights of blacks were concerned, race prejudice was, practically, the supreme law of the land. Those decisions cannot be guides in the era introduced by the recent amendments of the supreme law, which established universal civil freedom, gave citizenship to all born or naturalized in the United States and residing here, obliterated the race line from our systems of governments, National and State, and placed our free institutions upon the broad and sure foundation of the equality of all men before the law. I am of opinion that the statute of Louisiana is inconsistent with the personal liberty of citizens, white and black, in that State, and hostile to both the spirit and letter of the Constitution of the United States. If laws of like character should be enacted in the several States of the Union, the effect would be in the highest degree mischievous. Slavery, as an institution tolerated by law would, it is true, have disappeared from our country, but there would remain a power in the States, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom to regulate civil rights, common to all citizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American citizens now constituting a part of the political community called the Page 163 U. S. 564 People of the United States, for whom and by whom, through representatives, our government is administered. Such a system is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by Congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding. For the reasons stated, I am constrained to withhold my assent from the opinion and judgment of the majority. MR. JUSTICE BREWER did not hear the argument or participate in the decision of this case.

In the case of Plessy v. Ferguson, the Supreme Court of the United States upheld the constitutionality of racial segregation laws for public facilities, establishing the "separate but equal" doctrine that would persist for decades. Homer Plessy, a person of mixed race, challenged a Louisiana law requiring separate accommodations for white and non-white passengers on trains. The Court, in an infamous decision, ruled that such segregation did not violate the Thirteenth and Fourteenth Amendments as long as the separate facilities were equal in quality. This ruling entrenched racial segregation and legitimized the notion that racial inequality could be legally sanctioned. Dissenting opinions highlighted the inherent injustice and conflict of such laws with the Constitution's guarantee of equal rights and freedoms.

Equal Protection

Skinner v. Oklahoma ex rel. Williamson

https://supreme.justia.com/cases/federal/us/316/535/

U.S. Supreme Court Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) Skinner v. Oklahoma ex rel. Williamson No. 782 Argued May 6, 1942 Decided June 1, 1942 316 U.S. 535 CERTIORARI TO THE SUPREME COURT OF OKLAHOMA Syllabus 1. A statute of Oklahoma provides for the sterilization, by vasectomy or salpingectomy, of "habitual criminals" -- an habitual criminal being defined therein as any person who, having been convicted two or more times, in Oklahoma or in any other State, of "felonies involving moral turpitude," is thereafter convicted and sentenced to imprisonment in Oklahoma for such a crime. Expressly excepted from the terms of the statute are certain offenses, including embezzlement. As applied to one who was convicted once of stealing chickens and twice of robbery, held that the statute violated the equal protection clause of the Fourteenth Amendment. P. 316 U. S. 537 . 2. The State Supreme Court having sustained the Act, as applied to the petitioner here, without reference to a severability clause, the question whether that clause would be so applied as to remove the particular constitutional objection is one which may appropriately be left for adjudication by the state court. P. 316 U. S. 542 . 189 Okla. 235 , 115 P.2d 123 , reversed. Page 316 U. S. 536 CERTIORARI, 315 U.S. 789, to review the affirmance of a judgment in a proceeding under the Oklahoma Habitual Criminal Sterilization Act, wherein it was ordered that the defendant (petitioner here) be made sterile. MR. JUSTICE DOUGLAS delivered the opinion of the Court. This case touches a sensitive and important area of human rights. Oklahoma deprives certain individuals of a right which is basic to the perpetuation of a race the right to have offspring. Oklahoma has decreed the enforcement of its law against petitioner, overruling his claim that it violated the Fourteenth Amendment. Because that decision raised grave and substantial constitutional questions, we granted the petition for certiorari. The statute involved is Oklahoma's Habitual Criminal Sterilization Act. Okla.Stat.Ann. Tit. 57, §§ 171, et seq.; L.1935, pp. 94 et seq. That Act defines an "habitual criminal" as a person who, having been convicted two or more times for crimes "amounting to felonies involving moral turpitude," either in an Oklahoma court or in a court of any other State, is thereafter convicted of such a felony in Oklahoma and is sentenced to a term of imprisonment in an Oklahoma penal institution. § 173. Machinery is provided for the institution by the Attorney General of a proceeding against such a person in the Oklahoma courts for a judgment that such person shall be rendered sexually sterile. §§ 176, 177. Notice, an opportunity to be heard, and the right to a jury trial are provided. §§ 177-181. The issues triable in such a proceeding are narrow and confined. Page 316 U. S. 537 If the court or jury finds that the defendant is an "habitual criminal" and that he "may be rendered sexually sterile without detriment to his or her general health," then the court "shall render judgment to the effect that said defendant be rendered sexually sterile" (§ 182) by the operation of vasectomy in case of a male, and of salpingectomy in case of a female. § 174. Only one other provision of the Act is material here, and that is § 195, which provides that "offenses arising out of the violation of the prohibitory laws, revenue acts, embezzlement, or political offenses, shall not come or be considered within the terms of this Act." Petitioner was convicted in 1926 of the crime of stealing chickens, and was sentenced to the Oklahoma State Reformatory. In 1929 he was convicted of the crime of robbery with firearms, and was sentenced to the reformatory. In 1934, he was convicted again of robbery with firearms, and was sentenced to the penitentiary. He was confined there in 1935 when the Act was passed. In 1936, the Attorney General instituted proceedings against him. Petitioner, in his answer, challenged the Act as unconstitutional by reason of the Fourteenth Amendment. A jury trial was had. The court instructed the jury that the crimes of which petitioner had been convicted were felonies involving moral turpitude, and that the only question for the jury was whether the operation of vasectomy could be performed on petitioner without detriment to his general health. The jury found that it could be. A judgment directing that the operation of vasectomy be performed on petitioner was affirmed by the Supreme Court of Oklahoma by a five-to-four decision. 189 Okla. 235 , 115 P.2d 123 . Several objections to the constitutionality of the Act have been pressed upon us. It is urged that the Act cannot be sustained as an exercise of the police power, in view Page 316 U. S. 538 of the state of scientific authorities respecting inheritability of criminal traits. [ Footnote 1 ] It is argued that due process is lacking because, under this Act, unlike the Act [ Footnote 2 ] upheld in Buck v. Bell, 274 U. S. 200 , the defendant is given no opportunity to be heard on the issue as to whether he is the probable potential parent of socially undesirable offspring. See Davis v. Berry, 216 F. 413; Williams v. Smith, 190 Ind. 526, 131 N.E. 2. It is also suggested that the Act is penal in character, and that the sterilization provided for is cruel and unusual punishment and violative of the Fourteenth Amendment. See Davis v. Berry, supra. Cf. State v. Felen, 70 Wash. 65, 126 P. 75; Mickle v. Henrichs, 262 F. 687. We pass those points without intimating an opinion on them, for there is a feature of the Act which clearly condemns it. That is its failure to meet the requirements of the equal protection clause of the Fourteenth Amendment. We do not stop to point out all of the inequalities in this Act. A few examples will suffice. In Oklahoma, grand larceny is a felony. Okla.Stats.Ann. Tit. 21, §§ 1705, 5. Larceny is grand larceny when the property taken exceeds $20 in value. Id., § 1704. Embezzlement is punishable "in the manner prescribed for feloniously stealing property of the value of that embezzled." Id., § 1462. Hence, he who embezzles property worth more than $20 is guilty of a felony. A clerk who appropriates over $20 from his employer's till ( id. § 1456) and a stranger who steals the same Page 316 U. S. 539 amount are thus both guilty of felonies. If the latter repeats his act and is convicted three times, he may be sterilized. But the clerk is not subject to the pains and penalties of the Act no matter how large his embezzlements nor how frequent his convictions. A person who enters a chicken coop and steals chickens commits a felony ( id., § 1719), and he may be sterilized if he is thrice convicted. If, however, he is a bailee of the property and fraudulently appropriates it, he is an embezzler. Id., § 1455. Hence, no matter how habitual his proclivities for embezzlement are, and no matter how often his conviction, he may not be sterilized. Thus, the nature of the two crimes is intrinsically the same, and they are punishable in the same manner. Furthermore, the line between them follows close distinctions -- distinctions comparable to those highly technical ones which shaped the common law as to "trespass" or "taking." Bishop, Criminal Law (9th ed.) Vol. 2, §§ 760, 799, et seq. There may be larceny by fraud, rather than embezzlement even where the owner of the personal property delivers it to the defendant, if the latter has, at that time, "a fraudulent intention to make use of the possession as a means of converting such property to his own use, and does so convert it." Bivens v. State, 6 Okla.Cr. 521, 529, 120 P. 1033, 1036. If the fraudulent intent occurs later, and the defendant converts the property, he is guilty of embezzlement. Bivens v. State, supra; Flohr v. Territory, 14 Okla. 477 , 78 P. 565. Whether a particular act is larceny by fraud or embezzlement thus turns not on the intrinsic quality of the act, but on when the felonious intent arose -- a question for the jury under appropriate instructions. Bivens v. State, supra; Riley v. State, 64 Okla.Cr. 183, 78 P.2d 712 . It was stated in Buck v. Bell, supra, that the claim that state legislation violates the equal protection clause of the Fourteenth Amendment is "the usual last resort of constitutional arguments." 274 U.S. p. 274 U. S. 208 . Under our constitutional Page 316 U. S. 540 system, the States, in determining the reach and scope of particular legislation, need not provide "abstract symmetry." Patsone v. Pennsylvania, 232 U. S. 138 , 232 U. S. 144 . They may mark and set apart the classes and types of problems according to the needs and as dictated or suggested by experience. See Bryant v. Zimmerman, 278 U. S. 63 , and cases cited. It was in that connection that Mr. Justice Holmes, speaking for the Court in Bain Peanut Co. v. Pinson, 282 U. S. 499 , 282 U. S. 501 , stated, "We must remember that the machinery of government would not work if it were not allowed a little play in its joints." Only recently, we reaffirmed the view that the equal protection clause does not prevent the legislature from recognizing "degrees of evil" ( Truax v. Raich, 239 U. S. 33 , 239 U. S. 43 ) by our ruling in Tigner v. Texas, 310 U. S. 141 , 310 U. S. 147 , that "the Constitution does not require things which are different, in fact, or opinion to be treated in law as though they were the same." And see Nashville, C. & St.L. Ry. v. Browning, 310 U. S. 362 . Thus, if we had here only a question as to a State's classification of crimes, such as embezzlement or larceny, no substantial federal question would be raised. See Moore v. Missouri, 159 U. S. 673 ; Hawker v. New York, 170 U. S. 189 ; Finley v. California, 222 U. S. 28 ; Patsone v. Pennsylvania, supra. For a State is not constrained in the exercise of its police power to ignore experience which marks a class of offenders or a family of offenses for special treatment. Nor is it prevented by the equal protection clause from confining "its restrictions to those classes of cases where the need is deemed to be clearest." Miller v. Wilson, 236 U. S. 373 , 236 U. S. 384 . And see McLean v. Arkansas, 211 U. S. 539 . As stated in Buck v. Bell, supra, p. 274 U. S. 208 , ". . . the law does all that is needed when it does all that it can, indicates a policy, applies it to all within the lines, and seeks to bring within the lines all similarly situated so far and so fast as its means allow. " Page 316 U. S. 541 But the instant legislation runs afoul of the equal protection clause, though we give Oklahoma that large deference which the rule of the foregoing cases requires. We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands, it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty. We mention these matters not to reexamine the scope of the police power of the States. We advert to them merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly, or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws. The guaranty of "equal protection of the laws is a pledge of the protection of equal laws." Yick Wo v. Hopkins, 118 U. S. 356 , 118 U. S. 369 . When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment. Yick Wo v. Hopkins, supra; Gaines v. Canada, 305 U. S. 337 . Sterilization of those who have thrice committed grand larceny, with immunity for those who are embezzlers, is a clear, pointed, unmistakable discrimination. Oklahoma makes no attempt to say that he who commits larceny by trespass or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks. Oklahoma's line between larceny by fraud and embezzlement is determined, as we have noted, "with reference to the time when the Page 316 U. S. 542 fraudulent intent to convert the property to the taker's own use" arises. Riley v. State, supra, 64 Okla.Cr. at p. 189, 78 P.2d p. 715. We have not the slightest basis for inferring that that line has any significance in eugenics, nor that the inheritability of criminal traits follows the neat legal distinctions which the law has marked between those two offenses. In terms of fines and imprisonment, the crimes of larceny and embezzlement rate the same under the Oklahoma code. Only when it comes to sterilization are the pains and penalties of the law different. The equal protection clause would indeed be a formula of empty words if such conspicuously artificial lines could be drawn. See Smith v. Wayne Probate Judge, 231 Mich. 409, 420-421, 204 N.W. 40. In Buck v. Bell, supra, the Virginia statute was upheld though it applied only to feeble-minded persons in institutions of the State. But it was pointed out that, "so far as the operations enable those who otherwise must be kept confined to be returned to the world, and thus open the asylum to others, the equality aimed at will be more nearly reached." 274 U.S. p. 274 U. S. 208 . Here there is no such saving feature. Embezzlers are forever free. Those who steal or take in other ways are not. If such a classification were permitted, the technical common law concept of a "trespass" (Bishop, Criminal Law, 9th ed., vol. 1, §§ 566, 567) based on distinctions which are "very largely dependent upon history for explanation" (Holmes, The Common Law, p. 73) could readily become a rule of human genetics. It is true that the Act has a broad severability clause. [ Footnote 3 ] But we will not endeavor to determine whether its application Page 316 U. S. 543 would solve the equal protection difficulty. The Supreme Court of Oklahoma sustained the Act without reference to the severability clause. We have therefore a situation where the Act, as construed and applied to petitioner, is allowed to perpetuate the discrimination which we have found to be fatal. Whether the severability clause would be so applied as to remove this particular constitutional objection is a question which may be more appropriately left for adjudication by the Oklahoma court. Dorchy v. Kansas, 264 U. S. 286 . That is reemphasized here by our uncertainty as to what excision, if any, would be made as a matter of Oklahoma law. Cf. Smith v. Cahoon, 283 U. S. 553 . It is by no means clear whether, if an excision were made, this particular constitutional difficulty might be solved by enlarging, on the one hand, or contracting, on the other ( cf. Mr. Justice Brandeis dissenting, National Life Ins. Co. v. United States, 277 U. S. 508 , 277 U. S. 534 -535) the class of criminals who might be sterilized. Reversed. [ Footnote 1 ] Healy, The Individual Delinquent (1915), pp. 188-200; Sutherland, Criminology (1924), pp. 112-118, 621-622; Gillin, Criminology and Penology (1926), c. IX; Popenoe, Sterilization and Criminality, 53 Rep.Am.Bar Assoc. 575; Myerson et al., Eugenical Sterilization (1936), c. VIII; Landman, Human Sterilization (1932), c. IX; Summary of the Report of the American Neurological Association Committee for the Investigation of Sterilization, 1 Am.Journ.Med.Jur. 253 (1938). [ Footnote 2 ] And see State v. Troutman, 50 Ida. 673, 299 P. 668; Chamberlain, Eugenics in Legislatures and Courts, 15 Am.Bar Assn.Journ. 165; Castle, The Law and Human Sterilization, 53 Rep.Am.Bar Assoc., 556, 572; 2 Bill of Rights Review 54. [ Footnote 3 ] Sec.194 provides: "If any section, subsection, paragraph, sentence, clause or phrase of this Act shall be declared unconstitutional, or void for any other reason by any court of final jurisdiction, such fact shall not in any manner invalidate or affect any other or the remaining portions of this Act, but the same shall continue in full force and effect. The Legislature hereby declares that it would have passed this Act, and each section, subsection, paragraph, sentence, clause or phrase thereof, irrespective of the fact that any one or more other sections, sub-sections, paragraphs, sentences, clauses or phrases be declared unconstitutional." MR. CHIEF JUSTICE STONE, concurring: I concur in the result, but I am not persuaded that we are aided in reaching it by recourse to the equal protection clause. If Oklahoma may resort generally to the sterilization of criminals on the assumption that their propensities are transmissible to future generations by inheritance, I seriously doubt that the equal protection clause requires it to apply the measure to all criminals in the first instance, or to none. See Rosenthal v. New York, 226 U. S. 260 , 226 U. S. 271 ; Page 316 U. S. 544 Keokee Coke Co. v. Taylor, 234 U. S. 224 , 234 U. S. 227 ; Patsone v. Pennsylvania, 232 U. S. 138 , 232 U. S. 144 . Moreover, if we must presume that the legislature knows -- what science has been unable to ascertain -- that the criminal tendencies of any class of habitual offenders are transmissible regardless of the varying mental characteristics of its individuals, I should suppose that we must likewise presume that the legislature, in its wisdom, knows that the criminal tendencies of some classes of offenders are more likely to be transmitted than those of others. And so I think the real question we have to consider is not one of equal protection, but whether the wholesale condemnation of a class to such an invasion of personal liberty, without opportunity to any individual to show that his is not the type of case which would justify resort to it, satisfies the demands of due process. There are limits to the extent to which the presumption of constitutionality can be pressed, especially where the liberty of the person is concerned ( see United States v. Carolene Products Co., 304 U. S. 144 , 304 U. S. 152 , n. 4) and where the presumption is resorted to only to dispense with a procedure which the ordinary dictates of prudence would seem to demand for the protection of the individual from arbitrary action. Although petitioner here was given a hearing to ascertain whether sterilization would be detrimental to his health, he was given none to discover whether his criminal tendencies are of an inheritable type. Undoubtedly, a state may, after appropriate inquiry, constitutionally interfere with the personal liberty of the individual to prevent the transmission by inheritance of his socially injurious tendencies. Buck v. Bell, 274 U. S. 200 . But, until now, we have not been called upon to say that it may do so without giving him a hearing and opportunity to challenge the existence as to him of the only facts which could justify so drastic a measure. Page 316 U. S. 545 Science has found, and the law has recognized, that there are certain types of mental deficiency associated with delinquency which are inheritable. But the State does not contend -- nor can there be any pretense -- that either common knowledge or experience, or scientific investigation, * has given assurance that the criminal tendencies of any class of habitual offenders are universally, or even generally, inheritable. In such circumstances, inquiry whether such is the fact in the case of any particular individual cannot rightly be dispensed with. Whether the procedure by which a statute carries its mandate into execution satisfies due process is a matter of judicial cognizance. A law which condemns, without hearing, all the individuals of a class to so harsh a measure as the present because some or even many merit condemnation is lacking in the first principles of due process. Morrison v. California, 291 U. S. 82 , 291 U. S. 90 , and cases cited; Taylor v. Georgia, 315 U. S. 25 . And so, while the state may protect itself from the demonstrably inheritable tendencies of the individual which are injurious to society, the most elementary notions of due process would seem to require it to take appropriate steps to safeguard the liberty of the individual by affording him, before he is condemned to an irreparable injury in his person, some opportunity to show that he is without such inheritable tendencies. The state is called on to sacrifice no permissible end when it is required to reach its objective by a reasonable and just procedure adequate to safeguard rights of the individual which concededly the Constitution protects. Page 316 U. S. 546 * See Eugenical Sterilization, A Report of the Committee of the American Neurological Association (1936), pp.150-52; Myerson, Summary of the Report, 1 American Journal of Medical Jurisprudence 253; Popenoe, Sterilization and Criminality, 53 American Bar Assn. Reports 575; Jennings, Eugenics, 5 Encyclopedia of the Social Sciences 617, 6221; Montagu, The Biologist Looks at Crime, 217 Annals of American Academy of Political and Social Science 46. MR JUSTICE JACKSON concurring: I join the CHIEF JUSTICE in holding that the hearings provided are too limited in the context of the present Act to afford due process of law. I also agree with the opinion of MR. JUSTICE DOUGLAS that the scheme of classification set forth in the Act denies equal protection of the law. I disagree with the opinion of each insofar as it rejects or minimizes the grounds taken by the other. Perhaps to employ a broad and loose scheme of classification would be permissible if accompanied by the individual hearings indicated by the CHIEF JUSTICE. On the other hand, narrow classification with reference to the end to be accomplished by the Act might justify limiting individual hearings to the issue whether the individual belonged to a class so defined. Since this Act does not present these questions, I reserve judgment on them. I also think the present plan to sterilize the individual in pursuit of a eugenic plan to eliminate from the race characteristics that are only vaguely identified and which, in our present state of knowledge, are uncertain as to transmissibility presents other constitutional questions of gravity. This Court has sustained such an experiment with respect to an imbecile, a person with definite and observable characteristics, where the condition had persisted through three generations and afforded grounds for the belief that it was transmissible, and would continue to manifest itself in generations to come. Buck v. Bell, 274 U. S. 200 . There are limits to the extent to which a legislatively represented majority may conduct biological experiments at the expense of the dignity and personality and natural powers of a minority -- even those who have been guilty of what the majority define as crimes. But this Act falls down before reaching this problem, which I mention only to Page 316 U. S. 547 avoid the implication that such a question may not exist because not discussed. On it, I would also reserve judgment.

In Skinner v. Oklahoma, the U.S. Supreme Court ruled that an Oklahoma law allowing for the sterilization of "habitual criminals" violated the Equal Protection Clause of the Fourteenth Amendment. The Court held that the right to have offspring is fundamental, and the law's classification scheme was not sufficiently narrow to justify such an infringement on individual liberty. The Court also raised concerns about the due process protections afforded by the law's hearing procedures.

Equal Protection

McLaurin v. Oklahoma State Regents

https://supreme.justia.com/cases/federal/us/339/637/

U.S. Supreme Court McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950) McLaurin v. Oklahoma State Regents for Higher Education No. 34 Argued April 3-4, 1950 Decided June 5, 1950 339 U.S. 637 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA Syllabus Appellant, a Negro citizen of Oklahoma possessing a master's degree, was admitted to the Graduate School of the state supported University of Oklahoma as a candidate for a doctorate in education and was permitted to use the same classroom, library and cafeteria as white students. Pursuant to a requirement of state law that the instruction of Negroes in institutions of higher education be "upon a segregated basis," however, he was assigned to a seat in the classroom in a row specified for Negro students, was assigned to a special table in the library, and, although permitted to eat in the cafeteria at the same time as other students, was assigned to a special table there. Held: the conditions under which appellant is required to receive his education deprive him of his personal and present right to the equal protection of the laws, and the Fourteenth Amendment precludes such differences in treatment by the State based upon race. Pp. 339 U. S. 638 -642. (a) The restrictions imposed upon appellant impair and inhibit his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession. Pp. 339 U. S. 640 -641. (b) That appellant may still be set apart by his fellow students and may be in no better position when these restrictions are removed is irrelevant, for there is a constitutional difference between restrictions imposed by the State which prohibit the intellectual commingling of students and the refusal of students to commingle where the State presents no such bar. P. 339 U. S. 641 . (c) Having been admitted to a state supported graduate school, appellant must receive the same treatment at the hands of the State as students of other races. P. 339 U. S. 642 . 87 F. Supp. 528 reversed. The proceedings below are stated in the opinion. The judgment below is reversed, p. 339 U. S. 642 . Page 339 U. S. 638 MR. CHIEF JUSTICE VINSON delivered the opinion of the Court. In this case, we are faced with the question whether a state may, after admitting a student to graduate instruction in its state university, afford him different treatment from other students solely because of his race. We decide only this issue; see Sweatt v. Painter, ante, p. 339 U. S. 629 . Appellant is a Negro citizen of Oklahoma. Possessing a Master's degree, he applied for admission to the University of Oklahoma in order to pursue studies and courses leading to a Doctorate in Education. At that time, his application was denied, solely because of his race. The school authorities were required to exclude him by the Oklahoma statutes, 70 Okl.Stat. (1941) §§ 455, 456, 457, which made it a misdemeanor to maintain or operate, teach or attend a school at which both whites and Negroes are enrolled or taught. Appellant filed a complaint requesting injunctive relief, alleging that the action of the school authorities and the statutes upon which their action was based were unconstitutional and deprived him Page 339 U. S. 639 of the equal protection of the laws. Citing our decisions in Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938), and Sipuel v. Board of Regents, 332 U. S. 631 (1948), a statutory three-judge District Court held, 87 F. Supp. 526 , that the State had a constitutional duty to provide him with the education he sought as soon as it provided that education for applicants of any other group. It further held that, to the extent the Oklahoma statutes denied him admission, they were unconstitutional and void. On the assumption, however, that the State would follow the constitutional mandate, the court refused to grant the injunction, retaining jurisdiction of the cause with full power to issue any necessary and proper orders to secure McLaurin the equal protection of the laws. Following this decision, the Oklahoma legislature amended these statutes to permit the admission of Negroes to institutions of higher learning attended by white students, in cases where such institutions offered courses not available in the Negro schools. The amendment provided, however, that, in such cases the program of instruction "shall be given at such colleges or institutions of higher education upon a segregated basis." * Appellant Page 339 U. S. 640 was thereupon admitted to the University of Oklahoma Graduate School. In apparent conformity with the amendment, his admission was made subject to "such rules and regulations as to segregation as the President of the University shall consider to afford Mr. G. W. McLaurin substantially equal educational opportunities as are afforded to other persons seeking the same education in the Graduate College," a condition which does not appear to have been withdrawn. Thus, he was required to sit apart at a designated desk in an anteroom adjoining the classroom; to sit at a designated desk on the mezzanine floor of the library, but not to use the desks in the regular reading room, and to sit at a designated table and to eat at a different time from the other students in the school cafeteria. To remove these conditions, appellant filed a motion to modify the order and judgment of the District Court. That court held that such treatment did not violate the provisions of the Fourteenth Amendment, and denied the motion. 87 F. Supp. 528 . This appeal followed. In the interval between the decision of the court below and the hearing in this Court, the treatment afforded appellant was altered. For some time, the section of the classroom in which appellant sat was surrounded by a rail on which there was a sign stating, "Reserved For Colored," but these have been removed. He is now assigned to a seat in the classroom in a row specified for colored students; he is assigned to a table in the library on the main floor, and he is permitted to eat at the same time in the cafeteria as other students, although here again he is assigned to a special table. It is said that the separations imposed by the State in this case are in form merely nominal. McLaurin uses the same classroom, library, and cafeteria as students of other races; there is no indication that the seats to which he is assigned in these rooms have any disadvantage Page 339 U. S. 641 of location. He may wait in line in the cafeteria and there stand and talk with his fellow students, but, while he eats, he must remain apart. These restrictions were obviously imposed in order to comply, as nearly as could be, with the statutory requirements of Oklahoma. But they signify that the State, in administering the facilities it affords for professional and graduate study, sets McLaurin apart from the other students. The result is that appellant is handicapped in his pursuit of effective graduate instruction. Such restrictions impair and inhibit his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession. Our society grows increasingly complex, and our need for trained leaders increases correspondingly. Appellant's case represents perhaps the epitome of that need, for he is attempting to obtain an advanced degree in education, to become, by definition, a leader and trainer of others. Those who will come under his guidance and influence must be directly affected by the education he receives. Their own education and development will necessarily suffer to the extent that his training is unequal to that of his classmates. State-imposed restrictions which produce such inequalities cannot be sustained. It may be argued that appellant will be in no better position when these restrictions are removed, for he may still be set apart by his fellow students. This we think irrelevant. There is a vast difference -- a Constitutional difference -- between restrictions imposed by the state which prohibit the intellectual commingling of students and the refusal of individuals to commingle where the state presents no such bar. Shelley v. Kraemer, 334 U. S. 1 , 334 U. S. 13 -14 (1948). The removal of the state restrictions will not necessarily abate individual and group predilections, prejudices, and choices. But, at the very least, the state will not be depriving appellant of the opportunity Page 339 U. S. 642 to secure acceptance by his fellow students on his own merits. We conclude that the conditions under which this appellant is required to receive his education deprive him of his personal and present right to the equal protection of the laws. See Sweatt v. Painter, ante, p. 339 U. S. 629 . We hold that, under these circumstances, the Fourteenth Amendment precludes differences in treatment by the state based upon race. Appellant, having been admitted to a state-supported graduate school, must receive the same treatment at the hands of the state as students of other races. The judgment is Reversed. * The amendment adds the following proviso to each of the sections relating to mixed schools: "Provided, that the provisions of this Section shall not apply to programs of instruction leading to a particular degree given at State owned or operated colleges or institutions of higher education of this State established for and/or used by the white race where such programs of instruction leading to a particular degree are not given at colleges or institutions of higher education of this State established for and/or used by the colored race; provided further, that said programs of instruction leading to a particular degree shall be given at such colleges or institutions of higher education upon a segregated basis." 70 Okla.Stat.Ann. (1950) §§ 455, 456, 457. Segregated basis is defined as "classroom instruction given in separate classrooms, or at separate times." Id., § 455.

In *McLaurin v. Oklahoma State Regents* (1950), the Supreme Court ruled that a state-supported university could not impose racial segregation on a black student, as it violated the Fourteenth Amendment's guarantee of equal protection under the law. The Court held that the conditions, such as separate seating in classrooms and libraries, impaired the student's ability to learn and engage with peers. The state must provide equal treatment regardless of individual or group prejudices.

Equal Protection

Sipuel v. Board of Regents of the University of Oklahoma

https://supreme.justia.com/cases/federal/us/332/631/

U.S. Supreme Court Sipuel v. Board of Regents, 332 U.S. 631 (1948) Sipuel v. Board of Regents of the University of Oklahoma No. 369 Argued January 7-8, 1948 Decided January 12, 1948 332 U.S. 631 CERTIORARI TO THE SUPREME COURT OF OKLAHOMA Syllabus A Negro, concededly qualified to receive professional legal education offered by a State, cannot be denied such education because of her color. The State must provide such education for her in conformity with the equal protection clause of the Fourteenth Amendment, and provide it as soon as it does for applicants of any other group. Pp. 332 U. S. 632 -633. 199 Okla. 36 , 180 P.2d 135 , reversed. The Supreme Court of Oklahoma affirmed a denial by an inferior state court of a writ of mandamus to require Page 332 U. S. 632 admission of a qualified Negro applicant to a state law school. 199 Okla. 36 , 180 P.2d 135 . This Court granted certiorari. 332 U.S. 814. Reversed, p. 332 U. S. 633 . PER CURIAM. On January 14, 1946, the petitioner, a Negro, concededly qualified to receive the professional legal education offered by the State, applied for admission to the School of Law of the University of Oklahoma, the only institution for legal education supported and maintained by the taxpayers of the Oklahoma. Petitioner's application for admission was denied solely because of her color. Petitioner then made application for a writ of mandamus in the District Court of Cleveland County, Oklahoma. The writ of mandamus was refused, and the Supreme Court of the Oklahoma affirmed the judgment of the District Court. 180 P.2d 135 . We brought the case here for review. The petitioner is entitled to secure legal education afforded by a state institution. To this time, it has been denied her although, during the same period, many Page 332 U. S. 633 white applicants have been afforded legal education by the State. The State must provide it for her in conformity with the equal protection clause of the Fourteenth Amendment, and provide it as soon as it does for applicants of any other group. Missouri ex rel. Gaines v. Canada, 305 U. S. 337 . The judgment of the Supreme Court of Oklahoma is reversed, and the cause is remanded to that court for proceedings not inconsistent with this opinion. The mandate shall issue forthwith. Reversed.

In *Sipuel v. Board of Regents of the University of Oklahoma* (1948), the U.S. Supreme Court ruled that a qualified applicant cannot be denied admission to a state law school solely based on their race, as per the Fourteenth Amendment's Equal Protection Clause. The Court ordered the state to provide legal education to the applicant, a Negro, as soon as it would for applicants of any other race, reversing the Oklahoma Supreme Court's decision.

Equal Protection

Bolling v. Sharpe

https://supreme.justia.com/cases/federal/us/347/497/

U.S. Supreme Court Bolling v. Sharpe, 347 U.S. 497 (1954) Bolling v. Sharpe No. 8 Argued December 10-11, 1952 Reargued December 9, 1953 Decided May 17, 1954 347 U.S. 497 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Syllabus Racial segregation in the public schools of the District of Columbia is a denial to Negro children of the due process of law guaranteed by the Fifth Amendment. Pp. 347 U. S. 498 -500. (a) Though the Fifth Amendment does not contain an equal protection clause, as does the Fourteenth Amendment, which applies only to the States, the concepts of equal protection and due process are not mutually exclusive. P. 347 U. S. 499 . (b) Discrimination may be so unjustifiable as to be violative of due process. P. 347 U. S. 499 . (c) Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause. Pp. 347 U. S. 499 -500. (d) In view of this Court's decision in Brown v. Board of Education, ante, p. 347 U. S. 483 , that the Constitution prohibits the States from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government. P. 347 U. S. 500 . (e) The case is restored to the docket for further argument on specified questions relating to the form of the decree. P. 347 U. S. 500 . Page 347 U. S. 498 MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. This case challenges the validity of segregation in the public schools of the District of Columbia. The petitioners, minors of the Negro race, allege that such segregation deprives them of due process of law under the Fifth Amendment. They were refused admission to a public school attended by white children solely because of their race. They sought the aid of the District Court for the District of Columbia in obtaining admission. That court dismissed their complaint. The Court granted a writ of certiorari before judgment in the Court of Appeals because of the importance of the constitutional question presented. 344 U.S. 873. We have this day held that the Equal Protection Clause of the Fourteenth Amendment prohibits the states from maintaining racially segregated public schools. [ Footnote 1 ] The legal problem in the District of Columbia is somewhat Page 347 U. S. 499 different, however. The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause, as does the Fourteenth Amendment, which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The "equal protection of the laws" is a more explicit safeguard of prohibited unfairness than "due process of law," and therefore we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process. [ Footnote 2 ] Classifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions, and hence constitutionally suspect. [ Footnote 3 ] As long ago as 1896, this Court declared the principle "that the constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the general government, or by the states, against any citizen because of his race. [ Footnote 4 ]" And in Buchanan v. Warley, 245 U. S. 60 , the Court held that a statute which limited the right of a property owner to convey his property to a person of another race was, as an unreasonable discrimination, a denial of due process of law. Although the Court has not assumed to define "liberty" with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a Page 347 U. S. 500 proper governmental objective. Segregation in public education is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause. In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government. [ Footnote 5 ] We hold that racial segregation in the public schools of the District of Columbia is a denial of the due process of law guaranteed by the Fifth Amendment to the Constitution. For the reasons set out in Brown v. Board of Education, this case will be restored to the docket for reargument on Questions 4 and 5 previously propounded by the Court. 345 U.S. 972. It is so ordered. [ Footnote 1 ] Brown v. Board of Education, ante, p. 347 U. S. 483 . [ Footnote 2 ] Detroit Bank v. United States, 317 U. S. 329 ; Currin v. Wallace, 306 U. S. 1 , 306 U. S. 13 -14; Steward Machine Co. v. Davis, 301 U. S. 548 , 301 U. S. 585 . [ Footnote 3 ] Korematsu v. United States, 323 U. S. 214 , 323 U. S. 216 ; Hirabayashi v. United States, 320 U. S. 81 , 320 U. S. 100 . [ Footnote 4 ] Gibson v. Mississippi, 162 U. S. 565 , 162 U. S. 591 . Cf. Steele v. Louisville & Nashville R. Co., 323 U. S. 192 , 323 U. S. 198 -199. [ Footnote 5 ] Cf. Hurd v. Hodge, 334 U. S. 24 .

In Bolling v. Sharpe, the U.S. Supreme Court ruled that racial segregation in public schools within the District of Columbia violated the due process clause of the Fifth Amendment. While the Fifth Amendment does not contain an equal protection clause like the Fourteenth Amendment, the Court argued that the concepts of equal protection and due process are linked and that discrimination can violate due process. The Court emphasized that classifications based solely on race are constitutionally suspect and that segregation in public education is not justifiable by any proper governmental objective. This decision extended the principles established in Brown v. Board of Education, which prohibited racial segregation in state schools, to the federal level.

Equal Protection

Railway Express Agency, Inc. v. New York

https://supreme.justia.com/cases/federal/us/336/106/

U.S. Supreme Court Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949) Railway Express Agency, Inc. v. New York No. 51 Argued December 6, 1948 Decided January 31, 1949 336 U.S. 106 APPEAL FROM THE COURT OF APPEALS OF NEW YORK Syllabus A New York City traffic regulation forbids the operation of any advertising vehicle on the streets, but excepts vehicles which have upon them business notices or advertisements of the products of the owner and which are not used merely or mainly for advertising. An express company, which sold space on the exterior sides of its trucks for advertising and which operated such trucks on the streets, was convicted and fined for violating the ordinance. Upon review here of the state court judgment, held: 1. The regulation does not violate the due process clause of the Fourteenth Amendment. Pp. 336 U. S. 108 -109. (a) The function of this Court upon such review is not to weigh evidence on the due process issue in order to determine whether the regulation is sound or appropriate, nor to pass judgment on the wisdom of the regulation. P. 336 U. S. 109 . (b) This Court can not say that the regulation has no relation to the trnffic problem of the City. P. 109. 2. The exemption of vehicles having upon them advertisements of products sold by the owner does not render the regulation a denial of the equal protection of the laws. Pp. 336 U. S. 109 -110. Page 336 U. S. 107 (a) This Court can not say that the advertising which is forbidden has less incidence on traffic than that which is exempted. P. 336 U. S. 110 . (b) The regulation is not rendered invalid by the fact that it does not extend to what may be even greater distractions affecting traffic safety, such as the spectacular displays at Times Square. P. 336 U. S. 110 . 3. The regulation does not burden interstate commerce in violation of Art. I, § 8 of the Federal Constitution. P. 336 U. S. 111 . (a) Where traffic control and the use of highways are involved, and where there is no conflicting federal regulation, great leeway is allowed local authorities, even though the local regulation materially interferes with interstate commerce. P. 336 U. S. 111 . 297 N.Y. 703, 77 N.E.2d 13, affirmed. Appellant was convicted and fined for violation of a traffic regulation of the City of New York. The conviction was sustained by the Court of Special Sessions. 188 Misc. 342, 67 N.Y.S.2d 732. The Court of Appeals affirmed. 297 N Y. 703, 77 N.E.2d 13. On appeal to this Court, affirmed, p. 336 U. S. 111 . MR. JUSTICE DOUGLAS delivered the opinion of the Court. Section 124 of the Traffic Regulations of the City of New York [ Footnote 1 ] promulgated by the Police Commissioner provides: "No person shall operate, or cause to be operated, in or upon any street an advertising vehicle; provided Page 336 U. S. 108 that nothing herein contained shall prevent the putting of business notices upon business delivery vehicles, so long as such vehicles are engaged in the usual business or regular work of the owner, and not used merely or mainly for advertising." Appellant is engaged in a nationwide express business. It operates about 1,900 trucks in New York City, and sells the space on the exterior sides of these trucks for advertising. That advertising is, for the most part, unconnected with its own business. [ Footnote 2 ] It was convicted in the magistrates court and fined. The judgment of conviction was sustained in the Court of Special Sessions. 188 Misc. 342, 67 N.Y.S.2d 732. The Court of Appeals affirmed without opinion by a divided vote. 297 N.Y. 703, 77 N.E.2d 13. The case is here on appeal. Judicial Code § 237(a), 28 U.S.C. § 344(a), as amended, now 28 U.S.C. § 1257. The Court, in Fifth Ave. Coach Co. v. New York, 221 U. S. 467 , sustained the predecessor ordinance to the present regulation over the objection that it violated the due process and equal protection clauses of the Fourteenth Amendment. It is true that that was a municipal Page 336 U. S. 109 ordinance resting on the broad base of the police power, while the present regulation stands or falls merely as a traffic regulation. But we do not believe that distinction warrants a different result in the two cases. The Court of Special Sessions concluded that advertising on vehicles using the streets of New York City constitutes a distraction to vehicle drivers and to pedestrians alike, and therefore affects the safety of the public in the use of the streets. [ Footnote 3 ] We do not sit to weigh evidence on the due process issue in order to determine whether the regulation is sound or appropriate; nor is it our function to pass judgment on its wisdom. See Olsen v. Nebraska, 313 U. S. 236 . We would be trespassing on one of the most intensely local and specialized of all municipal problems if we held that this regulation had no relation to the traffic problem of New York City. It is the judgment of the local authorities that it does have such a relation. And nothing has been advanced which shows that to be palpably false. The question of equal protection of the laws is pressed more strenuously on us. It is pointed out that the regulation draws the line between advertisements of products sold by the owner of the truck and general advertisements. It is argued that unequal treatment on the basis of such a distinction is not justified by the aim and purpose of the regulation. It is said, for example, that one of appellant's trucks carrying the advertisement of a commercial house would not cause any greater distraction of pedestrians and vehicle drivers than if the Page 336 U. S. 110 commercial house carried the same advertisement on its own truck. Yet the regulation allows the latter to do what the former is forbidden from doing. It is therefore contended that the classification which the regulation makes has no relation to the traffic problem, since a violation turns not on what kind of advertisements are carried on trucks, but on whose trucks they are carried. That, however, is a superficial way of analyzing the problem, even if we assume that it is premised on the correct construction of the regulation. The local authorities may well have concluded that those who advertised their own wares on their trucks do not present the same traffic problem in view of the nature or extent of the advertising which they use. It would take a degree of omniscience which we lack to say that such is not the case. If that judgment is correct, the advertising displays that are exempt have less incidence on traffic than those of appellants. We cannot say that that judgment is not an allowable one. Yet, if it is, the classification has relation to the purpose for which it is made, and does not contain the kind of discrimination against which the Equal Protection Clause affords protection. It is by such practical considerations based on experience, rather than by theoretical inconsistencies, that the question of equal protection is to be answered. Patsone v. Pennsylvania, 232 U. S. 138 , 232 U. S. 144 ; Marcus Brown Holding Co. v. Feldman, 256 U. S. 170 , 256 U. S. 198 -199; Metropolitan Casualty Co. of New York v. Brownell, 294 U. S. 580 , 294 U. S. 585 -586. And the fact that New York City sees fit to eliminate from traffic this kind of distraction, but does not touch what may be even greater ones in a different category, such as the vivid displays on Times Square, is immaterial. It is no requirement of equal protection that all evils of the same genus be eradicated or none at all. Central Lumber Co. v. South Dakota, 226 U. S. 157 , 226 U. S. 160 . Page 336 U. S. 111 It is finally contended that the regulation is a burden on interstate commerce in violation of Art. I, § 8 of the Constitution. Many of these trucks are engaged in delivering goods in interstate commerce from New Jersey to New York. Where traffic control and the use of highways are involved, and where there is no conflicting federal regulation, great leeway is allowed local authorities, even though the local regulation materially interferes with interstate commerce. The case in that posture is controlled by South Carolina Hwy. Dept. v. Barnwell Bros., 303 U. S. 177 , 303 U. S. 187 et seq. . And see Maurer v. Hamilton, 309 U. S. 598 . Affirmed. MR. JUSTICE RUTLEDGE acquiesces in the Court's opinion and judgment, dubitante on the question of equal protection of the laws. [ Footnote 1 ] This regulation was promulgated by the Police Commissioner pursuant to the power granted the police department under § 435 of the New York City Charter, which provides as follows: "The police department and force shall have the power and it shall be their duty to . . . regulate, direct, control and restrict the movement of vehicular and pedestrian traffic for the facilitation of traffic, and the convenience of the public as well as the proper protection of human life and health; . . . The commissioner shall make such rules and regulations for the conduct of pedestrian and vehicular traffic in the use of the public streets, squares and avenues as he may deem necessary. . . ." [ Footnote 2 ] The advertisements for which appellant was convicted consisted of posters from three by seven feet to four by ten feet portraying Camel Cigarettes, Ringling Brothers and Barnum & Bailey Circus, and radio station WOR. Drivers of appellant's trucks carrying advertisements of Prince Albert Smoking Tobacco and U.S. Navy were also convicted. [ Footnote 3 ] The element of safety was held to be one of the standards by which the regulations of the Police Commissioner were to be judged. We accept that construction of the authority of the Police Commissioner under § 435 of the Charter, note 1 supra. See Price v. Illinois, 238 U. S. 446 , 238 U. S. 451 ; Hartford Accident & Indemnity Co. v. N. O. Nelson Co., 291 U. S. 352 , 291 U. S. 358 ; Central Hanover Bank & Trust Co. v. Kelly, 319 U. S. 94 , 310 U. S. 97 . MR. JUSTICE JACKSON, concurring. There are two clauses of the Fourteenth Amendment which this Court may invoke to invalidate ordinances by which municipal governments seek to solve their local problems. One says that no state shall "deprive any person of life, liberty, or property, without due process of law." The other declares that no state shall "deny to any person within its jurisdiction the equal protection of the laws." My philosophy as to the relative readiness with which we should resort to these two clauses is almost diametrically opposed to the philosophy which prevails on this Court. While claims of denial of equal protection are frequently asserted, they are rarely sustained. But the Court frequently uses the due process clause to strike down measures taken by municipalities to deal with activities in their streets and public places which the local Page 336 U. S. 112 authorities consider to create hazards, annoyances or discomforts to their inhabitants. And I have frequently dissented when I thought local power was improperly denied. See, for example, opinion in Douglas v. Jeannette and companion cases, 319 U. S. 157 , 319 U. S. 166 ,; and dissents in Saia v. New York, 334 U. S. 558 , 334 U. S. 566 ; Prince v. Massachusetts, 321 U. S. 158 , 321 U. S. 176 . The burden should rest heavily upon one who would persuade us to use the due process clause to strike down a substantive law or ordinance. Even its provident use against municipal regulations frequently disables all government -- state, municipal and federal -- from dealing with the conduct in question because the requirement of due process is also applicable to State and Federal Governments. Invalidation of a statute or an ordinance on due process grounds leaves ungoverned and ungovernable conduct which many people find objectionable. Invocation of the equal protection clause, on the other hand, does not disable any governmental body from dealing with the subject at hand. It merely means that the prohibition or regulation must have a broader impact. I regard it as a salutary doctrine that cities, states and the Federal Government must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation. This equality is not merely abstract justice. The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation, and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Page 336 U. S. 113 Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation. This case affords an illustration. Even casual observations from the sidewalks of New York will show that an ordinance which would forbid all advertising on vehicles would run into conflict with many interests, including some, if not all, of the great metropolitan newspapers, which use that advertising extensively. Their blandishment of the latest sensations is not less a cause of diverted attention and traffic hazard than the commonplace cigarette advertisement which this truck owner is forbidden to display. But any regulation applicable to all such advertising would require much clearer justification in local conditions to enable its enactment than does some regulation applicable to a few. I do not mention this to criticize the motives of those who enacted this ordinance, but it dramatizes the point that we are much more likely to find arbitrariness in the regulation of the few than of the many. Hence, for my part, I am more receptive to attack on local ordinances for denial of equal protection than for denial of due process, while the Court has more often used the latter clause. In this case, if the City of New York should assume that display of any advertising on vehicles tends and intends to distract the attention of persons using the highways and to increase the dangers of its traffic, I should think it fully within its constitutional powers to forbid it all. The same would be true if the City should undertake to eliminate or minimize the hazard by any generally applicable restraint, such as limiting the size, color, shape or perhaps to some extent the contents of vehicular advertising. Instead of such general regulation of advertising, however, the City seeks to reduce the hazard only by saying that while some may, others may not exhibit such appeals. The same display, for example, Page 336 U. S. 114 advertising cigarettes, which this appellant is forbidden to carry on its trucks, may be carried on the trucks of a cigarette dealer and might on the trucks of this appellant if it dealt in cigarettes. And almost an identical advertisement, certainly one of equal size, shape, color, and appearance, may be carried by this appellant if it proclaims its own offer to transport cigarettes. But it may not be carried so long as the message is not its own, but a cigarette dealer's offer to sell the same cigarettes. The City urges that this applies equally to all persons of a permissible classification, because all that it does is (1) forbid all inhabitants of New York City from engaging in the business of selling advertising space on trucks which move as part of the city traffic; (2) forbid all truck owners from incidentally employing their vehicles for such purpose, with the exception that all truck owners can advertise their own business on their own trucks. It is argued that, while this does not eliminate vehicular advertising, it does eliminate such advertising for hire, and, to this extent, cuts down the hazard sought to be controlled. That the difference between carrying on any business for hire and engaging in the same activity on one's own is a sufficient one to sustain some types of regulations of the one that is not applied to the other is almost elementary. But it is usual to find such regulations applied to the very incidents wherein the two classes present different problems, such as in charges, liability and quality of service. The difference, however, is invoked here to sustain a discrimination in a problem in which the two classes present identical dangers. The courts of New York have declared that the sole nature and purpose of the regulation before us is to reduce traffic hazards. There is not even a pretense here that the traffic hazard created Page 336 U. S. 115 by the advertising which is forbidden is in any manner or degree more hazardous than that which is permitted. It is urged with considerable force that this local regulation does not comply with the equal protection clause, because it applies unequally upon classes whose differentiation is in no way relevant to the objects of the regulation. As a matter of principle, and in view of my attitude toward the equal protection clause, I do not think differences of treatment under law should be approved on classification because of differences unrelated to the legislative purpose. The equal protection clause ceases to assure either equality or protection if it is avoided by any conceivable difference that can be pointed out between those bound and those left free. This Court has often announced the principle that the differentiation must have an appropriate relation to the object of the legislation or ordinance. See, for example, Mayflower Farms v. Ten Eyck, 297 U. S. 266 ; Smith v. Cahoon, 283 U. S. 553 . In the latter case, a motor vehicle regulation was struck down upon citation of many authorities because "such a classification is not based on anything having relation to the purpose for which it is made." 283 U. S. 283 U.S. 553, 283 U. S. 567 . If that were the situation here, I should think we should reach a similar conclusion. The question in my mind comes to this. Where individuals contribute to an evil or danger in the same way and to the same degree, may those who do so for hire be prohibited, while those who do so for their own commercial ends but not for hire be allowed to continue? I think the answer has to be that the hireling may be put in a class by himself, and may be dealt with differently than those who act on their own. But this is not merely because such a discrimination will enable the lawmaker to diminish the evil. That might be done by many classifications, which I should think wholly unsustainable. Page 336 U. S. 116 It is, rather, because there is a real difference between doing in self-interest and doing for hire, so that it is one thing to tolerate action from those who act on their own, and it is another thing to permit the same action to be promoted for a price. Certainly the presence of absence of hire has been the hook by which much highway regulations has been supported. Rights usual to passengers may be denied to the nonpaying guest in an automobile to limit vexatious litigation. Silver v. Silver, 280 U. S. 117 . A state may require security against injuries from one using the highways for hire that it does not exact from others because, as Mr. Justice Sutherland put it, "The streets belong to the public, and are primarily for the use of the public in the ordinary way. Their use for the purposes of gain is special and extraordinary, and, generally at least, may be prohibited or conditioned as the Legislature deems proper." Packard v. Banton, 264 U. S. 140 , 264 U. S. 144 . In the case of those who let out automobiles to those who drive them, the Court, through Mr. Justice Butler, said of the State, "It may prohibit or condition as it deems proper the use of city streets as a place for the carrying on of private business." Hodge Co. v. Cincinnati, 284 U. S. 335 , 284 U. S. 337 . See also Sproles v. Binford, 286 U. S. 374 , 286 U. S. 393 ; Stephenson v. Binford, 287 U. S. 251 , 287 U. S. 278 ; Hicklin v. Coney, 290 U. S. 169 ; Stanley v. Public Utilities Commission, 295 U. S. 76 ; Aero Mayflower Transit Co. v. Georgia Commission, 295 U. S. 285 ; Dixie Ohio Express Co. v. State Revenue Commission, 306 U. S. 72 . The rule was flatly stated for the Court by Mr. Justice Brandeis: "In dealing with the problem of safety of the highways, as in other problems of motor transportation, the state may adopt measures which favor vehicles used solely in the business of their owners, as distinguished from those which are operated for hire by carriers who use the highways as their place of business." Bradley v. Public Utilities Commission , 289 Page 336 U. S. 117 U.S. 92, 289 U. S. 97 . However, it is otherwise if the discriminations within the regulates class are based on arbitrary differences as to commodities carried having no relation to the object of the regulation. Smith v. Cahoon, 283 U. S. 553 . See also Quaker City Cab Co. v. Pennsylvania, 277 U. S. 389 . Of course, this appellant did not hold itself out to carry or display everybody's advertising, and its rental of space on the sides of its trucks was only incidental to the main business which brought its trucks into the streets. But it is not difficult to see that, in a day of extravagant advertising more or less subsidized by tax deduction, the rental of truck space could become an obnoxious enterprise. While I do not think highly of this type of regulation, that is not my business, and in view of the control I would concede to cities to protect citizens in quiet and orderly use for their proper purposes of the highways and public places, see dissent in Saia v. New York, 334 U. S. 558 , I think the judgment below must be affirmed.

The U.S. Supreme Court upheld a New York City traffic regulation prohibiting the operation of advertising vehicles on streets, with an exemption for vehicles displaying advertisements for the owner's products. The Court found that the regulation did not violate due process, equal protection, or burden interstate commerce. It allowed local authorities significant discretion in traffic control and highway use, recognizing the unique challenges of urban transportation.

Equal Protection

Brown v. Board of Education of Topeka

https://supreme.justia.com/cases/federal/us/347/483/

U.S. Supreme Court Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) Brown v. Board of Education of Topeka Argued December 9, 1952 Reargued December 8, 1953 Decided May 17, 1954* APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware. They are premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion. [ Footnote 1 ] [487 ] In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, [488 ] they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called "separate but equal" doctrine announced by this Court in Plessy v. Fergson, 163 U. S. 537 . Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate. In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools. The plaintiffs contend that segregated public schools are not "equal" and cannot be made "equal," and that hence they are deprived of the equal protection of the laws. Because of the obvious importance of the question presented, the Court took jurisdiction. [ Footnote 2 ] Argument was heard in the 1952 Term, and reargument was heard this Term on certain questions propounded by the Court. [ Footnote 3 ] [489 ] Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then-existing practices in racial segregation, and the views of proponents and opponents of the Amendment. This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among "all persons born or naturalized in the United States." Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty. An additional reason for the inconclusive nature of the Amendment's history with respect to segregated schools is the status of public education at that time. [ Footnote 4 ] In the South, the movement toward free common schools, supported [490 ] by general taxation, had not yet taken hold. Education of white children was largely in the hands of private groups. Education of Negroes was almost nonexistent, and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences, as well as in the business and professional world. It is true that public school education at the time of the Amendment had advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the congressional debates. Even in the North, the conditions of public education did not approximate those existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many states, and compulsory school attendance was virtually unknown. As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education. In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race. [ Footnote 5 ] The doctrine of [491 ] "separate but equal" did not make its appearance in this Court until 1896 in the case of Plessy v. Ferguson, supra, involving not education but transportation. [ Footnote 6 ] American courts have since labored with the doctrine for over half a century. In this Court, there have been six cases involving the "separate but equal" doctrine in the field of public education. [ Footnote 7 ] In Cumming v. County Board of Education, 175 U. S. 528 , and Gong Lum v. Rice, 275 U. S. 78 , the validity of the doctrine itself was not challenged. [ Footnote 8 ] In more recent cases, all on the graduate school [492 ] level, inequality was found in that specific benefits enjoyed by white students were denied to Negro students of the same educational qualifications. Missouri ex rel. Gaines v. Canada, 305 U. S. 337 ; Sipuel v. Oklahoma, 332 U. S. 631 ; Sweatt v. Painter, 339 U. S. 629 ; McLaurin v. Oklahoma State Regents, 339 U. S. 637 . In none of these cases was it necessary to reexamine the doctrine to grant relief to the Negro plaintiff. And in Sweatt v. Painter, supra, the Court expressly reserved decision on the question whether Plessy v. Ferguson should be held inapplicable to public education. In the instant cases, that question is directly presented. Here, unlike Sweatt v. Painter, there are findings below that the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other "tangible" factors. [ Footnote 9 ] Our decision, therefore, cannot turn on merely a comparison of these tangible factors in the Negro and white schools involved in each of the cases. We must look instead to the effect of segregation itself on public education. In approaching this problem, we cannot turn the clock back to 1868, when the Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout [493 ] the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws. Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. We come then to the question presented: does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does. In Sweatt v. Painter, supra, in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on "those qualities which are incapable of objective measurement but which make for greatness in a law school." In McLaurin v. Oklahoma State Regents, supra, the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: ". . . his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession." [494 ] Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs: "Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system. [ Footnote 10 ]" Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. [ Footnote 11 ] Any language [495 ] in Plessy v. Ferguson contrary to this finding is rejected. We conclude that, in the field of public education, the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment. [ Footnote 12 ] Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question -- the constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on Questions 4 and 5 previously propounded by the Court for the reargument this Term. [ Footnote 13 ] The Attorney General [496 ] of the United States is again invited to participate. The Attorneys General of the states requiring or permitting segregation in public education will also be permitted to appear as amici curiae upon request to do so by September 15, 1954, and submission of briefs by October 1, 1954. [ Footnote 14 ] It is so ordered. * Together with No. 2, Briggs et al. v. Elliott et al., on appeal from the United States District Court for the Eastern District of South Carolina, argued December 9-10, 1952, reargued December 7-8, 1953; No. 4, Davis et al. v. County School Board of Prince Edward County, Virginia, et al., on appeal from the United States District Court for the Eastern District of Virginia, argued December 10, 1952, reargued December 7-8, 1953, and No. 10, Gebhart et al. v. Belton et al., on certiorari to the Supreme Court of Delaware, argued December 11, 1952, reargued December 9, 1953. [ Footnote 1 ] In the Kansas case, Brown v. Board of Education, the plaintiffs are Negro children of elementary school age residing in Topeka. They brought this action in the United States District Court for the District of Kansas to enjoin enforcement of a Kansas statute which permits, but does not require, cities of more than 15,000 population to maintain separate school facilities for Negro and white students. Kan.Gen.Stat. § 72-1724 (1949). Pursuant to that authority, the Topeka Board of Education elected to establish segregated elementary schools. Other public schools in the community, however, are operated on a nonsegregated basis. The three-judge District Court, convened under 28 U.S.C. §§ 2281 and 2284, found that segregation in public education has a detrimental effect upon Negro children, but denied relief on the ground that the Negro and white schools were substantially equal with respect to buildings, transportation, curricula, and educational qualifications of teachers. 98 F. Supp. 797 . The case is here on direct appeal under 28 U.S.C. § 1253. In the South Carolina case, Briggs v. Elliott, the plaintiffs are Negro children of both elementary and high school age residing in Clarendon County. They brought this action in the United States District Court for the Eastern District of South Carolina to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. S.C.Const., Art. XI, § 7; S.C.Code § 5377 (1942). The three-judge District Court, convened under 28 U.S.C. §§ 2281 and 2284, denied the requested relief. The court found that the Negro schools were inferior to the white schools, and ordered the defendants to begin immediately to equalize the facilities. But the court sustained the validity of the contested provisions and denied the plaintiffs admission to the white schools during the equalization program. 98 F. Supp. 529 . This Court vacated the District Court's judgment and remanded the case for the purpose of obtaining the court's views on a report filed by the defendants concerning the progress made in the equalization program. 342 U. S. 350 . On remand, the District Court found that substantial equality had been achieved except for buildings and that the defendants were proceeding to rectify this inequality as well. 103 F. Supp. 920 . The case is again here on direct appeal under 28 U.S.C. § 1253. In the Virginia case, Davis v. County School Board, the plaintiffs are Negro children of high school age residing in Prince Edward County. They brought this action in the United States District Court for the Eastern District of Virginia to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. Va.Const., § 140; Va.Code § 22-221 (1950). The three-judge District Court, convened under 28 U.S.C. §§ 2281 and 2284, denied the requested relief. The court found the Negro school inferior in physical plant, curricula, and transportation, and ordered the defendants forthwith to provide substantially equal curricula and transportation and to "proceed with all reasonable diligence and dispatch to remove" the inequality in physical plant. But, as in the South Carolina case, the court sustained the validity of the contested provisions and denied the plaintiffs admission to the white schools during the equalization program. 103 F. Supp. 337 . The case is here on direct appeal under 28 U.S.C. § 1253. In the Delaware case, Gebhart v. Belton, the plaintiffs are Negro children of both elementary and high school age residing in New Castle County. They brought this action in the Delaware Court of Chancery to enjoin enforcement of provisions in the state constitution and statutory code which require the segregation of Negroes and whites in public schools. Del.Const., Art. X, § 2; Del.Rev.Code § 2631 (1935). The Chancellor gave judgment for the plaintiffs and ordered their immediate admission to schools previously attended only by white children, on the ground that the Negro schools were inferior with respect to teacher training, pupil-teacher ratio, extracurricular activities, physical plant, and time and distance involved in travel. 87 A.2d 862 . The Chancellor also found that segregation itself results in an inferior education for Negro children ( see note 10 infra ), but did not rest his decision on that ground. Id. at 865. The Chancellor's decree was affirmed by the Supreme Court of Delaware, which intimated, however, that the defendants might be able to obtain a modification of the decree after equalization of the Negro and white schools had been accomplished. 91 A.2d 137 , 152. The defendants, contending only that the Delaware courts had erred in ordering the immediate admission of the Negro plaintiffs to the white schools, applied to this Court for certiorari. The writ was granted, 344 U.S. 891. The plaintiffs, who were successful below, did not submit a cross-petition. [ Footnote 2 ] 344 U. S. 1 , 141, 891. [ Footnote 3 ] 345 U.S. 972. The Attorney General of the United States participated both Terms as amicus curiae. [ Footnote 4 ] For a general study of the development of public education prior to the Amendment, see Butts and Cremin, A History of Education in American Culture (1953), Pts. I, II; Cubberley, Public Education in the United States (1934 ed.), cc. II-XII. School practices current at the time of the adoption of the Fourteenth Amendment are described in Butts and Cremin, supra, at 269-275; Cubberley, supra, at 288-339, 408-431; Knight, Public Education in the South (1922), cc. VIII, IX. See also H. Ex.Doc. No. 315, 41st Cong., 2d Sess. (1871). Although the demand for free public schools followed substantially the same pattern in both the North and the South, the development in the South did not begin to gain momentum until about 1850, some twenty years after that in the North. The reasons for the somewhat slower development in the South ( e.g., the rural character of the South and the different regional attitudes toward state assistance) are well explained in Cubberley, supra, at 408-423. In the country as a whole, but particularly in the South, the War virtually stopped all progress in public education. Id. at 427-428. The low status of Negro education in all sections of the country, both before and immediately after the War, is described in Beale, A History of Freedom of Teaching in American Schools (1941), 112-132, 175-195. Compulsory school attendance laws were not generally adopted until after the ratification of the Fourteenth Amendment, and it was not until 1918 that such laws were in force in all the states. Cubberley, supra, at 563-565. [ Footnote 5 ] Slaughter-House Cases , 16 Wall. 36, 67-72 (1873); Strauder v. West Virginia, 100 U. S. 303 , 307-308 (1880): "It ordains that no State shall deprive any person of life, liberty, or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. What is this but declaring that the law in the States shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color? The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race -- the right to exemption from unfriendly legislation against them distinctively as colored -- exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race." See also Virginia v. Rives, 100 U. S. 313 , 318 (1880); Ex parte Virginia, 100 U. S. 339 , 344-345 (1880). [ Footnote 6 ] The doctrine apparently originated in Roberts v. City of Boston, 59 Mass.198, 206 (1850), upholding school segregation against attack as being violative of a state constitutional guarantee of equality. Segregation in Boston public schools was eliminated in 1855. Mass.Acts 1855, c. 256. But elsewhere in the North, segregation in public education has persisted in some communities until recent years. It is apparent that such segregation has long been a nationwide problem, not merely one of sectional concern. [ Footnote 7 ] See also Berea College v. Kentucky, 211 U. S. 45 (1908). [ Footnote 8 ] In the Cummin case, Negro taxpayers sought an injunction requiring the defendant school board to discontinue the operation of a high school for white children until the board resumed operation of a high school for Negro children. Similarly, in the Gong Lum case, the plaintiff, a child of Chinese descent, contended only that state authorities had misapplied the doctrine by classifying him with Negro children and requiring him to attend a Negro school. [ Footnote 9 ] In the Kansas case, the court below found substantial equality as to all such factors. 98 F. Supp. 797 , 798. In the South Carolina case, the court below found that the defendants were proceeding "promptly and in good faith to comply with the court's decree." 103 F. Supp. 920 , 921. In the Virginia case, the court below noted that the equalization program was already "afoot and progressing" ( 103 F. Supp. 337 , 341); since then, we have been advised, in the Virginia Attorney General's brief on reargument, that the program has now been completed. In the Delaware case, the court below similarly noted that the state's equalization program was well under way. 91 A.2d 137 , 149. [ Footnote 10 ] A similar finding was made in the Delaware case: "I conclude from the testimony that, in our Delaware society, State-imposed segregation in education itself results in the Negro children, as a class, receiving educational opportunities which are substantially inferior to those available to white children otherwise similarly situated." 87 A.2d 862 , 865. [ Footnote 11 ] K.B. Clark, Effect of Prejudice and Discrimination on Personality Development (Mid-century White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation A Survey of Social Science Opinion, 26 J.Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int.J.Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed., 1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An American Dilemma (1944). [ Footnote 12 ] See Bolling v. Sharpe, post, p. 497, concerning the Due Process Clause of the Fifth Amendment. [ Footnote 13 ] "4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment" "( a ) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or" "( b ) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions?" "5. On the assumption on which questions 4( a ) and ( b ) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4( b )," "( a ) should this Court formulate detailed decrees in these cases;" "( b ) if so, what specific issues should the decrees reach;" "( c ) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees;" "( d ) should this Court remand to the courts of first instance with directions to frame decrees in these cases and, if so, what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees?" [ Footnote 14 ] See Rule 42, Revised Rules of this Court (effective July 1, 1954).

Here is a summary of the key points from the case: - The case, Brown v. Board of Education of Topeka, was a consolidation of several cases from different states, all involving racial segregation in public schools. - The plaintiffs, minors of the Negro race, sought admission to white schools, arguing that segregated schools were inherently unequal and violated the Equal Protection Clause of the Fourteenth Amendment. - The lower courts in all but one case upheld segregation under the "separate but equal" doctrine established in Plessy v. Ferguson. The Delaware court ordered admission to white schools due to their superiority over Negro schools. - The Supreme Court took jurisdiction due to the importance of the question presented and heard rearguments focused on the historical context of the Fourteenth Amendment. - The Court concluded that racial segregation in public education violated the Equal Protection Clause, overturning Plessy v. Ferguson and ending legal segregation in US public schools. - The Court recognized the negative psychological impact of segregation and the inherent inequality of separate educational facilities. - The Court considered the implementation of desegregation, including the potential for gradual adjustment and the formulation of detailed decrees. This case was a landmark decision that played a crucial role in the civil rights movement, ending legal segregation in public schools and setting a precedent for further challenges to racial segregation in other areas of American life.

Equal Protection

Hernandez v. Texas

https://supreme.justia.com/cases/federal/us/347/475/

U.S. Supreme Court Hernandez v. Texas, 347 U.S. 475 (1954) Hernandez v. Texas No. 406 Argued January 11, 1954 Decided May 3, 1954 347 U.S. 475 CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS Syllabus The systematic exclusion of persons of Mexican descent from service as jury commissioners, grand jurors, and petit jurors in the Texas county in which petitioner was indicted and tried for murder, although there were a substantial number of such persons in the county fully qualified to serve, deprived petitioner, a person of Mexican descent, of the equal protection of the laws guaranteed by the Fourteenth Amendment, and his conviction in a state court is reversed. Pp. 347 U. S. 476 -482. (a) The constitutional guarantee of equal protection of the laws is not directed solely against discrimination between whites and Negroes. Pp. 347 U. S. 477 -478. (b) When the existence of a distinct class is demonstrated, and it is shown that the laws, as written or as applied, single out that class for different treatment not based on some reasonable classification, the guarantees of the Constitution have been violated. P. 347 U. S. 478 . (c) The exclusion of otherwise eligible persons from jury service solely because of their ancestry or national origin is discrimination prohibited by the Fourteenth Amendment. Pp. 347 U. S. 478 -479. (d) The evidence in this case was sufficient to prove that, in the county in question, persons of Mexican descent constitute a separate class, distinct from "whites." Pp. 347 U. S. 479 -480. (e) A prima facie case of denial of the equal protection of the laws was established in this case by evidence that there were in the county a substantial number of persons of Mexican descent with the qualifications required for jury service, but that none of them had served on a jury commission, grand jury or petit jury for 25 years. Pp. 347 U. S. 480 -481. (f) The testimony of five jury commissioners that they had not discriminated against persons of Mexican descent in selecting jurors, and that their only objective had been to select those whom they thought best qualified, was not enough to overcome petitioner's prima facie case of denial of the equal protection of the laws. Pp. 347 U. S. 481 -482. (g) Petitioner had the constitutional right to be indicted and tried by juries from which all members of his class were not systematically excluded. P. 347 U. S. 482 . ___ Tex.Cr.R. ___, 251 S.W.2d 531 , reversed. Page 347 U. S. 476 MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. The petitioner, Pete Hernandez, was indicted for the murder of one Joe Espinosa by a grand jury in Jackson County, Texas. He was convicted and sentenced to life imprisonment. The Texas Court of Criminal Appeals affirmed the judgment of the trial court. 251 S.W.2d 531 . Prior to the trial, the petitioner, by his counsel, offered timely motions to quash the indictment and the jury panel. He alleged that persons of Mexican descent were systematically excluded from service as jury commissioners, [ Footnote 1 ] grand jurors, and petit jurors, although there were such persons fully Page 347 U. S. 477 qualified to serve residing in Jackson County. The petitioner asserted that exclusion of this class deprived him, as a member of the class, of the equal protection of the laws guaranteed by the Fourteenth Amendment of the Constitution. After a hearing, the trial court denied the motions. At the trial, the motions were renewed, further evidence taken, and the motions again denied. An allegation that the trial court erred in denying the motions was the sole basis of petitioner's appeal. In affirming the judgment of the trial court, the Texas Court of Criminal Appeals considered and passed upon the substantial federal question raised by the petitioner. We granted a writ of certiorari to review that decision. 346 U.S. 811. In numerous decisions, this Court has held that it is a denial of the equal protection of the laws to try a defendant of a particular race or color under an indictment issued by a grand jury, or before a petit jury, from which all persons of his race or color have, solely because of that race or color, been excluded by the State, whether acting through its legislature, its courts, or its executive or administrative officers. [ Footnote 2 ] Although the Court has had little occasion to rule on the question directly, it has been recognized since Strauder v. West Virginia, 100 U. S. 303 , that the exclusion of a class of persons from jury service on grounds other than race or color may also deprive a defendant who is a member of that class of the constitutional guarantee of equal protection of the laws. [ Footnote 3 ] The State of Texas would have us hold that there are only two classes -- white and Negro -- within the contemplation of the Fourteenth Amendment. The decisions of this Court Page 347 U. S. 478 do not support that view. [ Footnote 4 ] And, except where the question presented involves the exclusion of persons of Mexican descent from juries, [ Footnote 5 ] Texas courts have taken a broader view of the scope of the equal protection clause. [ Footnote 6 ] Throughout our history, differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws. But community prejudices are not static, and, from time to time, other differences from the community norm may define other groups which need the same protection. Whether such a group exists within a community is a question of fact. When the existence of a distinct class is demonstrated, and it is further shown that the laws, as written or as applied, single out that class for different treatment not based on some reasonable classification, the guarantees of the Constitution have been violated. The Fourteenth Amendment is not directed solely against discrimination due to a "two-class theory" -- that is, based upon differences between "white" and Negro. As the petitioner acknowledges, the Texas system of selecting grand and petit jurors by the use of jury commissions is fair on its face and capable of being utilized Page 347 U. S. 479 without discrimination. [ Footnote 7 ] But, as this Court has held, the system is susceptible to abuse, and can be employed in a discriminatory manner. [ Footnote 8 ] The exclusion of otherwise eligible persons from jury service solely because of their ancestry or national origin is discrimination prohibited by the Fourteenth Amendment. The Texas statute makes no such discrimination, but the petitioner alleges that those administering the law do. The petitioner's initial burden in substantiating his charge of group discrimination was to prove that persons of Mexican descent constitute a separate class in Jackson County, distinct from "whites." [ Footnote 9 ] One method by which this may be demonstrated is by showing the attitude of the community. Here, the testimony of responsible officials and citizens contained the admission that residents of the community distinguished between "white" and "Mexican." The participation of persons of Mexican descent in business and community groups was shown to be slight. Until very recent times, children of Mexican descent were required to attend a segregated school for the first four grades. [ Footnote 10 ] At least one restaurant in town prominently displayed a sign announcing "No Mexicans Served." On the courthouse grounds at the time of the Page 347 U. S. 480 hearing, there were two men's toilets, one unmarked, and the other marked "Colored Men" and "Hombres Aqui" ("Men Here"). No substantial evidence was offered to rebut the logical inference to be drawn from these facts, and it must be concluded that petitioner succeeded in his proof. Having established the existence of a class, petitioner was then charged with the burden of proving discrimination. To do so, he relied on the pattern of proof established by Norris v. Alabama, 294 U. S. 587 . In that case, proof that Negroes constituted a substantial segment of the population of the jurisdiction, that some Negroes were qualified to serve as jurors, and that none had been called for jury service over an extended period of time, was held to constitute prima facie proof of the systematic exclusion of Negroes from jury service. This holding, sometimes called the "rule of exclusion," has been applied in other cases, [ Footnote 11 ] and it is available in supplying proof of discrimination against any delineated class. The petitioner established that 14% of the population of Jackson County were persons with Mexican or Latin American surnames, and that 11% of the males over 21 bore such names. [ Footnote 12 ] The County Tax Assessor testified Page 347 U. S. 481 that 6 or 7 percent of the freeholders on the tax rolls of the County were persons of Mexican descent. The State of Texas stipulated that, "for the last twenty-five years, there is no record of any person with a Mexican or Latin American name having served on a jury commission, grand jury or petit jury in Jackson County. [ Footnote 13 ]" The parties also stipulated that "there are some male persons of Mexican or Latin American descent in Jackson County who, by virtue of being citizens, freeholders, and having all other legal prerequisites to jury service, are eligible to serve as members of a jury commission, grand jury and/or petit jury. [ Footnote 14 ]" The petitioner met the burden of proof imposed in Norris v. Alabama, supra. To rebut the strong prima facie case of the denial of the equal protection of the laws guaranteed by the Constitution thus established, the State offered the testimony of five jury commissioners that they had no discriminated against persons of Mexican or Latin American descent in selecting jurors. They stated that their only objective had been to select those whom they thought were best qualified. This testimony is not enough to overcome the petitioner's case. As the Court said in Norris v. Alabama: "That showing as to the long-continued exclusion of negroes from jury service, and as to the many negroes qualified for that service, could not be met by mere generalities. If, in the presence of such testimony as defendant adduced, the mere general assertions by officials of their performance of duty were to be accepted as an adequate justification for Page 347 U. S. 482 the complete exclusion of negroes from jury service, the constitutional provision . . . would be but a vain and illusory requirement. [ Footnote 15 ]" The same reasoning is applicable to these facts. Circumstances or chance may well dictate that no persons in a certain class will serve on a particular jury or during some particular period. But it taxes our credulity to say that mere chance resulted in their being no members of this class among the over six thousand jurors called in the past 25 years. The result bespeaks discrimination, whether or not it was a conscious decision on the part of any individual jury commissioner. The judgment of conviction must be reversed. To say that this decision revives the rejected contention that the Fourteenth Amendment requires proportional representation of all the component ethnic groups of the community on every jury [ Footnote 16 ] ignores the facts. The petitioner did not seek proportional representation, nor did he claim a right to have persons of Mexican descent sit on the particular juries which he faced. [ Footnote 17 ] His only claim is the right to be indicted and tried by juries from which all members of his class are not systematically excluded -- juries selected from among all qualified persons regardless of national origin or descent. To this much he is entitled by the Constitution. Reversed. [ Footnote 1 ] Texas law provides that, at each term of court, the judge shall appoint three to five jury commissioners. The judge instructs these commissioners as to their duties. After taking an oath that they will not knowingly select a grand juror they believe unfit or unqualified, the commissioners retire to a room in the courthouse where they select from the county assessment roll the names of 16 grand jurors from different parts of the county. These names are placed in a sealed envelope and delivered to the clerk. Thirty days before court meets, the clerk delivers a copy of the list to the sheriff who summons the jurors. Vernon's Tex.Code Crim.Proc. arts. 333-350. The general jury panel is also selected by the jury commission. Vernon's Tex.Civ.Stat. art. 2107. In capital cases, a special venire may be selected from the list furnished by the commissioners. Vernon's Tex.Code Crim.Proc. art. 592. [ Footnote 2 ] See Carter v. State of Texas, 177 U. S. 442 , 177 U. S. 447 . [ Footnote 3 ] "Nor, if a law should be passed excluding all naturalized Celtic Irishmen [from jury service], would there be any doubt of its inconsistency with the spirit of the amendment." 100 U.S. at 100 U. S. 308 . Cf. American Sugar Refining Co. v. Louisiana, 179 U. S. 89 , 179 U. S. 92 . [ Footnote 4 ] See Truax v. Raich, 239 U. S. 33 ; Takahaski v. Fish & Game Commission, 334 U. S. 410 ; cf. Hirabayashi v. United States, 320 U. S. 81 , 320 U. S. 100 : "Distinctions between citizens solely because of their ancestry are, by their very nature, odious to a free people whose institutions are founded upon the doctrine of equality." [ Footnote 5 ] Sanchez v. State, 147 Tex.Cr.R. 436, 181 S.W.2d 87; Salazar v. State, 149 Tex.Cr.R. 260, 193 S.W.2d 211; Sanchez v. State, Tex.Cr.App., 243 S.W.2d 700 . [ Footnote 6 ] In Juarez v. State, 102 Tex.Cr.R. 297, 277 S.W. 1091, the Texas court held that the systematic exclusion of Roman Catholics from juries was barred by the Fourteenth Amendment. In Clifton v. Puente, Tex.Civ.App., 218 S.W.2d 272, the Texas court ruled that restrictive covenants prohibiting the sale of land to persons of Mexican descent were unenforceable. [ Footnote 7 ] Smith v. Texas, 311 U. S. 128 , 311 U. S. 130 . [ Footnote 8 ] [ Footnote 9 ] We do not have before us the question whether or not the Court might take judicial notice that persons of Mexican descent are there considered as a separate class. See Marden, Minorities in American Society; McDonagh & Richards, Ethnic Relations in the United States. [ Footnote 10 ] The reason given by the school superintendent for this segregation was that these children needed special help in learning English. In this special school, however, each teacher taught two grades, while, in the regular school, each taught only one in most instances. Most of the children of Mexican descent left school by the fifth or sixth grade. [ Footnote 11 ] See note 8 supra. [ Footnote 12 ] The 1950 census report shows that, of the 12,916 residents of Jackson County, 1,865, or about 14% had Mexican or Latin American surnames. U.S. Census of Population, 1950, Vol. II, pt. 43, p. 180; id., Vol. IV, pt. 3, c. C, p. 45. Of these 1,865, 1,738 were native born American citizens and 65 were naturalized citizens. Id., Vol. IV, pt. 3, c. C, p. 45. Of the 3,754 males over 21 years of age in the County, 408, or about 11%, had Spanish surnames. Id., Vol. II, pt. 43, p. 180; id., Vol. IV, pt. 3, c. C, p. 67. The State challenges any reliance on names as showing the descent of persons in the County. However, just as persons of a different race are distinguished by color, these Spanish names provide ready identification of the members of this class. In selecting jurors, the jury commissioners work from a list of names. [ Footnote 13 ] R. 34. [ Footnote 14 ] R. 55. The parties also stipulated that there were no persons of Mexican or Latin American descent on the list of talesmen. R. 83. Each item of each stipulation was amply supported by the testimony adduced at the hearing. [ Footnote 15 ] 294 U.S. at 294 U. S. 598 . [ Footnote 16 ] See Akins v. Texas, 325 U. S. 398 , 325 U. S. 403 ; Cassell v. Texas, 339 U. S. 282 , 339 U. S. 286 -287. [ Footnote 17 ] See Akins v. Texas, supra, note 16, at 325 U. S. 403 .

In Hernandez v. Texas (1954), the U.S. Supreme Court ruled that the systematic exclusion of individuals of Mexican descent from jury service violated the Fourteenth Amendment's guarantee of equal protection under the law. The Court held that the constitutional right to equal protection applies to all racial groups, not just whites and African Americans. The Court found that in Jackson County, Texas, individuals of Mexican descent constituted a distinct class and were treated differently due to their ancestry or national origin. Despite comprising a substantial portion of the county's population, no person of Mexican descent had served on a jury commission, grand jury, or petit jury for 25 years. The Court concluded that the petitioner, Pete Hernandez, had been denied his constitutional right to be indicted and tried by juries from which members of his class were not systematically excluded. The Court reversed Hernandez's murder conviction, stating that the exclusion of individuals from jury service based solely on their ancestry or national origin was prohibited by the Fourteenth Amendment.

Equal Protection

Sweatt v. Painter

https://supreme.justia.com/cases/federal/us/339/629/

U.S. Supreme Court Sweatt v. Painter, 339 U.S. 629 (1950) Sweatt v. Painter No. 44 Argued April 4, 1950 Decided June 5, 1950 339 U.S. 629 CERTIORARI TO THE SUPREME COURT OF TEXAS Syllabus Petitioner was denied admission to the state supported University of Texas Law School, solely because he is a Negro and state law forbids the admission of Negroes to that Law School. He was offered, but he refused, enrollment in a separate law school newly established by the State for Negroes. The University of Texas Law School has 16 full-time and three part-time professors, 850 students, a library of 65,000 volumes, a law review, moot court facilities, scholarship funds, an Order of the Coif affiliation, many distinguished alumni, and much tradition and prestige. The separate law school for Negroes has five full-time professors, 23 students, a library of 16,500 volumes, a practice court, a legal aid association, and one alumnus admitted to the Texas Bar, but it excludes from its student body members of racial groups which number 85% of the population of the State and which include most of the lawyers, witnesses, jurors, judges, and other officials with whom petitioner would deal as a member of the Texas Bar. Held: The legal education offered petitioner is not substantially equal to that which he would receive if admitted to the University of Texas Law School, and the Equal Protection Clause of the Fourteenth Amendment requires that he be admitted to the University of Texas Law School. Pp. 343 U. S. 631 -636. Reversed. A Texas trial court found that a newly established state law school for Negroes offered petitioner "privileges, advantages, and opportunities for the study of law substantially equivalent to those offered by the State to white students at the University of Texas," and denied mandamus to compel his admission to the University of Texas Law School. The Court of Civil Appeals affirmed. 210 S.W.2d 442. The Texas Supreme Court denied writ of error. This Court granted certiorari. 338 U.S. 865. Reversed, p. 339 U. S. 636 . Page 339 U. S. 631 MR. CHIEF JUSTICE VINSON delivered the opinion of the Court. This case and McLaurin v. Oklahoma State Regents, post, p. 339 U. S. 637 , present different aspects of this general question: to what extent does the Equal Protection Clause of the Fourteenth Amendment limit the power of a state to distinguish between students of different races in professional and graduate education in a state university? Broader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions only in the context of the particular case before the Court. We have frequently reiterated that this Court will decide constitutional questions only when necessary to the disposition of the case at hand, and that such decisions will be drawn as narrowly as possible. Rescue Army v. Municipal Court, 331 U. S. 549 (1947), and cases cited therein. Because of this traditional reluctance to extend constitutional interpretations to situations or facts which are not before the Court, much of the excellent research and detailed argument presented in these cases is unnecessary to their disposition. In the instant case, petitioner filed an application for admission to the University of Texas Law School for the February, 1946, term. His application was rejected solely because he is a Negro. [ Footnote 1 ] Petitioner thereupon brought this suit for mandamus against the appropriate school officials, respondents here, to compel his admission. At that time, there was no law school in Texas which admitted Negroes. The state trial court recognized that the action of the State in denying petitioner the opportunity to gain Page 339 U. S. 632 a legal education while granting it to others deprived him of the equal protection of the laws guaranteed by the Fourteenth Amendment. The court did not grant the relief requested, however, but continued the case for six months to allow the State to supply substantially equal facilities. At the expiration of the six months, in December, 1946, the court denied the writ on the showing that the authorized university officials had adopted an order calling for the opening of a law school for Negroes the following February. While petitioner's appeal was pending, such a school was made available, but petitioner refused to register therein. The Texas Court of Civil Appeals set aside the trial court's judgment and ordered the cause "remanded generally to the trial court for further proceedings without prejudice to the rights of any party to this suit." On remand, a hearing was held on the issue of the equality of the educational facilities at the newly established school as compared with the University of Texas Law School. Finding that the new school offered petitioner "privileges, advantages, and opportunities for the study of law substantially equivalent to those offered by the State to white students at the University of Texas," the trial court denied mandamus. The Court of Civil Appeals affirmed. 210 S.W.2d 442 (1948). Petitioner's application for a writ of error was denied by the Texas Supreme Court. We granted certiorari, 338 U.S. 865 (1949), because of the manifest importance of the constitutional issues involved. The University of Texas Law School, from which petitioner was excluded, was staffed by a faculty of sixteen full-time and three part-time professors, some of whom are nationally recognized authorities in their field. Its student body numbered 850. The library contained over 65,000 volumes. Among the other facilities available to the students were a law review, moot court facilities, Page 339 U. S. 633 scholarship funds, and Order of the Coif affiliation. The school's alumni occupy the most distinguished positions in the private practice of the law and in the public life of the State. It may properly be considered one of the nation's ranking law schools. The law school for Negroes which was to have opened in February, 1947, would have had no independent faculty or library. The teaching was to be carried on by four members of the University of Texas Law School faculty, who were to maintain their offices at the University of Texas while teaching at both institutions. Few of the 10,000 volumes ordered for the library had arrived, [ Footnote 2 ] nor was there any full-time librarian. The school lacked accreditation. Since the trial of this case, respondents report the opening of a law school at the Texas State University for Negroes. It is apparently on the road to full accreditation. It has a faculty of five full-time professors; a student body of 23; a library of some 16,500 volumes serviced by a full-time staff; a practice court and legal aid association, and one alumnus who has become a member of the Texas Bar. Whether the University of Texas Law School is compared with the original or the new law school for Negroes, we cannot find substantial equality in the educational opportunities offered white and Negro law students by the State. In terms of number of the faculty, variety of courses and opportunity for specialization, size of the student body, scope of the library, availability of law Page 339 U. S. 634 review and similar activities, the University of Texas Law School is superior. What is more important, the University of Texas Law School possesses to a far greater degree those qualities which are incapable of objective measurement but which make for greatness in a law school. Such qualities, to name but a few, include reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige. It is difficult to believe that one who had a free choice between these law schools would consider the question close. Moreover, although the law is a highly learned profession, we are well aware that it is an intensely practical one. The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts. Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned. The law school to which Texas is willing to admit petitioner excludes from its student body members of the racial groups which number 85% of the population of the State and include most of the lawyers, witnesses, jurors, judges and other officials with whom petitioner will inevitably be dealing when he becomes a member of the Texas Bar. With such a substantial and significant segment of society excluded, we cannot conclude that the education offered petitioner is substantially equal to that which he would receive if admitted to the University of Texas Law School. It may be argued that excluding petitioner from that school is no different from excluding white students from the new law school. This contention overlooks realities. It is unlikely that a member of a group so decisively in the majority, attending a school with rich traditions and Page 339 U. S. 635 prestige which only a history of consistently maintained excellence could command, would claim that the opportunities afforded him for legal education were unequal to those held open to petitioner. That such a claim, if made, would be dishonored by the State is no answer. "Equal protection of the laws is not achieved through indiscriminate imposition of inequalities." Shelley v. Kraemer, 334 U. S. 1 , 334 U. S. 22 (1948). It is fundamental that these cases concern rights which are personal and present. This Court has stated unanimously that "The State must provide [legal education] for [petitioner] in conformity with the equal protection clause of the Fourteenth Amendment and provide it as soon as it does for applicants of any other group." Sipuel v. Board of Regents, 332 U. S. 631 , 332 U. S. 633 (1948). That case "did not present the issue whether a state might not satisfy the equal protection clause of the Fourteenth Amendment by establishing a separate law school for Negroes." Fisher v. Hurst, 333 U. S. 147 , 333 U. S. 150 (1948). In Missouri ex rel. Gaines v. Canada, 305 U. S. 337 , 305 U. S. 351 (1938), the Court, speaking through Chief Justice Hughes, declared that "petitioner's right was a personal one. It was as an individual that he was entitled to the equal protection of the laws, and the State was bound to furnish him within its borders facilities for legal education substantially equal to those which the State there afforded for persons of the white race, whether or not other negroes sought the same opportunity." These are the only cases in this Court which present the issue of the constitutional validity of race distinctions in state supported graduate and professional education. In accordance with these cases, petitioner may claim his full constitutional right: legal education equivalent to that offered by the State to students of other races. Such education is not available to him in a separate law school as offered by the State. We cannot, therefore, Page 339 U. S. 636 agree with respondents that the doctrine of Plessy v. Ferguson, 163 U. S. 537 (1896), requires affirmance of the judgment below. Nor need we reach petitioner's contention that Plessy v. Ferguson should be reexamined in the light of contemporary knowledge respecting the purposes of the Fourteenth Amendment and the effects of racial segregation. See supra, p. 339 U. S. 631 . We hold that the Equal Protection Clause of the Fourteenth Amendment requires that petitioner be admitted to the University of Texas Law School. The judgment is reversed, and the cause is remanded for proceedings not inconsistent with this opinion. Reversed. [ Footnote 1 ] It appears that the University has been restricted to white students, in accordance with the State law. See Tex.Const., Art. VII, §§ 7, 14; Tex.Rev.Civ.Stat. (Vernon, 1925), Arts. 2643b (Supp. 1949), 2719, 2900. [ Footnote 2 ] "Students of the interim School of Law of the Texas State University for Negroes [located in Austin, whereas the permanent School was to be located at Houston] shall have use of the State Law Library in the Capitol Building. . . ." Tex.Laws 1947, c. 29, § 11, Tex.Rev.Civ.Stat. (Vernon, 1949 Supp.), note to Art. 2643b. It is not clear that this privilege was anything more than was extended to all citizens of the State.

The Supreme Court ruled that Heman Marion Sweatt, a black man, must be admitted to the University of Texas Law School, as the separate law school established for black students did not offer substantially equal educational opportunities. The Court found that the educational benefits of the University of Texas Law School, including its faculty, student body, library, and other resources, were significantly superior to those of the separate law school for black students. The Court held that the Equal Protection Clause of the Fourteenth Amendment requires states to provide equal educational opportunities for students of all races and that separate educational facilities are inherently unequal. This ruling contributed to the dismantling of racial segregation in education and set a precedent for future civil rights cases.

Equal Protection

Brown v. Board of Education

https://supreme.justia.com/cases/federal/us/344/141/

U.S. Supreme Court Brown v. Board of Education, 344 U.S. 141 (1952) Brown v. Board of Education No. 8 November 24, 1952 344 U.S. 141 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS Syllabus This is an appeal from a decision of the District Court sustaining the constitutionality of a state statute which authorized racial segregation in the public schools of Kansas. In the District Court, the State intervened and defended the constitutionality of the statute, but neither the State nor any of the other appellees has entered an appearance or filed a brief here. Because of the importance of the issue, this Court requests that the State present its views at the oral argument. If the State does not desire to appear, the Attorney General of the State is requested to advise this Court whether the State's default shall be construed as a concession of the invalidity of the statute. Pp. 344 U. S. 141 -142. The decision below is reported in 98 F. Supp. 797 . PER CURIAM. This action was instituted by the appellants attacking a Kansas statute which authorized segregation in the schools of that State. It was urged that the Kansas was without power to enact such legislation, claimed by appellants to be in contravention of the Fourteenth Amendment. In the District Court, the State, by its Governor and Attorney General, intervened and defended the constitutionality of the statute. The court upheld its validity, 98 F. Supp. 797 . In this Court, the appellants continue their constitutional attack. No appearance has been entered here by Page 344 U. S. 142 the State of Kansas, the Board of Education of Topeka, and the other appellees; nor have they presented any brief in support of the statute's validity. The Court has been advised by counsel for the Board of Education that it does not propose to appear in oral argument or present a brief. Because of the national importance of the issue presented and because of its importance to the Kansas, we request that the State present its views at oral argument. If the State does not desire to appear, we request the Attorney General to advise whether the State's default shall be construed as a concession of invalidity. Order accordingly.

In Brown v. Board of Education (1952), the U.S. Supreme Court addressed the constitutionality of racial segregation in public schools, inviting the state of Kansas to present its views during oral arguments. The case challenged a Kansas statute authorizing school segregation, with the state defending its validity in the District Court. However, neither the state nor other appellees entered an appearance or filed briefs in the Supreme Court, leading the Court to request the state's participation in oral arguments and guidance on the implications of its absence.

Equal Protection

Loving v. Virginia

https://supreme.justia.com/cases/federal/us/388/1/

U.S. Supreme Court Loving v. Virginia, 388 U.S. 1 (1967) Loving v. Virginia No. 395 Argued April 10, 1967 Decided June 12, 1967 388 U.S. 1 APPEAL FROM THE SUPREME COURT OF APPEALS OF VIRGINIA Syllabus Virginia's statutory scheme to prevent marriages between persons solely on the basis of racial classifications held to violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Pp. 388 U. S. 4 -12. 206 Va. 924, 147 S.E.2d 78, reversed. Page 388 U. S. 2 MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. [ Footnote 1 ] For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment. In June, 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County. At the October Term, 1958, of the Circuit Court Page 388 U. S. 3 of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia's ban on interracial marriages. On January 6, 1959, the Lovings pleaded guilty to the charge, and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. He stated in an opinion that: "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix." After their convictions, the Lovings took up residence in the District of Columbia. On November 6, 1963, they filed a motion in the state trial court to vacate the judgment and set aside the sentence on the ground that the statutes which they had violated were repugnant to the Fourteenth Amendment. The motion not having been decided by October 28, 1964, the Lovings instituted a class action in the United States District Court for the Eastern District of Virginia requesting that a three-judge court be convened to declare the Virginia anti-miscegenation statutes unconstitutional and to enjoin state officials from enforcing their convictions. On January 22, 1965, the state trial judge denied the motion to vacate the sentences, and the Lovings perfected an appeal to the Supreme Court of Appeals of Virginia. On February 11, 1965, the three-judge District Court continued the case to allow the Lovings to present their constitutional claims to the highest state court. The Supreme Court of Appeals upheld the constitutionality of the anti-miscegenation statutes and, after Page 388 U. S. 4 modifying the sentence, affirmed the convictions. [ Footnote 2 ] The Lovings appealed this decision, and we noted probable jurisdiction on December 12, 1966, 385 U.S. 986. The two statutes under which appellants were convicted and sentenced are part of a comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages. The Lovings were convicted of violating § 258 of the Virginia Code: " Leaving State to evade law. -- If any white person and colored person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in § 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage." Section 259, which defines the penalty for miscegenation, provides: " Punishment for marriage. -- If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years." Other central provisions in the Virginia statutory scheme are § 20-57, which automatically voids all marriages between "a white person and a colored person" without any judicial proceeding, [ Footnote 3 ] and §§ 20-54 and 1-14 which, Page 388 U. S. 5 respectively, define "white persons" and "colored persons and Indians" for purposes of the statutory prohibitions. [ Footnote 4 ] The Lovings have never disputed in the course of this litigation that Mrs. Loving is a "colored person" or that Mr. Loving is a "white person" within the meanings given those terms by the Virginia statutes. Page 388 U. S. 6 Virginia is now one of 16 States which prohibit and punish marriages on the basis of racial classifications. [ Footnote 5 ] Penalties for miscegenation arose as an incident to slavery, and have been common in Virginia since the colonial period. [ Footnote 6 ] The present statutory scheme dates from the adoption of the Racial Integrity Act of 1924, passed during the period of extreme nativism which followed the end of the First World War. The central features of this Act, and current Virginia law, are the absolute prohibition of a "white person" marrying other than another "white person," [ Footnote 7 ] a prohibition against issuing marriage licenses until the issuing official is satisfied that Page 388 U. S. 7 the applicants' statements as to their race are correct, [ Footnote 8 ] certificates of "racial composition" to be kept by both local and state registrars, [ Footnote 9 ] and the carrying forward of earlier prohibitions against racial intermarriage. [ Footnote 10 ] I In upholding the constitutionality of these provisions in the decision below, the Supreme Court of Appeals of Virginia referred to its 1965 decision in Naim v. Naim, 197 Va. 80, 87 S.E.2d 749, as stating the reasons supporting the validity of these laws. In Naim, the state court concluded that the State's legitimate purposes were "to preserve the racial integrity of its citizens," and to prevent "the corruption of blood," "a mongrel breed of citizens," and "the obliteration of racial pride," obviously an endorsement of the doctrine of White Supremacy. Id. at 90, 87 S.E.2d at 756. The court also reasoned that marriage has traditionally been subject to state regulation without federal intervention, and, consequently, the regulation of marriage should be left to exclusive state control by the Tenth Amendment. While the state court is no doubt correct in asserting that marriage is a social relation subject to the State's police power, Maynard v. Hill, 125 U. S. 190 (1888), the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment. Nor could it do so in light of Meyer v. Nebraska, 262 U. S. 390 (1923), and Skinner v. Oklahoma, 316 U. S. 535 (1942). Instead, the State argues that the meaning of the Equal Protection Clause, as illuminated by the statements of the Framers, is only that state penal laws containing an interracial element Page 388 U. S. 8 as part of the definition of the offense must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree. Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race. The second argument advanced by the State assumes the validity of its equal application theory. The argument is that, if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a State to treat interracial marriages differently from other marriages. On this question, the State argues, the scientific evidence is substantially in doubt and, consequently, this Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages. Because we reject the notion that the mere "equal application" of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations, we do not accept the State's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose. The mere fact of equal application does not mean that our analysis of these statutes should follow the approach we have taken in cases involving no racial discrimination where the Equal Protection Clause has been arrayed against a statute discriminating between the kinds of advertising which may be displayed on trucks in New York City, Railway Express Agency, Inc. v. New York, 336 U. S. 106 (1949), or an exemption in Ohio's ad valorem tax for merchandise owned by a nonresident in a storage warehouse, Allied Stores of Ohio , Page 388 U. S. 9 Inc. v. Bowers, 358 U. S. 522 (1959). In these cases, involving distinctions not drawn according to race, the Court has merely asked whether there is any rational foundation for the discriminations, and has deferred to the wisdom of the state legislatures. In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race. The State argues that statements in the Thirty-ninth Congress about the time of the passage of the Fourteenth Amendment indicate that the Framers did not intend the Amendment to make unconstitutional state miscegenation laws. Many of the statements alluded to by the State concern the debates over the Freedmen's Bureau Bill, which President Johnson vetoed, and the Civil Rights Act of 1866, 14 Stat. 27, enacted over his veto. While these statements have some relevance to the intention of Congress in submitting the Fourteenth Amendment, it must be understood that they pertained to the passage of specific statutes, and not to the broader, organic purpose of a constitutional amendment. As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem that, although these historical sources "cast some light" they are not sufficient to resolve the problem; "[a]t best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among 'all persons born or naturalized in the United States.' Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments, and wished them to have the most limited effect." Brown v. Board of Education, 347 U. S. 483 , 347 U. S. 489 (1954). See also Strauder Page 388 U. S. 10 v. West Virginia, 100 U. S. 303 , 100 U. S. 310 (1880). We have rejected the proposition that the debates in the Thirty-ninth Congress or in the state legislatures which ratified the Fourteenth Amendment supported the theory advanced by the State, that the requirement of equal protection of the laws is satisfied by penal laws defining offenses based on racial classifications so long as white and Negro participants in the offense were similarly punished. McLaughlin v. Florida, 379 U. S. 184 (1964). The State finds support for its "equal application" theory in the decision of the Court in Pace v. Alabama, 106 U. S. 583 (1883). In that case, the Court upheld a conviction under an Alabama statute forbidding adultery or fornication between a white person and a Negro which imposed a greater penalty than that of a statute proscribing similar conduct by members of the same race. The Court reasoned that the statute could not be said to discriminate against Negroes because the punishment for each participant in the offense was the same. However, as recently as the 1964 Term, in rejecting the reasoning of that case, we stated " Pace represents a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent decisions of this Court." McLaughlin v. Florida, supra, at 379 U. S. 188 . As we there demonstrated, the Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination. The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States. Slaughter-House Cases , 16 Wall. 36, 83 U. S. 71 (1873); Strauder v. West Virginia, 100 U. S. 303 , 100 U. S. 307 -308 (1880); Ex parte Virginia, 100 U. S. 339 , 100 U. S. 334 -335 (1880); Shelley v. Kraemer, 334 U. S. 1 (1948); Burton v. Wilmington Parking Authority, 365 U. S. 715 (1961). Page 388 U. S. 11 There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated "[d]istinctions between citizens solely because of their ancestry" as being "odious to a free people whose institutions are founded upon the doctrine of equality." Hirabayashi v. United States, 320 U. S. 81 , 320 U. S. 100 (1943). At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the "most rigid scrutiny," Korematsu v. United States, 323 U. S. 214 , 323 U. S. 216 (1944), and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. Indeed, two members of this Court have already stated that they "cannot conceive of a valid legislative purpose . . . which makes the color of a person's skin the test of whether his conduct is a criminal offense." McLaughlin v. Florida, supra, at 379 U. S. 198 (STEWART, J., joined by DOUGLAS, J., concurring). There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy. [ Footnote 11 ] We have consistently denied Page 388 U. S. 12 the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause. II These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U. S. 535 , 316 U. S. 541 (1942). See also Maynard v. Hill, 125 U. S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State. These convictions must be reversed. It is so ordered. Page 388 U. S. 13 [ Footnote 1 ] Section 1 of the Fourteenth Amendment provides: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." [ Footnote 2 ] 206 Va. 924, 147 S.E.2d 78 (1966). [ Footnote 3 ] Section 257 of the Virginia Code provides: " Marriages void without decree. -- All marriages between a white person and a colored person shall be absolutely void without any decree of divorce or other legal process." Va.Code Ann. § 20-57 (1960 Repl. Vol.). [ Footnote 4 ] Section 20-54 of the Virginia Code provides: " Intermarriage prohibited; meaning of term 'white persons.' -- It shall hereafter be unlawful for any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian. For the purpose of this chapter, the term 'white person' shall apply only to such person as has no trace whatever of any blood other than Caucasian; but persons who have one-sixteenth or less of the blood of the American Indian and have no other non-Caucasic blood shall be deemed to be white persons. All laws heretofore passed and now in effect regarding the intermarriage of white and colored persons shall apply to marriages prohibited by this chapter." Va.Code Ann. § 20-54 (1960 Repl. Vol.). The exception for persons with less than one-sixteenth "of the blood of the American Indian" is apparently accounted for, in the words of a tract issued by the Registrar of the State Bureau of Vital Statistics, by "the desire of all to recognize as an integral and honored part of the white race the descendants of John Rolfe and Pocathontas. . . ." Plecker, The New Family and Race Improvement, 17 Va.Health Bull., Extra No. 12, at 25-26 (New Family Series No. 5, 1925), cited in Wadlington, The Loving Case: Virginia's Anti-Miscegenation Statute in Historical Perspective, 52 Va.L.Rev. 1189, 1202, n. 93 (1966). Section 1-14 of the Virginia Code provides: " Colored persons and Indians defined. -- Every person in whom there is ascertainable any Negro blood shall be deemed and taken to be a colored person, and every person not a colored person having one fourth or more of American Indian blood shall be deemed an American Indian; except that members of Indian tribes existing in this Commonwealth having one fourth or more of Indian blood and less than one sixteenth of Negro blood shall be deemed tribal Indians." Va.Code Ann. § 1-14 (1960 Repl. Vol.). [ Footnote 5 ] After the initiation of this litigation, Maryland repealed its prohibitions against interracial marriage, Md.Laws 1967, c. 6, leaving Virginia and 15 other States with statutes outlawing interracial marriage: Alabama, Ala.Const., Art. 4, § 102, Ala.Code, Tit. 14, § 360 (1958); Arkansas, Ark.Stat.Ann. § 55-104 (1947); Delaware, Del.Code Ann., Tit. 13, § 101 (1953); Florida, Fla.Const., Art. 16, § 24, Fla.Stat. § 741.11 (1965); Georgia, Ga.Code Ann. § 53-106 (1961); Kentucky, Ky.Rev.Stat.Ann. § 402.020 (Supp. 1966); Louisiana, La.Rev.Stat. § 14:79 (1950); Mississippi, Miss.Const., Art. 14, § 263, Miss.Code Ann. § 459 (1956); Missouri, Mo.Rev.Stat. § 451.020 (Supp. 1966); North Carolina, N.C.Const., Art. XIV, § 8, N.C.Gen.Stat. § 14-181 (1953); Oklahoma, Okla.Stat., Tit. 43, § 12 (Supp. 1965); South Carolina, S.C.Const., Art. 3, § 33, S.C.Code Ann. § 20-7 (1962); Tennessee, Tenn.Const., Art. 11, § 14, Tenn.Code Ann. § 36-402 (1955); Texas, Tex.Pen.Code, Art. 492 (1952); West Virginia, W.Va.Code Ann. § 4697 (1961). Over the past 15 years, 14 States have repealed laws outlawing interracial marriages: Arizona, California, Colorado, Idaho, Indiana, Maryland, Montana, Nebraska, Nevada, North Dakota, Oregon, South Dakota, Utah, and Wyoming. The first state court to recognize that miscegenation statutes violate the Equal Protection Clause was the Supreme Court of California. Perez v. Sharp, 32 Cal. 2d 711 , 198 P.2d 17 (1948). [ Footnote 6 ] For a historical discussion of Virginia's miscegenation statutes, see Wadlington, supra, n 4. [ Footnote 7 ] Va.Code Ann. § 20-54 (1960 Repl. Vol.). [ Footnote 8 ] Va.Code Ann. § 20-53 (1960 Repl. Vol.). [ Footnote 9 ] Va.Code Ann. § 20-50 (1960 Repl. Vol.). [ Footnote 10 ] Va.Code Ann. § 254 (1960 Repl. Vol.). [ Footnote 11 ] Appellants point out that the State's concern in these statutes, as expressed in the words of the 1924 Act's title, "An Act to Preserve Racial Integrity," extends only to the integrity of the white race. While Virginia prohibits whites from marrying any nonwhite (subject to the exception for the descendants of Pocahontas), Negroes, Orientals, and any other racial class may intermarry without statutory interference. Appellants contend that this distinction renders Virginia's miscegenation statutes arbitrary and unreasonable even assuming the constitutional validity of an official purpose to preserve "racial integrity." We need not reach this contention, because we find the racial classifications in these statutes repugnant to the Fourteenth Amendment, even assuming an even-handed state purpose to protect the "integrity" of all races. MR. JUSTICE STEWART, concurring. I have previously expressed the belief that "it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor." McLaughlin v. Florida, 379 U. S. 184 , 379 U. S. 198 (concurring opinion). Because I adhere to that belief, I concur in the judgment of the Court.

In the case of Loving v. Virginia (1967), the U.S. Supreme Court ruled that laws prohibiting interracial marriage violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The Court struck down Virginia's anti-miscegenation laws, which had prevented interracial couples from marrying solely based on racial classifications. The ruling ended the enforcement of such laws across the United States, affirming the right of individuals to marry regardless of race.

Equal Protection

Swann v. Charlotte-Mecklenburg Board of Education

https://supreme.justia.com/cases/federal/us/402/1/

U.S. Supreme Court Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971) Swann v. Charlotte-Mecklenburg Board of Education No. 281 Argued October 12, 1970 Decided April 20, 1971 402 U.S. 1 ast|>* 402 U.S. 1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Syllabus The Charlotte-Mecklenburg school system, which includes the city of Charlotte, North Carolina, had more than 84,000 students in 107 schools in the 1968-1969 school year. Approximately 29% (24,000) of the pupils were Negro, about 14,000 of whom attended 21 schools that were at least 99% Negro. This resulted from a desegregation plan approved by the District Court in 1965, at the commencement of this litigation. In 1968, petitioner Swann moved for further relief based on Green v. County School Board, 391 U. S. 430 , which required school boards to "come forward with a plan that promises realistically to work . . . now . . . until it is clear that state-imposed segregation has been completely removed." The District Court ordered the school board in April 1969 to provide a plan for faculty and student desegregation. Finding the board's submission unsatisfactory, the District Court appointed an expert to submit a desegregation plan. In February 1970, the expert and the board presented plans, and the court adopted the board's plan, as modified, for the junior and senior high schools, and the expert's proposed plan for the elementary schools. The Court of Appeals affirmed the District Court's order as to faculty desegregation and the secondary school plans, Page 402 U. S. 2 but vacated the order respecting elementary schools, fearing that the provisions for pairing and grouping of elementary schools would unreasonably burden the pupils and the board. The case was remanded to the District Court for reconsideration and submission of further plans. This Court granted certiorari and directed reinstatement of the District Court's order pending further proceedings in that court. On remand the District Court received two new plans, and ordered the board to adopt a plan, or the expert's plan would remain in effect. After the board "acquiesced" in the expert's plan, the District Court directed that it remain in effect. Held: 1. Today's objective is to eliminate from the public schools all vestiges of state-imposed segregation that was held violative of equal protection guarantees by Brown v. Board of Education, 347 U. S. 483 , in 1954. P. 402 U. S. 15 . 2. In default by the school authorities of their affirmative obligation to proffer acceptable remedies, the district courts have broad power to fashion remedies that will assure unitary school systems. P. 402 U. S. 16 . 3. Title IV of the Civil Rights Act of 1964 does not restrict or withdraw from the federal courts their historic equitable remedial powers. The proviso in 42 U.S.C. § 2000c-6 was designed simply to foreclose any interpretation of the Act as expanding the existing powers of the federal courts to enforce the Equal Protection Clause. Pp. 402 U. S. 16 -18. 4. Policy and practice with regard to faculty, staff, transportation, extracurricular activities, and facilities are among the most important indicia of a segregated system, and the first remedial responsibility of school authorities is to eliminate invidious racial distinctions in those respects. Normal administrative practice should then produce schools of like quality, facilities, and staffs. Pp. 402 U. S. 18 -19. 5. The Constitution does not prohibit district courts from using their equity power to order assignment of teachers to achieve a particular degree of faculty desegregation. United States v. Montgomery County Board of Education, 395 U. S. 225 , was properly followed by the lower courts in this case. Pp. 402 U. S. 19 -20. 6. In devising remedies to eliminate legally imposed segregation, local authorities and district courts must see to it that future school construction and abandonment are not used and do not serve to perpetuate or reestablish a dual system. Pp. 402 U. S. 20 -21. Page 402 U. S. 3 7. Four problem areas exist on the issue of student assignment: (1) Racial quotas. The constitutional command to desegregate schools does not mean that every school in the community must always reflect the racial composition of the system as a whole; here the District Court's very limited use of the racial ratio -- not as an inflexible requirement, but as a starting point in shaping a remedy -- was within its equitable discretion. Pp. 402 U. S. 22 -25. (2) One-race schools. While the existence of a small number of one-race, or virtually one-race, schools does not, in itself, denote a system that still practices segregation by law, the court should scrutinize such schools and require the school authorities to satisfy the court that the racial composition does not result from present or past discriminatory action on their part. Pp. 402 U. S. 25 -26. An optional majority-to-minority transfer provision has long been recognized as a useful part of a desegregation plan, and to be effective such arrangement must provide the transferring student free transportation and available space in the school to which he desires to move. Pp. 402 U. S. 26 -27. (3) Attendance zones. The remedial altering of attendance zones is not, as an interim corrective measure, beyond the remedial powers of a district court. A student assignment plan is not acceptable merely because it appears to be neutral, for such a plan may fail to counteract the continuing effects of past school segregation. The pairing and grouping of noncontiguous zones is a permissible tool; judicial steps going beyond contiguous zones should be examined in light of the objectives to be sought. No rigid rules can be laid down to govern conditions in different localities. Pp. 402 U. S. 27 -29. (4) Transportation. The District Court's conclusion that assignment of children to the school nearest their home serving their grade would not effectively dismantle the dual school system is supported by the record, and the remedial technique of requiring bus transportation as a tool of school desegregation was within that court's power to provide equitable relief. An objection to transportation of students may have validity when the time or distance of travel is so great as to risk either the health of the children or significantly impinge on the educational process; limits on travel time will vary with many factors, but probably with none more than the age of the students. Pp. 402 U. S. 29 -31. Page 402 U. S. 4 8. Neither school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once a unitary system has been achieved. Pp. 402 U. S. 31 -32. 431 F.2d 138, affirmed as to those parts in which it affirmed the District Court's judgment. The District Court's order of August 7, 1970, is also affirmed. BURGER, C.J., delivered the opinion for a unanimous Court. Page 402 U. S. 5 MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. We granted certiorari in this case to review important issues as to the duties of school authorities and the scope of powers of federal courts under this Court's mandates to eliminate racially separate public schools established and maintained by state action. Brown v. Board of Education, 347 U. S. 483 (1954) ( Brown I ). This case and those argued with it [ Footnote 1 ] arose in States having a long history of maintaining two sets of schools in a Page 402 U. S. 6 single school system deliberately operated to carry out a governmental policy to separate pupils in schools solely on the basis of race. That was what Brown v. Board of Education was all about. These cases present us with the problem of defining in more precise terms than heretofore the scope of the duty of school authorities and district courts in implementing Brown I and the mandate to eliminate dual systems and establish unitary systems at once. Meanwhile, district courts and courts of appeals have struggled in hundreds of cases with a multitude and variety of problems under this Court's general directive. Understandably, in an area of evolving remedies, those courts had to improvise and experiment without detailed or specific guidelines. This Court, in Brown I, appropriately dealt with the large constitutional principles; other federal courts had to grapple with the flinty, intractable realities of day-to-day implementation of those constitutional commands. Their efforts, of necessity, embraced a process of "trial and error," and our effort to formulate guidelines must take into account their experience. I The Charlotte-Mecklenburg school system, the 43d largest in the Nation, encompasses the city of Charlotte and surrounding Mecklenburg County, North Carolina. The area is large -- 550 square miles --spanning roughly 22 miles east-west and 36 miles north-south. During the 1968-1969 school year, the system served more than 84,000 pupils in 107 schools. Approximately 71% of the pupils were found to be white, and 29% Negro. As of Page 402 U. S. 7 June, 1969, there were approximately 24,000 Negro students in the system, of whom 21,000 attended schools within the city of Charlotte. Two-thirds of those 21,000 -- approximately 14,000 Negro students -- attended 21 schools which were either totally Negro or more than 99% Negro. This situation came about under a desegregation plan approved by the District Court at the commencement of the present litigation in 1965, 243 F. Supp. 667 (WDNC), aff'd, 369 F.2d 29 (CA4 1966), based upon geographic zoning with a free transfer provision. The present proceedings were initiated in September, 1968, by petitioner Swann's motion for further relief based on Green v. County School Board, 391 U. S. 430 (1968), and its companion cases. [ Footnote 2 ] All parties now agree that in 1969 the system fell short of achieving the unitary school system that those cases require. The District Court held numerous hearings and received voluminous evidence. In addition to finding certain actions of the school board to be discriminatory, the court also found that residential patterns in the city and county resulted in part from federal, state, and local government action other than school board decisions. School board action based on these patterns, for example, by locating schools in Negro residential areas and fixing the size of the schools to accommodate the needs of immediate neighborhoods, resulted in segregated education. These findings were subsequently accepted by the Court of Appeals. In April, 1969, the District Court ordered the school board to come forward with a plan for both faculty and student desegregation. Proposed plans were accepted by the court in June and August, 1969, on an interim basis Page 402 U. S. 8 only, and the board was ordered to file a third plan by November, 1969. In November, the board moved for an extension of time until February, 1970, but when that was denied the board submitted a partially completed plan. In December, 1969, the District Court held that the board's submission was unacceptable and appointed an expert in education administration, Dr. John Finger, to prepare a desegregation plan. Thereafter in February, 1970, the District Court was presented with two alternative pupil assignment plan the finalized "board plan" and the "Finger plan." The Board Plan. As finally submitted, the school board plan closed seven schools and reassigned their pupils. It restructured school attendance zones to achieve greater racial balance but maintained existing grade structures and rejected techniques such as pairing and clustering as part of a desegregation effort. The plan created a single athletic league, eliminated the previously racial basis of the school bus system, provided racially mixed faculties and administrative staffs, and modified its free-transfer plan into an optional majority-to-minority transfer system. The board plan proposed substantial assignment of Negroes to nine of the system's 10 high schools, producing 17% to 36% Negro population in each. The projected Negro attendance at the 10th school, Independence, was 2%. The proposed attendance zones for the high schools were typically shaped like wedges of a pie, extending outward from the center of the city to the suburban and rural areas of the county in order to afford residents of the center city area access to outlying schools. As for junior high schools, the board plan rezoned the 21 school areas so that, in 20, the Negro attendance would range from 0% to 38%. The other school, located in the heart of the Negro residential area, was left with an enrollment of 90% Negro. Page 402 U. S. 9 The board plan with respect to elementary schools relied entirely upon gerrymandering of geographic zones. More than half of the Negro elementary pupils were left in nine schools that were 86% to 100% Negro; approximately half of the white elementary pupils were assigned to schools 86% to 100% white. The Finger Plan. The plan submitted by the court-appointed expert, Dr. Finger, adopted the school board zoning plan for senior high schools with one modification: it required that an additional 300 Negro students be transported from the Negro residential area of the city to the nearly all-white Independence High School. The Finger plan for the junior high schools employed much of the rezoning plan of the board, combined with the creation of nine "satellite" zones. [ Footnote 3 ] Under the satellite plan, inner-city Negro students were assigned by attendance zones to nine outlying predominately white junior high schools, thereby substantially desegregating every junior high school in the system. The Finger plan departed from the board plan chiefly in its handling of the system's 76 elementary schools. Rather than relying solely upon geographic zoning, Dr. Finger proposed use of zoning, pairing, and grouping techniques, with the result that student bodies throughout the system would range from 9% to 38% Negro. [ Footnote 4 ] The District Court described the plan thus: "Like the board plan, the Finger plan does as much by rezoning school attendance lines as can reasonably Page 402 U. S. 10 be accomplished. However, unlike the board plan, it does not stop there. It goes further and desegregates all the rest of the elementary schools by the technique of grouping two or three outlying schools with one black inner city school; by transporting black students from grades one through four to the outlying white schools; and by transporting white students from the fifth and sixth grades from the outlying white schools to the inner city black school." Under the Finger plan, nine inner-city Negro schools were grouped in this manner with 24 suburban white schools. On February 5, 1970, the District Court adopted the board plan, as modified by Dr. Finger, for the junior and senior high schools. The court rejected the board elementary school plan and adopted the Finger plan as presented. Implementation was partially stayed by the Court of Appeals for the Fourth Circuit on March 5, and this Court declined to disturb the Fourth Circuit's order, 397 U.S. 978 (1970). On appeal, the Court of Appeals affirmed the District Court's order as to faculty desegregation and the secondary school plans, but vacated the order respecting elementary schools. While agreeing that the District Court properly disapproved the board plan concerning these schools, the Court of Appeals feared that the pairing and grouping of elementary schools would place an unreasonable burden on the board and the system's pupils. The case was remanded to the District Court for reconsideration and submission of further plans. 431 F.2d Page 402 U. S. 11 138. This Court granted certiorari, 399 U.S. 926, and directed reinstatement of the District Court's order pending further proceedings in that court. On remand, the District Court received two new plans for the elementary schools: a plan prepared by the United States Department of Health, Education, and Welfare (the HEW plan) based on contiguous grouping and zoning of schools, and a plan prepared by four members of the nine-member school board (the minority plan) achieving substantially the same results as the Finger plan but apparently with slightly less transportation. A majority of the school board declined to amend its proposal. After a lengthy evidentiary hearing, the District Court concluded that its own plan (the Finger plan), the minority plan, and an earlier draft of the Finger plan were all reasonable and acceptable. It directed the board to adopt one of the three or, in the alternative, to come forward with a new, equally effective plan of its own; the court ordered that the Finger plan would remain in effect in the event the school board declined to adopt a new plan. On August 7, the board indicated it would "acquiesce" in the Finger plan, reiterating its view that the plan was unreasonable. The District Court, by order dated August 7, 1970, directed that the Finger plan remain in effect. II Nearly 17 years ago, this Court held, in explicit terms, that state-imposed segregation by race in public schools denies equal protection of the laws. At no time has the Court deviated in the slightest degree from that holding or its constitutional underpinnings. None of the parties before us challenges the Court's decision of May 17, 1954, that, "in the field of public education, the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal. Therefore, Page 402 U. S. 12 we hold that the plaintiffs and others similarly situated . . . are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. . . ." "Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity." Brown v. Board of Education, supra, at 347 U. S. 495 . None of the parties before us questions the Court's 1955 holding in Brown II, that "School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts." "In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of Page 402 U. S. 13 equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them." Brown v. Board of Education, 349 U. S. 294 , 349 U. S. 299 -300 (1955). Over the 16 years since Brown II, many difficulties were encountered in implementation of the basic constitutional requirement that the State not discriminate between public school children on the basis of their race. Nothing in our national experience prior to 1955 prepared anyone for dealing with changes and adjustments of the magnitude and complexity encountered since then. Deliberate resistance of some to the Court's mandates has impeded the good faith efforts of others to bring school systems into compliance. The detail and nature of these dilatory tactics have been noted frequently by this Court and other courts. By the time the Court considered Green v. County School Board, 391 U. S. 430 , in 1968, very little progress had been made in many areas where dual school systems had historically been maintained by operation of state laws. In Green, the Court was confronted with a record of a freedom of choice program that the District Court had found to operate, in fact, to preserve a dual system more than a decade after Brown II. While acknowledging that a freedom of choice concept could be a valid remedial measure in some circumstances, its failure to be effective in Green required that: "The burden on a school board today is to come forward with a plan that promises realistically to work . . . now . . . until it is clear that state-imposed segregation has been completely removed." Green, supra, at 391 U. S. 439 . Page 402 U. S. 14 This was plain language, yet the 1969 Term of Court brought fresh evidence of the dilatory tactics of many school authorities. Alexander v. Holmes County Board of Education, 396 U. S. 19 , restated the basic obligation asserted in Griffin v. School Board, 377 U. S. 218 , 377 U. S. 234 (1964), and Green, supra, that the remedy must be implemented forthwith. The problems encountered by the district courts and courts of appeals make plain that we should now try to amplify guidelines, however incomplete and imperfect, for the assistance of school authorities and courts. [ Footnote 5 ] The failure of local authorities to meet their constitutional obligations aggravated the massive problem of converting from the state-enforced discrimination of racially separate school systems. This process has been rendered more difficult by changes since 1954 in the structure and patterns of communities, the growth of student population, [ Footnote 6 ] movement of families, and other changes, some of which had marked impact on school planning, sometimes neutralizing or negating remedial action before it was fully implemented. Rural areas accustomed for half a century to the consolidated school systems implemented by bus transportation could make adjustments more readily than metropolitan areas with dense and shifting population, numerous schools, congested and complex traffic patterns. Page 402 U. S. 15 III The objective today remains to eliminate from the public schools all vestiges of state-imposed segregation. Segregation was the evil struck down by Brown I as contrary to the equal protection guarantees of the Constitution. That was the violation sought to be corrected by the remedial measures of Brown II. That was the basis for the holding in Green that school authorities are "clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." 391 U.S. at 391 U. S. 437 -438. If school authorities fail in their affirmative obligations under these holdings, judicial authority may be invoked. Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies. "The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility, rather than rigidity, has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims." Hecht Co. v. Bowles, 321 U. S. 321 , 321 U. S. 329 -330 (1944), cited in Brown II, supra, at 347 U. S. 300 . This allocation of responsibility once made, the Court attempted from time to time to provide some guidelines for the exercise of the district judge's discretion and for the reviewing function of the courts of appeals. However, a school desegregation case does not differ fundamentally from other cases involving the framing of Page 402 U. S. 16 equitable remedies to repair the denial of a constitutional right. The task is to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution. In seeking to define even in broad and general terms how far this remedial power extends, it is important to remember that judicial powers may be exercised only on the basis of a constitutional violation. Remedial judicial authority does not put judges automatically in the shoes of school authorities whose powers are plenary. Judicial authority enters only when local authority defaults. School authorities are traditionally charged with broad power to formulate and implement educational policy, and might well conclude, for example, that, in order to prepare students to live in a pluralistic society, each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of a constitutional violation, however, that would not be within the authority of a federal court. As with any equity case, the nature of the violation determines the scope of the remedy. In default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to fashion a remedy that will assure a unitary school system. The school authorities argue that the equity powers of federal district courts have been limited by Title IV of the Civil Rights Act of 1964, 42 U.S.C. § 2000c. The language and the history of Title IV show that it was enacted not to limit, but to define, the role of the Federal Government in the implementation of the Brown I decision. It authorizes the Commissioner of Education to provide technical assistance to local boards in the preparation of desegregation plans, to arrange "training institutes" Page 402 U. S. 17 for school personnel involved in desegregation efforts, and to make grants directly to schools to ease the transition to unitary systems. It also authorizes the Attorney General, in specified circumstances, to initiate federal desegregation suits. Section 2000c(b) defines "desegregation" as it is used in Title IV: "'Desegregation' means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin, but 'desegregation' shall not mean the assignment of students to public schools in order to overcome racial imbalance." Section 2000c-6, authorizing the Attorney General to institute federal suits, contains the following proviso: "nothing herein shall empower any official or court of the United States to issue any order seeking to achieve a racial balance in any school by requiring the transportation of pupils or students from one school to another or one school district to another in order to achieve such racial balance, or otherwise enlarge the existing power of the court to insure compliance with constitutional standard." On their face, the sections quoted purport only to insure that the provisions of Title IV of the Civil Rights Act of 1964 will not be read as granting new powers. The proviso in § 2000c-6 is, in terms, designed to foreclose any interpretation of the Act as expanding the existing powers of federal courts to enforce the Equal Protection Clause. There is no suggestion of an intention to restrict those powers or withdraw from courts their historic equitable remedial powers. The legislative history of Title IV indicates that Congress was concerned that the Act might be read as creating a right of action under the Fourteenth Amendment in the situation of so-called " de facto segregation," where racial imbalance exists in the Page 402 U. S. 18 schools but with no showing that this was brought about by discriminatory action of state authorities. In short, there is nothing in the Act that provides us material assistance in answering the question of remedy for state-imposed segregation in violation of Brown I. The basis of our decision must be the prohibition of the Fourteenth Amendment that no State shall "deny to any person within its jurisdiction the equal protection of the laws." IV We turn now to the problem of defining with more particularity the responsibilities of school authorities in desegregating a state-enforced dual school system in light of the Equal Protection Clause. Although the several related cases before us are primarily concerned with problems of student assignment, it may be helpful to begin with a brief discussion of other aspects of the process. In Green, we pointed out that existing policy and practice with regard to faculty, staff, transportation, extracurricular activities, and facilities were among the most important indicia of a segregated system. 391 U.S. at 391 U. S. 435 . Independent of student assignment, where it is possible to identify a "white school" or a "Negro school" simply by reference to the racial composition of teachers and staff, the quality of school buildings and equipment, or the organization of sports activities, a prima facie case of violation of substantive constitutional rights under the Equal Protection Clause is shown. When a system has been dual in these respects, the first remedial responsibility of school authorities is to eliminate invidious racial distinctions. With respect to such matters as transportation, supporting personnel, and extracurricular activities, no more than this may be necessary. Similar corrective action must be taken with regard to the maintenance of buildings and the distribution of equipment. In these areas, normal administrative Page 402 U. S. 19 practice should produce schools of like quality, facilities, and staffs. Something more must be said, however, as to faculty assignment and new school construction. In the companion Davis case, post, p. 402 U. S. 33 , the Mobile school board has argued that the Constitution requires that teachers be assigned on a "color blind" basis. It also argues that the Constitution prohibits district courts from using their equity power to order assignment of teachers to achieve a particular degree of faculty desegregation. We reject that contention. In United States v. Montgomery County Board of Education, 395 U. S. 225 (1969), the District Court set as a goal a plan of faculty assignment in each school with a ratio of white to Negro faculty members substantially the same throughout the system. This order was predicated on the District Court finding that: "The evidence does not reflect any real administrative problems involved in immediately desegregating the substitute teachers, the student teachers, the night school faculties, and in the evolvement of a really legally adequate program for the substantial desegregation of the faculties of all schools in the system commencing with the school year 1968-69." Quoted at 395 U.S. at 395 U. S. 232 . The District Court, in Montgomery, then proceeded to set an initial ratio for the whole system of at least two Negro teachers out of each 12 in any given school. The Court of Appeals modified the order by eliminating what it regarded as "fixed mathematical" ratios of faculty and substituted an initial requirement of "substantially or approximately" a five-to-one ratio. With respect to the future, the Court of Appeals held that the numerical ratio should be eliminated and that compliance should not be tested solely by the achievement of specified proportions. Id. at 234. Page 402 U. S. 20 We reversed the Court of Appeals and restored the District Court's order in its entirety, holding that the order of the District Judge "was adopted in the spirit of this Court's opinion in Green . . . in that his plan 'promises realistically to work, and promises realistically to work now. ' The modifications ordered by the panel of the Court of Appeals, while of course not intended to do so, would, we think, take from the order some of its capacity to expedite, by means of specific commands, the day when a completely unified, unitary, nondiscriminatory school system becomes a reality instead of a hope. . . . We also believe that, under all the circumstances of this case, we follow the original plan outlined in Brown II . . . by accepting the more specific and expeditious order of [District] Judge Johnson. . . ." 395 U.S. at 395 U. S. 235 -236 (emphasis in original). The principles of Montgomery have been properly followed by the District Court and the Court of Appeals in this case. The construction of new schools and the closing of old ones are two of the most important functions of local school authorities and also two of the most complex. They must decide questions of location and capacity in light of population growth, finances, land values, site availability, through an almost endless list of factors to be considered. The result of this will be a decision which, when combined with one technique or another of student assignment, will determine the racial composition of the student body in each school in the system. Over the long run, the consequences of the choices will be far-reaching. People gravitate toward school facilities, just as schools are located in response to the needs of people. The location of schools may thus influence Page 402 U. S. 21 the patterns of residential development of a metropolitan area and have important impact on composition of inner-city neighborhoods. In the past, choices in this respect have been used as a potent weapon for creating or maintaining a state-segregated school system. In addition to the classic pattern of building schools specifically intended for Negro or white students, school authorities have sometimes, since Brown, closed schools which appeared likely to become racially mixed through changes in neighborhood residential patterns. This was sometimes accompanied by building new schools in the areas of white suburban expansion farthest from Negro population centers in order to maintain the separation of the races with a minimum departure from the formal principles of "neighborhood zoning." Such a policy does more than simply influence the short-run composition of the student body of a new school. It may well promote segregated residential patterns which, when combined with "neighborhood zoning," further lock the school system into the mold of separation of the races. Upon a proper showing, a district court may consider this in fashioning a remedy. In ascertaining the existence of legally imposed school segregation, the existence of a pattern of school construction and abandonment is thus a factor of great weight. In devising remedies where legally imposed segregation has been established, it is the responsibility of local authorities and district courts to see to it that future school construction and abandonment are not used and do not serve to perpetuate or reestablish the dual system. When necessary, district courts should retain jurisdiction to assure that these responsibilities are carried out. Cf. United States v. Board of Public Instruction, 395 F.2d 66 (CA5 1968); Brewer v. School Board, 397 F.2d 37 (CA4 1968). Page 402 U. S. 22 V The central issue in this case is that of student assignment, and there are essentially four problem areas: (1) to what extent racial balance or racial quotas may be used as an implement in a remedial order to correct a previously segregated system; (2) whether every all-Negro and all-white school must be eliminated as an indispensable part of a remedial process of desegregation; (3) what the limits are, if any, on the rearrangement of school districts and attendance zones, as a remedial measure; and (4) what the limits are, if any, on the use of transportation facilities to correct state-enforced racial school segregation. (1) Racial Balances or Racial Quotas. The constant theme and thrust of every holding from Brown I to date is that state-enforced separation of races in public schools is discrimination that violates the Equal Protection Clause. The remedy commanded was to dismantle dual school systems. We are concerned in these cases with the elimination of the discrimination inherent in the dual school systems, not with myriad factors of human existence which can cause discrimination in a multitude of ways on racial, religious, or ethnic grounds. The target of the cases from Brown I to the present was the dual school system. The elimination of racial discrimination in public schools is a large task, and one that should not be retarded by efforts to achieve broader purposes lying beyond the jurisdiction of school authorities. One vehicle can carry only a limited amount of baggage. It would not serve the important objective of Brown I to seek to use school desegregation cases for purposes beyond their scope, although desegregation of schools ultimately will have Page 402 U. S. 23 impact on other forms of discrimination. We do not reach in this case the question whether a showing that school segregation is a consequence of other types of state action, without any discriminatory action by the school authorities, is a constitutional violation requiring remedial action by a school desegregation decree. This case does not present that question and we therefore do not decide it. Our objective in dealing with the issues presented by these cases is to see that school authorities exclude no pupil of a racial minority from any school, directly or indirectly, on account of race; it does not and cannot embrace all the problems of racial prejudice, even when those problems contribute to disproportionate racial concentrations in some schools. In this case, it is urged that the District Court has imposed a racial balance requirement of 71%-29% on individual schools. The fact that no such objective was actually achieved -- and would appear to be impossible -- tends to blunt that claim, yet in the opinion and order of the District Court of December 1, 1969, we find that court directing "that efforts should be made to reach a 71-29 ratio in the various schools so that there will be no basis for contending that one school is racially different from the others . . . , [t]hat no school [should] be operated with an all-black or predominantly black student body, [and] [t]hat pupils of all grades [should] be assigned in such a way that as nearly as practicable the various schools at various grade levels have about the same proportion of black and white students." The District Judge went on to acknowledge that variation "from that norm may be unavoidable." This contains intimations that the "norm" is a fixed mathematical Page 402 U. S. 24 racial balance reflecting the pupil constituency of the system. If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance or mixing, that approach would be disapproved and we would be obliged to reverse. The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole. As the voluminous record in this case shows, [ Footnote 7 ] the predicate for the District Court's use of the 71%-29% ratio was twofold: first, its express finding, approved by the Court of Appeals and not challenged here, that a dual school system had been maintained by the school authorities at least until 1969; second, its finding, also approved by the Court of Appeals, that the school board had totally defaulted in its acknowledged duty to come forward with an acceptable plan of its own, notwithstanding the patient efforts of the District Judge who, on at least three occasions, urged the board to submit plans. [ Footnote 8 ] As the statement of facts shows, these findings are abundantly Page 402 U. S. 25 supported by the record. It was because of this total failure of the school board that the District Court was obliged to turn to other qualified sources, and Dr. Finger was designated to assist the District Court to do what the board should have done. We see therefore that the use made of mathematical ratios was no more than a starting point in the process of shaping a remedy, rather than an inflexible requirement. From that starting point, the District Court proceeded to frame a decree that was within its discretionary powers, as an equitable remedy for the particular circumstances. [ Footnote 9 ] As we said in Green, a school authority's remedial plan or a district court's remedial decree is to be judged by its effectiveness. Awareness of the racial composition of the whole school system is likely to be a useful starting point in shaping a remedy to correct past constitutional violations. In sum, the very limited use made of mathematical ratios was within the equitable remedial discretion of the District Court. (2) One-race Schools. The record in this case reveals the familiar phenomenon that, in metropolitan areas, minority groups are often found concentrated in one part of the city. In some circumstances, certain schools may remain all or largely of one race until new schools can be provided or neighborhood patterns change. Schools all or predominately Page 402 U. S. 26 of one race in a district of mixed population will require close scrutiny to determine that school assignments are not part of state-enforced segregation. In light of the above, it should be clear that the existence of some small number of one-race, or virtually one-race, schools within a district is not, in and of itself, the mark of a system that still practices segregation by law. The district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation, and will thus necessarily be concerned with the elimination of one-race schools. No per se rule can adequately embrace all the difficulties of reconciling the competing interests involved; but, in a system with a history of segregation, the need for remedial criteria of sufficient specificity to assure a school authority's compliance with its constitutional duty warrants a presumption against schools that are substantially disproportionate in their racial composition. Where the school authority's proposed plan for conversion from a dual to a unitary system contemplates the continued existence of some schools that are all or predominately of one race, they have the burden of showing that such school assignments are genuinely nondiscriminatory. The court should scrutinize such schools, and the burden upon the school authorities will be to satisfy the court that their racial composition is not the result of present or past discriminatory action on their part. An optional majority-to-minority transfer provision has long been recognized as a useful part of every desegregation plan. Provision for optional transfer of those in the majority racial group of a particular school to other schools where they will be in the minority is an indispensable remedy for those students willing to transfer to other schools in order to lessen the impact on them of the state-imposed stigma of segregation. In order to be effective, such a transfer arrangement must grant Page 402 U. S. 27 the transferring student free transportation and space must be made available in the school to which he desires to move. Cf. Ellis v. Board of Public Instruction, 423 F.2d 203, 206 (CA5 1970). The court orders in this and the companion Davis case now provide such an option. (3) Remedial Altering of Attendance Zones. The maps submitted in these cases graphically demonstrate that one of the principal tools employed by school planners and by courts to break up the dual school system has been a frank -- and sometimes drastic -- gerrymandering of school districts and attendance zones. An additional step was pairing, "clustering," or "grouping" of schools with attendance assignments made deliberately to accomplish the transfer of Negro students out of formerly segregated Negro schools and transfer of white students to formerly all-Negro schools. More often than not, these zones are neither compact [ Footnote 10 ] nor contiguous; indeed they may be on opposite ends of the city. As an interim corrective measure, this cannot be said to be beyond the broad remedial powers of a court. Page 402 U. S. 28 Absent a constitutional violation, there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. The remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations, and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems. No fixed or even substantially fixed guidelines can be established as to how far a court can go, but it must be recognized that there are limits. The objective is to dismantle the dual school system. "Racially neutral" assignment plans proposed by school authorities to a district court may be inadequate; such plans may fail to counteract the continuing effects of past school segregation resulting from discriminatory location of school sites or distortion of school size in order to achieve or maintain an artificial racial separation. When school authorities present a district court with a "loaded game board," affirmative action in the form of remedial altering of attendance zones is proper to achieve truly nondiscriminatory assignments. In short, an assignment plan is not acceptable simply because it appears to be neutral. In this area, we must of necessity rely to a large extent, as this Court has for more than 16 years, on the informed judgment of the district courts in the first instance and on courts of appeals. We hold that the pairing and grouping of noncontiguous school zones is a permissible tool, and such action is to be considered in light of the objectives sought. Judicial Page 402 U. S. 29 steps in shaping such zones going beyond combinations of contiguous areas should be examined in light of what is said in subdivisions (1), (2), and (3) of this opinion concerning the objectives to be sought. Maps do not tell the whole story, since noncontiguous school zones may be more accessible to each other in terms of the critical travel time, because of traffic patterns and good highways, than schools geographically closer together. Conditions in different localities will vary so widely that no rigid rules can be laid down to govern all situations. (4) Transportation of Students. The scope of permissible transportation of students as an implement of a remedial decree has never been defined by this Court, and, by the very nature of the problem, it cannot be defined with precision. No rigid guidelines as to student transportation can be given for application to the infinite variety of problems presented in thousands of situations. Bus transportation has been an integral part of the public education system for years, and was perhaps the single most important factor in the transition from the one-room schoolhouse to the consolidated school. Eighteen million of the Nation's public school children, approximately 39%, were transported to their schools by bus in 1969-1970 in all parts of the country. The importance of bus transportation as a normal and accepted tool of educational policy is readily discernible in this and the companion case, Davis, supra. [ Footnote 11 ] The Page 402 U. S. 30 Charlotte school authorities did not purport to assign students on the basis of geographically drawn zones until 1965, and then they allowed almost unlimited transfer privileges. The District Court's conclusion that assignment of children to the school nearest their home serving their grade would not produce an effective dismantling of the dual system is supported by the record. Thus, the remedial techniques used in the District Court's order were within that court's power to provide equitable relief; implementation of the decree is well within the capacity of the school authority. The decree provided that the buses used to implement the plan would operate on direct routes. Students would be picked up at schools near their homes and transported to the schools they were to attend. The trips for elementary school pupils average about seven miles, and the District Court found that they would take "not over 35 minutes, at the most." [ Footnote 12 ] This system compares favorably with the transportation plan previously operated in Charlotte, under which, each day, 23,600 students on all grade levels were transported an average of 15 miles one way for an average trip requiring over an hour. In these circumstances, we find no basis for holding that the local school authorities may not be required to employ bus transportation as one tool of school desegregation. Desegregation plans cannot be limited to the walk-in school. An objection to transportation of students may have validity when the time or distance of travel is so great as to either risk the health of the children or significantly Page 402 U. S. 31 impinge on the educational process. District courts must weigh the soundness of any transportation plan in light of what is said in subdivisions (1), (2), and (3) above. It hardly needs stating that the limits on time of travel will vary with many factors, but probably with none more than the age of the students. The reconciliation of competing values in a desegregation case is, of course, a difficult task with many sensitive facets, but fundamentally no more so than remedial measures courts of equity have traditionally employed. VI The Court of Appeals, searching for a term to define the equitable remedial power of the district courts, used the term "reasonableness." In Green, supra, this Court used the term "feasible," and, by implication, "workable," "effective," and "realistic" in the mandate to develop "a plan that promises realistically to work, and . . . to work now. " On the facts of this case, we are unable to conclude that the order of the District Court is not reasonable, feasible and workable. However, in seeking to define the scope of remedial power or the limits on remedial power of courts in an area as sensitive as we deal with here, words are poor instruments to convey the sense of basic fairness inherent in equity. Substance, not semantics, must govern, and we have sought to suggest the nature of limitations without frustrating the appropriate scope of equity. At some point, these school authorities and others like them should have achieved full compliance with this Court's decision in Brown I. The systems would then be "unitary" in the sense required by our decisions in Green and Alexander. It does not follow that the communities served by such systems will remain demographically stable, for, in a growing, mobile society, few will do so. Neither Page 402 U. S. 32 school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system. This does not mean that federal courts are without power to deal with future problems; but, in the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools, further intervention by a district court should not be necessary. For the reasons herein set forth, the judgment of the Court of Appeals is affirmed as to those parts in which it affirmed the judgment of the District Court. The order of the District Court, dated August 7, 1970, is also affirmed. It is so ordered. * Together with No. 349, Charlotte-Mecklenburg Board of Education et al. v. Swann et al., also on certiorari to the same court. [ Footnote 1 ] McDaniel v. Barresi, No. 420, post, p. 402 U. S. 39 ; Davis v. Board of School Commissioners of Mobile County, No. 436, post, p. 402 U. S. 33 ; Moore v. Charlotte-Mecklenburg Board of Education, No. 444, post, p. 402 U. S. 47 ; North Carolina State Board of Education v. Swann, No. 498, post, p. 402 U. S. 43 . For purposes of this opinion the cross-petitions in Nos. 281 and 349 are treated as a single case, and will be referred to as "this case." [ Footnote 2 ] Raney v. Board of Education, 391 U. S. 443 (1968), and Monroe v. Board of Commissioners, 391 U. S. 450 (1968). [ Footnote 3 ] A "satellite zone" is an area which is not contiguous with the main attendance zone surrounding the school. [ Footnote 4 ] In its opinion and order of December 1, 1969, later incorporated in the order appointing Dr. Finger as consultant, the District Court stated: "Fixed ratios of pupils in particular schools will not be set. If the board in one of its three tries had presented a plan for desegregation, the court would have sought ways to approve variations in pupil ratios. In default of any such plan from the school board, the court will start with the thought . . . that efforts should be made to reach a 71-29 ratio in the various schools so that there will be no basis for contending that one school is racially different from the others, but to understand that variations from that norm may be unavoidable." 306 F. Supp. 1299 , 1312. [ Footnote 5 ] The necessity for this is suggested by the situation in the Fifth Circuit where 166 appeals in school desegregation cases were heard between December 2, 1969, and September 24, 1970. [ Footnote 6 ] Elementary public school population (grades 1-6) grew from 17,447,000 in 1954 to 23, 103,000 in 1969; secondary school population (beyond grade 6) grew from 11, 183,000 in 1954 to 20,775,000 in 1969. Digest of Educational Statistics, Table 3, Office of Education Pub. 10024-64; Digest of Educational Statistics, Table 28, Office of Education Pub. 10024-70. [ Footnote 7 ] It must be remembered that the District Court entered nearly a score of orders and numerous sets of findings; and, for the most part, each was accompanied by a memorandum opinion. Considering the pressure under which the court was obliged to operate, we would not expect that all inconsistencies and apparent inconsistencies could be avoided. Our review, of course, is on the orders of February 5, 1970, as amended, and August 7, 1970. [ Footnote 8 ] The final board plan left 10 schools 86% to 100% Negro, and yet categorically rejected the techniques of pairing and clustering as part of the desegregation effort. As discussed below, the Charlotte board was under an obligation to exercise every reasonable effort to remedy the violation, once it was identified, and the suggested techniques are permissible remedial devices. Additionally, as noted by the District Court and Court of Appeals, the board plan did not assign white students to any school unless the student population of that school was at least 60% white. This was an arbitrary limitation negating reasonable remedial steps. [ Footnote 9 ] In its August 3, 1970, memorandum holding that the District Court plan was,"reasonable" under the standard laid down by the Fourth Circuit on appeal, the District Court explained the approach taken as follows: "This court has not ruled, and does not rule, that 'racial balance' is required under the Constitution; nor that all black schools in all cities are unlawful; nor that all school boards must bus children or violate the Constitution; nor that the particular order entered in this case would be correct in other circumstances not before this court. " (Emphasis in original.) [ Footnote 10 ] The reliance of school authorities on the reference to the "revision of . . . attendance areas into compact units," Brown II, at 349 U. S. 300 (emphasis supplied), is misplaced. The enumeration in that opinion of considerations to be taken into account by district courts was patently intended to be suggestive, rather than exhaustive. The decision in Brown II to remand the cases decided in Brown I to local courts for the framing of specific decrees was premised on a recognition that this Court could not at that time foresee the particular means which would be required to implement the constitutional principles announced. We said in Green, supra, at 391 U. S. 439 : "The obligation of the district courts, as it always has been, is to assess the effectiveness of a proposed plan in achieving desegregation. There is no universal answer to complex problems of desegregation; there is obviously no one plan that will do the job in every case. The matter must be assessed in light of the circumstances present and the options available in each instance." [ Footnote 11 ] During 1967-1968, for example, the Mobile board used 207 buses to transport 22,094 students daily for an average round trip of 31 miles. During 1966-1967, 7,116 students in the metropolitan area were bused daily. In Charlotte-Mecklenburg, the system as a whole, without regard to desegregation plans, planned to bus approximately 23,000 students this year, for an average daily round trip of 15 miles. More elementary school children than high school children were to be bused, and four- and five-year-olds travel the longest routes in the system. [ Footnote 12 ] The District Court found that the school system would have to employ 138 more buses than it had previously operated. But 105 of those buses were already available, and the others could easily be obtained. Additionally, it should be noted that North Carolina requires provision of transportation for all students who are assigned to schools more than one and one-half miles from their homes. N.C.Gen.Stat. § 115-186(b) (1966).

Here is a summary of the key points from the Supreme Court case Swann v. Charlotte-Mecklenburg Board of Education: **Background:** - The case concerns the desegregation of the Charlotte-Mecklenburg school system in North Carolina, which had a significant number of racially segregated schools. - Petitioner Swann sought further relief based on the Green v. County School Board case, which required school boards to take active steps to desegregate. **Lower Court Decisions:** - The District Court ordered the school board to provide a plan for faculty and student desegregation, but found their proposal unsatisfactory. - An expert was appointed and proposed plans for both junior/senior high schools and elementary schools. - The Court of Appeals affirmed the District Court's order regarding faculty desegregation and secondary school plans but vacated the order for elementary schools, concerned about the burden on pupils and the board. **Supreme Court Decision:** - The Supreme Court granted certiorari and directed the reinstatement of the District Court's order pending further proceedings. - The objective is to eliminate all vestiges of state-imposed segregation that violate equal protection guarantees. - School authorities have an affirmative obligation to propose acceptable remedies, and district courts have broad power to fashion remedies for unitary school systems if authorities default. - The Civil Rights Act of 1964 does not restrict federal courts' equitable remedial powers. - The Court affirmed the District Court's plan, which included busing and the pairing and grouping of schools to achieve desegregation. The case affirmed the power of federal courts to implement remedies to achieve desegregation and ensure equal protection under the law in public education.

Equal Protection

Frontiero v. Richardson

https://supreme.justia.com/cases/federal/us/411/677/

U.S. Supreme Court Frontiero v. Richardson, 411 U.S. 677 (1973) Frontiero v. Richardson No. 71-1694 Argued January 17, 1973 Decided May 14, 1973 411 U.S. 677 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA Syllabus A married woman Air Force officer (hereafter appellant) sought increased benefits for her husband as a "dependent" under 37 U.S.C. §§ 401, 403, and 10 U.S.C. §§ 1072, 1076. Those statutes provide, solely for administrative convenience, that spouses of male members of the uniformed services are dependents for purposes of obtaining increased quarters allowances and medical and dental benefits, but that spouses of female members are not dependents unless they are in fact, dependent for over one-half of their support. When her application was denied for failure to satisfy the statutory dependency standard, appellant and her husband brought this suit in District Court, contending that the statutes deprived servicewomen of due process. From that Court's adverse ruling, they took a direct appeal. Held: The judgment is reversed. Pp. 411 U. S. 682 -691; 411 U. S. 691 -692. 341 F. Supp. 201 , reversed. MR. JUSTICE BRENNAN, joined by MR. JUSTICE DOUGLAS, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL, concluded that 37 U.S.C. §§ 401, 403 and 10 U.S.C. §§ 1072, 1076, as inherently suspect statutory classifications based on sex, are so unjustifiably discriminatory as to violate the Due Process Clause of the Fifth Amendment. Pp. 411 U. S. 682 -691. MR. JUSTICE STEWART concluded that the challenged statutes work an invidious discrimination in violation of the Constitution. Reed v. Reed, 404 U. S. 71 . P. 411 U. S. 691 . MR. JUSTICE POWELL, joined by THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN, while agreeing that the statutes deprive servicewomen of due process, concluded that, in the light of Reed v. Reed, 404 U. S. 71 , and the fact that the Equal Rights Amendment has been submitted to the States for ratification, it is inappropriate to decide at this time whether sex is a suspect classification. Pp. 411 U. S. 691 -692. Page 411 U. S. 678 BRENNAN, J., announced the Court's judgment and delivered an opinion, in which DOUGLAS, WHITE, and MARSHALL, JJ., joined. STEWART, J., filed a statement concurring in the judgment, post, p. 411 U. S. 691 . POWELL, J., filed an opinion concurring in the judgment, in which BURGER, C.J., and BLACKMUN, J., joined, post, p. 411 U. S. 691 . REHNQUIST, J., filed a dissenting statement, post, p. 411 U. S. 691 . MR. JUSTICE BRENNAN announced the judgment of the Court and an opinion in which MR. JUSTICE DOUGLAS, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL join. The question before us concerns the right of a female member of the uniformed services [ Footnote 1 ] to claim her spouse as a "dependent" for the purposes of obtaining increased quarters allowances and medical and dental benefits under 37 U.S.C. §§ 401, 403, and 10 U.S.C. §§ 1072, 1076, on an equal footing with male members. Under these statutes, a serviceman may claim his wife as a "dependent" without regard to whether she is in fact, dependent upon him for any part of her support. 37 U.S.C.§ 401(1); 10 U.S.C.§ 1072(2)(A). A servicewoman, on the other hand, may not claim her husband as a "dependent" under these programs unless he is in fact, dependent upon her for over one-half of his support. Page 411 U. S. 679 37 U.S.C. § 401; 10 U.S.C. § 1072(2)(C). [ Footnote 2 ] Thus, the question for decision is whether this difference in treatment constitutes an unconstitutional discrimination against servicewomen in violation of the Due Process Clause of the Fifth Amendment. A three-judge District Court for the Middle District of Alabama, one judge dissenting, rejected this contention and sustained the constitutionality of the provisions of the statutes making this distinction. 341 F. Supp. 201 (1972). We noted probable jurisdiction. 409 U.S. 840 (1972). We reverse. I In an effort to attract career personnel through reenlistment, Congress established, in 37 U.S.C. § 401 et seq., and 10 U.S.C. § 1071 et seq., a scheme for the provision of fringe benefits to members of the uniformed services on a competitive basis with business and industry. [ Footnote 3 ] Thus, under 37 U.S.C. § 403, a member of the uniformed services with dependents is entitled to an Page 411 U. S. 680 increased "basic allowance for quarters" and, under 10 U.S.C. § 1076, a member's dependents are provided comprehensive medical and dental care. Appellant Sharron Frontiero, a lieutenant in the United States Air Force, sought increased quarters allowances, and housing and medical benefits for her husband, appellant Joseph Frontiero, on the ground that he was her "dependent." Although such benefits would automatically have been granted with respect to the wife of a male member of the uniformed services, appellant's application was denied because she failed to demonstrate that her husband was dependent on her for more than one-half of his support. [ Footnote 4 ] Appellants then commenced this suit, contending that, by making this distinction, the statutes unreasonably discriminate on the basis of sex in violation of the Due Process Clause of the Fifth Amendment. [ Footnote 5 ] In essence, appellants asserted that the discriminatory impact of the statutes is twofold: first, as a procedural matter, a female member is required to demonstrate her spouse's dependency, while no such burden is imposed upon male members; and, second, as a substantive matter, a male member who does not provide more than one-half of his wife's support receives benefits, while a similarly situated female member is denied such benefits. Appellants therefore sought a permanent injunction Page 411 U. S. 681 against the continued enforcement of these statutes and an order directing the appellees to provide Lieutenant Frontiero with the same housing and medical benefits that a similarly situated male member would receive. Although the legislative history of these statutes sheds virtually no light on the purposes underlying the differential treatment accorded male and female members, [ Footnote 6 ] a majority of the three-judge District Court surmised that Congress might reasonably have concluded that, since the husband in our society is generally the "breadwinner" in the family -- and the wife typically the "dependent" partner -- "it would be more economical to require married female members claiming husbands to prove actual dependency than to extend the presumption of dependency to such members." 341 F. Supp. at 207. Indeed, given the fact that approximately 99% of all members of the uniformed services are male, the District Page 411 U. S. 682 Court speculated that such differential treatment might conceivably lead to a "considerable saving of administrative expense and manpower." Ibid. II At the outset, appellants contend that classifications based upon sex, like classifications based upon race, [ Footnote 7 ] alienage, [ Footnote 8 ] and national origin, [ Footnote 9 ] are inherently suspect, and must therefore be subjected to close judicial scrutiny. We agree, and, indeed, find at least implicit support for such an approach in our unanimous decision only last Term in Reed v. Reed, 404 U. S. 71 (1971). In Reed, the Court considered the constitutionality of an Idaho statute providing that, when two individuals are otherwise equally entitled to appointment as administrator of an estate, the male applicant must be preferred to the female. Appellant, the mother of the deceased, and appellee, the father, filed competing petitions for appointment as administrator of their son's estate. Since the parties, as parents of the deceased, were members of the same entitlement class, the statutory preference was invoked, and the father's petition was therefore granted. Appellant claimed that this statute, by giving a mandatory preference to males over females without regard to their individual qualifications, violated the Equal Protection Clause of the Fourteenth Amendment. The Court noted that the Idaho statute "provides that different treatment be accorded to the applicants on the basis of their sex; it thus establishes a classification subject Page 411 U. S. 683 to scrutiny under the Equal Protection Clause." 404 U.S. at 404 U. S. 75 . Under "traditional" equal protection analysis, a legislative classification must be sustained unless it is "patently arbitrary" and bears no rational relationship to a legitimate governmental interest. See Jefferson v. Hackney, 406 U. S. 535 , 406 U. S. 546 (1972); Richardson v. Belcher, 404 U. S. 78 , 404 U. S. 81 (1971); Flemming v. Nestor, 363 U. S. 603 , 363 U. S. 611 (1960); McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 426 (1961); Dandridge v. Williams, 397 U. S. 471 , 397 U. S. 485 (1970). In an effort to meet this standard, appellee contended that the statutory scheme was a reasonable measure designed to reduce the workload on probate courts by eliminating one class of contests. Moreover, appellee argued that the mandatory preference for male applicants was, in itself, reasonable, since "men [are], as a rule, more conversant with business affairs than . . . women." [ Footnote 10 ] Indeed, appellee maintained that "it is a matter of common knowledge that women still are not engaged in politics, the professions, business or industry to the extent that men are. [ Footnote 11 ]" And the Idaho Supreme Court, in upholding the constitutionality of this statute, suggested that the Idaho Legislature might reasonably have "concluded that, in general, men are better qualified to act as an administrator than are women." [ Footnote 12 ] Despite these contentions, however, the Court held the statutory preference for male applicants unconstitutional. In reaching this result, the Court implicitly rejected appellee's apparently rational explanation of the statutory scheme, and concluded that, by ignoring the individual qualifications of particular applicants, the challenged statute provided "dissimilar treatment for men and women who are . . . similarly situated." 404 U.S. Page 411 U. S. 684 at 404 U. S. 77 . The Court therefore held that, even though the State's interest in achieving administrative efficiency "is not without some legitimacy," "[t]o give a mandatory preference to members of either sex over members of the other merely to accomplish the elimination of hearings on the merits is to make the very kind of arbitrary legislative choice forbidden by the [Constitution]. . . ." Id. at 404 U. S. 76 . This departure from "traditional" rational basis analysis with respect to sex-based classifications is clearly justified. There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. [ Footnote 13 ] Traditionally, such discrimination was rationalized by an attitude of "romantic paternalism" which, in practical effect, put women not on a pedestal, but in a cage. Indeed, this paternalistic attitude became so firmly rooted in our national consciousness that, 100 years ago, a distinguished Member of this Court was able to proclaim: "Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and Page 411 U. S. 685 independent career from that of her husband. . . ." ". . . The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator." Bradwell v. State , 16 Wall. 130, 83 U. S. 141 (1873) (Bradley, J., concurring). As a result of notions such as these, our statute books gradually became laden with gross, stereotyped distinctions between the sexes, and, indeed, throughout much of the 19th century, the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children. See generally L. Kanowitz, Women and the Law: The Unfinished Revolution 5-6 (1969); G. Myrdal, An American Dilemma 1073 (20th anniversary ed.1962). And although blacks were guaranteed the right to vote in 1870, women were denied even that right -- which is itself "preservative of other basic civil and political rights" [ Footnote 14 ] -- until adoption of the Nineteenth Amendment half a century later. It is true, of course, that the position of women in America has improved markedly in recent decades. [ Footnote 15 ] Page 411 U. S. 686 Nevertheless, it can hardly be doubted that, in part because of the high visibility of the sex characteristic, [ Footnote 16 ] women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena. [ Footnote 17 ] See generally K. Amundsen, The Silenced Majority: Women and American Democracy (1971); The President's Task Force on Women's Rights and Responsibilities, A Matter of Simple Justice (1970). Moreover, since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate "the basic concept of our system that legal burdens should bear some relationship to individual responsibility. . . ." Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 , 406 U. S. 175 (1972). And what differentiates sex from such nonsuspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. [ Footnote 18 ] As a result, statutory distinctions Page 411 U. S. 687 between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members. We might also note that, over the past decade, Congress has itself manifested an increasing sensitivity to sex-based classifications. In Tit. VII of the Civil Rights Act of 1964, for example, Congress expressly declared that no employer, labor union, or other organization subject to the provisions of the Act shall discriminate against any individual on the basis of "race, color, religion, sex, or national origin." [ Footnote 19 ] Similarly, the Equal Pay Act of 1963 provides that no employer covered by the Act "shall discriminate . . . between employees on the basis of sex. " [ Footnote 20 ] And § 1 of the Equal Rights Amendment, passed by Congress on March 22, 1972, and submitted to the legislatures of the States for ratification, declares that "[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." [ Footnote 21 ] Thus, Congress itself has concluded that classifications based upon sex are inherently invidious, and this conclusion of a coequal Page 411 U. S. 688 branch of Government is not without significance to the question presently under consideration. Cf. Oregon v. Mitchell, 400 U. S. 112 , 400 U. S. 240 , 400 U. S. 248 -249 (1970) (opinion of BRENNAN, WHITE, and MARSHALL, JJ.); Katzenbach v. Moran, 384 U. S. 641 , 384 U. S. 648 -649 (1966). With these considerations in mind, we can only conclude that classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny. Applying the analysis mandated by that stricter standard of review, it is clear that the statutory scheme now before us is constitutionally invalid. III The sole basis of the classification established in the challenged statutes is the sex of the individuals involved. Thus, under 37 U.S.C. §§ 401, 403, and 10 U.S.C. §§ 1072, 1076, a female member of the uniformed services seeking to obtain housing and medical benefits for her spouse must prove his dependency in fact, whereas no such burden is imposed upon male members. In addition, the statutes operate so as to deny benefits to a female member, such as appellant Sharron Frontiero, who provides less than one-half of her spouse's support, while at the same time granting such benefits to a male member who likewise provides less than one-half of his spouse's support. Thus, to this extent, at least, it may fairly be said that these statutes command "dissimilar treatment for men and women who are . . . similarly situated." Reed v. Reed, 404 U.S. at 404 U. S. 77 . Moreover, the Government concedes that the differential treatment accorded men and women under these statutes serves no purpose other than mere "administrative convenience." In essence, the Government maintains that, as an empirical matter, wives in our society frequently are dependent upon their husbands, while husbands Page 411 U. S. 689 rarely are dependent upon their wives. Thus, the Government argues that Congress might reasonably have concluded that it would be both cheaper and easier simply conclusively to presume that wives of male members are financially dependent upon their husbands, while burdening female members with the task of establishing dependency in fact. [ Footnote 22 ] The Government offers no concrete evidence, however, tending to support its view that such differential treatment in fact saves the Government any money. In order to satisfy the demands of strict judicial scrutiny, the Government must demonstrate, for example, that it is actually cheaper to grant increased benefits with respect to all male members than it is to determine which male members are, in fact, entitled to such benefits, and to grant increased benefits only to those members whose wives actually meet the dependency requirement. Here, however, there is substantial evidence that, if put to the test, many of the wives of male members would fail to qualify for benefits. [ Footnote 23 ] And in light of the fact that the Page 411 U. S. 690 dependency determination with respect to the husbands of female members is presently made solely on the basis of affidavits, rather than through the more costly hearing process, [ Footnote 24 ] the Government's explanation of the statutory scheme is, to say the least, questionable. In any case, our prior decisions make clear that, although efficacious administration of governmental programs is not without some importance, "the Constitution recognizes higher values than speed and efficiency." Stanley v. Illinois, 405 U. S. 645 , 405 U. S. 656 (1972). And when we enter the realm of "strict judicial scrutiny," there can be no doubt that "administrative convenience" is not a shibboleth, the mere recitation of which dictates constitutionality. See Shapiro v. Thompson, 394 U. S. 618 (1969); Carrington v. Rash, 380 U. S. 89 (1965). On the contrary, any statutory scheme which draws a sharp line between the sexes, solely for the purpose of achieving administrative convenience, necessarily commands "dissimilar treatment for men and women who are . . . similarly situated," and therefore involves the "very kind of arbitrary legislative choice forbidden by the [Constitution]. . . ." Reed v. Reed, 404 U.S. at 404 U. S. 77 , 404 U. S. 76 . We therefore conclude that, by according differential treatment to male and female members of the uniformed services for the sole purpose of achieving administrative Page 411 U. S. 691 convenience, the challenged statutes violate the Due Process Clause of the Fifth Amendment insofar as they require a female member to prove the dependency of her husband. [ Footnote 25 ] Reversed. MR. JUSTICE STEWART concurs in the judgment, agreeing that the statutes before us work an invidious discrimination in violation of the Constitution. Reed v. Reed, 404 U. S. 71 . MR. JUSTICE REHNQUIST dissents for the reasons stated by Judge Rives in his opinion for the District Court, Frontiero v. Laird, 341 F. Supp. 201 (1972). [ Footnote 1 ] The "uniformed services" include the Army, Navy, Air Force, Marine Corps, Coast Guard, Environmental Science Services Administration, and Public Health Service. 37 U.S.C. § 101(3); 10 U.S.C. § 1072(1). [ Footnote 2 ] Title 37 U.S.C. § 401 provides in pertinent part: "In this chapter, 'dependent,' with respect to a member of a uniformed service, means --" "(1) his spouse;" " * * * *" "However, a person is not a dependent of a female member unless he is in fact, dependent on her for over one-half of his support. . . ." Title 10 U.S.C. § 1072(2) provides in pertinent part: "'Dependent,' with respect to a member . . . of a uniformed service, means --" "(A) the wife;" " * * * *" "(C) the husband, if he is in fact, dependent on the member . . . for over one-half of his support. . . ." [ Footnote 3 ] See 102 Cong.Rec. 3849-3850 (Cong. Kilday), 8043 (Sen. Saltonstall); 95 Cong.Rec. 7662 (Cong. Kilday), 7664 (Cong. Short), 7666 (Cong. Havenner), 7667 (Cong. Bates), 7671 (Cong. Price). See also 10 U.S.C. § 1071. [ Footnote 4 ] Appellant Joseph Frontiero is a full-time student at Huntingdon College in Montgomery, Alabama. According to the agreed stipulation of facts, his living expenses, including his share of the household expenses, total approximately $354 per month. Since he receives $205 per month in veterans' benefits, it is clear that he is not dependent upon appellant Sharron Frontiero for more than one-half of his support. [ Footnote 5 ] "[W]hile the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is 'so unjustifiable as to be violative of due process.'" Schneider v. Rusk, 377 U. S. 163 , 377 U. S. 168 (1964); see Shapiro v. Thompson, 394 U. S. 618 , 394 U. S. 641 -642 (1969); Bolling v. Sharpe, 347 U. S. 497 (1954). [ Footnote 6 ] The housing provisions, set forth in 37 U.S.C. § 401 et seq., were enacted as part of the Career Compensation Act of 1949, which established a uniform pattern of military pay and allowances, consolidating and revising the piecemeal legislation that had been developed over the previous 40 years. See H.R.Rep. No. 779, 81st Cong., 1st Sess.; S.Rep. No. 733, 81st Cong., 1st Sess. The Act apparently retained in substance the dependency definitions of § 4 of the Pay Readjustment Act of 1942 (56 Stat. 361), as amended by § 6 of the Act of September 7, 1944 (58 Stat. 730), which required a female member of the service to demonstrate her spouse's dependency. It appears that this provision was itself derived from unspecified earlier enactments. See S.Rep. No. 917, 78th Cong., 2d Sess., 4. The medical benefits legislation, 10 U.S.C. § 1071 et seq., was enacted as the Dependents' Medical Care Act of 1956. As such, it was designed to revise and make uniform the existing law relating to medical services for military personnel. It, too, appears to have carried forward, without explanation, the dependency provisions found in other military pay and allowance legislation. See H.R.Rep. No. 1805, 84th Cong., 2d Sess.; S.Rep. No. 1878, 84th Cong., 2d Sess. [ Footnote 7 ] See Loving v. Virginia, 388 U. S. 1 , 388 U. S. 11 (1967); McLaughlin v. Florida, 379 U. S. 184 , 379 U. S. 191 -192 (1964); Bolling v. Sharpe, supra, at 347 U. S. 499 . [ Footnote 8 ] See Graham v. Richardson, 403 U. S. 365 , 403 U. S. 372 (1971). [ Footnote 9 ] See Oyama v. California, 332 U. S. 633 , 332 U. S. 644 -646 (1948); Korematsu v. United States, 323 U. S. 214 , 323 U. S. 216 (1944); Hirabayashi v. United States, 320 U. S. 81 , 320 U. S. 100 (1943). [ Footnote 10 ] Brief for Appellee in No. 70-4, O.T. 1971, Reed v. Reed, p. 12. [ Footnote 11 ] Id. at 12-13. [ Footnote 12 ] Reed v. Reed, 93 Idaho 511, 514, 465 P.2d 635, 638 (1970). [ Footnote 13 ] Indeed, the position of women in this country at its inception is reflected in the view expressed by Thomas Jefferson that women should be neither seen nor heard in society's decisionmaking councils. See M. Gruberg, Women in American Politics 4 (1968). See also 2 A. de Tocqueville, Democracy in America (Reeves trans.1948). [ Footnote 14 ] Reynolds v. Sims, 377 U. S. 533 , 377 U. S. 562 (1964); see Dunn v. Blumstein, 405 U. S. 330 , 405 U. S. 336 (1972); Kramer v. Union Free School District, 395 U. S. 621 , 395 U. S. 626 (1969); Yick Wo v. Hopkins, 118 U. S. 356 , 118 U. S. 370 (1886). [ Footnote 15 ] See generally The President's Task Force on Women's Rights and Responsibilities, A Matter of Simple Justice (1970); L. Kanowitz, Women and the Law: The Unfinished Revolution (1969); A. Montagu, Man's Most Dangerous Myth (4th ed.1964); The President's Commission on the Status of Women, American Women (1963). [ Footnote 16 ] See, e.g., Note, Sex Discrimination and Equal Protection: Do We Need a Constitutional Amendment?, 84 Harv.L.Rev. 1499, 1507 (1971). [ Footnote 17 ] It is true, of course, that, when viewed in the abstract, women do not constitute a small and powerless minority. Nevertheless, in part because of past discrimination, women are vastly underrepresented in this Nation's decisionmaking councils. There has never been a female President, nor a female member of this Court. Not a single woman presently sits in the United States Senate, and only 14 women hold seats in the House of Representatives. And, as appellants point out, this underrepresentation is present throughout all levels of our State and Federal Government. See Joint Reply Brief of Appellants and American Civil Liberties Union ( Amicus Curiae ) 9. [ Footnote 18 ] See, e.g., Developments in the Law -- Equal Protection, 82 Harv.L.Rev. 1065, 1173-1174 (1969). [ Footnote 19 ] 42 U.S.C. §§ 2000e-2(a), (b), (c) (emphasis added). See generally Sape & Hart, Title VII Reconsidered: The Equal Employment Opportunity Act of 1972, 40 Geo.Wash.L.Rev. 824 (1972); Developments in the Law -- Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109 (1971). [ Footnote 20 ] 29 U.S.C. § 206(d) (emphasis added). See generally Murphy, Female Wage Discrimination: A Study of the Equal Pay Act 1963-1970, 39 U.Cin.L.Rev. 615 (1970). [ Footnote 21 ] H.R.J.Res. No. 208, 92d Cong., 2d Sess. (1972). In conformity with these principles, Congress in recent years has amended various statutory schemes similar to those presently under consideration so as to eliminate the differential treatment of men and women. See 5 U.S.C. § 2108, as amended, 85 Stat. 644; 5 U.S.C. § 7152, as amended, 85 Stat. 644; 5 U.S.C. § 8341, as amended, 84 Stat. 1961; 38 U.S.C. § 102(b), as amended, 86 Stat. 1092. [ Footnote 22 ] It should be noted that these statutes are not in any sense designed to rectify the effects of past discrimination against women. See Gruenwald v. Gardner, 390 F.2d 591 (CA2), cert. denied, 393 U.S. 982 (1968); cf. Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968); South Carolina v. Katzenbach, 383 U. S. 301 (1966). On the contrary, these statutes seize upon a group -- women -- who have historically suffered discrimination in employment, and rely on the effects of this past discrimination as a justification for heaping on additional economic disadvantages. Cf. Gaston County v. United States, 395 U. S. 285 , 395 U. S. 296 -297 (1969). [ Footnote 23 ] In 1971, 43% of all women over the age of 16 were in the labor force, and 18% of all women worked full-time 12 months per year. See U.S. Women's Bureau, Dept. of Labor, Highlights of Women's Employment & Education 1 (W.B.Pub. No. 72-191, Mar.1972). Moreover, 41.5% of all married women are employed. See U.S. Bureau of Labor Statistics, Dept. of Labor, Work Experience of the Population in 1971, p. 4 (Summary Special Labor Force Report, Aug.1972). It is also noteworthy that, while the median income of a male member of the armed forces is approximately $3,686, see The Report of the President's Commission on an All-Volunteer Armed Force 51, 181 (1970), the median income for all women over the age of 14, including those who are not employed, is approximately $2,237. See Statistical Abstract of the United States Table No. 535 (1972) Source: U.S. Bureau of the Census, Current Population Reports Series P-60, No. 80. Applying the statutory definition of "dependency" to these statistics, it appears that, in the "median" family, the wife of a male member must have personal expenses of approximately $4,474, or about 75% of the total family income, in order to qualify as a "dependent." [ Footnote 24 ] Tr. of Oral Arg. 27-28. [ Footnote 25 ] As noted earlier, the basic purpose of these statutes was to provide fringe benefits to members of the uniformed services in order to establish a compensation pattern which would attract career personnel through reenlistment. See n 3, supra, and accompanying text. Our conclusion in no wise invalidates the statutory schemes except insofar as they require a female member to prove the dependency of her spouse. See Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 (1972); Levy v. Louisiana, 391 U. S. 68 (1968); Moritz v. Commissioner of Internal Revenue, 469 F.2d 466 (CA10 1972). See also 1 U.S.C. § 1. MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN join, concurring in the judgment. I agree that the challenged statutes constitute an unconstitutional discrimination against servicewomen in violation of the Due Process Clause of the Fifth Amendment, but I cannot join the opinion of MR. JUSTICE BRENNAN, which would hold that all classifications based upon sex, "like classifications based upon race, alienage, and national origin," are "inherently suspect, and must therefore be subjected to close judicial scrutiny." Ante at 411 U. S. 682 . It is unnecessary for the Court in this case to Page 411 U. S. 692 characterize sex as a suspect classification, with all of the far-reaching implications of such a holding. Reed v. Reed, 404 U. S. 71 (1971), which abundantly supports our decision today, did not add sex to the narrowly limited group of classifications which are inherently suspect. In my view, we can and should decide this case on the authority of Reed, and reserve for the future any expansion of its rationale. There is another, and I find compelling, reason for deferring a general categorizing of sex classifications as invoking the strictest test of judicial scrutiny. The Equal Rights Amendment, which if adopted will resolve the substance of this precise question, has been approved by the Congress and submitted for ratification by the States. If this Amendment is duly adopted, it will represent the will of the people accomplished in the manner prescribed by the Constitution. By acting prematurely and unnecessarily, as I view it, the Court has assumed a decisional responsibility at the very time when state legislatures, functioning within the traditional democratic process, are debating the proposed Amendment. It seems to me that this reaching out to preempt by judicial action a major political decision which is currently in process of resolution does not reflect appropriate respect for duly prescribed legislative processes. There are times when this Court, under our system, cannot avoid a constitutional decision on issues which normally should be resolved by the elected representatives of the people. But democratic institutions are weakened, and confidence in the restraint of the Court is impaired, when we appear unnecessarily to decide sensitive issues of broad social and political importance at the very time they are under consideration within the prescribed constitutional processes.

In *Frontiero v. Richardson*, the Supreme Court ruled that laws providing benefits to military spouses based on gender are unconstitutional, violating the Due Process Clause of the Fifth Amendment. The Court found that classifications based on sex are inherently suspect and must be closely scrutinized, with some justices reserving judgment on whether sex is a suspect classification until the Equal Rights Amendment is ratified. The decision ensured that female service members could claim their spouses as dependents, receiving equal quarters, medical, and dental benefits as their male counterparts.

Free Speech

Reed v. Town of Gilbert

https://supreme.justia.com/cases/federal/us/576/13-502/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 13–502 _________________ CLYDE REED, et al., PETITIONERS v. TOWN OF GILBERT, ARIZONA, et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 18, 2015] Justice Thomas delivered the opinion of the Court. The town of Gilbert, Arizona (or Town), has adopted a comprehensive code governing the manner in which people may display outdoor signs. Gilbert, Ariz., Land Development Code (Sign Code or Code), ch. 1, §4.402 (2005).[ 1 ] The Sign Code identifies various categories of signs based on the type of information they convey, then subjects each category to different restrictions. One of the categories is “Temporary Directional Signs Relating to a Qualifying Event,” loosely defined as signs directing the public to a meeting of a nonprofit group. §4.402(P). The Code imposes more stringent restrictions on these signs than it doeson signs conveying other messages. We hold that these provisions are content-based regulations of speech that cannot survive strict scrutiny. I A The Sign Code prohibits the display of outdoor signs anywhere within the Town without a permit, but it then exempts 23 categories of signs from that requirement. These exemptions include everything from bazaar signs to flying banners. Three categories of exempt signs are particularly relevant here. The first is “Ideological Sign[s].” This category includes any “sign communicating a message or ideas for noncommercial purposes that is not a Construction Sign, Directional Sign, Temporary Directional Sign Relating to a Qualifying Event, Political Sign, Garage Sale Sign, or a sign owned or required by a governmental agency.” Sign Code, Glossary of General Terms (Glossary), p. 23 (emphasis deleted). Of the three categories discussed here, the Code treats ideological signs most favorably, allowing them to be up to 20 square feet in area and to be placed in all “zoning districts” without time limits. §4.402(J). The second category is “Political Sign[s].” This includes any “temporary sign designed to influence the outcome of an election called by a public body.” Glossary 23.[ 2 ] The Code treats these signs less favorably than ideological signs. The Code allows the placement of political signs up to 16 square feet on residential property and up to 32 square feet on nonresidential property, undeveloped municipal property, and “rights-of-way.” §4.402(I).[ 3 ] These signs may be displayed up to 60 days before a primary election and up to 15 days following a general election. Ibid. The third category is “Temporary Directional Signs Relating to a Qualifying Event.” This includes any “Temporary Sign intended to direct pedestrians, motorists, and other passersby to a ‘qualifying event.’ ” Glossary 25 (emphasis deleted). A “qualifying event” is defined as any “assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization.” Ibid. The Code treats temporary directional signs even less favorably than political signs.[ 4 ] Temporary directional signs may be no larger than six square feet. §4.402(P). They may be placed on private property or on a public right-of-way, but no more than four signs may be placed on a single property at any time. Ibid . And, they may be displayed no more than 12 hours before the “qualifying event” and no more than 1 hour afterward. Ibid. B Petitioners Good News Community Church (Church) and its pastor, Clyde Reed, wish to advertise the time and location of their Sunday church services. The Church is a small, cash-strapped entity that owns no building, so it holds its services at elementary schools or other locations in or near the Town. In order to inform the public about its services, which are held in a variety of different locations, the Church began placing 15 to 20 temporary signs around the Town, frequently in the public right-of-way abutting the street. The signs typically displayed the Church’s name, along with the time and location of the upcoming service. Church members would post the signs early in the day on Saturday and then remove them around midday on Sunday. The display of these signs requires little money and manpower, and thus has proved to be an economical and effective way for the Church to let the community know where its services are being held each week. This practice caught the attention of the Town’s Sign Code compliance manager, who twice cited the Church for violating the Code. The first citation noted that the Church exceeded the time limits for displaying its temporary directional signs. The second citation referred to the same problem, along with the Church’s failure to include the date of the event on the signs. Town officials even confiscated one of the Church’s signs, which Reed had to retrieve from the municipal offices. Reed contacted the Sign Code Compliance Department in an attempt to reach an accommodation. His efforts proved unsuccessful. The Town’s Code compliance manager informed the Church that there would be “no leni-ency under the Code” and promised to punish any futureviolations. Shortly thereafter, petitioners filed a complaint in the United States District Court for the District of Arizona, arguing that the Sign Code abridged their freedom of speech in violation of the First and Fourteenth Amendments. The District Court denied the petitioners’ motion for a preliminary injunction. The Court of Appeals for the Ninth Circuit affirmed, holding that the Sign Code’s provision regulating temporary directional signs did not regulate speech on the basis of content. 587 F. 3d 966, 979 (2009). It reasoned that, even though an enforcement officer would have to read the sign to determine what provisions of the Sign Code applied to it, the “ ‘kind of cursory examination’ ” that would be necessary for an officer to classify it as a temporary directional sign was “not akin to an officer synthesizing the expressive content of the sign.” Id. , at 978. It then remanded for the District Court to determine in the first instance whether the Sign Code’s distinctions among temporary directional signs, political signs, and ideological signs nevertheless constituted a content-based regulation of speech. On remand, the District Court granted summary judgment in favor of the Town. The Court of Appeals again affirmed, holding that the Code’s sign categories were content neutral. The court concluded that “the distinctions between Temporary Directional Signs, Ideological Signs, and Political Signs . . . are based on objective factors relevant to Gilbert’s creation of the specific exemption from the permit requirement and do not otherwise consider the substance of the sign.” 707 F. 3d 1057, 1069 (CA9 2013). Relying on this Court’s decision in Hill v. Colorado , 530 U. S. 703 (2000) , the Court of Appeals concluded that the Sign Code is content neutral. 707 F. 3d, at 1071–1072. As the court explained, “Gilbert did not adopt its regulation of speech because it disagreed with the message conveyed” and its “interests in regulat[ing] temporary signs are unrelated to the content of the sign.” Ibid. Accord-ingly, the court believed that the Code was “content-neutral as that term [has been] defined by the Supreme Court.” Id., at 1071. In light of that determination, it applied a lower level of scrutiny to the Sign Code and concluded that the law did not violate the First Amendment. Id. , at 1073–1076. We granted certiorari, 573 U. S. ___ (2014), and now reverse. II A The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws “abridging the freedom of speech.” U. S. Const., Amdt. 1. Under that Clause, a government, including a municipal government vested with state authority, “has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dept. of Chicago v. Mosley , 408 U. S. 92, 95 (1972) . Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. R. A. V. v. St. Paul , 505 U. S. 377, 395 (1992) ; Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd. , 502 U. S. 105, 115, 118 (1991) . Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. E.g., Sorrell v. IMS Health, Inc. , 564 U. S. ___, ___–___ (2011) (slip op., at 8–9); Carey v. Brown , 447 U. S. 455, 462 (1980) ; Mosley , supra, at 95. This commonsense meaning of the phrase “content based” requires a court to consider whether a regulation of speech “on its face” draws distinctions based on the message a speaker conveys. Sorrell , supra, at ___ (slip op., at 8). Some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny. Our precedents have also recognized a separate and additional category of laws that, though facially content neutral, will be considered content-based regulations of speech: laws that cannot be “ ‘justified without reference to the content of the regulated speech,’ ” or that were adopted by the government “because of disagreement with the message [the speech] conveys,” Ward v. Rock Against Racism , 491 U. S. 781, 791 (1989) . Those laws, like those that are content based on their face, must also satisfy strict scrutiny. B The Town’s Sign Code is content based on its face. It defines “Temporary Directional Signs” on the basis of whether a sign conveys the message of directing the public to church or some other “qualifying event.” Glossary 25. It defines “Political Signs” on the basis of whether a sign’s message is “designed to influence the outcome of an election.” Id., at 24. And it defines “Ideological Signs” on the basis of whether a sign “communicat[es] a message or ideas” that do not fit within the Code’s other categories. Id., at 23. It then subjects each of these categories to different restrictions. The restrictions in the Sign Code that apply to any given sign thus depend entirely on the communicative content of the sign. If a sign informs its reader of the time and place a book club will discuss John Locke’s Two Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke’s followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke’s theory of government. More to the point, the Church’s signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas. On its face, the Sign Code is a content-based regulation of speech. We thus have no need to consider the government’s justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny. C In reaching the contrary conclusion, the Court of Appeals offered several theories to explain why the Town’s Sign Code should be deemed content neutral. None is persuasive. 1 The Court of Appeals first determined that the Sign Code was content neutral because the Town “did not adopt its regulation of speech [based on] disagree[ment] with the message conveyed,” and its justifications for regulating temporary directional signs were “unrelated to the content of the sign.” 707 F. 3d, at 1071–1072. In its brief to this Court, the United States similarly contends that a sign regulation is content neutral—even if it expressly draws distinctions based on the sign’s communicative content—if those distinctions can be “ ‘justified without reference to the content of the regulated speech.’ ” Brief for United States as Amicus Curiae 20, 24 (quoting Ward, supra , at 791; emphasis deleted). But this analysis skips the crucial first step in thecontent-neutrality analysis: determining whether the law is content neutral on its face. A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of “animus toward the ideas contained” in the regulated speech. Cincinnati v. Discovery Network , Inc., 507 U. S. 410, 429 (1993) . We have thus made clear that “ ‘[i]llicit legislative intent is not the sine qua non of a violation of the First Amendment,’ ” and a party opposing the government “need adduce ‘no evidence of an improper censorial motive.’ ” Simon & Schuster, supra, at 117. Although “a content-based purpose may be sufficient in certain circumstances to show that a regulation is content based, it is not necessary.” Turner Broadcasting System, Inc. v. FCC , 512 U. S. 622, 642 (1994) . In other words, an innocuous justification cannot transform a facially content-based law into one that is content neutral. That is why we have repeatedly considered whether a law is content neutral on its face before turning to the law’s justification or purpose. See, e.g., Sorrell , supra, at ___–___ (slip op., at 8–9) (statute was content based “on its face,” and there was also evidence of an impermissible legislative motive); United States v. Eichman , 496 U. S. 310, 315 (1990) (“Although the [statute] contains no ex-plicit content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government’s asserted interest is related to the suppression of free expression” (internal quotation marks omitted)); Members of City Council of Los Angeles v. Taxpayers for Vincent , 466 U. S. 789, 804 (1984) (“The text of the ordinance is neutral,” and “there is not even a hint of bias or censorship in the City’s enactment or enforcement of this ordinance”); Clark v. Community for Creative Non-Violence , 468 U. S. 288, 293 (1984) (requiring that a facially content-neutral ban on camping must be “justified without reference to the content of the regulated speech”); United States v. O’Brien , 391 U. S. 367, 375, 377 (1968) (noting that the statute “on its face deals with conduct having no connection with speech,” but examining whether the “the governmental interest is unrelated to the suppression of free expression”). Because strict scrutiny applies either when a law is content based on its face or when the purpose and justification for the law are content based, a court must evaluate each question before it concludes that the law is content neutral and thus subject to a lower level of scrutiny. The Court of Appeals and the United States misunderstand our decision in Ward as suggesting that a government’s purpose is relevant even when a law is content based on its face. That is incorrect. Ward had nothing to say about facially content-based restrictions because it involved a facially content- neutral ban on the use, in a city-owned music venue, of sound amplification systems not provided by the city. 491 U. S., at 787, and n. 2. In that context, we looked to governmental motive, including whether the government had regulated speech “because of disagreement” with its message, and whether the regulation was “ ‘justified without reference to the content of the speech.’ ” Id., at 791. But Ward ’s framework “applies only if a statute is content neutral.” Hill , 530 U. S., at 766 (Kennedy, J., dissenting). Its rules thus operate “to protect speech,” not “to restrict it.” Id., at 765. The First Amendment requires no less. Innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech. That is why the First Amendment expressly targets the operation of the laws— i.e., the “abridg[ement] of speech”—rather than merely the motives of those who enacted them. U. S. Const., Amdt. 1. “ ‘The vice of content-based legislation . . . is not that it is always used for invidious, thought-control purposes, but that it lends itself to use for those purposes.’ ” Hill, supra, at 743 (Scalia, J., dissenting). For instance, in NAACP v. Button , 371 U. S. 415 (1963) , the Court encountered a State’s attempt to use a statute prohibiting “ ‘improper solicitation’ ” by attorneys to outlaw litigation-related speech of the National Association for the Advancement of Colored People. Id., at 438. Although Button predated our more recent formulations of strict scrutiny, the Court rightly rejected the State’s claim that its interest in the “regulation of professional conduct” rendered the statute consistent with the First Amendment, observing that “it is no answer . . . to say . . . that the purpose of these regulations was merely to insure high professional standards and not to curtail free expression.” Id., at 438–439. Likewise, one could easily imagine a Sign Code compliance manager who disliked the Church’s substantive teachings deploying the Sign Code to make it more difficult for the Church to inform the public of the location of its services. Accordingly, we have repeatedly “rejected the argument that ‘discriminatory . . . treatment is suspect under the First Amendment only when the legislature intends to suppress certain ideas.’ ” Discovery Network, 507 U. S., at 429. We do so again today. 2 The Court of Appeals next reasoned that the Sign Code was content neutral because it “does not mention any idea or viewpoint, let alone single one out for differential treatment.” 587 F. 3d, at 977. It reasoned that, for the purpose of the Code provisions, “[i]t makes no difference which candidate is supported, who sponsors the event, or what ideological perspective is asserted.” 707 F. 3d, at 1069. The Town seizes on this reasoning, insisting that “content based” is a term of art that “should be applied flexibly” with the goal of protecting “viewpoints and ideas from government censorship or favoritism.” Brief for Respondents 22. In the Town’s view, a sign regulation that “does not censor or favor particular viewpoints or ideas” cannot be content based. Ibid . The Sign Code allegedly passes this test because its treatment of temporary directional signs does not raise any concerns that the government is “endorsing or suppressing ‘ideas or viewpoints,’ ” id. , at 27, and the provisions for political signs and ideological signs “are neutral as to particular ideas or viewpoints” within those categories. Id. , at 37. This analysis conflates two distinct but related limitations that the First Amendment places on government regulation of speech. Government discrimination among viewpoints—or the regulation of speech based on “the specific motivating ideology or the opinion or perspective of the speaker”—is a “more blatant” and “egregious form of content discrimination.” Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U. S. 819, 829 (1995) . But it is well established that “[t]he First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic.” Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y. , 447 U. S. 530, 537 (1980) . Thus, a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter. Ibid. For example, a law banning the use of sound trucks for political speech—and only political speech—would be a content-based regulation, even if it imposed no limits on the political viewpoints that could be expressed. See Discovery Network, supra, at 428. The Town’s Sign Code likewise singles out specific subject matter for differential treatment, even if it does not target viewpoints within that subject matter. Ideological messages are given more favorable treatment than messages concerning a political candidate, which are themselves given more favorable treatment than messages announcing an assembly of like-minded individuals. That is a paradigmatic example of content-based discrimination. 3 Finally, the Court of Appeals characterized the Sign Code’s distinctions as turning on “ ‘the content-neutral elements of who is speaking through the sign and whether and when an event is occurring.’ ” 707 F. 3d, at 1069. That analysis is mistaken on both factual and legal grounds. To start, the Sign Code’s distinctions are not speaker based. The restrictions for political, ideological, and temporary event signs apply equally no matter who sponsors them. If a local business, for example, sought to put up signs advertising the Church’s meetings, those signs would be subject to the same limitations as such signs placed by the Church. And if Reed had decided to dis-play signs in support of a particular candidate, he could have made those signs far larger—and kept them up for far longer—than signs inviting people to attend hischurch services. If the Code’s distinctions were truly speaker based, both types of signs would receive the same treatment. In any case, the fact that a distinction is speaker based does not, as the Court of Appeals seemed to believe, automatically render the distinction content neutral. Because “[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content,” Citizens United v. Federal Election Comm’n , 558 U. S. 310, 340 (2010) , we have insisted that “laws favoring some speakers over others demand strict scrutiny when the legislature’s speaker preference reflects a content preference,” Turner, 512 U. S., at 658. Thus, a law limiting the content of newspapers, but only newspapers, could not evade strict scrutiny simply because it could be characterized as speaker based. Likewise, a content-based law that restricted the political speech of all corporations would not become content neutral just because it singled out corporations as a class of speakers. See Citizens United, supra , at 340–341. Characterizing a distinction as speaker based is only the beginning—not the end—of the inquiry. Nor do the Sign Code’s distinctions hinge on “whether and when an event is occurring.” The Code does not permit citizens to post signs on any topic whatsoever within a set period leading up to an election, for example. Instead, come election time, it requires Town officials to determine whether a sign is “designed to influence the outcome of an election” (and thus “political”) or merely “communicating a message or ideas for noncommercial purposes” (and thus “ideological”). Glossary 24. That obvious content-based inquiry does not evade strict scrutiny review simply because an event ( i.e., an election) is involved. And, just as with speaker-based laws, the fact that a distinction is event based does not render it content neutral. The Court of Appeals cited no precedent from this Court supporting its novel theory of an exception from the content-neutrality requirement for event-based laws. As we have explained, a speech regulation is content based if the law applies to particular speech because of the topic discussed or the idea or message expressed. Supra, at 6. A regulation that targets a sign because it conveys an idea about a specific event is no less content based than a regulation that targets a sign because it conveys some other idea. Here, the Code singles out signs bearing a particular message: the time and location of a specific event. This type of ordinance may seem like a perfectly rational way to regulate signs, but a clear and firm rule governing content neutrality is an essential means of protecting the freedom of speech, even if laws that might seem “entirely reasonable” will sometimes be “struck down because of their content-based nature.” City of Ladue v. Gilleo , 512 U. S. 43, 60 (1994) (O’Connor, J., concurring). III Because the Town’s Sign Code imposes content-based restrictions on speech, those provisions can stand only if they survive strict scrutiny, “ ‘which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest,’ ” Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett , 564 U. S. ___, ___ (2011) (slip op., at 8) (quoting Citizens United , 558 U. S. , at 340). Thus, it is the Town’s burden to demonstrate that the Code’s differentiation between temporary directional signs and other types of signs, such as political signs and ideological signs, furthers a compelling governmental interest and is narrowly tailored to that end. See ibid . The Town cannot do so. It has offered only two governmental interests in support of the distinctions the Sign Code draws: preserving the Town’s aesthetic appeal and traffic safety. Assuming for the sake of argument that those are compelling governmental interests, the Code’s distinctions fail as hopelessly underinclusive. Starting with the preservation of aesthetics, temporary directional signs are “no greater an eyesore,” Discovery Network , 507 U. S. , at 425, than ideological or political ones. Yet the Code allows unlimited proliferation of larger ideological signs while strictly limiting the number, size, and duration of smaller directional ones. The Town cannot claim that placing strict limits on temporary directional signs is necessary to beautify the Town while at the same time allowing unlimited numbers of other types of signs that create the same problem. The Town similarly has not shown that limiting temporary directional signs is necessary to eliminate threats to traffic safety, but that limiting other types of signs is not. The Town has offered no reason to believe that directional signs pose a greater threat to safety than do ideological or political signs. If anything, a sharply worded ideological sign seems more likely to distract a driver than a sign directing the public to a nearby church meeting. In light of this underinclusiveness, the Town has not met its burden to prove that its Sign Code is narrowly tailored to further a compelling government interest. Because a “ ‘law cannot be regarded as protecting an interest of the highest order, and thus as justifying a restriction on truthful speech, when it leaves appreciable damage to that supposedly vital interest unprohibited,’ ” Republican Party of Minn. v. White , 536 U. S. 765, 780 (2002) , the Sign Code fails strict scrutiny. IV Our decision today will not prevent governments from enacting effective sign laws. The Town asserts that an “ ‘absolutist’ ” content-neutrality rule would render “virtually all distinctions in sign laws . . . subject to strict scrutiny,” Brief for Respondents 34–35, but that is not the case. Not “all distinctions” are subject to strict scrutiny, only content-based ones are. Laws that are content neutral are instead subject to lesser scrutiny. See Clark , 468 U. S., at 295. The Town has ample content-neutral options available to resolve problems with safety and aesthetics. For example, its current Code regulates many aspects of signs that have nothing to do with a sign’s message: size, building materials, lighting, moving parts, and portability. See, e.g., §4.402(R). And on public property, the Town may go a long way toward entirely forbidding the posting of signs, so long as it does so in an evenhanded, content-neutral manner. See Taxpayers for Vincent , 466 U. S., at 817 (upholding content-neutral ban against posting signs on public property). Indeed, some lower courts have long held that similar content-based sign laws receive strict scrutiny, but there is no evidence that towns in those jurisdictions have suffered catastrophic effects. See, e.g., Solantic, LLC v. Neptune Beach , 410 F. 3d 1250, 1264–1269 (CA11 2005) (sign categories similar to the town of Gilbert’s were content based and subject to strict scru-tiny); Matthews v. Needham , 764 F. 2d 58, 59–60 (CA1 1985) (law banning political signs but not commercial signs was content based and subject to strict scrutiny). We acknowledge that a city might reasonably view the general regulation of signs as necessary because signs “take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation.” City of Ladue , 512 U. S., at 48. At the same time, the presence of certain signs may be essential, both for vehicles and pedestrians, to guide traffic or to identify hazards and ensure safety. A sign ordinance narrowly tailored to the challenges of protecting the safety of pedestrians, drivers, and passengers—such as warning signs marking hazards on private property, signs directing traffic, or street numbers associated with private houses—well might survive strict scrutiny. The signs at issue in this case, including political and ideological signs and signs for events, are far removed from those purposes. As discussed above, they are facially content based and are neither justified by traditional safety concerns nor narrowly tailored. *  *  * We reverse the judgment of the Court of Appeals and remand the case for proceedings consistent with this opinion. It is so ordered. Notes 1 The Town’s Sign Code is available online at http://www.gilbertaz.gov/departments / development - service / planning - development / land -development-code (as visited June 16, 2015, and available in Clerk of Court’s case file). 2 A “Temporary Sign” is a “sign not permanently attached to the ground, a wall or a building, and not designed or intended for permanent display.” Glossary 25. 3 The Code defines “Right-of-Way” as a “strip of publicly owned land occupied by or planned for a street, utilities, landscaping, sidewalks, trails, and similar facilities.” Id., at 18. 4 The Sign Code has been amended twice during the pendency of this case. When litigation began in 2007, the Code defined the signs at issue as “Religious Assembly Temporary Direction Signs.” App. 75. The Code entirely prohibited placement of those signs in the public right-of-way, and it forbade posting them in any location for more than two hours before the religious assembly or more than one hour afterward. Id., at 75–76. In 2008, the Town redefined the category as “Temporary Directional Signs Related to a Qualifying Event,” and it expanded the time limit to 12 hours before and 1 hour after the “qualifying event.” Ibid. In 2011, the Town amended the Code to authorize placement of temporary directional signs in the public right-of-way. Id., at 89. SUPREME COURT OF THE UNITED STATES _________________ No. 13–502 _________________ CLYDE REED, et al., PETITIONERS v. TOWN OF GILBERT, ARIZONA, et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 18, 2015] Justice Alito, with whom Justice Kennedy and Justice Sotomayor join, concurring. I join the opinion of the Court but add a few words of further explanation. As the Court holds, what we have termed “content-based” laws must satisfy strict scrutiny. Content-based laws merit this protection because they present, albeit sometimes in a subtler form, the same dangers as laws that regulate speech based on viewpoint. Limiting speech based on its “topic” or “subject” favors those who do not want to disturb the status quo. Such regulations may interfere with democratic self-government and the search for truth. See Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y. , 447 U. S. 530, 537 (1980) . As the Court shows, the regulations at issue in this case are replete with content-based distinctions, and as a result they must satisfy strict scrutiny. This does not mean, however, that municipalities are powerless to enact and enforce reasonable sign regulations. I will not attempt to provide anything like a comprehensive list, but here are some rules that would not be content based: Rules regulating the size of signs. These rules may distinguish among signs based on any content-neutral criteria, including any relevant criteria listed below. Rules regulating the locations in which signs may be placed. These rules may distinguish between free-standing signs and those attached to buildings. Rules distinguishing between lighted and unlighted signs. Rules distinguishing between signs with fixed messages and electronic signs with messages that change. Rules that distinguish between the placement of signs on private and public property. Rules distinguishing between the placement of signs on commercial and residential property. Rules distinguishing between on-premises and off-premises signs. Rules restricting the total number of signs allowed per mile of roadway. Rules imposing time restrictions on signs advertising a one-time event. Rules of this nature do not discriminate based on topic or subject and are akin to rules restricting the times within which oral speech or music is allowed.[ 1 ]* In addition to regulating signs put up by private actors, government entities may also erect their own signs consistent with the principles that allow governmental speech. See Pleasant Grove City v. Summum , 555 U. S. 460 –469 (2009). They may put up all manner of signs to promote safety, as well as directional signs and signs pointing out historic sites and scenic spots. Properly understood, today’s decision will not prevent cities from regulating signs in a way that fully protects public safety and serves legitimate esthetic objectives. Notes 1 * Of course, content-neutral restrictions on speech are not necessarily consistent with the First Amendment. Time, place, and manner restrictions “must be narrowly tailored to serve the government’s legitimate, content-neutral interests.” Ward v. Rock Against Racism , 491 U. S. 781, 798 (1989) . But they need not meet the high standard imposed on viewpoint- and content-based restrictions. SUPREME COURT OF THE UNITED STATES _________________ No. 13–502 _________________ CLYDE REED, et al., PETITIONERS v. TOWN OF GILBERT, ARIZONA, et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 18, 2015] Justice Breyer, concurring in the judgment. I join Justice Kagan’s separate opinion. Like Justice Kagan I believe that categories alone cannot satisfactorily resolve the legal problem before us. The First Amendment requires greater judicial sensitivity both to the Amendment’s expressive objectives and to the public’s legitimate need for regulation than a simple recitation of categories, such as “content discrimination” and “strict scrutiny,” would permit. In my view, the category “content discrimination” is better considered in many contexts, including here, as a rule of thumb, rather than as an automatic “strict scrutiny” trigger, leading to almost certain legal condemnation. To use content discrimination to trigger strict scrutiny sometimes makes perfect sense. There are cases in which the Court has found content discrimination an unconstitutional method for suppressing a viewpoint. E.g., Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U. S. 819 –829 (1995); see also Boos v. Barry , 485 U. S. 312 –319 (1988) (plurality opinion) (applying strict scrutiny where the line between subject matter and viewpoint was not obvious). And there are cases where the Court has found content discrimination to reveal that rules governing a traditional public forum are, in fact, not a neutral way of fairly managing the forum in the interest of all speakers. Police Dept. of Chicago v. Mosley , 408 U. S. 92, 96 (1972) (“Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say”). In these types of cases, strict scru-tiny is often appropriate, and content discrimination has thus served a useful purpose. But content discrimination, while helping courts to identify unconstitutional suppression of expression, cannot and should not always trigger strict scrutiny. To say that it is not an automatic “strict scrutiny” trigger is not to argue against that concept’s use. I readily concede, for example, that content discrimination, as a conceptual tool, can sometimes reveal weaknesses in the government’s rationale for a rule that limits speech. If, for example, a city looks to litter prevention as the rationale for a prohibition against placing newsracks dispensing free advertisements on public property, why does it exempt other newsracks causing similar litter? Cf. Cincinnati v. Discovery Network, Inc. , 507 U. S. 410 (1993) . I also concede that, whenever government disfavors one kind of speech, it places that speech at a disadvantage, potentially interfering with the free marketplace of ideas and with an individual’s ability to express thoughts and ideas that can help that individual determine the kind of society in which he wishes to live, help shape that society, and help define his place within it. Nonetheless, in these latter instances to use the presence of content discrimination automatically to trigger strict scrutiny and thereby call into play a strong presumption against constitutionality goes too far. That is because virtually all government activities involve speech, many of which involve the regulation of speech. Regula-tory programs almost always require content discrimination. And to hold that such content discrimination triggers strict scrutiny is to write a recipe for judicial management of ordinary government regulatory activity. Consider a few examples of speech regulated by government that inevitably involve content discrimination, but where a strong presumption against constitutionality has no place. Consider governmental regulation of securities, e.g., 15 U. S. C. §78 l (requirements for content that must be included in a registration statement); of energy conservation labeling-practices, e.g., 42 U. S. C. §6294 (requirements for content that must be included on labels of certain consumer electronics); of prescription drugs, e.g., 21 U. S. C. §353(b)(4)(A) (requiring a prescription drug label to bear the symbol “Rx only”); of doctor-patient confidentiality, e.g., 38 U. S. C. §7332 (requiring confidentiality of certain medical records, but allowing a physician to disclose that the patient has HIV to the patient’s spouse or sexual partner); of income tax statements, e.g., 26 U. S. C. §6039F (requiring taxpayers to furnish information about foreign gifts received if the aggregate amount exceeds $10,000); of commercial airplane briefings, e.g., 14 CFR §136.7 (2015) (requiring pilots to ensure that each passenger has been briefed on flight procedures, such as seatbelt fastening); of signs at petting zoos, e.g., N. Y. Gen. Bus. Law Ann. §399–ff(3) (West Cum. Supp. 2015) (requiring petting zoos to post a sign at every exit “ ‘strongly recommend[ing] that persons wash their hands upon exiting the petting zoo area’ ”); and so on. Nor can the majority avoid the application of strict scrutiny to all sorts of justifiable governmental regulations by relying on this Court’s many subcategories and exceptions to the rule. The Court has said, for example, that we should apply less strict standards to “commercial speech.” Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of N.  Y. , 447 U. S. 557 –563 (1980). ButI have great concern that many justifiable instancesof “content-based” regulation are noncommercial. And, worse than that, the Court has applied the heightened “strict scrutiny” standard even in cases where the less stringent “commercial speech” standard was appropriate. See Sorrell v. IMS Health Inc. , 564 U. S. ___, ___ (2011) (Breyer, J., dissenting) (slip op., at ___ ) . The Court has also said that “government speech” escapes First Amendment strictures. See Rust v. Sullivan , 500 U. S. 173 –194 (1991). But regulated speech is typically private speech, not government speech. Further, the Court has said that, “[w]hen the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists.” R. A. V. v. St. Paul , 505 U. S. 377, 388 (1992) . But this exception accounts for only a few of the instances in which content discrimination is readily justifiable. I recognize that the Court could escape the problem by watering down the force of the presumption against constitutionality that “strict scrutiny” normally carries with it. But, in my view, doing so will weaken the First Amendment’s protection in instances where “strict scru-tiny” should apply in full force. The better approach is to generally treat content discrimination as a strong reason weighing against the constitutionality of a rule where a traditional public forum, or where viewpoint discrimination, is threatened, but elsewhere treat it as a rule of thumb, finding it a helpful, but not determinative legal tool, in an appropriate case, to determine the strength of a justification. I would use content discrimination as a supplement to a more basic analysis, which, tracking most of our First Amendment cases, asks whether the regulation at issue works harm to First Amendment interests that is disproportionate in light of the relevant regulatory objectives. Answering this question requires examining the seriousness of the harm to speech, the importance of the countervailing objectives, the extent to which the law will achieve those objectives, and whether there are other, less restrictive ways of doing so. See, e.g., United States v. Alvarez , 567 U. S. ___, ___–___ (2012) (Breyer, J., concurring in judgment) (slip op., at 1–3); Nixon v. Shrink Missouri Government PAC , 528 U. S. 377 –403 (2000) (Breyer, J., concurring). Admittedly, this approach does not have the simplicity of a mechanical use of categories. But it does permit the government to regulate speech in numerous instances where the voters have authorized the government to regulate and where courts should hesitate to substitute judicial judgment for that of administrators. Here, regulation of signage along the roadside, for purposes of safety and beautification is at issue. There is no traditional public forum nor do I find any general effort to censor a particular viewpoint. Consequently, the specific regulation at issue does not warrant “strict scrutiny.” Nonetheless, for the reasons that Justice Kagan sets forth, I believe that the Town of Gilbert’s regulatory rules violate the First Amendment. I consequently concur in the Court’s judgment only. SUPREME COURT OF THE UNITED STATES _________________ No. 13–502 _________________ CLYDE REED, et al., PETITIONERS v. TOWN OF GILBERT, ARIZONA, et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 18, 2015] Justice Kagan, with whom Justice Ginsburg and Justice Breyer join, concurring in the judgment. Countless cities and towns across America have adopted ordinances regulating the posting of signs, while exempting certain categories of signs based on their subject matter. For example, some municipalities generally prohibit illuminated signs in residential neighborhoods, but lift that ban for signs that identify the address of a home or the name of its owner or occupant. See, e.g. , City of Truth or Consequences, N. M., Code of Ordinances, ch. 16, Art. XIII, §§11–13–2.3, 11–13–2.9(H)(4) (2014). In other municipalities, safety signs such as “Blind Pedestrian Crossing” and “Hidden Driveway” can be posted without a permit, even as other permanent signs require one. See, e.g. , Code of Athens-Clarke County, Ga., Pt. III, §7–4–7(1) (1993). Elsewhere, historic site markers—for example, “George Washington Slept Here”—are also exempt from general regulations. See, e.g. , Dover, Del., Code of Ordinances, Pt. II, App. B, Art. 5, §4.5(F) (2012). And simi-larly, the federal Highway Beautification Act limits signs along interstate highways unless, for instance, they direct travelers to “scenic and historical attractions” or advertise free coffee. See 23 U. S. C. §§131(b), (c)(1), (c)(5). Given the Court’s analysis, many sign ordinances of that kind are now in jeopardy. See ante , at 14 (acknowledging that “entirely reasonable” sign laws “will sometimes be struck down” under its approach (internal quotation marks omitted)). Says the majority: When laws “single[ ] out specific subject matter,” they are “facially content based”; and when they are facially content based, they are automatically subject to strict scrutiny. Ante , at 12, 16–17. And although the majority holds out hope that some sign laws with subject-matter exemptions “might survive” that stringent review, ante , at 17, the likelihood is that most will be struck down. After all, it is the “rare case[ ] in which a speech restriction withstands strict scrutiny.” Williams-Yulee v. Florida Bar , 575 U. S. ___, ___ (2015) (slip op., at 9). To clear that high bar, the government must show that a content-based distinction “is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.” Arkansas Writers’ Project, Inc. v. Ragland , 481 U. S. 221, 231 (1987) . So on the majority’s view, courts would have to determine that a town has a compelling interest in informing passersby where George Washington slept. And likewise, courts would have to find that a town has no other way to prevent hidden-driveway mishaps than by specially treating hidden-driveway signs. (Well-placed speed bumps? Lower speed limits? Or how about just a ban on hidden driveways?) The consequence—unless courts water down strict scrutiny to something unrecognizable—is that our communities will find themselves in an unenviable bind: They will have to either repeal the exemptions that allow for helpful signs on streets and sidewalks, or else lift their sign restrictions altogether and resign themselves to the resulting clutter.[ 1 ]* Although the majority insists that applying strict scrutiny to all such ordinances is “essential” to protecting First Amendment freedoms, ante , at 14, I find it challenging to understand why that is so. This Court’s decisions articulate two important and related reasons for subjecting content-based speech regulations to the most exacting standard of review. The first is “to preserve an uninhib-ited marketplace of ideas in which truth will ultimately prevail.” McCullen v. Coakley , 573 U. S. ___, ___–___ (2014) (slip op., at 8–9) (internal quotation marks omitted). The second is to ensure that the government has not regulated speech “based on hostility—or favoritism—towards the underlying message expressed.” R. A. V. v. St. Paul , 505 U. S. 377, 386 (1992) . Yet the subject-matter exemptions included in many sign ordinances do not implicate those concerns. Allowing residents, say, to install a light bulb over “name and address” signs but no others does not distort the marketplace of ideas. Nor does that different treatment give rise to an inference of impermissible government motive. We apply strict scrutiny to facially content-based regulations of speech, in keeping with the rationales just described, when there is any “realistic possibility that official suppression of ideas is afoot.” Davenport v. Washington Ed. Assn. , 551 U. S. 177, 189 (2007) (quoting R. A. V. , 505 U. S., at 390). That is always the case when the regulation facially differentiates on the basis of viewpoint. See Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U. S. 819, 829 (1995) . It is also the case (except in non-public or limited public forums) when a law restricts “discussion of an entire topic” in public debate. Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y. , 447 U. S. 530 –540 (1980) (invalidating a limitation on speech about nuclear power). We have stated that “[i]f the marketplace of ideas is to remain free and open, governments must not be allowed to choose ‘which issues are worth discussing or debating.’ ” Id. , at 537–538 (quoting Police Dept. of Chicago v. Mosley , 408 U. S. 92, 96 (1972) ). And we have recognized that such subject-matter restrictions, even though viewpoint-neutral on their face, may “suggest[ ] an attempt to give one side of a debatable public question an advantage in expressing its views to the people.” First Nat. Bank of Boston v. Bellotti , 435 U. S. 765, 785 (1978) ; accord, ante , at 1 (Alito, J., concurring) (limiting all speech on one topic “favors those who do not want to disturb the status quo”). Subject-matter regulation, in other words, may have the intent or effect of favoring some ideas over others. When that is realistically possible—when the restriction “raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace”—we insist that the law pass the most demanding constitutional test. R. A. V. , 505 U. S., at 387 (quoting Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd. , 502 U. S. 105, 116 (1991) ). But when that is not realistically possible, we may do well to relax our guard so that “entirely reasonable” laws imperiled by strict scrutiny can survive. Ante , at 14. This point is by no means new. Our concern with content-based regulation arises from the fear that the government will skew the public’s debate of ideas—so when “that risk is inconsequential, . . . strict scrutiny is unwarranted.” Davenport , 551 U. S., at 188; see R. A. V. , 505 U. S., at 388 (approving certain content-based distinctions when there is “no significant danger of idea or viewpoint discrimination”). To do its intended work, of course, the category of content-based regulation triggering strict scrutiny must sweep more broadly than the actual harm; that category exists to create a buffer zone guaranteeing that the government cannot favor or disfavor certain viewpoints. But that buffer zone need not extend forever. We can administer our content-regulation doctrine with a dose of common sense, so as to leave standing laws that in no way implicate its intended function. And indeed we have done just that: Our cases have been far less rigid than the majority admits in applying strict scrutiny to facially content-based laws—including in cases just like this one. See Davenport , 551 U. S., at 188 (noting that “we have identified numerous situations in which [the] risk” attached to content-based laws is “attenuated”). In Members of City Council of Los Angeles v. Taxpayers for Vincent , 466 U. S. 789 (1984) , the Court declined to apply strict scrutiny to a municipal ordinance that exempted address numbers and markers commemorating “historical, cultural, or artistic event[s]” from a generally applicable limit on sidewalk signs. Id. , at 792, n. 1 (listing exemptions); see id. , at 804–810 (upholding ordinance under intermediate scrutiny). After all, we explained, the law’s enactment and enforcement revealed “not even a hint of bias or censorship.” Id. , at 804; see also Renton v. Playtime Theatres, Inc. , 475 U. S. 41, 48 (1986) (applying intermediate scrutiny to a zoning law that facially distinguished among movie theaters based on content because it was “designed to prevent crime, protect the city’s retail trade, [and] maintain property values . . . , not to suppress the expression of unpopular views”). And another decision involving a similar law provides an alternative model. In City of Ladue v. Gilleo , 512 U. S. 43 (1994) , the Court assumed arguendo that a sign ordinance’s exceptions for address signs, safety signs, and for-sale signs in residential areas did not trigger strict scrutiny. See id. , at 46–47, and n. 6 (listing exemptions); id. , at 53 (noting this assumption). We did not need to, and so did not, decide the level-of-scrutiny question because the law’s breadth made it unconstitutional under any standard. The majority could easily have taken Ladue ’s tack here. The Town of Gilbert’s defense of its sign ordinance—most notably, the law’s distinctions between directional signs and others—does not pass strict scrutiny, or intermediate scrutiny, or even the laugh test. See ante , at 14–15 (discussing those distinctions). The Town, for example, provides no reason at all for prohibiting more than four directional signs on a property while placing no limits on the number of other types of signs. See Gilbert, Ariz., Land Development Code, ch. I, §§4.402(J), (P)(2) (2014). Similarly, the Town offers no coherent justification for restricting the size of directional signs to 6 square feet while allowing other signs to reach 20 square feet. See §§4.402(J), (P)(1). The best the Town could come up with at oral argument was that directional signs “need to be smaller because they need to guide travelers along a route.” Tr. of Oral Arg. 40. Why exactly a smaller sign better helps travelers get to where they are going is left a mystery. The absence of any sensible basis for these and other distinctions dooms the Town’s ordinance under even the intermediate scrutiny that the Court typically applies to “time, place, or manner” speech regulations. Accordingly, there is no need to decide in this case whether strict scrutiny applies to every sign ordinance in every town across this country containing a subject-matter exemption. I suspect this Court and others will regret the majority’s insistence today on answering that question in the affirmative. As the years go by, courts will discover that thousands of towns have such ordinances, many of them “entirely reasonable.” Ante , at 14. And as the challenges to them mount, courts will have to invalidate one after the other. (This Court may soon find itself a veritable Supreme Board of Sign Review.) And courts will strike down those democratically enacted local laws even though no one—certainly not the majority—has ever explained why the vindication of First Amendment values requires that result. Because I see no reason why such an easy case calls for us to cast a constitutional pall on reasonable regulations quite unlike the law before us, I concur only in the judgment. Notes 1 * Even in trying (commendably) to limit today’s decision, Justice Alito’s concurrence highlights its far-reaching effects. According to Justice Alito, the majority does not subject to strict scrutiny regulations of “signs advertising a one-time event.” Ante , at 2 (Alito, J., concurring). But of course it does. On the majority’s view, a law with an exception for such signs “singles out specific subject matter for differential treatment” and “defin[es] regulated speech by particular subject matter.” Ante , at 6, 12 (majority opinion). Indeed, the precise reason the majority applies strict scrutiny here is that “the Code singles out signs bearing a particular message: the time and location of a specific event.” Ante , at 14.

The Supreme Court ruled that the town of Gilbert, Arizona's sign code, which imposed more restrictions on "Temporary Directional Signs Relating to a Qualifying Event" than on other types of signs, was a content-based regulation of speech that could not withstand strict scrutiny. The Court held that the code's distinctions between different types of signs based on the messages they conveyed were subject to strict scrutiny and that the town's defense of the ordinance did not pass strict scrutiny or even intermediate scrutiny. The Court found that the town's sign code violated the First Amendment by unfairly restricting certain types of speech over others.

Equal Protection

San Antonio Independent School District v. Rodriguez

https://supreme.justia.com/cases/federal/us/411/1/

U.S. Supreme Court San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) San Antonio Independent School District v. Rodriguez No. 71-1332 Argued October 12, 1972 Decided March 21, 1973 411 U.S. 1 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS Syllabus The financing of public elementary and secondary schools in Texas is a product of state and local participation. Almost half of the revenues are derived from a largely state-funded program designed to provide a basic minimum educational offering in every school. Each district supplements state aid through an ad valorem tax on property within its jurisdiction. Appellees brought this class action on behalf of school children said to be members of poor families who reside in school districts having a low property tax base, making the claim that the Texas system's reliance on local property taxation favors the more affluent and violates equal protection requirements because of substantial inter-district disparities in per-pupil expenditures resulting primarily from differences in the value of assessable property among the districts. The District Court, finding that wealth is a "suspect" classification and that education is a "fundamental" right, concluded that the system could be upheld only upon a showing, which appellants failed to make, that there was a compelling state interest for the system. The court also concluded that appellants failed even to Page 412 U. S. 2 demonstrate a reasonable or rational basis for the State's system. Held: 1. This is not a proper case in which to examine a State's laws under standards of strict judicial scrutiny, since that test is reserved for cases involving laws that operate to the disadvantage of suspect classes or interfere with the exercise of fundamental rights and liberties explicitly or implicitly protected by the Constitution. Pp. 411 U. S. 18 -44. (a) The Texas system does not disadvantage any suspect class. It has not been shown to discriminate against any definable class of "poor" people or to occasion discriminations depending on the relative wealth of the families in any district. And, insofar as the financing system disadvantages those who, disregarding their individual income characteristics, reside in comparatively poor school districts, the resulting class cannot be said to be suspect. Pp. 411 U. S. 18 -28. (b) Nor does the Texas school financing system impermissibly interfere with the exercise of a "fundamental" right or liberty. Though education is one of the most important services performed by the State, it is not within the limited category of rights recognized by this Court as guaranteed by the Constitution. Even if some identifiable quantum of education is arguably entitled to constitutional protection to make meaningful the exercise of other constitutional rights, here there is no showing that the Texas system fails to provide the basic minimal skills necessary for that purpose. Pp. 411 U. S. 29 -39. (c) Moreover, this is an inappropriate case in which to invoke strict scrutiny, since it involves the most delicate and difficult questions of local taxation, fiscal planning, educational policy, and federalism, considerations counseling a more restrained form of review. Pp. 411 U. S. 40 -44. 2. The Texas system does not violate the Equal Protection Clause of the Fourteenth Amendment. Though concededly imperfect, the system bears a rational relationship to a legitimate state purpose. While assuring a basic education for every child in the State, it permits and encourages participation in and significant control of each district's schools at the local level. Pp. 411 U. S. 44 -53. 337 F. Supp. 280 , reversed. POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, and REHNQUIST, JJ., joined. Page 411 U. S. 3 STEWART, J., filed a concurring opinion, post, p. 411 U. S. 59 . BRENNAN, J., filed a dissenting opinion, post, p. 411 U. S. 62 . WHITE, J., filed a dissenting opinion, in which DOUGLAS and BRENNAN, JJ., joined, post, p. 411 U. S. 63 . MARSHALL, J., filed a dissenting opinion, in which DOUGLAS, J., joined, post, p. 411 U. S. 70 . Page 411 U. S. 4 MR. JUSTICE POWELL delivered the opinion of the Court. This suit attacking the Texas system of financing public education was initiated by Mexican-American parents whose children attend the elementary and secondary Page 411 U. S. 5 schools in the Edgewood Independent School District, an urban school district in San Antonio, Texas. [ Footnote 1 ] They brought a class action on behalf of school children throughout the State who are members of minority groups or who are poor and reside in school districts having a low property tax base. Named as defendants [ Footnote 2 ] were the State Board of Education, the Commissioner of Education, the State Attorney General, and the Bexar County (San Antonio) Board of Trustees. The complaint Page 411 U. S. 6 was filed in the summer of 1968, and a three-judge court was impaneled in January, 1969. [ Footnote 3 ] In December, 1971, [ Footnote 4 ] the panel rendered its judgment in a per curiam opinion holding the Texas school finance system unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. [ Footnote 5 ] The State appealed, and we noted probable jurisdiction to consider the far-reaching constitutional questions presented. 406 U.S. 966 (1972). For the reasons stated in this opinion, we reverse the decision of the District Court. I The first Texas State Constitution, promulgated upon Texas' entry into the Union in 1845, provided for the establishment of a system of free schools. [ Footnote 6 ] Early in its history, Texas adopted a dual approach to the financing of its schools, relying on mutual participation by the local school districts and the State. As early as 1883, the state Page 411 U. S. 7 constitution was amended to provide for the creation of local school districts empowered to levy ad valorem taxes with the consent of local taxpayers for the "erection . . . of school buildings" and for the "further maintenance of public free schools." [ Footnote 7 ] Such local funds as were raised were supplemented by funds distributed to each district from the State's Permanent and Available School Funds. [ Footnote 8 ] The Permanent School Fund, its predecessor established in 1854 with $2,000,000 realized from an annexation settlement, [ Footnote 9 ] was thereafter endowed with millions of acres of public land set aside to assure a continued source of income for school support. [ Footnote 10 ] The Available School Fund, which received income from the Permanent School Fund as well as from a state ad valorem property tax and other designated taxes, [ Footnote 11 ] served as the disbursing arm for most state educational funds throughout the late 1800's and first half of this century. Additionally, in 1918, an increase in state property taxes was used to finance a program providing free textbooks throughout the State. [ Footnote 12 ] Until recent times, Texas was a predominantly rural State, and its population and property wealth were spread Page 411 U. S. 8 relatively evenly across the State. [ Footnote 13 ] Sizable differences in the value of assessable property between local school districts became increasingly evident as the State became more industrialized and as rural-to-urban population shifts became more pronounced. [ Footnote 14 ] The location of commercial and industrial property began to play a significant role in determining the amount of tax resources available to each school district. These growing disparities in population and taxable property between districts were responsible in part for increasingly notable differences in levels of local expenditure for education. [ Footnote 15 ] In due time, it became apparent to those concerned with financing public education that contributions from the Available School Fund were not sufficient to ameliorate these disparities. [ Footnote 16 ] Prior to 1939, the Available School Fund contributed money to every school district at a rate of $17.50 per school-age child. [ Footnote 17 ] Although the amount was increased several times in the early 1940's, [ Footnote 18 ] Page 411 U. S. 9 the Fund was providing only $46 per student by 1945. [ Footnote 19 ] Recognizing the need for increased state funding to help offset disparities in local spending and to meet Texas' changing educational requirements, the state legislature, in the late 1940's, undertook a thorough evaluation of public education with an eye toward major reform. In 1947, an 18-member committee, composed of educators and legislators, was appointed to explore alternative systems in other States and to propose a funding scheme that would guarantee a minimum or basic educational offering to each child and that would help overcome inter-district disparities in taxable resources. The Committee's efforts led to the passage of the Gilmer-Aikin bills, named for the Committee's co-chairmen, establishing the Texas Minimum Foundation School Program. [ Footnote 20 ] Today, this Program accounts for approximately half of the total educational expenditures in Texas. [ Footnote 21 ] The Program calls for state and local contributions to a fund earmarked specifically for teacher salaries, operating expenses, and transportation costs. The State, supplying funds from its general revenues, finances approximately 80% of the Program, and the school districts are responsible -- as a unit -- for providing the remaining 20%. The districts' share, known as the Local Fund Assignment, is apportioned among the school districts Page 411 U. S. 10 under a formula designed to reflect each district's relative taxpaying ability. The Assignment is first divided among Texas' 254 counties pursuant to a complicated economic index that takes into account the relative value of each county's contribution to the State's total income from manufacturing, mining, and agricultural activities. It also considers each county's relative share of all payrolls paid within the State and, to a lesser extent, considers each county's share of all property in the State. [ Footnote 22 ] Each county's assignment is then divided among its school districts on the basis of each district's share of assessable property within the county. [ Footnote 23 ] The district, in turn, finances its share of the Assignment out of revenues from local property taxation. The design of this complex system was twofold. First, it was an attempt to assure that the Foundation Program would have an equalizing influence on expenditure levels between school districts by placing the heaviest burden on the school districts most capable of paying. Second, the Program's architects sought to establish a Local Fund Assignment that would force every school district to contribute to the education of its children, [ Footnote 24 ] but that would not, by itself, exhaust any district's resources. [ Footnote 25 ] Today every school district does impose a property tax from which it derives locally expendable Page 411 U. S. 11 funds in excess of the amount necessary to satisfy its Local Fund Assignment under the Foundation Program. In the years since this program went into operation in 1949, expenditures for education -- from state as well as local sources -- have increased steadily. Between 1949 and 1967, expenditures increased approximately 500%. [ Footnote 26 ] In the last decade alone, the total public school budget rose from $750 million to $2.1 billion, [ Footnote 27 ] and these increases have been reflected in consistently rising per-pupil expenditures throughout the State. [ Footnote 28 ] Teacher salaries, by far the largest item in any school's budget, have increased dramatically -- the state supported minimum salary for teachers possessing college degrees has risen from $2,400 to $6,000 over the last 20 years. [ Footnote 29 ] The school district in which appellees reside, the Edgewood Independent School District, has been compared throughout this litigation with the Alamo Heights Independent School District. This comparison between the least and most affluent districts in the San Antonio area serves to illustrate the manner in which the dual system of finance operates, and to indicate the extent to which substantial disparities exist despite the State's impressive progress in recent years. Edgewood is one of seven public school districts in the metropolitan area. Approximately 22,000 students are enrolled in its 25 elementary Page 411 U. S. 12 and secondary schools. The district is situated in the core-city sector of San Antonio in a residential neighborhood that has little commercial or industrial property. The residents are predominantly of Mexican-American descent: approximately 90% of the student population is Mexican-American and over 6% is Negro. The average assessed property value per pupil is $5,960 -- the lowest in the metropolitan area -- and the median family income ($4,686) is also the lowest. [ Footnote 30 ] At an equalized tax rate of $1.05 per $100 of assessed property -- the highest in the metropolitan area -- the district contributed $26 to the education of each child for the 1967-1968 school year above its Local Fund Assignment for the Minimum Foundation Program. The Foundation Program contributed $222 per pupil for a state-local total of $248. [ Footnote 31 ] Federal funds added another $108, for a total of $356 per pupil. [ Footnote 32 ] Alamo Heights is the most affluent school district in San Antonio. Its six schools, housing approximately 5,000 students, are situated in a residential community quite unlike the Edgewood District. The school population is predominantly "Anglo," having only 18% Mexican-Americans Page 411 U. S. 13 and less than 1% Negroes. The assessed property value per pupil exceeds $49,000, [ Footnote 33 ] and the median family income is $8,001. In 1967-1968 the local tax rate of $.85 per $100 of valuation yielded $333 per pupil over and above its contribution to the Foundation Program. Coupled with the $225 provided from that Program, the district was able to supply $558 per student. Supplemented by a $36 per-pupil grant from federal sources, Alamo Heights spent $594 per pupil. Although the 1967-1968 school year figures provide the only complete statistical breakdown for each category of aid, [ Footnote 34 ] more recent partial statistics indicate that the previously noted trend of increasing state aid has been significant. For the 1970-1971 school year, the Foundation School Program allotment for Edgewood was $356 per pupil, a 62% increase over the 1967-1968 school year. Indeed, state aid alone in 1970-1971 equaled Edgewood's entire 1967-1968 school budget from local, state, and federal sources. Alamo Heights enjoyed a similar increase under the Foundation Program, netting $491 per pupil in 1970-1971. [ Footnote 35 ] These recent figures Page 411 U. S. 14 also reveal the extent to which these two districts' allotments were funded from their own required contributions to the Local Fund Assignment. Alamo Heights, because of its relative wealth, was required to contribute out of its local property tax collections approximately $100 per pupil, or about 20% of its Foundation grant. Edgewood, on the other hand, paid only $8.46 per pupil, which is about 2.4% of its grant. [ Footnote 36 ] It appears then that, at least as to these two districts, the Local Fund Assignment does reflect a rough approximation of the relative taxpaying potential of each. [ Footnote 37 ] Page 411 U. S. 15 Despite these recent increases, substantial inter-district disparities in school expenditures found by the District Court to prevail in San Antonio and in varying degrees throughout the State [ Footnote 38 ] still exist. And it was Page 411 U. S. 16 these disparities, largely attributable to differences in the amounts of money collected through local property taxation, that led the District Court to conclude that Texas' dual system of public school financing violated the Equal Protection Clause. The District Court held that the Texas system discriminates on the basis of wealth in the manner in which education is provided for its people. 337 F. Supp. at 282. Finding that wealth is a "suspect" classification, and that education is a "fundamental" interest, the District Court held that the Texas system could be sustained only if the State could show that it was premised upon some compelling ate interest. Id. at 282-284. On this issue the court concluded that "[n]ot only are defendants unable to demonstrate compelling state interests . . . they fail even to establish a reasonable basis for these classifications." Id. at 284. Texas virtually concedes that its historically rooted dual system of financing education could not withstand the strict judicial scrutiny that this Court has found appropriate in reviewing legislative judgments that interfere with fundamental constitutional rights [ Footnote 39 ] or that involve suspect classifications. [ Footnote 40 ] If, as previous decisions have indicated, strict scrutiny means that the State's system is not entitled to the usual presumption of validity, that the State, rather than the complainants, must carry a "heavy burden of justification," that the State must Page 411 U. S. 17 demonstrate that its educational system has been structured with "precision," and is "tailored" narrowly to serve legitimate objectives, and that it has selected the "less drastic means" for effectuating its objectives, [ Footnote 41 ] the Texas financing system and its counterpart in virtually every other State will not pass muster. The State candidly admits that "[n]o one familiar with the Texas system would contend that it has yet achieved perfection." [ Footnote 42 ] Apart from its concession that educational financing in Texas has "defects" [ Footnote 43 ] and "imperfections," [ Footnote 44 ] the State defends the system's rationality with vigor, and disputes the District Court's finding that it lacks a "reasonable basis." This, then, establishes the framework for our analysis. We must decide, first, whether the Texas system of financing public education operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny. If so, the judgment of the District Court should be affirmed. If not, the Texas scheme must still be examined to determine whether it rationally furthers some legitimate, articulated state purpose, and therefore does not constitute an invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. II The District Court's opinion does not reflect the novelty and complexity of the constitutional questions posed by appellees' challenge to Texas' system of school financing. In concluding that strict judicial scrutiny was required, Page 411 U. S. 18 that court relied on decisions dealing with the rights of indigents to equal treatment in the criminal trial and appellate processes, [ Footnote 45 ] and on cases disapproving wealth restrictions on the right to vote. [ Footnote 46 ] Those cases, the District Court concluded, established wealth as a suspect classification. Finding that the local property tax system discriminated on the basis of wealth, it regarded those precedents as controlling. It then reasoned, based on decisions of this Court affirming the undeniable importance of education, [ Footnote 47 ] that there is a fundamental right to education, and that, absent some compelling state justification, the Texas system could not stand. We are unable to agree that this case, which in significant aspects is sui generis, may be so neatly fitted into the conventional mosaic of constitutional analysis under the Equal Protection Clause. Indeed, for the several reasons that follow, we find neither the suspect classification nor the fundamental interest analysis persuasive. A The wealth discrimination discovered by the District Court in this case, and by several other courts that have recently struck down school financing laws in other States, [ Footnote 48 ] is quite unlike any of the forms of wealth discrimination Page 411 U. S. 19 heretofore reviewed by this Court. Rather than focusing on the unique features of the alleged discrimination, the courts in these cases have virtually assumed their findings of a suspect classification through a simplistic process of analysis: since, under the traditional systems of financing public schools, some poorer people receive less expensive educations than other more affluent people, these systems discriminate on the basis of wealth. This approach largely ignores the hard threshold questions, including whether it makes a difference, for purposes of consideration under the Constitution, that the class of disadvantaged "poor" cannot be identified or defined in customary equal protection terms, and whether the relative -- rather than absolute -- nature of the asserted deprivation is of significant consequence. Before a State's laws and the justifications for the classifications they create are subjected to strict judicial scrutiny, we think these threshold considerations must be analyzed more closely than they were in the court below. The case comes to us with no definitive description of the classifying facts or delineation of the disfavored class. Examination of the District Court's opinion and of appellees' complaint, briefs, and contentions at oral argument suggests, however, at least three ways in which the discrimination claimed here might be described. The Texas system of school financing might be regarded as discriminating (1) against "poor" persons whose incomes fall below some identifiable level of poverty or who might be characterized as functionally "indigent," [ Footnote 49 ] or Page 411 U. S. 20 (2) against those who are relatively poorer than others [ Footnote 50 ] or (3) against all those who, irrespective of their personal incomes, happen to reside in relatively poorer school districts. [ Footnote 51 ] Our task must be to ascertain whether, in fact, the Texas system has been shown to discriminate on any of these possible bases and, if so, whether the resulting classification may be regarded as suspect. The precedents of this Court provide the proper starting point. The individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity, they were completely unable to pay for some desired benefit, and, as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit. In Griffin v. Illinois , Page 411 U. S. 21 351 U. S. 12 (1956), and its progeny, [ Footnote 52 ] the Court invalidated state laws that prevented an indigent criminal defendant from acquiring a transcript, or an adequate substitute for a transcript, for use at several stages of the trial and appeal process. The payment requirements in each case were found to occasion de facto discrimination against those who, because of their indigency, were totally unable to pay for transcripts. And the Court in each case emphasized that no constitutional violation would have been shown if the State had provided some "adequate substitute" for a full stenographic transcript. Britt v. North Carolina, 404 U. S. 226 , 404 U. S. 228 (1971); Gardner v. California, 393 U. S. 367 (1969); Draper v. Washington, 372 U. S. 487 (1963); Eskridge v. Washington Prison Board, 357 U. S. 214 (1958). Likewise, in Douglas v. California, 372 U. S. 353 (1963), a decision establishing an indigent defendant's right to court-appointed counsel on direct appeal, the Court dealt only with defendants who could not pay for counsel from their own resources and who had no other way of gaining representation. Douglas provides no relief for those on whom the burdens of paying for a criminal defense are, relatively speaking, great but not insurmountable. Nor does it deal with relative differences in the quality of counsel acquired by the less wealthy. Williams v. Illinois, 399 U. S. 235 (1970), and Tate v. Short, 401 U. S. 395 (1971), struck down criminal penalties that subjected indigents to incarceration simply because Page 411 U. S. 22 of their inability to pay a fine. Again, the disadvantaged class was composed only of persons who were totally unable to pay the demanded sum. Those cases do not touch on the question whether equal protection is denied to persons with relatively less money on whom designated fines impose heavier burdens. The Court has not held that fines must be structured to reflect each person's ability to pay in order to avoid disproportionate burdens. Sentencing judges may, and often do, consider the defendant's ability to pay, but, in such circumstances, they are guided by sound judicial discretion, rather than by constitutional mandate. Finally, in Bullock v. Carter, 405 U. S. 134 (1972), the Court invalidated the Texas filing fee requirement for primary elections. Both of the relevant classifying facts found in the previous cases were present there. The size of the fee, often running into the thousands of dollars and, in at least one case, as high as $8,900, effectively barred all potential candidates who were unable to pay the required fee. As the system provided "no reasonable alternative means of access to the ballot" ( id. at 405 U. S. 149 ), inability to pay occasioned an absolute denial of a position on the primary ballot. Only appellees' first possible basis for describing the class disadvantaged by the Texas school financing system -- discrimination against a class of definably "poor" persons -- might arguably meet the criteria established in these prior cases. Even a cursory examination, however, demonstrates that neither of the two distinguishing characteristics of wealth classifications can be found here. First, in support of their charge that the system discriminates against the "poor," appellees have made no effort to demonstrate that it operates to the peculiar disadvantage of any class fairly definable as indigent, or as composed of persons whose incomes are beneath any Page 411 U. S. 23 designated poverty level. Indeed, there is reason to believe that the poorest families are not necessarily clustered in the poorest property districts. A recent and exhaustive study of school districts in Connecticut concluded that "[i]t is clearly incorrect . . . to contend that the 'poor' live in 'poor' districts. . . . Thus, the major factual assumption of Serrano -- that the educational financing system discriminates against the 'poor' -- is simply false in Connecticut. [ Footnote 53 ]" Defining "poor" families as those below the Bureau of the Census "poverty level," [ Footnote 54 ] the Connecticut study found, not surprisingly, that the poor were clustered around commercial and industrial areas -- those same areas that provide the most attractive sources of property tax income for school districts. [ Footnote 55 ] Whether a similar pattern would be discovered in Texas is not known, but there is no basis on the record in this case for assuming that the poorest people -- defined by reference to any level of absolute impecunity -- are concentrated in the poorest districts. Second, neither appellees nor the District Court addressed the fact that, unlike each of the foregoing cases, lack of personal resources has not occasioned an absolute deprivation of the desired benefit. The argument here is not that the children in districts having relatively low assessable property values are receiving no public education; rather, it is that they are receiving a poorer quality education than that available to children in districts having more assessable wealth. Apart from the unsettled and disputed question whether the quality of education may be determined by the amount of money Page 411 U. S. 24 expended for it, [ Footnote 56 ] a sufficient answer to appellees' argument is that, at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages. [ Footnote 57 ] Nor, indeed, in view of the infinite variables affecting the educational process, can any system assure equal quality of education except in the most relative sense. Texas asserts that the Minimum Foundation Program provides an "adequate" education for all children in the State. By providing 12 years of free public school education, and by assuring teachers, books, transportation, and operating funds, the Texas Legislature has endeavored to "guarantee, for the welfare of the state as a whole, that all people shall have at least an adequate program of education. This is what is meant by 'A Minimum Foundation Program of Education.' [ Footnote 58 ]" The State repeatedly asserted in its briefs in this Court that it has fulfilled this desire, and that it now assures "every child in every school district an adequate education." [ Footnote 59 ] No proof was offered at trial persuasively discrediting or refuting the State's assertion. Page 411 U. S. 25 For these two reasons -- the absence of any evidence that the financing system discriminates against any definable category of "poor" people or that it results in the absolute deprivation of education -- the disadvantaged class is not susceptible of identification in traditional terms. [ Footnote 60 ] As suggested above, appellees and the District Court may have embraced a second or third approach, the second of which might be characterized as a theory of relative or comparative discrimination based on family income. Appellees sought to prove that a direct correlation exists between the wealth of families within each district and the expenditures therein for education. That is, along a continuum, the poorer the family, the lower the dollar amount of education received by the family's children. The principal evidence adduced in support of this comparative discrimination claim is an affidavit submitted by Professor Joel S. Berke of Syracuse University's Educational Finance Policy Institute. The District Court, relying in major part upon this affidavit and apparently accepting the substance of appellees' theory, Page 411 U. S. 26 noted, first, a positive correlation between the wealth of school districts, measured in terms of assessable property per pupil, and their levels of per-pupil expenditures. Second, the court found a similar correlation between district wealth and the personal wealth of its residents, measured in terms of median family income. 337 F. Supp. at 282 n. 3. If, in fact, these correlations could be sustained, then it might be argued that expenditures on education -- equated by appellees to the quality of education -- are dependent on personal wealth. Appellees' comparative discrimination theory would still face serious unanswered questions, including whether a bare positive correlation or some higher degree of correlation [ Footnote 61 ] is necessary to provide a basis for concluding that the financing system is designed to operate to the peculiar disadvantage of the comparatively poor, [ Footnote 62 ] and whether a class of this size and diversity could ever claim the special protection accorded "suspect" classes. These questions need not be addressed in this case, however, since appellees' proof fails to support their allegations or the District Court's conclusions. Professor Berke's affidavit is based on a survey of approximately 10% of the school districts in Texas. His findings, previously set out in the margin, [ Footnote 63 ] show only Page 411 U. S. 27 that the wealthiest few districts in the sample have the highest median family incomes and spend the most on education, and that the several poorest districts have the lowest family incomes and devote the least amount of money to education. For the remainder of the districts -- 96 districts composing almost 90% of the sample -- the correlation is inverted, i.e., the districts that spend next to the most money on education are populated by families having next to the lowest median family incomes, while the districts spending the least have the highest median family incomes. It is evident that, even if the conceptual questions were answered favorably to appellees, no factual basis exists upon which to found a claim of comparative wealth discrimination. [ Footnote 64 ] This brings us, then, to the third way in which the classification scheme might be defined -- district wealth discrimination. Since the only correlation indicated by the evidence is between district property wealth and expenditures, it may be argued that discrimination might be found without regard to the individual income characteristics of district residents. Assuming a perfect correlation between district property wealth and expenditures from top to bottom, the disadvantaged class might be Page 411 U. S. 28 viewed as encompassing every child in every district except the district that has the most assessable wealth and spends the most on education. [ Footnote 65 ] Alternatively, as suggested in MR. JUSTICE MARSHALL's dissenting opinion, post at 411 U. S. 96 , the class might be defined more restrictively to include children in districts with assessable property which falls below the state-wide average, or median, or below some other artificially defined level. However described, it is clear that appellees' suit asks this Court to extend its most exacting scrutiny to review a system that allegedly discriminates against a large, diverse, and amorphous class, unified only by the common factor of residence in districts that happen to have less taxable wealth than other districts. [ Footnote 66 ] The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. We thus conclude that the Texas system does not operate to the peculiar disadvantage of any suspect class. Page 411 U. S. 29 But in recognition of the fact that this Court has never heretofore held that wealth discrimination alone provides an adequate basis for invoking strict scrutiny, appellees have not relied solely on this contention. [ Footnote 67 ] They also assert that the State's system impermissibly interferes with the exercise of a "fundamental" right, and that, accordingly, the prior decisions of this Court require the application of the strict standard of judicial review. Graham v. Richardson, 403 U. S. 365 , 403 U. S. 375 -376 (1971); Kramer v. Union School District, 395 U. S. 621 (1969); Shapiro v. Thompson, 394 U. S. 618 (1969). It is this question -- whether education is a fundamental right, in the sense that it is among the rights and liberties protected by the Constitution -- which has so consumed the attention of courts and commentators in recent years. [ Footnote 68 ] B In Brown v. Board of Education, 347 U. S. 483 (1954), a unanimous Court recognized that "education is perhaps the most important function of state and local governments." Id. at 347 U. S. 493 . What was said there in the context of racial discrimination has lost none of its vitality with the passage of time: "Compulsory school attendance laws and the great expenditures for education both demonstrate our Page 411 U. S. 30 recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms." Ibid. This theme, expressing an abiding respect for the vital role of education in a free society, may be found in numerous opinions of Justices of this Court writing both before and after Brown was decided. Wisconsin v. Yoder, 406 U. S. 205 , 406 U. S. 213 (BURGER, C.J.), 406 U. S. 237 , 406 U. S. 238 -239 (WHITE, J.), (1972); Abington School Dist. v. Schempp, 374 U. S. 203 , 374 U. S. 230 (1963) (BRENNAN, J.); McCollum v. Board of Education, 333 U. S. 203 212 (1948) (Frankfurter, J.); Pierce v. Society of Sisters, 268 U. S. 510 (1925); Meyer v. Nebraska, 262 U. S. 390 (1923); Interstate Consolidated Street R. Co. v. Massachusetts, 207 U. S. 79 (1907). Nothing this Court holds today in any way detracts from our historic dedication to public education. We are in complete agreement with the conclusion of the three-judge panel below that "the grave significance of education both to the individual and to our society" cannot be doubted. [ Footnote 69 ] But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause. Mr. Justice Page 411 U. S. 31 Harlan, dissenting from the Court's application of strict scrutiny to a law impinging upon the right of interstate travel, admonished that "[v]irtually every state statute affects important rights." Shapiro v. Thompson, 394 U.S. at 394 U. S. 655 , 394 U. S. 661 . In his view, if the degree of judicial scrutiny of state legislation fluctuated, depending on a majority's view of the importance of the interest affected, we would have gone "far toward making this Court a super-legislature.'" Ibid. We would, indeed, then be assuming a legislative role, and one for which the Court lacks both authority and competence. But MR. JUSTICE STEWART s response in Shapiro to Mr. Justice Harlan's concern correctly articulates the limits of the fundamental rights rationale employed in the Court's equal protection decisions: "The Court today does not "pick out particular human activities, characterize them as fundamental,' and give them added protection. . . ." To the contrary, the Court simply recognizes, as it must, an established constitutional right, and gives to that right no less protection than the Constitution itself demands." Id. at 394 U. S. 642 . (Emphasis in original.) MR. JUSTICE STEWART's statement serves to underline what the opinion of the Court in Shapiro makes clear. In subjecting to strict judicial scrutiny state welfare eligibility statutes that imposed a one-year durational residency requirement as a precondition to receiving AFDC benefits, the Court explained: "[I]n moving from State to State . . . appellees were exercising a constitutional right, and any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional." Id. at 394 U. S. 634 . (Emphasis in original.) Page 411 U. S. 32 The right to interstate travel had long been recognized as a right of constitutional significance, [ Footnote 70 ] and the Court's decision, therefore, did not require an ad hoc determination as to the social or economic importance of that right. [ Footnote 71 ] Lindsey v. Normet, 405 U. S. 56 (1972), decided only last Term, firmly reiterates that social importance is not the critical determinant for subjecting state legislation to strict scrutiny. The complainants in that case, involving a challenge to the procedural limitations imposed on tenants in suits brought by landlords under Oregon's Forcible Entry and Wrongful Detainer Law, urged the Court to examine the operation of the statute under "a more stringent standard than mere rationality." Id. at 405 U. S. 73 . The tenants argued that the statutory limitations implicated "fundamental interests which are particularly important to the poor," such as the " need for decent shelter'" and the "`right to retain peaceful possession of one's home." Ibid. MR. JUSTICE WHITE's analysis, in his opinion for the Court, is instructive: "We do not denigrate the importance of decent, safe, and sanitary housing. But the Constitution does not provide judicial remedies for every social and economic ill. We are unable to perceive in that document any constitutional guarantee of access Page 411 U. S. 33 to dwellings of a particular quality or any recognition of the right of a tenant to occupy the real property of his landlord beyond the term of his lease, without the payment of rent. . . . Absent constitutional mandate, the assurance of adequate housing and the definition of landlord-tenant relationships are legislative, not judicial, functions." Id. at 74. (Emphasis supplied.) Similarly, in Dandridge v. Williams, 397 U. S. 471 (1970), the Court's explicit recognition of the fact that the "administration of public welfare assistance . . . involves the most basic economic needs of impoverished human beings," id. at 397 U. S. 485 , [ Footnote 72 ] provided no basis for departing from the settled mode of constitutional analysis of legislative classifications involving questions of economic and social policy. As in the case of housing, the central importance of welfare benefits to the poor was not an adequate foundation for requiring the State to justify its law by showing some compelling state interest. See also Jefferson v. Hackney, 406 U. S. 535 (1972); Richardson v. Belcher, 404 U. S. 78 (1971). The lesson of these cases in addressing the question now before the Court is plain. It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. Thus, the key to discovering whether education is "fundamental" is not to be found in comparisons of the relative societal significance of education, as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution. Page 411 U. S. 34 Eisenstadt v. Baird, 405 U. S. 438 (1972); [ Footnote 73 ] Dunn v. Blumstein, 405 U. S. 330 (1972); [ Footnote 74 ] Police Dept. of Chicago v. Mosley, 408 U. S. 92 (197); [ Footnote 75 ] Skinner v. Oklahoma, 316 U. S. 535 (1942). [ Footnote 76 ] Page 411 U. S. 35 Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected. As we have said, the undisputed importance of education will not, alone, cause this Court to depart from the usual standard for reviewing a State's social and economic legislation. It is appellees' contention, however, that education is distinguishable from other services and benefits provided by the State, because it bears a peculiarly close relationship to other rights and liberties accorded protection under the Constitution. Specifically, they insist that education is itself a fundamental personal right, because it is essential to the effective exercise of First Amendment freedoms and to intelligent utilization of the right to vote. In asserting a nexus between speech and education, appellees urge that the right to speak is meaningless unless the speaker is capable of articulating his thoughts intelligently and persuasively. The "marketplace of ideas" is an empty forum for those lacking basic communicative tools. Likewise, they argue that the corollary right to receive information [ Footnote 77 ] becomes little more than a hollow privilege when the recipient has not been taught to read, assimilate, and utilize available knowledge. A similar line of reasoning is pursued with respect to the right to vote. [ Footnote 78 ] Exercise of the franchise, it is contended, cannot be divorced from the educational foundation Page 411 U. S. 36 of the voter. The electoral process, if reality is to conform to the democratic ideal, depends on an informed electorate: a voter cannot cast his ballot intelligently unless his reading skills and thought processes have been adequately developed. We need not dispute any of these propositions. The Court has long afforded zealous protection against unjustifiable governmental interference with the individual's rights to speak and to vote. Yet we have never presumed to possess either the ability or the authority to guarantee to the citizenry the most effective speech or the most informed electoral choice. That these may be desirable goals of a system of freedom of expression and of a representative form of government is not to be doubted. [ Footnote 79 ] These are indeed goals to be pursued by a people whose thoughts and beliefs are freed from governmental interference. But they are not values to be implemented by judicial intrusion into otherwise legitimate state activities. Even if it were conceded that some identifiable quantum of education is a constitutionally protected prerequisite to the meaningful exercise of either right, we have no indication that the present levels of educational expenditures Page 411 U. S. 37 in Texas provide an education that falls short. Whatever merit appellees' argument might have if a State's financing system occasioned an absolute denial of educational opportunities to any of its children, that argument provides no basis for finding an interference with fundamental rights where only relative differences in spending levels are involved and where -- as is true in the present case -- no charge fairly could be made that the system fails to provide each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process. Furthermore, the logical limitations on appellees' nexus theory are difficult to perceive. How, for instance, is education to be distinguished from the significant personal interests in the basics of decent food and shelter? Empirical examination might well buttress an assumption that the ill-fed, ill-clothed, and ill-housed are among the most ineffective participants in the political process, and that they derive the least enjoyment from the benefits of the First Amendment. [ Footnote 80 ] If so, appellees' thesis would cast serious doubt on the authority of Dandridge v. Williams, supra, and Lindsey v. Normet, supra. We have carefully considered each of the arguments supportive of the District Court's finding that education is a fundamental right or liberty, and have found those arguments unpersuasive. In one further respect, we find this a particularly inappropriate case in which to subject state action to strict judicial scrutiny. The present case, in another basic sense, is significantly different from any of the cases in which the Court has Page 411 U. S. 38 applied strict scrutiny to state or federal legislation touching upon constitutionally protected rights. Each of our prior cases involved legislation which "deprived," "infringed," or "interfered" with the free exercise of some such fundamental personal right or liberty. See Skinner v. Oklahoma, supra, at 316 U. S. 536 ; Shapiro v. Thompson, supra at 394 U. S. 634 ; Dunn v. Blumstein, supra, at 405 U. S. 338 -343. A critical distinction between those cases and the one now before us lies in what Texas is endeavoring to do with respect to education. MR. JUSTICE BRENNAN, writing for the Court in Katzenbach v. Morgan, 384 U. S. 641 (1966), expresses well the salient point: [ Footnote 81 ] "This is not a complaint that Congress . . . has unconstitutionally denied or diluted anyone's right to vote, but rather that Congress violated the Constitution by not extending the relief effected [to others similarly situated]. . . ." "[The federal law in question] does not restrict or deny the franchise, but, in effect, extends the franchise to persons who otherwise would be denied it by state law. . . . We need only decide whether the challenged limitation on the relief effected . . . was permissible. In deciding that question, the principle that calls for the closest scrutiny of distinctions in laws denying fundamental rights . . . is Page 411 U. S. 39 inapplicable; for the distinction challenged by appellees is presented only as a limitation on a reform measure aimed at eliminating an existing barrier to the exercise of the franchise. Rather, in deciding the constitutional propriety of the limitations in such a reform measure we are guided by the familiar principles that a 'statute is not invalid under the Constitution because it might have gone farther than it did,' . . . that a legislature need not 'strike at all evils at the same time,' . . . and that 'reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. . . .'" Id. at 384 U. S. 656 -657. (Emphasis in original.) The Texas system of school financing is not unlike the federal legislation involved in Katzenbach in this regard. Every step leading to the establishment of the system Texas utilizes today -- including the decisions permitting localities to tax and expend locally, and creating and continuously expanding state aid -- was implemented in an effort to extend public education and to improve its quality. [ Footnote 82 ] Of course, every reform that benefits some more than others may be criticized for what it fails to accomplish. But we think it plain that, in substance, the thrust of the Texas system is affirmative and reformatory, and, therefore, should be scrutinized under judicial principles sensitive to the nature of the State's efforts and to the rights reserved to the States under the Constitution. [ Footnote 83 ] Page 411 U. S. 40 C It should be clear, for the reasons stated above and in accord with the prior decisions of this Court, that this is not a case in which the challenged state action must be subjected to the searching judicial scrutiny reserved for laws that create suspect classifications or impinge upon constitutionally protected rights. We need not rest our decision, however, solely on the inappropriateness of the strict scrutiny test. A century of Supreme Court adjudication under the Equal Protection Clause affirmatively supports the application of the traditional standard of review, which requires only that the State's system be shown to bear some rational relationship to legitimate state purposes. This case represents far more than a challenge to the manner in which Texas provides for the education of its children. We have here nothing less than a direct attack on the way in which Texas has chosen to raise and disburse state and local tax revenues. We are asked to condemn the State's judgment in conferring on political subdivisions the power to tax local property to supply revenues for local interests. In so doing, appellees would have the Court intrude in an area in which it has traditionally deferred to state legislatures. [ Footnote 84 ] This Court has often admonished against such interferences with the State's fiscal policies under the Equal Protection Clause: "The broad discretion as to classification possessed by a legislature in the field of taxation has long been recognized. . . . [T]he passage of time has only served to underscore the wisdom of that recognition of the large area of discretion which is needed by a legislature in formulating sound tax policies. . . . Page 411 U. S. 41 It has . . . been pointed out that in taxation, even more than in other fields, legislatures possess the greatest freedom in classification. Since the members of a legislature necessarily enjoy a familiarity with local conditions which this Court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes. . . ." Madden v. Kentucky, 309 U. S. 83 , 309 U. S. 87 -88 (1940). See also Lehnhausen v. Lake Shore Auto Parts Co., 410 U. S. 356 (1973); Wisconsin v. J. C. Penney Co., 311 U. S. 435 , 311 U. S. 445 (1940). Thus, we stand on familiar ground when we continue to acknowledge that the Justices of this Court lack both the expertise and the familiarity with local problems so necessary to the making of wise decisions with respect to the raising and disposition of public revenues. Yet we are urged to direct the States either to alter drastically the present system or to throw out the property tax altogether in favor of some other form of taxation. No scheme of taxation, whether the tax is imposed on property, income, or purchases of goods and services, has yet been devised which is free of all discriminatory impact. In such a complex arena in which no perfect alternatives exist, the Court does well not to impose too rigorous a standard of scrutiny lest all local fiscal schemes become subjects of criticism under the Equal Protection Clause. [ Footnote 85 ] Page 411 U. S. 42 In addition to matters of fiscal policy, this case also involves the most persistent and difficult questions of educational policy, another area in which this Court's lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at the state and local levels. Education, perhaps even more than welfare assistance, presents a myriad of "intractable economic, social, and even philosophical problems." Dandridge v. Williams, 397 U.S. at 397 U. S. 487 . The very complexity of the problems of financing and managing a state-wide public school system suggests that "there will be more than one constitutionally permissible method of solving them," and that, within the limits of rationality, "the legislature's efforts to tackle the problems" should be entitled to respect. Jefferson v. Hackney, 406 U.S. at 406 U. S. 546 -547. On even the most basic questions in this area, the scholars and educational experts are divided. Indeed, one of the major Page 411 U. S. 43 sources of controversy concerns the extent to which there is a demonstrable correlation between educational expenditures and the quality of education [ Footnote 86 ] -- an assumed correlation underlying virtually every legal conclusion drawn by the District Court in this case. Related to the questioned relationship between cost and quality is the equally unsettled controversy as to the proper goals of a system of public education. [ Footnote 87 ] And the question regarding the most effective relationship between state boards of education and local school boards, in terms of their respective responsibilities and degrees of control, is now undergoing searching reexamination. The ultimate wisdom as to these and related problems of education is not likely to be divined for all time even by the scholars who now so earnestly debate the issues. In such circumstances, the judiciary is well advised to refrain from imposing on the States inflexible constitutional restraints that could circumscribe or handicap the continued research and experimentation so vital to finding even partial solutions to educational problems and to keeping abreast of ever-changing conditions. Page 411 U. S. 44 It must be remembered, also, that every claim arising under the Equal Protection Clause has implications for the relationship between national and state power under our federal system. Questions of federalism are always inherent in the process of determining whether a State's laws are to be accorded the traditional presumption of constitutionality, or are to be subjected instead to rigorous judicial scrutiny. While "[t]he maintenance of the principles of federalism is a foremost consideration in interpreting any of the pertinent constitutional provisions under which this Court examines state action, [ Footnote 88 ]" it would be difficult to imagine a case having a greater potential impact on our federal system than the one now before us, in which we are urged to abrogate systems of financing public education presently in existence in virtually every State. The foregoing considerations buttress our conclusion that Texas' system of public school finance is an inappropriate candidate for strict judicial scrutiny. These same considerations are relevant to the determination whether that system, with its conceded imperfections, nevertheless bears some rational relationship to a legitimate state purpose. It is to this question that we next turn our attention. III The basic contours of the Texas school finance system have been traced at the outset of this opinion. We will now describe in more detail that system and how it operates, as these facts bear directly upon the demands of the Equal Protection Clause. Apart from federal assistance, each Texas school receives its funds from the State and from its local school Page 411 U. S. 45 district. On a state-wide average, a roughly comparable amount of funds is derived from each source. [ Footnote 89 ] The State's contribution, under the Minimum Foundation Program, was designed to provide an adequate minimum educational offering in every school in the State. Funds are distributed to assure that there will be one teacher -- compensated at the state supported minimum salary -- for every 25 students. [ Footnote 90 ] Each school district's other supportive personnel are provided for: one principal for every 30 teachers; [ Footnote 91 ] one "special service" teacher -- librarian, nurse, doctor, etc. -- for every 20 teachers; [ Footnote 92 ] superintendents, vocational instructors, counselors, and educators for exceptional children are also provided. [ Footnote 93 ] Additional funds are earmarked for current operating expenses, for student transportation, [ Footnote 94 ] and for free textbooks. [ Footnote 95 ] The program is administered by the State Board of Education and by the Central Education Agency, which also have responsibility for school accreditation [ Footnote 96 ] and for monitoring the statutory teacher-qualification standards. [ Footnote 97 ] As reflected by the 62 increase in funds allotted to the Edgewood School District over the last three years, [ Footnote 98 ] the State's financial contribution to education is steadily increasing. None of Texas' school districts, however, Page 411 U. S. 46 has been content to rely alone on funds from the Foundation Program. By virtue of the obligation to fulfill its Local Fund Assignment, every district must impose an ad valorem tax on property located within its borders. The Fund Assignment was designed to remain sufficiently low to assure that each district would have some ability to provide a more enriched educational program. [ Footnote 99 ] Every district supplements its Foundation grant in this manner. In some districts, the local property tax contribution is insubstantial, as in Edgewood, where the supplement was only $26 per pupil in 1967. In other districts, the local share may far exceed even the total Foundation grant. In part, local differences are attributable to differences in the rates of taxation or in the degree to which the market value for any category of property varies from its assessed value. [ Footnote 100 ] The greatest inter-district disparities, however, are attributable to differences in the amount of assessable property available within any district. Those districts that have more property, or more valuable property, have a greater capability for supplementing state funds. In large measure, these additional local revenues are devoted to paying higher salaries to more teachers. Therefore, the primary distinguishing attributes of schools in property-affluent districts are lower pupil-teacher ratios and higher salary schedules. [ Footnote 101 ] Page 411 U. S. 47 This, then, is the basic outline of the Texas school financing structure. Because of differences in expenditure levels occasioned by disparities in property tax income, appellees claim that children in less affluent districts have been made the subject of invidious discrimination. The District Court found that the State had failed even "to establish a reasonable basis" for a system that results in different levels of per-pupil expenditure. 337 F. Supp. at 284. We disagree. In its reliance on state, as well as local, resources, the Texas system is comparable to the systems employed Page 411 U. S. 48 in virtually every other State. [ Footnote 102 ] The power to tax local property for educational purposes has been recognized in Texas at least since 1883. [ Footnote 103 ] When the growth of commercial and industrial centers and accompanying shifts in population began to create disparities in local resources, Texas undertook a program calling for a considerable investment of state funds. The "foundation grant" theory upon which Texas legislators and educators based the Gilmer-Aikin bills was a product of the pioneering work of two New York educational reformers in the 1920's, George D. Strayer and Robert M. Haig. [ Footnote 104 ] Their efforts were devoted to establishing a means of guaranteeing a minimum state-wide educational program without sacrificing the vital element of local participation. The Strayer-Haig thesis Page 411 U. S. 49 represented an accommodation between these two competing forces. As articulated by Professor Coleman: "The history of education since the industrial revolution shows a continual struggle between two forces: the desire by members of society to have educational opportunity for all children and the desire of each family to provide the best education it can afford for its own children. [ Footnote 105 ]" The Texas system of school finance is responsive to these two forces. While assuring a basic education for every child in the State, it permits and encourages a large measure of participation in and control of each district's schools at the local level. In an era that has witnessed a consistent trend toward centralization of the functions of government, local sharing of responsibility for public education has survived. The merit of local control was recognized last Term in both the majority and dissenting opinions in Wright v. Council of the City of Emporia, 407 U. S. 451 (1972). MR. JUSTICE STEWART stated there that "[d]irect control over decisions vitally affecting the education of one's children is a need that is strongly felt in our society." Id. at 407 U. S. 469 . THE CHIEF JUSTICE, in his dissent, agreed that "[l]ocal control is not only vital to continued public support of the schools, but it is of overriding importance from an educational standpoint as well." Id. at 407 U. S. 478 . The persistence of attachment to government at the lowest level where education is concerned reflects the depth of commitment of its supporters. In part, local control means, as Professor Coleman suggests, the freedom to devote more money to the education of one's children. Equally important, however, is the opportunity Page 411 U. S. 50 it offers for participation in the decisionmaking process that determines how those local tax dollars will be spent. Each locality is free to tailor local programs to local needs. Pluralism also affords some opportunity for experimentation, innovation, and a healthy competition for educational excellence. An analogy to the Nation-State relationship in our federal system seems uniquely appropriate. Mr. Justice Brandeis identified as one of the peculiar strengths of our form of government each State's freedom to "serve as a laboratory; and try novel social and economic experiments." [ Footnote 106 ] No area of social concern stands to profit more from a multiplicity of viewpoints and from a diversity of approaches than does public education. Appellees do not question the propriety of Texas' dedication to local control of education. To the contrary, they attack the school financing system precisely because, in their view, it does not provide the same level of local control and fiscal flexibility in all districts. Appellees suggest that local control could be preserved and promoted under other financing systems that resulted in more equality in educational expenditures. While it is no doubt true that reliance on local property taxation for school revenues provides less freedom of choice with respect to expenditures for some districts than for others, [ Footnote 107 ] Page 411 U. S. 51 the existence of "some inequality" in the manner in which the State's rationale is achieved is not alone a sufficient basis for striking down the entire system. McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 425 -426 (1961). It may not be condemned simply because it imperfectly effectuates the State's goals. Dandridge v. Williams, 397 U.S. at 397 U. S. 485 . Nor must the financing system fail because, as appellees suggest, other methods of satisfying the State's interest, which occasion "less drastic" disparities in expenditures, might be conceived. Only where state action impinges on the exercise of fundamental constitutional rights or liberties must it be found to have chosen the least restrictive alternative. Cf. Dunn v. Blumstein, 405 U.S. at 405 U. S. 343 ; Shelton v. Tucker, 364 U. S. 479 , 364 U. S. 488 (1960). It is also well to remember that even those districts that have reduced ability to make free decisions with respect to how much they spend on education still retain, under the present system, a large measure of authority as to how available funds will be allocated. They further enjoy the power to make numerous other decisions with respect to the operation of the schools. [ Footnote 108 ] The people of Texas may be Page 411 U. S. 52 justified in believing that other systems of school financing, which place more of the financial responsibility in the hands of the State, will result in a comparable lessening of desired local autonomy. That is, they may believe Page 411 U. S. 53 that along with increased control of the purse strings at the state level will go increased control over local policies. [ Footnote 109 ] Appellees further urge that the Texas system is unconstitutionally arbitrary because it allows the availability of local taxable resources to turn on "happenstance." They see no justification for a system that allows, as they contend, the quality of education to fluctuate on the basis of the fortuitous positioning of the boundary lines of political subdivisions and the location of valuable commercial and industrial property. But any scheme of Page 411 U. S. 54 local taxation -- indeed the very existence of identifiable local governmental units -- requires the establishment of jurisdictional boundaries that are inevitably arbitrary. It is equally inevitable that some localities are going to be blessed with more taxable assets than others. [ Footnote 110 ] Nor is local wealth a static quantity. Changes in the level of taxable wealth within any district may result from any number of events, some of which local residents can and do influence. For instance, commercial and industrial enterprises may be encouraged to locate within a district by various actions -- public and private. Moreover, if local taxation for local expenditures were an unconstitutional method of providing for education, then it might be an equally impermissible means of providing other necessary services customarily financed largely from local property taxes, including local police and fire protection, public health and hospitals, and public utility facilities of various kinds. We perceive no justification for such a severe denigration of local property taxation and control as would follow from appellees' contentions. It has simply never been within the constitutional prerogative of this Court to nullify state-wide measures for financing public services merely because the burdens or benefits thereof fall unevenly depending upon the relative wealth of the political subdivisions in which citizens live. In sum, to the extent that the Texas system of school financing results in unequal expenditures between children Page 411 U. S. 55 who happen to reside in different districts, we cannot say that such disparities are the product of a system that is so irrational as to be invidiously discriminatory. Texas has acknowledged its shortcomings, and has persistently endeavored -- not without some success -- to ameliorate the differences in levels of expenditures without sacrificing the benefits of local participation. The Texas plan is not the result of hurried, ill-conceived legislation. It certainly is not the product of purposeful discrimination against any group or class. On the contrary, it is rooted in decades of experience in Texas and elsewhere, and, in major part, is the product of responsible studies by qualified people. In giving substance to the presumption of validity to which the Texas system is entitled, Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 , 220 U. S. 78 (1911), it is important to remember that, at every stage of its development, it has constituted a "rough accommodation" of interests in an effort to arrive at practical and workable solutions. Metropolis Theatre Co. v. City of Chicago, 228 U. S. 61 , 228 U. S. 69 -70 (1913). One also must remember that the system here challenged is not peculiar to Texas or to any other State. In its essential characteristics, the Texas plan for financing public education reflects what many educators for a half century have thought was an enlightened approach to a problem for which there is no perfect solution. We are unwilling to assume for ourselves a level of wisdom superior to that of legislators, scholars, and educational authorities in 50 States, especially where the alternatives proposed are only recently conceived and nowhere yet tested. The constitutional standard under the Equal Protection Clause is whether the challenged state action rationally furthers a legitimate state purpose or interest. McGinnis v. Royster, 410 U. S. 263 , 410 U. S. 270 (1973). We hold that the Texas plan abundantly satisfies this standard. Page 411 U. S. 56 IV In light of the considerable attention that has focused on the District Court opinion in this case and on its California predecessor, Serrano v. Priest, 5 Cal. 3d 584 , 487 P.2d 1241 (1971), a cautionary postscript seems appropriate. It cannot be questioned that the constitutional judgment reached by the District Court and approved by our dissenting Brothers today would occasion in Texas and elsewhere an unprecedented upheaval in public education. Some commentators have concluded that, whatever the contours of the alternative financing programs that might be devised and approved, the result could not avoid being a beneficial one. But, just as there is nothing simple about the constitutional issues involved in these cases, there is nothing simple or certain about predicting the consequences of massive change in the financing and control of public education. Those who have devoted the most thoughtful attention to the practical ramifications of these cases have found no clear or dependable answers, and their scholarship reflects no such unqualified confidence in the desirability of completely uprooting the existing system. The complexity of these problems is demonstrated by the lack of consensus with respect to whether it may be said with any assurance that the poor, the racial minorities, or the children in overburdened core-city school districts would be benefited by abrogation of traditional modes of financing education. Unless there is to be a substantial increase in state expenditures on education across the board -- an event the likelihood of which is open to considerable question [ Footnote 111 ] -- these groups stand to Page 411 U. S. 57 realize gains in terms of increased per-pupil expenditures only if they reside in districts that presently spend at relatively low levels, i.e., in those districts that would benefit from the redistribution of existing resources. Yet recent studies have indicated that the poorest families are not invariably clustered in the most impecunious school districts. [ Footnote 112 ] Nor does it now appear that there is any more than a random chance that racial minorities are concentrated in property-poor districts. [ Footnote 113 ] Additionally, Page 411 U. S. 58 several research projects have concluded that any financing alternative designed to achieve a greater equality of expenditures is likely to lead to higher taxation and lower educational expenditures in the major urban centers, [ Footnote 114 ] a result that would exacerbate, rather than ameliorate, existing conditions in those areas. These practical considerations, of course, play no role in the adjudication of the constitutional issues presented here. But they serve to highlight the wisdom of the traditional limitations on this Court's function. The consideration and initiation of fundamental reforms with respect to state taxation and education are matters reserved for the legislative processes of the various States, and we do no violence to the values of federalism and separation of powers by staying our hand. We hardly need add that this Court's action today is not to be viewed as placing its judicial imprimatur on the status quo. The need is apparent for reform in tax systems which may well have relied too long and too heavily on the local property tax. And certainly innovative thinking as to public education, its methods, and its funding is necessary to assure both a higher level of quality and greater uniformity of opportunity. These matters merit the continued attention of the scholars who already Page 411 U. S. 59 have contributed much by their challenges. But the ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them. Reversed. [ Footnote 1 ] Not all of the children of these complainants attend public school. One family's children are enrolled in private school "because of the condition of the schools in the Edgewood Independent School District." Third Amended Complaint, App. 14. [ Footnote 2 ] The San Antonio Independent School District, whose name this case still bears, was one of seven school districts in the San Antonio metropolitan area that were originally named as defendants. After a pretrial conference, the District Court issued an order dismissing the school districts from the case. Subsequently, the San Antonio Independent School District joined in the plaintiffs' challenge to the State's school finance system and filed an amicus curiae brief in support of that position in this Court. [ Footnote 3 ] A three-judge court was properly convened, and there are no questions as to the District Court's jurisdiction or the direct appealability of its judgment. 28 U.S.C. §§ 1253, 2281. [ Footnote 4 ] The trial was delayed for two years to permit extensive pretrial discovery and to allow completion of a pending Texas legislative investigation concerning the need for reform of its public school finance system. 337 F. Supp. 280 , 285 n. 11 (WD Tex.1971). [ Footnote 5 ] 337 F. Supp. 280 . The District Court stayed its mandate for two years to provide Texas an opportunity to remedy the inequities found in its financing program. The court, however, retained jurisdiction to fashion its own remedial order if the State failed to offer an acceptable plan. Id. at 286. [ Footnote 6 ] Tex.Const., Art. X, § 1 (1845): "A general diffusion of knowledge being essential to the preservation of the rights and liberties of the people, it shall be the duty of the Legislature of this State to make suitable provision for the support and maintenance of public schools." Id. § 2: "The Legislature shall as early as practicable establish free schools throughout the State, and shall furnish means for their support, by taxation on property. . . ." [ Footnote 7 ] Tex.Const. of 1876, Art. 7, § 3, as amended, Aug. 14, 1883. [ Footnote 8 ] Id. Art. 7, §§ 3, 4, 5. [ Footnote 9 ] 3 Gammel's Laws of Texas 1847-1854, p. 1461. See Tex.Const. Art. 7, §§ 1, 2, 5 (interpretive commentaries); 1 Report of Governor's Committee on Public School Education, The Challenge and the Chance 27 (1969) (hereinafter Governor's Committee Report). [ Footnote 10 ] Tex.Const., Art. 7, § 5 ( see also the interpretive commentary); 5 Governor's Committee Report 11-12. [ Footnote 11 ] The various sources of revenue for the Available School Fund are cataloged in A Report of the Adequacy of Texas Schools, prepared by Texas State Board of Education, 7-15 (1938) (hereinafter Texas State Bd. of Educ.). [ Footnote 12 ] Tex.Const., Art. 7, § 3, as amended, Nov. 5, 1918 ( see interpretive commentary). [ Footnote 13 ] l Governor's Committee Report 35; Texas State Bd. of Educ., supra, n 11, at 5-7; J. Coons, W. Clune, & S. Sugarman, Private Wealth and Public Education 48-49 (1970); E. Cubberley, School Funds and Their Apportionment 21-27 (1905). [ Footnote 14 ] By 1940, one-half of the State's population was clustered in its metropolitan centers. 1 Governor's Committee Report 35. [ Footnote 15 ] Gilmer-Aikin Committee, To Have What We Must 13 (1948). [ Footnote 16 ] R. Still, The Gilmer-Aikin Bills 11-13 (1950); Texas State Bd. of Educ., supra, n 11. [ Footnote 17 ] Still, supra, n. 16 at 12. It should be noted that, during this period, the median per-pupil expenditure for all schools with an enrollment of more than 200 was approximately $50 per year. During this same period, a survey conducted by the State Board of Education concluded that, "in Texas, the best educational advantages offered by the State at present may be had for the median cost of $52.67 per year per pupil in average daily attendance." Texas State Bd. of Educ., supra, n 11, at 56. [ Footnote 18 ] General Laws of Texas, 46th Legis., Reg.Sess.1939, c. 7, pp. 274-275 ($22.50 per student); General & Spec.Laws of Texas, 48th Legis., Reg.Sess.1943, c. 161, pp. 262-263 ($25 per student). [ Footnote 19 ] General & Spec.Laws of Texas, 49th Legis., Reg.Sess.1945, c. 52, pp. 74-75; Still, supra, n 16, at 12. [ Footnote 20 ] For a complete history of the adoption in Texas of a foundation program, see Still, supra, n 16. See also 5 Governor's Committee Report 14; Texas Research League, Public School Finance Problems in Texas 9 (Interim Report 1972). [ Footnote 21 ] For the 1970-1971 school year, this state aid program accounted for 48% of all public school funds. Local taxation contributed 41.1%, and 10.9% was provided in federal funds. Texas Research League, supra, n 20, at 9. [ Footnote 22 ] 5 Governor's Committee Report 44-48. [ Footnote 23 ] At present, there are 1,161 school districts in Texas. Texas Research League, supra, n 20, at 12. [ Footnote 24 ] In 1948, the Gilmer-Aikin Committee found that some school districts were not levying any local tax to support education. Gilmer-Aikin Committee, supra, n 15, at 16. The Texas State Board of Education Survey found that over 400 common and independent school districts were levying no local property tax in 1935-1936. Texas State Bd. of Educ., supra, n 11, at 392. [ Footnote 25 ] Gilmer-Aikin Committee, supra, n 15, at 15. [ Footnote 26 ] 1 Governor's Committee Report 51-53. [ Footnote 27 ] Texas Research League, supra, n 20, at 2. [ Footnote 28 ] In the years between 1949 and 1967, the average per-pupil expenditure for all current operating expenses increased from $206 to $493. In that same period, capital expenditures increased from $44 to $102 per pupil. 1 Governor's Committee Report 53-54. [ Footnote 29 ] Acts 1949, 51st Legis., p. 625, c. 334, Art. 4, Tex.Educ.Code Ann. § 16.302 (1972); see generally 3 Governor's Committee Report 113-146; Berke, Carnevale, Morgan & White, The Texas School Finance Case: A Wrong in Search of a Remedy, 1 J. of L.Educ. 659, 681-682 (1972). [ Footnote 30 ] The family income figures are based on 1960 census statistics. [ Footnote 31 ] The Available School Fund, technically, provides a second source of state money. That Fund has continued as in years past (see text accompanying nn 16-19, supra ) to distribute uniform per-pupil grants to every district in the State. In 1968, this Fund allotted $98 per pupil. However, because the Available School Fund contribution is always subtracted from a district's entitlement under the Foundation Program, it plays no significant role in educational finance today. [ Footnote 32 ] While federal assistance has an ameliorating effect on the difference in school budgets between wealthy and poor districts, the District Court rejected an argument made by the State in that court that it should consider the effect of the federal grant in assessing the discrimination claim. 337 F. Supp. at 284. The State has not renewed that contention here. [ Footnote 33 ] A map of Bexar County included in the record shows that Edgewood and Alamo Heights are among the smallest districts in the county, and are of approximately equal size. Yet, as the figures above indicate, Edgewood's student population is more than four times that of Alamo Heights. This factor obviously accounts for a significant percentage of the differences between the two districts in per-pupil property values and expenditures. If Alamo Heights had as many students to educate as Edgewood does (22,000) its per pupil assessed property value would be approximately $11,100 rather than $49,000, and its per-pupil expenditures would therefore have been considerably lower. [ Footnote 34 ] The figures quoted above vary slightly from those utilized in the District Court opinion. 337 F. Supp. at 282. These trivial differences are apparently a product of that court's reliance on slightly different statistical data than we have relied upon. [ Footnote 35 ] Although the Foundation Program has made significantly greater contributions to both school districts over the last several years, it is apparent that Alamo Heights has enjoyed a larger gain. The sizable difference between the Alamo Heights and Edgewood grants is due to the emphasis in the State's allocation formula on the guaranteed minimum salaries for teachers. Higher salaries are guaranteed to teachers having more years of experience and possessing more advanced degrees. Therefore, Alamo Heights, which has a greater percentage of experienced personnel with advanced degrees, receives more state support. In this regard, the Texas Program is not unlike that presently in existence in a number of other States. Coons, Clune & Sugarman, supra, n 13, at 63-125. Because more dollars have been given to districts that already spend more per pupil, such Foundation formulas have been described as "anti-equalizing." Ibid. The formula, however, is anti-equalizing only if viewed in absolute terms. The percentage disparity between the two Texas districts is diminished substantially by state aid. Alamo Heights derived in 1967-1968 almost 13 times as much money from local taxes as Edgewood did. The state aid grants to each district in 1970-1971 lowered the ratio to approximately two to one, i.e., Alamo Heights had a little more than twice as much money to spend per pupil from its combined state and local resources. [ Footnote 36 ] Texas Research League, supra, n 20, at 13. [ Footnote 37 ] The Economic Index, which determines each county's share of the total Local Fund Assignment, is based on a complex formula conceived in 1949 when the Foundation Program was instituted. See text, supra at 411 U. S. 9 -10. It has frequently been suggested by Texas researchers that the formula be altered in several respects to provide a more accurate reflection of local taxpaying ability, especially of urban school districts. 5 Governor's Committee Report 48; Texas Research League, Texas Public School Finance: A Majority of Exceptions 31-32 (2d Interim Report 1972); Berke, Carnevale, Morgan White, supra, n 29, at 680-681. [ Footnote 38 ] The District Court relied on the findings presented in an affidavit submitted by Professor Berke of Syracuse University. His sampling of 110 Texas school districts demonstrated a direct correlation between the amount of a district's taxable property and it level of per-pupil expenditures. But his study found only a partial correlation between a district's median family income and per-pupil expenditures. The study also shows, in the relatively few districts at the extremes, an inverse correlation between percentage of minorities and expenditures. Categorized by Equalized Property Values, Median Family Income, and State-Local Revenue Market Value Median State & of Taxable Family Per Cent Local Property Income Minority Revenues Per Pupil From 1960 Pupils Per Pupil Above $100,000 $5,900 8% $815 (10 districts) $100,000-$50,000 $4,425 32% $544 (26 districts) $50,00$30,000 $4,900 23% $483 (30 districts) $30,000-$10,000 $5,050 31% $462 (40 districts) Below $10,000 $3,325 79% $305 (4 districts) Although the correlations with respect to family income and race appear only to exist at the extremes, and although the affiant's methodology has been questioned ( see Goldstein, Inter-district Inequalities in School Financing: A Critical Analysis of Serrano v. Priest and its Progeny, 120 U.Pa.L.Rev. 504, 523-525, nn. 67, 71 (1972)), insofar as any of these correlations is relevant to the constitutional thesis presented in this case, we may accept its basic thrust. But see infra at 411 U. S. 25 -27. For a defense of the reliability of the affidavit, see Berke, Carnevale, Morgan & White, supra, n 29. [ Footnote 39 ] E.g., Police Dept. of Chicago v. Mosley, 408 U. S. 92 (1972); Dunn v. Blumstein, 405 U. S. 330 (1972); Shapiro v. Thompson, 394 U. S. 618 (1969). [ Footnote 40 ] E.g., Graham v. Richardson, 403 U. S. 365 (1971); Loving v. Virginia, 388 U. S. 1 (1967); McLaughlin v. Florida, 379 U. S. 184 (1964). [ Footnote 41 ] See Dunn v. Blumstein, supra, at 405 U. S. 343 , and the cases collected therein. [ Footnote 42 ] Brief for Appellants 11. [ Footnote 43 ] Ibid. [ Footnote 44 ] Tr. of Oral Arg. 3; Reply Brief for Appellants 2. [ Footnote 45 ] E.g., Griffin v. Illinois, 351 U. S. 12 (1956); Douglas v. California, 372 U. S. 353 (1963). [ Footnote 46 ] Harper v. Virginia Bd. of Elections, 383 U. S. 663 (1966); McDonald v. Board of Election Comm'rs, 394 U. S. 802 (1969); Bullock v. Carter, 405 U. S. 134 (1972); Goosby v. Osser, 409 U. S. 512 (1973). [ Footnote 47 ] See cases cited in text, infra at 411 U. S. 29 -30. [ Footnote 48 ] Serrano v. Priest, 5 Cal. 3d 584 , 487 P.2d 1241 (1971); Van Dusartz v. Hatfield, 334 F. Supp. 870 (Minn.1971); Robinson v. Cahill, 118 N.J.Super. 223, 287 A.2d 187 (1972); Milliken v. Green, 389 Mich. 1, 203 N.W.2d 457 (1972), rehearing granted, Jan., 1973. [ Footnote 49 ] In their complaint, appellees purported to represent a class composed of persons who are "poor" and who reside in school districts having a "low value of . . . property." Third Amended Complaint, App. 15. Yet appellees have not defined the term "poor" with reference to any absolute or functional level of impecunity. See text, infra at 411 U. S. 22 -23. See also Brief for Appellees 1, 3; Tr. of Oral Arg. 221. [ Footnote 50 ] Appellees' proof at trial focused on comparative differences in family incomes between residents of wealthy and poor districts. They endeavored, apparently, to show that there exists a direct correlation between personal family income and educational expenditures. See text, infra at 411 U. S. 25 -27. The District Court may have been relying on this notion of relative discrimination based on family wealth. Citing appellees' statistical proof, the court emphasized that "those districts most rich in property also have the highest median family income . .while the poor property districts are poor in income. . . ." 337 F. Supp. at 282. [ Footnote 51 ] At oral argument, and in their brief, appellees suggest that description of the personal status of the residents in districts that spend less on education is not critical to their case. In their view, the Texas system is impermissibly discriminatory even if relatively poor districts do not contain poor people. Brief for Appellees 43-44; Tr. of Oral Arg. 20-21. There are indications in the District Court opinion that it adopted this theory of district discrimination. The opinion repeatedly emphasizes the comparative financial status of districts, and, early in the opinion, it describes appellees' class as being composed of "all . . . children throughout Texas who live in school districts with low property valuations." 337 F. Supp. at 281. [ Footnote 52 ] Mayer v. City of Chicago, 404 U. S. 189 (1971); Williams v. Oklahoma City, 395 U. S. 458 (1969); Gardner v. California, 393 U. S. 367 (1969); Roberts v. LaVallee, 389 U. S. 40 (1967); Long v. District Court of Iowa, 385 U. S. 192 (1966); Draper v. Washington, 372 U. S. 487 (1963); Eskridge v. Washington Prison Board, 357 U. S. 214 (1958). [ Footnote 53 ] Note, A Statistical Analysis of the School Finance Decisions: On Winning Battles and Losing Wars, 81 Yale L.J. 1303, 1328-1329 (1972). [ Footnote 54 ] Id. at 1324 and n. 102 [ Footnote 55 ] Id. at 1328 [ Footnote 56 ] Each of appellees' possible theories of wealth discrimination is founded on the assumption that the quality of education varies directly with the amount of funds expended on it, and that, therefore, the difference in quality between two schools can be determined simplistically by looking at the difference in per-pupil expenditures. This is a matter of considerable dispute among educators and commentators. See nn. 86 and | 86 and S. 1fn101|>101, infra. [ Footnote 57 ] E.g., Bullock v. Carter, 405 U.S. at 405 U. S. 137 , 149; Mayer v. City of Chicago, 404 U.S. at 404 U. S. 194 ; Draper v. Washington, 372 U.S. at 372 U. S. 495 -496; Douglas v. California, 372 U.S. at 372 U. S. 367 . [ Footnote 58 ] Gilmer-Aikin Committee, supra, n 15, at 13. Indeed, even though local funding has long been a significant aspect of educational funding, the State has always viewed providing an acceptable education as one of its primary functions. See Texas State Bd. of Educ., supra, n 11, at 1, 7. [ Footnote 59 ] Brief for Appellants 35; Reply Brief for Appellants 1. [ Footnote 60 ] An educational financing system might be hypothesized, however, in which the analogy to the wealth discrimination cases would be considerably closer. If elementary and secondary education were made available by the State only to those able to pay a tuition assessed against each pupil, there would be a clearly defined class of "poor" people -- definable in terms of their inability to pay the prescribed sum -- who would be absolutely precluded from receiving an education. That case would present a far more compelling set of circumstances for judicial assistance than the case before us today. After all, Texas has undertaken to do a good deal more than provide an education to those who can afford it. It has provided what it considers to be an adequate base education for all children, and has attempted, though imperfectly, to ameliorate by state funding and by the local assessment program the disparities in local tax resources. [ Footnote 61 ] Also it should be recognized that median income statistics may not define with any precision the status of individual families within any given district. A more dependable showing of comparative wealth discrimination would also examine factors such as the average income, the mode, and the concentration of poor families in any district. [ Footnote 62 ] Cf. Jefferson v. Hackney, 406 U. S. 535 , 406 U. S. 547 -549 (1972); Ely, Legislative and Administrative Motivation in Constitutional Law 79 Yale L.J. 1205, 1258-1259 (1970); Simon, The School Finance Decisions: Collective Bargaining and Future Finance Systems, 82 Yale L.J. 409, 439-440 (1973). [ Footnote 63 ] Supra at 411 U. S. 15 n. 38. [ Footnote 64 ] Studies in other States have also questioned the existence of any dependable correlation between a district's wealth measured in terms of assessable property and the collective wealth of families residing in the district measured in terms of median family income. Ridenour & Ridenour, Serrano v. Priest: Wealth and Kansas School Finance, 20 Kan.L.Rev. 213, 225 (1972) ("it can be argued that there exists in Kansas almost an inverse correlation: districts with highest income per pupil have low assessed value per pupil, and districts with high assessed value per pupil have low income per pupil"); Davis, Taxpaying Ability: A Study of the Relationship Between Wealth and Income in California Counties, in The Challenge of Change in School Finance, 10th Nat. Educational Assn. Conf. on School Finance 199 (1967). Note, 81 Yale L.J., supra, n 53. See also Goldstein, supra, n 38, at 522-527. [ Footnote 65 ] Indeed, this is precisely how the plaintiffs in Serrano v. Priest defined the class they purported to represent: "Plaintiff children claim to represent a class consisting of all public school pupils in California, 'except children in that school district . . . which . . . affords the greatest educational opportunity of all school districts within California.'" 5 Cal. 3d at 589, 487 P.2d at 1244. See also Van Dusartz v. Hatfield, 334 F. Supp. at 873. [ Footnote 66 ] Appellees, however, have avoided describing the Texas system as one resulting merely in discrimination between districts per se, since this Court has never questioned the State's power to draw reasonable distinctions between political subdivisions within its borders. Griffin v. County School Board of Prince Edward County, 377 U. S. 218 , 377 U. S. 230 -231 (1964); McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 427 (1961); Salsbury v. Maryland, 346 U. S. 545 , 346 U. S. 552 (1954). [ Footnote 67 ] E.g., Harper v. Virginia Bd. of Elections, 383 U. S. 663 (1966); United States v. Kras, 409 U. S. 434 (1973). See MR. JUSTICE MARSHALL's dissenting opinion, post at 411 U. S. 121 . [ Footnote 68 ] See Serrano v. Priest, supra; Van Dusartz v. Hatfield, supra; Robinson v. Cahill, 118 N.J.Super. 223, 287 A.2d 187 (1972); Coons, Clune & Sugarman, supra, n 13, at 339-393; Goldstein, supra, n 38, at 534-541; Vieira, Unequal Educational Expenditures: Some Minority Views on Serrano v. Priest, 37 Mo.L.Rev. 617, 618-624 (1972); Comment, Educational Financing, Equal Protection of the Laws, and the Supreme Court, 70 Mich.L.Rev. 1324, 1335-1342 (1972); Note, The Public School Financing Cases: Inter-district Inequalities and Wealth Discrimination, 14 Ariz.L.Rev. 88, 120-124 (1972). [ Footnote 69 ] 337 F. Supp. at 283. [ Footnote 70 ] E.g., United States v. Guest, 383 U. S. 745 , 383 U. S. 757 -759 (1966); Oregon v. Mitchell, 400 U. S. 112 , 400 U. S. 229 , 400 U. S. 237 -238 (1970) (opinion of BRENNAN, WHITE, and MARSHALL, JJ.). [ Footnote 71 ] After Dandridge v. Williams, 397 U. S. 471 (1970), there could be no lingering question about the constitutional foundation for the Court's holding in Shapiro. In Dandridge, the Court applied the rational basis test in reviewing Maryland's maximum family grant provision under its AFDC program. A federal district court held the provision unconstitutional, applying a stricter standard of review. In the course of reversing the lower court, the Court distinguished Shapiro properly on the ground that, in that case, "the Court found state interference with the constitutionally protected freedom of interstate travel." Id. at 397 U. S. 484 n. 16. [ Footnote 72 ] The Court refused to apply the strict scrutiny test despite its contemporaneous recognition in Goldberg v. Kelly, 397 U. S. 254 , 397 U. S. 264 (1970) that "welfare provides the means to obtain essential food, clothing, housing, and medical care." [ Footnote 73 ] In Eisenstadt, the Court struck down a Massachusetts statute that prohibited the distribution of contraceptive devices, finding that the law failed "to satisfy even the more lenient equal protection standard." 405 U.S. at 405 U. S. 447 n. 7. Nevertheless, in dictum, the Court recited the correct form of equal protection analysis: "[I]f we were to conclude that the Massachusetts statute impinges upon fundamental freedoms under Griswold [v. Connecticut, 381 U. S. 479 (1965)], the statutory classification would have to be not merely rationally related to a valid public purpose, but necessary to the achievement of a compelling state interest." Ibid. (emphasis in original). [ Footnote 74 ] Dunn fully canvasses this Court's voting rights cases, and explains that "this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction." 405 U.S. at 405 U. S. 336 (emphasis supplied). The constitutional underpinnings of the right to equal treatment in the voting process can no longer be doubted, even though, as the Court noted in Harper v. Virginia Bd. of Elections, 383 U.S. at 383 U. S. 665 , "the right to vote in state elections is nowhere expressly mentioned." See Oregon v. Mitchell, 400 U.S. at 400 U. S. 135 , 400 U. S. 138 -44 (DOUGLAS, J.), 400 U. S. 229 , 400 U. S. 241 -242 (BRENNAN, WHITE, and MARSHALL, JJ.); Bullock v. Carter, 405 U.S. at 405 U. S. 140 -144; Kramer v. Union School District, 395 U. S. 621 , 395 U. S. 625 -630 (1969); Williams v. Rhodes, 393 U. S. 23 , 393 U. S. 29 , 393 U. S. 30 -31 (1968); Reynolds v. Sims, 377 U. S. 533 , 377 U. S. 554 -562 (1964); Gray v. Sanders, 372 U. S. 368 , 372 U. S. 379 -381 (1963). [ Footnote 75 ] In Mosley, the Court struck down a Chicago anti-picketing ordinance that exempted labor picketing from its prohibitions. The ordinance was held invalid under the Equal Protection Clause after subjecting it to careful scrutiny and finding that the ordinance was not narrowly drawn. The stricter standard of review was appropriately applied, since the ordinance was one "affecting First Amendment interests." 408 U.S. at 408 U. S. 101 . [ Footnote 76 ] Skinner applied the standard of close scrutiny to a state law permitting forced sterilization of "habitual criminals." Implicit in the Court's opinion is the recognition that the right of procreation is among the rights of personal privacy protected under the Constitution. See Roe v. Wade, 410 U. S. 113 , 410 U. S. 152 (1973). [ Footnote 77 ] See, e.g., Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 , 395 U. S. 389 -390 (1969); Stanley v.Georgia, 394 U. S. 557 , 394 U. S. 564 (1969); Lamont v. Postmaster General, 381 U. S. 301 , 381 U. S. 306 -307 (1965). [ Footnote 78 ] Since the right to vote, per se, is not a constitutionally protected right, we assume that appellees' references to that right are simply shorthand references to the protected right, implicit in our constitutional system, to participate in state elections on an equal basis with other qualified voters whenever the State has adopted an elective process for determining who will represent any segment of the State's population. See n 74, supra. [ Footnote 79 ] The States have often pursued their entirely legitimate interest in assuring "intelligent exercise of the franchise," Katzenbach v. Morgan, 384 U. S. 641 , 384 U. S. 655 (1966), through such devices as literacy tests and age restrictions on the right to vote. See ibid.; Oregon v. Mitchell, 400 U. S. 112 (1970). And, where those restrictions have been found to promote intelligent use of the ballot without discriminating against those racial and ethnic minorities previously deprived of an equal educational opportunity, this Court has upheld their use. Compare Lassiter v. Northampton County Bd. of Elections, 360 U. S. 45 (1959), with Oregon v. Mitchell, supra, at 400 U. S. 133 (Black, J.), 400 U. S. 135 , 400 U. S. 144 -147 (DOUGLAS, J.), 400 U. S. 152 , 400 U. S. 216 -217 (Harlan, J.), 400 U. S. 229 , 400 U. S. 231 -236 (BRENNAN, WHITE, and MARSHALL, JJ.), 400 U. S. 281 , 400 U. S. 282 -284 (STEWART, J.), and Gaston County v. United States, 395 U. S. 285 (1969). [ Footnote 80 ] See Schoettle, The Equal Protection Clause in Public Education, 71 Col.L.Rev. 1355, 1389-1390 (1971); Vieira, supra, 411 U. S. 68, at 622-623; Comment, Tenant Interest Representation: Proposal for a National Tenants' Association, 47 Tex.L.Rev. 1160, 1172-1173, n. 61 (1969). [ Footnote 81 ] Katzenbach v. Morgan involved a challenge by registered voters in New York City to a provision of the Voting Rights Act of 1965 that prohibited enforcement of a state law calling for English literacy tests for voting. The law was suspended as to residents from Puerto Rico who had completed at least six years of education at an "American-flag" school in that country even though the language of instruction was other than English. This Court upheld the questioned provision of the 1965 Act over the claim that it discriminated against those with a sixth-grade education obtained in non-English-speaking schools other than the ones designated by the federal legislation. [ Footnote 82 ] Cf. Meyer v. Nebraska, 262 U. S. 390 (1923); Pierce v. Society of Sisters, 268 U. S. 510 (1925); Hargrave v. Kirk, 313 F. Supp. 944 (MD Fla.1970), vacated, 401 U. S. 476 (1971). [ Footnote 83 ] See Schilb v. Kuebel, 404 U. S. 357 (1971); McDonald v. Board of Election Comm'rs, 394 U. S. 802 (1969). [ Footnote 84 ] See, e.g., Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232 (1890); Carmichael v. Southern Coal & Coke Co., 301 U. S. 495 , 301 U. S. 508 -509 (1937); Allied Stores of Ohio v. Bowers, 358 U. S. 522 (1959). [ Footnote 85 ] Those who urge that the present system be invalidated offer little guidance as to what type of school financing should replace it. The most likely result of rejection of the existing system would be state-wide financing of all public education with funds derived from taxation of property or from the adoption or expansion of sale and income taxes. See Simon, supra, n 62. The authors of Private Wealth and Public Education, supra, n 13, at 201-242, suggest an alternative scheme, known as "district power equalizing." In simplest terms, the State would guarantee that, at any particular rate of property taxation the district would receive a stated number of dollars regardless of the district's tax base. To finance the subsidies to "poorer" districts, funds would be taken away from the "wealthier" districts that, because of their higher property values, collect more than the stated amount at any given rate. This is not the place to weigh the arguments for and against "district power equalizing," beyond noting that commentators are in disagreement as to whether it is feasible, how it would work, and indeed whether it would violate the equal protection theory underlying appellees' case. President's Commission on School Finance, Schools, People & Money 32-33 (1972); Bateman & Brown, Some Reflections on Serrano v. Priest, 49 J. Urban L. 701, 706-708 (1972); Brest, Book Review, 23 Stan.L.Rev. 591, 594-596 (1971); Goldstein, supra, n 38, at 542-543; Wise, School Finance Equalization Lawsuits: A Model Legislative Response, 2 Yale Rev. of L. & Soc.Action 123, 125 (1971); Silard & White, Intrastate Inequalities in Public Education: The Case for Judicial Relief Under the Equal Protection Clause, 1970 Wis.L.Rev. 7, 29-30. [ Footnote 86 ] The quality-cost controversy has received considerable attention. Among the notable authorities on both sides are the following: C. Jencks, Inequality (1972); C. Silberman, Crisis in the Classroom (1970); U.S. Office of Education, Equality of Educational Opportunity (1966) (the Coleman Report); On Equality of Educational Opportunity (F. Mosteller 8 D. Moynihan eds.1972); J. Guthrie, G. Kleindorfer, H. Levin R. Stout, Schools and Inequality (1971); President's Commission on School Finance, supra, n. 85; Swanson, The Cost-Quality Relationship, in The Challenge of Change in School Finance, 10th Nat. Educational Assn. Conf. on School Finance 151 (1967). [ Footnote 87 ] See the results of the Texas Governor's Committee's state-wide survey on the goals of education in that State. 1 Governor's Committee Report 59-68. See also Goldstein, supra, n 38, at 519-522; Schoettle, supra, n 80, authorities cited in n 86, supra. [ Footnote 88 ] Allied Stores of Ohio v. Bowers, 358 U. S. 522 , 358 U. S. 530 , 358 U. S. 532 (1959) (BRENNAN, J., concurring); Katzenbach v. Morgan, 384 U.S. at 384 U. S. 659 , 384 U. S. 661 (Harlan, J., dissenting). [ Footnote 89 ] In 1970 Texas expended approximately $2.1 billion for education and a little over $1 billion came from the Minimum Foundation Program. Texas Research League, supra, n 20, at 2 [ Footnote 90 ] Tex.Educ.Code Ann. § 16.13 (1972). [ Footnote 91 ] Id. § 16.18. [ Footnote 92 ] Id., § 16.15. [ Footnote 93 ] Id. §§ 16.16, 16.17, 16.19. [ Footnote 94 ] Id., §§ 16.45, 16.51-16.63. [ Footnote 95 ] Id. §§ 12.01-12.04. [ Footnote 96 ] Id. § 11.26(5). [ Footnote 97 ] Id. § 16.301 et seq. [ Footnote 98 ] See supra at 411 U. S. 13 -14. [ Footnote 99 ] Gilmer-Aikin Committee, supra, n 15, at 15. [ Footnote 100 ] There is no uniform state-wide assessment practice in Texas. Commercial property, for example, might be assessed at 30% of market value in one county and at 50% in another. 5 Governor' Committee Report 25-26; Berke, Carnevale, Morgan & White, supra, n 29, at 666-667, n. 16. [ Footnote 101 ] Texas Research League, supra, n 20, at 18. Texas, in this regard, is not unlike most other States. One commentator has observed that "disparities in expenditures appear to be largely explained by variations in teacher salaries." Simon, supra, n 62, at 413. As previously noted, see text accompanying n 86, supra, the extent to which the quality of education varies with expenditure per pupil is debated inconclusively by the most thoughtful students of public education. While all would agree that there is a correlation up to the point of providing the recognized essentials in facilities and academic opportunities, the issues of greatest disagreement include the effect on the quality of education of pupil-teacher ratios and of higher teacher salary schedules. E.g., Office of Education, supra, n 86, at 316-319. The state funding in Texas is designed to assure, on the average, one teacher for every 25 students, which is considered to be a favorable ratio by most standards. Whether the minimum salary of $6,000 per year is sufficient in Texas to attract qualified teachers may be more debatable, depending in major part upon the location of the school district. But there appear to be few empirical data that support the advantage of any particular pupil-teacher ratio or that document the existence of a dependable correlation between the level of public school teachers' salaries and the quality of their classroom instruction. An intractable problem in dealing with teachers' salaries is the absence, up to this time, of satisfactory techniques for judging their ability or performance. Relatively few school systems have merit plans of any kind, with the result that teachers' salaries are usually increased across the board in a way which tends to reward the least deserving on the same basis as the most deserving. Salaries are usually raised automatically on the basis of length of service and according to predetermined "steps," extending over 10- to 12-year periods. [ Footnote 102 ] President's Commission on School Finance, supra, n 85, at 9. Until recently, Hawaii was the only State that maintained a purely state-funded educational program. In 1968, however, that State amended its educational finance statute to permit counties to collect additional funds locally and spend those amounts on its schools. The rationale for that recent legislative choice is instructive on the question before the Court today: "Under existing law, counties are precluded from doing anything in this area, even to spend their own funds if they so desire. This corrective legislation is urgently needed in order to allow counties to go above and beyond the State's standards and provide educational facilities as good as the people of the counties want and are willing to pay for. Allowing local communities to go above and beyond established minimums to provide for their people encourages the best features of democratic government." Haw.Sess.Laws 1968, Act 38, § 1. [ Footnote 103 ] See text accompanying n 7, supra. [ Footnote 104 ] G. Strayer & R. Haig, The Financing of Education in the State of New York (1923). For a thorough analysis of the contribution of these reformers and of the prior and subsequent history of educational finance, see Coons, Clune & Sugarman, supra, n 13, at 39-95. [ Footnote 105 ] J. Coleman, Foreword to Strayer & Haig, supra, at vii. [ Footnote 106 ] New State Ice Co. v. Liebmann, 285 U. S. 262 , 285 U. S. 280 , 285 U. S. 311 (1932) (Brandeis, J., dissenting). [ Footnote 107 ] MR. JUSTICE WHITE suggests in his dissent that the Texas system violates the Equal Protection Clause because the means it has selected to effectuate its interest in local autonomy fail to guarantee complete freedom of choice to every district. He places special emphasis on the statutory provision that establishes a maximum rate of $1.50 per $100 valuation at which a local school district may tax for school maintenance. Tex.Educ.Code Ann. § 20.04(d) (1972). The maintenance rate in Edgewood when this case was litigated in the District Court was $.55 per $100, barely one-third of the allowable rate. (The tax rate of $1.05 per $100, see supra at 411 U. S. 12 , is the equalized rate for maintenance and for the retirement of bonds.) Appellees do not claim that the ceiling presently bars desired tax increases in Edgewood or in any other Texas district. Therefore, the constitutionality of that statutory provision is not before us, and must await litigation in a case in which it is properly presented. Cf. Hargrave v. Kirk, 313 F. Supp. 944 (MD Fla.1970), vacated, 401 U. S. 476 (1971). [ Footnote 108 ] MR. JUSTICE MARSHALL states in his dissenting opinion that the State's asserted interest in local control is a "mere sham," post, at 411 U. S. 130 , and that it has been offered not as a legitimate justification, but "as an excuse . . . for inter-district inequality." Id. at 411 U. S. 126 . In addition to asserting that local control would be preserved and possibly better served under other systems -- a consideration that we find irrelevant for the purpose of deciding whether the system may be said to be supported by a legitimate and reasonable basis -- the dissent suggests that Texas' lack of good faith may be demonstrated by examining the extent to which the State already maintains considerable control. The State, we are told, regulates "the most minute details of local public education," ibid., including textbook selection, teacher qualifications, and the length of the school day. This assertion, that genuine local control does not exist in Texas, simply cannot be supported. It is abundantly refuted by the elaborate statutory division of responsibilities set out in the Texas Education Code. Although policy decisionmaking and supervision in certain areas are reserved to the State, the day-to-day authority over the "management and control" of all public elementary and secondary schools is squarely placed on the local school boards. Tex.Educ.Code Ann. §§ 17.01, 23.26 (1972). Among the innumerable specific powers of the local school authorities are the following: the power of eminent domain to acquire land for the construction of school facilities, id. §§ 17.26, 23.26; the power to hire and terminate teachers and other personnel, id. §§ 13.101-13.103; the power to designate conditions of teacher employment and to establish certain standards of educational policy, id. § 13.901; the power to maintain order and discipline, id. § 21.305, including the prerogative to suspend students for disciplinary reasons, id. § 21.301; the power to decide whether to offer a kindergarten program, id. §§ 21.131-21.135, or a vocational training program, id. § 21.111, or a program of special education for the handicapped, id. § 11.16; the power to control the assignment and transfer of students, id. §§ 21.074-21.080; and the power to operate and maintain a school bus program, id. § 16.52. See also Pervis v. LaMarque Ind. School Dist., 328 F. Supp. 638 , 642-643 (SD Tex.1971), reversed, 466 F.2d 1054 (CA5 1972); Nichols v. Aldine Ind. School Dist., 356 S.W.2d 182 (Tex.Civ.App. 1962). Local school boards also determine attendance zones, location of new schools, closing of old ones, school attendance hours (within limits), grading and promotion policies subject to general guidelines, recreational and athletic policies, and a myriad of other matters in the routine of school administration. It cannot be seriously doubted that, in Texas, education remains largely a local function, and that the preponderating bulk of all decisions affecting the schools is made and executed at the local level, guaranteeing the greatest participation by those most directly concerned. [ Footnote 109 ] This theme -- that greater state control over funding will lead to greater state power with respect to local educational programs and policies -- is a recurrent one in the literature on financing public education. Professor Simon, in his thoughtful analysis of the political ramifications of this case, states that one of the most likely consequences of the District Court's decision would be an increase in the centralization of school finance and an increase in the extent of collective bargaining by teacher unions at the state level. He suggests that the subjects for bargaining may include many "non-salary" items, such as teaching loads, class size, curricular and program choices, questions of student discipline, and selection of administrative personnel -- matters traditionally decided heretofore at the local level. Simon, supra, n 62, at 434-436. See, e.g., Coleman, The Struggle for Control of Education, in Education and Social Policy: Local Control of Education 64, 77-79 (C. Bowers, I. Housego & D. Dyke eds.1970); J. Conant, The Child, The Parent, and The State 27 (1959) ("Unless a local community, through its school board, has some control over the purse, there can be little real feeling in the community that the schools are in fact, local schools. . . ."); Howe, Anatomy of a Revolution, in Saturday Review 84, 88 (Nov. 20, 1971) ("It is an axiom of American politics that control and power follow money. . . ."); R. Hutchinson, State-Administered Locally Shared Taxes 21 (1931) ("[S]tate administration of taxation is the first step toward state control of the functions supported by these taxes. . . ."). Irrespective of whether one regards such prospects as detrimental or whether he agrees that the consequence is inevitable, it certainly cannot be doubted that there is a rational basis for this concern on the part of parents, educators, and legislators. [ Footnote 110 ] This Court has never doubted the propriety of maintaining political subdivisions within the States and has never found in the Equal Protection Clause any per se rule of "territorial uniformity." McGowan v. Maryland, 366 U.S. at 366 U. S. 427 . See also Griffin v. County School Board of Prince Edward County, 377 U.S. at 377 U. S. 230 -231; Salsbury v. Maryland, 346 U. S. 545 (1954). Cf. Board of Education of Muskogee v. Oklahoma, 409 F.2d 665, 668 (CA10 1969). [ Footnote 111 ] Any alternative that calls for significant increases in expenditures for education, whether financed through increases in property taxation or through other sources of tax dollars, such as income and sales taxes, is certain to encounter political barriers. At a time when nearly every State and locality is suffering from fiscal undernourishment, and with demands for services of all kinds burgeoning and with weary taxpayers already resisting tax increases, there is considerable reason to question whether a decision of this Court nullifying present state taxing systems would result in a marked increase in the financial commitment to education. See Senate Select Committee on Equal Educational Opportunity, 92d Cong., 2d Sess., Toward Equal Educational Opportunity 339-345 (Comm.Print 1972); Berke & Callahan, Serrano v. Priest: Milestone or Millstone for School Finance, 21 J.Pub.L. 23, 25-26 (1972); Simon, supra, n. 62 at 420-421. In Texas, it has been calculated that $2.4 billion of additional school funds would be required to bring all schools in that State up to the present level of expenditure of all but the wealthiest districts -- an amount more than double that currently being spent on education. Texas Research League, supra, n 20, at 16-18. An amicus curiae brief filed on behalf of almost 30 States, focusing on these practical consequences, claims with some justification that "each of the undersigned states . . . would suffer severe financial stringency." Brief of Amici Curiae in Support of Appellants 2 (filed by Montgomery County, Md. et al.). [ Footnote 112 ] See Note, supra, n 53. See also authorities cited n 114, infra. [ Footnote 113 ] See Goldstein, supra, n 38, at 526; Jencks, supra, n 86, at 27; U.S. Comm'n on Civil Rights, Inequality in School Financing: The Role of the Law 37 (1972). Coons, Clune & Sugarman, supra, n 13, at 356-357, n. 47, have noted that, in California, for example, "[f]ifty-nine percent . . . of minority students live in districts above the median [average valuation per pupil.]" In Bexar County, the largest district by far -- the San Antonio Independent School District -- is above the local average in both the amount of taxable wealth per pupil and in median family income. Yet 72% of its students are Mexican-Americans. And, in 1967-1968, it spent only a very few dollars less per pupil than the North East and North Side Independent School Districts, which have only 7% and 18% Mexican-American enrollment respectively. Berke, Carnevale, Morgan & White, supra, n 29, at 673. [ Footnote 114 ] See Senate Select Committee on Equal Educational Opportunity, 92d Cong., 2d Sess., Issues in School Finance 129 (Comm.Print 1972) (monograph entitled Inequities in School Finance prepared by Professors Berke and Callahan); U.S. Office of Education, Finances of Large-City School Systems: A Comparative Analysis (1972) (HEW publication); U.S. Comm'n on Civil Rights, supra, n 113 at 33-36; Simon, supra, n 62, at 410-411, 418. MR. JUSTICE STEWART, concurring. The method of financing public schools in Texas, as in almost every other State, has resulted in a system of public education that can fairly be described as chaotic and unjust. [ Footnote 2/1 ] It does not follow, however, and I cannot find, that this system violates the Constitution of the United States. I join the opinion and judgment of the Court because I am convinced that any other course would mark an extraordinary departure from principled adjudication under the Equal Protection Clause of the Fourteenth Amendment. The uncharted directions of such a departure are suggested, I think, by the imaginative dissenting opinion my Brother MARSHALL has filed today. Unlike other provisions of the Constitution, the Equal Protection Clause confers no substantive rights and creates no substantive liberties. [ Footnote 2/2 ] The function of the Equal Protection Clause, rather, is simply to measure the validity of classifications created by state laws. Page 411 U. S. 60 There is hardly a law on the books that does not affect some people differently from others. But the basic concern of the Equal Protection Clause is with state legislation whose purpose or effect is to create discrete and objectively identifiable classes. [ Footnote 2/3 ] And, with respect to such legislation, it has long been settled that the Equal Protection Clause is offended only by laws that are invidiously discriminatory -- only by classifications that are wholly arbitrary or capricious. See, e.g., Rinaldi v. Yeager, 384 U. S. 305 . This settled principle of constitutional law was compendiously stated in Mr. Chief Justice Warren's opinion for the Court in McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 425 -426, in the following words: "Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." This doctrine is no more than a specific application of one of the first principles of constitutional adjudication -- the basic presumption of the constitutional validity of a duly enacted state or federal law. See Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv.L.Rev. 129 (1893). Page 411 U. S. 61 Under the Equal Protection Clause, this presumption of constitutional validity disappears when a State has enacted legislation whose purpose or effect is to create classes based upon criteria that, in a constitutional sense, are inherently "suspect." Because of the historic purpose of the Fourteenth Amendment, the prime example of such a "suspect" classification is one that is based upon race. See, e.g., Brown v. Board of Education, 347 U. S. 483 ; McLaughlin v. Florida, 379 U. S. 184 . But there are other classifications that, at least in some settings, are also "suspect" -- for example, those based upon national origin, [ Footnote 2/4 ] alienage, [ Footnote 2/5 ] indigency, [ Footnote 2/6 ] or illegitimacy. [ Footnote 2/7 ] Moreover, quite apart from the Equal Protection Clause, a state law that impinges upon a substantive right or liberty created or conferred by the Constitution is, of course, presumptively invalid, whether or not the law's purpose or effect is to create any classifications. For example, a law that provided that newspapers could be published only by people who had resided in the State for five years could be superficially viewed as invidiously discriminating against an identifiable class in violation of the Equal Protection Clause. But, more basically, such a law would be invalid simply because it abridged the freedom of the press. Numerous cases in this Court illustrate this principle. [ Footnote 2/8 ] Page 411 U. S. 62 In refusing to invalidate the Texas system of financing its public schools, the Court today applies with thoughtfulness and understanding the basic principles I have so sketchily summarized. First, as the Court points out, the Texas system has hardly created the kind of objectively identifiable classes that are cognizable under the Equal Protection Clause. [ Footnote 2/9 ] Second, even assuming the existence of such discernible categories, the classifications are in no sense based upon constitutionally "suspect" criteria. Third, the Texas system does not rest "on grounds wholly irrelevant to the achievement of the State's objective." Finally, the Texas system impinges upon no substantive constitutional rights or liberties. It follows, therefore, under the established principle reaffirmed in Mr. Chief Justice Warren's opinion for the Court in McGowan v. Maryland, supra, that the judgment of the District Court must be reversed. [ Footnote 2/1 ] See New York Times, Mar. 11, 1973, p. 1, col. 1. [ Footnote 2/2 ] There is one notable exception to the above statement: it has been established in recent years that the Equal Protection Clause confers the substantive right to participate on an equal basis with other qualified voters whenever the State has adopted an electoral process for determining who will represent any segment of the State's population. See, e.g., Reynolds v. Sims, 377 U. S. 533 ; Kramer v. Union School District, 395 U. S. 621 ; Dunn v. Blumstein, 405 U. S. 330 , 405 U. S. 336 . But there is no constitutional right to vote, as such. Minor v. Happersett , 21 Wall. 162. If there were such a right, both the Fifteenth Amendment and the Nineteenth Amendment would have been wholly unnecessary. [ Footnote 2/3 ] But see Bullock v. Carter, 405 U. S. 134 . [ Footnote 2/4 ] See Oyama v. California, 332 U. S. 633 , 332 U. S. 644 -646. [ Footnote 2/5 ] See Graham v. Richardson, 403 U. S. 365 , 403 U. S. 372 . [ Footnote 2/6 ] See Griffin v. Illinois, 351 U. S. 12 . "Indigency" means actual or functional indigency; it does not mean comparative poverty vis-a-vis comparative affluence. See James v. Valtierra, 402 U. S. 137 . [ Footnote 2/7 ] See Gomez v. Perez, 409 U. S. 535 ; Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 . [ Footnote 2/8 ] See, e.g., Police Dept. of Chicago v. Mosley, 408 U. S. 92 (free speech); Shapiro v. Thompson, 394 U. S. 618 (freedom of interstate travel); Williams v. Rhodes, 393 U. S. 23 (freedom of association); Skinner v. Oklahoma, 316 U. S. 535 ("liberty" conditionally protected by Due Process Clause of Fourteenth Amendment). [ Footnote 2/9 ] See Katzenbach v. Morgan, 384 U. S. 641 , 384 U. S. 660 (Harlan, J., dissenting). MR. JUSTICE BRENNAN, dissenting. Although I agree with my Brother WHITE that the Texas statutory scheme is devoid of any rational basis, and, for that reason, is violative of the Equal Protection Clause, I also record my disagreement with the Court's rather distressing assertion that a right may be deemed "fundamental" for the purposes of equal protection analysis only if it is "explicitly or implicitly guaranteed by the Constitution." Ante at 411 U. S. 33 -34. As my Brother MARSHALL convincingly demonstrates, our prior cases stand for the proposition that "fundamentality" is, in large measure, a function of the right's importance in terms of the effectuation of those rights which are in fact, constitutionally guaranteed. Thus, "[a]s the nexus between the specific constitutional guarantee and the nonconstitutional Page 411 U. S. 63 interest draws closer, the nonconstitutional interest becomes more fundamental and the degree of judicial scrutiny applied when the interest is infringed on a discriminatory basis must be adjusted accordingly." Post at 411 U. S. 102 -103. Here, there can be no doubt that education is inextricably linked to the right to participate in the electoral process and to the rights of free speech and association guaranteed by the First Amendment. See post at 411 U. S. 111 -115. This being so, any classification affecting education must be subjected to strict judicial scrutiny, and since even the State concedes that the statutory scheme now before us cannot pass constitutional muster under this stricter standard of review, I can only conclude that the Texas school-financing scheme is constitutionally invalid. MR. JUSTICE WHITE, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN join, dissenting. The Texas public schools are financed through a combination of state funding, local property tax revenue, and some federal funds. [ Footnote 3/1 ] Concededly, the system yields wide disparity in per-pupil revenue among the various districts. In a typical year, for example, the Alamo Heights district had total revenues of $594 per pupil, while the Edgewood district had only $356 per pupil. [ Footnote 3/2 ] The majority and the State concede, as they must, the existence Page 411 U. S. 64 of major disparities in spendable funds. But the State contends that the disparities do not invidiously discriminate against children and families in districts such as Edgewood, because the Texas scheme is designed "to provide an adequate education for all, with local autonomy to go beyond that as individual school districts desire and are able. . . . It leaves to the people of each district the choice whether to go beyond the minimum and, if so, by how much. [ Footnote 3/3 ]" The majority advances this rationalization: "While assuring a basic education for every child in the State, it permits and encourages a large measure of participation in and control of each district's schools at the local level." I cannot disagree with the proposition that local control and local decisionmaking play an important part in our democratic system of government. Cf. James v. Valtierra, 402 U. S. 137 (1971). Much may be left to local option, and this case would be quite different if it were true that the Texas system, while insuring minimum educational expenditures in every district through state funding, extended a meaningful option to all local districts to increase their per-pupil expenditures, and so to improve their children's education to the extent that increased funding would achieve that goal. The system would then arguably provide a rational and sensible method of achieving the stated aim of preserving an area for local initiative and decision. The difficulty with the Texas system, however, is that it provides a meaningful option to Alamo Heights and like school districts, but almost none to Edgewood and those other districts with a low per-pupil real estate tax base. In these latter districts, no matter how desirous parents are of supporting their schools with greater revenues, it is impossible to do so through the use of the Page 411 U. S. 65 real estate property tax. In these districts, the Texas system utterly fails to extend a realistic choice to parents because the property tax, which is the only revenue-raising mechanism extended to school districts, is practically and legally unavailable. That this is the situation may be readily demonstrated. Local school districts in Texas raise their portion of the Foundation School Program -- the Local Fund Assignment -- by levying ad valorem taxes on the property located within their boundaries. In addition, the districts are authorized, by the state constitution and by statute, to levy ad valorem property taxes in order to raise revenues to support educational spending over and above the expenditure of Foundation School Program funds. Both the Edgewood and Alamo Heights districts are located in Bexar County, Texas. Student enrollment in Alamo Heights is 5,432, in Edgewood 22,862. The per-pupil market value of the taxable property in Alamo Heights is $49,078, in Edgewood $5,960. In a typical, relevant year, Alamo Heights had a maintenance tax rate of $1.20 and a debt service (bond) tax rate of 20� per $100 assessed evaluation, while Edgewood had a maintenance rate of 52� and a bond rate of 67�. These rates, when applied to the respective tax bases, yielded Alamo Heights $1,433,473 in maintenance dollars and $236,074 in bond dollars, and Edgewood $223,034 in maintenance dollars and $279,023 in bond dollars. As is readily apparent, because of the variance in tax bases between the districts, results, in terms of revenues, do not correlate with effort, in terms of tax rate. Thus, Alamo Heights, with a tax base approximately twice the size of Edgewood's base, realized approximately six times as many maintenance dollars as Edgewood by using a tax rate only approximately two and one-half times larger. Similarly, Alamo Heights realized slightly fewer bond Page 411 U. S. 66 dollars by using a bond tax rate less than one-third of that used by Edgewood. Nor is Edgewood's revenue-raising potential only deficient when compared with Alamo Heights. North East District has taxable property with a per-pupil market value of approximately $31,000, but total taxable property approximately four and one-half times that of Edgewood. Applying a maintenance rate of $1, North East yielded $2,818,148. Thus, because of its superior tax base, North East was able to apply a tax rate slightly less than twice that applied by Edgewood and yield more than 10 times the maintenance dollars. Similarly, North East, with a bond rate of 45�, yielded $1,249,159 -- more than four times Edgewood's yield with two-thirds the rate. Plainly, were Alamo Heights or North East to apply the Edgewood tax rate to its tax base, it would yield far greater revenues than Edgewood is able to yield applying those same rates to its base. Conversely, were Edgewood to apply the Alamo Heights or North East rates to its base, the yield would be far smaller than the Alamo Heights or North East yields. The disparity is, therefore, currently operative, and its impact on Edgewood is undeniably serious. It is evident from statistics in the record that show that, applying an equalized tax rate of 85� per $100 assessed valuation, Alamo Heights was able to provide approximately $330 per pupil in local revenues over and above the Local Fund Assignment. In Edgewood, on the other hand, with an equalized tax rate of $1.05 per $100 of assessed valuation, $26 per pupil was raised beyond the Local Fund Assignment. [ Footnote 3/4 ] As previously noted, in Alamo Heights, Page 411 U. S. 67 total per-pupil revenues from local, state, and federal funds was $594 per pupil, in Edgewood $356. [ Footnote 3/5 ] In order to equal the highest yield in any other Bexar County district, Alamo Heights would be required to tax at the rate of 68� per $100 of assessed valuation. Edgewood would be required to tax at the prohibitive rate of $5.76 per $100. But state law places a $1.50 per $100 ceiling on the maintenance tax rate, a limit that would surely be reached long before Edgewood attained an equal yield. Edgewood is thus precluded in law, as well a in fact, from achieving a yield even close to that of some other district. The Equal Protection Clause permits discriminations between classes, but requires that the classification bear some rational relationship to a permissible object sought to be attained by the statute. It is not enough that the Texas system before us seeks to achieve the valid, rational purpose of maximizing local initiative; the means chosen by the State must also be rationally related to the end sought to be achieved. As the Court stated just last Term in Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 , 406 U. S. 172 (1972): "The tests to determine the validity of state statutes under the Equal Protection Clause have been variously expressed, but this Court requires, at a minimum, that a statutory classification bear some rational relationship to a legitimate state purpose. Morey v. Doud, 354 U. S. 457 (1957); Williamson v. Lee Optical Co., 348 U. S. 483 (1955); Gulf, Colorado & Santa Fe R. Co. v. Ellis, 165 U. S. 150 (1897); Yick Wo v. Hopkins, 118 U. S. 356 (1886). " Page 411 U. S. 68 Neither Texas nor the majority heeds this rule. If the State aims at maximizing local initiative and local choice, by permitting school districts to resort to the real property tax if they choose to do so, it utterly fails in achieving its purpose in districts with property tax bases so low that there is little if any opportunity for interested parents, rich or poor, to augment school district revenues. Requiring the State to establish only that unequal treatment is in furtherance of a permissible goal, without also requiring the State to show that the means chosen to effectuate that goal are rationally related to its achievement, makes equal protection analysis no more than an empty gesture. [ Footnote 3/6 ] In my view, the parents and children in Edgewood, and in like districts, suffer from an invidious discrimination violative of the Equal Protection Clause. This does not, of course, mean that local control may not be a legitimate goal of a school financing system. Nor does it mean that the State must guarantee each district an equal per-pupil revenue from the state school financing system. Nor does it mean, as the majority appears to believe, that, by affirming the decision below, Page 411 U. S. 69 this Court would be "imposing on the States inflexible constitutional restraints that could circumscribe or handicap the continued research and experimentation so vital to finding even partial solutions to educational problems and to keeping abreast of ever-changing conditions." On the contrary, it would merely mean that the State must fashion a financing scheme which provides a rational basis for the maximization of local control, if local control is to remain a goal of the system, and not a scheme with "different treatment be[ing] accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute." Reed v. Reed, 404 U. S. 71 , 404 U. S. 75 -76 (1971). Perhaps the majority believes that the major disparity in revenues provided and permitted by the Texas system is inconsequential. I cannot agree, however, that the difference of the magnitude appearing in this case can sensibly be ignored, particularly since the State itself considers it so important to provide opportunities to exceed the minimum state educational expenditures. There is no difficulty in identifying the class that is subject to the alleged discrimination and that is entitled to the benefits of the Equal Protection Clause. I need go no farther than the parents and children in the Edgewood district, who are plaintiffs here and who assert that they are entitled to the same choice as Alamo Heights to augment local expenditures for schools but are denied that choice by state law. This group constitutes a class sufficiently definite to invoke the protection of the Constitution. They are as entitled to the protection of the Equal Protection Clause as were the voters in allegedly underrepresented counties in the reapportionment case. See, e.g., Baker v. Carr, 369 U. S. 186 , 369 U. S. 204 -208 (1962); Gray v. Sanders, 372 U. S. 368 , 372 U. S. 375 (1963); Reynolds v. Sims, 377 U. S. 533 , 377 U. S. 654 -556 (1964). And in Bullock v. Carter, 405 U. S. 134 (1972), where a challenge to the Page 411 U. S. 70 Texas candidate filing fee on equal protection grounds was upheld, we noted that the victims of alleged discrimination wrought by the filing fee "cannot be described by reference to discrete and precisely defined segments of the community as is typical of inequities challenged under the Equal Protection Clause," but concluded that "we would ignore reality were we not to recognize that this system falls with unequal weight on voters, as well as candidates, according to their economic status." Id. at 405 U. S. 144 . Similarly, in the present case, we would blink reality to ignore the fact that school districts, and students in the end, are differentially affected by the Texas school financing scheme with respect to their capability to supplement the Minimum Foundation School Program. At the very least, the law discriminates against those children and their parents who live in districts where the per-pupil tax base is sufficiently low to make impossible the provision of comparable school revenues by resort to the real property tax which is the only device the State extends for this purpose. [ Footnote 3/1 ] The heart of the Texas system is embodied in an intricate series of statutory provisions which make up Chapter 16 of the Texas Education Code, Tex.Educ.Code Ann. § 16.01 et seq. See also Tex.Educ.Code Ann. § 15.01 et seq., and § 20.10 et seq. [ Footnote 3/2 ] The figures discussed are from Plaintiffs' Exhibits 7, 8, and 12. The figures are from the 1967-1968 school year. Because the various exhibits relied upon different attendance totals, the per-pupil results do not precisely correspond to the gross figures quoted. The disparity between districts, rather than the actual figures, is the important factor. [ Footnote 3/3 ] Brief for Appellants 11-13, 35. [ Footnote 3/4 ] Variable assessment practices are also revealed in this record. Appellants do not, however, contend that this factor accounts, even to a small extent, for the inter-district disparities. [ Footnote 3/5 ] The per-pupil funds received from state, federal, and other sources, while not precisely equal, do not account for the large differential and are not directly attacked in the present case. [ Footnote 3/6 ] The State of Texas appears to concede that the choice of whether or not to go beyond the state-provided minimum "is easier for some districts than for others. Those districts with large amounts of taxable property can produce more revenue at a lower tax rate and will provide their children with a more expensive education." Brief for Appellants 35. The State nevertheless insists that districts have a choice and that the people in each district have exercised that choice by providing some real property tax money over and above the minimum funds guaranteed by the State. Like the majority, however, the State fails to explain why the Equal Protection Clause is not violated, or how its goal of providing local government with realistic choices as to how much money should be expended on education is implemented, where the system makes it much more difficult for some than for others to provide additional educational funds and where, as a practical and legal matter, it is impossible for some districts to provide the educational budgets that other districts can make available from real property tax revenues. MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS concurs, dissenting. The Court today decides, in effect, that a State may constitutionally vary the quality of education which it offers its children in accordance with the amount of taxable wealth located in the school districts within which they reside. The majority's decision represents an abrupt departure from the mainstream of recent state and federal court decisions concerning the unconstitutionality of state educational financing schemes dependent upon taxable local wealth. [ Footnote 4/1 ] More unfortunately, though, the Page 411 U. S. 71 majority's holding can only be seen as a retreat from our historic commitment to equality of educational opportunity and as unsupportable acquiescence in a system which deprives children in their earliest years of the chance to reach their full potential as citizens. The Court does this despite the absence of any substantial justification for a scheme which arbitrarily channels educational resources in accordance with the fortuity of the amount of taxable wealth within each district. In my judgment, the right of every American to an equal start in life, so far as the provision of a state service as important as education is concerned, is far too vital to permit state discrimination on grounds as tenuous as those presented by this record. Nor can I accept the notion that it is sufficient to remit these appellees to the vagaries of the political process which, contrary to the majority's suggestion, has proved singularly unsuited to the task of providing a remedy for this discrimination. [ Footnote 4/2 ] I, for one, am unsatisfied with the hope of an ultimate "political" solution sometime in the indefinite future while, in the meantime, countless children unjustifiably receive inferior educations that "may affect their hearts Page 411 U. S. 72 and minds in a way unlikely ever to be undone." Brown v. Board of Education, 347 U. S. 483 , 347 U. S. 494 (1954). I must therefore respectfully dissent. I The Court acknowledges that "substantial inter-district disparities in school expenditures" exist in Texas, ante at 411 U. S. 15 , and that these disparities are "largely attributable to differences in the amounts of money collected through local property taxation," ante at 411 U. S. 16 . But instead of closely examining the seriousness of these disparities and the invidiousness of the Texas financing scheme, the Court undertakes an elaborate exploration of the efforts Texas has purportedly made to close the gaps between its districts in terms of levels of district wealth and resulting educational funding. Yet however praiseworthy Texas' equalizing efforts, the issue in this case is not whether Texas is doing its best to ameliorate the worst features of a discriminatory scheme, but rather whether the scheme itself is, in fact, unconstitutionally discriminatory in the face of the Fourteenth Amendment's guarantee of equal protection of the laws. When the Texas financing scheme is taken as a whole, I do not think it can be doubted that it produces a discriminatory impact on substantial numbers of the school-age children of the State of Texas. A Funds to support public education in Texas are derived from three sources: local ad valorem property taxes; the Federal Government; and the state government. [ Footnote 4/3 ] It is enlightening to consider these in order. Page 411 U. S. 73 Under Texas law, the only mechanism provided the local school district for raising new, unencumbered revenues is the power to tax property located within its boundaries. [ Footnote 4/4 ] At the same time, the Texas financing scheme effectively restricts the use of monies raised by local property taxation to the support of public education within the boundaries of the district in which they are raised, since any such taxes must be approved by a majority of the property-taxpaying voters of the district. [ Footnote 4/5 ] The significance of the local property tax element of the Texas financing scheme is apparent from the fact that it provides the funds to meet some 40% of the cost of public education for Texas as a whole. [ Footnote 4/6 ] Yet the amount of revenue that any particular Texas district can raise is dependent on two factors -- its tax rate and its amount of taxable property. The first factor is determined by the property-taxpaying voters of the district. [ Footnote 4/7 ] But, regardless of the enthusiasm of the local voters for public Page 411 U. S. 74 education, the second factor -- the taxable property wealth of the district -- necessarily restricts the district's ability to raise funds to support public education. [ Footnote 4/8 ] Thus, even though the voters of two Texas districts may be willing to make the same tax effort, the results for the districts will be substantially different if one is property rich, while the other is property poor. The necessary effect of the Texas local property tax is, in short, to favor property-rich districts and to disfavor property-poor ones. The seriously disparate consequences of the Texas local property tax, when that tax is considered alone, are amply illustrated by data presented to the District Court by appellees. These data included a detailed study of a sample of 110 Texas school districts [ Footnote 4/9 ] for the 1967-1968 school year conducted by Professor Joel S. Berke of Syracuse University's Educational Finance Policy Institute. Among other things, this study revealed that the 10 richest districts examined, each of which had more than $100,000 in taxable property per pupil, raised through local effort an average of $610 per pupil, whereas the four poorest districts studied, each of which had less than $10,000 in taxable property per pupil, were able Page 411 U. S. 75 to raise only an average of $63 per pupil. [ Footnote 4/10 ] And, as the Court effectively recognizes, ante at 411 U. S. 27 , this correlation between the amount of taxable property per pupil and the amount of local revenues per pupil holds true for the 96 districts in between the richest and poorest districts. [ Footnote 4/11 ] It is clear, moreover, that the disparity of per-pupil revenues cannot be dismissed as the result of lack of local effort -- that is, lower tax rates by property-poor districts. To the contrary, the data presented below indicate that the poorest districts tend to have the highest tax rates and the richest districts tend to have the lowest tax rates. [ Footnote 4/12 ] Yet, despite the apparent extra effort being made by the poorest districts, they are unable even to begin to match the richest districts in terms of the production of local revenues. For example, the 10 richest districts studied by Professor Berke were able to produce $585 per pupil with an equalized tax rate of 31� Page 411 U. S. 76 on $100 of equalized valuation, but the four poorest districts studied, with an equalized rate of 70� on $100 of equalized valuation, were able to produce only $60 per pupil. [ Footnote 4/13 ] Without more, this state-imposed system of educational funding presents a serious picture of widely varying treatment of Texas school districts, and thereby of Texas school children, in terms of the amount of funds available for public education. Nor are these funding variations corrected by the other aspects of the Texas financing scheme. The Federal Government provides funds sufficient to cover only some 10% of the total cost of public education in Texas. [ Footnote 4/14 ] Furthermore, while these federal funds are not distributed in Texas solely on a per-pupil basis, appellants do not here contend that they are used in such a way as to ameliorate significantly the widely varying consequences for Texas school districts and school children of the local property tax element of the state financing scheme. [ Footnote 4/15 ] State funds provide the remaining some 50% of the monies spent on public education in Texas. [ Footnote 4/16 ] Technically, they are distributed under two programs. The first is the Available School Fund, for which provision is made in the Texas Constitution. [ Footnote 4/17 ] The Available Page 411 U. S. 77 School Fund is composed of revenues obtained from a number of sources, including receipts from the state ad valorem property tax, one-fourth of all monies collected by the occupation tax, annual contributions by the legislature from general revenues, and the revenues derived from the Permanent School Fund. [ Footnote 4/18 ] For the 1970-1971 school year, the Available School Fund contained $296,000,000. The Texas Constitution requires that this money be distributed annually on a per capita basis [ Footnote 4/19 ] to the local school districts. Obviously, such a flat grant could not alone eradicate the funding differentials attributable to the local property tax. Moreover, today the Available School Fund is in reality simply one facet of the second state financing program, the Minimum Foundation School Program, [ Footnote 4/20 ] since each district's annual share of the Fund is deducted from the sum to which the district is entitled under the Foundation Program. [ Footnote 4/21 ] The Minimum Foundation School Program provides funds for three specific purposes: professional salaries, current operating expenses, and transportation expenses. [ Footnote 4/22 ] The State pays, on an overall basis, for approximately 80% of the cost of the Program; the remaining 20% is distributed among the local school districts under the Page 411 U. S. 78 Local Fund Assignment. [ Footnote 4/23 ] Each district's share of the Local Fund Assignment is determined by a complex "economic index" which is designed to allocate a larger share of the costs to property-rich districts than to property-poor districts. [ Footnote 4/24 ] Each district pays its share with revenues derived from local property taxation. The stated purpose of the Minimum Foundation School Program is to provide certain basic funding for each local Texas school district. [ Footnote 4/25 ] At the same time, the Program was apparently intended to improve, to some degree, the financial position of property-poor districts relative to property-rich districts, since -- through the use of the economic index -- an effort is made to charge a disproportionate share of the costs of the Program to rich districts. [ Footnote 4/26 ] It bears noting, however, that substantial criticism has been leveled at the practical effectiveness of the economic index system of local cost allocation. [ Footnote 4/27 ] In theory, the index is designed to ascertain the relative ability of each district to contribute to the Local Fund Assignment from local property taxes. Yet the index is not developed simply on the basis of each district's taxable wealth. It also takes into account the district's relative income from manufacturing, mining, and agriculture, its payrolls, and its scholastic population. [ Footnote 4/28 ] Page 411 U. S. 79 It is difficult to discern precisely how these latter factors are predictive of a district's relative ability to raise revenues through local property taxes. Thus, in 1966, one of the consultants who originally participated in the development of the Texas economic index adopted in 1949 told the Governor's Committee on Public School Education: "The Economic Index approach to evaluating local ability offers a little better measure than sheer chance, but not much." [ Footnote 4/29 ] Moreover, even putting aside these criticisms of the economic index as a device for achieving meaningful district wealth equalization through cost allocation, poor districts still do not necessarily receive more state aid than property-rich districts. For the standards which currently determine the amount received from the Foundation School Program by any particular district [ Footnote 4/30 ] favor property-rich districts. [ Footnote 4/31 ] Thus, focusing on the same Page 411 U. S. 80 Edgewood Independent and Alamo Heights School Districts which the majority uses for purposes of illustration, we find that, in 1967-1968, property-rich Alamo Heights, [ Footnote 4/32 ] which raised $333 per pupil on an equalized tax rate of 85� per $100 valuation, received $225 per pupil from the Foundation School Program, while property-poor Edgewood, [ Footnote 4/33 ] which raised only $26 per pupil with an equalized tax rate of $1.05 per $100 valuation, received only $222 per pupil from the Foundation School Program. [ Footnote 4/34 ] And, more recent data, which indicate that, for the 1970-1971 school year, Alamo Heights received $491 per pupil from Page 411 U. S. 81 the Program while Edgewood received only $356 per pupil, hardly suggest that the wealth gap between the districts is being narrowed by the State Program. To the contrary, whereas, in 1967-1968, Alamo Heights received only $3 per pupil, or about 1%, more than Edgewood in state aid, by 1970-1971, the gap had widened to a difference of $135 per pupil, or about 38%. [ Footnote 4/35 ] It was data of this character that prompted the District Court to observe that "the current [state aid] system tends to subsidize the rich at the expense of the poor, rather than the other way around." [ Footnote 4/36 ] 337 F. Supp. 280 , 282. And even the appellants go no further here than to venture that the Minimum Foundation School Program has "a mildly equalizing effect." [ Footnote 4/37 ] Despite these facts, the majority continually emphasizes how much state aid has, in recent years, been given Page 411 U. S. 82 to property-poor Texas school districts. What the Court fails to emphasize is the cruel irony of how much more state aid is being given to property-rich Texas school districts on top of their already substantial local property tax revenues. [ Footnote 4/38 ] Under any view, then, it is apparent that the state aid provided by the Foundation School Program fails to compensate for the large funding variations attributable to the local property tax element of the Texas financing scheme. And it is these stark differences in the treatment of Texas school districts and school children inherent in the Texas financing scheme, not the absolute amount of state aid provided to any particular school district, that are the crux of this case. There can, moreover, be no escaping the conclusion that the local property tax which is dependent upon taxable district property wealth is an essential feature of the Texas scheme for financing public education. [ Footnote 4/39 ] B The appellants do not deny the disparities in educational funding caused by variations in taxable district property wealth. They do contend, however, that whatever the differences in per-pupil spending among Texas districts, there are no discriminatory consequences for the children of the disadvantaged districts. They recognize that what is at stake in this case is the quality of the Page 411 U. S. 83 public education provided Texas children in the districts in which they live. But appellants reject the suggestion that the quality of education in any particular district is determined by money -- beyond some minimal level of funding which they believe to be assured every Texas district by the Minimum Foundation School Program. In their view, there is simply no denial of equal educational opportunity to any Texas school children as a result of the widely varying per-pupil spending power provided districts under the current financing scheme. In my view, though, even an unadorned restatement of this contention is sufficient to reveal its absurdity. Authorities concerned with educational quality no doubt disagree as to the significance of variations in per-pupil spending. [ Footnote 4/40 ] Indeed, conflicting expert testimony was presented to the District Court in this case concerning the effect of spending variations on educational achievement. [ Footnote 4/41 ] We sit, however, not to resolve disputes over educational theory, but to enforce our Constitution. It is an inescapable fact that, if one district has more funds available per pupil than another district, the Page 411 U. S. 84 former will have greater choice in educational planning than will the latter. In this regard, I believe the question of discrimination in educational quality must be deemed to be an objective one that looks to what the State provides its children, not to what the children are able to do with what they receive. That a child forced to attend an underfunded school with poorer physical facilities, less experienced teachers, larger classes, and a narrower range of courses than a school with substantially more funds -- and thus with greater choice in educational planning -- may nevertheless excel is to the credit of the child, not the State, cf. Missouri ex rel. Gaines v. Canada, 305 U. S. 337 , 305 U. S. 349 (1938). Indeed, who can ever measure for such a child the opportunities lost and the talents wasted for want of a broader, more enriched education? Discrimination in the opportunity to learn that is afforded a child must be our standard. Hence, even before this Court recognized its duty to tear down the barriers of state-enforced racial segregation in public education, it acknowledged that inequality in the educational facilities provided to students may be discriminatory state action as contemplated by the Equal Protection Clause. As a basis for striking down state-enforced segregation of a law school, the Court in Sweatt v. Painter, 339 U. S. 629 , 339 U. S. 633 -634 (1950), stated: "[W]e cannot find substantial equality in the educational opportunities offered white and Negro law students by the State. In terms of number of the faculty, variety of courses and opportunity for specialization, size of the student body, scope of the library, availability of law review and similar activities, the [whites-only] Law School is superior. . . . It is difficult to believe that one who had a free choice between these law schools would consider the question close. " Page 411 U. S. 85 See also McLaurin v. Oklahoma State Regents for Higher Education, 339 U. S. 637 (1950). Likewise, it is difficult to believe that, if the children of Texas had a free choice, they would choose to be educated in districts with fewer resources, and hence with more antiquated plants, less experienced teachers, and a less diversified curriculum. In fact, if financing variations are so insignificant to educational quality, it is difficult to understand why a number of our country's wealthiest school districts, which have no legal obligation to argue in support of the constitutionality of the Texas legislation, have nevertheless zealously pursued its cause before this Court. [ Footnote 4/42 ] The consequences, in terms of objective educational input, of the variations in district funding caused by the Texas financing scheme are apparent from the data introduced before the District Court. For example, in 1968-1969, 100% of the teachers in the property-rich Alamo Heights School District had college degrees. [ Footnote 4/43 ] By contrast, during the same school year, only 80.02% of the teachers had college degrees in the property poor Edgewood Independent school District. [ Footnote 4/44 ] Also, in 1968-1969, approximately 47% of the teachers in the Edgewood District were on emergency teaching permits, whereas only 11% of the teachers in Alamo Heights were on such permits. [ Footnote 4/45 ] This is undoubtedly a reflection of the fact that the top of Edgewood's teacher salary scale was Page 411 U. S. 86 approximately 80% of Alamo Heights'. [ Footnote 4/46 ] And, not surprisingly, the teacher-student ratio varies significantly between the two districts. [ Footnote 4/47 ] In other wards, as might be expected, a difference in the funds available to districts results in a difference in educational inputs available for a child's public education in Texas. For constitutional purposes, I believe this situation, which is directly attributable to the Texas financing scheme, raises a grave question of state-created discrimination in the provision of public education. Cf. Gaston County v. United States, 395 U. S. 285 , 395 U. S. 293 -294 (1969). At the very least, in view of the substantial inter-district disparities in funding and in resulting educational inputs shown by appellees to exist under the Texas financing scheme, the burden of proving that these disparities do not, in fact, affect the quality of children's education must fall upon the appellants. Cf. Hobson v. Hansen, 327 F. Supp. 844 , 860-861 (DC 1971). Yet appellants made no effort in the District Court to demonstrate that educational quality is not affected by variations in funding and in resulting inputs. And, in this Court, they have argued no more than that the relationship is ambiguous. This is hardly sufficient to overcome appellees' prima facie showing of state-created discrimination between the school children of Texas with respect to objective educational opportunity. Nor can I accept the appellants' apparent suggestion that the Texas Minimum Foundation School Program effectively eradicates any discriminatory effects otherwise resulting from the local property tax element of the Page 411 U. S. 87 Texas financing scheme. Appellants assert that, despite its imperfections, the Program "does guarantee an adequate education to every child." [ Footnote 4/48 ] The majority, in considering the constitutionality of the Texas financing scheme, seems to find substantial merit in this contention, for it tells us that the Foundation Program "was designed to provide an adequate minimum educational offering in every school in the State," ante at 411 U. S. 45 , and that the Program "assur[es] a basic education for every child," ante at 411 U. S. 49 . But I fail to understand how the constitutional problems inherent in the financing scheme are eased by the Foundation Program. Indeed, the precise thrust of the appellants' and the Court's remarks are not altogether clear to me. The suggestion may be that the state aid received via the Foundation Program sufficiently improves the position of property-poor districts vis-a-vis property-rich districts -- in terms of educational funds -- to eliminate any claim of inter-district discrimination in available educational resources which might otherwise exist if educational funding were dependent solely upon local property taxation. Certainly the Court has recognized that to demand precise equality of treatment is normally unrealistic, and thus minor differences inherent in any practical context usually will not make out a substantial equal protection claim. See, e.g., Mayer v. City of Chicago, 404 U. S. 189 , 404 U. S. 194 -195 (1971); Draper v. Washington, 372 U. S. 487 , 372 U. S. 495 -496 (1963); Bain Peanut Co. v. Pinson, 282 U. S. 499 , 282 U. S. 501 (1931). But, as has already been seen, we are hardly presented here with some de minimis claim of discrimination resulting from the play necessary in any functioning system; to the contrary, it is clear that the Foundation Program utterly fails to Page 411 U. S. 88 ameliorate the seriously discriminatory effects of the local property tax. [ Footnote 4/49 ] Alternatively, the appellants and the majority may believe that the Equal Protection Clause cannot be offended by substantially unequal state treatment of persons who are similarly situated so long as the State provides everyone with some unspecified amount of education which evidently is "enough." [ Footnote 4/50 ] The basis for such a novel view is far from clear. It is, of course, true that the Constitution does not require precise equality in the treatment of all persons. As Mr. Justice Frankfurter explained: "The equality at which the 'equal protection' clause aims is not a disembodied equality. The Fourteenth Amendment enjoins 'the equal protection of the laws,' and laws are not abstract propositions. . . . The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same." Tigner v. Texas, 310 U. S. 141 , 310 U. S. 147 (1940). See also Douglas v. California, 372 U. S. 353 , 372 U. S. 357 (1963); Goesaert v. Cleary, 335 U. S. 464 , 335 U. S. 466 (1948). Page 411 U. S. 89 But this Court has never suggested that, because some "adequate" level of benefits is provided to all, discrimination in the provision of services is therefore constitutionally excusable. The Equal Protection Clause is not addressed to the minimal sufficiency, but rather to the unjustifiable inequalities of state action. It mandates nothing less than that "all persons similarly circumstanced shall be treated alike." F. S. Royster Guano Co. v. Virginia, 253 U. S. 412 , 253 U. S. 415 (1920). Even if the Equal Protection Clause encompassed some theory of constitutional adequacy, discrimination in the provision of educational opportunity would certainly seem to be a poor candidate for its application. Neither the majority nor appellants inform us how judicially manageable standards are to be derived for determining how much education is "enough" to excuse constitutional discrimination. One would think that the majority would heed its own fervent affirmation of judicial self-restraint before undertaking the complex task of determining at large what level of education is constitutionally sufficient. Indeed, the majority's apparent reliance upon the adequacy of the educational opportunity assured by the Texas Minimum Foundation School Program seems fundamentally inconsistent with its own recognition that educational authorities are unable to agree upon what makes for educational quality, see ante at 411 U. S. 42 -43 and n. 86 and at 411 U. S. 47 n. 101. If, as the majority stresses, such authorities are uncertain as to the impact of various levels of funding on educational quality, I fail to see where it finds the expertise to divine that the particular levels of funding provided by the Program assure an adequate educational opportunity -- much less an education substantially equivalent in quality to that which a higher level of funding might provide. Certainly appellants' mere assertion before this Court of the adequacy of the education guaranteed by the Minimum Page 411 U. S. 90 Foundation School Program cannot obscure the constitutional implications of the discrimination in educational funding and objective educational inputs resulting from the local property tax -- particularly since the appellees offered substantial uncontroverted evidence before the District Court impugning the now much-touted "adequacy" of the education guaranteed by the Foundation Program. [ Footnote 4/51 ] In my view, then, it is inequality -- not some notion of gross inadequacy -- of educational opportunity that raises a question of denial of equal protection of the laws. I find any other approach to the issue unintelligible, and without directing principle. Here, appellees have made a substantial showing of wide variations in educational funding and the resulting educational opportunity afforded to the school children of Texas. This discrimination is, in large measure, attributable to significant disparities in the taxable wealth of local Texas school districts. This is a sufficient showing to raise a substantial question of discriminatory state action in violation of the Equal Protection Clause. [ Footnote 4/52 ] Page 411 U. S. 91 C Despite the evident discriminatory effect of the Texas financing scheme, both the appellants and the majority raise substantial questions concerning the precise character of the disadvantaged class in this case. The District Court concluded that the Texas financing scheme draws "distinction between groups of citizens depending upon the wealth of the district in which they live," and thus creates a disadvantaged class composed of persons living in property-poor districts. See 337 F. Supp. at 282. See also id. at 281. In light of the data introduced before the District Court, the conclusion that the school children of property-poor districts constitute a sufficient class for our purposes seems indisputable to me. Appellants contend, however, that, in constitutional terms, this case involves nothing more than discrimination against local school districts, not against individuals, since, on its face, the state scheme is concerned only with the provision of funds to local districts. The result of the Texas financing scheme, appellants suggest, is merely that some local districts have more available revenues for education; others have less. In that respect, Page 411 U. S. 92 they point out, the States have broad discretion in drawing reasonable distinctions between their political subdivisions. See Griffin v. County School Board of Prince Edward County, 377 U. S. 218 , 377 U. S. 231 (1964); McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 427 (1961); Salsbury v. Maryland, 346 U. S. 545 , 346 U. S. 550 -554 (1954). But this Court has consistently recognized that, where there is, in fact, discrimination against individual interests, the constitutional guarantee of equal protection of the laws is not inapplicable simply because the discrimination is based upon some group characteristic such as geographic location. See Gordon v. Lance, 403 U. S. 1 , 403 U. S. 4 (1971); Reynolds v. Sims, 377 U. S. 533 , 377 U.S. 565 -566 (1964); Gray v. Sanders, 372 U. S. 368 , 372 U. S. 379 (1963). Texas has chosen to provide free public education for all its citizens, and it has embodied that decision in its constitution. [ Footnote 4/53 ] Yet, having established public education for its citizens, the State, as a direct consequence of the variations in local property wealth endemic to Texas' financing scheme, has provided some Texas school children with substantially less resources for their education than others. Thus, while, on its face, the Texas scheme may merely discriminate between local districts, the impact of that discrimination falls directly upon the children whose educational opportunity is dependent upon where they happen to live. Consequently, the District Court correctly concluded that the Texas financing scheme discriminates, from a constitutional perspective, between school children on the basis of the amount of taxable property located within their local districts. In my Brother STEWART's view, however, such a description of the discrimination inherent in this case is apparently not sufficient, for it fails to define the "kind of objectively identifiable classes" that he evidently perceives Page 411 U. S. 93 to be necessary for a claim to be "cognizable under the Equal Protection Clause," ante at 411 U. S. 62 . He asserts that this is also the view of the majority, but he is unable to cite, nor have I been able to find, any portion of the Court's opinion which remotely suggests that there is no objectively identifiable or definable class in this case. In any event, if he means to suggest that an essential predicate to equal protection analysis is the precise identification of the particular individuals who compose the disadvantaged class, I fail to find the source from which he derives such a requirement. Certainly such precision is not analytically necessary. So long as the basis of the discrimination is clearly identified, it is possible to test it against the State's purpose for such discrimination -- whatever the standard of equal protection analysis employed. [ Footnote 4/54 ] This is clear from our decision only last Term in Bullock v. Carter, 405 U. S. 134 (1972), where the Court, in striking down Texas' primary filing fees as violative of equal protection, found no impediment to equal protection analysis in the fact that the members of the disadvantaged class could not be readily identified. The Court recognized that the filing fee system tended "to deny some voters the opportunity to vote for a candidate of their choosing; at the same time it gives the affluent the power to place on the ballot their own names or the names of persons they favor." Id. at 405 U. S. 144 . The Page 411 U. S. 94 Court also recognized that "[t]his disparity in voting power based on wealth cannot be described by reference to discrete and precisely defined segments of the community as is typical of inequities challenged under the Equal Protection Clause. . . ." Ibid. Nevertheless it concluded that "we would ignore reality were we not to recognize that this system falls with unequal weight on voters . . . according to their economic status." Ibid. The nature of the classification in Bullock was clear, although the precise membership of the disadvantaged class was not. This was enough in Bullock for purposes of equal protection analysis. It is enough here. It may be, though, that my Brother STEWART is not in fact, demanding precise identification of the membership of the disadvantaged class for purposes of equal protection analysis, but is merely unable to discern with sufficient clarity the nature of the discrimination charged in this case. Indeed, the Court itself displays some uncertainty as to the exact nature of the discrimination and the resulting disadvantaged class alleged to exist in this case. See ante at 411 U. S. 120 . It is, of course, essential to equal protection analysis to have a firm grasp upon the nature of the discrimination at issue. In fact, the absence of such a clear, articulable understanding of the nature of alleged discrimination in a particular instance may well suggest the absence of any real discrimination. But such is hardly the case here. A number of theories of discrimination have, to be sure, been considered in the course of this litigation. Thus, the District Court found that, in Texas, the poor and minority group members tend to live in property-poor districts, suggesting discrimination on the basis of both personal wealth and race. See 337 F. Supp. at 282 and n. 3. The Court goes to great lengths to discredit the data upon which the District Court relied, and thereby its conclusion that poor people live in property-poor districts. [ Footnote 4/55 ] Page 411 U. S. 95 Although I have serious doubts as to the correctness of the Court's analysis in rejecting the data submitted below, [ Footnote 4/56 ] I have no need to join issue on these factual disputes. Page 411 U. S. 96 I believe it is sufficient that the overarching form of discrimination in this case is between the school children of Texas on the basis of the taxable property wealth of the districts in which they happen to live. To understand both the precise nature of this discrimination and the parameters of the disadvantaged class, it is sufficient to consider the constitutional principle which appellees contend is controlling in the context of educational financing. In their complaint, appellees asserted that the Constitution does not permit local district wealth to be determinative of educational opportunity. [ Footnote 4/57 ] This is simply another way of saying, as the District Court concluded, that, consistent with the guarantee of equal protection of the laws, "the quality of public education may not be a function of wealth, other than the wealth of the state as a whole." 337 F. Supp. at 284. Under such a principle, the children of a district are excessively advantaged if that district has more taxable property per pupil than the average amount of taxable property per pupil considering the State as a whole. By contrast, the children of a district are disadvantaged if that district has less taxable property per pupil than the state average. The majority attempts to disparage such a definition of the disadvantaged class as the product of an "artificially defined level" of district wealth. Ante at 411 U. S. 28 . But such is clearly not the case, for this is the Page 411 U. S. 97 definition unmistakably dictated by the constitutional principle for which appellees have argued throughout the course of this litigation. And I do not believe that a clearer definition of either the disadvantaged class of Texas school children or the allegedly unconstitutional discrimination suffered by the members of that class under the present Texas financing scheme could be asked for, much less needed. [ Footnote 4/58 ] Whether this discrimination, against the school children of property-poor districts, inherent in the Texas financing scheme, is violative of the Equal Protection Clause is the question to which we must now turn. II To avoid having the Texas financing scheme struck down because of the inter-district variations in taxable property wealth, the District Court determined that it was insufficient for appellants to show merely that the State's scheme was rationally related to some legitimate state purpose; rather, the discrimination inherent in the scheme had to be shown necessary to promote a "compelling state interest" in order to withstand constitutional scrutiny. The basis for this determination was twofold: first, the financing scheme divides citizens on a wealth basis, a classification which the District Court viewed as highly suspect; and second, the discriminatory scheme directly affects what it considered to be a "fundamental interest," namely, education. This Court has repeatedly held that state discrimination which either adversely affects a "fundamental interest," see, e.g., Dunn v. Blumstein, 405 U. S. 330 , 405 U. S. 336 -342 (1972); Shapiro v. Thompson, 394 U. S. 618 , 394 U. S. 629 -631 (1969), or is based on a distinction of a suspect character, see, e.g., Graham v. Richardson, 403 U. S. 365 , 403 U. S. 372 Page 411 U. S. 98 (1971); McLaughlin v. Florida, 379 U. S. 184 , 379 U. S. 191 -192 (1964), must be carefully scrutinized to ensure that the scheme is necessary to promote a substantial, legitimate state interest. See, e.g., Dunn v. Blumstein, supra, at 405 U. S. 342 -343; Shapiro v. Thompson, supra, at 394 U. S. 634 . The majority today concludes, however, that the Texas scheme is not subject to such a strict standard of review under the Equal Protection Clause. Instead, in its view, the Texas scheme must be tested by nothing more than that lenient standard of rationality which we have traditionally applied to discriminatory state action in the context of economic and commercial matters. See, e.g., McGowan v. Maryland, 366 U.S. at 366 U. S. 425 -426; Morey v. Doud, 354 U. S. 457 , 354 U. S. 465 -466 (1957); F. S. Royster Guano Co. v. Virginia, 253 U.S. at 253 U. S. 415 ; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 , 220 U. S. 78 -79 (1911). By so doing, the Court avoids the telling task of searching for a substantial state interest which the Texas financing scheme, with its variations in taxable district property wealth, is necessary to further. I cannot accept such an emasculation of the Equal Protection Clause in the context of this case. A To begin, I must once more voice my disagreement with the Court's rigidified approach to equal protection analysis. See Dandridge v. Williams, 397 U. S. 471 , 397 U. S. 519 -521 (1970) (dissenting opinion); Richardson v. Belcher, 404 U. S. 78 , 404 U. S. 90 (1971) (dissenting opinion). The Court apparently seeks to establish today that equal protection cases fall into one of two neat categories which dictate the appropriate standard of review -- strict scrutiny or mere rationality. But this Court's decisions in the field of equal protection defy such easy categorization. A principled reading of what this Court has done reveals that it has applied a spectrum of standards in reviewing discrimination allegedly violative of the Equal Protection Page 411 U. S. 99 Clause. This spectrum clearly comprehends variations in the degree of care with which the Court will scrutinize particular classifications, depending, I believe, on the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn. I find, in fact, that many of the Court's recent decisions embody the very sort of reasoned approach to equal protection analysis for which I previously argued -- that is, an approach in which "concentration [is] placed upon the character of the classification in question, the relative importance to individuals in the class discriminated against of the governmental benefits that they do not receive, and the asserted state interests in support of the classification." Dandridge v. Williams, supra, at 397 U. S. 520 -521 (dissenting opinion). I therefore cannot accept the majority's labored efforts to demonstrate that fundamental interests, which call for strict scrutiny of the challenged classification, encompass only established rights which we are somehow bound to recognize from the text of the Constitution itself. To be sure, some interests which the Court has deemed to be fundamental for purposes of equal protection analysis are themselves constitutionally protected rights. Thus, discrimination against the guaranteed right of freedom of speech has called for strict judicial scrutiny. See Police Dept. of Chicago v. Mosley, 408 U. S. 92 (1972). Further, every citizen's right to travel interstate, although nowhere expressly mentioned in the Constitution, has long been recognized as implicit in the premises underlying that document: the right "was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created." United States v. Guest, 383 U. S. 745 , 383 U. S. 758 (1966). See also Crandall v. Nevada , 6 Wall. 35, 73 U. S. 48 (1868). Consequently, the Court has required that a state classification affecting the constitutionally Page 411 U. S. 100 protected right to travel must be "shown to be necessary to promote a compelling governmental interest." Shapiro v. Thompson, 394 U.S. at 394 U. S. 634 . But it will not do to suggest that the "answer" to whether an interest is fundamental for purposes of equal protection analysis is always determined by whether that interest "is a right . . . explicitly or implicitly guaranteed by the Constitution," ante at 411 U. S. 33 -34. [ Footnote 4/59 ] I would like to know where the Constitution guarantees the right to procreate, Skinner v. Oklahoma, 316 U. S. 535 541 (1942) or the right to vote in state elections, e.g., Reynolds v. Sims, 377 U. S. 533 (1964) or the right to an appeal from a criminal conviction, e.g., Griffin v. Illinois, 351 U. S. 12 (1956). These are instances in which, due to the importance of the interests at stake, the Court has displayed a strong concern with the existence of discriminatory state treatment. But the Court has never said or indicated that these are interests which independently enjoy full-blown constitutional protection. Thus, in Buck v. Bell, 274 U. S. 200 (1927), the Court refused to recognize a substantive constitutional guarantee of the right to procreate. Nevertheless, in Skinner v. Oklahoma, supra, at 316 U. S. 541 the Court, without impugning the continuing validity of Buck v. Bell, held that "strict scrutiny" of state discrimination affecting procreation "is essential," for "[m]arriage and procreation are fundamental to the very existence and survival of the race." Recently, in Roe v. Wade, 410 U. S. 113 , 410 U. S. 152 -154 (1973), Page 411 U. S. 101 the importance of procreation has, indeed, been explained on the basis of its intimate relationship with the constitutional right of privacy which we have recognized. Yet the limited stature thereby accorded any "right" to procreate is evident from the fact that, at the same time, the Court reaffirmed its initial decision in Buck v. Bell. See Roe v. Wade, supra, at 410 U. S. 154 . Similarly, the right to vote in state elections has been recognized as a "fundamental political right," because the Court concluded very early that it is "preservative of all rights." Yick Wo v. Hopkins, 118 U. S. 356 , 118 U. S. 370 (1886); see, e.g., Reynolds v. Sims, supra, at 377 U. S. 561 -562. For this reason, "this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction. " Dunn v. Blumstein, 405 U.S. at 405 U. S. 336 (emphasis added). The final source of such protection from inequality in the provision of the state franchise is, of course, the Equal Protection Clause. Yet it is clear that whatever degree of importance has been attached to the state electoral process when unequally distributed, the right to vote in state elections has itself never been accorded the stature of an independent constitutional guarantee. [ Footnote 4/60 ] See Oregon v. Mitchell, 400 U. S. 112 (1970); Kramer v. Union School District, 395 U. S. 621 , 395 U. S. 626 -629 (1969); Harper v. Virginia Bd. of Elections, 383 U. S. 663 , 383 U. S. 665 (1966). Page 411 U. S. 102 Finally, it is likewise "true that a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all." Griffin v. Illinois, 351 U.S. at 351 U. S. 18 . Nevertheless, discrimination adversely affecting access to an appellate process which a State has chosen to provide has been considered to require close judicial scrutiny. See, e.g., Griffin v. Illinois, supra; Douglas v. California, 372 U. S. 353 (1963). [ Footnote 4/61 ] The majority is, of course, correct when it suggests that the process of determining which interests are fundamental is a difficult one. But I do not think the problem is insurmountable. And I certainly do not accept the view that the process need necessarily degenerate into an unprincipled, subjective "picking-and-choosing" between various interests, or that it must involve this Court in creating "substantive constitutional rights in the name of guaranteeing equal protection of the laws," ante at 411 U. S. 33 . Although not all fundamental interests are constitutionally guaranteed, the determination of which interests are fundamental should be firmly rooted in the text of the Constitution. The task in every case should be to determine the extent to which constitutionally guaranteed rights are dependent on interests not mentioned in the Constitution. As the nexus between the specific constitutional guarantee and the nonconstitutional interest draws closer, the nonconstitutional interest becomes Page 411 U. S. 103 more fundamental and the degree of judicial scrutiny applied when the interest is infringed on a discriminatory basis must be adjusted accordingly. Thus, it cannot be denied that interests such as procreation, the exercise of the state franchise, and access to criminal appellate processes are not fully guaranteed to the citizen by our Constitution. But these interests have nonetheless been afforded special judicial consideration in the face of discrimination because they are, to some extent, interrelated with constitutional guarantees. Procreation is now understood to be important because of its interaction with the established constitutional right of privacy. The exercise of the state franchise is closely tied to basic civil and political rights inherent in the First Amendment. And access to criminal appellate processes enhances the integrity of the range of rights [ Footnote 4/62 ] implicit in the Fourteenth Amendment guarantee of due process of law. Only if we closely protect the related interests from state discrimination do we ultimately ensure the integrity of the constitutional guarantee itself. This is the real lesson that must be taken from our previous decisions involving interests deemed to be fundamental. The effect of the interaction of individual interests with established constitutional guarantees upon the degree of care exercised by this Court in reviewing state discrimination affecting such interests is amply illustrated by our decision last Term in Eisenstadt v. Baird, 405 U. S. 438 (1972). In Baird, the Court struck down as violative of the Equal Protection Clause a state statute which denied unmarried persons access to contraceptive devices on the same basis as married persons. The Court Page 411 U. S. 104 purported to test the statute under its traditional standard whether there is some rational basis for the discrimination effected. Id. at 405 U. S. 446 -447. In the context of commercial regulation, the Court has indicated that the Equal Protection Clause "is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective." See, e.g., McGowan v. Maryland, 366 U.S. at 366 U. S. 425 ; Kotch v. Board of River Port Pilot Comm'rs, 330 U. S. 552 , 330 U. S. 557 (1947). And this lenient standard is further weighted in the State's favor by the fact that "[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived [by the Court] to justify it." McGowan v. Maryland, supra, at 366 U. S. 426 . But, in Baird, the Court clearly did not adhere to these highly tolerant standards of traditional rational review. For although there were conceivable state interests intended to be advanced by the statute -- e.g., deterrence of premarital sexual activity and regulation of the dissemination of potentially dangerous articles -- the Court was not prepared to accept these interests on their face, but instead proceeded to test their substantiality by independent analysis. See 405 U.S. at 405 U. S. 449 -454. Such close scrutiny of the State's interests was hardly characteristic of the deference shown state classifications in the context of economic interests. See, e.g., Goesaert v. Cleary, 335 U. S. 464 (1948); Kotch v. Board of River Port Pilot Comm'rs, supra. Yet I think the Court's action was entirely appropriate, for access to and use of contraceptives bears a close relationship to the individual's constitutional right of privacy. See 405 U.S. at 405 U. S. 453 -454; id. at 405 U. S. 463 -464 (WHITE, J., concurring in result). See also Roe v. Wade, 410 U.S. at 410 U. S. 152 -153. A similar process of analysis with respect to the invidiousness of the basis on which a particular classification is drawn has also influenced the Court as to the Page 411 U. S. 105 appropriate degree of scrutiny to be accorded any particular case. The highly suspect character of classifications based on race, [ Footnote 4/63 ] nationality, [ Footnote 4/64 ] or alienage [ Footnote 4/65 ] is well established. The reasons why such classifications call for close judicial scrutiny are manifold. Certain racial and ethnic groups have frequently been recognized as "discrete and insular minorities" who are relatively powerless to protect their interests in the political process. See Graham v. Richardson, 403 U.S. at 403 U. S. 372 ; cf. United States v. Carolene Products Co., 304 U. S. 144 , 304 U. S. 152 -153, n. 4 (1938). Moreover, race, nationality, or alienage is, "'in most circumstances, irrelevant' to any constitutionally acceptable legislative purpose, Hirabayashi v. United States, 320 U. S. 81 , 320 U. S. 100 ." McLaughlin v. Florida, 379 U.S. at 379 U. S. 192 . Instead, lines drawn on such bases are frequently the reflection of historic prejudices, rather than legislative rationality. It may be that all of these considerations, which make for particular judicial solicitude in the face of discrimination on the basis of race, nationality, or alienage, do not coalesce -- or at least not to the same degree -- in other forms of discrimination. Nevertheless, these considerations have undoubtedly influenced the care with which the Court has scrutinized other forms of discrimination. In James v. Strange, 407 U. S. 128 (1972), the Court held unconstitutional a state statute which provided for recoupment from indigent convicts of legal defense fees paid by the State. The Court found that the statute impermissibly differentiated between indigent criminals in debt to the State and civil judgment debtors, since criminal debtors were denied various protective exemptions Page 411 U. S. 106 afforded civil judgment debtors. [ Footnote 4/66 ] The Court suggested that, in reviewing the statute under the Equal Protection Clause, it was merely applying the traditional requirement that there be " some rationality'" in the line drawn between the different types of debtors. I.d. at 407 U. S. 140 . Yet it then proceeded to scrutinize the statute with less than traditional deference and restraint. Thus, the Court recognized "that state recoupment statutes may betoken legitimate state interests" in recovering expenses and discouraging fraud. Nevertheless, MR. JUSTICE POWELL, speaking for the Court, concluded that "these interests are not thwarted by requiring more even treatment of indigent criminal defendants with other classes of debtors to whom the statute itself repeatedly makes reference. State recoupment laws, notwithstanding the state interests they may serve, need not blight in such discriminatory fashion the hopes of indigents for self-sufficiency and self-respect." Id. at 407 U. S. 141 -142. The Court, in short, clearly did not consider the problems of fraud and collection that the state legislature might have concluded were peculiar to indigent criminal defendants to be either sufficiently important or at least sufficiently substantiated to justify denial of the protective exemptions afforded to all civil judgment debtors, to a class composed exclusively of indigent criminal debtors. Similarly, in Reed v. Reed, 404 U. S. 71 (1971), the Court, in striking down a state statute which gave men Page 411 U. S. 107 preference over women when persons of equal entitlement apply for assignment as an administrator of a particular estate, resorted to a more stringent standard of equal protection review than that employed in cases involving commercial matters. The Court indicated that it was testing the claim of sex discrimination by nothing more than whether the line drawn bore "a rational relationship to a state objective," which it recognized as a legitimate effort to reduce the work of probate courts in choosing between competing applications for letters of administration. Id. at 404 U. S. 76 . Accepting such a purpose, the Idaho Supreme Court had thought the classification to be sustainable on the basis that the legislature might have reasonably concluded that, as a rule, men have more experience than women in business matters relevant to the administration of an estate. 93 Idaho 511, 514, 465 P.2d 635, 638 (1970). This Court, however, concluded that "[t]o give a mandatory preference to members of either sex over members of the other merely to accomplish the elimination of hearings on the merits is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment. . . ." 404 U.S. at 404 U. S. 76 . This Court, in other words, was unwilling to consider a theoretical and unsubstantiated basis for distinction -- however reasonable it might appear -- sufficient to sustain a statute discriminating on the basis of sex. James and Reed can only be understood as instances in which the particularly invidious character of the classification caused the Court to pause and scrutinize with more than traditional care the rationality of state discrimination. Discrimination on the basis of past criminality and on the basis of sex posed for the Court the specter of forms of discrimination which it implicitly recognized to have deep social and legal roots without necessarily having any basis in actual differences. Still, Page 411 U. S. 108 the Court's sensitivity to the invidiousness of the basis for discrimination is perhaps most apparent in its decisions protecting the interests of children born out of wedlock from discriminatory state action. See Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 (1972); Levy v. Louisiana, 391 U. S. 68 (1968). In Weber, the Court struck down a portion of a state workmen's compensation statute that relegated unacknowledged illegitimate children of the deceased to a lesser status with respect to benefits than that occupied by legitimate children of the deceased. The Court acknowledged the true nature of its inquiry in cases such as these: "What legitimate state interest does the classification promote? What fundamental personal rights might the classification endanger?" Id. at 406 U. S. 173 . Embarking upon a determination of the relative substantiality of the State's justifications for the classification, the Court rejected the contention that the classifications reflected what might be presumed to have been the deceased's preference of beneficiaries as "not compelling . . . where dependency on the deceased is a prerequisite to anyone's recovery. . . ." Ibid. Likewise, it deemed the relationship between the State's interest in encouraging legitimate family relationships and the burden placed on the illegitimates too tenuous to permit the classification to stand. Ibid. A clear insight into the basis of the Court's action is provided by its conclusion: "[I]mposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual -- as well as an unjust -- way of deterring the parent. Courts are powerless to prevent the social opprobrium suffered by these hapless children, but the Equal Protection Page 411 U. S. 109 Clause does enable us to strike down discriminatory laws relating to status of birth. . . ." Id. at 406 U. S. 175 -176. Status of birth, like the color of one's skin, is something which the individual cannot control, and should generally be irrelevant in legislative considerations. Yet illegitimacy has long been stigmatized by our society. Hence, discrimination on the basis of birth -- particularly when it affects innocent children -- warrants special judicial consideration. In summary, it seems to me inescapably clear that this Court has consistently adjusted the care with which it will review state discrimination in light of the constitutional significance of the interests affected and the invidiousness of the particular classification. In the context of economic interests, we find that discriminatory state action is almost always sustained, for such interests are generally far removed from constitutional guarantees. Moreover, "[t]he extremes to which the Court has gone in dreaming up rational bases for state regulation in that area may in many instances be ascribed to a healthy revulsion from the Court's earlier excesses in using the Constitution to protect interests that have more than enough power to protect themselves in the legislative halls." Dandridge v. Williams, 397 U.S. at 397 U. S. 520 (dissenting opinion). But the situation differs markedly when discrimination against important individual interests with constitutional implications and against particularly disadvantaged or powerless classes is involved. The majority suggests, however, that a variable standard of review would give this Court the appearance of a "super-legislature." Ante at 411 U. S. 31 . I cannot agree. Such an approach seems to me a part of the guarantees of our Constitution and of the historic experiences with oppression of and discrimination against discrete, powerless minorities which underlie that document. In truth, Page 411 U. S. 110 the Court itself will be open to the criticism raised by the majority so long as it continues on its present course of effectively selecting in private which cases will be afforded special consideration without acknowledging the true basis of its action. [ Footnote 4/67 ] Opinions such as those in Reed and James seem drawn more as efforts to shield, rather than to reveal, the true basis of the Court's decisions. Such obfuscated action may be appropriate to a political body such as a legislature, but it is not appropriate to this Court. Open debate of the bases for the Court's action is essential to the rationality and consistency of our decisionmaking process. Only in this way can we avoid the label of legislature and ensure the integrity of the judicial process. Nevertheless, the majority today attempts to force this case into the same category for purposes of equal protection analysis as decisions involving discrimination affecting commercial interests. By so doing, the majority ingles this case out for analytic treatment at odds with what seems to me to be the clear trend of recent decisions in this Court, and thereby ignores the constitutional importance of the interest at stake and the invidiousness of the particular classification, factors that call for far more than the lenient scrutiny of the Texas financing scheme which the majority pursues. Yet if the discrimination inherent in the Texas scheme is scrutinized with the care demanded by the interest and classification present in this case, the unconstitutionality of that scheme is unmistakable. B Since the Court now suggests that only interests guaranteed by the Constitution are fundamental for purposes of equal protection analysis, and since it rejects Page 411 U. S. 111 the contention that public education is fundamental, it follows that the Court concludes that public education is not constitutionally guaranteed. It is true that this Court has never deemed the provision of free public education to be required by the Constitution. Indeed, it has on occasion suggested that state-supported education is a privilege bestowed by a State on its citizens. See Missouri ex rel. Gaines v. Canada, 305 U.S. at 305 U. S. 349 . Nevertheless, the fundamental importance of education is amply indicated by the prior decisions of this Court, by the unique status accorded public education by our society, and by the close relationship between education and some of our most basic constitutional values. The special concern of this Court with the educational process of our country is a matter of common knowledge. Undoubtedly, this Court's most famous statement on the subject is that contained in Brown v. Board of Education, 347 U.S. at 347 U. S. 493 : "Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. . . ." Only last Term, the Court recognized that "[p]roviding public schools ranks at the very apex of the function of a State." Wisconsin v. Yoder, 406 U. S. 205 , 406 U. S. 213 (1972). This is clearly borne out by the fact that, in 48 Page 411 U. S. 112 of our 50 States, the provision of public education is mandated by the state constitution. [ Footnote 4/68 ] No other state function is so uniformly recognized [ Footnote 4/69 ] as an essential element of our society's wellbeing. In large measure, the explanation for the special importance attached to education must rest, as the Court recognized in Yoder, id. at 406 U. S. 221 , on the facts that "some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system . . . ," and that "education prepares individuals to be self-reliant and self-sufficient participants in society." Both facets of this observation are suggestive of the substantial relationship which education bears to guarantees of our Constitution. Education directly affects the ability of a child to exercise his First Amendment rights, both as a source and as a receiver of information and ideas, whatever interests he may pursue in life. This Court's decision in Sweezy v. New Hampshire, 354 U. S. 234 , 354 U. S. 250 (1957), speaks of the right of students "to inquire, to study and to evaluate, to gain new maturity and understanding. . . ." Thus, we have not casually described the classroom as the " marketplace of ideas.'" Keyishian v. Board of Regents, 385 U. S. 589 , 385 U. S. 603 (1967). The opportunity for formal education may not necessarily be the essential determinant of an individual's ability to enjoy throughout his life the rights of free speech and association Page 411 U. S. 113 guaranteed to him by the First Amendment. But such an opportunity may enhance the individual's enjoyment of those rights not only during, but also following, school attendance. Thus, in the final analysis, "the pivotal position of education to success in American society and its essential role in opening up to the individual the central experiences of our culture lend it an importance that is undeniable. [ Footnote 4/70 ]" Of particular importance is the relationship between education and the political process. "Americans regard the public schools as a most vital civic institution for the preservation of a democratic system of government." Abington School Dist. v. Schempp, 374 U. S. 203 , 374 U. S. 230 (1963) (BRENNAN, J., concurring). Education serves the essential function of instilling in our young an understanding of and appreciation for the principles and operation of our governmental processes. [ Footnote 4/71 ] Education may instill the interest and provide the tools necessary for political discourse and debate. Indeed, it has frequently been suggested that education is the dominant factor affecting political consciousness and participation. [ Footnote 4/72 ] A system of "[c]ompetition in ideas and governmental Page 411 U. S. 114 policies is at the core of our electoral process and of the First Amendment freedoms." Williams v. Rhodes, 393 U. S. 23 , 393 U. S. 32 (1968). But of most immediate and direct concern must be the demonstrated effect of education on the exercise of the franchise by the electorate. The right to vote in federal elections is conferred by Art. I, § 2, and the Seventeenth Amendment of the Constitution, and access to the state franchise has been afforded special protection because it is "preservative of other basic civil and political rights," Reynolds v. Sims, 377 U.S. at 377 U. S. 562 . Data from the Presidential Election of 1968 clearly demonstrate a direct relationship between participation in the electoral process and level of educational attainment, [ Footnote 4/73 ] and, as this Court recognized in Gaston County v. United States, 395 U. S. 285 , 395 U. S. 296 (1969), the quality of education offered may Page 411 U. S. 115 influence a child's decision to "enter or remain in school." It is this very sort of intimate relationship between a particular personal interest and specific constitutional guarantees that has heretofore caused the Court to attach special significance, for purposes of equal protection analysis, to individual interests such as procreation and the exercise of the state franchise. [ Footnote 4/74 ] While ultimately disputing little of this, the majority seeks refuge in the fact that the Court has "never presumed to possess either the ability or the authority to guarantee to the citizenry the most effective speech or the most informed electoral choice." Ante at 411 U. S. 36 . This serves only to blur what is in fact, at stake. With due respect, the issue is neither provision of the most effective speech nor of the most informed vote. Appellees Page 411 U. S. 116 do not now seek the best education Texas might provide. They do seek, however, an end to state discrimination resulting from the unequal distribution of taxable district property wealth that directly impairs the ability of some districts to provide the same educational opportunity that other districts can provide with the same or even substantially less tax effort. The issue is, in other words, one of discrimination that affects the quality of the education which Texas has chosen to provide its children; and, the precise question here is what importance should attach to education for purposes of equal protection analysis of that discrimination. As this Court held in Brown v. Board of Education, 347 U.S. at 347 U. S. 493 , the opportunity of education, "where the state has undertaken to provide it, is a right which must be made available to all on equal terms." The factors just considered, including the relationship between education and the social and political interests enshrined within the Constitution, compel us to recognize the fundamentality of education and to scrutinize with appropriate care the bases for state discrimination affecting equality of educational opportunity in Texas' school districts [ Footnote 4/75 ] -- a conclusion Page 411 U. S. 117 which is only strengthened when we consider the character of the classification in this case. C The District Court found that, in discriminating between Texas school children on the basis of the amount of taxable property wealth located in the district in which they live, the Texas financing scheme created a form of wealth discrimination. This Court has frequently recognized that discrimination on the basis of wealth may create a classification of a suspect character, and thereby call for exacting judicial scrutiny. See, e.g., Griffin v. Illinois, 351 U. S. 12 (1956); Douglas v. California, 372 U. S. 353 (1963); McDonald v. Board of Election Comm'rs of Chicago, 394 U. S. 802 , 394 U. S. 807 (1969). The majority, however, considers any wealth classification in this case to lack certain essential characteristics which it contends are common to the instances of wealth discrimination that this Court has heretofore recognized. We are told that, in every prior case involving a wealth classification, the members of the disadvantaged class have "shared two distinguishing characteristics: because Page 411 U. S. 118 of their impecunity, they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit." Ante at 411 U. S. 20 . I cannot agree. The Court's distinctions may be sufficient to explain the decisions in Williams v. Illinois, 399 U. S. 235 (1970); Tate v. Short, 401 U. S. 395 (1971); and even Bullock v. Carter, 405 U. S. 134 (1972). But they are not, in fact, consistent with the decisions in Harper v. Virginia Bd. of Elections, 383 U. S. 663 (1966), or Griffin v. Illinois, supra, or Douglas v. California, supra. In Harper, the Court struck down, as violative of the Equal Protection Clause, an annual Virginia poll tax of $1.50, payment of which by persons over the age of 21 was a prerequisite to voting in Virginia elections. In part, the Court relied on the fact that the poll tax interfered with a fundamental interest -- the exercise of the state franchise. In addition, though, the Court emphasized that "[l]ines drawn on the basis of wealth or property . . . are traditionally disfavored." 383 U.S. at 383 U. S. 668 . Under the first part of the theory announced by the majority, the disadvantaged class in Harper, in terms of a wealth analysis, should have consisted only of those too poor to afford the $1.50 necessary to vote. But the Harper Court did not see it that way. In its view, the Equal Protection Clause "bars a system which excludes [from the franchise] those unable to pay a fee to vote or who fail to pay. " Ibid. (Emphasis added.) So far as the Court was concerned, the "degree of the discrimination [was] irrelevant." Ibid. Thus, the Court struck down the poll tax in toto; it did not order merely that those too poor to pay the tax be exempted; complete impecunity clearly was not determinative of the limits of the disadvantaged class, nor was it essential to make an equal protection claim. Page 411 U. S. 119 Similarly, Griffin and Douglas refute the majority's contention that we have in the past required an absolute deprivation before subjecting wealth classifications to strict scrutiny. The Court characterizes Griffin as a case concerned simply with the denial of a transcript or an adequate substitute therefor, and Douglas as involving the denial of counsel. But, in both cases, the question was, in fact, whether "a State that [grants] appellate review can do so in a way that discriminates against some convicted defendants on account of their poverty." Griffin v. Illinois, supra, at 351 U. S. 18 (emphasis added). In that regard, the Court concluded that inability to purchase a transcript denies "the poor an adequate appellate review accorded to all who have money enough to pay the costs in advance," ibid. (emphasis added), and that "the type of an appeal a person is afforded . . . hinges upon whether or not he can pay for the assistance of counsel," Douglas v. California, supra, at 372 U. S. 355 -356 (emphasis added). The right of appeal itself was not absolutely denied to those too poor to pay, but, because of the cost of a transcript and of counsel, the appeal was a substantially less meaningful right for the poor than for the rich. [ Footnote 4/76 ] It was on these terms that the Court found a denial of equal protection, and those terms clearly encompassed degrees of discrimination on the Page 411 U. S. 120 basis of wealth which do not amount to outright denial of the affected right or interest. [ Footnote 4/77 ] This is not to say that the form of wealth classification in this case does not differ significantly from those recognized in the previous decisions of this Court. Our prior eases have dealt essentially with discrimination on the basis of personal wealth. [ Footnote 4/78 ] Here, by contrast, the Page 411 U. S. 121 children of the disadvantaged Texas school districts are being discriminated against not necessarily because of their personal wealth or the wealth of their families, but because of the taxable property wealth of the residents of the district in which they happen to live. The appropriate question, then, is whether the same degree of judicial solicitude and scrutiny that has previously been afforded wealth classifications is warranted here. As the Court points out, ante at 411 U. S. 28 -29, no previous decision has deemed the presence of just a wealth classification to be sufficient basis to call forth rigorous judicial scrutiny of allegedly discriminatory state action. Compare, e.g., Harper v. Virginia Bd. of Elections, supra, with, e.g., James v. Valtierra, 402 U. S. 137 (1971). That wealth classifications alone have not necessarily been considered to bear the same high degree of suspectness as have classifications based on, for instance, race or alienage may be explainable on a number of grounds. The "poor" may not be seen as politically powerless as certain discrete and insular minority groups. [ Footnote 4/79 ] Personal poverty may entail much the same social stigma as historically attached to certain racial or ethnic groups. [ Footnote 4/80 ] But personal poverty is not a permanent disability; its shackles may be escaped. Perhaps most importantly, though, personal wealth may not necessarily share the general irrelevance as a basis for legislative action that race or nationality is recognized to have. While the "poor" have frequently been a Page 411 U. S. 122 legally disadvantaged group, [ Footnote 4/81 ] it cannot be ignored that social legislation must frequently take cognizance of the economic status of our citizens. Thus, we have generally gauged the invidiousness of wealth classifications with an awareness of the importance of the interests being affected and the relevance of personal wealth to those interests. See Harper v. Virginia Bd. of Elections, supra. When evaluated with these considerations in mind, it seems to me that discrimination on the basis of group wealth in this case likewise calls for careful judicial scrutiny. First, it must be recognized that, while local district wealth may serve other interests, [ Footnote 4/82 ] it bears no relationship whatsoever to the interest of Texas school children in the educational opportunity afforded them by the State of Texas. Given the importance of that interest, we must be particularly sensitive to the invidious characteristics of any form of discrimination that is not clearly intended to serve it, as opposed to some other distinct state interest. Discrimination on the basis of group wealth may not, to be sure, reflect the social stigma frequently attached to personal poverty. Nevertheless, insofar as group wealth discrimination involves wealth over which the disadvantaged individual has no significant control, [ Footnote 4/83 ] it represents in fact, a more serious basis of discrimination than does personal wealth. For such discrimination Page 411 U. S. 123 is no reflection of the individual's characteristics or his abilities. And thus -- particularly in the context of a disadvantaged class composed of children -- we have previously treated discrimination on a basis which the individual cannot control as constitutionally disfavored. Cf. Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 (1972); Levy v. Louisiana, 391 U. S. 68 (1968). The disability of the disadvantaged class in this case extends as well into the political processes upon which we ordinarily rely a adequate for the protection and promotion of all interests. Here legislative reallocation of the State's property wealth must be sought in the face of inevitable opposition from significantly advantaged districts that have a strong vested interest in the preservation of the status quo, a problem not completely dissimilar to that faced by underrepresented districts prior to the Court's intervention in the process of reapportionment, [ Footnote 4/84 ] see Baker v. Carr, 369 U. S. 186 , 369 U. S. 191 -192 (1962). Nor can we ignore the extent to which, in contrast to our prior decisions, the State is responsible for the wealth discrimination in this instance. Griffin, Douglas, Williams, Tate, and our other prior cases have dealt with discrimination on the basis of indigency which was attributable to the operation of the private sector. But we have no such simple de facto wealth discrimination here. The means for financing public education in Texas are selected and specified by the State. It is the State that has created local school districts, and tied educational funding to the local property tax, and thereby to local district wealth. At the same time, governmentally Page 411 U. S. 124 imposed land use controls have undoubtedly encouraged and rigidified natural trends in the allocation of particular areas for residential or commercial use, [ Footnote 4/85 ] and thus determined each district's amount of taxable property wealth. In short, this case, in contrast to the Court's previous wealth discrimination decisions, can only be seen as "unusual in the extent to which governmental action is the cause of the wealth classifications." [ Footnote 4/86 ] In the final analysis, then, the invidious characteristics of the group wealth classification present in this case merely serve to emphasize the need for careful judicial scrutiny of the State's justifications for the resulting inter-district discrimination in the educational opportunity afforded to the school children of Texas. D The nature of our inquiry into the justifications for state discrimination is essentially the same in all equal protection cases: we must consider the substantiality of the state interests sought to be served, and we must scrutinize the reasonableness of the means by which the State has sought to advance its interests. See Police Dept. of Chicago v. Mosley, 408 U.S. at 408 U. S. 95 . Differences in the application of this test are, in my view, a function of the constitutional importance of the interests at stake and the invidiousness of the particular classification. In terms of the asserted state interests, the Court has indicated that it will require, for instance, a "compelling," Shapiro v. Thompson, 394 U.S. at 394 U. S. 634 , or a "substantial" Page 411 U. S. 125 or "important," Dunn v. Blumstein, 405 U.S. at 405 U. S. 343 , state interest to justify discrimination affecting individual interests of constitutional significance. Whatever the differences, if any, in these descriptions of the character of the state interest necessary to sustain such discrimination, basic to each is, I believe, a concern with the legitimacy and the reality of the asserted state interests. Thus, when interests of constitutional importance are at stake, the Court does not stand ready to credit the State's classification with any conceivable legitimate purpose, [ Footnote 4/87 ] but demands a clear showing that there are legitimate state interests which the classification was in fact, intended to serve. Beyond the question of the adequacy of the State's purpose for the classification, the Court traditionally has become increasingly sensitive to the means by which a State chooses to act as its action affects more directly interests of constitutional significance. See, e.g., United States v. Robel, 389 U. S. 258 , 389 U. S. 265 (1967); Shelton v. Tucker, 364 U. S. 479 , 364 U. S. 488 (1960). Thus, by now, "less restrictive alternatives" analysis is firmly established in equal protection jurisprudence. See Dunn v. Blumstein, supra, at 405 U. S. 343 ; Kramer v. Union School District, 395 U.S. at 395 U. S. 627 . It seems to me that the range of choice we are willing to accord the State in selecting the means by which it will act, and the care with which we scrutinize the effectiveness of the means which the State selects, also must reflect the constitutional importance of the interest affected and the invidiousness of the particular classification. Here, both the nature of the interest and the classification dictate close judicial scrutiny of the purposes which Texas seeks to serve with its present educational financing Page 411 U. S. 126 scheme and of the means it has selected to serve that purpose. The only justification offered by appellants to sustain the discrimination in educational opportunity caused by the Texas financing scheme is local educational control. Presented with this justification, the District Court concluded that "[n]ot only are defendants unable to demonstrate compelling state interests for their classifications based upon wealth, they fail even to establish a reasonable basis for these classifications." 337 F. Supp. at 284. I must agree with this conclusion. At the outset, I do not question that local control of public education, as an abstract matter, constitutes a very substantial state interest. We observed only last Term that "[d]irect control over decisions vitally affecting the education of one's children is a need that is strongly felt in our society." Wright v. Council of the City of Emporia, 407 U. S. 451 , 407 U. S. 469 (1972). See also id. at 407 U. S. 477 -478 (BURGER, C.J., dissenting). The State's interest in local educational control -- which certainly includes questions of educational funding -- has deep roots in the inherent benefits of community support for public education. Consequently, true state dedication to local control would present, I think, a substantial justification to weigh against simply inter-district variations in the treatment of a State's school children. But I need not now decide how I might ultimately strike the balance were we confronted with a situation where the State's sincere concern for local control inevitably produced educational inequality. For, on this record, it is apparent that the State's purported concern with local control is offered primarily as an excuse, rather than as a justification for inter-district inequality. In Texas, state-wide laws regulate in fact, the most minute details of local public education. For example, Page 411 U. S. 127 the State prescribes required courses. [ Footnote 4/88 ] All textbooks must be submitted for state approval, [ Footnote 4/89 ] and only approved textbooks may be used. [ Footnote 4/90 ] The State has established the qualifications necessary for teaching in Texas public schools and the procedures for obtaining certification. [ Footnote 4/91 ] The State has even legislated on the length of the school day. [ Footnote 4/92 ] Texas' own courts have said: "As a result of the acts of the Legislature, our school system is not of mere local concern, but it is state-wide. While a school district is local in territorial limits, it is an integral part of the vast school system which is coextensive with the confines of the State of Texas." Treadaway v. Whitney Independent School District, 205 S.W.2d 97, 99 Tex.Ct. Civ.App. (1947). See also El Dorado Independent School District v. Tisdale, 3 S.W.2d 420, 422 (Tex. Comm'n App. 1928). Moreover, even if we accept Texas' general dedication to local control in educational matters, it is difficult to find any evidence of such dedication with respect to fiscal matters. It ignores reality to suggest -- as the Court does, ante at 411 U. S. 49 -50 -- that the local property tax element of the Texas financing scheme reflects a conscious legislative effort to provide school districts with local fiscal control. If Texas had a system truly dedicated to local fiscal control, one would expect the quality of the educational opportunity provided in each district to vary with the decision of the voters in that district as Page 411 U. S. 128 to the level of sacrifice they wish to make for public education. In fact, the Texas scheme produces precisely the opposite result. Local school districts cannot choose to have the best education in the State by imposing the highest tax rate. Instead, the quality of the educational opportunity offered by any particular district is largely determined by the amount of taxable property located in the district -- a factor over which local voters can exercise no control. The study introduced in the District Court showed a direct inverse relationship between equalized taxable district property wealth and district tax effort with the result that the property-poor districts making the highest tax effort obtained the lowest per-pupil yield. [ Footnote 4/93 ] The implications of this situation for local choice are illustrated by again comparing the Edgewood and Alamo Heights School Districts. In 1967-1968, Edgewood, after contributing its share to the Local Fund Assignment, raised only $26 per pupil through its local property tax, whereas Alamo Heights was able to raise $333 per pupil. Since the funds received through the Minimum Foundation School Program are to be used only for minimum professional salaries, transportation costs, and operating expenses, it is not hard to see the lack of local choice with respect to higher teacher salaries to attract more and better teachers, physical facilities, library books, and facilities, special courses, or participation in special state and federal matching funds programs -- under which a property-poor district such as Edgewood is forced to labor. [ Footnote 4/94 ] In fact, because of the difference in taxable local property wealth, Edgewood would have to tax itself almost nine times as heavily to obtain the same Page 411 U. S. 129 yield as Alamo Heights. [ Footnote 4/95 ] At present, then, local control is a myth for many of the local school districts in Texas. As one district court has observed, "rather than reposing in each school district the economic power to fix its own level of per pupil expenditure, the State has so arranged the structure as to guarantee that some districts will spend low (with high taxes) while others will spend high (with low taxes)." Van Dusatz v. Hatfield, 334 F. Supp. 870 , 876 (Minn.1971). In my judgment, any substantial degree of scrutiny of the operation of the Texas financing scheme reveals that the State has selected means wholly inappropriate to secure its purported interest in assuring its school districts local fiscal control. [ Footnote 4/96 ] At the same time, appellees have pointed out a variety of alternative financing schemes which may serve the State's purported interest in local control as well as, if not better than, the present scheme without the current impairment of the educational opportunity of vast numbers of Texas school children. [ Footnote 4/97 ] I see no need, however, to explore the practical or constitutional merits of those suggested alternatives at this time, for, whatever their positive or negative features, experience Page 411 U. S. 130 with the present financing scheme impugns any suggestion that it constitutes a serious effort to provide local fiscal control. If, for the sake of local education control, this Court is to sustain inter-district discrimination in the educational opportunity afforded Texas school children, it should require that the State present something more than the mere sham now before us. III In conclusion, it is essential to recognize that an end to the wide variations in taxable district property wealth inherent in the Texas financing scheme would entail none of the untoward consequences suggested by the Court or by the appellants. First, affirmance of the District Court's decisions would hardly sound the death knell for local control of education. It would mean neither centralized decisionmaking nor federal court intervention in the operation of public schools. Clearly, this suit has nothing to do with local decisionmaking with respect to educational policy or even educational spending. It involves only a narrow aspect of local control -- namely, local control over the raising of educational funds. In fact, in striking down inter-district disparities in taxable local wealth, the District Court took the course which is most likely to make true local control over educational decisionmaking a reality for all Texas school districts. Nor does the District Court's decision even necessarily eliminate local control of educational funding. The District Court struck down nothing more than the continued inter-district wealth discrimination inherent in the present property tax. Both centralized and decentralized plans for educational funding not involving such inter-district discrimination have been put forward. [ Footnote 4/98 ] The choice Page 411 U. S. 131 among these or other alternatives would remain with the State, not with the federal courts. In this regard, it should be evident that the degree of federal intervention Page 411 U. S. 132 in matters of local concern would be substantially less in this context than in previous decisions in which we have been asked effectively to impose a particular scheme upon the States under the guise of the Equal Protection Clause. See, e.g., Dandridge v. Williams, 397 U. S. 471 (1970); cf. Richardson v. Belcher, 404 U. S. 78 (1971). Still, we are told that this case requires us "to condemn the State's judgment in conferring on political subdivisions the power to tax local property to supply revenues for local interests." Ante at 411 U. S. 40 . Yet no one in the course of this entire litigation has ever questioned the constitutionality of the local property tax as a device for raising educational funds. The District Court's decision, at most, restricts the power of the State to make educational funding dependent exclusively upon local property taxation so long as there exists inter-district disparities in taxable property wealth. But it hardly eliminates the local property tax as a source of educational funding or as a means of providing local fiscal control. [ Footnote 4/99 ] The Court seeks solace for its action today in the possibility of legislative reform. The Court's suggestions of legislative redress and experimentation will doubtless be of great comfort to the school children of Texas' disadvantaged districts, but, considering the vested interests of wealthy school districts in the preservation of the status quo, they are worth little more. The possibility of legislative action is, in all events, no answer to this Court's duty under the Constitution to eliminate unjustified state discrimination. In this case, we have been presented with an instance of such discrimination, in a particularly invidious form, against an individual interest of large constitutional and practical importance. To support the demonstrated discrimination in the provision Page 411 U. S. 133 of educational opportunity the State has offered a justification which, on analysis, takes on, at best, an ephemeral character. Thus, I believe that the wide disparities in taxable district property wealth inherent in the local property tax element of the Texas financing scheme render that scheme violative of the Equal Protection Clause. [ Footnote 4/100 ] I would therefore affirm the judgment of the District Court. Page 411 U. S. 134 | 411 U.S. 1 app1| bwm: APPENDIX I TO OPINION OF MARSHALL, J., DISSENTING REVENUES OF TEXAS SCHOOL DISTRICTS CATEGORIZED BY EQUALIZED PROPERTY VALUES AND SOURCE OF FUNDS CATEGORIES Total Revenues State and Local Per Pupil Market Value of Revenues Per Federal (State-Local- Taxable Property Local Revenues State Revenues Pupil (Columns Revenues Federal, Columns Per Pupil Per Pupil Per Pupil 1 and 2) Per Pupil 1, 2 and 4) Above $100,000 $610 $205 $815 $ 41 $856 (10 districts) $100,000-$50,000 287 257 544 66 610 (26 districts) $50,000-$30,000 224 260 484 45 529 (30 districts) $30,000-$10,000 166 295 461 85 546 (40 districts) Below $10,000 63 243 306 135 441 (4 districts) ewm: Based on Table V to affidavit of Joel S. Berke, App. 208, which was prepared on the basis of a sample of 110 selected Texas school districts from data for the 1967-1968 school year. Page 411 U. S. 135 | 411 U.S. 1 app2| APPENDIX II TO OPINION OF MARSHALL, J., DISSENTING TEXAS SCHOOL DISTRICTS CATEGORIZED BY EQUALIZED PROPERTY VALUES, EQUALIZED TAX RATES, AND YIELD OF RATES CATEGORIES EQUALIZED YIELD PER PUPIL Market Value of TAX (Equalized Rate Taxable Property RATES Applied to District Per Pupil ON $100 Market Value) Above $100,000 $.31 $585 (10 districts) $100,000-$50,000 .38 262 (26 districts) $50,000-$30,000 .55 213 (30 districts) $30,000-$10,000 .72 162 (40 districts) Below $10,000 .70 60 (4 districts) Based on Table II to affidavit of Joel S. Berke, App. 205, which was prepared on the basis of a sample of 110 selected Texas school districts from data for the 1967-1968 school year. Page 411 U. S. 136 | 411 U.S. 1 app3| bwm: APPENDIX III TO OPINION OF MARSHALL, J., DISSENTING SELECTED BEXAR COUNTY, TEXAS, SCHOOL DISTRICTS CATEGORIZED BY EQUALIZED PROPERTY VALUATION AND SELECTED INDICATORS OF EDUCATIONAL QUALITY Selected Districts Per Cent of Per Cent of From High to Low by Professional Teachers With Total Staff Student- Professional Market Valuation Salaries Per College Masters With Emergen- Counselor Personnel Per Pupil Pupil Degrees Degrees cy Permits Ratios Per 100 Pupils ALAMO HEIGHTS $372 100% 40% 11% 645 4.80 NORTH EAST 288 99 24 7 1,516 4.50 SAN ANTONIO 251 98 29 17 2,320 4.00 NORTH SIDE 258 99 20 17 1,493 4.30 HARLANDALE 243 94 21 22 1,800 4.00 EDGEWOOD 209 96 15 47 3,098 4.06 ewm: Based on Table XI to affidavit of Joel S. Berke,App. 220, which was prepared on the basis of a sample of six selected school districts located in Bexar County, Texas, from data for the 1967-1968 school year. Page 411 U. S. 137 | 411 U.S. 1 app4| APPENDIX IV TO OPINION OF MARSHALL, J., DISSENTING BEXAR COUNTY, TEXAS, SCHOOL DISTRICTS RANKED BY EQUALIZED PROPERTY VALUE AND TAX RATE REQUIRED TO GENERATE HIGHEST YIELD IN ALL DISTRICTS Districts Ranked from Tax Rate Per $100 High to Low Market Needed to Equal Valuation Per Pupil Highest Yield ALAMO HEIGHTS $0.68 JUDSON 1.04 EAST CENTRAL 1.17 NORTH EAST 1.21 SOMERSET 1.32 SAN ANTONIO 1.56 NORTH SIDE 1.65 SOUTH WEST 2.10 SOUTH SIDE 3.03 HARLANDALE 3.20 SOUTH SAN ANTONIO 5.77 EDGEWOOD 5.76 Based on Table IX to affidavit of Joel S. Berke, App. 218, which was prepared on the basis of the 12 school districts located in Bexar County, Texas, from data from the 1967-1968 school year. [ Footnote 4/1 ] See Van Dusartz v. Hatfield, 334 F. Supp. 870 (Minn.1971); Milliken v. Green, 389 Mich. 1, 203 N.W.2d 457 (1972), rehearing granted, Jan.1973; Serrano v. Priest, 5 Cal. 3d 584 , 487 P.2d 1241 (1971); Robinson v. Cahill, 118 N.J.Super. 223, 287 A.2d 187 , 119 N.J.Super. 40, 289 A.2d 569 (1972); Hollins v. Shofstall, Civil No. C-253652 (Super.Ct. Maricopa County, Ariz. July 7, 1972). See also Sweetwater County Planning Com. for the Organization of School Districts v. Hinkle, 491 P.2d 1234 (Wyo.1971), juris. relinquished, 493 P.2d 1050 (Wyo.1972). [ Footnote 4/2 ] The District Court in this case postponed decision for some two years in the hope that the Texas Legislature would remedy the gross disparities in treatment inherent in the Texas financing scheme. It was only after the legislature failed to act in its 1971 Regular Session that the District Court, apparently recognizing the lack of hope for self-initiated legislative reform, rendered its decision. See Texas Research League, Public School Finance Problems in Texas 13 (Interim Report 1972). The strong vested interest of property-rich districts in the existing property tax scheme poses a substantial barrier to self-initiated legislative reform in educational financing. See N.Y. Times, Dec.19, 1972, p. 1, col. 1. [ Footnote 4/3 ] Texas provides its school districts with extensive bonding authority to obtain capital both for the acquisition of school sites and "the construction and equipment of school buildings," Tex.Educ.Code Ann. § 20.01 (1972), and for the acquisition, construction, and maintenance of "gymnasia, stadia, or other recreational facilities," id. §§ 20.21-20.22. While such private capital provides a fourth source of revenue, it is, of course, only temporary in nature, since the principal and interest of all bonds must ultimately be paid out of the receipts of the local ad valorem property tax, see id. §§ 20.01, 20.04, except to the extent that outside revenues derived from the operation of certain facilities, such as gymnasia, are employed to repay the bonds issued thereon, see id. §§ 20.22, 20.25. [ Footnote 4/4 ] See Tex.Const., Art. 7, § 3; Tex.Educ.Code Ann. §§ 20.01-20.02. As a part of the property tax scheme, bonding authority is conferred upon the local school districts, see 411 U.S. 1 fn4/3|>n. 3, supra. [ Footnote 4/5 ] See Tex.Educ.Code Ann. § 20.04. [ Footnote 4/6 ] For the 1970-1971 school year, the precise figure was 41.1%. See Texas Research League, supra, 411 U.S. 1 fn4/2|>n. 2, at 9. [ Footnote 4/7 ] See Tex.Educ.Code Ann. § 20.04. Theoretically, Texas law limits the tax rate for public school maintenance, see id. § 20.02, to $1.50 per $100 valuation, see id. § 20.04(d). However, it does not appear that any Texas district presently taxes itself at the highest rate allowable, although some poor districts are approaching it, see App. 174. [ Footnote 4/8 ] Under Texas law, local districts are allowed to employ differing bases of assessment -- a fact that introduces a third variable into the local funding. See Tex.Educ.Code Ann. § 20.03. But neither party has suggested that this factor is responsible for the disparities in revenues available to the various districts. Consequently, I believe we must deal with this case on the assumption that differences in local methods of assessment do not meaningfully affect the revenue-raising power of local districts relative to one another. The Court apparently admits as much. See ante at 411 U. S. 46 . It should be noted, moreover, that the main set of data introduced before the District Court to establish the disparities at issue here was based upon "equalized taxable property" values which had been adjusted to correct for differing methods of assessment. See App. C to Affidavit of Professor Joel S. Berke. [ Footnote 4/9 ] Texas has approximately 1,200 school districts. [ Footnote 4/10 ] See Appendix I, post, p. 411 U. S. 134 . [ Footnote 4/11 ] See ibid. Indeed, appellants acknowledge that the relevant data from Professor Berke's affidavit show "a very positive correlation, 0.973, between market value of taxable property per pupil and state and local revenues per pupil." Reply Brief for Appellants 6 n. 9. While the Court takes issue with much of Professor Berke's data and conclusions, ante at 411 U. S. 15 -16, n. 38, and 411 U. S. 25 -27, I do not understand its criticism to run to the basic finding of a correlation between taxable district property per pupil and local revenues per pupil. The critique of Professor Berke's methodology upon which the Court relies, see Goldstein, Inter-district Inequalities in School Financing: A Critical Analysis of Serrano v. Priest and its Progeny, 120 U.Pa.L.Rev. 504, 523-525, nn. 67, 71 (1972), is directed only at the suggested correlations between family income and taxable district wealth and between race and taxable district wealth. Obviously, the appellants do not question the relationship in Texas between taxable district wealth and per-pupil expenditures; and there is no basis for the Court to do so, whatever the criticisms that may be leveled at other aspects of Professor Berke's study, see infra, 411 U.S. 1 fn4/56|>n. 56. [ Footnote 4/12 ] See Appendix II, post, p. 411 U. S. 135 . [ Footnote 4/13 ] See ibid. [ Footnote 4/14 ] For the 1970-1971 school year, the precise figure was 10.9%. See Texas Research League, supra, 411 U.S. 1 fn4/2|>n. 2, at 9. [ Footnote 4/15 ] Appellants made such a contention before the District Court but apparently have abandoned it in this Court. Indeed, data introduced in the District Court simply belie the argument that federal funds have a significant equalizing effect. See Appendix I, post, p. 411 U. S. 134 . And, as the District Court observed, it does not follow that remedial action by the Federal Government would excuse any unconstitutional discrimination effected by the state financing scheme. 337 F. Supp. 280 , 284. [ Footnote 4/16 ] For the 1970-1971 school year, the precise figure was 48%. See Texas Research League, supra, 411 U.S. 1 fn4/2|>n. 2, at 9. [ Footnote 4/17 ] See Tex.Const., Art. 7, § 5 (Supp. 1972). See also Tex.Educ.Code Ann. § 15.01(b). [ Footnote 4/18 ] See Tex.Educ.Code Ann. § 15.01(b). The Permanent School Fund is, in essence, a public trust initially endowed with vast quantities of public land, the sale of which has provided an enormous corpus that, in turn, produces substantial annual revenues which are devoted exclusively to public education. See Tex.Const., Art. 7, § 5 (Supp. 1972). See also 5 Report of Governor's Committee on Public School Education, The Challenge and the Chance 11 (1969) (hereinafter Governor's Committee Report). [ Footnote 4/19 ] This is determined from the average daily attendance within each district for the preceding year. Tex.Educ.Code Ann. § 15.01(c). [ Footnote 4/20 ] See id. §§ 16.01-16.975. [ Footnote 4/21 ] See id. §§ 16.71(2), 16.79. [ Footnote 4/22 ] See id. §§ 16.301-16.316, 16.45, 16.51-16.63. [ Footnote 4/23 ] See id., §§ 16.72-16.73, 16.76-16.77. [ Footnote 4/24 ] See id. §§ 16.74-16.76. The formula for calculating each district's share is described in 5 Governor's Committee Report 448. [ Footnote 4/25 ] See Tex.Educ.Code Ann. § 16.01. [ Footnote 4/26 ] See 5 Governor's Committee Report 401. [ Footnote 4/27 ] See id. at 45 67; Texas Research League, Texas Public Schools Under the Minimum Foundation Program -- An Evaluation: 1949-1954, pp.67-68 (1954). [ Footnote 4/28 ] Technically, the economic index involves a two-step calculation. First, on the basis of the factors mentioned above, each Texas county's share of the Local Fund Assignment is determined. Then each county's share is divided among its school districts on the basis of their relative shares of the county's assessable wealth. See Tex.Educ.Code Ann. §§ 16.74-16.76; 5 Governor's Committee Report 43-44; Texas Research League, Texas Public School Finance: A Majority of Exceptions 6-8 (2d Interim Report 1972). [ Footnote 4/29 ] 5 Governor's Committee Report 48, quoting statement of Dr. Edgar Morphet. [ Footnote 4/30 ] The extraordinarily complex standards are summarized in 5 Governor's Committee Report 41-43. [ Footnote 4/31 ] The key element of the Minimum Foundation School Program is the provision of funds for professional salaries -- more particularly, for teacher salaries. The Program provides each district with funds to pay its professional payroll as determined by certain state standards. See Tex.Educ.Code Ann. §§ 16.301-16.316. If the district fails to pay its teachers at the levels determined by the state standards, it receives nothing from the Program. See id. § 16.301(c). At the same time, districts are free to pay their teachers salaries in excess of the level set by the state standards, using local revenues -- that is, property tax revenue -- to make up the difference, see id. § 16.301(a). The state salary standards focus upon two factors: the educational level and the experience of the district's teachers. See id. §§ 16.30116.316. The higher these two factors are, the more funds the district will receive from the Foundation Program for professional salaries. It should be apparent that the net effect of this scheme is to provide more assistance to property-rich districts than to property-poor ones. For rich districts are able to pay their teachers, out of local funds, salary increments above the state minimum levels. Thus, the rich districts are able to attract the teachers with the best education and the most experience. To complete the circle, this then means, given the state standards, that the rich districts receive more from the Foundation Program for professional salaries than do poor districts. A portion of Professor Berke's study vividly illustrates the impact of the State's standards on districts of varying wealth. See Appendix III, post, p. 411 U. S. 136 . [ Footnote 4/32 ] In 1967-1968, Alamo Heights School District had $49,478 in taxable property per pupil. See Berke Affidavit, Table VII, App. 216. [ Footnote 4/33 ] In 1967-1968, Edgewood Independent School District had $5,960 in taxable property per pupil. Ibid. [ Footnote 4/34 ] I fail to understand the relevance for this case of the Court's suggestion that, if Alamo Heights School District, which is approximately the same physical size as Edgewood Independent School District but which has only one-fourth as many students, had the same number of students as Edgewood, the former's per-pupil expenditure would be considerably closer to the latter's. Ante at 411 U. S. 13 n. 33. Obviously this is true, but it does not alter the simple fact that Edgewood does have four times as many students but not four times as much taxable property wealth. From the perspective of Edgewood's school children then -- the perspective that ultimately counts here -- Edgewood is clearly a much poorer district than Alamo Heights. The question here is not whether districts have equal taxable property wealth in absolute terms, but whether districts have differing taxable wealth given their respective school-age populations. [ Footnote 4/35 ] In the face of these gross disparities in treatment which experience with the Texas financing scheme has revealed, I cannot accept the Court's suggestion that we are dealing here with a remedial scheme to which we should accord substantial deference because of its accomplishments, rather than criticize it for its failures. Ante at 411 U. S. 38 -39. Moreover, Texas' financing scheme is hardly remedial legislation of the type for which we have previously shown substantial tolerance. Such legislation may in fact, extend the vote to "persons who otherwise would be denied it by state law," Katzenbach v. Morgan, 384 U. S. 641 , 384 U. S. 657 (1966), or it may eliminate the evils of the private bail bondsman, Schilb v. Kuebel, 404 U. S. 357 (1971). But those are instances in which a legislative body has sought to remedy problems for which it cannot be said to have been directly responsible. By contrast, public education is the function of the State in Texas, and the responsibility for any defect in the financing scheme must ultimately rest with the State. It is the State's own scheme which has caused the funding problem, and, thus viewed, that scheme can hardly be deemed remedial. [ Footnote 4/36 ] Cf. Appendix I, post, p. 411 U. S. 134 . [ Footnote 4/37 ] Brief for Appellants 3. [ Footnote 4/38 ] Thus, in 1967-1968, Edgewood had a total of $248 per pupil in state and local funds, compared with a total of $558 per pupil for Alamo Heights. See Berke Affidavit, Table X, App. 219. For 1970-1971, the respective totals were $418 and $913. See Texas Research League, supra, 411 U.S. 1 fn4/2|>n. 2, at 14. [ Footnote 4/39 ] Not only does the local property tax provide approximately 40% of the funds expended on public education, but it is the only source of funds for such essential aspects of educational financing as the payment of school bonds, see 411 U.S. 1 fn4/3|>n. 3, supra, and the payment of the district's share of the Local Fund Assignment, as well as for nearly all expenditures above the minimums established by the Foundation School Program. [ Footnote 4/40 ] Compare, e.g., J. Coleman et al., Equality of Educational Opportunity 290-330 (1966); Jencks, The Coleman Report and the Conventional Wisdom, in On Equality of Educational Opportunity 69, 91-104 (F. Mosteller & D. Moynihan eds.1972), with, e.g., J. Guthrie, G. Kleindorfer, H. Levin, & R. Stout, Schools and Inequality 79-90 (1971); Kiesling, Measuring a Local Government Service: A Study of School Districts in New York State, 49 Rev.Econ. & Statistics 356 (1967). [ Footnote 4/41 ] Compare Berke Answers to Interrogatories 10 ("Dollar expenditures are probably the best way of measuring the quality of education afforded students . . ."), with Graham Deposition 39 ("[I]t is not just necessarily the money, no. It is how wisely you spend it"). It warrants noting that even appellants' witness, Mr. Graham, qualified the importance of money only by the requirement of wise expenditure. Quite obviously, a district which is property poor is powerless to match the education provided by a property-rich district, assuming each district allocates its funds with equal wisdom. [ Footnote 4/42 ] See Brief of amici curiae, inter alia, San Marino Unified School District; Beverly Hills Unified School District; Brief of amici curiae, inter alia, Bloomfield Hills, Michigan, School District; Dearborn City, Michigan, School District; Grosse Pointe, Michigan, Public School System. [ Footnote 4/43 ] Answers to Plaintiffs' Interrogatories, App. 115. [ Footnote 4/44 ] Ibid. Moreover, during the same period, 37.17% of the teachers in Alamo Heights had advanced degrees, while only 14.98% of Edgewood's faculty had such degrees. See id. at 116. [ Footnote 4/45 ] Id. at 117. [ Footnote 4/46 ] Id. at 118. [ Footnote 4/47 ] In the 1967-1968 school year, Edgewood had 22,862 students and 864 teachers, a ratio of 26.5 to 1. See id. at 110, 114. In Alamo Heights, for the same school year, there were 5,432 students and 265 teachers, for a ratio of 20.5 to 1. Ibid. [ Footnote 4/48 ] Reply Brief for Appellant 17. See also id. at 5, 15-16. [ Footnote 4/49 ] Indeed, even apart from the differential treatment inherent in the local property tax, the significant inter-district disparities in state aid received under the Minimum Foundation School Program would seem to raise substantial equal protection questions. [ Footnote 4/50 ] I find particularly strong intimations of such a view in the majority's efforts to denigrate the constitutional significance of children in property-poor districts "receiving a poorer quality education than that available to children in districts having more assessable wealth" with the assertion "that, at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages." Ante at 411 U. S. 23 , 411 U. S. 24 . The Court, to be sure, restricts its remark to "wealth" discrimination. But the logical basis for such a restriction is not explained by the Court, nor is it otherwise apparent, see infra at 411 U. S. 117 -120 and n. 77. [ Footnote 4/51 ] See Answers to Interrogatories by Dr. Joel S. Berke, Ans. 17, p. 9; Ans. 48-51, pp. 22-24; Ans. 88-89, pp. 41-42; Deposition of Dr. Daniel C. Morgan, Jr., at 52-55; Affidavit of Dr. Daniel C. Morgan, Jr., App. 242-243. [ Footnote 4/52 ] It is true that, in two previous cases, this Court has summarily affirmed district court dismissals of constitutional attacks upon other state educational financing schemes. See McInnis v. Shapiro, 293 F. Supp. 327 (ND Ill.1968), aff'd per curiam sub nom. McInnis v. Ogilvie, 394 U. S. 322 (1969); Burruss v. Wilkerson, 310 F. Supp. 572 (WD Va.1969), aff'd per curiam, 397 U. S. 44 (1970). But those decisions cannot be considered dispositive of this action, for the thrust of those suits differed materially from that of the present case. In McInnis, the plaintiffs asserted that "only a financing system which apportions public funds according to the educational needs of the students satisfies the Fourteenth Amendment." 293 F. Supp. at 331. The District Court concluded that "(1) the Fourteenth Amendment does not require that public school expenditures be made only on the basis of pupils' educational needs, and (2) the lack of judicially manageable standards makes this controversy nonjusticiable." Id. at 329. The Burruss District Court dismissed that suit essentially in reliance on McInnis, which it found to be "scarcely distinguishable." 310 F. Supp. at 574. This suit involves no effort to obtain an allocation of school funds that considers only educational need. The District Court ruled only that the State must remedy the discrimination resulting from the distribution of taxable local district wealth which has heretofore prevented many districts from truly exercising local fiscal control. Furthermore, the limited holding of the District Court presents none of the problems of judicial management which would exist if the federal courts were to attempt to ensure the distribution of educational funds solely on the basis of educational need, see infra at 411 U. S. 130 -132. [ Footnote 4/53 ] Tex.Const., Art. 7, § 1. [ Footnote 4/54 ] Problems of remedy may be another matter. If provision of the relief sought in a particular case required identification of each member of the affected class, as in the case of monetary relief, the need for clarity in defining the class is apparent. But this involves the procedural problems inherent in class action litigation, not the character of the elements essential to equal protection analysis. We are concerned here only with the latter. Moreover, it is evident that, in cases such as this, provision of appropriate relief, which takes the injunctive form, is not a serious problem, since it is enough to direct the action of appropriate officials. Cf. Potts v. Flax, 313 F.2d 284, 288-290 (CA5 1963). [ Footnote 4/55 ] I assume the Court would lodge the same criticism against the validity of the finding of a correlation between poor districts and racial minorities. [ Footnote 4/56 ] The Court rejects the District Court's finding of a correlation between poor people and poor districts with the assertion that "there is reason to believe that the poorest families are not necessarily clustered in the poorest property districts" in Texas. Ante at 411 U. S. 23 . In support of its conclusion, the Court offers absolutely no data -- which it cannot on this record -- concerning the distribution of poor people in Texas to refute the data introduced below by appellees; it relies instead on a recent law review note concerned solely with the State of Connecticut, Note, A Statistical Analysis of the School Finance Decisions: On Winning Battles and Losing Wars, 81 Yale L.J. 1303 (1972). Common sense suggests that the basis for drawing a demographic conclusion with respect to a geographically large, urban-rural, industrial-agricultural State such as Texas from a geographically small, densely populated, highly industrialized State such as Connecticut is doubtful, at best. Furthermore, the article upon which the Court relies to discredit the statistical procedures employed by Professor Berke to establish the correlation between poor people and poor districts, see 411 U.S. 1 fn4/11|>n. 11, supra, based its criticism primarily on the fact that only four of the 110 districts studied were in the lowest of the five categories, which were determined by relative taxable property per pupil, and most districts clustered in the middle three groups. See Goldstein, Inter-district Inequalities in School Financing: A Critical Analysis of Serrano v. Priest and its Progeny, 120 U.Pa.L.Rev. 504, 524 n. 67 (1972). See also ante at 411 U. S. 26 -27. But the Court fails to note that the four poorest districts in the sample had over 50,000 students, which constituted 10% of the students in the entire sample. It appears, moreover, that even when the richest and the poorest categories are enlarged to include in each category 20% of the students in the sample, the correlation between district and individual wealth holds true. See Brief for the Governors of Minnesota, Maine, South Dakota, Wisconsin, and Michigan as amici curiae 17 n. 21. Finally, it cannot be ignored that the data introduced by appellees went unchallenged in the District Court. The majority's willingness to permit appellants to litigate the correctness of those data for the first time before this tribunal -- where effective response by appellees is impossible -- is both unfair and judicially unsound. [ Footnote 4/57 ] Third Amended Complaint App. 23. Consistent with this theory, appellees purported to represent, among others, a class composed of "all . . . school children in independent school districts . . . who . . . have been deprived of the equal protection of the law under the Fourteenth Amendment with regard to public school education because of the low value of the property lying within the independent school districts in which they reside." Id. at 15. [ Footnote 4/58 ] The degree of judicial scrutiny that this particular classification demands is a distinct issue which I consider in 411 U. S. infra. [ Footnote 4/59 ] Indeed, the Court's theory would render the established concept of fundamental interests in the context of equal protection analysis superfluous, for the substantive constitutional right itself requires that this Court strictly scrutinize any asserted state interest for restricting or denying access to any particular guaranteed right, see, e.g., United States v. O'Brien, 391 U. S. 367 , 391 U. S. 377 (1968); Cox v. Louisiana, 379 U. S. 536 , 379 U. S. 545 -551 (1965). [ Footnote 4/60 ] It is interesting that, in its effort to reconcile the state voting rights cases with its theory of fundamentality, the majority can muster nothing more than the contention that "[t]he constitutional underpinnings of the right to equal treatment in the voting process can no longer be doubted. . . ." Ante at 411 U. S. 34 n. 74 (emphasis added). If, by this, the Court intends to recognize a substantive constitutional "right to equal treatment in the voting process" independent of the Equal Protection Clause, the source of such a right is certainly a mystery to me. [ Footnote 4/61 ] It is true that Griffin and Douglas also involved discrimination against indigents, that is, wealth discrimination. But, as the majority points out, ante at 411 U. S. 28 -29, the Court has never deemed wealth discrimination alone to be sufficient to require strict judicial scrutiny; rather, such review of wealth classifications has been applied only where the discrimination affects an important individual interest, see, e.g., Harper v. Virginia Bd. of Elections, 383 U. S. 663 (1966). Thus, I believe Griffin and Douglas can only be understood as premised on a recognition of the fundamental importance of the criminal appellate process. [ Footnote 4/62 ] See, e.g., Duncan v. Louisiana, 391 U. S. 145 (1968) (right to jury trial); Washington v. Texas, 388 U. S. 14 (1967) (right to compulsory process); Pointer v. Texas, 380 U. S. 400 (1965) (right to confront one's accusers). [ Footnote 4/63 ] See, e.g., McLaughlin v. Florida, 379 U. S. 184 , 379 U. S. 191 -192 (1964); Loving v. Virginia, 388 U. S. 1 , 388 U. S. 9 (1967). [ Footnote 4/64 ] See Oyama v. California, 332 U. S. 633 , 332 U. S. 644 -646 (1948); Korematsu v. United States, 323 U. S. 214 , 323 U. S. 216 (1944). [ Footnote 4/65 ] See Graham v. Richardson, 403 U. S. 365 , 403 U. S. 372 (1971). [ Footnote 4/66 ] The Court noted that the challenged "provision strips from indigent defendants the array of protective exemptions Kansas has erected for other civil judgment debtors, including restrictions on the amount of disposable earnings subject to garnishment, protection of the debtor from wage garnishment at times of severe personal or family sickness, and exemption from attachment and execution on a debtor's personal clothing, books, and tools of trade." 407 U.S. at 407 U. S. 135 . [ Footnote 4/67 ] See generally Gunther, The Supreme Court, 1971 Term, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1 (1972). [ Footnote 4/68 ] See Brief of the National Education Association et al. as Amici Curiae App. A. All 48 of the 50 States which mandate public education also have compulsory attendance laws which require school attendance for eight years or more. Id. at 20-21. [ Footnote 4/69 ] Prior to this Court's decision in Brown v. Board of Education, 347 U. S. 483 (1954), every State had a constitutional provision directing the establishment of a system of public schools. But after Brown, South Carolina repealed its constitutional provision, and Mississippi made its constitutional provision discretionary with the state legislature. [ Footnote 4/70 ] Developments in the Law -- Equal Protection, 82 Harv.L.Rev. 1065, 1129 (1969). [ Footnote 4/71 ] The President's Commission on School Finance, Schools, People, & Money: The Need for Educational Reform 11 (1972), concluded that "[l]iterally, we cannot survive as a nation or as individuals without [education]." It further observed that: "[I]n a democratic society, public understanding of public issues is necessary for public support. Schools generally include in their courses of instruction a wide variety of subjects related to the history, structure and principles of American government at all levels. In so doing, schools provide students with a background of knowledge which is deemed an absolute necessity for responsible citizenship." Id. at 13-14. [ Footnote 4/72 ] See J. Guthrie, G. Kleindorfer, H. Levin, & R. Stout, Schools and Inequality 103-105 (1971); R. Hess & J. Torney, The Development of Political Attitudes in Children 217-218 (1967); Campbell, The Passive Citizen, in 6 Acta Sociologica, Nos. 1-2, p. 9, at 20-21 (1962). That education is the dominant factor in influencing political participation and awareness is sufficient, I believe, to dispose of the Court's suggestion that, in all events, there is no indication that Texas is not providing all of its children with a sufficient education to enjoy the right of free speech and to participate fully in the political process. Ante at 411 U. S. 36 -37. There is, in short, no limit on the amount of free speech or political participation that the Constitution guarantees. Moreover, it should be obvious that the political process, like most other aspects of social intercourse, is to some degree competitive. It is thus of little benefit to an individual from a property-poor district to have "enough" education if those around him have more than "enough." Cf. Sweatt v. Painter, 339 U. S. 629 , 339 U. S. 633 -634 (1950). [ Footnote 4/73 ] See United States Department of Commerce, Bureau of the Census, Voting and Registration in the Election of November 1968, Current Population Reports, Series P-20, No.192, Table 4, p. 17. See also Senate Select Committee on Equal Educational Opportunity, 92d Cong., 2d Sess., Levin, The Costs to the Nation of Inadequate Education 46-47 (Comm.Print 1972). [ Footnote 4/74 ] I believe that the close nexus between education and our established constitutional values with respect to freedom of speech and participation in the political process makes this a different case from our prior decisions concerning discrimination affecting public welfare, see, e.g., Dandridge v. Williams, 397 U. S. 471 (1970), or housing, see, e.g., Lindsey v. Normet, 405 U. S. 56 (1972). There can be no question that, as the majority suggests, constitutional rights may be less meaningful for someone without enough to eat or without decent housing. Ante at 411 U. S. 37 . But the crucial difference lies in the closeness of the relationship. Whatever the severity of the impact of insufficient food or inadequate housing on a person's life, they have never been considered to bear the same direct and immediate relationship to constitutional concerns for free speech and for our political processes as education has long been recognized to bear. Perhaps the best evidence of this fact is the unique status which has been accorded public education as the single public service nearly unanimously guaranteed in the constitutions of our States, see supra at 411 U. S. 111 -112 and n. 68. Education, in terms of constitutional values, is much more analogous, in my judgment, to the right to vote in state elections than to public welfare or public housing. Indeed, it is not without significance that we have long recognized education as an essential step in providing the disadvantaged with the tools necessary to achieve economic self-sufficiency. [ Footnote 4/75 ] The majority's reliance on this Court's traditional deference to legislative bodies in matters of taxation falls wide of the mark in the context of this particular case. See ante at 411 U. S. 40 -41. The decisions on which the Court relies were simply taxpayer suits challenging the constitutionality of a tax burden in the face of exemptions or differential taxation afforded to others. See, e.g., Allied Stores of Ohio v. Bowers, 358 U. S. 522 (1959), Madden v. Kentucky, 309 U. S. 83 (1940); Carmichael v. Southern Coal & Coke Co., 301 U. S. 495 (1937); Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232 (1890). There is no question that, from the perspective of the taxpayer, the Equal Protection Clause "imposes no iron rule of equality, prohibiting the flexibility and variety that are appropriate to reasonable schemes of state taxation. The State may impose different specific taxes upon different trades and professions, and may vary the rate of excise upon various products." Allied Stores of Ohio v. Bowers, supra, at 358 U. S. 526 -527. But, in this case, we are presented with a claim of discrimination of an entirely different nature -- a claim that the revenue-producing mechanism directly discriminates against the interests of some of the intended beneficiaries; and, in contrast to the taxpayer suits, the interest adversely affected is of substantial constitutional and societal importance. Hence, a different standard of equal protection review than has been employed in the taxpayer suits is appropriate here. It is true that affirmance of the District Court decision would to some extent intrude upon the State's taxing power insofar as it would be necessary for the State to at least equalize taxable district wealth. But, contrary to the suggestions of the majority, affirmance would not impose a strait-jacket upon the revenue-raising powers of the State, and would certainly not spell the end of the local property tax. See infra at 411 U. S. 132 . [ Footnote 4/76 ] This does not mean that the Court has demanded precise equality in the treatment of the indigent and the person of means in the criminal process. We have never suggested, for instance, that the Equal Protection Clause requires the best lawyer money can buy for the indigent. We are hardly equipped with the objective standards which such a judgment would require. But we have pursued the goal of substantial equality of treatment in the face of clear disparities in the nature of the appellate process afforded rich versus poor. See, e.g., Draper v. Washington, 372 U. S. 487 , 372 U. S. 495 -496 (1963); cf. Coppedge v. United States, 369 U. S. 438 , 369 U. S. 447 (1962). [ Footnote 4/77 ] Even if I put aside the Court's misreading of Griffin and Douglas, the Court fails to offer any reasoned constitutional basis for restricting cases involving wealth discrimination to instances in which there is an absolute deprivation of the interest affected. As I have already discussed, see supra at 411 U. S. 88 -89, the Equal Protection Clause guarantees equality of treatment of those persons who are similarly situated; it does not merely bar some form of excessive discrimination between such persons. Outside the context of wealth discrimination, the Court's reapportionment decisions clearly indicate that relative discrimination is within the purview of the Equal Protection Clause. Thus, in Reynolds v. Sims, 377 U. S. 533 , 377 U. S. 562 -563 (1964), the Court recognized: "It would appear extraordinary to suggest that a State could be constitutionally permitted to enact a law providing that certain of the State's voters could vote two, five, or 10 times for their legislative representatives, while voters living elsewhere could vote only once. . . . Of course, the effect of state legislative districting schemes which give the same number of representatives to unequal numbers of constituents is identical. Overweighting and over-valuation of the votes of those living here has the certain effect of dilution and undervaluation of the votes of those living there. . . . Their right to vote is simply not the same right to vote as that of those living in a favored part of the State. . . . One must be ever aware that the Constitution forbids 'sophisticated as well as simple-minded modes of discrimination.'" See also Gray v. Sanders, 372 U. S. 368 , 372 U. S. 380 -381 (1963). The Court gives no explanation why a case involving wealth discrimination should be treated any differently. [ Footnote 4/78 ] But cf. Bullock v. Carter, 405 U. S. 134 , 405 U. S. 144 (1972), where prospective candidates' threatened exclusion from a primary ballot because of their inability to pay a filing fee was seen as discrimination against both the impecunious candidates and the "less affluent segment of the community" that supported such candidates but was also too poor as a group to contribute enough for the filing fees. [ Footnote 4/79 ] But cf. M. Harrington, The Other America 13-17 (Penguin ed.1963). [ Footnote 4/80 ] See E. Banfield, The Unheavenly City 63, 75-76 (1970); cf. R. Lynd & H. Lynd, Middletown in Transition 450 (1937). [ Footnote 4/81 ] Cf. New York v. Miln , 11 Pet. 102, 36 U. S. 142 (1837). [ Footnote 4/82 ] Theoretically, at least, it may provide a mechanism for implementing Texas' asserted interest in local educational control, see infra at 411 U. S. 126 . [ Footnote 4/83 ] True, a family may move to escape a property-poor school district, assuming it has the means to do so. But such a view would itself raise a serious constitutional question concerning an impermissible burdening of the right to travel, or, more precisely, the concomitant right to remain where one is. Cf. Shapiro v. Thompson, 394 U. S. 618 , 394 U. S. 629 -631 (1969). [ Footnote 4/84 ] Indeed, the political difficulties that seriously disadvantaged districts face in securing legislative redress are augmented by the fact that little support is likely to be secured from only mildly disadvantaged districts. Cf. Gray v. Sanders, 372 U. S. 368 (1963). See also 411 U.S. 1 fn4/2|>n. 2, supra. [ Footnote 4/85 ] See Tex.Cities, Towns and Villages Code, Civ.Stat.Ann. §§ 1011a-1011j (1963 and Supp. 1972-1973). See also, e.g., Skinner v. Reed, 265 S.W.2d 850 (Tex.Ct.Civ.App. 1954); Corpus Christi v. Jones, 144 S.W.2d 388 (Tex.Ct. Civ.App. 1940). [ Footnote 4/86 ] Serrano v. Priest, 5 Cal. 3d at 603, 487 P.2d at 1254. See also Van Dusartz v. Hatfield, 334 F. Supp. at 875-876. [ Footnote 4/87 ] Cf., e.g., Two Guys from Harrison-Allentown v. McGinley, 366 U. S. 582 (1961); McGowan v. Maryland, 366 U. S. 420 (1961); Goesaert v. Cleary, 335 U. S. 464 (1948). [ Footnote 4/88 ] Tex.Educ.Code Ann. §§ 21.101-21.117. Criminal penalties are provided for failure to teach certain required courses. Id. §§ 4.15-4.16. [ Footnote 4/89 ] Id., §§ 12.11-12.35. [ Footnote 4/90 ] Id., § 12.62. [ Footnote 4/91 ] Id., §§ 13 031-13.046 [ Footnote 4/92 ] Id., § 21.004. [ Footnote 4/93 ] See 411 U.S. 1 app1|>Appendix II, infra. [ Footnote 4/94 ] See Affidavit of Dr. Joe Cardenas, Superintendent of School, Edgewood Independent School District, App. 234-238. [ Footnote 4/95 ] See 411 U.S. 1 app4|>Appendix IV, infra. [ Footnote 4/96 ] My Brother WHITE, in concluding that the Texas financing scheme runs afoul of the Equal Protection Clause, likewise finds on analysis that the means chosen by Texas -- local property taxation dependent upon local taxable wealth -- is completely unsuited in its present form to the achievement of the asserted goal of providing local fiscal control. Although my Brother WHITE purports to reach this result by application of that lenient standard of mere rationality traditionally applied in the context of commercial interests, it seems to me that the care with which he scrutinizes the practical effectiveness of the present local property tax as a device for affording local fiscal control reflects the application of a more stringent standard of review, a standard which at the least is influenced by the constitutional significance of the process of public education. [ Footnote 4/97 ] See 411 U.S. 1 fn4/98|>n. 98, infra. [ Footnote 4/98 ] Centralized educational financing is, to be sure, one alternative. On analysis, though, it is clear that even centralized financing would not deprive local school districts of what has been considered to be the essence of local educational control. See Wright v. Council of the City of Emporia, 407 U. S. 451 , 407 U. S. 477 -478 (BURGER, C.J., dissenting). Central financing would leave in local hands the entire gamut of local educational policymaking -- teachers, curriculum, school sites, the whole process of allocating resources among alternative educational objectives. A second possibility is the much-discussed theory of district power equalization put forth by Professors Coons, Clune, and Sugarman in their seminal work, Private Wealth and Public Education 201-242 (1970). Such a scheme would truly reflect a dedication to local fiscal control. Under their system, each school district would receive a fixed amount of revenue per pupil for any particular level of tax effort regardless of the level of local property tax base. Appellants criticize this scheme on the rather extraordinary ground that it would encourage poorer districts to overtax themselves in order to obtain substantial revenues for education. But, under the present discriminatory scheme, it is the poor districts that are already taxing themselves at the highest rates, yet are receiving the lowest returns. District wealth reapportionment is yet another alternative which would accomplish directly essentially what district power equalization would seek to do artificially. Appellants claim that the calculations concerning state property required by such a scheme would be impossible, as a practical matter. Yet Texas is already making far more complex annual calculations -- involving not only local property values, but also local income and other economic factors -- in conjunction with the Local Fund Assignment portion of the Minimum Foundation School Program. See 5 Governor's Committee Report 43-44. A fourth possibility would be to remove commercial, industrial, and mineral property from local tax rolls, to tax this property on a state-wide basis, and to return the resulting revenues to the local districts in a fashion that would compensate for remaining variations in the local tax bases. None of these particular alternatives is necessarily constitutionally compelled; rather, they indicate the breadth of choice which would remain to the State if the present inter-district disparities were eliminated. [ Footnote 4/99 ] See 411 U. S. 98, supra. [ Footnote 4/100 ] Of course, nothing in the Court's decision today should inhibit further review of state educational funding schemes under state constitutional provisions. See Milliken v. Green, 389 Mich. 1, 203 N.W.2d 457 (1972), rehearing granted, Jan.1973; Robinson v. Cahill, 118 N.J.Super. 223, 287 A.2d 187 , 119 N.J.Super. 40, 289 A.2d 569 (1972); cf. Serrano v. Priest, 5 Cal. 3d 584 , 487 P.2d 1241 (1971).

Here is a summary of the U.S. Supreme Court case San Antonio Independent School District v. Rodriguez (1973): Issue: The case examined whether the Texas system of financing public schools, which relied on local property taxation, violated the Equal Protection Clause of the Fourteenth Amendment due to disparities in per-pupil expenditures among school districts. Holding: The Supreme Court held that the Texas school financing system did not violate equal protection requirements. The Court found that the system did not disadvantage any suspect class or interfere with the exercise of a fundamental right. While education is important, it is not a fundamental right explicitly or implicitly protected by the Constitution. The Court also noted that the state has a broad choice of options to address inter-district disparities in school funding. Key Points: - The Texas system of school financing was a combination of state and local funding, with local funding derived from property taxes. - Appellees argued that this system favored affluent districts and disadvantaged poor families in districts with a low property tax base. - The Court rejected the argument that wealth is a suspect classification and that education is a fundamental right. - The Court emphasized that local control over educational policymaking, including resource allocation, curriculum, and teachers, would remain intact even with centralized financing. - Several alternatives to the current system were suggested, including district power equalization, district wealth reapportionment, and state-wide taxation of commercial and industrial property. - The Court encouraged further review of state educational funding schemes under state constitutional provisions.

Equal Protection

U.S. Dept. of Agriculture v. Moreno

https://supreme.justia.com/cases/federal/us/413/528/

U.S. Supreme Court United States Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973) United States Department of Agriculture v. Moreno No. 72-534 Argued April 23, 1973 Decided June 25, 1973 413 U.S. 528 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Syllabus Section 3(e) of the Food Stamp Act of 1964, as amended in 1971, generally excludes from participation in the food stamp program any household containing an individual who is unrelated to any other household member. The Secretary of Agriculture issued regulations thereunder rendering ineligible for participation in the program any "household" whose members are not "all related to each other." Congress stated that the purposes of the Act were "to safeguard the health and wellbeing of the Nation's population and raise levels of nutrition among low income households . . . [and] that increased utilization of food in establishing and maintaining adequate national levels of nutrition will promote the distribution . . . of our agricultural abundance and will strengthen cur agricultural economy. . . ." The District Court held that the "unrelated person" provision of § 3(e) creates an irrational classification in violation of the equal protection component of the Due Process Clause of the Fifth Amendment. Held: The legislative classification here involved cannot be sustained, the classification being clearly irrelevant to the stated purposes of the Act and not rationally furthering any other legitimate governmental interest. In practical operation, the Act excludes not those who are "likely to abuse the program," but, rather, only those who so desperately need aid that they cannot even afford to alter their living arrangements so as to retain their eligibility. Pp. 533-538. 345 F. Supp. 310 , affirmed. BRENNAN, J., delivered the opinion of the Court, in which DOUGLAS, STEWART, WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. DOUGLAS J., filed a concurring opinion, post, p. 413 U. S. 538 . REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., joined, post, p. 413 U. S. 545 . Page 413 U. S. 529 MR. JUSTICE BRENNAN delivered the opinion of the Court. This case requires us to consider the constitutionality of § 3(e) of the Food Stamp Act of 1964, 7 U.S.C. § 2012(e), as amended in 1971, 84 Stat. 2048, which, with certain exceptions, excludes from participation in the food stamp program any household containing an individual who is unrelated to any other member of the household. In practical effect, § 3(e) creates two classes of persons for food stamp purposes: one class is composed of those individuals who live in households all of whose members are related to one another, and the other class consists of those individuals who live in households containing one or more members who are unrelated to the rest. The latter class of persons is denied federal food assistance. A three-judge District Court for the District of Columbia held this classification invalid as violative of the Due Process Clause of the Fifth Amendment. 345 F. Supp. 310 (1972). We noted probable jurisdiction. 409 U.S. 1036 (1972). We affirm. I The federal food stamp program was established in 1964 in an effort to alleviate hunger and malnutrition among the more needy segments of our society. 7 U.S.C. § 2011. Eligibility for participation in the program is determined on a household, rather than an individual basis. 7 CFR § 271.3(a). An eligible household purchases sufficient food stamps to provide that household with a nutritionally adequate diet. The household pays for the stamps at a reduced rate based Page 413 U. S. 530 upon its size and cumulative income. The food stamps are then used to purchase food at retail stores, and the Government redeems the stamps at face value, thereby paying the difference between the actual cost of the food and the amount paid by the household for the stamps. See 7 U.S.C. §§ 2013(a), 2016, 2025(a). As initially enacted, § 3(e) defined a "household" as "a group of related or non-related individuals, who are not residents of an institution or boarding house, but are living as one economic unit sharing common cooking facilities and for whom food is customarily purchased in common. [ Footnote 1 ]" In January, 1971, however, Congress redefined the term "household" so as to include only groups of related individuals. [ Footnote 2 ] Pursuant to this amendment, the Secretary of Agriculture promulgated regulations rendering ineligible for participation in the program any "household" whose members are not "all related to each other." [ Footnote 3 ] Page 413 U. S. 531 Appellees in this case consist of several groups of individuals who allege that, although they satisfy the income eligibility requirements for federal food assistance, they have nevertheless been excluded from the program solely because the persons in each group are not "all related to each other." Appellee Jacinta Moreno, for example, is a 56-year-old diabetic who lives with Ermina Sanchez and the latter's three children. They share common living expenses, and Mrs. Sanchez helps to care for appellee. Appellee's monthly income, derived from public assistance, is $75; Mrs. Sanchez receives $133 per month from public assistance. The household pays $135 per month for rent, gas, and electricity, of which appellee pays $50. Appellee spends $10 per month for transportation to a hospital for regular visits, and $5 per month for laundry. That leaves her $10 per month for food and other necessities. Despite her poverty, appellee has been denied federal food assistance solely because she is unrelated to the other members of her household. Moreover, although Mrs. Sanchez and her three children were permitted to purchase $108 worth of food stamps per month for $18, their participation in the program will be Page 413 U. S. 532 terminated if appellee Moreno continues to live with them. Appellee Sheilah Hejny is married and has three children. Although the Hejnys are indigent, they took in a 20-year-old girl, who is unrelated to them, because "we felt she had emotional problems." The Hejnys receive $144 worth of food stamps each month for $14. If they allow the 20-year-old girl to continue to live with them, they will be denied food stamps by reason of § 3(e). Appellee Victoria Keppler has a daughter with an acute hearing deficiency. The daughter requires special instruction in a school for the deaf. The school is located in an area in which appellee could not ordinarily afford to live. Thus, in order to make the most of her limited resources, appellee agreed to share an apartment near the school with a woman who, like appellee, is on public assistance. Since appellee is not related to the woman, appellee's food stamps have been, and will continue to be, cut off if they continue to live together. These and two other groups of appellees instituted a class action against the Department of Agriculture, its Secretary, and two other departmental officials, seeking declaratory and injunctive relief against the enforcement of the 1971 amendment of § 3(e) and its implementing regulations. In essence, appellees contend, [ Footnote 4 ] and the District Court held, that the "unrelated person" provision of § 3(e) creates an irrational classification in violation Page 413 U. S. 533 of the equal protection component of the Due Process Clause of the Fifth Amendment. [ Footnote 5 ] We agree. II Under traditional equal protection analysis, a legislative classification must be sustained if the classification itself is rationally related to a legitimate governmental interest. See Jefferson v. Hackney, 406 U. S. 535 , 406 U. S. 546 (1972); Richardson v. Belcher, 404 U. S. 78 , 404 U. S. 81 (1971); Dandridge v. Williams. 397 U. S. 471 , 397 U. S. 485 (1970); McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 426 (1961). The purposes of the Food Stamp Act were expressly set forth in the congressional "declaration of policy": "It is hereby declared to be the policy of Congress . . . to safeguard the health and wellbeing of the Nation's population and raise levels of nutrition among low income households. The Congress hereby finds that the limited food purchasing power of low income households contributes to hunger and malnutrition among members of such households. The Congress further finds that increased utilization of food in establishing and maintaining adequate national levels of nutrition will promote the distribution in a beneficial manner of our agricultural abundances and will strengthen our agricultural economy, as well as result in more orderly marketing and distribution of food. To alleviate such hunger and malnutrition, a food stamp program is herein authorized which will permit low income households to Page 413 U. S. 534 purchase a nutritionally adequate diet through normal channels of trade." 7 U.S.C. § 2011. The challenged statutory classification (households of related persons versus households containing one or more unrelated persons) is clearly irrelevant to the stated purposes of the Act. As the District Court recognized, "[t]he relationships among persons constituting one economic unit and sharing cooking facilities have nothing to do with their abilities to stimulate the agricultural economy by purchasing farm surpluses, or with their personal nutritional requirements." 345 F. Supp. at 313. Thus, if it is to be sustained, the challenged classification must rationally further some legitimate governmental interest other than those specifically stated in the congressional "declaration of policy." Regrettably, there is little legislative history to illuminate the purposes of the 1971 amendment of § 3(e). [ Footnote 6 ] The legislative history that does exist, however, indicates that that amendment was intended to prevent so-called "hippies" and "hippie communes" from participating in the food stamp program. See H.R.Conf.Rep. No. 91-1793, p. 8; 116 Cong.Rec. 44439 (1970) (Sen. Holland). The challenged classification clearly cannot be sustained by reference to this congressional purpose. For if the constitutional conception of "equal protection of the laws" means anything, it must, at the very least, mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. As a result, "[a] purpose to discriminate against hippies cannot, in and of itself and without reference to [some independent] considerations in the Page 413 U. S. 535 public interest, justify the 1971 amendment." 345 F. Supp. at 314 n. 11. Although apparently conceding this point, the Government maintains that the challenged classification should nevertheless be upheld as rationally related to the clearly legitimate governmental interest in minimizing fraud in the administration of the food stamp program. [ Footnote 7 ] In essence, the Government contends that, in adopting the 1971 amendment, Congress might rationally have thought (1) that households with one or more unrelated members are more likely than "fully related" households to contain individuals who abuse the program by fraudulently failing to report sources of income or by voluntarily remaining poor; and (2) that such households are "relatively unstable," thereby increasing the difficulty of detecting such abuses. But even if we were to accept as rational the Government's wholly unsubstantiated assumptions concerning the differences between "related" and "unrelated" households, we still could not agree with the Government's conclusion that the denial of essential Page 413 U. S. 536 federal food assistance to all otherwise eligible households containing unrelated members constitutes a rational effort to deal with these concerns. At the outset, it is important to note that the Food Stamp Act itself contains provisions, wholly independent of § 3(e), aimed specifically at the problems of fraud and of the voluntarily poor. For example, with certain exceptions, § 5(c) of the Act, 7 U.S.C. § 2014(c), renders ineligible for assistance any household containing "an able-bodied adult person between the ages of eighteen and sixty-five" who fails to register for, and accept, offered employment. Similarly, §§ 14(b) and (c), 7 U.S.C. §§ 2023(b) and (c), specifically impose strict criminal penalties upon any individual who obtains or uses food stamps fraudulently. [ Footnote 8 ] The existence of these provisions Page 413 U. S. 537 necessarily casts considerable doubt upon the proposition that the 1971 amendment could rationally have been intended to prevent those very same abuses. See Eisenstadt v. Baird, 405 U. S. 438 , 405 U. S. 452 (1972); cf. Dunn v. Blumstein, 405 U. S. 330 , 405 U. S. 353 -354 (1972). Moreover, in practical effect, the challenged classification simply does not operate so as rationally to further the prevention of fraud. As previously noted, § 3(e) defines an eligible "household" as "a group of related individuals . . . [1] living as one economic unit [2] sharing common cooking facilities [and 3] for whom food is customarily purchased in common." Thus, two unrelated persons living together and meeting all three of these conditions would constitute a single household ineligible for assistance. If financially feasible, however, these same two individuals can legally avoid the "unrelated person" exclusion simply by altering their living arrangements so as to eliminate any one of the three conditions. By so doing, they effectively create two separate "households," both of which are eligible for assistance. See Knowles v. Butz, 358 F. Supp. 228 (ND Cal.1973). Indeed, as the California Director of Social Welfare has explained: "The 'related household' limitations will eliminate many households from eligibility in the Food Stamp Program. It is my understanding that the Congressional intent of the new regulations are specifically aimed at the 'hippies' and 'hippie communes.' Most people in this category can and will alter their living arrangements in order to remain eligible for food stamps. However, the AFDC mothers who try to raise their standard of living by sharing housing will be affected. They will not be able to Page 413 U. S. 538 utilize the altered living patterns in order to continue o be eligible without giving up their advantage of shared housing costs." Thus, in practical operation, the 1971 amendment excludes from participation in the food stamp program, not those persons who are "likely to abuse the program" but, rather, only those persons who are so desperately in need of aid that they cannot even afford to alter their living arrangements so as to retain their eligibility. Traditional equal protection analysis does not require that every classification be drawn with precise " mathematical nicety.'" Dandridge v. Williams, 397 U.S. at 397 U. S. 485 . But the classification here in issue is not only "imprecise," it is wholly without any rational basis. The judgment of the District Court holding the "unrelated person" provision invalid under the Due Process Clause of the Fifth Amendment is therefore Affirmed. [ Footnote 1 ] 78 Stat. 703 (emphasis added). The act provided further that "[t]he term 'household' shall also mean a single individual living alone who has cooking facilities and who purchases and prepares food for home consumption." Ibid. [ Footnote 2 ] 84 Stat. 2048. The 1971 amendment did not affect certain groups of nonrelated individuals over 60 years of age. As amended, § 3(e) now provides: "The term 'household' shall mean a group of related individuals (including legally adopted children and legally assigned foster children) or non-related individuals over age 60 who are not residents of an institution or boarding house, but are living as one economic unit sharing common cooking facilities and for whom food is customarily purchased in common. The term 'household' shall also mean (1) a single individual living alone who has cooking facilities and who purchases and prepares food for home consumption, or (2) an elderly person who meets the requirements of section 2019(h) of this title." 7 U.S.C. § 2012(e). [ Footnote 3 ] Title 7 CFR § 270.2(jj) provides: "(jj) 'Household' means a group of persons, excluding roomers, boarders, and unrelated live-in attendants necessary for medical, housekeeping, or child care reasons, who are not residents of an institution or boarding house, and who are living as one economic unit sharing common cooking facilities and for whom food is customarily purchased in common: Provided, That: " "(1) When all persons in the group are under 60 years of age, they are all related to each other; and" "(2) When more than one of the persons in the group is under 60 years of age, and one or more other persons in the group is 60 years of age or older, each of the persons under 60 years of age is related to each other or to at least one of the persons who is 60 years of age or older." "It shall also mean (i) a single individual living alone who purchases and prepares food for home consumption, or (ii) an elderly person as defined in this section, and his spouse." [ Footnote 4 ] Appellees also argued that the regulations themselves were invalid because beyond the scope of the authority conferred upon the secretary by the statute. The District Court rejected that contention, and appellees have not pressed that argument on appeal. Moreover, appellees did not challenge the constitutionality of the statutes reliance on "households" rather than "individuals" as the basic unit of the food stamp program. We therefore intimate no view on that question. [ Footnote 5 ] "[W]hile the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is 'so unjustifiable as to be violative of due process.'" Schneider v. Rusk, 377 U. S. 163 , 377 U. S. 168 (1964); see Frontiero v. Richardson, 411 U. S. 677 , 411 U. S. 680 n. 5 (1973); Shapiro v. Thompson, 394 U. S. 618 , 394 U. S. 641 -642 (1969); Bolling v. Sharpe, 347 U. S. 497 (1954). [ Footnote 6 ] Indeed, the amendment first materialized, bare of committee consideration, during a conference committee's consideration of differing House and Senate bills. [ Footnote 7 ] The Government initially argued to the District Court that the challenged classification might be justified as a means to foster "morality." In rejecting that contention, the District Court noted that "interpreting the amendment as an attempt to regulate morality would raise serious constitutional questions." 345 F. Supp. 310 , 314. Indeed, citing this Court's decisions in Griswold v. Connecticut, 381 U. S. 479 (1965), Stanley v. Georgia, 394 U. S. 557 (1969), and Eisenstadt v. Baird, 405 U. S. 438 (1972), the District Court observed that it was doubtful, at best, whether Congress, "in the name of morality," could "infringe the rights to privacy and freedom of association in the home. " 345 F. Supp. at 314. (Emphasis in original.) Moreover, the court also pointed out that the classification established in § 3(e) was not rationally related "to prevailing notions of morality, since it in terms disqualifies all households of unrelated individuals, without reference to whether a particular group contains both sexes." Id. at 315. The Government itself has now abandoned the "morality" argument. See Brief for Appellants 9. [ Footnote 8 ] Title 7 U.S.C. §§ 2023(b) and (c) provide: "(b) Whoever knowingly uses, transfers, acquires, alters, or possesses coupons or authorization to purchase cards in any manner not authorized by this [Act] or the regulations issued pursuant to this [Act] shall, if such coupons or authorization to purchase cards are of the value of $100 or more, be guilty of a felony and shall, upon conviction thereof, be fined not more than $10,000 or imprisoned for not more than five years or both, or, if such coupons or authorization to purchase cards are of a value of less than $100, shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not more than $5,000 or imprisoned for not more than one year, or both." "(c) Whoever presents, or causes to be presented, coupons for payment or redemption of the value of $100 or more, knowing the same to have been received, transferred, or used in any manner in violation of the provisions of this [Act] or the regulations issued pursuant to this [Act] shall be guilty of a felony and shall, upon conviction thereof, be fined not more than $10,000 or imprisoned for not more than five years, or both, or, if such coupons are of a value of less than $100, shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not more than $5,000 or imprisoned for not more than one year, or both." MR. JUSTICE DOUGLAS, concurring. Appellee Jacinta Moreno is a 56-year-old diabetic who lives with Ermina Sanchez and the latter's three children. The two share common living expenses, Mrs. Sanchez helping to care for this appellee. Appellee's monthly income is $75, derived from public assistance, and Mrs. Sanchez' is $133, also derived from public assistance. This household pays $95 a month for rent, of which appellee pays $40, and $40 a month for gas and electricity, of which appellee pays $10. Appellee spends $10 a month for transportation to a hospital for regular visits and $5 a month for laundry. That leaves her $10 a month for food and other necessities. Mrs. Sanchez and the three children received $108 worth of food stamps per month for $18. But under the "unrelated" person Page 413 U. S. 539 provision of the Act, [ Footnote 2/1 ] she will be cut off if appellee Moreno continues to live with her. Appellee Sheilah Hejny is married and has three children, ages two to five. She and her husband took in a 20-year-old girl who is unrelated to them. She shares in the housekeeping. The Hejnys pay $14 a month and receive $144 worth of food stamps. The Hejnys comprise an indigent household. But if they allow the 20-year-old girl to live with them, they too will be cut off from food stamps by reason of the "unrelated" person provision. Page 413 U. S. 540 Appellee Keppler has a daughter with an acute hearing deficiency who requires instruction in a school for the deaf. The school is in an area where the mother cannot afford to live. So she and her two minor children moved into a nearby apartment with a woman who, like appellee Keppler, is on public assistance but who is not related to her. As a result, appellee Keppler's food stamps have been cut off because of the "unrelated" person provision. These appellees instituted a class action to enjoin the enforcement of the "unrelated" person provision of the Act. The "unrelated" person provision of the Act creates two classes of persons for food stamp purposes: one class is composed of people who are all related to each other and all in dire need, and the other class is composed of households that have one or more persons unrelated to the others but have the same degree of need as those in the first class. The first type of household qualifies for relief, the second cannot qualify, no matter the need. It is that application of the Act which is said to violate the conception of equal protection that is implicit in the Due Process Clause of the Fifth Amendment. Bolling v. Sharpe, 347 U. S. 497 , 347 U. S. 499 . The test of equal protection is whether the legislative line that is drawn bears "some rational relationship to a legitimate" governmental purpose. [ Footnote 2/2 ] Weber v. Aetna Page 413 U. S. 541 Casualty & Surety Co., 406 U. S. 164 , 406 U. S. 172 . The requirement of equal protection denies government "the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective" of the enactment. Reed v. Reed, 404 U. S. 71 , 404 U. S. 75 -76. This case involves desperately poor people with acute problems who, though unrelated, come together for mutual help and assistance. The choice of one's associates for social, political, race, or religious purposes is basic in our constitutional scheme. NAACP v. Alabama, 357 U. S. 449 , 357 U. S. 460 ; De Jonge v. Oregon, 299 U. S. 353 , 299 U. S. 363 ; NAACP v. Button, 371 U. S. 415 , 371 U. S. 429 -431; Gibson v. Florida Legislative Committee, 372 U. S. 539 ; NAACP v. Alabama, 377 U. S. 288 . It extends to "the associational rights of the members" of a trade union. Brotherhood of Railroad Trainmen v. Virginia Bar, 377 U. S. 1 , 377 U. S. 8 . I suppose no one would doubt that an association of people working in the poverty field would be entitled to the same constitutional protection as those working in the racial, banking, or agricultural field. I suppose poor people holding a meeting or convention would be under the same constitutional umbrella as others. The dimensions of the "unrelated" person problem under the Food Stamp Act are in that category. As the facts of this case show, the poor are congregating in households where they can better meet the adversities of poverty. This banding together is an expression of the right of freedom of association that is very deep in our traditions. Page 413 U. S. 542 Other like rights have been recognized that are only peripheral First Amendment rights -- the right to send one's child to a religious school, the right to study the German language in a private school, the protection of the entire spectrum of learning, teaching, and communicating ideas, the marital right of privacy. Griswold v. Connecticut, 381 U. S. 479 , 381 U. S. 482 -483. As the examples indicate, these peripheral constitutional rights are exercised not necessarily in assemblies that congregate in halls or auditoriums but in discrete individual actions such as parents placing a child in the school of their choice. Taking a person into one's home because he is poor or needs help or brings happiness to the household is of the same dignity. Congress might choose to deal only with members of a family of one or two or three generations, treating it all as a unit. Congress, however, has not done that here. Concededly an individual living alone is not disqualified from the receipt of food stamp aid, even though there are other members of the family with whom he might theoretically live. Nor are common law couples disqualified: they, like individuals living alone, may qualify under the Act if they are poor -- whether they have abandoned their wives and children and however anti-family their attitudes may be. In other words, the "unrelated" person provision was not aimed at the maintenance of normal family ties. It penalizes persons or families who have brought under their roof an "unrelated" needy person. It penalizes the poorest of the poor for doubling up against the adversities of poverty. But for the constitutional aspects of the problem, the "unrelated" person provision of the Act might well be sustained as a means to prevent fraud. Fraud is a concern of the Act. 7 U.S.C. §§ 2023(b) and (c). Able-bodied persons must register and accept work or lose their food. stamp rights. 7 U.S.C. § 2014(c). I Page 413 U. S. 543 could not say that this "unrelated" person provision has no "rational" relation to control of fraud. We deal here, however, with the right of association, protected by the First Amendment. People who are desperately poor but unrelated come together and join hands with the aim better to combat the crises of poverty. The need of those living together better to meet those crises is denied, while the need of households made up of relatives that is no more acute is serviced. Problems of the fisc, as we stated in Shapiro v. Thompson, 394 U. S. 618 , 394 U. S. 633 , are legitimate concerns of government. But government "may not accomplish such a purpose by invidious distinctions between classes of its citizens." Ibid. The legislative history of the Act indicates that the "unrelated" person provision of the Act was to prevent "essentially unrelated individuals who voluntarily chose to cohabit and live off food stamps" [ Footnote 2/3 ] -- so-called "hippies" or "hippy communes" -- from participating in the food stamp program. As stated in the Conference Report, [ Footnote 2/4 ] the definition of household was "designed to prohibit food stamp assistance to communal families' of unrelated individuals." The right of association, the right to invite the stranger into one's home is too basic in our constitutional regime to deal with roughshod. If there are abuses inherent in that pattern of living against which the food stamp program should be protected, the Act must be "narrowly drawn," Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 307 , to meet the precise end. The method adopted and applied to these cases makes § 3(e) of the Act unconstitutional by reason of the invidious discrimination between the two classes of needy persons. Page 413 U. S. 544 Dandridge v. Williams, 397 U. S. 471 , is not opposed. It sustained a Maryland grant of welfare, against the claim of violation of equal protection, which placed an upper limit on the monthly amount any single family could receive. The claimants had large families, so that their standard of need exceeded the actual grants. Their claim was that the grants of aid, considered in light of the size of their families, created an invidious discrimination against them and in favor of small needy families. The claim was rejected on the basis that state economic or social legislation had long been judged by a less strict standard than comes into play when constitutionally protected rights are involved. Id. at 397 U. S. 484 -48. Laws touching social and economic matters can pass muster under the Equal Protection Clause though they are imperfect, the test being whether the classification has some "reasonable basis." Ibid. Dandridge held that "the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy." Id. at 397 U. S. 486 . But for the First Amendment aspect of the case, Dandridge would control here. Dandridge, however, did not reach classifications touching on associational rights that lie in the penumbra of the First Amendment. Since the "unrelated" person provision is not directed to the maintenance of the family as a unit but treats impoverished households composed of relatives more favorably than impoverished households having a single unrelated person, it draws a line that can be sustained only on a showing of a "compelling" governmental interest. The "unrelated" person provision of the present Act has an impact on the rights of people to associate for lawful purposes with whom they choose. When state action "may have the effect of curtailing the freedom to Page 413 U. S. 545 associate" it "is subject to the closest scrutiny." NAACP v. Alabama, 357 U.S. at 357 U. S. 460 -461. The "right of the people peaceably to assemble" guaranteed by the First Amendment covers a wide spectrum of human interests -- including, as stated in id. at 357 U. S. 460 , "political, economic, religious, or cultural matters." Banding together to combat the common foe of hunger is in that category. The case therefore falls within the zone represented by Shapiro v. Thompson, supra, which held that a waiting period on welfare imposed by a State on the "in-migration of indigents" penalizing the constitutional right to travel could not be sustained absent a "compelling governmental interest." Id. at 394 U. S. 631 , 394 U. S. 634 . [ Footnote 2/1 ] Section 3(e) of the Food Stamp Act provides in relevant part: "The term 'household' shall mean a group of related individuals (including legally adopted children and legally assigned foster children) or non-related individuals over age 60 who are not residents of an institution or boarding house, but are living as one economic unit sharing common cooking facilities and for whom food is customarily purchased in common." 7 U.S.C. § 2012(e). The Regulations provide: "'Household' means a group of persons, excluding roomers, boarders, and unrelated live-in attendants necessary for medical, housekeeping, or child care reasons, who are not residents of an institution or boarding house, and who are living as one economic unit sharing common cooking facilities and for whom food is customarily purchased in common: Provided, That: " "(1) When all persons in the group are under 60 years of age, they are all related to each other; and" "(2) When more than one of the persons in the group is under 60 years of age, and one or more other persons in the group is 60 years of age or older, each of the persons under 60 years of age is related to each other or to at least one of the persons who is 60 years of age or older." 7 CFR § 270.2(jj). "Eligibility for and participation in the program shall be on a household basis. All persons, excluding roomers, boarders, and unrelated live-in attendants necessary for medical, housekeeping, or child care reasons, residing in common living quarters shall be consolidated into a group prior to determining if such a group is a household as determined in § 270.2(jj) of this subchapter." 7 CFR § 271.3(a). [ Footnote 2/2 ] The purpose of the present Act was stated by Congress: "[T]o safeguard the health and wellbeing of the Nation's population and raise levels of nutrition among low income households. The Congress hereby finds that the limited food purchasing power of low income households contributes to hunger and malnutrition among members of such households. The Congress further finds that increased utilization of food in establishing and maintaining adequate national levels of nutrition will promote the distribution in a beneficial manner of our agricultural abundances and will strengthen our agricultural economy, as well as result in more orderly marketing and distribution of food. To alleviate such hunger and malnutrition, a food stamp program is herein authorized which will permit low income households to purchase a nutritionally adequate diet through normal channels of trade." 7 U.S.C. § 2011. (Italics added.) [ Footnote 2/3 ] See 116 Cong.Rec. 42003. [ Footnote 2/4 ] H.R.Conf.Rep. No. 91-1793, p. 8. MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE concurs, dissenting. For much the same reasons as those stated in my dissenting opinion in United States Department of Agriculture v. Murry, ante p. 413 U. S. 522 , I am unable to agree with the Court's disposition of this case. Here, appellees challenged a provision in the Federal Food Stamp Act, 7 U.S.C. § 2011 et seq., which limited food stamps to related people living in one "household." The result of this provision is that unrelated persons who live under the same roof and pool their resources may not obtain food stamps even though otherwise eligible. The Court's opinion would make a very persuasive congressional committee report arguing against the adoption of the limitation in question. Undoubtedly, Congress attacked the problem with a rather blunt instrument, and, just as undoubtedly, persuasive arguments may be made that what we conceive to be its purpose will not be significantly advanced by the enactment of the limitation. But questions such as this are for Congress, rather than for this Court; our role is limited to the Page 413 U. S. 546 determination of whether there is any rational basis on which Congress could decide that public funds made available under the food stamp program should not go to a household containing an individual who is unrelated to any other member of the household. I do not believe that asserted congressional concern with the fraudulent use of food stamps is, when interpreted in the light most favorable to sustaining the limitation, quite as irrational as the Court seems to believe. A basic unit which Congress has chosen for determination of availability for food stamps is the "household," a determination which is not criticized by the Court. By the limitation here challenged, it has singled out households which contain unrelated persons and made such households ineligible. I do not think it is unreasonable for Congress to conclude that the basic unit which it was willing to support with federal funding through food stamps is some variation on the family as we know it -- a household consisting of related individuals. This unit provides a guarantee which is not provided by households containing unrelated individuals that the household exists for some purpose other than to collect federal food stamps. Admittedly, as the Court points out, the limitation will make ineligible many households which have not been formed for the purpose of collecting federal food stamps, and will, at the same time, not wholly deny food stamps to those households which may have been formed in large part to take advantage of the program. But, as the Court concedes, "[t]raditional equal protection analysis does not require that every classification be drawn with precise mathematical nicety,'" ante at 413 U. S. 538 . And earlier this Term, the constitutionality of a similarly "imprecise" rule promulgated pursuant to the Truth in Lending Act was challenged Page 413 U. S. 547 on grounds such as those urged by appellees here. In Mourning v. Family Publications Service, Inc., 411 U. S. 356 (1973), the imposition of the rule on all members of a defined class was sustained because it served to discourage evasion by a substantial portion of that class of disclosure mechanisms chosen by Congress for consumer protection. The limitation which Congress enacted could, in the judgment of reasonable men, conceivably deny food stamps to members of households which have been formed solely for the purpose of taking advantage of the food stamp program. Since the food stamp program is not intended to be a subsidy for every individual who desires low-cost food, this was a permissible congressional decision quite consistent with the underlying policy of the Act. The fact that the limitation will have unfortunate and perhaps unintended consequences beyond this does not make it unconstitutional.

The Supreme Court ruled that a provision in the Food Stamp Act of 1964 that excluded households with unrelated members from the food stamp program was unconstitutional. The Court found that the classification was irrelevant to the stated purposes of the Act and did not rationally further any legitimate governmental interest. The Court also noted that the provision excluded those who desperately needed aid, while not necessarily preventing those likely to abuse the program from receiving benefits. Justice Brennan delivered the opinion of the Court, with Justices Douglas, Stewart, White, Marshall, Blackmun, and Powell joining. Justice Douglas wrote a separate concurring opinion, while Justice Rehnquist dissented, joined by Chief Justice Burger.

Equal Protection

Mathews v. Lucas

https://supreme.justia.com/cases/federal/us/427/495/

U.S. Supreme Court Mathews v. Lucas, 427 U.S. 495 (1976) Mathews v. Lucas No. 75-88 Argued January 13, 1976 Decided June 29, 1976 427 U.S. 495 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND Syllabus The Social Security Act provides that a child of an individual who died fully insured under the Act, is entitled to surviving child's benefits if the child is under 18, or a student under 22, and was dependent at the time of the parent's death. A child is considered dependent if the insured parent was living with him or contributed to the child's support at the time of death. Certain children, however, need not submit such individualized proof of dependency. Unless adopted by some other person, a child who is legitimate or would be entitled to inherit from the insured parent under state law is considered dependent at the time of the parent's death, or even lacking this relationship under state intestacy law is entitled to a presumption of dependency if the decedent before death had gone through a marriage ceremony with the other parent, resulting in a purported marriage which, but for a nonobvious defect, would have been valid, or had acknowledged in writing that the child was his, or had been decreed by a court to be the child's father, or had been ordered by a court to support the child because the child was his. After their father died, appellee illegitimate children were administratively denied surviving children's benefits on the ground that they failed to show dependency by proof that their father lived with them or was contributing to their support at the time of his death, or by any of the statutory presumptions of dependency. After this ruling was upheld on administrative appeal, appellees filed an action for review against appellant Secretary of Health, Education, and Welfare, alleging that the denial of benefits violated the equal protection component of the Due Process Clause of the Fifth Amendment because other children, including all legitimate children, are statutorily entitled, as appellee children are not, to survivors' benefits regardless of actual dependency. The District Court held that the statutory classifications were constitutionally impermissible, reversing the administrative decision and ordering that benefits be paid to the children. Held: 1. The judicial scrutiny traditionally devoted to cases involving Page 427 U. S. 496 discrimination along lines of race or national origin is not required because legislation treats legitimate and illegitimate offspring differently. Pp. 427 U. S. 503 -506. 2. The challenged statutory classifications are permissible because they are reasonably related to the likelihood of dependency at death, and in failing to extend any presumption of dependency to appellee children and others like them, the Act does not impermissibly discriminate against them as compared with legitimate children or those illegitimate children who are statutorily deemed dependent. Pp. 427 U. S. 507 -516. (a) While Congress was unwilling to assume that every child of a deceased insured was dependent at the time of death, by presuming dependency on the basis of relatively readily documented facts, such as legitimate birth, or a support order or paternity decree, which could be relied upon to indicate the likelihood of continued actual dependency, Congress was able to avoid the burden and expense of specific case-by-case determination in the large number of cases where dependency is objectively probable. Such presumptions in aid of administrative functions, though they may approximate, rather than precisely mirror, the results that case-by-case adjudication would show, are permissible under the Fifth Amendment, so long as that lack of precise equivalence does not exceed the bounds of substantiality tolerated by the applicable level of scrutiny. Pp. 427 U. S. 509 -510. (b) The challenged classifications are justified as reasonable empirical judgments that are consistent with a design to qualify entitlement to benefits upon a child's dependency at the time of the parent's death. Gomez v. Perez, 409 U. S. 535 ; New Jersey Welfare Rights Org. v. Cahill, 411 U. S. 619 ; Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 ; Levy v. Louisiana, 391 U. S. 68 ; Jimenez v. Weinberger, 417 U. S. 628 ; Frontiero v. Richardson, 411 U. S. 677 , distinguished. Pp. 427 U. S. 510 -516. 390 F. Supp. 1310 , reversed. BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, POWELL, and REHNQUIST, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 427 U. S. 516 . Page 427 U. S. 497 MR. JUSTICE BLACKMUN delivered the opinion of the Court. This case presents the issue of the constitutionality, under the Due Process Clause of the Fifth Amendment, of those provisions of the Social Security Act that condition the eligibility of certain illegitimate children for a surviving child's insurance benefits upon a showing that the deceased wage earner was the claimant child's parent and, at the time of his death was living with the child or was contributing to his support. I Robert Cuffee, now deceased, lived with Belmira Lucas during the years 1948 through 1966, but they were never married. Two children were born to them during these years: Ruby M. Lucas, in 1953, and Darin E. Lucas, in 1960. In 1966, Cuffee and Lucas separated. Cuffee died in Providence, R.I., his home, in 1968. He died without ever having acknowledged in writing his paternity of either Ruby or Darin, and it was never determined in any judicial proceeding during his lifetime that he was the father of either child. After Cuffee's death, Mrs. Lucas filed an application on behalf of Ruby and Darin for surviving children's benefits under § 202(d)(1) of the Social Security Act, 70 Stat. 807, as amended, 42 U.S.C. § 402(d)(1) (1970 ed. and Supp. IV), based upon Cuffee's earnings record. II In operative terms, the Act provides that an unmarried son or daughter of an individual, who died fully or currently insured under the Act, may apply for and be Page 427 U. S. 498 entitled to a survivor's benefit, if the applicant is under 18 years of age at the time of application (or is a full-time student and under 22 years of age) and was dependent, within the meaning of the statute, at the time of the parent's death. [ Footnote 1 ] A child is considered dependent for this purpose if the insured father was living with or contributing to the child's support at the time of death. Certain children, however, are relieved of the burden of such individualized proof of dependency. Unless the child has been adopted by some other individual, a child Page 427 U. S. 499 who is legitimate, or a child who would be entitled to inherit personal property from the insured parent's estate under the applicable state intestacy law is considered to have been dependent at the time of the parent's death. [ Footnote 2 ] Even lacking this relationship under state law, a child, unless adopted by some other individual, is entitled to a presumption of dependency if the decedent, before death, (a) had gone through a marriage ceremony with the other parent, resulting in a purported marriage between them which, but for a nonobvious legal defect, would have been valid, or (b) in writing had acknowledged the child to be his, or (c) had been decreed by a court to be the child's father, or (d) had been ordered by a court to support the child because the child was his. [ Footnote 3 ] Page 427 U. S. 500 Examiner of the Social Security Administration, after hearings, determined that, while Cuffee's paternity was established, the children had failed to demonstrate their dependency by proof that Cuffee either lived with them or was contributing to their support at the time Page 427 U. S. 501 of his death, or by any of the statutory presumptions of dependency, and thus that they were not entitled to survivorship benefits under the Act. The Appeals Council of the Social Security Administration affirmed these rulings, and they became the final decision of the Secretary of Health, Education, and Welfare. Lucas then timely filed this action, pursuant to § 205(g) of the Act, 42 U.S.C. § 405(g), in the United States District Court for the District of Rhode Island on behalf of the two children (hereinafter sometimes called the appellees) for review of the Secretary's decision. The District Court ultimately affirmed each of the factual findings of the administrative agency: that Robert Cuffee was the children's father; that he never acknowledged his paternity in writing; that his paternity or support obligations had not been the subject of a judicial proceeding during his lifetime; that no common law marriage had ever been contracted between Cuffee and Lucas, so that the children could not inherit Cuffee's personal property under the intestacy law of Rhode Island; and that, at the time of his death, he was neither living with the children nor contributing to their support. 390 F. Supp. 1310 , 1312-1314 (1975). None of these factual matters is at issue here. [ Footnote 4 ] Page 427 U. S. 502 A motion for summary judgment, filed by the appellees, relied on Jimenez v. Weinberger, 417 U. S. 628 (1974). It was urged that denial of benefits in this case, where paternity was clear, violated the Fifth Amendment's Due Process Clause, as that provision comprehends the principle of equal protection of the laws, [ Footnote 5 ] because other children, including all legitimate children, are statutorily entitled, as the Lucas children are not, to survivorship benefits regardless of actual dependency. Addressing this issue, the District Court ruled that the statutory classifications were constitutionally impermissible. [ Footnote 6 ] 390 F. Supp. at 1314-1321. Recognizing that the web of statutory provisions regarding presumptive dependency was overinclusive because it entitled some children, who were not actually dependent, to survivorship benefits under the Act -- although not underinclusive, since no otherwise eligible child who could establish actual dependency at the time of death was denied such benefits -- the court concluded that the Act was not intended merely to replace actual support that a child lost through the death of the insured parent. Id. at 1319-1320. Rather, the court characterized the statute as one designed to replace obligations of support or potential Page 427 U. S. 503 support lost through death, where the obligation was perceived by Congress, on the basis of the responsibility of the relation between the child's parents, to be a valid one. Thus, the court concluded: "[The Act] conditions eligibility on the basis of Congress' views as to who is entitled to support and reflects society's view that legitimate and 'legitimated' children are more entitled to support by or through a parent than are illegitimate children. But this is not a legitimate governmental interest, and thus cannot support the challenged classification. Gomez v. Perez , [ 409 U.S. 535 (1973)]." Id. at 1320. (Emphasis in original.) With this conclusion, the District Court reversed the administrative decision and ordered the Secretary to pay benefits for both children. Jurisdictional Statement 28a. The Secretary appealed directly to this Court. 28 U.S.C. § 1252. We noted probable jurisdiction and set the case for argument with Norton v. Mathews, post, p. 427 U. S. 524 . 423 U. S. 19 (1975). III The Secretary does not disagree that the Lucas children and others similarly circumstanced are treated differently, as a class, from those children -- legitimate and illegitimate -- who are relieved by statutory presumption of any requirement of proving actual dependency at the time of death through cohabitation or contribution: for children in the advantaged classes may be statutorily entitled to benefits even if they have never been dependent upon the father through whom they claim. [ Footnote 7 ] Statutory Page 427 U. S. 504 classifications, of course, are not per se unconstitutional; the matter depends upon the character of the discrimination and its relation to legitimate legislative aims. "The essential inquiry . . . is . . . inevitably a dual one: what legitimate [governmental] interest does the classification promote? What fundamental personal rights might the classification endanger?" Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 , 406 U. S. 173 (1972). Although the District Court concluded that close judicial scrutiny of the statute's classifications was not necessary to its conclusion invalidating those classifications, it also concluded that legislation treating legitimate and illegitimate offspring differently is constitutionally suspect, [ Footnote 8 ] 390 F. Supp. at 1318-1319, and requires the judicial scrutiny traditionally devoted to cases involving discrimination along lines of race [ Footnote 9 ] or national origin. [ Footnote 10 ] Appellees echo this approach. We disagree. [ Footnote 11 ] Page 427 U. S. 505 It is true, of course, that the legal status of illegitimacy, however defined, is, like race or national origin, a characteristic determined by causes not within the control of the illegitimate individual, and it bears no relation to the individual's ability to participate in and contribute to society. The Court recognized in Weber that visiting condemnation upon the child in order to express society's disapproval of the parents' liaisons "is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual -- as well as an unjust -- way of deterring the parent." 406 U.S. at 406 U. S. 175 . (Footnote omitted.) But where the law is arbitrary in such a way, we have had no difficulty in finding the discrimination impermissible on less demanding standards than those advocated here. New Jersey Welfare Rights Org. v. Cahill, 411 U. S. 619 (1973); Richardson v. Davis, 409 U.S. 1069 (1972); Richardson v. Griffin; 409 U.S. 1069 (1972); Weber, supra; Levy v. Louisiana, 391 U. S. 68 (1968). And such irrationality in some classifications does not in itself demonstrate that other, possibly rational, distinctions made in part on the basis of legitimacy are inherently untenable. Moreover, while the law has long Page 427 U. S. 506 placed the illegitimate child in an inferior position relative to the legitimate in certain circumstances, particularly in regard to obligations of support or other aspects of family law, see generally, e.g., H. Krause, Illegitimacy: Law and Social Policy 212 (1971); Gray & Rudovsky, The Court Acknowledges the Illegitimate: Levy v. Louisiana and Glona v. American Guarantee & Liability Insurance Co., 118 U.Pa.L.Rev. 1, 19-38 (1969), perhaps in part because the roots of the discrimination rest in the conduct of the parents rather than the child, [ Footnote 12 ] and perhaps in part because illegitimacy does not carry an obvious badge, as race or sex do, this discrimination against illegitimates has never approached the severity or pervasiveness of the historic legal and political discrimination against women and Negroes. See Frontiero v. Richardson, 411 U. S. 677 , 411 U. S. 684 -686 (1973) (plurality opinion). We therefore adhere to our earlier view, see Labine v. Vincent, 401 U. S. 532 (1971), that the Act's discrimination between individuals on the basis of their legitimacy does not "command extraordinary protection from the majoritarian political process," San Antonio School Dist. v. Rodriguez, 411 U.S. ___, 28 (1973), which our most exacting scrutiny would entail. [ Footnote 13 ] See Jimenez, 417 U.S. at 417 U. S. 631 -634, 417 U. S. 636 ; Weber, 406 U.S. at 406 U. S. 173 , 406 U. S. 175 -176. Page 427 U. S. 507 IV Relying on Weber, the Court, in Gomez v. Perez, 409 U. S. 535 , 409 U. S. 538 (1973), held that "once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother." The same principle, which we adhere to now, applies when the judicially enforceable right to needed support lies against the Government, rather than a natural father. See New Jersey Welfare Rights Org. v. Cahill, supra. Consistent with our decisions, the Secretary explains the design of the statutory scheme assailed here as a program to provide for all children of deceased insureds who can demonstrate their "need" in terms of dependency at the times of the insureds' deaths. Cf. Jimenez, 417 U.S. at 417 U. S. 634 . He authenticates this description by reference to the explicit language of the Act specifying that the applicant child's classification as legitimate, or acknowledged, etc., is ultimately relevant only to the determination of dependency, and by reference to legislative history indicating that the statute was not a general welfare provision for legitimate or otherwise "approved" children of deceased insureds, but was intended just "to replace the support lost by a child when his father . . . dies. . . ." S.Rep. No. 404, 89th Cong., 1st Sess., 110 (1965). Taking this explanation at face value, we think it clear that conditioning entitlement upon dependency at the time of death is not impermissibly discriminatory in providing only for those children for whom the loss of the parent is an immediate source of the need. Cf. Geduldig v. Aiello, 417 U. S. 484 , 417 U. S. 492 -497 (1974); Jefferson v. Hackney, 406 U. S. 535 (1972); Richardson v. Belcher , Page 427 U. S. 508 404 U. S. 78 (1971). See also Weber, 406 U.S. at 406 U. S. 174 -175. But appellees contend that the actual design of the statute belies the Secretary's description, and that the statute was intended to provide support for insured decedents' children generally, if they had a "legitimate" claim to support, without regard to actual dependency at death; in any case, they assert, the statute's matrix of classifications bears no adequate relationship to actual dependency at death. Since such dependency does not justify the statute's discriminations, appellees argue, those classifications must fall under Gomez v. Perez, supra. These assertions are, in effect, one and the same. [ Footnote 14 ] The basis for appellees' argument is the obvious fact that Page 427 U. S. 509 each of the presumptions of dependency renders the class of benefit recipients incrementally overinclusive, in the sense that some children within each class of presumptive dependents are automatically entitled to benefits under the statute although they could not in fact prove their economic dependence upon insured wage earners at the time of death. We conclude that the statutory classifications are permissible, however, because they are reasonably related to the likelihood of dependency at death. A Congress' purpose in adopting the statutory presumptions of dependency was obviously to serve administrative convenience. While Congress was unwilling to assume that every child of a deceased insured was dependent at the time of death, by presuming dependency on the basis of relatively readily documented facts, such as legitimate birth, or existence of a support order or paternity decree, which could be relied upon to indicate the likelihood of continued actual dependency, Congress was able to avoid the burden and expense of specific case-by-case determination in the large number of cases where dependency is objectively probable. Such presumptions in aid of administrative functions, though they may approximate, rather than precisely mirror, the results that case-by-case adjudication would show, are permissible under the Fifth Amendment so long as that lack of precise equivalence does not exceed the bounds of substantiality tolerated by the applicable level of scrutiny. See Weinberger v. Salfi, 422 U. S. 749 , 422 U. S. 772 (1975). [ Footnote 15 ] In cases of strictest scrutiny, such approximations must be supported at least by a showing that the Government's Page 427 U. S. 510 dollar "lost" to overincluded benefit recipients is returned by a dollar "saved" in administrative expense avoided. Frontiero v. Richardson, 411 U.S. at 411 U. S. 689 (plurality opinion). Under the standard of review appropriate here, however, the materiality of the relation between the statutory classifications and the likelihood of dependency they assertedly reflect need not be " scientifically substantiated.'" James v. Strange, 407 U. S. 128 , 407 U. S. 133 (1972), quoting Roth v. United States, 354 U. S. 476 , 354 U. S. 501 (1957) (opinion of Harlan, J.). Nor, in any case, do we believe that Congress is required in this realm of less than strictest scrutiny to weigh the burdens of administrative inquiry solely in terms of dollars ultimately "spent," ignoring the relative amounts devoted to administrative rather than welfare uses. Cf. Weinberger v. Salfi, 422 U.S. at 422 U. S. 784 . Finally, while the scrutiny by which their showing is to be judged is not a toothless one, e.g., Jimenez v. Weinberger, 417 U. S. 628 (1974); Frontiero v. Richardson, 411 U.S. at 411 U. S. 691 (STEWART, J., concurring in judgment, POWELL, J., concurring in judgment); Reed v. Reed, 404 U. S. 71 (1971), the burden remains upon the appellees to demonstrate the insubstantiality of that relation. See Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 , 220 U. S. 78 -79 (1911); cf. United States v. Gainey, 380 U. S. 63 , 380 U. S. 67 (1965). B Applying these principles, we think that the statutory classifications challenged here are justified as reasonable empirical judgments that are consistent with a design to qualify entitlement to benefits upon a child's dependency at the time of the parent's death. To begin with, we note that the statutory scheme is significantly different from the provisions confronted in cases in which the Page 427 U. S. 511 Court has invalidated legislative discriminations among children on the basis of legitimacy. See Gomez v. Perez, 409 U. S. 535 (1973); New Jersey Welfare Rights Org. v. Cahill, 411 U. S. 619 (1973); Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 (1972); Levy v. Louisiana, 391 U. S. 68 (1968). These differences render those cases of little assistance to appellees. It could not have been fairly argued, with respect to any of the statutes struck down in those cases, that the legitimacy of the child was simply taken as an indication of dependency, or of some other valid ground of qualification. Under all but one of the statutes, not only was the legitimate child automatically entitled to benefits, but an illegitimate child was denied benefits solely and finally on the basis of illegitimacy, and regardless of any demonstration of dependency or other legitimate factor. See also Griffin v. Richardson, 346 F. Supp. 1226 (Md.), summarily aff'd, 409 U.S. 1069 (1972); Davis v. Richardson, 342 F. Supp. 588 (Conn.), summarily aff'd, 409 U.S. 1069 (1972). In Weber v. Aetna Casualty & Surety Co., supra, the sole partial exception, the statutory scheme provided for a child's equal recovery under a workmen's compensation plan in the event of the death of the father, not only if the child was dependent, but also only if the dependent child was legitimate. 406 U.S. at 406 U. S. 173 -174, and n. 12. Jimenez v. Weinberger, supra, invalidating discrimination among afterborn illegitimate children as to entitlement to a child's disability benefits under the Social Security Act, is similarly distinguishable. Under the somewhat related statutory matrix considered there, legitimate children and those capable of inheriting personal property under state intestacy law, and those illegitimate solely on account of a nonobvious defect in their parents' marriage, were eligible for benefits, even if they were born after the onset of the father's disability. Page 427 U. S. 512 Other (illegitimate) afterborn children were conclusively denied any benefits, regardless of any showing of dependency. The Court held the discrimination among illegitimate afterborn children impermissible, rejecting the Secretary's claim that the classification was based upon considerations regarding trustworthy proof of dependency, because it could not accept the assertion: "[T]he blanket and conclusive exclusion of appellants' subclass of illegitimates is reasonably related to the prevention of spurious claims [of dependency]. Assuming that the appellants are in fact dependent on the claimant [father], it would not serve the purposes of the Act to conclusively deny them an opportunity to establish their dependency and their right to insurance benefits." 417 U.S. at 417 U. S. 636 . Hence, it was held that "to conclusively deny one subclass benefits presumptively available to the other denies the former the equal protection of the laws guaranteed by the due process provision of the Fifth Amendment." Id. at 417 U. S. 637 . See also Weinberger v. Wiesenfeld, 420 U. S. 636 , 420 U. S. 645 (1975); cf. Labine v. Vincent, 401 U.S. at 401 U. S. 539 . But this conclusiveness in denying benefits to some classes of afterborn illegitimate children, which belied the asserted legislative reliance on dependency in Jimenez, is absent here, for, as we have noted, any otherwise eligible child may qualify for survivorship benefits by showing contribution to support, or cohabitation, at the time of death. Cf. Vlandis v. Kline, 412 U. S. 441 , 412 U. S. 452 -453, n. 9 (1973), distinguishing Starns v. Malkerson, 326 F. Supp. 234 (Minn.1970), summarily aff'd, 401 U.S. 985 (1971). It is, of course, not enough simply that any child of a deceased insured is eligible for benefits upon some showing Page 427 U. S. 513 of dependency. In Frontiero v. Richardson, supra, we found it impermissible to qualify the entitlement to dependent's benefits of a married woman in the uniformed services upon an individualized showing of her husband's actual dependence upon her for more than half his income, when no such showing of actual dependency was required of a married man in the uniformed services to obtain dependent's benefits on account of his wife. The invalidity of that gender-based discrimination rested upon the "overbroad" assumption, Schlesinger v. Ballard, 419 U. S. 498 , 419 U. S. 508 (1975), underlying the discrimination "that male workers' earnings are vital to the support of their families, while the earnings of female wage earners do not significantly contribute to their families' support." Weinberger v. Wiesenfeld, 420 U.S. at 420 U. S. 643 ; see Frontiero, 411 U.S. at 411 U. S. 689 n. 23. Here, by contrast, the statute does not broadly discriminate between legitimates and illegitimates without more, but is carefully tuned to alternative considerations. The presumption of dependency is withheld only in the absence of any significant indication of the likelihood of actual dependency. Moreover, we cannot say that the factors that give rise to a presumption of dependency lack any substantial relation to the likelihood of actual dependency. Rather, we agree with the assessment of the three-judge court as it originally ruled in Norton v. Weinberger, 364 F. Supp. 1117 , 1128 (Md. 1973): [ Footnote 16 ] "[I]t is clearly rational to presume the overwhelming number of legitimate children are actually dependent upon their parents for support. Likewise . . . the children of an invalid marriage . . . Page 427 U. S. 514 would typically live in the wage earner's home or be supported by him. . . . When an order of support is entered by a court it is reasonable to assume compliance occurred. A paternity decree, while not necessarily ordering support, would almost as strongly suggest support was subsequently obtained. Conceding that a written acknowledgment lacks the imprimatur of a judicial proceeding, it too establishes the basis for a rational presumption. Men do not customarily affirm in writing their responsibility for an illegitimate child unless the child is theirs and a man who has acknowledged a child is more likely to provide it support than one who does not." Similarly, we think, where state intestacy law provides that a child may take personal property from a father's estate, it may reasonably be thought that the child will more likely be dependent during the parent's life and at his death. [ Footnote 17 ] For in its embodiment of the popular Page 427 U. S. 515 view within the jurisdiction of how a parent would have his property devolve among his children in the event of death, without specific directions, such legislation also reflects to some degree the popular conception within the jurisdiction of the felt parental obligation to such an "illegitimate" child in other circumstances, and thus something of the likelihood of actual parental support during, as well as after, life. [ Footnote 18 ] Accord, Watts v. Veneman, 155 U.S.App.D.C. 84, 88, 476 F.2d 529, 533 (1973). To be sure, none of these statutory criteria compels the extension of a presumption of dependency. But the constitutional question is not whether such a presumption is required, but whether it is permitted. Nor, in ratifying these statutory classifications, is our role to hypothesize independently on the desirability or feasibility of any possible alternative basis for presumption. These matters of practical judgment and empirical calculation are for Congress. Drawing upon its own practical experience, Page 427 U. S. 516 Congress has tailored statutory classifications in accord with its calculations of the likelihood of actual support suggested by a narrow set of objective and apparently reasonable indicators. Our role is simply to determine whether Congress' assumptions are so inconsistent or insubstantial as not to be reasonably supportive of its conclusions that individualized factual inquiry in order to isolate each nondependent child in a given class of cases is unwarranted as an administrative exercise. In the end, the precise accuracy of Congress' calculations is not a matter of specialized judicial competence, and we have no basis to question their detail beyond the evident consistency and substantiality. Cf. United States v. Gainey, 380 U.S. at 380 U. S. 67 . We cannot say that these expectations are unfounded, or so indiscriminate as to render the statute's classifications baseless. We conclude, in short, that, in failing to extend any presumption of dependency to appellees and others like them, the Act does not impermissibly discriminate against them as compared with legitimate children or those illegitimate children who are statutorily deemed dependent. Reversed. [ Footnote 1 ] Section 202(d)(1) of the Act, as set forth in 42 U.S.C. § 402(d)(1), provides in pertinent part: "Every child (as defined in section 416(e) of this title) . . . of an individual who dies a fully or currently insured individual, if such child -- " "(A) has filed application for child's insurance benefits," "(B) at the time such application was filed was unmarried and (i) either had not attained the age of 18 or was a full-time student and had not attained the age of 22 . . . and" "(C) was dependent upon such individual --" " * * * *" "(ii) if such individual has died, at the time of such death, . . ." " * * * *" "shall be entitled to a child's insurance benefit for each month, beginning with the first month after August, 1950, in which such child becomes so entitled to such insurance benefits. . . ." Section 216(e), 42 U.S.C. § 416(e), includes, under the definition of child, inter alia, "the child . . . of an individual," certain legally adopted children, certain stepchildren, and certain grandchildren and stepgrandchildren. Additionally, § 216(h)(2)(A) of the Act, 42 U.S.C. § 416(h)(2)(A), provides: "In determining whether an applicant is the child . . . of a fully or currently insured individual for purposes of this subchapter, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property . . . by the courts of the State in which [such insured individual] was domiciled at the time of his death. . . . Applicants who according to such law would have the same status relative to taking intestate personal property as a child . . . shall be deemed such." [ Footnote 2 ] Section 202(d)(3) of the Act, 42 U.S.C. § 402(d)(3), provides in pertinent part: "A child shall be deemed dependent upon his father or adopting father or his mother or adopting mother at the time specified in paragraph (1)(C) of this subsection unless, at such time, such individual was not living with or contributing to the support of such child and -- " "(A) such child is neither the legitimate nor adopted child of such individual, or" "(B) such child has been adopted by some other individual." Additionally, any child who qualifies under § 216(h)(2)(A), see n 1, supra, is considered legitimate for § 202(d)(3) purposes, and thus dependent. [ Footnote 3 ] Section 202(d)(3), as set forth in 42 U.S.C. § 402(d)(3), provides in pertinent part that "a child deemed to be a child of a fully or currently insured individual pursuant to section 416(h)(2)(B) or section 416(h)(3) . . . shall be deemed to be the legitimate child of such individual," and therefore presumptively dependent. Section 216(h)(2)(B), as set forth in 42 U.S.C. § 416(h)(2)(b), provides: "If an applicant is a son or daughter of a fully or currently insured individual but is not (and is not deemed to be) the child of such insured individual under subparagraph (A), such applicant shall nevertheless be deemed to be the child of such insured individual if such insured individual and the mother or father, as the case may be, of such applicant went through a marriage ceremony resulting in a purported marriage between them which, but for a legal impediment described in the last sentence of paragraph (1)(b), would have been a valid marriage." The specified last sentence of § 216(h)(1)(B), 42 U.S.C. § 416(h)(1)(b), in turn, refers only to "an impediment (i) resulting from the lack of dissolution of a previous marriage or otherwise arising out of such previous marriage or its dissolution, or (ii) resulting from a defect in the procedure followed in connection with such purported marriage." Section 216(h)(3), as set forth in 42 U.S.C. § 416(h)(3), provides: "An applicant who is the son or daughter of a fully or currently insured individual, but who is not (and is not deemed to be) the child of such insured individual under paragraph (2) of this subsection, shall nevertheless be deemed to be the chi!d of such insured individual if:" " * * * *" "(C) In the case of a deceased individual --" "(i) such insured individual -- " "(I) had acknowledged in writing that the applicant is his son or daughter," "(II) had been decreed by a court to be the father of the applicant, or" "(III) had been ordered by a court to contribute to the support of the applicant because the applicant was his son or daughter," "and such acknowledgment, court decree, or court order was made before the death of such individual, or" "(ii) such insured individual is shown by evidence satisfactory to the Secretary to have been the father of the applicant, and such insured individual was living with or contributing to the support of the applicant at the time such insured individual died." [ Footnote 4 ] Upon the original petition for review under § 205(g), the District Court affirmed the administrative findings that had then been made, but remanded the case to the Secretary for him to determine the common law status of the relationship between the children's parents, a question left unconsidered in the first administrative proceeding. After an adverse determination on this point and an unsuccessful administrative appeal, Lucas, on behalf of the children, again timely sought review in the District Court, presenting the common law marriage question and asserting a constitutional challenge to the Act. The District Court affirmed the administrative conclusion of no common law marriage, and then turned to the constitutional questions that are the subject of this appeal. [ Footnote 5 ] See, e.g., Jimenez v. Weinberger, 417 U.S. at 417 U. S. 637 ; United States Dept. of Agriculture v. Moreno, 413 U. S. 528 , 413 U. S. 533 n. 5 (1973); Frontiero v. Richardson, 411 U. S. 677 , 411 U. S. 680 n. 5 (1973) (plurality opinion). [ Footnote 6 ] The District Court affirmed the Secretary's factual findings in a "Memorandum and Order" entered August 30, 1974, Viewing the constitutional claim as one requiring the convention of a three-judge district court under 28 U.S.C. §§ 2282 and 2284, the single District Judge did not reach that issue. A three-judge District Court was convened, but disbanded when appellees' renewed motion for summary judgment omitted their earlier request for injunctive relief. The constitutional claim thus was correctly determined by a single District Judge. [ Footnote 7 ] It adds nothing to say that the illegitimate child is also saddled with the procedural burden of proving entitlement on the basis of facts the legitimate child need not prove. The legitimate child is required, like the illegitimate, to prove the facts upon which his statutory entitlement rests. [ Footnote 8 ] Appellees do not suggest, nor could they successfully, that strict judicial scrutiny of the statutory classifications is required here because, in regulating entitlement to survivorship benefits, the statute discriminatorily interferes with interests of constitutional fundamentality. Weinberger v. Salfi, 422 U. S. 749 , 422 U. S. 768 -770 (1975); Dandridge v. Williams, 397 U. S. 471 (1970). The Court, of course, has found the privacy of familial relationships to be entitled to procedural due process protections from disruption by the State, whether or not those relationships were legitimized by marriage under state law. Stanley v. Illinois, 405 U. S. 645 (1972). But the concerns relevant to that context are only tangential to the analysis here, since the statutory scheme does not interfere in any way with familial relations. [ Footnote 9 ] See Loving v. Virginia, 388 U. S. 1 , 388 U. S. 11 (1967); Bolling v. Sharpe, 347 U. S. 497 (1954). [ Footnote 10 ] See Oyama v. California, 332 U. S. 633 , 332 U. S. 644 -646 (1948); Korematsu v. United States, 323 U. S. 214 , 323 U. S. 216 (1944); Hirabayashi v. United States, 320 U. S. 81 , 320 U. S. 100 (1943). [ Footnote 11 ] That the statutory classifications challenged here discriminate among illegitimate children does not mean, of course, that they are not also properly described as discriminating between legitimate and illegitimate children. See Frontiero v. Richardson, supra; cf. Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 , 406 U. S. 169 , 172 (1972). In view of our conclusion regarding the applicable standard of judicial scrutiny, we need not consider how the classes of legitimate and illegitimate children would be constitutionally defined under appellees' approach. [ Footnote 12 ] The significance of this consideration would seem to be suggested by provisions enabling the parents to legitimatize children born illegitimate. Compare Weber, 406 U.S. at 406 U. S. 170 -171, with Labine v. Vincent, 401 U. S. 532 , 401 U. S. 539 (1971). Of course, the status of "dependency" as recognized by the statute here is wholly within the control of the parent. [ Footnote 13 ] In Rodriguez, the Court identified a "suspect class" entitled to the protections of strict judicial scrutiny as one "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." 411 U.S. at 411 U. S. 28 . [ Footnote 14 ] We are not bound to agree with the Secretary's description of the legislative design if the legislative history and the structure of the provisions themselves belie it. Weinberger v. Wiesenfeld, 420 U. S. 636 , 420 U. S. 648 n. 16 (1975); Jimenez v. Weinberger, 417 U.S. at 417 U. S. 634 . Appellees are unable, however, to summon any meaningful legislative history to support their position regarding the congressional design. They rely largely upon a section of the House-Senate Conference Committee Report on the 1965 Amendments to the Social Security Act, reproduced at 111 Cong.Rec. 18383 (1965), partially explaining, id. at 18387, the addition of § 216(h)(3), set forth in n 3, supra, to the Act: "A child would be paid benefits based on his father's earnings without regard to whether he has the status of a child under State inheritance laws if the father was supporting the child or had a legal obligation to do so." But the clause's reference to legal obligations to support hardly establishes that the statute was designed to replace any potential source of lifetime support; in our view the passage appears only to be a partial description of the actual effect of §§ 416(h)(3)(C)(i)(II) and (III), set forth in n 3, supra, not an enunciation of the general purpose of the Act. Thus, appellees, in order to make their case, must ultimately rely upon the asserted failure of the legislative product adequately to fit the purported legitimate aim. [ Footnote 15 ] That these provisions may thus reflect a "secondary" purpose of Congress is, of course, of no moment. McGinnis v. Royster, 410 U. S. 263 , 410 U. S. 274 -277 (1973). [ Footnote 16 ] Vacated and remanded for further proceedings in light of Jimenez, 418 U.S. 902 (1972); adhered to on remand, 390 F. Supp. 1084 (1975); aff'd sub nom. Norton v. Mathews, post, p. 427 U. S. 524 . [ Footnote 17 ] The Secretary, pointing out that § 202(d)(3), as set forth in 42 U.S.C. § 402(d)(3), in specific terms provides only that "a child deemed to be a child of a fully or currently insured individual pursuant to section 416(h)(2)(B) or section 416(h)(3). . . shall be deemed to be the legitimate child of such individual," urges that we misconstrued the statute in Jimenez, 417 U.S. at 417 U. S. 631 n. 2, in concluding that an applicant qualifying as a child under § 216(h)(2)(A) is to be considered as a legitimate child, and therefore dependent under § 202(d)(3). We have no question, however, as to the correctness of that conclusion. First, it is only through operation of § 216(h)(2)(A) that the recognition of "legitimacy" by state law under § 202(d)(3)(A) as giving rise to a presumption of dependency takes on a consistent operational meaning. Second, §§ 216(h)(2)(B) and (3) specifically exclude any child qualified under § 216(h)(2)(A); if a § 216(h)(2)(A) child were not considered legitimate under § 202(d)(3), this would have the anomalous effect that an illegitimate child who had been acknowledged in a written statement by the insured father, for example, would be deprived of otherwise established eligibility for benefits, see § 216(h)(3)(C)(i)(I), if under applicable state law such an acknowledgment worked to make the child an intestate heir. Moreover, the legislative history is clear that the Social Security Amendments of 1960, Pub.L. 86-778, 74 Stat. 924, §§ 208(b) and (d), 42 U.S.C. § 408(b) and (d), adding § 216(h)(2)(b) to the Act and inserting the provision in § 202(d)(3) specifying that a § 216(h)(2)(B) child shall be deemed to be a legitimate, and therefore dependent, child for death benefit purposes, were intended to have the effect of deeming any § 216(h)(2) child "legitimate," and thus "dependent." See S.Rep. No. 1856, 86th Cong., 2d Sess., 78-79, 133 (1960) (discussing §§ 207(b) and (d)); H.R.Rep. No. 1799, 86th Cong., 2d Sess., 91-92, 152 (1960). [ Footnote 18 ] Appellees do not suggest, and we are unwilling to assume, that discrimination against children in appellees' class in state intestacy laws is constitutionally prohibited, see Labine v. Vincent, 401 U. S. 532 (1971), in which case appellees would be made eligible for benefits under § 216(h)(2)(A). MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, dissenting. The reason why the United States Government should not add to the burdens that illegitimate children inevitably acquire at birth is radiantly clear: we are committed to the proposition that all persons are created equal. The Court's reason for approving discrimination against this class -- "administrative convenience" -- is opaque and insufficient: opaque because the difference between this justification and the argument rejected in Jimenez v. Weinberger, 417 U. S. 628 , is so difficult to Page 427 U. S. 517 discern; insufficient because it unfairly evaluates the competing interests at stake. I Jimenez involved a requirement that the wage earner must have contributed to the support of his illegitimate child prior to the onset of his disability; this case involves the requirement that the deceased wage earner was contributing to the support of his illegitimate child at the time of his death. The critical objections to the classification held invalid in Jimenez apply with equal force in this case. The classification in Jimenez was "overinclusive" because it conclusively presumed that all legitimates and some illegitimates were dependent on the disabled wage earner when many such persons were not in fact dependent. Since legitimate as well as illegitimate children are sometimes abandoned by their father before his death, precisely the same objection applies to this statutory classification. Moreover, the Jimenez classification was "underinclusive" because it conclusively excluded some illegitimates who were in fact dependent on the wage earner. [ Footnote 2/1 ] In this case, the two appellee children Page 427 U. S. 518 were conclusively excluded from the class of eligibles even though they had been supported by their father for 15 years and eight years, respectively. If the underinclusiveness of the Jimenez classification was arbitrary, this classification is even more objectionable, because it attaches greater weight to support at a particular moment in time than to support of several years' duration. In Jimenez, the Secretary told the Court that the classification was "designed only to prevent spurious claims." Id. at 417 U. S. 633 . The Court held that objective insufficient to justify "the blanket and conclusive exclusion" of a subclass of illegitimates. Id. at 417 U. S. 636 . The statute has not changed, but now we are told that the justification for a similar blanket and conclusive exclusion is "administrative convenience." I suggest that this is merely a different name for the same federal interest. For the statutory classification will not affect the processing of claims in any way except by substituting a mechanical test of dependency for the kind of inquiry that would otherwise be required to differentiate between the spurious and the genuine. I am unable to identify a relevant difference between Jimenez and this case. II The Court recognizes "that the legal status of illegitimacy, however defined, is, like race or national origin, a characteristic determined by causes not within the control of the illegitimate individual, and it bears no relation to the individual's ability to participate in and contribute to society." Ante at 427 U. S. 505 . For that reason, as the Court also recognizes, "'imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship Page 427 U. S. 519 to individual responsibility or wrongdoing.'" Ibid. Thus, the Court starts its analysis from the premise that the statutory classification is both " illogical and unjust.'" Ibid. It seems rather plain to me that this premise demands a conclusion that the classification is invalid unless it is justified by a weightier governmental interest than merely "administrative convenience." The Court has characterized the purpose of the statute as providing benefits not for those individuals who had a legitimate claim to support from the deceased wage earner, but rather for those who were actually dependent on the wage earner at the time of his death. In this analysis, the provisions of the statute which allow certain classes -- such as legitimate children -- to receive benefits without showing actual dependency are no more than statutory presumptions in aid of administrative convenience. This is an appropriate reading of the statute. [ Footnote 2/2 ] The Court goes on, however, to hold that such presumptions in aid of "administrative convenience" are permissible so long as the lack of precise equivalence between the fact giving rise to the presumption and the fact presumed "does not exceed the bounds of substantiality tolerated by the applicable level of scrutiny," ante at 427 U. S. 509 . The opinion tells us very little, however, about the "applicable level of scrutiny." It is not "our most exacting scrutiny," ante at 427 U. S. 506 ; on the other hand, if the classification derives "possibly rational" support from another source, it is not "inherently untenable" simply because it rests in part on illegitimacy. Ante at 427 U. S. 505 . I believe an admittedly illogical and unjust result Page 427 U. S. 520 should not be accepted without both a better explanation and also something more than a "possibly rational" basis. The Court has repeatedly held that distinctions which disfavor illegitimates simply because they are illegitimate are invalid. Gomez v. Perez, 409 U. S. 535 ; Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 . However irrational it may be to burden innocent children because their parents did not marry, illegitimates are nonetheless a traditionally disfavored class in our society. Because of that tradition of disfavor, the Court should be especially vigilant in examining any classification which involves illegitimacy. For a traditional classification is more likely to be used without pausing to consider its justification than is a newly created classification. Habit, rather than analysis, makes it seem acceptable and natural to distinguish between male and female, alien and citizen, legitimate and illegitimate; for too much of our history, there was the same inertia in distinguishing between black and white. But that sort of stereotyped reaction may have no rational relationship -- other than pure prejudicial discrimination [ Footnote 2/3 ] -- to the Page 427 U. S. 521 stated purpose for which the classification is being made. In this case, the "true" classification, according to the Court, is one between children dependent on their fathers and children who are not so dependent. All of the subsidiary classifications (which have the actual effect of allowing certain children to be eligible for benefits regardless of actual dependency) are supposedly justified by the increased convenience for the agency in not being required in every case to determine dependency. But do these classifications actually bear any substantial relationship to the fact of dependency? In this statute, one or another of the criteria giving rise to a "presumption of dependency" exists to make almost all children of deceased wage earners eligible. If a child is legitimate, he qualifies. If the child is illegitimate only because of a nonobvious defect in his parents' marriage, he qualifies. If a court has declared his father to be in fact his father, or has issued an order of support against his father, or if the father has acknowledged the child in writing, he qualifies. Apart from any of these qualifications, if the child is lucky enough to live in a State which allows him to inherit from his intestate father on a par with other children, he also qualifies. And in none of these situations need he allege, much less prove, actual dependency. Indeed, if the contrary fact is undisputed, he is nevertheless qualified. The Court today attempts, at some length, to explain that each of these factors is rationally and substantially related to the actual fact of dependency, adopting even the somewhat tenuous rationalization of the District Court that "'[m]en do not customarily affirm in writing their responsibility for an illegitimate child unless the Page 427 U. S. 522 child is theirs and a man who has acknowledged a child is more likely to provide it support than one who does not,'" ante at 427 U. S. 514 , without also noting that a man who lives with a woman for 18 years, during which two children are born, who has always orally acknowledged that the children are his, and who has lived with the children and supported them, may never perceive a need to make a formal written acknowledgment of paternity. Even more tenuous is the asserted relationship between the status of the illegitimate under state intestacy law and actual dependency. The Court asserts that, "in its embodiment of the popular view within the jurisdiction of how a parent would have his property devolve among his children in the event of death, without specific directions, such legislation also reflects to some degree the popular conception within the jurisdiction of the felt parental obligation to such an 'illegitimate' child in other circumstances, and thus something of the likelihood of actual parental support during, as well as after, life." Ante at 427 U. S. 514 -515. That nebulous inference upon inference is treated as more acceptable evidence of actual dependency than proof of actual support for many years. [ Footnote 2/4 ] Whether the classification is expressed in terms of eligible classes or in terms of presumptions of dependency, the fact remains that legitimacy, written acknowledgments, or state law make eligible many children who are no more likely to be "dependent" than are the children in appellees' situation. Yet, in the name of "administrative convenience," the Court allows these survivors' benefits to be allocated on grounds which have Page 427 U. S. 523 only the most tenuous connection to the supposedly controlling factor -- the child's dependency on his father. I am persuaded that the classification which is sustained today in the name of "administrative convenience" is more probably the product of a tradition of thinking of illegitimates as less deserving persons than legitimates. The sovereign should firmly reject that tradition. The fact that illegitimacy is not as apparent to the observer as sex or race does not make this governmental classification any less odious. It cannot be denied that it is a source of social opprobrium, even if wholly unmerited, or that it is a circumstance for which the individual has no responsibility whatsoever A fair evaluation of the competing interests at stake in this litigation requires affirmance of the judgment of the District Court. I respectfully dissent. [ Footnote 2/1 ] "Even if children might rationally be classified on the basis of whether they are dependent upon their disabled parent, the Act's definition of these two subclasses of illegitimates is 'overinclusive' in that it benefits some children who are legitimated, or entitled to inherit, or illegitimate solely because of a defect in the marriage of their parents, but who are not dependent on their disabled parent. Conversely, the Act is 'underinclusive' in that it conclusively excludes some illegitimates in appellants' subclass who are, in fact, dependent upon their disabled parent. Thus, for all that is shown in this record, the two subclasses of illegitimates stand on equal footing, and the potential for spurious claims is the same as to both; hence, to conclusively deny one subclass benefits presumptively available to the other denies the former the equal protection of the laws guaranteed by the due process provision of the Fifth Amendment." 417 U.S. at 417 U. S. 637 . [ Footnote 2/2 ] There are other survivors who receive benefits only if they show dependency, e.g., parents, 42 U.S.C. § 402(h), and widowers, 42 U.S.C.§ 402(f). [ Footnote 2/3 ] Such pure discrimination is most certainly not a "legitimate purpose" for our Federal Government, which should be especially sensitive to discrimination on grounds of birth. "Distinctions between citizens solely because of their ancestry are, by their very nature, odious to a free people whose institutions are founded upon the doctrine of equality." Hirabayashi v. United States, 320 U. S. 81 , 320 U. S. 100 . From its inception, the Federal Government has been directed to treat all its citizens as having been "created equal" in the eyes of the law. The Declaration of Independence states: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." And the rationale behind the prohibition against the grant of any title of nobility by the United States, see U.S.Const., Art. I, § 9, cl. 8, equally would prohibit the United States from attaching any badge of ignobility to a citizen at birth. [ Footnote 2/4 ] If the relationship between an entitling presumption and the actual fact of dependency is so nebulous that the conclusion can be supported only by resort to a supposed popular conception within a jurisdiction, the classification must either be irrational or serve a purpose other than the one by which it is assertedly justified.

Here is a summary of the case: In Mathews v. Lucas, the United States Supreme Court considered whether the denial of surviving child benefits to illegitimate children under the Social Security Act violated the equal protection component of the Due Process Clause of the Fifth Amendment. The Court held that the different treatment of legitimate and illegitimate children under the Act was not subject to the same level of judicial scrutiny as discrimination based on race or national origin. The Court upheld the Act's dependency requirements for surviving child benefits, finding that they were reasonably related to the likelihood of dependency at the time of the parent's death. The Court also found that the Act did not impermissibly discriminate against illegitimate children by failing to extend a presumption of dependency to them, as it did for legitimate children and some illegitimate children in specific circumstances. The Court's decision affirmed the District Court's ruling, which had reversed the administrative denial of benefits to the appellee illegitimate children and ordered that benefits be paid to them.

Equal Protection

Village of Arlington Heights v. Metropolitan Housing Dev. Corp.

https://supreme.justia.com/cases/federal/us/429/252/

U.S. Supreme Court Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977) Village of Arlington Heights v. Metropolitan Housing Development Corp. No. 75-616 Argued October 13, 1976 Decided January 11, 1977 429 U.S. 252 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Syllabus Respondent Metropolitan Housing Development Corp. (MHDC), a nonprofit developer, contracted to purchase a tract within the boundaries of petitioner Village in order to build racially integrated low- and moderate-income housing. The contract was contingent upon securing rezoning as well as federal housing assistance. MHDC applied to the Village for the necessary rezoning from a single-family to a multiple-family (R-5) classification. At a series of Village Plan Commission public meetings, both supporters and opponents touched upon the fact that the project would probably be racially integrated. Opponents also stressed zoning factors that pointed toward denial of MHDC's application: the location had always been zoned single-family, and the Village's apartment policy called for limited use of R-5 zoning, primarily as a buffer between single-family development and commercial or manufacturing districts, none of which adjoined the project's proposed location. After the Village denied rezoning, MHDC and individual minority respondents filed this suit for injunctive and declaratory relief, alleging that the denial was racially discriminatory and violated, inter alia, the Equal Protection Clause of the Fourteenth Amendment and the Fair Housing Act. The District Court held that the Village's rezoning denial was motivated not by racial discrimination but by a desire to protect property values and maintain the Village's zoning plan. Though approving those conclusions, the Court of Appeals reversed, finding that the "ultimate effect" of the rezoning denial was racially discriminatory and observing that the denial would disproportionately affect blacks, particularly in view of the fact that the general suburban area, though economically expanding, continued to be marked by residential segregation. Held: 1. MHDC and at least one individual respondent have standing to bring this action. Pp. 429 U. S. 260 -264. (a) MHDC has met the constitutional standing requirements by showing injury fairly traceable to petitioners' acts. The challenged action of the Village stands as an absolute barrier to constructing the housing for which MHDC had contracted, a barrier which could be Page 429 U. S. 253 removed if injunctive relief were granted. MHDC, despite the contingency provisions in its contract, has suffered economic injury based upon the expenditures it made in support of its rezoning petition, as well as noneconomic injury from the defeat of its objective, embodied in its specific project, of making suitable low-cost housing available where such housing is scarce. Pp. 429 U. S. 261 -263. (b) Whether MHDC has standing to assert the constitutional rights of its prospective minority tenants need not be decided, for at least one of the individual respondents, a Negro working in the Village and desirous of securing low-cost housing there but who now lives 20 miles away, has standing. Focusing on the specific MHDC project, he has adequately alleged an "actionable causal relationship" between the Village's zoning practices and his asserted injury. Warth v. Seldin, 422 U. S. 490 , 422 U. S. 507 . Pp. 429 U. S. 263 -264. 2. Proof of a racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause of the Fourteenth Amendment, and respondents failed to carry their burden of proving that such an intent or purpose was a motivating factor in the Village's rezoning decision. Pp. 429 U.S. 264 -271. (a) Official action will not be held unconstitutional solely because it results in a racially disproportionate impact. "[Such] impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination." Washington v. Davis, 426 U. S. 229 , 426 U. S. 242 . A racially discriminatory intent, as evidenced by such factors as disproportionate impact, the historical background of the challenged decision, the specific antecedent events, departures from normal procedures, and contemporary statements of the decisionmakers, must be shown. Pp. 429 U.S. 264 -268. (b) The evidence does not warrant overturning the concurrent findings of both courts below that there was no proof warranting the conclusion that the Village's rezoning decision was racially motivated. Pp. 429 U. S. 268 -271. 3. The statutory question whether the rezoning decision violated the Fair Housing Act of 1968 was not decided by the Court of Appeals, and should be considered on remand. P. 429 U. S. 271 . 517 F.2d 409, reversed and remanded. POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, and REHNQUIST, JJ., joined. MARSHALL, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN, J., joined, post, p. 429 U. S. 271 . WHITE, J., filed a dissenting opinion, post, p. 429 U. S. 272 . STEVENS, J., took no part in the consideration or decision of the case. Page 429 U. S. 254 MR. JUSTICE POWELL delivered the opinion of the Court. In 1971, respondent Metropolitan Housing Development Corporation (MHDC) applied to petitioner, the Village of Arlington Heights, Ill., for the rezoning of a 15-acre parcel from single-family to multiple family classification. Using federal financial assistance, MHDC planned to build 190 clustered townhouse units for low- and moderate-income tenants. The Village denied the rezoning request. MHDC, joined by other plaintiffs who are also respondents here, brought suit in the United States District Court for the Northern District of Illinois. [ Footnote 1 ] They alleged that the denial was racially discriminatory and that it violated, inter alia, the Fourteenth Amendment and the Fair Housing Act of 1968, 82 Stat. 81, 42 U.S.C. 3601 et seq. Following a bench trial, the District Court entered judgment for the Village, 373 F. Supp. 208 (1974), and respondents appealed. The Court of Appeals for the Seventh Circuit reversed, finding that the "ultimate effect" of the denial was racially discriminatory, and that the refusal to rezone therefore violated the Fourteenth Amendment. 517 F.2d 409 (1975). We granted Page 429 U. S. 255 the Village's petition for certiorari, 423 U.S. 1030 (1975), and now reverse. I Arlington Heights is a suburb of Chicago, located about 26 miles northwest of the downtown Loop area. Most of the land in Arlington Heights is zoned for detached single-family homes, and this is in fact the prevailing land use. The Village experienced substantial growth during the 1960's, but, like other communities in northwest Cook County, its population of racial minority groups remained quite low. According to the 1970 census, only 27 of the Village's 64,000 residents were black. The Clerics of St. Viator, a religious order (Order), own an 80-acre parcel just east of the center of Arlington Heights. Part of the site is occupied by the Viatorian high school, and part by the Order's three-story novitiate building, which houses dormitories and a Montessori school. Much of the site, however, remains vacant. Since 1959, when the Village first adopted a zoning ordinance, all the land surrounding the Viatorian property has been zoned R-3, a single-family specification with relatively small minimum lot-size requirements. On three sides of the Viatorian land there are single-family homes just across a street; to the east, the Viatorian property directly adjoins the backyards of other single-family homes. The Order decided in 1970 to devote some of its land to low- and moderate-income housing. Investigation revealed that the most expeditious way to build such housing was to work through a nonprofit developer experienced in the use of federal housing subsidies under § 236 of the National Housing Act, 48 Stat. 1246, as added and amended, 12 U.S.C. § 17I5z-1. [ Footnote 2 ] Page 429 U. S. 256 MHDC is such a developer. It was organized in 1968 by several prominent Chicago citizens for the purpose of building low- and moderate-income housing throughout the Chicago area. In 1970, MHDC was in the process of building one § 236 development near Arlington Heights, and already had provided some federally assisted housing on a smaller scale in other parts of the Chicago area. After some negotiation, MHDC and the Order entered into a 99-year lease and an accompanying agreement of sale covering a 15-acre site in the southeast corner of the Viatorian property. MHDC became the lessee immediately, but the sale agreement was contingent upon MHDC's securing zoning clearances from the Village and § 236 housing assistance from the Federal Government. If MHDC proved unsuccessful in securing either, both the lease and the contract of sale would lapse. The agreement established a bargain purchase price of $300,000, low enough to comply with federal limitations governing land-acquisition costs for § 236 housing. MHDC engaged an architect and proceeded with the project, Page 429 U. S. 257 to be known as Lincoln Green. The plans called for 20 two-story buildings with a total of 190 units, each unit having its own private entrance from the outside. One hundred of the units would have a single bedroom, thought likely to attract elderly citizens. The remainder would have two, three, or four bedrooms. A large portion of the site would remain open, with shrubs and trees to screen the homes abutting the property to the east. The planned development did not conform to the Village's zoning ordinance, and could not be built unless Arlington Heights rezoned the parcel to R-5, its multiple family housing classification. Accordingly, MHDC filed with the Village Plan Commission a petition for rezoning, accompanied by supporting materials describing the development and specifying that it would be subsidized under § 236. The materials made clear that one requirement under § 236 is an affirmative marketing plan designed to assure that a subsidized development is racially integrated. MHDC also submitted studies demonstrating the need for housing of this type and analyzing the probable impact of the development. To prepare for the hearings before the Plan Commission and to assure compliance with the Village building code, fire regulations, and related requirements, MHDC consulted with the Village staff for preliminary review of the development. The parties have stipulated that every change recommended during such consultations was incorporated into the plans. During the spring of 1971, the Plan Commission considered the proposal at a series of three public meetings, which drew large crowds. Although many of those attending were quite vocal and demonstrative in opposition to Lincoln Green, a number of individuals and representatives of community groups spoke in support of rezoning. Some of the comments, both from opponents and supporters, addressed what was referred to as the "social issue" -- the desirability or undesirability of introducing at this location in Arlington Heights Page 429 U. S. 258 low- and moderate income housing, housing that would probably be racially integrated. Many of the opponents, however, focused on the zoning aspects of the petition, stressing two arguments. First, the area always had been zoned single-family, and the neighboring citizens had built or purchased there in reliance on that classification. Rezoning threatened to cause a measurable drop in property value for neighboring sites. Second, the Village's apartment policy, adopted by the Village Board in 1962 and amended in 1970, called for R-5 zoning primarily to serve as a buffer between single-family development and land uses thought incompatible, such as commercial or manufacturing districts. Lincoln Green did not meet this requirement, as it adjoined no commercial or manufacturing district. At the close of the third meeting, the Plan Commission adopted a motion to recommend to the Village's Board of Trustees that it deny the request. The motion stated: "While the need for low and moderate income housing may exist in Arlington Heights or its environs, the Plan Commission would be derelict in recommending it at the proposed location." Two members voted against the motion and submitted a minority report, stressing that, in their view, the change to accommodate Lincoln Green represented "good zoning." The Village Board met on September 28, 1971, to consider MHDC's request and the recommendation of the Plan Commission. After a public hearing, the Board denied the rezoning by a 6-1 vote. The following June, MHDC and three Negro individuals filed this lawsuit against the Village, seeking declaratory and injunctive relief. [ Footnote 3 ] A second nonprofit corporation and an individual of Mexican-American descent intervened as plaintiffs. Page 429 U. S. 259 The trial resulted in a judgment for petitioners. Assuming that MHDC had standing to bring the suit, [ Footnote 4 ] the District Court held that the petitioners were not motivated by racial discrimination or intent to discriminate against low income groups when they denied rezoning, but rather by a desire "to protect property values and the integrity of the Village's zoning plan." 373 F. Supp. at 211. The District Court concluded also that the denial would not have a racially discriminatory effect. A divided Court of Appeals reversed. It first approved the District Court's finding that the defendants were motivated by a concern for the integrity of the zoning plan, rather than by racial discrimination. Deciding whether their refusal to rezone would have discriminatory effects was more complex. The court observed that the refusal would have a disproportionate impact on blacks. Based upon family income, blacks constituted 40% of those Chicago area residents who were eligible to become tenants of Lincoln Green, although they composed a far lower percentage of total area population. The court reasoned, however, that, under our decision in James v. Valtierra, 402 U. S. 137 (1971), such a disparity in racial impact alone does not call for strict scrutiny of a municipality's decision that prevents the construction of the low-cost housing. [ Footnote 5 ] There was another level to the court's analysis of allegedly discriminatory results. Invoking language from Kennedy Park Homes Assn. v. City of Lackawanna, 436 F.2d 108, Page 429 U. S. 260 112 (CA2 1970), cert. denied, 401 U.S. 1010 (1971), the Court of Appeals ruled that the denial of rezoning must be examined in light of its "historical context and ultimate effect." [ Footnote 6 ] 517 F.2d at 413. Northwest Cook County was enjoying rapid growth in employment opportunities and population, but it continued to exhibit a high degree of residential segregation. The court held that Arlington Heights could not simply ignore this problem. Indeed, it found that the Village had been "exploiting" the situation by allowing itself to become a nearly all-white community. Id. at 414. The Village had no other current plans for building low- and moderate-income housing, and no other R-5 parcels in the Village were available to MHDC at an economically feasible price. Against this background, the Court of Appeals ruled that the denial of the Lincoln Green proposal had racially discriminatory effects and could be tolerated only if it served compelling interests. Neither the buffer policy nor the desire to protect property values met this exacting standard. The court therefore concluded that the denial violated the Equal Protection Clause of the Fourteenth Amendment. II At the outset, petitioners challenge the respondents' standing to bring the suit. It is not clear that this challenge was pressed in the Court of Appeals, but since our jurisdiction to decide the case is implicated, Jenkins v. McKeithen, 395 U. S. 411 , 395 U. S. 421 (1969) (plurality opinion), we shall consider it. In Warth v. Seldin, 422 U. S. 490 (1975), a case similar in some respects to this one, we reviewed the constitutional limitations and prudential considerations that guide a court in determining a party's standing, and we need not repeat that discussion here. The essence of the standing question, Page 429 U. S. 261 in its constitutional dimension, is "whether the plaintiff has 'alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal court jurisdiction and to justify exercise of the court's remedial powers on his behalf." Id. at 422 U. S. 498 -499, quoting Baker v. Carr, 369 U. S. 186 , 369 U. S. 204 (1962). The plaintiff must show that he himself is injured by the challenged action of the defendant. The injury may be indirect, see United States v. SCRAP, 412 U. S. 669 , 412 U. S. 688 (1973), but the complaint must indicate that the injury is indeed fairly traceable to the defendant's acts or omissions. Simon v. Eastern Ky. Welfare Rights Org., 426 U. S. 26 , 426 U. S. 41 -42 (1976); O'Shea v. Littleton, 414 U. S. 488 , 414 U. S. 498 (1974); Linda R. S. v. Richard D., 410 U. S. 614 , 410 U. S. 617 (1973). A Here there can be little doubt that MHDC meets the constitutional standing requirements. The challenged action of the petitioners stands as an absolute barrier to constructing the housing MHDC had contracted to place on the Viatorian site. If MHDC secures the injunctive relief it seeks, that barrier will be removed. An injunction would not, of course, guarantee that Lincoln Green will be built. MHDC would still have to secure financing, qualify for federal subsidies, [ Footnote 7 ] and carry through with construction. But all housing developments are subject to some extent to similar uncertainties. When a project is as detailed and specific as Lincoln Green, a court is not required to engage in undue speculation Page 429 U. S. 262 as a predicate for finding that the plaintiff has the requisite personal stake in the controversy. MHDC has shown an injury to itself that is "likely to be redressed by a favorable decision." Simon v. Eastern Ky. Welfare Rights Org., supra at 426 U. S. 38 . Petitioners nonetheless appear to argue that MHDC lacks standing because it has suffered no economic injury. MHDC, they point out, is not the owner of the property in question. Its contract of purchase is contingent upon securing rezoning. [ Footnote 8 ] MHDC owes the owners nothing if rezoning is denied. We cannot accept petitioners' argument. In the first place, it is inaccurate to say that MHDC suffers no economic injury from a refusal to rezone, despite the contingency provisions in its contract. MHDC has expended thousands of dollars on the plans for Lincoln Green and on the studies submitted to the Village in support of the petition for rezoning. Unless rezoning is granted, many of these plans and studies will be worthless even if MHD finds another site at an equally attractive price. Petitioners' argument also misconceives our standing requirements. It has long been clear that economic injury is not the only kind of injury that can support a plaintiff's Page 429 U. S. 263 standing. United States v. SCRAP, supra at 412 U. S. 686 -687; Sierra Club v. Morton, 405 U. S. 727 , 405 U. S. 734 (1972); Data Processing Service v. Camp, 397 U. S. 150 , 397 U. S. 154 (1970). MHDC is a nonprofit corporation. Its interest in building Lincoln Green stems not from a desire for economic gain, but rather from an interest in making suitable low-cost housing available in areas where such housing is scarce. This is not mere abstract concern about a problem of general interest. See Sierra Club v. Morton, supra at 405 U. S. 739 . The specific project MHDC intends to build, whether or not it will generate profits, provides that "essential dimension of specificity" that informs judicial decisionmaking. Schlesinger v. Reservists to Stop the War, 418 U. S. 208 , 418 U. S. 221 (1974). B Clearly MHDC has met the constitutional requirements, and it therefore has standing to assert its own rights. Foremost among them is MHDC's right to be free of arbitrary or irrational zoning actions. See Euclid v. Ambler Realty Co., 272 U. S. 365 (1926); Nectow v. City of Cambridge, 277 U. S. 183 (1928); Village of Belle Terre v. Boraas, 416 U. S. 1 (1974). But the heart of this litigation has never been the claim that the Village's decision fails the generous Euclid test, recently reaffirmed in Belle Terre. Instead, it has been the claim that the Village's refusal to rezone discriminates against racial minorities in violation of the Fourteenth Amendment. As a corporation, MHDC has no racial identity and cannot be the direct target of the petitioners' alleged discrimination. In the ordinary case, a party is denied standing to assert the rights of third persons. Warth v. Seldin, 422 U.S. at 422 U. S. 499 . But we need not decide whether the circumstances of this case would justify departure from that prudential limitation and permit MHDC to assert the constitutional rights of its prospective minority tenants. See Barrows v. Jackson, 346 U. S. 249 (1953); cf. 396 U. S. Page 429 U. S. 264 Little Hunting Park, 396 U. S. 229 , 396 U. S. 237 (1969); Buchanan v. Warley, 245 U. S. 60 , 245 U. S. 72 -73 (1917). For we have at least one individual plaintiff who has demonstrated standing to assert these rights as his own. [ Footnote 9 ] Respondent Ransom, a Negro, works at the Honeywell factory in Arlington Heights and lives approximately 20 miles away in Evanston in a 5-room house with his mother and his son. The complaint alleged that he seeks and would qualify for the housing MHDC wants to build in Arlington Heights. Ransom testified at trial that, if Lincoln Green were built he would probably move there, since it is closer to his job. The injury Ransom asserts is that his quest for housing nearer his employment has been thwarted by official action that is racially discriminatory. If a court grants the relief he seeks, there is at least a "substantial probability," Warth v. Seldin, supra at 422 U. S. 504 , that the Lincoln Green project will materialize, affording Ransom the housing opportunity he desires in Arlington Heights. His is not a generalized grievance. Instead, as we suggested in Warth, supra at 422 U. S. 507 , 422 U. S. 508 n. 18, it focuses on a particular project and is not dependent on speculation about the possible actions of third parties not before the court. See id. at 422 U. S. 505 ; Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. at 426 U. S. 41 -42. Unlike the individual plaintiffs in Warth, Ransom has adequately averred an "actionable causal relationship" between Arlington Heights' zoning practices and his asserted injury. Warth v. Seldin, supra at 422 U. S. 507 . We therefore proceed to the merits. III Our decision last Term, in Washington v. Davis, 426 U. S. 229 (1976), made it clear that official action will not be held Page 429 U. S. 265 unconstitutional solely because it results in a racially disproportionate impact. "Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination." Id. at 426 U. S. 242 . Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause. Although some contrary indications may be drawn from some of our cases, [ Footnote 10 ] the holding in Davis reaffirmed a principle well established in a variety of contexts. E.g., Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S. 189 , 413 U. S. 208 (1973) (schools); Wright v. Rockefeller, 376 U. S. 52 , 376 U. S. 56 -57 (1964) (election districting); Akins v. Texas, 325 U. S. 398 , 325 U. S. 403 -404 (1945) (jury selection). Davis does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes. Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the "dominant" or "primary" one. [ Footnote 11 ] In fact, it is because legislators and administrators are properly concerned with balancing numerous competing considerations that courts refrain from reviewing the merits of their decisions, absent a showing of arbitrariness or irrationality. But racial discrimination is not just another competing consideration. When there is a proof that a discriminatory purpose Page 429 U. S. 266 has been a motivating factor in the decision, this judicial deference is no longer justified. [ Footnote 12 ] Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. The impact of the official action -- whether it "bears more heavily on one race than another," Washington v. Davis, supra at 426 U. S. 242 -- may provide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face. Yick Wo v. Hopkins, 118 U. S. 356 (1886); Guinn v. United States, 238 U. S. 347 (1915); Lane v. Wilson, 307 U. S. 268 (1939); Gomillion v. Lightfoot, 364 U. S. 339 (1960). The evidentiary inquiry is then relatively easy. [ Footnote 13 ] But such cases are rare. Absent a pattern as stark as that in Gomillion or Yick Wo, impact alone is not determinative, [ Footnote 14 ] and the Court must look to other evidence. [ Footnote 15 ] Page 429 U. S. 267 The historical background of the decision is one evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes. See Lane v. Wilson, supra; Griffin v. School Board, 377 U. S. 218 (1964); Davis v. Schnell, 81 F. Supp. 872 (SD Ala.), aff'd per curiam, 336 U.S. 933 (1949); cf. Keyes v. School Dist. No. 1, Denver Colo. supra at 413 U. S. 207 . The specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker's purposes. Reitman v. Mulkey, 387 U. S. 369 , 387 U. S. 373 -376 (1967); Grosjean v. American Press Co., 297 U. S. 233 , 297 U. S. 250 (1936). For example, if the property involved here always had been zoned R-5 but suddenly was changed to R-3 when the town learned of MHDC's plan to erect integrated housing, [ Footnote 16 ] we would have a far different case. Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. Substantive departures too may be relevant, particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached. [ Footnote 17 ] Page 429 U. S. 268 The legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports. In some extraordinary instances, the members might be called to the stand at trial to testify concerning the purpose of the official action, although even then such testimony frequently will be barred by privilege. See Tenney v. Brandhove, 341 U. S. 367 (1951); United States v. Nixon, 418 U. S. 683 , 418 U. S. 705 (1974); 8 J. Wigmore, Evidence § 2371 (McNaughton rev. ed.1961). [ Footnote 18 ] The foregoing summary identifies, without purporting to be exhaustive, subjects of proper inquiry in determining whether racially discriminatory intent existed. With these in mind, we now address the case before us. IV This case was tried in the District Court and reviewed in the Court of Appeals before our decision in Washington v. Davis, supra. The respondents proceeded on the erroneous theory that the Village's refusal to rezone carried a racially discriminatory effect and was, without more, unconstitutional. But both courts below understood that at least part of their function was to examine the purpose underlying the decision. Page 429 U. S. 269 In making its findings on this issue, the District Court noted that some of the opponents of Lincoln Green who spoke at the various hearings might have been motivated by opposition to minority groups. The court held, however, that the evidence "does not warrant the conclusion that this motivated the defendants." 373 F. Supp. at 211. On appeal, the Court of Appeals focused primarily on respondents' claim that the Village's buffer policy had not been consistently applied and was being invoked with a strictness here that could only demonstrate some other underlying motive. The court concluded that the buffer policy, though not always applied with perfect consistency, had on several occasions formed the basis for the Board's decision to deny other rezoning proposals. "The evidence does not necessitate a finding that Arlington Heights administered this policy in a discriminatory manner." 517 F.2d at 412. The Court of Appeals therefore approved the District Court's findings concerning the Village's purposes in denying rezoning to MHDC. We also have reviewed the evidence. The impact of the Village's decision does arguably bear more heavily on racial minorities. Minorities constitute 18% of the Chicago area population, and 40% of the income groups said to be eligible for Lincoln Green. But there is little about the sequence of events leading up to the decision that would spark suspicion. The area around the Viatorian property has been zoned R-3 since 1959, the year when Arlington Heights first adopted a zoning map. Single-family homes surround the 80-acre site, and the Village is undeniably committed to single-family homes as its dominant residential land use. The rezoning request progressed according to the usual procedures. [ Footnote 19 ] The Plan Commission even scheduled two additional Page 429 U. S. 270 hearings, at least in part to accommodate MHDC and permit it to supplement its presentation with answers to questions generated at the first hearing. The statements by the Plan Commission and Village Board members, as reflected in the official minutes, focused almost exclusively on the zoning aspects of the MHDC petition, and the zoning factors on which they relied are not novel criteria in the Village's rezoning decisions. There is no reason to doubt that there has been reliance by some neighboring property owners on the maintenance of single-family zoning in the vicinity. The Village originally adopted its buffer policy long before MHDC entered the picture, and has applied the policy too consistently for us to infer discriminatory purpose from its application in this case. Finally, MHDC called one member of the Village Board to the stand at trial. Nothing in her testimony supports an inference of invidious purpose. [ Footnote 20 ] In sum, the evidence does not warrant overturning the concurrent findings of both courts below. Respondents simply failed to carry their burden of proving that discriminatory purpose was a motivating factor in the Village's decision. [ Footnote 21 ] Page 429 U. S. 271 This conclusion ends the constitutional inquiry. The Court of Appeals' further finding that the Village's decision carried a discriminatory "ultimate effect" is without independent constitutional significance. V Respondents' complaint also alleged that the refusal to rezone violated the Fair Housing Act of 1968, 42 U.S.C. § 3601 et seq. They continue to urge here that a zoning decision made by a public body may, and that petitioners' action did, violate § 3604 or § 3617. The Court of Appeals, however, proceeding in a somewhat unorthodox fashion, did not decide the statutory question. We remand the case for further consideration of respondents' statutory claims. Reversed and remanded. MR. JUSTICE STEVENS took no part in the consideration or decision of this case. [ Footnote 1 ] Respondents named as defendants both the Village and a number of its officials, sued in their official capacity. The latter were the Mayor, the Village Manager, the Director of Building and Zoning, and the entire Village Board of Trustees. For convenience, we will occasionally refer to all the petitioners collectively as "the Village." [ Footnote 2 ] Section 236 provides for "interest reduction payments" to owners of rental housing projects which meet the Act's requirements, if the savings are passed on to the tenants in accordance with a rather complex formula. Qualifying owners effectively pay 1% interest on money borrowed to construct, rehabilitate, or purchase their properties. (Section 236 has been amended frequently in minor respects since this litigation began. See 12 U.S.C. § 1715z-1 (1970 ed., Supp. V), and the Housing Authorization Act of 1976, § 4, 90 Stat. 1070.) New commitments under § 236 were suspended in 1973 by executive decision, and they have not been revived. Projects which formerly could claim § 236 assistance, however, will now generally be eligible for aid under § 8 of the United States Housing Act of 1937, as amended by § 201(a) of the Housing and Community Development Act of 1974, 42 U.S.C. § 1437f (1970 ed., Supp. V), and by the Housing Authorization Act of 1976, § 2, 90 Stat. 1068. Under the § 8 program, the Department of Housing and Urban Development contracts to pay the owner of the housing units a sum which will make up the difference between a fair market rent for the area and the amount contributed by the low-income tenant. The eligible tenant family pays between 15% and 25% of its gross income for rent. Respondents indicated at oral argument that, despite the demise of the § 236 program, construction of the MHDC project could proceed under § 8 if zoning clearance is now granted. [ Footnote 3 ] The individual plaintiffs sought certification of the action as a class action pursuant to Fed.Rule Civ.Proc. 23 but the District Court declined to certify. 373 F. Supp. 208 , 209 (1974). [ Footnote 4 ] A different District Judge had heard early motions in the case. He had sustained the complaint against a motion to dismiss for lack of standing, and the judge who finally decided the case said he found "no need to reexamine [the predecessor judge's] conclusions" in this respect. Ibid. [ Footnote 5 ] Nor is there reason to subject the Village's action to more stringent review simply because it involves respondents' interest in securing housing. Lindsey v. Normet, 405 U. S. 56 , 405 U. S. 73 -74 (1972). See generally San Antonio School Dist. v. Rodriguez, 411 U. S. 1 , 411 U. S. 18 -39 (1973). [ Footnote 6 ] This language apparently derived from our decision in Reitman v. Mulkey, 387 U. S. 369 , 387 U. S. 373 (1967) (quoting from the opinion of the California Supreme Court in the case then under review). [ Footnote 7 ] Petitioners suggest that the suspension of the § 236 housing assistance program makes it impossible for MHDC to carry out its proposed project, and therefore deprives MHDC of standing. The District Court also expressed doubts about MHDC's position in the case in light of the suspension. 373 F. Supp. at 211. Whether termination of all available assistance programs would preclude standing is not a matter we need to decide, in view of the current likelihood that subsidies may be secured under § 8 of the United States Housing Act of 1937, as amended by the Housing and Community Development Act of 1974. See n 2, supra. [ Footnote 8 ] Petitioners contend that MHDC lacks standing to pursue its claim here because a contract purchaser whose contract is contingent upon rezoning cannot contest a zoning decision in the Illinois courts. Under the law of Illinois, only the owner of the property has standing to pursue such an action. Clark Oil & Refining Corp. v. City of Evanston, 23 Ill. 2d 48 , 177 N.E.2d 191 (1961); but see Solomon v. City of Evanston, 29 Ill.App.3d 782, 331 N.E.2d 380 (1975). State law of standing, however, does not govern such determinations in the federal courts. The constitutional and prudential considerations canvassed at length in Warth v. Seldin, 422 U. S. 490 (1975), respond to concerns that are peculiarly federal in nature. Illinois may choose to close its courts to applicants for rezoning unless they have an interest more direct than MHDC's, but this choice does not necessarily disqualify MHDC from seeking relief in federal courts for an asserted injury to its federal rights. [ Footnote 9 ] Because of the presence of this plaintiff, we need not consider whether the other individual and corporate plaintiffs have standing to maintain the suit. [ Footnote 10 ] Palmer v. Thompson, 403 U. S. 217 , 403 U. S. 225 (1971); Wright v. Council of City of Emporia, 407 U. S. 451 , 407 U. S. 461 -462 (1972); cf. United States v. O'Brien, 391 U. S. 367 , 391 U. S. 381 -386 (1968). See discussion in Washington v. Davis, 426 U.S. at 426 U. S. 242 -244. [ Footnote 11 ] In McGinnis v. Royster, 410 U. S. 263 , 410 U. S. 276 -277 (1973), in a somewhat different context, we observed: "The search for legislative purpose is often elusive enough, Palmer v. Thompson, 403 U. S. 217 (1971), without a requirement that primacy be ascertained. Legislation is frequently multi-purposed: the removal of even a 'subordinate' purpose may shift altogether the consensus of legislative judgment supporting the statute." [ Footnote 12 ] For a scholarly discussion of legislative motivation, see Brest, Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive, 1971 Sup.Ct.Rev. 95, 116-118. [ Footnote 13 ] Several of our jury-selection cases fall into this category. Because of the nature of the jury selection task, however, we have permitted a finding of constitutional violation even when the statistical pattern does not approach the extremes of Yick Wo or Gomillion. See, e.g., Turner v. Fouche, 396 U. S. 346 , 396 U. S. 359 (1970); Sims v. Georgia, 389 U. S. 404 , 389 U. S. 407 (1967) [ Footnote 14 ] This is not to say that a consistent pattern of official racial discrimination is a necessary predicate to a violation of the Equal Protection Clause. A single invidiously discriminatory governmental act -- in the exercise of the zoning power as elsewhere -- would not necessarily be immunized by the absence of such discrimination in the making of other comparable decisions. See City of Richmond v. United States, 422 U. S. 358 , 422 U. S. 378 (1975). [ Footnote 15 ] In many instances, to recognize the limited probative value of disproportionate impact is merely to acknowledge the "heterogeneity" of the Nation's population. Jefferson v. Hackney, 406 U. S. 535 , 406 U. S. 548 (1972); see also Washington v. Davis, supra at 426 U. S. 248 . [ Footnote 16 ] See, e.g., Progress Development Corp. v. Mitchell, 286 F.2d 222 (CA7 1961) (park board allegedly condemned plaintiffs' land for a park upon learning that the homes plaintiffs were erecting there would be sold under a marketing plan designed to assure integration); Kennedy Park Homes Assn. v. City of Lackawanna, 436 F.2d 108 (CA2 1970), cert. denied, 401 U.S. 1010 (1971) (town declared moratorium on new subdivisions and rezoned area for parkland shortly after learning of plaintiffs' plans to build low-income housing). To the extent that the decision in Kennedy Park Homes rested solely on a finding of discriminatory impact, we have indicated our disagreement. Washington v. Davis, supra at 426 U. S. 244 -245. [ Footnote 17 ] See Dailey v. City of Lawton, 425 F.2d 1037 (CA10 1970). The plaintiffs in Dailey planned to build low-income housing on the site of a former school that they had purchased. The city refused to rezone the land from PF, its public facilities classification, to R-4, high-density residential. All the surrounding area was zoned R-4, and both the present and the former planning director for the city testified that there was no reason "from a zoning standpoint" why the land should not be classified R-4. Based on this and other evidence, the Court of Appeals ruled that "the record sustains the [District Court's] holding of racial motivation and of arbitrary and unreasonable action." Id. at 1040. [ Footnote 18 ] This Court has recognized, ever since Fletcher v. Peck , 6 Cranch 87, 10 U. S. 130 -131 (1810), that judicial inquiries into legislative or executive motivation represent a substantial intrusion into the workings of other branches of government. Placing a decisionmaker on the stand is therefore "usually to be avoided." Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402 , 401 U. S. 420 (1971). The problems involved have prompted a good deal of scholarly commentary. See Tussman & tenBroek, The Equal Protection of the Laws, 37 Calif.L.Rev. 341, 356-361 (1949); A. Bickel, The Least Dangerous Branch 208-221 (1962); Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205 (1970); Brest, supra, n 12. [ Footnote 19 ] Respondents have made much of one apparent procedural departure. The parties stipulated that the Village Planner, the staff member whose primary responsibility covered zoning and planning matters, was never asked for his written or oral opinion of the rezoning request. The omission does seem curious, but respondents failed to prove at trial what role the Planner customarily played in rezoning decisions, or whether his opinion would be relevant to respondents' claims. [ Footnote 20 ] Respondents complain that the District Court unduly limited their efforts to prove that the Village Board acted for discriminatory purposes, since it forbade questioning Board members about their motivation at the time they cast their votes. We perceive no abuse of discretion in the circumstances of this case, even if such an inquiry into motivation would otherwise have been proper. See n 18, supra. Respondents were allowed, both during the discovery phase and at trial, to question Board members fully about materials and information available to them at the time of decision. In light of respondents' repeated insistence that it was effect, and not motivation, which would make out a constitutional violation, the District Court's action was not improper. [ Footnote 21 ] Proof that the decision by the Village was motivated in part by a racially discriminatory purpose would not necessarily have required invalidation of the challenged decision. Such proof would, however, have shifted to the Village the burden of establishing that the same decision would have resulted even had the impermissible purpose not been considered. If this were established, the complaining party in a case of this kind no longer fairly could attribute the injury complained of to improper consideration of a discriminatory purpose. In such circumstances, there would be no justification for judicial interference with the challenged decision. But, in this case, respondents failed to make the required threshold showing. See Mt. Healthy City Board of Ed. v. Doyle, post, p. 429 U. S. 274 . MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, concurring in part and dissenting in part. I concur in Parts I-III of the Court's opinion. However, I believe the proper result would be to remand this entire case to the Court of Appeals for further proceedings consistent with Washington v. Davis, 426 U. S. 229 (1976), and today's opinion. The Court of Appeals is better situated Page 429 U. S. 272 than this Court both to reassess the significance of the evidence developed below in light of the standards we have set forth and to determine whether the interests of justice require further District Court proceedings directed toward those standards. MR. JUSTICE WHITE, dissenting. The Court reverses the judgment of the Court of Appeals because it finds, after reexamination of the evidence supporting the concurrent findings below, that "[r]espondents . . . failed to carry their burden of proving that discriminatory purpose was a motivating factor in the Village's decision." Ante at 429 U. S. 270 . The Court reaches this result by interpreting our decision in Washington v. Davis, 426 U. S. 229 (1976), and applying it to this case, notwithstanding that the Court of Appeals rendered its decision in this case before Washington v. Davis was handed down, and thus did not have the benefit of our decision when it found a Fourteenth Amendment violation. The Court gives no reason for its failure to follow our usual practice in this situation of vacating the judgment below and remanding in order to permit the lower court to reconsider its ruling in light of our intervening decision. The Court's articulation of a legal standard nowhere mentioned in Davis indicates that it feels that the application of Davis to these facts calls for substantial analysis. If this is true, we would do better to allow the Court of Appeals to attempt that analysis in the first instance. Given that the Court deems it necessary to reexamine the evidence in the case in light of the legal standard it adopts, a remand is especially appropriate. As the cases relied upon by the Court indicate, the primary function of this Court is not to review the evidence supporting findings of the lower courts. See, e.g., Wright v. Rockefeller, 376 U. S. 52 , 376 U. S. 56 -57 (1964); Akins v. Texas, 325 U. S. 398 , 325 U. S. 402 (1945). Page 429 U. S. 273 A further justification for remanding on the constitutional issue is that a remand is required in any event on respondents' Fair Housing Act claim, 42 U.S.C. 3601 et seq., not yet addressed by the Court of Appeals. While conceding that a remand is necessary because of the Court of Appeals' "unorthodox" approach of deciding the constitutional issue without reaching the statutory claim, ante at 429 U. S. 271 , the Court refuses to allow the Court of Appeals to reconsider its constitutional holding in light of Davis should it become necessary to reach that issue. Even if I were convinced that it was proper for the Court to reverse the judgment below on the basis of an intervening decision of this Court and after a reexamination of concurrent findings of fact below, I believe it is wholly unnecessary for the Court to embark on a lengthy discussion of the standard for proving the racially discriminatory purpose required by Davis for a Fourteenth Amendment violation. The District Court found that the Village was motivated "by a legitimate desire to protect property values and the integrity of the Village's zoning plan." The Court of Appeals accepted this finding as not clearly erroneous, and the Court quite properly refuses to overturn it on review here. There is thus no need for this Court to list various "evidentiary sources" or "subjects of proper inquiry" in determining whether a racially discriminatory purpose existed. I would vacate the judgment of the Court of Appeals and remand the case for consideration of the statutory issue and, if necessary, for consideration of the constitutional issue in light of Washington v. Davis.

The Supreme Court ruled that the Metropolitan Housing Development Corp. (MHDC) had standing to bring a lawsuit against the Village of Arlington Heights for denying their rezoning request to build racially integrated housing, with the Court citing potential economic and non-economic injuries as a result of the Village's decision. The Court also found that at least one individual respondent had standing to join the lawsuit. The case was then sent back to the lower courts for further review, with instructions to consider both the constitutional issue and a statutory claim under the Fair Housing Act.

Equal Protection

Craig v. Boren

https://supreme.justia.com/cases/federal/us/429/190/

U.S. Supreme Court Craig v. Boren, 429 U.S. 190 (1976) Craig v. Boren No. 75-628 Argued October 5, 1976 Decided December 20, 1976 429 U.S. 190 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA Syllabus Appellant Craig, a male then between 18 and 21 years old, and appellant Whitener, a licensed vendor of 3.2% beer, brought this action for declaratory and injunctive relief, claiming that an Oklahoma statutory scheme prohibiting the sale of "nonintoxicating" 3.2% beer to males under the age of 21 and to females under the age of 18 constituted a gender-based discrimination that denied to males 18-20 years of age the equal protection of the laws. Recognizing that Reed v. Reed, 404 U. S. 71 , and later cases establish that classification by gender must substantially further important governmental objectives, a three-judge District Court held that appellees' statistical evidence regarding young males' drunk-driving arrests and traffic injuries demonstrated that the gender-based discrimination was substantially related to the achievement of traffic safety on Oklahoma roads. Held: 1. Since only declaratory and injunctive relief against enforcement of the gender-based differential was sought, the controversy has been mooted as to Craig, who became 21 after this Court had noted probable jurisdiction. See, e.g., DeFunis v. Odegaard, 416 U. S. 312 . P. 429 U. S. 192 . 2. Whitener has standing to make the equal protection challenge. Pp. 429 U. S. 192 -197. (a) No prudential objective thought to be served by limitations of jus tertii standing can be furthered here, where the lower court already has entertained the constitutional challenge and the parties have sought resolution of the constitutional issue. Pp. 429 U. S. 193 -194. (b) Whitener in any event independently has established third-party standing. She suffers "injury in fact," since the challenged statutory provisions are addressed to vendors like her, who either must obey the statutory provisions and incur economic injury or disobey the statute and suffer sanctions. In such circumstances, vendors may resist efforts to restrict their operations by advocating the rights of third parties seeking access to their market. See, e.g., Eisenstadt v. Baird, 405 U. S. 438 . Pp. 429 U. S. 194 -197. 3. Oklahoma's gender-based differential constitutes an invidious discrimination against males 18-20 years of age in violation of the Equal Protection Clause. Appellees' statistics (the most relevant of which Page 429 U. S. 191 show only that .18% of females and 2% of males in the 18-20-year-old age group were arrested for driving while under the influence of liquor) do not warrant the conclusion that sex represents an accurate proxy for the regulation of drinking and driving. Pp. 429 U. S. 199 -204. 4. The operation of the Twenty-first Amendment does not alter the application of equal protection standards that otherwise govern this case. The Court has never recognized that application of that Amendment can defeat an otherwise established claim under the Equal Protection Clause, the principles of which cannot be rendered inapplicable here by reliance upon statistically measured but loose-fitting generalities concerning the drinking tendencies of aggregate groups. Pp. 429 U. S. 204 -210. 399 F. Supp. 1304 , reversed. BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, POWELL, and STEVENS, JJ., joined, and in all but Part II-D of which BLACKMUN, J., joined. POWELL, J., post, p. 429 U. S. 210 , and STEVENS, J., post, p. 429 U. S. 211 , filed concurring opinions. BLACKMUN, J., filed a statement concurring in part, post, p. 429 U. S. 214 . STEWART, J., filed an opinion concurring in the judgment, post, p. 429 U. S. 214 . BURGER, C.J., post, p. 429 U. S. 215 , and REHNQUIST, J., post, p. 429 U. S. 217 , filed dissenting opinions. MR. JUSTICE BRENNAN delivered the opinion of the Court. The interaction of two sections of an Oklahoma statute, Okla.Stat., Tit. 37, § 241 and 245 (1958 and Supp. 1976), [ Footnote 1 ] Page 429 U. S. 192 prohibits the sale of "nonintoxicating" 3.2% beer to males under the age of 21 and to females under the age of 18. The question to be decided is whether such a gender-based differential constitutes a denial to males 18-20 years of age of the equal protection of the laws in violation of the Fourteenth Amendment. This action was brought in the District Court for the Western District of Oklahoma on December 20, 1972, by appellant Craig, a male then between 18 and 21 years of age, and by appellant Whitener, a licensed vendor of 3.2% beer. The complaint sought declaratory and injunctive relief against enforcement of the gender-based differential on the ground that it constituted invidious discrimination against males 18-20 years of age. A three-judge court convened under 28 U.S.C. § 2281 sustained the constitutionality of the statutory differential and dismissed the action. 399 F. Supp. 1304 (1975). We noted probable jurisdiction of appellants' appeal, 423 U.S. 1047 (1976). We reverse. I We first address a preliminary question of standing. Appellant Craig attained the age of 21 after we noted probable jurisdiction. Therefore, since only declaratory and injunctive relief against enforcement of the gender-based differential is sought, the controversy has been rendered moot as to Craig. See, e.g., DeFunis v. Odegaard, 416 U. S. 312 (1974). [ Footnote 2 ] The question thus arises whether appellant Whitener, the licensed vendor of 3.2% beer, who has a live controversy against enforcement of the statute, may rely upon the equal protection objections of males 18-20 years of age to establish her claim of Page 429 U. S. 193 unconstitutionality of the age-sex differential. We conclude that she may. Initially, it should be noted that, despite having had the opportunity to do so, [ Footnote 3 ] appellees never raised before the District Court any objection to Whitener's reliance upon the claimed unequal treatment of 18-20-year-old males as the premise of her equal protection challenge to Oklahoma's 3.2 beer law. See 399 F. Supp. at 1306 n. 1. Indeed, at oral argument, Oklahoma acknowledged that appellees always "presumed" that the vendor, subject to sanctions and loss of license for violation of the statute, was a proper party in interest to object to the enforcement of the sex-based regulatory provision. Tr. of Oral Arg. 41. While such a concession certainly would not be controlling upon the reach of this Court's constitutional authority to exercise jurisdiction under Art. III, see, e.g., Sierra Club v. Morton, 405 U. S. 727 , 405 U. S. 732 n. 3 (1972); cf. Data Processing Service v. Camp, 397 U. S. 150 , 397 U. S. 151 (1970), our decisions have settled that limitations on a litigant's assertion of jus tertii are not constitutionally mandated, but rather stem from a salutary "rule of slf-restraint" designed to minimize unwarranted intervention into controversies where the applicable constitutional questions are ill-defined and speculative. See, e.g., Barrows v. Jackson, 346 U. S. 249 , 346 U. S. 255 , 257 (1953); see also Singleton v. Wulff, 428 U. S. 106 , 428 U. S. 123 -124 (1976) (POWELL, J., dissenting). These prudential objectives, thought to be enhanced by restrictions on third-party standing, cannot be furthered here, where the lower court already has entertained the relevant constitutional challenge and the parties have sought -- or at least have never resisted -- an authoritative constitutional determination. In such circumstances, a decision by us to forgo Page 429 U. S. 194 consideration of the constitutional merits in order to await the initiation of a new challenge to the statute by injured third parties would be impermissibly to foster repetitive and time-consuming litigation under the guise of caution and prudence. Moreover, insofar as the applicable constitutional questions have been and continue to be presented vigorously and "cogently," Holden v. Hardy, 169 U. S. 366 , 169 U. S. 397 (1898), the denial of jus tertii standing in deference to a direct class suit can serve no functional purpose. Our Brother BLACKMUN's comment is pertinent: "[I]t may be that a class could be assembled, whose fluid membership always included some [males] with live claims. But if the assertion of the right is to be 'representative' to such an extent anyway, there seems little loss in terms of effective advocacy from allowing its assertion by" the present jus tertii champion. Singleton v. Wulff, supra at 428 U. S. 117 -118. In any event, we conclude that appellant Whitener has established independently her claim to assert jus tertii standing. The operation of §§ 241 and 245 plainly has inflicted "injury in fact" upon appellant sufficient to guarantee her "concrete adverseness," Baker v. Carr, 369 U. S. 186 , 369 U. S. 204 (1962), and to satisfy the constitutionally based standing requirements imposed by Art. III. The legal duties created by the statutory sections under challenge are addressed directly to vendors such as appellant. She is obliged either to heed the statutory discrimination, thereby incurring a direct economic injury through the constriction of her buyers' market, or to disobey the statutory command and suffer, in the words of Oklahoma's Assistant Attorney General, "sanctions and perhaps loss of license." Tr. of Oral Arg. 41. This Court repeatedly has recognized that such injuries establish the threshold requirements of a "case or controversy" mandated by Art. III. See, e.g., Singleton v. Wulff, supra at 428 U. S. 113 (doctors who receive payments for their abortion services are "classically adverse" to government as payer); Sullivan v. Little Hunting Page 429 U. S. 195 Park, 396 U. S. 229 , 396 U. S. 237 (1969); Barrows v. Jackson, supra at 346 U. S. 255 -256. As a vendor with standing to challenge the lawfulness of §§ 241 and 245, appellant Whitener is entitled to assert those concomitant rights of third parties that would be "diluted or adversely affected" should her constitutional challenge fail and the statutes remain in force. Griswold v. Connecticut, 381 U. S. 479 , 381 U. S. 481 (1965); see Note, Standing to Assert Constitutional Jus Tertii, 88 Harv.L.Rev. 423, 432 (1974). Otherwise, the threatened imposition of governmental sanctions might deter appellant Whitener and other similarly situated vendor from selling 3.2% beer to young males, thereby ensuring that "enforcement of the challenged restriction against the [vendor] would result indirectly in the violation of third parties' rights." Warth v. Seldin, 422 U. S. 490 , 422 U. S. 510 (1975). Accordingly, vendors and those in like positions have been uniformly permitted to resist efforts at restricting their operations by acting as advocates of the rights of third parties who seek access to their market or function. See, e.g., Eisenstadt v. Baird, 405 U. S. 438 (1972); Sullivan v. Little Hunting Park, supra; Barrows v. Jackson, supra. [ Footnote 4 ] Page 429 U. S. 196 Indeed, the jus tertii question raised here is answered by our disposition of a like argument in Eisenstadt v. Baird, supra. There, as here, a state statute imposed legal duties and disabilities upon the claimant, who was convicted of distributing a package of contraceptive foam to a third party. [ Footnote 5 ] Since the statute was directed at Baird and penalized his conduct, the Court did not hesitate -- again as here -- to conclude that the "case or controversy" requirement of Art. III was satisfied. 405 U.S. at 405 U. S. 443 . In considering Baird's constitutional objections, the Court fully recognized his standing to defend the privacy interests of third parties. Deemed crucial to the decision to permit jus tertii standing was the recognition of "the impact of the litigation on the third-party interests." Id. at 405 U. S. 445 . Just as the defeat of Baird's suit and the "[e]nforcement of the Massachusetts statute will materially impair the ability of single persons to obtain contraceptives," id. at 405 U. S. 446 , so too the failure of Whitener to prevail in this suit and the continued enforcement of §§ 241 and 245 will "materially impair the ability of" males 18-20 years of age to purchase 3.2% beer despite their classification by an overt gender-based criterion. Similarly, just as the Massachusetts law in Eisenstadt "prohibit[ed], Page 429 U. S. 197 not use, but distribution," 405 U.S. at 405 U. S. 446 , and consequently the least awkward challenger was one in Baird's position who was subject to that proscription, the law challenged here explicitly regulates the sale, rather than use, of 3.2 beer, thus leaving a vendor as the obvious claimant. We therefore hold that Whitener has standing to raise relevant equal protection challenges to Oklahoma's gender-based law. We now consider those arguments. II A Before 1972, Oklahoma defined the commencement of civil majority at age 18 for females and age 21 for males. Okla.Stat., Tit. 15, § 13 (1972 and Supp. 1976). In contrast, females were held criminally responsible as adults at age 18, and males at age 16. Okla.Stat., Tit. 10, § 1101(a) (Supp. 1976). After the Court of Appeals for the Tenth Circuit held, in 1972, on the authority of Reed v. Reed, 404 U. S. 71 (1971), that the age distinction was unconstitutional for purposes of establishing criminal responsibility as adults, Lamb v. Brown, 456 F.2d 18, the Oklahoma Legislature fixed age 18 as applicable to both males and females. Okla.Stat., Tit. 10, § 1101(a) (Supp. 1976). In 1972, 18 also was established as the age of majority for males and females in civil matters, Okla.Stat., Tit. 15, § 13 (1972 and Supp. 1976), except that §§ 241 and 245 of the 3.2% beer statute were simultaneously codified to create an exception to the gender-free rule. Analysis may appropriately begin with the reminder that Reed emphasized that statutory classifications that distinguish between males and females are "subject to scrutiny under the Equal Protection Clause." 404 U.S. at 404 U. S. 75 . To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. Thus, in Reed, the objectives Page 429 U. S. 198 of "reducing the workload on probate courts," id. at 404 U. S. 76 , and "avoiding intra-family controversy," id. at 404 U. S. 77 , were deemed of insufficient importance to sustain use of an overt gender criterion in the appointment of administrators of intestate decedents' estates. Decisions following Reed similarly have rejected administrative ease and convenience as sufficiently important objectives to justify gender-based classifications. See, e.g., Stanley v. Illinois, 405 U. S. 645 , 405 U. S. 656 (1972); Frontiero v. Richardson, 411 U. S. 677 , 411 U. S. 690 (1973); cf. Schlesinger v. Ballard, 419 U. S. 498 , 419 U. S. 506 -507 (1975). And only two Terms ago, Stanton v. Stanton, 421 U. S. 7 (1975), expressly stating that Reed v. Reed was "controlling," 421 U.S. at 421 U. S. 13 , held that Reed required invalidation of a Utah differential age-of-majority statute, notwithstanding the statute's coincidence with and furtherance of the State's purpose of fostering "old notions" of role typing and preparing boys for their expected performance in the economic and political worlds. 421 U.S. at 421 U. S. 14 -15. [ Footnote 6 ] Reed v. Reed has also provided the underpinning for decisions that have invalidated statutes employing gender as an inaccurate proxy for other, more germane bases of classification. Hence, "archaic and overbroad" generalizations, Schlesinger v. Ballard, supra at 419 U. S. 508 , concerning the financial position of servicewomen, Frontiero v. Richardson, supra at 411 U. S. 689 n. 23, and working women, Weinberger v. Wiesenfeld, 420 U. S. 636 , 420 U. S. 643 (1975), could not justify use of a gender line in determining eligibility for certain governmental entitlements. Similarly, increasingly outdated Page 429 U. S. 199 misconceptions concerning the role of females in the home, rather than in the "marketplace and world of ideas," were rejected as loose-fitting characterizations incapable of supporting state statutory schemes that were premised upon their accuracy. Stanton v. Stanton, supra; Taylor v. Louisiana, 419 U. S. 522 , 419 U. S. 535 n. 17 (1975). In light of the weak congruence between gender and the characteristic or trait that gender purported to represent, it was necessary that the legislatures choose either to realign their substantive laws in a gender-neutral fashion or to adopt procedures for identifying those instances where the sex-centered generalization actually comported with fact. See, e.g., Stanley v. Illinois, supra at 405 U. S. 658 ; cf. Cleveland Board of Education v. LaFleur, 414 U. S. 632 , 414 U. S. 650 (1974). In this case, too, " Reed, we feel, is controlling . . . ," Stanton v. Stanton, supra at 421 U. S. 13 . We turn then to the question whether, under Reed, the difference between males and females with respect to the purchase of 3.2% beer warrants the differential in age drawn by the Oklahoma statute. We conclude that it does not. B The District Court recognized that Reed v. Reed was controlling. In applying the teachings of that case, the court found the requisite important governmental objective in the traffic safety goal proffered by the Oklahoma Attorney General. It then concluded that the statistics introduced by the appellees established that the gender-based distinction was substantially related to achievement of that goal. C We accept for purposes of discussion the District Court's identification of the objective underlying §§ 241 and 245 as the enhancement of traffic safety. [ Footnote 7 ] Clearly, the protection Page 429 U. S. 200 of public health and safety represents an important function of state and local governments. However, appellees' statistics, in our view, cannot support the conclusion that the gender-based distinction closely serves to achieve that objective, and therefore the distinction cannot, under Reed, withstand equal protection challenge. The appellees introduced a variety of statistical surveys. First, an analysis of arrest statistics for 1973 demonstrated that 18-20-year-old male arrests for "driving under the influence" and "drunkenness" substantially exceeded female arrests for that same age period. [ Footnote 8 ] Similarly, youths aged 17-21 were found to be overrepresented among those killed Page 429 U. S. 201 or injured in traffic accidents, with males again numerically exceeding females in this regard. [ Footnote 9 ] Third, a random roadside survey in Oklahoma City revealed that young male were more inclined to drive and drink beer than were their female counterparts. [ Footnote 10 ] Fourth, Federal Bureau of Investigation nationwide statistics exhibited a notable increase in arrests for "driving under the influence." [ Footnote 11 ] Finally, statistical evidence gathered in other jurisdictions, particularly Minnesota and Michigan, was offered to corroborate Oklahoma's experience by indicating the pervasiveness of youthful participation in motor vehicle accidents following the imbibing of alcohol. Conceding that "the case is not free from doubt," 399 F. Supp. at 1314, the District Court nonetheless concluded that this statistical showing substantiated "a rational basis for the legislative judgment underlying the challenged classification." Id. at 1307. Even were this statistical evidence accepted as accurate, it nevertheless offers only a weak answer to the equal protection question presented here. The most focused and relevant of the statistical surveys, arrests of 18-20-year-olds for alcohol-related driving offenses, exemplifies the ultimate unpersuasiveness of this evidentiary record. Viewed in terms of the correlation between sex and the actual activity that Oklahoma seeks to regulate -- driving while under the influence of alcohol -- the statistics broadly establish that .18% of females and 2% of males in that age group were arrested for that offense. While such a disparity is not trivial in a statistical sense, it hardly can form the basis for employment of a gender line as a classifying device. Certainly if maleness Page 429 U. S. 202 is to serves a proxy for drinking and driving, a correlation of 2% must be considered an unduly tenuous "fit." [ Footnote 12 ] Indeed, prior cases have consistently rejected the use of sex as a decisionmaking factor even though the statutes in question certainly rested on far more predictive empirical relationships than this. [ Footnote 13 ] Moreover, the statistics exhibit a variety of other shortcomings that seriously impugn their value to equal protection analysis. Setting aside the obvious methodological problems, [ Footnote 14 ] the surveys do not adequately justify the salient Page 429 U. S. 203 features of Oklahoma's gender-based traffic safety law. None purports to measure the use and dangerousness of 3.2% beer, as opposed to alcohol generally, a detail that is of particular importance since, in light of its low alcohol level, Oklahoma apparently considers the 3.2% beverage to be "nonintoxicating." Okla.Stat., Tit. 37, § 163.1 (1958); see State ex rel. Springer v. Bliss, 199 Okla. 198 , 185 P.2d 220 (1947). Moreover, many of the studies, while graphically documenting the unfortunate increase in driving while under the influence of alcohol, make no effort to relate their findings to age-sex differentials as involved here. [ Footnote 15 ] Indeed, the only survey that explicitly centered its attention upon young drivers and their use of beer -- albeit apparently not of the diluted 3.2% variety -- reached results that hardly can be viewed as impressive in justifying either a gender or age classification. [ Footnote 16 ] Page 429 U. S. 204 There is no reason to belabor this line of analysis. It is unrealistic to expect either members of the judiciary or state officials to be well versed in the rigors of experimental or statistical technique. But this merely illustrates that proving broad sociological propositions by statistics is a dubious business, and one that inevitably is in tension with the normative philosophy that underlies the Equal Protection Clause. [ Footnote 17 ] Suffice to say that the showing offered by the appellees does not satisfy us that sex represents a legitimate, accurate proxy for the regulation of drinking and driving. In fact, when it is further recognized that Oklahoma's statute prohibits only the selling of 3.2% beer to young males, and not their drinking the beverage once acquired (even after purchase by their 18-20-year-old female companions), the relationship between gender and traffic safety becomes far too tenuous to satisfy Reed's requirement that the gender-based difference be substantially related to achievement of the statutory objective. We hold, therefore, that under Reed, Oklahoma's 3.2% beer statute invidiously discriminates against males 18-20 years of age. D Appellees argue, however, that §§ 241 and 245 enforce state policies concerning the sale and distribution of alcohol and by force of the Twenty-first Amendment should therefore be held to withstand the equal protection challenge. The District Court's response to this contention is unclear. The court assumed that the Twenty-first Amendment "strengthened" the State's police powers with respect to alcohol regulation, 399 F. Supp. at 1307, but then said that "the standards of review that [the Equal Protection Clause] mandates are not relaxed." Id. at 1308. Our view is, and we hold, that the Twenty-first Amendment does not save the Page 429 U. S. 205 invidious gender-based discrimination from invalidation as a denial of equal protection of the laws in violation of the Fourteenth Amendment. The history of state regulation of alcoholic beverages dates from long before adoption of the Eighteenth Amendment. In the License Cases , 5 How. 504, 46 U. S. 579 (1847), the Court recognized a broad authority in state governments to regulate the trade of alcoholic beverages within their borders free from implied restrictions under the Commerce Clause. Later in the century, however, Leisy v. Hardin, 135 U. S. 100 (1890), undercut the theoretical underpinnings of the License Cases. This led Congress, acting pursuant to its powers under the Commerce Clause, to reinvigorate the State's regulatory role through the passage of the Wilson [ Footnote 18 ] and Webb-Kenyon Acts. [ Footnote 19 ] See, e.g., Clark Distilling Co. v. Western Maryland R. Co., 242 U. S. 311 (1917) (upholding Webb-Kenyon Act); In re Rahrer, 140 U. S. 545 (1891) (upholding Wilson Act). With passage of the Eighteenth Amendment, the uneasy tension between the Commerce Clause and state police power temporarily subsided. The Twenty-first Amendment repealed the Eighteenth Amendment in 1933. The wording of § 2 of the Twenty-first Amendment [ Footnote 20 ] closely follows the Webb-Kenyon and Wilson Page 429 U. S. 206 Acts, ex.pressing the framers' clear intention of constitutionalizing the Commerce Clause framework established under those statutes. This Court's decisions since have confirmed that the Amendment primarily created an exception to the normal operation of the Commerce Clause. See, e.g., Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U. S. 324 , 377 U. S. 330 (1964); Carter v. Virginia, 321 U. S. 131 , 321 U. S. 139 -140 (1944) (Frankfurter, J., concurring); Finch & Co. v. McKittrick, 305 U. S. 395 , 305 U. S. 398 (1939). Even here, however, the Twenty-first Amendment does not pro tanto repeal the Commerce Clause, but merely requires that each provision "be considered in the light of the other, and in the context of the issues and interests at stake in any concrete case." Hostetter v. Idlewild Bon Voyage Liquor Corp., supra at 377 U. S. 332 ; cf. Department of Revenue v. James Beam Distilling Co., 377 U. S. 341 (1964); Collins v. Yosemite Park & Curry Co., 304 U. S. 518 (1938). Once passing beyond consideration of the Commerce Clause, the relevance of the Twenty-first Amendment to other constitutional provisions becomes increasingly doubtful. As one commentator has remarked: "Neither the text nor the history of the Twenty-first Amendment suggests that it qualifies individual rights protected by the Bill of Rights and the Fourteenth Amendment where the sale or use of liquor is concerned." P. Brest Processes of Constitutional Decisionmaking, Cases and Materials, 258 (1975). Any departures from this historical view have been limited and sporadic. Two States successfully relied upon the Twenty-first Amendment to respond to challenges of major liquor importers to state authority to regulate the importation and manufacture of alcoholic beverages on Commerce Clause and Fourteenth Amendment grounds. See Mahoney v. Joseph Triner Corp., 304 U. S. 401 (1938); State Board v. Young's Market Co. , Page 429 U. S. 207 299 U. S. 59 , 299 U. S. 64 (196). In fact, however, the arguments in both cases centered upon importation of intoxicants, a regulatory area where the State's authority under the Twenty-first Amendment is transparently clear, Hostetter v. Idlewild Bon Voyage Liquor Corp., supra at 377 U. S. 330 , and n. 9, and touched upon purely economic matters that traditionally merit only the mildest review under the Fourteenth Amendment, see, e.g., Joseph E. Seagram & Sons v. Hostetter, 384 U. S. 35 , 384 U. S. 47 -48, 384 U. S. 50 -51 (1966) (rejecting Fourteenth Amendment objections to state liquor laws on the strength of Ferguson v. Skrupa, 372 U. S. 726 , 372 U. S. 729 -730 (1963) and Williamson v. Lee Optical Co., 348 U. S. 483 (1955)), [ Footnote 21 ] Cases involving individual rights protected by the Due Process Clause have been treated in sharp contrast. For example, when an individual objected to the mandatory "posting" of her name in retail liquor establishments and her characterization as an "excessive drink[er]," the Twenty-first Amendment was held not to qualify the scope of her due process rights. Wisconsin v. Constantineau, 400 U. S. 433 , 400 U. S. 436 (1971). It is true that California v. LaRue, 409 U. S. 109 , 409 U. S. 115 (1972), relied upon the Twenty-first Amendment to "strengthen" the State's authority to regulate live entertainment at establishments licensed to dispense liquor, at least when the performances "partake more of gross sexuality than of communication," id. at 409 U. S. 118 . Nevertheless, the Court has never recognized sufficient "strength" in the Amendment to defeat an otherwise established claim of invidious discrimination in violation of the Equal Protection Clause. Page 429 U. S. 208 Rather, Moose Lodge No. 107 v. Irvis, 407 U. S. 163 , 407 U. S. 178 -179 (1972), establishes that state liquor regulatory schemes cannot work invidious discriminations that violate the Equal Protection Clause. Following this approach, both federal and state courts uniformly have declared the unconstitutionality of gender lines that restrain the activities of customers of state-regulated liquor establishments irrespective of the operation of the Twenty-first Amendment. See, e.g., White v. Fleming, 522 F.2d 730 (CA7 1975); Women's Liberation Union of R.I. v. Israel, 512 F.2d 106 (CA1 1975); Daugherty v. Daley, 370 F. Supp. 338 (ND Ill.1974) (three-judge court); Seidenberg v. McSorleys' Old Ale House, Inc., 317 F. Supp. 593 (SDNY 1970); Commonwealth Alcoholic Beverage Control Bd. v. Burke, 481 S.W.2d 52 (Ky.1972); cf. Sail'er Inn, Inc. v. Kirby, 5 Cal. 3d 1 , 485 P.2d 529 (1971); Paterson Tavern & G. O. A. v. Hawthorne, 57 N.J. 180, 270 A.2d 628 (1970). Even when state officials have posited sociological or empirical justifications for these gender-based differentiations, the courts have struck down discriminations aimed at an entire class under the guise of alcohol regulation. In fact, social science studies that have uncovered quantifiable differences in drinking tendencies dividing along both racial and ethnic lines strongly suggest the need for application of the Equal Protection Clause in preventing discriminatory treatment that almost certainly would be perceived as invidious. [ Footnote 22 ] In sum, the principles embodied in the Equal Page 429 U. S. 209 Protection. Clause are not to be rendered inapplicable by statistically measured but loose-fitting generalities concerning the drinking tendencies of aggregate groups. We thus hold that the operation of the Twenty-first Amendment does not alter the application of equal protection standards that otherwise govern this case. Page 429 U. S. 210 We conclude that the gender-based differential contained in Okla.Stat., Tit. 37, § 45 (1976 Supp.) constitutes a denial of the equal protection of the laws to males aged 18-20, [ Footnote 23 ] and reverse the judgment of the District Court. [ Footnote 24 ] It is so ordered. [ Footnote 1 ] Sections 241 and 245 provide in pertinent part: § 241. "It shall be unlawful for any person who holds a license to sell and dispense beer . . . to sell, barter or give to any minor any beverage containing more than one-half of one per cent of alcohol measured by volume and not more than three and two-tenths (3.2) per cent of alcohol measured by weight." § 245. "A 'minor,' for the purposes of Section . . . 241 . . . is defined as a female under the age of eighteen (18) years, and a male under the age of twenty-one (21) years." [ Footnote 2 ] Appellants did not seek class certification of Craig as representative of other similarly situated males 18-20 years of age. See, e.g., Sosna v. Iowa, 419 U. S. 393 , 419 U. S. 401 (1975). [ Footnote 3 ] The District Court' opinion confirms that Whitener from the outset has based her constitutional challenge on gender-discrimination ground, 399 F. Supp. at 1306, and "[n]o challenge is made to [her] standing and requisite interest in the controversy. . . ." Id. at 1306 n. 1. [ Footnote 4 ] The standing question presented here is not answered by the principle stated in United States v. Raines, 362 U. S. 17 , 362 U. S. 21 (1960), that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." In Raines, the Court refused to permit certain public officials of Georgia to defend against application of the Civil Rights Act to their official conduct on the ground that the statute also might be construed to encompass the "purely private actions" of others. The Raines rule remains germane in such a setting, where the interests of the litigant and the rights of the proposed third parties are in no way mutually interdependent. Thus, a successful suit against Raines did not threaten to impair or diminish the independent private rights of others, and consequently, consideration of those third-party rights properly was deferred until another day. Of course, the Raines principle has also been relaxed where legal action against the claimant threatens to "chill" the First Amendment rights of third parties. See, e.g., Lewis v. New Orleans, 415 U. S. 130 (1974). [ Footnote 5 ] The fact that Baird chose to disobey the legal duty imposed upon him by the Massachusetts anti-contraception statute, resulting in his criminal conviction, 405 U.S. at 405 U. S. 440 , does not distinguish the standing inquiry from that pertaining to the anticipatory attack in this case. In both Eisenstadt and here, the challenged statutes compel jus tertii claimants either to cease their proscribed activities or to suffer appropriate sanctions. The existence of Art. III "injury in fact" and the structure of the claimant's relationship to the third parties are not altered by the litigative posture of the suit. And certainly no suggestion will be heard that Whitener's anticipatory challenge offends the normal requirements governing such actions. See generally Steffel v. Thompson, 415 U. S. 452 (1974); Samuels v. Mackell, 401 U. S. 66 (1971); Younger v. Harris, 401 U. S. 37 (1971). [ Footnote 6 ] Kahn v. Shevin, 416 U. S. 351 (1974) and Schlesinger v. Ballard, 419 U. S. 498 (1975), upholding the use of gender-based classifications, rested upon the Court's perception of the laudatory purposes of those laws as remedying disadvantageous conditions suffered by women in economic and military life. See 416 U.S. at 416 U. S. 353 -354; 419 U.S. at 419 U. S. 508 . Needless to say, in this case, Oklahoma does not suggest that the age-sex differential was enacted to ensure the availability of 3.2% beer for women as compensation for previous deprivations. [ Footnote 7 ] That this was the true purpose is not at all self-evident. The purpose is not apparent from the face of the statute, and the Oklahoma Legislature does not preserve statutory history materials capable of clarifying the objectives served by its legislative enactments. The District Court acknowledged the nonexistence of materials necessary "to reveal what the actual purpose of the legislature was," but concluded that "we feel it apparent that a major purpose of the legislature was to promote the safety of the young persons affected and the public generally." 399 F. Supp. at 1311 n. 6. Similarly, the attorney for Oklahoma, while proposing traffic safety as a legitimate rationale for the 3.2% beer law, candidly acknowledged at oral argument that he is unable to assert that traffic safety is "indeed the reason" for the gender line contained in § 245. Tr. of Oral Arg. 27. For this appeal we find adequate the appellee's representation of legislative purpose, leaving for another day consideration of whether the statement of the State's Assistant Attorney General should suffice to inform this Court of the legislature's objectives, or whether the Court must determine if the litigant simply is selecting a convenient, but false, post hoc rationalization. [ Footnote 8 ] The disparities in 18-20-year-old male-female arrests were substantial for both categories of offenses: 427 versus 24 for driving under the influence of alcohol, and 966 versus 102 for drunkenness. Even if we assume that a legislature may rely on such arrest data in some situations, these figures do not offer support for a differential age line, for the disproportionate arrests of males persisted at older ages; indeed, in the case of arrests for drunkenness, the figures for all ages indicated "even more male involvement in such arrests at later ages." 399 F. Supp. at 1309. See also n 14, infra. [ Footnote 9 ] This survey drew no correlation between the accident figures for any age group and levels of intoxication found in those killed or injured. [ Footnote 10 ] For an analysis of the results of this exhibit, see n 16, infra. [ Footnote 11 ] The FBI made no attempt to relate these arrest figures either to beer drinking or to an 18-21 age differential, but rather found that male arrests for all ages exceeded 90% of the total. [ Footnote 12 ] Obviously, arrest statistics do not embrace all individuals who drink and drive. But for purposes of analysis, this "underinclusiveness" must be discounted somewhat by the shortcomings inherent in this statistical sample, see n 14, infra. In any event, we decide this case in light of the evidence offered by Oklahoma, and know of no way of extrapolating these arrest statistics to take into account the driving and drinking population at large, including those who avoided arrest. [ Footnote 13 ] For example, we can conjecture that, in Reed, Idaho's apparent premise that women lacked experience in formal business matters (particularly compared to men) would have proved to be accurate in substantially more than 2% of all cases. And in both Frontiero and Wiesenfeld, we expressly found appellees' empirical defense of mandatory dependency tests for men but not women to be unsatisfactory, even though we recognized that husbands are still far less likely to be dependent on their wives than vice versa. See, e.g., 411 U.S. at 411 U. S. 688 -690. [ Footnote 14 ] The very social stereotypes that find reflection in age differential laws, see Stanton v. Stanton, 421 U. S. 7 , 421 U. S. 14 -15 (1975), are likely substantially to distort the accuracy of these comparative statistics. Hence "reckless" young men who drink and drive are transformed into arrest statistics, whereas their female counterparts are chivalrously escorted home. See, e.g., W. Reckless & B. Kay, The Female Offender 4, 7, 13, 16-17 (Report to Presidential Commission on Law Enforcement and Administration of Justice, 1967). Moreover, the Oklahoma surveys, gathered under a regime where the age differential law in question has been in effect, are lacking in controls necessary for appraisal of the actual effectiveness of the male 3.2% beer prohibition. In this regard, the disproportionately high arrest statistics for young males -- and, indeed, the growing alcohol-related arrest figures for all ages and sexes -- simply may be taken to document the relative futility of controlling driving behavior by the 3.2% beer statute and like legislation, although we obviously have no means of estimating how many individuals, if any, actually were prevented from drinking by these laws. [ Footnote 15 ] See, e.g., nn. 9 and | 9 and S. 190fn11|>11, supra. See also 9 and S. 190fn16|>n. 16, infra. [ Footnote 16 ] The random roadside survey of drivers conducted in Oklahoma City during August 1972 found that 78% of drivers under 20 were male. Turning to an evaluation of their drinking habits and factoring out nondrinkers, 84% of the males, versus 77% of the females, expressed a preference for beer. Further 16.5% of the men and 11.4% of the women had consumed some alcoholic beverage within two hours of the interview. Finally, a blood alcohol concentration greater than .01% was discovered in 14.6% of the males compared to 11.5% of the females. "The 1973 figures, although they contain some variations, reflect essentially the same pattern." 399 F. Supp. at 1309. Plainly these statistical disparities between the sexes are not substantial. Moreover, when the 18-20 age boundaries are lifted and all drivers analyzed, the 1972 roadside survey indicates that male drinking rose slightly, whereas female exposure to alcohol remained relatively constant. Again, in 1973, the survey established that, "compared to all drivers interviewed, . . . the umder-20 age group generally showed a lower involvement with alcohol in terms of having drunk within the past two hours or having a significant BAC (blood alcohol content)." Ibid. In sum, this survey provides little support for a gender line among teenagers, and actually runs counter to the imposition of drinking restrictions based upon age. [ Footnote 17 ] See, e.g., n 22, infra. [ Footnote 18 ] The Wilson Act, enacted in 1890, reads in pertinent part: "All . . . intoxicating liquors or liquids transported into any State or Territory . . . shall upon arrival in such State or Territory be subject to the operation and effect of the laws of such State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory. . . ." 27 U.S.C. § 121. [ Footnote 19 ] The Webb-Kenyon Act of 1913 prohibits "[t]he shipment or transportation . . . of any . . . intoxicating liquor of any kind, from one State, Territory, or District . . . into any other State, Territory, or District . . . [for the purpose of being] received, possessed, sold, or in any manner used . . . in violation of any law of such State, Territory, or District. . . ." 27 U.S.C. § 122. [ Footnote 20 ] "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." [ Footnote 21 ] The dictum contained in State Board v. Young's Market Co., 299 U. S. 59 , 299 U. S. 64 (1936), that "[a] classification recognized by the Twenty-first Amendment cannot be deemed forbidden by the Fourteenth," is inapplicable to this case. The Twenty-first Amendment does not recognize, even indirectly, classifications based upon gender. And, as the accompanying text demonstrates, that statement has not been relied upon in recent cases that have considered Fourteenth Amendment challenges to state liquor regulation. [ Footnote 22 ] Thus, if statistics were to govern the permissibility of state alcohol regulation without regard to the Equal Protection Clause as a limiting principle, it might follow that States could freely favor Jews and Italian Catholics at the expense of all other Americans, since available studies regularly demonstrate that the former two groups exhibit the lowest rates of problem drinking. See, e.g., Haberman & Sheinberg, Implicative Drinking Reported in a Household Survey: A Corroborative Note on Subgroup Differences, 28 Q.J.Studies on Alcohol 538 (1967); Wechsler, Thum, Demone, & Dwinnell, Social Characteristics and Blood Alcohol Level, 33 Q.J.Studies on Alcohol 132, 141-142 (1972); Wechsler, Demone, Thum, & Kasey, Religious-Ethnic Differences In Alcohol Consumption, 11 J.Health & Soc.Behavior 21, 28 (1970); Schmidt & Popham, Impressions of Jewish Alcoholics, 37 J.Studies on Alcohol 931 (1976). Similarly, if a State were allowed simply to depend upon demographic characteristics of adolescents in identifying problem drinkers, statistics might support the conclusion that only black teenagers should be permitted to drink, followed by Asian-Americans and Spanish-Americans. "Whites and American Indians have the lowest proportions of abstainers and the highest proportions of moderate/heavy and heavy drinkers." Summary of Final Report of a National Study of Adolescent Drinking Behavior, Attitudes and Correlates 147-148 (Center for the Study of Social Behavior, Research Triangle Inst., Apr.1975) (percentage of moderate/heavy and heavy adolescent drinkers by race: black 15.2%; Asian-American 18.3%; Spanish-American 22.7%; white 25.3%; American Indian 28.1%). In the past, some States have acted upon their notions of the drinking propensities of entire groups in fashioning their alcohol policies. The most typical recipient of this treatment has been the American Indian; indeed, several States established criminal sanctions for the sale of alcohol to an Indian or "half- or quarter-breed Indian." See, e.g., Fla.Stat.Ann. § 569.07 (1962 and 1976 Supp.) (repealed in 1972); Iowa Code Ann. § 732.5 (1950 and 1976 Supp.) (repealed in 1967); Minn.Stat.Ann. § 340.82 (1957) (repealed in 1969); Neb.Rev.Stat. 53-181 (1944) (repealed in 1955); Utah Code Ann. § 76-34-1 (1953 and 1975 Supp.) (repealed in 1955). Other statutes and constitutional provisions proscribed the introduction of alcoholic beverages onto Indian reservations. See, e.g., Act of June 10, 1910, § 2, 36 Stat. 558; Ariz.Const., Art. XX, § 3; N.M.Const., Art. XXI, § 8; Okla.Const., Art. 1, § 7. While Indian-oriented provisions were the most common, state alcohol beverage prohibitions also have been directed at other groups, notably German, Italian, and Catholic immigrants. See, e.g., J. Higham, Strangers in the Land 25, 267-268, 295 (1975). The repeal of most of these laws signals society's perception of the unfairness and questionable constitutionality of singling out groups to bear the brunt of alcohol regulation. [ Footnote 23 ] Insofar as Goesaert v. Cleary, 335 U. S. 464 (1948), may be inconsistent, that decision is disapproved. Undoubtedly reflecting the view that Goesaert's equal protection analysis no longer obtains, the District Court made no reference to that decision in upholding Oklahoma's statute. Similarly, the opinions of the federal and state courts cited earlier in the text invalidating gender lines with respect to alcohol regulation uniformly disparaged the contemporary vitality of Goesaert. [ Footnote 24 ] As noted in Stanton v. Stanton, 421 U.S. at 421 U. S. 17 -18, the Oklahoma Legislature is free to redefine any cutoff age for the purchase and sale of 3.2% beer that it may choose, provided that the redefinition operates in a gender-neutral fashion. MR. JUSTICE POWELL, concurring. I join the opinion of the Court as I am in general agreement with it. I do have reservations as to some of the discussion concerning the appropriate standard for equal protection analysis and the relevance of the statistical evidence. Accordingly, I add this concurring statement. With respect to the equal protection standard, I agree that Reed v. Reed, 404 U. S. 71 (1971), is the most relevant precedent. But I find it unnecessary, in deciding this case, to read that decision as broadly as some of the Court's language may imply. Reed and subsequent cases involving gender-based classifications make clear that the Court subjects such classifications to a more critical examination than is normally applied when "fundamental" constitutional rights and "suspect classes" are not present. * Page 429 U. S. 211 I view this as relatively easy case. No one questions the legitimacy or importance of the asserted governmental objective: the promotion of highway safety. The decision of the case turns on whether the state legislature, by the classification it has chosen, has adopted a means that bears a " fair and substantial relation'" to this objective. Id. at 404 U. S. 76 , quoting Royster Guano Co. v. Virginia, 253 U. S. 412 , 253 U. S. 415 (1920). It seems to me that the statistics offered by appellees and relied upon by the District Court do tend generally to support the view that young men drive more, possibly are inclined to drink more, and -- for various reasons -- are involved in more accidents than young women. Even so, I am not persuaded that these facts and the inferences fairly drawn from them justify this classification based on a three-year age differential between the sexes, and especially one that is so easily circumvented as to be virtually meaningless. Putting it differently, this gender-based classification does not bear a fair and substantial relation to the object of the legislation. * As is evident from our opinions, the Court has had difficulty in agreeing upon a standard of equal protection analysis that can be applied consistently to the wide variety of legislative classifications. There are valid reasons for dissatisfaction with the "two-tier" approach that has been prominent in the Court's decisions in the past decade. Although viewed by many as a result-oriented substitute for more critical analysis, that approach -- with its narrowly limited "upper-tier" -- now has substantial precedential support. As has been true of Reed and its progeny, our decision today will be viewed by some as a "middle-tier" approach. While I would not endorse that characterization, and would not welcome a further subdividing of equal protection analysis, candor compels the recognition that the relatively deferential "rational basis" standard of review normally applied takes on a sharper focus when we address a gender-based classification. So much is clear from our recent cases. For thoughtful discussions of equal protection analysis, see, e.g., Gunther, The Supreme Court, 1971 Term -- Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for A Newer Equal Protection, 86 Harv.L.Rev. 1 (1972); Wilkinson, The Supreme Court, the Equal Protection Clause, and the Three Faces of Constitutional Equality, 61 Va.L.Rev. 945 (1975). MR. JUSTICE STEVENS, concurring. There is only one Equal Protection Clause. It requires every State to govern impartially. It does not direct the Page 429 U. S. 212 courts to apply one standard of review in some cases and a different standard in other cases. Whatever criticism may be leveled at a judicial opinion implying that there are at least three such standards applies with the same force to a double standard. I am inclined to believe that what has become known as the two-tiered analysis of equal protection claims does not describe a completely logical method of deciding cases, but rather is a method the Court has employed to explain decisions that actually apply a single standard in a reasonably consistent fashion. I also suspect that a careful explanation of the reasons motivating particular decisions may contribute more to an identification of that standard than an attempt to articulate it in all-encompassing terms. It may therefore be appropriate for me to state the principal reasons which persuaded me to join the Court's opinion. In this case, the classification is not as obnoxious as some the Court has condemned, [ Footnote 2/1 ] nor as inoffensive as some the Court has accepted. It is objectionable because it is based on an accident of birth, [ Footnote 2/2 ] because it is a mere remnant of the now almost universally rejected tradition of discriminating against males in this age bracket, [ Footnote 2/3 ] and because, to the extent it reflects any physical difference between male and Page 429 U. S. 213 females, it is actually perverse. [ Footnote 2/4 ] The question then is whether the traffic safety justification put forward by the State is sufficient to make an otherwise offensive classification acceptable. The classification is not totally irrational. For the evidence does indicate that there are more males than females in this age bracket who drive, and also more who drink. Nevertheless, there are several reasons why I regard the justification as unacceptable. It is difficult to believe that the statute was actually intended to cope with the problem of traffic safety, [ Footnote 2/5 ] since it has only a minimal effect on access to a not very intoxicating beverage, and does not prohibit its consumption. [ Footnote 2/6 ] Moreover, the empirical data submitted by Page 429 U. S. 214 the State accentuate the unfairness of treating all 18-20-year-old males as inferior to their female counterparts. The legislation imposes a restraint on 100% of the males in the class allegedly because about 2% of them have probably violated one or more laws relating to the consumption of alcoholic beverages. [ Footnote 2/7 ] It is unlikely that this law will have a significant deterrent effect either on that 2% or on the law-abiding 98%. But even assuming some such slight benefit, it does not seem to me that an insult to all of the young men of the State can be justified by visiting the sins of the 2% on the 98%. [ Footnote 2/1 ] Men as a general class have not been the victims of the kind of historic, pervasive discrimination that has disadvantaged other groups. [ Footnote 2/2 ] "[S]ince sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate 'the basic concept of our system that legal burdens should bear some relationship to individual responsibility . . . ,' Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 , 406 U. S. 175 ." Frontiero v. Richardson, 411 U. S. 677 , 411 U. S. 686 . [ Footnote 2/3 ] Apparently Oklahoma is the only State to permit this narrow discrimination to survive the elimination of the disparity between the age of majority for males and females. [ Footnote 2/4 ] Because males are generally heavier than females, they have a greater capacity to consume alcohol without impairing their driving ability than do females. [ Footnote 2/5 ] There is no legislative history to indicate that this was the purpose, and several features of the statutory scheme indicate the contrary. The statute exempts license holders who dispense 3.2% beer to their own children, and a related statute makes it unlawful for 18-year-old men (but not women) to work in establishments in which 3.2% beer accounts for over 25% of gross sales. Okla.Stat., Tit. 37, §§ 241, 243, 245 (1953 and Supp. 1976). There is, of course, no way of knowing what actually motivated this discrimination, but I would not be surprised if it represented nothing more than the perpetuation of a stereotyped attitude about the relative maturity of the members of the two sexes in this age bracket. If so, the following comment is relevant: "[A] traditional classification is more likely to be used without pausing to consider its justification than is a newly created classification. Habit, rather than analysis, makes it seem acceptable and natural to distinguish between male and female, alien and citizen, legitimate and illegitimate; for too much of our history, there was the same inertia in distinguishing between black and white. But that sort of stereotyped reaction may have no rational relationship other than pure prejudicial discrimination -- to the stated purpose for which the classification is being made." Mathews v. Lucas, 427 U. S. 495 , 427 U. S. 520 -521 (STEVENS, J., dissenting). [ Footnote 2/6 ] It forbids the sale of 3.2% beer to 18-20-year-old men without forbidding possession, or preventing them from obtaining it from other sources, such as friends who are either older or female. Thus, the statute only slightly impedes access to 3.2% beer. [ Footnote 2/7 ] The only direct evidence submitted by the State concerning use of beer by young drivers indicates that there is no substantial difference between the sexes. In a random roadside survey of drivers, 16.5% of the male drivers under 20 had consumed alcohol within two hours of the interview, as opposed to 11.4% of the women. Over three-fourths of the nonabstainers in both groups expressed a preference for beer. And 14.6% of the men, as opposed to 11.5% of the women, had blood alcohol concentrations over .01%. See ante at 429 U. S. 203 n. 16. MR. JUSTICE BLACKMUN, concurring in part. I join the Court's opinion except 429 U. S. I agree, however, that the Twenty-first Amendment does not save the challenged Oklahoma statute. MR. JUSTICE STEWART, concurring in the judgment. I agree that the appellant Whitener has standing to assert the equal protection claims of males between 18 and 21 years old. Eisenstadt v. Baird, 405 U. S. 438 , 405 U. S. 443 -446; Griswold v. Connecticut, 381 U. S. 479 , 381 U. S. 481 ; Barrows v. Jackson, 346 U. S. 249 , 346 U. S. 255 -260; Buchanan v. Warley, 245 U. S. 60 , 245 U. S. 72 -73; see Note, Standing To Assert Constitutional Jus Tertii, 88 Harv.L.Rev. 423, 431-436 (1974). I also concur in the Court's judgment on the merits of the constitutional issue before us. Page 429 U. S. 215 Every State has load power under the Twenty-first Amendment to control the dispensation of alcoholic beverages within its borders. E.g., California v. LaRue, 409 U. S. 109 ; Joseph E. Seagram & Sons v. Hostetter, 384 U. S. 35 ; Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U. S. 324 , 377 U. S. 330 ; Mahoney v. Joseph Triner Corp., 304 U. S. 401 ; State Board v. Young's Market Co., 299 U. S. 59 . But "[t]his is not to say that the Twenty-first Amendment empowers a State to act with total irrationality or invidious discrimination in controlling the distribution and dispensation of liquor. . . ." California v. LaRue, supra at 409 U. S. 120 n. (concurring opinion). The disparity created by these Oklahoma statutes amounts to total irrationality. For the statistics upon which the State now relies, whatever their other shortcomings, wholly fail to prove or even suggest that 3.2% beer is somehow more deleterious when it comes into the hands of a male aged 18-20 than of a female of like age. The disparate statutory treatment of the sexes here, without even a colorably valid justification or explanation, thus amounts to invidious discrimination. See Reed v. Reed, 404 U. S. 71 . MR. CHIEF JUSTICE BURGER, dissenting. I am in general agreement with MR. JUSTICE REHNQUIST's dissent, but even at the risk of compounding the obvious confusion created by those voting to reverse the District Court, I will add a few words. At the outset, I cannot agree that appellant Whitener has standing arising from her status as a saloonkeeper to assert the constitutional rights of her customers. In this Court, "a litigant may only assert his own constitutional rights or immunities." United States v. Raines, 362 U. S. 17 , 362 U. S. 22 (1960). There are a few, but strictly limited exceptions to that rule; despite the most creative efforts, this case fits within none of them. Page 429 U. S. 216 This is not Sullivan v. Little Hunting Park, 396 U. S. 229 (1969), or Barrows v. Jackson, 346 U. S. 249 (1953), for there is here no barrier whatever to Oklahoma males 18-20 years of age asserting, in an appropriate forum, any constitutional rights they may claim to purchase 3.2% beer. Craig's successful litigation of this very issue was prevented only by the advent of his 21st birthday. There is thus no danger of interminable dilution of those rights if appellant Whitener is not permitted to litigate them here. Cf. Eisenstadt v. Baird, 405 U. S. 438 , 405 U. S. 445 -446 (1972). Nor is this controlled by Griswold v. Connecticut, 381 U. S. 479 (1965). It borders on the ludicrous to draw a parallel between a vendor of beer and the intimate professional physician-patient relationship which undergirded relaxation of standing rules in that case. Even in Eisenstadt, the Court carefully limited its recognition of third-party standing to cases in which the relationship between the claimant and the relevant third party "was not simply the fortuitous connection between a vendor and potential vendees, but the relationship between one who acted to protect the rights of a minority and the minority itself." 405 U.S. at 405 U. S. 445 . This is plainly not the case here. See also McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 429 -430 (1961); Brown v. United States, 411 U. S. 223 , 411 U. S. 230 (1973). In sum, permitting a vendor to assert the constitutional rights of vendees whenever those rights are arguably infringed introduces a new concept of constitutional standing to which I cannot subscribe. On the merits, we have only recently recognized that our duty is not "to create substantive constitutional rights in the name of guaranteeing equal protection of the laws." San Antonio School Dist. v. Rodriguez, 411 U. S. 1 , 411 U. S. 33 (1973). Thus, even interests of such importance in our society as public education and housing do not qualify as "fundamental rights" for equal protection purposes, because they have no Page 429 U. S. 217 textually independent constitutional status. See id. at 411 U. S. 29 -39 (education); Lindsey v. Normet, 405 U. S. 56 (1972) (housing). Though today's decision does not go so far as to make gender-based classifications "suspect," it makes gender a disfavored classification. Without an independent constitutional basis supporting the right asserted or disfavoring the classification adopted, I can justify no substantive constitutional protection other than the normal McGowan v. Maryland, supra at 366 U. S. 425 -426, protection afforded by the Equal Protection Clause. The means employed by the Oklahoma Legislature to achieve the objectives sought may not be agreeable to some judges, but since eight Members of the Court think the means not irrational, I see no basis for striking down the statute as violative of the Constitution simply because we find it unwise, unneeded, or possibly even a bit foolish. With MR. JUSTICE REHNQUIST, I would affirm the judgment of the District Court. MR. JUSTICE REHNQUIST, dissenting. The Court's disposition of this case is objectionable on two grounds. First is its conclusion that men challenging a gender-based statute which treats them less favorably than women may invoke a more stringent standard of judicial review than pertains to most other types of classifications. Second is the Court's enunciation of this standard, without citation to any source, as being that "classifications by gender must serve important governmental objectives, and must be substantially related to achievement of those objectives." Ante at 429 U. S. 197 (emphasis added). The only redeeming feature of the Court's opinion, to my mind, is that it apparently signals a retreat by those who joined the plurality opinion in Frontiero v. Richardson, 411 U. S. 677 (1973), from their view that sex is a "suspect" classification for purposes of equal protection analysis. I think the Oklahoma statute challenged here need pass only the "rational basis" equal Page 429 U. S. 218 protection analysis expounded in cases such as McGowan v. Maryland, 366 U. S. 420 (1961), and Williamson v. Lee Optical Co., 348 U. S. 483 (1955), and I believe that it is constitutional under that analysis. I In Frontiero v. Richardson, supra, the opinion for the plurality sets forth the reasons of four Justices for concluding that sex should be regarded as a suspect classification for purposes of equal protection analysis. These reasons center on our Nation's "long and unfortunate history of sex discrimination," 411 U.S. at 411 U. S. 684 , which has been reflected in a whole range of restrictions on the legal rights of women, not the least of which have concerned the ownership of property and participation in the electoral process. Noting that the pervasive and persistent nature of the discrimination experienced by women is in part the result of their ready identifiability, the plurality rested its invocation of strict scrutiny largely upon the fact that "statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members." Id. at 411 U. S. 686 -687. See Stanton v. Stanton, 421 U. S. 7 , 421 U. S. 14 -15 (1975). Subsequent to Frontiero, the Court has declined to hold that sex is a suspect class, Stanton v. Stanton, supra at 421 U. S. 13 , and no such holding is imported by the Court's resolution of this case. However, the Court's application here of an elevated or "intermediate" level scrutiny, like that invoked in cases dealing with discrimination against females, raises the question of why the statute here should be treated any differently from counties legislative classifications unrelated to sex which have been upheld under a minimum rationality standard. Jefferson v. Hackney, 406 U. S. 535 , 406 U. S. 546 -547 (1972); Richardson v. Belcher, 404 U. S. 78 , 404 U. S. 81 -84 (1971); Dandridge v. Williams, 397 U. S. 471 , 397 U. S. 484 -485 (1970); Page 429 U. S. 219 McGowan v. Maryland, supra at 366 U. S. 425 -426; Flemming v. Nestor, 363 U. S. 603 , 363 U. S. 611 (1960); Wlliamson v. Lee Optical Co., supra at 348 U. S. 488 -489. Most obviously unavailable to support any kind of special scrutiny in this case is a history or pattern of past discrimination, such as was relied on by the plurality in Frontiero to support its invocation of strict scrutiny. There is no suggestion in the Court's opinion that males in this age group are in any way peculiarly disadvantaged, subject to systematic discriminatory treatment, or otherwise in need of special solicitude from the courts. The Court does not discuss the nature of the right involved, and there is no reason to believe that it sees the purchase of 3.2% beer as implicating any important interest, let alone one that is "fundamental" in the constitutional sense of invoking strict scrutiny. Indeed, the Court's accurate observation that the statute affects the selling, but not the drinking, of 3.2% beer, ante at 429 U. S. 204 , further emphasizes the limited effect that it has on even those persons in the age group involved. There is, in sum, nothing about the statutory classification involved here to suggest that it affects an interest, or works against a group, which can claim under the Equal Protection Clause that it is entitled to special judicial protection. It is true that a number of our opinions contain broadly phrased dicta implying that the same test should be applied to all classifications based on sex, whether affecting females or males. E.g., Frontiero v. Richardson, supra at 411 U. S. 688 ; Reed v. Reed, 404 U. S. 71 , 404 U. S. 76 (1971). However, before today, no decision of this Court has applied an elevated level of scrutiny to invalidate a statutory discrimination harmful to males, except where the statute impaired an important personal interest protected by the Constitution. [ Footnote 3/1 ] There being no such interest Page 429 U. S. 220 here, and there being no plausible argument that this is a discrimination against females, [ Footnote 3/2 ] the Court's reliance on our previous sex discrimination cases is ill-founded. It treats gender classification as a talisman which -- without regard to the rights involved or the persons affected -- calls into effect a heavier burden of judicial review. The Court's conclusion that a law which treats males less favorably than females "must serve important governmental objectives and must be substantially related to achievement of those objectives" apparently comes out of thin air. The Equal Protection Clause contains no such language, and none of our previous cases adopt that standard. I would think we have had enough difficulty with the two standards of review which our cases have recognized -- the Page 429 U. S. 221 norm of "rational basis," and the "compelling state interest" required where a "suspect classification" is involved -- so as to counsel weightily against the insertion of still another "standard" between those two. How is this Court to divine what objectives are important? How is it to determine whether a particular law is "substantially" related to the achievement of such objective, rather than related in some other way to its achievement? Both of the phrases used are so diaphanous and elastic as to invite subjective judicial preferences or prejudices relating to particular types of legislation, masquerading as judgments whether such legislation is directed at "important" objectives or, whether the relationship to those objectives is "substantial" enough. I would have thought that, if this Court were to leave anything to decision by the popularly elected branches of the Government, where no constitutional claim other than that of equal protection is invoked, it would be the decision as to what governmental objectives to be achieved by law are "important," and which are not. As for the second part of the Court's new test, the Judicial Branch is probably in no worse position than the Legislative or Executive Branches to determine if there is any rational relationship between a classification and the purpose which it might be thought to serve. But the introduction of the adverb "substantially" requires courts to make subjective judgments as to operational effects, for which neither their expertise nor their access to data fits them. And even if we manage to avoid both confusion and the mirroring of our own preferences in the development of this new doctrine, the thousands of judges in other courts who must interpret the Equal Protection Clause may not be so fortunate. II The applicable rational basis test is one which "permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than Page 429 U. S. 222 others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." McGowan v. Maryland, 366 U.S. at 366 U. S. 425 -426 (citations omitted). Our decisions indicate that application of the Equal Protection Clause in a context not justifying an elevated level of scrutiny does not demand "mathematical nicety" or the elimination of all inequality. Those cases recognize that the practical problems of government may require rough accommodations of interests, and hold that such accommodations should be respected unless no reasonable basis can be found to support them. Dandridge v. Williams, 397 U.S. at 397 U. S. 485 . Whether the same ends might have been better or more precisely served by a different approach is no part of the judicial inquiry under the traditional minimum rationality approach. Richardson v. Belcher, 404 U.S. at 404 U. S. 84 . The Court "accept[s] for purposes of discussion" the District Court's finding that the purpose of the provisions in question was traffic safety, and proceeds to examine the statistical evidence in the record in order to decide if "the gender-based distinction closed serves to achieve that objective." Ante at 429 U. S. 199 , 429 U. S. 200 (emphasis added). (Whether there is a difference between laws which "closely serv[e]" objectives and those which are only "substantially related" to their achievement, ante at 429 U. S. 197 , we are not told.) I believe that a more traditional type of scrutiny is appropriate in this case, and I think that the Court would have done well here to heed its own warning that "[i]t is unrealistic to expect . . . members of the judiciary . . . to be well versed in the rigors of experimental or statistical technique." Ante at 429 U. S. 204 . One Page 429 U. S. 223 need not immerse oneself in the fine points of statistical analysis, however, in order to see the weaknesses in the Court's attempted denigration of the evidence at hand. One survey of arrest statistics assembled in 1973 indicated that males in the 18-20 age group were arrested for "driving under the influence" almost 18 times as often as their female counterparts, and for "drunkenness" in a ratio of almost 10 to 1. [ Footnote 3/3 ] Accepting, as the Court does, appellants' comparison of the total figures with 1973 Oklahoma census data, this survey indicates a 2% arrest rate among males in the age group, as compared to a .18% rate among females. Other surveys indicated (1) that, over the five-year period from 1967 to 1972, nationwide arrests among those under 18 for drunken driving increased 138%, and that 93% of all persons arrested for drunken driving were male; [ Footnote 3/4 ] (2) that youths in the 17-21 age group were overrepresented among those killed or injured in Oklahoma traffic accidents, that male casualties substantially exceeded female, and that deaths in this age group continued to rise, while overall traffic deaths declined; [ Footnote 3/5 ] (3) that over three-fourths of the drivers under 20 in the Oklahoma City area are males, and that each of them, on average, drives half again as many miles per year as their female counterparts; [ Footnote 3/6 ] (4) that four-fifths of male drivers Page 429 U. S. 224 under 20 in the Oklahoma City area state a drink preference for beer, while about three-fifths of female drivers of that age state the same preference; [ Footnote 3/7 ] and (5) that the percentage of male drivers under 20 admitting to drinking within two hours of driving was half again larger than the percentage for females, and that the percentage of male drivers of that age group with a blood alcohol content greater than .01% was almost half again larger than for female drivers. [ Footnote 3/8 ] The Court's criticism of the statistics relied on by the District Court conveys the impression that a legislature, in enacting a new law, is to be subjected to the judicial equivalent of a doctoral examination in statistics. Legislatures are not held to any rules of evidence such as those which may govern courts or other administrative bodies, and are entitled to draw factual conclusions on the basis of the determination of probable cause which an arrest by a police officer normally represents. In this situation, they could reasonably infer that the incidence of drunk driving is a good deal higher than the incidence of arrest. And while, as the Court observes, relying on a report to a Presidential Commission which it cites in a footnote, such statistics may be distorted as a result of stereotyping, the legislature is not required to prove before a court that its statistics are perfect. In any event, if stereotypes are as pervasive as the Court suggests, they may, in turn, influence the conduct of the men and women in question, and cause the young men to conform to the wild and reckless image which is their stereotype. The Court also complains of insufficient integration of the various surveys on several counts -- that the injury and death figures are in no way directly correlated with intoxication, ante at 429 U. S. 201 n. 9; that the national figures for drunk driving contain no breakdown for the 18-21-year-old group, Page 429 U. S. 225 ante at 429 U. S. 201 n. 11; and that the arrest records for intoxication are not tied to the consumption of 3.2% beer, ante at 429 U. S. 201 -202, nn. 11 and 12. But the State of Oklahoma -- and certainly this Court for purposes of equal protection review -- can surely take notice of the fact that drunkenness is a significant cause of traffic casualties, and that youthful offenders have participated in the increase of the drunk-driving problem. On this latter point, the survey data indicating increased driving casualties among 18-21-year-olds, while overall casualties dropped, are not irrelevant. Nor is it unreasonable to conclude from the expressed preference for beer by four-fifths of the age-group males that that beverage was a predominant source of their intoxication-related arrests. Taking that as the predicate, the State could reasonably bar those males from any purchases of alcoholic beer, including that of the 3.2% variety. This Court lacks the expertise or the data to evaluate the intoxicating properties of that beverage, and, in that posture, our only appropriate course is to defer to the reasonable inference supporting the statute -- that taken in sufficient quantity this beer has the same effect as any alcoholic beverage. Quite apart from these alleged methodological deficiencies in the statistical evidence, the Court appears to hold that that evidence, on its face, fails to support the distinction drawn in the statute. The Court notes that only 2% of males (as against .18% of females) in the age group were arrested for drunk driving, and that this very low figure establishes "an unduly tenuous fit'" between maleness and drunk driving in the 18-20-year-old group. On this point, the Court misconceives the nature of the equal protection inquiry. The rationality of a statutory classification for equal protection purposes does not depend upon the statistical "fit" between the class and the trait sought to be singled out. It turns on whether there may be a sufficiently higher incidence Page 429 U. S. 226 of the trait within the included class than in the excluded class to justify different treatment. Therefore the present equal protection challenge to this gender-based discrimination poses only the question whether the incidence of drunk driving among young men is sufficiently greater than among young women to justify differential treatment. Notwithstanding the Court's critique of the statistical evidence, that evidence suggests clear differences between the drinking and driving habits of young men and women. Those differences are grounds enough for the State reasonably to conclude that young males pose by far the greater drunk-driving hazard, both in terms of sheer numbers and in terms of hazard on a per-driver basis. The gender-based difference in treatment in this case is therefore not irrational. The Court's argument that a 2% correlation between maleness and drunk driving is constitutionally insufficient therefore does not pose an equal protection issue concerning discrimination between males and females. The clearest demonstration of this is the fact that the precise argument made by the Court would be equally applicable to a flat bar on such purchases by anyone, male or female, in the 18-20 age group; in fact it would apply a fortiori in that case, given the even more "tenuous fit'" between drunk driving arrests and femaleness. The statistics indicate that about 1% of the age group population as a whole is arrested. What the Court's argument is relevant to is not equal protection, but due process -- whether there are enough persons in the category who drive while drunk to justify a bar against purchases by all members of the group. Cast in those terms, the argument carries little weight, in light of our decisions indicating that such questions call for a balance of the State's interest against the harm resulting from any overinclusiveness or underinclusiveness. Vlandis v. Kline, 412 U. S. 441 , 412 U. S. 448 -452 (1973). The personal interest harmed Page 429 U. S. 227 here is very minor -- the present legislation implicates only the right to purchase 3.2% beer, certainly a far cry from the important personal interests which have on occasion supported this Court's invalidation of statutes on similar reasoning. Cleveland Board of Education v. LaFleur, 414 U. S. 632 , 414 U. S. 640 (1974); Stanley v. Illinois, 405 U. S. 645 , 405 U. S. 651 (1972). And the state interest involved is significant -- the prevention of injury and death on the highways. This is not a case where the classification can only be justified on grounds of administrative convenience. Vlandis v. Kline, supra, at 412 U. S. 451 ; Stanley v. Illinois, supra at 405 U. S. 656 . There being no apparent way to single out persons likely to drink and drive, it seems plain that the legislature was faced here with the not atypical legislative problem of legislating in terms of broad categories with regard to the purchase and consumption of alcohol. I trust, especially in light of the Twenty-first Amendment, that there would be no due process violation if no one in this age group were allowed to purchase 3.2% beer. Since males drink and drive at a higher rate than the age group as a whole, I fail to see how a statutory bar with regard only to them can create any due process problem. The Oklahoma Legislature could have believed that 18-20-year-old males drive substantially more, and tend more often to be intoxicated than their female counterparts; that they prefer beer and admit to drinking and driving at a higher rate than females; and that they suffer traffic injuries out of proportion to the part they make up of the population. Under the appropriate rational basis test for equal protection, it is neither irrational nor arbitrary to bar them from making purchases of 3.2% beer, which purchases might in many cases be made by a young man who immediately returns to his vehicle with the beverage in his possession. The record does not give any good indication of the true proportion of males in the age group who drink and drive (except Page 429 U. S. 228 that it is no doubt greater than the 2% who are arrested), but, whatever it may be, I cannot see that the mere purchase right involved could conceivably raise a due process question. There being no violation of either equal protection or due process, the statute should accordingly be upheld. [ Footnote 3/1 ] In Stanley v. Illinois, 405 U. S. 645 (1972), the Court struck down a statute allowing separation of illegitimate children from a surviving father, but not a surviving mother, without any showing of parental unfitness. The Court stated that "the interest of a parent in the companionship, care, custody, and management of his or her children 'come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.'" In Kahn v. Shevin, 416 U. S. 351 (1974), the Court upheld Florida's $500 property tax exemption for widows only. The opinion of the Court appears to apply a rational basis test, id. at 416 U. S. 355 , and is so understood by the dissenters. Id. at 416 U. S. 357 (BRENNAN, J., joined by MARSHALL, J., dissenting). In Weinberger v. Wiesenfeld, 420 U. S. 636 (1975), the Court invalidated § 202(g) of the Social Security Act, which allowed benefits to mothers, but not fathers, of minor children who survive the wage earner. This statute was treated, in the opinion of the Court, as a discrimination against female wage earners, on the ground that it minimizes the financial security which their work efforts provide for their families. 420 U.S. at 420 U. S. 645 . [ Footnote 3/2 ] I am not unaware of the argument, from time to time advanced, that all discriminations between the sexes ultimately redound to the detriment of female because they tend to reinforce "old notions" restricting the roles and opportunities of women. As a general proposition applying equally to all sex categorizations, I believe that this argument was implicitly found to carry little weight in our decisions upholding gender-based differences. See Schlesinger v. Ballard, 419 U. S. 498 (1975); Kahn v. Shevin, supra. Seeing no assertion that it has special applicability to the situation at hand, I believe it can be dismissed as an insubstantial consideration. [ Footnote 3/3 ] Extract from: Oklahoma Bureau of Investigation, Arrest Statistics for September, October, November, and December, 1973. Defendants' Exhibit 1, Jurisdictional Statement A22. Extract from: Oklahoma City Police Department, Arrest Statistics for 1973. Defendants' Exhibit 2, Jurisdictional Statement A23. See ante at 429 U. S. 200 n. 8. [ Footnote 3/4 ] Extract from: Federal Bureau of Investigation, Crime in the United States, 1972. Defendants' Exhibit 6, App. 182-184. [ Footnote 3/5 ] Extract from: Oklahoma Department. of Public Safety, Summary of Statewide Collisions for 1972, 1973. Defendants' Exhibits 4 and 5, Jurisdictional Statement A30-A31. [ Footnote 3/6 ] Extract from: Oklahoma Management and Engineering Consulting, Inc., Report to Alcohol Safety Action Program (1973). Defendants' Exhibit 3, Table 1, Jurisdictional Statement A25. [ Footnote 3/7 ] Id. at A27 (Table 3), A29 (Table 5). [ Footnote 3/8 ] Id. at A25 (Table (1)). See ante at 429 U. S. 203 n. 16.

Here is a summary of the Supreme Court case Craig v. Boren (1976): Issue: Whether an Oklahoma law prohibiting the sale of 3.2% beer to males under 21 and females under 18 violated the Equal Protection Clause of the Fourteenth Amendment. Holding: Yes, the Court held that the gender-based differential in the Oklahoma law constituted invidious discrimination against males aged 18-20 in violation of the Equal Protection Clause. Reasoning: The Court recognized that gender-based classifications must substantially further important governmental objectives. However, the Court found that the statistical evidence presented by Oklahoma regarding drunk-driving arrests and traffic injuries among young males did not warrant the conclusion that gender was an accurate proxy for regulating drinking and driving. Conclusion: The Court ruled that the Oklahoma law's gender-based differential violated the Equal Protection Clause, and that vendors had standing to challenge the law on equal protection grounds.

Equal Protection

Regents of Univ. of California v. Bakke

https://supreme.justia.com/cases/federal/us/438/265/

U.S. Supreme Court Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978) Regents of the University of California v. Bakke No. 7811 Argued October 12, 1977 Decided June 28, 1978 438 U.S. 265 CERTIORARI TO THE SUPREME COURT OF CALIFORNIA Syllabus The Medical School of the University of California at Davis (hereinafter Davis) had two admissions programs for the entering class of 100 students -- the regular admissions program and the special admissions program. Under the regular procedure, candidates whose overall undergraduate grade point averages fell below 2.5 on a scale of 4.0 were summarily rejected. About one out of six applicants was then given an interview, following which he was rated on a scale of 1 to 100 by each of the committee members (five in 1973 and six in 1974), his rating being based on the interviewers' summaries, his overall grade point average, his science courses grade point average, his Medical College Admissions Test (MCAT) scores, letters of recommendation, extracurricular activities, and other biographical data, all of which resulted in a total "benchmark score." The full admissions committee then made offers of admission on the basis of their review of the applicant's file and his score, considering and acting upon applications as they were received. The committee chairman was responsible for placing names on the waiting list and had discretion to include persons with "special skills." A separate committee, a majority of whom were members of minority groups, operated the special admissions program. The 1973 and 1974 application forms, respectively, asked candidates whether they wished to be considered as "economically and/or educationally disadvantaged" applicants and members of a "minority group" (blacks, Chicanos, Asians, American Indians). If an applicant of a minority group was found to be "disadvantaged," he would be rated in a manner similar to the one employed by the general admissions committee. Special candidates, however, did not have to meet the 2.5 grade point cutoff and were not ranked against candidates in the general admissions process. About one-fifth of the special applicants were invited for interviews in 1973 and 1974, following which they were given benchmark scores, and the top choices were then given to the general admissions committee, which could reject special candidates for failure to meet course requirements or other specific deficiencies. The special committee continued to recommend candidates until 16 special admission selections had been made. During a four-year period, 63 minority Page 438 U. S. 266 students were admitted to Davis under the special program and 44 under the general program. No disadvantaged whites were admitted under the special program, though many applied. Respondent, a white male, applied to Davis in 1973 and 1974, in both years being considered only under the general admissions program. Though he had a 468 out of 500 score in 1973, he was rejected, since no general applicants with scores less than 470 were being accepted after respondent's application, which was filed late in the year, had been processed and completed. At that time, four special admission slots were still unfilled. In 1974 respondent applied early, and though he had a total score of 549 out of 600, he was again rejected. In neither year was his name placed on the discretionary waiting list. In both years, special applicants were admitted with significantly lower scores than respondent's. After his second rejection, respondent filed this action in state court for mandatory, injunctive, and declaratory relief to compel his admission to Davis, alleging that the special admissions program operated to exclude him on the basis of his race in violation of the Equal Protection Clause of the Fourteenth Amendment, a provision of the California Constitution, and § 601 of Title VI of the Civil Rights Act of 1964, which provides, inter alia, that no person shall on the ground of race or color be excluded from participating in any program receiving federal financial assistance. Petitioner cross-claimed for a declaration that its special admissions program was lawful. The trial court found that the special program operated as a racial quota, because minority applicants in that program were rated only against one another, and 16 places in the class of 100 were reserved for them. Declaring that petitioner could not take race into account in making admissions decisions, the program was held to violate the Federal and State Constitutions and Title VI. Respondent's admission was not ordered, however, for lack of proof that he would have been admitted but for the special program. The California Supreme Court, applying a strict scrutiny standard, concluded that the special admissions program was not the least intrusive means of achieving the goals of the admittedly compelling state interests of integrating the medical profession and increasing the number of doctors willing to serve minority patients. Without passing on the state constitutional or federal statutory grounds, the court held that petitioner's special admissions program violated the Equal Protection Clause. Since petitioner could not satisfy its burden of demonstrating that respondent, absent the special program, would not have been admitted, the court ordered his admission to Davis. Held: The judgment below is affirmed insofar as it orders respondent's admission to Davis and invalidates petitioner's special admissions program, Page 438 U. S. 267 but is reversed insofar as it prohibits petitioner from taking race into account as a factor in its future admissions decisions. 18 Cal. 3d 34 , 553 P.2d 1152, affirmed in part and reversed in part. MR. JUSTICE POWELL concluded: 1. Title VI proscribes only those racial classifications that would violate the Equal Protection Clause if employed by a State or its agencies. Pp. 438 U. S. 281 -287. 2. Racial and ethnic classifications of any sort are inherently suspect and call for the most exacting judicial scrutiny. While the goal of achieving a diverse student body is sufficiently compelling to justify consideration of race in admissions decisions under some circumstances, petitioner's special admissions program, which forecloses consideration to persons like respondent, is unnecessary to the achievement of this compelling goal, and therefore invalid under the Equal Protection Clause. Pp. 438 U. S. 287 -320. 3. Since petitioner could not satisfy its burden of proving that respondent would not have been admitted even if there had been no special admissions program, he must be admitted. P. 438 U. S. 320 . MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN concluded: 1. Title VI proscribes only those racial classifications that would violate the Equal Protection Clause if employed by a State or its agencies. Pp. 438 U. S. 328 -355. 2. Racial classifications call for strict judicial scrutiny. Nonetheless, the purpose of overcoming substantial, chronic minority underrepresentation in the medical profession is sufficiently important to justify petitioner's remedial use of race. Thus, the judgment below must be reversed in that it prohibits race from being used as a factor in university admissions. Pp. 438 U. S. 355 -379. MR. JUSTICE STEVENS, joined by THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE REHNQUIST, being of the view that whether race can ever be a factor in an admissions policy is not an issue here; that Title VI applies; and that respondent was excluded from Davis in violation of Title VI, concurs in the Court's judgment insofar as it affirms the judgment of the court below ordering respondent admitted to Davis. Pp. 438 U. S. 408 -421. POWELL, J., announced the Court's judgment and filed an opinion expressing his views of the case, in Parts I, III-A, and V-C of which WHITE, J., joined; and in Parts I and V-C of which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined. BRENNAN, WHITE, MARSHALL, and BLACKMUN, Page 438 U. S. 268 JJ., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 438 U. S. 324 . WHITE, J., post, p. 438 U. S. 379 , MARSHALL, J., post, p. 438 U. S. 387 , and BLACKMUN, J., post, p. 438 U. S. 402 , filed separate opinions. STEVENS, J., filed an opinion concurring in the judgment in part and dissenting in part, in which BURGER, C.J., and STEWART and REHNQUIST, JJ., joined, post, p. 438 U. S. 408 . Page 438 U. S. 269 MR. JUSTICE POWELL announced the judgment of the Court. This case presents a challenge to the special admissions program of the petitioner, the Medical School of the University of California at Davis, which is designed to assure the admission Page 438 U. S. 270 of a specified number of students from certain minority groups. The Superior Court of California sustained respondent's challenge, holding that petitioner's program violated the California Constitution, Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., and the Equal Protection Clause of the Fourteenth Amendment. The court enjoined petitioner from considering respondent's race or the race of any other applicant in making admissions decisions. It refused, however, to order respondent's admission to the Medical School, holding that he had not carried his burden of proving that he would have been admitted but for the constitutional and statutory violations. The Supreme Court of California affirmed those portions of the trial court's judgment declaring the special admissions program unlawful and enjoining petitioner from considering the race of any applicant. * Page 438 U. S. 271 It modified that portion of the judgment denying respondent's requested injunction and directed the trial court to order his admission. For the reasons stated in the following opinion, I believe that so much of the judgment of the California court as holds petitioner's special admissions program unlawful and directs that respondent be admitted to the Medical School must be affirmed. For the reasons expressed in a separate opinion, my Brothers THE CHIEF JUSTICE, MR. JUSTICE STEWART, MR. JUSTICE REHNQUIST, and MR. JUSTICE STEVENS concur in this judgment. Page 438 U. S. 272 I also conclude, for the reasons stated in the following opinion, that the portion of the court's judgment enjoining petitioner from according any consideration to race in its admissions process must be reversed. For reasons expressed in separate opinions, my Brothers MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN concur in this judgment. Affirmed in part and reversed in part. I ** The Medical School of the University of California at Davis opened in 1968 with an entering class of 50 students. In 1971, the size of the entering class was increased to 100 students, a level at which it remains. No admissions program for disadvantaged or minority students existed when the school opened, and the first class contained three Asians but no blacks, no Mexican-Americans, and no American Indians. Over the next two years, the faculty devised a special admissions program to increase the representation of "disadvantaged" students in each Medical School class. [ Footnote 1 ] The special program consisted of Page 438 U. S. 273 a separate admissions system operating in coordination with the regular admissions process. Under the regular admissions procedure, a candidate could submit his application to the Medical School beginning in July of the year preceding the academic year for which admission was sought. Record 149. Because of the large number of applications, [ Footnote 2 ] the admissions committee screened each one to select candidates for further consideration. Candidates whose overall undergraduate grade point averages fell below 2.5 on a scale of 4.0 were summarily rejected. Id. at 63. About Page 438 U. S. 274 one out of six applicants was invited for a personal interview. Ibid. Following the interviews, each candidate was rated on a scale of 1 to 100 by his interviewers and four other members of the admissions committee. The rating embraced the interviewers' summaries, the candidate's overall grade point average, grade point average in science courses, scores on the Medical College Admissions Test (MCAT), letters of recommendation, extracurricular activities, and other biographical data. Id. at 62. The ratings were added together to arrive at each candidate's "benchmark" score. Since five committee members rated each candidate in 1973, a perfect score was 500; in 1974, six members rated each candidate, so that a perfect score was 600. The full committee then reviewed the file and scores of each applicant and made offers of admission on a "rolling" basis. [ Footnote 3 ] The chairman was responsible for placing names on the waiting list. They were not placed in strict numerical order; instead, the chairman had discretion to include persons with "special skills." Id. at 63-64. The special admissions program operated with a separate committee, a majority of whom were members of minority groups. Id. at 163. On the 1973 application form, candidates were asked to indicate whether they wished to be considered as "economically and/or educationally disadvantaged" applicants; on the 1974 form the question was whether they wished to be considered as members of a "minority group," which the Medical School apparently viewed as "Blacks," "Chicanos," "Asians," and "American Indians." Id. at 65-66, 146, 197, 203-205, 216-218. If these questions were answered affirmatively, the application was forwarded to the special admissions committee. No formal definition of "disadvantaged" Page 438 U. S. 275 was ever produced, id. at 163-164, but the chairman of the special committee screened each application to see whether it reflected economic or educational deprivation. [ Footnote 4 ] Having passed this initial hurdle, the applications then were rated by the special committee in a fashion similar to that used by the general admissions committee, except that special candidates did not have to meet the 2.5 grade point average cutoff applied to regular applicants. About one-fifth of the total number of special applicants were invited for interviews in 1973 and 1974. [ Footnote 5 ] Following each interview, the special committee assigned each special applicant a benchmark score. The special committee then presented its top choices to the general admissions committee. The latter did not rate or compare the special candidates against the general applicants, id. at 388, but could reject recommended special candidates for failure to meet course requirements or other specific deficiencies. Id. at 171-172. The special committee continued to recommend special applicants until a number prescribed by faculty vote were admitted. While the overall class size was still 50, the prescribed number was 8; in 1973 and 1974, when the class size had doubled to 100, the prescribed number of special admissions also doubled, to 16. Id. at 164, 166. From the year of the increase in class size -- 1971 -- through 1974, the special program resulted in the admission of 21 black students, 30 Mexican-Americans, and 12 Asians, for a total of 63 minority students. Over the same period, the regular admissions program produced 1 black, 6 Mexican-Americans, Page 438 U. S. 276 and 37 Asians, for a total of 44 minority students. [ Footnote 6 ] Although disadvantaged whites applied to the special program in large numbers, see n 5, supra, none received an offer of admission through that process. Indeed, in 1974, at least, the special committee explicitly considered only "disadvantaged" special applicants who were members of one of the designated minority groups. Record 171. Allan Bakke is a white male who applied to the Davis Medical School in both 1973 and 1974. In both years, Bakke's application was considered under the general admissions program, and he received an interview. His 1973 interview was with Dr. Theodore C. West, who considered Bakke "a very desirable applicant to [the] medical school." Id. at 225. Despite a strong benchmark score of 468 out of 500, Bakke was rejected. His application had come late in the year, and no applicants in the general admissions process with scores below 470 were accepted after Bakke's application was completed. Id. at 69. There were four special admissions slots unfilled at that time, however, for which Bakke was not considered. Id. at 70. After his 1973 rejection, Bakke wrote to Dr. George H. Lowrey, Associate Dean and Chairman of the Admissions Committee, protesting that the special admissions program operated as a racial and ethnic quota. Id. at 259. Page 438 U. S. 277 Bakke's 1974 application was completed early in the year. Id. at 70. His student interviewer gave him an overall rating of 94, finding him "friendly, well tempered, conscientious and delightful to speak with." Id. at 229. His faculty interviewer was, by coincidence, the same Dr. Lowrey to whom he had written in protest of the special admissions program. Dr. Lowrey found Bakke "rather limited in his approach" to the problems of the medical profession, and found disturbing Bakke's "very definite opinions which were based more on his personal viewpoints than upon a study of the total problem." Id. at 226. Dr. Lowrey gave Bakke the lowest of his six ratings, an 86; his total was 549 out of 600. Id. at 230. Again, Bakke's application was rejected. In neither year did the chairman of the admissions committee, Dr. Lowrey, exercise his discretion to place Bakke on the waiting list. Id. at 64. In both years, applicants were admitted under the special program with grade point averages, MCT scores, and benchmark scores significantly lower than Bakke's. [ Footnote 7 ] After the second rejection, Bakke filed the instant suit in the Superior Court of California. [ Footnote 8 ] He sought mandatory, injunctive, and declaratory relief compelling his admission to the Medical School. He alleged that the Medical School's special admissions program operated to exclude him from the Page 438 U. S. 278 school on the basis of his race, in violation of his rights under the Equal Protection Clause of the Fourteenth Amendment, [ Footnote 9 ] Art. I, § 21, of the California Constitution, [ Footnote 10 ] and § 601 of Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d. [ Footnote 11 ] The University cross-complained for a declaration that its special admissions program was lawful. The trial Page 438 U. S. 279 court found that the special program operated as a racial quota because minority applicants in the special program were rated only against one another, Record 388, and 16 places in the class of 100 were reserved for them. Id. at 295-296. Declaring that the University could not take race into account in making admissions decisions, the trial court held the challenged program violative of the Federal Constitution, the State Constitution, and Title VI. The court refused to order Bakke's admission, however, holding that he had failed to carry his burden of proving that he would have been admitted but for the existence of the special program. Bakke appealed from the portion of the trial court judgment denying him admission, and the University appealed from the decision that its special admissions program was unlawful and the order enjoining it from considering race in the processing of applications. The Supreme Court of California transferred the case directly from the trial court, "because of the importance of the issues involved." 18 Cal. 3d 34 , 39, 553 P.2d 1152, 1156 (1976). The California court accepted the findings of the trial court with respect to the University's program. [ Footnote 12 ] Because the special admissions program involved a racial classification, the Supreme Court held itself bound to apply strict scrutiny. Id. at 49, 553 P.2d at 1162-1163. It then turned to the goals of the University presented as justifying the special program. Although the court agreed that the goals of integrating the medical profession and increasing the number of physicians willing to serve members of minority groups were compelling state interests, id. at 53, 553 P.2d at 1165, it concluded that the special admissions program was not the least intrusive means of achieving those goals. Without passing on the state constitutional or federal statutory grounds cited in the trial court's judgment, the California court held Page 438 U. S. 280 that the Equal Protection Clause of the Fourteenth Amendment required that "no applicant may be rejected because of his race, in favor of another who is less qualified, as measured by standards applied without regard to race." Id. at 55, 553 P.2d at 1166. Turning to Bakke's appeal, the court ruled that, since Bakke had established that the University had discriminated against him on the basis of his race, the burden of proof shifted to the University to demonstrate that he would not have been admitted even in the absence of the special admissions program. [ Footnote 13 ] Id. at 63-64, 553 P.2d at 1172. The court analogized Bakke's situation to that of a plaintiff under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-17 (1970 ed., Supp. V), see, e.g., Franks v. Bowman Transportation Co., 424 U. S. 747 , 424 U. S. 772 (176). 18 Cal. 3d at 64, 553 P.2d at 1172. On this basis, the court initially ordered a remand for the purpose of determining whether, under the newly allocated burden of proof, Bakke would have been admitted to either the 1973 or the 1974 entering class in the absence of the special admissions program. App. A to Application for Stay 4. In its petition for rehearing below, however, the University conceded its inability to carry that burden. App. B to Application for Stay A19-A20. [ Footnote 14 ] The Page 438 U. S. 281 California court thereupon amended its opinion to direct that the trial court enter judgment ordering Bakke's admission to the Medical School. 18 Cal. 3d at 64, 553. P.2d at 1172. That order was stayed pending review in this Court. 429 U.S. 953 (1976). We granted certiorari to consider the important constitutional issue. 429 U.S. 1090 (1977). II In this Court, the parties neither briefed nor argued the applicability of Title VI of the Civil Rights Act of 1964. Rather, as had the California court, they focused exclusively upon the validity of the special admissions program under the Equal Protection Clause. Because it was possible, however, that a decision on Title VI might obviate resort to constitutional interpretation, see Ashwander v. TVA, 297 U. S. 288 , 297 U. S. 346 -348 (1936) (concurring opinion), we requested supplementary briefing on the statutory issue. 434 U.S. 900 (1977). A At the outset, we face the question whether a right of action for private parties exists under Title VI. Respondent argues that there is a private right of action, invoking the test set forth in Cort v. Ash, 422 U. S. 66 , 422 U. S. 78 (1975). He contends Page 438 U. S. 282 that the statute creates a federal right in his favor, that legislative history reveals an intent to permit private actions, [ Footnote 15 ] that such actions would further the remedial purposes of the statute, and that enforcement of federal rights under the Civil Rights Act generally is not relegated to the States. In addition, he cites several lower court decisions which have recognized or assumed the existence of a private right of action. [ Footnote 16 ] Petitioner denies the existence of a private right of action, arguing that the sole function of § 601, see n 11, supra, was to establish a predicate for administrative action under § 602, 78 Stat. 252, 42 U.S.C. § 2000d-1. [ Footnote 17 ] In its view, administrative curtailment of federal funds under that section was the only sanction to be imposed upon recipients that Page 438 U. S. 283 violated § 601. Petitioner also points out that Title VI contains no explicit grant of a private right of action, in contrast to Titles II, III, IV, and VII, of the same statute, 42 U.S.C. §§ 2000a-3(a), 2000b-2, 2000c-8, and 2000e-5 =(f) (1970 ed. and Supp. V). [ Footnote 18 ] We find it unnecessary to resolve this question in the instant case. The question of respondent's right to bring an action under Title VI was neither argued nor decided in either of the courts below, and this Court has been hesitant to review questions not addressed below. McGoldrick v. Companie Generale Transatlantique, 309 U. S. 430 , 309 U. S. 434 -435 (1940). See also Massachusetts v. Westcott, 431 U. S. 322 (1977); Cardinale v. Louisiana, 394 U. S. 437 , 394 U. S. 439 (1969). Cf. Singleton v. Wulff, 428 U. S. 106 , 428 U. S. 121 (1976). We therefore do not address this difficult issue. Similarly, we need not pass Page 438 U. S. 284 upon petitioner's claim that private plaintiffs under Title VI must exhaust administrative remedies. We assume, only for the purposes of this case, that respondent has a right of action under Title VI. See Lau v. Nichols, 414 U. S. 563 , 414 U. S. 571 n. 2 (1974) (STEWART, J., concurring in result). B The language of § 601, 78 Stat. 252, like that of the Equal Protection Clause, is majestic in its sweep: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." The concept of "discrimination," like the phrase "equal protection of the laws," is susceptible of varying interpretations, for, as Mr. Justice Holmes declared, "[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought, and may vary greatly in color and content according to the circumstances and the time in which it is used." Towne v. Eisner, 245 U. S. 418 , 245 U. S. 425 (1918). We must, therefore, seek whatever aid is available in determining the precise meaning of the statute before us. Train v. Colorado Public Interest Research Group, 426 U. S. 1 , 426 U. S. 10 (1976), quoting United States v. American Trucking Assns., 310 U. S. 534 , 310 U. S. 543 -544 (1940). Examination of the voluminous legislative history of Title VI reveals a congressional intent to halt federal funding of entities that violate a prohibition of racial discrimination similar to that of the Constitution. Although isolated statements of various legislators, taken out of context, can be marshaled in support of the proposition that § 601 enacted a purely color-blind scheme, [ Footnote 19 ] without regard to the reach of the Equal Protection Page 438 U. S. 285 Clause, these comments must be read against the background of both the problem that Congress was addressing and the broader view of the statute that emerges from a full examination of the legislative debates. The problem confronting Congress was discrimination against Negro citizens at the hands of recipients of federal moneys. Indeed, the color blindness pronouncements cited in the margin at n 19 generally occur in the midst of extended remarks dealing with the evils of segregation in federally funded programs. Over and over again, proponents of the bill detailed the plight of Negroes seeking equal treatment in such programs. [ Footnote 20 ] There simply was no reason for Congress to consider the validity of hypothetical preferences that might be accorded minority citizens; the legislators were dealing with the real and pressing problem of how to guarantee those citizens equal treatment. In addressing that problem, supporters of Title VI repeatedly declared that the bill enacted constitutional principles. For example, Representative Celler, the Chairman of the House Judiciary Committee and floor manager of the legislation in the House, emphasized this in introducing the bill: "The bill would offer assurance that hospitals financed by Federal money would not deny adequate care to Negroes. It would prevent abuse of food distribution programs whereby Negroes have been known to be denied food Page 438 U. S. 286 surplus supplies when white persons were given such food. It would assure Negroes the benefits now accorded only white students in programs of high[er] education financed by Federal funds. It would, in short, assure the existing right to equal treatment in the enjoyment of Federal funds. It would not destroy any rights of private property or freedom of association." 110 Cong.Rec. 1519 (1964) (emphasis added). Other sponsors shared Representative Celler's view that Title VI embodied constitutional principles. [ Footnote 21 ] In the Senate, Senator Humphrey declared that the purpose of Title VI was "to insure that Federal funds are spent in accordance with the Constitution and the moral sense of the Nation." Id. at 6544. Senator Ribicoff agreed that Title VI embraced the constitutional standard: "Basically, there is a constitutional restriction against discrimination in the use of federal funds; and title VI simply spells out the procedure to be used in enforcing that restriction." Id. at 13333. Other Senators expressed similar views. [ Footnote 22 ] Further evidence of the incorporation of a constitutional standard into Title VI appears in the repeated refusals of the legislation's supporters precisely to define the term "discrimination." Opponents sharply criticized this failure, [ Footnote 23 ] but proponents of the bill merely replied that the meaning of Page 438 U. S. 287 "discrimination" would be made clear by reference to the Constitution or other existing law. For example, Senator Humphrey noted the relevance of the Constitution: "As I have said, the bill has a simple purpose. That purpose is to give fellow citizens -- Negroes -- the same rights and opportunities that white people take for granted. This is no more than what was preached by the prophets, and by Christ Himself. It is no more than what our Constitution guarantees." Id. at 6553. [ Footnote 24 ] In view of the clear legislative intent, Title VI must be held to proscribe only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment. III A Petitioner does not deny that decisions based on race or ethnic origin by faculties and administrations of state universities are reviewable under the Fourteenth Amendment. See, e.g., Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938); Sipuel v. Board of Regents, 332 U. S. 631 (1948); Sweatt v. Painter, 339 U. S. 629 (1950); McLaurin v. Oklahoma State Regents, 339 U. S. 637 (1950). For his part, respondent does not argue that all racial or ethnic classifications are per se invalid. See, e.g., Hirabayashi v. United States, 320 U. S. 81 (1943); Korematsu v. United States, 323 U. S. 214 (1944); Lee v. Washington, 390 U. S. 333 , 390 U. S. 334 (1968) (Black, Harlan, and STEWART, JJ., concurring); United Jewish Organizations v. Carey, 430 U. S. 144 (1977). The parties do disagree as to the level of judicial scrutiny to be applied to the special admissions program. Petitioner argues that the court below erred in applying strict scrutiny, as this inexact term has been Page 438 U. S. 288 applied in our cases. That level of review, petitioner asserts, should be reserved for classifications that disadvantage "discrete and insular minorities." See United States v. Carolene Products Co., 304 U. S. 144 , 304 U. S. 152 n. 4 (1938). Respondent, on the other hand, contends that the California court correctly rejected the notion that the degree of Judicial scrutiny accorded a particular racial or ethnic classification hinges upon membership in a discrete and insular minority and duly recognized that the "lights established [by the Fourteenth Amendment] are personal rights." Shelley v. Kraemer, 334 U. S. 1 , 334 U. S. 22 (1948). En route to this crucial battle over the scope of judicial review, [ Footnote 25 ] the parties fight a sharp preliminary action over the proper characterization of the special admissions program. Petitioner prefers to view it as establishing a "goal" of minority representation in the Medical School. Respondent, echoing the courts below, labels it a racial quota. [ Footnote 26 ] Page 438 U. S. 289 This semantic distinction is beside the point: the special admissions program is undeniably a classification based on race and ethnic background. To the extent that there existed a pool of at least minimally qualified minority applicants to fill the 16 special admissions seats, white applicants could compete only for 84 seats in the entering class, rather than the 100 open to minority applicants. Whether this limitation is described as a quota or a goal, it is a line drawn on the basis of race and ethnic status. [ Footnote 27 ] The guarantees of the Fourteenth Amendment extend to all persons. Its language is explicit: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." It is settled beyond question that the "rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights," Shelley v. Kraemer, supra at 334 U. S. 22 . Accord, Missouri ex rel. Gaines v. Canada, supra at 305 U. S. 351 ; McCabe v. Atchison, T. & S.F. R. Co., 235 U. S. 151 , 235 U. S. 161 -162 (1914). The guarantee of equal protection cannot mean one thing when applied to one individual and something else when Page 438 U. S. 290 applied to a person of another color. If both are not accorded the same protection, then it is not equal. Nevertheless, petitioner argues that the court below erred in applying strict scrutiny to the special admissions program because white males, such as respondent, are not a "discrete and insular minority" requiring extraordinary protection from the majoritarian political process. Carolene Products Co., supra at 304 U. S. 152 -153, n. 4. This rationale, however, has never been invoked in our decisions as a prerequisite to subjecting racial or ethnic distinctions to strict scrutiny. Nor has this Court held that discreteness and insularity constitute necessary preconditions to a holding that a particular classification is invidious. [ Footnote 28 ] See, e.g., Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 , 316 U. S. 541 (1942); Carrington v. Rash, 380 U. S. 89 , 380 U. S. 96 -97 (1965). These characteristics may be relevant in deciding whether or not to add new types of classifications to the list of "suspect" categories or whether a particular classification survives close examination. See, e.g., Massachusetts Board of Retirement v. Murgia, 427 U. S. 307 , 427 U. S. 313 (1976) (age); San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1 , 411 U. S. 28 (1973) (wealth); Graham v. Richardson, 403 U. S. 365 , 403 U. S. 372 (1971) (aliens). Racial and ethnic classifications, however, are subject to stringent examination without regard to these additional characteristics. We declared as much in the first cases explicitly to recognize racial distinctions as suspect: "Distinctions between citizens solely because of their ancestry are, by their very nature, odious to a free people Page 438 U. S. 291 whose institutions are founded upon the doctrine of equality." Hirabayashi, 320 U.S. at 320 U. S. 100 . "[A]ll legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny." Korematsu, 323 U.S. at 323 U. S. 216 . The Court has never questioned the validity of those pronouncements. Racial and ethnic distinctions of any sort are inherently suspect, and thus call for the most exacting judicial examination. B This perception of racial and ethnic distinctions is rooted in our Nation's constitutional and demographic history. The Court's initial view of the Fourteenth Amendment was that its "one pervading purpose" was "the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised dominion over him." Slaughter-House Cases , 16 Wall. 36, 83 U. S. 71 (1873). The Equal Protection Clause, however, was "[v]irtually strangled in infancy by post-civil-war judicial reactionism." [ Footnote 29 ] It was relegated to decades of relative desuetude while the Due Process Clause of the Fourteenth Amendment, after a short germinal period, flourished as a cornerstone in the Court's defense of property and liberty of contract. See, e.g., Mugler v. Kansas, 123 U. S. 623 , 123 U. S. 661 (1887); Allgeyer v. Louisiana, 165 U. S. 578 (1897); Lochner v. New York, 198 U. S. 45 (1905). In that cause, the Fourteenth Amendment's "one pervading purpose" was displaced. See, e.g., Plessy v. Ferguson, 163 U. S. 537 (1896). It was only as the era of substantive due process came to a close, see, e.g., 291 U. S. New Page 438 U. S. 292 York, 291 U. S. 502 (1934); West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937), that the Equal Protection Clause began to attain a genuine measure of vitality, see, e.g., United States v. Carolene Products, 304 U. S. 144 (1938); Skinner v. Oklahoma ex rel. Williamson, supra. By that time ,it was no longer possible to peg the guarantees of the Fourteenth Amendment to the struggle for equality of one racial minority. During the dormancy of the Equal Protection Clause, the United States had become a Nation of minorities. [ Footnote 30 ] Each had to struggle [ Footnote 31 ] -- and, to some extent, struggles still [ Footnote 32 ] -- to overcome the prejudices not of a monolithic majority, but of a "majority" composed of various minority groups of whom it was said -- perhaps unfairly, in many cases -- that a shared characteristic was a willingness to disadvantage other groups. [ Footnote 33 ] As the Nation filled with the stock of many lands, the reach of the Clause was gradually extended to all ethnic groups seeking protection from official discrimination. See Strauder v. West Virginia, 100 U. S. 303 , 100 U. S. 308 (1880) (Celtic Irishmen) (dictum); Yick Wo v. Hopkins, 118 U. S. 356 (1886) (Chinese); Truax v. Raich, 239 U. S. 33 , 239 U. S. 41 (1915) (Austrian resident aliens); Korematsu, supra, (Japanese); Hernandez v. Texas, 347 U. S. 475 (1954) (Mexican-Americans). The guarantees of equal protection, said the Court in Page 438 U. S. 293 Yick Wo, "are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws is a pledge of the protection of equal laws." 118 U.S. at 118 U. S. 369 . Although many of the Framers of the Fourteenth Amendment conceived of its primary function as bridging the vast distance between members of the Negro race and the white "majority," Slaughter-House Cases, supra, the Amendment itself was framed in universal terms, without reference to color, ethnic origin, or condition of prior servitude. As this Court recently remarked in interpreting the 1866 Civil Rights Act to extend to claims of racial discrimination against white persons, "the 39th Congress was intent upon establishing in the federal law a broader principle than would have been necessary simply to meet the particular and immediate plight of the newly freed Negro slaves." McDonald v. Santa Fe Trail Transportation Co., 427 U. S. 273 , 427 U. S. 296 (1976). And that legislation was specifically broadened in 1870 to ensure that "all persons," not merely "citizens," would enjoy equal rights under the law. See Runyon v. McCrary, 427 U. S. 160 , 427 U. S. 192 -202 (1976) (WHITE, J., dissenting). Indeed, it is not unlikely that, among the Framers, were many who would have applauded a reading of the Equal Protection Clause that states a principle of universal application and is responsive to the racial, ethnic, and cultural diversity of the Nation. See, e.g., Cong.Globe, 39th Cong., 1st Sess., 1056 (1866) (remarks of Rep. Niblack); id. at 2891-2892 (remarks of Sen. Conness); id. 40th Cong., 2d Sess., 883 (1868) (remarks of Sen. Howe) (Fourteenth Amendment "protect[s] classes from class legislation"). See also Bickel, The Original Understanding and the Segregation Decision, 69 Harv.L.Rev. 1, 60-63 (1955). Over the past 30 years, this Court has embarked upon the crucial mission of interpreting the Equal Protection Clause with the view of assuring to all persons "the protection of Page 438 U. S. 294 equal laws," Yick Wo, supra at 118 U. S. 369 , in a Nation confronting a legacy of slavery and racial discrimination. See, e.g., Shelley v. Kraemer, 334 U. S. 1 (1948); Brown v. Bard of Education, 347 U. S. 483 (1954); Hills v. Gautreaux, 425 U. S. 284 (1976). Because the landmark decisions in this area arose in response to the continued exclusion of Negroes from the mainstream of American society, they could be characterized as involving discrimination by the "majority" white race against the Negro minority. But they need not be read as depending upon that characterization for their results. It suffices to say that, "[o]ver the years, this Court has consistently repudiated '[d]istinctions between citizens solely because of their ancestry' as being 'odious to a free people whose institutions are founded upon the doctrine of equality.'" Loving v. Virginia, 388 U. S. 1 , 388 U. S. 11 (1967), quoting Hirabayashi, 320 U.S. at 320 U. S. 100 . Petitioner urges us to adopt for the first time a more restrictive view of the Equal Protection Clause, and hold that discrimination against members of the white "majority" cannot be suspect if its purpose can be characterized as "benign." [ Footnote 34 ] Page 438 U. S. 295 The clock of our liberties, however, cannot be turned back to 1868. Brown v. Board of Education, supra at 347 U. S. 492 ; accord, Loving v. Virginia supra at 388 U. S. 9 . It is far too late to argue that the guarantee of equal protection to all persons permits the recognition of special wards entitled to a degree of protection greater than that accorded others. [ Footnote 35 ] "The Fourteenth Amendment is not directed solely against discrimination due to a 'two-class theory' -- that is, bad upon differences between 'white' and Negro." Hernandez, 347 U.S. at 347 U. S. 478 . Once the artificial line of a "two-class theory" of the Fourteenth Amendment is put aside, the difficulties entailed in varying the level of judicial review according to a perceived "preferred" status of a particular racial or ethnic minority are intractable. The concepts of "majority" and "minority" necessarily reflect temporary arrangements and political judgments. As observed above, the white "majority" itself is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals. Not all of these groups can receive preferential treatment and corresponding judicial tolerance Page 438 U. S. 296 of distinctions drawn in terms of race and nationality, for then the only "majority" left would be a new minority of white Anglo-Saxon Protestants. There is no principled basis for deciding which groups would merit "heightened judicial solicitude" and which would not. [ Footnote 36 ] Courts would be asked to evaluate the extent of the prejudice and consequent Page 438 U. S. 297 harm suffered by various minority groups. Those whose societal injury is thought to exceed some arbitrary level of tolerability then would be entitled to preferential classifications at the expense of individuals belonging to other groups. Those classifications would be free from exacting judicial scrutiny. As these preferences began to have their desired effect, and the consequences of past discrimination were undone, new judicial rankings would be necessary. The kind of variable sociological and political analysis necessary to produce such rankings simply does not lie within the judicial competence -- even if they otherwise were politically feasible and socially desirable. [ Footnote 37 ] Page 438 U. S. 298 Moreover, there are serious problems of justice connected with the idea of preference itself. First, it may not always be clear that a so-called preference is, in fact, benign. Courts may be asked to validate burdens imposed upon individual members of a particular group in order to advance the group's general interest. See United Jewish Organizations v. Carey, 430 U.S. at 430 U. S. 172 -173 (BRENNAN, J., concurring in part). Nothing in the Constitution supports the notion that individuals may be asked to suffer otherwise impermissible burdens in order to enhance the societal standing of their ethnic groups. Second, preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth. See DeFunis v. Odegaard, 416 U. S. 312 , 416 U. S. 343 (1974) (Douglas, J., dissenting). Third, there is a measure of inequity in forcing innocent persons in respondent's position to bear the burdens of redressing grievances not of their making. By hitching the meaning of the Equal Protection Clause to these transitory considerations, we would be holding, as a constitutional principle, that judicial scrutiny of classifications touching on racial and ethnic background may vary with the ebb and flow of political forces. Disparate constitutional tolerance of such classifications well may serve to exacerbate Page 438 U. S. 299 racial and ethnic antagonisms, rather than alleviate them. United Jewish Organizations, supra at 430 U. S. 173 -174 (BRENNAN, J., concurring in part). Also, the mutability of a constitutional principle, based upon shifting political and social judgments, undermines the chances for consistent application of the Constitution from one generation to the next, a critical feature of its coherent interpretation. Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429 , 157 U. S. 650 -651 (1895) (White, J., dissenting). In expounding the Constitution, the Court's role is to discern "principles sufficiently absolute to give them roots throughout the community and continuity over significant periods of time, and to lift them above the level of the pragmatic political judgments of a particular time and place." A. Cox, The Role of the Supreme Court in American Government 114 (1976). If it is the individual who is entitled to judicial protection against classifications based upon his racial or ethnic background because such distinctions impinge upon personal rights, rather than the individual only because of his membership in a particular group, then constitutional standards may be applied consistently. Political judgments regarding the necessity for the particular classification may be weighed in the constitutional balance, Korematsu v. United States, 323 U. S. 214 (1944), but the standard of justification will remain constant. This is as it should be, since those political judgments are the product of rough compromise struck by contending groups within the democratic process. [ Footnote 38 ] When they touch upon an individual's race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest. The Constitution guarantees that right to every person regardless of his background. Shelley v. Kraemer, 334 U.S. at 334 U. S. 22 ; Missouri ex rel. Gaines v. Canada, 305 U.S. at 305 U. S. 351 . Page 438 U. S. 300 C Petitioner contends that, on several occasions, this Court has approved preferential classifications without applying the most exacting scrutiny. Most of the cases upon which petitioner relies are drawn from three areas: school desegregation, employment discrimination, and sex discrimination. Each of the cases cited presented a situation materially different from the facts of this case. The school desegregation cases are inapposite. Each involved remedies for clearly determined constitutional violations. E.g., Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971); McDaniel v. Barresi, 402 U. S. 39 (1971); Green v. County School Board, 391 U. S. 430 (1968). Racial classifications thus were designed as remedies for the vindication of constitutional entitlement. [ Footnote 39 ] Moreover, the scope of the remedies was not permitted to exceed the extent of the Page 438 U. S. 301 violations. E.g., Dayton Board of Education v. Brinkman, 433 U. S. 406 (1977); Milliken v. Bradley, 418 U. S. 717 (1974); see Pasadena City Board of Education v. Spangler, 427 U. S. 424 (1976). See also Austin Independent School Dist. v. United States, 429 U.S. 990, 991-995 (1976) (POWELL, J., concurring). Here, there was no judicial determination of constitutional violation as a predicate for the formulation of a remedial classification. The employment discrimination cases also do not advance petitioner's cause. For example, in Franks v. Bowman Transportation Co., 424 U. S. 747 (1976), we approved a retroactive award of seniority to a class of Negro truckdrivers who had been the victims of discrimination -- not just by society at large, but by the respondent in that case. While this relief imposed some burdens on other employees, it was held necessary " to make [the victims] whole for injuries suffered on account of unlawful employment discrimination.'" Id. at 424 U. S. 763 , quoting Albemarle Paper Co. v. Moody, 422 U. S. 405 , 422 U. S. 418 (1975). The Courts of Appeals have fashioned various types of racial preferences as remedies for constitutional or statutory violations resulting in identified, race-based injuries to individuals held entitled to the preference. E.g., Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, 482 F.2d 1333 (CA2 1973); Carter v. Gallagher, 452 F.2d 315 (CA8 1972), modified on rehearing en banc, id. at 327. Such preferences also have been upheld where a legislative or administrative body charged with the responsibility made determinations of past discrimination by the industries affected, and fashioned remedies deemed appropriate to rectify the discrimination. E.g., Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 442 F.2d 159 (CA3), cert. denied, 404 U.S. 854 (1971); [ Footnote 40 ] Associated General Page 438 U. S. 302 Contractors of Massachusetts, Inc. v. Altshuler, 490 F.2d 9 (CA1 1973), cert. denied, 416 U.S. 957 (1974); cf. Katzenbach v. Morgan, 384 U. S. 641 (1966). But we have never approved preferential classifications in the absence of proved constitutional or statutory violations. [ Footnote 41 ] Nor is petitioner's view as to the applicable standard supported by the fact that gender-based classifications are not subjected to this level of scrutiny. E g., Califano v. Webster, 430 U. S. 313 , 430 U. S. 316 -317 (1977); Craig v. Boren, 429 U. S. 190 , 429 U. S. 211 n. (1976) (POWELL, J., concurring). Gender-based distinctions are less likely to create the analytical and practical Page 438 U. S. 303 problems present in preferential programs premised on racial or ethnic criteria. With respect to gender, there are only two possible classifications. The incidence of the burdens imposed by preferential classifications is clear. There are no rival groups which can claim that they, too, are entitled to preferential treatment. Classwide questions as to the group suffering previous injury and groups which fairly can be burdened are relatively manageable for reviewing courts. See, e.g., Califano v. Goldfarb, 430 U. S. 199 , 430 U. S. 212 -217 (1977); Weinberger v. Wiesenfeld, 420 U. S. 636 , 420 U. S. 645 (1975). The resolution of these same questions in the context of racial and ethnic preferences presents far more complex and intractable problems than gender-based classifications. More importantly, the perception of racial classifications as inherently odious stems from a lengthy and tragic history that gender-based classifications do not share. In sum, the Court has never viewed such classification as inherently suspect or as comparable to racial or ethnic classifications for the purpose of equal protection analysis. Petitioner also cites Lau v. Nichols, 414 U. S. 563 (1974), in support of the proposition that discrimination favoring racial or ethnic minorities has received judicial approval without the exacting inquiry ordinarily accorded "suspect" classifications. In Lau, we held that the failure of the San Francisco school system to provide remedial English instruction for some 1,800 students of oriental ancestry who spoke no English amounted to a violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and the regulations promulgated thereunder. Those regulations required remedial instruction where inability to understand English excluded children of foreign ancestry from participation in educational programs. 414 U.S. at 414 U. S. 568 . Because we found that the students in Lau were denied "a meaningful opportunity to participate in the educational program," ibid., we remanded for the fashioning of a remedial order. Page 438 U. S. 304 Lau provides little support for petitioner's argument. The decision rested solely on the statute, which had been construed by the responsible administrative agency to each educational practices "which have the effect of subjecting individuals to discrimination," ibid. We stated: "Under these state-imposed standards, there is no equality of treatment merely by providing students with the same facilities, textbooks, teachers, and curriculum, for students who do not understand English are effectively foreclosed from any meaningful education." Id. at 414 U. S. 566 . Moreover, the "preference" approved did not result in the denial of the relevant benefit -- "meaningful opportunity to participate in the educational program" -- to anyone else. No other student was deprived by that preference of the ability to participate in San Francisco's school system, and the applicable regulations required similar assistance for all students who suffered similar linguistic deficiencies. Id. at 414 U. S. 570 -571 (STEWART, J., concurring in result). In a similar vein, [ Footnote 42 ] petitioner contends that our recent decision in United Jewish Organization v. Carey, 430 U. S. 144 (1977), indicates a willingness to approve racial classifications designed to benefit certain minorities, without denominating the classifications as "suspect." The State of New York had redrawn its reapportionment plan to meet objections of the Department of Justice under § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c (1970 ed., Supp. V). Specifically, voting districts were redrawn to enhance the electoral power Page 438 U. S. 305 of certain "nonwhite" voters found to have been the victims of unlawful "dilution" under the original reapportionment plan. United Jewish Organizations, like Lau, properly is viewed as a case in which the remedy for an administrative finding of discrimination encompassed measures to improve the previously disadvantaged group's ability to participate, without excluding individuals belonging to any other group from enjoyment of the relevant opportunity -- meaningful participation in the electoral process. In this case, unlike Lau and United Jewish Organizations, there has been no determination by the legislature or a responsible administrative agency that the University engaged in a discriminatory practice requiring remedial efforts. Moreover, the operation of petitioner's special admissions program is quite different from the remedial measures approved in those cases. It prefers the designated minority groups at the expense of other individuals who are totally foreclosed from competition for the 16 special admissions seats in every Medical School class. Because of that foreclosure, some individuals are excluded from enjoyment of a state-provided benefit -- admission to the Medical School -- they otherwise would receive. When a classification denies an individual opportunities or benefits enjoyed by others solely because of his race or ethnic background, it must be regarded as suspect. E.g., McLaurin v. Oklahoma State Regents, 339 U.S. at 339 U. S. 641 -642. IV We have held that, in "order to justify the use of a suspect classification, a State must show that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is 'necessary . . . to the accomplishment' of its purpose or the safeguarding of its interest." In re Griffiths, 413 U. S. 717 , 413 U. S. 721 -722 (1973) (footnotes omitted); Loving v. Virginia, 388 U.S. at 388 U. S. 11 ; McLaughlin v. Florida, 379 U. S. 184 , 379 U. S. 196 (1964). The special admissions Page 438 U. S. 306 program purports to serve the purposes of: (i) "reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession," Brief for Petitioner 32; (ii) countering the effects of societal discrimination; [ Footnote 43 ] (iii) increasing the number of physicians who will practice in communities currently underserved; and (iv) obtaining the educational benefits that flow from an ethnically diverse student body. It is necessary to decide which, if any, of these purposes is substantial enough to support the use of a suspect classification. Page 438 U. S. 307 A If petitioner's purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial, but as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids. E.g., Loving v. Virginia, supra at 388 U. S. 11 ; McLaughlin v. Florida, supra at 379 U. S. 198 ; Brown v. Board of Education, 347 U. S. 483 (1954). B The State certainly has a legitimate and substantial interest in ameliorating, or eliminating where feasible, the disabling effects of identified discrimination. The line of school desegregation cases, commencing with Brown, attests to the importance of this state goal and the commitment of the judiciary to affirm all lawful means toward its attainment. In the school cases, the States were required by court order to redress the wrongs worked by specific instances of racial discrimination. That goal was far more focused than the remedying of the effects of "societal discrimination," an amorphous concept of injury that may be ageless in its reach into the past. We have never approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations. See, e.g., Teamsters v. United States, 431 U. S. 324 , 431 U. S. 367 -376 (1977); United Jewish Organizations, 430 U.S. at 430 U. S. 155 -156; South Carolina v. Katzenbach, 383 U. S. 301 , 383 U. S. 308 (1966). After such findings have been made, the governmental interest in preferring members of the injured groups at the expense of others is substantial, since the legal rights of the victims must be vindicated. In such a case, the Page 438 U. S. 308 extent of the injury and the consequent remedy will have been judicially, legislatively, or administratively defined. Also, the remedial action usually remains subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit. Without such findings of constitutional or statutory violations, [ Footnote 44 ] it cannot be Page 438 U. S. 309 said that the government has any greater interest in helping one individual than in refraining from harming another. Thus, the government has no compelling justification for inflicting such harm. Petitioner does not purport to have made, and is in no position to make, such findings. Its broad mission is education, not the formulation of any legislative policy or the adjudication of particular claims of illegality. For reasons similar to those stated in 438 U. S. isolated segments of our vast governmental structures are not competent to make those decisions, at least in the absence of legislative mandates and legislatively determined criteria. [ Footnote 45 ] Cf. Hampton v. Mow Sun Wong, 426 U. S. 88 (1976); n. 41, supra. Before relying upon these sorts of findings in establishing a racial classification, a governmental body must have the authority and capability to establish, in the record, that the classification is responsive to identified discrimination. See, e.g., Califano v. Webster, 430 U.S. at 430 U. S. 316 -321; Califano Page 438 U. S. 310 v. Goldfarb, 430 U.S. at 430 U. S. 212 -217. Lacking this capability, petitioner has not carried its burden of justification on this issue. Hence, the purpose of helping certain groups whom the faculty of the Davis Medical School perceived as victims of "societal discrimination" does not justify a classification that imposes disadvantages upon persons like respondent, who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered. To hold otherwise would be to convert a remedy heretofore reserved for violations of legal rights into a privilege that all institutions throughout the Nation could grant at their pleasure to whatever groups are perceived as victims of societal discrimination. That is a step we have never approved. Cf. Pasadena Cty Board of Education v. Spangler, 427 U. S. 424 (1976). C Petitioner identifies, as another purpose of its program, improving the delivery of health care services to communities currently underserved. It may be assumed that, in some situations, a State's interest in facilitating the health care of its citizens is sufficiently compelling to support the use of a suspect classification. But there is virtually no evidence in the record indicating that petitioner's special admissions program is either needed or geared to promote that goal. [ Footnote 46 ] The court below addressed this failure of proof: "The University concedes it cannot assure that minority doctors who entered under the program, all of whom expressed an 'interest' in practicing in a disadvantaged community, will actually do so. It may be correct to assume that some of them will carry out this intention, and that it is more likely they will practice in minority Page 438 U. S. 311 communities than the average white doctor. ( See Sandalow, Racial Preferences in Higher Education: Political Responsibility and the Judicial Role (1975) 42 U.Chi.L.Rev. 653, 688.) Nevertheless, there are more precise and reliable ways to identify applicants who are genuinely interested in the medical problems of minorities than by race. An applicant of whatever race who has demonstrated his concern for disadvantaged minorities in the past and who declares that practice in such a community is his primary professional goal would be more likely to contribute to alleviation of the medical shortage than one who is chosen entirely on the basis of race and disadvantage. In short, there is no empirical data to demonstrate that any one race is more selflessly socially oriented or by contrast that another is more selfishly acquisitive." 18 Cal. 3d at 56, 553 P.2d at 1167. Petitioner simply has not carried its burden of demonstrating that it must prefer members of particular ethnic groups over all other individuals in order to promote better health care delivery to deprived citizens. Indeed, petitioner has not shown that its preferential classification is likely to have any significant effect on the problem. [ Footnote 47 ] D The fourth goal asserted by petitioner is the attainment of a diverse student body. This clearly is a constitutionally permissible Page 438 U. S. 312 goal for an institution of higher education. Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body. Mr. Justice Frankfurter summarized the "four essential freedoms" that constitute academic freedom: "'It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail 'the four essential freedoms' of a university -- to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.'" Sweezy v. New Hampshire, 354 U. S. 234 , 354 U. S. 263 (1957) (concurring in result). Our national commitment to the safeguarding of these freedoms within university communities was emphasized in Keyishian v. Board of Regents, 385 U. S. 589 , 385 U. S. 603 (1967): "Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us, and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment. . . . The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, [rather] than through any kind of authoritative selection.' United States v. Associated Press, 52 F. Supp. 362 , 372." The atmosphere of "speculation, experiment and creation" -- so essential to the quality of higher education -- is widely believed to be promoted by a diverse student body. [ Footnote 48 ] As the Court Page 438 U. S. 313 noted in Keyishian, it is not too much to say that the "nation's future depends upon leaders trained through wide exposure" to the ideas and mores of students as diverse as this Nation of many peoples. Thus, in arguing that its universities must be accorded the right to select those students who will contribute the most to the "robust exchange of ideas," petitioner invokes a countervailing constitutional interest, that of the First Amendment. In this light, petitioner must be viewed as seeking to achieve a goal that is of paramount importance in the fulfillment of its mission. It may be argued that there is greater force to these views at the undergraduate level than in a medical school, where the training is centered primarily on professional competency. But even at the graduate level, our tradition and experience lend support to the view that the contribution of diversity is substantial. In Sweatt v. Painter, 339 U.S. at 339 U. S. 634 , the Page 438 U. S. 314 Court made a similar point with specific reference to legal education: "The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the law interacts. Few students, and no one who has practiced law, would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned." Physicians serve a heterogeneous population. An otherwise qualified medical student with a particular background -- whether it be ethnic, geographic, culturally advantaged or disadvantaged -- may bring to a professional school of medicine experiences, outlooks, and ideas that enrich the training of its student body and better equip its graduates to render with understanding their vital service to humanity. [ Footnote 49 ] Ethnic diversity, however, is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body. Although a university must have wide discretion in making the sensitive judgments as to who should be admitted, constitutional limitations protecting individual rights may not be disregarded. Respondent urges -- and the courts below have held -- that petitioner's dual admissions program is a racial classification that impermissibly infringes his rights under the Fourteenth Amendment. As the interest of diversity is compelling in the context of a university's admissions program, the question remains whether the Page 438 U. S. 315 program's racial classification is necessary to promote this interest. In re Griffiths, 413 U.S. at 413 U. S. 721 -722. V A It may be assumed that the reservation of a specified number of seats in each class for individuals from the preferred ethnic groups would contribute to the attainment of considerable ethnic diversity in the student body. But petitioner's argument that this is the only effective means of serving the interest of diversity is seriously flawed. In a most fundamental sense, the argument misconceives the nature of the state interest that would justify consideration of race or ethnic background. It is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, with the remaining percentage an undifferentiated aggregation of students. The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics, of which racial or ethnic origin is but a single, though important, element. Petitioner's special admissions program, focused solely on ethnic diversity, would hinder, rather than further, attainment of genuine diversity. [ Footnote 50 ] Nor would the state interest in genuine diversity be served by expanding petitioner's two-track system into a multi-track program with a prescribed number of seats set aside for each identifiable category of applicants. Indeed, it is inconceivable that a university would thus pursue the logic of petitioner's two-track program to the illogical end of insulating each category of applicants with certain desired qualifications from competition with all other applicants. Page 438 U. S. 316 The experience of other university admissions programs, which take race into account in achieving the educational diversity valued by the First Amendment, demonstrates that the assignment of a fixed number of places to a minority group is not a necessary means toward that end. An illuminating example is found in the Harvard College program: "In recent years, Harvard College has expanded the concept of diversity to include students from disadvantaged economic, racial and ethnic groups. Harvard College now recruits not only Californians or Louisianans but also blacks and Chicanos and other minority students. . . ." "In practice, this new definition of diversity has meant that race has been a factor in some admission decisions. When the Committee on Admissions reviews the large middle group of applicants who are 'admissible' and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates' cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer. . . . [ See 438 U.S. 265 app|>Appendix hereto.]" "In Harvard College admissions, the Committee has not set target quotas for the number of blacks, or of musicians, football players, physicists or Californians to be admitted in a given year. . . . But that awareness [of the necessity of including more than a token number of black students] does not mean that the Committee sets a minimum number of blacks or of people from west of the Mississippi who are to be admitted. It means only that, in choosing among thousands of applicants who are not only 'admissible' academically but have other strong qualities, the Committee, with a number of criteria in mind, pays some attention to distribution among many Page 438 U. S. 317 types and categories of students." App. to Brief for Columbia University, Harvard University, Stanford University, and the University of Pennsylvania, as Amici Curiae 2-3. In such an admissions program, [ Footnote 51 ] race or ethnic background may be deemed a "plus" in a particular applicant's file, yet it does not insulate the individual from comparison with all other candidates for the available seats. The file of a particular black applicant may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism. Such qualities could include exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important. In short, an admissions program operated in this way is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight. Indeed, the weight attributed to a Page 438 U. S. 318 particular quality may vary from year to year depending upon the "mix" both of the student body and the applicants for the incoming class. This kind of program treats each applicant as an individual in the admissions process. The applicant who loses out on the last available seat to another candidate receiving a "plus" on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname. It would mean only that his combined qualifications, which may have included similar nonobjective factors, did not outweigh those of the other applicant. His qualifications would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment under the Fourteenth Amendment. [ Footnote 52 ] It has been suggested that an admissions program which considers race only as one factor is simply a subtle and more sophisticated -- but no less effective -- means of according racial preference than the Davis program. A facial intent to discriminate, however, is evident in petitioner's preference program, and not denied in this case. No such facial infirmity exists in an admissions program where race or ethnic background is simply one element -- to be weighed fairly against other elements -- in the selection process. "A boundary line," as Mr. Justice Frankfurter remarked in another connection, "is none the worse for being narrow." McLeod v. Dilworth, 322 U. S. 327 , 322 U. S. 329 (1944). And a court would not assume that a university, professing to employ a facially nondiscriminatory admissions policy, would operate it as a cover for the functional equivalent of a quota system. In short, good faith Page 438 U. S. 319 would be presumed in the absence of a showing to the contrary in the manner permitted by our cases. See, e.g., Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 (1977); Washington v. Davis, 426 U. S. 229 (1976); Swain v. Alabama, 380 U. S. 202 (165). [ Footnote 53 ] B In summary, it is evident that the Davis special admissions program involves the use of an explicit racial classification never before countenanced by this Court. It tells applicants who are not Negro, Asian, or Chicano that they are totally excluded from a specific percentage of the seats in an entering class. No matter how strong their qualifications, quantitative and extracurricular, including their own potential for contribution to educational diversity, they are never afforded the chance to compete with applicants from the preferred groups for the special admissions seats. At the same time, the preferred Page 438 U. S. 320 applicants have the opportunity to compete for every seat in the class. The fatal flaw in petitioner's preferential program is its disregard of individual rights as guaranteed by the Fourteenth Amendment. Shelley v. Kraemer, 334 U.S. at 334 U. S. 22 . Such rights are not absolute. But when a State's distribution of benefits or imposition of burdens hinges on ancestry or the color of a person's skin, that individual is entitled to a demonstration that the challenged classification is necessary to promote a substantial state interest. Petitioner has failed to carry this burden. For this reason, that portion of the California court's judgment holding petitioner's special admissions program invalid under the Fourteenth Amendment must be affirmed. C In enjoining petitioner from ever considering the race of any applicant, however, the courts below failed to recognize that the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin. For this reason, so much of the California court's judgment as enjoins petitioner from any consideration of the race of any applicant must be reversed. VI With respect to respondent's entitlement to an injunction directing his admission to the Medical School, petitioner has conceded that it could not carry its burden of proving that, but for the existence of its unlawful special admissions program, respondent still would not have been admitted. Hence, respondent is entitled to the injunction, and that portion of the judgment must be affirmed. [ Footnote 54 ] Page 438 U. S. 321 | 438 U.S. 265 app| APPENDIX TO OPINION OF POWELL, J. Harvard College Admissions Program [ Footnote 55 ] For the past 30 years, Harvard College has received each year applications for admission that greatly exceed the number of places in the freshman class. The number of applicants who are deemed to be not "qualified" is comparatively small. The vast majority of applicants demonstrate through test scores, high school records and teachers' recommendations that they have the academic ability to do adequate work at Harvard, and perhaps to do it with distinction. Faced with the dilemma of choosing among a large number of "qualified" candidates, the Committee on Admissions could use the single criterion of scholarly excellence and attempt to determine who among the candidates were likely to perform best academically. But for the past 30 years, the Committee on Admissions has never adopted this approach. The belief has been that, if scholarly excellence were the sole or even predominant criterion, Harvard College would lose a great deal of its vitality and intellectual excellence, and that the quality of the educational Page 438 U. S. 322 experience offered to all students would suffer. Final Report of W. J. Bender, Chairman of the Admission and Scholarship Committee and Dean of Admissions and Financial Aid, pp. 20 et seq. (Cambridge, 1960). Consequently, after selecting those students whose intellectual potential will seem extraordinary to the faculty -- perhaps 150 or so out of an entering class of over 1,100 -- the Committee seeks -- "variety in making its choices. This has seemed important . . . in part because it adds a critical ingredient to the effectiveness of the educational experience [in Harvard College]. . . . The effectiveness of our students' educational experience has seemed to the Committee to be affected as importantly by a wide variety of interests, talents, backgrounds and career goals as it is by a fine faculty and our libraries, laboratories and housing arrangements. " Dean of Admissions Fred L. Glimp, Final Report to the Faculty of Arts and Sciences, 65 Official Register of Harvard University No. 25, 93, 10105 (1968) (emphasis supplied). The belief that diversity adds an essential ingredient to the educational process has long been a tenet of Harvard College admissions. Fifteen or twenty years ago, however, diversity meant students from California, New York, and Massachusetts; city dwellers and farm boys; violinists, painters and football players; biologists, historians and classicists; potential stockbrokers, academics and politicians. The result was that very few ethnic or racial minorities attended Harvard College. In recent years, Harvard College has expanded the concept of diversity to include students from disadvantaged economic, racial and ethnic groups. Harvard College now recruits not only Californians or Louisianans, but also blacks and Chicanos and other minority students. Contemporary conditions in the United States mean that, if Harvard College is to continue to offer a first-rate education to its students, Page 438 U. S. 323 minority representation in the undergraduate body cannot be ignored by the Committee on Admissions. In practice, this new definition of diversity has meant that race has been a factor in some admission decisions. When the Committee on Admissions reviews the large middle group of applicants who are "admissible" and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates' cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer. The quality of the educational experience of all the students in Harvard College depends in part on these differences in the background and outlook that students bring with them. In Harvard College admissions, the Committee has not set target quotas for the number of blacks, or of musicians, football players, physicists or Californians to be admitted in a given year. At the same time the Committee is aware that, if Harvard College is to provide a truly heterogen[e]ous environment that reflects the rich diversity of the United States, it cannot be provided without some attention to numbers. It would not make sense, for example, to have 10 or 20 students out of 1, 100 whose homes are west of the Mississippi. Comparably, 10 or 20 black students could not begin to bring to their classmates and to each other the variety of points of view, backgrounds and experiences of blacks in the United States. Their small numbers might also create a sense of isolation among the black students themselves, and thus make it more difficult for them to develop and achieve their potential. Consequently, when making its decisions, the Committee on Admissions is aware that there is some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted. But Page 438 U. S. 324 that awareness does not mean that the Committee sets a minimum number of blacks or of people from west of the Mississippi who are to be admitted. It means only that, in choosing among thousands of applicants who are not only "admissible" academically but have other strong qualities, the Committee, with a number of criteria in mind, pays some attention to distribution among many types and categories of students. The further refinements sometimes required help to illustrate the kind of significance attached to race. The Admissions Committee, with only a few places left to fill, might find itself forced to choose between A, the child of a successful black physician in an academic community with promise of superior academic performance, and B, a black who grew up in an inner-city ghetto of semi-literate parents whose academic achievement was lower, but who had demonstrated energy and leadership, as well as an apparently abiding interest in black power. If a good number of black students much like A, but few like B, had already been admitted, the Committee might prefer B, and vice versa. If C, a white student with extraordinary artistic talent, were also seeking one of the remaining places, his unique quality might give him an edge over both A and B. Thus, the critical criteria are often individual qualities or experience not dependent upon race but sometimes associated with it. * MR. JUSTICE STEVENS views the judgment of the California court as limited to prohibiting the consideration of race only in passing upon Bakke's application. Post at 438 U. S. 408 -411. It must be remembered, however, that petitioner here cross-complained in the trial court for a declaratory judgment that its special program was constitutional, and it lost. The trial court's judgment that the special program was unlawful was affirmed by the California Supreme Court in an opinion which left no doubt that the reason for its holding was petitioner's use of race in consideration of ay candidate's application. Moreover, in explaining the scope of its holding, the court quite clearly stated that petitioner was prohibited from taking race into account in any way in making admissions decisions: "In addition, the University may properly as it in fact does, consider other factors in evaluating an applicant, such as the personal interview, recommendations, character, and matters relating to the needs of the profession and society, such as an applicant's professional goals. In short, the standards for admission employed by the University are not constitutionally infirm except to the extent that they are utilized in a racially discriminatory manner. Disadvantaged applicants of all races must be eligible for sympathetic consideration, and no applicant may be rejected because of his race in favor of another who is less qualified, as measured by standards applied without regard to race. We reiterate, in view of the dissent's misinterpretation, that we do not compel the University to utilize only 'the highest objective academic credentials' as the criterion for admission." 18 Cal. 3d 34 , 54-55, 553 P.2d 1152, 1166 (1976) (footnote omitted). This explicit statement makes it unreasonable to assume that the reach of the California court's judgment can be limited in the manner suggested by MR. JUSTICE STEVENS. ** MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN join Parts I and V-C of this opinion. MR. JUSTICE WHITE also joins Part III-A of this opinion. [ Footnote 1 ] Material distributed to applicants for the class entering in 1973 described the special admissions program as follows: "A special subcommittee of the Admissions Committee, made up of faculty and medical students from minority groups, evaluates applications from economically and/or educationally disadvantaged backgrounds. The applicant may designate on the application form that he or she requests such an evaluation. Ethnic minorities are not categorically considered under the Task Force Program unless they are from disadvantaged backgrounds. Our goals are: 1) A short-range goal in the identification and recruitment of potential candidates for admission to medical school in the near future, and 2) Our long-range goal is to stimulate career interest in health professions among junior high and high school students." "After receiving all pertinent information selected applicants will receive a letter inviting them to our School of Medicine in Davis for an interview. The interviews are conducted by at least one faculty member and one student member of the Task Force Committee. Recommendations are then made to the Admissions Committee of the medical school. Some of the Task Force Faculty are also members of the Admissions Committee." "Long-range goals will be approached by meeting with counselors and students of schools with large minority populations, as well as with local youth and adult community groups." "Applications for financial aid are available only after the applicant has been accepted, and can only be awarded after registration. Financial aid is available to students in the form of scholarships and loans. In addition to the Regents' Scholarships and President's Scholarship programs, the medical school participates in the Health Professions Scholarship Program, which makes funds available to students who otherwise might not be able to pursue a medical education. Other scholarships and awards are available to students who meet special eligibility qualifications. Medical students are also eligible to participate in the Federally Insured Student Loan Program and the American Medical Association Education and Research Foundation Loan Program." Applications for Admission are available from: Admissions Office School of Medicine University of California Davis, California 95616 Record 195. The letter distributed the following year was virtually identical, except that the third paragraph was omitted. [ Footnote 2 ] For the 1973 entering class of 100 seats, the Davis Medical School received 2,464 applications. Id. at 117. For the 1974 entering class, 3,737 applications were submitted. Id. at 289. [ Footnote 3 ] That is, applications were considered and acted upon as they were received, so that the process of filling the class took place over a period of months, with later applications being considered against those still on file from earlier in the year. Id. at 64. [ Footnote 4 ] The chairman normally checked to see if, among other things, the applicant had been granted a waiver of the school's application fee, which required a means test; whether the applicant had worked during college or interrupted his education to support himself or his family; and whether the applicant was a member of a minority group. Id. at 666. [ Footnote 5 ] For the class entering in 1973, the total number of special applicants was 297, of whom 73 were white. In 1974, 628 persons applied to the special committee, of whom 172 were white. Id. at 133-134. [ Footnote 6 ] The following table provides a year-by-year comparison of minority admissions at the Davis Medical School: bwm: Special Admissions Program General Admissions Total ---------------------------- ---------------------- ----- Blacks Chicanos Asians Total Blacks Chicanos Asians Total 1970. . . . 5 3 0 8 0 0 4 4 12 1971. . . . 4 9 2 15 1 0 8 9 24 1972. . . . 5 6 5 16 0 0 11 11 27 1973. . . . 6 8 2 16 0 2 13 15 31 1974. . . . 6 7 3 16 0 4 5 9 25 ewm: Id. at 216-218. Sixteen persons were admitted under the special program in 1974, ibid., but one Asian withdrew before the start of classes, and the vacancy was filled by a candidate from the general admissions waiting list. Brief for Petitioner 4 n. 5. [ Footnote 7 ] The following table compares Bakke's science grade point average, overall grade point average, and MCAT scores with the average scores of regular admittees and of special admittees in both 1973 and 1974. Record 210, 223, 231, 234: bwm: Class Entering in 1973 MCAT (Percentiles) Quanti- Gen. SGPA OGPA Verbal tative Science Infor. Bakke . . . . . . . 3.44 3.46 96 94 97 72 Average of regular admittees. . . . . 3.51 3.49 81 76 83 69 Average of special admittees. . . . . 2.62 2.88 46 24 35 33 Class Entering in 1974 MCAT (Percentiles) Quanti- Gen. SGPA OGPA Verbal tative Science Infor. Bakke. . . . . . . . 3.44 3.46 96 94 97 72 Average of regular admittees. . . . . 3.36 3.29 69 67 82 72 Average of special admittees. . . . . 2.42 2.62 34 30 37 18 ewm: Applicants admitted under the special program also had benchmark scores significantly lower than many students, including Bakke, rejected under the general admissions program, even though the special rating system apparently gave credit for overcoming "disadvantage." Id. at 181, 388. [ Footnote 8 ] Prior to the actual filing of the suit, Bakke discussed his intentions with Peter C. Storandt, Assistant to the Dean of Admissions at the Davis Medical School. Id. at 259-269. Storandt expressed sympathy for Bakke's position and offered advice on litigation strategy. Several amici imply that these discussions render Bakke's suit "collusive." There is no indication, however, that Storandt's views were those of the Medical School, or that anyone else at the school even was aware of Storandt's correspondence and conversations with Bakke. Storandt is no longer with the University. [ Footnote 9 ] "[N]or shall any State . . . deny to any person within its jurisdiction the equal protection of the laws." [ Footnote 10 ] "No special privileges or immunities shall ever be granted which may not be altered, revoked, or repealed by the Legislature; nor shall any citizen, or class of citizens, be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens." This section was recently repealed, and its provisions added to Art. I, § 7, of the State Constitution. [ Footnote 11 ] Section 601 of Title VI, 78 Stat. 252, provides as follows: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." [ Footnote 12 ] Indeed, the University did not challenge the finding that applicants who were not members of a minority group were excluded from consideration in the special admissions process. 18 Cal. 3d at 44, 553 P.2d at 1159. [ Footnote 13 ] Petitioner has not challenged this aspect of the decision. The issue of the proper placement of the burden of proof, then, is not before us. [ Footnote 14 ] Several amici suggest that Bakke lacks standing, arguing that he never showed that his injury -- exclusion from the Medical School -- will be redressed by a favorable decision, and that the petitioner "fabricated" jurisdiction by conceding its inability to meet its burden of proof. Petitioner does not object to Bakke's standing, but inasmuch as this charge concerns our jurisdiction under Art. III, it must be considered and rejected. First, there appears to be no reason to question the petitioner's concession. It was not an attempt to stipulate to a conclusion of law or to disguise actual facts of record. Cf. Swift & Co. v. Hocking Valley R. Co., 243 U. S. 281 (1917). Second, even if Bakke had been unable to prove that he would have been admitted in the absence of the special program, it would not follow that he lacked standing. The constitutional element of standing is plaintiff's demonstration of any injury to himself that is likely to be redressed by favorable decision of his claim. Warth v. Seldin, 422 U. S. 490 , 422 U. S. 498 (1975). The trial court found such an injury, apart from failure to be admitted, in the University's decision not to permit Bakke to compete for all 100 places in the class, simply because of his race. Record 323. Hence, the constitutional requirements of Art. III were met. The question of Bakke's admission vel non is merely one of relief. Nor is it fatal to Bakke's standing that he was not a "disadvantaged" applicant. Despite the program's purported emphasis on disadvantage, it was a minority enrollment program with a secondary disadvantage element. White disadvantaged students were never considered under the special program, and the University acknowledges that its goal in devising the program was to increase minority enrollment. [ Footnote 15 ] See, e.g., 110 Cong.Rec. 5255 (1964) (remarks of Sen. Case). [ Footnote 16 ] E.g., Bossier Parish School Board v. Lemon, 370 F.2d 847, 851-852 (CA5), cert. denied, 388 U.S. 911 (1967); Natonbah v. Board of Education, 355 F. Supp. 716 , 724 (NM 1973); cf. Lloyd v. Regional Transportation Authority, 548 F.2d 1277, 1284-1287 (CA7 1977) (Title V of Rehabilitation Act of 1973, 29 U.S.C. § 790 et seq. (1976 ed.)); Piascik v. Cleveland Museum of Art, 426 F. Supp. 779 , 780 n. 1 (ND Ohio 1976) (Title IX of Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (1976 ed.)). [ Footnote 17 ] Section 602, as set forth in 42 U.S.C. § 2000d-1, reads as follows: "Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. No such rule, regulation, or order shall become effective unless and until approved by the President. Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, but such termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made and, shall be �limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found, or(2) by any other means authorized by law: Provided, however, That no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. In the case of any action terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency shall file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action. No such action shall become effective until thirty days have elapsed after the filing of such report." [ Footnote 18 ] Several comments in the debates cast doubt on the existence of any intent to create a private right of action. For example, Representative Gill stated that no private right of action was contemplated: "Nowhere in this section do you find a comparable right of legal action for a person who feels he has been denied his rights to participate in the benefits of Federal funds. Nowhere. Only those who have been cut off can go to court and present their claim." 110 Cong.Rec. 2467 (1964). Accord, id. at 7065 (remarks of Sen. Keating); 6562 (remarks of Sen. Kuchel). [ Footnote 19 ] For example, Senator Humphrey stated as follows: "Racial discrimination or segregation in the administration of disaster relief is particularly shocking; and offensive to our sense of justice and fair play. Human suffering draws no color lines, and the administration of help to the sufferers should not." Id. at 6547. See also id. at 12675 (remarks of Sen. Allott); 6561 (remarks of Sen. Kuchel); 2494, 6047 (remarks of Sen. Pastore). But see id. at 15893 (remarks of Rep. MacGregor); 13821 (remarks of Sen. Saltonstall); 10920 (remarks of Sen. Javits); 5266, 5807 (remarks of Sen. Keating). [ Footnote 20 ] See, e.g., id. at 7064-7065 (remarks of Sen. Ribicoff); 7054-7055 (remarks of Sen. Pastore); 6543-6544 (remarks of Sen. Humphrey); 2595 (remarks of Rep. Donohue); 2467-2468 (remarks of Rep. Celler); 1643, 2481-2482 (remarks of Rep. Ryan); H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 2, pp. 24-25 (1963). [ Footnote 21 ] See, e.g., 110 Cong.Rec. 2467 (1964) (remarks of Rep. Lindsay). See also id. at 2766 (remarks of Rep. Matsunaga); 2731-2732 (remarks of Rep. Dawson); 2595 (remarks of Rep. Donohue); 1527-1528 (remarks of Rep. Celler). [ Footnote 22 ] See, e.g., id. at 12675, 12677 (remarks of Sen. Allott); 7064 (remarks of Sen. Pell); 7057, 7062-7064 (remarks of Sen. Pastore); 5243 (remarks of Sen. Clark). [ Footnote 23 ] See, e.g., id. at 6052 (remarks of Sen. Johnston); 5863 (remarks of Sen. Eastland); 5612 (remarks of Sen. Ervin); 5251 (remarks of Sen. Talmadge); 1632 (remarks of Rep. Dowdy); 1619 (remarks of Rep. Abernethy). [ Footnote 24 ] See also id. at 7057, 13333 (remarks of Sen. Ribicoff); 7057 (remarks of Sen. Pastore); 5606-5607 (remarks of Sen. Javits); 5253, 5863-5864, 13442 (remarks of Sen. Humphrey). [ Footnote 25 ] That issue has generated a considerable amount of scholarly controversy. See, e.g., Ely, The Constitutionality of Reverse Racial Discrimination, 41 U.Chi.L.Rev. 723 (1974); Greenawalt, Judicial Scrutiny of "Benign" Racial Preference in Law School Admissions, 75 Colum.L.Rev. 559 (1975); Kaplan, Equal Justice in an Unequal World: Equality for the Negro, 61 Nw.U.L.Rev. 363 (1966); Karst & Horowitz, Affirmative Action and Equal Protection, 60 Va.L.Rev. 955 (1974); O'Neil, Racial Preference and Higher Education: The Larger Context, 60 Va.L.Rev. 925 (1974); Posner, The DeFunis Case and the Constitutionality of Preferential Treatment of Racial Minorities, 1974 Sup.Ct.Rev. 1; Redish, Preferential Law School Admissions and the Equal Protection Clause: An Analysis of the Competing Arguments, 22 UCLA L.Rev. 343 (1974); Sandalow, Racial Preferences in Higher Education: Political Responsibility and the Judicial Role, 42 U.Chi.L.Rev. 653 (1975); Sedler, Racial Preference, Reality and the Constitution: Bakke v. Regents of the University of California, 17 Santa Clara L.Rev. 329 (1977); Seeburger, A Heuristic Argument Against Preferential Admissions, 39 U.Pitt.L.Rev. 285 (1977). [ Footnote 26 ] Petitioner defines "quota" as a requirement which must be met, but can never be exceeded, regardless of the quality of the minority applicants. Petitioner declares that there is no "floor" under the total number of minority students admitted; completely unqualified students will not be admitted simply to meet a "quota." Neither is there a "ceiling," since an unlimited number could be admitted through the general admissions process. On this basis, the special admissions program does not meet petitioner's definition of a quota. The court below found -- and petitioner does not deny -- that white applicants could not compete for the 16 places reserved solely for the special admissions program. 18 Cal. 3d at 44, 553 P.2d at 1159. Both courts below characterized this as a "quota" system. [ Footnote 27 ] Moreover, the University's special admissions program involves a purposeful, acknowledged use of racial criteria. This is not a situation in which the classification on its face is racially neutral, but has a disproportionate racial impact. In that situation, plaintiff must establish an intent to discriminate. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 , 429 U. S. 264 -265 (1977); Washington v. Davis, 426 U. S. 229 , 426 U. S. 242 (1976); see Yick Wo v. Hopkins, 118 U. S. 356 (1886). [ Footnote 28 ] After Carolene Products, the first specific reference in our decisions to the elements of "discreteness and insularity" appears in Minersville School District v. Gobitis, 310 U. S. 586 , 310 U. S. 606 (1940) (Stone, J., dissenting). The next does not appear until 1970. Oregon v. Mitchell, 400 U. S. 112 , 400 U. S. 295 n. 14 (STEWART, J., concurring in part and dissenting in part). These elements have been relied upon in recognizing a suspect class in only one group of cases, those involving aliens. E.g., Graham v. Richardson, 403 U. S. 365 , 403 U. S. 372 (1971). [ Footnote 29 ] Tussman & tenBroek, The Equal Protection of the Law, 37 Calif.L.Rev. 341, 381 (1949). [ Footnote 30 ] M. Jones, American Immigration 177-246 (1960). [ Footnote 31 ] J. Higham, Strangers in the Land (1955); G. Abbott, The Immigrant and the Community (1917); P. Roberts, The New Immigration 66-73, 86-91, 248-261 (1912). See also E. Fenton, Immigrants and Unions: A Case Study 561-562 (1975). [ Footnote 32 ] "Members of various religious and ethnic groups, primarily but not exclusively of Eastern, Middle, and Southern European ancestry, such as Jews, Catholics, Italians, Greeks, and Slavic groups, continue to be excluded from executive, middle-management, and other job levels because of discrimination based upon their religion and/or national origin." 41 CFR § 60-50.1(b) (1977). [ Footnote 33 ] E.g., P. Roberts, supra, n 31, at 75; G. Abbott, supra, n 31, at 270-271. See generally n 31, supra. [ Footnote 34 ] In the view of MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN, the pliable notion of "stigma" is the crucial element in analyzing racial classifications, see, e.g., post at 438 U. S. 361 , 438 U. S. 362 . The Equal Protection Clause is not framed in terms of "stigma." Certainly the word has no clearly defined constitutional meaning. It reflects a subjective judgment that is standardless. All state-imposed classifications that rearrange burdens and benefits on the basis of race are likely to be viewed with deep resentment by the individuals burdened. The denial to innocent persons of equal rights and opportunities may outrage those so deprived, and therefore may be perceived as invidious. These individuals are likely to find little comfort in the notion that the deprivation they are asked to endure is merely the price of membership in the dominant majority, and that its imposition is inspired by the supposedly benign purpose of aiding others. One should not lightly dismiss the inherent unfairness of, and the perception of mistreatment that accompanies, a system of allocating benefits and privileges on the basis of skin color and ethnic origin. Moreover, MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN offer no principle for deciding whether preferential classifications reflect a benign remedial purpose or a malevolent stigmatic classification, since they are willing in this case to accept mere post hoc declarations by an isolated state entity -- a medical school faculty -- unadorned by particularized findings of past discrimination, to establish such a remedial purpose. [ Footnote 35 ] Professor Bickel noted the self-contradiction of that view: "The lesson of the great decisions of the Supreme Court and the lesson of contemporary history have been the same for at least a generation -- discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society. Now this is to be unlearned, and we are told that this is not a matter of fundamental principle, but only a matter of whose ox is gored. Those for whom racial equality was demanded are to be more equal than others. Having found support in the Constitution for equality, they now claim support for inequality under the same Constitution." A. Bickel, The Morality of Consent 133 (1975). [ Footnote 36 ] As I am in agreement with the view that race may be taken into account as a factor in an admissions program, I agree with my Brothers BRENNAN, WHITE, MARSHALL, and BLACKMUN that the portion of the judgment that would proscribe all consideration of race must be reversed. See 438 U. S. infra. But I disagree with much that is said in their opinion. They would require, as a justification for a program such as petitioner's, only two findings: (i) that there has been some form of discrimination against the preferred minority groups by "society at large," post at 438 U. S. 369 (it being conceded that petitioner had no history of discrimination), and (ii) that "there is reason to believe" that the disparate impact sought to be rectified by the program is the "product" of such discrimination: "If it was reasonable to conclude -- as we hold that it was -- that the failure of minorities to qualify for admission at Davis under regular procedures was due principally to the effects of past discrimination, then there is a reasonable likelihood that, but for pervasive racial discrimination, respondent would have failed to qualify for admission even in the absence of Davis' special admissions program." Post at 438 U. S. 365 -366. The breadth of this hypothesis is unprecedented in our constitutional system. The first step is easily taken. No one denies the regrettable fact that there has been societal discrimination in this country against various racial and ethnic groups. The second step, however, involves a speculative leap: but for this discrimination by society at large, Bakke "would have failed to qualify for admission" because Negro applicants -- nothing is said about Asians, cf., e.g., post at 438 U. S. 374 n. 57 -- would have made better scores. Not one word in the record supports this conclusion, and the authors of the opinion offer no standard for courts to use in applying such a presumption of causation to other racial or ethnic classifications. This failure is a grave one, since, if it may be concluded on this record that each of the minority groups preferred by the petitioner's special program is entitled to the benefit of the presumption, it would seem difficult to determine that any of the dozens of minority groups that have suffered "societal discrimination" cannot also claim it in any area of social intercourse. See 438 U. S. infra. [ Footnote 37 ] Mr. Justice Douglas has noted the problems associated with such inquiries: "The reservation of a proportion of the law school class for members of selected minority groups is fraught with . . . dangers, for one must immediately determine which groups are to receive such favored treatment and which are to be excluded, the proportions of the class that are to be allocated to each, and even the criteria by which to determine whether an individual is a member of a favored group. [ Cf. Plessy v. Ferguson, 163 U. S. 537 , 163 U. S. 549 , 163 U. S. 552 (1896).] There is no assurance that a common agreement can be reached, and first the schools, and then the courts, will be buffeted with the competing claims. The University of Washington included Filipinos, but excluded Chinese and Japanese; another school may limit its program to blacks, or to blacks and Chicanos. Once the Court sanctioned racial preferences such as these, it could not then wash its hands of the matter, leaving it entirely in the discretion of the school, for then we would have effectively overruled Sweatt v. Painter, 339 U. S. 629 , and allowed imposition of a 'zero' allocation. But what standard is the Court to apply when a rejected applicant of Japanese ancestry brings suit to require the University of Washington to extend the same privileges to his group? The Committee might conclude that the population of Washington is now 2% Japanese, and that Japanese also constitute 2% of the Bar, but that, had they not been handicapped by a history of discrimination, Japanese would now constitute 5% of the Bar, or 20%. Or, alternatively, the Court could attempt to assess how grievously each group has suffered from discrimination, and allocate proportions accordingly; if that were the standard, the current University of Washington policy would almost surely fall, for there is no Western State which can claim that it has always treated Japanese and Chinese in a fair and evenhanded manner. See, e.g., Yick Wo v. Hopkins, 118 U. S. 356 ; Terrace v. Thompson, 263 U. S. 197 ; Oyama v. California, 332 U. S. 633 . This Court has not sustained a racial classification since the wartime cases of Korematsu v. United States, 323 U. S. 214 , and Hirabayashi v. United States, 320 U. S. 81 , involving curfews and relocations imposed upon Japanese-Americans." "Nor, obviously, will the problem be solved if, next year, the Law School included only Japanese and Chinese, for then Norwegians and Swedes, Poles and Italians, Puerto Ricans and Hungarians, and all other groups which form this diverse Nation would have just complaints." DeFunis v. Odegaard, 416 U. S. 312 , 416 U. S. 337 -340 (1974) (dissenting opinion) (footnotes omitted) . [ Footnote 38 ] R. Dahl, A Preface to Democratic Theory (1956); Posner, supra, n 25, at 27. [ Footnote 39 ] Petitioner cites three lower court decisions allegedly deviating from this general rule in school desegregation cases: Offermann v. Nitkowski, 378 F.2d 22 (CA2 1967); Wanner v. County School Board, 357 F.2d 452 (CA4 1966); Springfield School Committee v. Barksdale, 348 F.2d 261 (CA1 1965). Of these, Wanner involved a school system held to have been de jure segregated and enjoined from maintaining segregation; racial districting was deemed necessary. 357 F.2d at 454. Cf. United Jewish Organizations v. Carey, 430 U. S. 144 (1977). In Barksdale and Offermann, courts did approve voluntary districting designed to eliminate discriminatory attendance patterns. In neither, however, was there any showing that the school board planned extensive pupil transportation that might threaten liberty or privacy interests. See Keyes v. School District No. 1, 413 U. S. 189 , 413 U.S. 240 -250 (1973) (POWELL, J., concurring in part and dissenting in part). Nor were white students deprived of an equal opportunity for education. Respondent's position is wholly dissimilar to that of a pupil bused from his neighborhood school to a comparable school in another neighborhood in compliance with a desegregation decree. Petitioner did not arrange for respondent to attend a different medical school in order to desegregate Davis Medical School; instead, it denied him admission, and may have deprived him altogether of a medical education. [ Footnote 40 ] Every decision upholding the requirement of preferential hiring under the authority of Exec.Order No. 11246, 3 CFR 339 (1964-1965 Comp.), has emphasized the existence of previous discrimination as a predicate for the imposition of a preferential remedy. Contractors Association of Eastern Pennsylvania; Southern Illinois Builders Assn. v. Ogilvie, 471 F.2d 680 (CA7 1972); Joyce v. McCrane, 320 F. Supp. 1284 (NJ 1970); Weiner v. Cuyahoga Community College District, 19 Ohio St.2d 35, 249 N.E.2d 907, cert. denied, 396 U.S. 1004 (1970). See also Rosetti Contracting Co. v. Brennan, 508 F.2d 1039, 1041 (CA7 1975); Associated General Contractors of Massachusetts, Inc. v. Altshuler, 490 F.2d 9 (CA1 1973), cert. denied, 416 U.S. 957 (1974); Northeast Constr. Co. v. Romney, 157 U.S.App.D.C. 381, 383, 390, 485 F.2d 752, 754, 761 (1973). [ Footnote 41 ] This case does not call into question congressionally authorized administrative actions, such as consent decrees under Title VII or approval of reapportionment plans under § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c (1970 ed., Supp. V). In such cases, there has been detailed legislative consideration of the various indicia of previous constitutional or statutory violations, e.g., South Carolina v. Katzenbach, 383 U. S. 301 , 383 U. S. 308 -310 (1966) (§ 5), and particular administrative bodies have been charged with monitoring various activities in order to detect such violations and formulate appropriate remedies. See Hampton v. Mow Sun Wong, 426 U. S. 88 , 426 U. S. 103 (1976). Furthermore, we are not here presented with an occasion to review legislation by Congress pursuant to its powers under § 2 of the Thirteenth Amendment and § 5 of the Fourteenth Amendment to remedy the effects of prior discrimination. Katzenbach v. Morgan, 384 U. S. 641 (1966); Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968). We have previously recognized the special competence of Congress to make findings with respect to the effects of identified past discrimination and its discretionary authority to take appropriate remedial measures. [ Footnote 42 ] Petitioner also cites our decision in Morton v. Mancari, 417 U. S. 535 (1974), for the proposition that the State may prefer members of traditionally disadvantaged groups. In Mancari, we approved a hiring preference for qualified Indians in the Bureau of Indian Affairs of the Department of the Interior (BIA). We observed in that case, however, that the legal status of the BIA is sui generis. Id. at 417 U. S. 554 . Indeed, we found that the preference was not racial at all, but "an employment criterion reasonably designed to further the cause of Indian self-government and to make the BIA more responsive to . . . groups . . . whose lives and activities are governed by the BIA in a unique fashion." Ibid. [ Footnote 43 ] A number of distinct subgoals have been advanced as falling under the rubric of "compensation for past discrimination." For example, it is said t.hat preferences for Negro applicants may compensate for harm done them personally, or serve to place them at economic levels they might have attained but for discrimination against their forebears. Greenawalt, supra, n 25, at 581-586. Another view of the "compensation" goal is that it serves as a form of reparation by the "majority" to a victimized group as a whole. B. Bittker, The Case for Black Reparations (1973). That justification for racial or ethnic preference has been subjected to much criticism. E. Greenawalt, supra, n 25, at 581; Posner, supra, n 25, at 16-17, and n. 33. Finally, it has been argued that ethnic preferences "compensate" the group by providing examples of success whom other members of the group will emulate, thereby advancing the group's interest and society's interest in encouraging new generations to overcome the barriers and frustrations of the past. Redish, supra, n 25, at 391. For purposes of analysis these subgoals need not be considered separately. Racial classifications in admissions conceivably could serve a fifth purpose, one which petitioner does not articulate: fair appraisal of each individual's academic promise in the light of some cultural bias in grading or testing procedures. To the extent that race and ethnic background were considered only to the extent of curing established inaccuracies in predicting academic performance, it might be argued that there is no "preference" at all. Nothing in this record, however, suggests either that any of the quantitative factors considered by the Medical School were culturally biased, or that petitioner's special admissions program was formulated to correct for any such biases. Furthermore, if race or ethnic background were used solely to arrive at an unbiased prediction of academic success, the reservation of fixed numbers of seats would be inexplicable. [ Footnote 44 ] MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN misconceive the scope of this Court's holdings under Title VII when they suggest that "disparate impact" alone is sufficient to establish a violation of that statute and, by analogy, other civil rights measures. See post at 438 U. S. 363 -366, and n. 42. That this was not the meaning of Title VII was made quite clear in the seminal decision in this area, Griggs v. Duke Power Co., 401 U. S. 424 (1971): " Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification." Id. at 401 U. S. 431 (emphasis added). Thus, disparate impact is a basis for relief under Title VII only if the practice in question is not founded on "business necessity," ibid., or lacks "a manifest relationship to the employment in question," id. at 401 U. S. 432 . See also McDonnell Douglas Corp. v. Green, 411 U. S. 792 , 411 U. S. 802 -803, 411 U. S. 805 -806 (1973). Nothing in this record -- as opposed to some of the general literature cited by MR. JUSTICE BRENNAN, MR JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN -- even remotely suggests that the disparate impact of the general admissions program at Davis Medical School, resulting primarily from the sort of disparate test scores and grades set forth in n 7, supra, is without educational justification. Moreover, the presumption in Griggs -- that disparate impact without any showing of business justification established the existence of discrimination in violation of the statute -- was based on legislative determinations, wholly absent here, that past discrimination had handicapped various minority groups to such an extent that disparate impact could be traced to identifiable instances of past discrimination: "[Congress sought] to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory employment practices." Griggs, supra at 401 U. S. 429 -430. See, e.g., H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 2, p. 26 (1963) ("Testimony supporting the fact of discrimination in employment is overwhelming"). See generally Vaas, Title VII: The Legislative History, 7 B. C. Ind. & Com.L.Rev. 431 (1966). The Court emphasized that "the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group." 401 U.S. at 401 U. S. 430 -431. Indeed, § 703(j) of the Act makes it clear that preferential treatment for an individual or minority group to correct an existing "imbalance" may not be required under Title VII. 42 U.S.C. § 2000e-2(j). Thus, Title VII principles support the proposition that findings of identified discrimination must precede the fashioning of remedial measures embodying racial classifications. [ Footnote 45 ] For example, the University is unable to explain its selection of only the four favored groups -- Negroes, Mexican-Americans, American Indians, and Asians -- for preferential treatment. The inclusion of the last group is especially curious in light of the substantial numbers of Asians admitted through the regular admissions process. See also n 37, supra. [ Footnote 46 ] The only evidence in the record with respect to such underservice is a newspaper article. Record 473. [ Footnote 47 ] It is not clear that petitioner's two-track system, even if adopted throughout the country, would substantially increase representation of blacks in the medical profession. That is the finding of a recent study by Sleeth & Mishell, Black Under-Representation in United States Medical Schools, 297 New England J. of Med. 1146 (1977). Those authors maintain that the cause of black underrepresentation lies in the small size of the national pool of qualified black applicants. In their view, this problem is traceable to the poor premedical experiences of black undergraduates, and can be remedied effectively only by developing remedial programs for black students before they enter college. [ Footnote 48 ] The president of Princeton University has described some of the benefits derived from a diverse student body: "[A] great deal of learning occurs informally. It occurs through interactions among students of both sexes; of different races, religions, and backgrounds; who come from cities and rural areas, from various states and countries; who have a wide variety of interests, talents, and perspectives; and who are able, directly or indirectly, to learn from their differences and to stimulate one another to reexamine even their most deeply held assumptions about themselves and their world. As a wise graduate of ours observed in commenting on this aspect of the educational process, 'People do not learn very much when they are surrounded only by the likes of themselves.'" " * * * *" "In the nature of things, it is hard to know how, and when, and even if, this informal 'learning through diversity' actually occurs. It does not occur for everyone. For many, however, the unplanned, casual encounters with roommates, fellow sufferers in an organic chemistry class, student workers in the library, teammates on a basketball squad, or other participants in class affairs or student government can be subtle and yet powerful sources of improved understanding and personal growth." Bowen, Admissions and the Relevance of Race, Princeton Alumni Weekly 7, 9 (Sept. 26, 1977). [ Footnote 49 ] Graduate admissions decisions, like those at the undergraduate level, are concerned with "assessing the potential contributions to the society of each individual candidate following his or her graduation -- contributions defined in the broadest way to include the doctor and the poet, the most active participant in business or government affairs and the keenest critic of all things organized, the solitary scholar and the concerned parent." Id. at 10. [ Footnote 50 ] See Manning, The Pursuit of Fairness in Admissions to Higher Education, in Carnegie Council on Policy Studies in Higher Education, Selective Admission in Higher Education 19, 57-59 (1977). [ Footnote 51 ] The admissions program at Princeton has been described in similar terms: "While race is not, in and of itself, a consideration in determining basic qualifications, and while there are obviously significant differences in background and experience among applicants of every race, in some situations, race can be helpful information in enabling the admission officer to understand more fully what a particular candidate has accomplished -- and against what odds. Similarly, such factors as family circumstances and previous educational opportunities may be relevant, either in conjunction with race or ethnic background (with which they may be associated) or on their own." Bowen, supra, n 48, at 8-9. For an illuminating discussion of such flexible admissions systems, see Manning, supra, n 50, at 57-59. [ Footnote 52 ] The denial to respondent of this right to individualized consideration without regard to his race is the principal evil of petitioner' special admissions program. Nowhere in the opinion of MR. JUSTICE BRENNAN, MR JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR JUSTICE BLACKMUN is this denial even addressed. [ Footnote 53 ] Universities, like the prosecutor in Swain, may make individualized decisions, in which ethnic background plays a part, under a presumption of legality and legitimate educational purpose. So long as the university proceeds on an individualized, case-by-case basis, there is no warrant for judicial interference in the academic process. If an applicant can establish that the institution does not adhere to a policy of individual comparisons, or can show that a systematic exclusion of certain groups results, the presumption of legality might be overcome, creating the necessity of proving legitimate educational purpose. There also are strong policy reasons that correspond to the constitutional distinction between petitioner's preference program and one that assures a measure of competition among all applicants. Petitioner's program will be viewed as inherently unfair by the public generally, as well as by applicants for admission to state universities. Fairness in individual competition for opportunities, especially those provided by the State, is a widely cherished American ethic. Indeed, in a broader sense, an underlying assumption of the rule of law is the worthiness of a system of justice based on fairness to the individual. As Mr. Justice Frankfurter declared in another connection, "[j]ustice must satisfy the appearance of justice." Offutt v. United States, 348 U. S. 11 , 348 U. S. 14 (1954). [ Footnote 54 ] There is no occasion for remanding the case to permit petitioner to reconstruct what might have happened if it had been operating the type of program described as legitimate in 438 U. S. supra. Cf. Mt. Healthy City Board of Ed. v. Doyle, 429 U. S. 274 , 429 U. S. 284 -287 (1977). In Mt. Healthy, there was considerable doubt whether protected First Amendment activity had been the "but for" cause of Doyle's protested discharge. Here, in contrast, there is no question as to the sole reason for respondent's rejection -- purposeful racial discrimination in the form of the special admissions program. Having injured respondent solely on the basis of an unlawful classification, petitioner cannot now hypothesize that it might have employed lawful means of achieving the same result. See Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. at 429 U. S. 265 -266. No one can say how -- or even if -- petitioner would have operated its admissions process if it had known that legitimate alternatives were available. Nor is there a record revealing that legitimate alternative grounds for the decision existed, as there was in Mt. Healthy. In sum, a remand would result in fictitious recasting of past conduct. [ Footnote 55 ] This statement appears in the Appendix to the Brief for Columbia University, Harvard University, Stanford University, and the University of Pennsylvania, as Amici Curiae. Opinion of MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR, JUSTICE BLACKMUN, concurring in the judgment in part and dissenting in part. The Court today, in reversing in part the judgment of the Supreme Court of California, affirms the constitutional power of Federal and State Governments to act affirmatively to achieve equal opportunity for all. The difficulty of the issue presented -- whether government may use race-conscious programs to redress the continuing effects of past discrimination -- Page 438 U. S. 325 and the mature consideration which each of our Brethren has brought to it have resulted in many opinions, no single one speaking for the Court. But this should not and must not mask the central meaning of today's opinions: Government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice, at least when appropriate findings have been made by judicial, legislative, or administrative bodies with competence to act in this area. THE CHIEF JUSTICE and our Brothers STEWART, REHNQUIST, and STEVENS, have concluded that Title VI of the Civil Rights Act of 1964, 78 Stat. 252, as amended, 42 U.S.C. § 2000d et seq., prohibits programs such as that at the Davis Medical School. On this statutory theory alone, they would hold that respondent Allan Bakke's rights have been violated, and that he must, therefore, be admitted to the Medical School. Our Brother POWELL, reaching the Constitution, concludes that, although race may be taken into account in university admissions, the particular special admissions program used by petitioner, which resulted in the exclusion of respondent Bakke, was not shown to be necessary to achieve petitioner's stated goals. Accordingly, these Members of the Court form a majority of five affirming the judgment of the Supreme Court of California insofar as it holds that respondent Bakke "is entitled to an order that he be admitted to the University." 18 Cal. 3d 34 , 64, 553 P.2d 1152, 1172 (1976). We agree with MR. JUSTICE POWELL that, as applied to the case before us, Title VI goes no further in prohibiting the use of race than the Equal Protection Clause of the Fourteenth Amendment itself. We also agree that the effect of the California Supreme Court's affirmance of the judgment of the Superior Court of California would be to prohibit the University from establishing in the future affirmative action programs that take race into account. See ante at 438 U. S. 271 n. Since we conclude that the affirmative admissions program at the Davis Page 438 U. S. 326 Medical School is constitutional, we would reverse the judgment below in all respects. MR. JUSTICE POWELL agrees that some uses of race in university admissions are permissible and, therefore, he joins with us to make five votes reversing the judgment below insofar as it prohibits the University from establishing race-conscious programs in the future. [ Footnote 2/1 ] I Our Nation was founded on the principle that "all Men are created equal." Yet candor requires acknowledgment that the Framers of our Constitution, to forge the 13 Colonies into one Nation, openly compromised this principle of equality with its antithesis: slavery. The consequences of this compromise are well known, and have aptly been called our "American Dilemma." Still, it is well to recount how recent the time has ben, if it has yet come, when the promise of our principles has flowered into the actuality of equal opportunity for all regardless of race or color. The Fourteenth Amendment, the embodiment in the Constitution of our abiding belief in human equality, has been the law of our land for only slightly more than half its 200 years. And for half of that half, the Equal Protection Clause of the Amendment was largely moribund, so that, as late as 1927, Mr. Justice Holmes could sum up the importance of that Clause by remarking that it was the "last resort of constitutional arguments." Buck v. Bell, 274 U. S. 200 , 274 U. S. 208 (1927). Worse than desuetude, the Clause was early turned against those whom it was intended to set free, condemning them to a "separate but equal" [ Footnote 2/2 ] status before the law, a status Page 438 U. S. 327 always separate but seldom equal. Not until 1954 -- only 24 years ago -- was this odious doctrine interred by our decision in Brown v. Board of Education, 347 U. S. 483 ( Brown I ), and its progeny, [ Footnote 2/3 ] which proclaimed that separate schools and public facilities of all sorts were inherently unequal and forbidden under our Constitution. Even then, inequality was not eliminated with "all deliberate speed." Brown v. Board of Education, 349 U. S. 294 , 349 U. S. 301 (1955). In 1968 [ Footnote 2/4 ] and again in 1971, [ Footnote 2/5 ] for example, we were forced to remind school boards of their obligation to eliminate racial discrimination root and branch. And a glance at our docket [ Footnote 2/6 ] and at dockets of lower courts will show that, even today, officially sanctioned discrimination is not a thing of the past. Against this background, claims that law must be "colorblind" or that the datum of race is no longer relevant to public policy must be seen as aspiration, rather than as description of reality. This is not to denigrate aspiration; for reality rebukes us that race has too often been used by those who would stigmatize and oppress minorities. Yet we cannot -- and, as we shall demonstrate, need not under our Constitution or Title VI, which merely extends the constraints of the Fourteenth Amendment to private parties who receive federal funds -- let color blindness become myopia which masks the reality that many "created equal" have been treated within our lifetimes as inferior both by the law and by their fellow citizens. Page 438 U. S. 328 II The threshold question we must decide is whether Title VI of the Civil Rights Act of 1964 bars recipients of federal funds from giving preferential consideration to disadvantaged members of racial minorities as part of a program designed to enable such individuals to surmount the obstacles imposed by racial discrimination. [ Footnote 2/7 ] We join Parts I and V-C of our Brother POWELL's opinion, and three of us agree with his conclusion in Part II that this case does not require us to resolve the question whether there is a private right of action under Title VI. [ Footnote 2/8 ] In our view, Title VI prohibits only those uses of racial criteria that would violate the Fourteenth Amendment if employed by a State or its agencies; it does not bar the preferential treatment of racial minorities as a means of remedying past societal discrimination to the extent that such action is consistent with the Fourteenth Amendment. The legislative history of Title VI, administrative regulations interpreting the statute, subsequent congressional and executive action, and the prior decisions of this Court compel this conclusion. None of these sources lends support to the proposition that Congress intended to bar all race-conscious efforts to extend the benefits of federally financed programs to minorities who have been historically excluded from the full benefits of American life. A The history of Title VI -- from President Kennedy's request that Congress grant executive departments and agencies authority Page 438 U. S. 329 to cut off federal funds to programs that discriminate against Negroes through final enactment of legislation incorporating his proposals -- reveals one fixed purpose: to give the Executive Branch of Government clear authority to terminate federal funding of private programs that use race as a means of disadvantaging minorities in a manner that would be prohibited by the Constitution if engaged in by government. This purpose was first expressed in President Kennedy's June 19, 1963, message to Congress proposing the legislation that subsequently became the Civil Rights Act of 1964. [ Footnote 2/9 ] Page 438 U. S. 330 Representative Celler, the Chairman of the House Judiciary Committee, and the floor manager of the legislation in the House, introduced Title VI in words unequivocally expressing the intent to provide the Federal Government with the means of assuring that its funds were not used to subsidize racial discrimination inconsistent with the standards imposed by the Fourteenth and Fifth Amendments upon state and federal action. "The bill would offer assurance that hospitals financed by Federal money would not deny adequate care to Negroes. It would prevent abuse of food distribution programs whereby Negroes have been known to be denied food surplus supplies when white persons were given such food. It would assure Negroes the benefits now accorded only white students in programs of high[er] education financed by Federal funds. It would, in short, assure the existing right to equal treatment in the enjoyment of Federal funds. It would not destroy any rights of private property or freedom of association." 110 Cong.Rec. 1519 (1964). It was clear to Representative Celler that Title VI, apart from the fact that it reached all federally funded activities even in the absence of sufficient state or federal control to invoke the Fourteenth or Fifth Amendments, was not placing new substantive limitations upon the use of racial criteria, but rather was designed to extend to such activities "the existing right to equal treatment" enjoyed by Negroes under those Amendments, and he later specifically defined the purpose of Title VI in this way: "In general, it seems rather anomalous that the Federal Government should aid and abet discrimination on the basis of race, color, or national origin by granting money Page 438 U. S. 331 and other kinds of financial aid. It seems rather shocking, moreover, that, while we have on the one hand the 14th Amendment, which is supposed to do away with discrimination, since it provides for equal protection of the laws, on the other hand, we have the Federal Government aiding and abetting those who persist in practicing racial discrimination." "It is for these reasons that we bring forth title VI. The enactment of title VI will serve to override specific provisions of law which contemplate Federal assistance to racially segregated institutions." Id. at 2467. Representative Celler also filed a memorandum setting forth the legal basis for the enactment of Title VI which reiterated the theme of his oral remarks: "In exercising its authority to fix the terms on which Federal funds will be disbursed . . . . Congress clearly has power to legislate so as to insure that the Federal Government does not become involved in a violation of the Constitution." Id. at 1528. Other sponsors of the legislation agreed with Representative Celler that the function of Title VI was to end the Federal Government's complicity in conduct, particularly the segregation or exclusion of Negroes, inconsistent with the standards to be found in the antidiscrimination provisions of the Constitution. Representative Lindsay, also a member of the Judiciary Committee, candidly acknowledged, in the course of explaining why Title VI was necessary, that it did not create any new standard of equal treatment beyond that contained in the Constitution: "Both the Federal Government and the States are under constitutional mandates not to discriminate. Many have raised the question as to whether legislation is required at all. Does not the Executive already have the power in the distribution of Federal funds to apply those conditions which will enable the Federal Government itself to live up to the mandate of the Constitution and to require Page 438 U. S. 332 States and local government entities to live up to the Constitution, most especially the 5th and 14th amendments?" Id. at 2467. He then explained that legislation was needed to authorize the termination of funding by the Executive Branch because existing legislation seemed to contemplate the expenditure of funds to support racially segregated institutions. Ibid. The views of Representatives Celler and Lindsay concerning the purpose and function of Title VI were shared by other sponsors and proponents of the legislation in the House. [ Footnote 2/10 ] Nowhere is there any suggestion that Title VI was intended to terminate federal funding for any reason other than consideration of race or national origin by the recipient institution in a manner inconsistent with the standards incorporated in the Constitution. The Senate's consideration of Title VI reveals an identical understanding concerning the purpose and scope of the legislation. Senator Humphrey, the Senate floor manager, opened the Senate debate with a section-by-section analysis of the Civil Rights Act in which he succinctly stated the purpose of Title VI: "The purpose of title VI is to make sure that funds of the United States are not used to support racial discrimination. In many instances, the practices of segregation or discrimination, which title VI seeks to end, are unconstitutional. This is clearly so wherever Federal funds go to a State agency which engages in racial discrimination. It may also be so where Federal funds go to support private, segregated institutions, under the decision in Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (C.A. 4, 1963), [ cert. denied, 376 U.S. 938 (1964)]. In all cases, such discrimination is contrary to national policy, and to the moral sense of the Nation. Thus, title VI is simply Page 438 U. S. 333 designed to insure that Federal funds are spent in accordance with the Constitution and the moral sense of the Nation." Id. at 6544. Senator Humphrey, in words echoing statements in the House, explained that legislation was needed to accomplish this objective because it was necessary to eliminate uncertainty concerning the power of federal agencies to terminate financial assistance to programs engaging in racial discrimination in the face of various federal statutes which appeared to authorize grants to racially segregated institutions. Ibid. Although Senator Humphrey realized that Title VI reached conduct which, because of insufficient governmental action, might be beyond the reach of the Constitution, it was clear to him that the substantive standard imposed by the statute was that of the Fifth and Fourteenth Amendments. Senate supporters of Title VI repeatedly expressed agreement with Senator Humphrey's description of the legislation as providing the explicit authority and obligation to apply the standards of the Constitution to all recipients of federal funds. Senator Ribicoff described the limited function of Title VI: "Basically, there is a constitutional restriction against discrimination in the use of Federal funds; and title VI simply spells out the procedure to be used in enforcing that restriction." Id. at 13333. Other strong proponents of the legislation in the Senate repeatedly expressed their intent to assure that federal funds would only be spent in accordance with constitutional standards. See remarks of Senator Pastore, id. at 7057, 7062; Senator Clark, id. at 5243; Senator Allott, id. at 12675, 12677. [ Footnote 2/11 ] Page 438 U. S. 334 Respondent's contention that Congress intended Title VI to bar affirmative action programs designed to enable minorities disadvantaged by the effects of discrimination to participate in federally financed programs is also refuted by an examination of the type of conduct which Congress thought it was prohibiting by means of Title VI. The debates reveal that the legislation was motivated primarily by a desire to eradicate a very specific evil: federal financial support of programs which disadvantaged Negroes by excluding them from participation or providing them with separate facilities. Again and again supporters of Title VI emphasized that the purpose of the statute was to end segregation in federally funded activities and to end other discriminatory uses of race disadvantaging Negroes. Senator Humphrey set the theme in his speech presenting Title VI to the Senate: "Large sums of money are contributed by the United States each year for the construction, operation, and maintenance of segregated schools." " * * * *" "Similarly, under the Hill-Burton Act, Federal grants are made to hospitals which admit whites only or Negroes only. . . ." "In higher education also, a substantial part of the Federal grants to colleges, medical schools and so forth, in the South is still going to segregated institutions. " Page 438 U. S. 335 "Nor is this all. In several States, agricultural extension services, supported by Federal funds, maintain racially segregated offices for Negroes and whites. . . ." ". . . Vocational training courses, supported with Federal funds, are given in segregated schools and institutions and often limit Negroes to training in less skilled occupations. In particular localities it is reported that Negroes have been cut off from relief rolls, or denied surplus agricultural commodities, or otherwise deprived of the benefit of federally assisted programs, in retaliation for their participation in voter registration drives, sit-in demonstrations and the like." Id. at 6543-6544. See also the remarks of Senator Pastore ( id. at 7054-7055); Senator Ribicoff ( id. at 7064-7065); Senator Clark ( id. at 5243, 9086); Senator Javits ( id. at 6050, 7102). [ Footnote 2/12 ] The conclusion to be drawn from the foregoing is clear. Congress recognized that Negroes, in some cases with congressional acquiescence, were being discriminated against in the administration of programs and denied the full benefits of activities receiving federal financial support. It was aware that there were many federally funded programs and institutions which discriminated against minorities in a manner inconsistent with the standards of the Fifth and Fourteenth Amendments, but whose activities might not involve sufficient state or federal action so as to be in violation of these Amendments. Moreover, Congress believed that it was questionable whether the Executive Branch possessed legal authority to terminate the funding of activities on the ground that they discriminated racially against Negroes in a manner violative of the standards contained in the Fourteenth and Fifth Page 438 U. S. 336 Amendments. Congress' solution was to end the Government's complicity in constitutionally forbidden racial discrimination by providing the Executive Branch with the authority and the obligation to terminate its financial support of any activity which employed racial criteria in a manner condemned by the Constitution. Of course, it might be argued that the Congress which enacted Title VI understood the Constitution to require strict racial neutrality or color blindness, and then enshrined that concept as a rule of statutory law. Later interpretation and clarification of the Constitution to permit remedial use of race would then not dislodge Title VI's prohibition of race-conscious action. But there are three compelling reasons to reject such a hypothesis. First, no decision of this Court has ever adopted the proposition that the Constitution must be colorblind. See infra at 438 U. S. 355 -356. Second, even if it could be argued in 1964 that the Constitution might conceivably require color blindness, Congress surely would not have chosen to codify such a view unless the Constitution clearly required it. The legislative history of Title VI, as well as the statute itself, reveals a desire to induce voluntary compliance with the requirement of nondiscriminatory treatment. [ Footnote 2/13 ] See § 602 of the Act, 42 U.S.C. § 2000d-1 (no funds shall be terminated unless and until it has been "determined that compliance cannot be secured by voluntary means"); H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 1, p. 25 (1963); 110 Cong Rec. 13700 (1964) (Sen. Pastore); id. at 6546 (Sen. Humphrey). It is inconceivable that Congress intended to encourage voluntary efforts to eliminate the evil of racial discrimination while at the same time forbidding the voluntary use of race-conscious remedies to cure acknowledged or obvious statutory violations. Yet a reading of Title VI as prohibiting all action predicated upon race which adversely Page 438 U. S. 337 affects any individual would require recipients guilty of discrimination to await the imposition of such remedies by the Executive Branch. Indeed, such an interpretation of Title VI would prevent recipients of federal funds from taking race into account even when necessary to bring their programs into compliance with federal constitutional requirements. This would be a remarkable reading of a statute designed to eliminate constitutional violations, especially in light of judicial decisions holding that, under certain circumstances, the remedial use of racial criteria is not only permissible, but is constitutionally required to eradicate constitutional violations. For example, in Board of Education v. Swann, 402 U. S. 43 (1971), the Court held that a statute forbidding the assignment of students on the basis of race was unconstitutional because it would hinder the implementation of remedies necessary to accomplish the desegregation of a school system: "Just as the race of students must be considered in determining whether a constitutional violation has occurred, so also must race be considered in formulating a remedy." Id. at 402 U. S. 46 . Surely Congress did not intend to prohibit the use of racial criteria when constitutionally required or to terminate the funding of any entity which implemented such a remedy. It clearly desired to encourage all remedies, including the use of race, necessary to eliminate racial discrimination in violation of the Constitution, rather than requiring the recipient to await a judicial adjudication of unconstitutionality and the judicial imposition of a racially oriented remedy. Third, the legislative history shows that Congress specifically eschewed any static definition of discrimination in favor of broad language that could be shaped by experience, administrative necessity, and evolving judicial doctrine. Although it is clear from the debates that the supporters of Title VI intended to ban uses of race prohibited by the Constitution and, more specifically, the maintenance of segregated Page 438 U. S. 338 facilities, they never precisely defined the term "discrimination," or what constituted an exclusion from participation or a denial of benefits on the ground of race. This failure was not lost upon its opponents. Senator Ervin complained: "The word 'discrimination,' as used in this reference, has no contextual explanation whatever, other than the provision that the discrimination 'is to be against' individuals participating in or benefiting from federally assisted programs and activities on the ground specified. With this context, the discrimination condemned by this reference occurs only when an individual is treated unequally or unfairly because of his race, color, religion, or national origin. What constitutes unequal or unfair treatment? Section 601 and section 602 of title VI do not say. They leave the determination of that question to the executive department or agencies administering each program, without any guideline whatever to point out what is the congressional intent." 110 Cong.Rec. 5612 (1964). See also remarks of Representative Abernethy ( id. at 1619); Representative Dowdy ( id. at 1632); Senator Talmadge ( id. at 5251); Senator Sparkman ( id. at 6052). Despite these criticisms, the legislation's supporters refused to include in the statute or even provide in debate a more explicit definition of what Title VI prohibited. The explanation for this failure is clear. Specific definitions were undesirable, in the views of the legislation's principal backers, because Title VI's standard was that of the Constitution, and one that could and should be administratively and judicially applied. See remarks of Senator Humphrey ( id. at 5253, 6553); Senator Ribicoff ( id. at 7057, 13333); Senator Pastore ( id. at 7057); Senator Javits ( id. at 5606-5607, 6050). [ Footnote 2/14 ] Indeed, there was a strong emphasis throughout Page 438 U. S. 339 Congress' consideration of Title VI on providing the Executive Branch with considerable flexibility in interpreting and applying the prohibition against racial discrimination. Attorney General Robert Kennedy testified that regulations had not been written into the legislation itself because the rules and regulations defining discrimination might differ from one program to another, so that the term would assume different meanings in different contexts. [ Footnote 2/15 ] This determination to preserve flexibility in the administration of Title VI was shared by the legislation's supporters. When Senator Johnston offered an amendment that would have expressly authorized federal grantees to take race into account in placing children in adoptive and foster homes, Senator Pastore opposed the amendment, which was ultimately defeated by a 56-29 vote, on the ground that federal administrators could be trusted to act reasonably, and that there was no danger that they would prohibit the use of racial criteria under such circumstances. Id. at 13695. Congress' resolve not to incorporate a static definition of discrimination into Title VI is not surprising. In 1963 and 1964, when Title VI was drafted and debated, the courts had only recently applied the Equal Protection Clause to strike down public racial discrimination in America, and the scope of that Clause's nondiscrimination principle was in a state of flux and rapid evolution. Many questions, such as whether the Fourteenth Amendment barred only de jure discrimination or, in at least some circumstances, reached de facto discrimination, had not yet received an authoritative judicial resolution. The congressional debate reflects an awareness of the evolutionary Page 438 U. S. 340 change that constitutional law in the area of racial discrimination was undergoing in 1964. [ Footnote 2/16 ] In sum, Congress' equating of Title VI's prohibition with the commands of the Fifth and Fourteenth Amendments, its refusal precisely to define that racial discrimination which it intended to prohibit, and its expectation that the statute would be administered in a flexible manner, compel the conclusion that Congress intended the meaning of the statute's prohibition to evolve with the interpretation of the commands of the Constitution. Thus, any claim that the use of racial criteria is barred by the plain language of the statute must fail in light of the remedial purpose of Title VI and its legislative history. The cryptic nature of the language employed in Title VI merely reflects Congress' concern with the then-prevalent use of racial standards as a means of excluding or disadvantaging Negroes and its determination to prohibit absolutely such discrimination. We have recently held that, ""[w]hen aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no rule of law' which forbids its use, however clear the words may appear on `superficial examination.'"" Train v. Colorado Public Interest Research Group, 426 U. S. 1 , 426 U. S. 10 (1976), quoting United States v. American Trucking Assns., 310 U. S. 534 , 310 U. S. 544 -544 (1940). This is especially so when, as is the case here, the literal application of what is believed to be the plain language of the statute, assuming that it is so plain, would lead to results in direct conflict with Congress' unequivocally expressed legislative purpose. [ Footnote 2/17 ] Page 438 U. S. 341 B Section 602 of Title VI, 42 U.S.C. § 2000d-1, instructs federal agencies to promulgate regulations interpreting Title Page 438 U. S. 342 VI. These regulations, which, under the terms of the statute, require Presidential approval, are entitled to considerable deference in construing Title VI. See, e.g., 414 U. S. Nichols, Page 438 U. S. 343 414 U. S. 563 (1974); Mourning v. Family Publications Service, Inc., 411 U. S. 356 , 411 U. S. 369 (1973); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 , 395 U. S. 381 (1969). Consequently, it is most significant that the Department of Health, Education, and Welfare (HEW), which provides much of the federal assistance to institutions of higher education, has adopted regulations requiring affirmative measures designed to enable racial minorities which have been previously discriminated against by a federally funded institution or program to overcome the effects of such actions and authorizing the voluntary undertaking of affirmative action programs by federally funded institutions that have not been guilty of prior discrimination in order to overcome the effects of conditions which have adversely affected the degree of participation by persons of a particular race. Title 45 FR § 80.3(b)(6)(i) (1977) provides: "In administering a program regarding which the recipient has previously discriminated against persons on the ground of race, color, or national origin, the recipient must take affirmative action to overcome the effects of prior discrimination." Title 45 CFR § 80.5(i) (1977) elaborates upon this requirement: "In some situations, even though past discriminatory practices attributable to a recipient or applicant have been abandoned, the consequences of such practices continue to impede the full availability of a benefit. If the efforts required of the applicant or recipient under § 80.6(d), to provide information as to the availability of the program or activity and the rights of beneficiaries under this regulation, have failed to overcome these consequences, it will become necessary under the requirement stated in (i) of § 80.3(b)(6) for such applicant or recipient to take additional steps to make the benefits Page 438 U. S. 344 fully available to racial and nationality groups previously subject to discrimination. This action might take the form, for example, of special arrangements for obtaining referrals or making selections which will insure that groups previously subjected to discrimination are adequately served." These regulations clearly establish that, where there is a need to overcome the effects of past racially discriminatory or exclusionary practices engaged in by a federally funded institution, race-conscious action is not only permitted, but required, to accomplish the remedial objectives of Title VI. [ Footnote 2/18 ] Of course, there is no evidence that the Medical School has been guilty of past discrimination, and consequently these regulations would not compel it to employ a program of preferential admissions in behalf of racial minorities. It would be difficult to explain from the language of Title I, however, much less from its legislative history, why the statute compels race-conscious remedies where a recipient institution has engaged in past discrimination, but prohibits such remedial action where racial minorities, as a result of the effects of past discrimination imposed by entities other than the recipient, are excluded from the benefits of federally funded programs. HEW was fully aware of the incongruous nature of such an interpretation of Title VI. Title 45 CFR § 80.3(b)(6)(ii) (1977) provides: "Even in the absence of such prior discrimination, a recipient, in administering a program, may take affirmative action to overcome the effects of conditions which resulted Page 438 U. S. 345 in limiting participation by persons of a particular race, color, or national origin." An explanatory regulation explicitly states that the affirmative action which § 80.3(b)(6)(ii) contemplates includes the use of racial preferences: "Even though an applicant or recipient has never used discriminatory policies, the services and benefits of the program or activity it administers may not, in fact, be equally available to some racial or nationality groups. I n such circumstances, an applicant or recipient may properly give special consideration to race, color, or national origin to make the benefits of its program more widely available to such groups, not then being adequately served. For example, where a university is not adequately serving members of a particular racial or nationality group, it may establish special recruitment policies to make its program better known and more readily available to such group, and take other steps to provide that group with more adequate service." 45 CFR § 80.5(j) (1977) This interpretation of Title VI is fully consistent with the statute's emphasis upon voluntary remedial action and reflects the views of an agency [ Footnote 2/19 ] responsible for achieving its objectives. [ Footnote 2/20 ] Page 438 U. S. 346 The Court has recognized that the construction of a statute by those charged with its execution is particularly deserving of respect where Congress has directed its attention to the administrative construction and left it unaltered. Cf. Red Lion Broadcasting Co. v. FCC, 395 U.S. at 395 U. S. 381 ; Zemel v. Rusk, 381 U. S. 1 , 381 U. S. 11 -12 (1965). Congress recently took just this kind of action when it considered an amendment to the Departments of Labor and Health, Education, and Welfare appropriation bill for 1978, which would have restricted significantly the remedial use of race in programs funded by the appropriation. The amendment, as originally submitted by Representative Ashbrook, provided that "[n]one of the funds appropriated in this Act may be used to initiate, carry out or enforce any program of affirmative action or any other system of quotas or goals in regard to admission policies or employment practices which encourage or require any discrimination on the basis of race, creed, religion, sex or age." 123 Cong.Rec. Page 438 U. S. 347 19715 (1977). In support of the measure, Representative Ashbrook argued that the 1964 Civil Rights Act never authorized the imposition of affirmative action, and that this was a creation of the bureaucracy. Id. at 19722. He explicitly stated, however, that he favored permitting universities to adopt affirmative action programs giving consideration to racial identity, but opposed the imposition of such programs by the Government. Id. at 19715. His amendment was itself amended to reflect this position by only barring the imposition of race-conscious remedies by HEW: "None of the funds appropriated in this Act may be obligated or expended in connection with the issuance, implementation, or enforcement of any rule, regulation, standard, guideline, recommendation, or order issued by the Secretary of Health, Education, and Welfare which for purposes of compliance with any ratio, quota, or other numerical requirement related to race, creed, color, national origin, or sex requires any individual or entity to take any action with respect to (1) the hiring or promotion policies or practices of such individual or entity, or (2) the admissions policies or practices of such individual or entity." Id. at 19722. This amendment was adopted by the House. Ibid. The Senate bill, however, contained no such restriction upon HEW's authority to impose race-conscious remedies, and the Conference Committee, upon the urging of the Secretary of HEW, deleted the House provision from the bill. [ Footnote 2/21 ] More significant for present purposes, however, is the fact that even the proponents of imposing limitations upon HEW's implementation of Title VI did not challenge the right of federally funded educational institutions voluntarily to extend preferences to racial minorities. Page 438 U. S. 348 Finally, congressional action subsequent to the passage of Title VI eliminates any possible doubt about Congress' views concerning the permissibility of racial preferences for the purpose of assisting disadvantaged racial minorities. It confirms that Congress did not intend to prohibit, and does not now believe that Title VI prohibits, the consideration of race as part of a remedy for societal discrimination even where there is no showing that the institution extending the preference has been guilty of past discrimination nor any judicial finding that the particular beneficiaries of the racial preference have been adversely affected by societal discrimination. Just last year, Congress enacted legislation [ Footnote 2/22 ] explicitly requiring that no grants shall be made "for any local public works project unless the applicant gives satisfactory assurance to the Secretary [of Commerce] that at least 10 per centum of the amount of each grant shall be expended for minority business enterprises." The statute defines the term "minority business enterprise" as "a business, at least 50 per centum of which is owned by minority group members or, in case of a publicly owned business, at least 51 per centum of the stock of which is owned by minority group members." The term "minority group members" is defined in explicitly racial terms: "citizens of the United States who are Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts." Although the statute contains an exemption from this requirement "to the extent that the Secretary determines otherwise," this escape clause was provided only to deal with the possibility that certain areas of the country might not contain sufficient qualified "minority business enterprises" to permit compliance with the quota provisions of the legislation. [ Footnote 2/23 ] The legislative history of this race-conscious legislation reveals that it represents a deliberate attempt to deal with Page 438 U. S. 349 the excessive rate of unemployment among minority citizens and to encourage the development of viable minority controlled enterprises. [ Footnote 2/24 ] It was believed that such a "set-aside" was required in order to enable minorities, still "new on the scene" and "relatively small," to compete with larger and more established companies which would always be successful in underbidding minority enterprises. 123 Cong.Rec. 5327 (1977) (Rep. Mitchell). What is most significant about the congressional consideration of the measure is that, although the use of a racial quota or "set-aside" by a recipient of federal funds would constitute a direct violation of Title VI if that statute were read to prohibit race-conscious action, no mention was made during the debates in either the House or the Senate of even the possibility that the quota provisions for minority contractors might in any way conflict with or modify Title VI. It is inconceivable that such a purported conflict would have escaped congressional attention through an inadvertent failure to recognize the relevance of Title VI. Indeed, the Act of which this affirmative action provision is a part also contains a provision barring discrimination on the basis of sex which states that this prohibition "will be enforced through agency provisions and rules similar to those already established, with respect to racial and other discrimination under Title VI of the Civil Rights Act of 1964." 42 U.S.C. § 6709 (1976 ed.). Thus Congress, was fully aware of the applicability of Title VI to the funding of public works projects. Under these circumstances, the enactment of the 10% "set-aside" for minority enterprises reflects a congressional judgment that the remedial use of race is permissible under Title VI. We have repeatedly recognized that subsequent legislation reflecting an interpretation of an earlier Act is entitled to great weight in determining the meaning of the earlier statute. Red Lion Broadcasting Co. v. FCC, 395 U.S. at 395 U. S. 380 -381; Page 438 U. S. 350 Erlenbaugh v. United States, 409 U. S. 239 , 409 U. S. 243 -244 (1972). See also United States v. Stewart, 311 U. S. 60 , 311 U. S. 64 -65 (1940). [ Footnote 2/25 ] C Prior decisions of this Court also strongly suggest that Title VI does not prohibit the remedial use of race where such action is constitutionally permissible. In Lau v. Nichols, 414 U. S. 563 (1974), the Court held that the failure of the San Page 438 U. S. 351 Francisco school system to provide English language instruction to students of Chinese ancestry who do not speak English, or to provide them with instruction in Chinese, constituted a violation of Title VI. The Court relied upon an HEW regulation which stipulates that a recipient of federal funds "may not . . . utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination" or have "the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin." 45 CFR § 80.3(b)(2) (1977). It interpreted this regulation as requiring San Francisco to extend the same educational benefits to Chinese-speaking students as to English-speaking students, even though there was no finding or allegation that the city's failure to do so was a result of a purposeful design to discriminate on the basis of race. Lau is significant in two related respects. First, it indicates that, in at least some circumstances, agencies responsible for the administration of Title VI may require recipients who have not been guilty of any constitutional violations to depart from a policy of color blindness and to be cognizant of the impact of their actions upon racial minorities. Secondly, Lau clearly requires that institutions receiving federal funds be accorded considerable latitude in voluntarily undertaking race-conscious action designed to remedy the exclusion of significant numbers of Page 438 U. S. 352 minorities from the benefits of federally funded programs. Although this Court has not yet considered the question, presumably, by analogy to our decisions construing Title VII, a medical school would not be in violation of Title VI under Lau because of the serious underrepresentation of racial minorities in its student body as long as it could demonstrate that its entrance requirements correlated sufficiently with the performance of minority students in medical school and the medical profession. [ Footnote 2/26 ] It would be inconsistent with Lau and the emphasis of Title VI and the HEW regulations on voluntary action, however, to require that an institution wait to be adjudicated to be in violation of the law before being permitted to voluntarily undertake corrective action based upon a good faith and reasonable belief that the failure of certain racial minorities to satisfy entrance requirements is not a measure of their ultimate performance as doctors, but a result of the lingering effects of past societal discrimination. We recognize that Lau, especially when read in light of our subsequent decision in Washington v. Davis, 46 U. S. 229 (1976), which rejected the general proposition that governmental action is unconstitutional solely because it has a racially disproportionate impact, may be read as being predicated upon the view that, at least under some circumstances, Title VI proscribes conduct which might not be prohibited by the Constitution. Since we are now of the opinion, for the reasons set forth above, that Title VI's standard, applicable alike to public and private recipients of federal funds, is no broader than the Constitution's, we have serious doubts concerning the correctness of what appears to be the premise of that decision. However, even accepting Lau's implication that impact alone is, in some contexts, sufficient to establish a prima facie violation of Title VI, contrary to our view that Title VI's definition of racial discrimination is absolutely coextensive with the Constitution's, this would not assist the respondent Page 438 U. S. 353 in the least. First, for the reasons discussed supra at 438 U. S. 336 -350, regardless of whether Title VI's prohibitions extend beyond the Constitution's, the evidence fails to establish, and, indeed, compels the rejection of, the proposition that Congress intended to prohibit recipients of federal funds from voluntarily employing race-conscious measures to eliminate the effects of past societal discrimination against racial minorities such as Negroes. Secondly, Lau itself, for the reasons set forth in the immediately preceding paragraph, strongly supports the view that voluntary race-conscious remedial action is permissible under Title VI. If discriminatory racial impact alone is enough to demonstrate at least a prima facie Title VI violation, it is difficult to believe that the Title would forbid the Medical School from attempting to correct the racially exclusionary effects of its initial admissions policy during the first two years of the School's operation. The Court has also declined to adopt a "colorblind" interpretation of other statutes containing nondiscrimination provisions similar to that contained in Title VI. We have held under Title VII that, where employment requirements have a disproportionate impact upon racial minorities, they constitute a statutory violation, even in the absence of discriminatory intent, unless the employer is able to demonstrate that the requirements are sufficiently related to the needs of the job. [ Footnote 2/27 ] More significantly, the Court has required that preferences be given by employers to members of racial minorities as a remedy for past violations of Title VII, even where there has been no finding that the employer has acted with a discriminatory intent. [ Footnote 2/28 ] Finally, we have construed the Voting Page 438 U. S. 354 Rights Act.of 1965, 42 U.S.C. § 1973 et seq. (1970 ed. and Supp. V), which contains a provision barring any voting procedure or qualification that denies or abridges "the right of Page 438 U. S. 355 any citizen of the United States to vote on account of race or color," as permitting States to voluntarily take race into account in a way that fairly represents the voting strengths of different racial groups in order to comply with the commands of the statute, even where the result is a gain for one racial group at the expense of others. [ Footnote 2/29 ] These prior decisions are indicative of the Court's unwillingness to construe remedial statutes designed to eliminate discrimination against racial minorities in a manner which would impede efforts to attain this objective. There is no justification for departing from this course in the case of Title VI and frustrating the clear judgment of Congress that race-conscious remedial action is permissible. We turn, therefore, to our analysis of the Equal Protection Clause of the Fourteenth Amendment. III A The assertion of human equality is closely associated with the proposition that differences in color or creed, birth or status, are neither significant nor relevant to the way in which persons should be treated. Nonetheless, the position that such factors must be "constitutionally an irrelevance," Edwards v. California, 314 U. S. 160 , 314 U. S. 185 (1941) (Jackson, J., concurring), summed up by the shorthand phrase " [o]ur Constitution is color-blind," Plessy v. Ferguson, 163 U. S. 537 , 163 U. S. 559 (1896) (Harlan, J., dissenting), has never been adopted by this Court as the proper meaning of the Equal Protection Clause. Indeed, Page 438 U. S. 356 we have expressly rejected this proposition on a number of occasions. Our cases have always implied that an "overriding statutory purpose," McLaughlin v. Florida, 379 U. S. 184 , 379 U. S. 192 (1984), could be found that would justify racial classifications. See, e.g., ibid.; Loving v. Virginia, 388 U. S. 1 , 388 U. S. 11 (1967); Korematsu v. United States, 323 U. S. 214 , 323 U. S. 216 (1944); Hirabayashi v. United States, 320 U. S. 81 , 320 U. S. 100 -101 (1943). More recently, in McDaniel v. Barresi, 402 U. S. 39 (1971) this Court unanimously reversed the Georgia Supreme Court which had held that a desegregation plan voluntarily adopted by a local school board, which assigned students on the basis of race, was per se invalid because it was not colorblind. And in North Carolina Board of Education v. Swann, we held, again unanimously, that a statute mandating colorblind school assignment plans could not stand "against the background of segregation," since such a limit on remedies would "render illusory the promise of Brown [I]. " 402 U.S. at 402 U. S. 45 -46. We conclude, therefore, that racial classifications are not per se invalid under the Fourteenth Amendment. Accordingly, we turn to the problem of articulating what our role should be in reviewing state action that expressly classifies by race. B Respondent argues that racial classifications are always suspect, and, consequently, that this Court should weigh the importance of the objectives served by Davis' special admissions program to see if they are compelling. In addition, he asserts that this Court must inquire whether, in its judgment, there are alternatives to racial classifications which would suit Davis' purposes. Petitioner, on the other hand, states that our proper role is simply to accept petitioner's determination that the racial classifications used by its program are reasonably related to what it tells us are its benign Page 438 U. S. 357 purposes. We reject petitioner's view, but, because our prior cases are in many respects inapposite to that before us now, we find it necessary to define with precision the meaning of that inexact term, "strict scrutiny." Unquestionably we have held that a government practice or statute which restricts "fundamental rights" or which contains "suspect classifications" is to be subjected to "strict scrutiny," and can be justified only if it furthers a compelling government purpose and, even then, only if no less restrictive alternative is available. [ Footnote 2/30 ] See, e.g., San Antonio Independent School District v. Rodriguez, 411 U. S. 1 , 411 U. S. 16 -17 (1973); Dunn v. Blumstein, 405 U. S. 330 (1972). But no fundamental right is involved here. See San Antonio, supra at 422 U. S. 29 -36. Nor do whites, as a class, have any of the "traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." Id. at 422 U. S. 28 ; see United States v. Carolene Products Co., 304 U. S. 144 , 304 U. S. 152 n. 4 (1938). [ Footnote 2/31 ] Moreover, if the University's representations are credited, this is not a case where racial classifications are "irrelevant, and therefore prohibited." Hirabayashi, supra at 320 U. S. 100 . Nor has anyone suggested that the University's purposes contravene the cardinal principle that racial classifications that stigmatize -- because they are drawn on the presumption that one race is inferior to another or because they put the weight of government Page 438 U. S. 358 behind racial hatred and separatism -- are invalid without more. See Yick Wo v. Hopkins, 118 U. S. 356 , 118 U. S. 374 (1886); [ Footnote 2/32 ] accord, Strauder v. West Virginia, 100 U. S. 303 , 100 U. S. 308 (1880); Korematsu v. United States, supra at 323 U. S. 223 ; Oyama v. California, 332 U. S. 633 , 332 U. S. 663 (1948) (Murphy, J., concurring); Brown I, 347 U. S. 483 (1954); McLaughlin v. Florida, supra, at 379 U. S. 191 -192; Loving v. Virginia, supra, at 388 U. S. 11 -12; Reitman v. Mulkey, 387 U. S. 369 , 387 U. S. 375 -376 (1967); United Jewish Organizations v. Carey, 430 U. S. 144 , 430 U. S. 165 (1977) ( UJO ) (opinion of WHITE, J., joined by REHNQUIST and STEVENS, JJ.); id. at 430 U. S. 169 (opinion concurring in part). [ Footnote 2/33 ] On the other hand, the fact that this case does not fit neatly into our prior analytic framework for race cases does not mean that it should be analyzed by applying the very loose rational basis standard of review that is the very least that is always applied in equal protection cases. [ Footnote 2/34 ] "'[T]he mere recitation of a benign, compensatory purpose is not an automatic shield Page 438 U. S. 359 which protects.against any inquiry into the actual purpose underlying a statutory scheme.'" Califano v. Webster, 430 U. S. 313 , 430 U. S. 317 (1977), quoting Weinberger v. Wiesenfeld, 420 U. S. 636 , 420 U. S. 648 (1975). Instead, a number of considerations -- developed in gender discrimination cases but which carry even more force when applied to racial classifications -- lead us to conclude that racial classifications designed to further remedial purposes " must serve important governmental objectives, and must be substantially related to achievement of those objectives.'" Califano v. Webster, supra at 430 U. S. 317 , quoting Craig v. Boren, 429 U. S. 190 , 429 U. S. 197 (1976). [ Footnote 2/35 ] Page 438 U. S. 360 First, race, like, "gender-based classifications, too often [has] been inexcusably utilized to stereotype and stigmatize politically powerless segments of society." Kahn v. Shevin, 416 U. S. 351 , 416 U. S. 357 (1974) (dissenting opinion). While a carefully tailored statute designed to remedy past discrimination could avoid these vices, see Califano v. Webster, supra; Schlesinger v. Ballard, 419 U. S. 498 (1975); Kahn v. Shevin, supra, we nonetheless have recognized that the line between honest and thoughtful appraisal of the effects of past discrimination and paternalistic stereotyping is not so clear, and that a statute based on the latter is patently capable of stigmatizing all women with a badge of inferiority. Cf. Schlesinger v. Ballard, supra at 419 U. S. 508 ; UJO, supra at 430 U. S. 174 , and n. 3 (opinion concurring in part); Califano v. Goldfarb, 430 U. S. 199 , 430 U. S. 223 (1977) (STEVENS, J., concurring in judgment). See also Stanton v. Stanton, 421 U. S. 7 , 421 U. S. 14 -15 (1975). State programs designed ostensibly to ameliorate the effects of past racial discrimination obviously create the same hazard of stigma, since they may promote racial separatism and reinforce the views of those who believe that members of racial minorities are inherently incapable of succeeding on their own. See UJO, supra at 430 U. S. 172 (opinion concurring in part); ante at 438 U. S. 298 (opinion of POWELL, J.). Second, race, like gender and illegitimacy, see Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 (1972), is an immutable characteristic which its possessors are powerless to escape or set aside. While a classification is not per se invalid because it divides classes on the basis of an immutable characteristic, see supra at 438 U. S. 355 -356, it is nevertheless true that such divisions are contrary to our deep belief that "legal burdens should bear some relationship to individual responsibility or Page 438 U. S. 361 wrongdoing," Weber, supra at 406 U. S. 175 ; Frontiero v. Richardson, 411 U. S. 677 , 411 U. S. 686 (1973) (opinion of BRENNAN, WHITE, and MARSHALL, JJ.), and that advancement sanctioned, sponsored, or approved by the State should ideally be based on individual merit or achievement, or at the least on factors within the control of an individual. See UJO, 430 U.S. at 430 U. S. 173 (opinion concurring in part); Kotch v. Board of River Port Pilot Comm'rs, 330 U. S. 552 , 330 U. S. 566 (1947) (Rutledge, J., dissenting). Because this principle is so deeply rooted, it might be supposed that it would be considered in the legislative process and weighed against the benefits of programs preferring individuals because of their race. But this is not necessarily so: the "natural consequence of our governing processes [may well be] that the most 'discrete and insular' of whites . . . will be called upon to bear the immediate, direct costs of benign discrimination." UJO, supra at 430 U. S. 174 (opinion concurring in part). Moreover, it is clear from our cases that there are limits beyond which majorities may not go when they classify on the basis of immutable characteristics. See, e.g., Weber, supra. Thus, even if the concern for individualism is weighed by the political process, that weighing cannot waive the personal rights of individuals under the Fourteenth Amendment. See Lucas v. Colorado General Assembly, 377 U. S. 713 , 377 U. S. 736 (1964). In sum, because of the significant risk that racial classifications established for ostensibly benign purposes can be misused, causing effects not unlike those created by invidious classifications, it is inappropriate to inquire only whether there is any conceivable basis that might sustain such a classification. Instead, to justify such a classification, an important and articulated purpose for its use must be shown. In addition, any statute must be stricken that stigmatizes any group or that singles out those least well represented in the political process to bear the brunt of a benign program. Thus, our review under the Fourteenth Amendment should be Page 438 U. S. 362 strict -- not " strict' in theory and fatal in fact," [ Footnote 2/36 ] because it is stigma that causes fatality -- but strict and searching nonetheless. IV Davis' articulated purpose of remedying the effects of past societal discrimination is, under our cases, sufficiently important to justify the use of race-conscious admissions programs where there is a sound basis for concluding that minority underrepresentation is substantial and chronic, and that the handicap of past discrimination is impeding access of minorities to the Medical School. A At least since Green v. County School Board, 391 U. S. 430 (1968), it has been clear that a public body which has itself been adjudged to have engaged in racial discrimination cannot bring itself into compliance with the Equal Protection Clause simply by ending its unlawful acts and adopting a neutral stance. Three years later, Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971), and its companion cases, Davis v. School Comm'rs of Mobile County, 402 U. S. 33 (1971); McDaniel v. Barresi, 402 U. S. 39 (1971); and North Carolina Board of Education v. Swann, 402 U. S. 43 (1971), reiterated that racially neutral remedies for past discrimination were inadequate where consequences of past discriminatory acts influence or control present decisions. See, e.g., Charlotte-Mecklenburg, supra at 402 U. S. 28 . And the Court further held both that courts could enter desegregation orders which assigned students and faculty by reference to race, Charlotte-Mecklenburg, supra; Davis, supra; United States v. Montgomery County Board of Ed., 395 U. S. 225 (1969), and that local school boards could voluntarily adopt desegregation Page 438 U. S. 363 plans which made express reference to race if this was necessary to remedy the effects of past discrimination. McDaniel v. Barresi, supra. Moreover, we stated that school boards, even in the absence of a judicial finding of past discrimination, could voluntarily adopt plans which assigned students with the end of creating racial pluralism by establishing fixed ratios of black and white students in each school. Charlotte-Mecklenburg, supra at 402 U. S. 16 . In each instance, the creation of unitary school systems, in which the effects of past discrimination had been "eliminated root and branch," Green, supra at 391 U. S. 438 , was recognized as a compelling social goal justifying the overt use of race. Finally, the conclusion that state educational institutions may constitutionally adopt admissions programs designed to avoid exclusion of historically disadvantaged minorities, even when such programs explicitly take race into account, finds direct support in our cases construing congressional legislation designed to overcome the present effects of past discrimination. Congress can and has outlawed actions which have a disproportionately adverse and unjustified impact upon members of racial minorities and has required or authorized race-conscious action to put individuals disadvantaged by such impact in the position they otherwise might have enjoyed. See Franks v. Bowman Transportation Co., 424 U. S. 747 (1976); Teamsters v. United States, 431 U. S. 324 (1977). Such relief does not require as a predicate proof that recipients of preferential advancement have been individually discriminated against; it is enough that each recipient is within a general class of persons likely to have been the victims of discrimination. See id. at 431 U. S. 357 -362. Nor is it an objection to such relief that preference for minorities will upset the settled expectations of nonminorities. See Franks, supra. In addition, we have held that Congress, to remove barriers to equal opportunity, can and has required employers to use test criteria that fairly reflect the qualifications of minority applicants Page 438 U. S. 364 vis-a-vis nonminority applicants, even if this means interpreting the qualifications of an applicant in light of his race. See Albemarle Paper Co. v. Moody, 422 U. S. 405 , 422 U. S. 435 (1975). [ Footnote 2/37 ] These cases cannot be distinguished simply by the presence of judicial findings of discrimination, for race-conscious remedies have been approved where such findings have not been made. McDaniel v. Barresi, supra; UJO; see Califano v. Webster, 430 U. S. 313 (1977); Schlesinger v. Ballard, 419 U. S. 498 (1975); Kahn v. Shevin, 416 U. S. 351 (1974). See also Katzenbach v. Morgan, 384 U. S. 641 (1966). Indeed, the requirement of a judicial determination of a constitutional or statutory violation as a predicate for race-conscious remedial actions would be self-defeating. Such a requirement would severely undermine efforts to achieve voluntary compliance with the requirements of law. And our society and jurisprudence have always stressed the value of voluntary efforts to further the objectives of the law. Judicial intervention is a last resort to achieve cessation of illegal conduct or the remedying of its effects, rather than a prerequisite to action. [ Footnote 2/38 ] Page 438 U. S. 365 Nor can our cases be distinguished on the ground that the entity using explicit racial classifications itself had violated § 1 of the Fourteenth Amendment or an antidiscrimination regulation, for again race-conscious remedies have been approved where this is not the case. See UJO, 430 U.S. at 430 U. S. 157 (opinion of WHITE, J., joined by BRENNAN, BLACKMUN, and STEVENS, JJ.); [ Footnote 2/39 ] id. at 430 U. S. 167 (opinion of WHITE, J., joined by REHNQUIST and STEVENS, JJ.); [ Footnote 2/40 ] cf. Califano v. Webster, supra, at 430 U. S. 317 ; Kahn v. Shevin, supra. Moreover, the presence or absence of past discrimination by universities or employers is largely irrelevant to resolving respondent's constitutional claims. The claims of those burdened by the race-conscious actions of a university or employer who has never been adjudged in violation of an antidiscrimination law are not any more or less entitled to deference than the claims of the burdened nonminority workers in Franks v. Bowman Transportation Co., supra, in which the employer had violated Title VII, for, in each case, the employees are innocent of past discrimination. And, although it might be argued that, where an employer has violated an antidiscrimination law, the expectations of nonminority workers are themselves products of discrimination and hence "tainted," see Franks, supra at 424 U. S. 776 , and therefore more easily upset, the same argument can be made with respect to respondent. If it was reasonable to conclude -- as we hold that it was -- that the failure of minorities to qualify for admission at Davis under regular procedures was due principally to the effects of past discrimination, than there is a reasonable likelihood that, but for pervasive racial discrimination, Page 438 U. S. 366 respondent would have failed to qualify for admission even in the absence of Davis' special admissions program. [ Footnote 2/41 ] Thus, our cases under Title VII of the Civil Rights Act have held that, in order to achieve minority participation in previously segregated areas of public life, Congress may require or authorize preferential treatment for those likely disadvantaged by societal racial discrimination. Such legislation has been sustained even without a requirement of findings of intentional racial discrimination by those required or authorized to accord preferential treatment, or a case-by-case determination that those to be benefited suffered from racial discrimination. These decisions compel the conclusion that States also may adopt race-conscious programs designed to overcome substantial, chronic minority underrepresentation where there is reason to believe that the evil addressed is a product of past racial discrimination. [ Footnote 2/42 ] Page 438 U. S. 367 Title VII was enacted pursuant to Congress' power under the Commerce Clause and § 5 of the Fourteenth Amendment. To he extent that Congress acted under the Commerce Clause power, it was restricted in the use of race in governmental decisionmaking by the equal protection component of the Due Process Clause of the Fifth Amendment precisely to the same extent as are the States by § 1 of the Fourteenth Amendment. [ Footnote 2/43 ] Therefore, to the extent that Title VII rests on the Commerce Clause power, our decisions such a Franks and Page 438 U. S. 368 Teamsters v. United States, 431 U. S. 324 (1977), implicitly recognize that the affirmative use of race is consistent with the equal protection component of the Fifth Amendment, and therefore with the Fourteenth Amendment. To the extent that Congress acted pursuant to § 5 of the Fourteenth Amendment, those cases impliedly recognize that Congress was empowered under that provision to accord preferential treatment to victims of past discrimination in order to overcome the effects of segregation, and we see no reason to conclude that the States cannot voluntarily accomplish under § 1 of the Fourteenth Amendment what Congress under § 5 of the Fourteenth Amendment validly may authorize or compel either the States or private persons to do. A contrary position would conflict with the traditional understanding recognizing the competence of the States to initiate measures consistent with federal policy in the absence of congressional preemption of the subject matter. Nothing whatever in the legislative history of either the Fourteenth Amendment or the Civil Rights Acts even remotely suggests that the States are foreclosed from furthering the fundamental purpose of equal opportunity to which the Amendment and these Acts are addressed. Indeed, voluntary initiatives by the States to achieve the national goal of equal opportunity have been recognized to be essential to its attainment. "To use the Fourteenth Amendment as a sword against such State power would stultify that Amendment." Railway Mail Assn. v. Corsi, 326 U. S. 88 , 326 U. S. 98 (1945) (Frankfurter, J., concurring). [ Footnote 2/44 ] We therefore Page 438 U. S. 369 conclude that Davis' goal of admitting minority students disadvantaged by the effects of past discrimination is sufficiently important to justify use of race-conscious admissions criteria. B Properly construed, therefore, our prior cases unequivocally show that a state government may adopt race-conscious programs if the purpose of such programs is to remove the disparate racial impact its actions might otherwise have, and if there is reason to believe that the disparate impact is itself the product of past discrimination, whether its own or that of society at large. There is no question that Davis' program is valid under this test. Certainly, on the basis of the undisputed factual submissions before this Court, Davis had a sound basis for believing that the problem of underrepresentation of minorities was substantial and chronic, and that the problem was attributable to handicaps imposed on minority applicants by past and present racial discrimination. Until at least 1973, the practice of medicine in this country was, in fact, if not in law, largely the prerogative of whites. [ Footnote 2/45 ] In 1950, for example, while Negroes Page 438 U. S. 370 constituted 10% of the total population, Negro physicians constituted only 2.2% of the total number of physicians. [ Footnote 2/46 ] The overwhelming majority of these, moreover, were educated in two predominantly Negro medical schools, Howard and Meharry. [ Footnote 2/47 ] By 1970, the gap between the proportion of Negroes in medicine and their proportion in the population had widened: the number of Negroes employed in medicine remained frozen at 2.2% [ Footnote 2/48 ] while the Negro population had increased to 11.1%. [ Footnote 2/49 ] The number of Negro admittees to predominantly white medical schools, moreover, had declined in absolute numbers during the years 1955 to 1964. Odegaard 19. Moreover, Davis had very good reason to believe that the national pattern of underrepresentation of minorities in medicine would be perpetuated if it retained a single admissions standard. For example, the entering classes in 1968 and 1969, the years in which such a standard was used, included only 1 Chicano and 2 Negroes out of the 50 admittees for each year. Nor is there any relief from this pattern of underrepresentation in the statistics for the regular admissions program in later years. [ Footnote 2/50 ] Davis clearly could conclude that the serious and persistent underrepresentation of minorities in medicine depicted by these statistics is the result of handicaps under which minority applicants labor as a consequence of a background of deliberate, purposeful discrimination against minorities in education Page 438 U. S. 371 and in society generally, as well as in the medical profession. From the inception of our national life, Negroes have been subjected to unique legal disabilities impairing access to equal educational opportunity. Under slavery, penal sanctions were imposed upon anyone attempting to educate Negroes. [ Footnote 2/51 ] After enactment of the Fourteenth Amendment the States continued to deny Negroes equal educational opportunity, enforcing a strict policy of segregation that itself stamped Negroes as inferior, Brown I, 347 U. S. 483 (1954), that relegated minorities to inferior educational institutions, [ Footnote 2/52 ] and that denied them intercourse in the mainstream of professional life necessary to advancement. See Sweatt v. Painter, 339 U. S. 629 (1950). Segregation was not limited to public facilities, moreover, but was enforced by criminal penalties against private action as well. Thus, as late as 1908, this Court enforced a state criminal conviction against a private college for teaching Negroes together with whites. Berea College v. Kentucky, 211 U. S. 45 . See also Plessy v. Ferguson, 163 U. S. 537 (1896). Green v. County School Board, 391 U. S. 430 (1968), gave explicit recognition to the fact that the habit of discrimination and the cultural tradition of race prejudice cultivated by centuries of legal slavery and segregation were not immediately dissipated when Brown I, supra, announced the constitutional principle that equal educational opportunity and participation in all aspects of American life could not be denied on the basis of race. Rather, massive official and private resistance prevented, and to a lesser extent still prevents, attainment of equal opportunity in education at all levels and in the professions. The generation of minority students applying to Davis Medical School since it opened in 1968 -- most of whom Page 438 U. S. 372 were born before or about the time Brown I was decided -- clearly have been victims of this discrimination. Judicial decrees recognizing discrimination in public education in California testify to the fact of widespread discrimination suffered by California-born minority applicants; [ Footnote 2/53 ] many minority group members living in California, moreover, were born and reared in school districts in Southern States segregated by law. [ Footnote 2/54 ] Since separation of schoolchildren by race "generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone," Brown I, supra at 347 U. S. 494 , the conclusion is inescapable that applicants to medical school must be few indeed who endured the effects of de jure segregation, the resistance to Brown I, or the equally debilitating pervasive private discrimination fostered by our long history of official discrimination, cf. Reitman v. Mulkey, 387 U. S. 369 (1967), and yet come to the starting line with an education equal to whites. [ Footnote 2/55 ] Moreover, we need not rest solely on our own conclusion that Davis had sound reason to believe that the effects of past discrimination were handicapping minority applicants to the Medical School, because the Department of Health, Education, and Welfare, the expert agency charged by Congress with promulgating regulations enforcing Title VI of the Civil Rights Act of 1964, see supra at 438 U. S. 341 -343, has also reached the conclusion that race may be taken into account in situations Page 438 U. S. 373 where a failure to do so would limit participation by minorities in federally funded programs, and regulations promulgated by the Department expressly contemplate that appropriate race-conscious programs may be adopted by universities to remedy unequal access to university programs caused by their own or by past societal discrimination. See supra at 438 U. S. 344 -345, discussing 45 CFR §§ 80.3(b)(6)(ii) and 80.5(j) (1977). It cannot be questioned that, in the absence of the special admissions program, access of minority students to the Medical School would be severely limited and, accordingly, race-conscious admissions would be deemed an appropriate response under these federal regulations. Moreover, the Department's regulatory policy is not one that has gone unnoticed by Congress. See supra at 438 U. S. 346 -347. Indeed, although an amendment to an appropriations bill was introduced just last year that would have prevented the Secretary of Health, Education, and Welfare from mandating race-conscious programs in university admissions, proponents of this measure, significantly, did not question the validity of voluntary implementation of race-conscious admissions criteria. See ibid. In these circumstances, the conclusion implicit in the regulations -- that the lingering effects of past discrimination continue to make race-conscious remedial programs appropriate means for ensuring equal educational opportunity in universities -- deserves considerable judicial deference. See, e.g., Katzenbach v. Morgan, 384 U. S. 641 (1966); UJO, 430 U.S. at 430 U. S. 175 -178 (opinion concurring in part). [ Footnote 2/56 ] C The second prong of our test -- whether the Davis program stigmatizes any discrete group or individual and whether race Page 438 U. S. 374 is reasonably used in light of the program's objectives -- is clearly satisfied by the Davis program. It is not even claimed that Davis' program in any way operates to stigmatize or single out any discrete and insular, or even any identifiable, nonminority group. Nor will harm comparable to that imposed upon racial minorities by exclusion or separation on grounds of race be the likely result of the program. It does not, for example, establish an exclusive preserve for minority students apart from and exclusive of whites. Rather, its purpose is to overcome the effects of segregation by bringing the races together. True, whites are excluded from participation in the special admissions program, but this fact only operates to reduce the number of whites to be admitted in the regular admissions program in order to permit admission of a reasonable percentage -- less than their proportion of the California population [ Footnote 2/57 ] -- of otherwise underrepresented qualified minority applicants. [ Footnote 2/58 ] Page 438 U. S. 375 Nor was Bakke in any sense stamped as inferior by the Medical School's rejection of him. Indeed, it is conceded by all that he satisfied those criteria regarded by the school as generally relevant to academic performance better than most of the minority members who were admitted. Moreover, there is absolutely no basis for concluding that Bakke's rejection as a result of Davis' use of racial preference will affect him throughout his life in the same way as the segregation of the Negro schoolchildren in Brown I would have affected them. Unlike discrimination against racial minorities, the use of racial preferences for remedial purposes does not inflict a pervasive injury upon individual whites in the sense that, wherever they go or whatever they do, there is a significant likelihood that they will be treated as second-class citizens because of their color. This distinction does not mean that the exclusion of a white resulting from the preferential use of race is not sufficiently serious to require justification; but it does mean that the injury inflicted by such a policy is not distinguishable from disadvantages caused by a wide range of government actions, none of which has ever been thought impermissible for that reason alone. In addition, there is simply no evidence that the Davis program discriminates intentionally or unintentionally against any minority group which it purports to benefit. The program does not establish a quota in the invidious sense of a ceiling on the number of minority applicants to be admitted. Nor can the program reasonably be regarded as stigmatizing the program's beneficiaries or their race as inferior. The Davis program does not simply advance less qualified applicants; rather, it compensates applicants, who it is uncontested are fully qualified to study medicine, for educational disadvantages which it was reasonable to conclude were a product of Page 438 U. S. 376 state-fostered discrimination. Once admitted, these students must satisfy the same degree requirements as regularly admitted students; they are taught by the same faculty in the same classes; and their performance is evaluated by the same standards by which regularly admitted students are judged. Under these circumstances, their performance and degrees must be regarded equally with the regularly admitted students with whom they compete for standing. Since minority graduates cannot justifiably be regarded as less well qualified than nonminority graduates by virtue of the special admissions program, there is no reasonable basis to conclude that minority graduates at schools using such programs would be stigmatized as inferior by the existence of such programs. D We disagree with the lower courts' conclusion that the Davis program's use of race was unreasonable in light of its objectives. First, as petitioner argues, there are no practical means by which it could achieve its ends in the foreseeable future without the use of race-conscious measures. With respect to any factor (such as poverty or family educational background) that may be used as a substitute for race as an indicator of past discrimination, whites greatly outnumber racial minorities simply because whites make up a far larger percentage of the total population, and therefore far outnumber minorities in absolute terms at every socioeconomic level. [ Footnote 2/59 ] For example, of a class of recent medical school applicants from families with less than $10,000 income, at least 71% were white. [ Footnote 2/60 ] Of all 1970 families headed by a Page 438 U. S. 377 person not a highschool graduate which included related children under 18, 80% were white and 20% were racial minorities. [ Footnote 2/61 ] Moreover, while race is positively correlated with differences in GPA and MCAT scores, economic disadvantage is not. Thus, it appears that economically disadvantaged whites do not score less well than economically advantaged whites, while economically advantaged blacks score less well than do disadvantaged whites. [ Footnote 2/62 ] These statistics graphically illustrate that the University's purpose to integrate its classes by compensating for past discrimination could not be achieved by a general preference for the economically disadvantaged or the children of parents of limited education unless such groups were to make up the entire class. Second, the Davis admissions program does not simply equate minority status with disadvantage. Rather, Davis considers on an individual basis each applicant's personal history to determine whether he or she has likely been disadvantaged by racial discrimination. The record makes clear that only minority applicants likely to have been isolated from the mainstream of American life are considered in the special program; other minority applicants are eligible only through the regular admissions program. True, the procedure by which disadvantage is detected is informal, but we have never insisted that educators conduct their affairs through adjudicatory proceedings, and such insistence here is misplaced. A case-by-case inquiry into the extent to which each individual applicant has been affected, either directly or indirectly, by racial discrimination, would seem to be, as a practical matter, virtually impossible, despite the fact that there are excellent reasons for concluding that such effects generally exist. When individual measurement is impossible or extremely impractical, there is nothing to prevent a State Page 438 U. S. 378 from using categorical means to achieve its ends, at least where the category is closely related to the goal. Cf. Gaston County v. United States, 395 U. S. 285 , 395 U. S. 25 -296 (1969); Katzenbach v. Morgan, 384 U. S. 641 (1966). And it is clear from our cases that specific proof that a person has been victimized by discrimination is not a necessary predicate to offering him relief where the probability of victimization is great. See Teamsters v. United States, 431 U. S. 324 (1977). E Finally, Davis' special admissions program cannot be said to violate the Constitution simply because it has set aside a predetermined number of places for qualified minority applicants, rather than using minority status as a positive factor to be considered in evaluating the applications of disadvantaged minority applicants. For purposes of constitutional adjudication, there is no difference between the two approaches. In any admissions program which accords special consideration to disadvantaged racial minorities, a determination of the degree of preference to be given is unavoidable, and any given preference that results in the exclusion of a white candidate is no more or less constitutionally acceptable than a program such as that at Davis. Furthermore, the extent of the preference inevitably depends on how many minority applicants the particular school is seeking to admit in any particular year, so long as the number of qualified minority applicants exceeds that number. There is no sensible, and certainly no constitutional, distinction between, for example, adding a set number of points to the admissions rating of disadvantaged minority applicants as an expression of the preference with the expectation that this will result in the admission of an approximately determined number of qualified minority applicants and setting a fixed number of places for such applicants, as was done here. [ Footnote 2/63 ] Page 438 U. S. 379 The "Harvard" program, see ante at 438 U. S. 316 -318, as those employing it readily concede, openly and successfully employs a racial criterion for the purpose of ensuring that some of the scarce places in institutions of higher education are allocated to disadvantaged minority students. That the Harvard approach does not also make public the extent of the preference and the precise workings of the system, while the Davis program employs a specific, openly stated number, does not condemn the latter plan for purposes of Fourteenth Amendment adjudication. It may be that the Harvard plan is more acceptable to the public than is the Davis "quota." If it is, any State, including California, is free to adopt it in preference to a less acceptable alternative, just as it is generally free, as far as the Constitution is concerned, to abjure granting any racial preferences in its admissions program. But there is no basis for preferring a particular preference program simply because, in achieving the same goals that the Davis Medical School is pursuing, it proceeds in a manner that is not immediately apparent to the public. V Accordingly, we would reverse the judgment of the Supreme Court of California holding the Medical School's special admissions program unconstitutional and directing respondent's admission, as well as that portion of the judgment enjoining the Medical School from according any consideration to race in the admissions process. [ Footnote 2/1 ] We also agree with MR. JUSTICE POWELL that a plan like the "Harvard" plan, see ante at 438 U. S. 316 -318, is constitutional under our approach, at least so long as the use of race to achieve an integrated student body is necessitated by the lingering effects of past discrimination. [ Footnote 2/2 ] See Plessy v. Ferguson, 163 U. S. 537 (1896). [ Footnote 2/3 ] New Orleans City Park Improvement Assn. v. Detiege, 358 U. S. 54 (1958); Muir v. Louisville Park Theatrical Assn., 347 U.S. 971 (1954); Mayor of Baltimore v. Dawson, 350 U.S. 877 (1955); Holmes v. Atlanta, 350 U.S. 879 (1955); Gayle v. Browder, 352 U.S. 903 (1956). [ Footnote 2/4 ] See Green v. County School Board, 391 U. S. 430 (1968). [ Footnote 2/5 ] See Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971); Davis v. School Comm'rs of Mobile County, 402 U. S. 33 (1971); North Carolina Board of Education v. Swann, 402 U. S. 43 (1971). [ Footnote 2/6 ] See, e.g., cases collected in Monell v. New York City Dept. of Social Services, 436 U. S. 658 , 436 U. S. 663 n. 5 (1978). [ Footnote 2/7 ] Section 601 of Title VI provides: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. [ Footnote 2/8 ] MR. JUSTICE WHITE believes we should address the "private right of action" issue. Accordingly, he has filed a separate opinion stating his view that there is no private right of action under Title VI. See post, p. 438 U. S. 379 . [ Footnote 2/9 ] "Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial discrimination. Direct discrimination by Federal, State or local governments is prohibited by the Constitution. But indirect discrimination, through the use of Federal funds, is just as invidious; and it should not be necessary to resort to the courts to prevent each individual violation. Congress and the Executive have their responsibilities to uphold the Constitution also. . . . " "Many statutes providing Federal financial assistance, however, define with such precision both the Administrator's role and the conditions upon which specified amounts shall be given to designated recipients that the amount of administrative discretion remaining -- which might be used to withhold funds if discrimination were not ended -- is, at best, questionable. No administrator has the unlimited authority to invoke the Constitution in opposition to the mandate of the Congress. Nor would it always be helpful to require unconditionally -- as is often proposed -- the withdrawal of all Federal funds from programs urgently needed by Negroes as well as whites, for this may only penalize those who least deserve it without ending discrimination." "Instead of permitting this issue to become a political device often exploited by those opposed to social or economic progress, it would be better at this time to pass a single comprehensive provision making it clear that the Federal Government is not required, under any statute, to furnish any kind of financial assistance -- by way of grant, loan, contract, guaranty, insurance, or otherwise -- to any program or activity in which racial discrimination occurs. This would not permit the Federal Government to cut off all Federal aid of all kinds as a means of punishing an area for the discrimination occurring therein -- but it would clarify the authority of any administrator with respect to Federal funds or financial assistance and discriminatory practices." 109 Cong.Rec. 11161 (1963). [ Footnote 2/10 ] See, e.g., 110 Cong.Rec. 2732 (1964) (Rep. Dawson); id. at 2481-2482 (Rep. Ryan); id. at 2766 (Rep. Matzunaga); id. at 2595 (Rep. Donahue) . [ Footnote 2/11 ] There is also language in 42 U.S.C. § 2000d-5, enacted in 1966, which supports the conclusion that Title VI's standard is that of the Constitution. Section 2000d-5 provides that, "for the purpose of determining whether a local educational agency is in compliance with [Title VI], compliance by such agency with a final order or judgment of a Federal court for the desegregation of the school or school system operated by such agency shall be deemed to be compliance with [Title VI], insofar as the matters covered in the order or judgment are concerned." This provision was clearly intended to avoid subjecting local educational agencies simultaneously to the jurisdiction of the federal courts and the federal administrative agencies in connection with the imposition of remedial measures designed to end school segregation. Its inclusion reflects the congressional judgment that the requirements imposed by Title VI are identical to those imposed by the Constitution as interpreted by the federal courts. [ Footnote 2/12 ] As has already been seen, the proponents of Title VI in the House were motivated by the identical concern. See remarks of Representative Celler (110 Cong.Rec. 2467 (1964)); Representative Ryan ( id. at 1643, 2481-2482); H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 2, Additional Views of Seven Representatives 2425 (1963). [ Footnote 2/13 ] See separate opinion of MR. JUSTICE WHITE, post at 438 U. S. 382 -383, n. 2. [ Footnote 2/14 ] These remarks also reflect the expectations of Title VI's proponents that the application of the Constitution to the conduct at the core of their concern -- the segregation of Negroes in federally funded programs and their exclusion from the full benefits of such programs -- was clear. See supra at 438 U. S. 333 -336; infra at 438 U. S. 340 -342, n. 17. [ Footnote 2/15 ] Testimony of Attorney General Kennedy in Hearings before the Senate Committee on the Judiciary on S. 1731 and S. 1750, 88th Cong., 1st Sess., 398-399 (1963). [ Footnote 2/16 ] See, e.g., 110 Cong.Rec. 6544, 13820 (1964) (Sen. Humphrey); id. at 6050 (Sen. Javits); id. at 12677 (Sen. Allott). [ Footnote 2/17 ] Our Brother STEVENS finds support for a colorblind theory of Title VI in its legislative history, but his interpretation gives undue weight to a few isolated passages from among the thousands of pages of the legislative history of Title VI. See id. at 6547 (Sen. Humphrey); id. at 6047, 7055 (Sen. Pastore); id. at 12675 (Sen. Allott); id. at 6561 (Sen. Kuchel). These fragmentary comments fall far short of supporting a congressional intent to prohibit a racially conscious admissions program designed to assist those who are likely to have suffered injuries from the effects of past discrimination. In the first place, these statements must be read in the context in which they were made. The concern of the speakers was far removed from the incidental injuries which may be inflicted upon nonminorities by the use of racial preferences. It was rather with the evil of the segregation of Negroes in federally financed programs and, in some cases, their arbitrary exclusion on account of race from the benefits of such programs. Indeed, in this context, there can be no doubt that the Fourteenth Amendment does command color blindness, and forbids the use of racial criteria. No consideration was given by these legislators, however, to the permissibility of racial preference designed to redress the effects of injuries suffered as a result of one's color. Significantly, one of the legislators, Senator Pastore, and perhaps also Senator Kuchel, who described Title VI as proscribing decisionmaking based upon skin color, also made it clear that Title VI does not outlaw the use of racial criteria in all circumstances. See supra at 438 U. S. 339 -340; 110 Cong.Rec. 6562 (1964). See also id. at 2494 (Rep. Celler). Moreover, there are many statements in the legislative history explicitly indicating that Congress intended neither to require nor to prohibit the remedial use of racial preferences where not otherwise required or prohibited by the Constitution. Representative MacGregor addressed directly the problem of preferential treatment: "Your mail and mine, your contacts and mine with our constituents, indicates a great degree of misunderstanding about this bill. People complain about racial 'balancing' in the public schools, about open occupancy in housing, about preferential treatment or quotas in employment. There is a mistaken belief that Congress is legislating in these areas in this bill. When we drafted this bill, we excluded these issues largely because the problems raised by these controversial questions are more properly handled at a governmental level close to the American people and by communities and individuals themselves. The Senate has spelled out our intentions more specifically." Id. at 15893. Other legislators explained that the achievement of racial balance in elementary and secondary schools where there had been no segregation by law was not compelled by Title VI, but was rather left to the judgment of state and local communities. See, e.g., id. at 10920 (Sen. Javits); id. at 5807, 5266 (Sen. Keating); id. at 13821 (Sens. Humphrey and Saltonstall). See also id. at 6562 (Sen. Kuchel); id. at 13695 (Sen. Pastore). Much the same can be said of the scattered remarks to be found in the legislative history of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1970 ed. and Supp. V), which prohibits employment discrimination on the basis of race in terms somewhat similar to those contained in Title VI, see 42 U.S.C. § 2000e-2(a)(1) (unlawful "to fail or refuse to hire" any applicant "because of such individual's race, color, religion, sex, or national origin. . . . "), to the effect that any deliberate attempt by an employer to maintain a racial balance is not required by the statute, and might in fact violate it. See, e.g., 110 Cong.Rec. 7214 (1964) (Sens. Clark and Case); id. at 6549 (Sen. Humphrey); id. at 2560 (Rep. Goodell). Once again, there is no indication that Congress intended to bar the voluntary use of racial preferences to assist minorities to surmount the obstacles imposed by the remnants of past discrimination. Even assuming that Title VII prohibits employers from deliberately maintaining a particular racial composition in their workforce as an end in itself, this does not imply, in the absence of any consideration of the question, that Congress intended to bar the use of racial preferences as a tool for achieving the objective of remedying past discrimination or other compelling ends. The former may well be contrary to the requirements of the Fourteenth Amendment (where state action is involved), while the latter presents very different constitutional considerations. Indeed, as discussed infra at 438 U. S. 353 , this Court has construed Title VII as requiring the use of racial preferences for the purpose of hiring and advancing those who have been adversely affected by past discriminatory employment practices, even at the expense of other employees innocent of discrimination. Franks v. Bowman Transportation Co., 424 U. S. 747 , 424 U. S. 767 -768 (1976). Although Title VII clearly does not require employers to take action to remedy the disadvantages imposed upon racial minorities by hands other than their own, such an objective is perfectly consistent with the remedial goals of the statute. See id. at 424 U. S. 762 -770; Albemarle Paper Co. v. Moody, 422 U. S. 405 , 422 U. S. 418 (1975). There is no more indication in the legislative history of Title VII than in that of Title VI that Congress desired to prohibit such affirmative action to the extent that it is permitted by the Constitution, yet judicial decisions as well as subsequent executive and congressional action clearly establish that Title VII does not forbid race-conscious remedial action. See infra at 438 U. S. 353 -355, and n. 28. [ Footnote 2/18 ] HEW has stated that the purpose of these regulations is "to specify that affirmative steps to make services more equitably available are not prohibited and that such steps are required when necessary to overcome the consequences of prior discrimination." 36 Fed.Reg. 23494 (1971). Other federal agencies which provide financial assistance pursuant to Title VI have adopted similar regulations. See Supplemental Brief for United States as Amicus Curiae 16 n. 14. [ Footnote 2/19 ] Moreover, the President has delegated to the Attorney General responsibility for coordinating the enforcement of Title VI by federal departments and agencies, and has directed him to "assist the departments and agencies in accomplishing effective implementation." Exec.Order No. 11764, 3 CFR 849 (1971-1975 Comp.). Accordingly, the views of the Solicitor General, as well as those of HEW, that the use of racial preferences for remedial purposes is consistent with Title VI are entitled to considerable respect. [ Footnote 2/20 ] HEW administers at least two explicitly race-conscious programs. Details concerning them may be found in the Office of Management and Budget, 1977 Catalogue of Federal Domestic Assistance 205-206, 401-402. The first program, No. 13.375, "Minority Biomedical Support," has as its objectives: "To increase the number of ethnic minority faculty, students, and investigators engaged in biomedical research. To broaden the opportunities for participation in biomedical research of ethnic minority faculty, students, and investigators by providing support for biomedical research programs at eligible institutions." Eligibility for grants under this program is limited to (1) four-year colleges, universities, and health professional schools with over 50% minority enrollments; (2) four-year institutions with significant but not necessarily over 50% minority enrollment provided they have a history of encouragement and assistance to minorities; (3) two-year colleges with 50% minority enrollment; and (4) American Indian Tribal Councils. Grants made pursuant to this program are estimated to total $9,711,000 for 1977. The second program, No. 13.880, entitled "Minority Access To Research Careers," has as its objective to "assist minority institutions to train greater numbers of scientists and teachers in health related fields." Grants under this program are made directly to individuals and to institutions for the purpose of enabling them to make grants to individuals. [ Footnote 2/21 ] H.R.Conf.Rep. No. 9538, p. 22 (1977); 123 Cong.Rec. 26188 (1977). See H.J.Res. 662, 95th Cong., 1st Sess. (1977); Pub.L. 95-205, 91 Stat. 1460. [ Footnote 2/22 ] 91 Stat. 117, 42 U.S.C. § 6705(f)(2) (1976 ed.). [ Footnote 2/23 ] 123 Cong.Rec.7156 (1977); id. at 5327-5330. [ Footnote 2/24 ] See id. at 7156 (Sen. Brooke). [ Footnote 2/25 ] In addition to the enactment of the 10% quota provision discussed supra, Congress has also passed other Acts mandating race-conscious measures to overcome disadvantages experienced by racial minorities. Although these statutes have less direct bearing upon the meaning of Title VI, they do demonstrate that Congress believes race-conscious remedial measures to be both permissible and desirable under at least some circumstances. This, in turn, undercuts the likelihood that Congress intended to limit voluntary efforts to implement similar measures. For example, § 7(a) of the National Science Foundation Authorization Act, 1977, provides: "The Director of the National Science Foundation shall initiate an intensive search for qualified women, members of minority groups, and handicapped individuals to fill executive level positions in the National Science Foundation. In carrying out the requirement of this subsection, the Director shall work closely with organizations which have been active in seeking greater recognition and utilization of the scientific and technical capabilities of minorities, women, and handicapped individuals. The Director shall improve the representation of minorities, women, and handicapped individuals on advisory committees,, review panels, and all other mechanisms by which the scientific community provides assistance to the Foundation." 90 Stat. 2056, note following 42 U.S.C. 1873 (1976 ed.). Perhaps more importantly, the Act also authorizes the funding of Minority Centers for Graduate Education. Section 7(C)(2) of the Act, 90 Stat. 2056, requires that these Centers: "(A) have substantial minority student enrollment;" "(B) are geographically located near minority population centers;" "(C) demonstrate a commitment to encouraging and assisting minority students, researchers, and faculty;" " * * * *" "(F) will serve as a regional resource in science and engineering for the minority community which the Center is designed to serve; and" "(G) will develop joint educational programs with nearby undergraduate institutions of higher education which have a substantial minority student enrollment." Once again, there is no indication in the legislative history of this Act or elsewhere that Congress saw any inconsistency between the race-conscious nature of such legislation and the meaning of Title VI. And, once again, it is unlikely in the extreme that a Congress which believed that it had commanded recipients of federal funds to be absolutely colorblind would itself expend federal funds in such a race-conscious manner. See also the Railroad Revitalization and Regulatory Reform Act of 1976, 45 U.S.C. § 801 et seq. (1976 ed.), 49 U.S.C. § 1657a et seq. (1976 ed.); the Emergency School Aid Act, 20 U.S.C. § 1601 et seq. (1976 ed.). [ Footnote 2/26 ] Cf. Griggs v. Duke Power Co., 401 U. S. 424 (1971). [ Footnote 2/27 ] Ibid.; Albemarle Paper Co. v. Moody, 422 U. S. 405 (1975). [ Footnote 2/28 ] Franks v. Bowman Transportation Co., 424 U. S. 747 (1976); Teamsters v. United States, 431 U. S. 324 (1977). Executive, judicial, and congressional action subsequent to the passage of Title VII conclusively established that the Title did not bar the remedial use of race. Prior to the 1972 amendments to Title VII (Equal Employment Opportunity Act of 1972, 86 Stat. 103), a number of Courts of Appeals approved race-conscious action to remedy the effects of employment discrimination. See, e.g., Heat & Frost Insulators & Asbestos Workers v. Voler, 407 F.2d 1047 (CA5 1969); United States v. Electrical Workers, 428 F.2d 144, 149-150 (CA6), cert. denied, 400 U.S. 943 (1970); United States v. Sheetmetal Workers, 416 F.2d 123 (CA8 1969). In 1965, the President issued Exec.Order No. 11246, 3 CFR 339 (1964-1965 Comp.), which, as amended by Exec.Order No. 11375, 3 CFR 684 (1966-1970 Comp.), required federal contractors to take affirmative action to remedy the disproportionately low employment of racial minorities in the construction industry. The Attorney General issued an opinion concluding that the race consciousness required by Exec Order No 11246 did not conflict with Title VII: "It is not correct to say that Title VII prohibits employers from making race or national origin a factor for consideration at any stage in the process of obtaining employees. The legal definition of discrimination is an evolving one, but it is now well recognized in judicial opinions that the obligation of nondiscrimination, whether imposed by statute or by the Constitution, does not require and, in some circumstances, may not permit, obliviousness or indifference to the racial consequences of alternative courses of action which involve the application of outwardly neutral criteria." 42 Op.Atty.Gen. 405, 411 (1969). The federal courts agreed. See, e.g., Contractors Assn. of Eastern Pa. v. Secretary of Labor, 442 F.2d 159 (CA3), cert. denied, 404 U.S. 854 (1971) (which also held, 442 F.2d at 173, that race-conscious affirmative action was permissible under Title VI); Southern Illinois Builders Assn. v. Ogilvie, 471 F.2d 680 (CA7 1972). Moreover, Congress, in enacting the 1972 amendments to Title VII, explicitly considered and rejected proposals to alter Exec.Order No. 11246 and the prevailing judicial interpretations of Title VII as permitting, and in some circumstances requiring, race-conscious action. See Comment, The Philadelphia Plan: A Study in the Dynamics of Executive Power, 39 U.Chi.L.Rev. 723, 747-757 (1972). The section-by-section analysis of the 1972 amendments to Title VII undertaken by the Conference Committee Report on H.R. 1746 reveals a resolve to accept the then (as now) prevailing judicial interpretations of the scope of Title VII: "In any area where the new law does not address itself, or in any areas where a specific contrary intent is not indicated, it was assumed that the present case law as developed by the courts would continue to govern the applicability and construction of Title VII." Legislative History of the Equal Employment Opportunity Act of 1972, p. 1844 (Comm.Print 1972). [ Footnote 2/29 ] United Jewish Organizations v. Carey, 430 U. S. 144 (1977). See also id. at 430 U. S. 167 -168 (opinion of WHITE, J.). [ Footnote 2/30 ] We do not pause to debate whether our cases establish a "two-tier" analysis, a "sliding scale" analysis, or something else altogether. It is enough for present purposes that strict scrutiny is applied at least in some cases. [ Footnote 2/31 ] Of course, the fact that whites constitute a political majority in our Nation does not necessarily mean that active judicial scrutiny of racial classifications that disadvantage whites is inappropriate. Cf. Castaneda v. Partida, 430 U. S. 482 , 430 U. S. 499 -500 (1977); id. at 430 U. S. 501 (MARSHALL, J., concurring) . [ Footnote 2/32 ] "[T]he conclusion cannot be resisted, that no reason for [the refusal to issue permits to Chinese] exists except hostility to the race and nationality to which the petitioners belong. . . . The discrimination is, therefore, illegal. . . ." [ Footnote 2/33 ] Indeed, even in Plessy v. Ferguson, the Court recognized that a classification by race that presumed one race to be inferior to another would have to be condemned. See 163 U.S. at 163 U. S. 544 -551. [ Footnote 2/34 ] Paradoxically, petitioner's argument is supported by the cases generally thought to establish the "strict scrutiny" standard in race cases, Hirabayashi v. United States, 320 U. S. 81 (1943), and Korematsu v. United States, 323 U. S. 214 (1944). In Hirabayashi, for example, the Court, responding to a claim that a racial classification was rational, sustained a racial classification solely on the basis of a conclusion in the double negative that it could not say that facts which might have been available "could afford no ground for differentiating citizens of Japanese ancestry from other groups in the United States." 320 U.S. at 320 U. S. 101 . A similar mode of analysis was followed in Korematsu, see 323 U.S. at 323 U. S. 224 , even though the Court stated there that racial classifications were "immediately suspect," and should be subject to "the most rigid scrutiny." Id. at 323 U. S. 216 . [ Footnote 2/35 ] We disagree with our Brother POWELL's suggestion, ante at 438 U. S. 303 , that the presence of "rival groups which can claim that they, too, are entitled to preferential treatment" distinguishes the gender cases or is relevant to the question of scope of judicial review of race classifications. We are not asked to determine whether groups other than those favored by the Davis program should similarly be favored. All we are asked to do is to pronounce the constitutionality of what Davis has done. But, were we asked to decide whether any given rival group -- German-Americans for example -- must constitutionally be accorded preferential treatment, we do have a "principled basis," ante at 438 U. S. 296 , for deciding this question, one that is well established in our cases: the Davis program expressly sets out four classes which receive preferred status. Ante at 438 U. S. 274 . The program clearly distinguishes whites, but one cannot reason from this a conclusion that German-Americans, as a national group, are singled out for invidious treatment. And even if the Davis program had a differential impact on German-Americans, they would have no constitutional claim unless they could prove that Davis intended invidiously to discriminate against German-Americans. See Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 , 429 U. S. 264 -265 (1977); Washington v. Davis, 426 U. S. 229 , 426 U. S. 238 -241 (1976). If this could not be shown, then "the principle that calls for the closest scrutiny of distinctions in laws denying fundamental rights . . . is inapplicable," Katzenbach v. Morgan, 384 U. S. 641 , 384 U. S. 657 (1966), and the only question is whether it was rational for Davis to conclude that the groups it preferred had a greater claim to compensation than the groups it excluded. See ibid.; San Antonio Independent School District v. Rodriguez, 411 U. S. 1 , 411 U. S. 38 -39 (1973) (applying Katzenbach test to state action intended to remove discrimination in educational opportunity). Thus, claims of rival groups, although they may create thorny political problems, create relatively simple problems for the courts. [ Footnote 2/36 ] Gunther, The Supreme Court, 1971 Term -- Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1, 8 (1972). [ Footnote 2/37 ] In Albemarle, we approved "differential validation" of employment tests. See 422 U.S. at 422 U. S. 435 . That procedure requires that an employer must ensure that a test score of, for example, 50 for a minority job applicant means the same thing as a score of 50 for a nonminority applicant. By implication, were it determined that a test score of 50 for a minority corresponded in "potential for employment" to a 60 for whites, the test could not be used consistently with Title VII unless the employer hired minorities with scores of 50 even though he might not hire nonminority applicants with scores above 50 but below 60. Thus, it is clear that employers, to ensure equal opportunity, may have to adopt race-conscious hiring practices. [ Footnote 2/38 ] Indeed, Titles VI and VII of the Civil Rights Act of 1964 put great emphasis on voluntarism in remedial action. See supra at 438 U. S. 336 -338. And, significantly, the Equal Employment Opportunity Commission has recently proposed guidelines authorizing employers to adopt racial preferences as a remedial measure where they have a reasonable basis for believing that they might otherwise be held in violation of Title VII. See 42 Fed.Reg. 64826 (1977). [ Footnote 2/39 ] "[T]he [Voting Rights] Act's prohibition . . . is not dependent upon proving past unconstitutional apportionments. . . ." [ Footnote 2/40 ] "[T]he State is [not] powerless to minimize the consequences of racial discrimination by voters when it is regularly practiced at the polls." [ Footnote 2/41 ] Our cases cannot be distinguished by suggesting, as our Brother POWELL does, that in none of them was anyone deprived of "the relevant benefit." Ante at 438 U. S. 304 . Our school cases have deprived whites of the neighborhood school of their choice; our Title VII cases have deprived nondiscriminating employees of their settled seniority expectations; and UJO deprived the Hassidim of bloc-voting strength. Each of these injuries was constitutionally cognizable as is respondent's here. [ Footnote 2/42 ] We do not understand MR. JUSTICE POWELL to disagree that providing a remedy for past racial prejudice can constitute a compelling purpose sufficient to meet strict scrutiny. See ante at 438 U. S. 305 . Yet, because petitioner is a corporation administering a university, he would not allow it to exercise such power in the absence of "judicial, legislative, or administrative findings of constitutional or statutory violations." Ante at 438 U. S. 307 . While we agree that reversal in this case would follow a fortiori had Davis been guilty of invidious racial discrimination or if a federal statute mandated that universities refrain from applying any admissions policy that had a disparate and unjustified racial impact, see, e.g., McDaniel v. Barresi, 402 U. S. 39 (1971); Franks v. Bowman Transportation Co., 424 U. S. 747 (1976), we do not think it of constitutional significance that Davis has not been so adjudged. Generally, the manner in which a State chooses to delegate governmental functions is for it to decide. Cf. Sweezy v. New Hampshire, 354 U. S. 234 , 354 U. S. 256 (1957) (Frankfurter, J., concurring in result). California, by constitutional provision, has chosen to place authority over the operation of the University of California in the Board of Regents. See Cal.Const., Art. 9, § 9(a). Control over the University is to be found not in the legislature, but rather in the Regents who have been vested with full legislative (including policymaking), administrative, and adjudicative powers by the citizens of California. See ibid.; Ishimatsu v. Regents, 266 Cal. App. 2d 854 , 863-864, 72 Cal. Rptr. 756, 762-763 (1968); Goldberg v. Regents, 248 Cal. App. 2d 867 , 874, 57 Cal. Rptr. 463, 468 (1967); 30 Op.Cal.Atty. Gen. 162, 166 (1957) ("The Regents, not the legislature, have the general rulemaking or policymaking power in regard to the University"). This is certainly a permissible choice, see Sweezy, supra, and we, unlike our Brother POWELL, find nothing in the Equal Protection Clause that requires us to depart from established principle by limiting the scope of power the Regents may exercise more narrowly than the powers that may constitutionally be wielded by the Assembly. Because the Regents can exercise plenary legislative and administrative power, it elevates form over substance to insist that Davis could not use race-conscious remedial programs until it had been adjudged in violation of the Constitution or an antidiscrimination statute. For, if the Equal Protection Clause required such a violation as a predicate, the Regents could simply have promulgated a regulation prohibiting disparate treatment not justified by the need to admit only qualified students, and could have declared Davis to have been in violation of such a regulation on the basis of the exclusionary effect of the admissions policy applied during the first two years of its operation. See infra at 438 U. S. 370 . [ Footnote 2/43 ] "Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment." Buckley v. Valeo, 424 U. S. 1 , 424 U. S. 93 (1976) (per curiam), citing Weinberger v. Wiesenfeld, 420 U. S. 636 , 420 U. S. 638 n. 2 (1975). [ Footnote 2/44 ] Railway Mail Assn. held that a state statute forbidding racial discrimination by certain labor organizations did not abridge the Association's due process rights secured by the Fourteenth Amendment, because that result "would be a distortion of the policy manifested in that amendment, which was adopted to prevent state legislation designed to perpetuate discrimination on the basis of race or color." 326 U.S. at 326 U. S. 94 . That case thus established the principle that a State voluntarily could go beyond what the Fourteenth Amendment required in eliminating private racial discrimination. [ Footnote 2/45 ] According to 89 schools responding to a questionnaire sent to 112 medical schools (all of the then-accredited medical schools in the United States except Howard and Meharry), substantial efforts to admit minority students did not begin until 1968. That year was the earliest year of involvement for 34% of the schools; an additional 66% became involved during the years 1969 to 1973. See C. Odegaard, Minorities in Medicine: From Receptive Passivity to Positive Action, 1966-1976, p. 19 (1977) (hereinafter Odegaard). These efforts were reflected in a significant increase in the percentage of minority M.D. graduates. The number of American Negro graduates increased from 2.2% in 1970 to 3.3% in 1973 and 5.0% in 1975. Significant percentage increases in the number of Mexican-American, American Indian, and mainland Puerto Rican graduates were also recorded during those years. Id. at 40. The statistical information cited in this and the following notes was compiled by Government officials or medical educators, and has been brought to our attention in many of the briefs. Neither the parties nor the amici challenge the validity of the statistics alluded to in our discussion. [ Footnote 2/46 ] D. Reitzes, Negroes and Medicine, pp. xxvii, 3 (1958). [ Footnote 2/47 ] Between 1955 and 1964, for example, the percentage of Negro physicians graduated in the United States who were trained at these schools ranged from 69.0% to 75.8%. See Odegaard 19. [ Footnote 2/48 ] U.S. Dept. of Health, Education, and Welfare, Minorities and Women in the Health Fields 7 (Pub. No. (HRA) 75-22, May, 1974). [ Footnote 2/49 ] U.S. Dept. of Commerce, Bureau of the Census, 1970 Census, vol. 1, pt. 1, Table 60 (1973). [ Footnote 2/50 ] See ante at 438 U. S. 276 n. 6 (opinion of POWELL, J.). [ Footnote 2/51 ] See, e.g., R. Wade, Slavery in the Cities: The South 1820-1860, pp. 991 (1964). [ Footnote 2/52 ] For an example of unequal facilities in California schools, see Sona v. Oxnard School Dist. Board, 386 F. Supp. 539 , 542 (CD Cal.1974). See also R. Kluger, Simple Justice (1976). [ Footnote 2/53 ] See, e.g., Crawford v. Board of Education, 17 Cal. 3d 280 , 551 P.2d 28 (1976); Soria v. Oxnard School Dist. Board, supra; Spangler v. Pasadena City Board of Education, 311 F. Supp. 501 (CD Cal.1970); C. Wollenberg, All Deliberate Speed: Segregation and Exclusion in California Schools, 1855-1975, pp. 136-177 (1976). [ Footnote 2/54 ] For example, over 40% of American-born Negro males aged 20 to 24 residing in California in 1970 were born in the South, and the statistic for females was over 48%. These statistics were computed from data contained in Census, supra, 438 U.S. 265 fn2/49|>n. 49, pt. 6, California, Tables 139, 140. [ Footnote 2/55 ] See, e.g., O'Neil, Preferential Admissions: Equalizing the Access of Minority Groups to Higher Education, 80 Yale L.J. 699, 729-731 (1971). [ Footnote 2/56 ] Congress and the Executive have also adopted a series of race-conscious programs, each predicated on an understanding that equal opportunity cannot be achieved by neutrality, because of the effects of past and present discrimination. See supra at 438 U. S. 348 -349. [ Footnote 2/57 ] Negroes and Chicanos alone constitute approximately 22% of California's population. This percentage was computed from data contained in Census, supra, 438 U.S. 265 fn2/49|>n. 49, pt. 6, California, sec. 1,6-4, and Table 139. [ Footnote 2/58 ] The constitutionality of the special admissions program is buttressed by its restriction to only 16% of the positions in the Medical School, a percentage less than that of the minority population in California, see ibid., and to those minority applicants deemed qualified for admission and deemed likely to contribute to the Medical School and the medical profession. Record 67. This is consistent with the goal of putting minority applicants in the position they would have ben in if not for the evil of racial discrimination. Accordingly, this case does not raise the question whether even a remedial use of race would be unconstitutional if it admitted unqualified minority applicants in preference to qualified applicants or admitted, as a result of preferential consideration, racial minorities in numbers significantly in excess of their proportional representation in the relevant population. Such programs might well be inadequately justified by the legitimate remedial objectives. Our allusion to the proportional percentage of minorities in the population of the State administering the program is not intended to establish either that figure or that population universe as a constitutional benchmark. In this case, even respondent, as we understand him, does not argue that, if the special admissions program is otherwise constitutional, the allotment of 16 places in each entering class for special admittees is unconstitutionally high. [ Footnote 2/59 ] See Census, supra, 438 U.S. 265 fn2/49|>n. 49, Sources and Structure of Family Income, pp. 1-12. [ Footnote 2/60 ] This percentage was computed from data presented in B. Waldman, Economic and Racial Disadvantage as Reflected in Traditional Medical School Selection Factors: A Study of 1976 Applicants to U.S. Medical Schools 34 (Table A-15), 42 (Table A-23) (Association of American Medical Colleges 1977). [ Footnote 2/61 ] This figure was computed from data contained in Census, supra, 438 U.S. 265 fn2/49|>n. 49, pt. 1, United States Summary, Table 209. [ Footnote 2/62 ] See Waldman, supra, 438 U.S. 265 fn2/60|>n. 60, at 10-14 (Figures 1-5). [ Footnote 2/63 ] The excluded white applicant, despite MR. JUSTICE POWELL's contention to the contrary, ante at 438 U. S. 318 n. 52, receives no more or less "individualized consideration" under our approach than under his. MR. JUSTICE WHITE. I write separately concerning the question of whether Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., provides for a private cause of action. Four Justices are apparently of the view that such a private cause of action Page 438 U. S. 380 exists, and four Justices assume it for purposes of this case. I am unwilling merely to assume an affirmative answer. If, in fact, no private cause of action exists, this Court and the lower courts as well are without jurisdiction to consider respondent's Title VI claim. As I see it, if we are not obliged to do so, it is at least advisable to address this threshold jurisdictional issue. See United States v. Griffin, 303 U. S. 226 , 303 U. S. 229 (1938). [ Footnote 3/1 ] Furthermore, just as it is inappropriate to address constitutional issues without determining whether statutory grounds urged before us are dispositive, it is at least questionable practice to adjudicate a novel and difficult statutory issue without first considering whether we have jurisdiction to decide it. Consequently, I address the question of whether respondent may bring suit under Title VI. A private cause of action under Title VI, in terms both of Page 438 U. S. 381 the Civil Rights Act as a whole and that Title, would not be "consistent with the underlying purposes of the legislative scheme," and would be contrary to the legislative intent. Cort v. Ash, 422 U. S. 66 , 422 U. S. 78 (1975). Title II, 42 U.S.C. § 2000a et seq., dealing with public accommodations, and Title VII, 42 U.S.C. § 2000e et seq. (1970 ed. and Supp. V), dealing with employment, proscribe private discriminatory conduct that, as of 1964, neither the Constitution nor other federal statutes had been construed to forbid. Both Titles carefully provided for private actions as well as for official participation in enforcement. Title III, 42 U.S.C. § 2000b et seq., and Title IV, 42 U.S.C. § 2000c et seq. (1970 ed and Supp. V), dealing with public facilities and public education, respectively, authorize suits by the Attorney General to eliminate racial discrimination in these areas. Because suits to end discrimination in public facilities and public education were already available under 42 U.S.C. § 1983, it was, of course, unnecessary to provide for private actions under Titles III and IV. But each Title carefully provided that its provisions for public actions would not adversely affect preexisting private remedies. § § 2000b-2 and 2000c-8. The role of Title VI was to terminate federal financial support for public and private institutions or programs that discriminated on the basis of race. Section 601, 42 U.S.C. § 2000d, imposed the proscription that no person, on the grounds of race, color, or national origin, was to be excluded from or discriminated against under any program or activity receiving federal financial assistance. But there is no express provision for private actions to enforce Title VI, and it would be quite incredible if Congress, after so carefully attending to the matter of private actions in other Titles of the Act, intended silently to create a private cause of action to enforce Title VI. It is also evident from the face of § 602, 42 U.S.C. § 2000d-1, that Congress intended the departments and agencies Page 438 U. S. 382 to define and to refine, by rule or regulation, the general proscription of § 601, subject only to judicial review of agency action in accordance with established procedures. Section 602 provides for enforcement: every federal department or agency furnishing financial support is to implement the proscription by appropriate rule or regulation, each of which requires approval by the President. Termination of funding as a sanction for noncompliance is authorized, but only after a hearing and after the failure of voluntary means to secure compliance. Moreover, termination may not take place until the department or agency involved files with the appropriate committees of the House and Senate a full written report of the circumstances and the grounds for such action and 30 days have elapsed thereafter. Judicial review was provided, at least for actions terminating financial assistance. Termination of funding was regarded by Congress as a serious enforcement step, and the legislative history is replete with assurances that it would not occur until every possibility for conciliation had been exhausted. [ Footnote 3/2 ] To allow a private Page 438 U. S. 383 individual to sue to cut off funds under Title VI would compromise these assurances and short-circuit the procedural preconditions provided in Title VI. If the Federal Government may not cut off funds except pursuant to an agency rule, approved by the President, and presented to the appropriate committee of Congress for a layover period, and after voluntary means to achieve compliance have failed, it is inconceivable that Congress intended to permit individuals to circumvent these administrative prerequisites themselves. Furthermore, although Congress intended Title VI to end federal financial support for racially discriminatory policies of not only public but also private institutions and programs, it is extremely unlikely that Congress, without a word indicating that it intended to do so, contemplated creating an independent, private statutory cause of action against all private, as well as public, agencies that might be in violation of the section. There is no doubt that Congress regarded private litigation as an important tool to attack discriminatory practices. It does not at all follow, however, that Congress anticipated new private actions under Title VI itself. Wherever a discriminatory program was a public undertaking, such as a public school, private remedies were already available under other statutes, and a private remedy under Title VI was Page 438 U. S. 384 unnecessary. Congress was well aware of this fact. Significantly, there was frequent reference to Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 059 (CA4 1963), cert. denied, 376 U.S. 938 (1964), throughout the congressional deliberations. See, e.g., 110 Cong.Rec. 654 (1964) (Sen. Humphrey). Simkins held that, under appropriate circumstances, the operation of a private hospital with "massive use of public funds and extensive state-federal sharing in the common plan" constituted "state action" for the purposes of the Fourteenth Amendment. 323 F.2d at 967. It was unnecessary, of course, to create a Title VI private action against private discriminators where they were already within the reach of existing private remedies. But when they were not -- and Simkins carefully disclaimed holding that "every subvention by the federal or state government automatically involves the beneficiary in state action,'" ibid. [ Footnote 3/3 ] -- it is difficult Page 438 U. S. 385 to believe that Congress silently created a private remedy to terminate conduct that previously had been entirely beyond the reach of federal law. For those who believe, contrary to my views, that Title VI was intended to create a stricter standard of colorblindness than the Constitution itself requires, the result of no private cause of action follows even more readily. In that case, Congress must be seen to have banned degrees of discrimination, as well as types of discriminators, not previously reached by law. A Congress careful enough to provide that existing private causes of action would be preserved (in Titles III and IV) would not leave for inference a vast new extension of private enforcement power. And a Congress so exceptionally concerned with the satisfaction of procedural preliminaries before confronting fund recipients with the choice of a cutoff or of stopping discriminating would not permit private parties to pose precisely that same dilemma in a greatly widened category of cases with no procedural requirements whatsoever. Significantly, in at least three instances, legislators who played a major role in the passage of Title VI explicitly stated that a private right of action under Title VI does not exist. [ Footnote 3/4 ] Page 438 U. S. 386 As an "indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one," Cort v. Ash, 422 U.S. at 422 U. S. 78 , clearer statements cannot be imagined, and under Cort, "an explicit purpose to deny such cause of action [is] controlling." Id. at 422 U. S. 82 . Senator Keating, for example, proposed a private "right to sue" for the "person suffering from discrimination"; but the Department of Justice refused to include it, and the Senator acquiesced. [ Footnote 3/5 ] These are not neutral, ambiguous statements. They indicate the absence of a legislative intent to create a private remedy. Nor do any of these statements make nice distinctions between a private cause of action to enjoin discrimination and one to cut off funds, as MR. JUSTICE STEVENS and the three Justices who join his opinion apparently would. See post at 438 U. S. 419 -420, n. 26. Indeed, it would be odd if they did, since the practical effect of either type of private cause of action would be identical. If private suits to enjoin conduct allegedly violative of § 601 were permitted, recipients of federal funds would be presented with the choice of either ending what the court, rather than the agency, determined to be a discriminatory practice within the meaning of Title VI or refusing federal funds, and thereby escaping from the statute's jurisdictional predicate. [ Footnote 3/6 ] This is precisely the same choice as would confront recipients if suit were brought to cut off funds. Both types of actions would equally jeopardize the administrative processes so carefully structured into the law. Page 438 U. S. 387 This Court has always required "that the inference of such a private cause of action not otherwise authorized by the statute must be consistent with the evident legislative intent and, of course, with the effectuation of the purposes intended to be served by the Act." National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U. S. 453 , 414 U. S. 458 (1974). See also Securities Investor Protection Corp. v. Barbour, 421 U. S. 412 , 421 U. S. 418 420 (1975). A private cause of action under Title VI is unable to satisfy either prong of this test. Because each of my colleagues either has a different view or assumes a private cause of action, however, the merits of the Title VI issue must be addressed. My views in that regard, as well as my views with respect to the equal protection issue, are included in the joint opinion that my Brothers BRENNAN, MARSHALL, and BLACKMUN and I have filed. [ Footnote 3/7 ] [ Footnote 3/1 ] It is also clear from Griffin that "lack of jurisdiction . . . touching the subject matter of the litigation cannot be waived by the parties. . . ." 303 U.S. at 303 U. S. 229 . See also Mount Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 , 429 U. S. 278 (1977); Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149 , 211 U. S. 152 (1908); Mansfield, C. & L. M. R. Co. v. Swan, 111 U. S. 379 , 111 U. S. 382 (1884). In Lau v. Nichols, 414 U. S. 563 (1974), we did adjudicate a Title VI claim brought by a class of individuals. But the existence of a private cause of action was not at issue. In addition, the understanding of MR. JUSTICE STEWART's concurring opinion, which observed that standing was not being contested, was that the standing alleged by petitioners was as third-party beneficiaries of the funding contract between the Department of Health, Education, and Welfare and the San Francisco United School District, a theory not alleged by the present respondent. Id. at 414 U. S. 571 n. 2. Furthermore, the plaintiffs in Lau alleged jurisdiction under 42 U.S.C. § 1983, rather than directly under the provisions of Title VI, as does the plaintiff in this case. Although the Court undoubtedly had an obligation to consider the jurisdictional question, this is surely not the first instance in which the Court has bypassed a jurisdictional problem not presented by the parties. Certainly the Court's silence on the jurisdictional question, when considered in the context of the indifference of the litigants to it and the fact that jurisdiction was alleged under § 1983, does not foreclose a reasoned conclusion that Title VI affords no private cause of action. [ Footnote 3/2 ] "Yet, before that principle [that 'Federal funds are not to be used to support racial discrimination'] is implemented to the detriment of any person, agency, or State, regulations giving notice of what conduct is required must be drawn up by the agency administering the program. . . . Before such regulations become effective, they must be submitted to and approved by the President." "Once having become effective, there is still a long road to travel before any sanction whatsoever is imposed. Formal action to compel compliance can only take place after the following has occurred: first, there must be an unsuccessful attempt to obtain voluntary compliance; second, there must be an administrative hearing; third, a written report of the circumstances and the grounds for such action must be filed with the appropriate committees of the House and Senate; and fourth, 30 days must have elapsed between such filing and the action denying benefits under a Federal program. Finally, even that action is by no means final, because it is subject to judicial review, and can be further postponed by judicial action granting temporary relief pending review in order to avoid irreparable injury. It would be difficult indeed to concoct any additional safeguards to incorporate in such a procedure." 110 Cong.Rec. 6749 (1964) (Sen. Moss). "[T]he authority to cut off funds is hedged about with a number of procedural restrictions. . . . [There follow details of the preliminary steps.]" "In short, title VI is a reasonable, moderate, cautious, carefully worked out solution to a situation that clearly calls for legislative action." Id. at 6544 (Sen. Humphrey). "Actually, no action whatsoever can be taken against anyone until the Federal agency involved has advised the appropriate person of his failure to comply with nondiscrimination requirements and until voluntary efforts to secure compliance have failed." Id. at 1519 (Rep. Celler) (emphasis added). See also remarks of Sen. Ribicoff ( id. at 7066-7067); Sen. Proxmire ( id. at 8345); en. Kuchel ( id. at 6562). These safeguards were incorporated into 42 U.S.C. § 2000d-1. [ Footnote 3/3 ] This Court has never held that the mere receipt of federal or state funds is sufficient to make the recipient a federal or state actor. In Norwood v. Harrison, 413 U. S. 455 (1973), private schools that received state aid were held subject to the Fourteenth Amendment's ban on discrimination, but the Court's test required "tangible financial aid" with a "significant tendency to facilitate, reinforce, and support private discrimination." Id. at 413 U. S. 466 . The mandate of Burton v. Wilmington Parking Authority, 365 U. S. 715 , 365 U. S. 722 (1961), to sift facts and weigh circumstances of governmental support in each case to determine whether private or state action was involved, has not been abandoned for an automatic rule based on receipt of funds. Contemporaneous with the congressional debates on the Civil Rights Act was this Court's decision in Griffin v. School Board, 377 U. S. 218 (1964). Tuition grants and tax concessions were provided for parents of students in private schools which discriminated racially. The Court found sufficient state action, but carefully limited its holding to the circumstances presented: "[C]losing the Prince Edward schools and meanwhile contributing to the support of the private segregated white schools that took their place denied petitioners the equal protection of the laws." Id. at 377 U. S. 232 . Hence, neither at the time of the enactment of Title VI nor at the present time, to the extent this Court has spoken, has mere receipt of state funds created state action. Moreover, Simkins has not met with universal approval among the United States Courts of Appeals. See cases cited in Greco v. Orange Memorial Hospital Corp., 423 U. S. 1000 , 1004 (1975) (WHITE, J., dissenting from denial of certiorari). [ Footnote 3/4 ] "Nowhere in this section do you find a comparable right of legal action for a person who feels he has been denied his rights to participate in the benefits of Federal funds. Nowhere. Only those who have been cut off can go to court and present their claim." 110 Cong.Rec. 2467 (1964) (Rep. Gill). "[A] good case could be made that a remedy is provided for the State or local official who is practicing discrimination, but none is provided for the victim of the discrimination." Id. at 6562 (Sen. Kuchel). "Parenthetically, while we favored the inclusion of the right to sue on the part of the agency, the State, or the facility which was deprived of Federal funds, we also favored the inclusion of a provision granting the right to sue to the person suffering from discrimination. This was not included in the bill. However, both the Senator from Connecticut and I are grateful that our other suggestions were adopted by the Justice Department." Id. at 7065 (Sen. Keating). [ Footnote 3/5 ] Ibid. [ Footnote 3/6 ] As Senator Ribicoff stated: "Sometimes those eligible for Federal assistance may elect to reject such aid, unwilling to agree to a nondiscrimination requirement. If they choose that course, the responsibility is theirs." Id. at 7067. [ Footnote 3/7 ] I also join Parts I, III-A, and V-C of MR. JUSTICE POWELL's opinion. MR. JUSTICE MARSHALL. I agree with the judgment of the Court only insofar as it permits a university to consider the race of an applicant in making admissions decisions. I do not agree that petitioner's admissions program violates the Constitution. For it must be remembered that, during most of the past 200 years, the Constitution, as interpreted by this Court, did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier. I A Three hundred and fifty years ago, the Negro was dragged to this country in chains to be sold into slavery. Uprooted from his homeland and thrust into bondage for forced labor, Page 438 U. S. 388 the slave was deprived of all legal rights. It was unlawful to teach him to read; he could be sold away from his family and friends at the whim of his master; and killing or maiming him was not a crime. The system of slavery brutalized and dehumanized both master and slave. [ Footnote 4/1 ] The denial of human rights was etched into the American Colonies' first attempts at establishing self-government. When the colonists determined to seek their independence from England, they drafted a unique document cataloguing their grievances against the King and proclaiming as "self-evident" that "all men are created equal" and are endowed "with certain unalienable Rights," including those to "Life, Liberty and the pursuit of Happiness." The self-evident truths and the unalienable rights were intended, however, to apply only to white men. An earlier draft of the Declaration of Independence, submitted by Thomas Jefferson to the Continental Congress, had included among the charges against the King that "[h]e has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither." Franklin 88. The Southern delegation insisted that the charge be deleted; the colonists themselves were implicated in the slave trade, and inclusion of this claim might have made it more difficult to justify the continuation of slavery once the ties to England were severed. Thus, even as the colonists embarked on a Page 438 U. S. 389 course to secure their own freedom and equality, they ensured perpetuation of the system that deprived a whole race of those rights. The implicit protection of slavery embodied in the Declaration of Independence was made explicit in the Constitution, which treated a slave as being equivalent to three-fifths of a person for purposes of apportioning representatives and taxes among the States. Art. I, § 2. The Constitution also contained a clause ensuring that the "Migration or Importation" of slaves into the existing States would be legal until at least 1808, Art. I, § 9, and a fugitive slave clause requiring that, when a slave escaped to another State, he must be returned on the claim of the master, Art. IV, § 2. In their declaration of the principles that were to provide the cornerstone of the new Nation, therefore, the Framers made it plain that "we the people," for whose protection the Constitution was designed, did not include those whose skins were the wrong color. As Professor John Hope Franklin has observed, Americans "proudly accepted the challenge and responsibility of their new political freedom by establishing the machinery and safeguards that insured the continued enslavement of blacks." Franklin 100. The individual States likewise established the machinery to protect the system of slavery through the promulgation of the Slave Codes, which were designed primarily to defend the property interest of the owner in his slave. The position of the Negro slave as mere property was confirmed by this Court in Dred Scott v. Sandford , 19 How. 393 (1857), holding that the Missouri Compromise -- which prohibited slavery in the portion of the Louisiana Purchase Territory north of Missouri -- was unconstitutional because it deprived slave owners of their property without due process. The Court declared that, under the Constitution, a slave was property, and "[t]he right to traffic in it, like an ordinary article of merchandise and property, was guarantied to the citizens of the United Page 438 U. S. 390 States. . . ." Id. at 60 U. S. 451 . The Court further concluded that Negroes were not intended to be included as citizens under the Constitution, but were "regarded as beings of an inferior order . . . altogether unfit to associate with the white race, either in social or political relations; and so far inferior that they had no rights which the white man was bound to respect . . . ." Id. at 60 U. S. 407 . B The status of the Negro as property was officially erased by his emancipation at the end of the Civil War. But the long-awaited emancipation, while freeing the Negro from slavery, did not bring him citizenship or equality in any meaningful way. Slavery was replaced by a system of "laws which imposed upon the colored race onerous disabilities and burdens, and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value." Slaughter-House Cases , 16 Wall. 36, 83 U. S. 70 (1873). Despite the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments, the Negro was systematically denied the rights those Amendments were supposed to secure. The combined actions and inactions of the State and Federal Governments maintained Negroes in a position of legal inferiority for another century after the Civil War. The Southern States took the first steps to reenslave the Negroes. Immediately following the end of the Civil War, many of the provisional legislatures passed Black Codes, similar to the Slave Codes, which, among other things, limited the rights of Negroes to own or rent property and permitted imprisonment for breach of employment contracts. Over the next several decades, the South managed to disenfranchise the Negroes in spite of the Fifteenth Amendment by various techniques, including poll taxes, deliberately complicated balloting processes, property and literacy qualifications, and, finally, the white primary. Congress responded to the legal disabilities being imposed Page 438 U. S. 391 in the Southern States by passing the Reconstruction Acts and the Civil Rights Acts. Congress also responded to the needs of the Negroes at the end of the Civil War by establishing the Bureau of Refugees, Freedmen, and Abandoned Lands, better known as the Freedmen's Bureau, to supply food, hospitals, land, and education to the newly freed slaves. Thus, for a time, it seemed as if the Negro might be protected from the continued denial of his civil rights, and might be relieved of the disabilities that prevented him from taking his place as a free and equal citizen. That time, however, was short-lived. Reconstruction came to a close, and, with the assistance of this Court, the Negro was rapidly stripped of his new civil rights. In the words of C. Vann Woodward: "By narrow and ingenious interpretation [the Supreme Court's] decisions over a period of years had whittled away a great part of the authority presumably given the government for protection of civil rights." Woodward 139. The Court began by interpreting the Civil War Amendments in a manner that sharply curtailed their substantive protections. See, e.g., Slaughter-House Cases, supra; United States v. Reese, 92 U. S. 214 (1876); United States v. Cruikshank, 92 U. S. 542 (1876). Then, in the notorious Civil Rights Cases, 109 U. S. 3 (1883), the Court strangled Congress' efforts to use its power to promote racial equality. In those cases, the Court invalidated sections of the Civil Rights Act of 1875 that made it a crime to deny equal access to "inns, public conveyances, theatres and other places of public amusement." Id. at 109 U. S. 10 . According to the Court, the Fourteenth Amendment gave Congress the power to proscribe only discriminatory action by the State. The Court ruled that the Negroes who were excluded from public places suffered only an invasion of their social rights at the hands of private individuals, and Congress had no power to remedy that. Id. at 109 U. S. 24 -25. "When a man has emerged from slavery, and, by the aid of beneficent legislation, has shaken off the inseparable concomitants of that Page 438 U. S. 392 state," the Court concluded, "there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws. . . ." Id. at 109 U. S. 25 . As Mr. Justice Harlan noted in dissent, however, the Civil War Amendments and Civil Rights Acts did not make the Negroes the "special favorite" of the laws, but instead "sought to accomplish in reference to that race . . . -- what had already been done in every State of the Union for the white race -- to secure and protect rights belonging to them as freemen and citizens; nothing more." Id. at 109 U. S. 61 . The Court's ultimate blow to the Civil War Amendments and to the equality of Negroes came in Plessy v. Ferguson, 163 U. S. 537 (1896). In upholding a Louisiana law that required railway companies to provide "equal but separate" accommodations for whites and Negroes, the Court held that the Fourteenth Amendment was not intended "to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either." Id. at 163 U. S. 544 . Ignoring totally the realities of the positions of the two races, the Court remarked: "We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it." Id. at 163 U. S. 551 . Mr. Justice Harlan's dissenting opinion recognized the bankruptcy of the Court's reasoning. He noted that the "real meaning" of the legislation was "that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens." Id. at 163 U. S. 560 . He expressed his fear that, if like laws were enacted in other Page 438 U. S. 393 States, "the effect would be in the highest degree mischievous." Id. at 163 U. S. 563 . Although slavery would have disappeared, the States would retain the power "to interfere with the full enjoyment of the blessings of freedom; to regulate civil rights, common to all citizens, upon the basis of race; and to place in a condition of legal inferiority a large body of American citizens. . . ." Ibid. The fears of Mr. Justice Harlan were soon to be realized. In the wake of Plessy, many States expanded their Jim Crow laws, which had, up until that time, been limited primarily to passenger trains and schools. The segregation of the races was extended to residential areas, parks, hospitals, theaters, waiting rooms, and bathrooms. There were even statutes and ordinances which authorized separate phone booths for Negroes and whites, which required that textbooks used by children of one race be kept separate from those used by the other, and which required that Negro and white prostitutes be kept in separate districts. In 1898, after Plessy, the Charlestown News and Courier printed a parody of Jim Crow laws: "'If there must be Jim Crow cars on the railroads, there should be Jim Crow cars on the street railways. Also on all passenger boats. . . . If there are to be Jim Crow cars, moreover, there should be Jim Crow waiting saloons at all stations, and Jim Crow eating houses. . . . There should be Jim Crow sections of the jury box, and a separate Jim Crow dock and witness stand in every court -- and a Jim Crow Bible for colored witnesses to kiss.'" Woodward 68. The irony is that, before many years had passed, with the exception of the Jim Crow witness stand, "all the improbable applications of the principle suggested by the editor in derision had been put into practice -- down to and including the Jim Crow Bible." Id. at 69. Nor were the laws restricting the rights of Negroes limited Page 438 U. S. 394 solely to the Southern States. In many of the Northern States, the Negro was denied the right to vote, prevented from serving on juries, and excluded from theaters, restaurants, hotels, and inns. Under President Wilson, the Federal Government began to require segregation in Government buildings; desks of Negro employees were curtained off; separate bathrooms and separate tables in the cafeterias were provided; and even the galleries of the Congress were segregated. When his segregationist policies were attacked, President Wilson responded that segregation was " not humiliating, but a benefit,'" and that he was "`rendering [the Negroes] more safe in their possession of office, and less likely to be discriminated against.'" Kluger 91. The enforced segregation of the races continued into the middle of the 20th century. In both World Wars, Negroes were, for the most part, confined to separate military units; it was not until 1948 that an end to segregation in the military was ordered by President Truman. And the history of the exclusion of Negro children from white public schools is too well known and recent to require repeating here. That Negroes were deliberately excluded from public graduate and professional schools -- and thereby denied the opportunity to become doctors, lawyers, engineers, and the like is also well established. It is, of course, true that some of the Jim Crow laws (which the decisions of this Court had helped to foster) were struck down by this Court in a series of decisions leading up to Brown v. Board of Education, 347 U. S. 483 (1954). See, e.g., Morgan v. Virginia, 328 U. S. 373 (1946); Sweatt v. Painter, 339 U. S. 629 (1950); McLaurin v. Oklahoma State Regents, 339 U. S. 637 (1950). Those decisions, however, did not automatically end segregation, nor did they move Negroes from a position of legal inferiority to one of equality. The legacy of years of slavery and of years of second-class citizenship in the wake of emancipation could not be so easily eliminated. Page 438 U. S. 395 II The position of the Negro today in America is the tragic but inevitable consequence of centuries of unequal treatment. Measured by any benchmark of comfort or achievement, meaningful equality remains a distant dream for the Negro. A Negro child today has a life expectancy which is shorter by more than five years than that of a white child. [ Footnote 4/2 ] The Negro child's mother is over three times more likely to die of complications in childbirth, [ Footnote 4/3 ] and the infant mortality rate for Negroes is nearly twice that for whites. [ Footnote 4/4 ] The median income of the Negro family is only 60% that of the median of a white family, [ Footnote 4/5 ] and the percentage of Negroes who live in families with incomes below the poverty line is nearly four times greater than that of whites. [ Footnote 4/6 ] When the Negro child reaches working age, he finds that America offers him significantly less than it offers his white counterpart. For Negro adults, the unemployment rate is twice that of whites, [ Footnote 4/7 ] and the unemployment rate for Negro teenagers is nearly three times that of white teenagers. [ Footnote 4/8 ] A Negro male who completes four years of college can expect a median annual income of merely $110 more than a white male who has only a high school diploma. [ Footnote 4/9 ] Although Negroes Page 438 U. S. 396 represent 11.5% of the population, [ Footnote 4/10 ] they are only 1.2% of the lawyers and judges, 2% of the physicians, 2.3% of the dentists, 1.1% of the engineers and 2.6% of the college and university professors. [ Footnote 4/11 ] The relationship between those figures and the history of unequal treatment afforded to the Negro cannot be denied. At every point from birth to death, the impact of the past is reflected in the still disfavored position of the Negro. In light of the sorry history of discrimination and its devastating impact on the lives of Negroes, bringing the Negro into the mainstream of American life should be a state interest of the highest order. To fail to do so is to ensure that America will forever remain a divided society. III I do not believe that the Fourteenth Amendment requires us to accept that fate. Neither its history nor our past cases lend any support to the conclusion that a university may not remedy the cumulative effects of society's discrimination by giving consideration to race in an effort to increase the number and percentage of Negro doctors. A This Court long ago remarked that "in any fair and just construction of any section or phrase of these [Civil War] amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, the evil which they were designed to remedy. . . ." Slaughter-House Cases, 16 Wall. at 83 U. S. 72 . It is plain that the Fourteenth Amendment was not intended to prohibit measures designed to remedy the effects of the Page 438 U. S. 397 Nation's past treatment of Negroes. The Congress that passed the Fourteenth Amendment is the same Congress that passed the 1866 Freedmen's Bureau Act, an Act that provided many of its benefits only to Negroes. Act of July 16, 1866, ch. 200, 14 Stat. 173; see supra at 438 U. S. 391 . Although the Freedmen's Bureau legislation provided aid for refugees, thereby including white persons within some of the relief measures, 14 Stat. 174; see also Act of Mar. 3, 1865, ch. 90, 13 Stat. 507, the bill was regarded, to the dismay of many Congressmen, as "solely and entirely for the freedmen, and to the exclusion of all other persons. . . ." Cong.Globe, 39th Cong., 1st Sess., 544 (1866) (remarks of Rep. Taylor). See also id. at 634-635 (remarks of Rep. Ritter); id. at App. 78, 80-81 (remarks of Rep. Chandler). Indeed, the bill was bitterly opposed on the ground that it "undertakes to make the negro in some respects . . . superior . . . , and gives them favors that the poor white boy in the North cannot get." Id. at 401 (remarks of Sen. McDougall). See also id. at 319 (remarks of Sen. Hendricks); id. at 362 (remarks of Sen. Saulsbury); id. at 397 (remarks of Sen. Willey); id. at 544 (remarks of Rep. Taylor). The bill's supporters defended it not by rebutting the claim of special treatment, but by pointing to the need for such treatment: "The very discrimination it makes between 'destitute and suffering' negroes and destitute and suffering white paupers proceeds upon the distinction that, in the omitted case, civil rights and immunities are already sufficiently protected by the possession of political power, the absence of which in the case provided for necessitates governmental protection." Id. at App. 75 (remarks of Rep. Phelps) . Despite the objection to the special treatment the bill would provide for Negroes, it was passed by Congress. Id. at 421, 688. President Johnson vetoed this bill, and also a subsequent bill that contained some modifications; one of his principal Page 438 U. S. 398 objections to both bills was that they gave special benefits to Negroes. 8 Messages and Papers of the Presidents 3596, 3599, 3620, 3623 (1897). Rejecting the concerns of the President and the bill's opponents, Congress overrode the President's second veto. Cong.Globe, 39th Cong., 1st Sess., 3842, 3850 (1866). Since the Congress that considered and rejected the objections to the 1866 Freedmen's Bureau Act concerning special relief to Negroes also proposed the Fourteenth Amendment, it is inconceivable that the Fourteenth Amendment was intended to prohibit all race-conscious relief measures. It "would be a distortion of the policy manifested in that amendment, which was adopted to prevent state legislation designed to perpetuate discrimination on the basis of race or color," Railway Mail Assn. v. Corsi, 326 U. S. 88 , 326 U. S. 94 (1945), to hold that it barred state action to remedy the effects of that discrimination. Such a result would pervert the intent of the Framers by substituting abstract equality for the genuine equality the Amendment was intended to achieve. B As has been demonstrated in our joint opinion, this Court's past cases establish the constitutionality of race-conscious remedial measures. Beginning with the school desegregation cases, we recognized that, even absent a judicial or legislative finding of constitutional violation, a school board constitutionally could consider the race of students in making school assignment decisions. See Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 , 402 U. S. 16 (1971); McDaniel v. Barresi, 402 U. S. 39 , 402 U. S. 41 (1971). We noted, moreover, that a "flat prohibition against assignment of students for the purpose of creating a racial balance must inevitably conflict with the duty of school authorities to disestablish dual school systems. As we have held in Swann, the Constitution does not compel any particular degree of Page 438 U. S. 399 racial balance or mixing, but when past and continuing constitutional violations are found, some ratios are likely to be useful as starting points in shaping a remedy. An absolute prohibition against use of such a device -- even as a starting point -- contravenes the implicit command of Green v. County School Board, 391 U. S. 430 (1968), that all reasonable methods be available to formulate an effective remedy." Board of Education v. Swann, 402 U. S. 43 , 402 U. S. 46 (1971). As we have observed, "[a]ny other approach would freeze the status quo that is the very target of all desegregation processes." McDaniel v. Barresi, supra at 402 U. S. 41 . Only last Term, in United Jewish Organizations v. Carey, 430 U. S. 144 (1977), we upheld a New York reapportionment plan that was deliberately drawn on the basis of race to enhance the electoral power of Negroes and Puerto Ricans; the plan had the effect of diluting the electoral strength of the Hasidic Jewish community. We were willing in UJO to sanction the remedial use of a racial classification even though it disadvantaged otherwise "innocent" individuals. In another case last Term, Califano v. Webster, 430 U. S. 313 (1977), the Court upheld a provision in the Social Security laws that discriminated against men because its purpose was " the permissible one of redressing our society's longstanding disparate treatment of women.'" Id. at 430 U. S. 317 , quoting Califano v. Goldfarb, 430 U. S. 199 , 430 U. S. 209 n. 8 (1977) (plurality opinion). We thus recognized the permissibility of remedying past societal discrimination through the use of otherwise disfavored classifications. Nothing in those cases suggests that a university cannot similarly act to remedy past discrimination. [ Footnote 4/12 ] It is true that, Page 438 U. S. 400 in both UJO and Webster, the use of the disfavored classification was predicated on legislative or administrative action, but in neither case had those bodies made findings that there had been constitutional violations or that the specific individuals to be benefited had actually been the victims of discrimination. Rather, the classification in each of those cases was based on a determination that the group was in need of the remedy because of some type of past discrimination. There is thus ample support for the conclusion that a university can employ race-conscious measures to remedy past societal discrimination without the need for a finding that those benefited were actually victims of that discrimination. IV While I applaud the judgment of the Court that a university may consider race in its admissions process, it is more than a little ironic that, after several hundred years of class-based discrimination against Negroes, the Court is unwilling to hold that a class-based remedy for that discrimination is permissible. In declining to so hold, today's judgment ignores the fact that. for several hundred years, Negroes have been discriminated against not as individuals, but rather solely because of the color of their skins. It is unnecessary in 20th-century America to have individual Negroes demonstrate that they have been victims of racial discrimination; the racism of our society has been so pervasive that none, regardless of wealth or position, has managed to escape its impact. The experience of Negroes in America has been different in kind, not just in degree, from that of other ethnic groups. It is not merely the history of slavery alone, but also that a whole people were marked as inferior by the law. And that mark has endured. The dream of America as the great melting pot has Page 438 U. S. 401 not been realized for the Negro; because of his skin color, he never even made it into the pot. These differences in the experience of the Negro make it difficult for me to accept that Negroes cannot be afforded greater protection under the Fourteenth Amendment where it is necessary to remedy the effects of past discrimination. In the Civil Rights Cases, supra, the Court wrote that the Negro emerging from slavery must cease "to be the special favorite of the laws." 109 U.S. at 109 U. S. 25 ; see supra at 438 U. S. 392 . We cannot, in light of the history of the last century, yield to that view. Had the Court, in that decision and others, been willing to "do for human liberty and the fundamental rights of American citizenship what it did . . . for the protection of slavery and the rights of the masters of fugitive slaves," 109 U.S. at 109 U. S. 53 (Harlan, J., dissenting), we would not need now to permit the recognition of any "special wards." Most importantly, had the Court been willing in 1896, in Plessy v. Ferguson, to hold that the Equal Protection Clause forbids differences in treatment based on race, we would not be faced with this dilemma in 1978. We must remember, however, that the principle that the "Constitution is colorblind" appeared only in the opinion of the lone dissenter. 163 U.S. at 163 U. S. 559 . The majority of the Court rejected the principle of color blindness, and for the next 60 years, from Plessy to Brown v. Board of Education, ours was a Nation where, by law, an individual could be given "special" treatment based on the color of his skin. It is because of a legacy of unequal treatment that we now must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence, and prestige in America. For far too long, the doors to those positions have been shut to Negroes. If we are ever to become a fully integrated society, one in which the color of a person's skin will not determine the opportunities available to him or her, we must be willing Page 438 U. S. 402 to take steps to open those doors. I do not believe that anyone can truly look into America's past and still find that a remedy for the effects of that past is impermissible. It has been said that this case involves only the individual, Bakke, and this University. I doubt, however, that there is a computer capable of determining the number of persons and institutions that may be affected by the decision in this case. For example, we are told by the Attorney General of the United States that at least 27 federal agencies have adopted regulations requiring recipients of federal funds to take "' affirmative action to overcome the effects of conditions which resulted in limiting participation . . . by persons of a particular race, color, or national origin.'" Supplemental Brief for United States as Amicus Curiae 16 (emphasis added). I cannot even guess the number of state and local governments that have set up affirmative action programs, which may be affected by today's decision. I fear that we have come full circle. After the Civil War, our Government started several "affirmative action" programs. This Court, in the Civil Rights Cases and Plessy v. Ferguson, destroyed the movement toward complete equality. For almost a century, no action was taken, and this nonaction was with the tacit approval of the courts. Then we had Brown v. Board of Education and the Civil Rights Acts of Congress, followed by numerous affirmative action programs. Now, we have this Court again stepping in, this time to stop affirmative action programs of the type used by the University of California. [ Footnote 4/1 ] The history recounted here is perhaps too well known to require documentation. But I must acknowledge the authorities on which I rely in retelling it. J. Franklin, From Slavery to Freedom (4th ed.1974) (hereinafter Franklin); R. Kluger, Simple Justice (1975) (hereinafter Kluger); C. Woodward, The Strange Career of Jim Crow (3d ed.1974) (hereinafter Woodward). [ Footnote 4/2 ] U.S. Dept. of Commerce, Bureau of the Census, Statistical Abstract of the United States 65 (1977) (Table 94). [ Footnote 4/3 ] Id. at 70 (Table 102) . [ Footnote 4/4 ] Ibid. [ Footnote 4/5 ] U.S. Dept. of Commerce, Bureau of the Census, Current Population Reports, Series P-60, No. 107, p. 7 (1977) (Table 1). [ Footnote 4/6 ] Id. at 20 (Table 14). [ Footnote 4/7 ] U.S. Dept. of Labor, Bureau of Labor Statistics, Employment and Earnings, January, 1978, p. 170 (Table 44). [ Footnote 4/8 ] Ibid. [ Footnote 4/9 ] U.S. Dept. of Commerce, Bureau of the Census, Current Population Reports, Series P-60, No. 105, p. 198 (1977) (Table 47). [ Footnote 4/10 ] U.S. Dept. of Commerce, Bureau of the Census, Statistical Abstract, supra, at 25 (Table 24). [ Footnote 4/11 ] Id. at 407-408 (Table 662) (based on 1970 census). [ Footnote 4/12 ] Indeed, the action of the University finds support in the regulations promulgated under Title VI by the Department of Health, Education, and Welfare and approved by the President, which authorize a federally funded institution to take affirmative steps to overcome past discrimination against groups even where the institution was not guilty of prior discrimination. 45 CFR § 80.3(b)(6)(ii) (1977). MR. JUSTICE BLACKMUN. I participate fully, of course, in the opinion, ante p. 438 U. S. 324 , that bears the names of my Brothers BRENNAN, WHITE, MARSHALL, and myself. I add only some general observations that hold particular significance for me, and then a few comments on equal protection. Page 438 U. S. 403 I At least until the early 1970's, apparently only a very small number, less than 2%, of the physicians, attorneys, and medical and law students in the United States were members of what we now refer to as minority groups. In addition, approximately three-fourths of our Negro physicians were trained at only two medical schools. If ways are not found to remedy that situation, the country can never achieve its professed goal of a society that is not race-conscious. I yield to no one in my earnest hope that the time will come when an "affirmative action" program is unnecessary and is, in truth, only a relic of the past. I would hope that we could reach this stage within a decade, at the most. But the story of Brown v. Board of Education, 347 U. S. 483 (1954), decided almost a quarter of a century ago, suggests that that hope is a slim one. At some time, however, beyond any period of what some would claim is only transitional inequality, the United States must and will reach a stage of maturity where action along this line is no longer necessary. Then persons will be regarded as persons, and discrimination of the type we address today will be an ugly feature of history that is instructive, but that is behind us. The number of qualified, indeed highly qualified, applicants for admission to existing medical schools in the United States far exceeds the number of places available. Wholly apart from racial and ethnic considerations, therefore, the selection process inevitably results in the denial of admission to many qualified persons, indeed, to far more than the number of those who are granted admission. Obviously, it is a denial to the deserving. This inescapable fact is brought into sharp focus here because Allan Bakke is not himself charged with discrimination, and yet is the one who is disadvantaged, and because the Medical School of the University of California at Davis itself is not charged with historical discrimination. One theoretical solution to the need for more minority Page 438 U. S. 404 members in higher education would be to enlarge our graduate schools. Then all who desired and were qualified could enter, and talk of discrimination would vanish. Unfortunately, this is neither feasible nor realistic. The vast resources that apparently would be required simply are not available. And the need for more professional graduates, in the strict numerical sense, perhaps has not been demonstrated at all. There is no particular or real significance in the 84-16 division at Davis. The same theoretical, philosophical, social, legal, and constitutional considerations would necessarily apply to the case if Davis' special admissions program had focused on any lesser number, that is, on 12 or 8 or 4 places or, indeed, on only 1. It is somewhat ironic to have us so deeply disturbed over a program where race is an element of consciousness, and yet to be aware of the fact, as we are, that institutions of higher learning, albeit more on the undergraduate than the graduate level, have given conceded preferences up to a point to those possessed of athletic skills, to the children of alumni, to the affluent who may bestow their largess on the institutions, and to those having connections with celebrities, the famous, and the powerful. Programs of admission to institutions of higher learning are basically a responsibility for academicians and for administrators and the specialists they employ. The judiciary, in contrast, is ill-equipped and poorly trained for this. The administration and management of educational institutions are beyond the competence of judges and are within the special competence of educators, provided always that the educators perform within legal and constitutional bounds. For me, therefore, interference by the judiciary must be the rare exception, and not the rule. II I, of course, accept the propositions that (a) Fourteenth Amendment rights are personal; (b) racial and ethnic distinctions, Page 438 U. S. 405 where they are stereotypes, are inherently suspect and call for exacting judicial scrutiny; (c) academic freedom is a special concern of the First Amendment; and (d) the Fourteenth Amendment has expanded beyond its original 1868 concept, and now is recognized to have reached a point where, as MR. JUSTICE POWELL states, ante at 438 U. S. 293 , quoting from the Court's opinion in McDonald v. Santa Fe Trail Transp. Co., 427 U. S. 273 , 427 U. S. 296 (1976), it embraces a "broader principle." This enlargement does not mean for me, however, that the Fourteenth Amendment has broken away from its moorings and its original intended purposes. Those original aims persist. And that, in a distinct sense, is what "affirmative action," in the face of proper facts, is all about. If this conflicts with idealistic equality, that tension is original Fourteenth Amendment tension, constitutionally conceived and constitutionally imposed, and it is part of the Amendment's very nature until complete equality is achieved in the area. In this sense, constitutional equal protection is a shield. I emphasize in particular that the decided cases are not easily to be brushed aside. Many, of course, are not precisely on point, but neither are they off point. Racial factors have been given consideration in the school desegregation cases, in the employment cases, in Lau v. Nichols, 414 U. S. 563 (1974), and in United Jewish Organizations v. Carey, 430 U. S. 144 (1977). To be sure, some of these may be "distinguished" on the ground that victimization was directly present. But who is to say that victimization is not present for some members of today's minority groups, although it is of a lesser and perhaps different degree. The petitioners in United Jewish Organizations certainly complained bitterly of their reapportionment treatment, and I rather doubt that they regard the "remedy" there imposed as one that was "to improve" the group's ability to participate, as MR. JUSTICE POWELL describes it, ante at 438 U. S. 305 . And surely. in Lau v. Nichols, we looked to ethnicity. Page 438 U. S. 406 I am not convinced, as MR. JUSTICE POWELL seems to be, that the difference between the Davis program and the one employed by Harvard is very profound, or constitutionally significant. The line between the two is a thin and indistinct one. In each, subjective application is at work. Because of my conviction that admission programs are primarily for the educators, I am willing to accept the representation that the Harvard program is one where good faith in its administration is practiced, as well as professed. I agree that such a program, where race or ethnic background is only one of many factors, is a program better formulated than Davis' two-track system. The cynical, of course, may say that, under a program such as Harvard's, one may accomplish covertly what Davis concedes it does openly. I need not go that far, for, despite its two-track aspect, the Davis program, for me, is within constitutional bounds, though perhaps barely so. It is surely free of stigma, and, as in United Jewish Organizations, I am not willing to infer a constitutional violation. It is worth noting, perhaps, that governmental preference has not been a stranger to our legal life. We see it in veterans' preferences. We see it in the aid-to-the-handicapped programs. We see it in the progressive income tax. We see it in the Indian programs. We may excuse some of these on the ground that they have specific constitutional protection or, as with Indians, that those benefited are wards of the Government. Nevertheless, these preferences exist, and may not be ignored. And in the admissions field, as I have indicated, educational institutions have always used geography, athletic ability, anticipated financial largess, alumni pressure, and other factors of that kind. I add these only as additional components on the edges of the central question as to which I join my Brothers BRENNAN, WHITE, and MARSHALL in our more general approach. It is gratifying to know that the Court at least finds it constitutional for an academic institution to take race and ethnic background into consideration as one factor, among many, in Page 438 U. S. 407 the administration of its admissions program. I presume that that factor always has been there, though perhaps not conceded or even admitted. It is a fact of life, however, and a part of the real world of which we are all a part. The sooner we get down the road toward accepting and being a part of the real world, and not shutting it out and away from us, the sooner will these difficulties vanish from the scene. I suspect that it would be impossible to arrange an affirmative action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot -- we dare not -- let the Equal Protection Clause perpetuate racial supremacy. So the ultimate question, as it was at the beginning of this litigation, is: among the qualified, how does one choose? A long time ago, as time is measured for this Nation, a Chief Justice, both wise and far-sighted, said: "In considering this question, then, we must never forget, that it is a constitution we are expounding." McCulloch v. Maryland , 4 Wheat. 316, 17 U. S. 407 (1819) (emphasis in original). In the same opinion, the Great Chief Justice further observed: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." Id. at 17 U. S. 421 . More recently, one destined to become a Justice of this Court observed: "The great generalities of the constitution have a content and a significance that vary from age to age." B. Cardozo, The Nature of the Judicial Process 17 (1921). Page 438 U. S. 408 And an educator who became a President of the United States said: "But the Constitution of the United States is not a mere lawyers' document: it is a vehicle of life, and its spirit is always the spirit of the age." W. Wilson, Constitutional Government in the United States 69 (1911). These precepts of breadth and flexibility and ever-present modernity are basic to our constitutional law. Today, again, we are expounding a Constitution. The same principles that governed McCulloch's case in 1819 govern Bakke's case in 1978. There can be no other answer. MR. JUSTICE STEVENS, with whom THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE REHNQUIST join, concurring in the judgment in part and dissenting in part. It is always important at the outset to focus precisely on the controversy before the Court. [ Footnote 5/1 ] It is particularly important to do so in this case, because correct identification of the issues will determine whether it is necessary or appropriate to express any opinion about the legal status of any admissions program other than petitioner's. I This is not a class action. The controversy is between two specific litigants. Allan Bakke challenged petitioner's special admissions program, claiming that it denied him a place in medical school because of his race in violation of the Federal and California Constitutions and of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. The California Supreme Court upheld his challenge and ordered him admitted. If the Page 438 U. S. 409 state court was correct in its view that the University's special program was illegal, and that Bakke was therefore unlawfully excluded from the Medical School because of his race, we should affirm its judgment, regardless of our views about the legality of admissions programs that are not now before the Court. The judgment as originally entered by the trial court contained four separate paragraphs, two of which are of critical importance. [ Footnote 5/2 ] Paragraph 3 declared that the University's special admissions program violated the Fourteenth Amendment, the State Constitution, and Title VI. The trial court did not order the University to admit Bakke, because it concluded that Bakke had not shown that he would have been admitted if there had been no special program. Instead, in paragraph 2 of its judgment, it ordered the University to consider Bakke's application for admission without regard to his race or the race of any other applicant. The order did not include any broad Page 438 U. S. 410 prohibition against any use of race in the admissions process; its terms were clearly limited to the University's consideration of Bakke's application. [ Footnote 5/3 ] Because the University has since been ordered to admit Bakke, paragraph 2 of the trial court's order no longer has any significance. The California Supreme Court, in a holding that is not challenged, ruled that the trial court incorrectly placed the burden on Bakke of showing that he would have been admitted in the absence of discrimination. The University then conceded "that it [could] not meet the burden of proving that the special admissions program did not result in Mr. Bakke's failure to be admitted." [ Footnote 5/4 ] Accordingly, the California Supreme Court directed the trial court to enter judgment ordering Bakke's admission. [ Footnote 5/5 ] Since that order superseded paragraph Page 438 U. S. 411 2 of the trial court's judgment, there is no outstanding injunction forbidding any consideration of racial criteria in processing applications. It is therefore perfectly clear that the question whether race can ever be used as a factor in an admissions decision is not an issue in this case, and that discussion of that issue is inappropriate. [ Footnote 5/6 ] II Both petitioner and respondent have asked us to determine the legality of the University's special admissions program by reference to the Constitution. Our settled practice, however, is to avoid the decision of a constitutional issue if a case can be fairly decided on a statutory ground. "If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable." Spector Motor Co. v. McLaughlin, 323 U. S. 101 , 323 U. S. 105 . [ Footnote 5/7 ] The more important the issue, the more force Page 438 U. S. 412 there is to this doctrine. [ Footnote 5/8 ] In this case, we are presented with a constitutional question of undoubted and unusual importance. Since, however, a dispositive statutory claim was raised at the very inception of this case, and squarely decided in the portion of the trial court judgment affirmed by the California Supreme Court, it is our plain duty to confront it. Only if petitioner should prevail on the statutory issue would it be necessary to decide whether the University's admissions program violated the Equal Protection Clause of the Fourteenth Amendment. III Section 601 of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d, provides: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." The University, through its special admissions policy, excluded Bakke from participation in its program of medical education because of his race. The University also acknowledges that it was, and still is, receiving federal financial assistance. [ Footnote 5/9 ] The plain language of the statute therefore requires affirmance of the judgment below. A different result Page 438 U. S. 413 cannot be justified unless that language misstates the actual intent of the Congress that enacted the statute or the statute is not enforceable in a private action. Neither conclusion is warranted. Title VI is an integral part of the far-reaching Civil Rights Act of 1964. No doubt, when this legislation was being debated, Congress was not directly concerned with the legality of "reverse discrimination" or "affirmative action" programs. Its attention was focused on the problem at hand, the "glaring . . . discrimination against Negroes which exists throughout our Nation," [ Footnote 5/10 ] and, with respect to Title VI, the federal funding of segregated facilities. [ Footnote 5/11 ] The genesis of the legislation, however, did not limit the breadth of the solution adopted. Just as Congress responded to the problem of employment discrimination by enacting a provision that protects all races, see McDonald v. Santa Fe Trail Transp. Co., 427 U. S. 273 , 427 U. S. 279 , [ Footnote 5/12 ] so, too, its answer to the problem of federal funding of segregated facilities stands as a broad prohibition against the exclusion of any individual from a federally funded program "on the ground of race." In the words of the House Report, Title VI stands for "the general principle that no person . . . be excluded from participation . . . on the ground of race, color, or national origin under any program or activity receiving Federal financial assistance." H.R.Rep. No. 914, 88th Page 438 U. S. 414 Cong., 1st Sess, pt. l, p. 25 (1963) (emphasis added). This same broad view of Title VI and § 601 was echoed throughout the congressional debate and was stressed by every one of the major spokesmen for the Act. [ Footnote 5/13 ] Petitioner contends, however, that exclusion of applicants on the basis of race does not violate Title VI if the exclusion carries with it no racial stigma. No such qualification or limitation of § 601's categorical prohibition of "exclusion" is justified by the statute or its history. The language of the entire section is perfectly clear; the words that follow "excluded from" do not modify or qualify the explicit outlawing of any exclusion on the stated grounds. The legislative history reinforces this reading. The only suggestion that § 601 would allow exclusion of nonminority applicants came from opponents of the legislation, and then only by way of a discussion of the meaning of the word "discrimination." [ Footnote 5/14 ] The opponents feared that the term "discrimination" Page 438 U. S. 415 would be read as mandating racial quotas and "racially balanced" colleges and universities, and they pressed for a specific definition of the term in order to avoid this possibility. [ Footnote 5/15 ] In response, the proponents of the legislation gave repeated assurances that the Act would be "colorblind" in its application. [ Footnote 5/16 ] Senator Humphrey, the Senate floor manager for the Act, expressed this position as follows: "[T]he word 'discrimination' has been used in many a court case. What it really means in the bill is a distinction in treatment . . . given to different individuals because of their different race, religion or national origin. . . ." "The answer to this question [what was meant by 'discrimination'] is that if race is not a factor, we do not have to worry about discrimination because of race. . . . The Internal Revenue Code does not provide that colored people do not have to pay taxes, or that they can pay their taxes 6 months later than everyone else." 110 Cong.Rec. 5864 (1964). "[I]f we started to treat Americans as Americans, not as fat ones, thin ones, short ones, tall ones, brown ones, green ones, yellow ones, or white ones, but as Americans. If we did that, we would not need to worry about discrimination." Id. at 5866. Page 438 U. S. 416 In giving answers such as these, it seems clear that the proponents of Title VI assumed that the Constitution itself required a colorblind standard on the part of government, [ Footnote 5/17 ] but that does not mean that the legislation only codifies an existing constitutional prohibition. The statutory prohibition against discrimination in federally funded projects contained in § 601 is more than a simple paraphrasing of what the Fifth or Fourteenth Amendment would require. The Act's proponents plainly considered Title VI consistent with their view of the Constitution, and they sought to provide an effective weapon to implement that view. [ Footnote 5/18 ] As a distillation of what the supporters of the Act believed the Constitution demanded of State and Federal Governments, § 601 has independent force, with language and emphasis in addition to that found in the Constitution. [ Footnote 5/19 ] Page 438 U. S. 417 As with other provisions of the Civil Rights Act, Congress' expression of it policy to end racial discrimination may independently proscribe conduct that the Constitution does not. [ Footnote 5/20 ] However, we need not decide the congruence -- or lack of congruence -- of the controlling statute and the Constitution Page 438 U. S. 418 since the meaning of the Title VI ban on exclusion is crystal clear: race cannot be the basis of excluding anyone from participation in a federally funded program. In short, nothing in the legislative history justifies the conclusion that the broad language of § 601 should not be given its natural meaning. We are dealing with a distinct statutory prohibition, enacted at a particular time with particular concerns in mind; neither its language nor any prior interpretation suggests that its place in the Civil Rights Act, won after long debate, is simply that of a constitutional appendage. [ Footnote 5/21 ] In unmistakable terms, the Act prohibits the exclusion of individuals from federally funded programs because of their race. [ Footnote 5/22 ] As succinctly phrased during the Senate debate, under Title VI, it is not "permissible to say yes' to one person, but to say `no' to another person, only because of the color of his skin." [ Footnote 5/23 ] Belatedly, however, petitioner argues that Title VI cannot be enforced by a private litigant. The claim is unpersuasive in the context of this case. Bakke requested injunctive and declaratory relief under Title VI; petitioner itself then joined Page 438 U. S. 419 issue on the question of the legality of its program under Title VI by asking for a declaratory judgment that it was in compliance with the statute. [ Footnote 5/24 ] Its view during state court litigation was that a private cause of action does exist under Title VI. Because petitioner questions the availability of a private cause of action for the first time in this Court, the question is not properly before us. See McGoldrick v. Companie Generale Transatlantique, 309 U. S. 430 , 309 U. S. 434 . Even if it were, petitioner's original assumption is in accord with the federal courts' consistent interpretation of the Act. To date, the courts, including this Court, have unanimously concluded or assumed that a private action may be maintained under Title VI. [ Footnote 5/25 ] The United States has taken the same position; in its amicus curiae brief directed to this specific issue, it concluded that such a remedy is clearly available, [ Footnote 5/26 ] Page 438 U. S. 420 and Congress has repeatedly enacted legislation predicated on the assumption that Title VI may be enforced in a private action. [ Footnote 5/27 ] The conclusion that an individual may maintain a private cause of action is amply supported in the legislative history of Title VI itself. [ Footnote 5/28 ] In short, a fair consideration of Page 438 U. S. 421 petitioner's tardy attack on the propriety of Bakke's suit under Title VI requires that it be rejected. The University's special admissions program violated Title VI of the Civil Rights Act of 1964 by excluding Bakke from the Medical School because of his race. It is therefore our duty to affirm the judgment ordering Bakke admitted to the University. Accordingly, I concur in the Court's judgment insofar as it affirms the judgment of the Supreme Court of California. To the extent that it purports to do anything else, I respectfully dissent. [ Footnote 5/1 ] Four Members of the Court have undertaken to announce the legal and constitutional effect of this Court's judgment. See opinion of JUSTICES BRENNAN, WHITE, MARSHALL, and BLACKMUN, ante at 438 U. S. 324 -325. It is hardly necessary to state that only a majority can speak for the Court or determine what is the "central meaning" of any judgment of the Court. [ Footnote 5/2 ] The judgment first entered by the trial court read, in its entirety, as follows: "IT IS HEREBY ORDERED, ADJUDGED AND DECREED:" "1. Defendant, the Regents of the University of California, have judgment against plaintiff, Allan Bakke, denying the mandatory injunction requested by plaintiff ordering his admission to the University of California at Davis Medical School;" "2. That plaintiff is entitled to have his application for admission to the medical school considered without regard to his race or the race of any other applicant, and defendants are hereby restrained and enjoined from considering plaintiff's race or the race of any other applicant in passing upon his application for admission;" "3. Cross-defendant Allan Bakke have judgment against cross-complaint, the Regents of the University of California, declaring that the special admissions program at the University of California at Davis Medical School violates the Fourteenth Amendment to the United States Constitution, Article 1, Section 21 of the California Constitution, and the Federal Civil Rights Act [42 U.S.C. § 2000d];" "4. That plaintiff have and recover his court costs incurred herein in the sum of $217.35." App. to Pet. for Cert. 120a. [ Footnote 5/3 ] In paragraph 2, the trial court ordered that "plaintiff [Bakke] is entitled to have his application for admission to the medical school considered without regard to his race or the race of any other applicant, and defendants are hereby restrained and enjoined from considering plaintiff's race or the race of any other applicant in passing upon his application for admission." See 438 U.S. 265 fn5/2|>n. 2, supra, (emphasis added). The only way in which this order can be broadly read as prohibiting any use of race in the admissions process, apart from Bakke's application, is if the final "his" refers to "any other applicant." But the consistent use of the pronoun throughout the paragraph to refer to Bakke makes such a reading entirely unpersuasive, as does the failure of the trial court to suggest that it was issuing relief to applicants who were not parties to the suit. [ Footnote 5/4 ] Appendix B to Application for Stay A19-A20. [ Footnote 5/5 ] 18 Cal. 3d 34 , 64, 553 P.2d 1152, 1172 (1976). The judgment of the Supreme Court of the State of California affirms only paragraph 3 of the trial court's judgment. The Supreme Court's judgment reads as follows: "IT IS ORDERED, ADJUDGED, AND DECREED by the Court that the judgment of the Superior Court[,] County of Yolo[,] in the above-entitled cause, is hereby affirmed insofar as it determines that the special admission program is invalid; the judgment is reversed insofar as it denies Bakke an injunction ordering that he be admitted to the University, and the trial court is directed to enter judgment ordering Bakke to be admitted. 'Bakke shall recover his costs on these appeals.'" [ Footnote 5/6 ] "This Court . . . reviews judgments, not statements in opinions." Black v. Cutter Laboratories, 351 U. S. 292 , 351 U. S. 297 . [ Footnote 5/7 ] "From Hayburn's Case , 2 Dall. 409, to Alma Motor Co. v. Timken-Detroit Axle Co. [, 329 U. S. 129 ,] and the Hatch Act case \[United Public Workers v. Mitchell , 330 U. S. 75 ,] decided this term, this Court has followed a policy of strict necessity in disposing of constitutional issues. The earliest exemplifications, too well known for repeating the history here, arose in the Court's refusal to render advisory opinions and in applications of the related jurisdictional policy drawn from the case and controversy limitation. U.S.Const., Art. III. . . ." "The policy, however, has not been limited to jurisdictional determinations. For, in addition," "the Court [has] developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision." "Thus, as those rules were listed in support of the statement quoted, constitutional issues affecting legislation will not be determined in friendly, nonadversary proceedings; in advance of the necessity of deciding them; in broader terms than are required by the precise facts to which the ruling is to be applied; if the record presents some other ground upon which the case may be disposed of; at the instance of one who fails to show that he is injured by the statute's operation, or who has availed himself of its benefits; or if a construction of the statute is fairly possible by which the question may be avoided." Rescue Army v. Municipal Court, 331 U. S. 549 , 331 U. S. 568 -569 (footnotes omitted). See also Ashwander v. TVA, 297 U. S. 288 , 297 U. S. 346 -348 (Brandeis, J., concurring). [ Footnote 5/8 ] The doctrine reflects both our respect for the Constitution as an enduring set of principles and the deference we owe to the Legislative and Executive Branches of Government in developing solutions to complex social problems. See A. Bickel, The Least Dangerous Branch 131 (1962). [ Footnote 5/9 ] Record 29. [ Footnote 5/10 ] H.R.Rep. No. 914, 88th Cong., 1st Sess., pt. 1, p. 18 (1963). [ Footnote 5/11 ] It is apparent from the legislative history that the immediate object of Title VI was to prevent federal funding of segregated facilities. See, e.g., 110 Cong.Rec. 1521 (1964) (remarks of Rep. Celler); id. at 6544 (remarks of Sen. Humphrey). [ Footnote 5/12 ] In McDonald v. Santa Fe Trail Transp. Co., the Court held that "Title VII prohibits racial discrimination against . . . white petitioners . . . upon the same standards as would be applicable were they Negroes. . . ." 427 U.S. at 427 U. S. 280 . Quoting from our earlier decision in Griggs v Duke Power Co., 401 U. S. 424 , 401 U. S. 431 , the Court reaffirmed the principle that the statute "prohibit[s] [d]iscriminatory preference for any [racial] group, minority or majority. '" 427 U.S. at 427 U. S. 279 (emphasis in original). [ Footnote 5/13 ] See, e.g., 110 Cong.Rec. 1520 (1964) (remarks of Rep. Celler); id. at 5864 (remarks of Sen. Humphrey); id. at 6561 (remarks of Sen. Kuchel); id. at 7055 (remarks of Sen. Pastore). (Representative Celler and Senators Humphrey and Kuchel were the House and Senate floor managers for the entire Civil Rights Act, and Senator Pastore was the majority Senate floor manager for Title VI.) [ Footnote 5/14 ] Representative Abernethy's comments were typical: "Title VI has been aptly described as the most harsh and unprecedented proposal contained in the bill. . . . " "It is aimed toward eliminating discrimination in federally assisted programs. It contains no guideposts and no yardsticks as to what might constitute discrimination in carrying out federally aided programs and projects. . . ." " * * * *" "Presumably, the college would have to have a 'racially balanced' staff from the dean's office to the cafeteria. . . ." "The effect of this title, if enacted into law, will interject race as a factor in every decision involving the selection of an individual. . . . The concept of 'racial imbalance' would hover like a black cloud over every transaction. . . ." Id. at 1619. See also, e.g., id. at 5611-5613 (remarks of Sen. Ervin); id. at 9083 (remarks of Sen. Gore). [ Footnote 5/15 ] E.g., id. at 5863, 5874 (remarks of Sen. Eastland). [ Footnote 5/16 ] See, e.g., id. at 8364 (remarks off Sen. Proxmire) ("Taxes are collected from whites and Negroes, and they should be expended without discrimination"); id. at 7055 (remarks of Sen. Pastore) ("[Title VI] will guarantee that the money collected by colorblind tax collectors will be distributed Federal and State administrators who are equally colorblind"); and id. at 6543 (remarks of Sen. Humphrey) (" Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination'") (quoting from President Kennedy's Message to Congress, June 19, 1963). [ Footnote 5/17 ] See, e.g., 110 Cong.Rec. 5253 (1964) (remarks of Sen. Humphrey); and id. at 7102 (remarks of Sen. Javits). The parallel between the prohibitions of Title VI and those of the Constitution was clearest with respect to the immediate goal of the Act -- an end to federal funding of "separate but equal" facilities. [ Footnote 5/18 ] "As in Monroe \[v. Pape , 365 U. S. 167 ], we have no occasion here to" "reach the constitutional question whether Congress has the power to make municipalities liable for acts of its officers that violate the civil rights of individuals." "365 U.S. at 365 U. S. 191 . For in interpreting the statute, it is not our task to consider whether Congress was mistaken in 1871 in its view of the limit of its power over municipalities; rather, we must construe the statute in light of the impressions under which Congress did, in fact, act, see Ries v. Lynskey, 452 F.2d at 175." Moor v. County of Alameda, 411 U. S. 693 , 411 U. S. 709 . [ Footnote 5/19 ] Both Title VI and Title VII express Congress' belief that, in the long struggle to eliminate social prejudice and the effects of prejudice, the principle of individual equality, without regard to race or religion, was one on which there could be a "meeting of the minds" among all races and a common national purpose. See Los Angeles Dept. of Water & Power v. Manhart, 435 U. S. 702 , 435 U. S. 709 ("[T]he basic policy of the statute [Title VII] requires that we focus on fairness to individuals, rather than fairness to classes"). This same principle of individual fairness is embodied in Title VI. "The basic fairness of title VI is so clear that I find it difficult to understand why it should create any opposition. . . ." " * * * *" "Private prejudices, to be sure, cannot be eliminated overnight. However, there is one area where no room at all exists for private prejudices. That is the area of governmental conduct. As the first Mr. Justice Harlan said in his prophetic dissenting opinion in Plessy v. Ferguson, 163 U. S. 537 , 163 U. S. 559 :" "Our Constitution is color-blind." "So -- I say to Senators -- must be our Government. . . ." "Title VI closes the gap between our purposes as a democracy and our prejudices as individuals. The cuts of prejudice need healing. The costs of prejudice need understanding. We cannot have hostility between two great parts of our people without tragic loss in our human values. . . . " "Title VI offers a place for the meeting of our minds as to Federal money." 110 Cong.Rec. 7063-7064 (1964) (remarks of Sen. Pastore). Of course, one of the reasons marshaled in support of the conclusion that Title VI was "noncontroversial" was that its prohibition was already reflected in the law. See ibid. (remarks of Sen. Pell and Sen. Pastore). [ Footnote 5/20 ] For example, private employers now under duties imposed by Title VII were wholly free from the restraints imposed by the Fifth and Fourteenth Amendments which are directed only to governmental action. In Lau v. Nichols, 414 U. S. 563 , the Government's brief stressed that "the applicability of Title VI . . . does not depend upon the outcome of the equal protection analysis. . . . [T]he statute independently proscribes the conduct challenged by petitioners, and provides a discrete basis for injunctive relief." Brief for United States as Amicus Curiae, O.T. 1973, No. 72-6520, p. 15. The Court, in turn, rested its decision on Title VI. MR. JUSTICE POWELL takes pains to distinguish Lau from the case at hand because the Lau decision "rested solely on the statute." Ante at 438 U. S. 304 . See also Washington v. Davis, 426 U. S. 229 , 426 U. S. 238 -239; Allen v. State Board of Elections, 393 U. S. 544 , 393 U. S. 588 (Harlan, J., concurring and dissenting). [ Footnote 5/21 ] As explained by Senator Humphrey, § 601 expresses a principle imbedded in the constitutional and moral understanding of the times. "The purpose of title VI is to make sure that funds of the United States are not used to support racial discrimination. In many instances, the practices of segregation or discrimination, which title VI seeks to end, are unconstitutional. . . . In all cases, such discrimination is contrary to national policy, and to the moral sense of the Nation. Thus, title VI is simply designed to insure that Federal funds are spent in accordance with the Constitution and the moral sense of the Nation." 110 Cong.Rec. 6544 (1964) (emphasis added). [ Footnote 5/22 ] Petitioner's attempt to rely on regulations issued by HEW for a contrary reading of the statute is unpersuasive. Where no discriminatory policy was in effect., HEW's example of permissible "affirmative action" refers to "special recruitment policies." 45 CFR § 80.5(j) (1977). This regulation, which was adopted in 1973, sheds no light on the legality of the admissions program that excluded Bakke in this case. [ Footnote 5/23 ] 110 Cong.Rec. 6047 (1964) (remarks of Sen. Pastore). [ Footnote 5/24 ] Record 30-31. [ Footnote 5/25 ] See, e.g., Lau v. Nichols, supra; Bossier Parish School Board v. Lemon, 370 F.2d 847 (CA5 1967), cert. denied, 388 U.S. 911; Uzzell v. Friday, 547 F.2d 801 (CA4 1977), opinion on rehearing en banc, 558 F.2d 727, cert. pending, No. 77-635; Serna v. Portales, 499 F.2d 1147 (CA10 1974); cf. Chambers v. Omaha Public School District, 536 F.2d 222, 225 n. 2 (CA8 1976) (indicating doubt over whether a money judgment can be obtained under Title VI). Indeed, the Government's brief in Lau v. Nichols, supra, succinctly expressed this common assumption: "It is settled that petitioners . . . have standing to enforce Section 601. . . ." Brief for United States as Amicus Curiae in Lau v. Nichols, O.T. 1973, No. 72-6520, p. 13 n. 5. [ Footnote 5/26 ] Supplemental Brief for United States as Amicus Curiae 24-34. The Government's supplemental brief also suggests that there may be a difference between a private cause of action brought to end a particular discriminatory practice and such an action brought to cut off federal funds. Id. at 28-30. Section 601 is specifically addressed to personal rights, while § 602 -- the fund cutoff provision -- establishes "an elaborate mechanism for governmental enforcement by federal agencies." Supplemental Brief, supra at 28 (emphasis added). Arguably, private enforcement of this "elaborate mechanism" would not fit within the congressional scheme, see separate opinion of MR. JUSTICE WHITE, ante at 438 U. S. 380 -383. But Bakke did not seek to cut off the University's federal funding; he sought admission to medical school. The difference between these two courses of action is clear and significant. As the Government itself states: "[T]he grant of an injunction or a declaratory judgment in a private action would not be inconsistent with the administrative program established by Section 602. . . . A declaratory judgment or injunction against future discrimination would not raise the possibility that funds would be terminated, and it would not involve bringing the forces of the Executive Branch to bear on state programs; it therefore would not implicate the concern that led to the limitations contained in Section 602." Supplemental Brief, supra at 30 n. 25. The notion that a private action seeking injunctive or declaratory judgment relief is inconsistent with a federal statute that authorizes termination of funds has clearly been rejected by this Court in prior cases. See Rosado v. Wyman, 397 U. S. 397 , 397 U. S. 420 . [ Footnote 5/27 ] See 29 U.S.C. § 794 (1976 ed.) (the Rehabilitation Act of 1973) (in particular, the legislative history discussed in Lloyd v. Regional Transportation Authority, 548 F.2d 1277, 1285-1286 (CA7 1977)); 20 U.S.C. § 1617 (1976 ed.) (attorney fees under the Emergency School Aid Act); and 31 U.S.C. § 1244 (1976 ed.) (private action under the Financial Assistance Act). Of course, none of these subsequent legislative enactments is necessarily reliable evidence of Congress' intent in 1964 in enacting Title VI, and the legislation was not intended to change the existing status of Title VI. [ Footnote 5/28 ] Framing the analysis in terms of the four-part Cort v. Ash test, see 422 U. S. 66 , 422 U. S. 78 , it is clear that all four parts of the test are satisfied. (1) Bakke's status as a potential beneficiary of a federally funded program definitely brings him within the " class for whose especial benefit the statute was enacted,'" ibid. (emphasis in original). (2) A cause of action based on race discrimination has not been "traditionally relegated to state law." Ibid. (3) While a few excerpts from the voluminous legislative history suggest that Congress did not intend to create a private cause of action, see opinion of MR. JUSTICE POWELL, ante at 438 U. S. 283 n. 18, an examination of the entire legislative history makes it clear that Congress had no intention to foreclose a private right of action. (4) There is ample evidence that Congress considered private causes of action to be consistent with, if not essential to, the legislative scheme. See, e.g., remarks of Senator Ribicoff: "We come then to the crux of the dispute -- how this right [to participate in federally funded programs without discrimination] should be protected. And even this issue becomes clear upon the most elementary analysis. If Federal funds are to be dispensed on a nondiscriminatory basis, the only possible remedies must fall into one of two categories: first, action to end discrimination; or second, action to end the payment of funds. Obviously action to end discrimination is preferable, since that reaches the objective of extending the funds on a nondiscriminatory basis. But if the discrimination persists and cannot be effectively terminated, how else can the principle of nondiscrimination be vindicated except by nonpayment of funds?" 110 Cong.Rec. 7065 (1964). See also id. at 5090, 6543, 6544 (remarks of Sen. Humphrey); id. at 7103, 12719 (remarks of Sen. Javits); id. at 7062, 7063 (remarks of Sen. Pastore). The congressional debates thus show a clear understanding that the principle embodied in § 601 involves personal federal rights that administrative procedures would not, for the most part, be able to protect. The analogy to the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq. (1970 ed. and Supp. V), is clear. Both that Act and Title VI are broadly phrased in terms of personal rights ("no person shall be denied . . ."); both Acts were drafted with broad remedial purposes in mind; and the effectiveness of both Acts would be "severely hampered" without the existence of a private remedy to supplement administrative procedures. See Allen v. State Bd. of Elections, 393 U. S. 544 , 393 U. S. 556 . In Allen, of course, this Court found a private right of action under the Voting Rights Act.

The University of California, Davis, Medical School had two admissions programs, a regular admissions program and a special admissions program for minority applicants. White applicant Allan Bakke was twice denied admission, and he sued, alleging that the special admissions program violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. The Supreme Court of California concluded that the special admissions program was unconstitutional and ordered Bakke admitted. The U.S. Supreme Court affirmed in part and reversed in part. The Court held that the Constitution prohibited state and federal governments from discriminating on the basis of race, but universities could use race as one of many factors in admissions decisions. The Court found that the Medical School's use of fixed quotas in its special admissions program was impermissible racial discrimination and violated Title VI and the Equal Protection Clause. However, the Court also held that universities had a compelling interest in achieving a diverse student body, and race could be considered as part of a holistic review of applicants. The Court emphasized that universities must ensure that each applicant is evaluated as an individual, and race-conscious admissions policies must be limited in time. In this case, the Court struck down the Medical School's rigid racial quota but allowed race to be considered as a factor in admissions, provided it was part of a flexible, holistic review process and was limited in duration. This decision shaped affirmative action policies in higher education for decades.

Equal Protection

Ambach v. Norwick

https://supreme.justia.com/cases/federal/us/441/68/

U.S. Supreme Court Ambach v. Norwick, 441 U.S. 68 (1979) Ambach v. Norwick No. 76-808 Argued January 10, 1979 Decided April 17, 1979 441 U.S. 68 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK Syllabus Held: A New York statute forbidding permanent certification as a public school teacher of any person who is not a United States citizen unless that person has manifested an intention to apply for citizenship does not violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 441 U. S. 72 -81. (a) As a general principle, some state functions are so bound up with the operation of the State as a governmental entity as to permit exclusion from those functions of all persons who have not become part of the process of self-government. Accordingly, a State is required to justify its exclusion of aliens from such governmental positions only "by a showing of some rational relationship between the interest sought to be protected and the limiting classification." Foley v. Connelie, 435 U. S. 291 , 435 U. S. 296 . Pp 441 U. S. 73 -74. (b) This rule for governmental functions, which is an exception to the stricter general standard applicable to classifications based on alienage, rests on important principles inherent in the Constitution. The distinction between citizens and aliens, though ordinarily irrelevant to private activity, is fundamental to the definition and government of a State, and the references to such distinction in the Constitution itself indicate that the status of citizenship was meant to have significance in the structure of our government. It is because of this special significance of citizenship that governmental entities, when exercising the functions of government, have wider latitude in limiting the participation of noncitizens. P. 441 U. S. 75 . (c) Taking into consideration the role of public education and the degree of responsibility and discretion teachers possess in fulfilling that role, it is clear that public school teachers come well within the "governmental function" principle recognized in Sugarman v. Dougall, 413 U. S. 634 , and Foley v. Connelie, supra, and, accordingly, the Constitution requires only that a citizenship requirement applicable to teaching in the public school bear a rational relationship to a legitimate state interest. Pp. 441 U. S. 75 -80. Page 441 U. S. 69 (d) Here, the statute in question does bear a rational relationship to the State's interest in furthering its educational goals, especially with respect to regarding all teachers as having an obligation to promote civic virtues and understanding in their classes, regardless of the subject taught. Pp. 441 U. S. 80 -81. 417 F. Supp. 913 , reversed. POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, and REHNQUIST, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 441 U. S. 81 . MR. JUSTICE POWELL delivered the opinion of the Court. This case presents the question whether a State, consistently with the Equal Protection Clause of the Fourteenth Amendment, may refuse to employ as elementary and secondary school teachers aliens who are eligible for United States citizenship but who refuse to seek naturalization. I New York Education Law § 3001(3) (McKinney 1970) forbids certification as a public school teacher of any person who is not a citizen of the United States, unless that person has Page 441 U. S. 70 manifested an intention to apply for citizenship. [ Footnote 1 ] The Commissioner of Education is authorized to create exemptions from this prohibition, and has done so with respect to aliens who are not yet eligible for citizenship. [ Footnote 2 ] Unless a teacher obtains certification, he may not work in a public elementary or secondary school in New York. [ Footnote 3 ] Page 441 U. S. 71 Appellee Norwick was born in Scotland, and is a subject of Great Britain. She has resided in this country since 1965, and is married to a United States citizen. Appellee Dachinger is a Finnish subject who came to this country in 1966, and also is married to a United States citizen. Both Norwick and Dachinger currently meet all of the educational requirements New York has set for certification as a public school teacher, but they consistently have refused to seek citizenship in spite of their eligibility to do so. Norwick applied in 1973 for a teaching certificate covering nursery school through sixth grade, and Dachinger sought a certificate covering the same grades in 1975. [ Footnote 4 ] Both applications were denied because of appellees' failure to meet the requirements of § 3001(3). Norwick then filed this suit seeking to enjoin the enforcement of § 3001(3), and Dachinger obtained leave to intervene as a plaintiff. A three-judge District Court was convened pursuant to 28 U.S.C. § 2281 (1970 ed.). Applying the "close judicial scrutiny" standard of Graham v. Richardson, 403 U. S. 365 , 403 U. S. 372 (1971), the court held that § 3001(3) discriminated against aliens in violation of the Equal Protection Clause. Norwick v. Nyquist, 417 F. Supp. 913 (SDNY 1976). The court believed that the statute was overbroad, because it excluded all resident aliens from all teaching jobs regardless of the subject sought to be taught, the alien's nationality, the nature of the Page 441 U. S. 72 alien's relationship to this country, and the alien's willingness to substitute some other sign of loyalty to this Nation's political values, such as an oath of allegiance. Id. at 921. We noted probable jurisdiction over the state school officials' appeal, 436 U.S. 902 (1978), and now reverse. II A The decisions of this Court regarding the permissibility of statutory classifications involving aliens have not formed an unwavering line over the years. State regulation of the employment of aliens long has been subject to constitutional constraints. In Yick Wo v. Hopkins, 118 U. S. 356 (1886), the Court struck down an ordinance which was applied to prevent aliens from running laundries, and in Truax v. Raich, 239 U. S. 33 (1915), a law requiring at least 80% of the employees of certain businesses to be citizens was held to be an unconstitutional infringement of an alien's "right to work for a living in the common occupations of the community. . . ." Id. at 239 U. S. 41 . At the same time, however, the Court also has recognized a greater degree of latitude for the States when aliens were sought to be excluded from public employment. At the time Truax was decided, the governing doctrine permitted States to exclude aliens from various activities when the restriction pertained to "the regulation or distribution of the public domain, or of the common property or resources of the people of the State. . . ." Id. at 239 U. S. 39 . Hence, as part of a larger authority to forbid aliens from owning land, Frick v. Webb, 263 U. S. 326 (1923); Webb v. O'Brien, 263 U. S. 313 (1923); Terrace v. Thompson, 263 U. S. 197 (1923); Blythe v. Hinckley, 180 U. S. 333 (1901); Hauenstein v. Lynham, 100 U. S. 483 (1880); harvesting wildlife, Patsone v. Pennsylvania, 232 U. S. 138 (1914); McCready v. Virginia, 94 U. S. 391 (1877); Page 441 U. S. 73 or maintaining an inherently dangerous enterprise, Ohio ex rel. Clarke v. Deckebach, 274 U. S. 392 (1927), States permissibly could exclude aliens from working on public construction projects, Crane v. New York, 239 U. S. 195 (1915), and, it appears, from engaging in any form of public employment at all, see Truax, supra at 239 U. S. 40 . Over time, the Court's decisions gradually have restricted the activities from which States are free to exclude aliens. The first sign that the Court would question the constitutionality of discrimination against aliens even in areas affected with a "public interest" appeared in Oyama v. California, 332 U. S. 633 (1948). The Court there held that statutory presumptions designed to discourage evasion of California's ban on alien landholding discriminated against the citizen children of aliens. The same Term, the Court held that the "ownership" a State exercises over fish found in its territorial waters "is inadequate to justify California in excluding any or all aliens who are lawful residents of the State from making a living by fishing in the ocean off its shores while permitting all others to do so." Takahashi v. Fish & Game Comm'n, 334 U. S. 410 , 334 U. S. 421 (1948). This process of withdrawal from the former doctrine culminated in Graham v. Richardson, supra, which, for the first time, treated classifications based on alienage as "inherently suspect and subject to close judicial scrutiny." 403 U.S. at 403 U. S. 372 . Applying Graham, this Court has held invalid statutes that prevented aliens from entering a State's classified civil service, Sugarman v. Dougall, 413 U. S. 634 (1973), practicing law, In re Griffiths, 413 U. S. 717 (1973), working as an engineer, Examining Board v. Flores de Otero, 426 U. S. 572 (1976), and receiving state educational benefits, Nyquist v. Mauclet, 432 U. S. 1 (1977). Although our more recent decisions have departed substantially from the public interest doctrine of Truax's day, they have not abandoned the general principle that some state functions are so bound up with the operation of the State as Page 441 U. S. 74 a governmental entity as to permit the exclusion from those functions of all persons who have not become part of the process of self-government. In Sugarman, we recognized that a State could, "in an appropriately defined class of positions, require citizenship as a qualification for office." We went on to observe: "Such power inheres in the State by virtue of its obligation, already noted above, 'to preserve the basic conception of a political community.' . . . And this power and responsibility of the State applies not only to the qualifications of voters, but also to persons holding state elective or important nonelective executive, legislative, and judicial positions, for officers who participate directly in the formulation, execution, or review of broad public policy perform functions that go to the heart of representative government." 413 U.S. at 413 U. S. 647 (citation omitted). The exclusion of aliens from such governmental positions would not invite as demanding scrutiny from this Court. Id. at 413 U. S. 648 . See also Nyquist v. Mauclet, supra at 432 U. S. 11 ; Perkins v. Smith, 370 F. Supp. 134 (Md.1974), summarily aff'd, 426 U. S. 913 (1976). Applying the rational basis standard, we held last Term that New York could exclude aliens from the ranks of its police force. Foley v. Connelie, 435 U. S. 291 (1978). Because the police function fulfilled "a most fundamental obligation of government to its constituency," and, by necessity, cloaked policemen with substantial discretionary powers, we viewed the police force as being one of those appropriately defined classes of positions for which a citizenship requirement could be imposed. Id. at 435 U. S. 297 . Accordingly, the State was required to justify its classification only "by a showing of some rational relationship between the interest sought to be protected and the limiting classification." Id. at 435 U. S. 296 . Page 441 U. S. 75 The rule for governmental functions, which is an exception to the general standard applicable to classifications based on alienage, rests on important principles inherent in the Constitution. The distinction between citizens and aliens, though ordinarily irrelevant to private activity, is fundamental to the definition and government of a State. The Constitution itself refers to the distinction no less than 11 times, see Sugarman v. Dougall, supra at 413 U. S. 651 -652 (REHNQUIST, J., dissenting), indicating that the status of citizenship was meant to have significance in the structure of our government. The assumption of that status, whether by birth or naturalization, denotes an association with the polity which, in a democratic republic, exercises the powers of governance. See Foley v. Connelie, supra at 435 U. S. 295 . The form of this association is important: an oath of allegiance or similar ceremony cannot substitute for the unequivocal legal bond citizenship represents. It is because of this special significance of citizenship that governmental entities, when exercising the functions of government, have wider latitude in limiting the participation of noncitizens. [ Footnote 5 ] B In determining whether, for purposes of equal protection analysis, teaching in public schools constitutes a governmental function, we look to the role of public education and to the degree of responsibility and discretion teachers possess in fulfilling that role. See Foley v. Connelie, supra, at 435 U. S. 297 . Each of these considerations supports the conclusion that public school teachers may be regarded as performing a task "that Page 441 U. S. 76 go[es] to the heart of representative government." Sugarman v. Dougall, supra at 413 U. S. 647 . [ Footnote 6 ] Public education, like the police function, "fulfills a most fundamental obligation of government to its constituency." Foley, supra, at 435 U. S. 297 . The importance of public schools in the preparation of individuals for participation as citizens, and in the preservation of the values on which our society rests, long has been recognized by our decisions: "Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education Page 441 U. S. 77 both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment." Brown v. Board of Education, 347 U. S. 483 , 347 U. S. 493 (1954). See also Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S. 189 , 413 U. S. 246 (1973) (POWELL, J., concurring in part and dissenting in part); San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1 , 411 U. S. 29 -30 (1973); Wisconsin v. Yoder, 406 U. S. 205 , 406 U. S. 213 (1972); id. at 406 U. S. 238 -239 (WHITE, J., concurring); Abington School Dist. v. Schempp, 374 U. S. 203 , 374 U. S. 230 (1963) (BRENNAN, J., concurring); Adler v. Board of Education, 342 U. S. 485 , 342 U. S. 493 (1952); McCollum v. Board of Education, 333 U. S. 203 , 333 U. S. 212 (1948) (opinion of Frankfurter, J.); Pierce v. Society of Sisters, 268 U. S. 510 (1925); Meyer v. Nebraska, 262 U. S. 390 (1923); Interstate Consolidated Street R. Co. v. Massachusetts, 207 U. S. 79 (1907). [ Footnote 7 ] Other authorities have perceived public schools as an "assimilative force" by which diverse and conflicting elements in our society are brought together on a broad but common ground. See, e.g., J. Dewey, Democracy and Education 26 (1929); N. Edwards & H. Richey, The School in the American Social Order 623-624 (2d ed.1963). These perceptions of the public schools as inculcating fundamental values necessary to the maintenance of a democratic political system have been confirmed by the observations of social scientists. See R. Dawson Page 441 U. S. 78 & K. Prewitt, Political Socialization 146-167 (1969); R. Hess & J. Torney, The Development of Political Attitudes in Children 114, 158-171, 217-220 (1967); V. Key, Public Opinion and American Democracy 323-343 (1961). [ Footnote 8 ] Within the public school system, teachers play a critical part in developing students' attitude toward government and understanding of the role of citizens in our society. Alone among employees of the system, teachers are in direct, day-to-day contact with students both in the classrooms and in the other varied activities of a modern school. In shaping the students' experience to achieve educational goals, teachers, by necessity, have wide discretion over the way the course material is communicated to students. They are responsible for presenting and explaining the subject matter in a way that is both comprehensible and inspiring. No amount of standardization of teaching materials or lesson plans can eliminate the personal qualities a teacher brings to bear in achieving these goals. Further, a teacher serves as a role model for his students, exerting a subtle but important influence over their Page 441 U. S. 79 perceptions and values. Thus, through both the presentation of course materials and the example he sets, a teacher has an opportunity to influence the attitudes of students toward government, the political process, and a citizen's social responsibilities. [ Footnote 9 ] This influence is crucial to the continued good health of a democracy. [ Footnote 10 ] Furthermore, it is clear that all public school teachers, and not just those responsible for teaching the courses most directly related to government, history, and civic duties, should Page 441 U. S. 80 help fulfill the broader function of the public school system. [ Footnote 11 ] Teachers, regardless of their specialty, may be called upon to teach other subjects, including those expressly dedicated to political and social subjects. [ Footnote 12 ] More importantly, a State properly may regard all teachers as having an obligation to promote civic virtues and understanding in their classes, regardless of the subject taught. Certainly a State also may take account of a teacher's function as an example for students, which exists independently of particular classroom subjects. In light of the foregoing considerations, we think it clear that public school teachers come well within the "governmental function" principle recognized in Sugarman and Foley. Accordingly, the Constitution requires only that a citizenship requirement applicable to teaching in the public schools bear a rational relationship to a legitimate state interest. See Massachusetts Board of Retirement v. Murgia, 427 U. S. 307 , 427 U. S. 314 (1976). III As the legitimacy of the State's interest in furthering the educational goals outlined above is undoubted, it remains only to consider whether § 3001(3) bears a rational relationship to this interest. The restriction is carefully framed to serve its purpose, as it bars from teaching only those aliens who have demonstrated their unwillingness to obtain United States citizenship. [ Footnote 13 ] Appellees, and aliens similarly situated, in effect have chosen to classify themselves. They prefer to retain citizenship in a foreign country, with the obligations it entails Page 441 U. S. 81 of primary duty and loyalty. [ Footnote 14 ] They have rejected the open invitation extended to qualify for eligibility to teach by applying for citizenship in this country. The people of New York, acting through their elected representatives, have made a judgment that citizenship should be a qualification for teaching the young of the State in the public schools, and § 3001(3) furthers that judgment. [ Footnote 15 ] Reversed. [ Footnote 1 ] The statute provides: "No person shall be employed or authorized to teach in the public schools of the state who is:" " * * * *" "3. Not a citizen. The provisions of this subdivision shall not apply, however, to an alien teacher now or hereafter employed, provided such teacher shall make due application to become a citizen and thereafter within the time prescribed by law shall become a citizen. The provisions of this subdivision shall not apply after July first, nineteen hundred sixty-seven, to an alien teacher employed pursuant to regulations adopted by the commissioner of education permitting such employment." N.Y.Educ.Law § 3001(3) (McKinney 1970). The statute contains an exception for persons who are ineligible for United States citizenship solely because of an oversubscribed quota. § 3001-a (McKinney 1970). Because this statutory provision is in all respects narrower than the exception provided by regulation, see n 2, infra as a practical matter it has no effect. The State does not certify the qualifications of teachers in the private schools, although it does require that such teachers be "competent." N.Y.Educ.Law § 3204(2) (McKinney Supp. 1978-1979). Accordingly, we are not presented with the question of, and express no view as to, the permissibility of a citizenship requirement pertaining to teachers in private schools. [ Footnote 2 ] The following regulation governs here: " Citizenship. A teacher who is not a citizen of the United States or who has not declared intention of becoming a citizen may be issued a provisional certificate providing such teacher has the appropriate educational qualifications as defined in the regulations and (1) possesses skills or competencies not readily available among teachers holding citizenship, or (2) is unable to declare intention of becoming a citizen for valid statutory reasons." 8 N.Y.C.R.R. § 80.2(i) (1978). [ Footnote 3 ] Certification by the Commissioner of Education is not required of teachers at state institutions of higher education, and the citizenship restriction accordingly does not apply to them. Brief for Appellants 13 n. *. [ Footnote 4 ] At the time of her application, Norwick had not yet met the postgraduate educational requirements for a permanent certificate, and accordingly applied only for a temporary certificate, which also is governed by § 3001(3). She since has obtained the necessary graduate degree for full certification. Dachinger previously had obtained a temporary certificate, which had lapsed at the time of her 1975 application. The record does not indicate whether Dachinger previously had declared an intent to obtain citizenship or had obtained the temporary certificate because of some applicable exception to the citizenship requirement. [ Footnote 5 ] That the significance of citizenship has constitutional dimensions also has been recognized by several of our decisions. In Trop v. Dulles, 356 U. S. 86 (1958), a plurality of the Court held that the expatriation of an American citizen constituted cruel and unusual punishment for the crime of desertion in time of war. In Afroyim v. Rusk, 387 U. S. 253 (1967), the Court held that the Constitution forbade Congress from depriving a person of his citizenship against his will for any reason. [ Footnote 6 ] The dissenting opinion of MR. JUSTICE BLACKMUN, in reaching an opposite conclusion, appears to apply a different analysis from that employed in our prior decisions. Rather than considering whether public school teachers perform a significant government function, the inquiry mandated by Foley v. Connelie, 435 U. S. 291 (1978), and Sugarman v. Dougall, the dissent focuses instead on the general societal importance of primary and secondary school teachers, both public and private. Thus, the dissent, on the one hand, depreciates the importance of New York's citizenship requirement because it is not applied to private school teachers, and, on the other hand, argues that the role teachers perform in our society is no more significant than that filled by attorneys. This misses the point of Foley and Sugarman. New York's citizenship requirement is limited to a governmental function because it applies only to teachers employed by and acting as agents of the State. The Connecticut statute held unconstitutional in In re Griffiths, 413 U. S. 717 (1973), by contrast, applied to all attorneys, most of whom do not work for the government. The exclusion of aliens from access to the bar implicated the right to pursue a chosen occupation, not access to public employment. Cf. Nyquist v. Mauclet, 432 U. S. 1 , 432 U. S. 116 , n. (1977) (POWELL, J., dissenting). The distinction between a private occupation and a government function was noted expressly in Griffiths: "Lawyers do indeed occupy professional positions of responsibility and influence that impose on them duties correlative with their vital right of access to the courts. Moreover, by virtue of their professional aptitudes and natural interests, lawyers have been leaders in government throughout the history of our country. Yet they are not officials of government by virtue of being lawyers." 413 U.S. at 413 U. S. 729 . [ Footnote 7 ] As San Antonio Independent School Dist. v. Rodriguez recognized, there is no inconsistency between our recognition of the vital significance of public education and our holding that access to education is not guaranteed by the Constitution. 411 U.S. at 411 U. S. 335 . [ Footnote 8 ] The curricular requirements of New York's public school system reflect some of the ways a public school system promotes the development of the understanding that is prerequisite to intelligent participation in the democratic process. The schools are required to provide instruction "to promote a spirit of patriotic and civic service and obligation and to foster in the children of the state moral and intellectual qualities which are essential in preparing to meet the obligations of citizenship in peace or in war. . . ." N.Y.Educ.Law § 801(1) (McKinney 1969). Flag and other patriotic exercises also are prescribed, as loyalty is a characteristic of citizenship essential to the preservation of a country. § 802 (McKinney 1969 and Supp. 1978-1979). In addition, required courses include classes in civics, United States and New York history, and principles of American government. §§ 3204(3)(a)(1), (2) (McKinney 1970). Although private schools also are bound by most of these requirements, the State has a stronger interest in ensuring that the schools it most directly controls, and for which it bears the cost, are as effective as possible in teaching these courses. [ Footnote 9 ] Although the findings of scholars who have written on the subject are not conclusive, they generally reinforce the common sense judgment, and the experience of most of us, that a teacher exerts considerable influence over the development of fundamental social attitudes in students, including those attitudes which in the broadest sense of the term may be viewed as political. See, e.g., R. Dawson & K. Prewitt, Political Socialization 158-167 (1969); R. Hess & J. Torney, The Development of Political Attitudes in Children 162-163, 217-218 (1967). Cf. Note, Aliens' Right to Teach: Political Socialization and the Public Schools, 85 Yale L.J. 90, 99-104 (1975). [ Footnote 10 ] Appellees contend that restriction of an alien's freedom to teach in public schools is contrary to principles of diversity of thought and academic freedom embodied in the First Amendment. See also id. at 106-109. We think that the attempt to draw an analogy between choice of citizenship and political expression or freedom of association is wide of the mark, as the argument would bar any effort by the State to promote particular values and attitudes toward government. Section 3001(3) does not inhibit appellees from expressing freely their political or social views or from associating with whomever they please. Cf. Givhan v. Western Line Consol. School Dist., 439 U. S. 410 , 439 U. S. 415 -416 (1979); Mt. Healthy City Board of Education v. Doyle, 429 U. S. 274 (1977); Pickering v. Board of Education, 391 U. S. 563 (1968). Nor are appellees discouraged from joining with others to advance particular political ends. Cf. Shelton v. Tucker, 364 U. S. 479 (1960). The only asserted liberty of appellees withheld by the New York statute is the opportunity to teach in the State's schools so long as they elect not to become citizens of this country. This is not a liberty that is accorded constitutional protection. [ Footnote 11 ] At the primary school level, for which both appellees sought certification, teachers are responsible for all of the basic curriculum. [ Footnote 12 ] In New York, for example, all certified teachers, including those in the secondary schools, are required to be available for up to five hours of teaching a week in subjects outside their specialty. 8 N.Y.C.R.R. § 80.2(c) (1978) . [ Footnote 13 ] See n 2, supra. [ Footnote 14 ] As our cases have emphasized, resident aliens pay taxes, serve in the Armed Forces, and have made significant contributions to our country in private and public endeavors. See In re Griffiths, 413 U.S. at 413 U. S. 722 ; Sugarman v. Dougall, 413 U.S. at 413 U. S. 645 ; Graham v. Richardson, 403 U. S. 365 , 403 U. S. 376 (1971). No doubt many of them, and we do not exclude appellees, would make excellent public school teachers. But the legislature, having in mind the importance of education to state and local governments, see Brown v. Board of Education, 347 U. S. 483 , 347 U. S. 493 (1954), may determine eligibility for the key position in discharging that function on the assumption that generally persons who are citizens, or who have not declined the opportunity to seek United States citizenship, are better qualified than are those who have elected to remain aliens. We note in this connection that regulations promulgated pursuant to § 3001(3) do provide for situations where a particular alien's special qualifications as a teacher outweigh the policy primarily served by the statute. See 8 N.Y.C.R.R. § 80.2 (i)(1) (1978). The appellants inform us, however, that the authority conferred by this regulation has not been exercised. Brief for Appellants 7 n. *. [ Footnote 15 ] Appellees argue that the State cannot rationally exclude aliens from teaching positions and yet permit them to vote for and sit on certain local school boards. We note, first, that the State's legislature has not expressly endorsed this policy. Rather, appellants, as an administrative matter, have interpreted the statute governing New York City's unique community school boards, N.Y.Educ.Law § 2590-C(4) (McKinney Supp. 1978-1979), to permit aliens who are the parents of public school students to participate in these boards. See App. 27, 29. We also may assume, without having to decide, that there is rational basis for a distinction between teachers and board members based on their respective responsibilities. Although possessing substantial responsibility for the administration of the schools, board members teach no classes, and rarely, if ever, are known or identified by the students. MR. JUSTICE BLACKMUN, with whom MR. JUSTICE BRENNAN, MR. JUSTICE MARSHALL, and MR. JUSTICE STEVENS join, dissenting. Once again the Court is asked to rule upon the constitutionality of one of New York's many statutes that impose a Page 441 U. S. 82 requirement of citizenship upon a person before that person may earn his living in a specified occupation. [ Footnote 2/1 ] These New York statutes, for the most part, have their origin in the frantic and over-reactive days of the First World War when attitudes of parochialism and fear of the foreigner were the order of the day. This time we are concerned with the right to teach in the public schools of the State, at the elementary and secondary levels, and with the citizenship requirement that N.Y.Educ.Law § 3001(3) (McKinney 1970), quoted by the Court ante at 441 U. S. 70 n. 1 imposes. [ Footnote 2/2 ] As the Court acknowledges, ante at 441 U. S. 72 , its decisions regarding the permissibility of statutory classifications concerning aliens "have not formed an unwavering line over the years." [ Footnote 2/3 ] Thus, just last Term, in Foley v. Connelie, 435 U. S. 291 (1978), the Court upheld against equal protection challenge the New York statute limiting appointment of members of the state police force to citizens of the United States. The touchstone, the Court indicated, was that citizenship may be Page 441 U. S. 83 a relevant qualification for fulfilling "'important nonelective executive, legislative, and judicial positions' held by 'officers who participate directly in the formulation, execution, or review of broad public policy.'" Id. at 435 U. S. 296 , quoting Sugarman v. Dougall, 413 U. S. 634 , 413 U. S. 647 (1973). For such positions, a State need show only some rational relationship between the interest sought to be protected and the limiting classification. Police, it then was felt, were clothed with authority to exercise an almost infinite variety of discretionary powers that could seriously affect members of the public. 435 U.S. at 435 U. S. 297 . They thus fell within the category of important officers who participate directly in the execution of "broad public policy." The Court was persuaded that citizenship bore a rational relationship to the special demands of police positions, and that a State therefore could constitutionally confine that public responsibility to citizens of the United States. Id. at 435 U. S. 300 . The propriety of making citizenship a qualification for a narrowly defined class of positions was also recognized, in passing, in Sugarman v. Dougall, 413 U.S. at 413 U. S. 647 , and in Nyquist v. Mauclet, 432 U. S. 1 , 432 U. S. 11 (1977). On the other hand, the Court frequently has invalidated a state provision that denies a resident alien the right to engage in specified occupational activity: Yick Wo v. Hopkins, 118 U. S. 356 (1886) (ordinance applied so as to prevent Chinese subjects from engaging in the laundry business); Truax v. Raich, 239 U. S. 33 (1915) (statute requiring an employer's workforce to be composed of not less than 80% "qualified electors or native-born citizens"); Takahashi v. Fish & Game Comm'n, 334 U. S. 410 (1948) (limitation of commercial fishing licenses to persons not "ineligible to citizenship"); Sugarman v. Dougall, supra, (New York statute relating to permanent positions in the "competitive class" of the state civil service); In re Griffiths, 413 U. S. 717 (1973) (the practice of law); Nelson v. Miranda, 413 U.S. 902 (1973), summarily aff'g 351 F. Supp. 735 (Ariz.1972) (social service worker Page 441 U. S. 84 and teacher); Examining Board v. Flores de Otero, 426 U. S. 572 (1976) (the practice of civil engineering). See also Nyquist v. Mauclet, supra, (New York statute barring certain resident aliens from state financial assistance for higher education). Indeed, the Court has held more than once that state classifications based on alienage are "inherently suspect and subject to close judicial scrutiny." Graham v. Richardson, 403 U. S. 365 , 403 U. S. 372 (1971). See Examining Board v. Flores de Otero, 426 U.S. at 426 U. S. 601 -602; In re Griffiths, 413 U.S. at 413 U. S. 721 ; Sugarman v. Dougall, 413 U.S. at 413 U. S. 642 ; Nyquist v. Mauclet, 432 U.S. at 432 U. S. 7 . And "[a]lienage classifications by a State that do not withstand this stringent examination cannot stand." Ibid. There is thus a line, most recently recognized in Foley v. Connelie, between those employments that a State, in its wisdom, constitutionally may restrict to United States citizens, on the one hand, and those employments, on the other, that the State may not deny to resident aliens. For me, the present case falls on the Sugarman-Griffiths-Flores de Otero-Mauclet side of that line, rather than on the narrowly isolated Foley side. We are concerned here with elementary and secondary education in the public schools of New York State. We are not concerned with teaching at the college or graduate levels. It seems constitutionally absurd, to say the least, that, in these lower levels of public education, a Frenchman may not teach French or, indeed, an Englishwoman may not teach the grammar of the English language. The appellees, to be sure, are resident "aliens" in the technical sense, but there is not a word in the record that either appellee does not have roots in this country or is unqualified in any way, other than the imposed requirement of citizenship, to teach. Both appellee Norwick and appellee Dachinger have been in this country for Page 441 U. S. 85 over 12 years. Each is married to a United States citizen. Each currently meets all the requirements, other than citizenship, that New York has specified for certification as a public school teacher. Tr. of Oral Arg. 4. [ Footnote 2/4 ] Each is willing, if required, to subscribe to an oath to support the Constitutions of the United States and of New York. [ Footnote 2/5 ] Each lives in an American community, must obey its laws, and must pay all of the taxes citizens are obligated to pay. Appellees, however, have hesitated to give up their respective British and Finnish citizenships, just as lawyer Fre Le Poole Griffiths, the subject of In re Griffiths, supra, hesitated to renounce her Netherlands citizenship, although married to a citizen of the United States and a resident of Connecticut. But the Court, to the disadvantage of appellees, crosses the line from Griffiths to Foley by saying, ante at 441 U. S. 75 , that the "distinction between citizens and aliens, though ordinarily irrelevant to private activity, is fundamental to the definition and government of a State." It then concludes that public school teaching "constitutes a governmental function," ibid., and that public school teachers may be regarded as performing a task that goes "to the heart of representative government." Ante at 441 U. S. 76 . The Court speaks of the importance of public schools in the preparation of individuals for participation as citizens, and in the preservation of the values on which Page 441 U. S. 86 our society rests. [ Footnote 2/6 ] After then observing that teachers play a critical part in all this, the Court holds that New York's citizenship requirement is constitutional because it bears a rational relationship to the State's interest in furthering these educational goals. I perceive a number of difficulties along the easy road the Court takes to this conclusion: First, the New York statutory structure itself refutes the argument. Section 3001(3), the very statute at issue here, provides for exceptions with respect to alien teachers "employed pursuant to regulations adopted by the commissioner of education permitting such employment." Section 3001-a (McKinney 1970) provides another exception for persons ineligible for United States citizenship because of oversubscribed quotas. Also, New York is unconcerned with any citizenship qualification for teachers in the private schools of the State, even though the record indicates that about 18% of the pupils at the elementary and secondary levels attend private schools. The education of those pupils seems not to be inculcated with something less than what is desirable for citizenship and what the Court calls an influence "crucial to the continued good health of a democracy." Ante at 441 U. S. 73 . The State, apparently under § 3001(3), would not hesitate to employ an alien teacher while he waits to attain citizenship, even though he may fail ever to attain it. And the stark fact that the State permits some aliens to sit on certain local school boards, N.Y.Educ.Law 2590-c(4) (McKinney Supp. 1978-1979), reveals how shallow and indistinct is New York's line of demarcation between citizenship and noncitizenship. The Court's attempted Page 441 U. S. 87 rationalization of this fact, ante at 441 U. S. 81 -82, n. 15, hardly extinguishes the influence school board members, including these otherwise "disqualified" resident aliens, possess in school administration, in the selection of faculty, and in the approval of textbooks and instructional materials. Second, the New York statute is all-inclusive in its disqualifying provisions: "No person shall be employed or authorized to teach in the public schools of the state who is . . . [n]ot a citizen." It sweeps indiscriminately. It is "neither narrowly confined nor precise in its application," nor limited to the accomplishment of substantial state interests. Sugarman v. Dougall, 413 U.S. at 413 U. S. 643 . See Note, Aliens' Right to Teach: Political Socialization and the Public Schools, 85 Yale L.J. 90, 109-111 (1975). Third, the New York classification is irrational. Is it better to employ a poor citizen teacher than an excellent resident alien teacher? Is it preferable to have a citizen who has never seen Spain or a Latin American country teach Spanish to eighth graders and to deny that opportunity to a resident alien who may have lived for 20 years in the culture of Spain or Latin America? The State will know how to select its teachers responsibly, wholly apart from citizenship, and can do so selectively and intelligently. [ Footnote 2/7 ] That is the way to Page 441 U. S. 88 accomplish the desired result. An artificial citizenship bar is not a rational way. It is, instead, a stultifying provision. The route to "diverse and conflicting elements" and their being "brought together on a broad but common ground," which the Court so emphasizes, ante at 441 U. S. 77 , is hardly to be achieved by disregarding some of the diverse elements that are available, competent, and contributory to the richness of our society and of the education it could provide. Fourth, it is logically impossible to differentiate between this case, concerning teachers, and In re Griffiths, concerning attorneys. If a resident alien may not constitutionally be barred from taking a state bar examination, and thereby becoming qualified to practice law in the courts of a State, how is one to comprehend why a resident alien may constitutionally be barred from teaching in the elementary and secondary levels of a State's public schools? One may speak proudly of the role model of the teacher, of his ability to mold young minds, of his inculcating force as to national ideals, and of his profound influence in the impartation of our society's values. Are the attributes of an attorney.any the less? He represents us in our critical courtroom controversies even when citizenship and loyalty may be questioned. He stands as an officer of every court in which he practices. He is responsible for strict adherence to the announced and implied standards of professional conduct, and to the requirements of evolving ethical codes, and for honesty and integrity in his professional Page 441 U. S. 89 and personal life. Despite the almost continuous criticism leveled at the legal profession, he, too, is an influence in legislation, in the community, and in the role-model figure that the professional person enjoys. [ Footnote 2/8 ] The Court specifically recognized this in In re Griffiths: "Lawyers do indeed occupy professional positions of responsibility and influence that impose on them duties correlative with their vital right of access to the courts. Moreover, by virtue of their professional aptitudes and natural interests, lawyers have been leaders in government throughout the history of our country." 413 U.S. at 413 U. S. 729 . [ Footnote 2/9 ] If an attorney has a constitutional right to take a bar examination and practice law, despite his being a resident alien, it is impossible for me to see why a resident alien otherwise completely competent and qualified, as these appellees concededly are, is constitutionally disqualified from teaching in the public schools of the great State of New York. The Page 441 U. S. 90 District Court expressed it well and forcefully when it observed that New York's exclusion "seems repugnant to the very heritage the State is seeking to inculcate." Norwick v. Nyquist, 417 F. Supp. 913 , 922 (SDNY 1976). I respectfully dissent. [ Footnote 2/1 ] One of the appellees in Nyquist v. Mauclet, 432 U. S. 1 (1977), submitted a list of the New York statutes that required citizenship, or a declaration of intent to become a citizen, for no fewer than 37 occupations. Brief for Appellee Mauclet, O.T. 1976, No. 76-208, pp. 19-22, nn. 8-44, inclusive. Some of those statutes have been legislatively repealed or modified, or judicially invalidated. Others are still in effect. Among the latter are those relating to the occupations of inspector, certified shorthand reporter, funeral director, masseur, physical therapist, and animal technician. [ Footnote 2/2 ] This particular citizenship requirement had its origin in 1918 N.Y.Laws, ch. 158, effective Apr. 4, 1918. [ Footnote 2/3 ] "To be sure, the course of decisions protecting the employment rights of resident aliens has not been an unswerving one." In re Griffiths, 413 U. S. 717 , 413 U. S. 720 (1973). [ Footnote 2/4 ] Appellee Norwick is a summa cum laude graduate of a Massachusetts college, and received an A average in full-time graduate work in the State University of New York at Albany. She has taught both in this country and in Great Britain. Appellee Dachinger is a cum laude graduate, with a major in German, of Lehman College, a unit of the City University of New York, and possesses a master's degree in Early Childhood Education from that institution. She has taught at a day-care center in the Bronx. Each appellee, thus, has received and excelled in educational training the State of New York itself offers. [ Footnote 2/5 ] See In re Griffiths, 413 U.S. at 413 U. S. 726 n. 18. [ Footnote 2/6 ] One, of course, can agree with this observation. One may concede, also, that public schools are an " assimilative force' by which diverse and conflicting elements in our society are brought together on a broad but common ground," ante at 441 U. S. 77 , and that the inculcation of fundamental values by our public schools is necessary to the maintenance of a democratic political system. [ Footnote 2/7 ] In In re Griffiths, the Court significantly has observed: "Connecticut has wide freedom to gauge on a case-by-case basis the fitness of an applicant to practice law. Connecticut can, and does, require appropriate training and familiarity with Connecticut law. Apart from such tests of competence, it requires a new lawyer to take both an 'attorney's oath' to perform his functions faithfully and honestly and a 'commissioner's oath' to 'support the constitution of the United States, and the constitution of the state of Connecticut.' Appellant has indicated her willingness and ability to subscribe to the substance of both oaths, and Connecticut may quite properly conduct a character investigation to insure, in any given case," "that an applicant is not one who 'swears to an oath pro forma while declaring or manifesting his disagreement with or indifference to the oath.' Bond v. Floyd, 385 U. S. 116 , 385 U. S. 132 ." " Law Students Research Council v. Wadmond, 401 U.S. at 401 U. S. 164 . Moreover, once admitted to the bar, lawyers are subject to continuing scrutiny by the organized bar and the courts. In addition to discipline for unprofessional conduct, the range of post-admission sanctions extends from judgments for contempt to criminal prosecutions and disbarment. In sum, the Committee simply has not established that it must exclude all aliens from the practice of law in order to vindicate its undoubted interest in high professional standards." 413 U.S. at 413 U. S. 725 -727 (footnotes omitted). [ Footnote 2/8 ] See also Stockton v. Ford , 11 How. 232, 52 U. S. 247 (1851); Hickman v. Taylor, 329 U. S. 495 , 329 U. S. 514 -515 (1947) (concurring opinion); Schware v. Board of Bar Examiners, 353 U. S. 232 , 353 U. S. 247 (1957) (concurring opinion); In re Sawyer, 360 U. S. 622 , 360 U. S. 668 (1959) (dissenting opinion); J. Story, Miscellaneous Writings, Value and Importance of Legal Studies 503-549 (W. Story ed.1972); Stone, The Public Influence of the Bar, 48 Harv.L.Rev. 1 (1934); W. Brennan, The Responsibilities of the Legal Profession, Address before the Law School of Harvard University (1967); A. de Tocqueville, Democracy in America 321-331 (Schocken ed.1961); J. Rogers, The Lawyer in American Public Life, in Morrison Foundation Lectures 41, 61 (1940). [ Footnote 2/9 ] In order to keep attorneys on the nongovernmental side of the classification line, the Court continued: "Yet they are not officials of government by virtue of being lawyers. Nor does the status of holding a license to practice law place one so close to the core of the political process as to make him a formulator of govern ment policy." 413 U.S. at 413 U. S. 729 .

In Ambach v. Norwick, the Supreme Court upheld a New York statute that prevented non-citizens from becoming permanent public school teachers unless they intended to apply for citizenship. The Court applied a rational basis test, finding that the statute was rationally related to the state's interest in furthering its educational goals and promoting civic virtues and understanding in the classroom. This decision highlights the Court's view of public education and the role of teachers as a "governmental function," allowing for broader state discretion in employment decisions.

Equal Protection

City of Cleburne v. Cleburne Living Center, Inc.

https://supreme.justia.com/cases/federal/us/473/432/

U.S. Supreme Court Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) City of Cleburne, Texas v. Cleburne Living Center, Inc. No. 84-468 Argued March 18, 1985 Reargued April 23, 1985 Decided July 1, 1985 473 U.S. 432 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Syllabus Respondent Cleburne Living Center, Inc. (CLC), which anticipated leasing a certain building for the operation of a group home for the mentally retarded, was informed by petitioner city that a special use permit would be required, the city having concluded that the proposed group home should be classified as a "hospital for the feebleminded" under the zoning ordinance covering the area in which the proposed home would be located. Accordingly, CLC applied for a special use permit, but the City Council, after a public hearing, denied the permit. CLC and others (also respondents here) then filed suit against the city and a number of its officials, alleging that the zoning ordinance, on its face and as applied, violated the equal protection rights of CLC and its potential residents. The District Court held the ordinance and its application constitutional. The Court of Appeals reversed, holding that mental retardation is a "quasi-suspect" classification; that, under the applicable "heightened scrutiny" equal protection test, the ordinance was facially invalid because it did not substantially further an important governmental purpose; and that the ordinance was also invalid as applied. Held: 1. The Court of Appeals erred in holding mental retardation a quasi-suspect classification calling for a more exacting standard of judicial review than is normally accorded economic and social legislation. Pp. 473 U. S. 439 -447. (a) Where individuals in a group affected by a statute have distinguishing characteristics relevant to interests a State has the authority to implement, the Equal Protection Clause requires only that the classification drawn by the statute be rationally related to a legitimate state interest. When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude. Pp. 473 U. S. 439 -442. (b) Mentally retarded persons, who have a reduced ability to cope with and function in the everyday world, are thus different from other persons, and the States' interest in dealing with and providing for them Page 473 U. S. 433 is plainly a legitimate one. The distinctive legislative response, both national and state, to the plight of those who are mentally retarded demonstrates not only that they have unique problems, but also that the lawmakers have been addressing their difficulties in a manner that belies a continuing antipathy or prejudice and a corresponding need for more intrusive oversight by the judiciary than is afforded under the normal equal protection standard. Moreover, the legislative response, which could hardly have occurred and survived without public support, negates any claim that the mentally retarded are politically powerless in the sense that they have no ability to attract the attention of the lawmakers. The equal protection standard requiring that legislation be rationally related to a legitimate governmental purpose affords government the latitude necessary both to pursue policies designed to assist the retarded in realizing their full potential, and to freely and efficiently engage in activities that burden the retarded in what is essentially an incidental manner. Pp. 473 U. S. 442 -447. 2. Requiring a special use permit for the proposed group home here deprives respondents of the equal protection of the laws, and thus it is unnecessary to decide whether the ordinance's permit requirement is facially invalid where the mentally retarded are involved. Although the mentally retarded, as a group, are different from those who occupy other facilities -- such as boarding houses and hospitals -- that are permitted in the zoning area in question without a special permit, such difference is irrelevant unless the proposed group home would threaten the city's legitimate interests in a way that the permitted uses would not. The record does not reveal any rational basis for believing that the proposed group home would pose any special threat to the city's legitimate interests. Requiring the permit in this case appears to rest on an irrational prejudice against the mentally retarded, including those who would occupy the proposed group home and who would live under the closely supervised and highly regulated conditions expressly provided for by state and federal law. Pp. 473 U. S. 447 -450. 726 F.2d 191, affirmed in part, vacated in part, and remanded. WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. STEVENS, J., filed a concurring opinion, in which BURGER, C.J., joined, post, p. 473 U. S. 451 . MARSHALL, J., filed an opinion concurring in the judgment in part and dissenting in part, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 473 U. S. 455 . Page 473 U. S. 435 JUSTICE WHITE delivered the opinion of the Court. A Texas city denied a special use permit for the operation of a group home for the mentally retarded, acting pursuant to a municipal zoning ordinance requiring permits for such homes. The Court of Appeals for the Fifth Circuit held that mental retardation is a "quasi-suspect" classification, and that the ordinance violated the Equal Protection Clause because it did not substantially further an important governmental purpose. We hold that a lesser standard of scrutiny is appropriate, but conclude that, under that standard, the ordinance is invalid as applied in this case. I In July, 1980, respondent Jan Hannah purchased a building at 201 Featherston Street in the city of Cleburne, Texas, with the intention of leasing it to Cleburne Living Center, Inc. (CLC), [ Footnote 1 ] for the operation of a group home for the mentally retarded. It was anticipated that the home would house 13 retarded men and women, who would be under the constant supervision of CLC staff members. The house had four bedrooms and two baths, with a half bath to be added. CLC planned to comply with all applicable state and federal regulations. [ Footnote 2 ] Page 473 U. S. 436 The city informed CLC that a special use permit would be required for the operation of a group home at the site, and CLC accordingly submitted a permit application. In response to a subsequent inquiry from CLC, the city explained that, under the zoning regulations applicable to the site, a special use permit, renewable annually, was required for the construction of "[h]ospitals for the insane or feeble-minded, or alcoholic [ sic ] or drug addicts, or penal or correctional institutions." [ Footnote 3 ] The city had determined that the proposed Page 473 U. S. 437 group home should be classified as a "hospital for the feebleminded." After holding a public hearing on CLC's application, the City Council voted 3 to 1 to deny a special use permit. [ Footnote 4 ] CLC then filed suit in Federal District Court against the city and a number of its officials, alleging, inter alia, that the zoning ordinance was invalid on its face and as applied because it discriminated against the mentally retarded in violation of the equal protection rights of CLC and its potential residents. The District Court found that, "[i]f the potential residents of the Featherston Street home were not mentally retarded, but the home was the same in all other respects, its use would be permitted under the city's zoning ordinance," and that the City Council's decision "was motivated primarily by the fact that the residents of the home would be persons who are mentally retarded." App. 93, 94. Even so, the District Court held the ordinance and its application constitutional. Concluding that no fundamental right was implicated, and that mental retardation was neither a suspect nor a quasi-suspect classification, the court employed the minimum level of judicial scrutiny applicable to equal protection claims. The court deemed the ordinance, as written and applied, to be rationally related to the city's legitimate interests in "the legal responsibility of CLC and its residents, . . . the safety and fears of residents in the adjoining neighborhood," and the number of people to be housed in the home. [ Footnote 5 ] Id. at 103. The Court of Appeals for the Fifth Circuit reversed, determining that mental retardation was a quasi-suspect classification and that it should assess the validity of the ordinance Page 473 U. S. 438 under intermediate-level scrutiny. 726 F.2d 191 (1984). Because mental retardation was in fact relevant to many legislative actions, strict scrutiny was not appropriate. But in light of the history of "unfair and often grotesque mistreatment" of the retarded, discrimination against them was "likely to reflect deep-seated prejudice." Id. at 197. In addition, the mentally retarded lacked political power, and their condition was immutable. The court considered heightened scrutiny to be particularly appropriate in this case, because the city's ordinance withheld a benefit which, although not fundamental, was very important to the mentally retarded. Without group homes, the court stated, the retarded could never hope to integrate themselves into the community. [ Footnote 6 ] Applying the test that it considered appropriate, the court held that the ordinance was invalid on its face because it did not substantially further any important governmental interests. The Court of Appeals went on to hold that the ordinance was also invalid as applied. [ Footnote 7 ] Rehearing en banc was Page 473 U. S. 439 denied with six judges dissenting in an opinion urging en banc consideration of the panel's adoption of a heightened standard of review. We granted certiorari, 469 U.S. 1016 (1984). [ Footnote 8 ] II The Equal Protection Clause of the Fourteenth Amendment commands that no State shall "deny to any person within its jurisdiction the equal protection of the laws," which is essentially a direction that all persons similarly situated should be treated alike. Plyler v. Doe, 457 U. S. 202 , 457 U. S. 216 (1982). Section 5 of the Amendment empowers Congress to enforce this mandate, but absent controlling congressional direction, the courts have themselves devised standards for Page 473 U. S. 440 determining the validity of state legislation or other official action that is challenged as denying equal protection. The general rule is that legislation is presumed to be valid, and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. Schweiker v. Wilson, 450 U. S. 221 , 450 U. S. 230 (1981); United States Railroad Retirement Board v. Fritz, 449 U. S. 166 , 449 U. S. 174 -175 (1980); Vance v. Bradley, 440 U. S. 93 , 440 U. S. 97 (1979); New Orleans v. Dukes, 427 U. S. 297 , 427 U. S. 303 (1976). When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude, United States Railroad Retirement Board v. Fritz, supra, at 449 U. S. 174 ; New Orleans v. Dukes, supra, at 427 U. S. 303 , and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes. The general rule gives way, however, when a statute classifies by race, alienage, or national origin. These factors are so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy -- a view that those in the burdened class are not as worthy or deserving as others. For these reasons, and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny, and will be sustained only if they are suitably tailored to serve a compelling state interest. McLaughlin v. Florida, 379 U. S. 184 , 379 U. S. 192 (1964); Graham v. Richardson, 403 U. S. 365 (1971). Similar oversight by the courts is due when state laws impinge on personal rights protected by the Constitution. Kramer v. Union Free School District No. 15, 395 U. S. 621 (1969); Shapiro v. Thompson, 394 U. S. 618 (1969); Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942). Legislative classifications based on gender also call for a heightened standard of review. That factor generally provides no sensible ground for differential treatment. "[W]hat differentiates sex from such nonsuspect statuses as intelligence or physical disability . . . is that the sex characteristic Page 473 U. S. 441 frequently bears no relation to ability to perform or contribute to society." Frontiero v. Richardson, 411 U. S. 677 , 411 U. S. 686 (1973) (plurality opinion). Rather than resting on meaningful considerations, statutes distributing benefits and burdens between the sexes in different ways very likely reflect outmoded notions of the relative capabilities of men and women. A gender classification fails unless it is substantially related to a sufficiently important governmental interest. Mississippi University for Women v. Hogan, 458 U. S. 718 (1982); Craig v. Boren, 429 U. S. 190 (1976). Because illegitimacy is beyond the individual's control and bears "no relation to the individual's ability to participate in and contribute to society," Mathews v. Lucas, 427 U. S. 495 , 427 U. S. 505 (1976), official discriminations resting on that characteristic are also subject to somewhat heightened review. Those restrictions "will survive equal protection scrutiny to the extent they are substantially related to a legitimate state interest." Mills v. Habluetzel, 456 U. S. 91 , 456 U. S. 99 (1982). We have declined, however, to extend heightened review to differential treatment based on age: "While the treatment of the aged in this Nation has not been wholly free of discrimination, such persons, unlike, say, those who have been discriminated against on the basis of race or national origin, have not experienced a 'history of purposeful unequal treatment' or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities." Massachusetts Board of Retirement v. Murgia, 427 U. S. 307 , 427 U. S. 313 (1976). The lesson of Murgia is that, where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement, the courts have been very reluctant, as they should be in our federal system and with our respect for the separation of powers, to closely scrutinize legislative choices as to whether, how, and to what extent those interests should be Page 473 U. S. 442 pursued. In such cases, the Equal Protection Clause requires only a rational means to serve a legitimate end. III Against this background, we conclude for several reasons that the Court of Appeals erred in holding mental retardation a quasi-suspect classification calling for a more exacting standard of judicial review than is normally accorded economic and social legislation. First, it is undeniable, and it is not argued otherwise here, that those who are mentally retarded have a reduced ability to cope with and function in the everyday world. Nor are they all cut from the same pattern: as the testimony in this record indicates, they range from those whose disability is not immediately evident to those who must be constantly cared for. [ Footnote 9 ] They are thus different, immutably so, in relevant respects, and the States' interest in dealing with and providing for them is plainly a legitimate one. [ Footnote 10 ] How this large and diversified group is to be treated Page 473 U. S. 443 under the law is a difficult and often a technical matter, very much a task for legislators guided by qualified professionals, and not by the perhaps ill-informed opinions of the judiciary. Heightened scrutiny inevitably involves substantive judgments about legislative decisions, and we doubt that the predicate for such judicial oversight is present where the classification deals with mental retardation. Second, the distinctive legislative response, both national and state, to the plight of those who are mentally retarded demonstrates not only that they have unique problems, but also that the lawmakers have been addressing their difficulties in a manner that belies a continuing antipathy or prejudice and a corresponding need for more intrusive oversight by the judiciary. Thus, the Federal Government has not only outlawed discrimination against the mentally retarded in federally funded programs, see § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, but it has also provided the retarded with the right to receive "appropriate treatment, services, and habilitation" in a setting that is "least restrictive of [their] personal liberty." Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. §§ 6010(1), (2). In addition, the Government has conditioned federal education funds on a State's assurance that retarded children will enjoy an education that, "to the maximum extent appropriate," is integrated with that of nonmentally retarded children. Education of the Handicapped Act, 20 U.S.C. § 1412(5)(B). The Government has also facilitated the hiring of the mentally retarded into the federal civil service by exempting them from the requirement of competitive examination. Page 473 U. S. 444 See 5 CFR § 213.3102(t) (1984). The State of Texas has similarly enacted legislation that acknowledges the special status of the mentally retarded by conferring certain rights upon them, such as "the right to live in the least restrictive setting appropriate to [their] individual needs and abilities," including "the right to live . . . in a group home." Mentally Retarded Persons Act of 1977, Tex.Rev.Civ.Stat.Ann., Art. 5547-300, § 7 (Vernon Supp.1985). [ Footnote 11 ] Such legislation thus singling out the retarded for special treatment reflects the real and undeniable differences between the retarded and others. That a civilized and decent society expects and approves such legislation indicates that governmental consideration of those differences in the vast majority of situations is not only legitimate but also desirable. It may be, as CLC contends, that legislation designed to benefit, rather than disadvantage, the retarded would generally withstand examination under a test of heightened scrutiny. See Brief for Respondents 38-41. The relevant inquiry, however, is whether heightened scrutiny is constitutionally mandated in the first instance. Even assuming that many of these laws could be shown to be substantially related to an important governmental purpose, merely requiring the legislature to justify its efforts in these terms may lead it to refrain from acting at all. Much recent legislation intended to benefit the retarded also assumes the need for measures that might be perceived to disadvantage them. The Education of the Handicapped Act, for example, requires an "appropriate" education, not one that is equal in all respects Page 473 U. S. 445 to the education of nonretarded children; clearly, admission to a class that exceeded the abilities of a retarded child would not be appropriate. [ Footnote 12 ] Similarly, the Developmental Disabilities Assistance Act and the Texas Act give the retarded the right to live only in the "least restrictive setting" appropriate to their abilities, implicitly assuming the need for at least some restrictions that would not be imposed on others. [ Footnote 13 ] Especially given the wide variation in the abilities and needs of the retarded themselves, governmental bodies must have a certain amount of flexibility and freedom from judicial oversight in shaping and limiting their remedial efforts. Third, the legislative response, which could hardly have occurred and survived without public support, negates any claim that the mentally retarded are politically powerless in the sense that they have no ability to attract the attention of the lawmakers. Any minority can be said to be powerless to assert direct control over the legislature, but if that were a criterion for higher level scrutiny by the courts, much economic and social legislation would now be suspect. Fourth, if the large and amorphous class of the mentally retarded were deemed quasi-suspect for the reasons given by the Court of Appeals, it would be difficult to find a principled way to distinguish a variety of other groups who have perhaps immutable disabilities setting them off from others, who cannot themselves mandate the desired legislative responses, and who can claim some degree of prejudice from at least part of the public at large. One need mention in this respect only Page 473 U. S. 446 the aging, the disabled, the mentally ill, and the infirm. We are reluctant to set out on that course, and we decline to do so. Doubtless, there have been and there will continue to be instances of discrimination against the retarded that are, in fact, invidious, and that are properly subject to judicial correction under constitutional norms. But the appropriate method of reaching such instances is not to create a new quasi-suspect classification and subject all governmental action based on that classification to more searching evaluation. Rather, we should look to the likelihood that governmental action premised on a particular classification is valid as a general matter, not merely to the specifics of the case before us. Because mental retardation is a characteristic that the government may legitimately take into account in a wide range of decisions, and because both State and Federal Governments have recently committed themselves to assisting the retarded, we will not presume that any given legislative action, even one that disadvantages retarded individuals, is rooted in considerations that the Constitution will not tolerate. Our refusal to recognize the retarded as a quasi-suspect class does not leave them entirely unprotected from invidious discrimination. To withstand equal protection review, legislation that distinguishes between the mentally retarded and others must be rationally related to a legitimate governmental purpose. This standard, we believe, affords government the latitude necessary both to pursue policies designed to assist the retarded in realizing their full potential, and to freely and efficiently engage in activities that burden the retarded in what is essentially an incidental manner. The State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational. See Zobel v. Williams, 457 U. S. 55 , 457 U. S. 61 -63 (1982); United States Dept. of Agriculture v. Moreno, 413 U. S. 528 , 413 U. S. 535 (1973). Furthermore, some objectives -- Page 473 U. S. 447 such as "a bare . . . desire to harm a politically unpopular group," id. at 413 U. S. 534 -- are not legitimate state interests. See also Zobel, supra, at 457 U. S. 63 . Beyond that, the mentally retarded, like others, have and retain their substantive constitutional rights in addition to the right to be treated equally by the law. IV We turn to the issue of the validity of the zoning ordinance insofar as it requires a special use permit for homes for the mentally retarded. [ Footnote 14 ] We inquire first whether requiring a special use permit for the Featherston home in the circumstances here deprives respondents of the equal protection of the laws. If it does, there will be no occasion to decide whether the special use permit provision is facially invalid where the mentally retarded are involved, or to put it another way, whether the city may never insist on a special use permit for a home for the mentally retarded in an R-3 zone. This is the preferred course of adjudication, since it enables courts to avoid making unnecessarily broad constitutional judgments. Brockett v. Spokane Arcades, Inc., 472 U. S. 491 , 472 U. S. 501 -502 (1985); United States v. Grace, 461 U. S. 171 (1983); NAACP v. Button, 371 U. S. 415 (1963). The constitutional issue is clearly posed. The city does not require a special use permit in an R-3 zone for apartment houses, multiple dwellings, boarding and lodging houses, fraternity or sorority houses, dormitories, apartment hotels, hospitals, sanitariums, nursing homes for convalescents or the aged (other than for the insane or feeble-minded or alcoholics or drug addicts), private clubs or fraternal orders, and other specified uses. It does, however, insist on a special permit for the Featherston home, and it does so, as the District Court found, because it would be a facility for the mentally Page 473 U. S. 448 retarded. May the city require the permit for this facility when other care and multiple-dwelling facilities are freely permitted? It is true, as already pointed out, that the mentally retarded, as a group, are indeed different from others not sharing their misfortune, and in this respect they may be different from those who would occupy other facilities that would be permitted in an R-3 zone without a special permit. But this difference is largely irrelevant unless the Featherston home and those who would occupy it would threaten legitimate interests of the city in a way that other permitted uses such as boarding houses and hospitals would not. Because, in our view, the record does not reveal any rational basis for believing that the Featherston home would pose any special threat to the city's legitimate interests, we affirm the judgment below insofar as it holds the ordinance invalid as applied in this case. The District Court found that the City Council's insistence on the permit rested on several factors. First, the Council was concerned with the negative attitude of the majority of property owners located within 200 feet of the Featherston facility, as well as with the fears of elderly residents of the neighborhood. But mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for the mentally retarded differently from apartment houses, multiple dwellings, and the like. It is plain that the electorate as a whole, whether by referendum or otherwise, could not order city action violative of the Equal Protection Clause, Lucas v. Forty-Fourth General Assembly of Colorado, 377 U. S. 713 , 377 U. S. 736 -737 (1964), and the city may not avoid the strictures of that Clause by deferring to the wishes or objections of some fraction of the body politic. "Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." Palmore v. Sidoti, 466 U. S. 429 , 466 U. S. 433 (1984). Page 473 U. S. 449 Second, the Council had two objections to the location of the facility. It was concerned that the facility was across the street from a junior high school, and it feared that the students might harass the occupants of the Featherston home. But the school itself is attended by about 30 mentally retarded students, and denying a permit based on such vague, undifferentiated fears is again permitting some portion of the community to validate what would otherwise be an equal protection violation. The other objection to the home's location was that it was located on "a five-hundred-year flood plain." This concern with the possibility of a flood, however, can hardly be based on a distinction between the Featherston home and, for example, nursing homes, homes for convalescents or the aged, or sanitariums or hospitals, any of which could be located on the Featherston site without obtaining a special use permit. The same may be said of another concern of the Council -- doubts about the legal responsibility for actions which the mentally retarded might take. If there is no concern about legal responsibility with respect to other uses that would be permitted in the area, such as boarding and fraternity houses, it is difficult to believe that the groups of mildly or moderately mentally retarded individuals who would live at 201 Featherston would present any different or special hazard. Fourth, the Council was concerned with the size of the home and the number of people that would occupy it. The District Court found, and the Court of Appeals repeated, that, "[i]f the potential residents of the Featherston Street home were not mentally retarded, but the home was the same in all other respects, its use would be permitted under the city's zoning ordinance." App. 93; 726 F.2d at 200. Given this finding, there would be no restrictions on the number of people who could occupy this home as a boarding house, nursing home, family dwelling, fraternity house, or dormitory. The question is whether it is rational to treat the mentally retarded differently. It is true that they suffer disability Page 473 U. S. 450 not shared by others, but why this difference warrants a density regulation that others need not observe is not at all apparent. At least this record does not clarify how, in this connection, the characteristics of the intended occupants of the Featherston home rationally justify denying to those occupants what would be permitted to groups occupying the same site for different purposes. Those who would live in the Featherston home are the type of individuals who, with supporting staff, satisfy federal and state standards for group housing in the community; and there is no dispute that the home would meet the federal square-footage-per-resident requirement for facilities of this type. See 42 CFR § 442.447 (1984). In the words of the Court of Appeals, "[t]he City never justifies its apparent view that other people can live under such 'crowded' conditions when mentally retarded persons cannot." 726 F.2d at 202. In the courts below, the city also urged that the ordinance is aimed at avoiding concentration of population and at lessening congestion of the streets. These concerns obviously fail to explain why apartment houses, fraternity and sorority houses, hospitals and the like, may freely locate in the area without a permit. So, too, the expressed worry about fire hazards, the serenity of the neighborhood, and the avoidance of danger to other residents fail rationally to justify singling out a home such as 201 Featherston for the special use permit, yet imposing no such restrictions on the many other uses freely permitted in the neighborhood. The short of it is that requiring the permit in this case appears to us to rest on an irrational prejudice against the mentally retarded, including those who would occupy the Featherston facility and who would live under the closely supervised and highly regulated conditions expressly provided for by state and federal law. The judgment of the Court of Appeals is affirmed insofar as it invalidates the zoning ordinance as applied to the Featherston home. The judgment is otherwise vacated, and the case is remanded. It is so ordered. Page 473 U. S. 451 [ Footnote 1 ] Cleburne Living Center, Inc., is now known as Community Living Concepts, Inc. Hannah is the vice-president and part owner of CLC. For convenience, both Hannah and CLC will be referred to as "CLC." A third respondent is Advocacy, Inc., a nonprofit corporation that provides legal services to developmentally disabled persons. [ Footnote 2 ] It was anticipated that the home would be operated as a private Level I Intermediate Care Facility for the Mentally Retarded, or ICF-MR, under a program providing for joint federal-state reimbursement for residential services for mentally retarded clients. See 42 U.S.C. § 1396d(a)(15); Tex. Human Resources Code Ann. § 32.001 et seq. (1980 and Supp.1985). ICF-MR's are covered by extensive regulations and guidelines established by the United States Department of Health and Human Services and the Texas Departments of Human Resources, Mental Health and Mental Retardation, and Health. See App. 92. See also 42 CFR § 442.1 et seq. (1984); 40 Tex.Adm.Code § 27.101 et seq. (1981). [ Footnote 3 ] The site of the home is in an area zoned "R-3," an "Apartment House District." App. 51. Section 8 of the Cleburne zoning ordinance, in pertinent part, allows the following uses in an R-3 district: "1. Any use permitted in District R-2." "2. Apartment houses, or multiple dwellings." "3. Boarding and lodging houses." "4. Fraternity or sorority houses and dormitories." "5. Apartment hotels." "6. Hospitals, sanitariums, nursing homes or homes for convalescents or aged, other than for the insane or feeble-minded or alcoholics or drug addicts." "7. Private clubs or fraternal orders, except those whose chief activity is carried on as a business." "8. Philanthropic or eleemosynary institutions, other than penal institutions." "9. Accessory uses customarily incident to any of the above uses. . . ." Id. at 60-61 (emphasis added). Section 16 of the ordinance specifies the uses for which a special use permit is required. These include "[h]ospitals for the insane or feeble-minded, or alcoholic [ sic ] or drug addicts, or penal or correctional institutions." Id. at 63. Section 16 provides that a permit for such a use may be issued by "the Governing Body, after public hearing, and after recommendation of the Planning Commission." All special use permits are limited to one year, and each applicant is required "to obtain the signatures of the property owners within two hundred (200) feet of the property to be used." Ibid. [ Footnote 4 ] The city's Planning and Zoning Commission had earlier held a hearing and voted to deny the permit. Id. at 91. [ Footnote 5 ] The District Court also rejected CLC's other claims, including the argument that the city had violated due process by improperly delegating its zoning powers to the owners of adjoining property. App. 105. Cf. Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U. S. 116 (1928). The Court of Appeals did not address this argument, and it has not been raised by the parties in this Court. [ Footnote 6 ] The District Court had found: "Group homes currently are the principal community living alternatives for persons who are mentally retarded. The availability of such a home in communities is an essential ingredient of normal living patterns for persons who are mentally retarded, and each factor that makes such group homes harder to establish operates to exclude persons who are mentally retarded from the community." App. 94. [ Footnote 7 ] The city relied on a recently passed state regulation limiting group homes to 6 residents in support of its argument that the CLC home would be overcrowded with 13. But, the Court of Appeals observed, the city had failed to justify its apparent view that any other group of 13 people could live under these allegedly "crowded" conditions, nor had it explained why 6 would be acceptable, but 13 not. CLC concedes that it could not qualify for certification under the new Texas regulation. Tr. of Oral Rearg. 31. The Court of Appeals stated that the new regulation applied only to applications made after May 1, 1982, and therefore did not apply to the CLC home. 726 F.2d at 202. The regulation itself contains no grandfather clause, see App. 78-81, and the District Court made no specific finding on this point. See id. at 96. However, the State has asserted in an amici brief filed in this Court that " the six-bed rule' would not pose an obstacle to the proposed Featherston Street group home at issue in this case." Brief for State of Texas et al. as Amici Curiae 15, n. 7. If the six-bed requirement were to apply to the home, there is a serious possibility that CLC would no longer be interested in injunctive relief. David Southern, an officer of CLC, testified that "to break even on a facility of this type, you have to have at least ten or eleven residents." App. 32. However, because CLC requested damages as well as an injunction, see id. at 15, the case would not be moot. After oral argument, the city brought to our attention the recent enactment of a Texas statute, effective September 1, 1985, providing that "family homes" are permitted uses in "all residential zones or districts in this state." The statute defines a "family home" as a community-based residence housing no more than six disabled persons, including the mentally retarded, along with two supervisory personnel. The statute does not appear to affect the city's actions with regard to group homes that plan to house more than six residents. The enactment of this legislation therefore does not affect our disposition of this case. [ Footnote 8 ] Macon Assn. for Retarded Citizens v. Macon-Bibb County Planning and Zoning Comm'n, 252 Ga. 484, 314 S.E.2d 218 (1984), dism'd for want of a substantial federal question, 469 U.S. 802 (1984), has no controlling effect on this case. Macon Assn. for Retarded Citizens involved an ordinance that had the effect of excluding a group home for the retarded only because it restricted dwelling units to those occupied by a single family, defined as no more than four unrelated persons. In Village of Belle Terre v. Boraas, 416 U. S. 1 (1974), we upheld the constitutionality of a similar ordinance, and the Georgia Supreme Court, in Macon Assn., specifically held that the ordinance did not discriminate against the retarded. 252 Ga., at 487, 314 S.E.2d at 221. [ Footnote 9 ] Mentally retarded individuals fall into four distinct categories. The vast majority -- approximately 89% -- are classified as "mildly" retarded, meaning that their IQ is between 50 and 70. Approximately 6% are "moderately" retarded, with IQs between 35 and 50. The remaining two categories are "severe" (IQs of 20 to 35) and "profound" (IQs below 20). These last two categories together account for about 5% of the mentally retarded population. App. 39 (testimony of Dr. Philip Roos). Mental retardation is not defined by reference to intelligence or IQ alone, however. The American Association on Mental Deficiency (AAMD) has defined mental retardation as "'significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period.'" Brief for AAMD et al. as Amici Curiae 3 (quoting AAMD, Classification in Mental Retardation 1 (H. Grossman ed.1983)). "Deficits in adaptive behavior" are limitations on general ability to meet the standards of maturation, learning, personal independence, and social responsibility expected for an individual's age level and cultural group. Brief for AAMD et al. as Amici Curiae 4, n. 1. Mental retardation is caused by a variety of factors, some genetic, some environmental, and some unknown. Id. at 4. [ Footnote 10 ] As Dean Ely has observed: "Surely one has to feel sorry for a person disabled by something he or she can't do anything about, but I'm not aware of any reason to suppose that elected officials are unusually unlikely to share that feeling. Moreover, classifications based on physical disability and intelligence are typically accepted as legitimate, even by judges and commentators who assert that immutability is relevant. The explanation, when one is given, is that those characteristics (unlike the one the commentator is trying to render suspect) are often relevant to legitimate purposes. At that point, there's not much left of the immutability theory, is there?" J. Ely, Democracy and Distrust 150 (1980) (footnote omitted). See also id. at 154-155. [ Footnote 11 ] CLC originally sought relief under the Act, but voluntarily dismissed this pendent state claim when the District Court indicated that its presence might make abstention appropriate. The Act had never been construed by the Texas courts. App. 12, 14, 84-87. A number of States have passed legislation prohibiting zoning that excludes the retarded. See, e.g., Cal.Health & Safety Code Ann. § 1566 et seq. (West 1979 and Supp.1985); Conn.Gen.Stat. § 8-3e (Supp.1985); N.D.Cent.Code § 25-16-14(2) (Supp.1983); R.I.Gen.Laws. § 45-24-22 (1980). See also Md. Health Code Ann. § 7-102 (Supp.1984). [ Footnote 12 ] The Act, which specifically included the mentally retarded in its definition of handicapped, see 20 U.S.C. § 1401(1), also recognizes the great variations within the classification of retarded children. The Act requires that school authorities devise an "individualized educational program," § 1401 (19), that is "tailored to the unique needs of the handicapped child." Hendrick Hudson District Board of Education v. Rowley, 458 U. S. 176 , 458 U. S. 181 (1982). [ Footnote 13 ] The Developmental Disabilities Assistance Act also withholds public funds from any program that does not prohibit the use of physical restraint "unless absolutely necessary." 42 U.S.C. § 6010(3). [ Footnote 14 ] It goes without saying that there is nothing before us with respect to the validity of requiring a special use permit for the other uses listed in the ordinance. See n 3, supra. JUSTICE STEVENS, with whom THE CHIEF JUSTICE joins, concurring. The Court of Appeals disposed of this case as if a critical question to be decided were which of three clearly defined standards of equal protection review should be applied to a legislative classification discriminating against.the mentally retarded. [ Footnote 2/1 ] In fact, our cases have not delineated three -- or even one or two -- such well-defined standards. [ Footnote 2/2 ] Rather, our cases reflect a continuum of judgmental responses to differing classifications which have been explained in opinions by terms ranging from "strict scrutiny" at one extreme to "rational basis" at the other. I have never been persuaded that these so-called "standards" adequately explain the decisional process. [ Footnote 2/3 ] Cases involving classifications based on alienage, Page 473 U. S. 452 illegal residency, illegitimacy, gender, age, or -- as in this case -- mental retardation, do not fit well into sharply defined classifications. "I am inclined to believe that what has become known as the [tiered] analysis of equal protection claims does not describe a completely logical method of deciding cases, but rather is a method the Court has employed to explain decisions that actually apply a single standard in a reasonably consistent fashion." Craig v. Boren, 429 U. S. 190 , 429 U. S. 212 (1976) (STEVENS, J., concurring). In my own approach to these cases, I have always asked myself whether I could find a "rational basis" for the classification at issue. The term "rational," of course, includes a requirement that an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class. [ Footnote 2/4 ] Thus, the word "rational" -- for me at least -- includes elements of legitimacy and neutrality that must always characterize the performance of the sovereign's duty to govern impartially. [ Footnote 2/5 ] The rational basis test, properly understood, adequately explains why a law that deprives a person of the right to vote because his skin has a different pigmentation than that of other voters violates the Equal Protection Clause. It would be utterly irrational to limit the franchise on the basis of height or weight; it is equally invalid to limit it on the basis of skin color. None of these attributes has any bearing at all Page 473 U. S. 453 on the citizen's willingness or ability to exercise that civil right. We do not need to apply a special standard, or to apply "strict scrutiny," or even "heightened scrutiny," to decide such cases. In every equal protection case, we have to ask certain basic questions. What class is harmed by the legislation, and has it been subjected to a "tradition of disfavor" by our laws? [ Footnote 2/6 ] What is the public purpose that is being served by the law? What is the characteristic of the disadvantaged class that justifies the disparate treatment? [ Footnote 2/7 ] In most cases, the answer to these questions will tell us whether the statute has a "rational basis." The answers will result in the virtually automatic invalidation of racial classifications and in the validation of most economic classifications, but they will provide differing results in cases involving classifications based on alienage, [ Footnote 2/8 ] gender, [ Footnote 2/9 ] or illegitimacy. [ Footnote 2/10 ] But that is not because we Page 473 U. S. 454 apply an "intermediate standard of review" in these cases; rather, it is because the characteristics of these groups are sometimes relevant and sometimes irrelevant to a valid public purpose, or, more specifically, to the purpose that the challenged laws purportedly intended to serve. [ Footnote 2/11 ] Every law that places the mentally retarded in a special class is not presumptively irrational. The differences between mentally retarded persons and those with greater mental capacity are obviously relevant to certain legislative decisions. An impartial lawmaker -- indeed, even a member of a class of persons defined as mentally retarded -- could rationally vote in favor of a law providing funds for special education and special treatment for the mentally retarded. A mentally retarded person could also recognize that he is a member of a class that might need special supervision in some situations, both to protect himself and to protect others. Restrictions on his right to drive cars or to operate hazardous equipment might well seem rational even though they deprived him of employment opportunities and the kind of freedom of travel enjoyed by other citizens. "That a civilized and decent society expects and approves such legislation indicates that governmental consideration of those differences in the vast majority of situations is not only legitimate, but also desirable." Ante at 473 U. S. 444 . Even so, the Court of Appeals correctly observed that, through ignorance and prejudice, the mentally retarded "have been subjected to a history of unfai and often grotesque mistreatment." 726 F.2d 191, 197 (CA5 1984). The dis- crimination against the mentally retarded that is at issue in this case is the city's decision to require an annual special use permit before property in an apartment house district may be used as a group home for persons who are mildly retarded. The record convinces me that this permit was required because of the irrational fears of neighboring property owners, rather than for the protection of the mentally retarded persons who would reside in respondent's home. [ Footnote 2/12 ] Although the city argued in the Court of Appeals that legitimate interests of the neighbors justified the restriction, the court unambiguously rejected that argument. Id. at 201. In this Court, the city has argued that the discrimination was really motivated by a desire to protect the mentally retarded from the hazards presented by the neighborhood. Zoning ordinances are not usually justified on any such basis, and in this case, for the reasons explained by the Court, ante at 473 U. S. 447 -450, I find that justification wholly unconvincing. I cannot believe that a rational member of this disadvantaged class could ever approve of the discriminatory application of the city's ordinance in this case. Accordingly, I join the opinion of the Court. Page 473 U. S. 455 [ Footnote 2/1 ] The three standards -- "rationally related to a legitimate state interest," "somewhat heightened review," and "strict scrutiny" are briefly described ante at 473 U. S. 440 , 441. [ Footnote 2/2 ] In United States Railroad Retirement Board v. Fritz, 449 U. S. 166 , 449 U. S. 176 -177, n. 10 (1980), after citing 11 cases applying the rational basis standard, the Court stated: "The most arrogant legal scholar would not claim that all of these cases applied a uniform or consistent test under equal protection principles." Commenting on the intermediate standard of review in his dissent in Craig v. Boren, 429 U. S. 190 , 429 U. S. 220 -221 (1976), JUSTICE REHNQUIST wrote: "I would think we have had enough difficulty with the two standards of review which our cases have recognized -- the norm of 'rational basis,' and the 'compelling state interest' required where a 'suspect classification' is involved -- so as to counsel weightily against the insertion of still another 'standard' between those two. How is this Court to divine what objectives are important? How is it to determine whether a particular law is 'substantially' related to the achievement of such objective, rather than related in some other way to its achievement? Both of the phrases used are so diaphanous and elastic as to invite subjective judicial preferences or prejudices relating to particular types of legislation, masquerading as judgments whether such legislation is directed at 'important' objectives or, whether the relationship to those objectives is 'substantial' enough." [ Footnote 2/3 ] Cf. San Antonio Independent School District v. Rodriguez, 411 U. S. 1 , 411 U. S. 98 (1973) (MARSHALL, J., dissenting, joined by Douglas, J.) (criticizing "the Court's rigidified approach to equal protection analysis"). [ Footnote 2/4 ] "I therefore believe that we must discover a correlation between the classification and either the actual purpose of the statute or a legitimate purpose that we may reasonably presume to have motivated an impartial legislature. If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect. If, however, the adverse impact may reasonably be viewed as an acceptable cost of achieving a larger goal, an impartial lawmaker could rationally decide that that cost should be incurred." United States Railroad Retirement Board v. Fritz, 449 U.S. at 449 U. S. 180 -181 (STEVENS, J., concurring in judgment). [ Footnote 2/5 ] See Lehr v. Robertson, 463 U. S. 248 , 463 U. S. 265 (1983); Hampton v. Mow Sun Wong, 426 U. S. 88 , 426 U. S. 100 (1976). [ Footnote 2/6 ] The Court must be especially vigilant in evaluating the rationality of any classification involving a group that has been subjected to a "tradition of disfavor, [for] a traditional classification is more likely to be used without pausing to consider its justification than is a newly created classification. Habit, rather than analysis, makes it seem acceptable and natural to distinguish between male and female, alien and citizen, legitimate and illegitimate; for too much of our history, there was the same inertia in distinguishing between black and white. But that sort of stereotyped reaction may have no rational relationship -- other than pure prejudicial discrimination -- to the stated purpose for which the classification is being made." Mathews v. Lucas, 427 U. S. 495 , 427 U. S. 520 -521 (1976) (STEVENS, J., dissenting). See also New York Transit Authority v. Beazer, 440 U. S. 568 , 440 U. S. 593 (1979). [ Footnote 2/7 ] See Foley v. Connelie, 435 U. S. 291 , 435 U. S. 308 (1978) (STEVENS, J., dissenting). [ Footnote 2/8 ] See Mathews v. Diaz, 426 U. S. 67 , 426 U. S. 78 -80 (1976); compare Sugarman v. Dougall, 413 U. S. 634 (1973), and In re Griffiths, 413 U. S. 717 (1973), with Ambach v. Norwick, 441 U. S. 68 (1979), and Foley v. Connelie, 435 U. S. 291 (1978). [ Footnote 2/9 ] Compare Reed v. Reed, 404 U. S. 71 (1971), and Califano v. Goldfarb, 430 U. S. 199 (1977), with Personnel Administrator of Mass. v. Feeney, 442 U. S. 256 (1979), and Heckler v. Mathews, 465 U. S. 728 (1984). [ Footnote 2/10 ] Compare Lalli v. Lalli, 439 U. S. 259 (1978), with Trimble v. Gordon, 430 U. S. 762 (1977). [ Footnote 2/11 ] See Michael M. v. Superior Court of Sonoma County, 450 U. S. 464 , 450 U. S. 497 -498, and n. 4 (1981) (STEVENS, J., dissenting). See also Caban v. Mohammed, 441 U. S. 380 , 441 U. S. 406 -407 (1979) (STEVENS, J., dissenting) ("But as a matter of equal protection analysis, it is perfectly obvious that at the time and immediately after a child is born our of wedlock, differences between men and women justify some differential treatment of the mother and father in the adoption process."). [ Footnote 2/12 ] In fact, the ordinance provides that each applicant for a special use permit "shall be required to obtain the signatures of the property owners within two hundred (200) feet of the property to be used." App. 63. JUSTICE MARSHALL, with whom JUSTICE BRENNAN and JUSTICE BLACKMUN join, concurring in the judgment in part and dissenting in part. The Court holds that all retarded individuals cannot be grouped together as the "feeble-minded" and deemed presumptively unfit to live in a community. Underlying this holding is the principle that mental retardation, per se, cannot be a proxy for depriving retarded people of their rights and interests without regard to variations in individual ability. Page 473 U. S. 456 With this holding and principle I agree. The Equal Protection Clause requires attention to the capacities and needs of retarded people as individuals. I cannot agree, however, with the way in which the Court reaches its result or with the narrow, as-applied remedy it provides for the city of Cleburne's equal protection violation. The Court holds the ordinance invalid on rational basis grounds, and disclaims that anything special, in the form of heightened scrutiny, is taking place. Yet Cleburne's ordinance surely would be valid under the traditional rational basis test applicable to economic and commercial regulation. In my view, it is important to articulate, as the Court does not, the facts and principles that justify subjecting this zoning ordinance to the searching review -- the heightened scrutiny -- that actually leads to its invalidation. Moreover, in invalidating Cleburne's exclusion of the "feeble-minded" only as applied to respondents, rather than on its face, the Court radically departs from our equal protection precedents. Because I dissent from this novel and truncated remedy, and because I cannot accept the Court's disclaimer that no "more exacting standard" than ordinary rational basis review is being applied, ante at 473 U. S. 442 , I write separately. I At the outset, two curious and paradoxical aspects of the Court's opinion must be noted. First, because the Court invalidates Cleburne's zoning ordinance on rational basis grounds, the Court's wide-ranging discussion of heightened scrutiny is wholly superfluous to the decision of this case. This "two for the price of one" approach to constitutional decisionmaking -- rendering two constitutional rulings where one is enough to decide the case -- stands on their head traditional and deeply embedded principles governing exercise of the Court's Article III power. Just a few weeks ago, the Court "call[ed] to mind two of the cardinal rules governing Page 473 U. S. 457 the federal courts: 'One, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.'" Brockett v. Spokane Arcades, Inc., 472 U. S. 491 , 472 U. S. 501 (1985) (WHITE, J.) (quoting Liverpool, New York & Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U. S. 33 , 113 U. S. 39 (1885)). [ Footnote 3/1 ] When a lower court correctly decides a case, albeit on what this Court concludes are unnecessary constitutional grounds, [ Footnote 3/2 ] "our usual custom" is not to compound the problem by following suit, but rather to affirm on the narrower, dispositive ground available. Alexander v. Louisiana, 405 U. S. 625 , 405 U. S. 633 (1972). [ Footnote 3/3 ] The Court offers no principled justification for departing from these principles, nor, given our equal protection precedents, could it. See Mississippi University for Women v. Hogan, 458 U. S. 718 , 458 U. S. 724 , n. 9 (1982) (declining to address strict scrutiny when heightened scrutiny sufficient to invalidate action challenged); Stanton v. Stanton, 421 U. S. 7 , 421 U. S. 13 (1975) Page 473 U. S. 458 (same); Hooper v. Bernalillo County Assessor, 472 U. S. 612 , 472 U. S. 618 (1985) (declining to reach heightened scrutiny in review of residency-based classifications that fail rational basis test); Zobel v. Williams, 457 U. S. 55 , 457 U. S. 60 -61 (1982) (same); cf. Mitchell v. Forsyth, 472 U. S. 511 , 472 U. S. 537 -538 (1985) (O'CONNOR, J., concurring in part). Second, the Court's heightened scrutiny discussion is even more puzzling given that Cleburne's ordinance is invalidated only after being subjected to precisely the sort of probing inquiry associated with heightened scrutiny. To be sure, the Court does not label its handiwork heightened scrutiny, and perhaps the method employed must hereafter be called "second order" rational basis review, rather than "heightened scrutiny." But however labeled, the rational basis test invoked today is most assuredly not the rational basis test of Williamson v. Lee Optical of Oklahoma, Inc., 348 U. S. 483 (1955); Allied Stores of Ohio, Inc. v. Bowers, 358 U. S. 522 (1959), and their progeny. The Court, for example, concludes that legitimate concerns for fire hazards or the serenity of the neighborhood do not justify singling out respondents to bear the burdens of these concerns, for analogous permitted uses appear to pose similar threats. Yet under the traditional and most minimal version of the rational basis test, "reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind." Williamson v. Lee Optical of Oklahoma, Inc., supra, at 348 U. S. 489 ; see American Federation of Labor v. American Sash Co., 335 U. S. 538 (1949); Semler v. Dental Examiners, 294 U. S. 608 (1935). The "record" is said not to support the ordinance's classifications, ante at 473 U. S. 448 , 473 U. S. 450 , but under the traditional standard, we do not sift through the record to determine whether policy decisions are squarely supported by a firm factual foundation. Exxon Corp. v. Eagerton, 462 U. S. 176 , 462 U. S. 196 (1983); Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456 , 449 U. S. 461 -462, Page 473 U. S. 459 449 U. S. 464 (1981); Firemen v. Chicago, R. I. & P. R. Co., 393 U. S. 129 , 393 U. S. 138 -139 (1968). Finally, the Court further finds it "difficult to believe" that the retarded present different or special hazards inapplicable to other groups. In normal circumstances, the burden is not on the legislature to convince the Court that the lines it has drawn are sensible; legislation is presumptively constitutional, and a State "is not required to resort to close distinctions or to maintain a precise, scientific uniformity with reference" to its goals. Allied Stores of Ohio, Inc. v. Bowers, supra, at 358 U. S. 527 ; Metropolis Theatre Co. v. City of Chicago, 228 U. S. 61 , 228 U. S. 68 -70 (1913). I share the Court's criticisms of the overly broad lines that Cleburne's zoning ordinance has drawn. But if the ordinance is to be invalidated for its imprecise classifications, it must be pursuant to more powerful scrutiny than the minimal rational basis test used to review classifications affecting only economic and commercial matters. The same imprecision in a similar ordinance that required opticians but not optometrists to be licensed to practice, see Williamson v. Lee Optical of Oklahoma, Inc., supra, or that excluded new but not old businesses from parts of a community, see New Orleans v. Dukes, supra, would hardly be fatal to the statutory scheme. The refusal to acknowledge that something more than minimum rationality review is at work here is, in my view, unfortunate in at least two respects. [ Footnote 3/4 ] The suggestion that Page 473 U. S. 460 the traditional rational basis test allows this sort of searching inquiry creates precedent for this Court and lower courts to subject economic and commercial classifications to similar and searching "ordinary" rational basis review -- a small and regrettable step back toward the days of Lochner v. New York, 198 U. S. 45 (1905). Moreover, by failing to articulate the factors that justify today's "second order" rational basis review, the Court provides no principled foundation for determining when more searching inquiry is to be invoked. Lower courts are thus left in the dark on this important question, and this Court remains unaccountable for its decisions employing, or refusing to employ, particularly searching scrutiny. Candor requires me to acknowledge the particular factors that justify invalidating Cleburne's zoning ordinance under the careful scrutiny it today receives. II I have long believed the level of scrutiny employed in an equal protection case should vary with "the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn." San Antonio Independent School District v. Rodriguez, 411 U. S. 1 , 411 U. S. 99 (1973) (MARSHALL, J., dissenting). See also Plyler v. Doe, 457 U. S. 202 , 457 U. S. 230 -231 (1982) (MARSHALL, J., concurring); Dandridge v. Williams, 397 U. S. 471 , 397 U. S. 508 (1970) (MARSHALL, J., dissenting). When a zoning ordinance works to exclude the retarded from all residential districts in a community, these two considerations require that the ordinance be convincingly justified as substantially furthering legitimate and important purposes. Plyler, supra; Mississippi University for Women v. Hogan, 458 U. S. 718 (1982); Frontiero v. Richardson, 411 U. S. 677 (1973); Mills v. Habluetzel, 456 U. S. 91 (1982); see also Buchanan v. Warley, 245 U. S. 60 (1917). Page 473 U. S. 461 First, the interest of the retarded in establishing group homes is substantial. The right to "establish a home" has long been cherished as one of the fundamental liberties embraced by the Due Process Clause. See Meyer v. Nebraska, 262 U. S. 390 , 262 U. S. 399 (1923). For retarded adults, this right means living together in group homes, for as deinstitutionalization has progressed, group homes have become the primary means by which retarded adults can enter life in the community. The District Court found as a matter of fact that "[t]he availability of such a home in communities is an essential ingredient of normal living patterns for persons who are mentally retarded, and each factor that makes such group homes harder to establish operates to exclude persons who are mentally retarded from the community." App. to Pet. for Cert. A-8. Excluding group homes deprives the retarded of much of what makes for human freedom and fulfillment -- the ability to form bonds and take part in the life of a community. [ Footnote 3/5 ] Second, the mentally retarded have been subject to a "lengthy and tragic history," University of California Regents v. Bakke, 438 U. S. 265 , 438 U. S. 303 (1978) (opinion of POWELL, J.), of segregation and discrimination that can only be called grotesque. During much of the 19th century, mental retardation was viewed as neither curable nor dangerous, and the retarded were largely left to their own devices. [ Footnote 3/6 ] By the latter part of the century and during the first decades of the new one, however, social views of the retarded underwent a radical transformation. Fueled by the rising tide of Social Darwinism, the "science" of eugenics, and the extreme Page 473 U. S. 462 xenophobia of those years, [ Footnote 3/7 ] leading medical authorities and others began to portray the "feeble-minded" as a "menace to society and civilization . . . responsible in a large degree for many, if not all, of our social problems." [ Footnote 3/8 ] A regime of state-mandated segregation and degradation soon emerged that, in its virulence and bigotry, rivaled, and indeed paralleled, the worst excesses of Jim Crow. Massive custodial institutions were built to warehouse the retarded for life; the aim was to halt reproduction of the retarded and "nearly extinguish their race." [ Footnote 3/9 ] Retarded children were categorically excluded from Page 473 U. S. 463 public schools, based on the false stereotype that all were ineducable and on the purported need to protect nonretarded children from them. [ Footnote 3/10 ] State laws deemed the retarded "unfit for citizenship." [ Footnote 3/11 ] Segregation was accompanied by eugenic marriage and sterilization laws that extinguished for the retarded one of the "basic civil rights of man" -- the right to marry and procreate. Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 , 316 U. S. 541 (1942). Marriages of the retarded were made, and in some States continue to be, not only voidable but also often a criminal offense. [ Footnote 3/12 ] The purpose of such limitations, which frequently applied only to women of child-bearing age, was unabashedly eugenic: to prevent the retarded from propagating. [ Footnote 3/13 ] To assure this end, 29 States enacted compulsory eugenic sterilization laws between 1907 and 1931. J. Landman, Human Sterilization 302-303 (1932). See Buck v. Bell, 274 U. S. 200 , 274 U. S. 207 (1927) (Holmes, J.); cf. 163 U. S. Ferguson, Page 473 U. S. 464 163 U. S. 537 (1896); Bradwell v. Illinois , 16 Wall. 130, 83 U. S. 141 (1873) (Bradley, J., concurring in judgment). Prejudice, once let loose, is not easily cabined. See University of California Regents v. Bakke, 438 U.S. at 435 U. S. 395 (opinion of MARSHALL, J.). As of 1979, most States still categorically disqualified "idiots" from voting, without regard to individual capacity and with discretion to exclude left in the hands of low-level election officials. [ Footnote 3/14 ] Not until Congress enacted the Education of the Handicapped Act, 84 Stat. 175, as amended, 20 U.S.C. § 1400 et seq., were "the door[s] of public education" opened wide to handicapped children. Hendrick Hudson District Board of Education v. Rowley, 458 U. S. 176 , 458 U. S. 192 (1982). [ Footnote 3/15 ] But most important, lengthy and continuing isolation of the retarded has perpetuated the ignorance, irrational fears, and stereotyping that long have plagued them. [ Footnote 3/16 ] In light of the importance of the interest at stake and the history of discrimination the retarded have suffered, the Equal Protection Clause requires us to do more than review the distinctions drawn by Cleburne's zoning ordinance as if they appeared in a taxing statute or in economic or commercial legislation. [ Footnote 3/17 ] The searching scrutiny I would give to restrictions Page 473 U. S. 465 on the ability of the retarded to establish community group homes leads me to conclude that Cleburne's vague generalizations for classifying the "feeble-minded" with drug addicts, alcoholics, and the insane, and excluding them where the elderly, the ill, the boarder, and the transient are allowed, are not substantial or important enough to overcome the suspicion that the ordinance rests on impermissible assumptions or outmoded and perhaps invidious stereotypes. See Plyler v. Doe, 457 U. S. 202 (1982); Roberts v. United States Jaycees, 468 U. S. 609 (1984); Mississippi University for Women v. Hogan, 458 U. S. 718 (1982); Mills v. Habluetzel, 456 U. S. 91 (1982). III In its effort to show that Cleburne's ordinance can be struck down under no "more exacting standard . . . than is normally accorded economic and social legislation," ante at 473 U. S. 442 , the Court offers several justifications as to why the retarded do not warrant heightened judicial solicitude. These justifications, however, find no support in our heightened scrutiny precedents, and cannot withstand logical analysis. The Court downplays the lengthy "history of purposeful unequal treatment" of the retarded, see San Antonio Independent School District v. Rodriguez, 411 U.S. at 411 U. S. 28 , by pointing to recent legislative action that is said to "beli[e] a continuing antipathy or prejudice." Ante at 473 U. S. 443 . Building on this point, the Court similarly concludes that the retarded Page 473 U. S. 466 are not "politically powerless," and deserve no greater judicial protection than "[a]ny minority" that wins some political battles and loses others. Ante at 473 U. S. 445 . The import of these conclusions, it seems, is that the only discrimination courts may remedy is the discrimination they alone are perspicacious enough to see. Once society begins to recognize certain practices as discriminatory, in part because previously stigmatized groups have mobilized politically to lift this stigma, the Court would refrain from approaching such practices with the added skepticism of heightened scrutiny. Courts, however, do not sit or act in a social vacuum. Moral philosophers may debate whether certain inequalities are absolute wrongs, but history makes clear that constitutional principles of equality, like constitutional principles of liberty, property, and due process, evolve over time; what once was a "natural" and "self-evident" ordering later comes to be seen as an artificial and invidious constraint on human potential and freedom. Compare Plessy v. Ferguson, 163 U. S. 537 (1896), and Bradwell v. Illinois, supra, at 83 U. S. 141 (Bradley, J., concurring in judgment), with Brown v. Board of Education, 347 U. S. 483 (1954), and Reed v. Reed, 404 U. S. 71 (1971). Shifting cultural, political, and social patterns at times come to make past practices appear inconsistent with fundamental principles upon which American society rests, an inconsistency legally cognizable under the Equal Protection Clause. It is natural that evolving standards of equality come to be embodied in legislation. When that occurs, courts should look to the fact of such change as a source of guidance on evolving principles of equality. In an analysis the Court today ignores, the Court reached this very conclusion when it extended heightened scrutiny to gender classifications and drew on parallel legislative developments to support that extension: "[O]ver the past decade, Congress has itself manifested an increasing sensitivity to sex-based classifications Page 473 U. S. 467 [citing examples]. Thus, Congress itself has concluded that classifications based upon sex are inherently invidious, and this conclusion of a coequal branch of Government is not without significance to the question presently under consideration." Frontiero v. Richardson, 411 U.S. at 411 U. S. 687 . [ Footnote 3/18 ] Moreover, even when judicial action has catalyzed legislative change, that change certainly does not eviscerate the underlying constitutional principle. The Court, for example, has never suggested that race-based classifications became any less suspect once extensive legislation had been enacted on the subject. See Palmore v. Sidoti, 466 U. S. 429 (1984). For the retarded, just as for Negroes and women, much has changed in recent years, but much remains the same; outdated statutes are still on the books, and irrational fears or ignorance, traceable to the prolonged social and cultural isolation of the retarded, continue to stymie recognition of the dignity and individuality of retarded people. Heightened judicial scrutiny of action appearing to impose unnecessary barriers to the retarded is required in light of increasing recognition that such barriers are inconsistent with evolving principles of equality embedded in the Fourteenth Amendment. The Court also offers a more general view of heightened scrutiny, a view focused primarily on when heightened scrutiny does not apply, as opposed to when it does apply. [ Footnote 3/19 ] Two Page 473 U. S. 468 principles appear central to the Court's theory. First, heightened scrutiny is said to be inapplicable where individuals in a group have distinguishing characteristics that legislatures properly may take into account in some circumstances. Ante at 473 U. S. 441 -442. Heightened scrutiny is also purportedly inappropriate when many legislative classifications affecting the group are likely to be valid. We must, so the Court says, "look to the likelihood that governmental action premised on a particular classification is valid as a general matter, not merely to the specifics of the case before us," in deciding whether to apply heightened scrutiny. Ante at 473 U. S. 446 . If the Court's first principle were sound, heightened scrutiny would have to await a day when people could be cut from a cookie mold. Women are hardly alike in all their characteristics, but heightened scrutiny applies to them because legislatures can rarely use gender itself as a proxy for these other characteristics. Permissible distinctions between persons must bear a reasonable relationship to their relevant characteristics, Zobel v. Williams, 457 U.S. at 457 U. S. 70 (BRENNAN, J., concurring), and gender per se is almost never relevant. Similarly, that some retarded people have reduced capacities in some areas does not justify using retardation as a proxy for reduced capacity in areas where relevant individual variations in capacity do exist. The Court's second assertion -- that the standard of review must be fixed with reference to the number of classifications to which a characteristic would validly be relevant -- is similarly flawed. Certainly the assertion is not a logical one; that a characteristic may be relevant under some or even many circumstances does not suggest any reason to presume it relevant under other circumstances where there is reason to suspect it is not. A sign that says "men only" looks very Page 473 U. S. 469 different on a bathroom door than a courthouse door. But see 83 U. S. Illinois, 16 Wall. 130 (1873). Our heightened-scrutiny precedents belie the claim that a characteristic must virtually always be irrelevant to warrant heightened scrutiny. Plyler, for example, held that the status of being an undocumented alien is not a "constitutional irrelevancy," and therefore declined to review with strict scrutiny classifications affecting undocumented aliens. 457 U.S. at 457 U. S. 219 , n.19. While Frontiero stated that gender "frequently" and "often" bears no relation to legitimate legislative aims, it did not deem gender an impermissible basis of state action in all circumstances. 411 U.S. at 411 U. S. 686 -687. Indeed, the Court has upheld some gender-based classifications. Rostker v. Goldberg, 453 U. S. 57 (1981); Michael M. v. Superior Court of Sonoma County, 450 U. S. 464 (1981). Heightened but not strict, scrutiny is considered appropriate in areas such as gender, illegitimacy, or alienage [ Footnote 3/20 ] because the Court views the trait as relevant under some circumstances, but not others. [ Footnote 3/21 ] That view -- indeed the very concept of heightened, as opposed to strict, scrutiny -- is flatly inconsistent with the notion that heightened scrutiny should not apply to the retarded because "mental retardation is a characteristic that the government may legitimately take into account in a wide range of decisions." Ante at 473 U. S. 446 . Because the government also may not take this characteristic into account in many circumstances, such as those presented here, careful review is required to separate the permissible from the invalid in classifications relying on retardation. Page 473 U. S. 470 The fact that retardation may be deemed a constitutional irrelevancy in some circumstances is enough, given the history of discrimination the retarded have suffered, to require careful judicial review of classifications singling out the retarded for special burdens. Although the Court acknowledges that many instances of invidious discrimination against the retarded still exist, the Court boldly asserts that, "in the vast majority of situations," special treatment of the retarded is "not only legitimate, but also desirable." Ante at 473 U. S. 444 . That assertion suggests the Court would somehow have us calculate the percentage of "situations" in which a characteristic is validly and invalidly invoked before determining whether heightened scrutiny is appropriate. But heightened scrutiny has not been "triggered" in our past cases only after some undefined numerical threshold of invalid "situations" has been crossed. An inquiry into constitutional principle, not mathematics, determines whether heightened scrutiny is appropriate. Whenever evolving principles of equality, rooted in the Equal Protection Clause, require that certain classifications be viewed as potentially discriminatory, and when history reveals systemic unequal treatment, more searching judicial inquiry than minimum rationality becomes relevant. Potentially discriminatory classifications exist only where some constitutional basis can be found for presuming that equal rights are required. Discrimination, in the Fourteenth Amendment sense, connotes a substantive constitutional judgment that two individuals or groups are entitled to be treated equally with respect to something. With regard to economic and commercial matters, no basis for such a conclusion exists, for as Justice Holmes urged the Lochner Court, the Fourteenth Amendment was not "intended to embody a particular economic theory. . . ." Lochner v. New York, 198 U.S. at 198 U. S. 75 (dissenting). As a matter of substantive policy, therefore, government is free to move in any Page 473 U. S. 471 direction, or to change directions, [ Footnote 3/22 ] in the economic and commercial sphere. [ Footnote 3/23 ] The structure of economic and commercial life is a matter of political compromise, not constitutional principle, and no norm of equality requires that there be as many opticians as optometrists, see Williamson v. Lee Optical of Oklahoma, Inc., 348 U. S. 483 (1955), or new businesses as old, see New Orleans v. Dukes, 427 U. S. 297 (1976). But the Fourteenth Amendment does prohibit other results under virtually all circumstances, such as castes created by law along racial or ethnic lines, see Palmore v. Sidoti, 466 U.S. at 466 U. S. 432 -433; Loving v. Virginia, 388 U. S. 1 (1967); McLaughlin v. Florida, 379 U. S. 184 (1964); Shelley v. Kraemer, 334 U. S. 1 , 334 U. S. 23 (1948); Hernandez v. Texas, 347 U. S. 475 (1954), and significantly constrains the range of permissible government choices where gender or illegitimacy, for example, are concerned. Where such constraints, derived from the Fourteenth Amendment, are present, and where history teaches that they have systemically been ignored, a "more searching judicial inquiry" is required. United States v. Carolene Products Co., 304 U. S. 144 , 304 U. S. 153 , n. 4 (1938). That more searching inquiry, be it called heightened scrutiny or "second order" rational basis review, is a method of Page 473 U. S. 472 approaching certain classifications skeptically, with judgment suspended until the facts are in and the evidence considered. The government must establish that the classification is substantially related to important and legitimate objectives, see, e.g., Craig v. Boren, 429 U. S. 190 (1976), so that valid and sufficiently weighty policies actually justify the departure from equality. Heightened scrutiny does not allow courts to second-guess reasoned legislative or professional judgments tailored to the unique needs of a group like the retarded, but it does seek to assure that the hostility or thoughtlessness with which there is reason to be concerned has not carried the day. By invoking heightened scrutiny, the Court recognizes, and compels lower courts to recognize, that a group may well be the target of the sort of prejudiced, thoughtless, or stereotyped action that offends principles of equality found in the Fourteenth Amendment. Where classifications based on a particular characteristic have done so in the past, and the threat that they may do so remains, heightened scrutiny is appropriate. [ Footnote 3/24 ] Page 473 U. S. 473 As the history of discrimination against the retarded and its continuing legacy amply attest, the mentally retarded have been, and in some areas may still be, the targets of action the Equal Protection Clause condemns. With respect to a liberty so valued as the right to establish a home in the community, and so likely to be denied on the basis of irrational fears and outright hostility, heightened scrutiny is surely appropriate. IV In light of the scrutiny that should be applied here, Cleburne's ordinance sweeps too broadly to dispel the suspicion that it rests on a bare desire to treat the retarded as outsiders, pariahs who do not belong in the community. The Court, while disclaiming that special scrutiny is necessary or warranted, reaches the same conclusion. Rather than striking the ordinance down, however, the Court invalidates it merely as applied to respondents. I must dissent from the novel proposition that "the preferred course of adjudication" Page 473 U. S. 474 is to leave standing a legislative Act resting on "irrational prejudice," ante at 473 U. S. 450 , thereby forcing individuals in the group discriminated against to continue to run the Act's gauntlet. The Court appears to act out of a belief that the ordinance might be "rational" as applied to some subgroup of the retarded under some circumstances, such as those utterly without the capacity to live in a community, and that the ordinance should not be invalidated in toto if it is capable of ever being validly applied. But the issue is not "whether the city may never insist on a special use permit for the mentally retarded in an R-3 zone." Ante at 473 U. S. 447 . The issue is whether the city may require a permit pursuant to a blunderbuss ordinance drafted many years ago to exclude all the "feeble-minded," or whether the city must enact a new ordinance carefully tailored to the exclusion of some well-defined subgroup of retarded people in circumstances in which exclusion might reasonably further legitimate city purposes. By leaving the sweeping exclusion of the "feebleminded" to be applied to other groups of the retarded, the Court has created peculiar problems for the future. The Court does not define the relevant characteristics of respondents or their proposed home that make it unlawful to require them to seek a special permit. Nor does the Court delineate any principle that defines to which, if any, set of retarded people the ordinance might validly be applied. Cleburne's City Council and retarded applicants are left without guidance as to the potentially valid, and invalid, applications of the ordinance. As a consequence, the Court's as-applied remedy relegates future retarded applicants to the standardless discretion of low-level officials who have already shown an all too willing readiness to be captured by the "vague, undifferentiated fears," ante at 473 U. S. 449 , of ignorant or frightened residents. Invalidating on its face the ordinance's special treatment of the "feeble-minded," in contrast, would place the responsibility for tailoring and updating Cleburne's unconstitutional Page 473 U. S. 475 ordinance where it belongs: with the legislative arm of the city of Cleburne. If Cleburne perceives a legitimate need for requiring a certain well-defined subgroup of the retarded to obtain special permits before establishing group homes, Cleburne will, after studying the problem and making the appropriate policy decisions, enact a new, more narrowly tailored ordinance. That ordinance might well look very different from the current one; it might separate group homes (presently treated nowhere in the ordinance) from hospitals, and it might define a narrow subclass of the retarded for whom even group homes could legitimately be excluded. Special treatment of the retarded might be ended altogether. But whatever the contours such an ordinance might take, the city should not be allowed to keep its ordinance on the books intact, and thereby shift to the courts the responsibility to confront the complex empirical and policy questions involved in updating statutes affecting the mentally retarded. A legislative solution would yield standards and provide the sort of certainty to retarded applicants and administrative officials that case-by-case judicial rulings cannot provide. Retarded applicants should not have to continue to attempt to surmount Cleburne's vastly overbroad ordinance. The Court's as-applied approach might be more defensible under circumstances very different from those presented here. Were the ordinance capable of being cleanly severed, in one judicial cut, into its permissible and impermissible applications, the problems I have pointed out would be greatly reduced. Cf. United States v. Grace, 461 U. S. 171 (1983) (statute restricting speech and conduct in Supreme Court building and on its grounds invalid as applied to sidewalks); but cf. id. at 461 U. S. 184 -188 (opinion concurring in part and dissenting in part). But no readily apparent construction appears, nor has the Court offered one, to define which group of retarded people the city might validly require a permit of, and which it might not, in the R-3 zone. The Court's as-applied holding is particularly inappropriate here, Page 473 U. S. 476 for nine-tenths of the group covered by the statute appears similarly situated to respondents, see ante at 473 U. S. 442 , n. 9 -- a figure that makes the statutory presumption enormously overbroad. Cf. Stanley v. Illinois, 405 U. S. 645 (1972) (invalidating statutory presumption despite State's insistence that it validly applied to "most" of those covered). To my knowledge, the Court has never before treated an equal protection challenge to a statute on an as-applied basis. When statutes rest on impermissibly overbroad generalizations, our cases have invalidated the presumption on its face. [ Footnote 3/25 ] We do not instead leave to the courts the task of redrafting the statute through an ongoing and cumbersome process of "as applied" constitutional rulings. In Cleveland Board of Education v. LaFleur, 414 U. S. 632 (1974), for Page 473 U. S. 477 example, we invalidated, inter alia, a maternity leave policy that required pregnant schoolteachers to take unpaid leave beginning five months before their expected due date. The school board argued that some teachers became physically incapable of performing adequately in the latter stages of their pregnancy, and we accepted this justification for purposes of our decision. Assuming the policy might validly be applied to some teachers, particularly in the last few weeks of their pregnancy, id. at 414 U. S. 647 , n. 13, we nonetheless invalidated it in toto, rather than simply as applied to the particular plaintiff. The Court required school boards to employ "alternative administrative means" to achieve their legitimate health and safety goal, id. at 414 U. S. 647 , or the legislature to enact a more carefully tailored statute, id. at 414 U. S. 647 , n. 13. Similarly, Caban v. Mohammed, 441 U. S. 380 (1979), invalidated a law that required parental consent to adoption from unwed mothers, but not from unwed fathers. This distinction was defended on the ground, inter alia, that unwed fathers were often more difficult to locate, particularly during a child's infancy. We suggested the legislature might make proof of abandonment easier or proof of paternity harder, but we required the legislature to draft a new statute tailored more precisely to the problem of locating unwed fathers. The statute was not left on the books by invalidating it only as applied to unwed fathers who actually proved they could be located. When a presumption is unconstitutionally overbroad, the preferred course of adjudication is to strike it down. See also United States Dept. of Agriculture v. Moreno, 413 U. S. 528 (1973); Stanley v. Illinois, supra; Vlandis v. Kline, 412 U. S. 441 , 412 U. S. 453 -454 (1973); Carrington v. Rash, 380 U. S. 89 (1965); Sugarman v. Dougall, 413 U. S. 634 , 413 U. S. 646 -649 (1973); Weber v. Aetna Casualty & Surety Co., 406 U. S. 164 (1972); Levy v. Louisiana, 391 U. S. 68 (1968). In my view, the Court's remedial approach is both unprecedented in the equal protection area and unwise. This doctrinal Page 473 U. S. 478 change, of course, was not sought by the parties, suggested by the various amici, or discussed at oral argument. Moreover, the Court does not persuasively reason its way to its novel remedial holding nor reconsider our prior cases directly on point. Instead, the Court simply asserts that "this is the preferred course of adjudication." Given that this assertion emerges only from today's decision, one can only hope it will not become entrenched in the law without fuller consideration. V The Court's opinion approaches the task of principled equal protection adjudication in what I view as precisely the wrong way. The formal label under which an equal protection claim is reviewed is less important than careful identification of the interest at stake and the extent to which society recognizes the classification as an invidious one. Yet in focusing obsessively on the appropriate label to give its standard of review, the Court fails to identify the interests at stake or to articulate the principle that classifications based on mental retardation must be carefully examined to assure they do not rest on impermissible assumptions or false stereotypes regarding individual ability and need. No guidance is thereby given as to when the Court's free-wheeling, and potentially dangerous, "rational basis standard" is to be employed, nor is attention directed to the invidiousness of grouping all retarded individuals together. Moreover, the Court's narrow, as-applied remedy fails to deal adequately with the overbroad presumption that lies at the heart of this case. Rather than leaving future retarded individuals to run the gauntlet of this overbroad presumption, I would affirm the judgment of the Court of Appeals in its entirety, and would strike down on its face the provision at issue. I therefore concur in the judgment in part and dissent in part. [ Footnote 3/1 ] See also Spector Motor Service, Inc. v. McLaughlin, 323 U. S. 101 , 323 U. S. 105 (1944) ("If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable"); Burton v. United States, 196 U. S. 283 , 196 U. S. 295 (1905) ("It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case"); see generally Ashwander v. TVA, 297 U. S. 288 , 297 U. S. 346 -348 (1936) (Brandeis, J., concurring). Even today, the Court again "calls to mind" these principles, ante at 473 U. S. 447 , but given the Court's lengthy dicta on heightened scrutiny, this call to principle must be read with some irony. [ Footnote 3/2 ] I do not suggest the lower court erred in relying on heightened scrutiny, for I believe more searching inquiry than the traditional rational basis test is required to invalidate Cleburne's ordinance. See infra at 473 U. S. 458 -460. [ Footnote 3/3 ] See also Three Affiliated Tribes v. Wold Engineering, 467 U. S. 138 , 467 U. S. 157 -158 (1984); Leroy v. Great Western United Corp., 443 U. S. 173 , 443 U. S. 181 (1979). [ Footnote 3/4 ] The two cases the Court cites in its rational basis discussion, Zobel v. Williams, 457 U. S. 55 (1982), and United States Dept. of Agriculture v. Moreno, 413 U. S. 528 (1973), expose the special nature of the rational basis test employed today. As two of only a handful of modern equal protection cases striking down legislation under what purports to be a rational basis standard, these cases must be, and generally have been, viewed as intermediate review decisions masquerading in rational basis language. See, e.g., L. Tribe, American Constitutional Law § 16-31, p. 1090, n. 10 (1978) (discussing Moreno ); see also Moreno, supra, at 413 U. S. 538 (Douglas, J., concurring); Zobel, supra, at 457 U. S. 65 (BRENNAN, J., concurring). [ Footnote 3/5 ] Indeed, the group home in this case was specifically located near a park, a school, and a shopping center so that its residents would have full access to the community at large. [ Footnote 3/6 ] S. Herr, Rights and Advocacy for Retarded People 18 (1983). [ Footnote 3/7 ] On the role of these ideologies in this era, see K. Stampp, Era of Reconstruction, 1865-1877, pp. 18-22 (1965). [ Footnote 3/8 ] H. Goddard, The Possibilities of Research as Applied to the Prevention of Feeblemindedness, Proceedings of the National Conference of Charities and Correction 307 (1915), cited in A. Deutsch, The Mentally Ill in America 360 (2d ed.1949). See also Fernald, The Burden of Feeblemindedness, 17 J. Psycho-Asthenics 87, 90 (1913) (the retarded "cause unutterable sorrow at home and are a menace and danger to the community"); Terman, Feeble-Minded Children in the Public Schools of California, 5 Schools & Society 161 (1917) ("[O]nly recently have we begun to recognize how serious a menace [feeblemindedness] is to the social, economic and moral welfare of the state. . . . [I]t is responsible . . . for the majority of cases of chronic and semi-chronic pauperism, and for much of our alcoholism, prostitution, and venereal diseases"). Books with titles such as "The Menace of the Feeble Minded in Connecticut" (1915), issued by the Connecticut School for Imbeciles, became commonplace. See C. Frazier, (Chairman, Executive Committee of Public Charities Assn. of Pennsylvania), The Menace of the Feeble-Minded In Pennsylvania (1913); W. Fernald, The Burden of Feeble-Mindedness (1912) (Mass.); Juvenile Protection Association of Cincinnati, The Feeble-Minded, Or the Hub to Our Wheel of Vice (1915) (Ohio). The resemblance to such works as R. Shufeldt, The Negro: A Menace to American Civilization (1907), is striking, and not coincidental. [ Footnote 3/9 ] A. Moore, The Feeble-Minded in New York 3 (1911). This book was sponsored by the State Charities Aid Association. See also P. Tyor & L. Bell, Caring for the Retarded in America 71-104 (1984). The segregationist purpose of these laws was clear. See, e.g., Act of Mar. 22, 1915, ch. 90, 1915 Tex.Gen.Laws 143 (repealed 1955) (Act designed to relieve society of "the heavy economic and moral losses arising from the existence at large of these unfortunate persons"). [ Footnote 3/10 ] See Pennsylvania Assn. for Retarded Children v. Pennsylvania, 343 F. Supp. 279 , 294-295 (ED Pa.1972); see generally S. Sarason & J. Doris, Educational Handicap, Public Policy, and Social History 271-272 (1979). [ Footnote 3/11 ] Act of Apr. 3, 1920, ch. 210, § 17, 1920 Miss. Laws 288, 294. [ Footnote 3/12 ] See, e.g., Act of Mar.19, 1928, ch. 156, 1928 Ky.Acts 534, remains in effect, Ky.Rev.Stat. § 402.990(2) (1984); Act of May 25, 1905, No. 136, § 1, 1905 Mich.Pub.Acts 185, 186, remains in effect; Mich.Comp.Laws § 551.6 (1979); Act of Apr. 3, 1920, ch. 210, § 29, 1920 Miss. Gen. Laws 288, 300, remains in effect with minor changes, Miss.Code Ann. § 41-21-45 (1972). [ Footnote 3/13 ] See Chamberlain, Current Legislation -- Eugenics and Limitations of Marriage, 9 A.B.A.J. 429 (1923); Lau v. Lau, 81 N. H. 44, 122 A. 345, 346 (1923); State v. Wyman , 118 Conn. 501, 173 A. 155, 156 (1934). See generally Linn & Bowers, The Historical Fallacies Behind Legal Prohibitions of Marriages Involving Mentally Retarded Persons -- The Eternal Child Grows Up, 13 Gonz.L.Rev. 625 (1978); Shaman, Persons Who Are Mentally Retarded: Their Right to Marry and Have Children, 12 Family L. Q. 61 (1978); Note, The Right of the Mentally Disabled to Marry: A Statutory Evaluation, 15 J. Family L. 463 (1977). [ Footnote 3/14 ] See Note, Mental Disability and the Right to Vote, 88 Yale L.J. 1644 (1979). [ Footnote 3/15 ] Congress expressly found that most handicapped children, including the retarded, were simply shut out from the public school system. See 20 U.S.C. § 1400(b). [ Footnote 3/16 ] See generally G. Allport, The Nature of Prejudice (1958) (separateness among groups exaggerates differences). [ Footnote 3/17 ] This history of discrimination may well be directly relevant to the issue before the Court. Cleburne's current exclusion of the "feeble-minded" in its 1965 zoning ordinance appeared as a similar exclusion of the "feebleminded" in the city's 1947 ordinance, see Act of Sept. 26, 1947, § 5; the latter tracked word for word a similar exclusion in the 1929 comprehensive zoning ordinance for the nearby city of Dallas. See Dallas Ordinance, No. 2052, § 4, passed Sept. 11, 1929. Although we have been presented with no legislative history for Cleburne's zoning ordinances, this genealogy strongly suggests that Cleburne's current exclusion of the "feeble-minded" was written in the darkest days of segregation and stigmatization of the retarded, and simply carried over to the current ordinance. Recently we held that extant laws originally motivated by a discriminatory purpose continue to violate the Equal Protection Clause, even if they would be permissible were they reenacted without a discriminatory motive. See Hunter v. Underwood, 471 U. S. 222 , 471 U. S. 233 (1985). But in any event, the roots of a law that, by its terms, excludes from a community the "feebleminded" are clear. As the examples above attest, see 473 U.S. 432 fn3/7|>n. 7, supra, "feebleminded" was the defining term for all retarded people in the era of overt and pervasive discrimination. [ Footnote 3/18 ] Although Frontiero was a plurality opinion, it is now well established that gender classifications receive heightened scrutiny. See, e.g., Mississippi University for Women v. Hogan, 458 U. S. 718 (1982). [ Footnote 3/19 ] For its general theories about heightened scrutiny, the Court relies heavily, indeed virtually exclusively, on the "lesson" of Massachusetts Board of Retirement v. Murgia, 427 U. S. 307 (1976). The brief per curiam in Murgia, however, was handed down in the days before the Court explicitly acknowledged the existence of heightened scrutiny. See Craig v. Boren, 429 U. S. 190 (1976); id. at 429 U. S. 210 (POWELL, J., concurring). Murgia explains why age-based distinctions do not trigger strict scrutiny, but says nothing about whether such distinctions warrant heightened scrutiny. Nor have subsequent cases addressed this issue. See Vance v. Bradley, 440 U. S. 93 , 440 U. S. 97 (1979). [ Footnote 3/20 ] Alienage classifications present a related variant, for strict scrutiny is applied to such classifications in the economic and social area, but only heightened scrutiny is applied when the classification relates to "political functions." Cabell v. Chavez-Salido, 454 U. S. 432 , 454 U. S. 439 (1982); see also Bernal v. Fainter, 467 U. S. 216 , 467 U. S. 220 -222 (1984). Thus, characterization of the area to which an alienage classification applies is necessary to determine how strongly it must be justified. [ Footnote 3/21 ] I express no view here as to whether strict scrutiny ought to be extended to these classifications. [ Footnote 3/22 ] Constitutional provisions other than the Equal Protection Clause, such as the Contracts Clause, the Just Compensation Clause, or the Due Process Clause, may constrain the extent to which government can upset settled expectations when changing course and the process by which it must implement such changes. [ Footnote 3/23 ] Only when it can be said that "Congress misapprehended what it was doing," United States Railroad Retirement Bd. v. Fritz, 449 U. S. 166 , 449 U. S. 193 (1980) (BRENNAN, J., dissenting), will a classification fail the minimal rational basis standard. Even then, the classification fails not because of limits on the directions which substantive policy can take in the economic and commercial area, but because the classification reflects no underlying substantive policy -- it is simply arbitrary. [ Footnote 3/24 ] No single talisman can define those groups likely to be the target of classifications offensive to the Fourteenth Amendment and therefore warranting heightened or strict scrutiny; experience, not abstract logic, must be the primary guide. The "political powerlessness" of a group may be relevant, San Antonio Independent School District v. Rodriguez, 411 U. S. 1 , 411 U. S. 28 (1973), but that factor is neither necessary, as the gender cases demonstrate, nor sufficient, as the example of minors illustrates. Minors cannot vote and thus might be considered politically powerless to an extreme degree. Nonetheless, we see few statutes reflecting prejudice or indifference to minors, and I am not aware of any suggestion that legislation affecting them be viewed with the suspicion of heightened scrutiny. Similarly, immutability of the trait at issue may be relevant, but many immutable characteristics, such as height or blindness, are valid bases of governmental action and classifications under a variety of circumstances. See ante at 473 U. S. 442 -443, n. 10. The political powerlessness of a group and the immutability of its defining trait are relevant insofar as they point to a social and cultural isolation that gives the majority little reason to respect or be concerned with that group's interests and needs. Statutes discriminating against the young have not been common nor need be feared because those who do vote and legislate were once themselves young, typically have children of their own, and certainly interact regularly with minors. Their social integration means that minors, unlike discrete and insular minorities, tend to be treated in legislative arenas with full concern and respect, despite their formal and complete exclusion from the electoral process. The discreteness and insularity warranting a "more searching judicial inquiry," United States v. Carolene Products Co., 304 U. S. 144 , 304 U. S. 153 , n. 4 (1938), must therefore be viewed from a social and cultural perspective, as well as a political one. To this task judges are well suited, for the lessons of history and experience are surely the best guide as to when, and with respect to what interests, society is likely to stigmatize individuals as members of an inferior caste, or view them as not belonging to the community. Because prejudice spawns prejudice, and stereotypes produce limitations that confirm the stereotype on which they are based, a history of unequal treatment requires sensitivity to the prospect that its vestiges endure. In separating those groups that are discrete and insular from those that are not, as in many important legal distinctions, "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U. S. 345 , 256 U. S. 349 (1921) (Holmes, J.). [ Footnote 3/25 ] The Court strongly suggests that the loose fit of the ordinance to its purported objectives signifies that the ordinance rests on "an irrational prejudice," ante at 473 U. S. 450 , an unconstitutional legislative purpose. See Mississippi University for Women v. Hogan, 458 U.S. at 458 U. S. 725 . In that event, recent precedent should make clear that the ordinance must, in its entirety, be invalidated. See Hunter v. Underwood, 471 U. S. 222 (1985). Hunter involved a 1902 constitutional provision disenfranchising various felons. Because that provision had been motivated, at least in part, by a desire to disenfranchise Negroes, we invalidated it on its face. In doing so, we did not suggest that felons could not be deprived of the vote through a statute motivated by some purpose other than racial discrimination. See Richardson v. Ramirez, 418 U. S. 24 (1974). Yet that possibility, or the possibility that the provision might have been only partly motivated by the desire to disenfranchise Negroes, did not suggest the provision should be invalidated only "as applied" to the particular plaintiffs in Hunter, or even as applied to Negroes more generally. Instead we concluded: "Without deciding whether § 182 would be valid if enacted today without any impermissible motivation, we simply observe that its original enactment was motivated by a desire to discriminate against blacks on account of race, and the section continues to this day to have that effect. As such, it violates equal protection under Arlington Heights [v. Metropolitan Housing Development Corp., 429 U. S. 252 (1977)]." 471 U.S. at 471 U. S. 233 . If a discriminatory purpose infects a legislative Act, the Act itself is inconsistent with the Equal Protection Clause, and cannot validly be applied to anyone.

The Supreme Court ruled that a Texas city's decision to require a special use permit for a group home for the mentally disabled was not a violation of the Equal Protection Clause. The Court held that mental retardation is not a "quasi-suspect" classification and that the city's action was rationally related to a legitimate state interest. The Court found that the city's interest in dealing with and providing for the mentally disabled was legitimate and that the legislative response to their needs did not indicate continuing antipathy or prejudice. The Court also noted the importance of considering social and cultural perspectives when evaluating equal protection claims.

Equal Protection

Minnesota v. Clover Leaf Creamery Co.

https://supreme.justia.com/cases/federal/us/449/456/

U.S. Supreme Court Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981) Minnesota v. Clover Leaf Creamery Co. No. 79-1171 Argued November 3, 1980 Decided January 21, 1981 449 U.S. 456 CERTIORARI TO THE SUPREME COURT OF MINNESOTA Syllabus For the stated purposes of promoting resource conservation, easing solid waste disposal problems, and conserving energy, the Minnesota Legislature enacted a statute banning the retail sale of milk in plastic nonreturnable, nonrefillable containers, but permitting such sale in other nonreturnable, nonrefillable containers, such as paperboard cartons. Respondents filed suit in Minnesota District Court, seeking to enjoin enforcement of the statute on constitutional grounds. The District Court held that the statute violated, inter alia, the Equal Protection Clause of the Fourteenth Amendment and the Commerce Clause. Finding that "the evidence conclusively demonstrate[d] that the discrimination against plastic nonrefillables [was] not rationally related to the Act's objectives," the Minnesota Supreme Court affirmed on the equal protection ground without reaching the Commerce Clause issue. Held: 1. The ban on plastic nonreturnable milk containers bears a rational relation to the State's objectives, and must be sustained under the Equal Protection Clause. Pp. 449 U. S. 461 -470. (a) The Equal Protection Clause does not deny Minnesota the authority to ban one type of milk container conceded to cause environmental problems merely because another already established type is permitted to continue in use. Whether in fact the statute will promote more environmentally desirable milk packaging is not the question. The Equal Protection Clause is satisfied if the Minnesota Legislature could rationally have decided that its ban on plastic milk jugs might foster greater use of environmentally desirable alternatives. Pp. 449 U. S. 465 -466. (b) The fact that the state legislature, having concluded that nonreturnable, nonrefillable milk containers pose environmental hazards, decided to ban the most recent entry in the field, and thus, in effect, "grandfathered" paperboard containers, at least temporarily, does not make the ban on plastic containers arbitrary or irrational. Cf. New Orleans v. Dukes, 427 U. S. 297 . Pp. 449 U. S. 466 -468. (c) Where the evidence as to whether the statute would help to conserve energy was "at least debatable," the Minnesota Supreme Court erred in substituting its judgment for that of the legislature by finding, contrary to the legislature, that the production of plastic nonrefillable Page 449 U. S. 457 containers required less energy than production of paper containers. Pp. 449 U. S. 468 -69. (d) Similarly, the Minnesota Supreme Court erred in finding, contrary to the legislature's finding based on a reputable study, that plastic milk jugs take up less space in landfills and present fewer solid waste disposal problems than do paperboard containers. Pp. 449 U. S. 469 -470. 2. The statute does not violate the Commerce Clause as constituting an unreasonable burden on interstate commerce. Pp. 449 U. S. 470 -474. (a) The statute does not discriminate between interstate and intrastate commerce, but regulates evenhandedly by prohibiting all milk retailers from selling their products in plastic containers, without regard to whether the milk, the containers, or the sellers are from outside the State. Pp. 449 U. S. 471 -472. (b) The incidental burden imposed on interstate commerce by the statute is not excessive in relation to the putative local benefits. Milk products may continue to move freely across the Minnesota border, and since most dairies package their products in more than one type of container, the inconvenience of having to conform to different packaging requirements in Minnesota and the surrounding States should be slight. Even granting that the out-of-state plastics industry is burdened relatively more heavily than the Minnesota pulpwood industry, this burden is not "clearly excessive" in light of the substantial state interest in promoting conservation of energy and other natural resources and easing solid waste disposal problems. These local benefits amply support Minnesota's decision under the Commerce Clause. Pp. 449 U. S. 472 -474. 289 N.W.2d 79 , reversed. BRENNAN, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, MARSHALL, and BLACKMUN, JJ., joined. POWELL, J., filed an opinion concurring in part and dissenting in part, post, p. 449 U. S. 474 . STEVENS, J., filed a dissenting opinion, post, p. 449 U. S. 477 . REHNQUIST, J., took no part in the consideration or decision of the case. Page 449 U. S. 458 JUSTICE BRENNAN delivered the opinion of the Court: In 1977, the Minnesota Legislature enacted a statute banning the retail sale of milk in plastic nonreturnable, nonrefillable containers, but permitting such sale in other nonreturnable, nonrefillable containers, such as paperboard milk cartons. 1977 Minn. Laws, ch. 268, Minn.Stat. § 116 F. 21 (1978). Respondents [ Footnote 1 ] contend that the statute violates the Equal Protection and Commerce Clauses of the Constitution. I The purpose of the Minnesota statute is set out as § 1: "The legislature finds that the use of nonreturnable, nonrefillable containers for the packaging of milk and other milk products presents a solid waste management problem for the state, promotes energy waste, and depletes natural resources. The legislature therefore, in Page 449 U. S. 459 furtherance of the policies stated in Minnesota Statutes, Section 116 F. 01, [ Footnote 2 ] determines that the use of nonreturnable, nonrefillable containers for packaging milk and other milk products should be discouraged, and that the use of returnable and reusable packaging for these products is preferred, and should be encouraged." 1977 Minn.Laws, ch. 268, § 1, codified as Minn.Stat. § 116 F. 21 (1978). Section 2 of the Act forbids the retail sale of milk and fluid milk products, other than sour cream, cottage cheese, and yogurt, in nonreturnable, nonrefillable rigid or semirigid containers composed at least 50% of plastic. [ Footnote 3 ] The Act was introduced with the support of the state Pollution Control Agency, Department of Natural Resources, Department of Agriculture, Consumer Services Division, and Energy Agency, [ Footnote 4 ] and debated vigorously in both houses of the state legislature. Proponents of the legislation argued that it would promote resource conservation, ease solid waste disposal problems, and conserve energy. Relying on the results of studies and other information, [ Footnote 5 ] they stressed the need to Page 449 U. S. 460 stop introduction of the plastic nonreturnable container before it became entrenched in the market. Opponents of the Act, also presenting empirical evidence, argued that the Act would not promote the goals asserted by the proponents, but would merely increase costs of retail milk products and prolong the use of ecologically undesirable paperboard milk cartons. After the Act was passed, respondents filed suit in Minnesota District Court, seeking to enjoin its enforcement. The court conducted extensive evidentiary hearings into the Act's probable consequences, and found the evidence "in sharp conflict." App. A-25. Nevertheless, finding itself "as factfinder . . . obliged to weigh and evaluate this evidence," ibid., the court resolved the evidentiary conflicts in favor of respondents, and concluded that the Act "will not succeed in effecting the Legislature's published policy goals. . . ." Id. at A-21. The court further found that, contrary to the statement of purpose in § 1, the "actual basis" for the Act "was to promote the economic interests of certain segments of the local dairy and pulpwood industries at the expense of the economic interests of other segments of the dairy industry and the plastics industry." Id. at A-19. The court therefore declared the Act "null, void, and unenforceable" and enjoined its enforcement, basing the judgment on substantive due process under the Fourteenth Amendment to the United States Constitution and Art. 1 § 7, of the Minnesota Constitution; equal protection under the Fourteenth Amendment; and prohibition of unreasonable burdens on interstate commerce under Art. I, § 8, of the United States Constitution. App. A-23. The State appealed to the Supreme Court of Minnesota, which affirmed the District Court on the federal equal protection and due process grounds, without reaching the Commerce Clause or state law issues. 289 N.W.2d 79 (1979). Unlike the District Court, the State Supreme Court found that the purpose of the Act was "to promote the state interests Page 449 U. S. 461 of encouraging the reuse and recycling of materials and reducing the amount and type of material entering the solid waste stream," and acknowledged the legitimacy of this purpose. Id. at 82. Nevertheless, relying on the District Court's findings of fact, the full record, and an independent review of documentary sources, the State Supreme Court held that "the evidence conclusively demonstrates that the discrimination against plastic nonrefillables is not rationally related to the Act's objectives." Ibid. We granted certiorari, 445 U.S. 949, and now reverse. II The parties agree that the standard of review applicable to this case under the Equal Protection Clause is the familiar "rational basis" test. See Vance v. Bradley, 440 U. S. 93 , 440 U. S. 97 (1979); New Orleans v. Dukes, 427 U. S. 297 , 427 U. S. 303 (1976). [ Footnote 6 ] Moreover, they agree that the purposes of the Act Page 449 U. S. 462 cited by the legislature -- promoting resource conservation, easing solid waste disposal problems, and conserving energy -- are legitimate state purposes. Thus, the controversy in this Page 449 U. S. 463 case centers on the narrow issue whether the legislative classification between plastic and nonplastic nonreturnable milk containers is rationally related to achievement of the statutory purposes. [ Footnote 7 ] A Respondents apparently have not challenged the theoretical connection between a ban on plastic nonreturnables and the purposes articulated by the legislature; instead, they have argued that there is no empirical connection between the two. They produced impressive supporting evidence at trial to prove that the probable consequences of the ban on plastic nonreturnable milk containers will be to deplete natural resources, exacerbate solid waste disposal problems, and waste energy, because consumers unable to purchase milk in plastic Page 449 U. S. 464 containers will turn to paperboard milk cartons, allegedly a more environmentally harmful product. But States are not required to convince the courts of the correctness of their legislative judgments. Rather, "those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker." " Vance v. Bradley, 440 U.S. at 111. See also Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421 , 342 U. S. 425 (1952); Henderson Co. v. Thompson, 300 U. S. 258 , 300 U. S. 264 -265 (1937)." Although parties challenging legislation under the Equal Protection Clause may introduce evidence supporting their claim that it is irrational, United States v. Carolene Products Co., 304 U. S. 144 , 304 U. S. 153 -154 (1938), [ Footnote 8 ] they cannot prevail so long as "it is evident from all the considerations presented to [the legislature], and those of which we may take judicial notice, that the question is at least debatable." Id. at 304 U. S. 154 . Where there was evidence before the legislature reasonably supporting the classification, litigants may not procure invalidation of the legislation merely by tendering evidence in court that the legislature was mistaken. The District Court candidly admitted that the evidence was "in sharp conflict," App. A-25, but resolved the conflict in favor of respondents and struck down the statute. The Supreme Court of Minnesota, however, did not reverse on the basis of this patent violation of the principles governing rationality analysis under the Equal Protection Clause. Rather, the court analyzed the statute afresh under the Equal Protection Clause, and reached the conclusion that the statute is Page 449 U. S. 465 constitutionally invalid. The State contends that, in this analysis, the court impermissibly substituted its judgment for that of the legislature. We turn now to that argument. B The State identifies four reasons why the classification between plastic and nonplastic nonreturnables is rationally related to the articulated statutory purposes. If any one of the four substantiates the State's claim, we must reverse the Minnesota Supreme Court and sustain the Act. First, the State argues that elimination of the popular plastic milk jug will encourage the use of environmentally superior containers. There is no serious doubt that the plastic containers consume energy resources and require solid waste disposal, nor that refillable bottles and plastic pouches are environmentally superior. Citing evidence that the plastic jug is the most popular, and the gallon paperboard carton the most cumbersome and least well regarded package in the industry, the State argues that the ban on plastic nonreturnables will buy time during which environmentally preferable alternatives may be further developed and promoted. As Senator Spear argued during the Senate debate: "[T]his bill is designed to prevent the beginning of another system of non-returnables that is going to be very, very difficult [to stop] once it begins. It is true that our alternative now is not a returnable system in terms of milk bottles. Hopefully we are eventually going to be able to move to that kind of a system, but we are never going to move to a returnable system so long as we allow another nonreturnable system with all the investment and all of the vested interest that that is going to involve to begin." Transcript of the Full Senate Floor Discussion of H.F. 45, p. 6 (May 20, 1977), reprinted as Plaintiffs' Exhibit J. Accord, id. at 1-2 (statement of Sen. Luther). Page 449 U. S. 466 The Minnesota Supreme Court dismissed this asserted state interest as "speculative and illusory." 289 N.W.2d at 86. The court expressed doubt that the Minnesota Legislature or Pollution Control Agency would take any further steps to promote environmentally sound milk packaging, and stated that there is no evidence that paperboard cartons will cease to be used in Minnesota. Ibid. We find the State's approach fully supportable under our precedents. This Court has made clear that a legislature need not "strike at all evils at the same time or in the same way," Semler v. Oregon State Board of Dental Examiners, 294 U. S. 608 , 294 U. S. 610 (1935), and that a legislature "may implement [its] program step by step, . . . adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations." " New Orleans v. Dukes, 427 U.S. at 427 U. S. 303 . See also Katzenbach v. Morgan, 384 U. S. 641 , 384 U. S. 657 (1966); Williamson v. Lee Optical Co., 348 U. S. 483 , 348 U. S. 489 (1955); Railway Express Agency, Inc. v. New York, 336 U. S. 106 , 336 U. S. 110 (1949). The Equal Protection Clause does not deny the State of Minnesota the authority to ban one type of milk container conceded to cause environmental problems, merely because another type, already established in the market, is permitted to continue in use. Whether in fact the Act will promote more environmentally desirable milk packaging is not the question: the Equal Protection Clause is satisfied by our conclusion that the Minnesota Legislature could rationally have decided that its ban on plastic nonreturnable milk jugs might foster greater use of environmentally desirable alternatives." Second, the State argues that its ban on plastic nonreturnable milk containers will reduce the economic dislocation foreseen from the movement toward greater use of environmentally superior containers. The State notes that plastic nonreturnables have only recently been introduced on a wide scale in Minnesota, and that, at the time the legislature was Page 449 U. S. 467 considering the Act, many Minnesota dairies were preparing to invest large amounts of capital in plastic container production. As Representative Munger, chief sponsor of the bill in the House of Representatives, explained: "Minnesota's dairy market is on the verge of making a major change over from essentially a paperboard container system to a system of primarily single use, throwaway plastic bottles. The major dairies in our state have ordered the blow-mold equipment to manufacture in plant the nonreturnable plastic milk bottle. Members of the House, I feel now is an ideal time for this legislation when only one dairy in our state is firmly established in manufacturing and marketing the throwaway plastic milk bottle." Transcript of the Debate of the Minnesota House of Representatives on H.F. 45, p. 2 (Mar. 10, 1977), reprinted as Plaintiffs' Exhibit J. See also Transcript of the Full Senate Floor Discussion on H.F. 45, p. 6 (May 20, 1977), reprinted as Plaintiffs' Exhibit J (statement of Sen. Milton); id. at 9 (statement of Sen. Schaaf); id. at 10-11 (statement of Sen. Perpich). Moreover, the State explains, to ban both the plastic and the paperboard nonreturnable milk container at once would cause an enormous disruption in the milk industry, because few dairies are now able to package their products in refillable bottles or plastic pouches. Thus, by banning the plastic container while continuing to permit the paperboard container, the State was able to prevent the industry from becoming reliant on the new container, while avoiding severe economic dislocation. The Minnesota Supreme Court did not directly address this justification, but we find it supported by our precedents as well. In New Orleans v. Dukes, supra, we upheld a city regulation banning pushcart food vendors, but exempting from the ban two vendors who had operated in the city for over eight years. Noting that the "city could reasonably decide Page 449 U. S. 468 that newer businesses were less likely to have built up substantial reliance interests in continued operation," we held that the city "could rationally choose initially to eliminate vendors of more recent vintage." Id. at 427 U. S. 305 . Accord, United States v. Maryland Savings-Share Ins. Corp., 400 U. S. 4 , 400 U. S. 6 (1970). This case is not significantly different. The state legislature concluded that nonreturnable, nonrefillable milk containers pose environmental hazards, and decided to ban the most recent entry into the field. The fact that the legislature in effect "grandfathered" paperboard containers, at least temporarily, does not make the Act's ban on plastic nonreturnables arbitrary or irrational. Third, the State argues that the Act will help to conserve energy. It points out that plastic milk jugs are made from plastic resin, an oil and natural gas derivative, whereas paperboard milk cartons are primarily composed of pulpwood, which is a renewable resource. This point was stressed by the Act's proponents in the legislature. Senator Luther commented: "We have been through an energy crisis in Minnesota. We know what it is like to go without and what we are looking at here is a total blatant waste of petroleum and natural gas. . . ." Transcript of the Full Senate Floor Discussion on H. F. 45, p. 12 (May 20, 1977), reprinted as Plaintiffs' Exhibit J. Representative Munger said in a similar vein: "A sweep to the plastic throwaway bottle in the gallon size container alone would use enough additional natural gas and petroleum to heat 3,100 homes each year in Minnesota when compared to a refillable system and 1,400 compared to the present paperboard system. Plastic containers are made from a non-renewable resource, while the paperboard is made from Minnesota's forest products." Transcript of the Debate of the Minnesota House of Representatives on H.F. 45, p. 2 (Mar. 10, 1977), reprinted as Plaintiffs' Exhibit J. Page 449 U. S. 469 The Minnesota Supreme Court held, in effect, that the legislature misunderstood the facts. The court admitted that the results of a reliable study [ Footnote 9 ] support the legislature's conclusion that less energy is consumed in the production of paperboard containers than in the production of plastic nonreturnables, but, after crediting the contrary testimony of respondents' expert witness and altering certain factual assumptions, [ Footnote 10 ] the court concluded that "production of plastic nonrefillables requires less energy than production of paper containers." 289 N.W.2d at 85. The Minnesota Supreme Court may be correct that the Act is not a sensible means of conserving energy. But we reiterate that "it is up to legislatures, not courts, to decide on the wisdom and utility of legislation." Ferguson v. Skrupa, 372 U. S. 726 , 372 U. S. 729 (1963). Since, in view of the evidence before the legislature, the question clearly is "at least debatable," United States v. Carolene Products Co., 304 U.S. at 304 U. S. 154 , the Minnesota Supreme Court erred in substituting its judgment for that of the legislature. Fourth, the State argues that the Act will ease the State's solid waste disposal problem. Most solid consumer wastes in Minnesota are disposed of in landfills. A reputable study before the Minnesota Legislature indicated that plastic milk jugs occupy a greater volume in landfills than other nonreturnable milk containers. [ Footnote 11 ] This was one of the legislature's major concerns. For example, in introducing the bill to the House of Representatives, Representative Munger asked rhetorically: Page 449 U. S. 470 "Why do we need this legislation?" Part of his answer to the query as that "the plastic non-refillable containers will increase the problems of solid waste in our state." Transcript of the Debate of the Minnesota House of Representatives on H.F. 45, p. 1 (Mar. 10, 1977), reprinted as Plaintiffs' Exhibit J. The Minnesota Supreme Court found that plastic milk jugs in fact take up less space in landfills and present fewer solid waste disposal problems than do paperboard containers. 289 N.W.2d at 82-85. But its ruling on this point must be rejected for the same reason we rejected its ruling concerning energy conservation: it is not the function of the courts to substitute their evaluation of legislative facts for that of the legislature. We therefore conclude that the ban on plastic nonreturnable milk containers bears a rational relation to the State's objectives, and must be sustained under the Equal Protection Clause. [ Footnote 12 ] III The District Court also held that the Minnesota statute is unconstitutional under the Commerce Clause [ Footnote 13 ] because it imposes an unreasonable burden on interstate commerce. [ Footnote 14 ] We cannot agree. Page 449 U. S. 471 When legislating in areas of legitimate local concern, such as environmental protection and resource conservation, States are nonetheless limited by the Commerce Clause. See Lewis v. BT Investment Managers, Inc., 447 U. S. 27 , 447 U. S. 36 (1980); Hunt v. Washington Apple Advertising Comm'n, 432 U. S. 333 , 432 U. S. 350 (1977); Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761 , 325 U. S. 767 (1945). If a state law purporting to promote environmental purposes is in reality "simple economic protectionism," we have applied a "virtually per se rule of invalidity." Philadelphia v. New Jersey, 437 U. S. 617 , 437 U. S. 624 (1978). [ Footnote 15 ] Even if a statute regulates "evenhandedly," and imposes only "incidental" burdens on interstate commerce, the courts must nevertheless strike it down if "the burden imposed on such commerce is clearly excessive in relation to the putative local benefits." Pike v. Bruce Church, Inc., 397 U. S. 137 , 397 U. S. 142 (1970). Moreover, "the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities." Ibid. Minnesota's statute does not effect "simple protectionism," but "regulates evenhandedly" by prohibiting all milk retailers from selling their products in plastic, nonreturnable milk containers, without regard to whether the milk, the containers, Page 449 U. S. 472 or the sellers are from outside the State. This statute is therefore unlike statutes discriminating against interstate commerce, which we have consistently struck down. E.g., Lewis v. BT Investment Managers, Inc., supra, (Florida statutory scheme prohibiting investment advisory services by bank holding companies with principal offices out of the State); Hughes v. Oklahoma, 441 U. S. 322 (1979) (Oklahoma statute prohibiting the export of natural minnows from the State); Philadelphia v. New Jersey, supra, (New Jersey statute prohibiting importation of solid and liquid wastes into the State); Hunt v. Washington Apple Advertising Comm'n, supra (North Carolina statute imposing additional costs on Washington, but not on North Carolina, apple shippers) . Since the statute does not discriminate between interstate and intrastate commerce, the controlling question is whether the incidental burden imposed on interstate commerce by the Minnesota Act is "clearly excessive in relation to the putative local benefits." Pike v. Bruce Church, Inc., supra at 397 U. S. 142 . We conclude that it is not. The burden imposed on interstate commerce by the statute is relatively minor. Milk products may continue to move freely across the Minnesota border, and since most dairies package their products in more than one type of containers, [ Footnote 16 ] the inconvenience of having to conform to different packaging requirements in Minnesota and the surrounding States should be slight. See Pacific States Box & Basket Co. v. White, 296 U. S. 176 , 296 U. S. 184 (1935). Within Minnesota, business will presumably shift from manufacturers of plastic nonreturnable containers to producers of paperboard cartons, refillable bottles, Page 449 U. S. 473 and plastic pouches, but there is no reason to suspect that the gainers will be Minnesota firms, or the losers out-of-state firms. Indeed, two of the three dairies, the sole milk retailer, and the sole milk container producer challenging the statute in this litigation are Minnesota firms. [ Footnote 17 ] Pulpwood producers are the only Minnesota industry likely to benefit significantly from the Act at the expense of out-of-state firms. Respondents point out that plastic resin, the raw material used for making plastic nonreturnable milk jugs, is produced entirely by non-Minnesota firms, while pulpwood, used for making paperboard, is a major Minnesota product. Nevertheless, it is clear that respondents exaggerate the degree of burden on out-of-state interests, both because plastics will continue to be used in the production of plastic pouches, plastic returnable bottles, and paperboard itself, and because out-of-state pulpwood producers will presumably absorb some of the business generated by the Act. Even granting that the out-of-state plastics industry is burdened relatively more heavily than the Minnesota pulpwood industry, we find that this burden is not "clearly excessive" in light of the substantial state interest in promoting conservation of energy and other natural resources and easing solid waste disposal problems, which we have already reviewed in the context of equal protection analysis. See supra at 449 U. S. 465 -470. We find these local benefits ample to support Minnesota's decision under the Commerce Clause. Moreover, we find that no approach with "a lesser impact on interstate activities," Pike v. Bruce Church, Inc., supra at 397 U. S. 142 , is available. Respondents have suggested several alternative statutory schemes, but these alternatives are either more burdensome on commerce than the Act (as, for example, banning all nonreturnables) or less likely to be effective (as, for example, Page 449 U. S. 474 providing incentives for recycling). See Brief for Respondents 32-33. In Exxon Corp. v. Governor of Maryland, 437 U. S. 117 (1978), we upheld a Maryland statute barring producers and refiners of petroleum products -- all of which were out-of-state businesses -- from retailing gasoline in the State. We stressed that the Commerce Clause "protects the interstate market, not particular interstate firms, from prohibitive or burdensome regulations." Id. at 437 U. S. 127 -128. A nondiscriminatory regulation serving substantial state purposes is not invalid simply because it causes some business to shift from a predominantly out-of-state industry to a predominantly in-state industry. Only if the burden on interstate commerce clearly outweighs the State's legitimate purposes does such a regulation violate the Commerce Clause. The judgment of the Minnesota Supreme Court is Reversed. JUSTICE REHNQUIST took no part in the consideration or decision of this case. [ Footnote 1 ] Respondents, plaintiffs below, are a Minnesota dairy that owns equipment for producing plastic nonreturnable milk jugs, a Minnesota dairy that leases such equipment, a non-Minnesota company that manufactures such equipment, a Minnesota company that produces plastic nonreturnable milk jugs, a non-Minnesota dairy that sells milk products in Minnesota in plastic nonreturnable milk jugs, a Minnesota milk retailer, a non-Minnesota manufacturer of polyethylene resin that sells such resin in many States, including Minnesota, and a plastics industry trade association. [ Footnote 2 ] Minnesota Stat. § 116 F. 01 (1978) provides in relevant part: " Statement of policy. The legislature seeks to encourage both the reduction of the amount and type of material entering the solid waste stream and the reuse and recycling of materials. Solid waste represents discarded materials and energy resources, and it also represents an economic burden to the people of the state. The recycling of solid waste materials is one alternative for the conservation of material and energy resources, but it is also in the public interest to reduce the amount of materials requiring recycling or disposal." [ Footnote 3 ] Minnesota is apparently the first State so to regulate milk containers. 289 N.W.2d 79 , 81, n. 6 (1979). [ Footnote 4 ] Transcript of the Debate of the Minnesota House of Representatives on H.F. 45, p. 1 (Mar. 10, 1977), reprinted as Plaintiffs' Exhibit J. [ Footnote 5 ] The principal empirical study cited in legislative debate, see, e.g., Transcript of the Full Senate Floor Discussion on H.F. 45, p. 12 (May 20, 1977), reprinted as Plaintiffs' Exhibit J (statement of Sen. Luther), is Midwest Research Institute, Resource and Environmental Profile Analysis of Five Milk Container Systems, admitted into evidence as Plaintiffs' Exhibit I. [ Footnote 6 ] JUSTICE STEVENS' dissenting opinion argues that the Minnesota Supreme Court, when reviewing a challenge to a Minnesota statute on equal protection grounds, is not bound by the limits applicable to federal courts, but may independently reach conclusions contrary to those of the legislature concerning legislative facts bearing on the wisdom or utility of the legislation. This argument, though novel, is without merit. A state court may, of course, apply a more stringent standard of review as a matter of state law under the State's equivalent to the Equal Protection or Due Process Clauses. E.g., Baker v. City of Fairbanks, 471 P.2d 386 , 401-402 (Alaska 1970); Serrano v. Priest, 18 Cal. 3d 728 , 764-765, 557 P.2d 929, 950-951 (1976), cert. denied, 432 U.S. 907 (1977); State v. Kaluna, 55 Haw. 361, 368-369, 520 P.2d 51 , 58-59 (1974); see Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977). And as the dissent correctly notes, post at 449 U. S. 479 -481, the States are free to allocate the lawmaking function to whatever branch of state government they may choose. Uphaus v. Wyman, 360 U. S. 72 , 360 U. S. 77 (1959); Sweezy v. New Hampshire, 354 U. S. 234 , 354 U. S. 256 -257 (1957) (Frankfurter, J., concurring in result); Dreyer v. Illinois, 187 U. S. 71 , 187 U. S. 83 -84 (1902). But when a state court reviews state legislation challenged as violative of the Fourteenth Amendment, it is not free to impose greater restrictions as a matter of federal constitutional law than this Court has imposed. Oregon v. Hass, 420 U. S. 714 , 420 U. S. 719 (1975). The standard of review under equal protection rationality analysis -- without regard to which branch of the state government has made the legislative judgment -- is governed by federal constitutional law, and a state court's application of that standard is fully reviewable in this Court on writ of certiorari. 28 U.S.C. § 1257(3). JUSTICE STEVENS concedes the flaw in his argument when he admits that "a state court's decision invalidating state legislation on federal constitutional grounds may be reversed by this Court if the state court misinterpreted the relevant federal constitutional standard." Post at 449 U. S. 489 . And contrary to his argument that today's judgment finds "no precedent in this Court's decisions," post at 449 U. S. 482 , we have frequently reversed State Supreme Court decisions invalidating state statutes or local ordinances on the basis of equal protection analysis more stringent than that sanctioned by this Court. E.g., Idaho Dept. of Employment v. Smith, 434 U. S. 100 (1977); Arlington County Board v. Richards, 434 U. S. 5 (1977); Richardson v. Ramirez, 418 U. S. 24 (1974); Lehnhausen v. Lake Shore Auto Parts Co., 410 U. S. 356 (1973). See also North Dakota Pharmacy Board v. Snyder's Drug Stores, Inc., 414 U. S. 156 (1973); Dean v. Gadsen Times Publishing Corp., 412 U. S. 543 (1973); McDaniel v. Barresi, 402 U. S. 39 (1971). Never have we suggested that our review of the judgments in such cases differs in any relevant respect because they were reached by state courts, rather than federal courts. Indeed, JUSTICE STEVENS has changed his own view. Previously, he has stated that state court decisions under the Fourteenth Amendment granting litigants "more protection than the Federal Constitution requires," are in error. Idaho Dept. of Employment v. Smith, supra at 434 U. S. 104 (STEVENS, J., dissenting in part). This is in agreement with the conclusion of one commentator: "In reviewing state court resolutions of federal constitutional issues, the Supreme Court has not differentiated between those decisions which sustain and those which reject claims of federal constitutional right. In both instances, once having granted review, the Court has simply determined whether the state court's federal constitutional decision is 'correct,' meaning, in this context, whether it is the decision that the Supreme Court would independently reach." Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv.L.Rev. 1212, 1243 (1978) (footnote omitted). Thus, JUSTICE STEVENS' argument in the dissenting opinion that today's treatment of the instant case is extraordinary and unprecedented, see post at 449 U. S. 482 , and n. 7, is simply wrong. [ Footnote 7 ] Respondents, citing the District Court's Finding of Fact No. 12, App. A-19, also assert that the actual purpose for the Act was illegitimate: to "isolate from interstate competition the interests of certain segments of the local dairy and pulpwood industries." Brief for Respondents 23. We accept the contrary holding of the Minnesota Supreme Court that the articulated purpose of the Act is its actual purpose. See 289 N.W.2d at 82. In equal protection analysis, this Court will assume that the objectives articulated by the legislature are actual purposes of the statute unless an examination of the circumstances forces us to conclude that they "could not have been a goal of the legislation." See Weinberger v. Wiesenfeld, 420 U. S. 636 , 420 U. S. 648 , n. 16 (1975). Here, a review of the legislative history supports the Minnesota Supreme Court's conclusion that the principal purposes of the Act were to promote conservation and ease solid waste disposal problems. The contrary evidence cited by respondents, see Brief for Respondents 29-31, is easily understood, in context, as economic defense of an Act genuinely proposed for environmental reasons. We will not invalidate a state statute under the Equal Protection Clause merely because some legislators sought to obtain votes for the measure on the basis of its beneficial side effects on state industry. [ Footnote 8 ] We express no view whether the District Court could have dismissed this case on the pleadings or granted summary judgment for the State on the basis of the legislative history, without hearing respondents' evidence. See Vance v. Bradley, 440 U. S. 93 , 440 U. S. 109 -112 (1979); Bayside Fish Flour Co. v. Gentry, 297 U. S. 422 (1936). [ Footnote 9 ] See n 5, supra. [ Footnote 10 ] The court adopted the higher of two possible measurements of energy consumption from paperboard production, apparently because the lower figure contemplated the use of waste products, such as sawdust, for energy production. In addition, the court substituted a lower measurement of the energy consumption from plastic nonreturnable production for that used in the study. 289 N.W.2d at 885. [ Footnote 11 ] This was the conclusion of the Midwest Research Institute study, see n. 5, supra. Brief for Petitioner 21. [ Footnote 12 ] The District Court also held that the Act violated substantive due process, and was apparently affirmed by the State Supreme Court on this ground. Conclusion of Law No. 1, App. A-23; 289 N.W.2d at 87, n. 20. From our conclusion under equal protection, however, it follows a fortiori that the Act does not violate the Fourteenth Amendment's Due Process Clause. See Exxon Corp. v. Governor of Maryland, 437 U. S. 117 , 372 U. S. 124 -125 (1978); Ferguson v. Skrupa, 372 U. S. 726 (1963). [ Footnote 13 ] "The Congress shall have Power . . . To regulate Commerce . . . among the several States. . . . " U.S.Const., Art. I, § 8, cl. 3. [ Footnote 14 ] The Minnesota Supreme Court did not reach the Commerce Clause issue. 289 N.W.2d at 87, n. 20. The parties and amici have fully briefed and argued the question, and because of the obvious factual connection between the rationality analysis under the Equal Protection Clause and the balancing of interests under the Commerce Clause, we will reach and decide the question. See New York City Transit Authority v. Beazer, 440 U. S. 568 , 440 U. S. 583 , n. 24 (1979). [ Footnote 15 ] A court may find that a state law constitutes "economic protectionism" on proof either of discriminatory effect, see Philadelphia v. New Jersey, or of discriminatory purpose, see Hunt v. Washington Apple Advertising Comm'n, 432 U.S. at 432 U. S. 352 -353. Respondents advance a "discriminatory purpose" argument, relying on a finding by the District Court that the Act's "actual basis was to promote the economic interests of certain segments of the local dairy and pulpwood industries at the expense of the economic interests of other segments of the dairy industry and the plastics industry." App. A-19. We have already considered and rejected this argument in the equal protection context, see n 7, supra, and do so in this context as well. [ Footnote 16 ] Respondent Wells Dairy, an Iowa firm, sells 60% of its milk in plastic nonreturnable containers, and the remainder in other types of packages, including paperboard cartons. Tr. 419, 426, 439. The Chairman of the Board of respondent Marigold Foods, Inc., a Minnesota dairy, admitted at trial that his firm would continue to sell milk in plastic nonreturnable containers in other States, despite the passage of the Act. Id. at 474. [ Footnote 17 ] See n. 1, supra. The existence of major in-state interests adversely affected by the Act is a powerful safeguard against legislative abuse. South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U. S. 177 , 303 U. S. 187 (1938). JUSTICE POWELL, concurring in part and dissenting in part. The Minnesota statute at issue bans the retail sale of milk in plastic nonreturnable, nonrefillable containers, but permits such sale in paperboard milk cartons. Respondents challenged the validity of the statute under both the Equal Protection and Commerce Clauses. The Minnesota District Court agreed with respondents on both grounds. The Supreme Court of Minnesota also agreed that the statute violated the Equal Protection Clause, but found it unnecessary to reach the Commerce Clause issue. This Court today reverses the Supreme Court of Minnesota, finding no merit in either of the alleged grounds of invalidity. I concur in the view that the statute survives equal protection challenge, and therefore join the Judgment of reversal on this Page 449 U. S. 475 ground. I also agree with most of Parts I and II of the Court's opinion. I would not, however, reach the Commerce Clause issue, but would remand it for consideration by the Supreme Court of Minnesota. The District Court expressly found: "12. Despite the purported policy statement published by the legislature as its basis for enacting Chapter 268, the actual basis was to promote the economic interests of certain segments of the local dairy and pulpwood industries at the expense of the economic interests of other segments of the dairy industry and the plastics industry." App. to Pet. for Cert. A-24. At a subsequent point in its opinion, and in even more explicit language, the District Court reiterated its finding that the purpose of the statute related to interstate commerce. [ Footnote 2/1 ] These findings were highly relevant to the question whether the statute discriminated against interstate commerce. See Philadelphia v. New Jersey, 437 U. S. 617 , 437 U. S. 624 (1978) ("The crucial inquiry . . . must be directed to determining whether [the statute] is basically a protectionist measure, or whether it can fairly be viewed as a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental"). Indeed, the trial court's findings normally would require us to conclude that the Minnesota Legislature was engaging in such discrimination, as they were not rejected by the Minnesota Supreme Court. That court simply invalidated the statute on equal protection grounds, and had no reason to consider the claim of discrimination against interstate commerce. Page 449 U. S. 476 The Minnesota Supreme Court did accept the avowed legislative purpose of the statute. It stated: "The Act is intended to promote the policies stated in Minn.St. 116 F. 01; therefore, it is intended to promote the state interest of encouraging the reuse and recycling of materials and reducing the amount and type of material entering the solid waste stream." 289 N.W.2d 79 , 82 (1979). The Court today reads this statement as an implied rejection of the trial court's specific finding that the "actual [purpose] was to promote the economic interests of certain segments of the local dairy and pulpwood industries at the expense of the economic interests" of the nonresident dairy and plastics industry. In my view, however, the Minnesota Supreme Court was merely assuming that the statute was intended to promote its stated purposes. It was entirely appropriate for that court to accept, for purposes of equal protection analysis, the purpose expressed in the statute. See ante at 449 U. S. 463 , n. 7. When the court did so, however, there is no reason to conclude that it intended to express or imply any view on any issue it did not consider. In drawing its conclusions, the court included no discussion whatever of the Commerce Clause issue and, certainly, no rejection of the trial court's express and repeated findings concerning the legislature's actual purpose. [ Footnote 2/2 ] I conclude therefore that this Court has no basis for inferring a rejection of the quite specific factfindings by the trial court. The Court's decision today, holding that Chapter 268 does not violate the Commerce Clause, is flatly contrary Page 449 U. S. 477 to the only relevant specific findings of fact. Although we are not barred from reaching the Commerce Clause issue, in doing so, we also act without the benefit of a decision by the highest court of Minnesota on the question. In these circumstances, it is both unnecessary and, in my opinion, inappropriate for this Court to decide the Commerce Clause issue. See, e.g., FTC v. Anheuser-Busch, Inc., 363 U. S. 536 , 363 U. S. 542 (1960); United States v. Ballard, 322 U. S. 78 , 322 U. S. 88 (1944). Because no reason has been offered for a departure from our customary restraint, I would remand the case with instructions to consider specifically whether the statute discriminated impermissibly against interstate commerce. [ Footnote 2/1 ] Finding 23 of the District Court was as follows: "23. Despite the purported policy reasons published by the Legislature as bases for enacting Chapter 268, actual bases were to isolate from interstate competition the interests of certain segments of the local dairy and pulpwood industries. The economic welfare of such local interests can be promoted without the remedies prescribed in Chapter 268." App. to Pet. for Cert. A-27 (emphasis added). [ Footnote 2/2 ] Commerce Clause analysis differs from analysis under the "rational basis" test. Under the Commerce Clause, a court is empowered to disregard a legislature's statement of purpose if it considers it a pretext. See Dean Milk Co. v. Madison, 340 U. S. 349 , 340 U. S. 354 (1951) ("A different view, that the ordinance is valid simply because it professes to be a health measure, would mean that the Commerce Clause, of itself, imposes no limitations on state action other than those laid down by the Due Process Clause, save for the rare instance where a state artlessly discloses an avowed purpose to discriminate against interstate goods"). JUSTICE STEVENS, dissenting. While the Court in this case seems to do nothing more than apply well established equal protection and Commerce Clause principles to a particular state statute, in reality, its reversal of the Minnesota Supreme Court is based upon a newly discovered principle of federal constitutional law. According to this principle, which is applied but not explained by the majority, the Federal Constitution defines not only the relationship between Congress and the federal courts, but also the relationship between state legislatures and state courts. Because I can find no support for this novel constitutional doctrine in either the language of the Federal Constitution or the prior decisions of this Court, I respectfully dissent. I The keystone of the Court's equal protection analysis is its pronouncement that "it is not the function of the courts to substitute their evaluation of legislative facts for that of the legislature." Ante at 449 U. S. 470 . [ Footnote 3/1 ] If the pronouncement concerned Page 449 U. S. 478 the function of federal courts, it would be amply supported by reason and precedent. For federal tribunals are courts of limited jurisdiction, whose powers are confined by the Federal Constitution, by statute, and by the decisions of this Court. It is not surprising, therefore, that the Court's pronouncement is supported by citation only to precedents dealing with the function that a federal court may properly perform when it is reviewing the constitutionality of a law enacted by Congress or by a state legislature. [ Footnote 3/2 ] Page 449 U. S. 479 But what.is the source -- if indeed there be one -- of this Court's power to make the majestic announcement that it is not the function of a state court to substitute its evaluation of legislative facts for that of a state legislature? I should have thought the allocation of functions within the structure of a state government would be a matter for the State to determine. I know of nothing in the Federal Constitution that prohibits a State from giving lawmaking power to its courts. [ Footnote 3/3 ] Page 449 U. S. 480 Nor is there anything in the Federal Constitution that prevents a state court from reviewing factual determinations made by a state legislature or any other state agency. [ Footnote 3/4 ] If a state statute expressly authorized a state tribunal to sit as a Council of Revision with full power to modify or to amend Page 449 U. S. 481 the work product of its legislature, that statute would not violate any federal rule of which I am aware. The functions that a state court shall perform within the structure of state government are unquestionably matters of state law. One of the few propositions that this Court has respected with unqualified consistency -- until today -- is the rule that a federal court is bound to respect the interpretation of state law announced by the highest judicial tribunal in a State. [ Footnote 3/5 ] In this case, the Minnesota Supreme Court has held that the state trial court acted properly when it reviewed the factual basis for the state legislation, and implicitly the Minnesota Supreme Court also has held that its own review of the legislative record was proper. Moreover, it also has determined as a matter of state law how it properly should resolve conflicts in the evidence presented to the state legislature, as supplemented by the additional evidence presented to the trial court in this case. [ Footnote 3/6 ] In my opinion, the factual conclusions Page 449 U. S. 482 drawn by the Minnesota courts concerning the deliberations of the Minnesota Legislature are entitled to just as much deference as if they had been drafted by the state legislature itself and incorporated in a preamble to the state statute. The State of Minnesota has told us in unambiguous language that this statute is not rationally related to any environmental objective; it seems to me to be a matter of indifference, for purposes of applying the federal Equal Protection Clause, whether that message to us from the State of Minnesota is conveyed by the State Supreme Court, or by the state legislature itself. I find it extraordinary that this federal tribunal feels free to conduct its own de novo review of a state legislative record in search of a rational basis that the highest court of the State has expressly rejected. There is no precedent in this Court's decisions for such federal oversight of a State's lawmaking process. [ Footnote 3/7 ] Of course, if a federal trial court had reviewed the Page 449 U. S. 483 factual basis for a state law, conflicts in the evidence would have to be resolved in favor of the State. [ Footnote 3/8 ] But when a state court has conducted the review, it is not our business to disagree Page 449 U. S. 484 with the state tribunal's evaluation of the State's own lawmaking process. Even if the state court should tell us that a state statute has a meaning that we believe the state Page 449 U. S. 485 legislature plainly did not intend, we are not free to take our own view of the matter. [ Footnote 3/9 ] Once it is recognized that this Court may not review the question of state law presented by the Minnesota courts' decision to reevaluate the evidence presented to the legislature, the result we must reach in this case is apparent. Because the factual conclusions drawn by the Minnesota courts are clearly supported by the record, [ Footnote 3/10 ] the only federal issue that this case presents is whether a discriminatory statute that is Page 449 U. S. 486 admittedly irrational violates the Equal Protection Clause of the Fourteenth Amendment. The Court implicitly acknowledges that the Minnesota Supreme Court applied the proper rule of federal law when it answered that question. [ Footnote 3/11 ] Whatever we may think about the environmental consequences of this discriminatory law, it follows inexorably that it is our duty as federal judges to affirm the judgment of the Minnesota Supreme Court. II In light of my conclusion that the Minnesota Supreme Court's equal protection decision must be affirmed, I need not address the Commerce Clause question resolved by the majority. Ante at 449 U. S. 470 -474. Nonetheless, I believe that the majority's treatment of that question compels two observations. First, in my opinion, the Court errs in undertaking to decide the Commerce Clause question at all. The state trial court addressed the question and found that the statute was designed by the Minnesota Legislature to promote the economic interests of the local dairy and pulpwood industries at the expense of competing economic groups. [ Footnote 3/12 ] On appeal, the Page 449 U. S. 487 Minnesota Supreme Court expressly declined to consider this aspect of the trial court's decision, and accordingly made no comment at all upon the merits of the Commerce Clause question. 289 N.W.2d 79 , 87, n. 20 (1979). Generally, when reviewing state court decisions, this Court will not decide questions which the highest court of a State has properly declined to address. The majority offers no persuasive explanation for its unusual action in this case. [ Footnote 3/13 ] In the absence Page 449 U. S. 488 of some substantial justification for this action, I would not deprive the Minnesota Supreme Court of the first opportunity to review this aspect of the decision of the Minnesota trial court. Second, the Court's Commerce Clause analysis suffers from the same flaw as its equal protection analysis. The Court rejects the findings of the Minnesota trial court not because they are clearly erroneous, but because the Court is of the view that the Minnesota courts are not authorized to exercise such a broad power of review over the Minnesota Legislature. See ante at 449 U. S. 471 , n. 15. After rejecting the trial court's findings, the Court goes on to find that any burden the Minnesota statute may impose upon interstate commerce is not excessive in light of the substantial state interests furthered by the statute. Ante at 449 U. S. 473 . However, the Minnesota Supreme Court expressly found that the statute is not rationally related to the substantial state interests identified by the majority. [ Footnote 3/14 ] Because I believe, as explained in 449 U. S. supra, that the Court's intrusion upon the lawmaking process of the State of Minnesota is without constitutional sanction or precedential support, it is clear to me that the findings of the Minnesota Supreme Court must be respected by this Court. Accordingly, the essential predicate for the majority's conclusion that the "local benefits [are] ample to support Minnesota's decision under the Commerce Clause," ante at 449 U. S. 473 , is absent. III The majority properly observes that a state court, when applying the provisions of the Federal Constitution, may not Page 449 U. S. 489 apply a constitutional standard more stringent than that announced in the relevant decisions of this Court. See ante at 449 U. S. 461 -463, n. 6. It follows from this observation that a state court's decision invalidating state legislation on federal constitutional grounds may be reversed by this Court if the state court misinterpreted the relevant federal constitutional standard. In this case, however, the Minnesota Supreme Court applied the correct federal equal protection standard and properly declined to consider the Commerce Clause. The majority reverses this decision because it disagrees with the Minnesota courts' perception of their role in the State's lawmaking process, not because of any error in the application of federal law. In my opinion, this action is beyond the Court's authority. I therefore respectfully dissent. [ Footnote 3/1 ] See also ante at 449 U. S. 464 , where the Court states that "States are not required to convince the courts of the correctness of their legislative judgments'; and ibid., where the Court states that 'litigants may not procure invalidation of the legislation merely by tendering evidence in court that the legislature was mistaken." [ Footnote 3/2 ] The majority cites Vance v. Bradley, 440 U. S. 93 (1979); Ferguson v. Skrupa, 372 U. S. 726 (1963); Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421 (1952); United States v. Carolene Products Co., 304 U. S. 144 (1938); and Henderson Co. v. Thompson, 300 U. S. 258 (1937), in support of its conclusion that it is not the function of the Minnesota courts to reevaluate facts considered by the Minnesota Legislature. See ante at 449 U. S. 464 , 449 U. S. 469 . However, even a cursory examination of these cases reveals that they provide no support for the Court's decision in this case. In four of the cited cases, the Court reviewed the actions of lower federal, not state, courts. These cases thus shed no light upon the role a state court properly may play in reviewing actions of the state legislature. In Vance v. Bradley and United States v. Carolene Products, Federal District Courts had invalidated federal statutes on federal constitutional grounds. In both cases, this Court reversed because the District Courts had exceeded the scope of their powers by reevaluating the factual bases for the congressional enactments. See Vance, supra, at 440 U. S. 111 -112; Carolene Products, supra, at 440 U. S. 152 , 440 U. S. 154 . In Ferguson v. Skrupa, a Federal District Court had invalidated a Kansas statute on federal constitutional grounds. This Court reversed, finding that the District Court had exceeded constitutional limitations by substituting its judgment for that of the Kansas Legislature. See 372 U.S. at 372 U. S. 729 -731. The Court also indicated in Ferguson that its own power to supervise the actions of state legislatures is narrowly circumscribed. Id. at 372 U. S. 730 -731. Finally, in Henderson Co. v. Thompson, a Federal District Court had sustained a Texas statute in the face of a constitutional challenge. In affirming that decision, the Court simply observed that "[t]he needs of conservation are to be determined by the Legislature." 300 U.S. at 300 U. S. 264 . In only one of the cases cited by the majority did the Court review a state court judgment. In Day-Brite Lighting, Inc. v. Missouri, a Missouri statute was challenged on due process, equal protection, and Contract Clause theories. The Missouri Supreme Court had upheld the statute, and this Court affirmed. In the course of its opinion, the Court stated that it was not free to reevaluate the legislative judgment or act as "a superlegislature." 342 U.S. at 342 U. S. 423 , 342 U. S. 425 . The Court did not comment at all upon the extent of the Missouri Supreme Court's authority to supervise the activities of the Missouri Legislature. Nothing in the Day-Brite Lighting opinion can be construed as the source of the Court's newly found power to determine for the States which lawmaking powers may be allocated to their courts and which to their legislatures. [ Footnote 3/3 ] Responding to an argument that the lawmaking power of the Virginia Legislature had been improperly assigned to another arm of the State's government, Justice Cardozo, writing for the Court in Highland Farms Dairy, Inc. v. Agnew, 300 U. S. 608 , 300 U. S. 612 -613 (1937), stated: "The Constitution of the United States, in the circumstances here exhibited, has no voice upon the subject. The statute challenged as invalid is one adopted by a state. This removes objections that might be worthy of consideration if we were dealing with an act of Congress. How power shall be distributed by a state among its governmental organs is commonly, if not always, a question for the state itself. Nothing in the distribution here attempted supplies the basis for an exception. The statute is not a denial of a republican form of government. Constitution, Art. IV, § 4. Even if it were, the enforcement of that guarantee, according to the settled doctrine, is for Congress, not the courts. Pacific States Telephone Co. v. Oregon, 223 U. S. 118 ; Davis v. Hildebrant, 241 U. S. 565 ; Ohio ex rel. Bryant v. Akron Park District, 281 U. S. 74 , 281 U. S. 79 , 241 U. S. 80 . Cases such as Panama Refining Co. v. Ryan, 293 U. S. 388 , and Schechter Poultry Corp. v. United States, 295 U. S. 495 , cited by appellants, are quite beside the point. What was in controversy there was the distribution of power between President and Congress, or between Congress and administrative officers or commissions, a controversy affecting the structure of the national government as established by the provisions of the national constitution." "So far as the objection to delegation is founded on the Constitution of Virginia, it is answered by a decision of the highest court of the state. In Reynolds v. Milk Commission, 163 Va. 957; 179 S.E. 507, the Supreme Court of Appeals passed upon the validity of the statute now in question. . . . A judgment by the highest court of a state as to the meaning and effect of its own constitution is decisive and controlling everywhere." See also Dreyer v. Illinois, 187 U. S. 71 , 187 U. S. 83 -84 (1902); Sweezy v. New Hampshire, 354 U. S. 234 , 354 U. S. 256 -257 (1957) (Frankfurter, J., concurring in result). [ Footnote 3/4 ] In Ferguson v. Skrupa, supra, the Court indicated that the Federal Constitution does prevent the federal courts from reviewing factual determinations made by a state legislature. In rejecting the substantive due process cases of an earlier era, the Court stated: "Under the system of government created by our Constitution, it is up to legislatures, not courts, to decide on the wisdom and utility of legislation." 372 U.S. at 372 U. S. 729 . The Court went on to explain this constitutional limitation: "We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws. . . . Legislative bodies have broad scope to experiment with economic problems, and this Court does not sit to" "subject the State to an intolerable supervision hostile to the basic principles of our Government and wholly beyond the protection which the general clause of the Fourteenth Amendment was intended to secure." Id. at 372 U. S. 730 (footnote omitted). The Court's conclusion in Ferguson that the Constitution imposes limitations upon the power of the federal courts to review legislative judgments was clearly correct, and was consistent with the structure of the Federal Constitution and "the system of government created" therein. The Constitution defines the relationship among the coordinate branches of the Federal Government and prescribes for each branch certain limited powers. The Federal Constitution, however, is silent with respect to the powers of the coordinate branches of state governments and the relationship among those branches. [ Footnote 3/5 ] Although this proposition is so well established as to require no citation of authority, abundant authority is readily available. See, e.g., North Carolina v. Butler, 441 U. S. 369 , 441 U. S. 376 , n. 7 (1979); Ward v. Illinois, 431 U. S. 767 , 431 U. S. 772 (1977); Eastlake v. Forest City Enterprises, Inc., 426 U. S. 668 , 426 U. S. 674 , n. 9 (1976); Hortonville Joint School District No. 1 v. Hortonville Education Assn., 426 U. S. 482 , 426 U. S. 488 (1976); Mullaney v. Wilbur, 421 U. S. 684 , 421 U. S. 691 (1975); Memorial Hospital v. Maricopa County, 415 U. S. 250 , 415 U. S. 256 (1974); Wardius v. Oregon, 412 U. S. 470 , 412 U. S. 477 (1973); Groppi v. Wisconsin, 400 U. S. 505 , 400 U. S. 507 (1971). [ Footnote 3/6 ] In its memorandum in this case, the state trial court initially observed that it was not free to "substitute its judgment for that of the legislature as to the wisdom or desirability of the act." App. A-24. With respect to the facts considered by the legislature, however, the trial court found that, "as factfinder, [it was] obliged to weigh and evaluate this evidence, much of which was in sharp conflict." Id. at A-25. In its opinion affirming the trial court's decision, the Minnesota Supreme Court took a similar view of the function to be performed by the Minnesota courts when reviewing Minnesota legislation: "We are aware of the deference that is accorded to the legislature when the present type of statute is analyzed on equal protection grounds. Nevertheless, our inquiry into the constitutional propriety of the present classification separating paper containers from plastic nonrefillables is dependent upon facts. Based upon the relevant findings of fact by the trial court, supported by the record, and upon our own independent review of documentary sources, we believe the evidence conclusively demonstrates that the discrimination against plastic nonrefillables is not rationally related to the Act's objectives." 289 N.W.2d 79 , 82 (1979). [ Footnote 3/7 ] In its footnote 6, ante at 449 U. S. 461 -463, the Court takes issue with my suggestion t.hat its action in this case is unprecedented by citing four cases in which the Court reversed State Supreme Court decision invalidating provisions of state law on federal equal protection grounds. See Idaho Dept. of Employment v. Smith, 434 U. S. 100 (1977) (per curiam); Arlington County Board v. Richards, 434 U. S. 5 (1977) (per curiam); Richardson v. Ramirez, 418 U. S. 24 (1974); Lehnhausen v. Lake Shore Auto Parts, 410 U. S. 356 (1973). In each of those cases, however, this Court concluded that the state court had applied an incorrect legal standard; in none did this Court reassess the factual predicate for the state court decision. In Idaho Dept. of Employment, the Idaho Supreme Court had invalidated a statutory classification not because it generally failed to further legitimate state goals, but rather because the court had found that the classification was imperfect, since some members of the class denied unemployment benefits were in fact as available for full-time employment as members of the class entitled to benefits under the Idaho statute. See Smith v. Department of Employment, 98 Idaho 43, 43-44, 557 P.2d 637, 637-638 (1976), citing Kerr v. Department of Employment, 97 Idaho 385, 545 P.2d 473 (1976). This Court did not disagree with the Idaho court's finding that the classification was imperfect, but merely held that this imperfection was legally insufficient to invalidate the statute under the Equal Protection Clause. 434 U.S. at 434 U. S. 101 -102. In Arlington County Board v. Richards, the Virginia Supreme Court had recognized the rational basis test as the appropriate equal protection standard, but then had proceeded to apply a more stringent standard to the municipal ordinance at issue. The court had expressly noted that the municipal ordinance "may relieve the [parking] problems to which it was directed." However, the court concluded that the means employed by the county to deal with these problems -- a classification based upon residency -- created an unconstitutional "invidious discrimination." See Arlington County Board v. Richards, 217 Va. 645, 651, 231 S.E.2d 231, 235 (1977). This Court reversed, rejecting the conclusion that the ordinance's residency classification resulted in an invidious discrimination. 434 U.S. at 434 U. S. 7 . In Richardson v. Ramirez, a voting rights case, the California Supreme Court was reversed not because it had reexamined the factual determinations of the California Legislature, but because this Court found that the statutory discrimination at issue was expressly authorized by § 2 of the Fourteenth Amendment. 418 U.S. at 418 U. S. 41 -56. Finally, in Lake Shore Auto Parts v. Lehnhausen, the Illinois Supreme Court had held, in essence, that a classification used in determining liability for a property tax must, as a constitutional matter, be based upon the nature of the property at issue, and not upon the corporate or noncorporate character of the property's owner. See Lake Shore Auto Parts v. Korzen, 49 Ill. 2d 137 , 149-151, 273 N.E.2d 592 , 598-599 (1971). This Court rejected this principle, finding it inconsistent with prior decisions clearly establishing that distinctions between individuals and corporations in tax legislation violated no constitutional rights. 410 U.S. at 410 U. S. 359 -365. As the majority observes, the Court in each of these cases reversed the state court decisions because the state courts had applied an equal protection standard more stringent than that sanctioned by this Court. Quite frankly, in my opinion, it would have been sound judicial policy in all four of those cases to allow the state courts to accord even greater protection within their respective jurisdictions than the Federal Constitution commands. See my dissent in Idaho Dept. of Employment, supra at 434 U. S. 104 . But what is especially relevant here is the fact that in none of those cases had the state courts found, after a full evidentiary hearing, that the factual predicate for the state law at issue was simply not true. The Minnesota courts in this case made such a finding after the development of an extensive record. The Minnesota courts then applied the correct federal legal standard to the facts revealed by this record, and concluded that the statutory classification was not rationally related to a legitimate state purpose. As I read the cases cited by the majority, they are simply inapposite in this case. My own research has uncovered no instance in which the Court has reversed the decision of the highest court of a State, as it does in this case, because the state court exceeded some federal constitutional limitation upon its power to review the factual determinations of the state legislature. The Court has never before, to my knowledge, undertaken to define, as a matter of federal law, the appropriate relationship between a state court and a state legislature. [ Footnote 3/8 ] In most of the cases in which the Court has indicated that courts may not substitute their judgment for that of the legislature, the Court was reviewing decisions of the lower federal courts. See, e.g., New Orleans v. Dukes, 427 U. S. 297 , 427 U. S. 303 (1976) (per curiam); Hughes v. Alexandria Scrap Corp., 426 U. S. 794 , 426 U. S. 812 (1976); United States v. Maryland Savings-Share Ins. Corp., 400 U. S. 4 , 400 U. S. 6 (1970) (per curiam); Firemen v. Chicago, R.I. & P. R. Co., 393 U. S. 129 , 393 U. S. 136 , 138-139 (1968); Williamson v. Lee Optical Co., 348 U. S. 483 , 348 U. S. 487 -488 (1955); Secretary of Agriculture v. Central Roig Refining Co., 338 U. S. 604 , 338 U. S. 618 -619 (1950); Daniel v. Family Insurance Co., 336 U. S. 220 , 336 U. S. 224 (1949); Clark v. Paul Gray, Inc., 306 U. S. 583 , 306 U. S. 594 (1939); South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U. S. 177 , 303 U. S. 190 -191 (1938); Bayside Fish Flour Co. v. Gentry, 297 U. S. 422 , 297 U. S. 427 -428, 297 U. S. 430 (1936); Borden's Farm Products Co. v. Ten Eyck, 297 U. S. 251 , 297 U. S. 263 (1936); Sproles v. Binford, 286 U. S. 374 , 286 U. S. 388 -389 (1932); Standard Oil Co. v. Marysville, 279 U. S. 582 , 279 U. S. 584 , 586 (1929); Hebe Co. v. Shaw, 248 U. S. 297 , 248 U. S. 303 (1919). In those instances in which the Court was reviewing state court decisions, its statements with respect to the limited role of the judiciary in reviewing state legislation clearly concerned its own authority to act as a "superlegislature," not the authority of a state court to do so where permitted by state law. See, e.g., Exxon Corp. v. Governor of Maryland, 437 U. S. 117 , 437 U. S. 124 (1978); Railway Express Agency, Inc. v. New York, 336 U. S. 106 , 336 U. S. 109 (1949); Olsen v. Nebraska, 313 U. S. 236 , 313 U. S. 246 (1941); Zahn v. Board of Public Works, 274 U. S. 325 , 274 U. S. 328 (1927); Cusack Co. v. Chicago, 242 U. S. 526 , 242 U. S. 531 (1917); Hadacheck v. Los Angeles, 239 U. S. 394 , 239 U. S. 413 -414 (1915); Price v. Illinois, 238 U. S. 446 , 238 U. S. 452 -453 (1915); Laurel Hill Cemetery v. San Francisco, 216 U. S. 358 , 216 U. S. 365 (1910). [ Footnote 3/9 ] This Court will defer to the interpretation of state law announced by the highest court of a State even where a more reasonable interpretation is apparent, see, e.g., O'Brien v. Skinner, 414 U. S. 524 , 414 U. S. 531 (1974), a contrary construction might save a state statute from constitutional invalidity, see, e.g., Landmark Communications, Inc. v. Virginia, 435 U. S. 829 , 435 U. S. 837 , n. 9 (1978), or it appears that the state court has attributed an unusually inflexible command to its legislature, see, e.g., Kingsley Pictures Corp. v Regents, 360 U. S. 684 , 360 U. S. 688 -689 (1959). [ Footnote 3/10 ] As the majority notes, the evidence considered by the Minnesota courts was conflicting, ante at 449 U. S. 460 , 449 U. S. 464 , 449 U. S. 469 , and the respondents "produced impressive supporting evidence at trial" indicating that the decision of the Minnesota Legislature was factually unsound. Ante at 449 U. S. 463 . In light of this record, this Court clearly cannot reverse the concurrent factual findings of two state courts. Moreover, since there is no significant difference between plastic containers and paper containers in terms of environmental impact, and since no one contends that the Minnesota statute will reduce the consumption of dairy products, it is not difficult to understand the state judges' skeptical scrutiny of a legislative ban on the use of one kind of container without imposing any present or future restriction whatsoever on the use of the other. [ Footnote 3/11 ] It is true that the Court carefully avoids an express acknowledgment that the Minnesota Supreme Court applied the correct legal standard. Not one word in the Court's opinion, however, suggests that the Court has any disagreement with the state court's understanding of the proper federal rule. [ Footnote 3/12 ] The trial court made the following findings of fact. "12. Despite the purported policy statement published by the Legislature as its basis for enacting Chapter 268, the actual basis was to promote the economic interests of certain segments of the local dairy and pulpwood industries at the expense of the economic interests of other segments of the dairy industry and the plastics industry." " * * * *" "23. Despite the purported policy reasons published by the Legislature as bases for enacting Chapter 268, actual bases were to isolate from interstate competition the interests of certain segments of the local dairy and pulpwood industries. The economic welfare of such local interests can be promoted without the remedies prescribed in Chapter 268." App. A-19, A-22. These findings were repeated in the memorandum filed by the trial court in this case: "The relevant legislative history of Chapter 268 support [ sic ] a conclusion that the real basis for it was to serve certain economic interests (paper, pulpwood, and some dairies) at the expense of other competing economic groups (plastic and certain dairies) by prohibiting the plastic milk bottle." Id. at A-24. [ Footnote 3/13 ] According to the majority, its decision to address the Commerce Clause question is justified "because of the obvious factual connection between the rationality analysis under the Equal Protection Clause and the balancing of interests under the Commerce Clause." Ante at 449 U. S. 470 , n. 14. The majority cites New York City Transit Authority v. Beazer, 440 U. S. 568 (1979), in support of this rationale. This justification is inadequate, in my opinion, for two reasons. First, in light of the trial court's factual finding that the Minnesota Legislature enacted the statute for protectionist, rather than environmental, reasons, see 449 U.S. 456 fn3/12|>n. 12, supra, the Equal Protection Clause and Commerce Clause inquiries are not necessarily as similar as the Court suggests. As the majority acknowledges, if a state law which purports to promote environmental goals is actually protectionist in design, a virtually automatic rule of invalidity, not a balancing of interests test, is applied. See ante at 449 U. S. 471 . See also New Orleans v. Dukes, 427 U.S. at 427 U. S. 304 , n. 5. Second, in Beazer, the Court reviewed the decision of a lower federal court, not a state supreme court. While this Court, in its discretion, may elect to deprive lower federal courts of the opportunity to decide particular statutory questions, it seems to me that respect for the Minnesota Supreme Court as the highest court of a sovereign State dictates that we not casually divest it of authority to decide a constitutional question on which it properly declined to comment when this case was first before it. Such deference is especially appropriate here because the Court's analysis of the Commerce Clause issue requires rejection of the state trial court's findings of fact. [ Footnote 3/14 ] As noted in 449 U. S. supra, the Court rejects the Minnesota Supreme Court's findings not because they are without support in the record -- they clearly are adequately supported, see 449 U.S. 456 fn3/10|>n. 10, supra -- but because it feels that the Minnesota Supreme Court was without authority to do anything other than endorse the factual conclusions of the Minnesota Legislature.

Minnesota banned the sale of milk in plastic containers to promote resource conservation, ease waste disposal, and conserve energy. The ban was challenged in court, arguing it violated the Equal Protection Clause and Commerce Clause. The Minnesota Supreme Court ruled against the ban, but the US Supreme Court overturned this, ruling that the ban was rationally related to the state's objectives and did not violate the Equal Protection Clause. The Court accepted the state's environmental goals and respected the legislature's authority to address them, even if the facts were debatable. The Court did not address the Commerce Clause issue.

Equal Protection

Village of Willowbrook v. Olech

https://supreme.justia.com/cases/federal/us/528/562/

OCTOBER TERM, 1999 Syllabus VILLAGE OF WILLOWBROOK ET AL. v. OLECH CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 98-1288. Argued January 10, 2000-Decided February 23, 2000 When respondent Olech and her late husband first asked petitioner Village of Willowbrook (Village) to connect their property to the municipal water supply, the Village conditioned the connection on the Olechs granting it a 33-foot easement. Although it subsequently reduced the easement to the 15 feet required of other property owners, Olech sued, claiming that the Village's demand for an additional 18-foot easement violated the Fourteenth Amendment's Equal Protection Clause, and asserting that the easement was irrational and arbitrary, that the Village was motivated by ill will resulting from the Olechs' success in an unrelated lawsuit against the Village, and that the Village acted either with the intent to deprive Olech of her rights or in reckless disregard of her rights. The District Court dismissed the suit for failure to state a claim, but the Seventh Circuit reversed, holding that Olech's spiteful ill will allegation stated a claim. Held: The Equal Protection Clause gives rise to a cause of action on behalf of a "class of one" where the plaintiff does not allege membership in a class or group, but alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for such treatment. See, e. g., Sioux City Bridge Co. v. Dakota County, 260 U. S. 441 . The Clause secures every person within a State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by a statute's express terms or by its improper execution. Id., at 445. Here, Olech's allegations that the Village intentionally demanded a 33-foot easement from her when it required only 15 feet from similarly situated property owners, that the demand was irrational and arbitrary, and that the Village ultimately connected her property in return for a 15-foot easement-quite apart from the Village's subjective motive-state a claim for relief under traditional equal protection analysis. Thus, the Court does not reach the alternative "subjective ill will" theory on which the Seventh Circuit relied. 160 F.3d 386 , affirmed. James L. DeAno argued the cause and filed briefs for petitioners. 563 Irving L. Gornstein argued the cause for the United States as amicus curiae. With him on the brief were Solicitor General Waxman, Acting Assistant Attorney General Ogden, Deputy Solicitor General Underwood, and Mark B. Stern. John R. Wimmer argued the cause and filed a brief for respondent. * PER CURIAM. Respondent Grace Olech and her late husband Thaddeus asked petitioner Village of Willowbrook (Village) to connect their property to the municipal water supply. The Village at first conditioned the connection on the Olechs granting the Village a 33-foot easement. The Olechs objected, claiming that the Village only required a 15-foot easement from other property owners seeking access to the water supply. After a 3-month delay, the Village relented and agreed to provide water service with only a 15-foot easement. Olech sued the Village, claiming that the Village's demand of an additional 18-foot easement violated the Equal Protection Clause of the Fourteenth Amendment. Olech asserted that the 33-foot easement demand was "irrational and wholly arbitrary"; that the Village's demand was actually motivated by ill will resulting from the Olechs' previous filing of an unrelated, successful lawsuit against the Village; and that the Village acted either with the intent to deprive Olech of her rights or in reckless disregard of her rights. App. 10, 12. The District Court dismissed the lawsuit pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a cognizable claim under the Equal Protection Clause. Relying on Circuit precedent, the Court of Appeals for the Sev- * Richard Ruda, James I. Crowley, and Donald B. Ayer filed a brief for the International City/County Management Association et al. as amici curiae urging reversal. Harvey Grossman, Steven R. Shapiro, and Richard J. O'Brien filed a brief for the ACLU as amicus curiae urging affirmance. 564 enth Circuit reversed, holding that a plaintiff can allege an equal protection violation by asserting that state action was motivated solely by a "'spiteful effort to "get" him for reasons wholly unrelated to any legitimate state objective.'" 160 F.3d 386 , 387 (1998) (quoting Esmail v. Macrane, 53 F. 3d 176, 180 (CA7 1995)). It determined that Olech's complaint sufficiently alleged such a claim. 160 F. 3d, at 388. We granted certiorari to determine whether the Equal Protection Clause gives rise to a cause of action on behalf of a "class of one" where the plaintiff did not allege membership in a class or group. * 527 U. S. 1067 (1999). Our cases have recognized successful equal protection claims brought by a "class of one," where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. See Sioux City Bridge Co. v. Dakota County, 260 U. S. 441 (1923); Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty., 488 U. S. 336 (1989). In so doing, we have explained that" '[t]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.'" Sioux City Bridge Co., supra, at 445 (quoting Sunday Lake Iron Co. v. Township of Wakefield, 247 U. S. 350 , 352 (1918)). *We note that the complaint in this case could be read to allege a class of five. In addition to Grace and Thaddeus Olech, their neighbors Rodney and Phyllis Zimmer and Howard Brinkman requested to be connected to the municipal water supply, and the Village initially demanded the 33-foot easement from all of them. The Zimmers and Mr. Brinkman were also involved in the previous, successful lawsuit against the Village, which allegedly created the ill will motivating the excessive easement demand. Whether the complaint alleges a class of one or of five is of no consequence because we conclude that the number of individuals in a class is immaterial for equal protection analysis. 565 That reasoning is applicable to this case. Olech's complaint can fairly be construed as alleging that the Village intentionally demanded a 33-foot easement as a condition of connecting her property to the municipal water supply where the Village required only a 15-foot easement from other similarly situated property owners. See Conley v. Gibson, 355 U. S. 41 , 45-46 (1957). The complaint also alleged that the Village's demand was "irrational and wholly arbitrary" and that the Village ultimately connected her property after receiving a clearly adequate 15-foot easement. These allegations, quite apart from the Village's subjective motivation, are sufficient to state a claim for relief under traditional equal protection analysis. We therefore affirm the judgment of the Court of Appeals, but do not reach the alternative theory of "subjective ill will" relied on by that court. It is so ordered. JUSTICE BREYER, concurring in the result. The Solicitor General and the village of Willowbrook have expressed concern lest we interpret the Equal Protection Clause in this case in a way that would transform many ordinary violations of city or state law into violations of the Constitution. It might be thought that a rule that looks only to an intentional difference in treatment and a lack of a rational basis for that different treatment would work such a transformation. Zoning decisions, for example, will often, perhaps almost always, treat one landowner differently from another, and one might claim that, when a city's zoning authority takes an action that fails to conform to a city zoning regulation, it lacks a "rational basis" for its action (at least if the regulation in question is reasonably clear). This case, however, does not directly raise the question whether the simple and common instance of a faulty zoning decision would violate the Equal Protection Clause. That is because the Court of Appeals found that in this case respond- 566 ent had alleged an extra factor as well-a factor that the Court of Appeals called "vindictive action," "illegitimate animus," or "ill will." 160 F.3d 386 , 388 (CA7 1998). And, in that respect, the court said this case resembled Esmail v. Macrane, 53 F.3d 176 (CA71995), because the Esmail plaintiff had alleged that the municipality's differential treatment "was the result not of prosecutorial discretion honestly (even if ineptly-even if arbitrarily) exercised but of an illegitimate desire to 'get' him." 160 F. 3d, at 388. In my view, the presence of that added factor in this case is sufficient to minimize any concern about transforming run-of-the-mill zoning cases into cases of constitutional right. For this reason, along with the others mentioned by the Court, I concur in the result. 567 The next page is purposely numbered 801. The numbers between 566 and 801 were intentionally omitted, in order to make it possible to publish the orders with permanent page numbers, thus making the official citations available upon publication of the preliminary prints of the United States Reports. 568 OCTOBER 4, 1999 Certiorari Granted-Vacated and Remanded No. 98-9308. CROSS V. CALIFORNIA. Ct. App. Cal., 1st App. Dist.; and No. 98-9504. COOPER V. CALIFORNIA. Ct. App. Cal., 1st App. Dist. Motions of petitioners for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and cases remanded for further consideration in light of Lilly v. Virginia, 527 U. S. 116 (1999). Miscellaneous Orders No. D-1961. IN RE DISBARMENT OF WEISSER. Disbarment entered. [For earlier order herein, see 524 U. S. 913.] No. D-2073. IN RE DISBARMENT OF NUNES. Disbarment entered. [For earlier order herein, see 526 U. S. 1128.] No. D-2076. IN RE DISBARMENT OF PATT. Disbarment entered. [For earlier order herein, see 526 U. S. 1143.] No. D-2088. IN RE DISBARMENT OF ROBINS. Disbarment entered. [For earlier order herein, see 527 U. S. 1020.] No. D-2101. IN RE DISBARMENT OF JACOBS. Patricia Dianne Jacobs, of Washington, D. C., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring her to show cause why she should not be disbarred from the practice of law in this Court. No. D-2102. IN RE DISBARMENT OF EAGLE. Saul L. Eagle, of New York, N. Y., is suspended from the practice of law in this Court, and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court. No. D-2103. IN RE DISBARMENT OF MANEY. William Kenneth Maney, of Johnson City, N. Y., is suspended from the practice 801

The Supreme Court ruled that the Equal Protection Clause of the Fourteenth Amendment allows a "class of one" claim, where a person is intentionally treated differently from others similarly situated, and there is no rational basis for such treatment. The Court affirmed the lower court's ruling that the Village of Willowbrook's demand for a larger easement from the Olechs, compared to other property owners, was irrational and arbitrary and thus violated the Equal Protection Clause.

Equal Protection

Michael M. v. Superior Court

https://supreme.justia.com/cases/federal/us/450/464/

U.S. Supreme Court Michael M. v. Superior Ct., 450 U.S. 464 (1981) Michael M. v. Superior Court No. 79-1344 Argued November 4, 1980 Decided March 23, 1981 450 U.S. 464 CERTIORARI TO THE SUPREME COURT OF CALIFORNIA Syllabus Petitioner, then a 17 1/2-year-old male, was charged with violating California's "statutory rape" law, which defines unlawful sexual intercourse as "an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years." Prior to trial, petitioner sought to set aside the information on both state and federal constitutional grounds, asserting that the statute unlawfully discriminated on the basis of gender since men alone were criminally liable thereunder. The trial court and the California Court of Appeal denied relief, and on review the California Supreme Court upheld the statute. Held: The judgment is affirmed. Pp. 450 U. S. 468 -476; 450 U. S. 481 -487. 25 Cal. 3d 608 , 601 P.2d 572, affirmed. JUSTICE REHNQUIST, joined by CHIEF JUSTICE BURGER, JUSTICE STEWART, and JUSTICE POWELL, concluded that the statute does not violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 450 U. S. 468 -476. (a) Gender-based classifications are not "inherently suspect" so as to be subject to so-called "strict scrutiny," but will be upheld if they bear a "fair and substantial relationship" to legitimate state ends. Reed v. Reed, 404 U. S. 71 . Because the Equal Protection Clause does not "demand that a statute necessarily apply equally to all persons" or require "things which are different in fact . . . to be treated in law as though they were the same," Rinaldi v. Yeager, 384 U. S. 305 , 384 U. S. 309 , a statute will be upheld where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances. Pp. 450 U. S. 468 -469. (b) One of the purposes of the California statute in which the State has a strong interest is the prevention of illegitimate teenage pregnancies. The statute protects women from sexual intercourse and pregnancy at an age when the physical, emotional, and psychological consequences are particularly severe. Because virtually all of the significant harmful and identifiable consequences of teenage pregnancy fall on the female, a legislature acts well within its authority when it Page 450 U. S. 465 elects to punish only the participant who, by nature, suffers few of the consequences of his conduct. Pp. 450 U. S. 470 -473. (c) There is no merit in petitioner's contention that the statute is impermissibly underinclusive, and must, in order to pass judicial scrutiny, be broadened so as to hold the female as criminally liable as the male. The relevant inquiry is not whether the statute is drawn as precisely as it might have been, but whether the line chosen by the California Legislature is within constitutional limitations. In any event, a gender-neutral statute would frustrate the State's interest in effective enforcement, since a female would be less likely to report violations of the statute if she herself would be subject to prosecution. The Equal Protection Clause does not require a legislature to enact a statute so broad that it may well be incapable of enforcement. Pp. 450 U. S. 473 -474. (d) Nor is the statute impermissibly overbroad because it makes unlawful sexual intercourse with prepubescent females, incapable of becoming pregnant. Aside from the fact that the statute could be justified on the grounds that very young females are particularly susceptible to physical injury from sexual intercourse, the Constitution does not require the California Legislature to limit the scope of the statute to older teenagers and exclude young girls. P. 450 U. S. 475 . (e) And the statute is not unconstitutional as applied to petitioner who, like the girl involved, was under 18 at the time of sexual intercourse, on the asserted ground that the statute presumes in such circumstances that the male is the culpable aggressor. The statute does not rest on such an assumption, but instead is an attempt to prevent illegitimate teenage pregnancy by providing an additional deterrent for men. The age of the man is irrelevant, since young men are as capable as older men of inflicting the harm sought to be prevented. P. 450 U. S. 475 . BLACKMUN, J., concluded that the California statutory rape law is a sufficiently reasoned and constitutional effort to control at its inception the problem of teenage pregnancies, and that the California Supreme Court's judgment should be affirmed on the basis of the applicable test for gender-based classifications as set forth in Reed v. Reed, 404 U. S. 71 , 404 U. S. 76 , and Craig v. Boren, 429 U. S. 190 , 429 U. S. 197 . Pp. 450 U. S. 481 -487. REHNQUIST, J., announced the judgment of the Court and delivered an opinion, in which BURGER, C.J. and STEWART and POWELL, JJ., joined. STEWART, J., filed a concurring opinion, post, p. 450 U. S. 476 . BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 450 U. S. 481 . BRENNAN, J., filed a dissenting opinion, in which WHITE and MARSALL, JJ., joined, post, p. 450 U. S. 488 . STEVENS, J., filed a dissenting opinion, post, p. 450 U. S. 496 . Page 450 U. S. 466 JUSTICE REHNQUIST announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE STEWART, and JUSTICE POWELL joined. The question presented in this case is whether California's "statutory rape" law, § 261.5 of the Cal.Penal Code Ann. (West Supp. 1981), violates the Equal Protection Clause of the Fourteenth Amendment. Section 261.5 defines unlawful sexual intercourse as "an act of sexual intercourse accomplished with a female not the wife of the perpetrator, where the female is under the age of 18 years." The statute thus makes men alone criminally liable for the act of sexual intercourse. In July, 1978, a complaint was filed in the Municipal Court of Sonoma County, Cal., alleging that petitioner, then a 17 1/2-year-old male, had had unlawful sexual intercourse with a female under the age of 18, in violation of § 261.5. The evidence adduced at a preliminary hearing showed that, at approximately midnight on June 3, 1978, petitioner and two friends approached Sharon, a 16 1/2-year-old female, and her sister as they waited at a bus stop. Petitioner and Sharon, Page 450 U. S. 467 who had already been drinking, moved away from the others and began to kiss. After being struck in the face for rebuffing petitioner's initial advances, Sharon submitted to sexual intercourse with petitioner. Prior to trial, petitioner sought to set aside the information on both state and federal constitutional grounds, asserting that § 261.5 unlawfully discriminated on the basis of gender. The trial court and the California Court of Appeal denied petitioner's request for relief, and petitioner sought review in the Supreme Court of California. The Supreme Court held that "section 261.5 discriminates on the basis of sex, because only females may be victims and only males may violate the section." 25 Cal. 3d 608 , 611, 601 P.2d 572, 574. The court then subjected the classification to "strict scrutiny," stating that it must be justified by a compelling state interest. It found that the classification was "supported not by mere social convention, but by the immutable physiological fact that it is the female exclusively who can become pregnant." Ibid. Canvassing "the tragic human costs of illegitimate teenage pregnancies," including the large number of teenage abortions, the increased medical risk associated with teenage pregnancies, and the social consequences of teenage childbearing, the court concluded that the State has a compelling interest in preventing such pregnancies. Because males alone can "physiologically cause the result which the law properly seeks to avoid," the court further held that the gender classification was readily justified as a means of identifying offender and victim. For the reasons stated below, we affirm the judgment of the California Supreme Court. [ Footnote 1 ] Page 450 U. S. 468 As is evident from our opinions, the Court has had some difficulty in agreeing upon the proper approach and analysis in cases involving challenges to gender-based classifications. The issues posed by such challenges range from issues of standing, see Orr v. Orr, 440 U. S. 268 (1979), to the appropriate standard of judicial review for the substantive classification. Unlike the California Supreme Court, we have not held that gender-based classifications are "inherently suspect," and thus we do not apply so-called "strict scrutiny" to those classifications. See Stanton v. Stanton, 421 U. S. 7 (1975). Our cases have held, however, that the traditional minimum rationality test takes on a somewhat "sharper focus" when gender-based classifications are challenged. See Craig v. Boren, 429 U. S. 190 , 429 U. S. 210 n.* (1976) (POWELL, J., concurring). In Reed v. Reed, 404 U. S. 71 (1971), for example, the Court stated that a gender-based classification will be upheld if it Page 450 U. S. 469 bears a "fair and substantial relationship" to legitimate state ends, while in Craig v. Boren, supra at 429 U. S. 197 , the Court restated the test to require the classification to bear a "substantial relationship" to "important governmental objectives." Underlying these decisions is the principle that a legislature may not "make overbroad generalizations based on sex which are entirely unrelated to any differences between men and women or which demean the ability or social status of the affected class." Parham v. Hughes, 441 U. S. 347 , 441 U. S. 354 (1979) (plurality opinion of STEWART, J.). But because the Equal Protection Clause does not "demand that a statute necessarily apply equally to all persons" or require " things which are different in fact . . . to be treated in law as though they were the same,'" Rinaldi v. Yeager, 384 U. S. 305 , 384 U. S. 309 (1966), quoting Tigner v. Texas, 310 U. S. 141 , 310 U. S. 147 (1940), this Court has consistently upheld statutes where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances. Parham v. Hughes, supra; Califano v. Webster, 430 U. S. 313 (1977); Schlesinger v. Ballard, 419 U. S. 498 (1975); Kahn v. Shevin, 416 U. S. 351 (1974). As the Court has stated, a legislature may "provide for the special problems of women." Weinberger v. Wiesenfeld, 420 U. S. 636 , 420 U. S. 653 (1975). Applying those principles to this case, the fact that the California Legislature criminalized the act of illicit sexual intercourse with a minor female is a sure indication of its intent or purpose to discourage that conduct. [ Footnote 2 ] Precisely why the legislature desired that result is, of course, somewhat less clear. This Court has long recognized that "[i]nquiries into congressional motives or purposes are a hazardous matter," United States v. O'Brien, 391 U. S. 367 , 391 U. S. 383 -384 (1968); Palmer v. Thompson, 403 U. S. 217 , 403 U. S. 224 (1971), and the Page 450 U. S. 470 search for the "actual" or "primary" purpose of a statute is likely to be elusive. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 , 429 U. S. 265 (1977); McGinnis v. Royster, 410 U. S. 263 , 410 U. S. 276 -277 (1973). Here, for example, the individual legislators may have voted for the statute for a variety of reasons. Some legislators may have been concerned about preventing teenage pregnancies, others about protecting young females from physical injury or from the loss of "chastity," and still others about promoting various religious and moral attitudes towards premarital sex. The justification for the statute offered by the State and accepted by the Supreme Court of California, is that the legislature sought to prevent illegitimate teenage pregnancies. That finding, of course, is entitled to great deference. Reitman v. Mulkey, 387 U. S. 369 , 387 U. S. 373 -374 (1967). And although our cases establish that the State's asserted reason for the enactment of a statute may be rejected, if it "could not have been a goal of the legislation," Weinberger v. Wiesenfeld, supra at 420 U. S. 648 , n. 16, this is not such a case. We are satisfied not only that the prevention of illegitimate pregnancy is at least one of the "purposes" of the statute, but also that the State has a strong interest in preventing such pregancy. At the risk of stating the obvious, teenage pregnancies, which have increased dramatically over the last two decades, [ Footnote 3 ] have significant social, medical, and economic consequences for both the mother and her child, and the State. [ Footnote 4 ] Page 450 U. S. 471 Of particular concern to the State is that approximately half of all teenage pregnancies end in abortion. [ Footnote 5 ] And of those children who are born, their illegitimacy makes them likely candidates to become wards of the State. [ Footnote 6 ] We need not be medical doctors to discern that young men and young women are not similarly situated with respect to the problems and the risks of sexual intercourse. Only women may become pregnant, and they suffer disproportionately the profound physical, emotional, and psychological consequences of sexual activity. The statute at issue here Page 450 U. S. 472 protects women from sexual intercourse at an age when those consequences are particularly severe. [ Footnote 7 ] The question thus boils down to whether a State may attack the problem of sexual intercourse and teenage pregnancy directly by prohibiting a male from having sexual intercourse with a minor female. [ Footnote 8 ] We hold that such a statute is Page 450 U. S. 473 sufficiently related to the State's objectives to pass constitutional muster. Because virtually all of the significant harmful and inescapably identifiable consequences of teenage pregnancy fall on the young female, a legislature acts well within its authority when it elects to punish only the participant who, by nature, suffers few of the consequences of his conduct. It is hardly unreasonable for a legislature acting to protect minor females to exclude them from punishment. Moreover, the risk of pregnancy itself constitutes a substantial deterrence to young females. No similar natural sanctions deter males. A criminal sanction imposed solely on males thus serves to roughly "equalize" the deterrents on the sexes. We are unable to accept petitioner's contention that the statute is impermissibly underinclusive and must, in order to pass judicial scrutiny, be broadened so as to hold the female as criminally liable as the male. It is argued that this statute is not necessary to deter teenage pregnancy because a gender-neutral statute, where both male and female would be subject to prosecution, would serve that goal equally well. The relevant inquiry, however, is not whether the statute is drawn as precisely as it might have been, but whether the line chosen by the California Legislature is within constitutional limitations. Kahn v. Shevin, 416 U.S. at 3 416 U. S. 56 , n. 10. In any event, we cannot say that a gender-neutral statute would be as effective as the statute California has chosen to enact. The State persuasively contends that a gender-neutral statute would frustrate its interest in effective enforcement. Its view is that a female is surely less likely to report Page 450 U. S. 474 violations of the statute if she herself would be subject to criminal prosecution. [ Footnote 9 ] In an area already fraught with prosecutorial dificulties, we decline to hold that the Equal Protection Clause requires a legislature to enact a statute so broad that it may well be incapable of enforcement. [ Footnote 10 ] Page 450 U. S. 475 We similarly reject petitioner's argument that § 261.5 is impermissibly overbroad because it makes unlawful sexual intercourse with prepubescent females, who are, by definition, incapable of becoming pregnant. Quite apart from the fact that the statute could well be justified on the grounds that very young females are particularly susceptible to physical injury from sexual intercourse, see Rundlett v. Oliver, 607 F.2d 495 (CA1 1979), it is ludicrous to suggest that the Constitution requires the California Legislature to limit the scope of its rape statute to older teenagers and exclude young girls. There remains only petitioner's contention that the statute is unconstitutional as it is applied to him because he, like Sharon, was under 18 at the time of sexual intercourse. Petitioner argues that the statute is flawed because it presumes that, as between two persons under 18, the male is the culpable aggressor. We find petitioner's contentions unpersuasive. Contrary to his assertions, the statute does not rest on the assumption that males are generally the aggressors. It is, instead, an attempt by a legislature to prevent illegitimate teenage pregnancy by providing an additional deterrent for men. The age of the man is irrelevant, since young men are as capable as older men of inflicting the harm sought to be prevented. In upholding the California statute, we also recognize that this is not a case where a statute is being challenged on the grounds that it "invidiously discriminates" against females. Page 450 U. S. 476 To the contrary, the statute places a burden on males which is not shared by females. But we find nothing to suggest that men, because of past discrimination or peculiar disadvantages, are in need of the special solicitude of the courts. Nor is this a case where the gender classification is made "solely for . . . administrative convenience," as in Frontiero v. Richardson, 411 U. S. 677 , 411 U. S. 690 (1973) (emphasis omitted), or rests on "the baggage of sexual stereotypes" as in Orr v. Orr, 440 U.S. at 440 U. S. 283 . As we have held, the statute instead reasonably reflects the fact that the consequences of sexual intercourse and pregnancy fall more heavily on the female than on the male. Accordingly the judgment of the California Supreme Court is Affirmed. [ Footnote 1 ] The lower federal courts and state courts have almost uniformly concluded that statutory rape law are constitutional. See, e.g., Rundlett v. Oliver, 607 F.2d 495 (CA1 1979); Hall v. McKenzie, 537 F.2d 1232 (CA4 1976); Hall v. State, 365 So. 2d 1249 , 1252-1253 (Ala.App. 1978), cert. denied, 365 So. 2d 1253 (Ala.1979); State v. Gray, 122 Ariz. 445, 446-477, 595 P.2d 990 , 991-992 (1979); People v. Mackey, 46 Cal. App. 3d 755 , 760-761, 120 Cal. Rptr. 157, 160, cert. denied, 423 U.S. 951 (1975); People v. Salinas, 191 Colo. 171, 551 P.2d 703 (1976); State v. Brothers, 384 A.2d 402 (Del.Super.1978); In re W.E.P., 318 A.2d 286 , 289-290 (DC 1974); Barnes v. State, 244 Ga. 302, 303-304, 260 S.E.2d 40 , 41-42 (1979); State v. Drake, 219 N.W.2d 492 , 495-496 (Iowa 1974); State v. Bell, 377 So. 2d 303 (La.1979); State v. Rundlett, 391 A.2d 815 (Me.1978); Green v. State, 270 So. 2d 695 (Miss.1972); In re J.D.G., 498 S.W.2d 786 , 792-793 (Mo.1973); State v. Meloon, 116 N.H. 669, 366 A.2d 1176 (1976); State v. Thompson, 162 N.J.Super. 302, 392 A.2d 678 (1978); People v. Whidden, 51 N.Y.2d 457, 415 N.E.2d 927 (1980); State v. Wilson, 296 N.C. 298, 311-313, 250 S.E.2d 621 , 629-630 (1979); Olson v. State, 588 P.2d 1018 (Nev.1979); State v. Elmore, 24 Ore.App. 651, 546 P.2d 1117 (1976); State v. Ware, ___ R.I. ___ , 418 A.2d 1 (1980); Roe v. State, 584 S.W.2d 257, 259 (Tenn.Crim.App. 1979); Ex parte Groves, 571 S.W.2d 888 , 892-893 (Tex.Crim.App. 1978); Moore v. McKenzie, 236 S.E.2d 342 , 342 -343 (W.Va.1977); Flores v. State, 69 Wis.2d 509, 510-511, 230 N.W.2d 637 , 638 (1975). Contra, Navedo v. Preisser, 630 F.2d 636 (CA8 1980); United States v. Hicks, 625 F.2d 216 (CA9 1980); Meloon v. Helgemoe, 564 F.2d 602 (CA1 1977) (limited in Rundlett v. Oliver, supra ), cert. denied, 436 U.S. 950 (1978). [ Footnote 2 ] The statute was enacted as part of California's first penal code in 1850, 1850 Cal.Stats., ch. 99, § 47, p. 234, and recodified and amended in 1970. [ Footnote 3 ] In 1976, approximately one million 15-to-19-year-olds became pregnant, one-tenth of all women in that age group. Two-thirds of the pregnancies were illegitimate. Illegitimacy rates for teenagers (births per 1,000 unmarried females ages 14 to 19) increased 75% for 14-to-17-year-olds between 1961 and 1974 and 33% for 18-to-19-year-olds. Alan Guttmacher Institute, 11 Million Teenagers 10, 13 (1976); C. Chilman, Adolescent Sexuality In a Changing American Society 195 (NIH Pub. No. 80-1426, 1980). [ Footnote 4 ] The risk of maternal death is 60% higher for a teenager under the age of 15 than for a women in her early twenties. The risk is 13% higher for 15-to-19-year-olds. The statistics further show that most teenage mothers drop out of school and face a bleak economic future. See, e.g., 11 Million Teenagers, supra at 23, 25; Bennett & Bardon, The Effects of a School Program On Teenager Mothers and Their Chil&ren, 47 Am.J.Orthopsychiatry 671 (1977); Phipps-Yonas, Teenage Pregnancy and Motherhood, 50 Am.J.Orthopsychiatry 403, 414 (1980). [ Footnote 5 ] This is because teenagers are disproportionately likely to seek abortions. Center for Disease Control, Abortion Surveillance 1976, pp. 22-24 (1978). In 1978, for example, teenagers in California had approximately 54,000 abortions and 53,800 live births. California Center for Health Statistics, Reproductive Health Status of California Teenage Women 1, 23 (Mar.1980). [ Footnote 6 ] The policy and intent of the California Legislature evinced in other legislation buttresses our view that the prevention of teenage pregnancy is a purpose of the statute. The preamble to the Pregnancy Freedom of Choice Act, for example, states: "The legislature finds that pregnancy among unmarried persons under 21 years of age constitutes an increasing social problem in the State of California." Cal.Welf. & Inst.Code Ann. § 16145 (West 1980). Subsequent to the decision below, the California Legislature considered and rejected proposals to render § 261.5 gender neutral, thereby ratifying the judgment of the Galifornia Supreme Court. That is enough to answer petitioner's contention that the statute was the " accidental byproduct of a traditional way of thinking about females.'" Califano v. Webster, 430 U. S. 313 , 430 U. S. 320 (1977) (quoting Califano v. Goldfarb, 430 U. S. 199 , 430 U. S. 223 (1977) (STEVENS, J., concurring in judgment)). Certainly this decision of the California Legislature is as good a source as is this Court in deciding what is "current" and what is "outmoded" in the perception of women. [ Footnote 7 ] Although petitioner concedes that the State has a "compelling" interest in preventing teenage pregnancy, he contends that the "true" purpose of § 261.5 is to protect the virtue and chastity of young women. As such, the statute is unjustifiable because it rests on archaic stereotypes. What we have said above is enough to dispose of that contention. The question for us -- and the only question under the Federal Constitution -- is whether the legislation violates the Equal Protection Clause of the Fourteenth .mendment, not whether its supporters may have endorsed it for reasons no longer generally accepted. Even if the preservation of female chastity were one of the motives of the statute, and even if that motive be impermissible, petitioner's argument must fail because "[i]t is a familiar practice of constitutional law that this court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive." United States v. O'Brien, 391 U. S. 367 , 391 U. S. 383 (1968). In Orr v. Orr, 440 U. S. 268 (1979), for example, the Court rejected one asserted purpose as impermissible, but then considered other purposes to determine if they could justify the statute. Similarly, in Washington v. Davis, 426 U. S. 229 , 426 U. S. 243 (1976), the Court distinguished Palmer v. Thompson, 403 U. S. 217 (1971), on the grounds that the purposes of the ordinance there were not open to impeachment by evidence that the legislature was actually motivated by an impermissible purpose. See also Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 , 429 U. S. 270 , n. 21 (1977); Mobile v. Bolden, 446 U. S. 55 , 446 U. S. 91 (1980) (STEVENS, J., concurring in judgment). [ Footnote 8 ] We do not understand petitioner to question a State's authority to make sexual intercourse among teenagers a criminal act, at least on a gender-neutral basis. In Carey v. Population Services International, 431 U. S. 678 , 431 U. S. 694 , n. 17 (1977) (plurality opinion of BRENNAN, J.), four Members of the Court assumed for the purposes of that case that a State may regulate the sexual behavior of minors, while four other Members of the Court more emphatically stated that such regulation would be permissible. Id. at 431 U. S. 702 , 431 U. S. 703 (WHITE, J., concurring in part and concurring in result); id. at 431 U. S. 705 -707, 431 U. S. 709 (POWELL, J., concurring in part and concurring in judgment); id. at 431 U. S. 713 (STEVENS, J., concurring in part and concurring in judgment); id. at 431 U. S. 718 (REHNQUIST, J., dissenting). The Court has long recognized that State has even broader authority to protect the physical, mental, and moral wellbeing of its youth than of its adults. See, e.g., Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52 , 428 U. S. 72 -74 (1976); Ginsberg v. New York, 390 U. S. 629 , 390 U. S. 639 -640 (1968); Prince v. Massachusetts, 321 U. S. 158 , 321 U. S. 170 (1944). [ Footnote 9 ] Petitioner contends that a gender-neutral statute would not hinder prosecutions because the prosecutor could take into account the relative burdens on females and males and generally only prosecute males. But to concede this is to concede all. If the prosecutor, in exercising discretion, will virtually always prosecute just the man and not the woman, we do not see why it is impermissible for the legislature to enact a statute to the same effect. [ Footnote 10 ] The question whether a statute is substantially related to its asserted goals is, at best, an opaque one. It can be plausibly argued that a gender-neutral statute would produce fewer prosecutions than the statute at issue here. See STEWART, J., concurring, post at 450 U. S. 481 , n. 13. JUSTICE BRENNAN's dissent argues, on the other hand, that "even assuming that a gender-neutral statute would be more difficult to enforce, . . . [c]ommon sense . . . suggests that a gender-neutral statutory rape law is potentially a greater deterrent of sexual activity than a gender-based law, for the simple reason that a gender-neutral law subjects both men and women to criminal sanctions, and thus arguably has a deterrent effect on twice as many potential violators." Post at 450 U. S. 493 -494 (emphasis deleted). Where such differing speculations as to the effect of a statute are plausible, we think it appropriate to defer to the decision of the California Supreme Court, "armed as it was with the knowledge of the facts and circumstances concerning the passage and potential impact of [the statute], and familiar with the milieu in which that provision would operate." Reitman v. Mulkey, 387 U. S. 369 , 387 U. S. 378 -379 (1967). It should be noted that two of the three cases relied upon by JUSTICE BRENNAN's dissent are readily distinguishable from the instant one. See post at 450 U. S. 490 , n. 3. In both Navedo v. Preisser, 630 F.2d 636 (CA8 1980), and Meloon v. Helgemoe, 564 F.2d 602 (CA1 1977), cert. denied, 436 U.S. 950 (1978), the respective governments asserted that the purpose of the statute vas to protect young women from physical injury. Both courts rejected the justification on the grounds that there had been no showing that young females are more likely than males to suffer physical injury from sexual intercourse. They further held, contrary to our decision, that pregnancy prevention was not a "plausible" purpose of the legislation. Thus, neither court reached the issue presented here, whether the statute is substantially related to the prevention of teenage pregnancy. Significantly, Meloon has been severely limlted by Rundlett v. Oliver, 607 F.2d 495 (CA1 1979), where the court upheld a statutory rape law on the ground that the State had shown that sexual intercourse physically injures young women more than males. Here, of course, even JUSTICE BRENNAN's dissent does not dispute that young women suffer disproportionately the deleterious consequences of illegitimate pregnancy. JUSTICE STEWART, concurring. Section 261.5, on its face, classifies on the basis of sex. A male who engages in sexual intercourse with an underage female who is not his wife violates the statute; a female who engages in sexual intercourse with an underage male who is not her husband does not. [ Footnote 2/1 ] The petitioner contends that this state law, which punishes only males for the conduct in question, violates his Fourteenth Amendment right to the equal protection of the law. The Court today correctly rejects that contention. A At the outset, it should be noted that the statutory discrimination, when viewed as part of the wider scheme of California law, is not as clearcut as might at first appear. Females are not freed from criminal liability in California for engaging in sexual activity that may be harmful. It is unlawful, for example, for any person, of either sex, to molest, annoy, or contribute to the delinquency of anyone under 18 years of Page 450 U. S. 477 age. [ Footnote 2/2 ] All persons are prohibited from committing "any lewd or lascivious act," including consensual intercourse, with a child under 14. [ Footnote 2/3 ] And members of both sexes may be convicted for engaging in deviant sexual acts with anyone under 18. [ Footnote 2/4 ] Finally, females may be brought within the proscription of § 261.5 itself, since a female may be charged with aiding and abetting its violation. [ Footnote 2/5 ] Section 261.5 is thus but one part of a broad statutory scheme that protects all minors from the problems and risks attendant upon adolescent sexual activity. To be sure, § 261.5 creates an additional measure of punishment for males who engage in sexual intercourse with females between the ages of 14 and 17. [ Footnote 2/6 ] The question then is whether the Constitution prohibits a state legislature from imposing this additional sanction on a gender-specific basis. B The Constitution is violated when government, state or federal, invidiously classifies similarly situated people on the basis of the immutable characteristics with which they were Page 450 U. S. 478 born. Thus, detrimental racial classifications by government always violate the Constitution, for the simple reason that, so far as the Constitution is concerned, people of different races are always similarly situated. See Fullilove v. Klutznick, 448 U. S. 448 , 448 U. S. 522 (dissenting opinion); McLaughlin v. Florida, 379 U. S. 184 , 379 U. S. 198 (concurring opinion); Brown v. Board of Ed., 347 U. S. 483 ; Plessy v. Ferguson, 163 U. S. 537 , 163 U. S. 552 (dissenting opinion). By contrast, while detrimental gender classifications by government often violate the Constitution, they do not always do so, for the reason that there are differences between males and females that the Constitution necessarily recognizes. In this case, we deal with the most basic of these differences: females can become pregnant as the result of sexual intercourse; males cannot. As was recognized in Parham v. Hughes, 441 U. S. 347 , 441 U. S. 354 , "a State is not free to make overbroad generalizations based on sex which are entirely unrelated to any differences between men and women or which demean the ability or social status of the affected class." Gender-based classifications may not be based upon administrative convenience, or upon archaic assumptions about the proper roles of the sexes. Craig v. Boren, 429 U. S. 190 ; Frontiero v. Richardson, 411 U. S. 677 ; Reed v. Reed, 404 U. S. 71 . But we have recognized that, in certain narrow circumstances, men and women are not similarly situated; in these circumstances, a gender classification based on clear differences between the sexes is not invidious, and a legislative classification realistically based upon those differences is not unconstitutional. See Parham v. Hughes, supra; Califano v. Webster, 430 U. S. 313 , 430 U. S. 316 -317; Schlesinger v. Ballard, 419 U. S. 498 ; cf. San Antonio Independent School Dist v. Rodriguez, 411 U. S. 1 , 411 U. S. 59 (concurring opinion). "[G]ender-based classifications are not invariably invalid. When men and women are not, in fact, similarly situated in the area covered by the legislation in question, the Equal Protection Clause is not violated." Caban v. Mohammed, 441 U. S. 380 , 441 U. S. 398 (dissenting opinion). Page 450 U. S. 479 Applying these principles to the classification enacted by the California Legislature, it is readily apparent that § 261.5 does not violate the Equal Protection Clause. Young women and men are not similarly situated with respect to the problems and risks associated with intercourse and pregnancy, and the statute is realistically related to the legitimate state purpose of reducing those problems and risks. C As the California Supreme Court's catalog shows, the pregnant unmarried female confronts problems more numerous and more severe than any faced by her male partner. [ Footnote 2/7 ] She alone endures the medical risks of pregnancy or abortion. [ Footnote 2/8 ] She suffers disproportionately the social, educational, and emotional consequences of pregnancy. [ Footnote 2/9 ] Recognizing this disproportion, Page 450 U. S. 480 California has attempted to protect teenage females by prohibiting males from participating in the act necessary for conception. [ Footnote 2/10 ] The fact that males and females are not similarly situated with respect to the risks of sexual intercourse applies with the same force to males under 18 as it does to older males. The risk of pregnancy is a significant deterrent for unwed young females that is not shared by unmarried males, regardless of their age. Experienced observation confirms the common sense notion that adolescent males disregard the possibility of pregnancy far more than do adolescent females. [ Footnote 2/11 ] And to the extent that § 261.5 may punish males for intercourse with prepubescent females, that punishment is justifiable because of the substantial physical risks for prepubescent females that are not shared by their male counterparts. [ Footnote 2/12 ] Page 450 U. S. 481 D The petitioner argues that the California Legislature could have drafted the statute differently, so that its purpose would be accomplished more precisely. "But the issue, of course, is not whether the statute could have been drafted more wisely, but whether the lines chosen by the . . . [l]egislature are within constitutional limitations." Kahn v. Shevin, 416 U. S. 351 , 416 U. S. 356 , n. 10. That other States may have decided to attack the same problems more broadly, with gender-neutral statutes, does not mean that every State is constitutionally compelled to do so. [ Footnote 2/13 ] E In short, the Equal Protection Clause does not mean that the physiological differences between men and women must be disregarded. While those differences must never be permitted to become a pretext for invidious discrimination, no such discrimination is presented by this case. The Constitution surely does not require a State to pretend that demonstrable differences between men and women do not really exist. [ Footnote 2/1 ] But see 450 U.S. 464 fn2/5|>n. 5 and accompanying text, infra. [ Footnote 2/2 ] See Cal.Penal Code Ann. §§ 272, 647a (West Supp. 1981). [ Footnote 2/3 ] Cal.Penal Code Ann. § 288 (West Supp. 1981). See People v. Dontanville, 10 Cal. App. 3d 783 , 796, 89 Cal. Rptr. 172 , 180 (2d Dist.). [ Footnote 2/4 ] See Cal.Penal Code Ann. §§ 286(b)(1), 288a(b)(1) (West Supp. 1981) . [ Footnote 2/5 ] See Cal.Penal Code Ann. § 31 (West 1970); People v. Haywood, 131 Cal. App. 2d 259 , 280 P.2d 180 (2d Dist.); People v. Lewis, 113 Cal. App. 2d 468 , 248 P.2d 461 (1st Dist.). According to statistics maintained by the California Department of Justice Bureau of Criminal Statistics, approximately 14% of the juveniles arrested for participation in acts made unlawful by § 261.5 between 1975 and 1979 were females. Moreover, an underage female who is as culpable as her male partner, or more culpable, may be prosecuted as a juvenile delinquent. Cal.Welf. & Inst.Code Ann. § 602 (West Supp. 1981); In re Gladys R., 1 Cal. 3d 855 , 867-869, 464 P.2d 127, 136-138. [ Footnote 2/6 ] Males and females are equally prohibited by § 288 from sexual intercourse with minors under 14. Compare Cal.Penal Code Ann. § 288 (West Supp. 1981) with Cal.Penal Code Ann. §§ 18, 264 (West Supp. 1981). [ Footnote 2/7 ] The court noted that, from 1971 through 1976, 83.6% of the 4,860 children born to girls uder 15 in California were illegitimate, as were 51% of those born to girls 15 to 17. The court also observed that, while accounting for only 21% of California pregnancies in 1976, teenagers accounted for 34.7% of legal abortions. See ante at 450 U. S. 470 , n. 3. [ Footnote 2/8 ] There is also empirical evidence that sexual abuse of young females is a more serious problem than sexual abuse of young males. For example, a review of five studies found that 88% of sexually abused minors were female. Jaffe, Dynneson, & ten Bensel, Sexual Abuse of Children, 129 Am.J. of Diseases of Children 689, 690 (1975). Another study, involving admissions to a hospital emergency room over a 3-year period, reported that 86 of 100 children examined for sexual abuse were girls. Orr & Prietto, Emergency Management of Sexually Abused Children, 133 Am.J. of Diseased Children 630 (1979). See also State v. Craig, 169 Mont. 150, 156-157, 545 P.2d 649, 653; Sarafino, An Estimate of Nationwide Incidence of Sexual Offenses Against Children, 58 Child Welfare 127, 131 (1979). [ Footnote 2/9 ] Most teenage mothers do not finish high school, and are disadvantaged economically thereafter. See Moore, Teenage Childbirth and Welfare Dependency, 10 Family Planning Perspectives 233-235 (1978). The suicide rate for teenage mothers is seven times greater than that for teenage girls without children. F. Nye, School-Age Parenthood (Wash.State U.Ext.Bull. No. 667) 8 (1976). And 60% of adolescent mothers aged 15 to 17 are on welfare within two to five years of the birth of their children. Teenage Pregnancy, Everybody's Problem 3-4 (DHEW Publication (HSA) No. 77-5619). [ Footnote 2/10 ] Despite the increased availability of contraceptives and sex education, the pregnancy rates for young women are increasing. See Alan Guttmacher Institute, 11 Million Teenagers 12 (1976). See generally C. Chilman, Adolescent Sexuality in a Changing American Society (NIH Pub. No. 80-1426, 1980). The petitioner contends that the statute is overinclusive because it does not allow a defense that contraceptives were used, or that procreation was for some other reason impossible. The petitioner does not allege, however, that he used a contraceptive, or that pregnancy could not have resulted from the conduct with which he was charged. But even assuming the petitioner's standing to raise the claim of overbreadth, it is clear that a statute recognizing the defenses he suggests would encounter difficult, if not impossible, problems of proof. [ Footnote 2/11 ] See, e.g., Phipps-Yonas, Tecnage Pregnancy and Motherhood, 50 Am.J.Orthopsychiatry 403, 412 (1980). See also State v. Rundlett, 391 A.2d 815 , 819, n. 13, 822 (Me.); Rundlett v. Oliver, 607 F.2d 495, 502 (CA1). [ Footnote 2/12 ] See Barnes v. State, 244 Ga. 302, 260 S.E.2d 40 ; see generally Orr & Prietto, supra; Jaffee, Dynneson, & ten Bensel, supra; Chilman, supra. [ Footnote 2/13 ] The fact is that a gender-neutral statute would not necessarily lead to a closer fit with the aim of reducing the problems associated with teenage pregnancy. If both parties were equally liable to prosecution, a female would be far less likely to complain; the very complaint would be self-incriminating. Accordingly, it is possible that a gender-neutral statute would result in fewer prosecutions than the one before us. In any event, a state legislature is free to address itself to what it believes to be the most serious aspect of a broader problem. "[T]he Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all." Dandridge v. Williams, 397 U. S. 471 , 397 U. S. 486 -487; see also Williamson v. Lee Optical Co., 348 U. S. 483 . JUSTICE BLACKMUN, concurring in the judgment. It is gratifying that the plurality recognizes that, "[a]t the risk of stating the obvious, teenage pregnancies . . . have increased dramatically over the last two decades," and "have significant social, medical, and economic consequences for both Page 450 U. S. 482 the mother and.her child, and the State." Ante at 450 U. S. 470 (footnotes omitted). There have been times when I have wondered whether the Court was capable of this perception, particularly when it has struggled with the different but not unrelated problems that attend abortion issues. See, for example, the opinions (and the dissenting opinions) in Beal v. Doe, 432 U. S. 438 (1977); Maher v. Roe, 432 U. S. 464 (1977); Poelker v. Doe, 432 U. S. 519 (1977); Harris v. McRae, 448 U. S. 297 (1980); Williams v. Zbaraz, 448 U. S. 358 (1980); and today's opinion in H.L. v. Matheson, ante p. 450 U. S. 389 . Some might conclude that the two uses of the criminal sanction -- here flatly to forbid intercourse in order to forestall teenage pregnancies, and, in Matheson, to prohibit a physician's abortion procedure except upon notice to the parents of the pregnant minor -- are vastly different proscriptions. But the basic social and privacy problems are much the same. Both Utah's statute in Matheson and California's statute in this case are legislatively created tools intended to achieve similar ends and addressed to the same societal concerns: the control and direction of young people's sexual activities. The plurality opinion impliedly concedes as much when it notes that "approximately half of all teenage pregnancies end in abortion," and that "those children who are born" are "likely candidates to become wards of the State," Ante at 450 U. S. 471 , and n. 6. I, however, cannot vote to strike down the California statutory rape law, for I think it is a sufficiently reasoned and constitutional effort to control the problem at its inception. For me, there is an important difference between this state action and a State's adamant and rigid refusal to face, or even to recognize, the "significant . . consequences" -- to the woman -- of a forced or unwanted conception. I have found it difficult to rule constitutional, for example, state efforts to block, at that later point, a woman's attempt to deal with the enormity of the problem confronting her, just as I have rejected state efforts to prevent women from rationally taking Page 450 U. S. 483 steps to prevent that problem from arising. See, e.g., Carey v. Population Services International, 431 U. S. 678 (1977). See also Griswold v. Connecticut, 381 U. S. 479 (1965). In contrast, I am persuaded that, although a minor has substantial privacy rights in intimate affairs connected with procreation, California's efforts to prevent teenage pregnancy are to be viewed differently from Utah's efforts to inhibit a woman from dealing with pregnancy once it has become an inevitability. Craig v. Boren, 429 U. S. 190 (1976), was an opinion which, in large part, I joined, id. at 429 U. S. 214 . The plurality opinion in the present case points out, ante at 450 U. S. 468 -469, the Court's respective phrasings of the applicable test in Reed v. Reed, 404 U. S. 71 , 404 U. S. 76 (1971), and in Craig v. Boren, 429 U.S. at 429 U. S. 197 . I vote to affirm the judgment of the Supreme Court of California and to uphold the State's gender-based classification on that test and as exemplified by those two cases and by Schlesinger v. Ballard, 419 U. S. 498 (1975); Weinberger v. Wiesenfeld, 420 U. S. 636 (1975); and Kahn v. Shevin, 416 U. S. 351 (1974). I note also that § 261.5 of the California Penal Code is just one of several California statutes intended to protect the juvenile. JUSTICE STEWART, in his concurring opinion, appropriately observes that § 261.5 is "but one part of a broad statutory scheme that protects all minors from the problems and risks attendant upon adolescent sexual activity." Ante at 450 U. S. 477 . I think too that it is only fair, with respect to this particular petitioner, to point out that his partner, Sharon, appears not to have been an unwilling participant in at least the initial stages of the intimacies that took place the night of June 3, 1978. * Petitioner's and Sharon's nonacquaintance Page 450 U. S. 484 with each other before the incident: their drinking; their withdrawal from the others of the group; their foreplay, in which she willingly participated and seems to have encouraged; Page 450 U. S. 485 and the closeness of their ages (a difference of only one year and 18 days) are factors that should make this case an unattractive one to prosecute at all, and especially to prosecute Page 450 U. S. 486 as a felony, rather than as a misdemeanor chargeable under § 261.5. But the State has chosen to prosecute in that Page 450 U. S. 487 manner, and the facts, I reluctantly conclude, may fit the crime. Page 450 U. S. 488 * Sharon at the preliminary hearing testified as follows: "Q [By the Deputy District Attorney]. On June the 4th, at approximately midnight -- midnight of June the 3rd, were you in Rohnert Park?" "A [by Sharon]. Yes." "Q. Is that in Sonoma County?" "A. Yes." "Q. Did anything unusual happen to you that night in Rohnert Park?" "A. Yes." "Q. Would you briefly describe what happened that night? Did you see the defendant that night in Rohnert Park?" "A. Yes." "Q. Where did you first meet him?" "A. At a bus stop." "Q. Was anyone with you?" "A. My sister." "Q. Was anyone with the defendant?" "A. Yes." "Q. How many people were with the defendant?" "A. Two." "Q. Now, after you met the defendant, what happened?" "A. We walked down to the railroad tracks." "Q. What happened at the railroad tracks?" "A. We were drinking at the railroad tracks and we walked over to this bush and he started kissing me and stuff, and I was kissing him back, too, at first. Then, I was telling him to stop -- " "Q. Yes." "A. -- and I was telling him to slow down and stop. He said, 'Okay, okay.' But then he just kept doing it. He just kept doing it, and then my sister and two other guys came over to where we were and my sister said -- told me to get up and come home. And then I didn't -- " "Q. Yes." "A. -- and then my sister and -- " "Q. All right." "A. -- David, one of the boys that were there, started walking home, and we stayed there, and then later -- " "Q. All right." "A. -- Bruce left Michael, you know." "The Court: Michael being the defendant?" "The Witness: Yeah. We was laying there and we were kissing each other, and then he asked me if I wanted to walk him over to the park; so we walked over to the park and we sat down on a bench and then he started kissing me again, and we were laying on the bench. And he told me to take my pants off." "I said, 'No,' and I was trying to get up and he hit me back down on the bench, and then I just said to myself, 'Forget it,' and I let him do what he wanted to do, and he took my pants off and he was telling me to put my legs around him and stuff -- " "Q. Did you have sexual intercourse with the defendant?" "A. Yeah." "Q. He did put his penis into your vagina?" "A. Yes." "Q. You said that he hit you?" "A. Yeah." "Q. How did he hit you?" "A. He slugged me in the face." "Q. With what did he slug you?" "A. His fist." "Q. Where abouts in the face?" "A. On my chin." "Q. As a result of that, did you have any bruises or any kind of an injury?" "A. Yeah." "Q. What happened?" "A. I had bruises." "The Court: Did he hit you one time or did he hit you more than once?" "The Witness: He hit me about two or three times." * * * * "Q. Now, during the course of that evening, did the defendant ask you your age?" "A. Yeah." "Q. And what did you tell him?" "A. Sixteen." "Q. Did you tell him you were sixteen?" "A. Yes." "Q. Now, you said you had been drinking, is that correct?" "A. Yes." "Q. Would you describe your condition as a result of the drinking?" "A. I was a little drunk." App. 20-23. CROSS-EXAMINATION "Q. Did you go off with Mr. M. away from the others?" "A. Yeah." "Q. Why did you do that?" "A. I don't know. I guess I wanted to." "Q. Did you have any need to go to the bathroom when you were there." "A. Yes." "Q. And what did you do?" "A. Me and my sister walked down the railroad tracks to some bushes and went to the bathroom." "Q. Now, you and Mr. M., as I understand it, went off into the bushes, is that correct?" "A. Yes." "Q. Okay. And what did you do when you and Mr. M. were there in the bushes?" "A. We were kissing and hugging." "Q. Were you sitting up?" "A. We were laying down." "Q. You were lying down. This was in the bushes?" "A. Yes." "Q. How far away from the rest of them were you?" "A. They were just bushes right next to the railroad tracks. We just walked off into the bushes; not very far." * * * * "Q. So your sister and the other two boys came over to where you were, you and Michael were, is that right?" "A. Yeah." "Q. What did they say to you, if you remember?" "A. My sister didn't say anything. She said, 'Come on, Sharon, let's go home.'" "Q. She asked you to go home with her?" "A. (Affirmative nod.)" "Q. Did you go home with her?" "A. No." "Q. You wanted to stay with Mr. M.?" "A. I don't know." "Q. Was this before or after he hit you?" "A. Before." * * * * "Q. What happened in the five minutes that Bruce stayed there with you and Michael?" "A. I don't remember." "Q. You don't remember at all?" "A. (Negative head shake.)" "Q. Did you have occasion at that time to kiss Bruce?" "A. Yeah." "Q, You did? You were kissing Bruce at that time?" "A. (Affirmative nod.)" "Q. Was Bruce kissing you?" "A. Yes." "Q. And were you standing up at this time?" "A. No, we were sitting down." "Q. Okay, so at this point in time, you had left Mr, M. and you were hugging and kissing with Bruce, is that right?" "A. Yeah." "Q. And you were sitting up." "A. Yes," "Q. Was your sister still there then?" "A. No. Yeah, she was at first" "Q. What was she doing?" "A. She was standing up with Michael and David," "Q. Yes. Was she doing anything with Michael and David?" "A. No, I don't think so." "Q. Whose idea was it for you and Bruce to kiss? Did you initiate that?" "A. Yes." "Q. What happened after Bruce left?" "A. Michael asked me if I wanted to go walk to the park." "Q. And what did you say?" "A. I said 'Yes.'" "Q. And then what happened?" "A. We walked to the park," * * * * "Q. How long did it take you to get to the park?" "A. About ten or fifteen minutes." "Q. And did you walk there?" "A. Yes." "Q. Did Mr. M. ever mention his name?" "A. Yes." Id. at 27-32. JUSTICE BRENNAN, with whom JUSTICES WHITE and MARSHALL join, dissenting. It is disturbing to find the Court so splintered on a case that presents such a straightforward issue: whether the admittedly gender-based classification in Cal.Penal Code Ann. 261.5 (West Supp. 1981) bears a sufficient relationship to the State's asserted goal of preventing teenage pregnancies to survive the "mid-level" constitutional scrutiny mandated by Craig v. Boren, 429 U. S. 190 (1976). [ Footnote 3/1 ] Applying the analytical framework provided by our precedents, I am convinced that there is only one proper resolution of this issue: the classification must be declared unconstitutional. I fear that the plurality opinion and JUSTICES STEWART and BLACKMUN reach the opposite result by placing too much emphasis on the desirability of achieving the State's asserted statutory goal -- prevention of teenage pregnancy -- and not enough emphasis on the fundamental question of whether the sex-based discrimination Page 450 U. S. 489 in the California statute is substantially related to the achievement of that goal. [ Footnote 3/2 ] II After some uncertainty as to the proper framework for analyzing equal protection challenges to statutes containing gender-based classifications, see ante at 450 U. S. 468 , this Court settled upon the proposition that a statute containin a gender-based classification cannot withstand constitutional challenge unless Page 450 U. S. 490 the classification is substantially related to the achievement of an important governmental objective. Kirchberg v. Feenstra, ante at 450 U. S. 459 ; Wengler v. Druggists Mutual Ins. Co., 446 U. S. 142 , 446 U. S. 150 (1980); Califano v. Westcott, 443 U. S. 76 , 443 U. S. 85 (1979); Caban v. Mohammed, 441 U. S. 380 , 441 U. S. 388 (1979); Orr v. Orr, 440 U. S. 268 , 440 U. S. 279 (1979); Califano v. Goldfarb, 430 U. S. 199 , 430 U. S. 210 -211 (1977); Califano v. Webster, 430 U. S. 313 , 430 U. S. 316 -317 (1977); Craig v. Boren, supra at 429 U. S. 197 . This analysis applies whether the classification discriminates against males or against females. Caban v. Mohammed, supra at 441 U. S. 394 ; Orr v. Orr, supra at 440 U. S. 278 -279; Craig v. Boren, supra, at 429 U. S. 204 . The burden is on the government to prove both the importance of its asserted objective and the substantial relationship between the classification and that objective. See Kirchberg v. Feenstra, ante at 450 U. S. 461 ; Wengler v. Druggists Mutual Ins. Co., supra at 446 U. S. 151 -152; Caban v. Mohammed, supra at 441 U. S. 393 ; Craig v. Boren, supra at 429 U. S. 204 . And the State cannot meet that burden without showing that a gender-neutral statute would be a less effective means of achieving that goal. Wengler v. Druggists Mutual Ins. Co., supra at 446 U. S. 151 -152; Orr v. Orr, supra, at 440 U. S. 281 , 283. [ Footnote 3/3 ] The State of California vigorously asserts that the "important governmental objective" to be served by § 261.5 is the prevention of teenage pregnancy. It claims that its statute furthers this goal by deterring sexual activity by males -- the class of persons it considers more responsible for causing those pregnancies. [ Footnote 3/4 ] But even assuming that prevention of teenage Page 450 U. S. 491 pregnancy is an important governmental objective and that it is, in fact, an objective of § 261.5, see infra, at 450 U. S. 491 -196, California still has the burden of proving that there are fewer teenage pregnancies under its gender-based statutory rape law than there would be if the law were gender-neutral. To meet this burden, the State must show that, because its statutory rape law punishes only males, and not females, it more effectively deters minor females from having sexual intercourse. [ Footnote 3/5 ] The plurality assumes that a gender-neutral statute would be less effective than § 261.5 in deterring sexual activity because a gender-neutral statute would create significant enforcement problems. The plurality thus accepts the State's assertion that "a female is surely less likely to report violations of the statute if she herself would be subject to crimina prosecution. Page 450 U. S. 492 In an area already fraught with prosecutorial difficulties, we decline to hold that the Equal Protection Clause requires a legislature to enact a statute so broad that it may well be incapable of enforcement." Ante at 450 U. S. 473 -474 (footnotes omitted). However, a State's bare assertion that its gender-based statutory classification substantially furthers an important governmental interest is not enough to meet its burden of proof under Craig v. Boren. Rather, the State must produce evidence that will persuade the court that its assertion is true. See Craig v. Boren, 429 U.S. at 429 U. S. 200 -204. The State has not produced such evidence in this case. Moreover, there are at least two serious flaws in the State's assertion that law enforcement problems created by a gender-neutral statutory rape law would make such a statute less effective than a gender-based statute in deterring sexual activity. First, the experience of other jurisdictions, and California itself, belies the plurality's conclusion that a gender-neutral statutory rape law "may well be incapable of enforcement." There are now at least 37 States that have enacted gender-neutral statutory rape laws. Although most of these laws protect young persons (of either sex) from the sexual exploitation of older individuals, the laws of Arizona, Florida, and Illinois permit prosecution of both minor females and minor males for engaging in mutual sexual conduct. [ Footnote 3/6 ] California has introduced no evidence that those States have been handicapped Page 450 U. S. 493 by the enforcement problems the plurality finds so persuasive. [ Footnote 3/7 ] Surely, if those States could provide such evidence, we might expect that California would have introduced it. In addition, the California Legislature in recent years has revised other sections of the Penal Code to make them gender-neutral. For example, Cal.Penal Code Ann. §§ 286(b)(1) and 288a(b)(1) (West Supp. 1981), prohibiting sodomy and oral copulation with a "person who is under 18 years of age," could cause two minor homosexuals to be subjected to criminal sanctions for engaging in mutually consensual conduct. Again, the State has introduced no evidence to explain why a gender-neutral statutory rape law would be any more difficult to enforce than those statutes. The second flaw in the State's assertion is that, even assuming that a gender-neutral statute would be more difficult to enforce, the State has still not shown that those enforcement problems would make such a statute less effective than a gender-based statute in deterring minor females from engaging in sexual intercourse. [ Footnote 3/8 ] Common sense, however, suggests Page 450 U. S. 494 that a gende-neutral statutory rape law is potentially a rgeater deterrent of sexual activity than a gender-based law, for the simple reason that a gender-neutral law subjects both men and women to criminal sanctions, and thus arguably has a deterrent effect on twice as many potential violators. Even if fewer persons were prosecuted under the gender-neutral law, as the State suggests, it would still be true that twice as many persons would be subject to arrest. The State's failure to prove that a gender-neutral law would be a less effective deterrent than a gender-based law, like the State's failure to prove that a gender-neutral law would be difficult to enforce, should have led this Court to invalidate § 261.5. III Until very recently, no California court or commentator had suggested that the purpose of California's statutory rape law was to protect young women from the risk of pregnancy. Indeed, the historical development of § 261.5 demonstrates that the law was initially enacted on the premise that young women, in contrast to young men, were to be deemed legally incapable of consenting to an act of sexual intercourse. [ Footnote 3/9 ] Because Page 450 U. S. 495 their chastity was considered particularly precious, those young women were felt to be uniquely in need of the State's protection. [ Footnote 3/10 ] In contrast, young men were assumed to Page 450 U. S. 496 be capable of making such decisions for themselves; the law therefore did not offer them any special protection. It is perhaps because the gender classifiation in California's statutory rape law was initially designed to further these outmoded sexual stereotypes, rather than to reduce the incidence of teenage pregnancies, that the State has been unable to demonstrate a substantial relationship beween the classification and its newly asserted goal. Cf. Califano v. Goldfarb, 430 U.S. at 430 U. S. 223 (STEVENS, J., concurring in judgment). But whatever the reason, the State has not shown that Cal.Penal Cod § 261.5 is any more effective than a gender-neutral law would be in deterring minor females from engaging in sexual intercourse. It has therefore not met its burden of proving that the statutory classification is substantially related to the achievement of its asserted goal. I would hold that § 261.5 violates the Equal Protection Clause of the Fourteenth Amendment, and I would reverse the judgment of the California Supreme Court. [ Footnote 3/1 ] The California Supreme Court acknowledged, and indeed the parties do not dispute, that Cal.Penal Code Ann. § 261.5 (West Supp. 1981) discriminates on the basis of sex. Ante at 450 U. S. 467 . Because petitioner is male, he faces criminal felony charges and a possible prison term, while his female partner remains immune from prosecution. The gender of the participants, not their relative responsibility, determines which of them is subject to criminal sanctions under § 2615 As the California Supreme Court stated in People v. Hernandez, 61 Cal. 2d 529 , 531, 393 P.2d 673, 674 (1964) (footnote omitted): "[E]ven in circumstances where a girl's actual comprehension contradicts the law's presumption [that a minor female is too innocent and naive to understand the implications and nature of her act], the male is deemed criminally responsible for the act, although himself young and naive and responding to advances which may have been made to him." [ Footnote 3/2 ] None of the three opinions upholding the California statute fairly applies the equal protection analysis this Court has so carefully developed since Craig v. Boren, 429 U. S. 190 (1976). The plurality opinion, for example, focusing on the obvious and uncontested fact that only females can become pregnant, suggests that the statutory gender discrimination, rather than being invidious, actually ensures equality of treatment. Since only females are subject. to a risk of pregnancy, the plurality opinion concludes that "[a] criminal sanction imposed solely on males . . . serves to roughly equalize' the deterrents on the sexes." Ante at 450 U. S. 473 . JUSTICE STEWART adopts a similar approach. Recognizing that "females can become pregnant as the result of sexual intercourse; males cannot," JUSTICE STEWART concludes that "[y]oung women and men are not similarly situated with respect to the problems and risks associated with intercourse and pregnancy," and therefore § 261.5 "is realistically related to the legitimate state purpose of reducing those problems and risks" (emphasis added). Ante at 450 U. S. 478 , 450 U. S. 479 . JUSTICE BLACKMUN, conceding that some limits must. be placed on a State's power to regulate "the control and direction of young people's sexual activities," also finds the statute constitutional. Ante at 450 U. S. 482 . He distinguishes the State's power in the abortion context, where the pregnancy has already occurred, from its power in the present context, where the "problem [is] at its inception." He then concludes, without explanation, that "the California statutory rape law . . . is a sufficiently reasoned and constitutional effort to control the problem at its inception." Ibid. All three of these approaches have a common failing. They overlook the fact that the State has not met its hurden of proving that the gender discrimination in § 261.5 is substantially related to the achievement of the State's asserted statutory goal. My Brethren seem not to recognize that California has the burden of proving that a gender-neutral statutory rape law would be less effective than § 261.5 in deterring sexual activity leading to teenage pregnancy. Because they fail to analyze the issue in these terms, I believe they reach an unsupportable result. [ Footnote 3/3 ] Gender-based statutory rape laws were struck down in Navedo v. Preisser, 630 F.2d 636 (CA8 1980), United State v. Hicks, 625 F.2d 216 (CA9 1980), and Meloon v. Helgemoe, 564 F.2d 602 (CA1 1977), cert. denied, 436 U.S. 950 (1978), precisely because the government failed to meet this burden of proof. [ Footnote 3/4 ] In a remarkable display of sexual stereotyping, the California Supreme Court stated: "The Legislature is well within its power in imposing criminal sanctions against males alone, because they are the only persons who may physiologically cause the result which the law properly seeks to avoid." 25 Cal. 3d 608 , 612, 601 P.2d 572, 575 (1979) (emphasis in original). [ Footnote 3/5 ] Petitioner has not questioned the State's constitutional power to achieve its asserted objective by criminalizing consensual sexual activity. However, I note that our cases would not foreclose such a privacy challenge. The State is attempting to reduce the incidence of teenage pregnancy by imposing criminal sanctions on those who engage in consensual sexual activity with minor females. We have stressed, however, that, "[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird, 405 U. S. 438 , 405 U. S. 453 (1972) (footnote omitted). Minors, too, enjoy a right of privacy in connection with decisions affecting procreation. Carey v. Population Services International, 431 U. S. 678 , 431 U. S. 693 (1977). Thus, despite the suggestion of the plurality to the contrary, ante at 450 U. S. 472 -473, n. 8, it is not settled that a State may rely on a pregnancy prevention justification to make consensual sexual intercourse among minors a criminal act. [ Footnote 3/6 ] See Ariz.Rev.Stat.Ann. § 13-1405 (1978); Fla.Stat. § 794.05 (1979); Ill.Rev.Stat., ch. 38, � 11-5 (1979). In addition, eight other States permit both parties to be prosecuted when one of the participants to a consensual act of sexual intercourse is under the age of 16. See Kan.Stat.Ann. § 21-3503 (1974); Mass.Gen.Laws Ann., ch. 265, § 23 (West Supp. 1981); Mich.Comp.Laws § 750.13 (1970); Mont.Code Ann. §§ 45-5-501 to 45-5-503 (1979); N.H.Rev.Stat. § 632-A:3 (Supp. 1979); Tenn.Code Ann. § 39-3705 (4) (Supp. 1979); Utah Code Ann. § 76-5-401 (Supp. 1979); Vt.Stat.Ann., Tit. 13, § 3252(3) (Supp. 1980). [ Footnote 3/7 ] There is a logical reason for this. In contrast to laws governing forcible rape, statutory rape laws apply to consensual sexual activity. Force is not an element of the crime. Since a woman who consents to an act of sexual intercourse is unlikely to report her partner to the police -- whether or not she is subject to criminal sanctions -- enforcement would not be undermined if the statute were to be made gender-neutral. See 450 U.S. 464 fn3/8|>n. 8, infra. [ Footnote 3/8 ] As it is, § 261.5 seems to be an ineffective deterrent of sexual activity. Cf. Carey v. Population Services International, supra at 431 U. S. 695 (substantial reason to doubt that limiting access to contraceptives will substantially discourage early sexual behavior). According to statistics provided by the State, an average of only 61 juvenile males and 352 adult males were arrested for statutory rape each year between 1975 and 1978. Brief for Respondent 19. During each of those years, there were approximately one million Californian girls between the ages of 13-17. Cal. Dept. of Finance, Population Projections for California Counties, 1975-2020, with Age/Sex Detail to 2000, Series 150 (1977). Although the record in this case does not indicate the incidence of sexual intercourse involving those girls during that period, the California State Department of Health estimates that there were almost 50,000 pregnancies among 13-to-17-year-old girls during 1976. Cal.Dept. of Health, Birth and Abortion Records, and Physician Survey of Office Abortions (1976). I think it is fair to speculate from this evidence that a comparison of the number of arrests for statutory rape in California with the number of acts of sexual intercourse involving minor females in that State would likely demonstrate to a male contemplating sexual activity with a minor female that his chances of being arrested are reassuringly low. I seriously question, therefore, whether § 261.5, as enforced, has a substantial deterrent effect . See Craig v. Boren, 429 U.S. at 429 U. S. 214 (STEVENS, J., concurring). [ Footnote 3/9 ] California's statutory rape law had its origins in the Statutes of Westminster enacted during the reign of Edward I at the close of the 13th century (3 Edw. 1, ch. 13 (1275); 13 Edw. 1, ch. 34 (1285)). The age of consent at that time was 12 years, reduced to 10 years in 1576 (18 Eliz. 1, ch. 7, § 4). This statute was part of the common law brought to the United States. Thus, when the first California penal statute was enacted, it contained a provision (1850 Cal.Stats., ch. 99, § 47, p. 234) that proscribed sexual intercourse with females under the age of 10. In 1889, the California statute was amended to make the age of consent 14 (1889 Cal.Stats., ch.191, § 1, p. 223). In 1897, the age was advanced to 16 (1897 Cal.Stats., ch. 139, § 1, p. 201). In 1913, it was fixed at 18, where it now remains (1913 Cal.Stats., ch. 122, § 1, p. 212). Because females generally have not reached puberty by the age of 10, it is inconceivable that a statute designed to prevent pregnancy would be directed at acts of sexual intercourse with females under that age. The only legislative history available, the draftsmen's notes to the Penal Code of 1872, supports the view that the purpose of California's statutory rape law was to protect those who were too young to give consent. The draftsmen explained that the "[statutory rape] provision embodies the well settled rule of the existing law; that a girl under ten years of age is incapable of giving any consent to an act of intercourse which can reduce it below the grade of rape." Code Commissioners' note, subd. 1, following Cal.Penal Code § 261, p. 111 (1st ed. 1872). There was no mention whatever of pregnancy prevention. See also Note, Forcible and Statutory Rape: An Exploration of the Operation and Objectives of the Consent Standard, 62 Yale L.J. 55, 74-76 (1952). [ Footnote 3/10 ] Past decisions of the California courts confirm that the law was designed to protect the State's young females from their own uninformed decisionmaking. In People v. Verdereen, 106 Cal. 211, 214-215, 39 P. 607, 608-609 (1895), for example, the California Supreme Court stated: "The obvious purpose of [the statutory rape law] is the protection of society by protecting from violation the virtue of young and unsophisticated girls. . . . It is the insidious approach and vile tampering with their persons that primarily undermines the virtue of young girls, and eventually destroys it; and the prevention of this, as much as the principal act, must undoubtedly have been the intent of the legislature." As recently as 1964, the California Supreme Court decided People v. Hernandez, 61 Cal. 2d at 531, 393 P.2d at 674, in which it stated that the under-age female "is presumed too innocent and naive to understand the implications and nature of her act. . . . The law's concern with her capacity or lack thereof to so understand is explained in part by a popular conception of the social, moral and personal values which are preserved by the abstinence from sexual indulgence on the part of a young woman. An unwise disposition of her sexual favor is deemed to do harm both to herself and the social mores by which the community's conduct patterns are established. Hence, the law of statutory rape intervenes in an effort to avoid such a disposition." It was only in deciding Michael M. that the California Supreme Court decided, for the first time in the 130-year history of the statute, that pregnancy prevention had become one of the purposes of the statute. JUSTICE STEVENS, dissenting. Local custom and belief -- rather than statutory laws of venerable but doubtful ancestry -- will determine the volume of sexual activity among unmarried teenagers. [ Footnote 4/1 ] The empirical Page 450 U. S. 497 evidence clted by the plurality demonstrates the futility of the notion that a statutory prohibition will significantly affect the volume of that activity or provide a meaningful solution to the problems created by it. [ Footnote 4/2 ] Nevertheless, as a matter of constitutional power, unlike my Brother BRENNAN, see ante at 450 U. S. 491 , n. 5, I would have no doubt about the validity of a state law prohibiting all unmarried teenagers from engaging in sexual intercourse. The societal interests in reducing the incidence of venereal disease and teenage pregnancy are sufficient, in my judgment, to justify a prohibition of conduct that increases the risk of those harms. [ Footnote 4/3 ] My conclusion that a nondiscriminatory prohibition would be constitutional does not help me answer the question whether a prohibition applicable to only half of the joint participants in the risk-creating conduct is also valid. It cannot be true that the validity of a total ban is an adequate justification for a selective prohibition; otherwise, the constitutional objection to discriminatory rules would be meaningless. The question in this case is whether the difference between males and females justifies this statutory discrimination based entirely on sex. [ Footnote 4/4 ] Page 450 U. S. 498 The fact that the Court did not immediately acknowledge that the capacity to become pregnant is what primarily differentiates the female from the male [ Footnote 4/5 ] does not impeach the validity of the plurality's newly found wisdom. I think the plurality is quite correct in making the assumption that the joint act that this law seeks to prohibit creates a greater risk of harm for the female than for the male. But the plurality surely cannot believe that the risk of pregnancy confronted by the female -- any more than the risk of venereal disease confronted by males as well a females -- has provided an effective deterrent to voluntary female participation in the risk-creating conduct. Yet the plurality' decision seems to rest on the assumption that the California Legislature acted on the basis of that rather fanciful notion. Page 450 U. S. 499 In my judgment, the fact that a class of persons is especially vulnerable to a risk that a statute is designed to avoid is a reason for making the statute applicable to that class. The argument that a special need for protection provides a rational explanation for an exemption is one I simply do not comprehend. [ Footnote 4/6 ] In this case, the fact that a female confronts a greater risk of harm than a male is a reason for applying the prohibition to her -- not a reason for granting her a license to use her own judgment on whether or not to assume the risk. Surely, if we examine the problem from the point of view of society's interest in preventing the risk-creating conduct from occurring at all, it is irrational to exempt 50% of the potential violators. See dissent of JUSICE BRENNAN, ante at 450 U. S. 493 -494. And, if we view the government's interest as that of a parens patriae seeking to protect its subjects from harming themselves, the discrimination is actually perverse. Would a rational parent making rules for the conduct of twin children of opposite sex simultaneously forbid the son and authorize the daughter to engage in conduct that is especially harmful to the daughter? That is the effect of this statutory classification. If pregnancy or some other special harm is suffered by one of the two participants in the prohibited act, that special harm no doubt would constitute a legitimate mitigating factor in deciding what, if any, punishment might be appropriate in a given case. But from the standpoint of fashioning a general preventive rule -- or, indeed, in determining appropriate punishment when neither party in fact has suffered any special Page 450 U. S. 500 harm -- I regard a total exemption for the members of the more endangered class as utterly irrational. In my opinion, the only acceptable justification for a general rule requiring disparate treatment of the two participants in a joint act must be a legislative judgment that one is more guilty than the other. The risk-creating conduct that this statute is designed to prevent requires the participation of two persons -- one male and one female. [ Footnote 4/7 ] In many situations, it is probably true that one is the aggressor and the other is either an unwilling, or at least a less willing, participant in the joint act. If a statute authorized punishment of only one participant and required the prosecutor to prove that that participant had been the aggressor, I assume that the discrimination would be valid. Although the question is less clear, I also assume, for the purpose of deciding this case, that it would be permissible to punish only the male participant if one element of the offense were proof that he had been the aggressor, or at least in some respects the more responsible participant, in the joint act. The statute at issue in this case, however, requires no such proof. The question raised by this statute is whether the State, consistently with the Federal Constitution, may always punish the male and never the female when they are equally responsible or when the female is the more responsible of the two. It would seem to me that an impartial lawmaker could give only one answer to that question. The fact that the California Legislature has decided to apply its prohibition only to Page 450 U. S. 501 the male may reflect a legislative judgment that, in the typical case the male is actually the more guilty party. Any such judgment must, in turn, assume that the decision to engage in the risk-creating conduct is always -- or at least typically -- a male decision. If that assumption is valid, the statutory classification should also be valid. But what is the support for the assumption? It is not contained in the record of this case or in any legislative history or scholarly study that has been called to our attention. I think it is supported to some extent by traditional attitudes toward male-female relationships. But the possibility that such a habitual attitude may reflect nothing more than an irrational prejudice makes it an insufficient justification for discriminatory treatment that is otherwise blatantly unfair. For, as I read this statute, it requires that one, and only one, of two equally guilty wrongdoers be stigmatized by a criminal conviction. I cannot accept the State's argument that the constitutionality of the discriminatory rule can be saved by an assumption that prosecutors will commonly invoke this statute only in cases that actually involve a forcible rape, but one that cannot be established by proof beyond a reasonable doubt. [ Footnote 4/8 ] That assumption implies that a State has a legitimate interest in convicting a defendant on evidence that is constitutionally insufficient. Of course, the State may create a lesser-included offense that would authorize punishment of the more guilty party, but surely the interest in obtaining convictions on inadequate Page 450 U. S. 502 proof cannot justify a statute that punishes one who is equally or less guilty than his partner. [ Footnote 4/9 ] Nor do I find at all persuasive the suggestion that this discrimination is adequately justified by the desire to encourage females to inform against their male partners. Even if the concept of a wholesale informant's exemption were an acceptable enforcement device, what is the justification for defining the exempt class entirely by reference to sex, rather than by reference to a more neutral criterion such as relative innocence? Indeed, if the exempt class is to be composed entirely of members of one sex, what is there to support the view that the statutory purpose will be better served by granting the informing license to females, rather than to males? If a discarded male partner informs on a promiscuous female, a timely threat of prosecution might well prevent the precise harm the statute is intended to minimize. Finally, even if my logic is faulty and there actually is some speculative basis for treating equally guilty males and females differently, I still believe that any such speculative justification would be outweighed by the paramount interest in evenhanded enforcement of the law. A rule that authorizes punishment of only one of two equally guilty wrongdoers violates the essence of the constitutional requirement that the sovereign must govern impartially. I respectfully dissent. [ Footnote 4/1 ] "Common sense indicates that many young people will engage in sexual activity regardless of what the New York Legislature does, and further, that the incidence of venereal disease and premarital pregnancy is affected by the availability or unavailability of contraceptives. Although young persons theoretically may avoid those harms by practicing total abstention, inevitably many will not." Carey v. Population Services International, 431 U. S. 678 , 431 U. S. 714 (STEVENSI J., concurring in part and in judgment). [ Footnote 4/2 ] If a million teenagers became pregnant in 1976, see ante at 450 U. S. 470 , n. 3, there must be countless violations of the California statute. The statistics cited by JUSTICE BRENNAN also indicate, as he correctly observes, that the statute "seems to be an ineffective deterrent of sexual activity." See ante at 450 U. S. 493 -494, n. 8. [ Footnote 4/3 ] See Carey v. Population Services International, supra, at 431 U. S. 713 (STEVENS, J., concurring in part and in judgment). [ Footnote 4/4 ] Equal protection analysis is often said to involve different "levels of scrutiny." It may be more accurate to say that the burden of sustaining an equal protection challenge is much heavier in some cases than in others. Racial classifications, which are subjected to "strict scrutiny," are presumptively invalid because there is seldom, if ever, any legitimate reason for treating citizens differently because of their race. On the other hand, most economic classifications are presumptively valid because they are a necessary component of most regulatory programs. In cases involving discrimination between men and women, the natural differences between the sexes are sometimes relevant and sometimes wholly irrelevant. If those differences are obviously irrelevant, the discrimination should be t.reated as presumptively unlawful in the same way that racial clasifications are presumptively unlawful. Cf. Califano v. Goldfarb, 430 U. S. 199 , 430 U. S. 223 (STEVENS, J., concurring in judgment). But if, as in this case, there is an apparent connection between the discrimination and the fact that only women can become pregnant, it may be appropriate to presume that the classification is lawful. This presumption, however, may be overcome by a demonstration that the apparent justification for the discrimination is illusory or wholly inadequate. Thus, instead of applying a "mid-level" form of scrutiny in all sex discrimination cases, perhaps the burden is heavier in some than in others. Nevertheless, as I have previously suggested, the ultimate standard in these, as in all other equal protection cases, is essentially the same. See Craig v. Boren, 429 U. S. 190 , 429 U. S. 211 -212 (STEVENS, J., concurring). Professor Cox recently noted that, however the level of scrutiny is described, in the final analysis, "the Court is always deciding whether, in its judgment, the harm done to the disadvantaged class by the legislative classification is disproportionate to the public purposes the measure is likely to achieve." Cox, Book Review, 94 Harv.L.Rev. 700, 706 (1981). [ Footnote 4/5 ] See General Electric Co. v. Gilbert, 429 U. S. 125 , 429 U. S. 162 (STEVENS, J., dissenting). [ Footnote 4/6 ] A hypothetical racial classification will illustrate my point. Assume that skin pigmentation provides some measure of protection against cancer caused by exposure to certain chemicals in the atmosphere and, therefore, that white employees confront a greater risk than black employees in certain industrial settings. Would it be rational to require black employees to wear protective clothing but to exempt whites from that requirement? It seems to me that the greater risk of harm to white workers would be a reason for including them in the requirement -- not for granting them an exemption. [ Footnote 4/7 ] In light of this indisputable biological fact, I find somewhat puzzling the California Supreme Court's conclusion, quoted by the plurality, ante at 450 U. S. 467 , that males "are the only persons who may physiologically cause the result which the law properly seeks to avoid." 25 Cal. 3d 608 , 612, 601 P.2d 572, 575 (1979) (emphasis in original). Presumably, the California Supreme Court was referring to the equally indisputable biological fact that only females may become pregnant. However, if pregnancy results from sexual intercourse between two willing participants -- and the California statute is directed at such conduct -- I would find it difficult to conclude that the pregnancy was "caused" solely by the male participant. [ Footnote 4/8 ] According to the State of California: "The statute is commonly employed in situations involving force, prostitution, pornography, or coercion due to status relationships, and the state's interest in these situations is apparent." Brief for Respondent 3. See also id. at 23-25. The State's interest in these situations is indeed apparent, and certainly sufficient to justify statutory prohibition of forcible rape, prostitution, pornography, and nonforcible, but nonetheless coerced, sexual intercourse. However, it is not at all apparent to me how this state interest can justify a statute not specifically directed to any of these offenses. [ Footnote 4/9 ] Both JUSTICE REHNQUIST and JUSTICE BLACKMUN apparently attach significance to the testimony at the preliminary hearing indicating that the petitioner struck his partner. See opinion of REHNQUIST, J., ante at 450 U. S. 467 ; opinion of BLACKMUN, J., ante at 450 U. S. 483 -488, n. In light of the fact that the petitioner would be equally guilty of the crime charged in the complaint whether or not that testimony is true, it obviously has no bearing on the legal question presented by this case. The question is not whether "the facts . . . fit the crime," opinion of BLACKMUN, J., ante at 450 U. S. 487 -- that is a question to be answered at trial -- but rather, whether the statute defining the crime fits the constitutional requirement that justice be administered in an evenhanded fashion.

The Supreme Court upheld a California statute that criminalizes sexual intercourse between a male and a female under the age of 18, known as "statutory rape." The Court ruled that the law does not violate the Equal Protection Clause of the Fourteenth Amendment, as gender-based classifications are not "inherently suspect." The Court found that the statute serves the legitimate state interest of preventing teenage pregnancies and protecting young women from the physical, emotional, and psychological consequences of pregnancy. The Court also rejected the argument that the statute is discriminatory or underinclusive and emphasized that the Equal Protection Clause does not require identical treatment for all persons.

Equal Protection

Grutter v. Bollinger

https://supreme.justia.com/cases/federal/us/539/306/

OCTOBER TERM, 2002 Syllabus GRUTTER v. BOLLINGER ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No.02-241. Argued April 1, 2003-Decided June 23, 2003 The University of Michigan Law School (Law School), one of the Nation's top law schools, follows an official admissions policy that seeks to achieve student body diversity through compliance with Regents of Univ. of Cal. v. Bakke , 438 U. S. 265 . Focusing on students' academic ability coupled with a flexible assessment of their talents, experiences, and potential, the policy requires admissions officials to evaluate each applicant based on all the information available in the file, including a personal statement, letters of recommendation, an essay describing how the applicant will contribute to Law School life and diversity, and the applicant's undergraduate grade point average (GPA) and Law School Admission Test (LSAT) score. Additionally, officials must look beyond grades and scores to so-called "soft variables," such as recommenders' enthusiasm, the quality of the undergraduate institution and the applicant's essay, and the areas and difficulty of undergraduate course selection. The policy does not define diversity solely in terms of racial and ethnic status and does not restrict the types of diversity contributions eligible for "substantial weight," but it does reaffirm the Law School's commitment to diversity with special reference to the inclusion of African-American, Hispanic, and Native-American students, who otherwise might not be represented in the student body in meaningful numbers. By enrolling a "critical mass" of underrepresented minority students, the policy seeks to ensure their ability to contribute to the Law School's character and to the legal profession. When the Law School denied admission to petitioner Grutter, a white Michigan resident with a 3.8 GPA and 161 LSAT score, she filed this suit, alleging that respondents had discriminated against her on the basis of race in violation of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, and 42 U. S. C. § 1981; that she was rejected because the Law School uses race as a "predominant" factor, giving applicants belonging to certain minority groups a significantly greater chance of admission than students with similar credentials from disfavored racial groups; and that respondents had no compelling interest to justify that use of race. The District Court found the Law School's use of race as an admissions factor unlawful. The Sixth Circuit reversed, holding that Justice Powell's opinion in Bakke was binding precedent establishing [307] diversity as a compelling state interest, and that the Law School's use of race was narrowly tailored because race was merely a "potential 'plus' factor" and because the Law School's program was virtually identical to the Harvard admissions program described approvingly by Justice Powell and appended to his Bakke opinion. Held: The Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause, Title VI, or § 1981. Pp. 322-344. (a) In the landmark Bakke case, this Court reviewed a medical school's racial set-aside program that reserved 16 out of 100 seats for members of certain minority groups. The decision produced six separate opinions, none of which commanded a majority. Four Justices would have upheld the program on the ground that the government can use race to remedy disadvantages cast on minorities by past racial prejudice. 438 U. S., at 325. Four other Justices would have struck the program down on statutory grounds. Id. , at 408. Justice Powell, announcing the Court's judgment, provided a fifth vote not only for invalidating the program, but also for reversing the state court's injunction against any use of race whatsoever. In a part of his opinion that was joined by no other Justice, Justice Powell expressed his view that attaining a diverse student body was the only interest asserted by the university that survived scrutiny. Id. , at 311. Grounding his analysis in the academic freedom that "long has been viewed as a special concern of the First Amendment," id. , at 312, 314, Justice Powell emphasized that the "'nation's future depends upon leaders trained through wide exposure' to the ideas and mores of students as diverse as this Nation." Id. , at 313. However, he also emphasized that "[i]t is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups," that can justify using race. Id. , at 315. Rather, "[t]he diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element." Ibid. Since Bakke , Justice Powell's opinion has been the touchstone for constitutional analysis of race-conscious admissions policies. Public and private universities across the Nation have modeled their own admissions programs on Justice Powell's views. Courts, however, have struggled to discern whether Justice Powell's diversity rationale is binding precedent. The Court finds it unnecessary to decide this issue because the Court endorses Justice Powell's view that student body diversity is a compelling state interest in the context of university admissions. Pp. 322-325. [308] (b) All government racial classifications must be analyzed by a reviewing court under strict scrutiny. Adarand Constructors, Inc. v. Peña , 515 U. S. 200 , 227. But not all such uses are invalidated by strict scrutiny. Race-based action necessary to further a compelling governmental interest does not violate the Equal Protection Clause so long as it is narrowly tailored to further that interest. E. g., Shaw v. Hunt , 517 U. S. 899 , 908. Context matters when reviewing such action. See Gomillion v. Lightfoot , 364 U. S. 339 , 343-344. Not every decision influenced by race is equally objectionable, and strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the government's reasons for using race in a particular context. Pp. 326-327. (c) The Court endorses Justice Powell's view that student body diversity is a compelling state interest that can justify using race in university admissions. The Court defers to the Law School's educational judgment that diversity is essential to its educational mission. The Court's scrutiny of that interest is no less strict for taking into account complex educational judgments in an area that lies primarily within the university's expertise. See, e. g., Bakke , 438 U. S., at 319, n. 53 (opinion of Powell, J.). Attaining a diverse student body is at the heart of the Law School's proper institutional mission, and its "good faith" is "presumed" absent "a showing to the contrary." Id. , at 318-319. Enrolling a "critical mass" of minority students simply to assure some specified percentage of a particular group merely because of its race or ethnic origin would be patently unconstitutional. E.g., id. , at 307. But the Law School defines its critical mass concept by reference to the substantial, important, and laudable educational benefits that diversity is designed to produce, including cross-racial understanding and the breaking down of racial stereotypes. The Law School's claim is further bolstered by numerous expert studies and reports showing that such diversity promotes learning outcomes and better prepares students for an increasingly diverse work force, for society, and for the legal profession. Major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. High-ranking retired officers and civilian military leaders assert that a highly qualified, racially diverse officer corps is essential to national security. Moreover, because universities, and in particular, law schools, represent the training ground for a large number of the Nation's leaders, Sweatt v. Painter , 339 U. S. 629 , 634, the path to leadership must be visibly open to talented and qualified individuals of every race and ethnicity. Thus, the Law School has a compelling interest in attaining a diverse student body. Pp. 327-333. [309] (d) The Law School's admissions program bears the hallmarks of a narrowly tailored plan. To be narrowly tailored, a race-conscious admissions program cannot "insulat[e] each category of applicants with certain desired qualifications from competition with all other applicants." Bakke , 438 U. S., at 315 (opinion of Powell, J.). Instead, it may consider race or ethnicity only as a "'plus' in a particular applicant's file"; i. e. , it must be "flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight," id. , at 317. It follows that universities cannot establish quotas for members of certain racial or ethnic groups or put them on separate admissions tracks. See id. , at 315-316. The Law School's admissions program, like the Harvard plan approved by Justice Powell, satisfies these requirements. Moreover, the program is flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes race or ethnicity the defining feature of the application. See id. , at 317. The Law School engages in a highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment. There is no policy, either de jure or de facto , of automatic acceptance or rejection based on any single "soft" variable. Gratz v. Bollinger, ante , p. 244, distinguished. Also, the program adequately ensures that all factors that may contribute to diversity are meaningfully considered alongside race. Moreover, the Law School frequently accepts nonminority applicants with grades and test scores lower than underrepresented minority applicants (and other nonminority applicants) who are rejected. The Court rejects the argument that the Law School should have used other race-neutral means to obtain the educational benefits of student body diversity, e.g. , a lottery system or decreasing the emphasis on GPA and LSAT scores. N arrow tailoring does not require exhaustion of every conceivable race-neutral alternative or mandate that a university choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups. See, e. g., Wygant v. Jackson Bd. of Ed. , 476 U. S. 267 , 280, n. 6. The Court is satisfied that the Law School adequately considered the available alternatives. The Court is also satisfied that, in the context of individualized consideration of the possible diversity contributions of each applicant, the Law School's race-conscious admissions program does not unduly harm nonminority applicants. Finally, race-conscious admissions policies must be limited in time. The Court takes the Law School at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial [310] preferences as soon as practicable. The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today. Pp. 333-343. (e) Because the Law School's use of race in admissions decisions is not prohibited by the Equal Protection Clause, petitioner's statutory claims based on Title VI and § 1981 also fail. See Bakke, supra , at 287 (opinion of Powell, J.); General Building Contractors Assn., Inc. v. Pennsylvania , 458 U. S. 375 , 389-391. Pp. 343-344. 288 F.3d 732, affirmed. O'CONNOR, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined, and in which SCALIA and THOMAS, JJ., joined in part insofar as it is consistent with the views expressed in Part VII of the opinion of THOMAS, J. GINSBURG, J., filed a concurring opinion, in which BREYER, J., joined, post , p. 344. SCALIA, J., filed an opinion concurring in part and dissenting in part, in which THOMAS, J., joined, post , p. 346. THOMAS, J., filed an opinion concurring in part and dissenting in part, in which SCALIA, J., joined as to Parts I-VII, post , p. 349. REHNQUIST, C. J., filed a dissenting opinion, in which SCALIA, KENNEDY, and THOMAS, JJ., joined, post , p. 378. KENNEDY, J., filed a dissenting opinion, post , p. 387. Kirk O. Kolbo argued the cause for petitioner. With him on the briefs were David F. Herr, R. Lawrence Purdy, Michael C. McCarthy, Michael E. Rosman, Hans Bader, and Kerry L. Morgan. Solicitor General Olson argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Boyd and Deputy Solicitor General Clement. Maureen E. Mahoney argued the cause for respondent Bollinger et al. With her on the brief were John H. Pickering, John Payton, Brigida Benitez, Craig Goldblatt, Terry A. Maroney, Marvin Krislov, Jonathan Alger, Evan Caminker, Philip J. Kessler, and Leonard M. Niehoff Miranda K. S. Massie and George B. Washington filed a brief for respondent James et al.[ Footnote * ] [311] JUSTICE O'CONNOR delivered the opinion of the Court. This case requires us to decide whether the use of race as a factor in student admissions by the University of Michigan Law School (Law School) is unlawful. [312] I A The Law School ranks among the Nation's top law schools. It receives more than 3,500 applications each year for a class [313] of around 350 students. Seeking to "admit a group of students who individually and collectively are among the most capable," the Law School looks for individuals with "sub- [314] stantial promise for success in law school" and "a strong likelihood of succeeding in the practice of law and contributing in diverse ways to the well-being of others." App. 110. More broadly, the Law School seeks "a mix of students with varying backgrounds and experiences who will respect and learn from each other." Ibid. In 1992, the dean of the Law School charged a faculty committee with crafting a written admissions policy to implement these goals. In particular, the Law School sought to ensure that its efforts to achieve student body diversity complied with this Court's most recent ruling on the use of race in university admissions. See Regents of Univ. of Cal. v. Bakke , 438 U. S. 265 (1978). [315] Upon the unanimous adoption of the committee's report by the Law School faculty, it became the Law School's official admissions policy. The hallmark of that policy is its focus on academic ability coupled with a flexible assessment of applicants' talents, experiences, and potential "to contribute to the learning of those around them." App.111. The policy requires admissions officials to evaluate each applicant based on all the information available in the file, including a personal statement, letters of recommendation, and an essay describing the ways in which the applicant will contribute to the life and diversity of the Law School. Id. , at 83-84, 114-121. In reviewing an applicant's file, admissions officials must consider the applicant's undergraduate grade point average (GPA) and Law School Admission Test (LSAT) score because they are important (if imperfect) predictors of academic success in law school. Id. , at 112. The policy stresses that "no applicant should be admitted unless we expect that applicant to do well enough to graduate with no serious academic problems." Id. , at 111. The policy makes clear, however, that even the highest possible score does not guarantee admission to the Law School. Id. , at 113. Nor does a low score automatically disqualify an applicant. Ibid. Rather, the policy requires admissions officials to look beyond grades and test scores to other criteria that are important to the Law School's educational objectives. Id. , at 114. So-called" 'soft' variables" such as "the enthusiasm of recommenders, the quality of the undergraduate institution, the quality of the applicant's essay, and the areas and difficulty of undergraduate course selection" are all brought to bear in assessing an "applicant's likely contributions to the intellectual and social life of the institution." Ibid. The policy aspires to "achieve that diversity which has the potential to enrich everyone's education and thus make a law school class stronger than the sum of its parts." Id. , at 118. [316] The policy does not restrict the types of diversity contributions eligible for "substantial weight" in the admissions process, but instead recognizes "many possible bases for diversity admissions." Id. , at 118, 120. The policy does, however, reaffirm the Law School's longstanding commitment to "one particular type of diversity," that is, "racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers." Id. , at 120. By enrolling a " 'critical mass' of [underrepresented] minority students," the Law School seeks to "ensur[e] their ability to make unique contributions to the character of the Law School." Id. , at 120-121. The policy does not define diversity "solely in terms of racial and ethnic status." Id. , at 121. Nor is the policy "insensitive to the competition among all students for admission to the [L]aw [S]chool." Ibid. Rather, the policy seeks to guide admissions officers in "producing classes both diverse and academically outstanding, classes made up of students who promise to continue the tradition of outstanding contribution by Michigan Graduates to the legal profession." Ibid. B Petitioner Barbara Grutter is a white Michigan resident who applied to the Law School in 1996 with a 3.8 GPA and 161 LSAT score. The Law School initially placed petitioner on a waiting list, but subsequently rejected her application. In December 1997, petitioner filed suit in the United States District Court for the Eastern District of Michigan against the Law School, the Regents of the University of Michigan, Lee Bollinger (Dean of the Law School from 1987 to 1994, and President of the University of Michigan from 1996 to 2002), Jeffrey Lehman (Dean of the Law School), and Dennis Shields (Director of Admissions at the Law School from 1991 [317] until 1998). Petitioner alleged that respondents discriminated against her on the basis of race in violation of the Fourteenth Amendment; Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C. § 2000d; and Rev. Stat. § 1977, as amended, 42 U. S. C. § 1981. Petitioner further alleged that her application was rejected because the Law School uses race as a "predominant" factor, giving applicants who belong to certain minority groups "a significantly greater chance of admission than students with similar credentials from disfavored racial groups." App.33-34. Petitioner also alleged that respondents "had no compelling interest to justify their use of race in the admissions process." Id. , at 34. Petitioner requested compensatory and punitive damages, an order requiring the Law School to offer her admission, and an injunction prohibiting the Law School from continuing to discriminate on the basis of race. Id. , at 36. Petitioner clearly has standing to bring this lawsuit. Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville , 508 U. S. 656 , 666 (1993). The District Court granted petitioner's motion for class certification and for bifurcation of the trial into liability and damages phases. The class was defined as " 'all persons who (A) applied for and were not granted admission to the University of Michigan Law School for the academic years since (and including) 1995 until the time that judgment is entered herein; and (B) were members of those racial or ethnic groups, including Caucasian, that Defendants treated less favorably in considering their applications for admission to the Law School.'" App. to Pet. for Cert. 191a-192a. The District Court heard oral argument on the parties' cross-motions for summary judgment on December 22, 2000. Taking the motions under advisement, the District Court indicated that it would decide as a matter of law whether the Law School's asserted interest in obtaining the educational benefits that flow from a diverse student body was compel- [318] ling. The District Court also indicated that it would conduct a bench trial on the extent to which race was a factor in the Law School's admissions decisions, and whether the Law School's consideration of race in admissions decisions constituted a race-based double standard. During the 15-day bench trial, the parties introduced extensive evidence concerning the Law School's use of race in the admissions process. Dennis Shields, Director of Admissions when petitioner applied to the Law School, testified that he did not direct his staff to admit a particular percentage or number of minority students, but rather to consider an applicant's race along with all other factors. Id. , at 206a. Shields testified that at the height of the admissions season, he would frequently consult the so-called "daily reports" that kept track of the racial and ethnic composition of the class (along with other information such as residency status and gender). Id. , at 207a. This was done, Shields testified, to ensure that a critical mass of underrepresented minority students would be reached so as to realize the educational benefits of a diverse student body. Ibid. Shields stressed, however, that he did not seek to admit any particular number or percentage of underrepresented minority students. Ibid. Erica Munzel, who succeeded Shields as Director of Admissions, testified that" 'critical mass'" means" 'meaningful numbers'" or "'meaningful representation,'" which she understood to mean a number that encourages underrepresented minority students to participate in the classroom and not feel isolated. Id. , at 208a-209a. Munzel stated there is no number, percentage, or range of numbers or percentages that constitute critical mass. Id. , at 209a. Munzel also asserted that she must consider the race of applicants because a critical mass of underrepresented minority students could not be enrolled if admissions decisions were based primarily on undergraduate GPAs and LSAT scores. Ibid. The current Dean of the Law School, Jeffrey Lehman, also testified. Like the other Law School witnesses, Lehman did [319] not quantify critical mass in terms of numbers or percentages. Id. , at 211a. He indicated that critical mass means numbers such that underrepresented minority students do not feel isolated or like spokespersons for their race. Ibid. When asked about the extent to which race is considered in admissions, Lehman testified that it varies from one applicant to another. Ibid. In some cases, according to Lehman's testimony, an applicant's race may play no role, while in others it may be a "'determinative'" factor. Ibid. The District Court heard extensive testimony from Professor Richard Lempert, who chaired the faculty committee that drafted the 1992 policy. Lempert emphasized that the Law School seeks students with diverse interests and backgrounds to enhance classroom discussion and the educational experience both inside and outside the classroom. Id. , at 213a. When asked about the policy's" 'commitment to racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against,'" Lempert explained that this language did not purport to remedy past discrimination, but rather to include students who may bring to the Law School a perspective different from that of members of groups which have not been the victims of such discrimination. Ibid. Lempert acknowledged that other groups, such as Asians and Jews, have experienced discrimination, but explained they were not mentioned in the policy because individuals who are members of those groups were already being admitted to the Law School in significant numbers. Ibid. Kent Syverud was the final witness to testify about the Law School's use of race in admissions decisions. Syverud was a professor at the Law School when the 1992 admissions policy was adopted and is now Dean of Vanderbilt Law School. In addition to his testimony at trial, Syverud submitted several expert reports on the educational benefits of diversity. Syverud's testimony indicated that when a critical mass of underrepresented minority students is pres- [320] ent, racial stereotypes lose their force because nonminority students learn there is no "'minority viewpoint'" but rather a variety of viewpoints among minority students. Id. , at 215a. In an attempt to quantify the extent to which the Law School actually considers race in making admissions decisions, the parties introduced voluminous evidence at trial. Relying on data obtained from the Law School, petitioner's expert, Dr. Kinley Larntz, generated and analyzed "admissions grids" for the years in question (1995-2000). These grids show the number of applicants and the number of admittees for all combinations of GPAs and LSAT scores. Dr. Larntz made" 'cell-by-cell'" comparisons between applicants of different races to determine whether a statistically significant relationship existed between race and admission rates. He concluded that membership in certain minority groups "'is an extremely strong factor in the decision for acceptance,'" and that applicants from these minority groups "'are given an extremely large allowance for admission'" as compared to applicants who are members of nonfavored groups. Id. , at 218a-220a. Dr. Larntz conceded, however, that race is not the predominant factor in the Law School's admissions calculus. 12 Tr. 11-13 (Feb. 10, 2001). Dr. Stephen Raudenbush, the Law School's expert, focused on the predicted effect of eliminating race as a factor in the Law School's admission process. In Dr. Raudenbush's view, a race-blind admissions system would have a "'very dramatic,'" negative effect on underrepresented minority admissions. App. to Pet. for Cert. 223a. He testified that in 2000, 35 percent of underrepresented minority applicants were admitted. Ibid. Dr. Raudenbush predicted that if race were not considered, only 10 percent of those applicants would have been admitted. Ibid. Under this scenario, underrepresented minority students would have constituted 4 percent of the entering class in 2000 instead of the actual figure of 14.5 percent. Ibid. [321] In the end, the District Court concluded that the Law School's use of race as a factor in admissions decisions was unlawful. Applying strict scrutiny, the District Court determined that the Law School's asserted interest in assembling a diverse student body was not compelling because "the attainment of a racially diverse class . . . was not recognized as such by Bakke and it is not a remedy for past discrimination." Id. , at 246a. The District Court went on to hold that even if diversity were compelling, the Law School had not narrowly tailored its use of race to further that interest. The District Court granted petitioner's request for declaratory relief and enjoined the Law School from using race as a factor in its admissions decisions. The Court of Appeals entered a stay of the injunction pending appeal. Sitting en banc, the Court of Appeals reversed the District Court's judgment and vacated the injunction. The Court of Appeals first held that Justice Powell's opinion in Bakke was binding precedent establishing diversity as a compelling state interest. According to the Court of Appeals, Justice Powell's opinion with respect to diversity constituted the controlling rationale for the judgment of this Court under the analysis set forth in Marks v. United States , 430 U. S. 188 (1977). The Court of Appeals also held that the Law School's use of race was narrowly tailored because race was merely a "potential 'plus' factor" and because the Law School's program was "virtually identical" to the Harvard admissions program described approvingly by Justice Powell and appended to his Bakke opinion. 288 F.3d 732 , 746, 749 (CA62002). Four dissenting judges would have held the Law School's use of race unconstitutional. Three of the dissenters, rejecting the majority's Marks analysis, examined the Law School's interest in student body diversity on the merits and concluded it was not compelling. The fourth dissenter, writing separately, found it unnecessary to decide whether diversity was a compelling interest because, like the other dissent- [322] ers, he believed that the Law School's use of race was not narrowly tailored to further that interest. We granted certiorari, 537 U. S. 1043 (2002), to resolve the disagreement among the Courts of Appeals on a question of national importance: Whether diversity is a compelling interest that can justify the narrowly tailored use of race in selecting applicants for admission to public universities. Compare Hopwood v. Texas , 78 F.3d 932 (CA5 1996) (Hopwood I) (holding that diversity is not a compelling state interest), with Smith v. University of Wash. Law School , 233 F.3d 1188 (CA9 2000) (holding that it is). II A We last addressed the use of race in public higher education over 25 years ago. In the landmark Bakke case, we reviewed a racial set-aside program that reserved 16 out of 100 seats in a medical school class for members of certain minority groups. 438 U. S. 265 (1978). The decision produced six separate opinions, none of which commanded a majority of the Court. Four Justices would have upheld the program against all attack on the ground that the government can use race to "remedy disadvantages cast on minorities by past racial prejudice." Id. , at 325 (joint opinion of Brennan, White, Marshall, and Blackmun, JJ., concurring in judgment in part and dissenting in part). Four other Justices avoided the constitutional question altogether and struck down the program on statutory grounds. Id. , at 408 (opinion of STEVENS, J., joined by Burger, C. J., and Stewart and REHNQUIST, JJ., concurring in judgment in part and dissenting in part). Justice Powell provided a fifth vote not only for invalidating the set-aside program, but also for reversing the state court's injunction against any use of race whatsoever. The only holding for the Court in Bakke was that a "State has a substantial interest that legitimately may be served by a properly devised admissions program involv- [323] ing the competitive consideration of race and ethnic origin." Id. , at 320. Thus, we reversed that part of the lower court's judgment that enjoined the university "from any consideration of the race of any applicant." Ibid. Since this Court's splintered decision in Bakke , Justice Powell's opinion announcing the judgment of the Court has served as the touchstone for constitutional analysis of race-conscious admissions policies. Public and private universities across the Nation have modeled their own admissions programs on Justice Powell's views on permissible race-conscious policies. See, e.g. , Brief for Judith Areen et al. as Amici Curiae 12-13 (law school admissions programs employ "methods designed from and based on Justice Powell's opinion in Bakke"); Brief for Amherst College et al. as Amici Curiae 27 ("After Bakke , each of the amici (and undoubtedly other selective colleges and universities as well) reviewed their admissions procedures in light of Justice Powell's opinion . . . and set sail accordingly"). We therefore discuss Justice Powell's opinion in some detail. Justice Powell began by stating that "[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equaL" Bakke , 438 U. S., at 289-290. In Justice Powell's view, when governmental decisions "touch upon an individual's race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest." Id. , at 299. Under this exacting standard, only one of the interests asserted by the university survived Justice Powell's scrutiny. First, Justice Powell rejected an interest in "'reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession'" as an unlawful interest in racial balancing. Id. , at 306-307. Second, Justice Powell rejected an interest in remedying societal dis- [324] crimination because such measures would risk placing unnecessary burdens on innocent third parties "who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered." Id. , at 310. Third, Justice Powell rejected an interest in "increasing the number of physicians who will practice in communities currently underserved," concluding that even if such an interest could be compelling in some circumstances the program under review was not "geared to promote that goal." Id. , at 306, 310. Justice Powell approved the university's use of race to further only one interest: "the attainment of a diverse student body." Id. , at 311. With the important proviso that "constitutional limitations protecting individual rights may not be disregarded," Justice Powell grounded his analysis in the academic freedom that "long has been viewed as a special concern of the First Amendment." Id. , at 312, 314. Justice Powell emphasized that nothing less than the "'nation's future depends upon leaders trained through wide exposure' to the ideas and mores of students as diverse as this Nation of many peoples." Id. , at 313 (quoting Keyishian v. Board of Regents of Univ. of State of N. Y. , 385 U. S. 589 , 603 (1967)). In seeking the "right to select those students who will contribute the most to the 'robust exchange of ideas,'" a university seeks "to achieve a goal that is of paramount importance in the fulfillment of its mission." 438 U. S., at 313. Both "tradition and experience lend support to the view that the contribution of diversity is substantial." Ibid. Justice Powell was, however, careful to emphasize that in his view race "is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body." Id. , at 314. For Justice Powell, "[i]t is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups," that [325] can justify the use of race. Id. , at 315. Rather, "[t]he diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element." Ibid. In the wake of our fractured decision in Bakke , courts have struggled to discern whether Justice Powell's diversity rationale, set forth in part of the opinion joined by no other Justice, is nonetheless binding precedent under Marks. In that case, we explained that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." 430 U. S., at 193 (internal quotation marks and citation omitted). As the divergent opinions of the lower courts demonstrate, however, "[t]his test is more easily stated than applied to the various opinions supporting the result in [Bakke]." Nichols v. United States , 511 U. S. 738 , 745-746 (1994). Compare, e. g., Johnson v. Board of Regents of Univ. of Ga., 263 F. 3d 1234 (CAll 2001) (Justice Powell's diversity rationale was not the holding of the Court); Hopwood v. Texas, 236 F. 3d 256, 274-275 (CA5 2000) (Hopwood II) (same); Hopwood I , 78 F.3d 932 (CA5 1996) (same), with Smith v. University of Wash. Law School , 233 F. 3d, at 1199 (Justice Powell's opinion, including the diversity rationale, is controlling under Marks). We do not find it necessary to decide whether Justice Powell's opinion is binding under Marks. It does not seem "useful to pursue the Marks inquiry to the utmost logical possibility when it has so obviously baffled and divided the lower courts that have considered it." Nichols v. United States, supra , at 745-746. More important, for the reasons set out below, today we endorse Justice Powell's view that student body diversity is a compelling state interest that can justify the use of race in university admissions. [326] B The Equal Protection Clause provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." U. S. Const., Amdt. 14, § 2. Because the Fourteenth Amendment "protect[s] persons , not groups," all "governmental action based on race-a group classification long recognized as in most circumstances irrelevant and therefore prohibited-should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed." Adarand Constructors, Inc. v. Peña , 515 U. S. 200 , 227 (1995) (emphasis in original; internal quotation marks and citation omitted). We are a "free people whose institutions are founded upon the doctrine of equality." Loving v. Virginia , 388 U. S. 1 , 11 (1967) (internal quotation marks and citation omitted). It follows from that principle that "government may treat people differently because of their race only for the most compelling reasons." Adarand Constructors, Inc. v. Peña, 515 U. S., at 227. We have held that all racial classifications imposed by government "must be analyzed by a reviewing court under strict scrutiny." Ibid. This means that such classifications are constitutional only if they are narrowly tailored to further compelling governmental interests. "Absent searching judicial inquiry into the justification for such race-based measures," we have no way to determine what "classifications are 'benign' or 'remedial' and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics." Richmond v. J. A. Croson Co. , 488 U. S. 469 , 493 (1989) (plurality opinion). We apply strict scrutiny to all racial classifications to "'smoke out' illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool." Ibid. Strict scrutiny is not "strict in theory, but fatal in fact." Adarand Constructors, Inc. v. Peña, supra , at 237 (internal quotation marks and citation omitted). Although all gov- [327] ernmental uses of race are subject to strict scrutiny, not all are invalidated by it. As we have explained, "whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution's guarantee of equal protection." 515 U. S., at 229-230. But that observation "says nothing about the ultimate validity of any particular law; that determination is the job of the court applying strict scrutiny." Id. , at 230. When race-based action is necessary to further a compelling governmental interest, such action does not violate the constitutional guarantee of equal protection so long as the narrow-tailoring requirement is also satisfied. Context matters when reviewing race-based governmental action under the Equal Protection Clause. See Gomillion v. Lightfoot , 364 U. S. 339 , 343-344 (1960) (admonishing that, "in dealing with claims under broad provisions of the Constitution, which derive content by an interpretive process of inclusion and exclusion, it is imperative that generalizations, based on and qualified by the concrete situations that gave rise to them, must not be applied out of context in disregard of variant controlling facts"). In Adarand Constructors , Inc. v. Peña , we made clear that strict scrutiny must take " 'relevant differences' into account." 515 U. S., at 228. Indeed, as we explained, that is its "fundamental purpose." Ibid. Not every decision influenced by race is equally objectionable, and strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decisionmaker for the use of race in that particular context. III A With these principles in mind, we turn to the question whether the Law School's use of race is justified by a compelling state interest. Before this Court, as they have [328] throughout this litigation, respondents assert only one justification for their use of race in the admissions process: obtaining "the educational benefits that flow from a diverse student body." Brief for Respondent Bollinger et al. i. In other words, the Law School asks us to recognize, in the context of higher education, a compelling state interest in student body diversity. We first wish to dispel the notion that the Law School's argument has been foreclosed, either expressly or implicitly, by our affirmative-action cases decided since Bakke. It is true that some language in those opinions might be read to suggest that remedying past discrimination is the only permissible justification for race-based governmental action. See, e. g., Richmond v. J. A. Croson Co., supra , at 493 (plurality opinion) (stating that unless classifications based on race are "strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility"). But we have never held that the only governmental use of race that can survive strict scrutiny is remedying past discrimination. Nor, since Bakke , have we directly addressed the use of race in the context of public higher education. Today, we hold that the Law School has a compelling interest in attaining a diverse student body. The Law School's educational judgment that such diversity is essential to its educational mission is one to which we defer. The Law School's assessment that diversity will, in fact, yield educational benefits is substantiated by respondents and their amici. Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university. Our holding today is in keeping with our tradition of giving a degree of deference to a university's academic decisions, within constitutionally prescribed limits. See Regents of Univ. of Mich. v. Ewing , 474 U. S. 214 , 225 (1985); Board of Curators of Univ. of Mo. [329] v. Horowitz , 435 U. S. 78 , 96, n. 6 (1978); Bakke , 438 U. S., at 319, n. 53 (opinion of Powell, J.). We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition. See, e. g., Wieman v. Updegraff , 344 U. S. 183 , 195 (1952) (Frankfurter, J., concurring); Sweezy v. New Hampshire , 354 U. S. 234 , 250 (1957); Shelton v. Tucker , 364 U. S. 479 , 487 (1960); Keyishian v. Board of Regents of Univ. of State of N. Y. , 385 U. S., at 603. In announcing the principle of student body diversity as a compelling state interest, Justice Powell invoked our cases recognizing a constitutional dimension, grounded in the First Amendment, of educational autonomy: "The freedom of a university to make its own judgments as to education includes the selection of its student body." Bakke, supra , at 312. From this premise, Justice Powell reasoned that by claiming "the right to select those students who will contribute the most to the 'robust exchange of ideas,'" a university "seek[s] to achieve a goal that is of paramount importance in the fulfillment of its mission." 438 U. S., at 313 (quoting Keyishian v. Board of Regents of Univ. of State of N. Y., supra , at 603). Our conclusion that the Law School has a compelling interest in a diverse student body is informed by our view that attaining a diverse student body is at the heart of the Law School's proper institutional mission, and that "good faith" on the part of a university is "presumed" absent "a showing to the contrary." 438 U. S., at 318-319. As part of its goal of "assembling a class that is both exceptionally academically qualified and broadly diverse," the Law School seeks to "enroll a 'critical mass' of minority students." Brief for Respondent Bollinger et al. 13. The Law School's interest is not simply "to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin." Bakke , 438 U. S., at [330] 307 (opinion of Powell, J.). That would amount to outright racial balancing, which is patently unconstitutional. Ibid.; Freeman v. Pitts , 503 U. S. 467 , 494 (1992) ("Racial balance is not to be achieved for its own sake"); Richmond v. J. A. Croson Co. , 488 U. S., at 507. Rather, the Law School's concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce. These benefits are substantial. As the District Court emphasized, the Law School's admissions policy promotes "cross-racial understanding," helps to break down racial stereotypes, and "enables [students] to better understand persons of different races." App. to Pet. for Cert. 246a. These benefits are "important and laudable," because "classroom discussion is livelier, more spirited, and simply more enlightening and interesting" when the students have "the greatest possible variety of backgrounds." Id. , at 246a, 244a. The Law School's claim of a compelling interest is further bolstered by its amici , who point to the educational benefits that flow from student body diversity. In addition to the expert studies and reports entered into evidence at trial, numerous studies show that student body diversity promotes learning outcomes, and "better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals." Brief for American Educational Research Association et al. as Amici Curiae 3; see, e.g. , W. Bowen & D. Bok, The Shape of the River (1998); Diversity Challenged: Evidence on the Impact of Affirmative Action (G. Orfield & M. Kurlaender eds. 2001); Compelling Interest: Examining the Evidence on Racial Dynamics in Colleges and Universities (M. Chang, D. Witt, J. Jones, & K. Hakuta eds. 2003). These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in to day's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. Brief for 3M et al. as Amici Curiae [331] 5; Brief for General Motors Corp. as Amicus Curiae 3-4. What is more, high-ranking retired officers and civilian leaders of the United States military assert that, "[b]ased on [their] decades of experience," a "highly qualified, racially diverse officer corps . . . is essential to the military's ability to fulfill its principle mission to provide national security." Brief for Julius W. Becton, Jr., et al. as Amici Curiae 5. The primary sources for the Nation's officer corps are the service academies and the Reserve Officers Training Corps (ROTC), the latter comprising students already admitted to participating colleges and universities. Ibid. At present, "the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC used limited race-conscious recruiting and admissions policies." Ibid. (emphasis in original). To fulfill its mission, the military "must be selective in admissions for training and education for the officer corps, and it must train and educate a highly qualified, racially diverse officer corps in a racially diverse educational setting." Id. , at 29 (emphasis in original). We agree that "[i]t requires only a small step from this analysis to conclude that our country's other most selective institutions must remain both diverse and selective." Ibid. We have repeatedly acknowledged the overriding importance of preparing students for work and citizenship, describing education as pivotal to "sustaining our political and cultural heritage" with a fundamental role in maintaining the fabric of society. Plyler v. Doe , 457 U. S. 202 , 221 (1982). This Court has long recognized that "education . . . is the very foundation of good citizenship." Brown v. Board of Education , 347 U. S. 483 , 493 (1954). For this reason, the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity. The United States, as amicus curiae , affirms that "[e]nsuring that public institutions are open and available to all segments of American [332] society, including people of all races and ethnicities, represents a paramount government objective." Brief for United States as Amicus Curiae 13. And, "[n]owhere is the importance of such openness more acute than in the context of higher education." Ibid. Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized. Moreover, universities, and in particular, law schools, represent the training ground for a large number of our N ation's leaders. Sweatt v. Painter , 339 U. S. 629 , 634 (1950) (describing law school as a "proving ground for legal learning and practice"). Individuals with law degrees occupy roughly half the state governorships, more than half the seats in the United States Senate, and more than a third of the seats in the United States House of Representatives. See Brief for Association of American Law Schools as Amicus Curiae 5-6. The pattern is even more striking when it comes to highly selective law schools. A handful of these schools accounts for 25 of the 100 United States Senators, 74 United States Courts of Appeals judges, and nearly 200 of the more than 600 United States District Court judges. Id. , at 6. In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training. As we have recognized, law schools "cannot be effective in isolation from the individuals and institutions with which the law interacts." See Sweatt v. Painter, supra , at 634. Access to legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society [333] may participate in the educational institutions that provide the training and education necessary to succeed in America. The Law School does not premise its need for critical mass on "any belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue." Brief for Respondent Bollinger et al. 30. To the contrary, diminishing the force of such stereotypes is both a crucial part of the Law School's mission, and one that it cannot accomplish with only token numbers of minority students. Just as growing up in a particular region or having particular professional experiences is likely to affect an individual's views, so too is one's own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters. The Law School has determined, based on its experience and expertise, that a "critical mass" of underrepresented minorities is necessary to further its compelling interest in securing the educational benefits of a diverse student body. B Even in the limited circumstance when drawing racial distinctions is permissible to further a compelling state interest, government is still "constrained in how it may pursue that end: [T]he means chosen to accomplish the [government's] asserted purpose must be specifically and narrowly framed to accomplish that purpose." Shaw v. Hunt , 517 U. S. 899 , 908 (1996) (internal quotation marks and citation omitted). The purpose of the narrow tailoring requirement is to ensure that "the means chosen 'fit' thee] compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype." Richmond v. J. A. Croson Co. , 488 U. S., at 493 (plurality opinion). Since Bakke , we have had no occasion to define the contours of the narrow-tailoring inquiry with respect to race-conscious university admissions programs. That inquiry [334] must be calibrated to fit the distinct issues raised by the use of race to achieve student body diversity in public higher education. Contrary to JUSTICE KENNEDY'S assertions, we do not "abando[n] strict scrutiny," see post , at 394 (dissenting opinion). Rather, as we have already explained, supra , at 327, we adhere to Adarand's teaching that the very purpose of strict scrutiny is to take such "relevant differences into account." 515 U. S., at 228 (internal quotation marks omitted). To be narrowly tailored, a race-conscious admissions program cannot use a quota system-it cannot "insulat[e] each category of applicants with certain desired qualifications from competition with all other applicants." Bakke, 438 U. S., at 315 (opinion of Powell, J.). Instead, a university may consider race or ethnicity only as a " 'plus' in a particular applicant's file," without "insulat[ing] the individual from comparison with all other candidates for the available seats." Id. , at 317. In other words, an admissions program must be "flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight." Ibid. We find that the Law School's admissions program bears the hallmarks of a narrowly tailored plan. As Justice Powell made clear in Bakke , truly individualized consideration demands that race be used in a flexible, nonmechanical way. It follows from this mandate that universities cannot establish quotas for members of certain racial groups or put members of those groups on separate admissions tracks. See id. , at 315-316. Nor can universities insulate applicants who belong to certain racial or ethnic groups from the competition for admission. Ibid. Universities can, however, consider race or ethnicity more flexibly as a "plus" factor in the context of individualized consideration of each and every applicant. Ibid. [335] We are satisfied that the Law School's admissions program, like the Harvard plan described by Justice Powell, does not operate as a quota. Properly understood, a "quota" is a program in which a certain fixed number or proportion of opportunities are "reserved exclusively for certain minority groups." Richmond v. J. A. Croson Co., supra , at 496 (plurality opinion). Quotas" 'impose a fixed number or percentage which must be attained, or which cannot be exceeded,'" Sheet Metal Workers v. EEOC , 478 U. S. 421 , 495 (1986) (O'CONNOR, J., concurring in part and dissenting in part), and "insulate the individual from comparison with all other candidates for the available seats," Bakke, supra , at 317 (opinion of Powell, J.). In contrast, "a permissible goal . . . require[s] only a good-faith effort . . . to come within a range demarcated by the goal itself," Sheet Metal Workers v. EEOC, supra , at 495, and permits consideration of race as a "plus" factor in any given case while still ensuring that each candidate "compete[s] with all other qualified applicants," Johnson v. Transportation Agency, Santa Clara Cty., 480 U. S. 616, 638 (1987). Justice Powell's distinction between the medical school's rigid 16-seat quota and Harvard's flexible use of race as a "plus" factor is instructive. Harvard certainly had minimum goals for minority enrollment, even if it had no specific number firmly in mind. See Bakke, supra , at 323 (opinion of Powell, J.) ("10 or 20 black students could not begin to bring to their classmates and to each other the variety of points of view, backgrounds and experiences of blacks in the United States"). What is more, Justice Powell flatly rejected the argument that Harvard's program was "the functional equivalent of a quota" merely because it had some " 'plus'" for race, or gave greater "weight" to race than to some other factors, in order to achieve student body diversity. 438 U. S., at 317-318. The Law School's goal of attaining a critical mass of underrepresented minority students does not transform its pro- [336] gram into a quota. As the Harvard plan described by Justice Powell recognized, there is of course "some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted." Id. , at 323. "[S]ome attention to numbers," without more, does not transform a flexible admissions system into a rigid quota. Ibid. Nor, as JUSTICE KENNEDY posits, does the Law School's consultation of the "daily reports," which keep track of the racial and ethnic composition of the class (as well as of residency and gender), "sugges[t] there was no further attempt at individual review save for race itself" during the final stages of the admissions process. See post , at 392 (dissenting opinion). To the contrary, the Law School's admissions officers testified without contradiction that they never gave race any more or less weight based on the information contained in these reports. Brief for Respondent Bollinger et al. 43, n. 70 (citing App. in Nos. 01-1447 and 01-1516 (CA6), p. 7336). Moreover, as JUSTICE KENNEDY concedes, see post , at 390, between 1993 and 1998, the number of African-American, Latino, and Native-American students in each class at the Law School varied from 13.5 to 20.1 percent, a range inconsistent with a quota. THE CHIEF JUSTICE believes that the Law School's policy conceals an attempt to achieve racial balancing, and cites admissions data to contend that the Law School discriminates among different groups within the critical mass. Post , at 380-386 (dissenting opinion). But, as THE CHIEF JUSTICE concedes, the number of underrepresented minority students who ultimately enroll in the Law School differs substantially from their representation in the applicant pool and varies considerably for each group from year to year. See post , at 385 (dissenting opinion). That a race-conscious admissions program does not operate as a quota does not, by itself, satisfy the requirement of individualized consideration. When using race as a "plus" [337] factor in university admissions, a university's admissions program must remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application. The importance of this individualized consideration in the context of a race-conscious admissions program is paramount. See Bakke , 438 U. S., at 318, n. 52 (opinion of Powell, J.) (identifying the "denial . . . of th[e] right to individualized consideration" as the "principal evil" of the medical school's admissions program). Here, the Law School engages in a highly individualized, holistic review of each applicant's file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment. The Law School affords this individualized consideration to applicants of all races. There is no policy, either de jure or de facto , of automatic acceptance or rejection based on any single "soft" variable. Unlike the program at issue in Gratz v. Bollinger, ante , p. 244, the Law School awards no mechanical, predetermined diversity "bonuses" based on race or ethnicity. See ante , at 271-272 (distinguishing a race-conscious admissions program that automatically awards 20 points based on race from the Harvard plan, which considered race but "did not contemplate that any single characteristic automatically ensured a specific and identifiable contribution to a university's diversity"). Like the Harvard plan, the Law School's admissions policy "is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight." Bakke, supra , at 317 (opinion of Powell, J.). We also find that, like the Harvard plan Justice Powell referenced in Bakke , the Law School's race-conscious admissions program adequately ensures that all factors that may contribute to student body diversity are meaningfully considered alongside race in admissions decisions. With re- [338] spect to the use of race itself, all underrepresented minority students admitted by the Law School have been deemed qualified. By virtue of our Nation's struggle with racial inequality, such students are both likely to have experiences of particular importance to the Law School's mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences. See App. 120. The Law School does not, however, limit in any way the broad range of qualities and experiences that may be considered valuable contributions to student body diversity. To the contrary, the 1992 policy makes clear "[t]here are many possible bases for diversity admissions," and provides examples of admittees who have lived or traveled widely abroad, are fluent in several languages, have overcome personal adversity and family hardship, have exceptional records of extensive community service, and have had successful careers in other fields. Id. , at 118-119. The Law School seriously considers each "applicant's promise of making a notable contribution to the class by way of a particular strength, attainment, or characteristic-e. g., an unusual intellectual achievement, employment experience, nonacademic performance, or personal background." Id. , at 83-84. All applicants have the opportunity to highlight their own potential diversity contributions through the submission of a personal statement, letters of recommendation, and an essay describing the ways in which the applicant will contribute to the life and diversity of the Law School. What is more, the Law School actually gives substantial weight to diversity factors besides race. The Law School frequently accepts nonminority applicants with grades and test scores lower than underrepresented minority applicants (and other nonminority applicants) who are rejected. See Brief for Respondent Bollinger et al. 10; App. 121-122. This shows that the Law School seriously weighs many other diversity factors besides race that can make a real and dispositive difference for nonminority applicants as well. By this [339] flexible approach, the Law School sufficiently takes into account, in practice as well as in theory, a wide variety of characteristics besides race and ethnicity that contribute to a diverse student body. JUSTICE KENNEDY speculates that "race is likely outcome determinative for many members of minority groups" who do not fall within the upper range of LSAT scores and grades. Post , at 389 (dissenting opinion). But the same could be said of the Harvard plan discussed approvingly by Justice Powell in Bakke , and indeed of any plan that uses race as one of many factors. See 438 U. S., at 316 (" 'When the Committee on Admissions reviews the large middle group of applicants who are "admissible" and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor' "). Petitioner and the United States argue that the Law School's plan is not narrowly tailored because race-neutral means exist to obtain the educational benefits of student body diversity that the Law School seeks. We disagree. N arrow tailoring does not require exhaustion of every conceivable race-neutral alternative. Nor does it require a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups. See Wygant v. Jackson Bd. of Ed. , 476 U. S. 267 , 280, n. 6 (1986) (alternatives must serve the interest" 'about as well' "); Richmond v. J. A. Croson Co. , 488 U. S., at 509-510 (plurality opinion) (city had a "whole array of race-neutral" alternatives because changing requirements "would have [had] little detrimental effect on the city's interests"). Narrow tailoring does, however, require serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks. See id. , at 507 (set-aside plan not narrowly tailored where "there does not appear to have been any consideration of the use of race-neutral means"); Wygant v. Jackson Bd. of Ed., supra , at 280, n. 6 (narrow tailoring [340] "require[s] consideration" of "lawful alternative and less restrictive means"). We agree with the Court of Appeals that the Law School sufficiently considered workable race-neutral alternatives. The District Court took the Law School to task for failing to consider race-neutral alternatives such as "using a lottery system" or "decreasing the emphasis for all applicants on undergraduate GPA and LSAT scores." App. to Pet. for Cert. 251a. But these alternatives would require a dramatic sacrifice of diversity, the academic quality of all admitted students, or both. The Law School's current admissions program considers race as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race. Because a lottery would make that kind of nuanced judgment impossible, it would effectively sacrifice all other educational values, not to mention every other kind of diversity. So too with the suggestion that the Law School simply lower admissions standards for all students, a drastic remedy that would require the Law School to become a much different institution and sacrifice a vital component of its educational mission. The United States advocates "percentage plans," recently adopted by public undergraduate institutions in Texas, Florida, and California, to guarantee admission to all students above a certain class-rank threshold in every high school in the State. Brief for United States as Amicus Cu riae 14-18. The United States does not, however, explain how such plans could work for graduate and professional schools. Moreover, even assuming such plans are raceneutral, they may preclude the university from conducting the individualized assessments necessary to assemble a student body that is not just racially diverse, but diverse along all the qualities valued by the university. We are satisfied that the Law School adequately considered race-neutral alternatives currently capable of producing a critical mass without forcing the Law School to abandon the academic selectivity that is the cornerstone of its educational mission. [341] We acknowledge that "there are serious problems of justice connected with the idea of preference itself." Bakke , 438 U. S., at 298 (opinion of Powell, J.). Narrow tailoring, therefore, requires that a race-conscious admissions program not unduly harm members of any racial group. Even remedial race-based governmental action generally "remains subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit." Id. , at 308. To be narrowly tailored, a race-conscious admissions program must not "unduly burden individuals who are not members of the favored racial and ethnic groups." Metro Broadcasting, Inc. v. FCC , 497 U. S. 547 , 630 (1990) (O'CONNOR, J., dissenting). We are satisfied that the Law School's admissions program does not. Because the Law School considers "all pertinent elements of diversity," it can (and does) select nonminority applicants who have greater potential to enhance student body diversity over underrepresented minority applicants. See Bakke, supra , at 317 (opinion of Powell, J.). As Justice Powell recognized in Bakke , so long as a race-conscious admissions program uses race as a "plus" factor in the context of individualized consideration, a rejected applicant "will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname . . . . His qualifications would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment under the Fourteenth Amendment." 438 U. S., at 318. We agree that, in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School's race-conscious admissions program does not unduly harm nonminority applicants. We are mindful, however, that "[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race." Palmore v. Si- [342] doti , 466 U. S. 429 , 432 (1984). Accordingly, race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point. The Law School, too, concedes that all "race-conscious programs must have reasonable durationallimits." Brief for Respondent Bollinger et al. 32. In the context of higher education, the durational requirement can be met by sunset provisions in race-conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity. Universities in California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law, are currently engaged in experimenting with a wide variety of alternative approaches. Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop. Cf. United States v. Lopez , 514 U. S. 549 , 581 (1995) (KENNEDY, J., concurring) ("[T]he States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear"). The requirement that all race-conscious admissions programs have a termination point "assure[s] all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself." Richmond v. J. A. Croson Co. , 488 U. S., at 510 (plurality opinion); see also Nathanson & Bartnik, The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools, [343] 58 Chicago Bar Rec. 282, 293 (May-June 1977) ("It would be a sad day indeed, were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life. But that is not the rationale for programs of preferential treatment; the acid test of their justification will be their efficacy in eliminating the need for any racial or ethnic preferences at all"). We take the Law School at its word that it would "like nothing better than to find a race-neutral admissions formula" and will terminate its race-conscious admissions program as soon as practicable. See Brief for Respondent Bollinger et al. 34; Bakke, supra , at 317-318 (opinion of Powell, J.) (presuming good faith of university officials in the absence of a showing to the contrary). It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. See Tr. of Oral Arg. 43. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today. IV In summary, the Equal Protection Clause does not prohibit the Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. Consequently, petitioner's statutory claims based on Title VI and 42 U. S. C. § 1981 also fail. See Bakke, supra , at 287 (opinion of Powell, J.) ("Title VI . . . proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment"); General Building Contractors Assn., Inc. v. Pennsylvania , 458 U. S. 375 , 389-391 (1982) (the prohibition against discrimination in § 1981 is coextensive with the Equal Protection Clause). The judgment [344] of the Court of Appeals for the Sixth Circuit, accordingly, is affirmed. It is so ordered. JUSTICE GINSBURG, with whom JUSTICE BREYER joins, concurring. The Court's observation that race-conscious programs "must have a logical end point," ante , at 342, accords with the international understanding of the office of affirmative action. The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994, see State Dept., Treaties in Force 422-423 (June 1996), endorses "special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms." Annex to G. A. Res. 2106, 20 U. N. GAOR, 20th Sess., Res. Supp. (No. 14), p. 47, U. N. Doc. A/6014, Art. 2(2) (1965). But such measures, the Convention instructs, "shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved." Ibid.; see also Art. 1(4) (similarly providing for temporally limited affirmative action); Convention on the Elimination of All Forms of Discrimination against Women, Annex to G. A. Res. 34/180, 34 U. N. GAOR, 34th Sess., Res. Supp. (No. 46), p. 194, U. N. Doc. A/34/46, Art. 4(1) (1979) (authorizing "temporary special measures aimed at accelerating de facto equality" that "shall be discontinued when the objectives of equality of opportunity and treatment have been achieved"). The Court further observes that "[i]t has been 25 years since Justice Powell [in Regents of Univ. of Cal. v. Bakke , 438 U. S. 265 (1978)] first approved the use of race to further an interest in student body diversity in the context of public higher education." Ante , at 343. For at least part of that [345] time, however, the law could not fairly be described as "settled," and in some regions of the Nation, overtly race-conscious admissions policies have been proscribed. See Hopwood v. Texas , 78 F.3d 932 (CA5 1996); cf. Wessmann v. Gittens , 160 F.3d 790 (CA1 1998); Tuttle v. Arlington Cty. School Bd. , 195 F.3d 698 (CA4 1999); Johnson v. Board of Regents of Univ. of Ga. , 263 F.3d 1234 (CAll 2001). Moreover, it was only 25 years before Bakke that this Court declared public school segregation unconstitutional, a declaration that, after prolonged resistance, yielded an end to a law-enforced racial caste system, itself the legacy of centuries of slavery. See Brown v. Board of Education , 347 U. S. 483 (1954); cf. Cooper v. Aaron , 358 U. S. 1 (1958). It is well documented that conscious and unconscious race bias, even rank discrimination based on race, remain alive in our land, impeding realization of our highest values and ideals. See, e. g., Gratz v. Bollinger, ante , at 298-301 (GINSBURG, J., dissenting); Adarand Constructors, Inc. v. Peña , 515 U. S. 200 , 272-274 (1995) (GINSBURG, J., dissenting); Krieger, Civil Rights Perestroika: Intergroup Relations after Affirmative Action, 86 Calif. L. Rev. 1251, 1276-1291, 1303 (1998). As to public education, data for the years 20002001 show that 71.6% of African-American children and 76.3% of Hispanic children attended a school in which minorities made up a majority of the student body. See E. Frankenberg, C. Lee, & G. Orfield, A Multiracial Society with Segregated Schools: Are We Losing the Dream? p. 4 (Jan. 2003), http://www.civilrightsproject.harvard.edu/research/reseg03/AreWeLosingtheDream.pdf (as visited June 16, 2003, and available in Clerk of Court's case file). And schools in predominantly minority communities lag far behind others measured by the educational resources available to them. See id. , at 11; Brief for National Urban League et al. as Amici Curiae 11-12 (citing General Accounting Office, PerPupil Spending Differences Between Selected Inner City and Suburban Schools Varied by Metropolitan Area 17 (2002)). [346] However strong the public's desire for improved education systems may be, see P. Hart & R. Teeter, A National Priority: Americans Speak on Teacher Quality 2, 11 (2002) (public opinion research conducted for Educational Testing Service); No Child Left Behind Act of 2001, Pub. L. 107-110, 115 Stat. 1806, 20 U. S. C. § 7231 (2000 ed., Supp. I), it remains the current reality that many minority students encounter markedly inadequate and unequal educational opportunities. Despite these inequalities, some minority students are able to meet the high threshold requirements set for admission to the country's finest undergraduate and graduate educational institutions. As lower school education in minority communities improves, an increase in the number of such students may be anticipated. From to day's vantage point, one may hope, but not firmly forecast, that over the next generation's span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.[ Footnote * ] JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in part and dissenting in part. I join the opinion of THE CHIEF JUSTICE. As he demonstrates, the University of Michigan Law School's mystical [347] "critical mass" justification for its discrimination by race challenges even the most gullible mind. The admissions statistics show it to be a sham to cover a scheme of racially proportionate admissions. I also join Parts I through VII of JUSTICE THOMAS'S opinion.[ Footnote * ] I find particularly unanswerable his central point: that the allegedly "compelling state interest" at issue here is not the incremental "educational benefit" that emanates from the fabled "critical mass" of minority students, but rather Michigan's interest in maintaining a "prestige" law school whose normal admissions standards disproportionately exclude blacks and other minorities. If that is a compelling state interest, everything is. I add the following: The "educational benefit" that the University of Michigan seeks to achieve by racial discrimination consists, according to the Court, of" 'cross-racial understanding,'" ante , at 330, and" 'better prepar[ation of] students for an increasingly diverse workforce and society,'" ibid., all of which is necessary not only for work, but also for good "citizenship," ante , at 331. This is not, of course, an "educational benefit" on which students will be graded on their law school transcript (Works and Plays Well with Others: B+) or tested by the bar examiners (Q: Describe in 500 words or less your cross-racial understanding). For it is a lesson of life rather than law-essentially the same lesson taught to (or rather learned by, for it cannot be "taught" in the usual sense) people three feet shorter and 20 years younger than the fullgrown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens. If properly considered an "educational benefit" at all, it is surely not one that is either uniquely relevant to law school or uniquely "teachable" in a formal educational setting. And therefore: If it is appropriate for the Univer- [348] sity of Michigan Law School to use racial discrimination for the purpose of putting together a "critical mass" that will convey generic lessons in socialization and good citizenship, surely it is no less appropriate-indeed, particularly appropriate-for the civil service system of the State of Michigan to do so. There, also, those exposed to "critical masses" of certain races will presumably become better Americans, better Michiganders, better civil servants. And surely private employers cannot be criticized--indeed, should be praised--if they also "teach" good citizenship to their adult employees through a patriotic, all-American system of racial discrimination in hiring. The nonminority individuals who are deprived of a legal education, a civil service job, or any job at all by reason of their skin color will surely understand. Unlike a clear constitutional holding that racial preferences in state educational institutions are impermissible, or even a clear anticonstitutional holding that racial preferences in state educational institutions are OK, today's Grutter-Gratz split double header seems perversely designed to prolong the controversy and the litigation. Some future lawsuits will presumably focus on whether the discriminatory scheme in question contains enough evaluation of the applicant "as an individual," ante , at 337, and sufficiently avoids "separate admissions tracks," ante , at 334, to fall under Grutter rather than Gratz. Some will focus on whether a university has gone beyond the bounds of a "'good-faith effort'" and has so zealously pursued its "critical mass" as to make it an unconstitutional de facto quota system, rather than merely "'a permissible goal.' " Ante , at 335 (quoting Sheet Metal Workers v. EEOC , 478 U. S. 421 , 495 (1986) (O'CONNOR, J., concurring in part and dissenting in part)). Other lawsuits may focus on whether, in the particular setting at issue, any educational benefits flow from racial diversity. (That issue was not contested in Grutter; and while the opinion accords "a degree of deference to a university's academic decisions," ante , at 328, "deference does not imply [349] abandonment or abdication of judicial review," Miller-El v. Cockrell , 537 U. S. 322 , 340 (2003).) Still other suits may challenge the bona fides of the institution's expressed commitment to the educational benefits of diversity that immunize the discriminatory scheme in Grutter. (Tempting targets, one would suppose, will be those universities that talk the talk of multiculturalism and racial diversity in the courts but walk the walk of tribalism and racial segregation on their campuses-through minority-only student organizations, separate minority housing opportunities, separate minority student centers, even separate minority-only graduation ceremonies.) And still other suits may claim that the institution's racial preferences have gone below or above the mystical Grutter-approved "critical mass." Finally, litigation can be expected on behalf of minority groups intentionally short changed in the institution's composition of its generic minority "critical mass." I do not look forward to any of these cases. The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception. JUSTICE THOMAS, with whom JUSTICE SCALIA joins as to Parts I-VII, concurring in part and dissenting in part. Frederick Douglass, speaking to a group of abolitionists almost 140 years ago, delivered a message lost on to day's majority: "[I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, manifested towards us. What I ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us . . . . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of [350] their own strength, if they are worm-eaten at the core, if they are early ripe and disposed to fall, let them fall! . . . And if the negro cannot stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! . . . [Y]our interference is doing him positive injury." What the Black Man Wants: An Address Delivered in Boston, Massachusetts, on 26 January 1865, reprinted in 4 The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan eds. 1991) (emphasis in original). Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators. Because I wish to see all students succeed whatever their color, I share, in some respect, the sympathies of those who sponsor the type of discrimination advanced by the University of Michigan Law School (Law School). The Constitution does not, however, tolerate institutional devotion to the status quo in admissions policies when such devotion ripens into racial discrimination. Nor does the Constitution countenance the unprecedented deference the Court gives to the Law School, an approach inconsistent with the very concept of "strict scrutiny." No one would argue that a university could set up a lower general admissions standard and then impose heightened requirements only on black applicants. Similarly, a university may not maintain a high admissions standard and grant exemptions to favored races. The Law School, of its own choosing, and for its own purposes, maintains an exclusionary admissions system that it knows produces racially disproportionate results. Racial discrimination is not a permissible solution to the self-inflicted wounds of this elitist admissions policy. The majority upholds the Law School's racial discrimination not by interpreting the people's Constitution, but by responding to a faddish slogan of the cognoscenti. Nevertheless, I concur in part in the Court's opinion. First, I agree with the Court insofar as its decision, which approves of only [351] one racial classification, confirms that further use of race in admissions remains unlawful. Second, I agree with the Court's holding that racial discrimination in higher education admissions will be illegal in 25 years. See ante , at 343 (stating that racial discrimination will no longer be narrowly tailored, or "necessary to further" a compelling state interest, in 25 years). I respectfully dissent from the remainder of the Court's opinion and the judgment, however, because I believe that the Law School's current use of race violates the Equal Protection Clause and that the Constitution means the same thing today as it will in 300 months. I The majority agrees that the Law School's racial discrimination should be subjected to strict scrutiny. Ante , at 326. Before applying that standard to this case, I will briefly revisit the Court's treatment of racial classifications. The strict scrutiny standard that the Court purports to apply in this case was first enunciated in Korematsu v. United States , 323 U. S. 214 (1944). There the Court held that "[p]ressing public necessity may sometimes justify the existence of [racial discrimination]; racial antagonism never can." Id. , at 216. This standard of "pressing public necessity" has more frequently been termed "compelling governmental interest,"[ Footnote 1 ] see, e. g., Regents of Univ. of Cal. v. Bakke , 438 U. S. 265 , 299 (1978) (opinion of Powell, J.). A majority of the Court has validated only two circumstances where "pressing public necessity" or a "compelling state interest" can possibly justify racial discrimination by state actors. First, the lesson of Korematsu is that national security constitutes a "pressing public necessity," though the government's use of race to advance that objective must be narrowly tailored. Second, the Court has recognized as a compelling state interest a government's effort to remedy [352] past discrimination for which it is responsible. Richmond The contours of "pressing public necessity" can be further discerned from those interests the Court has rejected as bases for racial discrimination. For example, Wygant v. Jackson Bd. of Ed. , 476 U. S. 267 (1986), found unconstitutional a collective-bargaining agreement between a school board and a teachers' union that favored certain minority races. The school board defended the policy on the grounds that minority teachers provided "role models" for minority students and that a racially "diverse" faculty would improve the education of all students. See Brief for Respondents, O. T. 1984, No. 84-1340, pp. 27-28; 476 U. S., at 315 (STEVENS, J., dissenting) ("[A]n integrated faculty will be able to provide benefits to the student body that could not be provided by an all-white, or nearly all-white, faculty"). Nevertheless, the Court found that the use of race violated the Equal Protection Clause, deeming both asserted state interests insufficiently compelling. Id. , at 275-276 (plurality opinion); id. , at 295 (White, J., concurring in judgment) ("None of the interests asserted by the [school board] . . . justify this racially discriminatory layoff policy").[ Footnote 2 ] An even greater governmental interest involves the sensitive role of courts in child custody determinations. In Palmore v. Sidoti , 466 U. S. 429 (1984), the Court held that even the best interests of a child did not constitute a compelling state interest that would allow a state court to award custody to the father because the mother was in a mixed-race marriage. Id. , at 433 (finding the interest "substantial" but [353] holding the custody decision could not be based on the race of the mother's new husband). Finally, the Court has rejected an interest in remedying general societal discrimination as a justification for race discrimination. See Wygant, supra , at 276 (plurality opinion); Croson , 488 U. S., at 496-498 (plurality opinion); id. , at 520-521 (SCALIA, J., concurring in judgment). "Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy" because a "court could uphold remedies that are ageless in their reach into the past, and timeless in their ability to affect the future." Wygant, supra , at 276 (plurality opinion). But see Gratz v. Bollinger, ante , p. 298 (GINSBURG, J., dissenting). Where the Court has accepted only national security, and rejected even the best interests of a child, as a justification for racial discrimination, I conclude that only those measures the State must take to provide a bulwark against anarchy, or to prevent violence, will constitute a "pressing public necessity." Cf. Lee v. Washington , 390 U. S. 333 , 334 (1968) (per curiam) (Black, J., concurring) (indicating that protecting prisoners from violence might justify narrowly tailored racial discrimination); Croson, supra , at 521 (SCALIA, J., concurring in judgment) ("At least where state or local action is at issue, only a social emergency rising to the level of imminent danger to life and limb . . . can justify [racial discrimination]"). The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all. "Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation's understanding that such classifications ultimately have a destructive impact on the individual and our society." [354] Adarand Constructors, Inc. v. Peña , 515 U. S. 200 , 240 (1995) (THOMAS, J., concurring in part and concurring in judgment). II Unlike the majority, I seek to define with precision the interest being asserted by the Law School before determining whether that interest is so compelling as to justify racial discrimination. The Law School maintains that it wishes to obtain "educational benefits that flow from student body diversity," Brief for Respondent Bollinger et al. 14. This statement must be evaluated carefully, because it implies that both "diversity" and "educational benefits" are components of the Law School's compelling state interest. Additionally, the Law School's refusal to entertain certain changes in its admissions process and status indicates that the compelling state interest it seeks to validate is actually broader than might appear at first glance. Undoubtedly there are other ways to "better" the education of law students aside from ensuring that the student body contains a "critical mass" of underrepresented minority students. Attaining "diversity," whatever it means,[ Footnote 3 ] is the [355] mechanism by which the Law School obtains educational benefits, not an end of itself. The Law School, however, apparently believes that only a racially mixed student body can lead to the educational benefits it seeks. How, then, is the Law School's interest in these allegedly unique educational "benefits" not simply the forbidden interest in "racial balancing," ante , at 330, that the majority expressly rejects? A distinction between these two ideas (unique educational benefits based on racial aesthetics and race for its own sake) is purely sophistic-so much so that the majority uses them interchangeably. Compare ante , at 328 ("[T]he Law School has a compelling interest in attaining a diverse student body"), with ante , at 333 (referring to the "compelling interest in securing the educational benefits of a diverse student body" (emphasis added)). The Law School's argument, as facile as it is, can only be understood in one way: Classroom aesthetics yields educational benefits, racially discriminatory admissions policies are required to achieve the right racial mix, and therefore the policies are required to achieve the educational benefits. It is the educational benefits that are the end, or allegedly compelling state interest, not "diversity." But see ante , at 332 (citing the need for "openness and integrity of the educational institutions that provide [legal] training" without reference to any consequential educational benefits). One must also consider the Law School's refusal to entertain changes to its current admissions system that might produce the same educational benefits. The Law School adamantly disclaims any race-neutral alternative that would reduce "academic selectivity," which would in turn "require the Law School to become a very different institution, and to sacrifice a core part of its educational mission." Brief for Respondent Bollinger et al. 33-36. In other words, the Law School seeks to improve marginally the education it offers [356] without sacrificing too much of its exclusivity and elite status.[ Footnote 4 ] The proffered interest that the majority vindicates today, then, is not simply "diversity." Instead the Court upholds the use of racial discrimination as a tool to advance the Law School's interest in offering a marginally superior education while maintaining an elite institution. Unless each constituent part of this state interest is of pressing public necessity, the Law School's use of race is unconstitutional. I find each of them to fall far short of this standard. III A A close reading of the Court's opinion reveals that all of its legal work is done through one conclusory statement: The Law School has a "compelling interest in securing the educational benefits of a diverse student body." Ante , at 333. No serious effort is made to explain how these benefits fit with the state interests the Court has recognized (or rejected) as compelling, see Part I, supra , or to place any theoretical constraints on an enterprising court's desire to discover still more justifications for racial discrimination. In the absence of any explanation, one might expect the Court to fall back on the judicial policy of stare decisis. But the Court eschews even this weak defense of its holding, shunning an analysis of the extent to which Justice Powell's opinion in Regents of Univ. of Cal. v. Bakke , 438 U. S. 265 (1978), [357] is binding, ante , at 325, in favor of an unfounded wholesale adoption of it. Justice Powell's opinion in Bakke and the Court's decision today rest on the fundamentally flawed proposition that racial discrimination can be contextualized so that a goal, such as classroom aesthetics, can be compelling in one context but not in another. This "we know it when we see it" approach to evaluating state interests is not capable of judicial application. Today, the Court insists on radically expanding the range of permissible uses of race to something as trivial (by comparison) as the assembling of a law school class. I can only presume that the majority's failure to justify its decision by reference to any principle arises from the absence of any such principle. See Part VI, infra. B Under the proper standard, there is no pressing public necessity in maintaining a public law school at all and, it follows, certainly not an elite law school. Likewise, marginal improvements in legal education do not qualify as a compelling state interest. 1 While legal education at a public university may be good policy or otherwise laudable, it is obviously not a pressing public necessity when the correct legal standard is applied. Additionally, circumstantial evidence as to whether a state activity is of pressing public necessity can be obtained by asking whether all States feel compelled to engage in that activity. Evidence that States, in general, engage in a certain activity by no means demonstrates that the activity constitutes a pressing public necessity, given the expansive role of government in to day's society. The fact that some fraction of the States reject a particular enterprise, however, creates a presumption that the enterprise itself is not a compelling state interest. In this sense, the absence of a public, American Bar Association (ABA) accredited, law school in [358] Alaska, Delaware, Massachusetts, New Hampshire, and Rhode Island, see ABA-LSAC Official Guide to ABAApproved Law Schools (w. Margolis, B. Gordon, J. Puskarz, & D. Rosenlieb eds. 2004) (hereinafter ABA-LSAC Guide), provides further evidence that Michigan's maintenance of the Law School does not constitute a compelling state interest. 2 As the foregoing makes clear, Michigan has no compelling interest in having a law school at all, much less an elite one. Still, even assuming that a State may, under appropriate circumstances, demonstrate a cognizable interest in having an elite law school, Michigan has failed to do so here. This Court has limited the scope of equal protection review to interests and activities that occur within that State's jurisdiction. The Court held in Missouri ex rel. Gaines v. Canada , 305 U. S. 337 (1938), that Missouri could not satisfy the demands of "separate but equal" by paying for legal training of blacks at neighboring state law schools, while maintaining a segregated law school within the State. The equal protection "obligation is imposed by the Constitution upon the States severally as governmental entities,-each responsible for its own laws establishing the rights and duties of persons within its borders. It is an obligation the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do. That separate responsibility of each State within its own sphere is of the essence of statehood maintained under our dual system." Id. , at 350 (emphasis added). The Equal Protection Clause, as interpreted by the Court in Gaines , does not permit States to justify racial discrimination on the basis of what the rest of the Nation "may do or fail to do." The only interests that can satisfy the Equal [359] Protection Clause's demands are those found within a State's jurisdiction. The only cognizable state interests vindicated by operating a public law school are, therefore, the education of that State's citizens and the training of that State's lawyers. James Campbell's address at the opening of the Law Department at the University of Michigan on October 3, 1859, makes this clear: "It not only concerns the State that every one should have all reasonable facilities for preparing himself for any honest position in life to which he may aspire, but it also concerns the community that the Law should be taught and understood . . . . There is not an office in the State in which serious legal inquiries may not frequently arise . . . . In all these matters, public and private rights are constantly involved and discussed, and ignorance of the Law has frequently led to results deplorable and alarming . . . . [I]n the history of this State , in more than one instance, that ignorance has led to unlawful violence, and the shedding of innocent blood." E. Brown, Legal Education at Michigan 1859-1959, pp. 404-406 (1959) (emphasis added). The Law School today, however, does precious little training of those attorneys who will serve the citizens of Michigan. In 2002, graduates of the Law School made up less than 6% of applicants to the Michigan bar, Michigan Lawyers Weekly, available at http://www.michiganlawyersweekly.com/barpassers0202.cfm,barpassers0702.cfm (all Internet materials as visited June 13, 2003, and available in Clerk of Court's case file), even though the Law School's graduates constitute nearly 30% of all law students graduating in Michigan. Ibid. Less than 16% of the Law School's graduating class elects to stay in Michigan after law school. ABA-LSAC Guide 427. Thus, while a mere 27% of the Law School's 2002 entering class is from Michigan, see University of [360] Michigan Law School Website, available at http://www.law.umich.edu/prospectivestudents/Admissions/index.htm, only half of these, it appears, will stay in Michigan. In sum, the Law School trains few Michigan residents and overwhelmingly serves students, who, as lawyers, leave the State of Michigan. By contrast, Michigan's other public law school, Wayne State University Law School, sends 88% of its graduates on to serve the people of Michigan. ABA-LSAC Guide 775. It does not take a social scientist to conclude that it is precisely the Law School's status as an elite institution that causes it to be a waystation for the rest of the country's lawyers, rather than a training ground for those who will remain in Michigan. The Law School's decision to be an elite institution does little to advance the welfare of the people of Michigan or any cognizable interest of the State of Michigan. Again, the fact that few States choose to maintain elite law schools raises a strong inference that there is nothing compelling about elite status. Arguably, only the public law schools of the University of Texas, the University of California, Berkeley (Boalt Hall), and the University of Virginia maintain the same reputation for excellence as the Law School.[ Footnote 5 ] Two of these States, Texas and California, are so large that they could reasonably be expected to provide elite legal training at a separate law school to students who will, in fact, stay in the State and provide legal services to its citizens. And these two schools far outshine the Law School in producing in-state lawyers. The University of Texas, for example, sends over three-fourths of its graduates on to work in the State of Texas, vindicating the State's interest (compelling or not) in training Texas' lawyers. Id. , at 691. [361] 3 Finally, even if the Law School's racial tinkering produces tangible educational benefits, a marginal improvement in legal education cannot justify racial discrimination where the Law School has no compelling interest either in its existence or in its current educational and admissions policies. IV The interest in remaining elite and exclusive that the majority thinks so obviously critical requires the use of admissions "standards" that, in turn, create the Law School's "need" to discriminate on the basis of race. The Court validates these admissions standards by concluding that alternatives that would require "a dramatic sacrifice of . . . the academic quality of all admitted students," ante , at 340, need not be considered before racial discrimination can be employed.[ Footnote 6 ] In the majority's view, such methods are not required by the "narrow tailoring" prong of strict scrutiny because that inquiry demands, in this context, that any race-neutral alternative work "'about as well.'" Ante , at 339 (quoting Wygant , 476 U. S., at 280, n. 6). The majority errs, however, because race-neutral alternatives must only be "workable," ante , at 339, and do "about as well" in vindicating the compelling state interest. The Court never explicitly holds that the Law School's desire to retain the status quo in "academic selectivity" is itself a compelling state interest, and, as I have demonstrated, it is not. See Part III-B, supra. Therefore, the Law School should be forced to choose between its classroom aesthetic and its exclusionary admissions system-it cannot have it both ways. With the adoption of different admissions methods, such as accepting all students who meet minimum qualifications, [362] see Brief for United States as Amicus Curiae 13-14, the Law School could achieve its vision of the racially aesthetic student body without the use of racial discrimination. The Law School concedes this, but the Court holds, implicitly and under the guise of narrow tailoring, that the Law School has a compelling state interest in doing what it wants to do. I cannot agree. First, under strict scrutiny, the Law School's assessment of the benefits of racial discrimination and devotion to the admissions status quo are not entitled to any sort of deference, grounded in the First Amendment or anywhere else. Second, even if its "academic selectivity" must be maintained at all costs along with racial discrimination, the Court ignores the fact that other top law schools have succeeded in meeting their aesthetic demands without racial discrimination. A The Court bases its unprecedented deference to the Law School-a deference antithetical to strict scrutiny-on an idea of "educational autonomy" grounded in the First Amendment. Ante , at 329. In my view, there is no basis for a right of public universities to do what would otherwise violate the Equal Protection Clause. The constitutionalization of "academic freedom" began with the concurring opinion of Justice Frankfurter in Sweezy v. New Hampshire , 354 U. S. 234 (1957). Sweezy, a Marxist economist, was investigated by the Attorney General of New Hampshire on suspicion of being a subversive. The prosecution sought, inter alia , the contents of a lecture Sweezy had given at the University of New Hampshire. The Court held that the investigation violated due process. Id. , at 254. Justice Frankfurter went further, however, reasoning that the First Amendment created a right of academic freedom that prohibited the investigation. Id. , at 256-267 (opinion concurring in result). Much of the rhetoric in Justice Frankfurter's opinion was devoted to the personal right of Sweezy to free speech. See, e.g., id. , at 265 ("For a citizen to be [363] made to forego even a part of so basic a liberty as his political autonomy, the subordinating interest of the State must be compelling"). Still, claiming that the United States Reports "need not be burdened with proof," Justice Frankfurter also asserted that a "free society" depends on "free universities" and "[t]his means the exclusion of governmental intervention in the intellectual life of a university." Id. , at 262. According to Justice Frankfurter: "It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail 'the four essential freedoms' of a university-to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." Id. , at 263 (citation omitted). In my view, "[i]t is the business" of this Court to explain itself when it cites provisions of the Constitution to invent new doctrines-including the idea that the First Amendment authorizes a public university to do what would otherwise violate the Equal Protection Clause. The majority fails in its summary effort to prove this point. The only source for the Court's conclusion that public universities are entitled to deference even within the confines of strict scrutiny is Justice Powell's opinion in Bakke. Justice Powell, for his part, relied only on Justice Frankfurter's opinion in Sweezy and the Court's decision in Keyishian v. Board of Regents of Univ. of State of N. Y. , 385 U. S. 589 (1967), to support his view that the First Amendment somehow protected a public university's use of race in admissions. Bakke , 438 U. S., at 312. Keyishian provides no answer to the question whether the Fourteenth Amendment's restrictions are relaxed when applied to public universities. In that case, the Court held that state statutes and regulations designed to prevent the "appointment or retention of 'subversive' persons in state employment," 385 U. S., at 592, violated the First Amendment for vagueness. The statutes covered all public employees and were not invalidated only as applied to uni- [364] versity faculty members, although the Court appeared sympathetic to the notion of academic freedom, calling it a "special concern of the First Amendment." Id. , at 603. Again, however, the Court did not relax any independent constitutional restrictions on public universities. I doubt that when Justice Frankfurter spoke of governmental intrusions into the independence of universities, he was thinking of the Constitution's ban on racial discrimination. The majority's broad deference to both the Law School's judgment that racial aesthetics leads to educational benefits and its stubborn refusal to alter the status quo in admissions methods finds no basis in the Constitution or decisions of this Court. B 1 The Court's deference to the Law School's conclusion that its racial experimentation leads to educational benefits will, if adhered to, have serious collateral consequences. The Court relies heavily on social science evidence to justify its deference. See ante , at 330-332; but see also Rothman, Lipset, & Nevitte, Racial Diversity Reconsidered, 151 Public Interest 25 (2003) (finding that the racial mix of a student body produced by racial discrimination of the type practiced by the Law School in fact hinders students' perception of academic quality). The Court never acknowledges, however, the growing evidence that racial (and other sorts) of heterogeneity actually impairs learning among black students. See, e.g. , Flowers & Pascarella, Cognitive Effects of College Racial Composition on African American Students After 3 Years of College, 40 J. of College Student Development 669, 674 (1999) (concluding that black students experience superior cognitive development at Historically Black Colleges (HBCs) and that, even among blacks, "a substantial diversity moderates the cognitive effects of attending an HBC"); Allen, The Color of Success: African-American College Stu- [365] dent Outcomes at Predominantly White and Historically Black Public Colleges and Universities, 62 Harv. Educ. Rev. 26, 35 (1992) (finding that black students attending HBCs report higher academic achievement than those attending predominantly white colleges). At oral argument in Gratz v. Bollinger, ante , p. 244, counsel for respondents stated that "most every single one of [the HBCs] do have diverse student bodies." Tr. of Oral Arg. in No. 02-516, p. 52. What precisely counsel meant by "diverse" is indeterminate, but it is reported that in 2000 at Morehouse College, one of the most distinguished HBCs in the Nation, only 0.1% of the student body was white, and only 0.2% was Hispanic. College Admissions Data Handbook 2002-2003, p. 613 (43d ed. 2002) (hereinafter College Admissions Data Handbook). And at Mississippi Valley State University, a public HBC, only 1.1% of the freshman class in 2001 was white. Id. , at 603. If there is a "critical mass" of whites at these institutions, then "critical mass" is indeed a very small proportion. The majority grants deference to the Law School's "assessment that diversity will, in fact, yield educational benefits," ante , at 328. It follows, therefore, that an HBC's assessment that racial homogeneity will yield educational benefits would similarly be given deference.[ Footnote 7 ] An HBC's rejection of white applicants in order to maintain racial homogeneity seems permissible, therefore, under the majority's view of the Equal Protection Clause. But see United States v. Fordice , 505 U. S. 717 , 748 (1992) (THOMAS, J., concurring) ("Obviously, a State cannot maintain . . . traditions by closing particular institutions, historically white or historically black, to particular racial groups"). Contained within today's majority opinion is the seed of a new constitutional [366] justification for a concept I thought long and rightly rejected-racial segregation. 2 Moreover one would think, in light of the Court's decision in United States v. Virginia , 518 U. S. 515 (1996), that before being given license to use racial discrimination, the Law School would be required to radically reshape its admissions process, even to the point of sacrificing some elements of its character. In Virginia , a majority of the Court, without a word about academic freedom, accepted the all-male Virginia Military Institute's (VMI) representation that some changes in its "adversative" method of education would be required with the admission of women, id. , at 540, but did not defer to VMI's judgment that these changes would be too great. Instead, the Court concluded that they were "manageable." Id. , at 551, n. 19. That case involved sex discrimination, which is subjected to intermediate, not strict, scrutiny. Id. , at 533; Craig v. Boren , 429 U. S. 190 , 197 (1976). So in Virginia , where the standard of review dictated that greater flexibility be granted to VMI's educational policies than the Law School deserves here, this Court gave no deference. Apparently where the status quo being defended is that of the elite establishment-here the Law School-rather than a less fashionable Southern military institution, the Court will defer without serious inquiry and without regard to the applicable legal standard. C Virginia is also notable for the fact that the Court relied on the "experience" of formerly single-sex institutions, such as the service academies, to conclude that admission of women to VMI would be "manageable." 518 U. S., at 544545. Today, however, the majority ignores the "experience" of those institutions that have been forced to abandon explicit racial discrimination in admissions. [367] The sky has not fallen at Boalt Hall at the University of California, Berkeley, for example. Prior to Proposition 209's adoption of Cal. Const., Art. 1, § 31(a), which bars the State from "grant[ing] preferential treatment . . . on the basis of race . . . in the operation of . . . public education,"[ Footnote 8 ] Boalt Hall enrolled 20 blacks and 28 Hispanics in its first-year class for 1996. In 2002, without deploying express racial discrimination in admissions, Boalt's entering class enrolled 14 blacks and 36 Hispanics.[ Footnote 9 ] University of California Law and Medical School Enrollments, available at http://www.ucop.edu/acadadv/datamgmt/lawmed/law-enrolls-eth2.html. Total underrepresented minority student enrollment at Boalt Hall now exceeds 1996 levels. Apparently the Law School cannot be counted on to be as resourceful. The Court is willfully blind to the very real experience in California and elsewhere, which raises the inference that institutions with "reputation[s] for excellence," ante , at 339, rivaling the Law School's have satisfied their sense of mission without resorting to prohibited racial discrimination. V Putting aside the absence of any legal support for the majority's reflexive deference, there is much to be said for the view that the use of tests and other measures to "predict" academic performance is a poor substitute for a system that gives every applicant a chance to prove he can succeed in the study of law. The rallying cry that in the absence of racial discrimination in admissions there would be a true [368] meritocracy ignores the fact that the entire process is poisoned by numerous exceptions to "merit." For example, in the national debate on racial discrimination in higher education admissions, much has been made of the fact that elite institutions utilize a so-called "legacy" preference to give the children of alumni an advantage in admissions. This, and other, exceptions to a "true" meritocracy give the lie to protestations that merit admissions are in fact the order of the day at the Nation's universities. The Equal Protection Clause does not, however, prohibit the use of unseemly legacy preferences or many other kinds of arbitrary admissions procedures. What the Equal Protection Clause does prohibit are classifications made on the basis of race. So while legacy preferences can stand under the Constitution, racial discrimination cannot.[ Footnote 10 ] I will not twist the Constitution to invalidate legacy preferences or otherwise impose my vision of higher education admissions on the Nation. The majority should similarly stay its impulse to validate faddish racial discrimination the Constitution clearly forbids. In any event, there is nothing ancient, honorable, or constitutionally protected about "selective" admissions. The University of Michigan should be well aware that alternative methods have historically been used for the admission of students, for it brought to this country the German certificate system in the late-19th century. See H. Wechsler, The Qualified Student 16-39 (1977) (hereinafter Qualified Student). Under this system, a secondary school was certified by a university so that any graduate who completed the course offered by the school was offered admission to the university. The certification regime supplemented, and later virtually replaced (at least in the Midwest), the prior regime of rigor- [369] ous subject-matter entrance examinations. Id. , at 57-58. The facially race-neutral "percent plans" now used in Texas, California, and Florida, see ante , at 340, are in many ways the descendents of the certificate system. Certification was replaced by selective admissions in the beginning of the 20th century, as universities sought to exercise more control over the composition of their student bodies. Since its inception, selective admissions has been the vehicle for racial, ethnic, and religious tinkering and experimentation by university administrators. The initial driving force for the relocation of the selective function from the high school to the universities was the same desire to select racial winners and losers that the Law School exhibits today. Columbia, Harvard, and others infamously determined that they had "too many" Jews, just as today the Law School argues it would have "too many" whites if it could not discriminate in its admissions process. See Qualified Student 155-168 (Columbia); H. Broun & G. Britt, Christians Only: A Study in Prejudice 53-54 (1931) (Harvard). Columbia employed intelligence tests precisely because Jewish applicants, who were predominantly immigrants, scored worse on such tests. Thus, Columbia could claim (falsely) that" '[w]e have not eliminated boys because they were Jews and do not propose to do so. We have honestly attempted to eliminate the lowest grade of applicant [through the use of intelligence testing] and it turns out that a good many of the low grade men are New York City Jews.''' Letter from Herbert E. Hawkes, dean of Columbia College, to E. B. Wilson, June 16, 1922 (reprinted in Qualified Student 160-161). In other words, the tests were adopted with full knowledge of their disparate impact. Cf. DeFunis v. Odegaard , 416 U. S. 312 , 335 (1974) (per curiam) (Douglas, J., dissenting). Similarly no modern law school can claim ignorance of the poor performance of blacks, relatively speaking, on the Law School Admission Test (LSAT). Nevertheless, law schools [370] continue to use the test and then attempt to "correct" for black underperformance by using racial discrimination in admissions so as to obtain their aesthetic student body. The Law School's continued adherence to measures it knows produce racially skewed results is not entitled to deference by this Court. See Part IV; supra. The Law School itself admits that the test is imperfect, as it must, given that it regularly admits students who score at or below 150 (the national median) on the test. See App. 156-203 (showing that, between 1995 and 2000, the Law School admitted 37 students-27 of whom were black; 31 of whom were "underrepresented minorities"-with LSAT scores of 150 or lower). And the Law School's amici cannot seem to agree on the fundamental question whether the test itself is useful. Compare Brief for Law School Admission Council as Amicus Curiae 12 ("LSAT scores . . . are an effective predictor of students' performance in law school") with Brief for Harvard Black Law Students Association et al. as Amici Curiae 27 ("Whether [the LSAT] measure[s] objective merit . . . is certainly questionable"). Having decided to use the LSAT, the Law School must accept the constitutional burdens that come with this decision. The Law School may freely continue to employ the LSAT and other allegedly merit-based standards in whatever fashion it likes. What the Equal Protection Clause forbids, but the Court today allows, is the use of these standards hand-in-hand with racial discrimination. An infinite variety of admissions methods are available to the Law School. Considering all of the radical thinking that has historically occurred at this country's universities, the Law School's intractable approach toward admissions is striking. The Court will not even deign to make the Law School try other methods, however, preferring instead to grant a 25-year license to violate the Constitution. And the same Court that had the courage to order the desegregation of all public schools in the South now fears, on the basis of plati- [371] tudes rather than principle, to force the Law School to abandon a decidedly imperfect admissions regime that provides the basis for racial discrimination. VI The absence of any articulated legal principle supporting the majority's principal holding suggests another rationale. I believe what lies beneath the Court's decision today are the benighted notions that one can tell when racial discrimination benefits (rather than hurts) minority groups, see Adarand , 515 U. S., at 239 (SCALIA, J., concurring in part and concurring in judgment), and that racial discrimination is necessary to remedy general societal ills. This Court's precedents supposedly settled both issues, but clearly the majority still cannot commit to the principle that racial classifications are per se harmful and that almost no amount of benefit in the eye of the beholder can justify such classifications. Putting aside what I take to be the Court's implicit rejection of Adarand's holding that beneficial and burdensome racial classifications are equally invalid, I must contest the notion that the Law School's discrimination benefits those admitted as a result of it. The Court spends considerable time discussing the impressive display of amicus support for the Law School in this case from all corners of society. Ante , at 330-331. But nowhere in any of the filings in this Court is any evidence that the purported "beneficiaries" of this racial discrimination prove themselves by performing at (or even near) the same level as those students who receive no preferences. Cf. Thernstrom & Thernstrom, Reflections on the Shape of the River, 46 UCLA L. Rev. 1583, 1605-1608 (1999) (discussing the failure of defenders of racial discrimination in admissions to consider the fact that its "beneficiaries" are underperforming in the classroom). The silence in this case is deafening to those of us who view higher education's purpose as imparting knowledge and skills to students, rather than a communal, rubber-stamp, [372] credentialing process. The Law School is not looking for those students who, despite a lower LSAT score or undergraduate grade point average, will succeed in the study of law. The Law School seeks only a facade-it is sufficient that the class looks right, even if it does not perform right. The Law School tantalizes unprepared students with the promise of a University of Michigan degree and all of the opportunities that it offers. These overmatched students take the bait, only to find that they cannot succeed in the cauldron of competition. And this mismatch crisis is not restricted to elite institutions. See T. Sowell, Race and Culture 176-177 (1994) ("Even if most minority students are able to meet the normal standards at the 'average' range of colleges and universities, the systematic mismatching of minority students begun at the top can mean that such students are generally overmatched throughout all levels of higher education"). Indeed, to cover the tracks of the aestheticists, this cruel farce of racial discrimination must continuein selection for the Michigan Law Review, see University of Michigan Law School Student Handbook 2002-2003, pp. 39-40 (noting the presence of a "diversity plan" for admission to the review), and in hiring at law firms and for judicial clerks hips-until the "beneficiaries" are no longer tolerated. While these students may graduate with law degrees, there is no evidence that they have received a qualitatively better legal education (or become better lawyers) than if they had gone to a less "elite" law school for which they were better prepared. And the aestheticists will never address the real problems facing "underrepresented minorities,"[ Footnote 11 ] instead continuing their social experiments on other people's children. [373] Beyond the harm the Law School's racial discrimination visits upon its test subjects, no social science has disproved the notion that this discrimination "engender[s] attitudes of superiority or, alternatively, provoke[s] resentment among those who believe that they have been wronged by the government's use of race." Adarand , 515 U. S., at 241 (THOMAS, J., concurring in part and concurring in judgment). "These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are 'entitled' to preferences." Ibid. It is uncontested that each year, the Law School admits a handful of blacks who would be admitted in the absence of racial discrimination. See Brief for Respondent Bollinger et al. 6. Who can differentiate between those who belong and those who do not? The majority of blacks are admitted to the Law School because of discrimination, and because of this policy all are tarred as undeserving. This problem of stigma does not depend on determinacy as to whether those stigmatized are actually the "beneficiaries" of racial discrimination. When blacks take positions in the highest places of government, industry, or academia, it is an open question today whether their skin color played a part in their advancement. The question itself is the stigma-because either racial discrimination did playa role, in which case the person may be deemed "otherwise unqualified," or it did not, in which case asking the question itself unfairly marks those blacks who would succeed without discrimination. Is this what the Court means by "visibly open"? Ante , at 332. Finally, the Court's disturbing reference to the importance of the country's law schools as training grounds meant to cultivate "a set of leaders with legitimacy in the eyes of the citizenry," ibid. , through the use of racial discrimination deserves discussion. As noted earlier, the Court has soundly [374] rejected the remedying of societal discrimination as a justification for governmental use of race. Wygant , 476 U. S., at 276 (plurality opinion); Croson , 488 U. S., at 497 (plurality opinion); id. , at 520-521 (SCALIA, J., concurring in judgment). For those who believe that every racial disproportionality in our society is caused by some kind of racial discrimination, there can be no distinction between remedying societal discrimination and erasing racial disproportionalities in the country's leadership caste. And if the lack of proportional racial representation among our leaders is not caused by societal discrimination, then "fixing" it is even less of a pressing public necessity. The Court's civics lesson presents yet another example of judicial selection of a theory of political representation based on skin color-an endeavor I have previously rejected. See Holder v. Hall , 512 U. S. 874 , 899 (1994) (THOMAS, J., concurring in judgment). The majority appears to believe that broader utopian goals justify the Law School's use of race, but "[t]he Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized." DeFunis , 416 U. S., at 342 (Douglas, J., dissenting). VII As the foregoing makes clear, I believe the Court's opinion to be, in most respects, erroneous. I do, however, find two points on which I agree. A First, I note that the issue of unconstitutional racial discrimination among the groups the Law School prefers is not presented in this case, because petitioner has never argued that the Law School engages in such a practice, and the Law School maintains that it does not. See Brief for Respondent Bollinger et al. 32, n. 50, and 6-7, n. 7. I join the Court's opinion insofar as it confirms that this type of racial discrimination remains unlawful. Ante , at 326-327. Under to day's [375] decision, it is still the case that racial discrimination that does not help a university to enroll an unspecified number, or "critical mass," of underrepresented minority students is unconstitutional. Thus, the Law School may not discriminate in admissions between similarly situated blacks and Hispanics, or between whites and Asians. This is so because preferring black to Hispanic applicants, for instance, does nothing to further the interest recognized by the majority today.[ Footnote 12 ] Indeed, the majority describes such racial balancing as "patently unconstitutional." Ante , at 330. Like the Court, ante , at 336, I express no opinion as to whether the Law School's current admissions program runs afoul of this prohibition. B The Court also holds that racial discrimination in admissions should be given another 25 years before it is deemed no longer narrowly tailored to the Law School's fabricated compelling state interest. Ante , at 343. While I agree that in 25 years the practices of the Law School will be illegal, they are, for the reasons I have given, illegal now. The majority does not and cannot rest its time limitation on any evidence that the gap in credentials between black and white [376] students is shrinking or will be gone in that timeframe.[ Footnote 13 ] In recent years there has been virtually no change, for example, in the proportion of law school applicants with LSAT scores of 165 and higher who are black.[ Footnote 14 ] In 1993 blacks constituted 1.1% of law school applicants in that score range, though they represented 11.1% of all applicants. Law School Admission Council, National Statistical Report (1994) (hereinafter LSAC Statistical Report). In 2000 the comparable numbers were 1.0% and 11.3%. LSAC Statistical Report (2001). No one can seriously contend, and the Court does not, that the racial gap in academic credentials will disappear in 25 years. Nor is the Court's holding that racial discrimination will be unconstitutional in 25 years made contingent on the gap closing in that time.[ Footnote 15 ] [377] Indeed, the very existence of racial discrimination of the type practiced by the Law School may impede the narrowing of the LSAT testing gap. An applicant's LSAT score can improve dramatically with preparation, but such preparation is a cost, and there must be sufficient benefits attached to an improved score to justify additional study. Whites scoring between 163 and 167 on the LSAT are routinely rejected by the Law School, and thus whites aspiring to admission at the Law School have every incentive to improve their score to levels above that range. See App. 199 (showing that in 2000, 209 out of 422 white applicants were rejected in this scoring range). Blacks, on the other hand, are nearly guaranteed admission if they score above 155. Id. , at 198 (showing that 63 out of 77 black applicants are accepted with LSAT scores above 155). As admission prospects approach certainty, there is no incentive for the black applicant to continue to prepare for the LSAT once he is reasonably assured of achieving the requisite score. It is far from certain that the LSAT test-taker's behavior is responsive to the Law School's admissions policies.[ Footnote 16 ] Nevertheless, the possibility remains that this racial discrimination will help fulfill the bigot's prophecy about black underperformance-just as it confirms the conspiracy theorist's belief that "institutional racism" is at fault for every racial disparity in our society. I therefore can understand the imposition of a 25-year time limit only as a holding that the deference the Court pays to the Law School's educational judgments and refusal to change its admissions policies will itself expire. At that point these policies will clearly have failed to "'eliminat[e] [378] the [perceived] need for any racial or ethnic'" discrimination because the academic credentials gap will still be there. Ante , at 343 (quoting Nathanson & Bartnik, The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools, 58 Chicago Bar Rec. 282, 293 (MayJune 1977)). The Court defines this time limit in terms of narrow tailoring, see ante , at 343, but I believe this arises from its refusal to define rigorously the broad state interest vindicated today. Cf. Part II, supra. With these observations, I join the last sentence of Part III of the opinion of the Court. *** For the immediate future, however, the majority has placed its imprimatur on a practice that can only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause. "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." Plessy v. Ferguson , 163 U. S. 537 , 559 (1896) (Harlan, J., dissenting). It has been nearly 140 years since Frederick Douglass asked the intellectual ancestors of the Law School to "[d]o nothing with us!" and the Nation adopted the Fourteenth Amendment. Now we must wait another 25 years to see this principle of equality vindicated. I therefore respectfully dissent from the remainder of the Court's opinion and the judgment. CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE THOMAS join, dissenting. I agree with the Court that, "in the limited circumstance when drawing racial distinctions is permissible," the government must ensure that its means are narrowly tailored to achieve a compelling state interest. Ante , at 333; see also Fullilove v. Klutznick , 448 U. S. 448 , 498 (1980) (Powell, J., concurring) ("[E]ven if the government proffers a compelling interest to support reliance upon a suspect classification, the means selected must be narrowly drawn to fulfill the govern- [379] mental purpose"). I do not believe, however, that the University of Michigan Law School's (Law School) means are narrowly tailored to the interest it asserts. The Law School claims it must take the steps it does to achieve a "'critical mass'" of underrepresented minority students. Brief for Respondent Bollinger et al. 13. But its actual program bears no relation to this asserted goal. Stripped of its "critical mass" veil, the Law School's program is revealed as a naked effort to achieve racial balancing. As we have explained many times, '" "[a]ny preference based on racial or ethnic criteria must necessarily receive a most searching examination."'" Adarand Constructors, Inc. v. Peña , 515 U. S. 200 , 223 (1995) (quoting Wygant v. Jackson Bd. of Ed. , 476 U. S. 267 , 273 (1986) (plurality opinion of Powell, J.)). Our cases establish that, in order to withstand this demanding inquiry, respondents must demonstrate that their methods of using race "'fit'" a compelling state interest "with greater precision than any alternative means." Id. , at 280, n. 6; Regents of Univ. of Cal. v. Bakke , 438 U. S. 265 , 299 (1978) (opinion of Powell, J.) ("When [political judgments] touch upon an individual's race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest"). Before the Court's decision today, we consistently applied the same strict scrutiny analysis regardless of the government's purported reason for using race and regardless of the setting in which race was being used. We rejected calls to use more lenient review in the face of claims that race was being used in "good faith" because" '[m]ore than good motives should be required when government seeks to allocate its resources by way of an explicit racial classification systern.'" Adarand, supra , at 226; Fullilove, supra , at 537 (STEVENS, J., dissenting) ("Racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification"). We likewise re- [380] jected calls to apply more lenient review based on the particular setting in which race is being used. Indeed, even in the specific context of higher education, we emphasized that "constitutional limitations protecting individual rights may not be disregarded." Bakke, supra , at 314. Although the Court recites the language of our strict scrutiny analysis, its application of that review is unprecedented in its deference. Respondents' asserted justification for the Law School's use of race in the admissions process is "obtaining 'the educational benefits that flow from a diverse student body.'" Ante , at 328 (quoting Brief for Respondent Bollinger et al. i). They contend that a "critical mass" of underrepresented minorities is necessary to further that interest. Ante , at 330. Respondents and school administrators explain generally that "critical mass" means a sufficient number of underrepresented minority students to achieve several objectives: To ensure that these minority students do not feel isolated or like spokespersons for their race; to provide adequate opportunities for the type of interaction upon which the educational benefits of diversity depend; and to challenge all students to think critically and reexamine stereotypes. See App. to Pet. for Cert. 211a; Brief for Respondent Bollinger et al. 26. These objectives indicate that "critical mass" relates to the size of the student body. Id. , at 5 (claiming that the Law School has enrolled "critical mass," or "enough minority students to provide meaningful integration of its classrooms and residence halls"). Respondents further claim that the Law School is achieving "critical mass." Id. , at 4 (noting that the Law School's goals have been "greatly furthered by the presence of . . . a 'critical mass' of" minority students in the student body). In practice, the Law School's program bears little or no relation to its asserted goal of achieving "critical mass." Respondents explain that the Law School seeks to accumulate a "critical mass" of each underrepresented minority [381] group. See, e.g. , id. , at 49, n. 79 ("The Law School's . . . current policy . . . provide[s] a special commitment to enrolling a 'critical mass' of 'Hispanics' "). But the record demonstrates that the Law School's admissions practices with respect to these groups differ dramatically and cannot be defended under any consistent use of the term "critical mass." From 1995 through 2000, the Law School admitted between 1,130 and 1,310 students. Of those, between 13 and 19 were Native American, between 91 and 108 were African-American, and between 47 and 56 were Hispanic. If the Law School is admitting between 91 and 108 AfricanAmericans in order to achieve "critical mass," thereby preventing African-American students from feeling "isolated or like spokespersons for their race," one would think that a number of the same order of magnitude would be necessary to accomplish the same purpose for Hispanics and Native Americans. Similarly, even if all of the Native American applicants admitted in a given year matriculate, which the record demonstrates is not at all the case,[ Footnote * ] how can this possibly constitute a "critical mass" of Native Americans in a class of over 350 students? In order for this pattern of admission to be consistent with the Law School's explanation of "critical mass," one would have to believe that the objectives of "critical mass" offered by respondents are achieved with only half the number of Hispanics and one-sixth the number of Native Americans as compared to AfricanAmericans. But respondents offer no race-specific reasons for such disparities. Instead, they simply emphasize the importance of achieving "critical mass," without any explanation of why that concept is applied differently among the three underrepresented minority groups. [382] These different numbers, moreover, come only as a result of substantially different treatment among the three underrepresented minority groups, as is apparent in an example offered by the Law School and highlighted by the Court: The school asserts that it "frequently accepts nonminority applicants with grades and test scores lower than underrepresented minority applicants (and other nonminority applicants) who are rejected." Ante , at 338 (citing Brief for Respondent Bollinger et al. 10). Specifically, the Law School states that "[s]ixty-nine minority applicants were rejected between 1995 and 2000 with at least a 3.5 [Grade Point Average (GPA)] and a [score of] 159 or higher on the [Law School Admission Test (LSAT)]" while a number of Caucasian and Asian-American applicants with similar or lower scores were admitted. Ibid. Review of the record reveals only 67 such individuals. Of these 67 individuals, 56 were Hispanic, while only 6 were African-American, and only 5 were Native American. This discrepancy reflects a consistent practice. For example, in 2000, 12 Hispanics who scored between a 159-160 on the LSAT and earned a GPA of 3.00 or higher applied for admission and only 2 were admitted. App. 200-201. Meanwhile, 12 African-Americans in the same range of qualifications applied for admission and all 12 were admitted. Id. , at 198. Likewise, that same year, 16 Hispanics who scored between a 151-153 on the LSAT and earned a 3.00 or higher applied for admission and only 1 of those applicants was admitted. Id. , at 200-201. Twenty-three similarly qualified AfricanAmericans applied for admission and 14 were admitted. Id. , at 198. These statistics have a significant bearing on petitioner's case. Respondents have never offered any race-specific arguments explaining why significantly more individuals from one underrepresented minority group are needed in order to achieve "critical mass" or further student body diversity. They certainly have not explained why Hispanics, who they [383] have said are among "the groups most isolated by racial barriers in our country," should have their admission capped out in this manner. Brief for Respondent Bollinger et al. 50. True, petitioner is neither Hispanic nor Native American. But the Law School's disparate admissions practices with respect to these minority groups demonstrate that its alleged goal of "critical mass" is simply a sham. Petitioner may use these statistics to expose this sham, which is the basis for the Law School's admission of less qualified underrepresented minorities in preference to her. Surely strict scrutiny cannot permit these sorts of disparities without at least some explanation. Only when the "critical mass" label is discarded does a likely explanation for these numbers emerge. The Court states that the Law School's goal of attaining a "critical mass" of underrepresented minority students is not an interest in merely" 'assur[ing] within its student body some specified percentage of a particular group merely because of its race or ethnic origin.'" Ante , at 329 (quoting Bakke, 438 U. S., at 307 (opinion of Powell, J.)). The Court recognizes that such an interest "would amount to outright racial balancing, which is patently unconstitutional." Ante , at 330. The Court concludes, however, that the Law School's use of race in admissions, consistent with Justice Powell's opinion in Bakke , only pays" '[s]ome attention to numbers.'" Ante , at 336 (quoting Bakke, supra , at 323). But the correlation between the percentage of the Law School's pool of applicants who are members of the three minority groups and the percentage of the admitted applicants who are members of these same groups is far too precise to be dismissed as merely the result of the school paying "some attention to [the] numbers." As the tables below show, from 1995 through 2000 the percentage of admitted applicants who were members of these minority groups closely tracked the percentage of individuals in the school's applicant pool who were from the same groups. [384] Table 1 Year Number of law school applicants Number of African-American applicants % of applicants who were African-American Number of applicants admitted by the law school Number of African-American applicants admitted % of admitted applicants who were African-American 1995 4147 404 9.7% 1130 106 9.4% 1996 3677 342 9.3% 1170 108 9.2% 1997 3429 320 9.3% 1218 101 8.3% 1998 3537 304 8.6% 1310 103 7.9% 1999 3400 247 7.3% 1280 91 7.1% 2000 3432 259 7.5% 1249 91 7.3% Table 2 Year Number of law school applicants Number of Hispanic applicants % of applicants who were Hispanic Number of applicants admitted by the law school Number of Hispanic applicants admitted % of admitted applicants who were Hispanic 1995 4147 213 5.1% 1130 56 5.0% 1996 3677 186 5.1% 1170 54 4.6% 1997 3429 163 4.8% 1218 47 3.9% 1998 3537 150 4.2% 1310 55 4.2% 1999 3400 152 4.5% 1280 48 3.8% 2000 3432 168 4.9% 1249 53 4.2% Table 3 Year Number of law school applicants Number of Native American applicants % of applicants who were Native American Number of applicants admitted by the law school Number of Native American applicants admitted % of admitted applicants who were Native American 1995 4147 45 1.1% 1130 14 1.2% 1996 3677 31 0.8% 1170 13 1.1% 1997 3429 37 1.1% 1218 19 1.6% 1998 3537 40 1.1% 1310 18 1.4% 1999 3400 25 0.7% 1280 13 1.0% 2000 3432 35 1.0% 1249 14 1.1% [385] For example, in 1995, when 9.7% of the applicant pool was African-American, 9.4% of the admitted class was African-American. By 2000, only 7.5% of the applicant pool was African-American, and 7.3% of the admitted class was African-American. This correlation is striking. Respondents themselves emphasize that the number of underrepresented minority students admitted to the Law School would be significantly smaller if the race of each applicant were not considered. See App. to Pet. for Cert. 223a; Brief for Respondent Bollinger et al. 6 (quoting App. to Pet. for Cert. 299a). But, as the examples above illustrate, the measure of the decrease would differ dramatically among the groups. The tight correlation between the percentage of applicants and admittees of a given race, therefore, must result from careful race based planning by the Law School. It suggests a formula for admission based on the aspirational assumption that all applicants are equally qualified academically, and therefore that the proportion of each group admitted should be the same as the proportion of that group in the applicant pool. See Brief for Respondent Bollinger et al. 43, n. 70 (discussing admissions officers' use of "periodic reports" to track "the racial composition of the developing class"). Not only do respondents fail to explain this phenomenon, they attempt to obscure it. See id. , at 32, n. 50 ("The Law School's minority enrollment percentages . . . diverged from the percentages in the applicant pool by as much as 17.7% from 1995-2000"). But the divergence between the percentages of underrepresented minorities in the applicant pool and in the enrolled classes is not the only relevant comparison. In fact, it may not be the most relevant comparison. The Law School cannot precisely control which of its admitted applicants decide to attend the university. But it can and, as the numbers demonstrate, clearly does employ racial preferences in extending offers of admission. Indeed, the ostensibly flexible nature of the Law School's admissions program [386] that the Court finds appealing, see ante , at 337-338, appears to be, in practice, a carefully managed program designed to ensure proportionate representation of applicants from selected minority groups. I do not believe that the Constitution gives the Law School such free rein in the use of race. The Law School has offered no explanation for its actual admissions practices and, unexplained, we are bound to conclude that the Law School has managed its admissions program, not to achieve a "critical mass," but to extend offers of admission to members of selected minority groups in proportion to their statistical representation in the applicant pool. But this is precisely the type of racial balancing that the Court itself calls "patently unconstitutional." Ante , at 330. Finally, I believe that the Law School's program fails strict scrutiny because it is devoid of any reasonably precise time limit on the Law School's use of race in admissions. We have emphasized that we will consider "the planned duration of the remedy" in determining whether a race-conscious program is constitutional. Fullilove , 448 U. S., at 510 (Powell, J., concurring); see also United States v. Paradise , 480 U. S. 149 ,171 (1987) ("In determining whether race-conscious remedies are appropriate, we look to several factors, including the . . . duration of the relief"). Our previous cases have required some limit on the duration of programs such as this because discrimination on the basis of race is invidious. The Court suggests a possible 25-year limitation on the Law School's current program. See ante , at 343. Respondents, on the other hand, remain more ambiguous, explaining that "[t]he Law School of course recognizes that race-conscious programs must have reasonable durational limits, and the Sixth Circuit properly found such a limit in the Law School's resolve to cease considering race when genuine race-neutral alternatives become available." Brief for Respondent Bollinger et al. 32. These discussions of a time [387] limit are the vaguest of assurances. In truth, they permit the Law School's use of racial preferences on a seemingly permanent basis. Thus, an important component of strict scrutiny-that a program be limited in time-is casually subverted. The Court, in an unprecedented display of deference under our strict scrutiny analysis, upholds the Law School's program despite its obvious flaws. We have said that when it comes to the use of race, the connection between the ends and the means used to attain them must be precise. But here the flaw is deeper than that; it is not merely a question of "fit" between ends and means. Here the means actually used are forbidden by the Equal Protection Clause of the Constitution. JUSTICE KENNEDY, dissenting. The separate opinion by Justice Powell in Regents of Univ. of Cal. v. Bakke , 438 U. S. 265 , 289-291, 315-318 (1978), is based on the principle that a university admissions program may take account of race as one, nonpredominant factor in a system designed to consider each applicant as an individual, provided the program can meet the test of strict scrutiny by the judiciary. This is a unitary formulation. If strict scrutiny is abandoned or manipulated to distort its real and accepted meaning, the Court lacks authority to approve the use of race even in this modest, limited way. The opinion by Justice Powell, in my view, states the correct rule for resolving this case. The Court, however, does not apply strict scrutiny. By trying to say otherwise, it undermines both the test and its own controlling precedents. Justice Powell's approval of the use of race in university admissions reflected a tradition, grounded in the First Amendment, of acknowledging a university's conception of its educational mission. Id. , at 312-314; ante , at 329. Our precedents provide a basis for the Court's acceptance of a university's considered judgment that racial diversity among [388] students can further its educational task, when supported by empirical evidence. Ante , at 329-331. It is unfortunate, however, that the Court takes the first part of Justice Powell's rule but abandons the second. Having approved the use of race as a factor in the admissions process, the majority proceeds to nullify the essential safeguard Justice Powell insisted upon as the precondition of the approval. The safeguard was rigorous judicial review, with strict scrutiny as the controlling standard. Bakke, supra , at 291 ("Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination"). This Court has reaffirmed, subsequent to Bakke , the absolute necessity of strict scrutiny when the State uses race as an operative category. Adarand Constructors, Inc. v. Peña , 515 U. S. 200 , 224 (1995) ("[A]ny person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny"); Richmond v. J. A. Croson Co. , 488 U. S. 469 , 493-494 (1989); see id. , at 519 (KENNEDY, J., concurring in part and concurring in judgment) ("[A]ny racial preference must face the most rigorous scrutiny by the courts"). The Court confuses deference to a university's definition of its educational objective with deference to the implementation of this goal. In the context of university admissions the objective of racial diversity can be accepted based on empirical data known to us, but deference is not to be given with respect to the methods by which it is pursued. Preferment by race, when resorted to by the State, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality. The majority today refuses to be faithful to the settled principle of strict review designed to reflect these concerns. The Court, in a review that is nothing short of perfunctory, accepts the University of Michigan Law School's (Law [389] School) assurances that its admissions process meets with constitutional requirements. The majority fails to confront the reality of how the Law School's admissions policy is implemented. The dissenting opinion by THE CHIEF JUSTICE, which I join in full, demonstrates beyond question why the concept of critical mass is a delusion used by the Law School to mask its attempt to make race an automatic factor in most instances and to achieve numerical goals indistinguishable from quotas. An effort to achieve racial balance among the minorities the school seeks to attract is, by the Court's own admission, "patently unconstitutional." Ante , at 330; see also Bakke, supra , at 307 (opinion of Powell, J.). It remains to point out how critical mass becomes inconsistent with individual consideration in some more specific aspects of the admissions process. About 80% to 85% of the places in the entering class are given to applicants in the upper range of Law School Admissions Test scores and grades. An applicant with these credentials likely will be admitted without consideration of race or ethnicity. With respect to the remaining 15% to 20% of the seats, race is likely outcome determinative for many members of minority groups. That is where the competition becomes tight and where any given applicant's chance of admission is far smaller if he or she lacks minority status. At this point the numerical concept of critical mass has the real potential to compromise individual review. The Law School has not demonstrated how individual consideration is, or can be, preserved at this stage of the application process given the instruction to attain what it calls critical mass. In fact the evidence shows otherwise. There was little deviation among admitted minority students during the years from 1995 to 1998. The percentage of enrolled minorities fluctuated only by 0.3%, from 13.5% to 13.8%. The number of minority students to whom offers were extended varied by just a slightly greater magnitude of 2.2%, from the high of 15.6% in 1995 to the low of 13.4% in 1998. [390] The District Court relied on this uncontested fact to draw an inference that the Law School's pursuit of critical mass mutated into the equivalent of a quota. 137 F. Supp. 2d 821, 851 (ED Mich. 2001). Admittedly, there were greater fluctuations among enrolled minorities in the preceding years, 1987-1994, by as much as 5% or 6%. The percentage of minority offers, however, at no point fell below 12%, historically defined by the Law School as the bottom of its critical mass range. The greater variance during the earlier years, in any event, does not dispel suspicion that the school engaged in racial balancing. The data would be consistent with an inference that the Law School modified its target only twice, in 1991 (from 13% to 19%), and then again in 1995 (back from 20% to 13%). The intervening year, 1993, when the percentage dropped to 14.5%, could be an aberration, caused by the school's miscalculation as to how many applicants with offers would accept or by its redefinition, made in April 1992, of which minority groups were entitled to race-based preference. See Brief for Respondent Bollinger et al. 49, n. 79. Year Percentage of enrolled minority students 1987 12.3% 1988 13.6% 1989 14.4% 1990 13.4% 1991 19.1% 1992 19.8% 1993 14.5% 1994 20.1% 1995 13.5% 1996 13.8% 1997 13.6% 1998 13.8% The narrow fluctuation band raises an inference that the Law School subverted individual determination, and strict [391] scrutiny requires the Law School to overcome the inference. Whether the objective of critical mass "is described as a quota or a goal, it is a line drawn on the basis of race and ethnic status," and so risks compromising individual assessment. Bakke , 438 U. S., at 289 (opinion of Powell, J.). In this respect the Law School program compares unfavorably with the experience of Little Ivy League colleges. Amicus Amherst College, for example, informs us that the offers it extended to students of African-American background during the period from 1993 to 2002 ranged between 81 and 125 out of 950 offers total, resulting in a fluctuation from 24 to 49 matriculated students in a class of about 425. See Brief for Amherst College et al. as Amici Curiae 10-11. The Law School insisted upon a much smaller fluctuation, both in the offers extended and in the students who eventually enrolled, despite having a comparable class size. The Law School has the burden of proving, in conformance with the standard of strict scrutiny, that it did not utilize race in an unconstitutional way. Adarand Constructors, 515 U. S., at 224. At the very least, the constancy of admitted minority students and the close correlation between the racial breakdown of admitted minorities and the composition of the applicant pool, discussed by THE CHIEF JUSTICE, ante , at 380-386, require the Law School either to produce a convincing explanation or to show it has taken adequate steps to ensure individual assessment. The Law School does neither. The obvious tension between the pursuit of critical mass and the requirement of individual review increased by the end of the admissions season. Most of the decisions where race may decide the outcome are made during this period. See supra , at 389. The admissions officers consulted the daily reports which indicated the composition of the incoming class along racial lines. As Dennis Shields, Director of Admissions from 1991 to 1996, stated, "the further [he] went into the [admissions] season the more frequently [he] would [392] want to look at these [reports] and see the change from dayto-day." These reports would "track exactly where [the Law School] st[ood] at any given time in assembling the class," and so would tell the admissions personnel whether they were short of assembling a critical mass of minority students. Shields generated these reports because the Law School's admissions policy told him the racial makeup of the entering class was "something [he] need[ed] to be concerned about," and so he had "to find a way of tracking what's going on." Deposition of Dennis Shields in Civ. Action No. 9775928, pp. 129-130, 141 (ED Mich., Dec. 7, 1998). The consultation of daily reports during the last stages in the admissions process suggests there was no further attempt at individual review save for race itself. The admissions officers could use the reports to recalibrate the plus factor given to race depending on how close they were to achieving the Law School's goal of critical mass. The bonus factor of race would then become divorced from individual review; it would be premised instead on the numerical objective set by the Law School. The Law School made no effort to guard against this danger. It provided no guidelines to its admissions personnel on how to reconcile individual assessment with the directive to admit a critical mass of minority students. The admissions program could have been structured to eliminate at least some of the risk that the promise of individual evaluation was not being kept. The daily consideration of racial breakdown of admitted students is not a feature of affirmative-action programs used by other institutions of higher learning. The Little Ivy League colleges, for instance, do not keep ongoing tallies of racial or ethnic composition of their entering students. See Brief for Amherst College et al. as Amici Curiae 10. To be constitutional, a university's compelling interest in a diverse student body must be achieved by a system where individual assessment is safeguarded through the entire process. There is no constitutional objection to the goal of [393] considering race as one modest factor among many others to achieve diversity, but an educational institution must ensure, through sufficient procedures, that each applicant receives individual consideration and that race does not become a predominant factor in the admissions decisionmaking. The Law School failed to comply with this requirement, and by no means has it carried its burden to show otherwise by the test of strict scrutiny. The Court's refusal to apply meaningful strict scrutiny will lead to serious consequences. By deferring to the law schools' choice of minority admissions programs, the courts will lose the talents and resources of the faculties and administrators in devising new and fairer ways to ensure individual consideration. Constant and rigorous judicial review forces the law school faculties to undertake their responsibilities as state employees in this most sensitive of areas with utmost fidelity to the mandate of the Constitution. Dean Allan Stillwagon, who directed the Law School's Office of Admissions from 1979 to 1990, explained the difficulties he encountered in defining racial groups entitled to benefit under the Law School's affirmative action policy. He testified that faculty members were "breathtakingly cynical" in deciding who would qualify as a member of underrepresented minorities. An example he offered was faculty debate as to whether Cubans should be counted as Hispanics: One professor objected on the grounds that Cubans were Republicans. Many academics at other law schools who are "affirmative action's more forthright defenders readily concede that diversity is merely the current rationale of convenience for a policy that they prefer to justify on other grounds." Schuck, Affirmative Action: Past, Present, and Future, 20 Yale L. & Pol'y Rev. 1, 34 (2002) (citing Levinson, Diversity, 2 U. Pa. J. Const. L. 573, 577-578 (2000); Rubenfeld, Affirmative Action, 107 Yale L. J. 427, 471 (1997)). This is not to suggest the faculty at Michigan or other law schools do not pursue aspirations they consider laudable and consistent with our constitutional [394] traditions. It is but further evidence of the necessity for scrutiny that is real, not feigned, where the corrosive category of race is a factor in decisionmaking. Prospective students, the courts, and the public can demand that the State and its law schools prove their process is fair and constitutional in every phase of implementation. It is difficult to assess the Court's pronouncement that race-conscious admissions programs will be unnecessary 25 years from now. Ante , at 341-343. If it is intended to mitigate the damage the Court does to the concept of strict scrutiny, neither petitioner nor other rejected law school applicants will find solace in knowing the basic protection put in place by Justice Powell will be suspended for a full quarter of a century. Deference is antithetical to strict scrutiny, not consistent with it. As to the interpretation that the opinion contains its own self-destruct mechanism, the majority's abandonment of strict scrutiny undermines this objective. Were the courts to apply a searching standard to race-based admissions schemes, that would force educational institutions to seriously explore race-neutral alternatives. The Court, by contrast, is willing to be satisfied by the Law School's profession of its own good faith. The majority admits as much: "We take the Law School at its word that it would 'like nothing better than to find a race-neutral admissions formula' and will terminate its race-conscious admissions program as soon as practicable." Ante , at 343 (quoting Brief for Respondent Bollinger et al. 34). If universities are given the latitude to administer programs that are tantamount to quotas, they will have few incentives to make the existing minority admissions schemes transparent and protective of individual review. The unhappy consequence will be to perpetuate the hostilities that proper consideration of race is designed to avoid. The perpetuation, of course, would be the worst of all outcomes. Other programs do exist which will be more effective in [395] bringing about the harmony and mutual respect among all citizens that our constitutional tradition has always sought. They, and not the program under review here, should be the model, even if the Court defaults by not demanding it. It is regrettable the Court's important holding allowing racial minorities to have their special circumstances considered in order to improve their educational opportunities is accompanied by a suspension of the strict scrutiny which was the predicate of allowing race to be considered in the first place. If the Court abdicates its constitutional duty to give strict scrutiny to the use of race in university admissions, it negates my authority to approve the use of race in pursuit of student diversity. The Constitution cannot confer the right to classify on the basis of race even in this special context absent searching judicial review. For these reasons, though I reiterate my approval of giving appropriate consideration to race in this one context, I must dissent in the present case. [ Footnote * ] Briefs of amici curiae urging reversal were filed for the State of Florida et al. by Charlie Crist , Attorney General of Florida, Christopher M. Kise , Solicitor General, Louis F. Hubener , Deputy Solicitor General, and Daniel Woodring; for the Cato Institute by Robert A. Levy, Timothy Lynch, James L. Swanson , and Samuel Estreicher; for the Center for Equal Opportunity et al. by Roger Clegg and C. Mark Pickrell; for the Center for Individual Freedom by Renee L. Giachino; for the Center for New Black Leadership by Clint Bolick, William H. Mellor , and Richard D. Komer; for the Center for the Advancement of Capitalism by David Reed Burton; for the Claremont Institute Center for Constitutional Jurisprudence by Edwin Meese III; for the Michigan Association of Scholars by William F. Mohrman; for the National Association of Scholars by William H. Allen, Oscar M. Garibaldi , and Keith A. Noreika; for the Pacific Legal Foundation by John H. Findley; for Law Professor Larry Alexander et al. by Erik S. Jaffe; and for the Reason Foundation by Martin S. Kaufman. Briefs of amici curiae urging affirmance were filed for the State of Maryland et al. by J. Joseph Curran, Jr. , Attorney General of Maryland, Andrew H. Baida , Solicitor General, Mark J. Davis and William F. Brockman , Assistant Attorneys General, Eliot Spitzer , Attorney General of New York, Caitlin J. Halligan , Solicitor General, Michelle Aronowitz , Deputy Solicitor General, and Julie Mathy Sheridan and Sachin S. Pandya , Assistant Solicitors General, and by the Attorneys General for their respective jurisdictions as follows: Terry Goddard of Arizona, Bill Lockyer of California, Ken Salazar of Colorado, Richard Blumenthal of Connecticut, Lisa Madigan of Illinois, Thomas J. Miller of Iowa, G. Steven Rowe of Maine, Thomas F. Reilly of Massachusetts, Mike Hatch of Minnesota, Mike McGrath of Montana, Patricia A. Madrid of New Mexico, Roy Cooper of North Carolina, W A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Patrick Lynch of Rhode Island, William H. Sorrell of Vermont, Iver A. Stridiron of the Virgin Islands, Christine Q Gregoire of Washington, Darrell V. McGraw, Jr. , of West Virginia, and Peggy A. Lautenschlager of Wisconsin; for the State of New Jersey by David Samson , Attorney General, Jeffrey Burstein , Assistant Attorney General, and Donna Arons and Anne Marie Kelly , Deputy Attorneys General; for New York City Council Speaker A. Gifford Miller et al. by Jack Greenberg and Saul B. Shapiro; for the City of Philadelphia, Pennsylvania, et al. by Victor A. Bolden and Nelson A. Diaz; for the American Bar Association by Paul M. Dodyk and Rowan D. Wilson; for the American Educational Research Association et al. by Angelo N. Ancheta; for the American Jewish Committee et al. by Stewart D. Aaron, Thomas M. Jancik, Jeffrey P. Sinensky, Kara H. Stein , and Richard T. Foltin; for the American Law Deans Association by Samuel Issacharoff; for the American Psychological Association by Paul R. Friedman, William F. Sheehan , and Nathalie F. P. Gilfoyle; for the American Sociological Association et al. by Bill Lann Lee and Deborah J. Merritt; for Amherst College et al. by Charles S. Sims; for the Arizona State University College of Law by Ralph S. Spritzer and Paul Bender; for the Association of American Law Schools by Pamela S. Karlan; for the Association of American Medical Colleges et al. by Robert A. Burgoyne and Joseph A. Keyes, Jr.; for the Bay Mills Indian Community et al. by Vanya S. Hogen; for the Clinical Legal Education Association by Timothy A. Nelsen, Frances P. Kao , and Eric J. Gorman; for Columbia University et al. by Floyd Abrams and Susan Buckley; for the Graduate Management Admission Council et al. by Stephen M. McNabb; for the Harvard Black Law Students Association et al. by George W Jones, Jr., William J. Jefferson, Theodore V. Wells, Jr. , and David W Brown; for Harvard University et al. by Laurence H. Tribe, Jonathan S. Massey, Beverly Ledbetter, Robert B. Donin , and Wendy S. White; for the Hispanic National Bar Association et al. by Gilbert Paul Carrasco; for Howard University by Janell M. Byrd; for Indiana University by James Fitzpatrick, Lauren K. Robel , and Jeffrey Evans Stake; for the King County Bar Association by John Warner Widell, John H. Chun , and Melissa O'Loughlin White; for the Law School Admission Council by Walter Dellinger, Pamela Harris , and Jonathan D. Hacker; for the Lawyers' Committee for Civil Rights Under Law et al. by John S. Skilton, David E. Jones, Barbara R. Arnwine, Thomas J. Henderson, Dennis C. Hayes, Marcia D. Greenberger , and Judith L. Lichtman; for the Leadership Conference on Civil Rights et al. by Robert N. Weiner and William L. Taylor; for the Mexican American Legal Defense and Educational Fund et al. by Antonia Hernandez; for the Michigan Black Law Alumni Society by Christopher J. Wright, Timothy J. Simeone , and Kathleen McCree Lewis; for the NAACP Legal Defense and Educational Fund, Inc., et al. by Theodore M. Shaw, Norman J. Chachkin, Robert H. Stroup, Elise C. Boddie , and Christopher A. Hansen; for the National Center for Fair & Open Testing by John T. Affeldt and Mark Savage; for the National Coalition of Blacks for Reparations in America et al. by Kevin Outterson; for the National Education Association et al. by Robert H. Chanin, John M. West, Elliot Mincberg, Larry P. Weinberg , and John C. Dempsey; for the National Urban League et al. by William A. Norris and Michael C. Small; for the New America Alliance by Thomas R. Julin and D. Patricia Wallace; for the New Mexico Hispanic Bar Association et al. by Edward Benavidez; for the NOW Legal Defense and Educational Fund et al. by Wendy R. Weiser and Martha F. Davis; for the School of Law of the University of North Carolina by John Charles Boger, Julius L. Chambers , and Charles E. Daye; for the Society of American Law Teachers by Michael Selmi and Gabriel J. Chin; for the UCLA School of Law Students of Color by Sonia Mercado; for the United Negro College Fund et al. by Drew S. Days III and Beth S. Brinkmann; for the University of Michigan Asian Pacific American Law Students Association et al. by Jerome S. Hirsch; for the University of Pittsburgh et al. by David C. Frederick and Sean A. Lev; for Judith Areen et al. by Neal Katyal and Kumiki Gibson; for Lieutenant General Julius W. Becton, Jr., et al. by Virginia A. Seitz, Joseph R. Reeder, Robert P. Charrow , and Kevin E. Stern; for Hillary Browne et al. by Gregory Alan Berry; for Senator Thomas A. Daschle et al. by David T. Goldberg and Penny Shane; for the Hayden Family by Roy C. Howell; for Glenn C. Loury by Jeffrey F. Liss and James J. Halpert; and for 13,922 Current Law Students at Accredited American Law Schools by Julie R. O'Sullivan and Peter J. Rubin. Briefs of amici curiae were filed for Michigan Governor Jennifer M. Granholm by John D. Pirich and Mark A. Goldsmith; for Members and Former Members of the Pennsylvania General Assembly et al. by Mark B. Cohen and Eric S. Fillman; for the American Council on Education et al. by Martin Michaelson, Alexander E. Dreier , and Sheldon E. Steinbach; for the American Federation of Labor and Congress of Industrial Organizations by Harold Craig Becker, David J. Strom, Jonathan P. Hiatt , and Daniel W Sherrick; for the Anti-Defamation League by Martin E. Karlinsky and Steven M. Freeman; for the Asian American Legal Foundation by Daniel C. Girard and Gordon M. Fauth, Jr.; for Banks Broadcasting, Inc., by Elizabeth G. Taylor; for the Black Women Lawyers Association of Greater Chicago, Inc., by Sharon E. Jones; for the Boston Bar Association et al. by Thomas E. Dwyer, Jr. , and Joseph L. Kociubes; for the Carnegie Mellon University et al. by W Thomas McGough, Jr., Kathy M. Banke, Gary L. Kaplan , and Edward N. Stoner II; for the Coalition for Economic Equity et al. by Eva J. Paterson and Eric K. Yamamoto; for the Committee of Concerned Black Graduates of ABA Accredited Law Schools et al. by Mary Mack Adu ; for the Criminal Justice Legal Foundation by Kent S. Scheidegger ; for the Equal Employment Advisory Council by Jeffrey A. Norris and Ann Elizabeth Reesman ; for Exxon Mobil Corp. by Richard R. Brann ; for General Motors Corp. by Kenneth S. Geller , Eileen Penner , and Thomas A. Gottschalk ; for Human Rights Advocates et al. by Constance de la Vega ; for the Massachusetts Institute of Technology et al. by Donald B. Ayer , Elizabeth Rees , Debra L. Zumwalt , and Stacey J. Mobley ; for the Massachusetts School of Law by Lawrence R. Velvel ; for the National Asian Pacific American Legal Consortium et al. by Mark A. Packman , Karen K. Narasaki , Vincent A. Eng , and Trang Q. Tran ; for the National School Boards Association et al. by Julie Underwood and Naomi Gittins ; for the New York State Black and Puerto Rican Legislative Caucus by Victor Goode ; for Veterans of the Southern Civil Rights Movement et al. by Mitchell Zimmerman ; for 3M et al. by David W DeBruin , Deanne E. Maynard , Daniel Mach , Russell W Porter, Jr. , Charles R. Wall , Martin J. Barrington , Deval L. Patrick , William J. O'Brien , Gary P. Van Graafeiland , Kathryn A. Oberly , Randall E. Mehrberg , Donald M. Remy , Ben W Heineman, Jr. , Brackett B. Denniston III , Elpidio Villarreal , Wayne A. Budd , J. Richard Smith , Stewart S. Hudnut , John A. Shutkin , Theodore L. Banks , Kenneth C. Frazier , David R. Andrews , Jeffrey B. Kinder , Teresa M. Holland , Charles W Gerdts III , John L. Sander , Mark P. Klein , and Stephen P. Sawyer ; for Ward Connerly by Manuel S. Klausner and Patrick J. Manshardt ; for Representative John Conyers, Jr., et al. by Paul J. Lawrence and Anthony R. Miles ; and for Representative Richard A. Gephardt et al. by Andrew L. Sandler and Mary L. Smith . [ Footnote * ] As the Court explains, the admissions policy challenged here survives review under the standards stated in Adarand Constructors, Inc. v. Peña , 515 U. S. 200 (1995), Richmond v. J. A. Croson Co. , 488 U. S. 469 (1989), and Justice Powell's opinion in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978). This case therefore does not require the Court to revisit whether all governmental classifications by race, whether designed to benefit or to burden a historically disadvantaged group, should be subject to the same standard of judicial review. Cf. Gratz, ante , at 301-302 (GINSBURG, J., dissenting); Adarand , 515 U. S., at 274, n. 8 (GINSBURG, J., dissenting). Nor does this case necessitate reconsideration whether interests other than "student body diversity," ante , at 325, rank as sufficiently important to justify a race-conscious government program. Cf. Gratz, ante , at 301-302 (GINSBURG, J., dissenting); Adarand , 515 U. S., at 273-274 (GINSBURG, J., dissenting). [ Footnote * ] Part VII of JUSTICE THOMAS'S opinion describes those portions of the Court's opinion in which I concur. See post , at 374-378 (opinion concurring in part and dissenting in part). [ Footnote 1 ] Throughout I will use the two phrases interchangeably. [ Footnote 2 ] The Court's refusal to address Wygant's rejection of a state interest virtually indistinguishable from that presented by the Law School is perplexing. If the Court defers to the Law School's judgment that a racially mixed student body confers educational benefits to all, then why would the Wygant Court not defer to the school board's judgment with respect to the benefits a racially mixed faculty confers? [ Footnote 3 ] "[D]iversity," for all of its devotees, is more a fashionable catchphrase than it is a useful term, especially when something as serious as racial discrimination is at issue. Because the Equal Protection Clause renders the color of one's skin constitutionally irrelevant to the Law School's mission, I refer to the Law School's interest as an "aesthetic." That is, the Law School wants to have a certain appearance, from the shape of the desks and tables in its classrooms to the color of the students sitting at them. I also use the term "aesthetic" because I believe it underlines the ineffectiveness of racially discriminatory admissions in actually helping those who are truly underprivileged. Cf. Orr v. Orr , 440 U. S. 268 , 283 (1979) (noting that suspect classifications are especially impermissible when "the choice made by the State appears to redound . . . to the benefit of those without need for special solicitude"). It must be remembered that the Law School's racial discrimination does nothing for those too poor or uneducated to participate in elite higher education and therefore presents only an illusory solution to the challenges facing our Nation. [ Footnote 4 ] The Law School believes both that the educational benefits of a racially engineered student body are large and that adjusting its overall admissions standards to achieve the same racial mix would require it to sacrifice its elite status. If the Law School is correct that the educational benefits of "diversity" are so great, then achieving them by altering admissions standards should not compromise its elite status. The Law School's reluctance to do this suggests that the educational benefits it alleges are not significant or do not exist at all. [ Footnote 5 ] Cf. U. S. News & World Report, America's Best Graduate Schools 28 (2004 ed.) (placing these schools in the uppermost 15 in the Nation). [ Footnote 6 ] The Court refers to this component of the Law School's compelling state interest variously as "academic quality," avoiding "sacrifice [of] a vital component of its educational mission," and "academic selectivity." Ante , at 340. [ Footnote 7 ] For example, North Carolina A&T State University, which is currently 5.4% white, College Admissions Data Handbook 643, could seek to reduce the representation of whites in order to gain additional educational benefits. [ Footnote 8 ] Cal. Const., Art. 1, § 31(a), states in full: "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." See Coalition for Economic Equity v. Wilson , 122 F.3d 692 (CA9 1997). [ Footnote 9 ] Given the incredible deference the Law School receives from the Court, I think it appropriate to indulge in the presumption that Boalt Hall operates without violating California law. [ Footnote 10 ] Were this Court to have the courage to forbid the use of racial discrimination in admissions, legacy preferences (and similar practices) might quickly become less popular-a possibility not lost, I am certain, on the elites (both individual and institutional) supporting the Law School in this case. [ Footnote 11 ] For example, there is no recognition by the Law School in this case that even with their racial discrimination in place, black men are "underrepresented" at the Law School. See ABA-LSAC Guide 426 (reporting that the Law School has 46 black women and 28 black men). Why does the Law School not also discriminate in favor of black men over black women, given this underrepresentation? The answer is, again, that all the Law School cares about is its own image among know-it-all elites, not solving real problems like the crisis of black male underperformance. [ Footnote 12 ] That interest depends on enrolling a "critical mass" of underrepresented minority students, as the majority repeatedly states. Ante , at 316, 318, 319, 330, 333, 335, 340; cf. ante , at 333 (referring to the unique experience of being a "racial minority," as opposed to being black, or Native American); ante , at 335-336 (rejecting argument that the Law School maintains a disguised quota by referring to the total number of enrolled underrepresented minority students, not specific races). As it relates to the Law School's racial discrimination, the Court clearly approves of only one use of race-the distinction between underrepresented minority applicants and those of all other races. A relative preference awarded to a black applicant over, for example, a similarly situated Native American applicant, does not lead to the enrollment of even one more underrepresented minority student, but only balances the races within the "critical mass." [ Footnote 13 ] I agree with JUSTICE GINSBURG that the Court's holding that racial discrimination in admissions will be illegal in 25 years is not based upon a "forecast," post , at 346 (concurring opinion). I do not agree with JUSTICE GINSBURG'S characterization of the Court's holding as an expression of "hope." Ibid. [ Footnote 14 ] 14 I use a score of 165 as the benchmark here because the Law School feels it is the relevant score range for applicant consideration (absent race discrimination). See Brief for Respondent Bollinger et al. 5; App. to Pet. for Cert. 309a (showing that the median LSAT score for all accepted applicants from 1995-1998 was 168); id. , at 310a-311a (showing the median LSAT score for accepted applicants was 167 for the years 1999 and 2000); University of Michigan Law School Website, available at http://www.law.umich.edu/prospectivestudents/Admissions/index.htm (showing that the median LSAT score for accepted applicants in 2002 was 166). [ Footnote 15 ] 15 The majority's non sequitur observation that since 1978 the number of blacks that have scored in these upper ranges on the LSAT has grown, ante , at 343, says nothing about current trends. First, black participation in the LSAT until the early 1990's lagged behind black representation in the general population. For instance, in 1984 only 7.3% of law school applicants were black, whereas in 2000 11.3% oflaw school applicants were black. See LSAC Statistical Reports (1984 and 2000). Today, however, unless blacks were to begin applying to law school in proportions greater than their representation in the general population, the growth in absolute numbers of high scoring blacks should be expected to plateau, and it has. In 1992, 63 black applicants to law school had LSAT scores above 165. In 2000, that number was 65. See LSAC Statistical Reports (1992 and 2000). [ Footnote 16 ] 16 I use the LSAT as an example, but the same incentive structure is in place for any admissions criteria, including undergraduate grades, on which minorities are consistently admitted at thresholds significantly lower than whites. [ Footnote * ] Indeed, during this 5-year time period, enrollment of Native American students dropped to as low as three such students. Any assertion that such a small group constituted a "critical mass" of Native Americans is simply absurd.

The University of Michigan Law School's admissions policy, which considers race as a factor, was challenged by a white applicant who claimed racial discrimination. The court ruled that the Law School's use of race was unlawful, but the Sixth Circuit reversed, citing diversity as a compelling state interest and the policy as narrowly tailored. The Supreme Court affirmed, finding that the Law School's use of race was necessary to further a compelling interest in obtaining the educational benefits of a diverse student body and was narrowly tailored to achieve that goal. The court emphasized that the Law School's policy was flexible and individualized, treating each applicant as a unique person, and did not operate as a quota. However, Justice Thomas dissented, arguing that the Law School's use of race was not narrowly tailored and that the court's decision perpetuated racial discrimination.

Equal Protection

U.S. v. Virginia

https://supreme.justia.com/cases/federal/us/518/515/

OCTOBER TERM, 1995 Syllabus UNITED STATES v. VIRGINIA ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No.94-1941. Argued January 17, 1996-Decided June 26,1996* Virginia Military Institute (VMI) is the sole single-sex school among Virginia's public institutions of higher learning. VMI's distinctive mission is to produce "citizen-soldiers," men prepared for leadership in civilian life and in military service. Using an "adversative method" of training not available elsewhere in Virginia, VMI endeavors to instill physical and mental discipline in its cadets and impart to them a strong moral code. Reflecting the high value alumni place on their VMI training, VMI has the largest per-student endowment of all public undergraduate institutions in the Nation. The United States sued Virginia and VMI, alleging that VMI's exclusively male admission policy violated the Fourteenth Amendment's Equal Protection Clause. The District Court ruled in VMI's favor. The Fourth Circuit reversed and ordered Virginia to remedy the constitutional violation. In response, Virginia proposed a parallel program for women: Virginia Women's Institute for Leadership (VWIL), located at Mary Baldwin College, a private liberal arts school for women. The District Court found that Virginia's proposal satisfied the Constitution's equal protection requirement, and the Fourth Circuit affirmed. The appeals court deferentially reviewed Virginia's plan and determined that provision of single-gender educational options was a legitimate objective. Maintenance of single-sex programs, the court concluded, was essential to that objective. The court recognized, however, that its analysis risked bypassing equal protection scrutiny, so it fashioned an additional test, asking whether VMI and VWIL students would receive "substantively comparable" benefits. Although the Court of Appeals acknowledged that the VWIL degree lacked the historical benefit and prestige of a VMI degree, the court nevertheless found the educational opportunities at the two schools sufficiently comparable. Held: 1. Parties who seek to defend gender-based government action must demonstrate an "exceedingly persuasive justification" for that action. E. g., Mississippi Univ. for Women v. Hogan, 458 U. S. 718 ,724. Nei- *Together with No. 94-2107, Virginia et al. v. United States, also on certiorari to the same court. 516 Syllabus ther federal nor state government acts compatibly with equal protection when a law or official policy denies to women, simply because they are women, full citizenship stature-equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities. To meet the burden of justification, a State must show "at least that the [challenged] classification serves 'important governmental objectives and that the discriminatory means employed' are 'substantially related to the achievement of those objectives.''' Ibid., quoting Wengler v. Druggists Mut. Ins. Co., 446 U. S. 142 , 150. The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females. See, e. g., Weinberger v. Wiesenfeld, 420 U. S. 636 , 643, 648. The heightened review standard applicable to sex-based classifications does not make sex a proscribed classification, but it does mean that categorization by sex may not be used to create or perpetuate the legal, social, and economic inferiority of women. pp. 531-534. 2. Virginia's categorical exclusion of women from the educational opportunities VMI provides denies equal protection to women. Pp. 534-546. (a) Virginia contends that single-sex education yields important educational benefits and that provision of an option for such education fosters diversity in educational approaches. Benign justifications proffered in defense of categorical exclusions, however, must describe actual state purposes, not rationalizations for actions in fact differently grounded. Virginia has not shown that VMI was established, or has been maintained, with a view to diversifying, by its categorical exclusion of women, educational opportunities within the Commonwealth. A purpose genuinely to advance an array of educational options is not served by VMI's historic and constant plan to afford a unique educational benefit only to males. However well this plan serves Virginia's sons, it makes no provision whatever for her daughters. Pp. 535-540. (b) Virginia also argues that VMI's adversative method of training provides educational benefits that cannot be made available, unmodified, to women, and that alterations to accommodate women would necessarily be so drastic as to destroy VMI's program. It is uncontested that women's admission to VMI would require accommodations, primarily in arranging housing assignments and physical training programs for female cadets. It is also undisputed, however, that neither the goal of producing citizen-soldiers, VMI's raison d'etre, nor VMI's implementing methodology is inherently unsuitable to women. The District Court made "findings" on "gender-based developmental differences" that restate the opinions of Virginia's expert witnesses about typically male or typically female "tendencies." Courts, however, must take "a hard 517 look" at generalizations or tendencies of the kind Virginia pressed, for state actors controlling gates to opportunity have no warrant to exclude qualified individuals based on "fixed notions concerning the roles and abilities of males and females." Mississippi Univ. for Women, 458 U. S., at 725. The notion that admission of women would downgrade VMI's stature, destroy the adversative system and, with it, even the school, is a judgment hardly proved, a prediction hardly different from other "self-fulfilling prophec[ies], see id., at 730, once routinely used to deny rights or opportunities. Women's successful entry into the federal military academies, and their participation in the Nation's military forces, indicate that Virginia's fears for VMI's future may not be solidly grounded. The Commonwealth's justification for excluding all women from "citizen-soldier" training for which some are qualified, in any event, does not rank as "exceedingly persuasive." Pp. 540-546. 3. The remedy proffered by Virginia-maintain VMI as a male-only college and create VWIL as a separate program for women-does not cure the constitutional violation. Pp. 546-558. (a) A remedial decree must closely fit the constitutional violation; it must be shaped to place persons unconstitutionally denied an opportunity or advantage in the position they would have occupied in the absence of discrimination. See Milliken v. Bradley, 433 U. S. 267 , 280. The constitutional violation in this case is the categorical exclusion of women, in disregard of their individual merit, from an extraordinary educational opportunity afforded men. Virginia chose to leave untouched VMI's exclusionary policy, and proposed for women only a separate program, different in kind from VMI and unequal in tangible and intangible facilities. VWIL affords women no opportunity to experience the rigorous military training for which VMI is famed. Kept away from the pressures, hazards, and psychological bonding characteristic of VMI's adversative training, VWIL students will not know the feeling of tremendous accomplishment commonly experienced by VMI's successful cadets. Virginia maintains that methodological differences are justified by the important differences between men and women in learning and developmental needs, but generalizations about "the way women are," estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description. In myriad respects other than military training, VWIL does not qualify as VMI's equal. The VWIL program is a pale shadow of VMI in terms of the range of curricular choices and faculty stature, funding, prestige, alumni support and influence. Virginia has not shown substantial equality in the separate educational opportunities the Commonwealth supports at VWIL and VMI. Cf. Sweatt v. Painter, 339 U. S. 629 . Pp. 547-554. 518 Syllabus (b) The Fourth Circuit failed to inquire whether the proposed remedy placed women denied the VMI advantage in the position they would have occupied in the absence of discrimination, Milliken, 433 U. S., at 280, and considered instead whether the Commonwealth could provide, with fidelity to equal protection, separate and unequal educational programs for men and women. In declaring the substantially different and significantly unequal VWIL program satisfactory, the appeals court displaced the exacting standard developed by this Court with a deferential standard, and added an inquiry of its own invention, the "substantive comparability" test. The Fourth Circuit plainly erred in exposing Virginia's VWIL plan to such a deferential analysis, for "all genderbased classifications today" warrant "heightened scrutiny." See J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127 , 136. Women seeking and fit for a VMI-quality education cannot be offered anything less, under the Commonwealth's obligation to afford them genuinely equal protection. Pp. 554-558. No. 94-2107, 976 F.2d 890 , affirmed; No. 94-1941, 44 F.3d 1229 , reversed and remanded. GINSBURG, J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, KENNEDY, SOUTER, and BREYER, JJ., joined. REHNQUIST, C. J., filed an opinion concurring in the judgment, post, p. 558. SCALIA, J., filed a dissenting opinion, post, p. 566. THOMAS, J., took no part in the consideration or decision of the case. Paul Bender argued the cause for the United States in both cases. With him on the briefs were Solicitor General Days, Assistant Attorney General Patrick, Cornelia T. L. Pillard, Jessica Dunsay Silver, and Thomas E. Chandler. Theodore B. Olson argued the cause and filed briefs for respondents in No. 94-1941 and petitioners in No. 94-2107. With him on the briefs were James S. Gilmore III, Attorney General of Virginia, William H. Hurd, Deputy Attorney General, Thomas G. Hungar, D. Jarrett Arp, Robert H. Patterson, Jr., Anne Marie Whittemore, William G. Broaddus, J. William Boland, Griffin B. Bell, and William A. Clineburg, Jr.t tBriefs of amici curiae urging reversal in No. 94-1941 were filed for the State of Maryland et al. by J. Joseph Curran, Jr., Attorney General of Maryland, and Andrew H. Baida, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Margery 519 JUSTICE GINSBURG delivered the opinion of the Court. Virginia's public institutions of higher learning include an incomparable military college, Virginia Military Institute (VMI). The United States maintains that the Constitution's equal protection guarantee precludes Virginia from reserving exclusively to men the unique educational opportunities VMI affords. We agree. S. Bronster of Hawaii, Scott Harshbarger of Massachusetts, Frankie Sue Del Papa of Nevada, C. Sebastian Aloot of the Northern Mariana Islands, and Theodore R. Kulongoski of Oregon; for the Employment Law Center et al. by Patricia A. Shiu and Judith Kurtz; and for the National Women's Law Center et al. by Robert N. Weiner, Marcia D. Greenberger, Sara L. Mandelbaum, Janet Gallagher, Mary Wyckoff, Steven R. Shapiro, and Susan Deller Ross. Briefs of amici curiae urging affirmance in No. 94-1941 were filed for the State of South Carolina et al. by Charles Molony Condon, Attorney General, Treva Ashworth, Deputy Attorney General, Kenneth P. Woodington, Senior Assistant Attorney General, Reginald I. Lloyd, Assistant Attorney General, and M. Dawes Cooke, Jr.; and for Kenneth E. Clark et al. by James C. Roberts and George A. Somerville. Briefs of amici curiae were filed in both cases for the State of Wyoming et al. by William U. Hill, Attorney General of Wyoming, Thomas W Corbett, Jr., Attorney General of Pennsylvania, and Bradley B. Cavedo; for Bennett College et al. by Wendy S. White; for the Center for Military Readiness et al. by Mellissa Wells-Petry and Jordan W Lorence; for the Employment Law Center et al. by Patricia A. Shiu and Judith Kurtz; for the Independent Women's Forum et al. by Anita K. Blair and C. Douglas Welty; for Mary Baldwin College by Craig T. Merritt and Richard K. Willard; for the South Carolina Institute of Leadership for Women by Julianne Farnsworth; for Wells College et al. by David M. Lascell; for Women's Schools Together, Inc., et al. by John C. Danforth and Thomas C. Walsh; and for Nancy Mellette by Valorie K. Vojdik, Henry Weisburg, Suzanne E. Coe, and Robert R. Black. Briefs of amici curiae were filed in No. 94-1941 for the American Association of University Professors et al. by Joan E. Bertin and Ann H. Franke; and for Rhonda Cornum et al. by Allan L. Gropper. Daniel F. Kolb, Herbert J. Hansell, Paul C. Saunders, Norman Redlich, Barbara R. Arnwine, Thomas J. Henderson, and Richard T. Seymour filed a brief for the Lawyers' Committee for Civil Rights Under Law as amicus curiae in No. 94-2107. 520 I Founded in 1839, VMI is today the sole single-sex school among Virginia's 15 public institutions of higher learning. VMI's distinctive mission is to produce "citizen-soldiers," men prepared for leadership in civilian life and in military service. VMI pursues this mission through pervasive training of a kind not available anywhere else in Virginia. Assigning prime place to character development, VMI uses an "adversative method" modeled on English public schools and once characteristic of military instruction. VMI constantly endeavors to instill physical and mental discipline in its cadets and impart to them a strong moral code. The school's graduates leave VMI with heightened comprehension of their capacity to deal with duress and stress, and a large sense of accomplishment for completing the hazardous course. VMI has notably succeeded in its mission to produce leaders; among its alumni are military generals, Members of Congress, and business executives. The school's alumni overwhelmingly perceive that their VMI training helped them to realize their personal goals. VMI's endowment reflects the loyalty of its graduates; VMI has the largest per-student endowment of all public undergraduate institutions in the Nation. N either the goal of producing citizen-soldiers nor VMI's implementing methodology is inherently unsuitable to women. And the school's impressive record in producing leaders has made admission desirable to some women. Nevertheless, Virginia has elected to preserve exclusively for men the advantages and opportunities a VMI education affords. II A From its establishment in 1839 as one of the Nation's first state military colleges, see 1839 Va. Acts, ch. 20, VMI has remained financially supported by Virginia and "subject to 521 the control of the [Virginia] General Assembly," Va. Code Ann. § 23-92 (1993). First southern college to teach engineering and industrial chemistry, see H. Wise, Drawing Out the Man: The VMI Story 13 (1978) (The VMI Story), VMI once provided teachers for the Commonwealth's schools, see 1842 Va. Acts, ch. 24, § 2 (requiring every cadet to teach in one of the Commonwealth's schools for a 2-year period).l Civil War strife threatened the school's vitality, but a resourceful superintendent regained legislative support by highlighting "VMI's great potential[,] through its technical know-how," to advance Virginia's postwar recovery. The VMI Story 47. VMI today enrolls about 1,300 men as cadets.2 Its academic offerings in the liberal arts, sciences, and engineering are also available at other public colleges and universities in Virginia. But VMI's mission is special. It is the mission of the school "'to produce educated and honorable men, prepared for the varied work of civil life, imbued with love of learning, confident in the functions and attitudes of leadership, possessing a high sense of public service, advocates of the American democracy and free enterprise system, and ready as citizen-soldiers to defend their country in 1 During the Civil War, school teaching became a field dominated by women. See A. Scott, The Southern Lady: From Pedestal to Politics, 1830-1930, p. 82 (1970). 2 Historically, most of Virginia's public colleges and universities were single sex; by the mid-1970's, however, all except VMI had become coeducational. 766 F. Supp. 1407, 1418-1419 (WD Va. 1991). For example, Virginia's legislature incorporated Farmville Female Seminary Association in 1839, the year VMI opened. 1839 Va. Acts, ch. 167. Originally providing instruction in "English, Latin, Greek, French, and piano" in a "home atmosphere," R. Sprague, Longwood College: A History 7-8, 15 (1989) (Longwood College), Farmville Female Seminary became a public institution in 1884 with a mission to train "white female teachers for public schools," 1884 Va. Acts, ch. 311. The school became Longwood College in 1949, Longwood College 136, and introduced coeducation in 1976, id., at 133. 522 time of national periL'" 766 F. Supp. 1407, 1425 (WD Va. 1991) (quoting Mission Study Committee of the VMI Board of Visitors, Report, May 16, 1986). In contrast to the federal service academies, institutions maintained "to prepare cadets for career service in the armed forces," VMI's program "is directed at preparation for both military and civilian life"; "[o]nly about 15% of VMI cadets enter career military service." 766 F. Supp., at 1432. VMI produces its "citizen-soldiers" through "an adversative, or doubting, model of education" which features "[p]hysical rigor, mental stress, absolute equality of treatment, absence of privacy, minute regulation of behavior, and indoctrination in desirable values." Id., at 1421. As one Commandant of Cadets described it, the adversative method "'dissects the young student,'" and makes him aware of his "'limits and capabilities,'" so that he knows "'how far he can go with his anger, ... how much he can take under stress, ... exactly what he can do when he is physically exhausted.'" Id., at 1421-1422 (quoting Col. N. Bissell). VMI cadets live in spartan barracks where surveillance is constant and privacy nonexistent; they wear uniforms, eat together in the mess hall, and regularly participate in drills. Id., at 1424, 1432. Entering students are incessantly exposed to the rat line, "an extreme form of the adversative model," comparable in intensity to Marine Corps boot camp. Id., at 1422. Tormenting and punishing, the rat line bonds new cadets to their fellow sufferers and, when they have completed the 7 -month experience, to their former tormentors. Ibid. VMI's "adversative model" is further characterized by a hierarchical "class system" of privileges and responsibilities, a "dyke system" for assigning a senior class mentor to each entering class "rat," and a stringently enforced "honor code," which prescribes that a cadet" 'does not lie, cheat, steal nor tolerate those who do.'" Id., at 1422-1423. 523 VMI attracts some applicants because of its reputation as an extraordinarily challenging military school, and "because its alumni are exceptionally close to the school." Id., at 1421. "[W]omen have no opportunity anywhere to gain the benefits of [the system of education at VMI]." Ibid. B In 1990, prompted by a complaint filed with the Attorney General by a female high-school student seeking admission to VMI, the United States sued the Commonwealth of Virginia and VMI, alleging that VMI's exclusively male admission policy violated the Equal Protection Clause of the Fourteenth Amendment. Id., at 1408.3 Trial of the action consumed six days and involved an array of expert witnesses on each side. Ibid. In the two years preceding the lawsuit, the District Court noted, VMI had received inquiries from 347 women, but had responded to none of them. Id., at 1436. "[S]ome women, at least," the court said, "would want to attend the school if they had the opportunity." Id., at 1414. The court further recognized that, with recruitment, VMI could "achieve at least 10% female enrollment"-"a sufficient 'critical mass' to provide the female cadets with a positive educational experience." Id., at 1437-1438. And it was also established that "some women are capable of all of the individual activities required of VMI cadets." Id., at 1412. In addition, experts agreed that if VMI admitted women, "the VMI ROTC experience would become a better training program from the perspective of the armed forces, because it would provide training in dealing with a mixed-gender army." Id., at 1441. The District Court ruled in favor of VMI, however, and rejected the equal protection challenge pressed by the United States. That court correctly recognized that Mississippi Univ. for Women v. Hogan, 458 U. S. 718 (1982), was 3 The District Court allowed the VMI Foundation and the VMI Alumni Association to intervene as defendants. 766 F. Supp., at 1408. 524 the closest guide. 766 F. Supp., at 1410. There, this Court underscored that a party seeking to uphold government action based on sex must establish an "exceedingly persuasive justification" for the classification. Mississippi Univ. for Women, 458 U. S., at 724 (internal quotation marks omitted). To succeed, the defender of the challenged action must show "at least that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives." Ibid. (internal quotation marks omitted). The District Court reasoned that education in "a singlegender environment, be it male or female," yields substantial benefits. 766 F. Supp., at 1415. VMI's school for men brought diversity to an otherwise coeducational Virginia system, and that diversity was "enhanced by VMI's unique method of instruction." Ibid. If single-gender education for males ranks as an important governmental objective, it becomes obvious, the District Court concluded, that the only means of achieving the objective "is to exclude women from the all-male institution- VMI." Ibid. "Women are [indeed] denied a unique educational opportunity that is available only at VMI," the District Court acknowledged. Id., at 1432. But "[VMI's] single-sex status would be lost, and some aspects of the [school's] distinctive method would be altered," if women were admitted, id., at 1413: "Allowance for personal privacy would have to be made," id., at 1412; "[p]hysical education requirements would have to be altered, at least for the women," id., at 1413; the adversative environment could not survive unmodified, id., at 1412-1413. Thus, "sufficient constitutional justification" had been shown, the District Court held, "for continuing [VMI's] single-sex policy." Id., at 1413. The Court of Appeals for the Fourth Circuit disagreed and vacated the District Court's judgment. The appellate court held: "The Commonwealth of Virginia has not ... advanced any state policy by which it can justify its determination, 525 under an announced policy of diversity, to afford VMI's unique type of program to men and not to women." 976 The appeals court greeted with skepticism Virginia's assertion that it offers single-sex education at VMI as a facet of the Commonwealth's overarching and undisputed policy to advance "autonomy and diversity." The court underscored Virginia's nondiscrimination commitment: "'[I]t is extremely important that [colleges and universities] deal with faculty, staff, and students without regard to sex, race, or ethnic origin.'" Id., at 899 (quoting 1990 Report of the Virginia Commission on the University of the 21st Century). "That statement," the Court of Appeals said, "is the only explicit one that we have found in the record in which the Commonwealth has expressed itself with respect to gender distinctions." 976 F. 2d, at 899. Furthermore, the appeals court observed, in urging "diversity" to justify an all-male VMI, the Commonwealth had supplied "no explanation for the movement away from [single-sex education] in Virginia by public colleges and universities." Ibid. In short, the court concluded, "[a] policy of diversity which aims to provide an array of educational opportunities, including single-gender institutions, must do more than favor one gender." Ibid. The parties agreed that "some women can meet the physical standards now imposed on men," id., at 896, and the court was satisfied that "neither the goal of producing citizen soldiers nor VMI's implementing methodology is inherently unsuitable to women," id., at 899. The Court of Appeals, however, accepted the District Court's finding that "at least these three aspects of VMI's program-physical training, the absence of privacy, and the adversative approach-would be materially affected by coeducation." Id., at 896-897. Remanding the case, the appeals court assigned to Virginia, in the first instance, responsibility for selecting a remedial course. The court suggested these options for the Commonwealth: Admit women to VMI; establish parallel institutions 526 or programs; or abandon state support, leaving VMI free to pursue its policies as a private institution. Id., at 900. In May 1993, this Court denied certiorari. See 508 U. S. 946; see also ibid. (opinion of SCALIA, J., noting the interlocutory posture of the litigation). C In response to the Fourth Circuit's ruling, Virginia proposed a parallel program for women: Virginia Women's Institute for Leadership (VWIL). The 4-year, state-sponsored undergraduate program would be located at Mary Baldwin College, a private liberal arts school for women, and would be open, initially, to about 25 to 30 students. Although VWIL would share VMI's mission-to produce "citizensoldiers" -the VWIL program would differ, as does Mary Baldwin College, from VMI in academic offerings, methods of education, and financial resources. See 852 F. Supp. 471, 476-477 (WD Va. 1994). The average combined SAT score of entrants at Mary Baldwin is about 100 points lower than the score for VMI freshmen. See id., at 501. Mary Baldwin's faculty holds "significantly fewer Ph. D.'s than the faculty at VMI," id., at 502, and receives significantly lower salaries, see Tr. 158 (testimony of James Lott, Dean of Mary Baldwin College), reprinted in 2 App. in Nos. 94-1667 and 94-1717 (CA4) (hereinafter Tr.). While VMI offers degrees in liberal arts, the sciences, and engineering, Mary Baldwin, at the time of trial, offered only bachelor of arts degrees. See 852 F. Supp., at 503. A VWIL student seeking to earn an engineering degree could gain one, without public support, by attending Washington University in St. Louis, Missouri, for two years, paying the required private tuition. See ibid. Experts in educating women at the college level composed the Task Force charged with designing the VWIL program; Task Force members were drawn from Mary Baldwin's own faculty and staff. Id., at 476. Training its attention on methods of instruction appropriate for "most women," the 527 Task Force determined that a military model would be "wholly inappropriate" for VWIL. Ibid.; see 44 F.3d 1229 , 1233 (CA4 1995). VWIL students would participate in ROTC programs and a newly established, "largely ceremonial" Virginia Corps of Cadets, id., at 1234, but the VWIL House would not have a military format, 852 F. Supp., at 477, and VWIL would not require its students to eat meals together or to wear uniforms during the schoolday, id., at 495. In lieu of VMI's adversative method, the VWIL Task Force favored "a cooperative method which reinforces self-esteem." Id., at 476. In addition to the standard bachelor of arts program offered at Mary Baldwin, VWIL students would take courses in leadership, complete an off-campus leadership externship, participate in community service projects, and assist in arranging a speaker series. See 44 F. 3d, at 1234. Virginia represented that it will provide equal financial support for in-state VWIL students and VMI cadets, 852 F. Supp., at 483, and the VMI Foundation agreed to supply a $5.4625 million endowment for the VWIL program, id., at 499. Mary Baldwin's own endowment is about $19 million; VMI's is $131 million. Id., at 503. Mary Baldwin will add $35 million to its endowment based on future commitments; VMI will add $220 million. Ibid. The VMI Alumni Association has developed a network of employers interested in hiring VMI graduates. The Association has agreed to open its network to VWIL graduates, id., at 499, but those graduates will not have the advantage afforded by a VMI degree. D Virginia returned to the District Court seeking approval of its proposed remedial plan, and the court decided the plan met the requirements of the Equal Protection Clause. Id., at 473. The District Court again acknowledged evidentiary support for these determinations: "[T]he VMI methodology could be used to educate women and, in fact, some 528 women ... may prefer the VMI methodology to the VWIL methodology." Id., at 481. But the "controlling legal principles," the District Court decided, "do not require the Commonwealth to provide a mirror image VMI for women." Ibid. The court anticipated that the two schools would "achieve substantially similar outcomes." Ibid. It concluded: "If VMI marches to the beat of a drum, then Mary Baldwin marches to the melody of a fife and when the march is over, both will have arrived at the same destination." Id., at 484. A divided Court of Appeals affirmed the District Court's judgment. 44 F.3d 1229 (CA4 1995). This time, the appellate court determined to give "greater scrutiny to the selection of means than to the [Commonwealth's] proffered objective." Id., at 1236. The official objective or purpose, the court said, should be reviewed deferentially. Ibid. Respect for the "legislative will," the court reasoned, meant that the judiciary should take a "cautious approach," inquiring into the "legitima[cy]" of the governmental objective and refusing approval for any purpose revealed to be "pernicious." Ibid. "[P]roviding the option of a single-gender college education may be considered a legitimate and important aspect of a public system of higher education," the appeals court observed, id., at 1238; that objective, the court added, is "not pernicious," id., at 1239. Moreover, the court continued, the adversative method vital to a VMI education "has never been tolerated in a sexually heterogeneous environment." Ibid. The method itself "was not designed to exclude women," the court noted, but women could not be accommodated in the VMI program, the court believed, for female participation in VMI's adversative training "would destroy ... any sense of decency that still permeates the relationship between the sexes." Ibid. Having determined, deferentially, the legitimacy of Virginia's purpose, the court considered the question of means. 529 Exclusion of "men at Mary Baldwin College and women at VMI," the court said, was essential to Virginia's purpose, for without such exclusion, the Commonwealth could not "accomplish [its] objective of providing single-gender education." Ibid. The court recognized that, as it analyzed the case, means merged into end, and the merger risked "bypass[ing] any equal protection scrutiny." Id., at 1237. The court therefore added another inquiry, a decisive test it called "substantive comparability." Ibid. The key question, the court said, was whether men at VMI and women at VWIL would obtain "substantively comparable benefits at their institution or through other means offered by the [S]tate." Ibid. Although the appeals court recognized that the VWIL degree "lacks the historical benefit and prestige" of a VMI degree, it nevertheless found the educational opportunities at the two schools "sufficiently comparable." Id., at 1241. Senior Circuit Judge Phillips dissented. The court, in his judgment, had not held Virginia to the burden of showing an "'exceedingly persuasive [justification]''' for the Commonwealth's action. Id., at 1247 (quoting Mississippi Univ. for Women, 458 U. S., at 724). In Judge Phillips' view, the court had accepted "rationalizations compelled by the exigencies of this litigation," and had not confronted the Commonwealth's "actual overriding purpose." 44 F. 3d, at 1247. That purpose, Judge Phillips said, was clear from the historical record; it was "not to create a new type of educational opportunity for women, ... nor to further diversify the Commonwealth's higher education system[,] ... but [was] simply ... to allow VMI to continue to exclude women in order to preserve its historic character and mission." Ibid. Judge Phillips suggested that the Commonwealth would satisfy the Constitution's equal protection requirement if it "simultaneously opened single-gender undergraduate institutions having substantially comparable curricular and extra-curricular programs, funding, physical plant, adminis- 530 tration and support services, and faculty and library resources." Id., at 1250. But he thought it evident that the proposed VWIL program, in comparison to VMI, fell "far short ... from providing substantially equal tangible and intangible educational benefits to men and women." Ibid. The Fourth Circuit denied rehearing en bane. 52 F.3d 90 (1995). Circuit Judge Motz, joined by Circuit Judges Hall, Murnaghan, and Michael, filed a dissenting opinion.4 Judge Motz agreed with Judge Phillips that Virginia had not shown an "'exceedingly persuasive justification'" for the disparate opportunities the Commonwealth supported. Id., at 92 (quoting Mississippi Univ. for Women, 458 U. S., at 724). She asked: "[H]ow can a degree from a yet to be implemented supplemental program at Mary Baldwin be held 'substantively comparable' to a degree from a venerable Virginia military institution that was established more than 150 years ago?" 52 F. 3d, at 93. "Women need not be guaranteed equal 'results,'" Judge Motz said, "but the Equal Protection Clause does require equal opportunity ... [and] that opportunity is being denied here." Ibid. III The cross-petitions in this suit present two ultimate issues. First, does Virginia's exclusion of women from the educational opportunities provided by VMI -extraordinary opportunities for military training and civilian leadership development-deny to women "capable of all of the individual activities required of VMI cadets," 766 F. Supp., at 1412, the equal protection of the laws guaranteed by the Fourteenth Amendment? Second, if VMI's "unique" situation, id., at 1413-as Virginia's sole single-sex public institution of 4 Six judges voted to rehear the case en banc, four voted against rehearing, and three were recused. The Fourth Circuit's local Rule permits rehearing en banc only on the vote of a majority of the Circuit's judges in regular active service (currently 13) without regard to recusals. See 52 F. 3d, at 91, and n. 1. 531 higher education-offends the Constitution's equal protection principle, what is the remedial requirement? IV We note, once again, the core instruction of this Court's pathmarking decisions in J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127 , 136-137, and n. 6 (1994), and Mississippi Univ. for Women, 458 U. S., at 724 (internal quotation marks omitted): Parties who seek to defend gender-based government action must demonstrate an "exceedingly persuasive justification" for that action. Today's skeptical scrutiny of official action denying rights or opportunities based on sex responds to volumes of history. As a plurality of this Court acknowledged a generation ago, "our Nation has had a long and unfortunate history of sex discrimination." Frontiero v. Richardson, 411 U. S. 677 , 684 (1973). Through a century plus three decades and more of that history, women did not count among voters composing "We the People"; 5 not until 1920 did women gain a constitutional right to the franchise. Id., at 685. And for a half century thereafter, it remained the prevailing doctrine that government, both federal and state, could withhold from women opportunities accorded men so long as any "basis in reason" could be conceived for the discrimination. See, e. g., Goesaert v. Cleary, 335 U. S. 464 , 467 (1948) (rejecting challenge of female tavern owner and her daughter to Michigan law denying bartender licenses to females-except for wives and daughters of male tavern owners; Court would not "give ear" to the contention that "an unchivalrous desire of male 5 As Thomas Jefferson stated the view prevailing when the Constitution was new: "Were our State a pure democracy ... there would yet be excluded from their deliberations ... [w]omen, who, to prevent depravation of morals and ambiguity of issue, could not mix promiscuously in the public meetings of men." Letter from Thomas Jefferson to Samuel Kercheval (Sept. 5, 1816), in 10 Writings of Thomas Jefferson 45-46, n. 1 (P. Ford ed. 1899). 532 bartenders to ... monopolize the calling" prompted the legislation). In 1971, for the first time in our Nation's history, this Court ruled in favor of a woman who complained that her State had denied her the equal protection of its laws. Reed v. Reed, 404 U. S. 71 , 73 (holding unconstitutional Idaho Code prescription that, among "'several persons claiming and equally entitled to administer [a decedent's estate], males must be preferred to females' "). Since Reed, the Court has repeatedly recognized that neither federal nor state government acts compatibly with the equal protection principle when a law or official policy denies to women, simply because they are women, full citizenship stature-equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities. See, e. g., Kirchberg v. Feenstra, 450 U. S. 455 , 462-463 (1981) (affirming invalidity of Louisiana law that made husband "head and master" of property jointly owned with his wife, giving him unilateral right to dispose of such property without his wife's consent); Stanton v. Stanton, 421 U. S. 7 (1975) (invalidating Utah requirement that parents support boys until age 21, girls only until age 18). Without equating gender classifications, for all purposes, to classifications based on race or national origin,6 the Court, in post-Reed decisions, has carefully inspected official action that closes a door or denies opportunity to women (or to men). See J. E. B., 511 U. S., at 152 (KENNEDY, J., concurring in judgment) (case law evolving since 1971 "reveal[s] a strong presumption that gender classifications are invalid"). To summarize the Court's current directions for cases of official classification based on gender: Focusing on the differen- 6 The Court has thus far reserved most stringent judicial scrutiny for classifications based on race or national origin, but last Term observed that strict scrutiny of such classifications is not inevitably "fatal in fact." Adarand Constructors, Inc. v. Pena, 515 U. S. 200 , 237 (1995) (internal quotation marks omitted). 533 tial treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is "exceedingly persuasive." The burden of justification is demanding and it rests entirely on the State. See Mississippi Univ. for Women, 458 U. S., at 724. The State must show "at least that the [challenged] classification serves 'important governmental objectives and that the discriminatory means employed' are 'substantially related to the achievement of those objectives.'" Ibid. (quoting Wengler v. Druggists Mut. Ins. Co., 446 U. S. 142 , 150 (1980)). The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females. See Weinberger v. Wiesenfeld, 420 U. S. 636 , 643, 648 (1975); Califano v. Goldfarb, 430 U. S. 199 , 223-224 (1977) (STEVENS, J., concurring in judgment). The heightened review standard our precedent establishes does not make sex a proscribed classification. Supposed "inherent differences" are no longer accepted as a ground for race or national origin classifications. See Loving v. Virginia, 388 U. S. 1 (1967). Physical differences between men and women, however, are enduring: "[T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both." Ballard v. United States, 329 U. S. 187 , 193 (1946). "Inherent differences" between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity. Sex classifications may be used to compensate women "for particular economic disabilities [they have] suffered," Califano v. Webster, 430 U. S. 313, 320 (1977) (per curiam), to "promot[e] equal employment opportunity," see California Fed. Sav. & Loan Assn. v. Guerra, 479 U. S. 272 , 289 (1987), to advance full development of the talent and capacities of our Nation's peo- 534 ple.7 But such classifications may not be used, as they once were, see Goesaert, 335 U. S., at 467, to create or perpetuate the legal, social, and economic inferiority of women. Measuring the record in this case against the review standard just described, we conclude that Virginia has shown no "exceedingly persuasive justification" for excluding all women from the citizen-soldier training afforded by VMI. We therefore affirm the Fourth Circuit's initial judgment, which held that Virginia had violated the Fourteenth Amendment's Equal Protection Clause. Because the remedy proffered by Virginia-the Mary Baldwin VWIL program-does not cure the constitutional violation, i. e., it does not provide equal opportunity, we reverse the Fourth Circuit's final judgment in this case. V The Fourth Circuit initially held that Virginia had advanced no state policy by which it could justify, under equal protection principles, its determination "to afford VMI's unique type of program to men and not to women." 976 F. 2d, at 892. Virginia challenges that "liability" ruling and asserts two justifications in defense of VMI's exclusion of 7 Several amici have urged that diversity in educational opportunities is an altogether appropriate governmental pursuit and that single-sex schools can contribute importantly to such diversity. Indeed, it is the mission of some single-sex schools "to dissipate, rather than perpetuate, traditional gender classifications." See Brief for Twenty-six Private Women's Colleges as Amici Curiae 5. We do not question the Commonwealth's prerogative evenhandedly to support diverse educational opportunities. We address specifically and only an educational opportunity recognized by the District Court and the Court of Appeals as "unique," see 766 F. Supp., at 1413, 1432; 976 F. 2d, at 892, an opportunity available only at Virginia's premier military institute, the Commonwealth's sole single-sex public university or college. Cf. Mississippi Univ. for Women v. Hogan, 458 U. S. 718 , 720, n. 1 (1982) ("Mississippi maintains no other single-sex public university or college. Thus, we are not faced with the question of whether States can provide 'separate but equal' undergraduate institutions for males and females."). 535 women. First, the Commonwealth contends, "single-sex education provides important educational benefits," Brief for Cross-Petitioners 20, and the option of single-sex education contributes to "diversity in educational approaches," id., at 25. Second, the Commonwealth argues, "the unique VMI method of character development and leadership training," the school's adversative approach, would have to be modified were VMI to admit women. Id., at 33-36 (internal quotation marks omitted). We consider these two justifications in turn. A Single-sex education affords pedagogical benefits to at least some students, Virginia emphasizes, and that reality is uncontested in this litigation.8 Similarly, it is not disputed that diversity among public educational institutions can serve the public good. But Virginia has not shown that VMI was established, or has been maintained, with a view to diversifying, by its categorical exclusion of women, educational opportunities within the Commonwealth. In cases of this genre, our precedent instructs that "benign" justifications proffered in defense of categorical exclusions will not be accepted automatically; a tenable justification must describe actual state purposes, not rationalizations for ac- 8 On this point, the dissent sees fire where there is no flame. See post, at 596-598, 598-600. "Both men and women can benefit from a single-sex education," the District Court recognized, although "the beneficial effects" of such education, the court added, apparently "are stronger among women than among men." 766 F. Supp., at 1414. The United States does not challenge that recognition. Cf. C. Jencks & D. Riesman, The Academic Revolution 297-298 (1968): "The pluralistic argument for preserving all-male colleges is uncomfortably similar to the pluralistic argument for preserving all-white colleges .... The all-male college would be relatively easy to defend if it emerged from a world in which women were established as fully equal to men. But it does not. It is therefore likely to be a witting or unwitting device for preserving tacit assumptions of male superiority-assumptions for which women must eventually pay." 536 tions in fact differently grounded. See Wiesenfeld, 420 U. S., at 648, and n. 16 ("mere recitation of a benign [or] compensatory purpose" does not block "inquiry into the actual purposes" of government-maintained gender-based classifications); Goldfarb, 430 U. S., at 212-213 (rejecting government-proffered purposes after "inquiry into the actual purposes" (internal quotation marks omitted)). Mississippi Univ. for Women is immediately in point. There the State asserted, in justification of its exclusion of men from a nursing school, that it was engaging in "educational affirmative action" by "compensat[ing] for discrimination against women." 458 U. S., at 727. Undertaking a "searching analysis," id., at 728, the Court found no close resemblance between "the alleged objective" and "the actual purpose underlying the discriminatory classification," id., at 730. Pursuing a similar inquiry here, we reach the same conclusion. Neither recent nor distant history bears out Virginia's alleged pursuit of diversity through single-sex educational options. In 1839, when the Commonwealth established VMI, a range of educational opportunities for men and women was scarcely contemplated. Higher education at the time was considered dangerous for women; 9 reflecting 9 Dr. Edward H. Clarke of Harvard Medical School, whose influential book, Sex in Education, went through 17 editions, was perhaps the most well-known speaker from the medical community opposing higher education for women. He maintained that the physiological effects of hard study and academic competition with boys would interfere with the development of girls' reproductive organs. See E. Clarke, Sex in Education 38-39, 62-63 (1873); id., at 127 ("identical education of the two sexes is a crime before God and humanity, that physiology protests against, and that experience weeps over"); see also H. Maudsley, Sex in Mind and in Education 17 (1874) ("It is not that girls have not ambition, nor that they fail generally to run the intellectual race [in coeducational settings], but it is asserted that they do it at a cost to their strength and health which entails life-long suffering, and even incapacitates them for the adequate performance of the natural functions of their sex."); C. Meigs, Females and Their Diseases 350 (1848) (after five or six weeks of "mental and educational discipline," a healthy woman would "lose ... the habit of menstruation" 537 widely held views about women's proper place, the Nation's first universities and colleges-for example, Harvard in Massachusetts, William and Mary in Virginia-admitted only men. See E. Farello, A History of the Education of Women in the United States 163 (1970). VMI was not at all novel in this respect: In admitting no women, VMI followed the lead of the Commonwealth's flagship school, the University of Virginia, founded in 1819. "[N]o struggle for the admission of women to a state university," a historian has recounted, "was longer drawn out, or developed more bitterness, than that at the University of Virginia." 2 T. Woody, A History of Women's Education in the United States 254 (1929) (History of Women's Education). In 1879, the State Senate resolved to look into the possibility of higher education for women, recognizing that Virginia "'has never, at any period of her history,'" provided for the higher education of her daughters, though she" 'has liberally provided for the higher education of her sons.'" Ibid. (quoting 10 Educ. J. Va. 212 (1879)). Despite this recognition, no new opportunities were instantly open to women.10 Virginia eventually provided for several women's seminaries and colleges. Farmville Female Seminary became a public institution in 1884. See supra, at 521, n. 2. Two women's schools, Mary Washington College and James Madison University, were founded in 1908; another, Radford University, was founded in 1910. 766 F. Supp., at 1418-1419. By the mid-1970's, all four schools had become coeducational. Ibid. Debate concerning women's admission as undergraduates at the main university continued well past the century's midpoint. Familiar arguments were rehearsed. If women and suffer numerous ills as a result of depriving her body for the sake of her mind). 10 Virginia's Superintendent of Public Instruction dismissed the coeducational idea as '''repugnant to the prejudices of the people'" and proposed a female college similar in quality to Girton, Smith, or Vassar. 2 History of Women's Education 254 (quoting Dept. of Interior, 1 Report of Commissioner of Education, H. R. Doc. No.5, 58th Cong., 2d Sess., 438 (1904)). 538 were admitted, it was feared, they "would encroach on the rights of men; there would be new problems of government, perhaps scandals; the old honor system would have to be changed; standards would be lowered to those of other coeducational schools; and the glorious reputation of the university, as a school for men, would be trailed in the dust." 2 History of Women's Education 255. Ultimately, in 1970, "the most prestigious institution of higher education in Virginia," the University of Virginia, introduced coeducation and, in 1972, began to admit women on an equal basis with men. See Kirstein v. Rector and Visitors of Univ. of Virginia, 309 F. Supp. 184, 186 (ED Va. 1970). A three-judge Federal District Court confirmed: "Virginia may not now deny to women, on the basis of sex, educational opportunities at the Charlottesville campus that are not afforded in other institutions operated by the [S]tate." Id., at 187. Virginia describes the current absence of public single-sex higher education for women as "an historical anomaly." Brief for Cross-Petitioners 30. But the historical record indicates action more deliberate than anomalous: First, protection of women against higher education; next, schools for women far from equal in resources and stature to schools for men; finally, conversion of the separate schools to coeducation. The state legislature, prior to the advent of this controversy, had repealed "[a]ll Virginia statutes requiring individual institutions to admit only men or women." 766 F. Supp., at 1419. And in 1990, an official commission, "legislatively established to chart the future goals of higher education in Virginia," reaffirmed the policy" 'of affording broad access" while maintaining "autonomy and diversity.'" 976 F. 2d, at 898-899 (quoting Report of the Virginia Commission on the University of the 21st Century). Significantly, the commission reported: "'Because colleges and universities provide opportunities for students to develop values and learn from role 539 models, it is extremely important that they deal with faculty, staff, and students without regard to sex, race, or ethnic origin.'" Id., at 899 (emphasis supplied by Court of Appeals deleted). This statement, the Court of Appeals observed, "is the only explicit one that we have found in the record in which the Commonwealth has expressed itself with respect to gender distinctions." Ibid. Our 1982 decision in Mississippi Univ. for Women prompted VMI to reexamine its male-only admission policy. See 766 F. Supp., at 1427-1428. Virginia relies on that reexamination as a legitimate basis for maintaining VMI's single-sex character. See Reply Brief for Cross-Petitioners 6. A Mission Study Committee, appointed by the VMI Board of Visitors, studied the problem from October 1983 until May 1986, and in that month counseled against "change of VMI status as a single-sex college." See 766 F. Supp., at 1429 (internal quotation marks omitted). Whatever internal purpose the Mission Study Committee served-and however well meaning the framers of the report-we can hardly extract from that effort any commonwealth policy evenhandedly to advance diverse educational options. As the District Court observed, the Committee's analysis "primarily focuse[d] on anticipated difficulties in attracting females to VMI," and the report, overall, supplied "very little indication of how thee] conclusion was reached." Ibid. In sum, we find no persuasive evidence in this record that VMI's male-only admission policy "is in furtherance of a state policy of 'diversity.'" See 976 F. 2d, at 899. No such policy, the Fourth Circuit observed, can be discerned from the movement of all other public colleges and universities in Virginia away from single-sex education. See ibid. That court also questioned "how one institution with autonomy, but with no authority over any other state institution, can give effect to a state policy of diversity among institutions." Ibid. A purpose genuinely to advance an array of educa- 540 tional options, as the Court of Appeals recognized, is not served by VMI's historic and constant plan-a plan to "affor[d] a unique educational benefit only to males." Ibid. However "liberally" this plan serves the Commonwealth's sons, it makes no provision whatever for her daughters. That is not equal protection. B Virginia next argues that VMI's adversative method of training provides educational benefits that cannot be made available, unmodified, to women. Alterations to accommodate women would necessarily be "radical," so "drastic," Virginia asserts, as to transform, indeed "destroy," VMI's program. See Brief for Cross-Petitioners 34-36. Neither sex would be favored by the transformation, Virginia maintains: Men would be deprived of the unique opportunity currently available to them; women would not gain that opportunity because their participation would "eliminat[e] the very aspects of [the] program that distinguish [VMI] from ... other institutions of higher education in Virginia." Id., at 34. The District Court forecast from expert witness testimony, and the Court of Appeals accepted, that coeducation would materially affect "at least these three aspects of VMI's program-physical training, the absence of privacy, and the adversative approach." 976 F. 2d, at 896-897. And it is uncontested that women's admission would require accommodations, primarily in arranging housing assignments and physical training programs for female cadets. See Brief for Cross-Respondent 11, 29-30. It is also undisputed, however, that "the VMI methodology could be used to educate women." 852 F. Supp., at 481. The District Court even allowed that some women may prefer it to the methodology a women's college might pursue. See ibid. "[S]ome women, at least, would want to attend [VMI] if they had the opportunity," the District Court recognized, 766 F. Supp., at 1414, and "some women," the expert testimony established, "are 541 capable of all of the individual activities required of VMI cadets," id., at 1412. The parties, furthermore, agree that "some women can meet the physical standards [VMI] now impose[s] on men." 976 F. 2d, at 896. In sum, as the Court of Appeals stated, "neither the goal of producing citizen soldiers," VMI's raison detre, "nor VMI's implementing methodology is inherently unsuitable to women." Id., at 899. In support of its initial judgment for Virginia, a judgment rejecting all equal protection objections presented by the United States, the District Court made "findings" on "gender-based developmental differences." 766 F. Supp., at 1434-1435. These "findings" restate the opinions of Virginia's expert witnesses, opinions about typically male or typically female "tendencies." Id., at 1434. For example, "[m]ales tend to need an atmosphere of adversativeness," while "[f]emales tend to thrive in a cooperative atmosphere." Ibid. "I'm not saying that some women don't do well under [the] adversative model," VMI's expert on educational institutions testified, "undoubtedly there are some [women] who do"; but educational experiences must be designed "around the rule," this expert maintained, and not "around the exception." Ibid. (internal quotation marks omitted). The United States does not challenge any expert witness estimation on average capacities or preferences of men and women. Instead, the United States emphasizes that time and again since this Court's turning point decision in Reed v. Reed, 404 U. S. 71 (1971), we have cautioned reviewing courts to take a "hard look" at generalizations or "tendencies" of the kind pressed by Virginia, and relied upon by the District Court. See O'Connor, Portia's Progress, 66 N. Y. U. L. Rev. 1546, 1551 (1991). State actors controlling gates to opportunity, we have instructed, may not exclude qualified individuals based on "fixed notions concerning the roles and abilities of males and females." Mississippi Univ. for Women, 458 U. S., at 725; see J. E. B., 511 U. S., at 139, n. 11 (equal protection principles, as applied to gender classifications, mean 542 state actors may not rely on "overbroad" generalizations to make "judgments about people that are likely to ... perpetuate historical patterns of discrimination"). It may be assumed, for purposes of this decision, that most women would not choose VMI's adversative method. As Fourth Circuit Judge Motz observed, however, in her dissent from the Court of Appeals' denial of rehearing en bane, it is also probable that "many men would not want to be educated in such an environment." 52 F. 3d, at 93. (On that point, even our dissenting colleague might agree.) Education, to be sure, is not a "one size fits all" business. The issue, however, is not whether "women-or men-should be forced to attend VMI"; rather, the question is whether the Commonwealth can constitutionally deny to women who have the will and capacity, the training and attendant opportunities that VMI uniquely affords. Ibid. The notion that admission of women would downgrade VMI's stature, destroy the adversative system and, with it, even the school,l1 is a judgment hardly proved,12 a prediction 11 See post, at 566, 598-599, 603. Forecasts of the same kind were made regarding admission of women to the federal military academies. See, e. g., Hearings on H. R. 9832 et al. before Subcommittee No.2 of the House Committee on Armed Services, 93d Cong., 2d Sess., 137 (1975) (statement of Lt. Gen. A. P. Clark, Superintendent of U. S. Air Force Academy) ("It is my considered judgment that the introduction of female cadets will inevitably erode this vital atmosphere."); id., at 165 (statement of Hon. H. H. Callaway, Secretary of the Army) ("Admitting women to West Point would irrevocably change the Academy .... The Spartan atmospherewhich is so important to producing the final product-would surely be diluted, and would in all probability disappear."). 12 See 766 F. Supp., at 1413 (describing testimony of expert witness David Riesman: "[I]f VMI were to admit women, it would eventually find it necessary to drop the adversative system altogether, and adopt a system that provides more nurturing and support for the students."). Such judgments have attended, and impeded, women's progress toward full citizenship stature throughout our Nation's history. Speaking in 1879 in support of higher education for females, for example, Virginia State Senator C. T. Smith of Nelson recounted that legislation proposed to pro- 543 hardly different from other "self-fulfilling prophec[ies]," see Mississippi Univ. for Women, 458 U. S., at 730, once routinely used to deny rights or opportunities. When women first sought admission to the bar and access to legal education, concerns of the same order were expressed. For example, in 1876, the Court of Common Pleas of Hennepin County, Minnesota, explained why women were thought ineligible for the practice of law. Women train and educate the young, the court said, which "forbids that they shall bestow that time (early and late) and labor, so essential in attaining to the eminence to which the true lawyer should ever aspire. It cannot therefore be said that the opposition of courts to the admission of females to practice ... is to any extent the outgrowth of ... 'old fogyism[.J' ... [I]t arises rather from a comprehension of the magnitude of the responsibilities connected with the successful practice of law, and a desire to grade up the profession." In re Application of Martha Angle Dorsett to Be Admitted to Practice as Attorney and Counselor at Law (Minn. C. P. Hennepin Cty., 1876), in The Syllabi, Oct. 21, 1876, pp. 5, 6 (emphasis added). A like fear, according to a 1925 report, accounted for Columbia Law School's resistance to women's admission, although "[t]he faculty ... never maintained that women could not master legal learning .... No, its argument has been ... more practical. If women were admitted to tect the property rights of women had encountered resistance. 10 Educ. J. Va. 213 (1879). A Senator opposing the measures objected that "there [was] no formal call for the [legislation]," and "depicted in burning eloquence the terrible consequences such laws would produce." Ibid. The legislation passed, and a year or so later, its sponsor, C. T. Smith, reported that "not one of [the forecast "terrible consequences"] has or ever will happen, even unto the sounding of Gabriel's trumpet." Ibid. See also supra, at 537-538. 544 the Columbia Law School, [the faculty] said, then the choicer, more manly and red-blooded graduates of our great universities would go to the Harvard Law Schoo!!" The Nation, Feb. 18, 1925, p. 173. Medical faculties similarly resisted men and women as partners in the study of medicine. See R. Morantz-Sanchez, Sympathy and Science: Women Physicians in American Medicine 51-54, 250 (1985); see also M. Walsh, "Doctors Wanted: No Women Need Apply" 121-122 (1977) (quoting E. Clarke, Medical Education of Women, 4 Boston Med. & Surg. J. 345, 346 (1869) (" 'God forbid that I should ever see men and women aiding each other to display with the scalpel the secrets of the reproductive system .... ' ")); cf. supra, at 536537, n. 9. More recently, women seeking careers in policing encountered resistance based on fears that their presence would "undermine male solidarity," see F. Heidensohn, Women in Control? 201 (1992); deprive male partners of adequate assistance, see id., at 184-185; and lead to sexual misconduct, see C. Milton et al., Women in Policing 32-33 (1974). Field studies did not confirm these fears. See Heidensohn, supra, at 92-93; P. Bloch & D. Anderson, Policewomen on Patrol: Final Report (1974). Women's successful entry into the federal military academies,13 and their participation in the Nation's military forces,14 indicate that Virginia's fears for the future of VMI 13 Women cadets have graduated at the top of their class at every federal military academy. See Brief for Lieutenant Colonel Rhonda Cornum et al. as Amici Curiae 11, n. 25; cf. Defense Advisory Committee on Women in the Services, Report on the Integration and Performance of Women at West Point 64 (1992). 14 Brief for Lieutenant Colonel Rhonda Cornum, supra, at 5-9 (reporting the vital contributions and courageous performance of women in the military); see Mintz, President Nominates 1st Woman to Rank of Three-Star General, Washington Post, Mar. 27, 1996, p. A19, col. 1 (announcing President's nomination of Marine Corps Major General Carol Mutter to rank of Lieutenant General; Mutter will head corps manpower and planning); Tousignant, A New Era for the Old Guard, Washington Post, Mar. 23, 545 may not be solidly grounded.15 The Commonwealth's justification for excluding all women from "citizen-soldier" training for which some are qualified, in any event, cannot rank as "exceedingly persuasive," as we have explained and applied that standard. Virginia and VMI trained their argument on "means" rather than "end," and thus misperceived our precedent. Single-sex education at VMI serves an "important governmental objective," they maintained, and exclusion of women is not only "substantially related," it is essential to that objective. By this notably circular argument, the "straightforward" test Mississippi Univ. for Women described, see 458 U. S., at 724-725, was bent and bowed. The Commonwealth's misunderstanding and, in turn, the District Court's, is apparent from VMI's mission: to produce "citizen-soldiers," individuals "'imbued with love of learning, confident in the functions and attitudes of leadership, possessing a high sense of public service, advocates of the American democracy and free enterprise system, and ready ... to defend their country in time of national periL'" 766 F. Supp., at 1425 (quoting Mission Study Committee of the VMI Board of Visitors, Report, May 16, 1986). Surely that goal is great enough to accommodate women, who today count as citizens in our American democracy equal in stature to men. Just as surely, the Commonwealth's 1996, p. C1, col. 2 (reporting admission of Sergeant Heather Johnsen to elite Infantry unit that keeps round-the-clock vigil at Tomb of the Unknowns in Arlington National Cemetery). 15 Inclusion of women in settings where, traditionally, they were not wanted inevitably entails a period of adjustment. As one West Point cadet squad leader recounted: "[T]he classes of '78 and '79 see the women as women, but the classes of '80 and '81 see them as classmates." U. S. Military Academy, A. Vitters, Report of Admission of Women (Project Athena II) 84 (1978) (internal quotation marks omitted). 546 great goal is not substantially advanced by women's categorical exclusion, in total disregard of their individual merit, from the Commonwealth's premier "citizen-soldier" corps.16 Virginia, in sum, "has fallen far short of establishing the 'exceedingly persuasive justification,'" Mississippi Univ. for Women, 458 U. S., at 731, that must be the solid base for any gender-defined classification. VI In the second phase of the litigation, Virginia presented its remedial plan-maintain VMI as a male-only college and create VWIL as a separate program for women. The plan met District Court approval. The Fourth Circuit, in turn, deferentially reviewed the Commonwealth's proposal and decided that the two single-sex programs directly served Virginia's reasserted purposes: single-gender education, and "achieving the results of an adversative method in a military environment." See 44 F. 3d, at 1236, 1239. Inspecting the VMI and VWIL educational programs to determine whether they "afford[ed] to both genders benefits comparable in substance, [if] not in form and detail," id., at 1240, the Court of Appeals concluded that Virginia had arranged for men and women opportunities "sufficiently comparable" to survive equal protection evaluation, id., at 1240-1241. The United States challenges this "remedial" ruling as pervasively misguided. 16 VMI has successfully managed another notable change. The school admitted its first African-American cadets in 1968. See The VMI Story 347-349 (students no longer sing "Dixie," salute the Confederate flag or the tomb of General Robert E. Lee at ceremonies and sports events). As the District Court noted, VMI established a program on "retention of black cadets" designed to offer academic and social-cultural support to "minority members of a dominantly white and tradition-oriented student body." 766 F. Supp., at 1436-1437. The school maintains a "special recruitment program for blacks" which, the District Court found, "has had little, if any, effect on VMI's method of accomplishing its mission." Id., at 1437. 547 A A remedial decree, this Court has said, must closely fit the constitutional violation; it must be shaped to place persons unconstitutionally denied an opportunity or advantage in "the position they would have occupied in the absence of [discrimination]." See Milliken v. Bradley, 433 U. S. 267 , 280 (1977) (internal quotation marks omitted). The constitutional violation in this suit is the categorical exclusion of women from an extraordinary educational opportunity afforded men. A proper remedy for an unconstitutional exclusion, we have explained, aims to "eliminate [so far as possible] the discriminatory effects of the past" and to "bar like discrimination in the future." Louisiana v. United States, 380 U. S. 145 , 154 (1965). Virginia chose not to eliminate, but to leave untouched, VMI's exclusionary policy. For women only, however, Virginia proposed a separate program, different in kind from VMI and unequal in tangible and intangible facilities.17 Having violated the Constitution's equal protection requirement, Virginia was obliged to show that its remedial proposal "directly address[ed] and relate[d] to" the violation, see Milliken, 433 U. S., at 282, i. e., the equal protection denied to women ready, willing, and able to benefit from educational 17 As earlier observed, see supra, at 529, Judge Phillips, in dissent, measured Virginia's plan against a paradigm arrangement, one that "could survive equal protection scrutiny": single-sex schools with "substantially comparable curricular and extra-curricular programs, funding, physical plant, administration and support services, ... faculty[,] and library resources." 44 F.3d 1229 , 1250 (CA4 1995). Cf. Bray v. Lee, 337 F. Supp. 934 (Mass. 1972) (holding inconsistent with the Equal Protection Clause admission of males to Boston's Boys Latin School with a test score of 120 or higher (up to a top score of 200) while requiring a score, on the same test, of at least 133 for admission of females to Girls Latin School, but not ordering coeducation). Measuring VMIIVWIL against the paradigm, Judge Phillips said, "reveals how far short the [Virginia] plan falls from providing substantially equal tangible and intangible educational benefits to men and women." 44 F. 3d, at 1250. 548 opportunities of the kind VMI offers. Virginia described VWIL as a "parallel program," and asserted that VWIL shares VMI's mission of producing "citizen-soldiers" and VMI's goals of providing "education, military training, mental and physical discipline, character ... and leadership development." Brief for Respondents 24 (internal quotation marks omitted). If the VWIL program could not "eliminate the discriminatory effects of the past," could it at least "bar like discrimination in the future"? See Louisiana, 380 U. S., at 154. A comparison of the programs said to be "parallel" informs our answer. In exposing the character of, and differences in, the VMI and VWIL programs, we recapitulate facts earlier presented. See supra, at 520-523, 526-527. VWIL affords women no opportunity to experience the rigorous military training for which VMI is famed. See 766 F. Supp., at 1413-1414 ("No other school in Virginia or in the United States, public or private, offers the same kind of rigorous military training as is available at VMI."); id., at 1421 (VMI "is known to be the most challenging military school in the United States"). Instead, the VWIL program "deemphasize[s]" military education, 44 F. 3d, at 1234, and uses a "cooperative method" of education "which reinforces self-esteem," 852 F. Supp., at 476. VWIL students participate in ROTC and a "largely ceremonial" Virginia Corps of Cadets, see 44 F. 3d, at 1234, but Virginia deliberately did not make VWIL a military institute. The VWIL House is not a military-style residence and VWIL students need not live together throughout the 4-year program, eat meals together, or wear uniforms during the schoolday. See 852 F. Supp., at 477, 495. VWIL students thus do not experience the "barracks" life "crucial to the VMI experience," the spartan living arrangements designed to foster an "egalitarian ethic." See 766 F. Supp., at 14231424. "[T]he most important aspects of the VMI educational experience occur in the barracks," the District Court 549 found, id., at 1423, yet Virginia deemed that core experience nonessential, indeed inappropriate, for training its female citizen-soldiers. VWIL students receive their "leadership training" in seminars, externships, and speaker series, see 852 F. Supp., at 477, episodes and encounters lacking the "[p]hysical rigor, mental stress, ... minute regulation of behavior, and indoctrination in desirable values" made hallmarks of VMI's citizen-soldier training, see 766 F. Supp., at 1421.18 Kept away from the pressures, hazards, and psychological bonding characteristic of VMI's adversative training, see id., at 1422, VWIL students will not know the "feeling of tremendous accomplishment" commonly experienced by VMI's successful cadets, id., at 1426. Virginia maintains that these methodological differences are "justified pedagogically," based on "important differences between men and women in learning and developmental needs," "psychological and sociological differences" Virginia describes as "real" and "not stereotypes." Brief for Respondents 28 (internal quotation marks omitted). The Task Force charged with developing the leadership program for women, drawn from the staff and faculty at Mary Baldwin College, "determined that a military model and, especially VMI's adversative method, would be wholly inappropriate for educating and training most women." 852 F. Supp., at 476 (emphasis added). See also 44 F. 3d, at 1233-1234 (noting Task Force conclusion that, while "some women would be suited to and interested in [a VMI -style experience]," VMI's adversative method "would not be effective for women as a group" (emphasis added)). The Com- 18 Both programs include an honor system. Students at VMI are expelled forthwith for honor code violations, see 766 F. Supp., at 1423; the system for VWIL students, see 852 F. Supp., at 496-497, is less severe, see Tr. 414-415 (testimony of Mary Baldwin College President Cynthia Tyson). 550 monwealth embraced the Task Force view, as did expert witnesses who testified for Virginia. See 852 F. Supp., at 480-481. As earlier stated, see supra, at 541-542, generalizations about "the way women are," estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description. Notably, Virginia never asserted that VMI's method of education suits most men. It is also revealing that Virginia accounted for its failure to make the VWIL experience "the entirely militaristic experience of VMI" on the ground that VWIL "is planned for women who do not necessarily expect to pursue military careers." 852 F. Supp., at 478. By that reasoning, VMI's "entirely militaristic" program would be inappropriate for men in general or as a group, for "[o]nly about 15% of VMI cadets enter career military service." See 766 F. Supp., at 1432. In contrast to the generalizations about women on which Virginia rests, we note again these dispositive realities: VMI's "implementing methodology" is not "inherently unsuitable to women," 976 F. 2d, at 899; "some women ... do well under [the] adversative model," 766 F. Supp., at 1434 (internal quotation marks omitted); "some women, at least, would want to attend [VMI] if they had the opportunity," id., at 1414; "some women are capable of all of the individual activities required of VMI cadets," id., at 1412, and "can meet the physical standards [VMI] now impose[s] on men," 976 F. 2d, at 896. It is on behalf of these women that the United States has instituted this suit, and it is for them that a remedy must be crafted,19 a remedy that will end their 19 Admitting women to VMI would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements, and to adjust aspects of the physical training programs. See Brief for Petitioner 27-29; cf. note following 10 U. S. C. § 4342 (academic and other standards for women admitted to the Military, Naval, 551 exclusion from a state-supplied educational opportunity for which they are fit, a decree that will "bar like discrimination in the future." Louisiana, 380 U. S., at 154. B In myriad respects other than military training, VWIL does not qualify as VMI's equal. VWIL's student body, faculty, course offerings, and facilities hardly match VMI's. Nor can the VWIL graduate anticipate the benefits associated with VMI's 157-year history, the school's prestige, and its influential alumni network. Mary Baldwin College, whose degree VWIL students will gain, enrolls first-year women with an average combined SAT score about 100 points lower than the average score for VMI freshmen. 852 F. Supp., at 501. The Mary Baldwin faculty holds "significantly fewer Ph. D.'s," id., at 502, and receives substantially lower salaries, see Tr. 158 (testimony of James Lott, Dean of Mary Baldwin College), than the faculty at VMI. Mary Baldwin does not offer a VWIL student the range of curricular choices available to a VMI cadet. VMI awards baccalaureate degrees in liberal arts, biology, chemistry, civil engineering, electrical and computer engineering, and mechanical engineering. See 852 F. Supp., at 503; Virginia Military Institute: More than an Education 11 (Govt. exh. 75, and Air Force Academies "shall be the same as those required for male individuals, except for those minimum essential adjustments in such standards required because of physiological differences between male and female individuals"). Experience shows such adjustments are manageable. See U. S. Military Academy, A. Vitters, N. Kinzer, & J. Adams, Report of Admission of Women (Project Athena I-IV) (1977-1980) (4-year longitudinal study of the admission of women to West Point); Defense Advisory Committee on Women in the Services, Report on the Integration and Performance of Women at West Point 17-18 (1992). 552 lodged with Clerk of this Court). VWIL students attend a school that "does not have a math and science focus," 852 F. Supp., at 503; they cannot take at Mary Baldwin any courses in engineering or the advanced math and physics courses VMI offers, see id., at 477. For physical training, Mary Baldwin has "two multipurpose fields" and "[o]ne gymnasium." Id., at 503. VMI has "an NCAA competition level indoor track and field facility; a number of multi-purpose fields; baseball, soccer and lacrosse fields; an obstacle course; large boxing, wrestling and martial arts facilities; an ll-laps-to-the-mile indoor running course; an indoor pool; indoor and outdoor rifle ranges; and a football stadium that also contains a practice field and outdoor track." Ibid. Although Virginia has represented that it will provide equal financial support for in-state VWIL students and VMI cadets, id., at 483, and the VMI Foundation has agreed to endow VWIL with $5.4625 million, id., at 499, the difference between the two schools' financial reserves is pronounced. Mary Baldwin's endowment, currently about $19 million, will gain an additional $35 million based on future commitments; VMI's current endowment, $131 million-the largest public college per-student endowment in the Nation-will gain $220 million. Id., at 503. The VWIL student does not graduate with the advantage of a VMI degree. Her diploma does not unite her with the legions of VMI "graduates [who] have distinguished themselves" in military and civilian life. See 976 F. 2d, at 892893. "[VMI] alumni are exceptionally close to the school," and that closeness accounts, in part, for VMI's success in attracting applicants. See 766 F. Supp., at 1421. A VWIL graduate cannot assume that the "network of business owners, corporations, VMI graduates and non-graduate employers ... interested in hiring VMI graduates," 852 F. Supp., at 499, will be equally responsive to her search for employment, 553 see 44 F. 3d, at 1250 (Phillips, J., dissenting) ("the powerful political and economic ties of the VMI alumni network cannot be expected to open" for graduates of the fledgling VWIL program). Virginia, in sum, while maintaining VMI for men only, has failed to provide any "comparable single-gender women's institution." Id., at 1241. Instead, the Commonwealth has created a VWIL program fairly appraised as a "pale shadow" of VMI in terms of the range of curricular choices and faculty stature, funding, prestige, alumni support and influence. See id., at 1250 (Phillips, J., dissenting). Virginia's VWIL solution is reminiscent of the remedy Texas proposed 50 years ago, in response to a state trial court's 1946 ruling that, given the equal protection guarantee, African-Americans could not be denied a legal education at a state facility. See Sweatt v. Painter, 339 U. S. 629 (1950). Reluctant to admit African-Americans to its flagship University of Texas Law School, the State set up a separate school for Heman Sweatt and other black law students. Id., at 632. As originally opened, the new school had no independent faculty or library, and it lacked accreditation. Id., at 633. Nevertheless, the state trial and appellate courts were satisfied that the new school offered Sweatt opportunities for the study of law "substantially equivalent to those offered by the State to white students at the University of Texas." Id., at 632 (internal quotation marks omitted). Before this Court considered the case, the new school had gained "a faculty of five full-time professors; a student body of 23; a library of some 16,500 volumes serviced by a full-time staff; a practice court and legal aid association; and one alumnus who ha[d] become a member of the Texas Bar." Id., at 633. This Court contrasted resources at the new school with those at the school from which Sweatt had been excluded. The University of Texas Law School had a full-time faculty of 16, a student body of 850, a library containing over 554 65,000 volumes, scholarship funds, a law review, and moot court facilities. Id., at 632-633. More important than the tangible features, the Court emphasized, are "those qualities which are incapable of objective measurement but which make for greatness" in a school, including "reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige." Id., at 634. Facing the marked differences reported in the Sweatt opinion, the Court unanimously ruled that Texas had not shown "substantial equality in the [separate] educational opportunities" the State offered. Id., at 633. Accordingly, the Court held, the Equal Protection Clause required Texas to admit AfricanAmericans to the University of Texas Law School. Id., at 636. In line with Sweatt, we rule here that Virginia has not shown substantial equality in the separate educational opportunities the Commonwealth supports at VWIL and VMI. C When Virginia tendered its VWIL plan, the Fourth Circuit did not inquire whether the proposed remedy, approved by the District Court, placed women denied the VMI advantage in "the position they would have occupied in the absence of [discrimination]." Milliken, 433 U. S., at 280 (internal quotation marks omitted). Instead, the Court of Appeals considered whether the Commonwealth could provide, with fidelity to the equal protection principle, separate and unequal educational programs for men and women. The Fourth Circuit acknowledged that "the VWIL degree from Mary Baldwin College lacks the historical benefit and prestige of a degree from VMI." 44 F. 3d, at 1241. The Court of Appeals further observed that VMI is "an ongoing and successful institution with a long history," and there remains no "comparable single-gender women's institution." Ibid. Nevertheless, the appeals court declared the substantially different and significantly unequal VWIL program sat- 555 isfactory. The court reached that result by revising the applicable standard of review. The Fourth Circuit displaced the standard developed in our precedent, see supra, at 532534, and substituted a standard of its own invention. We have earlier described the deferential review in which the Court of Appeals engaged, see supra, at 528-529, a brand of review inconsistent with the more exacting standard our precedent requires, see supra, at 532-534. Quoting in part from Mississippi Univ. for Women, the Court of Appeals candidly described its own analysis as one capable of checking a legislative purpose ranked as "pernicious," but generally according "deference to [the] legislative will." 44 F. 3d, at 1235, 1236. Recognizing that it had extracted from our decisions a test yielding "little or no scrutiny of the effect of a classification directed at [single-gender education]," the Court of Appeals devised another test, a "substantive comparability" inquiry, id., at 1237, and proceeded to find that new test satisfied, id., at 1241. The Fourth Circuit plainly erred in exposing Virginia's VWIL plan to a deferential analysis, for "all gender-based classifications today" warrant "heightened scrutiny." See J. E. B., 511 U. S., at 136. Valuable as VWIL may prove for students who seek the program offered, Virginia's remedy affords no cure at all for the opportunities and advantages withheld from women who want a VMI education and can make the grade. See supra, at 549-554.20 In sum, Virginia's 20 Virginia's prime concern, it appears, is that "plac[ing] men and women into the adversative relationship inherent in the VMI program ... would destroy, at least for that period of the adversative training, any sense of decency that still permeates the relationship between the sexes." 44 F. 3d, at 1239; see supra, at 540-546. It is an ancient and familiar fear. Compare In re Lavinia Goodell, 39 Wis. 232, 246 (1875) (denying female applicant's motion for admission to the bar of its court, Wisconsin Supreme Court explained: "Discussions are habitually necessary in courts of justice, which are unfit for female ears. The habitual presence of women at these would tend to relax the public sense of decency and propriety."), with Levine, Closing Comments, 6 Law & Inequality 41 (1988) (presentation at 556 remedy does not match the constitutional violation; the Commonwealth has shown no "exceedingly persuasive justification" for withholding from women qualified for the experience premier training of the kind VMI affords. VII A generation ago, "the authorities controlling Virginia higher education," despite long established tradition, agreed "to innovate and favorably entertain[ed] the [then] relatively new idea that there must be no discrimination by sex in offering educational opportunity." Kirstein, 309 F. Supp., at 186. Commencing in 1970, Virginia opened to women "educational opportunities at the Charlottesville campus that [were] not afforded in other [state-operated] institutions." Id., at 187; see supra, at 538. A federal court approved the Commonwealth's innovation, emphasizing that the University of Virginia "offer[ed] courses of instruction ... not available elsewhere." 309 F. Supp., at 187. The court further noted: "[T]here exists at Charlottesville a 'prestige' factor Eighth Circuit Judicial Conference, Colorado Springs, Colo., July 17, 1987) (footnotes omitted); "Plato questioned whether women should be afforded equal opportunity to become guardians, those elite Rulers of Platonic society. Ironically, in that most undemocratic system of government, the Republic, women's native ability to serve as guardians was not seriously questioned. The concern was over the wrestling and exercise class in which all candidates for guardianship had to participate, for rigorous physical and mental training were prerequisites to attain the exalted status of guardian. And in accord with Greek custom, those exercise classes were conducted in the nude. Plato concluded that their virtue would clothe the women's nakedness and that Platonic society would not thereby be deprived of the talent of qualified citizens for reasons of mere gender." For Plato's full text on the equality of women, see 2 The Dialogues of Plato 302-312 (B. Jowett transl., 4th ed. 1953). Virginia, not bound to ancient Greek custom in its "rigorous physical and mental training" programs, could more readily make the accommodations necessary to draw on "the talent of [all] qualified citizens." Cf. supra, at 550-551, n. 19. 557 [not paralleled in] other Virginia educational institutions." Ibid. VMI, too, offers an educational opportunity no other Virginia institution provides, and the school's "prestige"-associated with its success in developing "citizen-soldiers"-is unequaled. Virginia has closed this facility to its daughters and, instead, has devised for them a "parallel program," with a faculty less impressively credentialed and less well paid, more limited course offerings, fewer opportunities for military training and for scientific specialization. Cf. Sweatt, 339 U. S., at 633. VMI, beyond question, "possesses to a far greater degree" than the VWIL program "those qualities which are incapable of objective measurement but which make for greatness in a ... school," including "position and influence of the alumni, standing in the community, traditions and prestige." Id., at 634. Women seeking and fit for a VMI -quality education cannot be offered anything less, under the Commonwealth's obligation to afford them genuinely equal protection. A prime part of the history of our Constitution, historian Richard Morris recounted, is the story of the extension of constitutional rights and protections to people once ignored or excluded.21 VMI's story continued as our comprehension of "We the People" expanded. See supra, at 532, n. 6. 21 R. Morris, The Forging of the Union, 1781-1789, p. 193 (1987); see id., at 191, setting out letter to a friend from Massachusetts patriot (later second President) John Adams, on the subject of qualifications for voting in his home State: "[I]t is dangerous to open so fruitful a source of controversy and altercation as would be opened by attempting to alter the qualifications of voters; there will be no end of it. New claims will arise; women will demand a vote; lads from twelve to twenty-one will think their rights not enough attended to; and every man who has not a farthing, will demand an equal voice with any other, in all acts of state. It tends to confound and destroy all distinctions, and prostrate all ranks to one common level." Letter from John Adams to James Sullivan (May 26, 1776), in 9 Works of John Adams 378 (C. Adams ed. 1854). 558 REHNQUIST, C. J., concurring in judgment There is no reason to believe that the admission of women capable of all the activities required of VMI cadets would destroy the Institute rather than enhance its capacity to serve the "more perfect Union." *** For the reasons stated, the initial judgment of the Court of Appeals, 976 F.2d 890 (CA4 1992), is affirmed, the final judgment of the Court of Appeals, 44 F.3d 1229 (CA4 1995), is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE THOMAS took no part in the consideration or decision of these cases. CHIEF JUSTICE REHNQUIST, concurring in the judgment. The Court holds first that Virginia violates the Equal Protection Clause by maintaining the Virginia Military Institute's (VMI's) all-male admissions policy, and second that establishing the Virginia Women's Institute for Leadership (VWIL) program does not remedy that violation. While I agree with these conclusions, I disagree with the Court's analysis and so I write separately. I Two decades ago in Craig v. Boren, 429 U. S. 190 , 197 (1976), we announced that "[t]o withstand constitutional challenge, ... classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives." We have adhered to that standard of scrutiny ever since. See Califano v. Goldfarb, 430 U. S. 199 , 210-211 (1977); Califano v. Webster, 430 U. S. 313, 316-317 (1977); Orr v. Orr, 440 U. S. 268 , 279 (1979); Caban v. Mohammed, 441 U. S. 380 , 388 (1979); Davis v. Passman, 442 U. S. 228 , 234-235, 235, n. 9 (1979); Personnel Administrator of Mass. v. Feeney, 442 U. S. 256 , 273 (1979); 559 Califano v. Westcott, 443 U. S. 76 ,85 (1979); Wengler v. Druggists Mut. Ins. Co., 446 U. S. 142 , 150 (1980); Kirchberg v. Feenstra, 450 U. S. 455 , 459-460 (1981); Michael M. v. Superior Court, Sonoma Cty., 450 U. S. 464 , 469 (1981); Mississippi Univ. for Women v. Hogan, 458 U. S. 718 , 724 (1982); Heckler v. Mathews, 465 U. S. 728 , 744 (1984); J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127 , 137, n. 6 (1994). While the majority adheres to this test today, ante, at 524, 533, it also says that the Commonwealth must demonstrate an "'exceedingly persuasive justification'" to support a gender-based classification. See ante, at 524, 529, 530, 531, 533, 534, 545, 546, 556. It is unfortunate that the Court thereby introduces an element of uncertainty respecting the appropriate test. While terms like "important governmental objective" and "substantially related" are hardly models of precision, they have more content and specificity than does the phrase "exceedingly persuasive justification." That phrase is best confined, as it was first used, as an observation on the difficulty of meeting the applicable test, not as a formulation of the test itself. See, e. g., Feeney, supra, at 273 ("[T]hese precedents dictate that any state law overtly or covertly designed to prefer males over females in public employment require an exceedingly persuasive justification"). To avoid introducing potential confusion, I would have adhered more closely to our traditional, "firmly established," Hogan, supra, at 723; Heckler, supra, at 744, standard that a gender-based classification "must bear a close and substantial relationship to important governmental objectives." Feeney, supra, at 273. Our cases dealing with gender discrimination also require that the proffered purpose for the challenged law be the actual purpose. See ante, at 533, 535-536. It is on this ground that the Court rejects the first of two justifications Virginia offers for VMI's single-sex admissions policy, namely, the goal of diversity among its public educational institutions. While I ultimately agree that the Common- 560 REHNQUIST, C. J., concurring in judgment wealth has not carried the day with this justification, I disagree with the Court's method of analyzing the issue. VMI was founded in 1839, and, as the Court notes, ante, at 536-537, admission was limited to men because under the then-prevailing view men, not women, were destined for higher education. However misguided this point of view may be by present-day standards, it surely was not unconstitutional in 1839. The adoption of the Fourteenth Amendment, with its Equal Protection Clause, was nearly 30 years in the future. The interpretation of the Equal Protection Clause to require heightened scrutiny for gender discrimination was yet another century away. Long after the adoption of the Fourteenth Amendment, and well into this century, legal distinctions between men and women were thought to raise no question under the Equal Protection Clause. The Court refers to our decision in Goesaert v. Cleary, 335 U. S. 464 (1948). Likewise representing that now abandoned view was Hoyt v. Florida, 368 U. S. 57 (1961), where the Court upheld a Florida system of jury selection in which men were automatically placed on jury lists, but women were placed there only if they expressed an affirmative desire to serve. The Court noted that despite advances in women's opportunities, the "woman is still regarded as the center of home and family life." Id., at 62. Then, in 1971, we decided Reed v. Reed, 404 U. S. 71 , which the Court correctly refers to as a seminal case. But its facts have nothing to do with admissions to any sort of educational institution. An Idaho statute governing the administration of estates and probate preferred men to women if the other statutory qualifications were equal. The statute's purpose, according to the Idaho Supreme Court, was to avoid hearings to determine who was better qualified as between a man and a woman both applying for letters of administration. This Court held that such a rule violated the Fourteenth Amendment because "a mandatory preference to members of either 561 sex over members of the other, merely to accomplish the elimination of hearings," was an "arbitrary legislative choice forbidden by the Equal Protection Clause." Id., at 76. The brief opinion in Reed made no mention of either Goesaert or Hoyt. Even at the time of our decision in Reed v. Reed, therefore, Virginia and VMI were scarcely on notice that its holding would be extended across the constitutional board. They were entitled to believe that "one swallow doesn't make a summer" and await further developments. Those developments were 11 years in coming. In Mississippi Univ. for Women v. Hogan, supra, a case actually involving a singlesex admissions policy in higher education, the Court held that the exclusion of men from a nursing program violated the Equal Protection Clause. This holding did place Virginia on notice that VMI's men-only admissions policy was open to serious question. The VMI Board of Visitors, in response, appointed a Mission Study Committee to examine "the legality and wisdom of VMI's single-sex policy in light of" Hogan. 766 F. Supp. 1407, 1427 (WD Va. 1991). But the committee ended up cryptically recommending against changing VMI's status as a single-sex college. After three years of study, the committee found "'no information'" that would warrant a change in VMI's status. Id., at 1429. Even the District Court, ultimately sympathetic to VMI's position, found that "[t]he Report provided very little indication of how [its] conclusion was reached" and that "[t]he one and one-half pages in the committee's final report devoted to analyzing the information it obtained primarily focuses on anticipated difficulties in attracting females to VMI." Ibid. The reasons given in the report for not changing the policy were the changes that admission of women to VMI would require, and the likely effect of those changes on the institution. That VMI would have to change is simply not helpful in addressing the constitutionality of the status after Hogan. 562 REHNQUIST, C. J., concurring in judgment Before this Court, Virginia has sought to justify VMI's single-sex admissions policy primarily on the basis that diversity in education is desirable, and that while most of the public institutions of higher learning in the Commonwealth are coeducational, there should also be room for single-sex institutions. I agree with the Court that there is scant evidence in the record that this was the real reason that Virginia decided to maintain VMI as men only. * But, unlike the majority, I would consider only evidence that postdates our decision in Hogan, and would draw no negative inferences from the Commonwealth's actions before that time. I think that after Hogan, the Commonwealth was entitled to reconsider its policy with respect to VMI, and not to have earlier justifications, or lack thereof, held against it. Even if diversity in educational opportunity were the Commonwealth's actual objective, the Commonwealth's position would still be problematic. The difficulty with its position is that the diversity benefited only one sex; there was single-sex public education available for men at VMI, but no corresponding single-sex public education available for women. When Hogan placed Virginia on notice that *The dissent equates our conclusion that VMI's "asserted interest in promoting diversity" is not" 'genuine,'" with a "charge" that the diversity rationale is "a pretext for discriminating against women." Post, at 579580. Of course, those are not the same thing. I do not read the Court as saying that the diversity rationale is a pretext for discrimination, and I would not endorse such a proposition. We may find that diversity was not the Commonwealth's real reason without suggesting, or having to show, that the real reason was "antifeminism," post, at 580. Our cases simply require that the proffered purpose for the challenged gender classification be the actual purpose, although not necessarily recorded. See ante, at 533, 535-536. The dissent also says that the interest in diversity is so transparent that having to articulate it is "absurd on its face." Post, at 592. Apparently, that rationale was not obvious to the Mission Study Committee which failed to list it among its reasons for maintaining VMI's all-men admissions policy. 563 VMI's admissions policy possibly was unconstitutional, VMI could have dealt with the problem by admitting women; but its governing body felt strongly that the admission of women would have seriously harmed the institution's educational approach. Was there something else the Commonwealth could have done to avoid an equal protection violation? Since the Commonwealth did nothing, we do not have to definitively answer that question. I do not think, however, that the Commonwealth's options were as limited as the majority may imply. The Court cites, without expressly approving it, a statement from the opinion of the dissenting judge in the Court of Appeals, to the effect that the Commonwealth could have "simultaneously opened single-gender undergraduate institutions having substantially comparable curricular and extra-curricular programs, funding, physical plant, administration and support services, and faculty and library resources." Ante, at 529-530 (internal quotation marks omitted). If this statement is thought to exclude other possibilities, it is too stringent a requirement. VMI had been in operation for over a century and a half, and had an established, successful, and devoted group of alumni. No legislative wand could instantly call into existence a similar institution for women; and it would be a tremendous loss to scrap VMI's history and tradition. In the words of Grover Cleveland's second inaugural address, the Commonwealth faced a condition, not a theory. And it was a condition that had been brought about, not through defiance of decisions construing gender bias under the Equal Protection Clause, but, until the decision in Hogan, a condition that had not appeared to offend the Constitution. Had Virginia made a genuine effort to devote comparable public resources to a facility for women, and followed through on such a plan, it might well have avoided an equal protection violation. I do not believe the Commonwealth was faced with the stark choice of either admitting women to VMI, on the 564 REHNQUIST, C. J., concurring in judgment one hand, or abandoning VMI and starting from scratch for both men and women, on the other. But, as I have noted, neither the governing board of VMI nor the Commonwealth took any action after 1982. If diversity in the form of single-sex, as well as coeducational, institutions of higher learning were to be available to Virginians, that diversity had to be available to women as well as to men. The dissent criticizes me for "disregarding the four allwomen's private colleges in Virginia (generously assisted by public funds)." Post, at 595. The private women's colleges are treated by the Commonwealth exactly as all other private schools are treated, which includes the provision of tuition-assistance grants to Virginia residents. Virginia gives no special support to the women's single-sex education. But obviously, the same is not true for men's education. Had the Commonwealth provided the kind of support for the private women's schools that it provides for VMI, this may have been a very different case. For in so doing, the Commonwealth would have demonstrated that its interest in providing a single-sex education for men was to some measure matched by an interest in providing the same opportunity for women. Virginia offers a second justification for the single-sex admissions policy: maintenance of the adversative method. I agree with the Court that this justification does not serve an important governmental objective. A State does not have substantial interest in the adversative methodology unless it is pedagogically beneficial. While considerable evidence shows that a single-sex education is pedagogically beneficial for some students, see 766 F. Supp., at 1414, and hence a State may have a valid interest in promoting that methodology, there is no similar evidence in the record that an adversative method is pedagogically beneficial or is any more likely to produce character traits than other methodologies. 565 II The Court defines the constitutional violation in these cases as "the categorical exclusion of women from an extraordinary educational opportunity afforded to men." Ante, at 547. By defining the violation in this way, and by emphasizing that a remedy for a constitutional violation must place the victims of discrimination in "'the position they would have occupied in the absence of [discrimination],'" ibid., the Court necessarily implies that the only adequate remedy would be the admission of women to the allmale institution. As the foregoing discussion suggests, I would not define the violation in this way; it is not the "exclusion of women" that violates the Equal Protection Clause, but the maintenance of an all-men school without providing any-much less a comparable-institution for women. Accordingly, the remedy should not necessarily require either the admission of women to VMI or the creation of a VMI clone for women. An adequate remedy in my opinion might be a demonstration by Virginia that its interest in educating men in a single-sex environment is matched by its interest in educating women in a single-sex institution. To demonstrate such, the Commonwealth does not need to create two institutions with the same number of faculty Ph. Do's, similar SAT scores, or comparable athletic fields. See ante, at 551-552. Nor would it necessarily require that the women's institution offer the same curriculum as the men's; one could be strong in computer science, the other could be strong in liberal arts. It would be a sufficient remedy, I think, if the two institutions offered the same quality of education and were of the same overall caliber. If a State decides to create single-sex programs, the State would, I expect, consider the public's interest and demand in designing curricula. And rightfully so. But the State should avoid assuming demand based on stereotypes; it must not assume a priori, without evidence, that there would be 566 no interest in a women's school of civil engineering, or in a men's school of nursing. In the end, the women's institution Virginia proposes, VWIL, fails as a remedy, because it is distinctly inferior to the existing men's institution and will continue to be for the foreseeable future. VWIL simply is not, in any sense, the institution that VMI is. In particular, VWIL is a program appended to a private college, not a self-standing institution; and VWIL is substantially underfunded as compared to VMI. I therefore ultimately agree with the Court that Virginia has not provided an adequate remedy. JUSTICE SCALIA, dissenting. Today the Court shuts down an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half. To achieve that desired result, it rejects (contrary to our established practice) the factual findings of two courts below, sweeps aside the precedents of this Court, and ignores the history of our people. As to facts: It explicitly rejects the finding that there exist "gender-based developmental differences" supporting Virginia's restriction of the "adversative" method to only a men's institution, and the finding that the all-male composition of the Virginia Military Institute (VMI) is essential to that institution's character. As to precedent: It drastically revises our established standards for reviewing sex-based classifications. And as to history: It counts for nothing the long tradition, enduring down to the present, of men's military colleges supported by both States and the Federal Government. Much of the Court's opinion is devoted to deprecating the closed-mindedness of our forebears with regard to women's education, and even with regard to the treatment of women in areas that have nothing to do with education. Closedminded they were-as every age is, including our own, with regard to matters it cannot guess, because it simply does not 567 consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court's criticism of our ancestors, let me say a word in their praise: They left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the countermajoritarian preferences of the society's law-trained elite) into our Basic Law. Today it enshrines the notion that no substantial educational value is to be served by an all-men's military academy-so that the decision by the people of Virginia to maintain such an institution denies equal protection to women who cannot attend that institution but can attend others. Since it is entirely clear that the Constitution of the United States-the old one-takes no sides in this educational debate, I dissent. I I shall devote most of my analysis to evaluating the Court's opinion on the basis of our current equal protection jurisprudence, which regards this Court as free to evaluate everything under the sun by applying one of three tests: "rational basis" scrutiny, intermediate scrutiny, or strict scrutiny. These tests are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case. Strict scrutiny, we have said, is reserved for state "classifications based on race or national origin and classifications affecting fundamental rights," Clark v. Jeter, 486 U. S. 456 , 461 (1988) (citation omitted). It is my position that the term "fundamental rights" should be limited to "interest[s] traditionally protected by our society," Michael H. 568 v. Gerald D., 491 U. S. 110 , 122 (1989) (plurality opinion of SCALIA, J.); but the Court has not accepted that view, so that strict scrutiny will be applied to the deprivation of whatever sort of right we consider "fundamental." We have no established criterion for "intermediate scrutiny" either, but essentially apply it when it seems like a good idea to load the dice. So far it has been applied to content-neutral restrictions that place an incidental burden on speech, to disabilities attendant to illegitimacy, and to discrimination on the basis of sex. See, e. g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 , 662 (1994); Mills v. Habluetzel, 456 U. S. 91 , 98-99 (1982); Craig v. Boren, 429 U. S. 190 , 197 (1976). I have no problem with a system of abstract tests such as rational basis, intermediate, and strict scrutiny (though I think we can do better than applying strict scrutiny and intermediate scrutiny whenever we feel like it). Such formulas are essential to evaluating whether the new restrictions that a changing society constantly imposes upon private conduct comport with that "equal protection" our society has always accorded in the past. But in my view the function of this Court is to preserve our society's values regarding (among other things) equal protection, not to revise them; to prevent backsliding from the degree of restriction the Constitution imposed upon democratic government, not to prescribe, on our own authority, progressively higher degrees. For that reason it is my view that, whatever abstract tests we may choose to devise, they cannot supersede-and indeed ought to be crafted so as to reflect-those constant and unbroken national traditions that embody the people's understanding of ambiguous constitutional texts. More specifically, it is my view that "when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down." Rutan v. Republican Party of Ill., 497 U. S. 62 , 95 (1990) (SCALIA, J., 569 dissenting). The same applies, mutatis mutandis, to a practice asserted to be in violation of the post-Civil War Fourteenth Amendment. See, e. g., Burnham v. Superior Court of Cal., County of Marin, 495 U. S. 604 (1990) (plurality opinion of SCALIA, J.) (Due Process Clause); J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127 , 156-163 (1994) (SCALIA, J., dissenting) (Equal Protection Clause); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 , 979-984, 1000-1001 (1992) (SCALIA, J., dissenting) (various alleged "penumbras"). The all-male constitution of VMI comes squarely within such a governing tradition. Founded by the Commonwealth of Virginia in 1839 and continuously maintained by it since, VMI has always admitted only men. And in that regard it has not been unusual. For almost all of VMI's more than a century and a half of existence, its single-sex status reflected the uniform practice for government-supported military colleges. Another famous Southern institution, The Citadel, has existed as a state-funded school of South Carolina since 1842. And all the federal military colleges-West Point, the Naval Academy at Annapolis, and even the Air Force Academy, which was not established until 1954-admitted only males for most of their history. Their admission of women in 1976 (upon which the Court today relies, see ante, at 544-545, nn. 13, 15) came not by court decree, but because the people, through their elected representatives, decreed a change. See, e. g., § 803(a), 89 Stat. 537, note following 10 U. S. C. § 4342. In other words, the tradition of having government-funded military schools for men is as well rooted in the traditions of this country as the tradition of sending only men into military combat. The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics-smuggled-into-Iaw. And the same applies, more broadly, to single-sex education in general, which, as I shall discuss, is threatened by 570 today's decision with the cutoff of all state and federal support. Government-run nonmilitary educational institutions for the two sexes have until very recently also been part of our national tradition. "[It is] [c]oeducation, historically, [that] is a novel educational theory. From grade school through high school, college, and graduate and professional training, much of the Nation's population during much of our history has been educated in sexually segregated classrooms." Mississippi Univ. for Women v. Hogan, 458 U. S. 718 , 736 (1982) (Powell, J., dissenting); see id., at 736-739. These traditions may of course be changed by the democratic decisions of the people, as they largely have been. Today, however, change is forced upon Virginia, and reversion to single-sex education is prohibited nationwide, not by democratic processes but by order of this Court. Even while bemoaning the sorry, bygone days of "fixed notions" concerning women's education, see ante, at 536-537, and n. 10, 537539, 542-544, the Court favors current notions so fixedly that it is willing to write them into the Constitution of the United States by application of custom-built "tests." This is not the interpretation of a Constitution, but the creation of one. II To reject the Court's disposition today, however, it is not necessary to accept my view that the Court's made-up tests cannot displace longstanding national traditions as the primary determinant of what the Constitution means. It is only necessary to apply honestly the test the Court has been applying to sex-based classifications for the past two decades. It is well settled, as JUSTICE O'CONNOR stated some time ago for a unanimous Court, that we evaluate a statutory classification based on sex under a standard that lies "[b]etween thee] extremes of rational basis review and strict scrutiny." Clark v. Jeter, 486 U. S., at 461. We have denominated this standard "intermediate scrutiny" and under it have inquired whether the statutory classification is "sub- 571 stantially related to an important governmental objective." Ibid. See, e. g., Heckler v. Mathews, 465 U. S. 728 , 744 (1984); Wengler v. Druggists Mut. Ins. Co., 446 U. S. 142 , 150 (1980); Craig v. Boren, 429 U. S., at 197. Before I proceed to apply this standard to VMI, I must comment upon the manner in which the Court avoids doing so. Notwithstanding our above-described precedents and their" 'firmly established principles,'" Heckler, supra, at 744 (quoting Hogan, supra, at 723), the United States urged us to hold in this litigation "that strict scrutiny is the correct constitutional standard for evaluating classifications that deny opportunities to individuals based on their sex." Brief for United States in No. 94-2107, p. 16. (This was in fiat contradiction of the Government's position below, which was, in its own words, to "stat[e] unequivocally that the appropriate standard in this case is 'intermediate scrutiny.'" 2 Record, Doc. No. 88, p. 3 (emphasis added).) The Court, while making no reference to the Government's argument, effectively accepts it. Although the Court in two places recites the test as stated in Hogan, see ante, at 524, 532-533, which asks whether the State has demonstrated "that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives," 458 U. S., at 724 (internal quotation marks omitted), the Court never answers the question presented in anything resembling that form. When it engages in analysis, the Court instead prefers the phrase "exceedingly persuasive justification" from Hogan. The Court's nine invocations of that phrase, see ante, at 524, 529, 530, 531, 533, 534, 545, 546, 556, and even its fanciful description of that imponderable as "the core instruction" of the Court's decisions in J. E. B. v. Alabama ex rel. T. B., supra, and Hogan, supra, see ante, at 531, would be unobjectionable if the Court acknowledged that whether a "justification" is "exceedingly persuasive" must be assessed by asking 572 "[whether] the classification serves important governmental objectives and [whether] the discriminatory means employed are substantially related to the achievement of those objectives." Instead, however, the Court proceeds to interpret "exceedingly persuasive justification" in a fashion that contradicts the reasoning of Hogan and our other precedents. That is essential to the Court's result, which can only be achieved by establishing that intermediate scrutiny is not survived if there are some women interested in attending VMI, capable of undertaking its activities, and able to meet its physical demands. Thus, the Court summarizes its holding as follows: "In contrast to the generalizations about women on which Virginia rests, we note again these dispositive realities: VMI's implementing methodology is not inherently unsuitable to women; some women do well under the adversative model; some women, at least, would want to attend VMI if they had the opportunity; some women are capable of all of the individual activities required of VMI cadets and can meet the physical standards VMI now imposes on men." Ante, at 550 (internal quotation marks, citations, and punctuation omitted; emphasis added). Similarly, the Court states that "[t]he Commonwealth's justification for excluding all women from 'citizen-soldier' training for which some are qualified ... cannot rank as 'exceedingly persuasive' .... " Ante, at 545.1 1 Accord, ante, at 541 ("In sum ... , neither the goal of producing citizensoldiers, VMI's raison d'etre, nor VMI's implementing methodology is inherently unsuitable to women" (internal quotation marks omitted; emphasis added)); ante, at 542 ("[T]he question is whether the Commonwealth can constitutionally deny to women who have the will and capacity, the training and attendant opportunities that VMI uniquely affords"); ante, at 547-548 (the "violation" is that "equal protection [has been] denied to women ready, willing, and able to benefit from educational opportunities of the kind VMI offers"); ante, at 550 ("As earlier stated, see supra, at 541-542, gen- 573 Only the amorphous "exceedingly persuasive justification" phrase, and not the standard elaboration of intermediate scrutiny, can be made to yield this conclusion that VMI's single-sex composition is unconstitutional because there exist several women (or, one would have to conclude under the Court's reasoning, a single woman) willing and able to undertake VMI's program. Intermediate scrutiny has never required a least-restrictive-means analysis, but only a "substantial relation" between the classification and the state interests that it serves. Thus, in Califano v. Webster, 430 U. S. 313 (1977) (per curiam), we upheld a congressional statute that provided higher Social Security benefits for women than for men. We reasoned that "women ... as such have been unfairly hindered from earning as much as men," but we did not require proof that each woman so benefited had suffered discrimination or that each disadvantaged man had not; it was sufficient that even under the former congressional scheme "women on the average received lower retirement benefits than men." Id., at 318, and n. 5 (emphasis added). The reasoning in our other intermediate-scrutiny cases has similarly required only a substantial relation between end and means, not a perfect fit. In Rostker v. Goldberg, 453 U. S. 57 (1981), we held that selective-service registration could constitutionally exclude women, because even "assuming that a small number of women could be drafted for noncombat roles, Congress simply did not consider it worth the added burdens of including women in draft and registration plans." Id., at 81. In Metro Broadcasting, Inc. v. FCC, 497 U. S. 547 , 579, 582-583 (1990), overruled on other grounds, Adarand Constructors, Inc. v. Pena, 515 U. S. 200 , 227 (1995), we held that a classification need not be accurate "in every case" to survive intermediate scrutiny so long as, "in the aggregate," it advances the underlying eralizations about 'the way women are,' estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description"). 574 objective. There is simply no support in our cases for the notion that a sex-based classification is invalid unless it relates to characteristics that hold true in every instance. Not content to execute a de facto abandonment of the intermediate scrutiny that has been our standard for sex-based classifications for some two decades, the Court purports to reserve the question whether, even in principle, a higher standard (i. e., strict scrutiny) should apply. "The Court has," it says, "thus far reserved most stringent judicial scrutiny for classifications based on race or national origin ... ," ante, at 532, n. 6 (emphasis added); and it describes our earlier cases as having done no more than decline to "equat[e] gender classifications, for all purposes, to classifications based on race or national origin," ante, at 532 (emphasis added). The wonderful thing about these statements is that they are not actually false-just as it would not be actually false to say that "our cases have thus far reserved the 'beyond a reasonable doubt' standard of proof for criminal cases," or that "we have not equated tort actions, for all purposes, to criminal prosecutions." But the statements are misleading, insofar as they suggest that we have not already categorically held strict scrutiny to be inapplicable to sexbased classifications. See, e. g., Heckler v. Mathews, 465 U. S. 728 (1984) (upholding state action after applying only intermediate scrutiny); Michael M. v. Superior Court, Somoma Cty., 450 U. S. 464 (1981) (plurality and both concurring opinions) (same); Califano v. Webster, supra (per curiam) (same). And the statements are irresponsible, insofar as they are calculated to destabilize current law. Our task is to clarify the law-not to muddy the waters, and not to exact overcompliance by intimidation. The States and the Federal Government are entitled to know before they act the standard to which they will be held, rather than be compelled to guess about the outcome of Supreme Court peek-a-boo. The Court's intimations are particularly out of place because it is perfectly clear that, if the question of the applica- 575 ble standard of review for sex-based classifications were to be regarded as an appropriate subject for reconsideration, the stronger argument would be not for elevating the standard to strict scrutiny, but for reducing it to rational-basis review. The latter certainly has a firmer foundation in our past jurisprudence: Whereas no majority of the Court has ever applied strict scrutiny in a case involving sex-based classifications, we routinely applied rational-basis review until the 1970's, see, e. g., Hoyt v. Florida, 368 U. S. 57 (1961); Goesaert v. Cleary, 335 U. S. 464 (1948). And of course normal, rational-basis review of sex-based classifications would be much more in accord with the genesis of heightened standards of judicial review, the famous footnote in United States v. Carolene Products Co., 304 U. S. 144 (1938), which said (intimatingly) that we did not have to inquire in the case at hand "whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." Id., at 152-153, n. 4. It is hard to consider women a "discrete and insular minorit[y]" unable to employ the "political processes ordinarily to be relied upon," when they constitute a majority of the electorate. And the suggestion that they are incapable of exerting that political power smacks of the same paternalism that the Court so roundly condemns. See, e. g., ante, at 536-537, 542-546 (and accompanying notes). Moreover, a long list of legislation proves the proposition false. See, e. g., Equal Pay Act of 1963, 29 U. S. C. § 206(d); Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-2; Title IX of the Education Amendments of 1972, 20 U. S. C. § 1681; Women's Business Ownership Act of 1988, Pub. L. 100-533, 102 Stat. 2689; 576 Violence Against Women Act of 1994, Pub. L. 103-322, Title IV; 108 Stat. 1902. III With this explanation of how the Court has succeeded in making its analysis seem orthodox-and indeed, if intimations are to be believed, even overly generous to VMI-I now proceed to describe how the analysis should have been conducted. The question to be answered, I repeat, is whether the exclusion of women from VMI is "substantially related to an important governmental objective." A It is beyond question that Virginia has an important state interest in providing effective college education for its citizens. That single-sex instruction is an approach substantially related to that interest should be evident enough from the long and continuing history in this country of men's and women's colleges. But beyond that, as the Court of Appeals here stated: "That single-gender education at the college level is beneficial to both sexes is a fact established in this case." 44 F.3d 1229 , 1238 (CA4 1995) (emphasis added). The evidence establishing that fact was overwhelmingindeed, "virtually uncontradicted" in the words of the court that received the evidence, 766 F. Supp. 1407, 1415 (WD Va. 1991). As an initial matter, Virginia demonstrated at trial that "[a] substantial body of contemporary scholarship and research supports the proposition that, although males and females have significant areas of developmental overlap, they also have differing developmental needs that are deepseated." Id., at 1434. While no one questioned that for many students a coeducational environment was nonetheless not inappropriate, that could not obscure the demonstrated benefits of single-sex colleges. For example, the District Court stated as follows: "One empirical study in evidence, not questioned by any expert, demonstrates that single-sex colleges pro- 577 vide better educational experiences than coeducational institutions. Students of both sexes become more academically involved, interact with faculty frequently, show larger increases in intellectual self-esteem and are more satisfied with practically all aspects of college experience (the sole exception is social life) compared with their counterparts in coeducational institutions. Attendance at an all-male college substantially increases the likelihood that a student will carry out career plans in law, business and college teaching, and also has a substantial positive effect on starting salaries in business. Women's colleges increase the chances that those who attend will obtain positions of leadership, complete the baccalaureate degree, and aspire to higher degrees." Id., at 1412. See also id., at 1434-1435 (factual findings). "[I]n the light of this very substantial authority favoring single-sex education," the District Court concluded that "the VMI Board's decision to maintain an all-male institution is fully justified even without taking into consideration the other unique features of VMI's teaching and training." Id., at 1412. This finding alone, which even this Court cannot dispute, see ante, at 535, should be sufficient to demonstrate the constitutionality of VMI's all-male composition. But besides its single-sex constitution, VMI is different from other colleges in another way. It employs a "distinctive educational method," sometimes referred to as the "adversative, or doubting, model of education." 766 F. Supp., at 1413, 1421. "Physical rigor, mental stress, absolute equality of treatment, absence of privacy, minute regulation of behavior, and indoctrination in desirable values are the salient attributes of the VMI educational experience." Id., at 1421. No one contends that this method is appropriate for all individuals; education is not a "one size fits all" business. Just as a State may wish to support junior colleges, vocational institutes, or a law school that emphasizes case 578 practice instead of classroom study, so too a State's decision to maintain within its system one school that provides the adversative method is "substantially related" to its goal of good education. Moreover, it was uncontested that "if the state were to establish a women's VMI-type [i. e., adversative] program, the program would attract an insufficient number of participants to make the program work," 44 F. 3d, at 1241; and it was found by the District Court that if Virginia were to include women in VMI, the school "would eventually find it necessary to drop the adversative system altogether," 766 F. Supp., at 1413. Thus, Virginia's options were an adversative method that excludes women or no adversative method at all. There can be no serious dispute that, as the District Court found, single-sex education and a distinctive educational method "represent legitimate contributions to diversity in the Virginia higher education system." Ibid. As a theoretical matter, Virginia's educational interest would have been best served (insofar as the two factors we have mentioned are concerned) by six different types of public colleges-an all-men's, an all-women's, and a coeducational college run in the "adversative method," and an all-men's, an all-women's, and a coeducational college run in the "traditional method." But as a practical matter, of course, Virginia's financial resources, like any State's, are not limitless, and the Commonwealth must select among the available options. Virginia thus has decided to fund, in addition to some 14 coeducational4-year colleges, one college that is run as an all-male school on the adversative model: the Virginia Military Institute. Virginia did not make this determination regarding the make-up of its public college system on the unrealistic assumption that no other colleges exist. Substantial evidence in the District Court demonstrated that the Commonwealth has long proceeded on the principle that" '[h]igher education resources should be viewed as a whole-public and pri- 579 vate' "-because such an approach enhances diversity and because "'it is academic and economic waste to permit unwarranted duplication.'" Id., at 1420-1421 (quoting 1974 Report of the General Assembly Commission on Higher Education to the General Assembly of Virginia). It is thus significant that, whereas there are "four all-female private [colleges] in Virginia," there is only "one private all-male college," which "indicates that the private sector is providing for thee] [former] form of education to a much greater extent that it provides for all-male education." 766 F. Supp., at 1420-1421. In these circumstances, Virginia's election to fund one public all-male institution and one on the adversative model-and to concentrate its resources in a single entity that serves both these interests in diversity-is substantially related to the Commonwealth's important educational interests. B The Court today has no adequate response to this clear demonstration of the conclusion produced by application of intermediate scrutiny. Rather, it relies on a series of contentions that are irrelevant or erroneous as a matter of law, foreclosed by the record in this litigation, or both. 1. I have already pointed out the Court's most fundamental error, which is its reasoning that VMI's all-male composition is unconstitutional because "some women are capable of all of the individual activities required of VMI cadets," 766 F. Supp., at 1412, and would prefer military training on the adversative model. See supra, at 571-574. This unacknowledged adoption of what amounts to (at least) strict scrutiny is without antecedent in our sex-discrimination cases and by itself discredits the Court's decision. 2. The Court suggests that Virginia's claimed purpose in maintaining VMI as an all-male institution-its asserted interest in promoting diversity of educational options-is not "genuin[e]," but is a pretext for discriminating against women. Ante, at 539; see ante, at 535-540. To support this 580 charge, the Court would have to impute that base motive to VMI's Mission Study Committee, which conducted a 3-year study from 1983 to 1986 and recommended to VMI's Board of Visitors that the school remain all male. The committee, a majority of whose members consisted of non- VMI graduates, "read materials on education and on women in the military," "made site visits to single-sex and newly coeducational institutions" including West Point and the Naval Academy, and "considered the reasons that other institutions had changed from single-sex to coeducational status"; its work was praised as "thorough" in the accreditation review of VMI conducted by the Southern Association of Colleges and Schools. See 766 F. Supp., at 1413, 1428; see also id., at 1427-1430 (detailed findings of fact concerning the Mission Study Committee). The Court states that "[w]hatever internal purpose the Mission Study Committee servedand however well meaning the framers of the report-we can hardly extract from that effort any commonwealth policy evenhandedly to advance diverse educational options." Ante, at 539. But whether it is part of the evidence to prove that diversity was the Commonwealth's objective (its short report said nothing on that particular subject) is quite separate from whether it is part of the evidence to prove that antifeminism was not. The relevance of the Mission Study Committee is that its very creation, its sober 3-year study, and the analysis it produced utterly refute the claim that VMI has elected to maintain its all-male student-body composition for some misogynistic reason. The Court also supports its analysis of Virginia's "actual state purposes" in maintaining VMI's student body as all male by stating that there is no explicit statement in the record "'in which the Commonwealth has expressed itself'" concerning those purposes. Ante, at 535, 539 (quoting 976 F.2d 890 , 899 (CA4 1992)); see also ante, at 525. That is wrong on numerous grounds. First and foremost, in its implication that such an explicit statement of "actual purposes" 581 is needed. The Court adopts, in effect, the argument of the United States that since the exclusion of women from VMI in 1839 was based on the "assumptions" of the time "that men alone were fit for military and leadership roles," and since "[b]efore this litigation was initiated, Virginia never sought to supply a valid, contemporary rationale for VMI's exclusionary policy," "[t]hat failure itself renders the VMI policy invalid." Brief for United States in No. 94-2107, at 10. This is an unheard-of doctrine. Each state decision to adopt or maintain a governmental policy need not be accompanied-in anticipation of litigation and on pain of being found to lack a relevant state interest-by a lawyer's contemporaneous recitation of the State's purposes. The Constitution is not some giant Administrative Procedure Act, which imposes upon the States the obligation to set forth a "statement of basis and purpose" for their sovereign Acts, see 5 U. S. C. § 553(c). The situation would be different if what the Court assumes to have been the 1839 policy had been enshrined and remained enshrined in legislation-a VMI charter, perhaps, pronouncing that the institution's purpose is to keep women in their place. But since the 1839 policy was no more explicitly recorded than the Court contends the present one is, the mere fact that today's Commonwealth continues to fund VMI "is enough to answer [the United States'] contention that the [classification] was the 'accidental by-product of a traditional way of thinking about females.'" Michael M., 450 U. S., at 471, n. 6 (pluralityopinion) (quoting Califano v. Webster, 430 U. S., at 320) (internal quotation marks omitted). It is, moreover, not true that Virginia's contemporary reasons for maintaining VMI are not explicitly recorded. It is hard to imagine a more authoritative source on this subject than the 1990 Report of the Virginia Commission on the University of the 21st Century (1990 Report). As the parties stipulated, that report "notes that the hallmarks of Virginia's educational policy are 'diversity and autonomy.'" Stipula- 582 tions of Fact 37, reprinted in Lodged Materials from the Record 64 (Lodged Materials). It said: "The formal system of higher education in Virginia includes a great array of institutions: state-supported and independent, two-year and senior, research and highly specialized, traditionally black and single-sex." 1990 Report, quoted in relevant part at Lodged Materials 64-65 (emphasis added).2 The Court's only response to this is repeated reliance on the Court of Appeals' assertion that "'the only explicit [statement] that we have found in the record in which the Commonwealth has expressed itself with respect to gender distinctions'" (namely, the statement in the 1990 Report that the Commonwealth's institutions must "deal with faculty, staff, and students without regard to sex") had nothing to do with the purpose of diversity. Ante, at 525, 539 (quoting 976 F. 2d, at 899). This proves, I suppose, that the Court of Appeals did not find a statement dealing with sex and diversity in the record; but the pertinent question (accepting the need for such a statement) is whether it was there. And the plain fact, which the Court does not deny, is that it was. 2 This statement is supported by other evidence in the record demonstrating, by reference to both public and private institutions, that Virginia actively seeks to foster its "'rich heritage of pluralism and diversity in higher education,'" 1969 Report of the Virginia Commission on Constitutional Revision, quoted in relevant part at Lodged Materials 53; that Virginia views" '[o]ne special characteristic of the Virginia system [as being] its diversity,'" 1989 Virginia Plan for Higher Education, quoted in relevant part at Lodged Materials 64; and that in the Commonwealth's view "[h]igher education resources should be viewed as a whole-public and private"-because '''Virginia needs the diversity inherent in a dual system of higher education,'" 1974 Report of the General Assembly Commission on Higher Education to the General Assembly of Virginia, quoted in 766 F. Supp. 1407, 1420 (WD Va. 1991). See also Budget Initiatives for 19901992 of State Council of Higher Education for Virginia 10 (June 21, 1989) (Budget Initiatives), quoted at n. 3, infra. It should be noted (for this point will be crucial to my later discussion) that these official reports quoted here, in text and footnote, regard the Commonwealth's educational system-public and private-as a unitary one. 583 The Court contends that "[a] purpose genuinely to advance an array of educational options ... is not served" by VMI. Ante, at 539-540. It relies on the fact that all of Virginia's other public colleges have become coeducational. Ibid.; see also ante, at 521, n. 2. The apparent theory of this argument is that unless Virginia pursues a great deal of diversity, its pursuit of some diversity must be a sham. This fails to take account of the fact that Virginia's resources cannot support all possible permutations of schools, see supra, at 578, and of the fact that Virginia coordinates its public educational offerings with the offerings of in-state private educational institutions that the Commonwealth provides money for its residents to attend and otherwise assists-which include four women's colleges.3 Finally, the Court unreasonably suggests that there is some pretext in Virginia's reliance upon decentralized deci- 3 The Commonwealth provides tuition assistance, scholarship grants, guaranteed loans, and work-study funds for residents of Virginia who attend private colleges in the Commonwealth. See, e. g., Va. Code Ann. §§ 23-38.11 to 23-38.19 (1993 and Supp. 1995) (Tuition Assistance Grant Act); §§ 23-38.30 to 23-38.44:3 (Virginia Student Assistance Authorities); Va. Code Ann. §§ 23-38.45 to 23-38.53 (1993) (College Scholarship Assistance Act); §§ 23-38.53:1 to 23-38.53:3 (Virginia Scholars Program); §§ 2338.70,23-38.71 (Virginia Work-Study Program). These programs involve substantial expenditures: for example, Virginia appropriated $4,413,750 (not counting federal funds it also earmarked) for the College Scholarship Assistance Program for both 1996 and 1997, and for the Tuition Assistance Grant Program appropriated $21,568,000 for 1996 and $25,842,000 for 1997. See 1996 Va. Appropriations Act, ch. 912, pt. 1, § 160. In addition, as the parties stipulated in the District Court, the Commonwealth provides other financial support and assistance to private institutions-including single-sex colleges-through low-cost building loans, state-funded services contracts, and other programs. See, e. g., Va. Code Ann. §§ 23-30.39 to 23.30.58 (1993) (Educational Facilities Authority Act). The State Council of Higher Education for Virginia, in a 1989 document not created for purposes of this litigation but introduced into evidence, has described these various programs as a "means by which the Commonwealth can provide funding to its independent institutions, thereby helping to maintain a diverse system of higher education." Budget Initiatives 10. 584 sionmaking to achieve diversity-its granting of substantial autonomy to each institution with regard to student-body composition and other matters, see 766 F. Supp., at 1419. The Court adopts the suggestion of the Court of Appeals that it is not possible for "one institution with autonomy, but with no authority over any other state institution, [to] give effect to a state policy of diversity among institutions." Ante, at 539 (internal quotation marks omitted). If it were impossible for individual human beings (or groups of human beings) to act autonomously in effective pursuit of a common goal, the game of soccer would not exist. And where the goal is diversity in a free market for services, that tends to be achieved even by autonomous actors who act out of entirely selfish interests and make no effort to cooperate. Each Virginia institution, that is to say, has a natural incentive to make itself distinctive in order to attract a particular segment of student applicants. And of course none of the institutions is entirely autonomous; if and when the legislature decides that a particular school is not well serving the interest of diversity-if it decides, for example, that a men's school is not much needed-funding will cease.4 4 The Court, unfamiliar with the Commonwealth's policy of diverse and independent institutions, and in any event careless of state and local traditions, must be forgiven by Virginians for quoting a reference to "'the Charlottesville campus'" of the University of Virginia. See ante, at 538. The University of Virginia, an institution even older than VMI, though not as old as another of the Commonwealth's universities, the College of William and Mary, occupies the portion of Charlottesville known, not as the "campus," but as "the grounds." More importantly, even if it were a "campus," there would be no need to specify "the Charlottesville campus," as one might refer to the Bloomington or Indianapolis campus of Indiana University. Unlike university systems with which the Court is perhaps more familiar, such as those in New York (e. g., the State University of New York at Binghamton or Buffalo), Illinois (University of Illinois at Urbana-Champaign or at Chicago), and California (University of California, Los Angeles, or University of California, Berkeley), there is only one University of Virginia. It happens (because Thomas Jefferson lived near there) to be located at Charlottesville. To many Virginians it is known, 585 3. In addition to disparaging Virginia's claim that VMI's single-sex status serves a state interest in diversity, the Court finds fault with Virginia's failure to offer education based on the adversative training method to women. It dismisses the District Court's "'findings' on 'gender-based developmental differences'" on the ground that "[t]hese 'findings' restate the opinions of Virginia's expert witnesses, opinions about typically male or typically female 'tendencies.'" Ante, at 541 (quoting 766 F. Supp., at 1434-1435). How remarkable to criticize the District Court on the ground that its findings rest on the evidence (i. e., the testimony of Virginia's witnesses)! That is what findings are supposed to do. It is indefensible to tell the Commonwealth that "[t]he burden of justification is demanding and it rests entirely on [you]," ante, at 533, and then to ignore the District Court's findings because they rest on the evidence put forward by the Commonwealth-particularly when, as the District Court said, "[t]he evidence in the case ... is virtually uncontradicted," 766 F. Supp., at 1415 (emphasis added). Ultimately, in fact, the Court does not deny the evidence supporting these findings. See ante, at 541-546. It instead makes evident that the parties to this litigation could have saved themselves a great deal of time, trouble, and expense by omitting a trial. The Court simply dispenses with the evidence submitted at trial-it never says that a single finding of the District Court is clearly erroneous-in favor of the Justices' own view of the world, which the Court proceeds to support with (1) references to observations of someone simply, as "the University," which suffices to distinguish it from the Commonwealth's other institutions offering 4-year college instruction, which include Christopher Newport College, Clinch Valley College, the College of William and Mary, George Mason University, James Madison University, Longwood College, Mary Washington University, Norfolk State University, Old Dominion University, Radford University, Virginia Commonwealth University, Virginia Polytechnic Institute and State University, Virginia State University-and, of course, VMI. 586 who is not a witness, nor even an educational expert, nor even a judge who reviewed the record or participated in the judgment below, but rather a judge who merely dissented from the Court of Appeals' decision not to rehear this litigation en bane, see ante, at 542, (2) citations of nonevidentiary materials such as amicus curiae briefs filed in this Court, see ante, at 544-545, nn. 13, 14, and (3) various historical anecdotes designed to demonstrate that Virginia's support for VMI as currently constituted reminds the Justices of the "bad old days," see ante, at 542-544. It is not too much to say that this approach to the litigation has rendered the trial a sham. But treating the evidence as irrelevant is absolutely necessary for the Court to reach its conclusion. Not a single witness contested, for example, Virginia's "substantial body of 'exceedingly persuasive' evidence ... that some students, both male and female, benefit from attending a single-sex college" and "[that] [f]or those students, the opportunity to attend a single-sex college is a valuable one, likely to lead to better academic and professional achievement." 766 F. Supp., at 1411-1412. Even the United States' expert witness "called himself a 'believer in single-sex education,'" although it was his "personal, philosophical preference," not one "born of educational-benefit considerations," "that single-sex education should be provided only by the private sector." Id., at 1412. 4. The Court contends that Virginia, and the District Court, erred, and "misperceived our precedent," by "train[ing] their argument on 'means' rather than 'end,'" ante, at 545. The Court focuses on "VMI's mission," which is to produce individuals "imbued with love of learning, confident in the functions and attitudes of leadership, possessing a high sense of public service, advocates of the American democracy and free enterprise system, and ready ... to defend their country in time of national peril." 766 F. Supp., at 1425 (quoting Mission Study Committee of the VMI Board of 587 Visitors, Report, May 16, 1986). "Surely," the Court says, "that goal is great enough to accommodate women." Ante, at 545. This is lawmaking by indirection. What the Court describes as "VMI's mission" is no less the mission of all Virginia colleges. Which of them would the Old Dominion continue to fund if they did not aim to create individuals "imbued with love of learning, etc.," right down to being ready "to defend their country in time of national peril"? It can be summed up as "learning, leadership, and patriotism." To be sure, those general educational values are described in a particularly martial fashion in VMI's mission statement, in accordance with the military, adversative, and all-male character of the institution. But imparting those values in that fashion-i. e., in a military, adversative, all-male environment-is the distinctive mission of VMI. And as I have discussed (and both courts below found), that mission is not "great enough to accommodate women." The Court's analysis at least has the benefit of producing foreseeable results. Applied generally, it means that whenever a State's ultimate objective is "great enough to accommodate women" (as it always will be), then the State will be held to have violated the Equal Protection Clause if it restricts to men even one means by which it pursues that objective-no matter how few women are interested in pursuing the objective by that means, no matter how much the single-sex program will have to be changed if both sexes are admitted, and no matter how beneficial that program has theretofore been to its participants. 5. The Court argues that VMI would not have to change very much if it were to admit women. See, e. g., ante, at 540-542. The principal response to that argument is that it is irrelevant: If VMI's single-sex status is substantially related to the government's important educational objectives, as I have demonstrated above and as the Court refuses to dis- 588 cuss, that concludes the inquiry. There should be no debate in the federal judiciary over "how much" VMI would be required to change if it admitted women and whether that would constitute "too much" change. But if such a debate were relevant, the Court would certainly be on the losing side. The District Court found as follows: "[T]he evidence establishes that key elements of the adversative VMI educational system, with its focus on barracks life, would be fundamentally altered, and the distinctive ends of the system would be thwarted, if VMI were forced to admit females and to make changes necessary to accommodate their needs and interests." 766 F. Supp., at 1411. Changes that the District Court's detailed analysis found would be required include new allowances for personal privacy in the barracks, such as locked doors and coverings on windows, which would detract from VMI's approach of regulating minute details of student behavior, "contradict the principle that everyone is constantly subject to scrutiny by everyone else," and impair VMI's "total egalitarian approach" under which every student must be "treated alike"; changes in the physical training program, which would reduce "[t]he intensity and aggressiveness of the current program"; and various modifications in other respects of the adversative training program that permeates student life. See id., at 1412-1413, 1435-1443. As the Court of Appeals summarized it, "the record supports the district court's findings that at least these three aspects of VMI's programphysical training, the absence of privacy, and the adversative approach-would be materially affected by coeducation, leading to a substantial change in the egalitarian ethos that is a critical aspect of VMI's training." 976 F. 2d, at 896-897. In the face of these findings by two courts below, amply supported by the evidence, and resulting in the conclusion that VMI would be fundamentally altered if it admitted women, this Court simply pronounces that "[t]he notion that 589 admission of women would downgrade VMI's stature, destroy the adversative system and, with it, even the school, is a judgment hardly proved." Ante, at 542 (footnote omitted). The point about "downgrad[ing] VMI's stature" is a straw man; no one has made any such claim. The point about "destroy[ing] the adversative system" is simply false; the District Court not only stated that "[e]vidence supports this theory," but specifically concluded that while "[w]ithout a doubt" VMI could assimilate women, "it is equally without a doubt that VMI's present methods of training and education would have to be changed" by a "move away from its adversative new cadet system." 766 F. Supp., at 1413, and n. 8, 1440. And the point about "destroy[ing] the school," depending upon what that ambiguous phrase is intended to mean, is either false or else sets a standard much higher than VMI had to meet. It sufficed to establish, as the District Court stated, that VMI would be "significantly different" upon the admission of women, 766 F. Supp., at 1412, and "would eventually find it necessary to drop the adversative system altogether," id., at 1413.5 5 The Court's do-it-yourself approach to factfinding, which throughout is contrary to our well-settled rule that we will not "undertake to review concurrent findings of fact by two courts below in the absence of a very obvious and exceptional showing of error," Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U. S. 271 , 275 (1949) (and cases cited), is exemplified by its invocation of the experience of the federal military academies to prove that not much change would occur. See ante, at 542, n. 11; 544545, and n. 15; 550-551, n. 19. In fact, the District Court noted that "the West Point experience" supported the theory that a coeducational VMI would have to "adopt a [different] system," for West Point found it necessary upon becoming coeducational to "move away" from its adversative system. 766 F. Supp., at 1413, 1440. ''Without a doubt ... VMI's present methods of training and education would have to be changed as West Point's were." Id., at 1413, n. 8; accord, 976 F.2d 890 , 896-897 (CA4 1992) (upholding District Court's findings that "the unique characteristics of VMI's program," including its "unique methodology," "would be destroyed by coeducation"). 590 6. Finally, the absence of a precise "all-women's analogue" to VMI is irrelevant. In Mississippi Univ. for Women v. Hogan, 458 U. S. 718 (1982), we attached no constitutional significance to the absence of an all-male nursing school. As Virginia notes, if a program restricted to one sex is necessarily unconstitutional unless there is a parallel program restricted to the other sex, "the opinion in Hogan could have ended with its first footnote, which observed that 'Mississippi maintains no other single-sex public university or college.'" Brief for Cross-Petitioners in No. 94-2107, p. 38 (quoting Mississippi Univ. for Women v. Hogan, supra, at 720, n. 1). Although there is no precise female-only analogue to VMI, Virginia has created during this litigation the Virginia Women's Institute for Leadership (VWIL), a state-funded all-women's program run by Mary Baldwin College. I have thus far said nothing about VWIL because it is, under our established test, irrelevant, so long as VMFs all-male character is "substantially related" to an important state goal. But VWIL now exists, and the Court's treatment of it shows how far reaching today's decision is. VWIL was carefully designed by professional educators who have long experience in educating young women. The program rejects the proposition that there is a "difference in the respective spheres and destinies of man and woman," Bradwell v. State, 16 Wall. 130, 141 (1873), and is designed to "provide an all-female program that will achieve substantially similar outcomes [to VMI's] in an all-female environment," 852 F. Supp. 471, 481 (WD Va. 1994). After holding a trial where voluminous evidence was submitted and making detailed findings of fact, the District Court concluded that "there is a legitimate pedagogical basis for the different means employed [by VMI and VWIL] to achieve the sub- 591 stantially similar ends." Ibid. The Court of Appeals undertook a detailed review of the record and affirmed. 44 F.3d 1229 (CA4 1995).6 But it is Mary Baldwin College, which runs VWIL, that has made the point most succinctly: "It would have been possible to develop the VWIL program to more closely resemble VMI, with adversative techniques associated with the rat line and barracks-like living quarters. Simply replicating an existing program would have required far less thought, research, and educational expertise. But such a facile approach would have produced a paper program with no real prospect of successful implementation." Brief for Mary Baldwin College as Amicus Curiae 5. It is worth noting that none of the United States' own experts in the remedial phase of this litigation was willing to testify that VMI's adversative method was an appropriate methodology for educating women. This Court, however, does not care. Even though VWIL was carefully designed by professional educators who have tremendous experience in the area, and survived the test of adversarial litigation, the Court simply declares, with no basis in the evidence, that 6 The Court is incorrect in suggesting that the Court of Appeals applied a "deferential" "brand of review inconsistent with the more exacting standard our precedent requires." Ante, at 555. That court "inquir[ed] (1) whether the state's objective is 'legitimate and important,' and (2) whether 'the requisite direct, substantial relationship between objective and means is present,'" 44 F. 3d, at 1235 (quoting Mississippi Univ. for Women v. Hogan, 458 U. S. 718 , 725 (1982)). To be sure, such review is "deferential" to a degree that the Court's new standard is not, for it is intermediate scrntiny. (The Court cannot evade this point or prove the Court of Appeals too deferential by stating that that court "devised another test, a 'substantive comparability' inquiry,' " ante, at 555 (quoting 44 F. 3d, at 1237), for as that court explained, its "substantive comparability" inquiry was an "additional step" that it engrafted on "th[e] traditional test" of intermediate scrutiny, ibid. (emphasis added).) 592 these professionals acted on "'overbroad' generalizations," ante, at 542, 550. C A few words are appropriate in response to the concurrence, which finds VMI unconstitutional on a basis that is more moderate than the Court's but only at the expense of being even more implausible. The concurrence offers three reasons: First, that there is "scant evidence in the record," ante, at 562, that diversity of educational offering was the real reason for Virginia's maintaining VMI. "Scant" has the advantage of being an imprecise term. I have cited the clearest statements of diversity as a goal for higher education in the 1990 Report, the 1989 Virginia Plan for Higher Education, the Budget Initiatives prepared in 1989 by the State Council of Higher Education for Virginia, the 1974 Report of the General Assembly Commission on Higher Education to the General Assembly of Virginia, and the 1969 Report of the Virginia Commission on Constitutional Revision. See supra, at 579, 581-582, and n. 2, 583, n. 3. There is no evidence to the contrary, once one rejects (as the concurrence rightly does) the relevance of VMI's founding in days when attitudes toward the education of women were different. Is this conceivably not enough to foreclose rejecting as clearly erroneous the District Court's determination regarding "the Commonwealth's objective of educational diversity"? 766 F. Supp., at 1413. Especially since it is absurd on its face even to demand "evidence" to prove that the Commonwealth's reason for maintaining a men's military academy is that a men's military academy provides a distinctive type of educational experience (i. e., fosters diversity). What other purpose would the Commonwealth have? One may argue, as the Court does, that this type of diversity is designed only to indulge hostility toward women-but that is a separate point, explicitly rejected by the concurrence, and amply refuted by the evidence I have mentioned in dis- 593 cussing the Court's opinion.7 What is now under discussion-the concurrence's making central to the disposition of this litigation the supposedly "scant" evidence that Virginia maintained VMI in order to offer a diverse educational experience-is rather like making crucial to the lawfulness of the United States Army record "evidence" that its purpose is to do battle. A legal culture that has forgotten the concept of res ipsa loquitur deserves the fate that it today decrees for VMI. Second, the concurrence dismisses out of hand what it calls Virginia's "second justification for the single-sex admissions policy: maintenance of the adversative method." Ante, at 564. The concurrence reasons that "this justification does not serve an important governmental objective" because, whatever the record may show about the pedagogical benefits of single-sex education, "there is no similar evidence in the record that an adversative method is pedagogically beneficial or is any more likely to produce character traits than other methodologies." Ibid. That is simply wrong. See, e. g., 766 F. Supp., at 1426 (factual findings concerning character traits produced by VMI's adversative methodology); id., at 1434 (factual findings concerning benefits for many college-age men of an adversative approach in general). In reality, the pedagogical benefits of VMI's adversative approach were not only proved, but were a given in this litigation. The reason the woman applicant who prompted this suit wanted to enter VMI was assuredly not that she wanted to go to an all-male school; it would cease being all-male as 7 The concurrence states that it "read[s] the Court" not "as saying that the diversity rationale is a pretext" for discriminating against women, but as saying merely that the diversity rationale is not genuine. Ante, at 562, n. The Court itself makes no such disclaimer, which would be difficult to credit inasmuch as the foundation for its conclusion that the diversity rationale is not "genuin[e]," ante, at 539, is its antecedent discussion of Virginia's "deliberate" actions over the past century and a half, based on "[f]amiliar arguments," that sought to enforce once "widely held views about women's proper place," ante, at 537, 538. 594 soon as she entered. She wanted the distinctive adversative education that VMI provided, and the battle was joined (in the main) over whether VMI had a basis for excluding women from that approach. The Court's opinion recognizes this, and devotes much of its opinion to demonstrating that "'some women ... do well under [the] adversative model''' and that "[i]t is on behalf of these women that the United States has instituted this suit." Ante, at 550 (quoting 766 F. Supp., at 1434). Of course, in the last analysis it does not matter whether there are any benefits to the adversative method. The concurrence does not contest that there are benefits to single-sex education, and that alone suffices to make Virginia's case, since admission of a woman will even more surely put an end to VMI's single-sex education than it will to VMI's adversative methodology. A third reason the concurrence offers in support of the judgment is that the Commonwealth and VMI were not quick enough to react to the "further developments" in this Court's evolving jurisprudence. Ante, at 561. Specifically, the concurrence believes it should have been clear after Hogan that "[t]he difficulty with [Virginia's] position is that the diversity benefited only one sex; there was single-sex public education available for men at VMI, but no corresponding single-sex public education available for women." Ante, at 562. If only, the concurrence asserts, Virginia had "made a genuine effort to devote comparable public resources to a facility for women, and followed through on such a plan, it might well have avoided an equal protection violation." Ante, at 563. That is to say, the concurrence believes that after our decision in Hogan (which held a program of the Mississippi University for Women to be unconstitutional-without any reliance on the fact that there was no corresponding Mississippi all-men's program), the Commonwealth should have known that what this Court expected of it was ... yes!, the creation of a state all-women's program. Any lawyer who gave that advice to the Commonwealth 595 ought to have been either disbarred or committed. (The proof of that pudding is today's 6-Justice majority opinion.) And any Virginia politician who proposed such a step when there were already four 4-year women's colleges in Virginia (assisted by state support that may well exceed, in the aggregate, what VMI costs, see n. 3, supra) ought to have been recalled. In any event, "diversity in the form of single-sex, as well as coeducational, institutions of higher learning" is "available to women as well as to men" in Virginia. Ante, at 564. The concurrence is able to assert the contrary only by disregarding the four all-women's private colleges in Virginia (generously assisted by public funds) and the Commonwealth's longstanding policy of coordinating public with private educational offerings, see supra, at 579, 581-582, and n. 2, 583-584, and n. 3. According to the concurrence, the reason Virginia's assistance to its four all-women's private colleges does not count is that "[t]he private women's colleges are treated by the State exactly as all other private schools are treated." Ante, at 564. But if Virginia cannot get credit for assisting women's education if it only treats women's private schools as it does all other private schools, then why should it get blame for assisting men's education if it only treats VMI as it does all other public schools? This is a great puzzlement. IV As is frequently true, the Court's decision today will have consequences that extend far beyond the parties to the litigation. What I take to be the Court's unease with these consequences, and its resulting unwillingness to acknowledge them, cannot alter the reality. A Under the constitutional principles announced and applied today, single-sex public education is unconstitutional. By going through the motions of applying a balancing test-ask- 596 ing whether the State has adduced an "exceedingly persuasive justification" for its sex-based classification-the Court creates the illusion that government officials in some future case will have a clear shot at justifying some sort of singlesex public education. Indeed, the Court seeks to create even a greater illusion than that: It purports to have said nothing of relevance to other public schools at all. "We address specifically and only an educational opportunity recognized ... as 'unique.'" Ante, at 534, n. 7. The Supreme Court of the United States does not sit to announce "unique" dispositions. Its principal function is to establish precedent-that is, to set forth principles of law that every court in America must follow. As we said only this Term, we expect both ourselves and lower courts to adhere to the "rationale upon which the Court based the results of its earlier decisions." Seminole Tribe of Fla. v. Florida, 517 U. S. 44 , 66-67 (1996) (emphasis added). That is the principal reason we publish our opinions. And the rationale of today's decision is sweeping: for sexbased classifications, a redefinition of intermediate scrutiny that makes it indistinguishable from strict scrutiny. See supra, at 571-574. Indeed, the Court indicates that if any program restricted to one sex is "uniqu[e]," it must be opened to members of the opposite sex "who have the will and capacity" to participate in it. Ante, at 542. I suggest that the single-sex program that will not be capable of being characterized as "unique" is not only unique but nonexistent.8 In any event, regardless of whether the Court's rationale leaves some small amount of room for lawyers to argue, it ensures that single-sex public education is functionally dead. 8 In this regard, I note that the Court-which I concede is under no obligation to do so-provides no example of a program that would pass muster under its reasoning today: not even, for example, a football or wrestling program. On the Court's theory, any woman ready, willing, and physically able to participate in such a program would, as a constitutional matter, be entitled to do so. 597 The costs of litigating the constitutionality of a single-sex education program, and the risks of ultimately losing that litigation, are simply too high to be embraced by public officials. Any person with standing to challenge any sex-based classification can haul the State into federal court and compel it to establish by evidence (presumably in the form of expert testimony) that there is an "exceedingly persuasive justification" for the classification. Should the courts happen to interpret that vacuous phrase as establishing a standard that is not utterly impossible of achievement, there is considerable risk that whether the standard has been met will not be determined on the basis of the record evidence-indeed, that will necessarily be the approach of any court that seeks to walk the path the Court has trod today. No state official in his right mind will buy such a high-cost, high-risk lawsuit by commencing a single-sex program. The enemies of singlesex education have won; by persuading only seven Justices (five would have been enough) that their view of the world is enshrined in the Constitution, they have effectively imposed that view on all 50 States. This is especially regrettable because, as the District Court here determined, educational experts in recent years have increasingly come to "suppor[t] [the] view that substantial educational benefits flow from a single-gender environment, be it male or female, that cannot be replicated in a coeducational setting." 766 F. Supp., at 1415 (emphasis added). "The evidence in th[is] case," for example, "is virtually uncontradicted" to that effect. Ibid. Until quite recently, some public officials have attempted to institute new single-sex programs, at least as experiments. In 1991, for example, the Detroit Board of Education announced a program to establish three boys-only schools for inner-city youth; it was met with a lawsuit, a preliminary injunction was swiftly entered by a District Court that purported to rely on Hogan, see Garrett v. Board of Ed. of School Dist. of Detroit, 775 F. Supp. 1004, 1006 (ED Mich. 1991), and the 598 Detroit Board of Education voted to abandon the litigation and thus abandon the plan, see Detroit Plan to Aid Blacks with All-Boy Schools Abandoned, Los Angeles Times, Nov. 8, 1991, p. A4, col. 1. Today's opinion assures that no such experiment will be tried again. B There are few extant single-sex public educational programs. The potential of today's decision for widespread disruption of existing institutions lies in its application to private single-sex education. Government support is immensely important to private educational institutions. Mary Baldwin College-which designed and runs VWILnotes that private institutions of higher education in the 1990-1991 school year derived approximately 19 percent of their budgets from federal, state, and local government funds, not including financial aid to students. See Brief for Mary Baldwin College as Amicus Curiae 22, n. 13 (citing U. S. Dept. of Education, National Center for Education Statistics, Digest of Education Statistics, p. 38 and Note (1993)). Charitable status under the tax laws is also highly significant for private educational institutions, and it is certainly not beyond the Court that rendered today's decision to hold that a donation to a single-sex college should be deemed contrary to public policy and therefore not deductible if the college discriminates on the basis of sex. See Note, The Independent Sector and the Tax Laws: Defining Charity in an Ideal Democracy, 64 S. Cal. L. Rev. 461, 476 (1991). See also Bob Jones Univ. v. United States, 461 U. S. 574 (1983). The Court adverts to private single-sex education only briefly, and only to make the assertion (mentioned above) that "[w]e address specifically and only an educational opportunity recognized by the District Court and the Court of Appeals as 'unique.'" Ante, at 534, n. 7. As I have already remarked, see supra, at 596, that assurance assures nothing, unless it is to be taken as a promise that in the future 599 the Court will disclaim the reasoning it has used today to destroy VMI. The Government, in its briefs to this Court, at least purports to address the consequences of its attack on VMI for public support of private single-sex education. It contends that private colleges that are the direct or indirect beneficiaries of government funding are not thereby necessarily converted into state actors to which the Equal Protection Clause is then applicable. See Brief for United States in No. 94-2107, at 35-37 (discussing Rendell-Baker v. Kohn, 457 U. S. 830 (1982), and Blum v. Yaretsky, 457 U. S. 991 (1982)). That is true. It is also virtually meaningless. The issue will be not whether government assistance turns private colleges into state actors, but whether the government itself would be violating the Constitution by providing state support to single-sex colleges. For example, in Norwood v. Harrison, 413 U. S. 455 (1973), we saw no room to distinguish between state operation of racially segregated schools and state support of privately run segregated schools. "Racial discrimination in state-operated schools is barred by the Constitution and '[i]t is also axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.'" Id., at 465 (quoting Lee v. Macon County Bd. of Ed., 267 F. Supp. 458, 475-476 (MD Ala. 1967)); see also Cooper v. Aaron, 358 U. S. 1 , 19 (1958) ("State support of segregated schools through any arrangement, management, funds, or property cannot be squared with the [Fourteenth] Amendment's command that no State shall deny to any person within its jurisdiction the equal protection of the laws"); Grove City College v. Bell, 465 U. S. 555 , 565 (1984) (case arising under Title IX of the Education Amendments of 1972 and stating that "[t]he economic effect of direct and indirect assistance often is indistinguishable"). When the Government was pressed at oral argument concerning the implications of these cases for private single-sex education if government-provided single-sex education is unconstitu- 600 tional, it stated that the implications will not be so disastrous, since States can provide funding to racially segregated private schools, "depend[ing] on the circumstances," Tr. of Oral Arg. 56. I cannot imagine what those "circumstances" might be, and it would be as foolish for privateschool administrators to think that that assurance from the Justice Department will outlive the day it was made, as it was for VMI to think that the Justice Department's "unequivoca[l]" support for an intermediate-scrutiny standard in this litigation would survive the Government's loss in the courts below. The only hope for state-assisted single-sex private schools is that the Court will not apply in the future the principles of law it has applied today. That is a substantial hope, I am happy and ashamed to say. After all, did not the Court today abandon the principles of law it has applied in our earlier sex-classification cases? And does not the Court positively invite private colleges to rely upon our ad-hocery by assuring them this litigation is "unique"? I would not advise the foundation of any new single-sex college (especially an all-male one) with the expectation of being allowed to receive any government support; but it is too soon to abandon in despair those single-sex colleges already in existence. I t will certainly be possible for this Court to write a future opinion that ignores the broad principles of law set forth today, and that characterizes as utterly dispositive the opinion's perceptions that VMI was a uniquely prestigious allmale institution, conceived in chauvinism, etc., etc. I will not join that opinion. *** Justice Brandeis said it is "one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." New State Ice Co. v. Liebmann, 285 U. S. 262 , 311 601 (1932) (dissenting opinion). But it is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its Members' personal view of what would make a " 'more perfect Union,'" ante, at 558 (a criterion only slightly more restrictive than a "more perfect world"), can impose its own favored social and economic dispositions nationwide. As today's disposition, and others this single Term, show, this places it beyond the power of a "single courageous State," not only to introduce novel dispositions that the Court frowns upon, but to reintroduce, or indeed even adhere to, disfavored dispositions that are centuries old. See, e. g., BMW of North America, Inc. v. Gore, 517 U. S. 559 (1996); Romer v. Evans, 517 U. S. 620 (1996). The sphere of self-government reserved to the people of the Republic is progressively narrowed. In the course of this dissent, I have referred approvingly to the opinion of my former colleague, Justice Powell, in Mississippi Univ. for Women v. Hogan, 458 U. S. 718 (1982). Many of the points made in his dissent apply with equal force here-in particular, the criticism of judicial opinions that purport to be "narro[w]" but whose "logic" is "sweepin[g]." Id., at 745-746, n. 18. But there is one statement with which I cannot agree. Justice Powell observed that the Court's decision in Hogan, which struck down a single-sex program offered by the Mississippi University for Women, had thereby "[l]eft without honor ... an element of diversity that has characterized much of American education and enriched much of American life." Id., at 735. Today's decision does not leave VMI without honor; no court opinion can do that. In an odd sort of way, it is precisely VMI's attachment to such old-fashioned concepts as manly "honor" that has made it, and the system it represents, the target of those who today succeed in abolishing public single-sex education. The record contains a booklet that all first-year VMI stu- 602 dents (the so-called "rats") were required to keep in their possession at all times. N ear the end there appears the following period piece, entitled "The Code of a Gentleman": "Without a strict observance of the fundamental Code of Honor, no man, no matter how 'polished,' can be considered a gentleman. The honor of a gentleman demands the inviolability of his word, and the incorruptibility of his principles. He is the descendant of the knight, the crusader; he is the defender of the defenseless and the champion of justice ... or he is not a Gentleman. "A Gentleman ... "Does not discuss his family affairs in public or with acquaintances. "Does not speak more than casually about his girl friend. "Does not go to a lady's house if he is affected by alcohol. He is temperate in the use of alcohol. "Does not lose his temper; nor exhibit anger, fear, hate, embarrassment, ardor or hilarity in public. "Does not hail a lady from a club window. "A gentleman never discusses the merits or demerits of a lady. "Does not mention names exactly as he avoids the mention of what things cost. "Does not borrow money from a friend, except in dire need. Money borrowed is a debt of honor, and must be repaid as promptly as possible. Debts incurred by a deceased parent, brother, sister or grown child are assumed by honorable men as a debt of honor. "Does not display his wealth, money or possessions. "Does not put his manners on and off, whether in the club or in a ballroom. He treats people with courtesy, no matter what their social position may be. 603 "Does not slap strangers on the back nor so much as lay a finger on a lady. "Does not 'lick the boots of those above' nor 'kick the face of those below him on the social ladder.' "Does not take advantage of another's helplessness or ignorance and assumes that no gentleman will take advantage of him. "A Gentleman respects the reserves of others, but demands that others respect those which are his. "A Gentleman can become what he wills to be .... " I do not know whether the men of VMI lived by this code; perhaps not. But it is powerfully impressive that a public institution of higher education still in existence sought to have them do so. I do not think any of us, women included, will be better off for its destruction.

The United States sued Virginia and the Virginia Military Institute (VMI), arguing that VMI's male-only admission policy violated the Fourteenth Amendment's Equal Protection Clause. The Fourth Circuit Court of Appeals ruled in favor of the United States and ordered Virginia to remedy the constitutional violation. Virginia proposed a separate program for women, which the courts found satisfied equal protection requirements. The Supreme Court upheld that single-gender educational options are legitimate, but maintained that equal protection scrutiny is necessary. The Court concluded that Virginia's proposal provided "substantively comparable" benefits to both men and women, satisfying equal protection requirements.

Equal Protection

Parents Involved in Community Schools v. Seattle School District No. 1

https://supreme.justia.com/cases/federal/us/551/701/

OPINION OF THE COURT PARENTS INVOLVED IN COMMUNITY SCHOOLS V.SEATTLE SCHOOL DIST. NO. 1 551 U. S. ____ (2007) SUPREME COURT OF THE UNITED STATES NOS. 05-908 AND 05-915 PARENTS INVOLVED IN COMMUNITY SCHOOLS, PETITIONER 05–908 v. SEATTLE SCHOOL DISTRICT NO. 1 et al. on writ of certiorari to the united states court of appeals for the ninth circuit CRYSTAL D. MEREDITH, custodial parent and next friend of JOSHUA RYAN McDONALD, PETITIONER 05–915 v. JEFFERSON COUNTY BOARD OF EDUCATION et al. on writ of certiorari to the united states court of appeals for the sixth circuit [June 28, 2007] Chief Justice Roberts announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II, III–A, and III–C, and an opinion with respect to Parts III–B and IV, in which Justices Scalia, Thomas, and Alito join.    The school districts in these cases voluntarily adopted student assignment plans that rely upon race to determine which public schools certain children may attend. The Seattle school district classifies children as white or nonwhite; the Jefferson County school district as black or “other.” In Seattle, this racial classification is used to allocate slots in oversubscribed high schools. In Jefferson County, it is used to make certain elementary school assignments and to rule on transfer requests. In each case, the school district relies upon an individual student’s race in assigning that student to a particular school, so that the racial balance at the school falls within a predetermined range based on the racial composition of the school district as a whole. Parents of students denied assignment to particular schools under these plans solely because of their race brought suit, contending that allocating children to different public schools on the basis of race violated the Fourteenth Amendment guarantee of equal protection. The Courts of Appeals below upheld the plans. We granted certiorari, and now reverse. I    Both cases present the same underlying legal question—whether a public school that had not operated legally segregated schools or has been found to be unitary may choose to classify students by race and rely upon that classification in making school assignments. Although we examine the plans under the same legal framework, the specifics of the two plans, and the circumstances surrounding their adoption, are in some respects quite different. A    Seattle School District No. 1 operates 10 regular public high schools. In 1998, it adopted the plan at issue in this case for assigning students to these schools. App. in No. 05–908, pp. 90a–92a.[ Footnote 1 ] The plan allows incoming ninth graders to choose from among any of the district’s high schools, ranking however many schools they wish in order of preference.    Some schools are more popular than others. If too many students list the same school as their first choice, the district employs a series of “tiebreakers” to determine who will fill the open slots at the oversubscribed school. The first tiebreaker selects for admission students who have a sibling currently enrolled in the chosen school. The next tiebreaker depends upon the racial composition of the particular school and the race of the individual student. In the district’s public schools approximately 41 percent of enrolled students are white; the remaining 59 percent, comprising all other racial groups, are classified by Seattle for assignment purposes as nonwhite. Id., at 38a, 103a.[ Footnote 2 ] If an oversubscribed school is not within 10 percentage points of the district’s overall white/nonwhite racial balance, it is what the district calls “integration positive,” and the district employs a tiebreaker that selects for assignment students whose race “will serve to bring the school into balance.” Id., at 38a. See Parents Involved VII, 426 F. 3d 1162, 1169–1170 (CA9 2005) (en banc).[ Footnote 3 ] If it is still necessary to select students for the school after using the racial tiebreaker, the next tiebreaker is the geographic proximity of the school to the student’s residence. App. in No. 05–908, at 38a.    Seattle has never operated segregated schools—legally separate schools for students of different races—nor has it ever been subject to court-ordered desegregation. It nonetheless employs the racial tiebreaker in an attempt to address the effects of racially identifiable housing patterns on school assignments. Most white students live in the northern part of Seattle, most students of other racial backgrounds in the southern part. Parents Involved VII , supra , at 1166. Four of Seattle’s high schools are located in the north—Ballard, Nathan Hale, Ingraham, and Roosevelt—and five in the south—Rainier Beach, Cleveland, West Seattle, Chief Sealth, and Franklin. One school—Garfield—is more or less in the center of Seattle. App. in No. 05–908, at 38a–39a, 45a.    For the 2000–2001 school year, five of these schools were oversubscribed—Ballard, Nathan Hale, Roosevelt, Garfield, and Franklin—so much so that 82 percent of incoming ninth graders ranked one of these schools as their first choice. Id., at 38a. Three of the oversubscribed schools were “integration positive” because the school’s white enrollment the previous school year was greater than 51 percent—Ballard, Nathan Hale, and Roosevelt. Thus, more nonwhite students (107, 27, and 82, respectively) who selected one of these three schools as a top choice received placement at the school than would have been the case had race not been considered, and proximity been the next tiebreaker. Id., at 39a–40a. Franklin was “integration positive” because its nonwhite enrollment the previous school year was greater than 69 percent; 89 more white students were assigned to Franklin by operation of the racial tiebreaker in the 2000–2001 school year than otherwise would have been. Ibid. Garfield was the only oversubscribed school whose composition during the 1999–2000 school year was within the racial guidelines, although in previous years Garfield’s enrollment had been predominantly nonwhite, and the racial tiebreaker had been used to give preference to white students. Id., at 39a.    Petitioner Parents Involved in Community Schools (Parents Involved) is a nonprofit corporation comprising the parents of children who have been or may be denied assignment to their chosen high school in the district because of their race. The concerns of Parents Involved are illustrated by Jill Kurfirst, who sought to enroll her ninth-grade son, Andy Meeks, in Ballard High School’s special Biotechnology Career Academy. Andy suffered from attention deficit hyperactivity disorder and dyslexia, but had made good progress with hands-on instruction, and his mother and middle school teachers thought that the smaller biotechnology program held the most promise for his continued success. Andy was accepted into this selective program but, because of the racial tiebreaker, was denied assignment to Ballard High School. Id., at 143a–146a, 152a–160a. Parents Involved commenced this suit in the Western District of Washington, alleging that Seattle’s use of race in assignments violated the Equal Protection Clause of the Fourteenth Amendment,[ Footnote 4 ] Title VI of the Civil Rights Act of 1964,[ Footnote 5 ] and the Washington Civil Rights Act.[ Footnote 6 ] Id., at 28a–35a.    The District Court granted summary judgment to the school district, finding that state law did not bar the district’s use of the racial tiebreaker and that the plan survived strict scrutiny on the federal constitutional claim because it was narrowly tailored to serve a compelling government interest. 137 F. Supp. 2d 1224, 1240 (WD Wash. 2001) ( Parents Involved I ). The Ninth Circuit initially reversed based on its interpretation of the Washington Civil Rights Act, 285 F. 3d 1236, 1253 (2002) ( Parents Involved II ), and enjoined the district’s use of the integration tiebreaker, id., at 1257. Upon realizing that the litigation would not be resolved in time for assignment decisions for the 2002–2003 school year, the Ninth Circuit withdrew its opinion, 294 F. 3d 1084 (2002) ( Parents Involved III ), vacated the injunction, and, pursuant to Wash. Rev. Code §2.60.020 (2006), certified the state-law question to the Washington Supreme Court, 294 F. 3d 1085, 1087 (2002) ( Parents Involved IV ).    The Washington Supreme Court determined that the State Civil Rights Act bars only preferential treatment programs “where race or gender is used by government to select a less qualified applicant over a more qualified applicant,” and not “[p]rograms which are racially neutral, such as the [district’s] open choice plan.” Parents Involved in Community Schools v. Seattle School Dist., No. 1, 149 Wash. 2d 660, 689–690, 663, 72 P. 3d 151, 166, 153 (2003) (en banc) ( Parents Involved V ). The state court returned the case to the Ninth Circuit for further proceedings. Id., at 690, 72 P. 3d, at 167.    A panel of the Ninth Circuit then again reversed the District Court, this time ruling on the federal constitutional question. Parents Involved VI, 377 F. 3d 949 (2004). The panel determined that while achieving racial diversity and avoiding racial isolation are compelling government interests, id., at 964, Seattle’s use of the racial tiebreaker was not narrowly tailored to achieve these interests, id., at 980. The Ninth Circuit granted rehearing en banc, 395 F. 3d 1168 (2005), and overruled the panel decision, affirming the District Court’s determination that Seattle’s plan was narrowly tailored to serve a compelling government interest, Parents Involved VII , 426 F. 3d, at 1192–1193. We granted certiorari. 547 U. S. __ (2006). B    Jefferson County Public Schools operates the public school system in metropolitan Louisville, Kentucky. In 1973 a federal court found that Jefferson County had maintained a segregated school system, Newburg Area Council, Inc. v. Board of Ed. of Jefferson Cty. , 489 F. 2d 925, 932 (CA6), vacated and remanded, 418 U. S. 918 , reinstated with modifications, 510 F. 2d 1358, 1359 (CA6 1974), and in 1975 the District Court entered a desegregation decree. See Hampton v. Jefferson Cty. Bd. of Ed. , 72 F. Supp. 2d 753, 762–764 (WD Ky. 1999). Jefferson County operated under this decree until 2000, when the District Court dissolved the decree after finding that the district had achieved unitary status by eliminating “[t]o the greatest extent practicable” the vestiges of its prior policy of segregation. Hampton v. Jefferson Cty. Bd. of Ed. , 102 F. Supp. 2d 358, 360 (2000). See Board of Ed. of Oklahoma City Public Schools v. Dowell , 498 U. S. 237 , 249–250 (1991); Green v. School Bd. of New Kent Cty. , 391 U. S. 430 , 435–436 (1968).    In 2001, after the decree had been dissolved, Jefferson County adopted the voluntary student assignment plan at issue in this case. App. in No. 05–915, p. 77. Approximately 34 percent of the district’s 97,000 students are black; most of the remaining 66 percent are white. McFarland v. Jefferson Cty. Public Schools , 330 F. Supp. 2d 834, 839–840, and n. 6 (WD Ky. 2004) ( McFarland I ). The plan requires all nonmagnet schools to maintain a minimum black enrollment of 15 percent, and a maximum black enrollment of 50 percent. App. in No. 05–915, at 81; McFarland I , supra , at 842.    At the elementary school level, based on his or her address, each student is designated a “resides” school to which students within a specific geographic area are assigned; elementary resides schools are “grouped into clusters in order to facilitate integration.” App. in No. 05–915, at 82. The district assigns students to nonmagnet schools in one of two ways: Parents of kindergartners, first-graders, and students new to the district may submit an application indicating a first and second choice among the schools within their cluster; students who do not submit such an application are assigned within the cluster by the district. “Decisions to assign students to schools within each cluster are based on available space within the schools and the racial guidelines in the District’s current student assignment plan.” Id., at 38. If a school has reached the “extremes of the racial guidelines,” a student whose race would contribute to the school’s racial imbalance will not be assigned there. Id., at 38–39, 82. After assignment, students at all grade levels are permitted to apply to transfer between nonmagnet schools in the district. Transfers may be requested for any number of reasons, and may be denied because of lack of available space or on the basis of the racial guidelines. Id., at 43.[ Footnote 7 ]    When petitioner Crystal Meredith moved into the school district in August 2002, she sought to enroll her son, Joshua McDonald, in kindergarten for the 2002–2003 school year. His resides school was only a mile from his new home, but it had no available space—assignments had been made in May, and the class was full. Jefferson County assigned Joshua to another elementary school in his cluster, Young Elementary. This school was 10 miles from home, and Meredith sought to transfer Joshua to a school in a different cluster, Bloom Elementary, which—like his resides school—was only a mile from home. See Tr. in McFarland I, pp. 1–49 through 1–54 (Dec. 8, 2003). Space was available at Bloom, and intercluster transfers are allowed, but Joshua’s transfer was nonetheless denied because, in the words of Jefferson County, “[t]he transfer would have an adverse effect on desegregation compliance” of Young. App. in No. 05–915, at 97.[ Footnote 8 ]    Meredith brought suit in the Western District of Kentucky, alleging violations of the Equal Protection Clause of the Fourteenth Amendment. The District Court found that Jefferson County had asserted a compelling interest in maintaining racially diverse schools, and that the assignment plan was (in all relevant respects) narrowly tailored to serve that compelling interest. McFarland I , supra , at 837.[ Footnote 9 ] The Sixth Circuit affirmed in a per curiam opinion relying upon the reasoning of the District Court, concluding that a written opinion “would serve no useful purpose.” McFarland v. Jefferson Cty. Public Schools , 416 F. 3d 513, 514 (2005) ( McFarland II ). We granted certiorari. 547 U. S. __ (2006). II    As a threshold matter, we must assure ourselves of our jurisdiction. Seattle argues that Parents Involved lacks standing because none of its current members can claim an imminent injury. Even if the district maintains the current plan and reinstitutes the racial tiebreaker, Seattle argues, Parents Involved members will only be affected if their children seek to enroll in a Seattle public high school and choose an oversubscribed school that is integration positive—too speculative a harm to maintain standing. Brief for Respondents in No. 05–908, pp. 16–17.    This argument is unavailing. The group’s members have children in the district’s elementary, middle, and high schools, App. in No. 05–908, at 299a–301a; Affidavit of Kathleen Brose Pursuant to this Court’s Rule 32.3 (Lodging of Petitioner Parents Involved), and the complaint sought declaratory and injunctive relief on behalf of Parents Involved members whose elementary and middle school children may be “denied admission to the high schools of their choice when they apply for those schools in the future,” App. in No. 05–908, at 30a. The fact that it is possible that children of group members will not be denied admission to a school based on their race—because they choose an undersubscribed school or an oversubscribed school in which their race is an advantage—does not eliminate the injury claimed. Moreover, Parents Involved also asserted an interest in not being “forced to compete for seats at certain high schools in a system that uses race as a deciding factor in many of its admissions decisions.” Ibid. As we have held, one form of injury under the Equal Protection Clause is being forced to compete in a race-based system that may prejudice the plaintiff, Adarand Constructors, Inc. v. Peńa , 515 U. S. 200 , 211 (1995); Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville , 508 U. S. 656 , 666 (1993), an injury that the members of Parents Involved can validly claim on behalf of their children.    In challenging standing, Seattle also notes that it has ceased using the racial tiebreaker pending the outcome of this litigation. Brief for Respondents in No. 05–908, at 16–17. But the district vigorously defends the constitutionality of its race-based program, and nowhere suggests that if this litigation is resolved in its favor it will not resume using race to assign students. Voluntary cessation does not moot a case or controversy unless “subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. , 528 U. S. 167 , 189 (2000) (quoting United States v. Concentrated Phosphate Export Assn., Inc. , 393 U. S. 199 , 203 (1968) (internal quotation marks omitted)), a heavy burden that Seattle has clearly not met.    Jefferson County does not challenge our jurisdiction, Tr. of Oral Arg. in No. 05–915, p. 48, but we are nonetheless obliged to ensure that it exists, Arbaugh v. Y & H Corp. , 546 U. S. 500 , 514 (2006). Although apparently Joshua has now been granted a transfer to Bloom, the school to which transfer was denied under the racial guidelines, Tr. of Oral Arg. in No. 05–915, at 45, the racial guidelines apply at all grade levels. Upon Joshua’s enrollment in middle school, he may again be subject to assignment based on his race. In addition, Meredith sought damages in her complaint, which is sufficient to preserve our ability to consider the question. Los Angeles v. Lyons , 461 U. S. 95 , 109 (1983). III A    It is well established that when the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny. Johnson v. California , 543 U. S. 499 , 505–506 (2005); Grutter v. Bollinger , 539 U. S. 306 , 326 (2003); Adarand, supra , at 224. As the Court recently reaffirmed, “ ‘racial classifications are simply too pernicious to permit any but the most exact connection between justification and classification.’ ” Gratz v. Bollinger , 539 U. S. 244 , 270 (2003) (quoting Fullilove v. Klutznick , 448 U. S. 448 , 537 (1980) (Stevens, J., dissenting); brackets omitted). In order to satisfy this searching standard of review, the school districts must demonstrate that the use of individual racial classifications in the assignment plans here under review is “narrowly tailored” to achieve a “compelling” government interest. Adarand , supra , at 227.    Without attempting in these cases to set forth all the interests a school district might assert, it suffices to note that our prior cases, in evaluating the use of racial classifications in the school context, have recognized two interests that qualify as compelling. The first is the compelling interest of remedying the effects of past intentional discrimination. See Freeman v. Pitts , 503 U. S. 467 , 494 (1992). Yet the Seattle public schools have not shown that they were ever segregated by law, and were not subject to court-ordered desegregation decrees. The Jefferson County public schools were previously segregated by law and were subject to a desegregation decree entered in 1975. In 2000, the District Court that entered that decree dissolved it, finding that Jefferson County had “eliminated the vestiges associated with the former policy of segregation and its pernicious effects,” and thus had achieved “unitary” status. Hampton , 102 F. Supp. 2d, at 360. Jefferson County accordingly does not rely upon an interest in remedying the effects of past intentional discrimination in defending its present use of race in assigning students. See Tr. of Oral Arg. in No. 05–915, at 38.    Nor could it. We have emphasized that the harm being remedied by mandatory desegregation plans is the harm that is traceable to segregation, and that “the Constitution is not violated by racial imbalance in the schools, without more.” Milliken v. Bradley , 433 U. S. 267 , 280, n. 14 (1977). See also Freeman , supra , at 495–496; Dowell , 498 U. S., at 248; Milliken v. Bradley , 418 U. S. 717 , 746 (1974). Once Jefferson County achieved unitary status, it had remedied the constitutional wrong that allowed race-based assignments. Any continued use of race must be justified on some other basis.[ Footnote 10 ]    The second government interest we have recognized as compelling for purposes of strict scrutiny is the interest in diversity in higher education upheld in Grutter , 539 U. S., at 328. The specific interest found compelling in Grutter was student body diversity “in the context of higher education.” Ibid. The diversity interest was not focused on race alone but encompassed “all factors that may contribute to student body diversity.” Id., at 337. We described the various types of diversity that the law school sought: “[The law school’s] policy makes clear there are many possible bases for diversity admissions, and provides examples of admittees who have lived or traveled widely abroad, are fluent in several languages, have overcome personal adversity and family hardship, have exceptional records of extensive community service, and have had successful careers in other fields.” Id., at 338 (brackets and internal quotation marks omitted). The Court quoted the articulation of diversity from Justice Powell’s opinion in Regents of the University of California v. Bakke , 438 U. S. 265 (1978), noting that “it is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, that can justify the use of race.” Grutter , supra, at 324–325 (citing and quoting Bakke , supra , at 314–315 (opinion of Powell, J.); brackets and internal quotation marks omitted). Instead, what was upheld in Grutter was consideration of “a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” 539 U. S., at 325 (quoting Bakke , supra , at 315 (opinion of Powell, J.); internal quotation marks omitted).    The entire gist of the analysis in Grutter was that the admissions program at issue there focused on each applicant as an individual, and not simply as a member of a particular racial group. The classification of applicants by race upheld in Grutter was only as part of a “highly individualized, holistic review,” 539 U. S., at 337. As the Court explained, “[t]he importance of this individualized consideration in the context of a race-conscious admissions program is paramount.” Ibid. The point of the narrow tailoring analysis in which the Grutter Court engaged was to ensure that the use of racial classifications was indeed part of a broader assessment of diversity, and not simply an effort to achieve racial balance, which the Court explained would be “patently unconstitutional.” Id. , at 330.    In the present cases, by contrast, race is not considered as part of a broader effort to achieve “exposure to widely diverse people, cultures, ideas, and viewpoints,” ibid. ; race, for some students, is determinative standing alone. The districts argue that other factors, such as student preferences, affect assignment decisions under their plans, but under each plan when race comes into play, it is decisive by itself. It is not simply one factor weighed with others in reaching a decision, as in Grutter ; it is the factor. Like the University of Michigan undergraduate plan struck down in Gratz , 539 U. S., at 275, the plans here “do not provide for a meaningful individualized review of applicants” but instead rely on racial classifications in a “nonindividualized, mechanical” way. Id., at 276, 280 (O’Connor, J., concurring).    Even when it comes to race, the plans here employ only a limited notion of diversity, viewing race exclusively in white/nonwhite terms in Seattle and black/“other” terms in Jefferson County.[ Footnote 11 ] But see Metro Broadcasting, Inc. v. FCC , 497 U. S. 547 , 610 (1990) (“We are a Nation not of black and white alone, but one teeming with divergent communities knitted together with various traditions and carried forth, above all, by individuals”) (O’Connor, J., dissenting). The Seattle “Board Statement Reaffirming Diversity Rationale” speaks of the “inherent educational value” in “[p]roviding students the opportunity to attend schools with diverse student enrollment,” App. in No. 05–908, at 128a, 129a. But under the Seattle plan, a school with 50 percent Asian-American students and 50 percent white students but no African-American, Native-American, or Latino students would qualify as balanced, while a school with 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white students would not. It is hard to understand how a plan that could allow these results can be viewed as being concerned with achieving enrollment that is “ ‘broadly diverse,’ ” Grutter, supra , at 329.    Prior to Grutter , the courts of appeals rejected as unconstitutional attempts to implement race-based assignment plans—such as the plans at issue here—in primary and secondary schools. See, e.g., Eisenberg v. Montgomery Cty. Public Schools , 197 F. 3d 123, 133 (CA4 1999); Tuttle v. Arlington Cty. School Bd. , 195 F. 3d 698, 701 (CA4 1999); Wessman v. Gittens , 160 F. 3d 790, 809 (CA1 1998). See also Ho v. San Francisco Unified School Dist. , 147 F. 3d 854, 865 (CA9 1998). After Grutter , however, the two Courts of Appeals in these cases, and one other, found that race-based assignments were permissible at the elementary and secondary level, largely in reliance on that case. See Parents Involved VII , 426 F. 3d, at 1166; McFarland II , 416 F. 3d, at 514; Comfort v. Lynn School Comm. , 418 F. 3d 1, 13 (CA1 2005).    In upholding the admissions plan in Grutter , though, this Court relied upon considerations unique to institutions of higher education, noting that in light of “the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.” 539 U. S., at 329. See also Bakke , supra , at 312, 313 (opinion of Powell, J.). The Court explained that “[c]ontext matters” in applying strict scrutiny, and repeatedly noted that it was addressing the use of race “in the context of higher education.” Grutter , supra , at 327, 328, 334. The Court in Grutter expressly articulated key limitations on its holding—defining a specific type of broad-based diversity and noting the unique context of higher education—but these limitations were largely disregarded by the lower courts in extending Grutter to uphold race-based assignments in elementary and secondary schools. The present cases are not governed by Grutter . B    Perhaps recognizing that reliance on Grutter cannot sustain their plans, both school districts assert additional interests, distinct from the interest upheld in Grutter , to justify their race-based assignments. In briefing and argument before this Court, Seattle contends that its use of race helps to reduce racial concentration in schools and to ensure that racially concentrated housing patterns do not prevent nonwhite students from having access to the most desirable schools. Brief for Respondents in No. 05–908, at 19. Jefferson County has articulated a similar goal, phrasing its interest in terms of educating its students “in a racially integrated environment.” App. in No. 05–915, at 22.[ Footnote 12 ] Each school district argues that educational and broader socialization benefits flow from a racially diverse learning environment, and each contends that because the diversity they seek is racial diversity—not the broader diversity at issue in Grutter —it makes sense to promote that interest directly by relying on race alone.    The parties and their amici dispute whether racial diversity in schools in fact has a marked impact on test scores and other objective yardsticks or achieves intangible socialization benefits. The debate is not one we need to resolve, however, because it is clear that the racial classifications employed by the districts are not narrowly tailored to the goal of achieving the educational and social benefits asserted to flow from racial diversity. In design and operation, the plans are directed only to racial balance, pure and simple, an objective this Court has repeatedly condemned as illegitimate.    The plans are tied to each district’s specific racial demographics, rather than to any pedagogic concept of the level of diversity needed to obtain the asserted educational benefits. In Seattle, the district seeks white enrollment of between 31 and 51 percent (within 10 percent of “the district white average” of 41 percent), and nonwhite enrollment of between 49 and 69 percent (within 10 percent of “the district minority average” of 59 percent). App. in No. 05–908, at 103a. In Jefferson County, by contrast, the district seeks black enrollment of no less than 15 or more than 50 percent, a range designed to be “equally above and below Black student enrollment systemwide,” McFarland I , 330 F. Supp. 2d, at 842, based on the objective of achieving at “all schools … an African-American enrollment equivalent to the average district-wide African-American enrollment” of 34 percent. App. in No. 05–915, at 81. In Seattle, then, the benefits of racial diversity require enrollment of at least 31 percent white students; in Jefferson County, at least 50 percent. There must be at least 15 percent nonwhite students under Jefferson County’s plan; in Seattle, more than three times that figure. This comparison makes clear that the racial demographics in each district—whatever they happen to be—drive the required “diversity” numbers. The plans here are not tailored to achieving a degree of diversity necessary to realize the asserted educational benefits; instead the plans are tailored, in the words of Seattle’s Manager of Enrollment Planning, Technical Support, and Demographics, to “the goal established by the school board of attain-ing a level of diversity within the schools that approximates the district’s overall demographics.” App. in No. 05–908, at 42a.    The districts offer no evidence that the level of racial diversity necessary to achieve the asserted educational benefits happens to coincide with the racial demographics of the respective school districts—or rather the white/nonwhite or black/“other” balance of the districts, since that is the only diversity addressed by the plans. Indeed, in its brief Seattle simply assumes that the educational benefits track the racial breakdown of the district. See Brief for Respondents in No. 05–908, at 36 (“For Seattle, ‘racial balance’ is clearly not an end in itself but rather a measure of the extent to which the educational goals the plan was designed to foster are likely to be achieved”). When asked for “a range of percentage that would be diverse,” however, Seattle’s expert said it was important to have “sufficient numbers so as to avoid students feeling any kind of specter of exceptionality.” App. in No. 05–908, at 276a. The district did not attempt to defend the proposition that anything outside its range posed the “specter of exceptionality.” Nor did it demonstrate in any way how the educational and social benefits of racial diversity or avoidance of racial isolation are more likely to be achieved at a school that is 50 percent white and 50 percent Asian-American, which would qualify as diverse under Seattle’s plan, than at a school that is 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white, which under Seattle’s definition would be racially concentrated.    Similarly, Jefferson County’s expert referred to the importance of having “at least 20 percent” minority group representation for the group “to be visible enough to make a difference,” and noted that “small isolated minority groups in a school are not likely to have a strong effect on the overall school.” App. in No. 05–915, at 159, 147. The Jefferson County plan, however, is based on a goal of replicating at each school “an African-American enrollment equivalent to the average district-wide African-American enrollment.” Id., at 81. Joshua McDonald’s requested transfer was denied because his race was listed as “other” rather than black, and allowing the transfer would have had an adverse effect on the racial guideline compliance of Young Elementary, the school he sought to leave. Id., at 21. At the time, however, Young Elementary was 46.8 percent black. Id. , at 73. The transfer might have had an adverse effect on the effort to approach district-wide racial proportionality at Young, but it had nothing to do with preventing either the black or “other” group from becoming “small” or “isolated” at Young.    In fact, in each case the extreme measure of relying on race in assignments is unnecessary to achieve the stated goals, even as defined by the districts. For example, at Franklin High School in Seattle, the racial tiebreaker was applied because nonwhite enrollment exceeded 69 percent, and resulted in an incoming ninth-grade class in 2000–2001 that was 30.3 percent Asian-American, 21.9 percent African-American, 6.8 percent Latino, 0.5 percent Native-American, and 40.5 percent Caucasian. Without the racial tiebreaker, the class would have been 39.6 percent Asian-American, 30.2 percent African-American, 8.3 percent Latino, 1.1 percent Native-American, and 20.8 percent Caucasian. See App. in No. 05–908, at 308a. When the actual racial breakdown is considered, enrolling students without regard to their race yields a substantially diverse student body under any definition of diversity.[ Footnote 13 ]    In Grutter , the number of minority students the school sought to admit was an undefined “meaningful number” necessary to achieve a genuinely diverse student body. 539 U. S., at 316, 335–336. Although the matter was the subject of disagreement on the Court, see id., at 346–347 (Scalia, J., concurring in part and dissenting in part); id., at 382–383 (Rehnquist, C. J., dissenting); id., at 388–392 (Kennedy, J., dissenting), the majority concluded that the law school did not count back from its applicant pool to arrive at the “meaningful number” it regarded as necessary to diversify its student body. Id., at 335–336. Here the racial balance the districts seek is a defined range set solely by reference to the demographics of the respective school districts.    This working backward to achieve a particular type of racial balance, rather than working forward from some demonstration of the level of diversity that provides the purported benefits, is a fatal flaw under our existing precedent. We have many times over reaffirmed that “[r]acial balance is not to be achieved for its own sake.” Freeman , 503 U. S., at 494. See also Richmond v. J. A. Croson Co. , 488 U. S. 469 , 507 (1989); Bakke , 438 U. S., at 307 (opinion of Powell, J.) (“If petitioner’s purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected … as facially invalid”). Grutter itself reiterated that “outright racial balancing” is “patently unconstitutional.” 539 U. S., at 330.    Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that “[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Miller v. Johnson , 515 U. S. 900 , 911 (1995) (quoting Metro Broadcasting , 497 U. S., at 602 (O’Connor, J., dissenting); internal quotation marks omitted).[ Footnote 14 ] Allowing racial balancing as a compelling end in itself would “effectively assur[e] that race will always be relevant in American life, and that the ‘ultimate goal’ of ‘eliminating entirely from governmental decisionmaking such irrelevant factors as a human being’s race’ will never be achieved.” Croson, supra , at 495 (plurality opinion of O’Connor, J.) (quoting Wygant v. Jackson Bd. of Ed. , 476 U. S. 267 , 320 (1986) (Stevens, J., dissenting), in turn quoting Fullilove, 448 U. S., at 547 (Stevens, J., dissenting); brackets and citation omitted). An interest “linked to nothing other than proportional representation of various races … would support indefinite use of racial classifications, employed first to obtain the appropriate mixture of racial views and then to ensure that the [program] continues to reflect that mixture.” Metro Broadcasting , supra , at 614 (O’Connor, J., dissenting).    The validity of our concern that racial balancing has “no logical stopping point,” Croson , supra , at 498 (quoting Wygant , supra , at 275 (plurality opinion); internal quotation marks omitted); see also Grutter, supra , at 343, is demonstrated here by the degree to which the districts tie their racial guidelines to their demographics. As the districts’ demographics shift, so too will their definition of racial diversity. See App. in No. 05–908, at 103a (describing application of racial tiebreaker based on “ current white percentage” of 41 percent and “ current minority percentage” of 59 percent (emphasis added)).    The Ninth Circuit below stated that it “share[d] in the hope” expressed in Grutter that in 25 years racial preferences would no longer be necessary to further the interest identified in that case. Parents Involved VII , 426 F. 3d, at 1192. But in Seattle the plans are defended as necessary to address the consequences of racially identifiable housing patterns. The sweep of the mandate claimed by the district is contrary to our rulings that remedying past societal discrimination does not justify race-conscious government action. See, e.g., Shaw v. Hunt , 517 U. S. 899 , 909–910 (1996) (“[A]n effort to alleviate the effects of societal discrimination is not a compelling interest”); Croson , supra , at 498–499; Wygant , 476 U. S., at 276 (plurality opinion) (“Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy”); id., at 288 (O’Connor, J., concurring in part and concurring in judgment) (“[A] governmental agency’s interest in remedying ‘societal’ discrimination, that is, discrimination not traceable to its own actions, cannot be deemed sufficiently compelling to pass constitutional muster”).    The principle that racial balancing is not permitted is one of substance, not semantics. Racial balancing is not transformed from “patently unconstitutional” to a compelling state interest simply by relabeling it “racial diversity.” While the school districts use various verbal formulations to describe the interest they seek to promote—racial diversity, avoidance of racial isolation, racial integration—they offer no definition of the interest that suggests it differs from racial balance. See, e.g., App. in No. 05–908, at 257a (“Q. What’s your understanding of when a school suffers from racial isolation? A. I don’t have a definition for that”); id., at 228a–229a (“I don’t think we’ve ever sat down and said, ‘Define racially concentrated school exactly on point in quantitative terms.’ I don’t think we’ve ever had that conversation”); Tr. in McFarland I , at 1–90 (Dec. 8, 2003) (“Q. How does the Jefferson County School Board define diversity … ?” “A. Well, we want to have the schools that make up the percentage of students of the population”).    Jefferson County phrases its interest as “racial integration,” but integration certainly does not require the sort of racial proportionality reflected in its plan. Even in the context of mandatory desegregation, we have stressed that racial proportionality is not required, see Milliken, 433 U. S., at 280, n. 14 (“[A desegregation] order contemplating the substantive constitutional right [to a] particular degree of racial balance or mixing is … infirm as a matter of law” (internal quotation marks omitted)); Swann v. Charlotte-Mecklenburg Bd. of Ed. , 402 U. S. 1 , 24 (1971) (“The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole”), and here Jefferson County has already been found to have eliminated the vestiges of its prior segregated school system.    The en banc Ninth Circuit declared that “when a racially diverse school system is the goal (or racial concentration or isolation is the problem), there is no more effective means than a consideration of race to achieve the solution.” Parents Involved VII , supra , at 1191. For the foregoing reasons, this conclusory argument cannot sustain the plans. However closely related race-based assignments may be to achieving racial balance, that itself cannot be the goal, whether labeled “racial diversity” or anything else. To the extent the objective is sufficient diversity so that students see fellow students as individuals rather than solely as members of a racial group, using means that treat students solely as members of a racial group is fundamentally at cross-purposes with that end. C    The districts assert, as they must, that the way in which they have employed individual racial classifications is necessary to achieve their stated ends. The minimal effect these classifications have on student assignments, however, suggests that other means would be effective. Seattle’s racial tiebreaker results, in the end, only in shifting a small number of students between schools. Approximately 307 student assignments were affected by the racial tiebreaker in 2000–2001; the district was able to track the enrollment status of 293 of these students. App. in No. 05–908, at 162a. Of these, 209 were assigned to a school that was one of their choices, 87 of whom were assigned to the same school to which they would have been assigned without the racial tiebreaker. Eighty-four students were assigned to schools that they did not list as a choice, but 29 of those students would have been assigned to their respective school without the racial tiebreaker, and 3 were able to attend one of the oversubscribed schools due to waitlist and capacity adjustments. Id., at 162a–163a. In over one-third of the assignments affected by the racial tiebreaker, then, the use of race in the end made no difference, and the district could identify only 52 students who were ultimately affected adversely by the racial tiebreaker in that it resulted in assignment to a school they had not listed as a preference and to which they would not otherwise have been assigned.    As the panel majority in Parents Involved VI concluded: “[T]he tiebreaker’s annual effect is thus merely to shuffle a few handfuls of different minority students between a few schools—about a dozen additional Latinos into Ballard, a dozen black students into Nathan Hale, perhaps two dozen Asians into Roosevelt, and so on. The District has not met its burden of proving these marginal changes … outweigh the cost of subjecting hundreds of students to disparate treatment based solely upon the color of their skin.” 377 F. 3d, at 984–985 (footnote omitted).    Similarly, Jefferson County’s use of racial classifications has only a minimal effect on the assignment of students. Elementary school students are assigned to their first- or second-choice school 95 percent of the time, and transfers, which account for roughly 5 percent of assignments, are only denied 35 percent of the time—and presumably an even smaller percentage are denied on the basis of the racial guidelines, given that other factors may lead to a denial. McFarland I , 330 F. Supp. 2d, at 844–845, nn. 16, 18. Jefferson County estimates that the racial guidelines account for only 3 percent of assignments. Brief in Opposition in No. 05–915, p. 7, n. 4; Tr. of Oral Arg. in No. 05–915, at 46. As Jefferson County explains, “the racial guidelines have minimal impact in this process, because they ‘mostly influence student assignment in subtle and indirect ways.’ ” Brief for Respondents in No. 05–915, pp. 8–9.    While we do not suggest that greater use of race would be preferable, the minimal impact of the districts’ racial classifications on school enrollment casts doubt on the necessity of using racial classifications. In Grutter , the consideration of race was viewed as indispensable in more than tripling minority representation at the law school—from 4 to 14.5 percent. See 539 U. S., at 320. Here the most Jefferson County itself claims is that “because the guidelines provide a firm definition of the Board’s goal of racially integrated schools, they ‘provide administrators with the authority to facilitate, negotiate and collaborate with principals and staff to maintain schools within the 15–50% range.’ ” Brief in Opposition in No. 05–915, at 7 (quoting McFarland I , supra , at 842). Classifying and assigning schoolchildren according to a binary conception of race is an extreme approach in light of our precedents and our Nation’s history of using race in public schools, and requires more than such an amorphous end to justify it.    The districts have also failed to show that they considered methods other than explicit racial classifications to achieve their stated goals. Narrow tailoring requires “serious, good faith consideration of workable race-neutral alternatives,” Grutter, supra , at 339, and yet in Seattle several alternative assignment plans—many of which would not have used express racial classifications—were rejected with little or no consideration. See, e.g. , App. in No. 05–908, at 224a–225a, 253a–259a, 307a. Jefferson County has failed to present any evidence that it considered alternatives, even though the district already claims that its goals are achieved primarily through means other than the racial classifications. Brief for Respondents in No. 05–915, at 8–9. Compare Croson , 488 U. S., at 519 (Kennedy, J., concurring in part and concurring in judgment) (racial classifications permitted only “as a last resort”). IV    Justice Breyer’s dissent takes a different approach to these cases, one that fails to ground the result it would reach in law. Instead, it selectively relies on inapplicable precedent and even dicta while dismissing contrary holdings, alters and misapplies our well-established legal framework for assessing equal protection challenges to express racial classifications, and greatly exaggerates the consequences of today’s decision.    To begin with, Justice Breyer seeks to justify the plans at issue under our precedents recognizing the compelling interest in remedying past intentional discrimination. See post , at 18–24. Not even the school districts go this far, and for good reason. The distinction between segregation by state action and racial imbalance caused by other factors has been central to our jurisprudence in this area for generations. See, e.g. , Milliken , 433 U. S., at 280, n. 14; Freeman , 503 U. S., at 495–496 (“Where resegregation is a product not of state action but of private choices, it does not have constitutional implications”). The dissent elides this distinction between de jure and de facto segregation, casually intimates that Seattle’s school attendance patterns reflect illegal segregation, post , at 5, 18, 23,[ Footnote 15 ] and fails to credit the judicial determination—under the most rigorous standard—that Jefferson County had eliminated the vestiges of prior segregation. The dissent thus alters in fundamental ways not only the facts presented here but the established law.    Justice Breyer’s reliance on McDaniel v. Barresi , 402 U. S. 39 (1971), post , at 23–24, 29–30, highlights how far removed the discussion in the dissent is from the question actually presented in these cases. McDaniel concerned a Georgia school system that had been segregated by law. There was no doubt that the county had operated a “dual school system,” McDaniel , supra , at 41, and no one questions that the obligation to disestablish a school system segregated by law can include race-conscious remedies—whether or not a court had issued an order to that effect. See supra , at 12. The present cases are before us, however, because the Seattle school district was never segregated by law, and the Jefferson County district has been found to be unitary, having eliminated the vestiges of its prior dual status. The justification for race-conscious remedies in McDaniel is therefore not applicable here. The dissent’s persistent refusal to accept this distinction—its insistence on viewing the racial classifications here as if they were just like the ones in McDaniel , “devised to overcome a history of segregated public schools,” post , at 47—explains its inability to understand why the remedial justification for racial classifications cannot decide these cases.    Justice Breyer’s dissent next relies heavily on dicta from Swann v. Charlotte-Mecklenburg Bd. of Ed. , 402 U. S., at 16—far more heavily than the school districts themselves. Compare post , at 3, 22–28, with Brief for Respondents in No. 05–908, at 19–20; Brief for Respondents in No. 05–915, at 31. The dissent acknowledges that the two-sentence discussion in Swann was pure dicta, post , at 22, but nonetheless asserts that it demonstrates a “basic principle of constitutional law” that provides “authoritative legal guidance.” Post , at 22, 30. Initially, as the Court explained just last Term, “we are not bound to follow our dicta in a prior case in which the point now at issue was not fully debated.” Central Va. Community College v. Katz, 546 U. S. 356 , 363 (2006). That is particularly true given that, when Swann was decided, this Court had not yet confirmed that strict scrutiny applies to racial classifications like those before us. See n. 16, infra . There is nothing “technical” or “theoretical,” post , at 30, about our approach to such dicta. See, e.g., Cohens v. Virginia , 6 Wheat. 264, 399–400 (1821) (Marshall, C. J.) (explaining why dicta is not binding).    Justice Breyer would not only put such extraordinary weight on admitted dicta, but relies on the statement for something it does not remotely say. Swann addresses only a possible state objective; it says nothing of the permissible means —race conscious or otherwise—that a school district might employ to achieve that objective. The reason for this omission is clear enough, since the case did not involve any voluntary means adopted by a school district. The dissent’s characterization of Swann as recognizing that “the Equal Protection Clause permits local school boards to use race-conscious criteria to achieve positive race-related goals” is—at best—a dubious inference. Post , at 22. Even if the dicta from Swann were entitled to the weight the dissent would give it, and no dicta is, it not only did not address the question presented in Swann , it also does not address the question presented in these cases—whether the school districts’ use of racial classifications to achieve their stated goals is permissible.    Further, for all the lower court cases Justice Breyer cites as evidence of the “prevailing legal assumption” embodied by Swann , very few are pertinent. Most are not. For example, the dissent features Tometz v. Board of Ed., Waukegan City School Dist. No. 61 , 39 Ill. 2d 593, 596–598, 237 N. E. 2d 498, 500–502 (1968), an Illinois decision, as evidence that “state and federal courts had considered the matter settled and uncontroversial.” Post , at 25. But Tometz addressed a challenge to a statute requiring race-consciousness in drawing school attendance boundaries—an issue well beyond the scope of the question presented in these cases. Importantly, it considered that issue only under rational-basis review, 39 Ill. 2d, at 600, 237 N. E. 2d, at 502 (“The test of any legislative classification essentially is one of reasonableness”), which even the dissent grudgingly recognizes is an improper standard for evaluating express racial classifications. Other cases cited are similarly inapplicable. See, e.g. , Citizens for Better Ed. v. Goose Creek Consol. Independent School Dist. , 719 S. W. 2d 350, 352–353 (Tex. App. 1986) (upholding rezoning plan under rational-basis review).[ Footnote 16 ]    Justice Breyer’s dissent next looks for authority to a footnote in Washington v. Seattle School Dist. No. 1 , 458 U. S. 457 , 472, n. 15 (1982), post , at 56–57, but there this Court expressly noted that it was not passing on the propriety of race-conscious student assignments in the absence of a finding of de jure segregation. Similarly, the citation of Crawford v. Board of Ed. of Los Angeles , 458 U. S. 527 (1982), post , at 24, in which a state referendum prohibiting a race-based assignment plan was challenged, is inapposite—in Crawford the Court again expressly reserved the question presented by these cases. 458 U. S. , at 535, n. 11. Such reservations and preliminary analyses of course did not decide the merits of this question—as evidenced by the disagreement among the lower courts on this issue. Compare Eisenberg , 197 F. 3d, at 133, with Comfort , 418 F. 3d, at 13.    Justice Breyer’s dissent also asserts that these cases are controlled by Grutter, claiming that the existence of a compelling interest in these cases “follows a fortiori ” from Grutter, post, at 41, 64–66, and accusing us of tacitly overruling that case, see post, at 64–66. The dissent overreads Grutter, however, in suggesting that it renders pure racial balancing a constitutionally compelling interest; Grutter itself recognized that using race simply to achieve racial balance would be “patently unconstitutional,” 539 U. S. , at 330. The Court was exceedingly careful in describing the interest furthered in Grutter as “not an interest in simple ethnic diversity” but rather a “far broader array of qualifications and characteristics” in which race was but a single element. 539 U. S., at 324–325 (internal quotation marks omitted). We take the Grutter Court at its word. We simply do not understand how Justice Breyer can maintain that classifying every schoolchild as black or white, and using that classification as a determinative factor in assigning children to achieve pure racial balance, can be regarded as “less burdensome, and hence more narrowly tailored” than the consideration of race in Grutter , post, at 47, when the Court in Grutter stated that “[t]he importance of … individualized consideration” in the program was “paramount,” and consideration of race was one factor in a “highly individualized, holistic review.” 539 U. S., at 337. Certainly if the constitutionality of the stark use of race in these cases were as established as the dissent would have it, there would have been no need for the extensive analysis undertaken in Grutter . In light of the foregoing, Justice Breyer’s appeal to stare decisis rings particularly hollow. See post, at 65–66.    At the same time it relies on inapplicable desegregation cases, misstatements of admitted dicta, and other noncontrolling pronouncements, Justice Breyer’s dissent candidly dismisses the significance of this Court’s repeated holdings that all racial classifications must be reviewed under strict scrutiny, see post , at 31–33, 35–36, arguing that a different standard of review should be applied because the districts use race for beneficent rather than malicious purposes, see post , at 31–36.    This Court has recently reiterated, however, that “ ‘ all racial classifications [imposed by government] … must be analyzed by a reviewing court under strict scrutiny.’ ” Johnson , 543 U. S., at 505 (quoting Adarand , 515 U. S., at 227; emphasis added by Johnson Court). See also Grutter , supra , at 326 (“[G]overnmental action based on race—a group classification long recognized as in most circumstances irrelevant and therefore prohibited—should be subjected to detailed judicial inquiry” (internal quotation marks and emphasis omitted)). Justice Breyer nonetheless relies on the good intentions and motives of the school districts, stating that he has found “no case that … repudiated this constitutional asymmetry between that which seeks to exclude and that which seeks to include members of minority races.” Post , at 29 (emphasis in original). We have found many. Our cases clearly reject the argument that motives affect the strict scrutiny analysis. See Johnson , supra , at 505 (“We have insisted on strict scrutiny in every context, even for so-called ‘benign’ racial classifications”); Adarand , 515 U. S., at 227 (rejecting idea that “ ‘benign’ ” racial classifications may be held to “different standard”); Croson , 488 U. S., at 500 (“Racial classifications are suspect, and that means that simple legislative assurances of good intention cannot suffice”).    This argument that different rules should govern racial classifications designed to include rather than exclude is not new; it has been repeatedly pressed in the past, see, e.g. , Gratz , 539 U. S., at 282 (Breyer, J., concurring in judgment); id. , at 301 (Ginsburg, J., dissenting); Adarand , supra , at 243 (Stevens, J., dissenting); Wygant , 476 U. S., at 316–317 (Stevens, J., dissenting), and has been repeatedly rejected. See also Bakke , 438 U. S., at 289–291 (opinion of Powell, J.) (rejecting argument that strict scrutiny should be applied only to classifications that disadvantage minorities, stating “[r]acial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination”).    The reasons for rejecting a motives test for racial classifications are clear enough. “The Court’s emphasis on ‘benign racial classifications’ suggests confidence in its ability to distinguish good from harmful governmental uses of racial criteria. History should teach greater humility… . ‘[B]enign’ carries with it no independent meaning, but reflects only acceptance of the current generation’s conclusion that a politically acceptable burden, imposed on particular citizens on the basis of race, is reasonable.” Metro Broadcasting , 497 U. S., at 609–610 (O’Connor, J., dissenting). See also Adarand , supra , at 226 (“ ‘[I]t may not always be clear that a so-called preference is in fact benign’ ” (quoting Bakke , supra , at 298 (opinion of Powell, J.))). Accepting Justice Breyer’s approach would “do no more than move us from ‘separate but equal’ to ‘unequal but benign.’ ” Metro Broadcasting , supra , at 638 (Kennedy, J., dissenting).    Justice Breyer speaks of bringing “the races” together (putting aside the purely black-and-white nature of the plans), as the justification for excluding individuals on the basis of their race. See post , at 28–29. Again, this approach to racial classifications is fundamentally at odds with our precedent, which makes clear that the Equal Protection Clause “protect[s] persons , not groups ,” Adarand , 515 U. S., at 227 (emphasis in original). See ibid. (“[A]ll governmental action based on race—a group classification long recognized as ‘in most circumstances irrelevant and therefore prohibited,’ Hirabayashi [v. United States , 320 U. S. 81 , 100 (1943)]—should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed” (first emphasis in original); Metro Broadcasting , supra , at 636 (“[O]ur Constitution protects each citizen as an individual, not as a member of a group” (Kennedy, J., dissenting)); Bakke , supra , at 289 (opinion of Powell, J.) (Fourteenth Amendment creates rights “guaranteed to the individual. The rights established are personal rights”). This fundamental principle goes back, in this context, to Brown itself. See Brown v. Board of Education , 349 U. S. 294 , 300 (1955) ( Brown II ) (“At stake is the personal interest of the plaintiffs in admission to public schools … on a nondiscriminatory basis” (emphasis added)). For the dissent, in contrast, “ ‘individualized scrutiny’ is simply beside the point.” Post , at 55.    Justice Breyer’s position comes down to a familiar claim: The end justifies the means. He admits that “there is a cost in applying ‘a state-mandated racial label,’ ” post , at 67, but he is confident that the cost is worth paying. Our established strict scrutiny test for racial classifications, however, insists on “detailed examination, both as to ends and as to means.” Adarand , supra , at 236 (emphasis added). Simply because the school districts may seek a worthy goal does not mean they are free to discriminate on the basis of race to achieve it, or that their racial classifications should be subject to less exacting scrutiny.    Despite his argument that these cases should be evaluated under a “standard of review that is not ‘strict’ in the traditional sense of that word,” post , at 36, Justice Breyer still purports to apply strict scrutiny to these cases. See post , at 37. It is evident, however, that Justice Breyer’s brand of narrow tailoring is quite unlike anything found in our precedents. Without any detailed discussion of the operation of the plans, the students who are affected, or the districts’ failure to consider race-neutral alternatives, the dissent concludes that the districts have shown that these racial classifications are necessary to achieve the districts’ stated goals. This conclusion is divorced from any evaluation of the actual impact of the plans at issue in these cases—other than to note that the plans “often have no effect.” Post , at 46.[ Footnote 17 ] Instead, the dissent suggests that some combination of the development of these plans over time, the difficulty of the endeavor, and the good faith of the districts suffices to demonstrate that these stark and controlling racial classifications are constitutional. The Constitution and our precedents require more.    In keeping with his view that strict scrutiny should not apply, Justice Breyer repeatedly urges deference to local school boards on these issues. See, e.g. , post , at 21, 48–49, 66. Such deference “is fundamentally at odds with our equal protection jurisprudence. We put the burden on state actors to demonstrate that their race-based policies are justified.” Johnson , 543 U. S., at 506, n. 1. See Croson , 488 U. S., at 501 (“The history of racial classifications in this country suggests that blind judicial deference to legislative or executive pronouncements of necessity has no place in equal protection analysis”); West Virginia Bd. of Ed. v. Barnette , 319 U. S. 624 , 637 (1943) (“The Fourteenth Amendment … protects the citizen against the State itself and all of its creatures—Boards of Education not excepted”).    Justice Breyer’s dissent ends on an unjustified note of alarm. It predicts that today’s decision “threaten[s]” the validity of “[h]undreds of state and federal statutes and regulations.” Post , at 61; see also post , at 27–28. But the examples the dissent mentions—for example, a provision of the No Child Left Behind Act that requires States to set measurable objectives to track the achievement of students from major racial and ethnic groups, 20 U. S. C. §6311(b)(2)(C)(v)—have nothing to do with the pertinent issues in these cases.    Justice Breyer also suggests that other means for achieving greater racial diversity in schools are necessarily unconstitutional if the racial classifications at issue in these cases cannot survive strict scrutiny. Post , at 58–62. These other means— e.g. , where to construct new schools, how to allocate resources among schools, and which academic offerings to provide to attract students to certain schools—implicate different considerations than the explicit racial classifications at issue in these cases, and we express no opinion on their validity—not even in dicta. Rather, we employ the familiar and well-established analytic approach of strict scrutiny to evaluate the plans at issue today, an approach that in no way warrants the dissent’s cataclysmic concerns. Under that approach, the school districts have not carried their burden of showing that the ends they seek justify the particular extreme means they have chosen—classifying individual students on the basis of their race and discriminating among them on that basis. *  *  *    If the need for the racial classifications embraced by the school districts is unclear, even on the districts’ own terms, the costs are undeniable. “[D]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Adarand , 515 U. S., at 214 (internal quotation marks omitted). Government action dividing us by race is inherently suspect because such classifications promote “notions of racial inferiority and lead to a politics of racial hostility,” Croson , supra , at 493, “reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin,” Shaw v. Reno , 509 U. S. 630 , 657 (1993), and “endorse race-based reasoning and the conception of a Nation divided into racial blocs, thus contributing to an escalation of racial hostility and conflict.” Metro Broadcasting , 497 U. S., at 603 (O’Connor, J., dissenting). As the Court explained in Rice v. Cayetano , 528 U. S. 495 , 517 (2000), “[o]ne of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.”    All this is true enough in the contexts in which these statements were made—government contracting, voting districts, allocation of broadcast licenses, and electing state officers—but when it comes to using race to assign children to schools, history will be heard. In Brown v. Board of Education , 347 U. S. 483 (1954) ( Brown I ), we held that segregation deprived black children of equal educational opportunities regardless of whether school facilities and other tangible factors were equal, because government classification and separation on grounds of race themselves denoted inferiority. Id., at 493–494. It was not the inequality of the facilities but the fact of legally separating children on the basis of race on which the Court relied to find a constitutional violation in 1954. See id., at 494 (“ ‘The impact [of segregation] is greater when it has the sanction of the law’ ”). The next Term, we accordingly stated that “full compliance” with Brown I required school districts “to achieve a system of determining admission to the public schools on a nonracial basis .” Brown II, 349 U. S., at 300–301 (emphasis added).    The parties and their amici debate which side is more faithful to the heritage of Brown , but the position of the plaintiffs in Brown was spelled out in their brief and could not have been clearer: “[T]he Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race.” Brief for Appellants in Nos. 1, 2, and 4 and for Respondents in No. 10 on Reargument in Brown I , O. T. 1953, p. 15 (Summary of Argument). What do the racial classifications at issue here do, if not accord differential treatment on the basis of race? As counsel who appeared before this Court for the plaintiffs in Brown put it: “We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Tr. of Oral Arg. in Brown I , p. 7 (Robert L. Carter, Dec. 9, 1952). There is no ambiguity in that statement. And it was that position that prevailed in this Court, which emphasized in its remedial opinion that what was “[a]t stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis ,” and what was required was “determining admission to the public schools on a nonracial basis .” Brown II , supra , at 300–301 (emphasis added). What do the racial classifications do in these cases, if not determine admission to a public school on a racial basis?   Before Brown , schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons. For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way “to achieve a system of determining admission to the public schools on a nonracial basis,” Brown II , 349 U. S., at 300–301, is to stop assigning students on a racial basis. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.    The judgments of the Courts of Appeals for the Sixth and Ninth Circuits are reversed, and the cases are remanded for further proceedings. It is so ordered. Footnote 1 The plan was in effect from 1999–2002, for three school years. This litigation was commenced in July 2000, and the record in the District Court was closed before assignments for the 2001–2002 school year were made. See Brief for Respondents in No. 05–908, p. 9, n. 9. We rely, as did the lower courts, largely on data from the 2000–2001 school year in evaluating the plan. See 426 F. 3d 1162, 1169–1171 (CA9 2005) (en banc) ( Parents Involved VII ). Footnote 2 The racial breakdown of this nonwhite group is approximately 23.8 percent Asian-American, 23.1 percent African-American, 10.3 percent Latino, and 2.8 percent Native-American. See 377 F. 3d 949, 1005–1006 (CA9 2004) ( Parents Involved VI ) (Graber, J., dissenting). Footnote 3 For the 2001–2002 school year, the deviation permitted from the desired racial composition was increased from 10 to 15 percent. App. in No. 05–908, p. 38a. The bulk of the data in the record was collected using the 10 percent band, see n. 1, supra . Footnote 4 “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” U. S. Const., Amdt. 14, §1. Footnote 5 “No person in the United States shall, on the ground of race … be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 78 Stat. 252, 42 U. S. C. §2000d. Footnote 6 “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Wash. Rev. Code §49.60.400(1) (2006). Footnote 7 Middle and high school students are designated a single resides school and assigned to that school unless it is at the extremes of the racial guidelines. Students may also apply to a magnet school or program, or, at the high school level, take advantage of an open enrollment plan that allows ninth-grade students to apply for admission to any nonmagnet high school. App. in No. 05–915, pp. 39–41, 82–83. Footnote 8 It is not clear why the racial guidelines were even applied to Joshua’s transfer application—the guidelines supposedly do not apply at the kindergarten level. Id., at 43. Neither party disputes, however, that Joshua’s transfer application was denied under the racial guidelines, and Meredith’s objection is not that the guidelines were misapplied but rather that race was used at all. Footnote 9 Meredith joined a pending lawsuit filed by several other plaintiffs. See id., at 7–11. The other plaintiffs all challenged assignments to certain specialized schools, and the District Court found these assignments, which are no longer at issue in this case, unconstitutional. McFarland I , 330 F. Supp. 2d 834, 837, 864 (WD Ky. 2004). Footnote 10 The districts point to dicta in a prior opinion in which the Court suggested that, while not constitutionally mandated, it would be constitutionally permissible for a school district to seek racially balanced schools as a matter of “educational policy.” See Swann v. Charlotte-Mecklenburg Bd. of Ed. , 402 U. S. 1 , 16 (1971). The districts also quote with approval an in-chambers opinion in which then-Justice Rehnquist made a suggestion to the same effect. See Bustop, Inc. v. Los Angeles Bd. of Ed. , 439 U. S. 1380 , 1383 (1978). The citations do not carry the significance the districts would ascribe to them. Swann , evaluating a school district engaged in court-ordered desegregation, had no occasion to consider whether a district’s voluntary adoption of race-based assignments in the absence of a finding of prior de jure segregation was constitutionally permissible, an issue that was again expressly reserved in Washington v. Seattle School Dist. No. 1 , 458 U. S. 457 , 472, n. 15 (1982). Bustop , addressing in the context of an emergency injunction application a busing plan imposed by the Superior Court of Los Angeles County, is similarly unavailing. Then-Justice Rehnquist, in denying emergency relief, stressed that “equitable consideration[s]” counseled against preliminary relief. 439 U. S., at 1383. The propriety of preliminary relief and resolution of the merits are of course “significantly different” issues. University of Texas v. Camenisch , 451 U. S. 390 , 393 (1981). Footnote 11 The way Seattle classifies its students bears this out. Upon enrolling their child with the district, parents are required to identify their child as a member of a particular racial group. If a parent identifies more than one race on the form, “[t]he application will not be accepted and, if necessary, the enrollment service person taking the application will indicate one box.” App. in No. 05–908, at 303a. Footnote 12 Jefferson County also argues that it would be incongruous to hold that what was constitutionally required of it one day—race-based assignments pursuant to the desegregation decree—can be constitutionally prohibited the next. But what was constitutionally required of the district prior to 2000 was the elimination of the vestiges of prior segregation—not racial proportionality in its own right. See Freeman v. Pitts , 503 U. S. 467 , 494–496 (1992). Once those vestiges were eliminated, Jefferson County was on the same footing as any other school district, and its use of race must be justified on other grounds. Footnote 13 Data for the Seattle schools in the several years since this litigation was commenced further demonstrate the minimal role that the racial tiebreaker in fact played. At Ballard, in 2005–2006—when no class at the school was subject to the racial tiebreaker—the student body was 14.2 percent Asian-American, 9 percent African-American, 11.7 percent Latino, 62.3 percent Caucasian, and 2.8 percent Native-American. Reply Brief for Petitioner in No. 05–908, p. 7. In 2000–2001, when the racial tiebreaker was last used, Ballard’s total enrollment was 17.5 percent Asian-American, 10.8 percent African-American, 10.7 percent Latino, 56.4 percent Caucasian, and 4.6 percent Native-American. App. in No. 05–908, at 283a. Franklin in 2005–2006 was 48.9 percent Asian-American, 33.5 percent African-American, 6.6 percent Latino, 10.2 percent Caucasian, and 0.8 percent Native-American. Reply Brief for Petitioner in No. 05–908, at 7. With the racial tiebreaker in 2000–2001, total enrollment was 36.8 percent Asian-American, 32.2 percent African-American, 5.2 percent Latino, 25.1 percent Caucasian, and 0.7 percent Native-American. App. in No. 05–908, at 284a. Nathan Hale’s 2005–2006 enrollment was 17.3 percent Asian-American, 10.7 percent African-American, 8 percent Latino, 61.5 percent Caucasian, and 2.5 percent Native-American. Reply Brief for Petitioner in No. 05–908, at 7. In 2000–2001, with the racial tiebreaker, it was 17.9 percent Asian-American, 13.3 percent African-American, 7 percent Latino, 58.4 percent Caucasian, and 3.4 percent Native-American. App. in No. 05–908, at 286a. Footnote 14 In contrast, Seattle’s website formerly described “emphasizing individualism as opposed to a more collective ideology” as a form of “cultural racism,” and currently states that the district has no intention “to hold onto unsuccessful concepts such as [a] … colorblind mentality.” Harrell, School Web Site Removed: Examples of Racism Sparked Controversy, Seattle Post-Intelligencer, June 2, 2006, pp. B1, B5. Compare Plessy v. Ferguson , 163 U. S. 537 , 559 (1896) (Harlan, J., dissenting) (“Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law”). Footnote 15 Justice Breyer makes much of the fact that in 1978 Seattle “settled” an NAACP complaint alleging illegal segregation with the federal Office for Civil Rights (OCR). See post , at 5, 8–9, 18, 23. The memorandum of agreement between Seattle and OCR, of course, contains no admission by Seattle that such segregation ever existed or was ongoing at the time of the agreement, and simply reflects a “desire to avoid the incovenience [ sic ] and expense of a formal OCR investigation,” which OCR was obligated under law to initiate upon the filing of such a complaint. Memorandum of Agreement between Seattle School District No. 1 of King County, Washington, and the Office for Civil Rights, United States Department of Health, Education, and Welfare 2 (June 9, 1978); see also 45 CFR §80.7(c) (2006). Footnote 16 In fact, all the cases Justice Breyer’s dissent cites as evidence of the “prevailing legal assumption,” see post , at 25–27, were decided before this Court definitively determined that “all racial classifications … must be analyzed by a reviewing court under strict scrutiny.” Adarand Constructors, Inc. v. Peńa , 515 U. S. 200 , 227 (1995). Many proceeded under the now-rejected view that classifications seeking to benefit a disadvantaged racial group should be held to a lesser standard of review. See, e.g. , Springfield School Comm. v. Barksdale , 348 F. 2d 261, 266 (CA1 1965). Even if this purported distinction, which Justice Stevens would adopt, post , at 2, n. 3 (dissenting opinion), had not been already rejected by this Court, the distinction has no relevance to these cases, in which students of all races are excluded from the schools they wish to attend based solely on the racial classifications. See, e.g. , App. in No. 05–908, at 202a (noting that 89 nonwhite students were denied assignment to a particular school by operation of Seattle’s racial tiebreaker). Justice Stevens’s reliance on School Comm. of Boston v. Board of Ed., 352 Mass. 693, 227 N. E. 2d 729 (1967), appeal dism’d, 389 U. S. 572 (1968) (per curiam) , post , at 3–5, is inapposite for the same reason that many of the cases cited by Justice Breyer are inapposite; the case involved a Massachusetts law that required school districts to avoid racial imbalance in schools but did not specify how to achieve this goal—and certainly did not require express racial classifications as the means to do so. The law was upheld under rational-basis review, with the state court explicitly rejecting the suggestion—which is now plainly the law—that “racial group classifications bear a far heavier burden of justification.” 352 Mass., at 700, 227 N. E. 2d, at 734 (internal quotation marks and citation omitted). The passage Justice Stevens quotes proves our point; all the quoted language says is that the school committee “shall prepare a plan to eliminate the imbalance.” Id., at 695, 227 N. E. 2d, at 731; see post , at 4, n. 5. Nothing in the opinion approves use of racial classifications as the means to address the imbalance. The suggestion that our decision today is somehow inconsistent with our disposition of that appeal is belied by the fact that neither the lower courts, the respondent school districts, nor any of their 51 amici saw fit even to cite the case. We raise this fact not to argue that the dismissal should be afforded any different stare decisis effect, but rather simply to suggest that perhaps—for the reasons noted above—the dismissal does not mean what Justice Stevens believes it does. Footnote 17 Justice Breyer also tries to downplay the impact of the racial assignments by stating that in Seattle “students can decide voluntarily to transfer to a preferred district high school (without any consideration of race-conscious criteria).” Post , at 46. This presumably refers to the district’s decision to cease, for 2001–2002 school year assignments, applying the racial tiebreaker to students seeking to transfer to a different school after ninth grade. See App. in No. 05–908, at 137a–139a. There are obvious disincentives for students to transfer to a different school after a full quarter of their high school experience has passed, and the record sheds no light on how transfers to the oversubscribed high schools are handled. OPINION OF KENNEDY, J. PARENTS INVOLVED IN COMMUNITY SCHOOLS V.SEATTLE SCHOOL DIST. NO. 1 551 U. S. ____ (2007) SUPREME COURT OF THE UNITED STATES NOS. 05-908 AND 05-915 PARENTS INVOLVED IN COMMUNITY SCHOOLS, PETITIONER 05–908 v. SEATTLE SCHOOL DISTRICT NO. 1 et al. on writ of certiorari to the united states court of appeals for the ninth circuit CRYSTAL D. MEREDITH, custodial parent and next friend of JOSHUA RYAN McDONALD, PETITIONER 05–915 v. JEFFERSON COUNTY BOARD OF EDUCATION et al. on writ of certiorari to the united states court of appeals for the sixth circuit [June 28, 2007] Justice Kennedy , concurring in part and concurring in the judgment.    The Nation’s schools strive to teach that our strength comes from people of different races, creeds, and cultures uniting in commitment to the freedom of all. In these cases two school districts in different parts of the country seek to teach that principle by having classrooms that reflect the racial makeup of the surrounding community. That the school districts consider these plans to be necessary should remind us our highest aspirations are yet unfulfilled. But the solutions mandated by these school districts must themselves be lawful. To make race matter now so that it might not matter later may entrench the very prejudices we seek to overcome. In my view the state-mandated racial classifications at issue, official labels proclaiming the race of all persons in a broad class of citizens—elementary school students in one case, high school students in another—are unconstitutional as the cases now come to us.    I agree with The Chief Justice that we have jurisdiction to decide the cases before us and join Parts I and II of the Court’s opinion. I also join Parts III–A and III–C for reasons provided below. My views do not allow me to join the balance of the opinion by The Chief Justice, which seems to me to be inconsistent in both its approach and its implications with the history, meaning, and reach of the Equal Protection Clause. Justice Breyer’s dissenting opinion, on the other hand, rests on what in my respectful submission is a misuse and mistaken interpretation of our precedents. This leads it to advance propositions that, in my view, are both erroneous and in fundamental conflict with basic equal protection principles. As a consequence, this separate opinion is necessary to set forth my conclusions in the two cases before the Court. I    The opinion of the Court and Justice Breyer’s dissenting opinion (hereinafter dissent) describe in detail the history of integration efforts in Louisville and Seattle. These plans classify individuals by race and allocate benefits and burdens on that basis; and as a result, they are to be subjected to strict scrutiny. See Johnson v. California , 543 U. S. 499 , 505–506 (2005); ante , at 11. The dissent finds that the school districts have identified a compelling interest in increasing diversity, including for the purpose of avoiding racial isolation. See post , at 37–45. The plurality, by contrast, does not acknowledge that the school districts have identified a compelling interest here. See ante , at 17–25. For this reason, among others, I do not join Parts III–B and IV. Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue.    It is well established that when a governmental policy is subjected to strict scrutiny, “the government has the burden of proving that racial classifications ‘are narrowly tailored measures that further compelling governmental interests.’ ” Johnson , supra , at 505 (quoting Adarand Constructors, Inc. v. Peńa , 515 U. S. 200 , 227 (1995)). “Absent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.” Richmond v. J. A. Croson Co. , 488 U. S. 469 , 493 (1989) (plurality opinion). And the inquiry into less restrictive alternatives demanded by the narrow tailoring analysis requires in many cases a thorough understanding of how a plan works. The government bears the burden of justifying its use of individual racial classifications. As part of that burden it must establish, in detail, how decisions based on an individual student’s race are made in a challenged governmental program. The Jefferson County Board of Education fails to meet this threshold mandate.    Petitioner Crystal Meredith challenges the district’s decision to deny her son Joshua McDonald a requested transfer for his kindergarten enrollment. The district concedes it denied his request “under the guidelines,” which is to say, on the basis of Joshua’s race. Brief for Respondents in No. 05–915, p. 10; see also App. in No. 05–915, p. 97. Yet the district also maintains that the guidelines do not apply to “kindergartens,” Brief for Respondents in No. 05–915, at 4, and it fails to explain the discrepancy. Resort to the record, including the parties’ Stipulation of Facts, further confuses the matter. See App. in No. 05–915, at 43 (“Transfer applications can be denied because of lack of available space or, for students in grades other than Primary 1 (kindergarten), the racial guidelines in the District’s current student assignment plan”); id ., at 29 (“The student assignment plan does not apply to . . . students in Primary 1”); see also Stipulation of Facts in No. 3:02–CV–00620–JGH; Doc. 32, Exh. 44, p. 6 (2003–04 Jefferson County Public Schools Elementary Student Assignment Application, Section B) (“Assignment is made to a school for Primary 1 (Kindergarten) through Grade Five as long as racial guidelines are maintained. If the Primary 1 (Kindergarten) placement does not enhance racial balance, a new application must be completed for Primary 2 (Grade One)”).    The discrepancy identified is not some simple and straightforward error that touches only upon the peripheries of the district’s use of individual racial classifications. To the contrary, Jefferson County in its briefing has explained how and when it employs these classifications only in terms so broad and imprecise that they cannot withstand strict scrutiny. See, e.g ., Brief for Respondents in No. 05–915, at 4–10. While it acknowledges that racial classifications are used to make certain assignment decisions, it fails to make clear, for example, who makes the decisions; what if any oversight is employed; the precise circumstances in which an assignment decision will or will not be made on the basis of race; or how it is determined which of two similarly situated children will be subjected to a given race-based decision. See ibid . ; see also App. in No. 05–915, at 38, 42 (indicating that decisions are “based on … the racial guidelines” without further explanation); id ., at 81 (setting forth the blanket mandate that “[s]chools shall work cooperatively with each other and with central office to ensure that enrollment at all schools [in question] is within the racial guidelines annually and to encourage that the enrollment at all schools progresses toward the midpoint of the guidelines”); id ., at 43, 76–77, 81–83; McFarland v. Jefferson Cty. Public Schools , 330 F. Supp. 2d 834, 837–845, 855–862 (WD Ky. 2004). When litigation, as here, involves a “complex, comprehensive plan that contains multiple strategies for achieving racially integrated schools,” Brief for Respondents in No. 05–915, at 4, these ambiguities become all the more problematic in light of the contradictions and confusions that result. Compare, e.g ., App. in No. 05–915, at 37 (“Each [Jefferson County] school … has a designated geographic attendance area, which is called the ‘resides area’ of the school[, and each] such school is the ‘resides school’ for those students whose parent’s or guardian’s residence address is within the school’s geographic attendance area”); id ., at 82 (“All elementary students … shall be assigned to the school which serves the area in which they reside”); and Brief for Respondents in No. 05–915, at 5 (“There are no selection criteria for admission to [an elementary school student’s] resides school, except attainment of the appropriate age and completion of the previous grade”), with App. in No. 05–915, at 38 (“Decisions to assign students to schools within each cluster are based on available space within the [elementary] schools and the racial guidelines in the District’s current student assignment plan”); id ., at 82 (acknowledging that a student may not be assigned to his or her resides school if it “has reached … the extremes of the racial guidelines”). One can attempt to identify a construction of Jefferson County’s student assignment plan that, at least as a logical matter, complies with these competing propositions; but this does not remedy the underlying problem. Jefferson County fails to make clear to this Court—even in the limited respects implicated by Joshua’s initial assignment and transfer denial—whether in fact it relies on racial classifications in a manner narrowly tailored to the interest in question, rather than in the far-reaching, inconsistent, and ad hoc manner that a less forgiving reading of the record would suggest. When a court subjects governmental action to strict scrutiny, it cannot construe ambiguities in favor of the State. As for the Seattle case, the school district has gone further in describing the methods and criteria used to determine assignment decisions on the basis of individual racial classifications. See, e.g ., Brief for Respondents in No. 05–908, p. 5–11. The district, nevertheless, has failed to make an adequate showing in at least one respect. It has failed to explain why, in a district composed of a diversity of races, with fewer than half of the students classified as “white,” it has employed the crude racial categories of “white” and “non-white” as the basis for its assignment decisions. See, e.g., id ., at 1–11. The district has identified its purposes as follows: “(1) to promote the educational benefits of diverse school enrollments; (2) to reduce the potentially harmful effects of racial isolation by allowing students the opportunity to opt out of racially isolated schools; and (3) to make sure that racially segregated housing patterns did not prevent non-white students from having equitable access to the most popular over-subscribed schools.” Id ., at 19. Yet the school district does not explain how, in the context of its diverse student population, a blunt distinction between “white” and “non-white” furthers these goals. As the Court explains, “a school with 50 percent Asian-American students and 50 percent white students but no African-American, Native-American, or Latino students would qualify as balanced, while a school with 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white students would not.” Ante , at 15–16; see also Brief for United States as Amicus Curiae in No. 05–908, pp. 13–14. Far from being narrowly tailored to its purposes, this system threatens to defeat its own ends, and the school district has provided no convincing explanation for its design. Other problems are evident in Seattle’s system, but there is no need to address them now. As the district fails to account for the classification system it has chosen, despite what appears to be its ill fit, Seattle has not shown its plan to be narrowly tailored to achieve its own ends; and thus it fails to pass strict scrutiny. II Our Nation from the inception has sought to preserve and expand the promise of liberty and equality on which it was founded. Today we enjoy a society that is remarkable in its openness and opportunity. Yet our tradition is to go beyond present achievements, however significant, and to recognize and confront the flaws and injustices that remain. This is especially true when we seek assurance that opportunity is not denied on account of race. The enduring hope is that race should not matter; the reality is that too often it does. This is by way of preface to my respectful submission that parts of the opinion by The Chief Justice imply an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account. The plurality opinion is too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race. The plurality’s postulate that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” ante , at 40–41, is not sufficient to decide these cases. Fifty years of experience since Brown v. Board of Education, 347 U. S. 483 (1954), should teach us that the problem before us defies so easy a solution. School districts can seek to reach Brown ’s objective of equal educational opportunity. The plurality opinion is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion. To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken. The statement by Justice Harlan that “[o]ur Constitution is color-blind” was most certainly justified in the context of his dissent in Plessy v. Ferguson , 163 U. S. 537 , 559 (1896). The Court’s decision in that case was a grievous error it took far too long to overrule. Plessy , of course, concerned official classification by race applicable to all persons who sought to use railway carriages. And, as an aspiration, Justice Harlan’s axiom must command our assent. In the real world, it is regrettable to say, it cannot be a universal constitutional principle. In the administration of public schools by the state and local authorities it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition. Cf. Grutter v. Bollinger , 539 U. S. 306 (2003); id. , at 387–388 (Kennedy, J., dissenting). If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students, they are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race. School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible. See Bush v. Vera , 517 U. S. 952 , 958 (1996) (plurality opinion) (“Strict scrutiny does not apply merely because redistricting is performed with consciousness of race… . Electoral district lines are ‘facially race neutral’ so a more searching inquiry is necessary before strict scrutiny can be found applicable in redistricting cases than in cases of ‘classifications based explicitly on race’ ” (quoting Adarand , 515 U. S., at 213)). Executive and legislative branches, which for generations now have considered these types of policies and procedures, should be permitted to employ them with candor and with confidence that a constitutional violation does not occur whenever a decisionmaker considers the impact a given approach might have on students of different races. Assigning to each student a personal designation according to a crude system of individual racial classifications is quite a different matter; and the legal analysis changes accordingly. Each respondent has asserted that its assignment of individual students by race is permissible because there is no other way to avoid racial isolation in the school districts. Yet, as explained, each has failed to provide the support necessary for that proposition. Cf. Croson , 488 U. S., at 501 (“The history of racial classifications in this country suggests that blind judicial deference to legislative or executive pronouncements of necessity has no place in equal protection analysis”). And individual racial classifications employed in this manner may be considered legitimate only if they are a last resort to achieve a compelling interest. See id. , at 519 (Kennedy, J., concurring in part and concurring in judgment). In the cases before us it is noteworthy that the number of students whose assignment depends on express racial classifications is limited. I join Part III–C of the Court’s opinion because I agree that in the context of these plans, the small number of assignments affected suggests that the schools could have achieved their stated ends through different means. These include the facially race-neutral means set forth above or, if necessary, a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component. The latter approach would be informed by Grutter , though of course the criteria relevant to student placement would differ based on the age of the students, the needs of the parents, and the role of the schools. III The dissent rests on the assumptions that these sweeping race-based classifications of persons are permitted by existing precedents; that its confident endorsement of race categories for each child in a large segment of the community presents no danger to individual freedom in other, prospective realms of governmental regulation; and that the racial classifications used here cause no hurt or anger of the type the Constitution prevents. Each of these premises is, in my respectful view, incorrect. A The dissent’s reliance on this Court’s precedents to justify the explicit, sweeping, classwide racial classifications at issue here is a misreading of our authorities that, it appears to me, tends to undermine well-accepted principles needed to guard our freedom. And in his critique of that analysis, I am in many respects in agreement with The Chief Justice. The conclusions he has set forth in Part III–A of the Court’s opinion are correct, in my view, because the compelling interests implicated in the cases before us are distinct from the interests the Court has recognized in remedying the effects of past intentional discrimination and in increasing diversity in higher education. See ante , at 12–13. As the Court notes, we recognized the compelling nature of the interest in remedying past intentional discrimination in Freeman v. Pitts , 503 U. S. 467 , 494 (1992), and of the interest in diversity in higher education in Grutter . At the same time, these compelling interests, in my view, do help inform the present inquiry. And to the extent the plurality opinion can be interpreted to foreclose consideration of these interests, I disagree with that reasoning. As to the dissent, the general conclusions upon which it relies have no principled limit and would result in the broad acceptance of governmental racial classifications in areas far afield from schooling. The dissent’s permissive strict scrutiny (which bears more than a passing resemblance to rational-basis review) could invite widespread governmental deployment of racial classifications. There is every reason to think that, if the dissent’s rationale were accepted, Congress, assuming an otherwise proper exercise of its spending authority or commerce power, could mandate either the Seattle or the Jefferson County plans nationwide. There seems to be no principled rule, moreover, to limit the dissent’s rationale to the context of public schools. The dissent emphasizes local control, see post , at 48–49, the unique history of school desegregation, see post , at 2, and the fact that these plans make less use of race than prior plans, see post , at 57, but these factors seem more rhetorical than integral to the analytical structure of the opinion. This brings us to the dissent’s reliance on the Court’s opinions in Gratz v. Bollinger , 539 U. S. 244 (2003), and Grutter , 539 U. S. 306 . If today’s dissent said it was adhering to the views expressed in the separate opinions in Gratz and Grutter , see Gratz , 539 U. S., at 281 (Breyer, J., concurring in judgment); id., at 282 (Stevens, J., dissenting); id., at 291 (Souter, J., dissenting); id., at 298 (Ginsburg, J., dissenting); Grutter , supra , at 344 (Ginsburg, J., concurring), that would be understandable, and likely within the tradition—to be invoked, in my view, in rare instances—that permits us to maintain our own positions in the face of stare decisis when fundamental points of doctrine are at stake. See, e.g., Federal Maritime Comm’n v. South Carolina Ports Authority , 535 U. S. 743 , 770 (2002) (Stevens, J., dissenting). To say, however, that we must ratify the racial classifications here at issue based on the majority opinions in Gratz and Grutter is, with all respect, simply baffling. Gratz involved a system where race was not the entire classification. The procedures in Gratz placed much less reliance on race than do the plans at issue here. The issue in Gratz arose, moreover, in the context of college admissions where students had other choices and precedent supported the proposition that First Amendment interests give universities particular latitude in defining diversity. See Regents of Univ. of Cal. v. Bakke , 438 U. S. 265 , 312–314 (1978) (opinion of Powell, J.). Even so the race factor was found to be invalid. Gratz , supra , at 251. If Gratz is to be the measure, the racial classification systems here are a fortiori invalid. If the dissent were to say that college cases are simply not applicable to public school systems in kindergarten through high school, this would seem to me wrong, but at least an arguable distinction. Under no fair reading, though, can the majority opinion in Gratz be cited as authority to sustain the racial classifications under consideration here. The same must be said for the controlling opinion in Grutter . There the Court sustained a system that, it found, was flexible enough to take into account “all pertinent elements of diversity,” 539 U. S., at 341 (internal quotation marks omitted), and considered race as only one factor among many, id ., at 340. Seattle’s plan, by contrast, relies upon a mechanical formula that has denied hundreds of students their preferred schools on the basis of three rigid criteria: placement of siblings, distance from schools, and race. If those students were considered for a whole range of their talents and school needs with race as just one consideration, Grutter would have some application. That, though, is not the case. The only support today’s dissent can draw from Grutter must be found in its various separate opinions, not in the opinion filed for the Court. B To uphold these programs the Court is asked to brush aside two concepts of central importance for determining the validity of laws and decrees designed to alleviate the hurt and adverse consequences resulting from race discrimination. The first is the difference between de jure and de facto segregation; the second, the presumptive invalidity of a State’s use of racial classifications to differentiate its treatment of individuals. In the immediate aftermath of Brown the Court addressed other instances where laws and practices enforced de jure segregation. See, e.g., Loving v. Virginia , 388 U. S. 1 (1967) (marriage); New Orleans City Park Improvement Assn. v. Detiege , 358 U. S. 54 (1958) (per curiam) (public parks); Gayle v. Browder , 352 U. S. 903 (1956) (per curiam) (buses); Holmes v. Atlanta , 350 U. S. 879 (1955) (per curiam) (golf courses); Mayor of Baltimore v. Dawson , 350 U. S. 877 (1955) (per curiam) (beaches). But with reference to schools, the effect of the legal wrong proved most difficult to correct. To remedy the wrong, school districts that had been segregated by law had no choice, whether under court supervision or pursuant to voluntary desegregation efforts, but to resort to extraordinary measures including individual student and teacher assignment to schools based on race. See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Ed. , 402 U. S. 1 , 8–10 (1971); see also Croson , 488 U. S., at 519 (Kennedy, J., concurring in part and concurring in judgment) (noting that racial classifications “may be the only adequate remedy after a judicial determination that a State or its instrumentality has violated the Equal Protection Clause”). So it was, as the dissent observes, see post , at 13–14, that Louisville classified children by race in its school assignment and busing plan in the 1970’s. Our cases recognized a fundamental difference between those school districts that had engaged in de jure segregation and those whose segregation was the result of other factors. School districts that had engaged in de jure segregation had an affirmative constitutional duty to desegregate; those that were de facto segregated did not. Compare Green v. School Bd. of New Kent Cty. , 391 U. S. 430 , 437–438 (1968), with Milliken v. Bradley , 418 U. S. 717 , 745 (1974). The distinctions between de jure and de facto segregation extended to the remedies available to governmental units in addition to the courts. For example, in Wygant v. Jackson Bd. of Ed. , 476 U. S. 267 , 274 (1986), the plurality noted: “This Court never has held that societal discrimination alone is sufficient to justify a racial classification. Rather, the Court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination.” The Court’s decision in Croson, supra , reinforced the difference between the remedies available to redress de facto and de jure discrimination: “To accept [a] claim that past societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door to competing claims for ‘remedial relief’ for every disadvantaged group. The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs.” Id. , at 505–506. From the standpoint of the victim, it is true, an injury stemming from racial prejudice can hurt as much when the demeaning treatment based on race identity stems from bias masked deep within the social order as when it is imposed by law. The distinction between government and private action, furthermore, can be amorphous both as a historical matter and as a matter of present-day finding of fact. Laws arise from a culture and vice versa. Neither can assign to the other all responsibility for persisting injustices. Yet, like so many other legal categories that can overlap in some instances, the constitutional distinction between de jure and de facto segregation has been thought to be an important one. It must be conceded its primary function in school cases was to delimit the powers of the Judiciary in the fashioning of remedies. See, e.g., Milliken, supra, at 746. The distinction ought not to be altogether disregarded, however, when we come to that most sensitive of all racial issues, an attempt by the government to treat whole classes of persons differently based on the government’s systematic classification of each individual by race. There, too, the distinction serves as a limit on the exercise of a power that reaches to the very verge of constitutional authority. Reduction of an individual to an assigned racial identity for differential treatment is among the most pernicious actions our government can undertake. The allocation of governmental burdens and benefits, contentious under any circumstances, is even more divisive when allocations are made on the basis of individual racial classifications. See, e.g., Regents of Univ. of Cal. v. Bakke , 438 U. S. 265 (1978); Adarand , 515 U. S. 200 . Notwithstanding these concerns, allocation of benefits and burdens through individual racial classifications was found sometimes permissible in the context of remedies for de jure wrong. Where there has been de jure segregation, there is a cognizable legal wrong, and the courts and legislatures have broad power to remedy it. The remedy, though, was limited in time and limited to the wrong. The Court has allowed school districts to remedy their prior de jure segregation by classifying individual students based on their race. See North Carolina Bd. of Ed. v. Swann , 402 U. S. 43 , 45–46 (1971). The limitation of this power to instances where there has been de jure segregation serves to confine the nature, extent, and duration of governmental reliance on individual racial classifications. The cases here were argued upon the assumption, and come to us on the premise, that the discrimination in question did not result from de jure actions. And when de facto discrimination is at issue our tradition has been that the remedial rules are different. The State must seek alternatives to the classification and differential treatment of individuals by race, at least absent some extraordinary showing not present here. C The dissent refers to an opinion filed by Judge Kozinski in one of the cases now before us, and that opinion relied upon an opinion filed by Chief Judge Boudin in a case presenting an issue similar to the one here. See post , at 35 (citing 426 F. 3d 1162, 1193–1196 (CA9 2005) (concurring opinion) (citing Comfort v. Lynn School Comm. , 418 F. 3d 1, 27–29 (CA1 2005) (Boudin, C. J., concurring))). Though this may oversimplify the matter a bit, one of the main concerns underlying those opinions was this: If it is legitimate for school authorities to work to avoid racial isolation in their schools, must they do so only by indirection and general policies? Does the Constitution mandate this inefficient result? Why may the authorities not recognize the problem in candid fashion and solve it altogether through resort to direct assignments based on student racial classifications? So, the argument proceeds, if race is the problem, then perhaps race is the solution. The argument ignores the dangers presented by individual classifications, dangers that are not as pressing when the same ends are achieved by more indirect means. When the government classifies an individual by race, it must first define what it means to be of a race. Who exactly is white and who is nonwhite? To be forced to live under a state-mandated racial label is inconsistent with the dignity of individuals in our society. And it is a label that an individual is powerless to change. Governmental classifications that command people to march in different directions based on racial typologies can cause a new divisiveness. The practice can lead to corrosive discourse, where race serves not as an element of our diverse heritage but instead as a bargaining chip in the political process. On the other hand race-conscious measures that do not rely on differential treatment based on individual classifications present these problems to a lesser degree. The idea that if race is the problem, race is the instrument with which to solve it cannot be accepted as an analytical leap forward. And if this is a frustrating duality of the Equal Protection Clause it simply reflects the duality of our history and our attempts to promote freedom in a world that sometimes seems set against it. Under our Constitution the individual, child or adult, can find his own identity, can define her own persona, without state intervention that classifies on the basis of his race or the color of her skin. *  *  * This Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children. A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue. Likewise, a district may consider it a compelling interest to achieve a diverse student population. Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered. What the government is not permitted to do, absent a showing of necessity not made here, is to classify every student on the basis of race and to assign each of them to schools based on that classification. Crude measures of this sort threaten to reduce children to racial chits valued and traded according to one school’s supply and another’s demand. That statement, to be sure, invites this response: A sense of stigma may already become the fate of those separated out by circumstances beyond their immediate control. But to this the replication must be: Even so, measures other than differential treatment based on racial typing of individuals first must be exhausted. The decision today should not prevent school districts from continuing the important work of bringing together students of different racial, ethnic, and economic backgrounds. Due to a variety of factors—some influenced by government, some not—neighborhoods in our communities do not reflect the diversity of our Nation as a whole. Those entrusted with directing our public schools can bring to bear the creativity of experts, parents, administrators, and other concerned citizens to find a way to achieve the compelling interests they face without resorting to widespread governmental allocation of benefits and burdens on the basis of racial classifications. With this explanation I concur in the judgment of the Court. THOMAS, J., CONCURRING PARENTS INVOLVED IN COMMUNITY SCHOOLS V.SEATTLE SCHOOL DIST. NO. 1 551 U. S. ____ (2007) SUPREME COURT OF THE UNITED STATES NOS. 05-908 AND 05-915 PARENTS INVOLVED IN COMMUNITY SCHOOLS, PETITIONER 05–908 v. SEATTLE SCHOOL DISTRICT NO. 1 et al. on writ of certiorari to the united states court of appeals for the ninth circuit CRYSTAL D. MEREDITH, custodial parent and next friend of JOSHUA RYAN McDONALD, PETITIONER 05–915 v. JEFFERSON COUNTY BOARD OF EDUCATION et al. on writ of certiorari to the united states court of appeals for the sixth circuit [June 28, 2007] Justice Thomas , concurring.    Today, the Court holds that state entities may not experiment with race-based means to achieve ends they deem socially desirable. I wholly concur in The Chief Justice’s opinion. I write separately to address several of the contentions in Justice Breyer’s dissent (hereinafter the dissent). Contrary to the dissent’s arguments, resegregation is not occurring in Seattle or Louisville; these school boards have no present interest in remedying past segregation; and these race-based student-assignment programs do not serve any compelling state interest. Accordingly, the plans are unconstitutional. Disfavoring a color-blind interpretation of the Constitution, the dissent would give school boards a free hand to make decisions on the basis of race—an approach reminiscent of that advocated by the segregationists in Brown v. Board of Education, 347 U. S.483 (1954). This approach is just as wrong today as it was a half-century ago. The Constitution and our cases require us to be much more demanding before permitting local school boards to make decisions based on race. I    The dissent repeatedly claims that the school districts are threatened with resegregation and that they will succumb to that threat if these plans are declared unconstitutional. It also argues that these plans can be justified as part of the school boards’ attempts to “eradicat[e] earlier school segregation.” See, e.g. , post , at 4. Contrary to the dissent’s rhetoric, neither of these school districts is threatened with resegregation, and neither is constitutionally compelled or permitted to undertake race-based remediation. Racial imbalance is not segregation, and the mere incantation of terms like resegregation and remediation cannot make up the difference. A    Because this Court has authorized and required race-based remedial measures to address de jure segregation, it is important to define segregation clearly and to distinguish it from racial imbalance. In the context of public schooling, segregation is the deliberate operation of a school system to “carry out a governmental policy to separate pupils in schools solely on the basis of race.” Swann v. Charlotte-Mecklenburg Bd. of Ed. , 402 U. S. 1 , 6 (1971); see also Monroe v. Board of Comm’rs of Jackson , 391 U. S. 450 , 452 (1968). In Brown, this Court declared that segregation was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Swann , supra , at 6; see also Green v. School Bd. of New Kent Cty. , 391 U. S. 430 , 435 (1968) (“[T]he State, acting through the local school board and school officials, organized and operated a dual system, part ‘white’ and part ‘Negro.’ It was such dual systems that 14 years ago Brown I [, 347 U. S. 483 ,] held unconstitutional and a year later Brown II [, 349 U. S. 294 (1955)] held must be abolished”) .[ Footnote 1 ] Racial imbalance is the failure of a school district’s individual schools to match or approximate the demographic makeup of the student population at large. Cf. Washington v. Seattle School Dist. No. 1 , 458 U. S. 457 , 460 (1982). Racial imbalance is not segregation.[ Footnote 2 ] Although presently observed racial imbalance might result from past de jure segregation, racial imbalance can also result from any number of innocent private decisions, including voluntary housing choices. See Swann , supra , at 25–26; Missouri v. Jenkins , 515 U. S. 70 , 116 (1995) (Thomas, J., concurring). Because racial imbalance is not inevitably linked to unconstitutional segregation, it is not unconstitutional in and of itself. Dayton Bd. of Ed. v. Brinkman , 433 U. S. 406 , 413 (1977); Dayton Bd. of Ed. v. Brinkman , 443 U. S. 526 , 531, n. 5 (1979) (“Racial imbalance … is not per se a constitutional violation”); Freeman v. Pitts , 503 U. S. 467 , 494 (1992); see also Swann , supra , at 31–32; cf. Milliken v. Bradley , 418 U. S. 717 , 740–741, and n. 19 (1974).    Although there is arguably a danger of racial imbalance in schools in Seattle and Louisville, there is no danger of resegregation. No one contends that Seattle has established or that Louisville has reestablished a dual school system that separates students on the basis of race. The statistics cited in Appendix A to the dissent are not to the contrary. See post , at 69–72. At most, those statistics show a national trend toward classroom racial imbalance. However, racial imbalance without intentional state action to separate the races does not amount to segregation. To raise the specter of resegregation to defend these programs is to ignore the meaning of the word and the nature of the cases before us.[ Footnote 3 ] B    Just as the school districts lack an interest in preventing resegregation, they also have no present interest in remedying past segregation. The Constitution generally prohibits government race-based decisionmaking, but this Court has authorized the use of race-based measures for remedial purposes in two narrowly defined circumstances. First, in schools that were formerly segregated by law, race-based measures are sometimes constitutionally compelled to remedy prior school segregation. Second, in Croson , the Court appeared willing to authorize a government unit to remedy past discrimination for which it was responsible. Richmond v. J. A. Croson Co. , 488 U. S. 469 , 504 (1989). Without explicitly resting on either of these strands of doctrine, the dissent repeatedly invokes the school districts’ supposed interests in remedying past segregation. Properly analyzed, though, these plans do not fall within either existing category of permissible race-based remediation. 1    The Constitution does not permit race-based government decisionmaking simply because a school district claims a remedial purpose and proceeds in good faith with arguably pure motives. Grutter v. Bollinger , 539 U. S. 306 , 371 (2003) (Thomas, J., concurring in part and dissenting in part) (citing Adarand Constructors, Inc. v. Peńa , 515 U. S. 200 , 239 (1995) (Scalia, J., concurring in part and concurring in judgment)). Rather, race-based government decisionmaking is categorically prohibited unless narrowly tailored to serve a compelling interest. Grutter , supra , at 326; see also Part II–A, infra . This exacting scrutiny “has proven automatically fatal” in most cases. Jenkins , supra , at 121 (Thomas, J., concurring); cf. Hirabayashi v. United States , 320 U. S. 81 , 100 (1943) (“[R]acial discriminations are in most circumstances irrelevant and therefore prohibited”). And appropriately so. “The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.” Grutter , supra , at 353 (opinion of Thomas, J.). Therefore, as a general rule, all race-based government decisionmaking—regardless of context—is unconstitutional. 2    This Court has carved out a narrow exception to that general rule for cases in which a school district has a “history of maintaining two sets of schools in a single school system deliberately operated to carry out a governmental policy to separate pupils in schools solely on the basis of race.”[ Footnote 4 ] See Swann , 402 U. S., at 5–6. In such cases, race-based remedial measures are sometimes required.[ Footnote 5 ] Green , 391 U. S., at 437–438; cf. United States v. Fordice , 505 U. S. 717 , 745 (1992) (Thomas, J., concurring).[ Footnote 6 ] But without a history of state-enforced racial separation, a school district has no affirmative legal obligation to take race-based remedial measures to eliminate segregation and its vestiges.    Neither of the programs before us today is compelled as a remedial measure, and no one makes such a claim. Seattle has no history of de jure segregation; therefore, the Constitution did not require Seattle’s plan.[ Footnote 7 ] Although Louisville once operated a segregated school system and was subject to a Federal District Court’s desegregation decree, see ante , at 7; Hampton v. Jefferson Cty. Bd. of Ed., 102 F. Supp. 2d 358, 376–377 (WD Ky. 2000), that decree was dissolved in 2000, id. , at 360. Since then, no race-based remedial measures have been required in Louisville. Thus, the race-based student-assignment plan at issue here, which was instituted the year after the dissolution of the desegregation decree, was not even arguably required by the Constitution. 3    Aside from constitutionally compelled remediation in schools, this Court has permitted government units to remedy prior racial discrimination only in narrow circumstances. See Wygant v. Jackson Bd. of Ed. , 476 U. S. 267 , 277 (1986) (plurality opinion). Regardless of the constitutional validity of such remediation, see Croson , supra , at 524–525 (Scalia, J., concurring in judgment), it does not apply here. Again, neither school board asserts that its race-based actions were taken to remedy prior discrimination. Seattle provides three forward-looking—as opposed to remedial—justifications for its race-based assignment plan. Brief for Respondents in No. 05–908, pp. 24–34. Louisville asserts several similar forward-looking interests, Brief for Respondents in No. 05–915, pp. 24–29, and at oral argument, counsel for Louisville disavowed any claim that Louisville’s argument “depend[ed] in any way on the prior de jure segregation,” Tr. of Oral Arg. in No. 05–915, p. 38.    Furthermore, for a government unit to remedy past discrimination for which it was responsible, the Court has required it to demonstrate “a ‘strong basis in evidence for its conclusion that remedial action was necessary.’ ” Croson , 488 U. S., at 500 (quoting Wygant , supra , at 277 (plurality opinion)). Establishing a “strong basis in evidence” requires proper findings regarding the extent of the government unit’s past racial discrimination. Croson , 488 U. S., at 504. The findings should “define the scope of any injury [and] the necessary remedy,” id., at 505, and must be more than “inherently unmeasurable claims of past wrongs,” id., at 506. Assertions of general societal discrimination are plainly insufficient. Id., at 499, 504; Wygant , supra , at 274 (plurality opinion); cf. Regents of Univ. of Cal. v. Bakke , 438 U. S. 265 , 310 (1978) (opinion of Powell, J.). Neither school district has made any such specific findings. For Seattle, the dissent attempts to make up for this failing by adverting to allegations made in past complaints filed against the Seattle school district. However, allegations in complaints cannot substitute for specific findings of prior discrimination—even when those allegations lead to settlements with complaining parties. Cf. Croson , supra , at 505; Wygant , supra , at 279, n. 5 (plurality opinion). As for Louisville, its slate was cleared by the District Court’s 2000 dissolution decree, which effectively declared that there were no longer any effects of de jure discrimination in need of remediation.[ Footnote 8 ]    Despite the dissent’s repeated intimation of a remedial purpose, neither of the programs in question qualifies as a permissible race-based remedial measure. Thus, the programs are subject to the general rule that government race-based decisionmaking is unconstitutional. C    As the foregoing demonstrates, racial balancing is sometimes a constitutionally permissible remedy for the discrete legal wrong of de jure segregation, and when directed to that end, racial balancing is an exception to the general rule that government race-based decisionmaking is unconstitutional. Perhaps for this reason, the dissent conflates the concepts of segregation and racial imbalance: If racial imbalance equates to segregation, then it must also be constitutionally acceptable to use racial balancing to remedy racial imbalance.    For at least two reasons, however, it is wrong to place the remediation of segregation on the same plane as the remediation of racial imbalance. First, as demonstrated above, the two concepts are distinct. Although racial imbalance can result from de jure segregation, it does not necessarily, and the further we get from the era of state-sponsored racial separation, the less likely it is that racial imbalance has a traceable connection to any prior segregation. See Freeman , 503 U. S., at 496; Jenkins , 515 U. S., at 118 (Thomas, J., concurring).    Second, a school cannot “remedy” racial imbalance in the same way that it can remedy segregation. Remediation of past de jure segregation is a one-time process involving the redress of a discrete legal injury inflicted by an identified entity. At some point, the discrete injury will be remedied, and the school district will be declared unitary. See Swann , 402 U. S., at 31. Unlike de jure segregation, there is no ultimate remedy for racial imbalance. Individual schools will fall in and out of balance in the natural course, and the appropriate balance itself will shift with a school district’s changing demographics. Thus, racial balancing will have to take place on an indefinite basis—a continuous process with no identifiable culpable party and no discernable end point. In part for those reasons, the Court has never permitted outright racial balancing solely for the purpose of achieving a particular racial balance. II    Lacking a cognizable interest in remediation, neither of these plans can survive strict scrutiny because neither plan serves a genuinely compelling state interest. The dissent avoids reaching that conclusion by unquestioningly accepting the assertions of selected social scientists while completely ignoring the fact that those assertions are the subject of fervent debate. Ultimately, the dissent’s entire analysis is corrupted by the considerations that lead it initially to question whether strict scrutiny should apply at all. What emerges is a version of “strict scrutiny” that combines hollow assurances of harmlessness with reflexive acceptance of conventional wisdom. When it comes to government race-based decisionmaking, the Constitution demands more. A    The dissent claims that “the law requires application here of a standard of review that is not ‘strict’ in the traditional sense of that word.” Post , at 36. This view is informed by dissents in our previous cases and the concurrences of two Court of Appeals judges. Post, at 34–36 (citing 426 F. 3d 1162, 1193–1194 (CA9 2005) (Kozinski, J., concurring); Comfort v. Lynn School Comm., 418 F. 3d 1, 28–29 (CA1 2005) (Boudin, C. J., concurring)). Those lower court judges reasoned that programs like these are not “aimed at oppressing blacks” and do not “seek to give one racial group an edge over another.” Comfort , supra , at 27 (Boudin, C. J., concurring); 426 F. 3d, at 1193 (Kozinski, J., concurring). They were further persuaded that these plans differed from other race-based programs this Court has considered because they are “certainly more benign than laws that favor or disfavor one race, segregate by race, or create quotas for or against a racial group,” Comfort , 418 F. 3d, at 28 (Boudin, C. J., concurring), and they are “far from the original evils at which the Fourteenth Amendment was addressed,” id., at 29; 426 F. 3d, at 1195 (Kozinski, J., concurring). Instead of strict scrutiny, Judge Kozinski would have analyzed the plans under “robust and realistic rational basis review.” Id., at 1194.    These arguments are inimical to the Constitution and to this Court’s precedents.[ Footnote 9 ] We have made it unusually clear that strict scrutiny applies to every racial classification. Adarand , 515 U. S., at 227; Grutter , 539 U. S., at 326; Johnson v. California , 543 U. S. 499 , 505 (2005) (“We have insisted on strict scrutiny in every context, even for so-called ‘benign’ racial classifications”).[ Footnote 10 ] There are good reasons not to apply a lesser standard to these cases. The constitutional problems with government race-based decisionmaking are not diminished in the slightest by the presence or absence of an intent to oppress any race or by the real or asserted well-meaning motives for the race-based decisionmaking. Adarand , 515 U. S., at 228–229. Purportedly benign race-based decisionmaking suffers the same constitutional infirmity as invidious race-based decisionmaking. Id., at 240 (Thomas, J., concurring in part and concurring in judgment) (“As far as the Constitution is concerned, it is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged”).    Even supposing it mattered to the constitutional analysis, the race-based student assignment programs before us are not as benign as the dissent believes. See post , at 34–35. “[R]acial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination.” Adarand , supra , at 241 (opinion of Thomas, J.). As these programs demonstrate, every time the government uses racial criteria to “bring the races together,” post , at 29, someone gets excluded, and the person excluded suffers an injury solely because of his or her race. The petitioner in the Louisville case received a letter from the school board informing her that her kindergartener would not be allowed to attend the school of petitioner’s choosing because of the child’s race. App. in No. 05–915, p. 97. Doubtless, hundreds of letters like this went out from both school boards every year these race-based assignment plans were in operation. This type of exclusion, solely on the basis of race, is precisely the sort of government action that pits the races against one another, exacerbates racial tension, and “provoke[s] resentment among those who believe that they have been wronged by the government’s use of race.” Adarand , supra , at 241 (opinion of Thomas, J.). Accordingly, these plans are simply one more variation on the government race-based decisionmaking we have consistently held must be subjected to strict scrutiny. Grutter , supra , at 326. B    Though the dissent admits to discomfort in applying strict scrutiny to these plans, it claims to have nonetheless applied that exacting standard. But in its search for a compelling interest, the dissent casually accepts even the most tenuous interests asserted on behalf of the plans, grouping them all under the term “ ‘integration.’ ” See post , at 37. “ ‘[I]ntegration,’ ” we are told, has “three essential elements.” Ibid. None of these elements is compelling. And the combination of the three unsubstantiated elements does not produce an interest any more compelling than that represented by each element independently. 1    According to the dissent, integration involves “an interest in setting right the consequences of prior conditions of segregation.” Post , at 37. For the reasons explained above, the records in these cases do not demonstrate that either school board’s plan is supported by an interest in remedying past discrimination. Part I–B, supra .    Moreover, the school boards have no interest in remedying the sundry consequences of prior segregation unrelated to schooling, such as “housing patterns, employment practices, economic conditions, and social attitudes.” Post , at 38. General claims that past school segregation affected such varied societal trends are “too amorphous a basis for imposing a racially classified remedy,” Wygant , 476 U. S., at 276 (plurality opinion), because “[i]t is sheer speculation” how decades-past segregation in the school system might have affected these trends, see Croson , 488 U. S., at 499. Consequently, school boards seeking to remedy those societal problems with race-based measures in schools today would have no way to gauge the proper scope of the remedy. Id., at 498. Indeed, remedial measures geared toward such broad and unrelated societal ills have “ ‘no logical stopping point,’ ” ibid. , and threaten to become “ageless in their reach into the past, and timeless in their ability to affect the future,” Wygant , supra , at 276 (plurality opinion). See Grutter , 539 U. S., at 342 (stating the “requirement that all governmental use of race must have a logical end point”).    Because the school boards lack any further interest in remedying segregation, this element offers no support for the purported interest in “integration.” 2    Next, the dissent argues that the interest in integration has an educational element. The dissent asserts that racially balanced schools improve educational outcomes for black children. In support, the dissent unquestioningly cites certain social science research to support propositions that are hotly disputed among social scientists. In reality, it is far from apparent that coerced racial mixing has any educational benefits, much less that integration is necessary to black achievement.    Scholars have differing opinions as to whether educational benefits arise from racial balancing. Some have concluded that black students receive genuine educational benefits. See, e.g. , Crain & Mahard, Desegregation and Black Achievement: A Review of the Research, 42 L. & Contemp. Probs. 17, 48 (1978). Others have been more circumspect. See, e.g. , Henderson, Greenberg, Schneider, Uribe, & Verdugo, High Quality Schooling for African American Students, in Beyond Desegregation 166 (M. Shujaa ed. 1996) (“Perhaps desegregation does not have a single effect, positive or negative, on the academic achievement of African American students, but rather some strategies help, some hurt, and still others make no difference whatsoever. It is clear to us that focusing simply on demographic issues detracts from focusing on improving schools”). And some have concluded that there are no demonstrable educational benefits. See, e.g. , Armor & Rossell, Desegregation and Resegregation in the Public Schools, in Beyond the Color Line: New Perspectives on Race and Ethnicity in America 239, 251 (A. Thernstrom & S. Thernstrom eds. 2002).    The amicus briefs in the cases before us mirror this divergence of opinion. Supporting the school boards, one amicus has assured us that “both early desegregation research and recent statistical and econometric analyses … indicate that there are positive effects on minority student achievement scores arising from diverse school settings.” Brief for American Educational Research Association as Amicus Curiae 10. Another brief claims that “school desegregation has a modest positive impact on the achievement of African-American students.” App. to Brief for 553 Social Scientists as Amici Curiae 13–14 (footnote omitted). Yet neither of those briefs contains specific details like the magnitude of the claimed positive effects or the precise demographic mix at which those positive effects begin to be realized. Indeed, the social scientists’ brief rather cautiously claims the existence of any benefit at all, describing the “positive impact” as “modest,” id., at 13, acknowledging that “there appears to be little or no effect on math scores,” id., at 14, and admitting that the “underlying reasons for these gains in achievement are not entirely clear,” id., at 15.[ Footnote 11 ]    Other amici dispute these findings. One amicus reports that “[i]n study after study, racial composition of a student body, when isolated, proves to be an insignificant determinant of student achievement.” Brief for Dr. John Murphy et al. as Amici Curiae in No. 05–908, p. 8; see also id. , at 9 (“[T]here is no evidence that diversity in the K–12 classroom positively affects student achievement”). Another amicus surveys several social science studies and concludes that “a fair and comprehensive analysis of the research shows that there is no clear and consistent evidence of [educational] benefits.” Brief for David J. Armor et al. as Amici Curiae 29.     Add to the inconclusive social science the fact of black achievement in “racially isolated” environments. See T. Sowell, Education: Assumptions Versus History 7–38 (1986). Before Brown , the most prominent example of an exemplary black school was Dunbar High School. Id., at 29 (“[I]n the period 1918–1923, Dunbar graduates earned fifteen degrees from Ivy League colleges, and ten degrees from Amherst, Williams, and Wesleyan”). Dunbar is by no means an isolated example. See id., at 10–32 (discussing other successful black schools); Walker, Can Institutions Care? Evidence from the Segregated Schooling of African American Children, in Beyond Desegregation 209–226 (M. Shujaa ed. 1996); see also T. Sowell, Affirmative Action Around the World: An Empirical Study 141–165 (2004). Even after Brown , some schools with predominantly black enrollments have achieved outstanding educational results. See, e.g. , S. Carter, No Excuses: Lessons from 21 High-Performing, High-Poverty Schools 49–50, 53–56, 71–73, 81–84, 87–88 (2001); A. Thernstrom & S. Thernstrom, No Excuses: Closing the Racial Gap in Learning 43–64 (2003); see also L. Izumi, They Have Overcome: High-Poverty, High-Performing Schools in California (2002) (chronicling exemplary achievement in predominantly Hispanic schools in California). There is also evidence that black students attending historically black colleges achieve better academic results than those attending predominantly white colleges. Grutter , supra , at 364–365 (Thomas, J., concurring in part and concurring in judgment) (citing sources); see also Fordice , 505 U. S., at 748–749 (Thomas, J., concurring).    The Seattle school board itself must believe that racial mixing is not necessary to black achievement. Seattle operates a K–8 “African-American Academy,” which has a “nonwhite” enrollment of 99%. See App. in No. 05–908, p. 227a; Reply Brief in No. 05–908, p. 13, n. 13. That school was founded in 1990 as part of the school board’s effort to “increase academic achievement.”[ Footnote 12 ] See African American Academy History, online at http://www. seattleschools.org/schools/aaa/history.htm (all Internet materials as visited June 26, 2007, and available in Clerk of Court’s case file). According to the school’s most recent annual report, “[a]cademic excellence” is its “primary goal.” See African American Academy 2006 Annual Report, p. 2, online at http://www.seattleschools.org/area/ siso/reports/anrep/altern/938.pdf. This racially imbalanced environment has reportedly produced test scores “higher across all grade levels in reading, writing and math.” Ibid. Contrary to what the dissent would have predicted, see post , at 38–39, the children in Seattle’s African American Academy have shown gains when placed in a “highly segregated” environment.    Given this tenuous relationship between forced racial mixing and improved educational results for black children, the dissent cannot plausibly maintain that an educational element supports the integration interest, let alone makes it compelling.[ Footnote 13 ] See Jenkins , 515 U. S., at 121–122 (Thomas, J., concurring) (“[T]here is no reason to think that black students cannot learn as well when surrounded by members of their own race as when they are in an integrated environment”).    Perhaps recognizing as much, the dissent argues that the social science evidence is “strong enough to permit a democratically elected school board reasonably to determine that this interest is a compelling one.” Post , at 38. This assertion is inexplicable. It is not up to the school boards—the very government entities whose race-based practices we must strictly scrutinize—to determine what interests qualify as compelling under the Fourteenth Amendment to the United States Constitution. Rather, this Court must assess independently the nature of the interest asserted and the evidence to support it in order to determine whether it qualifies as compelling under our precedents. In making such a determination, we have deferred to state authorities only once, see Grutter , 539 U. S., at 328–330, and that deference was prompted by factors uniquely relevant to higher education. Id., at 328 (“Our holding today is in keeping with our tradition of giving a degree of deference to a university’s academic decisions”). The dissent’s proposed test—whether sufficient social science evidence supports a government unit’s conclusion that the interest it asserts is compelling—calls to mind the rational-basis standard of review the dissent purports not to apply, post , at 36-37. See Williamson v. Lee Optical of Okla., Inc. , 348 U. S. 483 , 488 (1955) (“It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it”). Furthermore, it would leave our equal-protection jurisprudence at the mercy of elected government officials evaluating the evanescent views of a handful of social scientists. To adopt the dissent’s deferential approach would be to abdicate our constitutional responsibilities.[ Footnote 14 ] 3    Finally, the dissent asserts a “democratic element” to the integration interest. It defines the “democratic element” as “an interest in producing an educational environment that reflects the ‘pluralistic society’ in which our children will live.” Post , at 39.[ Footnote 15 ] Environmental reflection, though, is just another way to say racial balancing. And “[p]referring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake.” Bakke , 438 U. S., at 307 (opinion of Powell, J.). “This the Constitution forbids.” Ibid.; Grutter , supra, at 329–330; Freeman , 503 U. S., at 494.    Navigating around that inconvenient authority, the dissent argues that the racial balancing in these plans is not an end in itself but is instead intended to “teac[h] children to engage in the kind of cooperation among Americans of all races that is necessary to make a land of three hundred million people one Nation.” Post , at 39–40. These “generic lessons in socialization and good citizenship” are too sweeping to qualify as compelling interests. Grutter , 539 U. S., at 348 (Scalia, J., concurring in part and dissenting in part). And they are not “uniquely relevant” to schools or “uniquely ‘teachable’ in a formal educational setting.” Id., at 347. Therefore, if governments may constitutionally use racial balancing to achieve these aspirational ends in schools, they may use racial balancing to achieve similar goals at every level—from state-sponsored 4–H clubs, see Bazemore v. Friday , 478 U. S. 385 , 388–390 (1986) (Brennan, J., concurring), to the state civil service. See Grutter , 539 U. S. 347 –348 (opinion of Scalia, J.).    Moreover, the democratic interest has no durational limit, contrary to Grutter ’s command. See id., at 342; see also Croson , 488 U. S., at 498; Wygant , 476 U. S., at 275 (plurality opinion). In other words, it will always be important for students to learn cooperation among the races. If this interest justifies race-conscious measures today, then logically it will justify race-conscious measures forever. Thus, the democratic interest, limitless in scope and “timeless in [its] ability to affect the future,” id., at 276 (plurality opinion), cannot justify government race-based decisionmaking.[ Footnote 16 ]    In addition to these defects, the democratic element of the integration interest fails on the dissent’s own terms. The dissent again relies upon social science research to support the proposition that state-compelled racial mixing teaches children to accept cooperation and improves racial attitudes and race relations. Here again, though, the dissent overstates the data that supposedly support the interest.    The dissent points to data that indicate that “black and white students in desegregated schools are less racially prejudiced than those in segregated schools.” Post , at 40 (internal quotation marks omitted). By the dissent’s account, improvements in racial attitudes depend upon the increased contact between black and white students thought to occur in more racially balanced schools. There is no guarantee, however, that students of different races in the same school will actually spend time with one another. Schools frequently group students by academic ability as an aid to efficient instruction, but such groupings often result in classrooms with high concentrations of one race or another. See, e.g. , Yonezawa, Wells, & Serna, Choosing Tracks: “Freedom of Choice” in Detracting Schools, 39 Am. Ed. Research J., No. 1, p. 38 (Spring 2002); Mickelson, Subverting Swann: First- and Second-Generation Segregation in the Charlotte-Mecklenburg Schools, 38 Am. Ed. Research J., No. 2, pp. 233–234 (Summer 2001) (describing this effect in schools in Charlotte, North Carolina). In addition to classroom separation, students of different races within the same school may separate themselves socially. See Hallinan & Williams, Interracial Friendship Choices in Secondary Schools, 54 Am. Sociological Rev., No. 1, pp. 72–76 (Feb. 1989); see also Clotfelter, Interracial Contact in High School Extracurricular Activities, 34 Urban Rev., No. 1, pp. 41–43 (Mar. 2002). Therefore, even supposing interracial contact leads directly to improvements in racial attitudes and race relations, a program that assigns students of different races to the same schools might not capture those benefits. Simply putting students together under the same roof does not necessarily mean that the students will learn together or even interact.    Furthermore, it is unclear whether increased interracial contact improves racial attitudes and relations.[ Footnote 17 ] One researcher has stated that “the reviews of desegregation and intergroup relations were unable to come to any conclusion about what the probable effects of desegregation were … [;] virtually all of the reviewers determined that few, if any, firm conclusions about the impact of desegregation on intergroup relations could be drawn.” Schofield, School Desegregation and Intergroup Relations: A Review of the Literature, in 17 Review of Research in Education 356 (G. Grant ed. 1991). Some studies have even found that a deterioration in racial attitudes seems to result from racial mixing in schools. See N. St. John, School Desegregation Outcomes for Children 67–68 (1975) (“A glance at [the data] shows that for either race positive findings are less common than negative findings”); Stephan, The Effects of School Desegregation: An Evaluation 30 Years After Brown, in Advances in Applied Social Psychology 183–186 (M. Saks & L. Saxe eds. 1986). Therefore, it is not nearly as apparent as the dissent suggests that increased interracial exposure automatically leads to improved racial attitudes or race relations.    Given our case law and the paucity of evidence supporting the dissent’s belief that these plans improve race relations, no democratic element can support the integration interest.[ Footnote 18 ] 4    The dissent attempts to buttress the integration interest by claiming that it follows a fortiori from the interest this Court recognized as compelling in Grutter . Post , at 41. Regardless of the merit of Grutter , the compelling interest recognized in that case cannot support these plans. Grutter recognized a compelling interest in a law school’s attainment of a diverse student body. 539 U. S., at 328. This interest was critically dependent upon features unique to higher education: “the expansive freedoms of speech and thought associated with the university environment,” the “special niche in our constitutional tradition” occupied by universities, and “[t]he freedom of a university to make its own judgments as to education[,] includ[ing] the selection of its student body.” Id., at 329 (internal quotation marks omitted). None of these features is present in elementary and secondary schools. Those schools do not select their own students, and education in the elementary and secondary environment generally does not involve the free interchange of ideas thought to be an integral part of higher education. See 426 F. 3d, at 1208 (Bea, J., dissenting). Extending Grutter to this context would require us to cut that holding loose from its theoretical moorings. Thus, only by ignoring Grutter ’s reasoning can the dissent claim that recognizing a compelling interest in these cases is an a fortiori application of Grutter . C    Stripped of the baseless and novel interests the dissent asserts on their behalf, the school boards cannot plausibly maintain that their plans further a compelling interest. As I explained in Grutter , only “those measures the State must take to provide a bulwark against anarchy … or to prevent violence” and “a government’s effort to remedy past discrimination for which it is responsible” constitute compelling interests. 539 U. S., at 351–352, 353. Neither of the parties has argued—nor could they—that race-based student assignment is necessary to provide a bulwark against anarchy or to prevent violence. And as I explained above, the school districts have no remedial interest in pursuing these programs. See Part I–B, supra . Accordingly, the school boards cannot satisfy strict scrutiny. These plans are unconstitutional. III    Most of the dissent’s criticisms of today’s result can be traced to its rejection of the color-blind Constitution. See post , at 29. The dissent attempts to marginalize the notion of a color-blind Constitution by consigning it to me and Members of today’s plurality.[ Footnote 19 ] See ibid.; see also post, at 61. But I am quite comfortable in the company I keep. My view of the Constitution is Justice Harlan’s view in Plessy: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy v. Ferguson , 163 U. S. 537 , 559 (1896) (dissenting opinion). And my view was the rallying cry for the lawyers who litigated Brown . See, e.g. , Brief for Appellants in Brown v. Board of Education , O. T. 1953, Nos. 1, 2, and 4 p. 65 (“That the Constitution is color blind is our dedicated belief”); Brief for Appellants in Brown v. Board of Education , O. T. 1952, No. 1, p. 5 (“The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone”);[ Footnote 20 ] see also In Memoriam: Honorable Thurgood Marshall, Proceedings of the Bar and Officers of the Supreme Court of the United States, X (1993) (remarks of Judge Motley) (“Marshall had a ‘Bible’ to which he turned during his most depressed moments. The ‘Bible’ would be known in the legal community as the first Mr. Justice Harlan’s dissent in Plessy v. Ferguson , 163 U. S. 537 , 552 (1896). I do not know of any opinion which buoyed Marshall more in his pre- Brown days …”).    The dissent appears to pin its interpretation of the Equal Protection Clause to current societal practice and expectations, deference to local officials, likely practical consequences, and reliance on previous statements from this and other courts. Such a view was ascendant in this Court’s jurisprudence for several decades. It first appeared in Plessy, where the Court asked whether a state law providing for segregated railway cars was “a reasonable regulation.” 163 U. S., at 550. The Court deferred to local authorities in making its determination, noting that in inquiring into reasonableness “there must necessarily be a large discretion on the part of the legislature.” Ibid. The Court likewise paid heed to societal practices, local expectations, and practical consequences by looking to “the established usages, customs and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order.” Ibid. Guided by these principles, the Court concluded: “[W]e cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable, or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia.” Id., at 550–551.    The segregationists in Brown embraced the arguments the Court endorsed in Plessy . Though Brown decisively rejected those arguments, today’s dissent replicates them to a distressing extent. Thus, the dissent argues that “[e]ach plan embodies the results of local experience and community consultation.” Post , at 47. Similarly, the segregationists made repeated appeals to societal practice and expectation. See, e.g. , Brief for Appellees on Reargument in Briggs v. Elliott , O. T. 1953, No. 2, p. 76 (“[A] State has power to establish a school system which is capable of efficient administration, taking into account local problems and conditions”).[ Footnote 21 ] The dissent argues that “weight [must be given] to a local school board’s knowledge, expertise, and concerns,” post , at 48, and with equal vigor, the segregationists argued for deference to local authorities. See, e.g. , Brief for Kansas on Reargument in Brown v. Board of Education , O. T. 1953, No. 1, p. 14 (“We advocate only a concept of constitutional law that permits determinations of state and local policy to be made on state and local levels. We defend only the validity of the statute that enables the Topeka Board of Education to determine its own course”).[ Footnote 22 ] The dissent argues that today’s decision “threatens to substitute for present calm a disruptive round of race-related litigation,” post , at 2, and claims that today’s decision “risks serious harm to the law and for the Nation,” post, at 65. The segregationists also relied upon the likely practical consequences of ending the state-imposed system of racial separation. See, e.g. , Brief for Appellees on Reargument in Davis v. County School Board , O. T. 1953, No. 3, p. 37 (“Yet a holding that school segregation by race violates the Constitution will result in upheaval in all of those places not now subject to Federal judicial scrutiny. This Court has made many decisions of widespread effect; none would affect more people more directly in more fundamental interests and, in fact, cause more chaos in local government than a reversal of the decision in this case”).[ Footnote 23 ] And foreshadowing today’s dissent, the segregationists most heavily relied upon judicial precedent. See, e.g. , Brief for Appellees on Reargument in Briggs v. Elliott , O. T. 1953, No. 2, p. 59 (“[I]t would be difficult indeed to find a case so favored by precedent as is the case for South Carolina here”).[ Footnote 24 ]    The similarities between the dissent’s arguments and the segregationists’ arguments do not stop there. Like the dissent, the segregationists repeatedly cautioned the Court to consider practicalities and not to embrace too theoretical a view of the Fourteenth Amendment.[ Footnote 25 ] And just as the dissent argues that the need for these programs will lessen over time, the segregationists claimed that reliance on segregation was lessening and might eventually end.[ Footnote 26 ]    What was wrong in 1954 cannot be right today.[ Footnote 27 ] Whatever else the Court’s rejection of the segregationists’ arguments in Brown might have established, it certainly made clear that state and local governments cannot take from the Constitution a right to make decisions on the basis of race by adverse possession. The fact that state and local governments had been discriminating on the basis of race for a long time was irrelevant to the Brown Court. The fact that racial discrimination was preferable to the relevant communities was irrelevant to the Brown Court. And the fact that the state and local governments had relied on statements in this Court’s opinions was irrelevant to the Brown Court. The same principles guide today’s decision. None of the considerations trumpeted by the dissent is relevant to the constitutionality of the school boards’ race-based plans because no contextual detail—or collection of contextual details, post , at 2–22—can “provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race.” Adarand , 515 U. S., at 240 (Thomas, J., concurring in part and concurring in judgment).[ Footnote 28 ]    In place of the color-blind Constitution, the dissent would permit measures to keep the races together and proscribe measures to keep the races apart.[ Footnote 29 ] See post , at 28–34, 64–65. Although no such distinction is apparent in the Fourteenth Amendment, the dissent would constitutionalize today’s faddish social theories that embrace that distinction. The Constitution is not that malleable. Even if current social theories favor classroom racial engineering as necessary to “solve the problems at hand,” post , at 21, the Constitution enshrines principles independent of social theories. See Plessy , 163 U. S., at 559 (Harlan, J., dissenting) (“The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time … . But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. … Our Constitution is color-blind, and neither knows nor tolerates classes among citizens”). Indeed, if our history has taught us anything, it has taught us to beware of elites bearing racial theories.[ Footnote 30 ] See, e.g. , Dred Scott v. Sandford , 19 How. 393, 407 (1857) (“[T]hey [members of the “negro African race”] had no rights which the white man was bound to respect”). Can we really be sure that the racial theories that motivated Dred Scott and Plessy are a relic of the past or that future theories will be nothing but beneficent and progressive? That is a gamble I am unwilling to take, and it is one the Constitution does not allow. *  *  *    The plans before us base school assignment decisions on students’ race. Because “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens,” such race-based decisionmaking is unconstitutional. Plessy , supra, at 559 (Harlan, J., dissenting). I concur in the Chief Justice’s opinion so holding. Footnote 1 In this Court’s paradigmatic segregation cases, there was a local ordinance, state statute, or state constitutional provision requiring racial separation. See, e.g. , Brief for Petitioners in Bolling v. Sharpe , O. T. 1952, No. 4, pp. 28–30 (cataloging state laws requiring separa- tion of the races); id., at App. A (listing “Statutory and Consti- tutional Provisions in the States Where Segregation in Education is Institutionalized”). Footnote 2 The dissent refers repeatedly and reverently to “ ‘integration.’ ” However, outside of the context of remediation for past de jure segregation, “integration” is simply racial balancing. See post , at 37. Therefore, the school districts’ attempts to further “integrate” are properly thought of as little more than attempts to achieve a particular racial balance. Footnote 3 The dissent’s assertion that these plans are necessary for the school districts to maintain their “hard-won gains” reveals its conflation of segregation and racial imbalance. Post , at 38. For the dissent’s purposes, the relevant hard-won gains are the present racial compositions in the individual schools in Seattle and Louisville. However, the actual hard-won gain in these cases is the elimination of the vestiges of the system of state-enforced racial separation that once existed in Louisville. To equate the achievement of a certain statistical mix in several schools with the elimination of the system of systematic de jure segregation trivializes the latter accomplishment. Nothing but an interest in classroom aesthetics and a hypersensitivity to elite sensibilities justifies the school districts’ racial balancing programs. See Part II–B, infra . But “the principle of inherent equality that underlies and infuses our Constitution” required the disestablishment of de jure segregation. See Adarand Constructors, Inc. v. Peńa , 515 U. S. 200 , 240 (1995) (Thomas, J., concurring in part and concurring in judgment). Assessed in any objective manner, there is no comparison between the two. Footnote 4 The dissent makes much of the supposed difficulty of determining whether prior segregation was de jure or de facto . See, e.g. , post , at 19–20. That determination typically will not be nearly as difficult as the dissent makes it seem. In most cases, there either will or will not have been a state constitutional amendment, state statute, local ordinance, or local administrative policy explicitly requiring separation of the races. See, e.g. , n. 1, supra . And even if the determination is difficult, it is one the dissent acknowledges must be made to determine what remedies school districts are required to adopt. Post , at 43. Footnote 5 This Court’s opinion in McDaniel v. Barresi , 402 U. S. 39 (1971), fits comfortably within this framework. There, a Georgia school board voluntarily adopted a desegregation plan. At the time of Brown , v. Board of Education, 347 U. S. 483 (1954), Georgia’s Constitution required that “[s]eparate schools shall be provided for the white and colored races.” Ga. Const., Art. VII, §1, ch. 2–6401 (1948). Given that state law had previously required the school board to maintain a dual school system, the county was obligated to take measures to remedy its prior de jure segregation. This Court recognized as much in its opinion, which stated that the school board had an “affirmative duty to disestablish the dual school system.” McDaniel , supra , at 41. Footnote 6 As I have explained elsewhere, the remedies this Court authorized lower courts to compel in early desegregation cases like Green and Swann were exceptional. See Missouri v. Jenkins , 515 U. S. 70 , 124–125 (1995), (Thomas, J., concurring). Sustained resistance to Brown prompted the Court to authorize extraordinary race-conscious remedial measures (like compelled racial mixing) to turn the Constitution’s dictate to desegregate into reality. 515 U. S., at 125 (Thomas, J., concurring). Even if these measures were appropriate as remedies in the face of widespread resistance to Brown ’s mandate, they are not forever insulated from constitutional scrutiny. Rather, “such powers should have been temporary and used only to overcome the widespread resistance to the dictates of the Constitution.” 515 U. S., at 125 (Thomas, J., concurring). Footnote 7 Though the dissent cites every manner of complaint, record material, and scholarly article relating to Seattle’s race-based student assignment efforts, post , at 73–75, it cites no law or official policy that required separation of the races in Seattle’s schools. Nevertheless, the dissent tries to cast doubt on the historical fact that the Seattle schools were never segregated by law by citing allegations that the National Association for the Advancement of Colored People and other organizations made in court filings to the effect that Seattle’s schools were once segregated by law. See post , at 7–9, 23. These allegations were never proved and were not even made in this case. Indeed, the record before us suggests the contrary. See App. in No. 05–908, pp. 214a, 225a, 257a. Past allegations in another case provide no basis for resolving these cases. Footnote 8 Contrary to the dissent’s argument, post , at 44, the Louisville school district’s interest in remedying its past de jure segregation did vanish the day the District Court found that Louisville had eliminated the vestiges of its historic de jure segregation. See Hampton v. Jefferson Cty. Bd. of Ed., 102 F. Supp. 2d 358, at 360 (WD Ky. 2000). If there were further remediation to be done, the District Court could not logically have reached the conclusion that Louisville “ha[d] eliminated the vestiges associated with the former policy of segregation and its pernicious effects.” Ibid. Because Louisville could use race-based measures only as a remedy for past de jure segregation, it is not “incoherent,” post , at 56, to say that race-based decisionmaking was allowed to Louisville one day—while it was still remedying—and forbidden to it the next—when remediation was finished. That seemingly odd turnaround is merely a result of the fact that the remediation of de jure segregation is a jealously guarded exception to the Equal Protection Clause’s general rule against government race-based decisionmaking. Footnote 9 The dissent’s appeal to stare decisis , post , at 65, is particularly ironic in light of its apparent willingness to depart from these precedents, post , at 36–37. Footnote 10 The idea that government racial classifications must be subjected to strict scrutiny did not originate in Adarand . As early as Loving v. Virginia , 388 U. S. 1 (1967), this Court made clear that government action that “rest[s] solely upon distinctions drawn according to race” had to be “subjected to the ‘most rigid scrutiny.’ ” Id., at 11 (quoting Korematsu v. United States , 323 U. S. 214 , 216 (1944)); see also McLaughlin v. Florida , 379 U. S. 184 , 196 (1964) (requiring a statute drawing a racial classification to be “necessary, and not merely rationally related, to accomplishment of a permissible state policy”); id., at 197 (Harlan, J., concurring) (“The necessity test … should be equally applicable in a case involving state racial discrimination”). Footnote 11 At least one of the academic articles the dissent cites to support this proposition fails to establish a causal connection between the supposed educational gains realized by black students and racial mixing. See Hallinan, Diversity Effects on Student Outcomes: Social Science Evidence, 59 Ohio St. L. J. 733 (1998). In the pages following the ones the dissent cites, the author of that article remarks that “the main reason white and minority students perform better academically in majority white schools is likely that these schools provide greater opportunities to learn. In other words, it is not desegregation per se that improves achievement, but rather the learning advantages some desegregated schools provide.” Id., at 744. Evidence that race is a good proxy for other factors that might be correlated with educational benefits does not support a compelling interest in the use of race to achieve academic results. Footnote 12 Of course, if the Seattle school board were truly committed to the notion that diversity leads directly to educational benefits, operating a school with such a high “nonwhite” enrollment would be a shocking dereliction of its duty to educate the students enrolled in that school. Footnote 13 In fact, the available data from the Seattle school district appear to undercut the dissent’s view. A comparison of the test results of the schools in the last year the racial balancing program operated to the results in the 2004-to-2005 school year (in which student assignments were race-neutral) does not indicate the decline in black achieve- ment one would expect to find if black achievement were contin- gent upon a particular racial mix. See Washington State Report Card, online at http://reportcard.ospi.k12.wa.us/summary.aspx?schoolId= 1099&OrgType=4&reportLevel=School; http://reportcard.ospi.k12.wa.us/ summary.aspx?schoolId=1104&reportLevel=School&orgLinkId=1104&yrs=; http: // reportcard . ospi . k12 . wa . us / summary . aspx ? schoolId = 1061 & report Level = School & orgLinkId = 1061 & yrs = ; http: // reportcard . ospi.k12 . wa.us/ summary . aspx ? schoolId = 1043 & reportLevel = School & orgLinkId = 1043 & yrs= (showing that reading scores went up, not down, when Seattle’s race-based assignment program ended at Sealth High School, Ingraham High School, and Franklin High School—some of the schools most affected by the plan). Footnote 14 The dissent accuses me of “feel[ing] confident that, to end invidious discrimination, one must end all governmental use of race-conscious criteria” and chastises me for not deferring to democratically elected majorities. See post , at 62. Regardless of what Justice Breyer’s goals might be, this Court does not sit to “create a society that includes all Americans” or to solve the problems of “troubled inner city schooling.” Ibid. We are not social engineers. The United States Constitution dictates that local governments cannot make decisions on the basis of race. Consequently, regardless of the perceived negative effects of racial imbalance, I will not defer to legislative majorities where the Constitution forbids it.    It should escape no one that behind Justice Breyer’s veil of judicial modesty hides an inflated role for the Federal Judiciary. The dissent’s approach confers on judges the power to say what sorts of discrimination are benign and which are invidious. Having made that determination (based on no objective measure that I can detect), a judge following the dissent’s approach will set the level of scrutiny to achieve the desired result. Only then must the judge defer to a democratic majority. In my view, to defer to one’s preferred result is not to defer at all. Footnote 15 The notion that a “democratic” interest qualifies as a compelling interest (or constitutes a part of a compelling interest) is proposed for the first time in today’s dissent and has little basis in the Constitution or our precedent, which has narrowly restricted the interests that qualify as compelling. See Grutter v. Bollinger, 539 U. S. 306 , 351–354 (2003) (Thomas, J., concurring in part and dissenting in part). The Fourteenth Amendment does not enact the dissent’s newly minted understanding of liberty. See Lochner v. New York , 198 U. S. 45 , 75 (1905) (Holmes, J., dissenting) (“The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics”). Footnote 16 The dissent does not explain how its recognition of an interest in teaching racial understanding and cooperation here is consistent with the Court’s rejection of a similar interest in Wygant . In Wygant , a school district justified its race-based teacher-layoff program in part on the theory that “minority teachers provided ‘role models’ for minority students and that a racially ‘diverse’ faculty would improve the education of all students.” Grutter , supra , at 352 (opinion of Thomas, J.) (citing Brief for Respondents, O. T. 1984, No. 84–1340, pp. 27–28; 476 U. S., at 315 (Stevens, J., dissenting)). The Court rejected the interests asserted to justify the layoff program as insufficiently compelling. Wygant, 476 U. S., at 275–276 (plurality opinion); id., at 295 (White, J., concurring in judgment). If a school district has an interest in teaching racial understanding and cooperation, there is no logical reason why that interest should not extend to the composition of the teaching staff as well as the composition of the student body. The dissent’s reliance on this interest is, therefore, inconsistent with Wygant . Footnote 17 Outside the school context, this Court’s cases reflect the fact that racial mixing does not always lead to harmony and understanding. In Johnson v. California , 543 U. S. 499 (2005), this Court considered a California prison policy that separated inmates racially. Id., at 525–528 (Thomas, J., dissenting). That policy was necessary because of “numerous incidents of racial violence.” Id., at 502; id ., at 532–534 (Thomas, J., dissenting). As a result of this Court’s insistence on strict scrutiny of that policy, but see id., at 538–547, inmates in the California prisons were killed. See Beard v. Banks , 548 U. S. ___, ___ (2006) (Thomas, J., concurring in judgment) (noting that two were killed and hundreds were injured in race rioting subsequent to this Court’s decision in Johnson ). Footnote 18 After discussing the “democratic element,” the dissent repeats its assertion that the social science evidence supporting that interest is “sufficiently strong to permit a school board to determine … that this interest is compelling.” Post , at 40. Again, though, the school boards have no say in deciding whether an interest is compelling. Strict scrutiny of race-based government decisionmaking is more searching than Chevron -style administrative review for reasonableness. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. , 467 U. S. 837 , 845 (1984). Footnote 19 The dissent half-heartedly attacks the historical underpinnings of the color-blind Constitution. Post , at 28–29. I have no quarrel with the proposition that the Fourteenth Amendment sought to bring former slaves into American society as full members. Post, at 28 (citing Slaughter-House Cases , 16 Wall. 36, 71–72 (1873)). What the dissent fails to understand, however, is that the color-blind Constitution does not bar the government from taking measures to remedy past state-sponsored discrimination—indeed, it requires that such measures be taken in certain circumstances. See, e.g. , Part I–B, supra. Race-based government measures during the 1860’s and 1870’s to remedy state-enforced slavery were therefore not inconsistent with the color-blind Constitution. Footnote 20 See also Juris. Statement in Davis v. County School Board , O. T. 1952, No. 3, p. 8 (“[W]e take the unqualified position that the Fourteenth Amendment has totally stripped the state of power to make race and color the basis for governmental action”); Tr. of Oral Arg. in Brown v. Board of Education , O. T. 1952, No. 1, p. 7 (“We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens”); Tr. of Oral Arg. in Briggs v. Elliott , O. T. 1953, No. 2, p. 50 (“[T]he state is deprived of any power to make any racial classifications in any governmental field”). Footnote 21 See also Brief for Appellees in Davis v. County School Board , O. T. 1952, No. 3, p. 1 (“[T]he Court is asked … to outlaw the fixed policies of the several States which are based on local social conditions well known to the respective legislatures”); id., at 9 (“For this purpose, Virginia history and present Virginia conditions are important”); Tr. of Oral Arg. in Davis v. County School Board , O. T. 1952, No. 3, p. 57 (“[T]he historical background that exists, certainly in this Virginia situation, with all the strife and the history that we have shown in this record, shows a basis, a real basis, for the classification that has been made”); id., at 69 (describing the potential abolition of segregation as “contrary to the customs, the traditions and the mores of what we might claim to be a great people, established through generations, who themselves are fiercely and irrevocably dedicated to the preservation of the white and colored races”). Accord, post , at 68 (“Today, almost 50 years later, attitudes toward race in this Nation have changed dramatically. Many parents, white and black alike, want their children to attend schools with children of different races. Indeed, the very school districts that once spurned integration now strive for it. The long history of their efforts reveals the complexities and difficulties they have faced”); post, at 21 (emphasizing the importance of “local circumstances” and encouraging different localities to “try different solutions to common problems and gravitate toward those that prove most successful or seem to them best to suit their individual needs” (citations and internal quotation marks omitted)); post, at 48 (emphasizing the school districts’ “40-year history” during which both school districts have tried numerous approaches “to achieve more integrated schools”); post , at 63 (“[T]he histories of Louisville and Seattle reveal complex circumstances and a long tradition of conscientious efforts by local school boards”). Footnote 22 See also Brief for Appellees in Brown v. Board of Education , O. T. 1952, No. 1, p. 29 (“ ‘It is universally held, therefore, that each state shall determine for itself, subject to the observance of the fundamental rights and liberties guaranteed by the federal Constitution, how it shall exercise the police power … . And in no field is this right of the several states more clearly recognized than in that of public education’ ” (quoting Briggs v. Elliott, 98 F. Supp. 529, 532 (SC 1951))); Brief for Appellees in Briggs v. Elliott , O. T. 1952, No. 2, p. 7 (“Local self-government in local affairs is essential to the peace and happiness of each locality and to the strength and stability of our whole federal system. Nowhere is this more profoundly true than in the field of education”); Tr. of Oral Arg. in Briggs v. Elliott , O. T. 1952, No. 2, pp. 54–55 (“What is the great national and federal policy on this matter? Is it not a fact that the very strength and fiber of our federal system is local self-government in those matters for which local action is competent? Is it not of all the activities of government the one which most nearly approaches the hearts and minds of people, the question of the education of their young? Is it not the height of wisdom that the manner in which that shall be conducted should be left to those most immediately affected by it, and that the wishes of the parents, both white and colored, should be ascertained before their children are forced into what may be an unwelcome contact?”). Accord, post , at 48 (“[L]ocal school boards better understand their own communities and have a better knowledge of what in practice will best meet the educational needs of their pupils”); post , at 66 (“[W]hat of respect for democratic local decisionmaking by States and school boards?”); ibid. (explaining “that the Constitution grants local school districts a significant degree of leeway”). Footnote 23 See also Reply Brief for Appellees in Davis v. County School Board , O. T. 1953, No. 3, p. 17 (“The Court is … dealing with thousands of local school districts and schools. Is each to be the subject of litigation in the District Courts?”); Brief for Kansas on Reargument in Brown v. Board of Education , O. T. 1953, No. 1, p. 51 (“The delicate nature of the problem of segregation and the paramount interest of the State of Kansas in preserving the internal peace and tranquility of its people indicates that this is a question which can best be solved on the local level, at least until Congress declares otherwise”). Accord, post , at 61 (“At a minimum, the plurality’s views would threaten a surge of race-based litigation. Hundreds of state and federal statutes and regulations use racial classifications for educational or other purposes… . In many such instances, the contentious force of legal challenges to these classifications, meritorious or not, would displace earlier calm”); post, at 65 (“Indeed, the consequences of the approach the Court takes today are serious. Yesterday, the plans under review were lawful. Today, they are not”); post, at 66 (predicting “further litigation, aggravating race-related conflict”). Footnote 24 See also Statement of Appellees Opposing Jurisdiction and Motion to Dismiss or Affirm in Davis v. County School Board , O. T. 1952, No. 3, p. 5 (“[I]t would be difficult to find from any field of law a legal principle more repeatedly and conclusively decided than the one sought to be raised by appellants”); Brief for Appellees in Davis v. County School Board , O. T. 1953, No. 3, p. 46–47 (“If this case were to be decided solely on the basis of precedent, this brief could have been much more limited. There is ample precedent in the decisions of this Court to uphold school segregation”); Brief for Petitioners in Gebhart v. Belton , O. T. 1952, No. 5, p. 27 (“Respondents ask this Court to upset a long established and well settled principle recognized by numerous state Legislatures, and Courts, both state and federal, over a long period of years”); Tr. of Oral Arg. in Briggs v. Elliott , O. T. 1953, No. 2, p. 79 (“But be that doctrine what it may, somewhere, sometime to every principle comes a moment of repose when it has been so often announced, so confidently relied upon, so long continued, that it passes the limits of judicial discretion and disturbance… . We relied on the fact that this Court had not once but seven times, I think it is, pronounced in favor of the separate but equal doctrine. We relied on the fact that the courts of last appeal of some sixteen or eighteen States have passed upon the validity of the separate but equal doctrine vis-a-vis the Fourteenth Amendment. We relied on the fact that Congress has continuously since 1862 segregated its schools in the District of Columbia”); Brief for Appellees in Briggs v. Elliott , O. T. 1952, No. 2, App. D (collecting citations of state and federal cases “[w]hich [e]nunciate the [p]rinciple that [s]tate [l]aws [p]roviding for [r]acial [s]egregation in the [p]ublic [s]chools do not [c]onflict with the Fourteenth Amendment”). Accord, post , at 22 (“[T]he Court set forth in Swann a basic principle of constitutional law—a principle of law that has found wide acceptance in the legal culture” (citations and internal quotation marks omitted)); post, at 25 (“Lower state and federal courts had considered the matter settled and uncontroversial even before this Court decided Swann ”); post , at 26 (“Numerous state and federal courts explicitly relied upon Swann ’s guidance for decades to follow”); post, at 27 (stating “how lower courts understood and followed Swann ’s enunciation of the relevant legal principle”); post , at 30 (“The constitutional principle enunciated in Swann, reiterated in subsequent cases, and relied upon over many years, provides, and has widely been thought to provide, authoritative legal guidance”); post , at 61 (“[T]oday’s opinion will require setting aside the laws of several States and many local communities”); post , at 66 (“And what has happened to Swann? To McDaniel? To Crawford? To Harris? To School Committee of Boston? To Seattle School Dist. No. 1? After decades of vibrant life, they would all, under the plurality’s logic, be written out of the law”). Footnote 25 Compare Brief for Appellees in Davis v. County School Board , O. T. 1952, No. 3, p. 16–17 (“ ‘It is by such practical considerations based on experience rather than by theoretical inconsistencies that the question of equal protection is to be answered’ ” (quoting Railway Express Agency, Inc. v. New York, 336 U. S. 110 (1949))); Brief for Appellees on Reargument in Davis v. County School Board , O. T. 1953, No. 3, p. 76 (“The question is a practical one for them to solve; it is not subject to solution in the theoretical realm of abstract principles”); Tr. of Oral Arg. in Davis v. County School Board , O. T. 1953, No. 4, p. 86 (“[Y]ou cannot talk about this problem just in a vacuum in the manner of a law school discussion”), with post , at 57 (“The Founders meant the Constitution as a practical document”). Footnote 26 Compare Brief for Kansas on Reargument in Brown v. Board of Education , O. T. 1953, No. 1, p. 57 (“[T]he people of Kansas . . . are abandoning the policy of segregation whenever local conditions and local attitudes make it feasible”), Brief for Appellees on Reargument in Davis v. County School Board , O. T. 1953, No. 3, p. 76 (“As time passes, it may well be that segregation will end”), with post , at 19 (“[T]hey use race-conscious criteria in limited and gradually diminishing ways”); post , at 48 (“[E]ach plan’s use of race-conscious elements is diminished compared to the use of race in preceding integration plans”); post, at 55 (describing the “historically-diminishing use of race” in the school districts). Footnote 27 It is no answer to say that these cases can be distinguished from Brown because Brown involved invidious racial classifications whereas the racial classifications here are benign. See post , at 62. How does one tell when a racial classification is invidious? The segregationists in Brown argued that their racial classifications were benign, not invidious. See Tr. of Oral Arg. in Briggs v. Elliott , O. T. 1953, No. 2, p. 83 (“It [South Carolina] is confident of its good faith and intention to produce equality for all of its children of whatever race or color. It is convinced that the happiness, the progress and the welfare of these children is best promoted in segregated schools”); Brief for Appellees on Reargument in Davis v. County School Board , O. T. 1953, No. 3, p. 82–83 (“Our many hours of research and investigation have led only to confirmation of our view that segregation by race in Virginia’s public schools at this time not only does not offend the Constitution of the United States but serves to provide a better education for living for the children of both races”); Tr. of Oral Arg. in Davis v. County School Board , O. T. 1952, No. 3, p. 71 (“[T]o make such a transition, would undo what we have been doing, and which we propose to continue to do for the uplift and advancement of the education of both races. It would stop this march of progress, this onward sweep”). It is the height of arrogance for Members of this Court to assert blindly that their motives are better than others. Footnote 28 See also id., at 8–9 (“It has been urged that [these state laws and policies] derive validity as a consequence of a long duration supported and made possible by a long line of judicial decisions, including expressions in some of the decisions of this Court. At the same time, it is urged that these laws are valid as a matter of constitutionally permissible social experimentation by the States. On the matter of stare decisis, I submit that the duration of the challenged practice, while it is persuasive, is not controlling… . As a matter of social experimentation, the laws in question must satisfy the requirements of the Constitution. While this Court has permitted the States to legislate or otherwise officially act experimentally in the social and economic fields, it has always recognized and held that this power is subject to the limitations of the Constitution, and that the tests of the Constitution must be met”); Reply Brief for Appellants in Briggs v. Elliott , O. T. 1953, No. 2, pp. 18–19 (“The truth of the matter is that this is an attempt to place local mores and customs above the high equalitarian principles of our Government as set forth in our Constitution and particularly the Fourteenth Amendment. This entire contention is tantamount to saying that the vindication and enjoyment of constitutional rights recognized by this Court as present and personal can be postponed whenever such postponement is claimed to be socially desirable”). Footnote 29 The dissent does not face the complicated questions attending its proposed standard. For example, where does the dissent’s principle stop? Can the government force racial mixing against the will of those being mixed? Can the government force black families to relocate to white neighborhoods in the name if bringing the races together? What about historically black colleges, which have “established traditions and programs that might disproportionately appeal to one race or another”? United States v. Fordice , 505 U. S. 717 , 749 (1992) (Thomas, J., concurring). The dissent does not and cannot answer these questions because the contours of the distinction it propounds rest entirely in the eye of the beholder. Footnote 30 Justice Breyer’s good intentions, which I do not doubt, have the shelf life of Justice Breyer’s tenure. Unlike the dissenters, I am unwilling to delegate my constitutional responsibilities to local school boards and allow them to experiment with race-based decisionmaking on the assumption that their intentions will forever remain as good as Justice Breyer’s. See The Federalist No. 51, p. 349 (J. Cooke ed. 1961) (“If men were angels, no government would be necessary”). Indeed, the racial theories endorsed by the Seattle school board should cause the dissenters to question whether local school boards should be entrusted with the power to make decisions on the basis of race. The Seattle school district’s Website formerly contained the following definition of “cultural racism”: “Those aspects of society that overtly and covertly attribute value and normality to white people and whiteness, and devalue, stereotype, and label people of color as ‘other,’ different, less than, or render them invisible. Examples of these norms include defining white skin tones as nude or flesh colored, having a future time orientation, emphasizing individualism as opposed to a more collective ideology, defining one form of English as standard . . . .” See Harrell, School Web Site Removed: Examples of Racism Sparked Controversy, Seattle Post-Intelligencer, June 2, 2006, p. B1. After the site was removed, the district offered the comforting clarification that the site was not intended “ ‘to hold onto unsuccessful concepts such as melting pot or colorblind mentality.’ ” Ibid.; see also ante , at 22, n. 15 (plurality opinion).    More recently, the school district sent a delegation of high school students to a “White Privilege Conference.” See Equity and Race Relations White Privilege Conference, https://www.seattleschools. org/area/equityandrace/whiteprivilegeconference.xml. One conference participant described “white privilege” as “an invisible package of unearned assets which I can count on cashing in each day, but about which I was meant to remain oblivious. White Privilege is like an invisible weightless knapsack of special provisions, maps, passports, codebooks, visas, clothes, tools, and blank checks.” See White Privilege Conference, Questions and Answers, http://www.uccs.edu/~wpc/ faqs.htm; see generally Westneat, School District’s Obsessed with Race, Seattle Times, Apr. 1, 2007, p. B1 (describing racial issues in Seattle schools). STEVENS, J., DISSENTING PARENTS INVOLVED IN COMMUNITY SCHOOLS V.SEATTLE SCHOOL DIST. NO. 1 551 U. S. ____ (2007) SUPREME COURT OF THE UNITED STATES NOS. 05-908 AND 05-915 PARENTS INVOLVED IN COMMUNITY SCHOOLS, PETITIONER 05–908 v. SEATTLE SCHOOL DISTRICT NO. 1 et al. on writ of certiorari to the united states court of appeals for the ninth circuit CRYSTAL D. MEREDITH, custodial parent and next friend of JOSHUA RYAN McDONALD, PETITIONER 05–915 v. JEFFERSON COUNTY BOARD OF EDUCATION et al. on writ of certiorari to the united states court of appeals for the sixth circuit [June 28, 2007] Justice Stevens , dissenting.    While I join Justice Breyer’s eloquent and unanswerable dissent in its entirety, it is appropriate to add these words.    There is a cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education, 349 U. S. 294 (1955). The first sentence in the concluding paragraph of his opinion states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” Ante, at 40. This sentence reminds me of Anatole France’s observation: “[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”[ Footnote 1 ] The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools.[ Footnote 2 ] In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions. Compare ante, at 39 (“history will be heard”), with Brewer v. Quarterman, 550 U. S. ___, ___ (2007) (slip op., at 11) (Roberts, C. J., dissenting) (“It is a familiar adage that history is written by the victors”).    The Chief Justice rejects the conclusion that the racial classifications at issue here should be viewed differently than others, because they do not impose burdens on one race alone and do not stigmatize or exclude.[ Footnote 3 ] The only justification for refusing to acknowledge the obvious importance of that difference is the citation of a few recent opinions—none of which even approached unanimity—grandly proclaiming that all racial classifications must be analyzed under “strict scrutiny.” See, e.g., Adarand Constructors, Inc. v. Peńa, 515 U. S. 200 , 227 (1995). Even today, two of our wisest federal judges have rejected such a wooden reading of the Equal Protection Clause in the context of school integration. See 426 F. 3d 1162, 1193–1196 (CA9 2005) (Kozinski, J., concurring); Comfort v. Lynn School Comm., 418 F. 3d 1, 27–29 (CA1 2005) (Boudin, C. J., concurring). The Court’s misuse of the three-tiered approach to Equal Protection analysis merely reconfirms my own view that there is only one such Clause in the Constitution. See Craig v. Boren , 429 U. S. 190 , 211 (1976) (concurring opinion).[ Footnote 4 ]    If we look at cases decided during the interim between Brown and Adarand, we can see how a rigid adherence to tiers of scrutiny obscures Brown ’s clear message. Perhaps the best example is provided by our approval of the decision of the Supreme Judicial Court of Massachusetts in 1967 upholding a state statute mandating racial integration in that State’s school system. See School Comm. of Boston v. Board of Education, 352 Mass. 693, 227 N. E. 2d 729.[ Footnote 5 ] Rejecting arguments comparable to those that the plurality accepts today,[ Footnote 6 ] that court noted: “It would be the height of irony if the racial imbalance act, enacted as it was with the laudable purpose of achieving equal educational opportunities, should, by prescribing school pupil allocations based on race, founder on unsuspected shoals in the Fourteenth Amendment.” Id., at 698, 227 N. E. 2d, at 733 (footnote omitted).    Invoking our mandatory appellate jurisdiction,[ Footnote 7 ] the Boston plaintiffs prosecuted an appeal in this Court. Our ruling on the merits simply stated that the appeal was “dismissed for want of a substantial federal question.” School Comm. of Boston v. Board of Education , 389 U. S. 572 (1968) (per curiam). That decision not only expressed our appraisal of the merits of the appeal, but it constitutes a precedent that the Court overrules today. The subsequent statements by the unanimous Court in Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1 , 16 (1971), by then-Justice Rehnquist in chambers in Bustop, Inc. v. Los Angeles Bd. of Ed., 439 U. S. 1380 , 1383 (1978), and by the host of state court decisions cited by Justice Breyer, see post , 25–27,[ Footnote 8 ] were fully consistent with that disposition. Unlike today’s decision, they were also entirely loyal to Brown. The Court has changed significantly since it decided School Comm. of Boston in 1968. It was then more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision. Footnote 1 Le Lys Rouge (The Red Lily) 95 (W. Stephens transl. 6th ed. 1922). Footnote 2 See, e.g. , J. Wilkinson, From Brown to Bakke 11 (1979) (“Everyone understands that Brown v. Board of Education helped deliver the Negro from over three centuries of legal bondage”); Black, The Lawfulness of the Segregation Decisions, 69 Yale L. J. 421, 424–425 (“History, too, tells us that segregation was imposed on one race by the other race; consent was not invited or required. Segregation in the South grew up and is kept going because and only because the white race has wanted it that way—an incontrovertible fact which itself hardly consorts with equality”). Footnote 3 I have long adhered to the view that a decision to exclude a member of a minority because of his race is fundamentally different from a decision to include a member of a minority for that reason. See, e.g. , Adarand Constructors, Inc. v. Peńa , 515 U. S. 200 , 243, 248, n. 6 (1995) (Stevens, J., dissenting); Wygant v. Jackson Bd. of Ed. , 476 U. S. 267 , 316 (1986) (same). This distinction is critically important in the context of education. While the focus of our opinions is often on the benefits that minority schoolchildren receive from an integrated education, see, e.g. , ante , at 15 (Thomas, J., concurring), children of all races benefit from integrated classrooms and playgrounds, see Wygant , 476 U. S., at 316 (“[T]he fact that persons of different races do, indeed, have differently colored skin, may give rise to a belief that there is some significant difference between such persons. The inclusion of minority teachers in the educational process inevitably tends to dispel that illusion whereas their exclusion could only tend to foster it”). Footnote 4 The Chief Justice twice cites my dissent in Fullilove v. Klutznick , 448 U. S. 448 (1980). See ante , at 12, 23. In that case, I stressed the importance of confining a remedy for past wrongdoing to the members of the injured class. See 448 U. S., at 539. The present cases, unlike Fullilove but like our decision in Wygant , 476 U. S. 267 , require us to “ask whether the Board[s’] actions[s] advanc[e] the public interest in educating children for the future ,” id ., at 313 (Stevens, J., dissenting) (emphasis added). See ibid . (“In my opinion, it is not necessary to find that the Board of Education has been guilty of racial discrimination in the past to support the conclusion that it has a legitimate interest in employing more black teachers in the future”). See also Adarand, 515 U. S., at 261–262 (1995) (Stevens, J., dissenting) (“This program, then, if in part a remedy for past discrimination, is most importantly a forward-looking response to practical problems faced by minority subcontractors”). Footnote 5 The Chief Justice states that the Massachusetts racial imbalance Act did not require express classifications. See ante , at 31-32, n. 16. This is incorrect. The Massachusetts Supreme Judicial Court expressly stated: “The racial imbalance act requires the school committee of every municipality annually to submit statistics showing the percentage of nonwhite pupils in all public schools and in each school. Whenever the board finds that racial imbalance exists in a public school, it shall give written notice to the appropriate school committee, which shall prepare a plan to eliminate imbalance and file a copy with the board. ‘The term “racial imbalance” refers to a ratio between nonwhite and other students in public schools which is sharply out of balance with the racial composition of the society in which nonwhite children study, serve and work. For the purpose of this section, racial imbalance shall be deemed to exist when the per cent of nonwhite students in any public school is in excess of fifty per cent of the total number of students in such school.’ ” 352 Mass., at 695, 227 N. E. 2d, at 731. Footnote 6 Compare ante , at 39 (“It was not the inequality of the facilities but the fact of legally separating children on the basis of race on which the Court relied to find a constitutional violation in 1954”), with Juris. Statement in School Comm. of Boston v. Board of Education, O. T. 1967, No. 67–759, p. 11 (“It is implicit in Brown v. Board of Education of Topeka, 347 U. S. 483 , that color or race is a constitutionally impermissible standard for the assignment of school children to public schools. We construe Brown as endorsing Mr. Justice Harlan’s classical statement in Plessy v. Ferguson , 163 U. S. 537 , 539: ‘Our constitution is color-blind, and neither knows nor tolerates classes among citizens’ ”). Footnote 7 In 1968 our mandatory jurisdiction was defined by the provision of the 1948 Judicial Code then codified at 28 U. S. C. §1257, see 62 Stat. 929; that provision was repealed in 1988, see 102 Stat. 662. Footnote 8 For example, prior to our decision in School Comm. of Boston, the Illinois Supreme Court had issued an unpublished opinion holding unconstitutional a similar statute aimed at eliminating racial imbalance in public schools. See Juris. Statement in School Comm. of Boston v. Board of Education, O. T. 1967, No. 67–759, at 9 (“Unlike the Massachusetts Court, the Illinois Supreme Court has recently held its law to eliminate racial imbalance unconstitutional on the ground that it violated the Equal Protection Clause of the Fourteenth Amendment”); ibid., n. 1. However, shortly after we dismissed the Massachusetts suit for want of a substantial federal question, the Illinois Supreme Court reversed course and upheld its statute in the published decision that Justice Breyer extensively quotes in his dissent. See Tometz v. Board of Ed., Waukegan School Dist. No. 6, 39 Ill. 2d 593, 237 N. E. 2d 498 (1968). In so doing, the Illinois Supreme Court acted in explicit reliance on our decision in School Comm. of Boston. See 39 Ill. 2d, at 599–600, 237 N. E. 2d, at 502 (“Too, the United States Supreme Court on January 15, 1968, dismissed an appeal in School Committee of Boston v. Board of Education, (Mass. 1967) 227 N. E. 2d 729, which challenged the statute providing for elimination of racial imbalance in public schools ‘for want of a substantial federal question.’ 389 U. S. 572 ”). BREYER, J., DISSENTING PARENTS INVOLVED IN COMMUNITY SCHOOLS V.SEATTLE SCHOOL DIST. NO. 1 551 U. S. ____ (2007) SUPREME COURT OF THE UNITED STATES NOS. 05-908 AND 05-915 PARENTS INVOLVED IN COMMUNITY SCHOOLS, PETITIONER 05–908 v. SEATTLE SCHOOL DISTRICT NO. 1 et al. on writ of certiorari to the united states court of appeals for the ninth circuit CRYSTAL D. MEREDITH, custodial parent and next friend of JOSHUA RYAN McDONALD, PETITIONER 05–915 v. JEFFERSON COUNTY BOARD OF EDUCATION et al. on writ of certiorari to the united states court of appeals for the sixth circuit [June 28, 2007] Justice Breyer , with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.    These cases consider the longstanding efforts of two local school boards to integrate their public schools. The school board plans before us resemble many others adopted in the last 50 years by primary and secondary schools throughout the Nation. All of those plans represent local efforts to bring about the kind of racially integrated education that Brown v. Board of Education , 347 U. S. 483 (1954), long ago promised—efforts that this Court has repeatedly required, permitted, and encouraged local authorities to undertake. This Court has recognized that the public interests at stake in such cases are “compelling.” We have approved of “narrowly tailored” plans that are no less race-conscious than the plans before us. And we have understood that the Constitution permits local communities to adopt desegregation plans even where it does not require them to do so.    The plurality pays inadequate attention to this law, to past opinions’ rationales, their language, and the contexts in which they arise. As a result, it reverses course and reaches the wrong conclusion. In doing so, it distorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to deal effectively with the growing resegregation of public schools, it threatens to substitute for present calm a disruptive round of race-related litigation, and it undermines Brown ’s promise of integrated primary and secondary education that local communities have sought to make a reality. This cannot be justified in the name of the Equal Protection Clause. I Facts The historical and factual context in which these cases arise is critical. In Brown , this Court held that the government’s segregation of schoolchildren by race violates the Constitution’s promise of equal protection. The Court emphasized that “education is perhaps the most important function of state and local governments.” 347 U. S., at 493. And it thereby set the Nation on a path toward pub-lic school integration.    In dozens of subsequent cases, this Court told school districts previously segregated by law what they must do at a minimum to comply with Brown ’s constitutional holding. The measures required by those cases often included race-conscious practices, such as mandatory busing and race-based restrictions on voluntary transfers. See, e.g. , Columbus Bd. of Ed. v. Penick , 443 U. S. 449 , 455, n. 3 (1979); Davis v. Board of School Comm’rs of Mobile Cty. , 402 U. S. 33 , 37–38 (1971); Green v. School Bd. of New Kent Cty. , 391 U. S. 430 , 441–442 (1968).    Beyond those minimum requirements, the Court left much of the determination of how to achieve integration to the judgment of local communities. Thus, in respect to race-conscious desegregation measures that the Constitution permitted, but did not require (measures similar to those at issue here), this Court unanimously stated: “School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities .” Swann v. Charlotte-Mecklenburg Bd. of Ed. , 402 U. S. 1 , 16 (1971) (emphasis added).    As a result, different districts—some acting under court decree, some acting in order to avoid threatened lawsuits, some seeking to comply with federal administrative orders, some acting purely voluntarily, some acting after federal courts had dissolved earlier orders—adopted, modified, and experimented with hosts of different kinds of plans, including race-conscious plans, all with a similar objective: greater racial integration of public schools. See F. Welch & A. Light, New Evidence on School Desegregation v (1987) (hereinafter Welch) (prepared for the Commission on Civil Rights) (reviewing a sample of 125 school districts, constituting 20% of national public school enrollment, that had experimented with nearly 300 different plans over 18 years). The techniques that different districts have employed range “from voluntary transfer programs to mandatory reassignment.” Id. , at 21. And the design of particular plans has been “dictated by both the law and the specific needs of the district.” Ibid .    Overall these efforts brought about considerable racial integration. More recently, however, progress has stalled. Between 1968 and 1980, the number of black children attending a school where minority children constituted more than half of the school fell from 77% to 63% in the Nation (from 81% to 57% in the South) but then reversed direction by the year 2000, rising from 63% to 72% in the Nation (from 57% to 69% in the South). Similarly, between 1968 and 1980, the number of black children attending schools that were more than 90% minority fell from 64% to 33% in the Nation (from 78% to 23% in the South), but that too reversed direction, rising by the year 2000 from 33% to 37% in the Nation (from 23% to 31% in the South). As of 2002, almost 2.4 million students, or over 5% of all public school enrollment, attended schools with a white population of less than 1%. Of these, 2.3 million were black and Latino students, and only 72,000 were white. Today, more than one in six black children attend a school that is 99–100% minority. See Appendix A, infra. In light of the evident risk of a return to school systems that are in fact (though not in law) resegregated, many school districts have felt a need to maintain or to extend their integration efforts.    The upshot is that myriad school districts operating in myriad circumstances have devised myriad plans, often with race-conscious elements, all for the sake of eradicating earlier school segregation, bringing about integration, or preventing retrogression. Seattle and Louisville are two such districts, and the histories of their present plans set forth typical school integration stories.    I describe those histories at length in order to highlight three important features of these cases. First, the school districts’ plans serve “compelling interests” and are “narrowly tailored” on any reasonable definition of those terms. Second, the distinction between de jure segregation (caused by school systems) and de facto segregation (caused, e.g. , by housing patterns or generalized societal discrimination) is meaningless in the present context, thereby dooming the plurality’s endeavor to find support for its views in that distinction. Third, real-world efforts to substitute racially diverse for racially segregated schools (however caused) are complex, to the point where the Constitution cannot plausibly be interpreted to rule out categorically all local efforts to use means that are “conscious” of the race of individuals.    In both Seattle and Louisville, the local school districts began with schools that were highly segregated in fact. In both cities plaintiffs filed lawsuits claiming unconstitutional segregation. In Louisville, a federal district court found that school segregation reflected pre- Brown state laws separating the races. In Seattle, the plaintiffs alleged that school segregation unconstitutionally reflected not only generalized societal discrimination and residential housing patterns, but also school board policies and actions that had helped to create, maintain, and aggravate racial segregation. In Louisville, a federal court entered a remedial decree. In Seattle, the parties settled after the school district pledged to undertake a desegregation plan. In both cities, the school boards adopted plans designed to achieve integration by bringing about more racially diverse schools. In each city the school board modified its plan several times in light of, for example, hostility to busing, the threat of resegregation, and the desirability of introducing greater student choice. And in each city, the school boards’ plans have evolved over time in ways that progressively diminish the plans’ use of explicit race-conscious criteria.    The histories that follow set forth these basic facts. They are based upon numerous sources, which for ease of exposition I have cataloged, along with their corresponding citations, at Appendix B, infra. A Seattle 1. Segregation, 1945 to 1956. During and just after World War II, significant numbers of black Americans began to make Seattle their home. Few black residents lived outside the central section of the city. Most worked at unskilled jobs. Although black students made up about 3% of the total Seattle population in the mid-1950’s, nearly all black children attended schools where a majority of the population was minority. Elementary schools in central Seattle were between 60% and 80% black; Garfield, the central district high school, was more than 50% minority; schools outside the central and southeastern sections of Seattle were virtually all white. 2. Preliminary Challenges, 1956 to 1969. In 1956, a memo for the Seattle School Board reported that school segregation reflected not only segregated housing patterns but also school board policies that permitted white students to transfer out of black schools while restricting the transfer of black students into white schools. In 1958, black parents whose children attended Harrison Elementary School (with a black student population of over 75%) wrote the Seattle board, complaining that the “ ‘boundaries for the Harrison Elementary School were not set in accordance with the long-established standards of the School District … but were arbitrarily set with an end to excluding colored children from McGilvra School, which is adjacent to the Harrison school district.’ ”    In 1963, at the insistence of the National Association for the Advancement of Colored People (NAACP) and other community groups, the school board adopted a new race-based transfer policy. The new policy added an explicitly racial criterion: If a place exists in a school, then, irrespective of other transfer criteria, a white student may transfer to a predominantly black school, and a black student may transfer to a predominantly white school.    At that time one high school, Garfield, was about two-thirds minority; eight high schools were virtually all white. In 1963, the transfer program’s first year, 239 black students and 8 white students transferred. In 1969, about 2,200 (of 10,383 total) of the district’s black students and about 400 of the district’s white students took advantage of the plan. For the next decade, annual program transfers remained at approximately this level. 3. The NAACP’s First Legal Challenge and Seattle’s Response, 1969 to 1977. In 1969 the NAACP filed a federal lawsuit against the school board, claiming that the board had “unlawfully and unconstitutionally” “establish[ed]” and “maintain[ed]” a system of “racially segregated public schools.” The complaint said that 77% of black public elementary school students in Seattle attended 9 of the city’s 86 elementary schools and that 23 of the remaining schools had no black students at all. Similarly, of the 1,461 black students enrolled in the 12 senior high schools in Seattle, 1,151 (or 78.8%) attended 3 senior high schools, and 900 (61.6%) attended a single school, Garfield.    The complaint charged that the school board had brought about this segregated system in part by “mak[ing] and enforc[ing]” certain “rules and regulations,” in part by “drawing . . . boundary lines” and “executing school attendance policies” that would create and maintain “predominantly Negro or non-white schools,” and in part by building schools “in such a manner as to restrict the Negro plaintiffs and the class they represent to predominantly negro or non-white schools.” The complaint also charged that the board discriminated in assigning teachers.    The board responded to the lawsuit by introducing a plan that required race-based transfers and mandatory busing. The plan created three new middle schools at three school buildings in the predominantly white north end. It then created a “mixed” student body by assigning to those schools students who would otherwise attend predominantly white, or predominantly black, schools elsewhere. It used explicitly racial criteria in making these assignments ( i.e. , it deliberately assigned to the new middle schools black students, not white students, from the black schools and white students, not black students, from the white schools). And it used busing to transport the students to their new assignments. The plan provoked considerable local opposition. Opponents brought a lawsuit. But eventually a state court found that the mandatory busing was lawful.    In 1976–1977, the plan involved the busing of about 500 middle school students (300 black students and 200 white students). Another 1,200 black students and 400 white students participated in the previously adopted voluntary transfer program. Thus about 2,000 students out of a total district population of about 60,000 students were involved in one or the other transfer program. At that time, about 20% or 12,000 of the district’s students were black. And the board continued to describe 26 of its 112 schools as “segregated.” 4. The NAACP’s Second Legal Challenge, 1977. In 1977, the NAACP filed another legal complaint, this time with the federal Department of Health, Education, and Welfare’s Office for Civil Rights (OCR). The complaint alleged that the Seattle School Board had created or perpetuated unlawful racial segregation through, e.g. , certain school-transfer criteria, a construction program that needlessly built new schools in white areas, district line-drawing criteria, the maintenance of inferior facilities at black schools, the use of explicit racial criteria in the assignment of teachers and other staff, and a general pattern of delay in respect to the implementation of promised desegregation efforts.    The OCR and the school board entered into a formal settlement agreement. The agreement required the board to implement what became known as the “Seattle Plan.” 5. The Seattle Plan: Mandatory Busing, 1978 to 1988. The board began to implement the Seattle Plan in 1978. This plan labeled “racially imbalanced” any school at which the percentage of black students exceeded by more than 20% the minority population of the school district as a whole. It applied that label to 26 schools, including 4 high schools—Cleveland (72.8% minority), Franklin (76.6% minority), Garfield (78.4% minority), and Rainier Beach (58.9% minority). The plan paired (or “triaded”) “imbalanced” black schools with “imbalanced” white schools. It then placed some grades (say, third and fourth grades) at one school building and other grades (say, fifth and sixth grades) at the other school building. And it thereby required, for example, all fourth grade students from the previously black and previously white schools first to attend together what would now be a “mixed” fourth grade at one of the school buildings and then the next year to attend what would now be a “mixed” fifth grade at the other school building.    At the same time, the plan provided that a previous “black” school would remain about 50% black, while a previous “white” school would remain about two-thirds white. It was consequently necessary to decide with some care which students would attend the new “mixed” grade. For this purpose, administrators cataloged the racial makeup of each neighborhood housing block. The school district met its percentage goals by assigning to the new “mixed” school an appropriate number of “black” housing blocks and “white” housing blocks. At the same time, transport from house to school involved extensive busing, with about half of all students attending a school other than the one closest to their home.    The Seattle Plan achieved the school integration that it sought. Just prior to the plan’s implementation, for example, 4 of Seattle’s 11 high schools were “imbalanced,” i.e. , almost exclusively “black” or almost exclusively “white.” By 1979, only two were out of “balance.” By 1980 only Cleveland remained out of “balance” (as the board defined it) and that by a mere two students.    Nonetheless, the Seattle Plan, due to its busing, provoked serious opposition within the State. See generally Washington v. Seattle School Dist. No. 1 , 458 U. S. 457 , 461–466 (1982). Thus, Washington state voters enacted an initiative that amended state law to require students to be assigned to the schools closest to their homes. Id. , at 462. The Seattle School Board challenged the constitutionality of the initiative. Id. , at 464. This Court then held that the initiative—which would have prevented the Seattle Plan from taking effect—violated the Fourteenth Amendment. Id. , at 470. 6. Student Choice, 1988 to 1998. By 1988, many white families had left the school district, and many Asian families had moved in. The public school population had fallen from about 100,000 to less than 50,000. The racial makeup of the school population amounted to 43% white, 24% black, and 23% Asian or Pacific Islander, with Hispanics and Native Americans making up the rest. The cost of busing, the harm that members of all racial communities feared that the Seattle Plan caused, the desire to attract white families back to the public schools, and the interest in providing greater school choice led the board to abandon busing and to substitute a new student assignment policy that resembles the plan now before us.    The new plan permitted each student to choose the school he or she wished to attend, subject to race-based constraints. In respect to high schools, for example, a student was given a list of a subset of schools, carefully selected by the board to balance racial distribution in the district by including neighborhood schools and schools in racially different neighborhoods elsewhere in the city. The student could then choose among those schools, indicating a first choice, and other choices the student found acceptable. In making an assignment to a particular high school, the district would give first preference to a student with a sibling already at the school. It gave second preference to a student whose race differed from a race that was “over-represented” at the school ( i.e., a race that accounted for a higher percentage of the school population than of the total district population). It gave third preference to students residing in the neighborhood. It gave fourth preference to students who received child care in the neighborhood. In a typical year, say, 1995, about 20,000 potential high school students participated. About 68% received their first choice. Another 16% received an “acceptable” choice. A further 16% were assigned to a school they had not listed. 7. The Current Plan, 1999 to the Present. In 1996, the school board adopted the present plan, which began in 1999. In doing so, it sought to deemphasize the use of racial criteria and to increase the likelihood that a student would receive an assignment at his first or second choice high school. The district retained a racial tiebreaker for oversubscribed schools, which takes effect only if the school’s minority or majority enrollment falls outside of a 30% range centered on the minority/majority population ratio within the district. At the same time, all students were free subsequently to transfer from the school at which they were initially placed to a different school of their choice without regard to race. Thus, at worst, a student would have to spend one year at a high school he did not pick as a first or second choice.    The new plan worked roughly as expected for the two school years during which it was in effect (1999–2000 and 2000–2001). In the 2000–2001 school year, for example, with the racial tiebreaker, the entering ninth grade class at Franklin High School had a 60% minority population; without the racial tiebreaker that same class at Franklin would have had an almost 80% minority population. (We consider only the ninth grade since only students entering that class were subject to the tiebreaker, and because the plan was not in place long enough to change the composition of an entire school.) In the year 2005–2006, by which time the racial tiebreaker had not been used for several years, Franklin’s overall minority enrollment had risen to 90%. During the period the tiebreaker applied, it typically affected about 300 students per year. Between 80% and 90% of all students received their first choice assignment; between 89% and 97% received their first or second choice assignment.    Petitioner Parents Involved in Community Schools objected to Seattle’s most recent plan under the State and Federal Constitutions. In due course, the Washington Supreme Court, the Federal District Court, and the Court of Appeals for the Ninth Circuit (sitting en banc) rejected the challenge and found Seattle’s plan lawful. B Louisville 1. Before the Lawsuit, 1954 to 1972. In 1956, two years after Brown made clear that Kentucky could no longer require racial segregation by law, the Louisville Board of Education created a geography-based student assignment plan designed to help achieve school integration. At the same time it adopted an open transfer policy under which approximately 3,000 of Louisville’s 46,000 students applied for transfer. By 1972, however, the Louisville School District remained highly segregated. Approximately half the district’s public school enrollment was black; about half was white. Fourteen of the district’s nineteen non-vocational middle and high schools were close to totally black or totally white. Nineteen of the district’s forty-six elementary schools were between 80% and 100% black. Twenty-one elementary schools were between roughly 90% and 100% white. 2. Court-Imposed Guidelines and Busing, 1972 to 1991. In 1972, civil rights groups and parents, claiming unconstitutional segregation, sued the Louisville Board of Education in federal court. The original litigation eventually became a lawsuit against the Jefferson County School System, which in April 1975 absorbed Louisville’s schools and combined them with those of the surrounding suburbs. (For ease of exposition, I shall still use “Louisville” to refer to what is now the combined districts.) After preliminary rulings and an eventual victory for the plaintiffs in the Court of Appeals for the Sixth Circuit, the District Court in July 1975 entered an order requiring desegregation.    The order’s requirements reflected a (newly enlarged) school district student population of about 135,000, approximately 20% of whom were black. The order required the school board to create and to maintain schools with student populations that ranged, for elementary schools, between 12% and 40% black, and for secondary schools (with one exception), between 12.5% and 35% black.    The District Court also adopted a complex desegregation plan designed to achieve the order’s targets. The plan required redrawing school attendance zones, closing 12 schools, and busing groups of students, selected by race and the first letter of their last names, to schools outside their immediate neighborhoods. The plan’s initial busing requirements were extensive, involving the busing of 23,000 students and a transportation fleet that had to “operate from early in the morning until late in the evening.” For typical students, the plan meant busing for several years (several more years for typical black students than for typical white students). The following notice, published in a Louisville newspaper in 1976, gives a sense of how the district’s race-based busing plan operated in practice: [Graphic omitted; see printed opinion] Louisville Courier Journal, June 18, 1976 (reproduced in J. Wilkinson, From Brown to Bakke: The Supreme Court and School Integration 1954–1978, p. 176 (1979)).    The District Court monitored implementation of the plan. In 1978, it found that the plan had brought all of Louisville’s schools within its “ ‘guidelines’ for racial composition” for “at least a substantial portion of the [previous] three years.” It removed the case from its active docket while stating that it expected the board “to continue to implement those portions of the desegregation order which are by their nature of a continuing effect.”    By 1984, after several schools had fallen out of compliance with the order’s racial percentages due to shifting demographics in the community, the school board revised its desegregation plan. In doing so, the board created a new racial “guideline,” namely a “floating range of 10% above and 10% below the countywide average for the different grade levels.” The board simultaneously redrew district boundaries so that middle school students could attend the same school for three years and high school students for four years. It added “magnet” programs at two high schools. And it adjusted its alphabet-based system for grouping and busing students. The board estimated that its new plan would lead to annual reassignment (with busing) of about 8,500 black students and about 8,000 white students. 3. Student Choice and Project Renaissance, 1991 to 1996. By 1991, the board had concluded that assigning elementary school students to two or more schools during their elementary school years had proved educationally unsound and, if continued, would undermine Kentucky’s newly adopted Education Reform Act. It consequently conducted a nearly year-long review of its plan. In doing so, it consulted widely with parents and other members of the local community, using public presentations, public meetings, and various other methods to obtain the public’s input. At the conclusion of this review, the board adopted a new plan, called “Project Renaissance,” that emphasized student choice.    Project Renaissance again revised the board’s racial guidelines. It provided that each elementary school would have a black student population of between 15% and 50%; each middle and high school would have a black population and a white population that fell within a range, the boundaries of which were set at 15% above and 15% below the general student population percentages in the county at that grade level. The plan then drew new geographical school assignment zones designed to satisfy these guidelines; the district could reassign students if particular schools failed to meet the guidelines and was required to do so if a school repeatedly missed these targets.    In respect to elementary schools, the plan first drew a neighborhood line around each elementary school, and it then drew a second line around groups of elementary schools (called “clusters”). It initially assigned each student to his or her neighborhood school, but it permitted each student freely to transfer between elementary schools within each cluster provided that the transferring student (a) was black if transferring from a predominantly black school to a predominantly white school, or (b) was white if transferring from a predominantly white school to a predominantly black school. Students could also apply to attend magnet elementary schools or programs.    The plan required each middle school student to be assigned to his or her neighborhood school unless the student applied for, and was accepted by, a magnet middle school. The plan provided for “open” high school enrollment. Every 9th or 10th grader could apply to any high school in the system, and the high school would accept applicants according to set criteria—one of which consisted of the need to attain or remain in compliance with the plan’s racial guidelines. Finally, the plan created two new magnet schools, one each at the elementary and middle school levels. 4. The Current Plan: Project Renaissance Modified, 1996 to 2003. In 1995 and 1996, the Louisville School Board, with the help of a special “Planning Team,” community meetings, and other official and unofficial study groups, monitored the effects of Project Renaissance and considered proposals for improvement. Consequently, in 1996, the board modified Project Renaissance, thereby creating the present plan.    At the time, the district’s public school population was approximately 30% black. The plan consequently redrew the racial “guidelines,” setting the boundaries at 15% to 50% black for all schools. It again redrew school assignment boundaries. And it expanded the transfer opportunities available to elementary and middle school pupils. The plan forbade transfers, however, if the transfer would lead to a school population outside the guideline range, i.e. , if it would create a school where fewer than 15% or more than 50% of the students were black.    The plan also established “Parent Assistance Centers” to help parents and students navigate the school selection and assignment process. It pledged the use of other resources in order to “encourage all schools to achieve an African-American enrollment equivalent to the average district-wide African-American enrollment at the school’s respective elementary, middle or high school level.” And the plan continued use of magnet schools.    In 1999, several parents brought a lawsuit in federal court attacking the plan’s use of racial guidelines at one of the district’s magnet schools. They asked the court to dissolve the desegregation order and to hold the use of magnet school racial guidelines unconstitutional. The board opposed dissolution, arguing that “the old dual system” had left a “demographic imbalance” that “prevent[ed] dissolution.” In 2000, after reviewing the present plan, the District Court dissolved the 1975 order. It wrote that there was “overwhelming evidence of the Board’s good faith compliance with the desegregation Decree and its underlying purposes.” It added that the Louisville School Board had “treated the ideal of an integrated system as much more than a legal obligation—they consider it a positive, desirable policy and an essential element of any well-rounded public school education.”    The Court also found that the magnet programs available at the high school in question were “not available at other high schools” in the school district. It consequently held unconstitutional the use of race-based “targets” to govern admission to magnet schools . And it ordered the board not to control access to those scarce programs through the use of racial targets. 5. The Current Lawsuit, 2003 to the Present. Subsequent to the District Court’s dissolution of the desegregation order (in 2000) the board simply continued to implement its 1996 plan as modified to reflect the court’s magnet school determination. In 2003, the petitioner now before us, Crystal Meredith, brought this lawsuit challenging the plan’s unmodified portions, i.e. , those portions that dealt with ordinary , not magnet, schools. Both the District Court and the Court of Appeals for the Sixth Circuit rejected Meredith’s challenge and held the unmodified aspects of the plan constitutional. C    The histories I have set forth describe the extensive and ongoing efforts of two school districts to bring about greater racial integration of their public schools. In both cases the efforts were in part remedial. Louisville began its integration efforts in earnest when a federal court in 1975 entered a school desegregation order. Seattle undertook its integration efforts in response to the filing of a federal lawsuit and as a result of its settlement of a segregation complaint filed with the federal OCR.    The plans in both Louisville and Seattle grow out of these earlier remedial efforts. Both districts faced problems that reflected initial periods of severe racial segregation, followed by such remedial efforts as busing, followed by evidence of resegregation, followed by a need to end busing and encourage the return of, e.g. , suburban students through increased student choice. When formulating the plans under review, both districts drew upon their considerable experience with earlier plans, having revised their policies periodically in light of that experience. Both districts rethought their methods over time and explored a wide range of other means, including non-race-conscious policies. Both districts also considered elaborate studies and consulted widely within their communities.    Both districts sought greater racial integration for educational and democratic, as well as for remedial, reasons. Both sought to achieve these objectives while preserving their commitment to other educational goals, e.g. , districtwide commitment to high quality public schools, increased pupil assignment to neighborhood schools, diminished use of busing, greater student choice, reduced risk of white flight, and so forth. Consequently, the present plans expand student choice; they limit the burdens (including busing) that earlier plans had imposed upon students and their families; and they use race-conscious criteria in limited and gradually diminishing ways. In particular, they use race-conscious criteria only to mark the outer bounds of broad population-related ranges.    The histories also make clear the futility of looking simply to whether earlier school segregation was de jure or de facto in order to draw firm lines separating the constitutionally permissible from the constitutionally forbidden use of “race-conscious” criteria. Justice Thomas suggests that it will be easy to identify de jure segregation because “[i]n most cases, there either will or will not have been a state constitutional amendment, state statute, local ordinance, or local administrative policy explicitly requiring separation of the races.” Ante , at 6, n. 4 (concurring opinion). But our precedent has recognized that de jure discrimination can be present even in the absence of racially explicit laws. See Yick Wo v. Hopkins , 118 U. S. 356 , 373–374 (1886).    No one here disputes that Louisville’s segregation was de jure . But what about Seattle’s? Was it de facto? De jure? A mixture? Opinions differed. Or is it that a prior federal court had not adjudicated the matter? Does that make a difference? Is Seattle free on remand to say that its schools were de jure segregated, just as in 1956 a memo for the School Board admitted? The plurality does not seem confident as to the answer. Compare ante , at 12 (opinion of the Court) (“[T]he Seattle public schools have never shown that they were ever segregated by law” (emphasis added)), with ante at 29–30 (plurality opinion) (assuming “the Seattle school district was never segregated by law,” but seeming to concede that a school district with de jure segregation need not be subject to a court order to be allowed to engage in race-based remedial measures).    A court finding of de jure segregation cannot be the crucial variable. After all, a number of school districts in the South that the Government or private plaintiffs challenged as segregated by law voluntarily desegregated their schools without a court order —just as Seattle did. See, e.g. , Coleman, Desegregation of the Public Schools in Kentucky—The Second Year After the Supreme Court’s Decision, 25 J. Negro Educ. 254, 256, 261 (1956) (40 of Kentucky’s 180 school districts began desegre- gation without court orders); Branton, Little Rock Revisited: Desegregation to Resegregation, 52 J. Negro Educ. 250, 251 (1983) (similar in Arkansas); Bullock & Rodgers, Coercion to Compliance: Southern School Districts and School Desegregation Guidelines, 38 J. Politics 987, 991 (1976) (similar in Georgia); McDaniel v. Barresi , 402 U. S. 39 , 40, n. 1 (1971) (Clarke County, Georgia). See also Letter from Robert F. Kennedy, Attorney General, to John F. Kennedy, President (Jan. 24, 1963) (hereinafter Kennedy Report), available at http://www.gilderlehrman.org/search/collection_pdfs/05/63/0/05630.pdf (all Internet materials as visited June 26, 2007, and available in Clerk of Court’s case file) (reporting successful efforts by the Government to induce voluntary desegregation).    Moreover, Louisville’s history makes clear that a community under a court order to desegregate might submit a race-conscious remedial plan before the court dissolved the order, but with every intention of following that plan even after dissolution. How could such a plan be lawful the day before dissolution but then become unlawful the very next day? On what legal ground can the majority rest its contrary view? But see ante , at 12–13, 17, n. 12.    Are courts really to treat as merely de facto segregated those school districts that avoided a federal order by voluntarily complying with Brown ’s requirements? See id. , at 12, 29–30. This Court has previously done just the opposite, permitting a race-conscious remedy without any kind of court decree. See McDaniel , supra , at 41. Because the Constitution emphatically does not forbid the use of race-conscious measures by districts in the South that voluntarily desegregated their schools, on what basis does the plurality claim that the law forbids Seattle to do the same? But see ante , at 29.    The histories also indicate the complexity of the tasks and the practical difficulties that local school boards face when they seek to achieve greater racial integration. The boards work in communities where demographic patterns change, where they must meet traditional learning goals, where they must attract and retain effective teachers, where they should (and will) take account of parents’ views and maintain their commitment to public school education, where they must adapt to court intervention, where they must encourage voluntary student and parent action—where they will find that their own good faith, their knowledge, and their understanding of local circumstances are always necessary but often insufficient to solve the problems at hand.    These facts and circumstances help explain why in this context, as to means, the law often leaves legislatures, city councils, school boards, and voters with a broad range of choice, thereby giving “different communities” the opportunity to “try different solutions to common problems and gravitate toward those that prove most successful or seem to them best to suit their individual needs.” Comfort v. Lynn School Comm. , 418 F. 3d 1, 28 (CA1 2005) (Boudin, C. J., concurring) (citing United States v. Lopez , 514 U. S. 549 , 581 (1995) (Kennedy, J., concurring)), cert. denied, 546 U. S. 1061 (2005).    With this factual background in mind, I turn to the legal question: Does the United States Constitution prohibit these school boards from using race-conscious criteria in the limited ways at issue here? II The Legal Standard A longstanding and unbroken line of legal authority tells us that the Equal Protection Clause permits local school boards to use race-conscious criteria to achieve positive race-related goals, even when the Constitution does not compel it. Because of its importance, I shall repeat what this Court said about the matter in Swann . Chief Justice Burger, on behalf of a unanimous Court in a case of exceptional importance, wrote:    “School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities.” 402 U. S., at 16. The statement was not a technical holding in the case. But the Court set forth in Swann a basic principle of constitutional law—a principle of law that has found “wide acceptance in the legal culture.” Dickerson v. United States , 530 U. S. 428 , 443 (2000) (internal quotation marks omitted); Mitchell v. United States , 526 U. S. 314 , 330 (1999); id. , at 331, 332 (Scalia, J., dissenting) (citing “ ‘wide acceptance in the legal culture’ ” as “adequate reason not to overrule” prior cases).    Thus, in North Carolina Bd. of Ed. v. Swann , 402 U. S. 43 , 45 (1971), this Court, citing Swann, restated the point. “[S]chool authorities,” the Court said, “have wide discretion in formulating school policy, and . . . as a matter of educational policy school authorities may well conclude that some kind of racial balance in the schools is desirable quite apart from any constitutional requirements.” Then-Justice Rehnquist echoed this view in Bustop, Inc. v. Los Angeles Bd. of Ed. , 439 U. S. 1380 , 1383 (1978) (opinion in chambers), making clear that he too believed that Swann ’s statement reflected settled law: “While I have the gravest doubts that [a state supreme court] was required by the United States Constitution to take the [desegregation] action that it has taken in this case, I have very little doubt that it was permitted by that Constitution to take such action.” (Emphasis in original.)    These statements nowhere suggest that this freedom is limited to school districts where court-ordered desegregation measures are also in effect. Indeed, in McDaniel , a case decided the same day as Swann , a group of parents challenged a race-conscious student assignment plan that the Clarke County School Board had voluntarily adopted as a remedy without a court order (though under federal agency pressure—pressure Seattle also encountered). The plan required that each elementary school in the district maintain 20% to 40% enrollment of African-American students, corresponding to the racial composition of the district. See Barresi v. Browne , 226 Ga. 456, 456–459, 175 S. E. 2d 649, 650–651 (1970). This Court upheld the plan, see McDaniel , 402 U. S., at 41, rejecting the parents’ argument that “a person may not be included or excluded solely because he is a Negro or because he is white.” Brief for Respondents in McDaniel , O. T. 1970, No. 420, p. 25.    Federal authorities had claimed—as the NAACP and the OCR did in Seattle—that Clarke County schools were segregated in law, not just in fact. The plurality’s claim that Seattle was “never segregated by law” is simply not accurate. Compare ante , at 29, with supra , at 6–9. The plurality could validly claim that no court ever found that Seattle schools were segregated in law. But that is also true of the Clarke County schools in McDaniel . Unless we believe that the Constitution enforces one legal standard for the South and another for the North, this Court should grant Seattle the permission it granted Clarke County, Georgia. See McDaniel , 402 U. S., at 41 (“[S]teps will almost invariably require that students be assigned ‘differently because of their race.’ . . . Any other approach would freeze the status quo that is the very target of all desegregation processes.”).    This Court has also held that school districts may be required by federal statute to undertake race-conscious desegregation efforts even when there is no likelihood that de jure segregation can be shown. In Board of Ed. of City School Dist. of New York v. Harris , 444 U. S. 130 , 148–149 (1979), the Court concluded that a federal statute required school districts receiving certain federal funds to remedy faculty segregation, even though in this Court’s view the racial disparities in the affected schools were purely de facto and would not have been actionable under the Equal Protection Clause. Not even the dissenters thought the race-conscious remedial program posed a constitutional problem. See id. , at 152 (opinion of Stewart, J.). See also, e.g. , Crawford v. Board of Ed. of Los Angeles , 458 U. S. 527 , 535–536 (1982) (“[S]tate courts of California continue to have an obligation under state law to order segregated school districts to use voluntary desegregation techniques, whether or not there has been a finding of intentional segregation . . . . [S]chool districts themselves retain a state-law obligation to take reasonably feasible steps to desegregate, and they remain free to adopt reassignment and busing plans to effectuate desegregation ” (emphasis added)); School Comm. of Boston v. Board of Education , 389 U. S. 572 (1968) (per curiam) (dismissing for want of a federal question a challenge to a voluntary statewide integration plan using express racial criteria).    Lower state and federal courts had considered the matter settled and uncontroversial even before this Court decided Swann . Indeed, in 1968, the Illinois Supreme Court rejected an equal protection challenge to a race-conscious state law seeking to undo de facto segregation:    “To support [their] claim, the defendants heavily rely on three Federal cases, each of which held, no State law being involved, that a local school board does not have an affirmative constitutional duty to act to alleviate racial imbalance in the schools that it did not cause. However, the question as to whether the constitution requires a local school board, or a State, to act to undo de facto school segregation is simply not here concerned. The issue here is whether the constitution permits, rather than prohibits, voluntary State action aimed toward reducing and eventually eliminating de facto school segregation.    “State laws or administrative policies, directed toward the reduction and eventual elimination of de facto segregation of children in the schools and racial imbalance, have been approved by every high State court which has considered the issue. Similarly, the Federal courts which have considered the issue . . . have recognized that voluntary programs of local school authorities designed to alleviate de facto segregation and racial imbalance in the schools are not constitutionally forbidden.” Tometz v. Board of Ed., Waukegan School Dist. No. 6 , 39 Ill. 2d 593, 597–598, 237 N. E. 2d 498, 501 (1968) (citations omitted) (citing decisions from the high courts of Pennsylvania, Massachusetts, New Jersey, California, New York, and Connecticut, and from the Courts of Appeals for the First, Second, Fourth, and Sixth Circuits). See also, e.g. , Offerman v. Nitkowski , 378 F. 2d 22, 24 (CA2 1967); Deal v. Cincinnati Bd. of Ed. , 369 F. 2d 55, 61 (CA6 1966), cert. denied, 389 U. S. 847 (1967); Springfield School Comm. v. Barksdale , 348 F. 2d 261, 266 (CA1 1965); Pennsylvania Human Relations Comm’n v. Chester School Dist. , 427 Pa. 157, 164, 233 A. 2d 290, 294 (1967); Booker v. Board of Ed. of Plainfield, Union Cty. , 45 N. J. 161, 170, 212 A. 2d 1, 5 (1965); Jackson v. Pasadena City School Dist. , 59 Cal. 2d 876, 881–882, 382 P. 2d 878, 881–882 (1963) (in bank).    I quote the Illinois Supreme Court at length to illustrate the prevailing legal assumption at the time Swann was decided. In this respect, Swann was not a sharp or unexpected departure from prior rulings; it reflected a consensus that had already emerged among state and lower federal courts.    If there were doubts before Swann was decided, they did not survive this Court’s decision. Numerous state and federal courts explicitly relied upon Swann ’s guidance for decades to follow. For instance, a Texas appeals court in 1986 rejected a Fourteenth Amendment challenge to a voluntary integration plan by explaining: “[T]he absence of a court order to desegregate does not mean that a school board cannot exceed minimum requirements in order to promote school integration. School authorities are traditionally given broad discretionary powers to formulate and implement educational policy and may properly decide to ensure to their students the value of an integrated school experience.” Citizens for Better Ed. v. Goose Creek Consol. Independent School Dist. , 719 S. W. 2d 350, 352-353 (Ct. App. Tex. 1986) (citing Swann and North Carolina Bd. of Ed. ), appeal dism’d for want of a substantial federal question, 484 U. S. 804 (1987). Similarly, in Zaslawsky v. Bd. of Ed. of Los Angeles City Unified School Dist. , 610 F. 2d 661, 662–664 (1979), the Ninth Circuit rejected a federal constitutional challenge to a school district’s use of mandatory faculty transfers to ensure that each school’s faculty makeup would fall within 10% of the districtwide racial composition. Like the Texas court, the Ninth Circuit relied upon Swann and North Carolina Bd. of Ed. to reject the argument that “a race-conscious plan is permissible only when there has been a judicial finding of de jure segregation.” 610 F. 2d, at 663–664. See also, e.g. , Darville v. Dade County School Bd. , 497 F. 2d 1002, 1004–1006 (CA5 1974); State ex rel. Citizens Against Mandatory Bussing v. Brooks , 80 Wash. 2d 121, 128–129, 492 P. 2d 536, 541–542 (1972) (en banc), overruled on other grounds, Cole v. Webster , 103 Wash. 2d 280, 692 P. 2d 799 (1984) (en banc); School Comm. of Springfield v. Board of Ed. , 362 Mass. 417, 428–429 287 N. E. 2d 438, 447–448 (1972). These decisions illustrate well how lower courts understood and followed Swann ’s enunciation of the relevant legal principle.    Courts are not alone in accepting as constitutionally valid the legal principle that Swann enunciated— i.e. , that the government may voluntarily adopt race-conscious measures to improve conditions of race even when it is not under a constitutional obligation to do so. That principle has been accepted by every branch of government and is rooted in the history of the Equal Protection Clause itself. Thus, Congress has enacted numerous race-conscious statutes that illustrate that principle or rely upon its validity. See, e.g. , 20 U. S. C. §6311(b)(2)(C)(v) (No Child Left Behind Act); §1067 et seq. (authorizing aid to minority institutions). In fact, without being exhaustive, I have counted 51 federal statutes that use racial classifications. I have counted well over 100 state statutes that similarly employ racial classifications. Presidential administrations for the past half-century have used and supported various race-conscious measures. See, e.g. , Exec. Order No. 10925, 26 Fed. Reg. 1977 (1961) (President Kennedy); Exec. Order No. 11246, 30 Fed. Reg. 12319 (1965) (President Johnson); Sugrue, Breaking Through: The Troubled Origins of Affirmative Action in the Workplace, in Colorlines: Affirmative Action, Immigration, and Civil Rights Options for America 31 (Skretny ed. 2001) (describing President Nixon’s lobbying for affirmative action plans, e.g. , the Philadelphia Plan); White, Affirmative Action’s Alamo: Gerald Ford Returns to Fight Once More for Michigan, Time, Aug. 23, 1999, p. 48 (reporting on President Ford’s support for affirmative action); Schuck, Affirmative Action: Past, Present, and Future, 20 Yale L. & Pol’y Rev. 1, 50 (2002) (describing President Carter’s support for affirmation action). And during the same time, hundreds of local school districts have adopted student assignment plans that use race-conscious criteria. See Welch 83–91.    That Swann ’s legal statement should find such broad acceptance is not surprising. For Swann is predicated upon a well-established legal view of the Fourteenth Amendment. That view understands the basic objective of those who wrote the Equal Protection Clause as forbidding practices that lead to racial exclusion. The Amendment sought to bring into American society as full members those whom the Nation had previously held in slavery. See Slaughter-House Cases , 16 Wall. 36, 71 (1872) (“[N]o one can fail to be impressed with the one pervading purpose found in [all the Reconstruction amendments] . . . we mean the freedom of the slave race”); Strauder v. West Virginia , 100 U. S. 303 , 306 (1879) (“[The Fourteenth Amendment] is one of a series of constitutional provisions having a common purpose; namely, securing to a race recently emancipated . . . all the civil rights that the superior race enjoy”).    There is reason to believe that those who drafted an Amendment with this basic purpose in mind would have understood the legal and practical difference between the use of race-conscious criteria in defiance of that purpose, namely to keep the races apart, and the use of race-conscious criteria to further that purpose, namely to bring the races together. See generally R. Sears, A Utopian Experiment in Kentucky: Integration and Social Equality at Berea, 1866–1904 (1996) (describing federal funding, through the Freedman’s Bureau, of race-conscious school integration programs). See also R. Fischer, The Segregation Struggle in Louisiana 1862–77, p. 51 (1974) (describing the use of race-conscious remedies); Harlan, Desegregation in New Orleans Public Schools During Reconstruction, 67 Am. Hist. Rev. 663, 664 (1962) (same); W. Vaughn, Schools for All: The Blacks and Public Education in the South, 1865–1877, pp. 111–116 (1974) (same). Although the Constitution almost always forbids the former, it is significantly more lenient in respect to the latter. See Gratz v. Bollinger , 539 U. S. 244 , 301 (2003) (Ginsburg, J., dissenting); Adarand Constructors, Inc. v. Peńa , 515 U. S. 200 , 243 (1995) (Stevens, J., dissenting).    Sometimes Members of this Court have disagreed about the degree of leniency that the Clause affords to programs designed to include. See Wygant v. Jackson Board of Education , 476 U. S. 267 , 274 (1986); Fullilove v. Klutznick , 448 U. S. 448 , 507 (1980). But I can find no case in which this Court has followed Justice Thomas’ “colorblind” approach. And I have found no case that otherwise repudiated this constitutional asymmetry between that which seeks to exclude and that which seeks to include members of minority races.    What does the plurality say in response? First, it seeks to distinguish Swann and other similar cases on the ground that those cases involved remedial plans in response to judicial findings of de jure segregation. As McDaniel and Harris show, that is historically untrue. See supra , at 22–24. Many school districts in the South adopted segregation remedies (to which Swann clearly applies) without any such federal order , see supra, at 19–20. See also Kennedy Report. Seattle’s circumstances are not meaningfully different from those in, say, McDaniel , where this Court approved race-conscious remedies. Louisville’s plan was created and initially adopted when a compulsory district court order was in place. And, in any event, the histories of Seattle and Louisville make clear that this distinction—between court-ordered and voluntary desegregation—seeks a line that sensibly cannot be drawn.    Second, the plurality downplays the importance of Swann and related cases by frequently describing their relevant statements as “dicta.”    These criticisms, however, miss the main point. Swann did not hide its understanding of the law in a corner of an obscure opinion or in a footnote, unread but by experts. It set forth its view prominently in an important opinion joined by all nine Justices, knowing that it would be read and followed throughout the Nation. The basic problem with the plurality’s technical “dicta”-based response lies in its overly theoretical approach to case law, an approach that emphasizes rigid distinctions between holdings and dicta in a way that serves to mask the radical nature of today’s decision. Law is not an exercise in mathematical logic. And statements of a legal rule set forth in a judicial opinion do not always divide neatly into “holdings” and “dicta.” (Consider the legal “status” of Justice Powell’s separate opinion in Regents of Univ. of Cal. v. Bakke , 438 U. S. 265 (1978).) The constitutional principle enunciated in Swann, reiterated in subsequent cases, and relied upon over many years, provides, and has widely been thought to provide, authoritative legal guidance. And if the plurality now chooses to reject that principle, it cannot adequately justify its retreat simply by affixing the label “dicta” to reasoning with which it disagrees. Rather, it must explain to the courts and to the Nation why it would abandon guidance set forth many years before, guidance that countless others have built upon over time, and which the law has continuously embodied.    Third, a more important response is the plurality’s claim that later cases—in particular Johnson , Adarand , and Grutter —supplanted Swann . See ante , at 11–12, 31–32, n. 16, 34–35 (citing Adarand , supra, at 227; Johnson v. California , 543 U. S. 499 , 505 (2005); Grutter v. Bollinger , 539 U. S. 306 , 326 (2003)). The plurality says that cases such as Swann and the others I have described all “were decided before this Court definitively determined that ‘all racial classifications . . . must be analyzed by a reviewing court under strict scrutiny.’ ” Ante , at 31, n. 16 (quoting Adarand , 515 U. S., at 227). This Court in Adarand added that “such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.” Ibid . And the Court repeated this same statement in Grutter . See 539 U. S., at 326.    Several of these cases were significantly more restrictive than Swann in respect to the degree of leniency the Fourteenth Amendment grants to programs designed to include people of all races. See, e.g. , Adarand , supra; Gratz , supra; Grutter , supra . But that legal circumstance cannot make a critical difference here for two separate reasons.    First, no case—not Adarand , Gratz , Grutter , or any other—has ever held that the test of “strict scrutiny” means that all racial classifications—no matter whether they seek to include or exclude—must in practice be treated the same. The Court did not say in Adarand or in Johnson or in Grutter that it was overturning Swann or its central constitutional principle.    Indeed, in its more recent opinions, the Court recognized that the “fundamental purpose” of strict scrutiny review is to “take relevant differences” between “fundamentally different situations . . . into account.” Adarand , supra , at 228 (internal quotation marks omitted). The Court made clear that “[s]trict scrutiny does not trea[t] dissimilar race-based decisions as though they were equally objectionable.” Ibid. It added that the fact that a law “treats [a person] unequally because of his or her race . . . says nothing about the ultimate validity of any particular law.” Id. , at 229–230 (internal quotation marks omitted). And the Court, using the very phrase that Justice Marshall had used to describe strict scrutiny’s application to any exclusionary use of racial criteria, sought to “ dispel the notion that strict scrutiny” is as likely to condemn inclusive uses of “race-conscious” criteria as it is to invalidate exclusionary uses. That is, it is not in all circumstances “ ‘strict in theory, but fatal in fact.’ ” Id. , at 237 (quoting Fullilove v. Klutznick , 448 U. S., at 519 (Marshall, J., concurring in judgment)).    The Court in Grutter elaborated:    “Strict scrutiny is not ‘strict in theory, but fatal in fact.’ . . . Although all governmental uses of race are subject to strict scrutiny, not all are invalidated by it. . . .    “Context matters when reviewing race-based governmental action under the Equal Protection Clause. See Gomillion v. Lightfoot , 364 U. S. 339 , 343–344 (1960) (admonishing that, ‘in dealing with claims under broad provisions of the Constitution, which derive content by an interpretive process of inclusion and exclusion, it is imperative that generalizations, based on and qualified by the concrete situations that gave rise to them, must not be applied out of context in disregard of variant controlling facts’). . . . Not every decision influenced by race is equally objectionable, and strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decisionmaker for the use of race in that particular context.” 539 U. S., at 326–327. The Court’s holding in Grutter demonstrates that the Court meant what it said, for the Court upheld an elite law school’s race-conscious admissions program.    The upshot is that the cases to which the plurality refers, though all applying strict scrutiny, do not treat exclusive and inclusive uses the same. Rather, they apply the strict scrutiny test in a manner that is “fatal in fact” only to racial classifications that harmfully exclude; they apply the test in a manner that is not fatal in fact to racial classifications that seek to include .    The plurality cannot avoid this simple fact. See ante , at 34–36. Today’s opinion reveals that the plurality would rewrite this Court’s prior jurisprudence, at least in practical application, transforming the “strict scrutiny” test into a rule that is fatal in fact across the board. In doing so, the plurality parts company from this Court’s prior cases, and it takes from local government the longstanding legal right to use race-conscious criteria for inclusive purposes in limited ways.    Second, as Grutter specified, “[c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause.” 539 U. S., at 327 (citing Gomillion v. Lightfoot, 364 U. S. 339 , 343–344 (1960)). And contexts differ dramatically one from the other. Governmental use of race-based criteria can arise in the context of, for example, census forms, research expenditures for diseases, assignments of police officers patrolling predominantly minority-race neighborhoods, efforts to desegregate racially segregated schools, policies that favor minorities when distributing goods or services in short supply, actions that create majority-minority electoral districts, peremptory strikes that remove potential jurors on the basis of race, and others. Given the significant differences among these contexts, it would be surprising if the law required an identically strict legal test for evaluating the constitutionality of race-based criteria as to each of them.    Here, the context is one in which school districts seek to advance or to maintain racial integration in primary and secondary schools. It is a context, as Swann makes clear, where history has required special administrative remedies. And it is a context in which the school boards’ plans simply set race-conscious limits at the outer boundaries of a broad range.    This context is not a context that involves the use of race to decide who will receive goods or services that are normally distributed on the basis of merit and which are in short supply. It is not one in which race-conscious limits stigmatize or exclude; the limits at issue do not pit the races against each other or otherwise significantly exacerbate racial tensions. They do not impose burdens unfairly upon members of one race alone but instead seek benefits for members of all races alike. The context here is one of racial limits that seek, not to keep the races apart, but to bring them together.    The importance of these differences is clear once one compares the present circumstances with other cases where one or more of these negative features are present. See, e.g. , Strauder v. West Virginia , 100 U. S. 303 (1880); Yick Wo v. Hopkins , 118 U. S. 356 (1886); Brown , 347 U. S. 483 ; Loving v. Virginia , 388 U. S. 1 (1967); Regents of Univ. of Cal. v. Bakke , 438 U. S. 265 (1978); Batson v. Kentucky , 476 U. S. 79 (1986); Richmond v. J. A. Croson Co. , 488 U. S. 469 (1989); Shaw v. Reno , 509 U. S. 630 (1993); Adarand Constructors, Inc. v. Peńa , 515 U. S. 200 (1995); Grutter , supra; Gratz v. Bollinger , 539 U. S. 244 (2003); Johnson v. California , 543 U. S. 499 (2005).    If one examines the context more specifically, one finds that the districts’ plans reflect efforts to overcome a history of segregation, embody the results of broad experience and community consultation, seek to expand student choice while reducing the need for mandatory busing, and use race-conscious criteria in highly limited ways that diminish the use of race compared to preceding integration efforts. Compare Wessmann v. Gittens , 160 F. 3d 790, 809–810 (CA1 1998) (Boudin, J., concurring), with Comfort , 418 F. 3d, at 28–29 (Boudin, C. J., concurring). They do not seek to award a scarce commodity on the basis of merit, for they are not magnet schools; rather, by design and in practice, they offer substantially equivalent academic programs and electives. Although some parents or children prefer some schools over others, school popularity has varied significantly over the years. In 2000, for example, Roosevelt was the most popular first choice high school in Seattle; in 2001, Ballard was the most popular; in 2000, West Seattle was one of the least popular; by 2003, it was one of the more popular. See Research, Evaluation and Assessment, Student Information Serv- ices Office, District Summaries 1999–2005, available at http: //www.seattleschools.org /area /siso /disprof /2005 /DP05 all.pdf. In a word, the school plans under review do not involve the kind of race-based harm that has led this Court, in other contexts, to find the use of race-conscious criteria unconstitutional.    These and related considerations convinced one Ninth Circuit judge in the Seattle case to apply a standard of constitutionality review that is less than “strict,” and to conclude that this Court’s precedents do not require the contrary. See 426 F. 3d 1162, 1193–1194 (2005) (Kozinski, J., concurring) (“That a student is denied the school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about that individual’s aptitude or ability”). That judge is not alone. Cf. Gratz , supra , at 301 (Ginsburg, J., dissenting); Adarand , supra , at 243 (Stevens, J., dissenting); Carter, When Victims Happen To Be Black, 97 Yale L. J. 420, 433–434 (1988).    The view that a more lenient standard than “strict scrutiny” should apply in the present context would not imply abandonment of judicial efforts carefully to determine the need for race-conscious criteria and the criteria’s tailoring in light of the need. And the present context requires a court to examine carefully the race-conscious program at issue. In doing so, a reviewing judge must be fully aware of the potential dangers and pitfalls that Justice Thomas and Justice Kennedy mention. See ante , at 11–12 (Thomas, J., concurring); ante , at 3, 17 (opinion of Kennedy, J.).    But unlike the plurality, such a judge would also be aware that a legislature or school administrators, ultimately accountable to the electorate, could nonetheless properly conclude that a racial classification sometimes serves a purpose important enough to overcome the risks they mention, for example, helping to end racial isolation or to achieve a diverse student body in public schools. Cf. ante , at 17–18 (opinion of Kennedy, J.). Where that is so, the judge would carefully examine the program’s details to determine whether the use of race-conscious criteria is proportionate to the important ends it serves.    In my view, this contextual approach to scrutiny is altogether fitting. I believe that the law requires application here of a standard of review that is not “strict” in the traditional sense of that word, although it does require the careful review I have just described. See Gratz , supra , at 301 (Ginsburg, J., joined by Souter, J., dissenting); Adarand , supra , at 242–249 (Stevens, J., joined by Ginsburg, J., dissenting); 426 F. 3d, at 1193–1194 (Kozinski, J., concurring). Apparently Justice Kennedy also agrees that strict scrutiny would not apply in respect to certain “race-conscious” school board policies. See ante , at 9 (“Executive and legislative branches, which for generations now have considered these types of policies and procedures, should be permitted to employ them with candor and with confidence that a constitutional violation does not occur whenever a decisionmaker considers the impact a given approach might have on students of different races”).    Nonetheless, in light of Grutter and other precedents, see, e.g. , Bakke , 438 U. S., at 290 (opinion of Powell, J.), I shall adopt the first alternative. I shall apply the version of strict scrutiny that those cases embody. I shall consequently ask whether the school boards in Seattle and Louisville adopted these plans to serve a “compelling governmental interest” and, if so, whether the plans are “narrowly tailored” to achieve that interest. If the plans survive this strict review, they would survive less exacting review a fortiori . Hence, I conclude that the plans before us pass both parts of the strict scrutiny test. Consequently I must conclude that the plans here are permitted under the Constitution. III Applying the Legal Standard A Compelling Interest The principal interest advanced in these cases to justify the use of race-based criteria goes by various names. Sometimes a court refers to it as an interest in achieving racial “diversity.” Other times a court, like the plurality here, refers to it as an interest in racial “balancing.” I have used more general terms to signify that interest, describing it, for example, as an interest in promoting or preserving greater racial “integration” of public schools. By this term, I mean the school districts’ interest in eliminating school-by-school racial isolation and increasing the degree to which racial mixture characterizes each of the district’s schools and each individual student’s public school experience. Regardless of its name, however, the interest at stake possesses three essential elements. First, there is a historical and remedial element: an interest in setting right the consequences of prior conditions of segregation. This refers back to a time when public schools were highly segregated, often as a result of legal or administrative policies that facilitated racial segregation in public schools. It is an interest in continuing to combat the remnants of segregation caused in whole or in part by these school-related policies, which have often affected not only schools, but also housing patterns, employment practices, economic conditions, and social attitudes. It is an interest in maintaining hard-won gains. And it has its roots in preventing what gradually may become the de facto resegregation of America’s public schools. See Part I, supra , at 4; Appendix A, infra. See also ante , at 17 (opinion of Kennedy, J.) (“This Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children”).    Second, there is an educational element: an interest in overcoming the adverse educational effects produced by and associated with highly segregated schools. Cf. Grutter , 539 U. S. , at 345 (Ginsburg, J., concurring). Studies suggest that children taken from those schools and placed in integrated settings often show positive academic gains. See, e.g. , Powell, Living and Learning: Linking Housing and Education, in Pursuit of a Dream Deferred: Linking Housing and Education Policy 15, 35 (J. Powell, G. Kearney, & V. Kay eds. 2001) (hereinafter Powell); Hallinan, Diversity Effects on Student Outcomes: Social Science Evidence, 59 Ohio St. L. J. 733, 741–742 (1998) (hereinafter Hallinan).    Other studies reach different conclusions. See, e.g. , D. Armor, Forced Justice (1995). See also ante , at 15–17 (Thomas, J., concurring). But the evidence supporting an educational interest in racially integrated schools is well established and strong enough to permit a democratically elected school board reasonably to determine that this interest is a compelling one.    Research suggests, for example, that black children from segregated educational environments significantly increase their achievement levels once they are placed in a more integrated setting. Indeed in Louisville itself the achievement gap between black and white elementary school students grew substantially smaller (by seven percentage points) after the integration plan was implemented in 1975. See Powell 35. Conversely, to take another example, evidence from a district in Norfolk, Virginia, shows that resegregated schools led to a decline in the achievement test scores of children of all races. Ibid .    One commentator, reviewing dozens of studies of the educational benefits of desegregated schooling, found that the studies have provided “remarkably consistent” results, showing that: (1) black students’ educational achievement is improved in integrated schools as compared to racially isolated schools, (2) black students’ educational achievement is improved in integrated classes, and (3) the earlier that black students are removed from racial isolation, the better their educational outcomes. See Hallinan 741–742. Multiple studies also indicate that black alumni of integrated schools are more likely to move into occupations traditionally closed to African-Americans, and to earn more money in those fields. See, e.g. , Schofield, Review of Research on School Desegregation’s Impact on Elementary and Secondary School Students, in Handbook of Research on Multicultural Education 597, 606–607 (J. Banks & C. Banks eds. 1995). Cf. W. Bowen & D. Bok, The Shape of the River 118 (1998) (hereinafter Bowen & Bok).    Third, there is a democratic element: an interest in producing an educational environment that reflects the “pluralistic society” in which our children will live. Swann , 402 U. S., at 16. It is an interest in helping our children learn to work and play together with children of different racial backgrounds. It is an interest in teaching children to engage in the kind of cooperation among Americans of all races that is necessary to make a land of three hundred million people one Nation.    Again, data support this insight. See, e.g. , Hallinan 745; Quillian & Campbell, Beyond Black and White: The Present and Future of Multiracial Friendship Segregation, 68 Am. Sociological Rev. 540, 541 (2003) (hereinafter Quillian & Campbell); Dawkins & Braddock, The Continuing Significance of Desegregation: School Racial Composition and African American Inclusion in American Society, 63 J. Negro Ed. 394, 401–403 (1994) (hereinafter Dawkins & Braddock); Wells & Crain, Perpetuation Theory and the Long-Term Effects of School Desegregation, 64 Rev. Educational Research 531, 550 (1994) (hereinafter Wells & Crain).    There are again studies that offer contrary conclusions. See, e.g. , Schofield, School Desegregation and Intergroup Relations, in 17 Review of Research in Education 356 (G. Grant ed. 1991). See also ante , at 22–23 (Thomas, J., concurring). Again, however, the evidence supporting a democratic interest in racially integrated schools is firmly established and sufficiently strong to permit a school board to determine, as this Court has itself often found, that this interest is compelling.    For example, one study documented that “black and white students in desegregated schools are less racially prejudiced than those in segregated schools,” and that “interracial contact in desegregated schools leads to an increase in interracial sociability and friendship.” Hallinan 745. See also Quillian & Campbell 541. Cf. Bowen & Bok 155. Other studies have found that both black and white students who attend integrated schools are more likely to work in desegregated companies after graduation than students who attended racially isolated schools. Dawkins & Braddock 401–403; Wells & Crain 550. Further research has shown that the desegregation of schools can help bring adult communities together by reducing segregated housing. Cities that have implemented successful school desegregation plans have witnessed increased interracial contact and neighborhoods that tend to become less racially segregated. Dawkins & Braddock 403. These effects not only reinforce the prior gains of integrated primary and secondary education; they also foresee a time when there is less need to use race-conscious criteria.    Moreover, this Court from Swann to Grutter has treated these civic effects as an important virtue of racially diverse education. See, e.g. , Swann , supra , at 16; Seattle School Dist. No. 1 , 458 U. S., at 472–473. In Grutter, in the context of law school admissions, we found that these types of interests were, constitutionally speaking, “compelling.” See 539 U. S., at 330 (recognizing that Michigan Law School’s race-conscious admissions policy “promotes cross-racial understanding, helps to break down racial stereotypes, and enables [students] to better understand persons of different races,” and pointing out that “the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints” (internal quotation marks omitted; alteration in original)).    In light of this Court’s conclusions in Grutter, the “compelling” nature of these interests in the context of primary and secondary public education follows here a fortiori . Primary and secondary schools are where the education of this Nation’s children begins, where each of us begins to absorb those values we carry with us to the end of our days. As Justice Marshall said, “unless our children begin to learn together, there is little hope that our people will ever learn to live together.” Milliken v. Bradley , 418 U. S. 717 , 783 (1974) (dissenting opinion).    And it was Brown, after all, focusing upon primary and secondary schools, not Sweatt v. Painter , 339 U. S. 629 (1950), focusing on law schools, or McLaurin v. Oklahoma State Regents for Higher Ed. , 339 U. S. 637 (1950), focusing on graduate schools, that affected so deeply not only Americans but the world. R. Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality, p. x (1975) (arguing that perhaps no other Supreme Court case has “affected more directly the minds, hearts, and daily lives of so many Americans”); Patterson, Brown v. Board of Education xxvii (2001) (identifying Brown as “the most eagerly awaited and dramatic judicial decision of modern times”). See also Parents Involved VII, 426 F. 3d, at 1194 (Kozinski, J., concurring); Strauss, Discriminatory Intent and the Taming of Brown , 56 U. Chi. L. Rev. 935, 937 (1989) (calling Brown “the Supreme Court’s greatest anti-discrimination decision”); Brief for United States as Amicus Curiae in Brown, 347 U. S. 483 ; Dudziak, Brown as a Cold War Case, 91 J. Am. Hist. 32 (2004); A Great Decision, Hindustan Times (New Dehli, May 20, 1954), p. 5; USA Takes Positive Step, West African Pilot (Lagos, May 22, 1954), p. 2 (stating that Brown is an acknowledgment that the “United States should set an example for all other nations by taking the lead in removing from its national life all signs and traces of racial intolerance, arrogance or discrimination”). Hence, I am not surprised that Justice Kennedy finds that, “a district may consider it a compelling interest to achieve a diverse student population,” including a racially diverse population. Ante , at 17–18.    The compelling interest at issue here, then, includes an effort to eradicate the remnants, not of general “societal discrimination,” ante , at 23 (plurality opinion), but of primary and secondary school segregation, see supra , at 7, 14; it includes an effort to create school environments that provide better educational opportunities for all children; it includes an effort to help create citizens better prepared to know, to understand, and to work with people of all races and backgrounds, thereby furthering the kind of democratic government our Constitution foresees. If an educational interest that combines these three elements is not “compelling,” what is?    The majority acknowledges that in prior cases this Court has recognized at least two interests as compelling: an interest in “remedying the effects of past intentional discrimination,” and an interest in “diversity in higher education.” Ante , at 12, 13. But the plurality does not convincingly explain why those interests do not constitute a “compelling interest” here. How do the remedial interests here differ in kind from those at issue in the voluntary desegregation efforts that Attorney General Kennedy many years ago described in his letter to the President? Supra , at 19–20. How do the educational and civic interests differ in kind from those that underlie and justify the racial “diversity” that the law school sought in Grutter , where this Court found a compelling interest?    The plurality tries to draw a distinction by reference to the well-established conceptual difference between de jure segregation (“segregation by state action”) and de facto segregation (“racial imbalance caused by other factors”). Ante , at 28. But that distinction concerns what the Constitution requires school boards to do, not what it permits them to do. Compare, e.g. , Green, 391 U. S., at 437–438 (“School boards … operating state-compelled dual systems” have an “affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch”), with, e.g. , Milliken , 418 U. S., at 745 (the Constitution does not impose a duty to desegregate upon districts that have not been “shown to have committed any constitutional violation”).    The opinions cited by the plurality to justify its reliance upon the de jure/de facto distinction only address what remedial measures a school district may be constitutionally required to undertake. See, e.g. , Freeman v. Pitts , 503 U. S. 467 , 495 (1992). As to what is permitted , nothing in our equal protection law suggests that a State may right only those wrongs that it committed. No case of this Court has ever relied upon the de jure/de facto distinction in order to limit what a school district is voluntarily allowed to do. That is what is at issue here. And Swann , McDaniel, Crawford , North Carolina Bd. of Ed. , Harris , and Bustop made one thing clear: significant as the difference between de jure and de facto segregation may be to the question of what a school district must do, that distinction is not germane to the question of what a school district may do.    Nor does any precedent indicate, as the plurality suggests with respect to Louisville, ante , at 29, that remedial interests vanish the day after a federal court declares that a district is “unitary.” Of course, Louisville adopted those portions of the plan at issue here before a court declared Louisville “unitary.” Moreover, in Freeman , this Court pointed out that in “one sense of the term, vestiges of past segregation by state decree do remain in our society and in our schools. Past wrongs to the black race, wrongs committed by the State and in its name, are a stubborn fact of history. And stubborn facts of history linger and persist.” 503 U. S., at 495. See also ante , at 15 (opinion of Kennedy, J.). I do not understand why this Court’s cases, which rest the significance of a “unitary” finding in part upon the wisdom and desirability of returning schools to local control, should deprive those local officials of legal permission to use means they once found necessary to combat persisting injustices.    For his part, Justice Thomas faults my citation of various studies supporting the view that school districts can find compelling educational and civic interests in integrating their public schools. See ante , at 15–17, 23 (concurring opinion). He is entitled of course to his own opinion as to which studies he finds convincing—although it bears mention that even the author of some of Justice Thomas’ preferred studies has found some evidence linking integrated learning environments to increased academic achievement. Cf. ante , at 15–17 (opinion of Thomas, J.) (citing Armor & Rossell, Desegregation and Resegregation in the Public Schools, in Beyond the Color Line 239 (A. Thernstrom & S. Thernstrom eds. 2002); Brief for Armor et al. as Amici Curiae , with Rosen, Perhaps Not All Affirmative Action is Created Equal, N. Y. Times, June 11, 2006 (quoting David Armor as commenting “ ‘[w]e did find the [racial] achievement gap changing significantly ’ ” and acknowledging that he “ ‘did find a modest association for math but not reading in terms of racial composition and achievement, but there’s a big state variation’ ” (emphasis added)). If we are to insist upon unanimity in the social science literature before finding a compelling interest, we might never find one. I believe only that the Constitution allows democratically elected school boards to make up their own minds as to how best to include people of all races in one America. B Narrow Tailoring I next ask whether the plans before us are “narrowly tailored” to achieve these “compelling” objectives. I shall not accept the school board’s assurances on faith, cf. Miller v. Johnson , 515 U. S. 900 , 920 (1995), and I shall subject the “tailoring” of their plans to “rigorous judicial review.” Grutter , 539 U. S., at 388 (Kennedy, J., dissenting). Several factors, taken together, nonetheless lead me to conclude that the boards’ use of race-conscious criteria in these plans passes even the strictest “tailoring” test.    First, the race-conscious criteria at issue only help set the outer bounds of broad ranges. Cf. id., at 390 (Kennedy, J., dissenting) (expressing concern about “narrow fluctuation band[s]”). They constitute but one part of plans that depend primarily upon other, nonracial elements. To use race in this way is not to set a forbidden “quota.” See id., at 335 (“Properly understood, a ‘quota’ is a program in which a certain fixed number or proportion of opportunities are ‘reserved exclusively for certain minority groups’ ” (quoting Croson , 488 U. S., at 496)).    In fact, the defining feature of both plans is greater emphasis upon student choice. In Seattle, for example, in more than 80% of all cases, that choice alone determines which high schools Seattle’s ninth graders will attend. After ninth grade, students can decide voluntarily to transfer to a preferred district high school (without any consideration of race-conscious criteria). Choice , therefore, is the “predominant factor” in these plans. Race is not. See Grutter , supra , at 393 (Kennedy, J., dissenting) (allowing consideration of race only if it does “not become a predominant factor”).    Indeed, the race-conscious ranges at issue in these cases often have no effect, either because the particular school is not oversubscribed in the year in question, or because the racial makeup of the school falls within the broad range, or because the student is a transfer applicant or has a sibling at the school. In these respects, the broad ranges are less like a quota and more like the kinds of “useful starting points” that this Court has consistently found permissible, even when they set boundaries upon voluntary transfers, and even when they are based upon a community’s general population. See, e.g. , North Carolina Bd. of Ed. v. Swann , 402 U. S. 43 , 46 (1971) (no “absolute prohibition against [the] use” of mathematical ratios as a “starting point”); Swann , 402 U. S., at 24–25 (approving the use of a ratio reflecting “the racial composition of the whole school system” as a “useful starting point,” but not as an “inflexible requirement”). Cf. United States v. Montgomery County Bd. of Ed. , 395 U. S. 225 , 232 (1969) (approving a lower court desegregation order that “provided that the [school] board must move toward a goal under which ‘in each school the ratio of white to Negro faculty members is substantially the same as it is throughout the system,’ ” and “immediately” requiring “[t]he ratio of Negro to white teachers” in each school to be equal to “the ratio of Negro to white teachers in … the system as a whole”).    Second, broad-range limits on voluntary school choice plans are less burdensome, and hence more narrowly tailored, see Grutter, supra , at 341, than other race-conscious restrictions this Court has previously approved. See, e.g. , Swann , supra , at 26–27; Montgomery Co. Bd. of Ed. , supra , at 232. Indeed, the plans before us are more narrowly tailored than the race-conscious admission plans that this Court approved in Grutter . Here, race becomes a factor only in a fraction of students’ non-merit-based assignments—not in large numbers of students’ merit-based applications. Moreover, the effect of applying race-conscious criteria here affects potentially disadvantaged students less severely, not more severely, than the criteria at issue in Grutter . Disappointed students are not rejected from a State’s flagship graduate program; they simply attend a different one of the district’s many public schools, which in aspiration and in fact are substantially equal. Cf. Wygant , 476 U. S., at 283. And, in Seattle, the disadvantaged student loses at most one year at the high school of his choice. One will search Grutter in vain for similarly persuasive evidence of narrow tailoring as the school districts have presented here.    Third, the manner in which the school boards developed these plans itself reflects “narrow tailoring.” Each plan was devised to overcome a history of segregated public schools. Each plan embodies the results of local experience and community consultation. Each plan is the product of a process that has sought to enhance student choice, while diminishing the need for mandatory busing. And each plan’s use of race-conscious elements is diminished compared to the use of race in preceding integration plans.    The school boards’ widespread consultation, their experimentation with numerous other plans, indeed, the 40-year history that Part I sets forth, make clear that plans that are less explicitly race-based are unlikely to achieve the board’s “compelling” objectives. The history of each school system reveals highly segregated schools, followed by remedial plans that involved forced busing, followed by efforts to attract or retain students through the use of plans that abandoned busing and replaced it with greater student choice. Both cities once tried to achieve more integrated schools by relying solely upon measures such as redrawn district boundaries, new school building construction, and unrestricted voluntary transfers. In neither city did these prior attempts prove sufficient to achieve the city’s integration goals. See Parts I–A and I–B, supra , at 6–18 . Moreover, giving some degree of weight to a local school board’s knowledge, expertise, and concerns in these particular matters is not inconsistent with rigorous judicial scrutiny. It simply recognizes that judges are not well suited to act as school administrators. Indeed, in the context of school desegregation, this Court has repeatedly stressed the importance of acknowledging that local school boards better understand their own communities and have a better knowledge of what in practice will best meet the educational needs of their pupils. See Milliken , 418 U. S., at 741–42 (“No single tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process”). See also San Antonio Independent School Dist. v. Rodriguez , 411 U. S. 1 , 49–50 (1973) (extolling local control for “the opportunity it offers for participation in the decisionmaking process that determines how . . . local tax dollars will be spent. Each locality is free to tailor local programs to local needs. Pluralism also affords some opportunity for experimentation, innovation, and a healthy competition for educational excellence”); Epperson v. Arkansas , 393 U. S. 97 , 104 (1968) (“Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint. . . . By and large, public education in our Nation is committed to the control of state and local authorities”); Brown v. Board of Education , 349 U. S. 294 , 299 (1955) (Brown II) (“Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles”).    Experience in Seattle and Louisville is consistent with experience elsewhere. In 1987, the U. S. Commission on Civil Rights studied 125 large school districts seeking integration. It reported that most districts—92 of them, in fact—adopted desegregation policies that combined two or more highly race-conscious strategies, for example, rezoning or pairing. See Welch 83–91.    Having looked at dozens of amicus briefs, public reports, news stories, and the records in many of this Court’s prior cases, which together span 50 years of desegregation history in school districts across the Nation, I have discovered many examples of districts that sought integration through explicitly race-conscious methods, including mandatory busing. Yet, I have found no example or model that would permit this Court to say to Seattle and to Louisville: “Here is an instance of a desegregation plan that is likely to achieve your objectives and also makes less use of race-conscious criteria than your plans.” And, if the plurality cannot suggest such a model—and it cannot—then it seeks to impose a “narrow tailoring” requirement that in practice would never be met.    Indeed, if there is no such plan, or if such plans are purely imagined, it is understandable why, as the plurality notes, ante , at 27, Seattle school officials concentrated on diminishing the racial component of their districts’ plan, but did not pursue eliminating that element entirely. For the plurality now to insist as it does, ante , at 27–28, that these school districts ought to have said so officially is either to ask for the superfluous (if they need only make explicit what is implicit) or to demand the impossible (if they must somehow provide more proof that there is no hypothetical other plan that could work as well as theirs). I am not aware of any case in which this Court has read the “narrow tailoring” test to impose such a requirement. Cf. People Who Care v. Rockford Bd. of Ed. School Dist. No. 205 , 961 F. 2d 1335, 1338 (CA7 1992) (Easterbrook, J.) (“Would it be necessary to adjudicate the obvious before adopting (or permitting the parties to agree on) a remedy . . . ?”).    The plurality also points to the school districts’ use of numerical goals based upon the racial breakdown of the general school population, and it faults the districts for failing to prove that no other set of numbers will work . See ante , at 18–20. The plurality refers to no case in support of its demand. Nor is it likely to find such a case. After all, this Court has in many cases explicitly permitted districts to use target ratios based upon the district’s underlying population. See, e.g. , Swann , 402 U. S., at 24–25; North Carolina Bd. of Ed. , 402 U. S., at 46; Montgomery County Bd. of Ed. , 395 U. S., at 232. The reason is obvious: In Seattle, where the overall student population is 41% white, permitting 85% white enrollment at a single school would make it much more likely that other schools would have very few white students, whereas in Jefferson County, with a 60% white enrollment, one school with 85% white students would be less likely to skew enrollments elsewhere.    Moreover, there is research-based evidence supporting, for example, that a ratio no greater than 50% minority—which is Louisville’s starting point, and as close as feasible to Seattle’s starting point—is helpful in limiting the risk of “white flight.” See Orfield, Metropolitan School Desegregation: Impacts on Metropolitan Society, in Pursuit of a Dream Deferred: Linking Housing and Education Policy 121, 125. Federal law also assumes that a similar target percentage will help avoid detrimental “minority group isolation.” See No Child Left Behind Act of 2001, Title V, Part C, 115 Stat. 1806, 20 U. S. C. §7231 et seq. (2000 ed., Supp. IV); 34 CFR §§280.2, 280.4 (2006) (implementing regulations). What other numbers are the boards to use as a “starting point”? Are they to spend days, weeks, or months seeking independently to validate the use of ratios that this Court has repeatedly authorized in prior cases? Are they to draw numbers out of thin air? These districts have followed this Court’s holdings and advice in “tailoring” their plans. That, too, strongly supports the lawfulness of their methods.    Nor could the school districts have accomplished their desired aims ( e.g. , avoiding forced busing, countering white flight, maintaining racial diversity) by other means. Nothing in the extensive history of desegregation efforts over the past 50 years gives the districts, or this Court, any reason to believe that another method is possible to accomplish these goals. Nevertheless, Justice Kennedy suggests that school boards: “may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race.” Ante , at 8. But, as to “strategic site selection,” Seattle has built one new high school in the last 44 years (and that specialized school serves only 300 students). In fact, six of the Seattle high schools involved in this case were built by the 1920’s; the other four were open by the early 1960’s. See generally N. Thompson & C. Marr, Building for Learning: Seattle Public Schools Histories, 1862–2000 (2002). As to “drawing” neighborhood “attendance zones” on a racial basis, Louisville tried it, and it worked only when forced busing was also part of the plan. See supra , at 12–14. As to “allocating resources for special programs,” Seattle and Louisville have both experimented with this; indeed, these programs are often referred to as “magnet schools,” but the limited desegregation effect of these efforts extends at most to those few schools to which additional resources are granted. In addition, there is no evidence from the experience of these school districts that it will make any meaningful impact. See Brief for Respondents in No. 05–908, p. 42. As to “recruiting faculty” on the basis of race, both cities have tried, but only as one part of a broader program. As to “tracking enrollments, performance and other statistics by race,” tracking reveals the problem; it does not cure it.    Justice Kennedy sets forth two additional concerns related to “narrow tailoring.” In respect to Louisville, he says first that officials stated (1) that kindergarten assignments are not subject to the race-conscious guidelines, and (2) that the child at issue here was denied permission to attend the kindergarten he wanted because of those guidelines. Both, he explains, cannot be true. He adds that this confusion illustrates that Louisville’s assignment plan (or its explanation of it to this Court) is insufficiently precise in respect to “who makes the decisions,” “oversight,” “the precise circumstances in which an assignment decision” will be made; and “which of two similarly situated children will be subjected to a given race-based decision.” Ante , at 4.    The record suggests, however, that the child in question was not assigned to the school he preferred because he missed the kindergarten application deadline. See App. in 05–915, p. 20. After he had enrolled and after the academic year had begun, he then applied to transfer to his preferred school after the kindergarten assignment deadline had passed, id. , at 21, possibly causing school officials to treat his late request as an application to transfer to the first grade, in respect to which the guidelines apply. I am not certain just how the remainder of Justice Kennedy’s concerns affect the lawfulness of the Louisville program, for they seem to be failures of explanation, not of administration. But Louisville should be able to answer the relevant questions on remand.    Justice Kennedy’s second concern is directly related to the merits of Seattle’s plan: Why does Seattle’s plan group Asian-Americans, Hispanic-Americans, Native-Americans, and African-Americans together, treating all as similar minorities? Ante , at 6–7. The majority suggests that Seattle’s classification system could permit a school to be labeled “diverse” with a 50% Asian-American and 50% white student body, and no African-American students, Hispanic students, or students of other ethnicity. Ante , at 6; ante , at 15–16 (opinion of the Court).    The 50/50 hypothetical has no support in the record here; it is conjured from the imagination. In fact, Seattle apparently began to treat these different minority groups alike in response to the federal Emergency School Aid Act’s requirement that it do so. Siqueland 116–117. See also Hanawalt 31; Pub. L. 95–561, Tit. VI (1978) (prescribing percentage enrollment requirements for “minority” students); Siqueland 55 (discussing HEW definition of “minority”). Moreover, maintaining this federally mandated system of classification makes sense insofar as Seattle’s experience indicates that the relevant circumstances in respect to each of these different minority groups are roughly similar, e.g. , in terms of residential patterns, and call for roughly similar responses. This is confirmed by the fact that Seattle has been able to achieve a desirable degree of diversity without the greater emphasis on race that drawing fine lines among minority groups would require. Does the plurality’s view of the Equal Protection Clause mean that courts must give no weight to such a board determination? Does it insist upon especially strong evidence supporting inclusion of multiple minority groups in an otherwise lawful government minority-assistance program? If so, its interpretation threatens to produce divisiveness among minority groups that is incompatible with the basic objectives of the Fourteenth Amendment. Regardless, the plurality cannot object that the constitutional defect is the individualized use of race and simultaneously object that not enough account of individuals’ race has been taken.    Finally, I recognize that the Court seeks to distinguish Grutter from these cases by claiming that Grutter arose in “ ‘the context of higher education.’ ” Ante , at 16. But that is not a meaningful legal distinction. I have explained why I do not believe the Constitution could possibly find “compelling” the provision of a racially diverse education for a 23-year-old law student but not for a 13-year-old high school pupil. See supra , at 46–48. And I have explained how the plans before us are more narrowly tailored than those in Grutter . See supra , at 45. I add that one cannot find a relevant distinction in the fact that these school districts did not examine the merits of applications “individual[ly].” See ante , at 13–15. The context here does not involve admission by merit; a child’s academic, artistic, and athletic “merits” are not at all relevant to the child’s placement. These are not affirmative action plans, and hence “individualized scrutiny” is simply beside the point.    The upshot is that these plans’ specific features—(1) their limited and historically-diminishing use of race, (2) their strong reliance upon other non-race-conscious elements, (3) their history and the manner in which the districts developed and modified their approach, (4) the comparison with prior plans, and (5) the lack of reasonably evident alternatives—together show that the districts’ plans are “narrowly tailored” to achieve their “compelling” goals. In sum, the districts’ race-conscious plans satisfy “strict scrutiny” and are therefore lawful. IV Direct Precedent Two additional precedents more directly related to the plans here at issue reinforce my conclusion. The first consists of the District Court determination in the Louisville case when it dissolved its desegregation order that there was “overwhelming evidence of the Board’s good faith compliance with the desegregation Decree and its underlying purposes,” indeed that the Board had “treated the ideal of an integrated system as much more than a legal obligation—they consider it a positive, desirable policy and an essential element of any well-rounded public school education.” Hampton II , 102 F. Supp. 2d, at 370. When the court made this determination in 2000, it did so in the context of the Louisville desegregation plan that the board had adopted in 1996. That plan, which took effect before 1996, is the very plan that in all relevant respects is in effect now and is the subject of the present challenge.    No one claims that (the relevant portion of) Louisville’s plan was unlawful in 1996 when Louisville adopted it. To the contrary, there is every reason to believe that it represented part of an effort to implement the 1978 desegregation order. But if the plan was lawful when it was first adopted and if it was lawful the day before the District Court dissolved its order, how can the plurality now suggest that it became unlawful the following day? Is it conceivable that the Constitution, implemented through a court desegregation order, could permit (perhaps require ) the district to make use of a race-conscious plan the day before the order was dissolved and then forbid the district to use the identical plan the day after? See id., at 380 (“The very analysis for dissolving desegregation decrees supports continued maintenance of a desegregated system as a compelling state interest”). The Equal Protection Clause is not incoherent. And federal courts would rightly hesitate to find unitary status if the consequences of the ruling were so dramatically disruptive.    Second, Seattle School Dist. No. 1 , 458 U. S. 457 , is directly on point. That case involves the original Seattle Plan, a more heavily race-conscious predecessor of the very plan now before us. In Seattle School Dist. No. 1 , this Court struck down a state referendum that effectively barred implementation of Seattle’s desegregation plan and “burden[ed] all future attempts to integrate Washington schools in districts throughout the State.” Id. , at 462–463, 483. Because the referendum would have prohibited the adoption of a school-integration plan that involved mandatory busing, and because it would have imposed a special burden on school integration plans (plans that sought to integrate previously segregated schools), the Court found it unconstitutional. Id ., at 483–487.    In reaching this conclusion, the Court did not directly address the constitutional merits of the underlying Seattle plan. But it explicitly cited Swann ’s statement that the Constitution permitted a local district to adopt such a plan. 458 U. S., at 472, n. 15. It also cited to Justice Powell’s opinion in Bakke , approving of the limited use of race-conscious criteria in a university-admissions “affirmative action” case. 458 U. S., at 472, n. 15 . In addition, the Court stated that “[a]ttending an ethnically diverse school,” id. , at 473, could help prepare “minority children for citizenship in our pluralistic society,” hopefully “teaching members of the racial majority to live in harmony and mutual respect with children of minority heritage.” Ibid. (internal quotation marks and citation omitted).    It is difficult to believe that the Court that held unconstitutional a referendum that would have interfered with the implementation of this plan thought that the integration plan it sought to preserve was itself an unconstitutional plan. And if Seattle School Dist. No. 1 is premised upon the constitutionality of the original Seattle Plan, it is equally premised upon the constitutionality of the present plan, for the present plan is the Seattle Plan, modified only insofar as it places even less emphasis on race-conscious elements than its predecessors.    It is even more difficult to accept the plurality’s contrary view, namely that the underlying plan was unconstitutional. If that is so, then all of Seattle’s earlier (even more race-conscious) plans must also have been unconstitutional. That necessary implication of the plurality’s position strikes the 13th chime of the clock. How could the plurality adopt a constitutional standard that would hold unconstitutional large numbers of race-conscious integration plans adopted by numerous school boards over the past 50 years while remaining true to this Court’s desegregation precedent? V Consequences The Founders meant the Constitution as a practical document that would transmit its basic values to future generations through principles that remained workable over time. Hence it is important to consider the potential consequences of the plurality’s approach, as measured against the Constitution’s objectives.    To do so provides further reason to believe that the plurality’s approach is legally unsound. For one thing, consider the effect of the plurality’s views on the parties before us and on similar school districts throughout the Nation. Will Louisville and all similar school districts have to return to systems like Louisville’s initial 1956 plan, which did not consider race at all? See supra , at 12. That initial 1956 plan proved ineffective. Sixteen years into the plan, 14 of 19 middle and high schools remained almost totally white or almost totally black. Ibid. The districts’ past and current plans are not unique. They resemble other plans, promulgated by hundreds of local school boards, which have attempted a variety of desegregation methods that have evolved over time in light of experience. A 1987 Civil Rights Commission Study of 125 school districts in the Nation demonstrated the breadth and variety of desegregation plans:    “The [study] documents almost 300 desegregation plans that were implemented between 1961 and 1985. The degree of heterogeneity within these districts is immediately apparent. They are located in every region of the country and range in size from Las Cruces, New Mexico, with barely over 15,000 students attending 23 schools in 1968, to New York City, with more than one million students in 853 schools. The sample includes districts in urban areas of all sizes, suburbs ( e.g. , Arlington County, Virginia) and rural areas ( e.g. , Jefferson Parish, Louisiana, and Raleigh County, West Virginia). It contains 34 countywide districts with central cities (the 11 Florida districts fit this description, plus Clark County, Nevada and others) and a small number of consolidated districts (New Castle County, Delaware and Jefferson County, Kentucky).    “The districts also vary in their racial compositions and levels of segregation. Initial plans were implemented in Mobile, Alabama and Mecklenburg County, North Carolina, and in a number of other southern districts in the face of total racial segregation. At the other extreme, Santa Clara, California had a relatively even racial distribution prior to its 1979 desegregation plan. When the 1965 plan was designed for Harford County, Maryland, the district was 92 percent white. Compton, California, on the other hand, became over 99 percent black in the 1980s, while Buffalo, New York had a virtual 50–50 split between white and minority students prior to its 1977 plan.    “It is not surprising to find a large number of different desegregation strategies in a sample with this much variation.” Welch 23 (footnotes omitted). A majority of these desegregation techniques explicitly considered a student’s race. See id. , at 24–28. Transfer plans, for example, allowed students to shift from a school in which they were in the racial majority to a school in which they would be in a racial minority. Some districts, such as Richmond, California, and Buffalo, New York, permitted only “one-way” transfers, in which only black students attending predominantly black schools were permitted to transfer to designated receiver schools. Id. , at 25. Fifty-three of the 125 studied districts used transfers as a component of their plans. Id., at 83–91.    At the state level, 46 States and Puerto Rico have adopted policies that encourage or require local school districts to enact interdistrict or intradistrict open choice plans. Eight of those States condition approval of transfers to another school or district on whether the transfer will produce increased racial integration. Eleven other States require local boards to deny transfers that are not in compliance with the local school board’s desegre- gation plans. See Education Commission of the States, Open Enrollment: 50-State Report (2007), online at http://mb2.ecs.org/reports/Report.aspx?id=268.    Arkansas, for example, provides by statute that “[n]o student may transfer to a nonresident district where the percentage of enrollment for the student’s race exceeds that percentage in the student’s resident district.” Ark. Code Ann. §6–18–206(f)(1), as amended 2007 Ark. Gen. Acts 552 (2007). An Ohio statute provides, in respect to student choice, that each school district must establish “[p]rocedures to ensure that an appropriate racial balance is maintained in the district schools.” Ohio Rev. Code Ann. §3313.98(B)(2)(b)(iii) (Lexis Supp. 2006). Ohio adds that a “district may object to the enrollment of a native student in an adjacent or other district in order to maintain an appropriate racial balance.” §3313.98 (F)(1)(a).    A Connecticut statute states that its student choice program will seek to “preserve racial and ethnic balance.” Conn. Gen. Stat. §10–266aa(b)(2) (2007). Connecticut law requires each school district to submit racial group population figures to the State Board of Education. §10–226a. Another Connecticut regulation provides that “[a]ny school in which the Proportion for the School falls outside of a range from 25 percentage points less to 25 percentage points more than the Comparable Proportion for the School District, shall be determined to be racially imbalanced.” Conn. Agencies Regs. §10–226e–3(b) (1999). A “racial imbalance” determination requires the district to submit a plan to correct the racial imbalance, which plan may include “mandatory pupil reassignment.” §§10–226e–5(a) and (c)(4).    Interpreting that State’s Constitution, the Connecticut Supreme Court has held legally inadequate the reliance by a local school district solely upon some of the techniques Justice Kennedy today recommends ( e.g. , reallocating resources, etc.). See Sheff v. O’Neill , 238 Conn. 1, 678 A. 2d 1267 (1996). The State Supreme Court wrote: “Despite the initiatives undertaken by the defendants to alleviate the severe racial and ethnic disparities among school districts, and despite the fact that the defendants did not intend to create or maintain these disparities, the disparities that continue to burden the education of the plaintiffs infringe upon their fundamental state constitutional right to a substantially equal educational opportunity.” Id. , at 42, 678 A. 2d, at 1289.    At a minimum, the plurality’s views would threaten a surge of race-based litigation. Hundreds of state and federal statutes and regulations use racial classifications for educational or other purposes. See supra , at 27. In many such instances, the contentious force of legal challenges to these classifications, meritorious or not, would displace earlier calm.    The wide variety of different integration plans that school districts use throughout the Nation suggests that the problem of racial segregation in schools, including de facto segregation, is difficult to solve. The fact that many such plans have used explicitly racial criteria suggests that such criteria have an important, sometimes necessary, role to play. The fact that the controlling opinion would make a school district’s use of such criteria often unlawful (and the plurality’s “colorblind” view would make such use always unlawful) suggests that today’s opinion will require setting aside the laws of several States and many local communities.    As I have pointed out, supra , at 4, de facto resegregation is on the rise. See Appendix A, infra . It is reasonable to conclude that such resegregation can create serious educational, social, and civic problems. See supra, at 37–45. Given the conditions in which school boards work to set policy, see supra, at 20–21, they may need all of the means presently at their disposal to combat those problems. Yet the plurality would deprive them of at least one tool that some districts now consider vital—the limited use of broad race-conscious student population ranges.    I use the words “may need” here deliberately. The plurality, or at least those who follow Justice Thomas’ “ ‘color-blind’ ” approach, see ante , at 26–27 (Thomas, J., concurring); Grutter , 539 U. S., at 353–354 (Thomas, J., concurring in part and dissenting in part), may feel confident that, to end invidious discrimination, one must end all governmental use of race-conscious criteria including those with inclusive objectives. See ante , at 40–41 (plurality opinion); see also ante , at 26 (Thomas, J., concurring). By way of contrast, I do not claim to know how best to stop harmful discrimination; how best to create a society that includes all Americans; how best to overcome our serious problems of increasing de facto segregation, troubled inner city schooling, and poverty correlated with race. But, as a judge, I do know that the Constitution does not authorize judges to dictate solutions to these problems. Rather, the Constitution creates a democratic political system through which the people themselves must together find answers. And it is for them to debate how best to educate the Nation’s children and how best to administer America’s schools to achieve that aim. The Court should leave them to their work. And it is for them to decide, to quote the plurality’s slogan, whether the best “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Ante , at 40–41. See also Parents Involved VII , 426 F. 3d, at 1222 (Bea, J., dissenting) (“The way to end racial discrimination is to stop discriminating by race”). That is why the Equal Protection Clause outlaws invidious discrimination, but does not similarly forbid all use of race-conscious criteria.    Until today, this Court understood the Constitution as affording the people, acting through their elected representatives, freedom to select the use of “race-conscious” criteria from among their available options. See Adarand Constructors, Inc. , 515 U. S., at 237 (“[S]trict scrutiny” in this context is “[not] ‘strict in theory, but fatal in fact’ ” (quoting Fullilove , 448 U. S., at 519 (Marshall, J., concurring in judgment))). Today, however, the Court restricts (and some Members would eliminate) that leeway. I fear the consequences of doing so for the law, for the schools, for the democratic process, and for America’s efforts to create, out of its diversity, one Nation. VI Conclusions To show that the school assignment plans here meet the requirements of the Constitution, I have written at exceptional length. But that length is necessary. I cannot refer to the history of the plans in these cases to justify the use of race-conscious criteria without describing that history in full. I cannot rely upon Swann ’s statement that the use of race-conscious limits is permissible without showing, rather than simply asserting, that the statement represents a constitutional principle firmly rooted in federal and state law. Nor can I explain my disagreement with the Court’s holding and the plurality’s opinion, without offering a detailed account of the arguments they propound and the consequences they risk.    Thus, the opinion’s reasoning is long. But its conclusion is short: The plans before us satisfy the requirements of the Equal Protection Clause. And it is the plurality’s opinion, not this dissent that “fails to ground the result it would reach in law.” Ante , at 28.    Four basic considerations have led me to this view. First , the histories of Louisville and Seattle reveal complex circumstances and a long tradition of conscientious efforts by local school boards to resist racial segregation in public schools. Segregation at the time of Brown gave way to expansive remedies that included busing, which in turn gave rise to fears of white flight and resegregation. For decades now, these school boards have considered and adopted and revised assignment plans that sought to rely less upon race, to emphasize greater student choice, and to improve the conditions of all schools for all students, no matter the color of their skin, no matter where they happen to reside. The plans under review—which are less burdensome, more egalitarian, and more effective than prior plans—continue in that tradition. And their history reveals school district goals whose remedial, educational, and democratic elements are inextricably intertwined each with the others. See Part I, supra , at 2–21. Second , since this Court’s decision in Brown , the law has consistently and unequivocally approved of both voluntary and compulsory race-conscious measures to combat segregated schools. The Equal Protection Clause, ratified following the Civil War, has always distinguished in practice between state action that excludes and thereby subordinates racial minorities and state action that seeks to bring together people of all races. From Swann to Grutter , this Court’s decisions have emphasized this distinction, recognizing that the fate of race relations in this country depends upon unity among our children, “for unless our children begin to learn together, there is little hope that our people will ever learn to live together.” Milliken , 418 U. S., at 783 (Marshall, J., dissenting). See also C. Sumner, Equality Before the Law: Unconstitutionality of Separate Colored Schools in Massachusetts, in 2 The Works of Charles Sumner 327, 371 (1849) (“The law contemplates not only that all be taught, but that all shall be taught together”). See Part II, supra , at 21–37. Third , the plans before us, subjected to rigorous judicial review, are supported by compelling state interests and are narrowly tailored to accomplish those goals. Just as diversity in higher education was deemed compelling in Grutter , diversity in public primary and secondary schools—where there is even more to gain—must be, a fortiori , a compelling state interest. Even apart from Grutter , five Members of this Court agree that “avoiding racial isolation” and “achiev[ing] a diverse student population” remain today compelling interests. Ante , at 17–18 (opinion of Kennedy, J.). These interests combine remedial, educational, and democratic objectives. For the reasons discussed above, however, I disagree with Justice Kennedy that Seattle and Louisville have not done enough to demonstrate that their present plans are necessary to continue upon the path set by Brown . These plans are more “narrowly tailored” than the race-conscious law school admissions criteria at issue in Grutter . Hence, their lawfulness follows a fortiori from this Court’s prior decisions. See Parts III–IV, supra , at 37–57. Fourth , the plurality’s approach risks serious harm to the law and for the Nation. Its view of the law rests either upon a denial of the distinction between exclusionary and inclusive use of race-conscious criteria in the context of the Equal Protection Clause, or upon such a rigid application of its “test” that the distinction loses practical significance. Consequently, the Court’s decision today slows down and sets back the work of local school boards to bring about racially diverse schools. See Part V, supra , at 57–63.    Indeed, the consequences of the approach the Court takes today are serious. Yesterday, the plans under review were lawful. Today, they are not. Yesterday, the citizens of this Nation could look for guidance to this Court’s unanimous pronouncements concerning desegregation. Today, they cannot. Yesterday, school boards had available to them a full range of means to combat segregated schools. Today, they do not.    The Court’s decision undermines other basic institutional principles as well. What has happened to stare decisis? The history of the plans before us, their educational importance, their highly limited use of race—all these and more—make clear that the compelling interest here is stronger than in Grutter . The plans here are more narrowly tailored than the law school admissions program there at issue. Hence, applying Grutter ’s strict test, their lawfulness follows a fortiori . To hold to the contrary is to transform that test from “strict” to “fatal in fact”—the very opposite of what Grutter said. And what has happened to Swann? To McDaniel? To Crawford? To Harris? To School Committee of Boston? To Seattle School Dist. No. 1? After decades of vibrant life, they would all, under the plurality’s logic, be written out of the law.    And what of respect for democratic local decisionmaking by States and school boards? For several decades this Court has rested its public school decisions upon Swann ’s basic view that the Constitution grants local school districts a significant degree of leeway where the inclusive use of race-conscious criteria is at issue. Now localities will have to cope with the difficult problems they face (including resegregation) deprived of one means they may find necessary.    And what of law’s concern to diminish and peacefully settle conflict among the Nation’s people? Instead of accommodating different good-faith visions of our country and our Constitution, today’s holding upsets settled expectations, creates legal uncertainty, and threatens to produce considerable further litigation, aggravating race-related conflict.    And what of the long history and moral vision that the Fourteenth Amendment itself embodies? The plurality cites in support those who argued in Brown against segregation, and Justice Thomas likens the approach that I have taken to that of segregation’s defenders. See ante , at 39–41 (plurality opinion) (comparing Jim Crow segregation to Seattle and Louisville’s integration polices); ante , at 28–32 (Thomas, J., concurring). But segregation policies did not simply tell schoolchildren “where they could and could not go to school based on the color of their skin,” ante , at 40 (plurality opinion); they perpetuated a caste system rooted in the institutions of slavery and 80 years of legalized subordination. The lesson of history, see ante , at 39 (plurality opinion), is not that efforts to continue racial segregation are constitutionally indistinguishable from efforts to achieve racial integration. Indeed, it is a cruel distortion of history to compare Topeka, Kansas, in the 1950’s to Louisville and Seattle in the modern day—to equate the plight of Linda Brown (who was ordered to attend a Jim Crow school) to the circumstances of Joshua McDonald (whose request to transfer to a school closer to home was initially declined). This is not to deny that there is a cost in applying “a state-mandated racial label.” Ante , at 17 (Kennedy, J., concurring in part and concurring in judgment). But that cost does not approach, in degree or in kind, the terrible harms of slavery, the resulting caste system, and 80 years of legal racial segregation. *  *  *    Finally, what of the hope and promise of Brown? For much of this Nation’s history, the races remained divided. It was not long ago that people of different races drank from separate fountains, rode on separate buses, and studied in separate schools. In this Court’s finest hour, Brown v. Board of Education challenged this history and helped to change it. For Brown held out a promise. It was a promise embodied in three Amendments designed to make citizens of slaves. It was the promise of true racial equality—not as a matter of fine words on paper, but as a matter of everyday life in the Nation’s cities and schools. It was about the nature of a democracy that must work for all Americans. It sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live.    Not everyone welcomed this Court’s decision in Brown . Three years after that decision was handed down, the Governor of Arkansas ordered state militia to block the doors of a white schoolhouse so that black children could not enter. The President of the United States dispatched the 101st Airborne Division to Little Rock, Arkansas, and federal troops were needed to enforce a desegregation decree. See Cooper v. Aaron , 358 U. S. 1 (1958). Today, almost 50 years later, attitudes toward race in this Nation have changed dramatically. Many parents, white and black alike, want their children to attend schools with children of different races. Indeed, the very school districts that once spurned integration now strive for it. The long history of their efforts reveals the complexities and difficulties they have faced. And in light of those challenges, they have asked us not to take from their hands the instruments they have used to rid their schools of racial segregation, instruments that they believe are needed to overcome the problems of cities divided by race and poverty. The plurality would decline their modest request.    The plurality is wrong to do so. The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown . To invalidate the plans under review is to threaten the promise of Brown . The plurality’s position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret.    I must dissent. APPENDIXES TO OPINION OF Breyer, J. A Resegregation Trends Percentage of Black Students in 90–100 Percent Nonwhite and Majority Nonwhite Public Schools by Region, 1950–1954 to 2000, Fall Enrollment Region 1950–1954 1960–1961 1968 1972 1976 1980 1989 1999 2000 Percentage in 90–100% Nonwhite Schools Northeast — 40 42.7 46.9 51.4 48.7 49.8 50.2 51.2 Border 100 59 60.2 54.7 42.5 37.0 33.7 39.7 39.6 South 100 100 77.8 24.7 22.4 23.0 26.0 31.1 30.9 Midwest 53 56 58.0 57.4 51.1 43.6 40.1 45.0 46.3 West — 27 50.8 42.7 36.3 33.7 26.7 29.9 29.5 U. S. 64.3 38.7 35.9 33.2 33.8 37.4 37.4 Percentage in 50–100% Nonwhite Schools Northeast — 62 66.8 69.9 72.5 79.9 75.4 77.5 78.3 Border 100 69 71.6 67.2 60.1 59.2 58.0 64.8 67.0 South 100 100 80.9 55.3 54.9 57.1 59.3 67.3 69.0 Midwest 78 80 77.3 75.3 70.3 69.5 69.4 67.9 73.3 West — 69 72.2 68.1 67.4 66.8 67.4 76.7 75.3 U. S. 76.6 63.6 62.4 62.9 64.9 70.1 71.6 Source: C. Clotfelter, After Brown: The Rise and Retreat of School Desegregation 56 (2004) (Table 2.1). Changes in the Percentage of White Students in Schools Attended by the Average Black Student by State, 1970–2003 (includes States with 5% or greater enrollment of black students in 1970 and 1980) % White % White Students in School of Average Black Student Change 2003 1970 1980 1991 2003 1970–1980 1980–1991 1991–2003 Alabama 60 33 38 35 30 5 -3 -5 Arkansas 70 43 47 44 36 4 -3 -8 California 33 26 28 27 22 2 -1 -5 Connecticut 68 44 40 35 32 -4 -5 -3 Delaware 57 47 69 65 49 22 -4 -16 Florida 51 43 51 43 34 8 -8 -9 Georgia 52 35 38 35 30 3 -3 -5 Illinois 57 15 19 20 19 4 1 -1 Indiana 82 32 39 47 41 7 8 -6 Kansas 76 52 59 58 51 7 -1 -7 Kentucky 87 49 74 42 65 25 -2 -7 Louisiana 48 31 33 32 27 2 -1 -5 Maryland 50 30 35 29 23 5 -6 -6 Massachusetts 75 48 50 45 38 2 -5 -7 Michigan 73 22 23 22 22 1 -1 0 Mississippi 47 30 29 30 26 -1 1 -4 Missouri 78 21 34 40 33 13 6 -7 Nebraska 80 33 66 62 49 33 -4 -13 New Jersey 58 32 26 26 25 -6 0 -1 New York 54 29 23 20 18 -6 -3 -2 Nevada 51 56 68 62 38 12 -6 -24 N. Carolina 58 49 54 51 40 5 -3 -11 Ohio 79 28 43 41 32 15 -2 -9 Oklahoma 61 42 58 51 42 16 -7 -9 Pennsylvania 76 28 29 31 30 1 2 -1 S. Carolina 54 41 43 42 39 2 -1 -3 Tennessee 73 29 38 36 32 9 -2 -4 Texas 39 31 35 35 27 4 0 -8 Virginia 61 42 47 46 41 5 -1 -5 Wisconsin 79 26 45 39 29 19 -6 -10 Source: G. Orfield & C. Lee, Racial Transformation and the Changing Nature of Segregation 18 (Table 8) (Jan. 2006), (Civil Rights Project), online at http://www.civilrightspro ject.harvard.edu/research/deseg/Racial_Transformation.pdf. Percentage of White Students in Schools Attended by the Average Black Student, 1968–2000 [Graphic omitted; see printed opinion] Source: Modified from E. Frankenberg, C. Lee, & G. Orfield, A Multiracial Society with Segregated Schools: Are We Losing the Dream?, p. 30, fig. 5 (Jan. 2003), online at http://www.civilrightsproject.harvard.edu/ research / reseg03 /Are WeLosingtheDream.pdf (Frankenberg, Lee, & Orfield) (using U. S. Dept. of Education and National Center for Education Statistics Common Core data). Percentage of Students in Minority Schools by Race, 2000–2001 [Graphic omitted; see printed opinion] Source: Id. , at 28, fig. 4. B Sources for Parts I–A and I–B Part I–A: Seattle Section 1. Segregation ¶1 C. Schmid & W. McVey, Growth and Distribution of Minority Races in Seattle, Washington, 3, 7–9 (1964); F. Hanawalt & R. Williams, The History of Desegregation in Seattle Public Schools, 1954–1981, pp. 1–7 (1981) (hereinafter Hanawalt); Taylor, The Civil Rights Movement in the American West: Black Protest in Seattle, 1960–1970, 80 J. Negro Hist. 1, 2–3 (1995); A. Siqueland, Without A Court Order: The Desegregation of Seattle’s Schools 10 (1981) (hereinafter Siqueland); D. Pieroth, Desegregating the Public Schools, Seattle, Washington, 1954–1968, p. 6 (Dissertation Draft 1979) (hereinafter Pieroth). Section 2. Preliminary Challenges, 1956 to 1969 ¶1 Pieroth 32, 41; Hanawalt 4. ¶2 Hanawalt 11–13. ¶3 Id ., at 5, 13, 27. Section 3. The NAACP’s First Legal Challenge and Seattle’s Response, 1969 to 1977 ¶1 Complaint in Adams v. Forbes Bottomly , Civ. No. 6704 (WD Wash., 1969), pp. 10–11. ¶2 Id. , at 10, 14–15. ¶3 Planning and Evaluation Dept., Seattle Public Schools, The Plan Adopted by the Seattle School Board to Desegregate Fifth, Sixth, Seventh, and Eighth Grade Pupils in the Garfield, Lincoln, and Roosevelt High School Districts by September, 1971, pp. 6, 11 (on file with the University of Washington Library); see generally Siqueland 12–15; Hanawalt 18–20. ¶4 Siqueland 5, 7, 21. Section 4. The NAACP’s Second Legal Challenge , 1977 ¶1 Administrative Complaint in Seattle Branch, NAACP v. Seattle School Dist. No. 1 , pp. 2–3 (OCR, Apr. 22, 1977) (OCR Complaint) (filed with Court as Exhibit in Seattle School Dist. No. 1 , 458 U. S. 457 ); see generally Siqueland 23–24 . ¶2 Memorandum of Agreement between Seattle School District No. 1 of King Cty., Washington, and the OCR (June 9, 1978) (filed with the Court as Exh. A to Kiner Affidavit in Seattle School Dist. No. 1 , supra . Section 5. The Seattle Plan: Mandatory Busing, 1978 to 1988 ¶1 See generally Seattle School Dist. No. 1 , supra, at 461; Seattle Public Schools Desegregation Planning Office, Proposed Alternative Desegregation Plans: Options for Eliminating Racial Imbalance by the 1979-80 School Year (Sept. 1977) (filed with the Court as Exh. B to Roe Affidavit in Seattle School Dist. No. 1 , supra ); Hanawalt 36–38, 40; Siqueland 3, 184, Table 4. ¶2 Id., at 151–152; Hanawalt 37–38; Seattle School Dist. No. 1 , supra, at 461; Complaint and Motion to Dismiss or Affirm in Seattle School Dist. No. 1 , supra . ¶3 Seattle School Dist. No. 1, supra, at 461; Hanawalt 40. ¶4 See generally Seattle School Dist. No. 1, supra. Section 6. Student Choice, 1988 to 1998 ¶1 L. Kohn, Priority Shift: The Fate of Mandatory Busing for School Desegregation in Seattle and the Nation 27–30, 32 (Mar. 1996). ¶2 Id., at 32–34. Section 7. The Current Plan, 1999 to the Present ¶1 App. in No. 05–908, p. 84a; Brief for Respondents in No. 05–908, pp. 5–7; 426 F. 3d 1162, 1169–1170 (CA9 2005) (en banc) (Parents Involved VII). ¶2 App. in No. 05–908, at 39–42; Research, Evaluation and Assessment, Student Information Services Office, Seattle Public Schools Data Profile: DistrictSummary December 2005, online at http://www.seattleschools.org/ area/siso/disprof/2005/DP05all.pdf; Brief for Respond- ents in No. 05–908, at 9–10, 47; App. in No. 05–908, at 309a; School Board Report, School Choices and Assignments 2005–2006 School Year (Apr. 2005), online at http:// www.seattleschools.org/ area/ facilties&nbhyph;plan/ Choice/ 05&nbhyph; 06AppsChoicesBoardApril2005final.pdf. ¶3 Parents Involved in Community Schools v. Seattle School Dist., No. 1 , 149 Wash. 2d 660, 72 P. 3d 151 (2003); 137 F. Supp. 2d 1224 (2001); 426 F. 3d 1162 (CA9 2005) (en banc) (Parents Involved VII) . Part I–B: Louisville Section 1. Before the Lawsuit, 1954 to 1972 ¶1 Hampton v. Jefferson Cty., Bd. of Ed. , 72 F. Supp. 2d 753, 756, and nn. 2, 4, 5 (WD Ky. 1999) (Hampton I) . Section 2. Court-Imposed Guidelines and Busing, 1972 to 1991 ¶1 Hampton I , supra , at 757–758, 762; Newburg Area Council, Inc. v. Board of Ed. of Jefferson Cty. , 489 F. 2d 925 (CA6 1973), vacated and remanded, 418 U. S. 918 (1974), reinstated with modifications, 510 F. 2d 1358 (CA6 1974) (per curiam); Judgment and Findings of Fact and Conclusions of Law in Newburg Area Council, Inc. v. Board of Ed., of Jefferson Cty. , Nos. 7045 and 7291 (WD Ky., July 30, 1975) (1975 Judgment and Findings). ¶2 Id., at 2, 3, and Attachment 1. ¶3 Id., at 4–16. ¶4 Memorandum Opinion and Order in Haycraft v. Board of Ed. of Jefferson Cty. , Nos. 7045 and 7291, (WD Ky., June 16, 1978), pp. 1, 2, 4, 18 (1978 Memo & Order). ¶5 Memorandum Opinion and Order, Haycraft v. Board of Ed. of Jefferson Cty. , Nos. 7045 and 7291 (WD Ky., Sept. 24, 1985), p. 3; Memorandum from Donald W. Ingwerson, Superintendent, to the Board of Education, Jefferson Cty. Public School Dist., pp. 1, 3, 5 (Apr. 4, 1984) (1984 Memorandum); Memorandum from Donald W. Ingwerson, Superintendent, to the Board of Education, Jefferson County Public School District, pp. 4–5 (Dec. 19, 1991) (1991 Memorandum). Section 3. Student Choice and Project Renaissance, 1991 to 1996 ¶1 1991 Memorandum 1–4, 7–11 (Stipulated Exh. 72); Brief for Respondents in No. 05–915, P. 12, n. 13. ¶2 1991 Memorandum 14–16. ¶3 Id., at 11, 14–15. ¶4 Id., at 15–16; Memorandum from Stephen W. Daeschner, Superintendent, to the Board of Education, Jefferson Cty. Public School Dist., p. 2 (Aug. 6, 1996) (1996 Memorandum). Section 4. The Current Plan: Project Renaissance Modified, 1996 to 2003 ¶1 1996 Memorandum 1–4; Brief for Respondents in No. 05–915, at 12, and n. 13. ¶2 1996 Memorandum 4–7, and Attachment 2; Hampton I , supra , at 768. ¶3 1996 Memorandum 5–8; Hampton I , supra , at 768, n. 30. ¶4 Hampton v. Jefferson Cty. Bd. of Ed. , 102 F. Supp. 2d 358, 359, 363, 370, 377 (WD Ky. 2000) (Hampton II) . ¶5 Id., at 380–381. Section 5. The Current Lawsuit, 2003 to the Present ¶1 McFarland v. Jefferson Cty. Public Schools , 330 F. Supp. 2d 834 (WD Ky. 2004); McFarland v. Jefferson Cty. Public Schools , 416 F. 3d 513 (2005); Memorandum from Stephen W. Daeschner, Superintendent, to the Board of Education, Jefferson Cty. Public School Dist., 3–4 (Apr. 2, 2001).

The Supreme Court ruled that public schools may not classify students by race and use that classification to determine school assignments, even if the goal is to promote diversity. This decision applies to schools that have not been legally segregated or found to be racially imbalanced. The Court found that the use of racial classifications in school assignments, even as part of a voluntary plan, violates the Equal Protection Clause of the Fourteenth Amendment.

Gun Rights

Garland v. Cargill

https://supreme.justia.com/cases/federal/us/602/22-976/

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. SUPREME COURT OF THE UNITED STATES _________________ No. 22–976 _________________ MERRICK B. GARLAND, ATTORNEY GENERAL, et al., PETITIONERS v. MICHAEL CARGILL on writ of certiorari to the united states court of appeals for the fifth circuit [June 14, 2024] Justice Thomas delivered the opinion of the Court. Congress has long restricted access to “ ‘machinegun[s],’ ” a category of firearms defined by the ability to “shoot, automatically more than one shot . . . by a single function of the trigger.” 26 U. S. C. §5845(b); see also 18 U. S. C. §922( o ). Semiautomatic firearms, which require shooters to reengage the trigger for every shot, are not machineguns. This case asks whether a bump stock—an accessory for a semiautomatic rifle that allows the shooter to rapidly reengage the trigger (and therefore achieve a high rate of fire)—converts the rifle into a “machinegun.” We hold that it does not and therefore affirm. I A Under the National Firearms Act of 1934, a “machinegun” is “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” §5845(b). The statutory definition also includes “any part designed and intended . . . for use in converting a weapon into a machinegun.” Ibid. With a machinegun, a shooter can fire multiple times, or even continuously, by engaging the trigger only once. This capability distinguishes a machinegun from a semiautomatic firearm. With a semiautomatic firearm, the shooter can fire only one time by engaging the trigger. The shooter must release and reengage the trigger to fire another shot. Machineguns can ordinarily achieve higher rates of fire than semiautomatic firearms because the shooter does not need to release and reengage the trigger between shots. Shooters have devised techniques for firing semiautomatic firearms at rates approaching those of some machineguns. One technique is called bump firing. A shooter who bump fires a rifle uses the firearm’s recoil to help rapidly manipulate the trigger. The shooter allows the recoil from one shot to push the whole firearm backward. As the rifle slides back and away from the shooter’s stationary trigger finger, the trigger is released and reset for the next shot. Simultaneously, the shooter uses his nontrigger hand to maintain forward pressure on the rifle’s front grip. The forward pressure counteracts the recoil and causes the firearm (and thus the trigger) to move forward and “bump” into the shooter’s trigger finger. This bump reengages the trigger and causes another shot to fire, and so on. Bump firing is a balancing act. The shooter must maintain enough forward pressure to ensure that he will bump the trigger with sufficient force to engage it. But, if the shooter applies too much forward pressure, the rifle will not slide back far enough to allow the trigger to reset. The right balance produces a reciprocating motion that permits the shooter to repeatedly engage and release the trigger in rapid succession. Although bump firing does not require any additional equipment, there are accessories designed to make the technique easier. A “bump stock” is one such accessory.[ 1 ] It replaces a semiautomatic rifle’s stock (the back part of the rifle that rests against the shooter’s shoulder) with a plastic casing that allows every other part of the rifle to slide back and forth. This casing helps manage the back-and-forth motion required for bump firing. A bump stock also has a ledge to keep the shooter’s trigger finger stationary. A bump stock does not alter the basic mechanics of bump firing. As with any semiautomatic firearm, the trigger still must be released and reengaged to fire each additional shot. B The question in this case is whether a bump stock transforms a semiautomatic rifle into a “machinegun,” as defined by §5845(b). For many years, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) took the position that semiautomatic rifles equipped with bump stocks were not machineguns under the statute. On more than 10 separate occasions over several administrations, ATF consistently concluded that rifles equipped with bump stocks cannot “automatically” fire more than one shot “by a single function of the trigger.” See App. 16–68. In April 2017, for example, ATF explained that a rifle equipped with a bump stock does not “operat[e] automatically” because “forward pressure must be applied with the support hand to the forward handguard.” Id., at 66. And, because the shooter slides the rifle forward in the stock “to fire each shot, each succeeding shot fir[es] with a single trigger function.” Id., at 67. ATF abruptly reversed course in response to a mass shooting in Las Vegas, Nevada. In October 2017, a gunman fired on a crowd attending an outdoor music festival in Las Vegas, killing 58 people and wounding over 500 more. The gunman equipped his weapons with bump stocks, which allowed him to fire hundreds of rounds in a matter of minutes. This tragedy created tremendous political pressure to outlaw bump stocks nationwide. Within days, Members of Congress proposed bills to ban bump stocks and other devices “designed . . . to accelerate the rate of fire of a semiautomatic rifle.” S. 1916, 115th Cong., 1st Sess., §2 (2017); see also H. R. 3947, 115th Cong., 1st Sess. (2017); H. R. 3999, 115th Cong., 1st Sess. (2017). None of these bills became law. Similar proposals in the intervening years have also stalled. See, e . g ., H. R. 396, 118th Cong., 1st Sess. (2023); S. 1909, 118th Cong., 1st Sess. (2023); H. R. 5427, 117th Cong., 1st Sess. (2021). While the first wave of bills was pending, ATF began considering whether to reinterpret §5845(b)’s definition of “machinegun” to include bump stocks. It proposed a rule that would amend its regulations to “clarify” that bump stocks are machineguns. 83 Fed. Reg. 13442 (2018). ATF’s about-face drew criticism from some observers, including those who agreed that bump stocks should be banned. Senator Dianne Feinstein, for example, warned that ATF lacked statutory authority to prohibit bump stocks, explaining that the proposed regulation “ ‘hinge[d] on a dubious analysis’ ” and that the “ ‘gun lobby and manufacturers [would] have a field day with [ATF’s] reasoning’ ” in court. Statement on Regulation To Ban Bump Stocks (Mar. 23, 2018). She asserted that “ ‘legislation is the only way to ban bump stocks.’ ” Ibid . ATF issued its final Rule in 2018. 83 Fed. Reg. 66514. The agency’s earlier regulations simply restated §5845(b)’s statutory definition. Ibid. The final Rule amended those regulations by adding the following language: “[T]he term ‘automatically’ as it modifies ‘shoots, is designed to shoot, or can be readily restored to shoot,’ means functioning as the result of a self-acting or self-regulating mechanism that allows the firing of multiple rounds through a single function of the trigger; and ‘single function of the trigger’ means a single pull of the trigger and analogous motions. The term ‘machinegun’ includes a bump-stock-type device, i . e ., a device that allows a semi-automatic firearm to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of the semi-automatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter.” Id ., at 66553–66554. The final Rule also repudiated ATF’s previous guidance that bump stocks did not qualify as “machineguns” under §5845(b). Id ., at 66530–66531. And, it ordered owners of bump stocks to destroy them or surrender them to ATF within 90 days. Id ., at 66530. Bump-stock owners who failed to comply would be subject to criminal prosecution. Id ., at 66525; see also 18 U. S. C. §922( o )(1). C Michael Cargill surrendered two bump stocks to ATF under protest. He then filed suit to challenge the final Rule, asserting a claim under the Administrative Procedure Act. As relevant, Cargill alleged that ATF lacked statutory authority to promulgate the final Rule because bump stocks are not “machinegun[s]” as defined in §5845(b). After a bench trial, the District Court entered judgment for ATF. The court concluded that “a bump stock fits the statutory definition of a ‘machinegun.’ ” Cargill v. Barr , 502 F. Supp. 3d 1163, 1194 (WD Tex. 2020). The Court of Appeals initially affirmed, 20 F. 4th 1004 (CA5 2021), but later reversed after rehearing en banc, 57 F. 4th 447 (CA5 2023). A majority agreed, at a minimum, that §5845(b) is ambiguous as to whether a semiautomatic rifle equipped with a bump stock fits the statutory definition of a machinegun. And, the majority concluded that the rule of lenity required resolving that ambiguity in Cargill’s favor. Id ., at 469; see also id ., at 450, n. An eight-judge plurality determined that the statutory definition of “machinegun” unambiguously excludes such weapons. A semiautomatic rifle equipped with a bump stock, the plurality reasoned, fires only one shot “each time the trigger ‘acts,’ ” id. , at 459, and so does not fire “more than one shot . . . by a single function of the trigger,” §5845(b). The plurality also concluded that a bump stock does not enable a semiautomatic rifle to fire more than one shot “automatically” because the shooter must “maintain manual, forward pressure on the barrel.” Id ., at 463. We granted certiorari, 601 U. S. ___ (2023), to address a split among the Courts of Appeals regarding whether bump stocks meet §5845(b)’s definition of “machinegun.”[ 2 ] We now affirm. II Section 5845(b) defines a “machinegun” as any weapon capable of firing “automatically more than one shot . . . by a single function of the trigger.” We hold that a semiautomatic rifle equipped with a bump stock is not a “machinegun” because it cannot fire more than one shot “by a single function of the trigger.” And, even if it could, it would not do so “automatically.” ATF therefore exceeded its statutory authority by issuing a Rule that classifies bump stocks as machineguns. A A semiautomatic rifle equipped with a bump stock does not fire more than one shot “by a single function of the trigger.” With or without a bump stock, a shooter must release and reset the trigger between every shot. And, any subsequent shot fired after the trigger has been released and reset is the result of a separate and distinct “function of the trigger.” All that a bump stock does is accelerate the rate of fire by causing these distinct “function[s]” of the trigger to occur in rapid succession. As always, we start with the statutory text, which refers to “a single function of the trigger.” The “function” of an object is “the mode of action by which it fulfils its purpose.” 4 Oxford English Dictionary 602 (1933); see also American Heritage Dictionary 533 (1969) (“The natural or proper action for which a . . . mechanism . . . is fitted or employed”). And, a “trigger” is an apparatus, such as a “movable catch or lever,” that “sets some force or mechanism in action.” 11 Oxford English Dictionary, at 357; see also American Heritage Dictionary, at 1371 (“The lever pressed by the finger to discharge a firearm” or “[a]ny similar device used to release or activate a mechanism”); Webster’s New International Dictionary 2711 (2d ed. 1934) (“A piece, as a lever, connected with a catch or detent as a means of releasing it; specif., Firearms , the part of a lock moved by the finger to release the cock in firing”). The phrase “function of the trigger” thus refers to the mode of action by which the trigger activates the firing mechanism. For most firearms, including the ones at issue here, the trigger is a curved metal lever. On weapons with these standard trigger mechanisms, the phrase “function of the trigger” means the physical trigger movement required to shoot the firearm. No one disputes that a semiautomatic rifle without a bump stock is not a machinegun because it fires only one shot per “function of the trigger.” That is, engaging the trigger a single time will cause the firing mechanism to discharge only one shot. To understand why, it is helpful to consider the mechanics of the firing cycle for a semiautomatic rifle. Because the statutory definition is keyed to a “function of the trigger,” only the trigger assembly is relevant for our purposes. Although trigger assemblies for semiautomatic rifles vary, the basic mechanics are generally the same. The following series of illustrations depicts how the trigger assembly on an AR–15 style semiautomatic rifle works.[ 3 ] In each illustration, the front of the rifle ( i . e ., the barrel) would be pointing to the left. We begin with an overview of the relevant components: Figure 1. The trigger is a simple lever that moves backward and forward. P. Sweeney, Gunsmithing the AR–15, p. 131 (2016). The square point at the top left edge of the trigger locks into a notch at the bottom of the hammer. P. Sweeney, Gunsmithing: Rifles 269 (1999). The hammer is a spring-loaded part that swings forward toward the barrel and strikes the firing pin, causing a shot to fire. Ibid. The disconnector is the component responsible for resetting the hammer to its original position after a shot is fired. Ibid. We turn next to how these components operate: Figure 2. When the shooter engages the trigger by moving it backward (as indicated by the arrow), the square point of the trigger pivots downward and out of the notch securing the hammer. Ibid. This movement releases the spring-loaded hammer, allowing it to swing forward. Ibid. Figure 3. At the top of the hammer’s rotation, it strikes the firing pin, causing the weapon to fire a single shot. See ibid. Figure 4. The firearm then ejects the spent cartridge from the chamber and loads a new one in its place. D. Long, The Complete AR–15/M16 Sourcebook 206 (2001). The mechanism that performs this task swings the hammer backward at the same time. Ibid. Figure 5. As the hammer swings backward, it latches onto the disconnector. Sweeney, Gunsmithing: Rifles, at 269. This latching (circled above) prevents the hammer from swinging forward again after a new cartridge is loaded into the chamber. Ibid. The disconnector will hold the hammer in that position for as long as the shooter holds the trigger back, thus preventing the firearm from firing another shot.[ 4 ] Ibid. Figure 6. Finally, when the shooter takes pressure off the trigger and allows it to move forward (as indicated by the arrow), the hammer slips off the disconnector just as the square point of the trigger rises into the notch on the hammer (circled above). Ibid. The trigger mechanism is thereby reset to the original position shown in Figure 1. A semiautomatic rifle must complete this cycle for each shot fired.[ 5 ] ATF does not dispute that this complete process is what constitutes a “single function of the trigger.” A shooter may fire the weapon again after the trigger has reset, but only by engaging the trigger a second time and thereby initiating a new firing cycle. For each shot, the shooter must engage the trigger and then release the trigger to allow it to reset. Any additional shot fired after one cycle is the result of a separate and distinct “function of the trigger.” Nothing changes when a semiautomatic rifle is equipped with a bump stock. The firing cycle remains the same. Between every shot, the shooter must release pressure from the trigger and allow it to reset before reengaging the trigger for another shot. A bump stock merely reduces the amount of time that elapses between separate “functions” of the trigger. The bump stock makes it easier for the shooter to move the firearm back toward his shoulder and thereby release pressure from the trigger and reset it. And, it helps the shooter press the trigger against his finger very quickly thereafter. A bump stock does not convert a semiautomatic rifle into a machinegun any more than a shooter with a lightning-fast trigger finger does. Even with a bump stock, a semiautomatic rifle will fire only one shot for every “function of the trigger.” So, a bump stock cannot qualify as a machinegun under §5845(b)’s definition. Although ATF agrees on a semiautomatic rifle’s mechanics, it nevertheless insists that a bump stock allows a semiautomatic rifle to fire multiple shots “by a single function of the trigger.” ATF starts by interpreting the phrase “single function of the trigger” to mean “a single pull of the trigger and analogous motions.” 83 Fed. Reg. 66553. A shooter using a bump stock, it asserts, must pull the trigger only one time to initiate a bump-firing sequence of multiple shots. Id ., at 66554. This initial trigger pull sets off a sequence—fire, recoil, bump, fire—that allows the weapon to continue firing “without additional physical manipulation of the trigger by the shooter.” Ibid. According to ATF, all the shooter must do is keep his trigger finger stationary on the bump stock’s ledge and maintain constant forward pressure on the front grip to continue firing. The dissent offers similar reasoning. See post , at 7–9 (opinion of Sotomayor, J.). This argument rests on the mistaken premise that there is a difference between a shooter flexing his finger to pull the trigger and a shooter pushing the firearm forward to bump the trigger against his stationary finger. ATF and the dissent seek to call the shooter’s initial trigger pull a “function of the trigger” while ignoring the subsequent “bumps” of the shooter’s finger against the trigger before every additional shot. But, §5845(b) does not define a machinegun based on what type of human input engages the trigger—whether it be a pull, bump, or something else. Nor does it define a machinegun based on whether the shooter has assistance engaging the trigger. The statutory definition instead hinges on how many shots discharge when the shooter engages the trigger. And, as we have explained, a semiautomatic rifle will fire only one shot each time the shooter engages the trigger—with or without a bump stock.[ 6 ] Supra , at 7–12. In any event, ATF’s argument cannot succeed on its own terms. The final Rule defines “function of the trigger” to include not only “a single pull of the trigger” but also any “analogous motions.” 83 Fed. Reg. 66553. ATF concedes that one such analogous motion that qualifies as a single function of the trigger is “sliding the rifle forward” to bump the trigger. Brief for Petitioners 22. But, if that is true, then every bump is a separate “function of the trigger,” and semiautomatic rifles equipped with bump stocks are therefore not machineguns. ATF resists the natural implication of its reasoning, insisting that the bumping motion is a “function of the trigger” only when it initiates, but not when it continues, a firing sequence. But, Congress did not write a statutory definition of “machinegun” keyed to when a firing sequence begins and ends. Section 5845(b) asks only whether a weapon fires more than one shot “by a single function of the trigger.” Finally, the position that ATF and the dissent endorse is logically inconsistent. They reason that a semiautomatic rifle equipped with a bump stock fires more than one shot by a single function of the trigger because a shooter “need only pull the trigger and maintain forward pressure” to “activate continuous fire.” Post , at 10; see also Brief for Petitioners 23. If that is correct, however, then the same should be true for a semiautomatic rifle without a bump stock. After all, as the dissent and ATF themselves acknowledge, a shooter manually bump firing a semiautomatic rifle can achieve continuous fire by holding his trigger finger stationary and maintaining forward pressure with his nontrigger hand. See post , at 5; 83 Fed. Reg. 66533. Yet, they agree that a semiautomatic rifle without a bump stock “fires only one shot each time the shooter pulls the trigger.” Post , at 4; see also 83 Fed. Reg. 66534. Their argument is thus at odds with itself. We conclude that semiautomatic rifle equipped with a bump stock is not a “machinegun” because it does not fire more than one shot “by a single function of the trigger.” B A bump stock is not a “machinegun” for another reason: Even if a semiautomatic rifle with a bump stock could fire more than one shot “by a single function of the trigger,” it would not do so “automatically.” Section 5845(b) asks whether a weapon “shoots . . . automatically more than one shot . . . by a single function of the trigger.” The statute thus specifies the precise action that must “automatically” cause a weapon to fire “more than one shot”—a “single function of the trigger.” If something more than a “single function of the trigger” is required to fire multiple shots, the weapon does not satisfy the statutory definition. As Judge Henderson put it, the “statutory definition of ‘machinegun’ does not include a firearm that shoots more than one round ‘automatically’ by a single pull of the trigger AND THEN SOME .” Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives , 920 F.3d 1, 44 (CADC 2019) (opinion concurring in part and dissenting in part). Firing multiple shots using a semiautomatic rifle with a bump stock requires more than a single function of the trigger. A shooter must also actively maintain just the right amount of forward pressure on the rifle’s front grip with his nontrigger hand. See supra , at 2–3. Too much forward pressure and the rifle will not slide back far enough to release and reset the trigger, preventing the rifle from firing another shot. Too little pressure and the trigger will not bump the shooter’s trigger finger with sufficient force to fire another shot. Without this ongoing manual input, a semiautomatic rifle with a bump stock will not fire multiple shots. Thus, firing multiple shots requires engaging the trigger one time—and then some.[ 7 ] ATF and the dissent counter that machineguns also require continuous manual input from a shooter: He must both engage the trigger and keep it pressed down to continue shooting. In their view, there is no meaningful difference between holding down the trigger of a traditional machinegun and maintaining forward pressure on the front grip of a semiautomatic rifle with a bump stock. This argument ignores that Congress defined a machinegun by what happens “automatically” “by a single function of the trigger.” Simply pressing and holding the trigger down on a fully automatic rifle is not manual input in addition to a trigger’s function—it is what causes the trigger to function in the first place. By contrast, pushing forward on the front grip of a semiautomatic rifle equipped with a bump stock is not part of functioning the trigger. After all, pushing on the front grip will not cause the weapon to fire unless the shooter also engages the trigger with his other hand. Thus, while a fully automatic rifle fires multiple rounds “automatically . . . by a single function of the trigger,” a semiautomatic rifle equipped with a bump stock can achieve the same result only by a single function of the trigger and then some. Moreover, a semiautomatic rifle with a bump stock is indistinguishable from another weapon that ATF concedes cannot fire multiple shots “automatically”: the Ithaca Model 37 shotgun. The Model 37 allows the user to “slam fire”—that is, fire multiple shots by holding down the trigger while operating the shotgun’s pump action. Each pump ejects the spent cartridge and loads a new one into the chamber. If the shooter is holding down the trigger, the new cartridge will fire as soon as it is loaded. According to ATF, the Model 37 fires more than one shot by a single function of the trigger, but it does not do so “automatically” because the shooter must manually operate the pump action with his nontrigger hand. See 83 Fed. Reg. 66534. That logic mandates the same result here. Maintaining the proper amount of forward pressure on the front grip of a bump-stock equipped rifle is no less additional input than is operating the pump action on the Model 37.[ 8 ] ATF responds that a shooter is less physically involved with operating a bump-stock equipped rifle than operating the Model 37’s pump action. Once the shooter pulls the rifle’s trigger a single time, the bump stock “harnesses the firearm’s recoil energy in a continuous back-and-forth cycle that allows the shooter to attain continuous firing.” Id., at 66519. But, even if one aspect of a weapon’s operation could be seen as “automatic,” that would not mean the weapon “shoots . . . automatically more than one shot . . . by a single function of the trigger .” §5845(b) (emphasis added). After all, many weapons have some “automatic” features. For example, semiautomatic rifles eject the spent cartridge from the firearm’s chamber and load a new one in its place without any input from the shooter. See supra , at 10. A semiautomatic rifle is therefore “automatic” in the general sense that it performs some operations that would otherwise need to be completed by hand. But, as all agree, a semiautomatic rifle cannot fire more than one shot “automatically . . . by a single function of the trigger” because the shooter must do more than simply engage the trigger one time. The same is true of a semiautomatic rifle equipped with a bump stock. Thus, even if a semiautomatic rifle could fire more than one shot by a single function of the trigger, it would not do so “automatically.” C Abandoning the text, ATF and the dissent attempt to shore up their position by relying on the presumption against ineffectiveness. That presumption weighs against interpretations of a statute that would “rende[r] the law in a great measure nugatory, and enable offenders to elude its provisions in the most easy manner.” The Emily , 9 Wheat. 381, 389 (1824). It is a modest corollary to the commonsense proposition “that Congress presumably does not enact useless laws.” United States v. Castleman , 572 U.S. 157 , 178 (2014) (Scalia, J., concurring in part and concurring in judgment). In ATF’s view, Congress “restricted machineguns because they eliminate the manual movements that a shooter would otherwise need to make in order to fire continuously” at a high rate of fire, as bump stocks do. Brief for Petitioners 40. So, ATF reasons, concluding that bump stocks are lawful “simply because the [trigger] moves back and forth . . . would exalt artifice above reality and enable evasion of the federal machinegun ban.” Id ., at 41–42 (internal quotation marks omitted). The dissent endorses a similar view. See post , at 14–17. The presumption against ineffectiveness cannot do the work that ATF and the dissent ask of it. A law is not useless merely because it draws a line more narrowly than one of its conceivable statutory purposes might suggest. Interpreting §5845(b) to exclude semiautomatic rifles equipped with bump stocks comes nowhere close to making it useless. Under our reading, §5845(b) still regulates all traditional machineguns. The fact that it does not capture other weapons capable of a high rate of fire plainly does not render the law useless. Moreover, it is difficult to understand how ATF can plausibly argue otherwise, given that its consistent position for almost a decade in numerous separate decisions was that §5845(b) does not capture semiautomatic rifles equipped with bump stocks. See App. 16–68. Curiously, the dissent relegates ATF’s about-face to a footnote, instead pointing to its classification of other devices. See post , at 14–17, and n. 6. The dissent’s additional argument for applying the presumption against ineffectiveness fails on its own terms. To argue that our interpretation makes §5845(b) “far less effective,” the dissent highlights that a shooter with a bump-stock-equipped rifle can achieve a rate of fire that rivals traditional machineguns. Post , at 16. But, the dissent elsewhere acknowledges that a shooter can do the same with an unmodified semiautomatic rifle using the manual bump-firing technique. See post , at 5. The dissent thus fails to prove that our reading makes §5845(b) “far less effective,” much less ineffective (as is required to invoke the presumption). In any event, Congress could have linked the definition of “machinegun” to a weapon’s rate of fire, as the dissent would prefer. But, it instead enacted a statute that turns on whether a weapon can fire more than one shot “automatically . . . by a single function of the trigger.” §5845(b). And, “it is never our job to rewrite . . . statutory text under the banner of speculation about what Congress might have done.” Henson v. Santander Consumer USA Inc. , 582 U.S. 79, 89 (2017).[ 9 ] III For the foregoing reasons, we affirm the judgment of the Court of Appeals. It is so ordered. Notes 1 Some bump stocks (called mechanical bump stocks) rely on an internal spring, rather than forward pressure from the shooter’s nontrigger hand, to force the rifle and trigger forward after recoil. These devices are not at issue in this case. 2 See, e . g ., Hardin v. Bureau of Alcohol, Tobacco, Firearms and Explosives , 65 F. 4th 895 (CA6 2023); Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives , 45 F. 4th 306 (CADC 2022); Aposhian v. Barr , 958 F.3d 969 (CA10 2020). 3 These illustrations are found in the Brief for FPC Action Foundation as Amicus Curiae 14–15. 4 Machinegun variants of the AR–15 style rifle include an additional component known as an auto sear. The auto sear catches the hammer as it swings backwards, but will release it again once a new cartridge is loaded if the trigger is being held back. P. Sweeney, 1 The Gun Digest Book of the AR–15, p. 38 (2005). An auto sear thus permits a shooter to fire multiple shots while engaging the trigger only once. ATF has accordingly recognized that modifying a semiautomatic rifle or handgun with an auto sear converts it into a machinegun. See ATF Ruling 81–4. 5 An animated graphic that displays the relevant movements is available at https://www.supremecourt.gov/media/images/AR-15.gif. 6 The dissent says that we “resis[t]” the “ordinary understanding of the term ‘function of the trigger’ with two technical arguments.” Post , at 10. But, the arguments it refers to explain why, even assuming a semiautomatic rifle equipped with a bump stock could fire more than one shot by a single function of the trigger, it could not do so “automatically.” See infra , at 14–17. Those arguments have nothing to do with our explanation of what a “single function of the trigger” means. Ibid. 7 The dissent seemingly concedes this point, repeatedly recognizing that the shooter must both pull the trigger and maintain forward pressure on the front grip. See, e . g ., post , at 6 (“[A] single pull of the trigger provides continuous fire as long as the shooter maintains forward pressure on the gun”); ibid . (“A bump-stock-equipped semiautomatic rifle is a machinegun because . . . a shooter can . . . fire continuous shots without any human input beyond maintaining forward pressure”); post , at 10 (“[A] shooter of a bump-stock-equipped AR–15 need only pull the trigger and maintain forward pressure”); post , at 13 (“After a shooter pulls the trigger, if he maintains continuous forward pressure on the gun, the bump stock harnesses the recoil to move the curved lever back and forth against his finger”). 8 The dissent attempts to undermine this analogy by pointing out that a Model 37 requires manual reloading and therefore cannot qualify as a machinegun under §5845(b). Post , at 12–13, n. 5. But, that is beside the point. As ATF itself agrees, the Model 37 is not a machinegun for another, independent reason: It cannot “automatically” fire more than one shot by a single function of the trigger. See Brief for Petitioners 38. And, as explained, the reasons why a Model 37 cannot do so apply with equal force to semiautomatic rifles equipped with bump stocks. 9 The dissent concludes by claiming that our interpretation of §5845(b) “renders Congress’s clear intent readily evadable.” Post , at 17. And, it highlights that “[e]very Member of the majority has previously emphasized that the best way to respect congressional intent is to adhere to the ordinary understanding of the terms Congress uses.” Ibid . But, “[w]hen Congress takes the trouble to define the terms it uses, a court must respect its definitions as virtually conclusive. . . . This Court will not deviate from an express statutory definition merely because it varies from the term’s ordinary meaning.” Department of Agriculture Rural Development Rural Housing Service v. Kirtz , 601 U.S. 42, 59 (2024) (internal quotation marks and alteration omitted) (unanimous opinion). SUPREME COURT OF THE UNITED STATES _________________ No. 22–976 _________________ MERRICK B. GARLAND, ATTORNEY GENERAL, et al., PETITIONERS v. MICHAEL CARGILL on writ of certiorari to the united states court of appeals for the fifth circuit [June 14, 2024] Justice Alito, concurring. I join the opinion of the Court because there is simply no other way to read the statutory language. There can be little doubt that the Congress that enacted 26 U. S. C. §5845(b) would not have seen any material difference between a machinegun and a semiautomatic rifle equipped with a bump stock. But the statutory text is clear, and we must follow it. The horrible shooting spree in Las Vegas in 2017 did not change the statutory text or its meaning. That event demonstrated that a semiautomatic rifle with a bump stock can have the same lethal effect as a machinegun, and it thus strengthened the case for amending §5845(b). But an event that highlights the need to amend a law does not itself change the law’s meaning. There is a simple remedy for the disparate treatment of bump stocks and machineguns. Congress can amend the law—and perhaps would have done so already if ATF had stuck with its earlier interpretation. Now that the situation is clear, Congress can act. SUPREME COURT OF THE UNITED STATES _________________ No. 22–976 _________________ MERRICK B. GARLAND, ATTORNEY GENERAL, et al., PETITIONERS v. MICHAEL CARGILL on writ of certiorari to the united states court of appeals for the fifth circuit [June 14, 2024] Justice Sotomayor, with whom Justice Kagan and Justice Jackson join, dissenting. On October 1, 2017, a shooter opened fire from a hotel room overlooking an outdoor concert in Las Vegas, Nevada, in what would become the deadliest mass shooting in U. S. history. Within a matter of minutes, using several hundred rounds of ammunition, the shooter killed 58 people and wounded over 500. He did so by affixing bump stocks to commonly available, semiautomatic rifles. These simple devices harness a rifle’s recoil energy to slide the rifle back and forth and repeatedly “bump” the shooter’s stationary trigger finger, creating rapid fire. All the shooter had to do was pull the trigger and press the gun forward. The bump stock did the rest. Congress has sharply restricted civilian ownership of machineguns since 1934. Federal law defines a “machinegun” as a weapon that can shoot “automatically more than one shot, without manual reloading, by a single function of the trigger.” 26 U. S. C. §5845(b). Shortly after the Las Vegas massacre, the Trump administration, with widespread bipartisan support, banned bump stocks as machineguns under the statute. Today, the Court puts bump stocks back in civilian hands. To do so, it casts aside Congress’s definition of “machinegun” and seizes upon one that is inconsistent with the ordinary meaning of the statutory text and unsupported by context or purpose. When I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck. A bump-stock-equipped semiautomatic rifle fires “automatically more than one shot, without manual reloading, by a single function of the trigger.” §5845(b). Because I, like Congress, call that a machinegun, I respectfully dissent. I A Machineguns were originally developed in the 19th century as weapons of war. See J. Ellis, The Social History of the Machine Gun 21–45 (1986) (Ellis). Smaller and lighter submachine guns were not commercially available until the 1920s. See Brief for Patrick J. Charles as Amicus Curiae 5 (Charles Brief ). Although these weapons were originally marketed to law enforcement, they inevitably made it into the hands of gangsters. See id ., at 8–9; Ellis 149–165. Gangsters like Al Capone used machineguns to rob banks, ambush the police, and murder rivals. See Ellis 153–154, 157–158. Newspaper headlines across the country flashed “ ‘Gangsters Use Machine Guns,’ ” “ ‘Machine Gun Used in Bank Hold-Up,’ ” and “ ‘Machine Gun Thugs Kill Postal Employee.’ ” Charles Brief 9. Congress responded in 1934 by sharply restricting civilian ownership of machineguns. See National Firearms Act of 1934, §§3–6, 48Stat. 1236, 1237–1238. The Senate Report explaining the 1934 Act emphasized that the “gangster as a law violator must be deprived of his most dangerous weapon, the machine gun.” S. Rep. No. 1444, 73d Cong., 2d Sess., 1–2. “[W]hile there is justification for permitting the citizen to keep a pistol or revolver for his own protection . . . , there is no reason why anyone except a law officer should have a machine gun.” Id ., at 2. These early machineguns allowed a shooter to fire in a variety of ways. Some would fire continuously with a single pull of the trigger or push of a button. See Charles Brief 7, and n. 12 (noting that a Browning M1918 rifle fired eight rounds “ ‘in a second with one pull of the trigger’ ”); see also Brief for Petitioners 22 (noting that a Browning M2 fired with a push of the thumb). Others, such as the famous Thompson Submachine Gun Caliber .45, or “Tommy Gun,” would fire continuously only so long as the shooter maintained backward pressure on the trigger; a shooter could still fire single shots by pulling and releasing the trigger each time. See Test of Thompson Submachine Gun, 69 Army and Navy Register 355 (Apr. 9, 1921) (noting that the shooter of a Tommy Gun “can fire the contents of the magazine with a single prolonged pull or fire a single shot by merely releasing the trigger”). The internal mechanisms of automatic-fire weapons also varied enormously, with many (such as the Tommy Gun) relying principally on the recoil energy produced by each bullet’s discharge to effectuate automatic fire. See, e . g ., War Dept., Basic Field Manual: Thompson Submachine Gun, Caliber .45, M1928A1, p. 1 (1941) (“The Thompson submachine gun . . . is an air-cooled, recoil-operated, magazine-fed weapon”); W. Smith, Small Arms of the World: The Basic Manual of Military Small Arms 165 (1955) (describing Tommy guns as “recoil operated weapons on the elementary blowback principle”). To account for these differences, Congress adopted a definition of “machinegun” that captured “any weapon which shoots, or is designed to shoot, automatically . . . more than one shot, without manual reloading, by a single function of the trigger.” National Firearms Act, 48Stat. 1236. That essential definition still governs today. See 26 U. S. C. §5845(b).[ 1 ] B The archetypal modern “machinegun” is the military’s standard-issue M16 assault rifle. With an M16 in automatic mode, the shooter pulls the trigger once to achieve a fire rate of 700 to 950 rounds per minute. See Dept. of Defense, Defense Logistics Agency, Small Arms, https://www. dla.mil/Disposition-Services/Offers/ Law- Enforcement / Weapons/. An internal mechanism automates the M16’s continuous fire, so that all the shooter has to do is keep backward pressure on the trigger. See Brief for Giffords Law Center to Prevent Gun Violence et al. as Amici Curiae 9–11 (Giffords Brief ) (discussing internal firing mechanism of M16). If the shooter stops putting pressure on the trigger, the gun stops firing. Semiautomatic weapons are not “machineguns” under the statute. Take, for instance, an AR–15-style semiautomatic assault rifle. To rapidly fire an AR–15, a shooter must rapidly pull the trigger himself. It is “semi” automatic because, although the rifle automatically loads a new cartridge into the chamber after it is fired, it fires only one shot each time the shooter pulls the trigger. See 18 U. S. C. §921(a)(29) (2018 ed., Supp. IV). To fire an M16 or AR–15 rifle, a person typically holds the “grip” next to the trigger with his firing hand. He stabilizes the weapon with his other hand on its barrel or “front grip.” He then raises the weapon so that the butt, or “stock,” of the gun rests against his shoulder, lines up the sights to look down the gun, and squeezes the trigger. See Dept. of the Army, Field Manual 23–9, Rifle Marksmanship M16A1, M16A2/3, M16A4, and M4 Carbine, Ch. 4, Section III, p. 4-22 (Sept. 13, 2006) (M16 Field Manual). A regular person with an AR–15 can achieve a fire rate of around 60 rounds per minute, with one pull of the trigger per second. Tr. of Oral Arg. 39. A professional sport shooter can use the AR–15 to fire at a rate of up to 180 rounds per minute, pulling the trigger three times per second. Giffords Brief 14. A shooter can also manually “bump” an AR–15 to increase the rate of fire by using a belt loop or rubber band to hold his trigger finger in place and harness the recoil from the first shot to fire the rifle continuously. See 83 Fed. Reg. 66532–66533 (2018). To use a belt loop, he must hold the rifle low against his hip, put his finger in the trigger guard, and then loop his finger through a belt loop on his pants to lock the finger in place. See id ., at 66533. With his other hand, he then pushes the rifle forward until his stationary finger engages the trigger to fire the first shot. See ibid. The recoil from that shot pushes the rifle violently backward. See ibid. If the shooter keeps pressing the rifle forward against the finger in his belt loop, the repeated backward jump of the recoil combined with his forward pressure allows the rifle to fire continuously. See ibid. A shooter using this method, however, cannot shoot very precisely. He has neither the advantage of the sights to line up his shot, nor his shoulder to stabilize the recoil. A shooter can also use a rubber band or zip tie to tie a finger close to the trigger. See id ., at 66532. If the shooter is strong and skilled enough physically to control the distance and direction of the rifle’s significant recoil, the rifle will fire continuously. A bump stock automates and stabilizes the bump firing process. It replaces a rifle’s standard stock, which is the part held against the shoulder. See id ., at 66516. A bump stock, unlike a standard stock, allows the rifle’s upper assembly to slide back and forth in the stock. See ibid. It also typically includes a finger rest on which the shooter can place his finger while shooting, and a “receiver module” that guides and regulates the weapon’s recoil. Ibid. To fire a semiautomatic rifle equipped with a bump stock, the shooter either pulls the trigger, see ibid. , or slides the gun forward in the bump stock, which presses the trigger into his trigger finger, Cargill v. Barr , 502 F. Supp. 3d 1163, 1175 (WD Tex. 2020). As long as the shooter keeps his trigger finger on the finger rest and maintains constant forward pressure on the rifle’s barrel or front grip, the weapon will fire continuously. See 83 Fed. Reg. 66516. A rifle equipped with a bump stock can fire at a rate between 400 and 800 rounds per minute. Tr. of Oral Arg. 40. II A machinegun does not fire itself. The important question under the statute is how a person can fire it. A weapon is a “machinegun” when a shooter can (1) “by a single function of the trigger,” (2) shoot “automatically more than one shot, without manually reloading.” 26 U. S. C. §5845(b). The plain language of that definition refers most obviously to a rifle like an M16, where a single pull of the trigger provides continuous fire as long as the shooter maintains backward pressure on the trigger. The definition of “machinegun” also includes “any part designed and intended . . . for use in converting a weapon into a machinegun.” Ibid. That language naturally covers devices like bump stocks, which “conver[t]” semiautomatic rifles so that a single pull of the trigger provides continuous fire as long as the shooter maintains forward pressure on the gun. This is not a hard case. All of the textual evidence points to the same interpretation. A bump-stock-equipped semiautomatic rifle is a machinegun because (1) with a single pull of the trigger, a shooter can (2) fire continuous shots without any human input beyond maintaining forward pressure. The majority looks to the internal mechanism that initiates fire, rather than the human act of the shooter’s initial pull, to hold that a “single function of the trigger” means a reset of the trigger mechanism. Its interpretation requires six diagrams and an animation to decipher the meaning of the statutory text. See ante, at 8–11, and n. 5. Then, shifting focus from the internal mechanism of the gun to the perspective of the shooter, the majority holds that continuous forward pressure is too much human input for bump-stock-enabled continuous fire to be “automatic.” See ante, at 14–17. The majority’s reading flies in the face of this Court’s standard tools of statutory interpretation. By casting aside the statute’s ordinary meaning both at the time of its enactment and today, the majority eviscerates Congress’s regulation of machineguns and enables gun users and manufacturers to circumvent federal law. A Start with the phrase “single function of the trigger.” All the tools of statutory interpretation, including dictionary definitions, evidence of contemporaneous usage, and this Court’s prior interpretation, point to that phrase meaning the initiation of the firing sequence by an act of the shooter, whether via a pull, push, or switch of the firing mechanism. The majority nevertheless interprets “function of the trigger” as “the mode of action by which the trigger activates the firing mechanism.” Ante, at 7. Because in a bump-stock-equipped semiautomatic rifle, the trigger’s internal mechanism must reset each time a weapon fires, the majority reads each reset as a new “function.” That reading fixates on a firearm’s internal mechanics while ignoring the human act on the trigger referenced by the statute. Consider the relevant dictionary definitions. In 1934, when Congress passed the National Firearms Act, “function” meant “the mode of action by which [something] fulfils its purpose.” 4 Oxford English Dictionary 602 (1933). A “trigger” meant the “movable catch or lever” that “sets some force or mechanism in action.” 11 id ., at 357. The majority agrees with those definitions. Ante, at 7. It errs, however, by maintaining a myopic focus on a trigger’s mechanics rather than on how a shooter uses a trigger to initiate fire. Ibid. Nothing about those definitions suggests that “function of the trigger” means the mechanism by which the trigger resets mechanically to fire a second shot. See ante , at 8–11 (explaining the interior mechanics of an AR–15 trigger mechanism), as opposed to the process that a pull of the trigger on a bump-stock-equipped semiautomatic rifle sets in motion. The most important “function” of a “trigger” is what it enables a shooter to do; what “force or mechanism” it sets “in action.” 11 Oxford English Dictionary, at 357. A “single function of the trigger” more naturally means a single initiation of the firing sequence. Regardless of what is happening in the internal mechanics of a firearm, if a shooter must activate the trigger only a single time to initiate a firing sequence that will shoot “automatically more than one shot,” that firearm is a “machinegun.” §5845(b). Evidence of contemporaneous usage overwhelmingly supports that interpretation. The term “ ‘function of the trigger’ ” was proposed by the president of the National Rifle Association (NRA) during a hearing on the National Firearms Act before the House. See National Firearms Act: Hearings on H. R. 9066 before the House Committee on Ways and Means, 73d Cong., 2d Sess., 38–40 (1934). He understood the “distinguishing feature of a machine gun [to be] that by a single pull of the trigger the gun continues to fire.” Id ., at 40. He emphasized that a firearm “which is capable of firing more than one shot by a single pull of the trigger, a single function of the trigger, is properly regarded . . . as a machine gun.” Ibid. Distinguishing a machinegun from a pistol, the NRA president emphasized that for a pistol “[y]ou must release the trigger and pull it again for the second shot to be fired.” Id ., at 41. He did not say “the hammer slips off the disconnector just as the square point of the trigger rises into the notch on the hammer . . . thereby reset[ting the trigger mechanism] to the original position.” Ante, at 11. He instead emphasized the action of the shooter, who must repeatedly activate the trigger for each shot. Predictably, the House and Senate Reports reflect the same understanding of the phrase. See H. R. Rep. No. 1780, 73d Cong., 2d Sess., 2 (1934) (reporting that the statute “contains the usual definition of machine gun as a weapon designed to shoot more than one shot without reloading and by a single pull of the trigger”); S. Rep. No. 1444, 73d Cong., 2d Sess., 2 (1934) (same). The majority cannot disregard these statements as evidence of legislative purpose.[ 2 ] They are, along with contemporaneous dictionary definitions, some of the best evidence of contemporaneous understanding. Cf. McDonald v. Chicago , 561 U.S. 742 , 828 (2010) (Thomas, J., concurring in part and concurring in judgment) (“Statements by legislators can assist . . . to the extent they demonstrate the manner in which the public used or understood a particular word or phrase”). Indeed, at oral argument, when asked what evidence there was “that as of 1934, the ordinary understanding of the phrase ‘function of the trigger’ referred to the mechanics of the gun rather than . . . the shooter’s motion,” respondent’s lawyer could not point to a single piece of evidence that supports the majority’s reading. Tr. of Oral Arg. 98; see id ., at 98–101. He even agreed that Congress used the word “function” to ensure that the statute covered a wide variety of trigger mechanisms, including both push and pull triggers. Id ., at 101–102. In short, the majority disregards the unrefuted evidence of the text’s ordinary and contemporaneous meaning, substituting instead its own understanding of the internal mechanics of an AR–15 without looking at the actions of the shooter. This Court itself has also previously read the definition of “machinegun” in this exact statute to refer to the action of the shooter rather than the firing mechanism. In Staples v. United States , 511 U.S. 600 (1994), the Court noted that “a weapon that fires repeatedly with a single pull of the trigger ” is a machinegun, as opposed to “a weapon that fires only one shot with each pull of the trigger,” which is (at most) a semiautomatic firearm. Id ., at 602, n. 1 (emphasis added). A “pull” of the trigger necessarily requires human input. When a shooter initiates the firing sequence on a bump-stock-equipped semiautomatic rifle, he does so with “a single function of the trigger” under that term’s ordinary meaning. Just as the shooter of an M16 need only pull the trigger and maintain backward pressure (on the trigger), a shooter of a bump-stock-equipped AR–15 need only pull the trigger and maintain forward pressure (on the gun). Both shooters pull the trigger only once to fire multiple shots. The only difference is that for an M16, the shooter’s backward pressure makes the rifle fire continuously because of an internal mechanism: The curved lever of the trigger does not move. In a bump-stock-equipped AR–15, the mechanism for continuous fire is external: The shooter’s forward pressure moves the curved lever back and forth against his stationary trigger finger. Both rifles require only one initial action (that is, one “single function of the trigger”) from the shooter combined with continuous pressure to activate continuous fire.[ 3 ] The majority resists this ordinary understanding of the term “function of the trigger” with two technical arguments.[ 4 ] First, it attempts to contrast the action required to fire an M16 from that required to fire a bump-stock-equipped AR–15. The majority argues that “holding the trigger down on a fully automatic rifle is not manual input in addition to a trigger’s function—it is what causes the trigger to function in the first place” whereas “pushing on the front grip [of a bump-stock equipped semiautomatic rifle] will not cause the weapon to fire unless the shooter also engages the trigger with his other hand.” Ante, at 16. The shooter of a bump-stock-equipped AR–15, however, need not “pull” the trigger to fire. Instead, he need only place a finger on the finger rest and push forward on the front grip or barrel with his other hand. Instead of pulling the trigger, the forward motion pushes the bump stock into his finger. Second, the majority tries to cabin “single function of the trigger” to a single mechanism for activating continuous fire. See ante, at 14–15. A shooter can fire a bump-stock-equipped semiautomatic rifle in two ways. First, he can choose to fire single shots via distinct pulls of the trigger without exerting any additional pressure. Second, he can fire continuously via maintaining constant forward pressure on the barrel or front grip. The majority holds that the forward pressure cannot constitute a “single function of the trigger” because a shooter can also fire single shots by pulling the trigger. That logic, however, would also exclude a Tommy Gun and an M16, the paradigmatic examples of regulated machineguns in 1934 and today. Both weapons can fire either automatically or semiautomatically. A shooter using a Tommy Gun in automatic mode could choose to fire single shots with distinct pulls of the trigger, or continuous shots by maintaining constant backward pressure on the trigger. See supra , at 3. An M16 user can toggle the weapon from semiautomatic mode, which allows only one shot per pull of the trigger, to automatic mode, which enables continuous fire. See M16 Field Manual, Section III, p. 4-8. In 1934 as now, there is no commonsense difference between a firearm where a shooter must hold down a trigger or flip a switch to initiate rapid fire and one where a shooter must push on the front grip or barrel to do the same. The majority’s logic simply does not overcome the overwhelming textual and contextual evidence that “single function of the trigger” means a single action by the shooter to initiate a firing sequence, including pulling a trigger and pushing forward on a bump-stock-equipped semiautomatic rifle. B Next, consider what makes a machinegun “automatic.” A bump-stock-equipped semiautomatic rifle is a “machinegun” because with a “single function of the trigger” it “shoot[s], automatically more than one shot, without manual reloading.” §5845(b). Put simply, the bump stock automates the process of firing more than one shot. Before automatic weapons, a person who wanted to fire multiple shots from a firearm had to do two things after pulling the trigger the first time: (1) he had to reload the gun; and (2) he had to pull the trigger again. A semiautomatic weapon like an AR–15 already automates the first process. The bump stock automates the second.[ 5 ] In a fully automatic rifle like an M16, that automation is internal. After a shooter pulls the trigger, if he maintains continuous backward pressure on the trigger, the curved lever itself will not move. Instead, an internal mechanism allows continuous fire. On a bump-stock-equipped semiautomatic rifle, the automation is external. After a shooter pulls the trigger, if he maintains continuous forward pressure on the gun, the bump stock harnesses the recoil to move the curved lever back and forth against his finger. That external automated motion creates continuous fire. When a shooter “bump” fires a semiautomatic weapon without a bump stock, he must control several things using his own strength and skill: (1) the backward recoil of each shot, including both the direction in which the rifle moves and how far it moves when recoiling; (2) the trigger finger, by maintaining a stationary position with a loose enough hold on the trigger that the rapidly moving gun will hit his finger each time; and (3) the forward motion of the rifle after it recoils backward. A bump stock automates those processes. The replacement stock controls the direction and distance of the recoil, and the finger rest obviates the need to maintain a stationary finger position. All a shooter must do is rest his finger and press forward on the front grip or barrel for the rifle to fire continuously. The majority nevertheless concludes that a bump-stock-equipped semiautomatic rifle requires too much human input to fire “automatic[ally]” because it requires the “proper amount of forward pressure on the front grip” to maintain continuous fire. Ante, at 16. “Automati[c],” however, does not mean zero human input. An M16 requires the shooter to exert the “proper amount of [backward] pressure on the” trigger to maintain continuous fire. Ibid. So, too, a machinegun that requires a user to hold down a button. Makers of automatic weapons may require continuous human input for safety purposes; an accidental trigger pull that activates rapid fire is less harmful if it does not require affirmative human action to stop. Requiring continuous pressure for continuous fire, however, does not prevent a firearm from “shoot[ing], automatically more than one shot.” §5845(b). C This Court has repeatedly avoided interpretations of a statute that would facilitate its ready “evasion” or “enable offenders to elude its provisions in the most easy manner.” The Emily , 9 Wheat. 381, 389–390 (1824); see also Abramski v. United States , 573 U.S. 169 , 181–182, 185 (2014) (declining to read a gun statute in a way that would permit ready “evasion,” “defeat the point” of the law, or “easily bypass the scheme”). Justice Scalia called this interpretive principle the “presumption against ineffectiveness.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 63 (2012). The majority arrogates Congress’s policymaking role to itself by allowing bump-stock users to circumvent Congress’s ban on weapons that shoot rapidly via a single action of the shooter. “The presumption against ineffectiveness ensures that a text’s manifest purpose is furthered, not hindered.” Ibid. Before machineguns, a shooter could fire a gun only as fast as his finger could pull the trigger. Congress sought to restrict the civilian use of machineguns because they eliminated the need for a person rapidly to pull the trigger himself to fire continuously. A bump stock serves that function. Even a skilled sport shooter can fire an AR–15 at a rate of only 180 rounds per minute by rapidly pulling the trigger. Anyone shooting a bump-stock-equipped AR–15 can fire at a rate between 400 and 800 rounds per minute with a single pull of the trigger. Moreover, bump stocks are not the only devices that transform semiautomatic rifles into weapons capable of rapid fire with a single function of the trigger. Recognizing the creativity of gun owners and manufacturers, Congress wrote a statute “loaded with anticircumvention devices.” Tr. of Oral Arg. 68. The definition of “machinegun” captures “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” §5845(b). Not “more than four, five, or six shots,” not “single pull” or “single push” of the trigger.” Following that definition, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has reasonably classified many transformative devices other than bump stocks as “machinegun[s].”[ 6 ] For instance, ATF has long classified “forced reset triggers” as machineguns. See Brief for Petitioners 28. A forced reset trigger includes a device that forces the trigger back downward after the shooter’s initial pull, repeatedly pushing the curved lever against the shooter’s stationary trigger finger. See ibid. To a shooter, a semiautomatic rifle equipped with a forced reset trigger feels much like an M16. He must pull the trigger only once and then maintain pressure to achieve continuous fire. See ibid. Gun owners themselves also have built motorized devices that will repeatedly pull a semiautomatic firearm’s curved lever to enable continuous fire. ATF has classified such devices as “machinegun[s]” since 1982. See Record 1077. In 2003, the Fifth Circuit held that such a contraption qualified as a “machinegun” under the statute. See United States v. Camp , 343 F.3d 743 , 745. An owner of a semiautomatic rifle had placed a fishing reel inside the weapon’s trigger guard. Id ., at 744. When he pulled a switch behind the original trigger, the switch supplied power to a motor connected to the fishing reel. Ibid. The motor caused the reel to rotate, and that rotation manipulated the curved lever, causing it to fire in rapid succession. Ibid. ATF in 2017 also classified as a “machinegun” a wearable glove that a shooter could activate to initiate a mechanized piston moving back and forth, repeatedly pulling and releasing a semiautomatic rifle’s curved lever. See Record 1074–1076.[ 7 ] The majority tosses aside the presumption against ineffectiveness, claiming that its interpretation only “draws a line more narrowly than one of [Congress’s] conceivable statutory purposes might suggest” because the statute still regulates “all traditional machineguns” like M16s. Ante, at 18. Congress’s ban on M16s, however, is far less effective if a shooter can instead purchase a bump stock or construct a device that enables his AR–15 to fire at the same rate. Even bump-stock manufacturers recognize that they are exploiting a loophole, with one bragging on its website “Bumpfire Stocks are the closest you can get to full auto and still be legal.” Midsouth Shooters, BUMPFIRE SYSTEMS, https://www.midsouthshooterssupply.com/b/bumpfire- systems. The majority creates a definition of the statute that bans only “traditional” machineguns, even though its definition renders Congress’s clear intent readily evadable. Every Member of the majority has previously emphasized that the best way to respect congressional intent is to adhere to the ordinary understanding of the terms Congress uses. See, e . g ., Jam v. International Finance Corp. , 586 U.S. 199, 209 (2019) (Roberts, C. J., for the Court) (“ ‘[T]he legislative purpose is expressed by the ordinary meaning of the words used’ ”); Gross v. FBL Financial Services, Inc. , 557 U.S. 167 , 175 (2009) (Thomas, J., for the Court) (“ ‘Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose’ ”); Wall v. Kholi , 562 U.S. 545 , 551 (2011) (Alito, J., for the Court) (“ ‘We give the words of a statute their ordinary, contemporary, common meaning, absent an indication Congress intended them to bear some different import’ ”); BP p.l.c. v. Mayor and City Council of Baltimore , 593 U.S. 230, 237 (2021) (Gorsuch, J., for the Court) (“When called on to interpret a statute, this Court generally seeks to discern and apply the ordinary meaning of its terms at the time of their adoption”); Sackett v. EPA , 598 U.S. 651, 723, 727 (2023) (Kavanaugh, J., concurring in judgment) (reasoning that departing from “all indications of ordinary meaning” will “create regulatory uncertainty for the Federal Government . . . and regulated parties”); Bartenwerfer v. Buckley , 598 U.S. 69, 77, 83 (2023) (Barrett, J., for the Court) (declining to “artificially narrow ordinary meaning” to “second-guess [Congress’s] judgment”). Today, the majority forgets that principle and substitutes its own view of what constitutes a “machinegun” for Congress’s. *  *  * Congress’s definition of “machinegun” encompasses bump stocks just as naturally as M16s. Just like a person can shoot “automatically more than one shot” with an M16 through a “single function of the trigger” if he maintains continuous backward pressure on the trigger, he can do the same with a bump-stock-equipped semiautomatic rifle if he maintains forward pressure on the gun. §5845(b). Today’s decision to reject that ordinary understanding will have deadly consequences. The majority’s artificially narrow definition hamstrings the Government’s efforts to keep machineguns from gunmen like the Las Vegas shooter. I respectfully dissent. Notes 1 Congress has twice strengthened the regulation of machineguns over the years without substantially updating the definition. See Gun Control Act of 1968, 82Stat. 1213 (expanding registration requirements and strengthening criminal penalties); Firearms Owners’ Protection Act, 100Stat. 452–453 (making it a federal crime “ ‘to transfer or possess a machinegun’ ”). 2 Of course, “authoritative legislative history can be useful, even when the meaning can be discerned from the statute’s language, to reinforce or to confirm a court’s sense of the text.” R. Katzmann, Judging Statutes 35 (2014). 3 The majority thinks that this logic should apply just as well to manual bump firing. Ante, at 14. As described supra , at 5, and infra , at 13, however, bump firing requires much more from the shooter than the simple forward pressure required to fire a bump-stock-equipped semiautomatic rifle. 4 The majority claims that these arguments explain only “why, even assuming a semiautomatic rifle equipped with a bump stock could fire more than one shot by a single function of the trigger, it could not do so ‘automatically.’ ” Ante, at 13, n. 6. That is correct, as far as the majority’s reasoning goes. The majority defines “ ‘single function of the trigger’ ” as a reset of a rifle’s internal trigger mechanism. Ante, at 11. A more accurate definition is the human action required to initiate the firing sequence. Supra , at 7–10. The majority’s argument for why “something more than a ‘single function of the trigger’ is required to fire multiple shots,” ante, at 15, is therefore relevant to both its discussion of “automatically” and my discussion of “single function of the trigger.” 5 The majority attempts to analogize a bump stock to the Model 37 shotgun, which allows the user to “fire multiple shots by holding down the trigger while operating the shotgun’s pump action.” Ante, at 16. The Model 37 automates the second process ( i . e ., pulling the trigger for each shot), as long as the shooter maintains pressure on the trigger. Unlike a semiautomatic rifle, however, the Model 37 does not automate the first, as the shooter “must manually operate the pump action with his nontrigger hand” to “ejec[t ] the spent cartridge and loa[d ] a new one into the chamber.” Ibid. 6 The majority emphasizes that ATF previously took the position that certain bump-stock devices were not “machinegun[s]” under the statute. See ante, at 3, 19. ATF, however, has repeatedly classified other devices that modify semiautomatic rifles by allowing a single activation of the shooter to automate repeat fire as machineguns. See, e . g ., 83 Fed. Reg. 66518, n. 4 (referencing ATF classifications of trigger reset devices); Akins v. United States , 312 F. Appx. 197, 200–201 (CA11 2009) ( per curiam ) (upholding classification of Akins Accelerator, a spring-operated bump stock); United States v. Camp , 343 F.3d 743 , 745 (CA5 2003) (upholding classification of fishing reel attached to a rifle trigger that, upon activation, repeatedly operated the curved lever of the rifle). 7 Respondent does not today challenge ATF’s classification of these devices as “machinegun[s].” His lawyer noted at oral argument, however, that “forced reset triggers” would be part of a category of “harder cases” where “there may be a question as to what exactly the trigger is and then how does that trigger function.” Tr. of Oral Arg. 82. That ambiguity stems from the majority’s loophole for weapons that require multiple mechanical actions to fire continuously, even when a shooter initiates that fire with a single human action.

The Supreme Court held that a bump stock, an accessory that increases the rate of fire for a semiautomatic rifle, does not convert the rifle into a machine gun as defined by the National Firearms Act of 1934 and affirmed the lower court's decision. The Court's decision centered on the interpretation of the phrase "single function of the trigger," with the majority defining it as the internal trigger mechanism's mechanical process, and the minority arguing it should be defined as the human action required to initiate firing. This decision has implications for the regulation of bump stocks and similar devices, with potential loopholes for weapons that require multiple mechanical actions to fire continuously.

Gun Rights

McDonald v. City of Chicago

https://supreme.justia.com/cases/federal/us/561/742/

OPINION OF THE COURT MCDONALD V. CHICAGO 561 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1521 OTIS McDONALD, et al., PETITIONERS v. CITY OF CHICAGO, ILLINOIS, et al. on writ of certiorari to the united states court of appeals for the seventh circuit [June 28, 2010]    Justice Alito announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and III–B, in which The Chief Justice, Justice Scalia, Justice Kennedy, and Justice Thomas join, and an opinion with respect to Parts II–C, IV, and V, in which The Chief Justice, Justice Scalia, and Justice Kennedy join.    Two years ago, in District of Columbia v. Heller , 554 U. S. ___ (2008), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home. The city of Chicago (City) and the village of Oak Park, a Chicago suburb, have laws that are similar to the District of Columbia’s, but Chicago and Oak Park argue that their laws are constitutional because the Second Amendment has no application to the States. We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States. I    Otis McDonald, Adam Orlov, Colleen Lawson, and David Lawson (Chicago petitioners) are Chicago residents who would like to keep handguns in their homes for self-defense but are prohibited from doing so by Chicago’s firearms laws. A City ordinance provides that “[n]o person shall … possess … any firearm unless such person is the holder of a valid registration certificate for such firearm.” Chicago, Ill., Municipal Code §8–20–040(a) (2009). The Code then prohibits registration of most handguns, thus effectively banning handgun possession by almost all private citizens who reside in the City. §8–20–050(c). Like Chicago, Oak Park makes it “unlawful for any person to possess … any firearm,” a term that includes “pistols, revolvers, guns and small arms … commonly known as handguns.” Oak Park, Ill., Municipal Code §§27–2–1 (2007), 27–1–1 (2009).    Chicago enacted its handgun ban to protect its residents “from the loss of property and injury or death from firearms.” See Chicago, Ill., Journal of Proceedings of the City Council, p. 10049 (Mar. 19, 1982). The Chicago petitioners and their amici , however, argue that the handgun ban has left them vulnerable to criminals. Chicago Police Department statistics, we are told, reveal that the City’s handgun murder rate has actually increased since the ban was enacted[ Footnote 1 ] and that Chicago residents now face one of the highest murder rates in the country and rates of other violent crimes that exceed the average in comparable cities.[ Footnote 2 ]    Several of the Chicago petitioners have been the targets of threats and violence. For instance, Otis McDonald, who is in his late seventies, lives in a high-crime neighborhood. He is a community activist involved with alternative policing strategies, and his efforts to improve his neighborhood have subjected him to violent threats from drug dealers. App. 16–17; Brief for State Firearm Associations as Amici Curiae 20–21; Brief for State of Texas et al. as Amici Curiae 7–8. Colleen Lawson is a Chicago resident whose home has been targeted by burglars. “In Mrs. Lawson’s judgment, possessing a handgun in Chicago would decrease her chances of suffering serious injury or death should she ever be threatened again in her home.”[ Footnote 3 ] McDonald, Lawson, and the other Chicago petitioners own handguns that they store outside of the city limits, but they would like to keep their handguns in their homes for protection. See App. 16–19, 43–44 (McDonald), 20–24 (C. Lawson), 19, 36 (Orlov), 20–21, 40 (D. Lawson).    After our decision in Heller , the Chicago petitioners and two groups[ Footnote 4 ] filed suit against the City in the United States District Court for the Northern District of Illinois. They sought a declaration that the handgun ban and several related Chicago ordinances violate the Second and Fourteenth Amendments to the United States Constitution. Another action challenging the Oak Park law was filed in the same District Court by the National Rifle Association (NRA) and two Oak Park residents. In addition, the NRA and others filed a third action challenging the Chicago ordinances. All three cases were assigned to the same District Judge.    The District Court rejected plaintiffs’ argument that the Chicago and Oak Park laws are unconstitutional. See App. 83–84; NRA, Inc. v. Oak Park , 617 F. Supp. 2d 752, 754 (ND Ill. 2008). The court noted that the Seventh Circuit had “squarely upheld the constitutionality of a ban on handguns a quarter century ago,” id ., at 753 (citing Quilici v. Morton Grove , 695 F. 2d 261 (CA7 1982)), and that Heller had explicitly refrained from “opin[ing] on the subject of incorporation vel non of the Second Amendment,” NRA , 617 F. Supp. 2d, at 754. The court observed that a district judge has a “duty to follow established precedent in the Court of Appeals to which he or she is beholden, even though the logic of more recent caselaw may point in a different direction.” Id., at 753.    The Seventh Circuit affirmed, relying on three 19th-century cases— United States v. Cruikshank , 92 U. S. 542 (1876), Presser v. Illinois , 116 U. S. 252 (1886), and Miller v. Texas , 153 U. S. 535 (1894)—that were decided in the wake of this Court’s interpretation of the Privileges or Immunities Clause of the Fourteenth Amendment in the Slaughter-House Cases, 16 Wall. 36 (1873) . The Seventh Circuit described the rationale of those cases as “defunct” and recognized that they did not consider the question whether the Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment right to keep and bear arms. NRA, Inc. v. Chicago , 567 F. 3d 856, 857, 858 (2009). Nevertheless, the Seventh Circuit observed that it was obligated to follow Supreme Court precedents that have “direct application,” and it declined to predict how the Second Amendment would fare under this Court’s modern “selective incorporation” approach. Id., at 857–858 (internal quotation marks omitted).    We granted certiorari. 557 U. S. ___ (2009). II A    Petitioners argue that the Chicago and Oak Park laws violate the right to keep and bear arms for two reasons. Petitioners’ primary submission is that this right is among the “privileges or immunities of citizens of the United States” and that the narrow interpretation of the Privileges or Immunities Clause adopted in the Slaughter-House Cases , supra , should now be rejected. As a secondary argument, petitioners contend that the Fourteenth Amendment’s Due Process Clause “incorporates” the Second Amendment right.    Chicago and Oak Park (municipal respondents) maintain that a right set out in the Bill of Rights applies to the States only if that right is an indispensable attribute of any “ ‘civilized’ ” legal system. Brief for Municipal Respondents 9. If it is possible to imagine a civilized country that does not recognize the right, the municipal respondents tell us, then that right is not protected by due process. Ibid. And since there are civilized countries that ban or strictly regulate the private possession of handguns, the municipal respondents maintain that due process does not preclude such measures. Id. , at 21–23. In light of the parties’ far-reaching arguments, we begin by recounting this Court’s analysis over the years of the relationship between the provisions of the Bill of Rights and the States. B    The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government. In Barron ex rel. Tiernan v. Mayor of Baltimore , 7 Pet. 243 (1833), the Court, in an opinion by Chief Justice Marshall, explained that this question was “of great importance” but “not of much difficulty.” Id ., at 247. In less than four pages, the Court firmly rejected the proposition that the first eight Amendments operate as limitations on the States, holding that they apply only to the Federal Government. See also Lessee of Livingston v. Moore , 7 Pet. 469, 551–552 (1833) (“[I]t is now settled that those amendments [in the Bill of Rights] do not extend to the states”).    The constitutional Amendments adopted in the aftermath of the Civil War fundamentally altered our country’s federal system. The provision at issue in this case, §1 of the Fourteenth Amendment, provides, among other things, that a State may not abridge “the privileges or immunities of citizens of the United States” or deprive “any person of life, liberty, or property, without due process of law.”    Four years after the adoption of the Fourteenth Amendment, this Court was asked to interpret the Amendment’s reference to “the privileges or immunities of citizens of the United States.” The Slaughter-House Cases , supra , involved challenges to a Louisiana law permitting the creation of a state-sanctioned monopoly on the butchering of animals within the city of New Orleans. Justice Samuel Miller’s opinion for the Court concluded that the Privileges or Immunities Clause protects only those rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws.” Id. , at 79. The Court held that other fundamental rights—rights that predated the creation of the Federal Government and that “the State governments were created to establish and secure”—were not protected by the Clause. Id. , at 76.    In drawing a sharp distinction between the rights of federal and state citizenship, the Court relied on two principal arguments. First, the Court emphasized that the Fourteenth Amendment’s Privileges or Immunities Clause spoke of “the privileges or immunities of citizens of the United States ,” and the Court contrasted this phrasing with the wording in the first sentence of the Fourteenth Amendment and in the Privileges and Immunities Clause of Article IV, both of which refer to state citizenship.[ Footnote 5 ] (Emphasis added.) Second, the Court stated that a contrary reading would “radically chang[e] the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people,” and the Court refused to conclude that such a change had been made “in the absence of language which expresses such a purpose too clearly to admit of doubt.” Id. , at 78. Finding the phrase “privileges or immunities of citizens of the United States” lacking by this high standard, the Court reasoned that the phrase must mean something more limited.    Under the Court’s narrow reading, the Privileges or Immunities Clause protects such things as the right “to come to the seat of government to assert any claim [a citizen] may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions … [and to] become a citizen of any State of the Union by a bonâ fide residence therein, with the same rights as other citizens of that State.” Id. , at 79–80 (internal quotation marks omitted).    Finding no constitutional protection against state intrusion of the kind envisioned by the Louisiana statute, the Court upheld the statute. Four Justices dissented. Justice Field, joined by Chief Justice Chase and Justices Swayne and Bradley, criticized the majority for reducing the Fourteenth Amendment’s Privileges or Immunities Clause to “a vain and idle enactment, which accomplished nothing, and most unnecessarily excited Congress and the people on its passage.” Id. , at 96; see also id. , at 104. Justice Field opined that the Privileges or Immunities Clause protects rights that are “in their nature … fundamental,” including the right of every man to pursue his profession without the imposition of unequal or discriminatory restrictions. Id. , at 96–97. Justice Bradley’s dissent observed that “we are not bound to resort to implication … to find an authoritative declaration of some of the most important privileges and immunities of citizens of the United States. It is in the Constitution itself.” Id ., at 118. Justice Bradley would have construed the Privileges or Immunities Clause to include those rights enumerated in the Constitution as well as some unenumerated rights. Id. , at 119. Justice Swayne described the majority’s narrow reading of the Privileges or Immunities Clause as “turn[ing] … what was meant for bread into a stone.” Id ., at 129 (dissenting opinion).    Today, many legal scholars dispute the correctness of the narrow Slaughter-House interpretation. See, e.g. , Saenz v. Roe , 526 U. S. 489 , 522, n. 1, 527 (1999) (Thomas, J., dissenting) (scholars of the Fourteenth Amendment agree “that the Clause does not mean what the Court said it meant in 1873”); Amar, Substance and Method in the Year 2000, 28 Pepperdine L. Rev. 601, 631, n. 178 (2001) (“Virtually no serious modern scholar—left, right, and center—thinks that this [interpretation] is a plausible reading of the Amendment”); Brief for Constitutional Law Professors as Amici Curiae 33 (claiming an “overwhelming consensus among leading constitutional scholars” that the opinion is “egregiously wrong”); C. Black, A New Birth of Freedom 74–75 (1997).    Three years after the decision in the Slaughter-House Cases, the Court decided Cruikshank, the first of the three 19th-century cases on which the Seventh Circuit relied. 92 U. S. 542 . In that case, the Court reviewed convictions stemming from the infamous Colfax Massacre in Louisiana on Easter Sunday 1873. Dozens of blacks, many unarmed, were slaughtered by a rival band of armed white men.[ Footnote 6 ] Cruikshank himself allegedly marched unarmed African-American prisoners through the streets and then had them summarily executed.[ Footnote 7 ] Ninety-seven men were indicted for participating in the massacre, but only nine went to trial. Six of the nine were acquitted of all charges; the remaining three were acquitted of murder but convicted under the Enforcement Act of 1870, 16 Stat. 140, for banding and conspiring together to deprive their victims of various constitutional rights, including the right to bear arms.[ Footnote 8 ]    The Court reversed all of the convictions, including those relating to the deprivation of the victims’ right to bear arms. Cruikshank , 92 U. S., at 553, 559. The Court wrote that the right of bearing arms for a lawful purpose “is not a right granted by the Constitution” and is not “in any manner dependent upon that instrument for its existence.” Id. , at 553. “The second amendment,” the Court continued, “declares that it shall not be infringed; but this … means no more than that it shall not be infringed by Congress.” Ibid. “Our later decisions in Presser v. Illinois, 116 U. S. 252 , 265 (1886), and Miller v. Texas, 153 U. S. 535 , 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.” Heller , 554 U. S., at ___, n. 23 (slip op., at 48, n. 23). C    As previously noted, the Seventh Circuit concluded that Cruikshank , Presser , and Miller doomed petitioners’ claims at the Court of Appeals level. Petitioners argue, however, that we should overrule those decisions and hold that the right to keep and bear arms is one of the “privileges or immunities of citizens of the United States.” In petitioners’ view, the Privileges or Immunities Clause protects all of the rights set out in the Bill of Rights, as well as some others, see Brief for Petitioners 10, 14, 15–21, but petitioners are unable to identify the Clause’s full scope, Tr. of Oral Arg. 5–6, 8–11. Nor is there any consensus on that question among the scholars who agree that the Slaughter-House Cases’ interpretation is flawed. See Saenz , supra , at 522, n. 1 (Thomas, J., dissenting).    We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.    At the same time, however, this Court’s decisions in Cruikshank , Presser , and Miller do not preclude us from considering whether the Due Process Clause of the Fourteenth Amendment makes the Second Amendment right binding on the States. See Heller , 554 U. S., at ___, n. 23 (slip op., at 48, n. 23). None of those cases “engage[d] in the sort of Fourteenth Amendment inquiry required by our later cases.” Ibid . As explained more fully below, Cruikshank , Presser , and Miller all preceded the era in which the Court began the process of “selective incorporation” under the Due Process Clause, and we have never previously addressed the question whether the right to keep and bear arms applies to the States under that theory.    Indeed, Cruikshank has not prevented us from holding that other rights that were at issue in that case are binding on the States through the Due Process Clause. In Cruikshank , the Court held that the general “right of the people peaceably to assemble for lawful purposes,” which is protected by the First Amendment, applied only against the Federal Government and not against the States. See 92 U. S., at 551–552. Nonetheless, over 60 years later the Court held that the right of peaceful assembly was a “fundamental righ[t] … safeguarded by the due process clause of the Fourteenth Amendment.” De Jonge v. Oregon , 299 U. S. 353 , 364 (1937). We follow the same path here and thus consider whether the right to keep and bear arms applies to the States under the Due Process Clause. D 1    In the late 19th century, the Court began to consider whether the Due Process Clause prohibits the States from infringing rights set out in the Bill of Rights. See Hurtado v. California , 110 U. S. 516 (1884) (due process does not require grand jury indictment); Chicago, B. & Q. R. Co. v. Chicago , 166 U. S. 226 (1897) (due process prohibits States from taking of private property for public use without just compensation). Five features of the approach taken during the ensuing era should be noted.    First, the Court viewed the due process question as entirely separate from the question whether a right was a privilege or immunity of national citizenship. See Twining v. New Jersey , 211 U. S. 78 , 99 (1908).    Second, the Court explained that the only rights protected against state infringement by the Due Process Clause were those rights “of such a nature that they are included in the conception of due process of law.” Ibid . See also, e.g. , Adamson v. California , 332 U. S. 46 (1947); Betts v. Brady , 316 U. S. 455 (1942); Palko v. Connecticut, 302 U. S. 319 (1937); Grosjean v. American Press Co. , 297 U. S. 233 (1936); Powell v. Alabama , 287 U. S. 45 (1932). While it was “possible that some of the personal rights safeguarded by the first eight Amendments against National action [might] also be safeguarded against state action,” the Court stated, this was “not because those rights are enumerated in the first eight Amendments.” Twining, supra, at 99.    The Court used different formulations in describing the boundaries of due process. For example, in Twining , the Court referred to “immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard.” 211 U. S., at 102 (internal quotation marks omitted). In Snyder v. Massachusetts , 291 U. S. 97 , 105 (1934), the Court spoke of rights that are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” And in Palko , the Court famously said that due process protects those rights that are “the very essence of a scheme of ordered liberty” and essential to “a fair and enlightened system of justice.” 302 U. S., at 325.    Third, in some cases decided during this era the Court “can be seen as having asked, when inquiring into whether some particular procedural safeguard was required of a State, if a civilized system could be imagined that would not accord the particular protection.” Duncan v. Louisiana , 391 U. S. 145 , 149, n. 14 (1968). Thus, in holding that due process prohibits a State from taking private property without just compensation, the Court described the right as “a principle of natural equity, recognized by all temperate and civilized governments, from a deep and universal sense of its justice.” Chicago, B. & Q. R. Co., supra, at 238. Similarly, the Court found that due process did not provide a right against compelled incrimination in part because this right “has no place in the jurisprudence of civilized and free countries outside the domain of the common law.” Twining, supra , at 113.    Fourth, the Court during this era was not hesitant to hold that a right set out in the Bill of Rights failed to meet the test for inclusion within the protection of the Due Process Clause. The Court found that some such rights qualified. See, e.g. , Gitlow v. New York , 268 U. S. 652 , 666 (1925) (freedom of speech and press); Near v. Minnesota ex rel. Olson , 283 U. S. 697 (1931) (same); Powell , supra (assistance of counsel in capital cases); De Jonge , supra (freedom of assembly); Cantwell v. Connecticut , 310 U. S. 296 (1940) (free exercise of religion). But others did not. See, e.g. , Hurtado, supra (grand jury indictment requirement); Twining , supra (privilege against self-incrimination).    Finally, even when a right set out in the Bill of Rights was held to fall within the conception of due process, the protection or remedies afforded against state infringement sometimes differed from the protection or remedies provided against abridgment by the Federal Government. To give one example, in Betts the Court held that, although the Sixth Amendment required the appointment of counsel in all federal criminal cases in which the defendant was unable to retain an attorney, the Due Process Clause required appointment of counsel in state criminal proceedings only where “want of counsel in [the] particular case … result[ed] in a conviction lacking in … fundamental fairness.” 316 U. S., at 473. Similarly, in Wolf v. Colorado , 338 U. S. 25 (1949), the Court held that the “core of the Fourth Amendment” was implicit in the concept of ordered liberty and thus “enforceable against the States through the Due Process Clause” but that the exclusionary rule, which applied in federal cases, did not apply to the States. Id ., at 27–28, 33. 2    An alternative theory regarding the relationship between the Bill of Rights and §1 of the Fourteenth Amendment was championed by Justice Black. This theory held that §1 of the Fourteenth Amendment totally incorporated all of the provisions of the Bill of Rights. See, e.g. , Adamson , supra , at 71–72 (Black, J., dissenting); Duncan , supra , at 166 (Black, J., concurring). As Justice Black noted, the chief congressional proponents of the Fourteenth Amendment espoused the view that the Amendment made the Bill of Rights applicable to the States and, in so doing, overruled this Court’s decision in Barron .[ Footnote 9 ] Adamson , 332 U. S., at 72 (dissenting opinion).[ Footnote 10 ] Nonetheless, the Court never has embraced Justice Black’s “total incorporation” theory. 3    While Justice Black’s theory was never adopted, the Court eventually moved in that direction by initiating what has been called a process of “selective incorporation,” i.e ., the Court began to hold that the Due Process Clause fully incorporates particular rights contained in the first eight Amendments. See, e.g. , Gideon v. Wainright , 372 U. S. 335 , 341 (1963); Malloy v. Hogan , 378 U. S. 1 , 5–6 (1964); Pointer v. Texas , 380 U. S. 400 , 403–404 (1965); Washington v. Texas , 388 U. S. 14 , 18 (1967); Duncan , 391 U. S., at 147–148; Benton v. Maryland , 395 U. S. 784 , 794 (1969).    The decisions during this time abandoned three of the previously noted characteristics of the earlier period.[ Footnote 11 ] The Court made it clear that the governing standard is not whether any “civilized system [can] be imagined that would not accord the particular protection.” Duncan , 391 U. S., at 149, n. 14. Instead, the Court inquired whether a particular Bill of Rights guarantee is fundamental to our scheme of ordered liberty and system of justice. Id ., at 149, and n. 14; see also id., at 148 (referring to those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions” (emphasis added; internal quotation marks omitted)).    The Court also shed any reluctance to hold that rights guaranteed by the Bill of Rights met the requirements for protection under the Due Process Clause. The Court eventually incorporated almost all of the provisions of the Bill of Rights.[ Footnote 12 ] Only a handful of the Bill of Rights protections remain unincorporated.[ Footnote 13 ]    Finally, the Court abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,” stating that it would be “incongruous” to apply different standards “depending on whether the claim was asserted in a state or federal court.” Malloy , 378 U. S., at 10–11 (internal quotation marks omitted). Instead, the Court decisively held that incorporated Bill of Rights protections “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” Id ., at 10; see also Mapp v. Ohio , 367 U. S. 643 , 655–656 (1961); Ker v. California , 374 U. S. 23 , 33–34 (1963); Aguilar v. Texas , 378 U. S. 1 08, 110 (1964); Pointer , 380 U. S., at 406; Duncan , supra , at 149, 157–158; Benton , 395 U. S., at 794–795; Wallace v. Jaffree , 472 U. S. 38 , 48–49 (1985).[ Footnote 14 ]    Employing this approach, the Court overruled earlier decisions in which it had held that particular Bill of Rights guarantees or remedies did not apply to the States. See, e.g. , Mapp , supra (overruling in part Wolf , 338 U. S. 25 ); Gideon , 372 U. S. 335 (overruling Betts , 316 U. S. 455 ); Malloy , supra (overruling Adamson , 332 U. S. 46 , and Twining , 211 U. S. 78 ); Benton , supra , at 794 (overruling Palko , 302 U. S. 319 ). III    With this framework in mind, we now turn directly to the question whether the Second Amendment right to keep and bear arms is incorporated in the concept of due process. In answering that question, as just explained, we must decide whether the right to keep and bear arms is fundamental to our scheme of ordered liberty, Duncan, 391 U. S., at 149, or as we have said in a related context, whether this right is “deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg, 521 U. S. 702 , 721 (1997) (internal quotation marks omitted). A    Our decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day,[ Footnote 15 ] and in Heller, we held that individual self-defense is “the central component ” of the Second Amendment right. 554 U. S., at ___ (slip op., at 26); see also id ., at ___ (slip op., at 56) (stating that the “inherent right of self-defense has been central to the Second Amendment right”). Explaining that “the need for defense of self, family, and property is most acute” in the home, ibid ., we found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” id ., at ___ (slip op., at 57) (some internal quotation marks omitted); see also id ., at ___ (slip op., at 56) (noting that handguns are “overwhelmingly chosen by American society for [the] lawful purpose” of self-defense); id ., at ___ (slip op., at 57) (“[T]he American people have considered the handgun to be the quintessential self-defense weapon”). Thus, we concluded, citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” Id ., at ___ (slip op., at 58). Heller makes it clear that this right is “deeply rooted in this Nation’s history and tradition. ” Glucksberg, supra, at 721 (internal quotation marks omitted). Heller explored the right’s origins, noting that the 1689 English Bill of Rights explicitly protected a right to keep arms for self-defense, 554 U. S., at ___–___ (slip op., at 19–20), and that by 1765, Blackstone was able to assert that the right to keep and bear arms was “one of the fundamental rights of Englishmen,” id ., at ___ (slip op., at 20).    Blackstone’s assessment was shared by the American colonists. As we noted in Heller , King George III’s attempt to disarm the colonists in the 1760’s and 1770’s “provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms.”[ Footnote 16 ] Id ., at ___ (slip op., at 21); see also L. Levy, Origins of the Bill of Rights 137–143 (1999) (hereinafter Levy).    The right to keep and bear arms was considered no less fundamental by those who drafted and ratified the Bill of Rights. “During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric.” Heller , supra , at ___ (slip op., at 25) (citing Letters from the Federal Farmer III (Oct. 10, 1787), in 2 The Complete Anti-Federalist 234, 242 (H. Storing ed. 1981)); see also Federal Farmer: An Additional Number of Letters to the Republican, Letter XVIII (Jan. 25, 1788), in 17 Documentary History of the Ratification of the Constitution 360, 362–363 (J. Kaminski & G. Saladino eds. 1995); S. Halbrook, The Founders’ Second Amendment 171–278 (2008). Federalists responded, not by arguing that the right was insufficiently important to warrant protection but by contending that the right was adequately protected by the Constitution’s assignment of only limited powers to the Federal Government. Heller , supra , at ___ (slip op., at 25–26); cf. The Federalist No. 46, p. 296 (C. Rossiter ed. 1961) (J. Madison). Thus, Antifederalists and Federalists alike agreed that the right to bear arms was fundamental to the newly formed system of government. See Levy 143–149; J. Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 155–164 (1994). But those who were fearful that the new Federal Government would infringe traditional rights such as the right to keep and bear arms insisted on the adoption of the Bill of Rights as a condition for ratification of the Constitution. See 1 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 327–331 (2d ed. 1854); 3 id. , at 657–661; 4 id. , at 242–246, 248–249; see also Levy 26–34; A. Kelly & W. Harbison, The American Constitution: Its Origins and Development 110, 118 (7th ed. 1991). This is surely powerful evidence that the right was regarded as fundamental in the sense relevant here.    This understanding persisted in the years immediately following the ratification of the Bill of Rights. In addition to the four States that had adopted Second Amendment analogues before ratification, nine more States adopted state constitutional provisions protecting an individual right to keep and bear arms between 1789 and 1820. Heller , supra , at ___ (slip op., at 27–30). Founding-era legal commentators confirmed the importance of the right to early Americans. St. George Tucker, for example, described the right to keep and bear arms as “the true palladium of liberty” and explained that prohibitions on the right would place liberty “on the brink of destruction.” 1 Blackstone’s Commentaries, Editor’s App. 300 (S. Tucker ed. 1803); see also W. Rawle, A View of the Constitution of the United States of America, 125–126 (2d ed. 1829) (reprint 2009); 3 J. Story, Commentaries on the Constitution of the United States §1890, p. 746 (1833) (“The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them”). B 1    By the 1850’s, the perceived threat that had prompted the inclusion of the Second Amendment in the Bill of Rights—the fear that the National Government would disarm the universal militia—had largely faded as a popular concern, but the right to keep and bear arms was highly valued for purposes of self-defense. See M. Doubler, Civilian in Peace, Soldier in War 87–90 (2003); Amar, Bill of Rights 258–259. Abolitionist authors wrote in support of the right. See L. Spooner, The Unconstitutionality of Slavery 66 (1860) (reprint 1965); J. Tiffany, A Treatise on the Unconstitutionality of American Slavery 117–118 (1849) (reprint 1969). And when attempts were made to disarm “Free-Soilers” in “Bloody Kansas,” Senator Charles Sumner, who later played a leading role in the adoption of the Fourteenth Amendment, proclaimed that “[n]ever was [the rifle] more needed in just self-defense than now in Kansas.” The Crime Against Kansas: The Apologies for the Crime: The True Remedy, Speech of Hon. Charles Sumner in the Senate of the United States 64–65 (1856). Indeed, the 1856 Republican Party Platform protested that in Kansas the constitutional rights of the people had been “fraudulently and violently taken from them” and the “right of the people to keep and bear arms” had been “infringed.” National Party Platforms 1840–1972, p. 27 (5th ed. 1973).[ Footnote 17 ]    After the Civil War, many of the over 180,000 African Americans who served in the Union Army returned to the States of the old Confederacy, where systematic efforts were made to disarm them and other blacks. See Heller , 554 U. S., at ___ (slip op., at 42); E. Foner, Reconstruction: America’s Unfinished Revolution 1863–1877, p. 8 (1988) (hereinafter Foner). The laws of some States formally prohibited African Americans from possessing firearms. For example, a Mississippi law provided that “no freedman, free negro or mulatto, not in the military service of the United States government, and not licensed so to do by the board of police of his or her county, shall keep or carry fire-arms of any kind, or any ammunition, dirk or bowie knife.” Certain Offenses of Freedmen, 1865 Miss. Laws p. 165, §1, in 1 Documentary History of Reconstruction 289 (W. Fleming ed. 1950); see also Regulations for Freedmen in Louisiana, in id ., at 279–280; H. R. Exec. Doc. No. 70, 39th Cong., 1st Sess., 233, 236 (1866) (describing a Kentucky law); E. McPherson, The Political History of the United States of America During the Period of Reconstruction 40 (1871) (describing a Florida law); id ., at 33 (describing an Alabama law).[ Footnote 18 ]    Throughout the South, armed parties, often consisting of ex-Confederate soldiers serving in the state militias, forcibly took firearms from newly freed slaves. In the first session of the 39th Congress, Senator Wilson told his colleagues: “In Mississippi rebel State forces, men who were in the rebel armies, are traversing the State, visiting the freedmen, disarming them, perpetrating murders and outrages upon them; and the same things are done in other sections of the country.” 39th Cong. Globe 40 (1865). The Report of the Joint Committee on Reconstruction—which was widely reprinted in the press and distributed by Members of the 39th Congress to their constituents shortly after Congress approved the Fourteenth Amendment[ Footnote 19 ]—contained numerous examples of such abuses. See, e.g. , Joint Committee on Reconstruction, H. R. Rep. No. 30, 39th Cong., 1st Sess., pt. 2, pp. 219, 229, 272, pt. 3, pp. 46, 140, pt. 4, pp. 49–50 (1866); see also S. Exec. Doc. No. 2, 39th Cong., 1st Sess., 23–24, 26, 36 (1865). In one town, the “marshal [took] all arms from returned colored soldiers, and [was] very prompt in shooting the blacks whenever an opportunity occur[red].” H. R. Exec. Doc. No. 70, at 238 (internal quotation marks omitted). As Senator Wilson put it during the debate on a failed proposal to disband Southern militias: “There is one unbroken chain of testimony from all people that are loyal to this country, that the greatest outrages are perpetrated by armed men who go up and down the country searching houses, disarming people, committing outrages of every kind and description.” 39th Cong. Globe 915 (1866).[ Footnote 20 ]    Union Army commanders took steps to secure the right of all citizens to keep and bear arms,[ Footnote 21 ] but the 39th Congress concluded that legislative action was necessary. Its efforts to safeguard the right to keep and bear arms demonstrate that the right was still recognized to be fundamental.    The most explicit evidence of Congress’ aim appears in §14 of the Freedmen’s Bureau Act of 1866, which provided that “the right … to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms , shall be secured to and enjoyed by all the citizens … without respect to race or color, or previous condition of slavery.” 14 Stat. 176–177 (emphasis added).[ Footnote 22 ] Section 14 thus explicitly guaranteed that “all the citizens,” black and white, would have “the constitutional right to bear arms.”    The Civil Rights Act of 1866, 14 Stat. 27, which was considered at the same time as the Freedmen’s Bureau Act, similarly sought to protect the right of all citizens to keep and bear arms.[ Footnote 23 ] Section 1 of the Civil Rights Act guaranteed the “full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.” Ibid . This language was virtually identical to language in §14 of the Freedmen’s Bureau Act, 14 Stat. 176–177 (“the right … to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal”). And as noted, the latter provision went on to explain that one of the “laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal” was “the constitutional right to bear arms.” Ibid. Representative Bingham believed that the Civil Rights Act protected the same rights as enumerated in the Freedmen’s Bureau bill, which of course explicitly mentioned the right to keep and bear arms. 39th Cong. Globe 1292. The unavoidable conclusion is that the Civil Rights Act, like the Freedmen’s Bureau Act, aimed to protect “the constitutional right to bear arms” and not simply to prohibit discrimination. See also Amar, Bill of Rights 264–265 (noting that one of the “core purposes of the Civil Rights Act of 1866 and of the Fourteenth Amendment was to redress the grievances” of freedmen who had been stripped of their arms and to “affirm the full and equal right of every citizen to self-defense”).    Congress, however, ultimately deemed these legislative remedies insufficient. Southern resistance, Presidential vetoes, and this Court’s pre-Civil-War precedent persuaded Congress that a constitutional amendment was necessary to provide full protection for the rights of blacks.[ Footnote 24 ] Today, it is generally accepted that the Fourteenth Amendment was understood to provide a constitutional basis for protecting the rights set out in the Civil Rights Act of 1866. See General Building Contractors Assn., Inc. v. Pennsylvania , 458 U. S. 375 , 389 (1982); see also Amar, Bill of Rights 187; Calabresi, Two Cheers for Professor Balkin’s Originalism, 103 Nw. U. L. Rev. 663, 669–670 (2009).    In debating the Fourteenth Amendment, the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection. Senator Samuel Pomeroy described three “indispensable” “safeguards of liberty under our form of Government.” 39th Cong. Globe 1182. One of these, he said, was the right to keep and bear arms:    “Every man … should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete.” Ibid . Even those who thought the Fourteenth Amendment unnecessary believed that blacks, as citizens, “have equal right to protection, and to keep and bear arms for self-defense.” Id ., at 1073 (Sen. James Nye); see also Foner 258–259.[ Footnote 25 ]    Evidence from the period immediately following the ratification of the Fourteenth Amendment only confirms that the right to keep and bear arms was considered fundamental. In an 1868 speech addressing the disarmament of freedmen, Representative Stevens emphasized the necessity of the right: “Disarm a community and you rob them of the means of defending life. Take away their weapons of defense and you take away the inalienable right of defending liberty.” “The fourteenth amendment, now so happily adopted, settles the whole question.” Cong. Globe, 40th Cong., 2d Sess., 1967. And in debating the Civil Rights Act of 1871, Congress routinely referred to the right to keep and bear arms and decried the continued disarmament of blacks in the South. See Halbrook, Freedmen 120–131. Finally, legal commentators from the period emphasized the fundamental nature of the right. See, e.g. , T. Farrar, Manual of the Constitution of the United States of America §118, p. 145 (1867) (reprint 1993); J. Pomeroy, An Introduction to the Constitutional Law of the United States §239, pp. 152–153 (3d ed. 1875).    The right to keep and bear arms was also widely protected by state constitutions at the time when the Fourteenth Amendment was ratified. In 1868, 22 of the 37 States in the Union had state constitutional provisions explicitly protecting the right to keep and bear arms. See Calabresi & Agudo, Individual Rights Under State Constitutions when the Fourteenth Amendment was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition? 87 Texas L. Rev. 7, 50 (2008).[ Footnote 26 ] Quite a few of these state constitutional guarantees, moreover, explicitly protected the right to keep and bear arms as an individual right to self-defense. See Ala. Const., Art. I, §28 (1868); Conn. Const., Art. I, §17 (1818); Ky. Const., Art. XIII, §25 (1850); Mich. Const., Art. XVIII, §7 (1850); Miss. Const., Art. I, §15 (1868); Mo. Const., Art. I, §8 (1865); Tex. Const., Art. I, §13 (1869); see also Mont. Const., Art. III, §13 (1889); Wash. Const., Art. I, §24 (1889); Wyo. Const., Art. I, §24 (1889); see also State v. McAdams , 714 P. 2d 1236, 1238 (Wyo. 1986). What is more, state constitutions adopted during the Reconstruction era by former Confederate States included a right to keep and bear arms. See, e.g. , Ark. Const., Art. I, §5 (1868); Miss. Const., Art. I, §15 (1868); Tex. Const., Art. I, §13 (1869). A clear majority of the States in 1868, therefore, recognized the right to keep and bear arms as being among the foundational rights necessary to our system of Government.[ Footnote 27 ]    In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty. 2    Despite all this evidence, municipal respondents contend that Congress, in the years immediately following the Civil War, merely sought to outlaw “discriminatory measures taken against freedmen, which it addressed by adopting a non-discrimination principle” and that even an outright ban on the possession of firearms was regarded as acceptable, “so long as it was not done in a discriminatory manner.” Brief for Municipal Respondents 7. They argue that Members of Congress overwhelmingly viewed §1 of the Fourteenth Amendment “as an antidiscrimination rule,” and they cite statements to the effect that the section would outlaw discriminatory measures. Id ., at 64. This argument is implausible.    First, while §1 of the Fourteenth Amendment contains “an antidiscrimination rule,” namely, the Equal Protection Clause, municipal respondents can hardly mean that §1 does no more than prohibit discrimination. If that were so, then the First Amendment, as applied to the States, would not prohibit nondiscriminatory abridgments of the rights to freedom of speech or freedom of religion; the Fourth Amendment, as applied to the States, would not prohibit all unreasonable searches and seizures but only discriminatory searches and seizures—and so on. We assume that this is not municipal respondents’ view, so what they must mean is that the Second Amendment should be singled out for special—and specially unfavorable—treatment. We reject that suggestion.    Second, municipal respondents’ argument ignores the clear terms of the Freedmen’s Bureau Act of 1866, which acknowledged the existence of the right to bear arms. If that law had used language such as “the equal benefit of laws concerning the bearing of arms,” it would be possible to interpret it as simply a prohibition of racial discrimination. But §14 speaks of and protects “the constitutional right to bear arms,” an unmistakable reference to the right protected by the Second Amendment. And it protects the “full and equal benefit” of this right in the States. 14 Stat. 176–177. It would have been nonsensical for Congress to guarantee the full and equal benefit of a constitutional right that does not exist.    Third, if the 39th Congress had outlawed only those laws that discriminate on the basis of race or previous condition of servitude, African Americans in the South would likely have remained vulnerable to attack by many of their worst abusers: the state militia and state peace officers. In the years immediately following the Civil War, a law banning the possession of guns by all private citizens would have been nondiscriminatory only in the formal sense. Any such law—like the Chicago and Oak Park ordinances challenged here—presumably would have permitted the possession of guns by those acting under the authority of the State and would thus have left firearms in the hands of the militia and local peace officers. And as the Report of the Joint Committee on Reconstruction revealed, see supra , at 24–25, those groups were widely involved in harassing blacks in the South.    Fourth, municipal respondents’ purely antidiscrimination theory of the Fourteenth Amendment disregards the plight of whites in the South who opposed the Black Codes. If the 39th Congress and the ratifying public had simply prohibited racial discrimination with respect to the bearing of arms, opponents of the Black Codes would have been left without the means of self-defense—as had abolitionists in Kansas in the 1850’s.    Fifth, the 39th Congress’ response to proposals to disband and disarm the Southern militias is instructive. Despite recognizing and deploring the abuses of these militias, the 39th Congress balked at a proposal to disarm them. See 39th Cong. Globe 914; Halbrook, Freedmen, supra , 20–21. Disarmament, it was argued, would violate the members’ right to bear arms, and it was ultimately decided to disband the militias but not to disarm their members. See Act of Mar. 2, 1867, §6, 14 Stat. 485, 487; Halbrook, Freedmen 68–69; Cramer 858–861. It cannot be doubted that the right to bear arms was regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner. IV    Municipal respondents’ remaining arguments are at war with our central holding in Heller : that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home. Municipal respondents, in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.    Municipal respondents’ main argument is nothing less than a plea to disregard 50 years of incorporation precedent and return (presumably for this case only) to a bygone era. Municipal respondents submit that the Due Process Clause protects only those rights “ ‘recognized by all temperate and civilized governments, from a deep and universal sense of [their] justice.’ ” Brief for Municipal Respondents 9 (quoting Chicago, B. & Q. R. Co. , 166 U. S., at 238). According to municipal respondents, if it is possible to imagine any civilized legal system that does not recognize a particular right, then the Due Process Clause does not make that right binding on the States. Brief for Municipal Respondents 9. Therefore, the municipal respondents continue, because such countries as England, Canada, Australia, Japan, Denmark, Finland, Luxembourg, and New Zealand either ban or severely limit handgun ownership, it must follow that no right to possess such weapons is protected by the Fourteenth Amendment. Id ., at 21–23.    This line of argument is, of course, inconsistent with the long-established standard we apply in incorporation cases. See Duncan , 391 U. S., at 149, and n. 14. And the present-day implications of municipal respondents’ argument are stunning. For example, many of the rights that our Bill of Rights provides for persons accused of criminal offenses are virtually unique to this country.[ Footnote 28 ] If our understanding of the right to a jury trial, the right against self-incrimination, and the right to counsel were necessary attributes of any civilized country, it would follow that the United States is the only civilized Nation in the world.    Municipal respondents attempt to salvage their position by suggesting that their argument applies only to substantive as opposed to procedural rights. Brief for Municipal Respondents 10, n. 3. But even in this trimmed form, municipal respondents’ argument flies in the face of more than a half-century of precedent. For example, in Everson v. Board of Ed. of Ewing , 330 U. S. 1 , 8 (1947), the Court held that the Fourteenth Amendment incorporates the Establishment Clause of the First Amendment. Yet several of the countries that municipal respondents recognize as civilized have established state churches.[ Footnote 29 ] If we were to adopt municipal respondents’ theory, all of this Court’s Establishment Clause precedents involving actions taken by state and local governments would go by the boards.    Municipal respondents maintain that the Second Amendment differs from all of the other provisions of the Bill of Rights because it concerns the right to possess a deadly implement and thus has implications for public safety. Brief for Municipal Respondents 11. And they note that there is intense disagreement on the question whether the private possession of guns in the home increases or decreases gun deaths and injuries. Id ., at 11, 13–17.    The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category. See, e.g ., Hudson v. Michigan , 547 U. S. 586 , 591 (2006) (“The exclusionary rule generates ‘substantial social costs,’ United States v. Leon , 468 U. S. 897 , 907 (1984), which sometimes include setting the guilty free and the dangerous at large”); Barker v. Wingo , 407 U. S. 514 , 522 (1972) (reflecting on the serious consequences of dismissal for a speedy trial violation, which means “a defendant who may be guilty of a serious crime will go free”); Miranda v. Arizona , 384 U. S. 436 , 517 (1966) (Harlan, J., dissenting); id. , at 542 (White, J., dissenting) (objecting that the Court’s rule “[i]n some unknown number of cases … will return a killer, a rapist or other criminal to the streets … to repeat his crime”); Mapp , 367 U. S., at 659. Municipal respondents cite no case in which we have refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has disputed public safety implications.    We likewise reject municipal respondents’ argument that we should depart from our established incorporation methodology on the ground that making the Second Amendment binding on the States and their subdivisions is inconsistent with principles of federalism and will stifle experimentation. Municipal respondents point out—quite correctly—that conditions and problems differ from locality to locality and that citizens in different jurisdictions have divergent views on the issue of gun control. Municipal respondents therefore urge us to allow state and local governments to enact any gun control law that they deem to be reasonable, including a complete ban on the possession of handguns in the home for self-defense. Brief for Municipal Respondents 18–20, 23.    There is nothing new in the argument that, in order to respect federalism and allow useful state experimentation, a federal constitutional right should not be fully binding on the States. This argument was made repeatedly and eloquently by Members of this Court who rejected the concept of incorporation and urged retention of the two-track approach to incorporation. Throughout the era of “selective incorporation,” Justice Harlan in particular, invoking the values of federalism and state experimentation, fought a determined rearguard action to preserve the two-track approach. See, e.g. , Roth v. United States , 354 U. S. 476 , 500–503 (1957) (Harlan, J., concurring in result in part and dissenting in part); Mapp , supra , at 678–680 (Harlan, J., dissenting); Gideon , 372 U. S., at 352 (Harlan, J., concurring); Malloy , 378 U. S., at 14–33 (Harlan, J., dissenting); Pointer , 380 U. S., at 408–409 (Harlan, J., concurring in result); Washington , 388 U. S., at 23–24 (Harlan, J., concurring in result); Duncan , 391 U. S., at 171–193 (Harlan, J., dissenting); Benton , 395 U. S., at 808–809 (Harlan, J., dissenting); Williams v. Florida , 399 U. S. 78 , 117 (1970) (Harlan, J., dissenting in part and concurring in result in part).    Time and again, however, those pleas failed. Unless we turn back the clock or adopt a special incorporation test applicable only to the Second Amendment, municipal respondents’ argument must be rejected. Under our precedents, if a Bill of Rights guarantee is fundamental from an American perspective, then, unless stare decisis counsels otherwise,[ Footnote 30 ] that guarantee is fully binding on the States and thus limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values. As noted by the 38 States that have appeared in this case as amici supporting petitioners, “[s]tate and local experimentation with reasonable firearms regulations will continue under the Second Amendment.” Brief for State of Texas et al. as Amici Curiae 23.    Municipal respondents and their amici complain that incorporation of the Second Amendment right will lead to extensive and costly litigation, but this argument applies with even greater force to constitutional rights and remedies that have already been held to be binding on the States. Consider the exclusionary rule. Although the exclusionary rule “is not an individual right,” Herring v. United States , 555 U. S. ___ (2009) (slip op., at 5), but a “judicially created rule,” id ., at ___ (slip op., at 4), this Court made the rule applicable to the States. See Mapp , supra , at 660. The exclusionary rule is said to result in “tens of thousands of contested suppression motions each year.” Stuntz, The Virtues and Vices of the Exclusionary Rule, 20 Harv. J. Law & Pub. Pol’y, 443, 444 (1997).    Municipal respondents assert that, although most state constitutions protect firearms rights, state courts have held that these rights are subject to “interest-balancing” and have sustained a variety of restrictions. Brief for Municipal Respondents 23–31. In Heller , however, we expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest balancing, 554 U. S., at ___–___ (slip op., at 62–63), and this Court decades ago abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,” Malloy , supra , at 10–11 (internal quotation marks omitted). As evidence that the Fourteenth Amendment has not historically been understood to restrict the authority of the States to regulate firearms, municipal respondents and supporting amici cite a variety of state and local firearms laws that courts have upheld. But what is most striking about their research is the paucity of precedent sustaining bans comparable to those at issue here and in Heller . Municipal respondents cite precisely one case (from the late 20th century) in which such a ban was sustained. See Brief for Municipal Respondents 26–27 (citing Kalodimos v. Morton Grove , 103 Ill. 2d 483, 470 N. E. 2d 266 (1984)); see also Reply Brief for Respondents NRA et al. 23, n. 7 (asserting that no other court has ever upheld a complete ban on the possession of handguns). It is important to keep in mind that Heller , while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id ., at ___–___ (slip op., at 54–55). We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms. Municipal respondents argue, finally, that the right to keep and bear arms is unique among the rights set out in the first eight Amendments “because the reason for codifying the Second Amendment (to protect the militia) differs from the purpose (primarily, to use firearms to engage in self-defense) that is claimed to make the right implicit in the concept of ordered liberty.” Brief for Municipal Respondents 36–37. Municipal respondents suggest that the Second Amendment right differs from the rights heretofore incorporated because the latter were “valued for [their] own sake.” Id ., at 33. But we have never previously suggested that incorporation of a right turns on whether it has intrinsic as opposed to instrumental value, and quite a few of the rights previously held to be incorporated—for example the right to counsel and the right to confront and subpoena witnesses—are clearly instrumental by any measure. Moreover, this contention repackages one of the chief arguments that we rejected in Heller , i.e. , that the scope of the Second Amendment right is defined by the immediate threat that led to the inclusion of that right in the Bill of Rights. In Heller , we recognized that the codification of this right was prompted by fear that the Federal Government would disarm and thus disable the militias, but we rejected the suggestion that the right was valued only as a means of preserving the militias. 554 U. S., at ___ (slip op., at 26). On the contrary, we stressed that the right was also valued because the possession of firearms was thought to be essential for self-defense. As we put it, self-defense was “the central component of the right itself.” Ibid . V A We turn, finally, to the two dissenting opinions. Justice Stevens’ eloquent opinion covers ground already addressed, and therefore little need be added in response. Justice Stevens would “ ‘ground the prohibitions against state action squarely on due process, without intermediate reliance on any of the first eight Amendments.’ ” Post, at 8 (quoting Malloy , 378 U. S., at 24 (Harlan, J., dissenting)). The question presented in this case, in his view, “is whether the particular right asserted by petitioners applies to the States because of the Fourteenth Amendment itself, standing on its own bottom.” Post , at 27. He would hold that “[t]he rights protected against state infringement by the Fourteenth Amendment’s Due Process Clause need not be identical in shape or scope to the rights protected against Federal Government infringement by the various provisions of the Bill of Rights.” Post , at 9. As we have explained, the Court, for the past half-century, has moved away from the two-track approach. If we were now to accept Justice Stevens’ theory across the board, decades of decisions would be undermined. We assume that this is not what is proposed. What is urged instead, it appears, is that this theory be revived solely for the individual right that Heller recognized, over vigorous dissents. The relationship between the Bill of Rights’ guarantees and the States must be governed by a single, neutral principle. It is far too late to exhume what Justice Brennan, writing for the Court 46 years ago, derided as “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights.” Malloy , supra , at 10–11 (internal quotation marks omitted). B Justice Breyer’s dissent makes several points to which we briefly respond. To begin, while there is certainly room for disagreement about Heller ’s analysis of the history of the right to keep and bear arms, nothing written since Heller persuades us to reopen the question there decided. Few other questions of original meaning have been as thoroughly explored. Justice Breyer’s conclusion that the Fourteenth Amendment does not incorporate the right to keep and bear arms appears to rest primarily on four factors: First, “there is no popular consensus” that the right is fundamental, post , at 9; second, the right does not protect minorities or persons neglected by those holding political power, post , at 10; third, incorporation of the Second Amendment right would “amount to a significant incursion on a traditional and important area of state concern, altering the constitutional relationship between the States and the Federal Government” and preventing local variations, post , at 11; and fourth, determining the scope of the Second Amendment right in cases involving state and local laws will force judges to answer difficult empirical questions regarding matters that are outside their area of expertise, post , at 11–16. Even if we believed that these factors were relevant to the incorporation inquiry, none of these factors undermines the case for incorporation of the right to keep and bear arms for self-defense. First, we have never held that a provision of the Bill of Rights applies to the States only if there is a “popular consensus” that the right is fundamental, and we see no basis for such a rule. But in this case, as it turns out, there is evidence of such a consensus. An amicus brief submitted by 58 Members of the Senate and 251 Members of the House of Representatives urges us to hold that the right to keep and bear arms is fundamental. See Brief for Senator Kay Bailey Hutchison et al . as Amici Curiae 4. Another brief submitted by 38 States takes the same position. Brief for State of Texas et al. as Amici Curiae 6. Second, petitioners and many others who live in high-crime areas dispute the proposition that the Second Amendment right does not protect minorities and those lacking political clout. The plight of Chicagoans living in high-crime areas was recently highlighted when two Illinois legislators representing Chicago districts called on the Governor to deploy the Illinois National Guard to patrol the City’s streets.[ Footnote 31 ] The legislators noted that the number of Chicago homicide victims during the current year equaled the number of American soldiers killed during that same period in Afghanistan and Iraq and that 80% of the Chicago victims were black.[ Footnote 32 ] Amici supporting incorporation of the right to keep and bear arms contend that the right is especially important for women and members of other groups that may be especially vulnerable to violent crime.[ Footnote 33 ] If, as petitioners believe, their safety and the safety of other law-abiding members of the community would be enhanced by the possession of handguns in the home for self-defense, then the Second Amendment right protects the rights of minorities and other residents of high-crime areas whose needs are not being met by elected public officials. Third, Justice Breyer is correct that incorporation of the Second Amendment right will to some extent limit the legislative freedom of the States, but this is always true when a Bill of Rights provision is incorporated. Incorporation always restricts experimentation and local variations, but that has not stopped the Court from incorporating virtually every other provision of the Bill of Rights. “[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Heller , 554 U. S., at __ (slip op., at 64). This conclusion is no more remarkable with respect to the Second Amendment than it is with respect to all the other limitations on state power found in the Constitution. Finally, Justice Breyer is incorrect that incorporation will require judges to assess the costs and benefits of firearms restrictions and thus to make difficult empirical judgments in an area in which they lack expertise. As we have noted, while his opinion in Heller recommended an interest-balancing test, the Court specifically rejected that suggestion. See supr a, at 38–39. “The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Heller , supra , at ___ (slip op., at 62–63). *  *  * In Heller , we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. See Duncan , 391 U. S., at 149, and n. 14. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller . The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings. It is so ordered. Footnote 1 See Brief for Heartland Institute as Amicus Curiae 6–7 (noting that handgun murder rate was 9.65 in 1983 and 13.88 in 2008). Footnote 2 Brief for Buckeye Firearms Foundation, Inc., et al. as Amici Curiae 8–9 (“In 2002 and again in 2008, Chicago had more murders than any other city in the U. S., including the much larger Los Angeles and New York” (internal quotation marks omitted)); see also Brief for International Law Enforcement Educators and Trainers Association et al. as Amici Curiae 17–21, and App. A (providing comparisons of Chicago’s rates of assault, murder, and robbery to average crime rates in 24 other large cities). Footnote 3 Brief for Women State Legislators et al. as Amici Curiae 2. Footnote 4 The Illinois State Rifle Association and the Second Amendment Foundation, Inc. Footnote 5 The first sentence of the Fourteenth Amendment makes “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof … citizens of the United States and of the State wherein they reside .” (Emphasis added.) The Privileges and Immunities Clause of Article IV provides that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States .” (Emphasis added.) Footnote 6 See C. Lane, The Day Freedom Died 265–266 (2008); see also Brief for NAACP Legal Defense & Education Fund, Inc., as Amicus Curiae 3, and n. 2. Footnote 7 See Lane, supra , at 106. Footnote 8 United States v. Cruikshank , 92 U. S. 542 , 544–545 (statement of the case), 548, 553 (opinion of the Court) (1875); Lawrence, Civil Rights and Criminal Wrongs: The Mens Rea of Federal Civil Rights Crimes, 67 Tulane L. Rev. 2113, 2153 (1993). Footnote 9 Senator Jacob Howard, who spoke on behalf of the Joint Committee on Reconstruction and sponsored the Amendment in the Senate, stated that the Amendment protected all of “the personal rights guarantied and secured by the first eight amendments of the Constitution.” Cong. Globe, 39th Cong., 1st Sess., 2765 (1866) (hereinafter 39th Cong. Globe). Representative John Bingham, the principal author of the text of §1, said that the Amendment would “arm the Congress … with the power to enforce the bill of rights as it stands in the Constitution today.” Id ., at 1088; see also id. , at 1089–1090; A. Amar, The Bill of Rights: Creation and Reconstruction 183 (1998) (hereinafter Amar, Bill of Rights). After ratification of the Amendment, Bingham maintained the view that the rights guaranteed by §1 of the Fourteenth Amendment “are chiefly defined in the first eight amendments to the Constitution of the United States.” Cong. Globe, 42d Cong., 1st Sess., App. 84 (1871). Finally, Representative Thaddeus Stevens, the political leader of the House and acting chairman of the Joint Committee on Reconstruction, stated during the debates on the Amendment that “the Constitution limits only the action of Congress, and is not a limitation on the States. This amendment supplies that defect, and allows Congress to correct the unjust legislation of the States.” 39th Cong. Globe 2459; see also M. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights 112 (1986) (counting at least 30 statements during the debates in Congress interpreting §1 to incorporate the Bill of Rights); Brief for Constitutional Law Professors as Amici Curiae 20 (collecting authorities and stating that “[n]ot a single senator or representative disputed [the incorporationist] understanding” of the Fourteenth Amendment). Footnote 10 The municipal respondents and some of their amici dispute the significance of these statements. They contend that the phrase “privileges or immunities” is not naturally read to mean the rights set out in the first eight Amendments, see Brief for Historians et al. as Amici Curiae 13–16, and that “there is ‘support in the legislative history for no fewer than four interpretations of the … Privileges or Immunities Clause.’ ” Brief for Municipal Respondents 69 (quoting Currie, The Reconstruction Congress, 75 U. Chi. L. Rev. 383, 406 (2008); brackets omitted). They question whether there is sound evidence of “ ‘any strong public awareness of nationalizing the entire Bill of Rights.’ ” Brief for Municipal Respondents 69 (quoting Wildenthal, Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866–67, 68 Ohio St. L. J. 1509, 1600 (2007)). Scholars have also disputed the total incorporation theory. See, e.g ., Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? 2 Stan. L. Rev. 5 (1949); Berger, Incorporation of the Bill of Rights in the Fourteenth Amendment: A Nine-Lived Cat, 42 Ohio St. L. J. 435 (1981). Proponents of the view that §1 of the Fourteenth Amendment makes all of the provisions of the Bill of Rights applicable to the States respond that the terms privileges, immunities, and rights were used interchangeably at the time, see, e.g. , Curtis, supra , at 64–65, and that the position taken by the leading congressional proponents of the Amendment was widely publicized and understood, see, e.g ., Wildenthal, supra , at 1564–1565, 1590; Hardy, Original Popular Understanding of the Fourteenth Amendment as Reflected in the Print Media of 1866–1868, 30 Whittier L. Rev. 695 (2009). A number of scholars have found support for the total incorporation of the Bill of Rights. See Curtis, supra , at 57–130; Aynes, On Misreading John Bingham and the Fourteenth Amendment, 103 Yale L. J. 57, 61 (1993); see also Amar, Bill of Rights 181–230. We take no position with respect to this academic debate. Footnote 11 By contrast, the Court has never retreated from the proposition that the Privileges or Immunities Clause and the Due Process Clause present different questions. And in recent cases addressing unenumerated rights, we have required that a right also be “implicit in the concept of ordered liberty.” See, e.g ., Washington v. Glucksberg , 521 U. S. 702 , 721 (1997) (internal quotation marks omitted). Footnote 12 With respect to the First Amendment, see Everson v. Board of Ed. of Ewing , 330 U. S. 1 (1947) (Establishment Clause); Cantwell v. Connecticut , 310 U. S. 296 (1940) (Free Exercise Clause); De Jonge v. Oregon , 299 U. S. 353 (1937) (freedom of assembly); Gitlow v. New York , 268 U. S. 652 (1925) (free speech); Near v. Minnesota ex rel. Olson , 283 U. S. 697 (1931) (freedom of the press). With respect to the Fourth Amendment, see Aguilar v. Texas , 378 U. S. 1 08 (1964) (warrant requirement); Mapp v. Ohio , 367 U. S. 643 (1961) (exclusionary rule); Wolf v. Colorado , 338 U. S. 25 (1949) (freedom from unreasonable searches and seizures). With respect to the Fifth Amendment, see Benton v. Maryland , 395 U. S. 784 (1969) (Double Jeopardy Clause); Malloy v. Hogan , 378 U. S. 1 (1964) (privilege against self-incrimination); Chicago, B. & Q. R. Co. v. Chicago , 166 U. S. 226 (1897) (Just Compensation Clause). With respect to the Sixth Amendment, see Duncan v. Louisiana , 391 U. S. 145 (1968) (trial by jury in criminal cases); Washington v. Texas , 388 U. S. 14 (1967) (compulsory process); Klopfer v. North Carolina , 386 U. S. 213 (1967) (speedy trial); Pointer v. Texas , 380 U. S. 400 (1965) (right to confront adverse witness); Gideon v. Wainwright , 372 U. S. 335 (1963) (assistance of counsel); In re Oliver , 333 U. S. 257 (1948) (right to a public trial). With respect to the Eighth Amendment, see Robinson v. California , 370 U. S. 660 (1962) (cruel and unusual punishment); Schilb v. Kuebel , 404 U. S. 357 (1971) (prohibition against excessive bail). Footnote 13 In addition to the right to keep and bear arms (and the Sixth Amendment right to a unanimous jury verdict, see n. 14, infra ), the only rights not fully incorporated are (1) the Third Amendment’s protection against quartering of soldiers; (2) the Fifth Amendment’s grand jury indictment requirement; (3) the Seventh Amendment right to a jury trial in civil cases; and (4) the Eighth Amendment’s prohibition on excessive fines. We never have decided whether the Third Amendment or the Eighth Amendment’s prohibition of excessive fines applies to the States through the Due Process Clause. See Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc. , 492 U. S. 257 , 276, n. 22 (1989) (declining to decide whether the excessive-fines protection applies to the States); see also Engblom v. Carey , 677 F. 2d 957, 961 (CA2 1982) (holding as a matter of first impression that the “Third Amendment is incorporated into the Fourteenth Amendment for application to the states”). Our governing decisions regarding the Grand Jury Clause of the Fifth Amendment and the Seventh Amendment’s civil jury requirement long predate the era of selective incorporation. Footnote 14 There is one exception to this general rule. The Court has held that although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials. See Apodaca v. Oregon , 406 U. S. 404 (1972); see also Johnson v. Louisiana , 406 U. S. 356 (1972) (holding that the Due Process Clause does not require unanimous jury verdicts in state criminal trials). But that ruling was the result of an unusual division among the Justices, not an endorsement of the two-track approach to incorporation. In Apodaca , eight Justices agreed that the Sixth Amendment applies identically to both the Federal Government and the States. See Johnson , supra , at 395 (Brennan, J., dissenting). Nonetheless, among those eight, four Justices took the view that the Sixth Amendment does not require unanimous jury verdicts in either federal or state criminal trials, Apodaca , 406 U. S., at 406 (plurality opinion), and four other Justices took the view that the Sixth Amendment requires unanimous jury verdicts in federal and state criminal trials, id ., at 414–415 (Stewart, J., dissenting); Johnson , supra , at 381–382 (Douglas, J., dissenting). Justice Powell’s concurrence in the judgment broke the tie, and he concluded that the Sixth Amendment requires juror unanimity in federal, but not state, cases. Apodaca , therefore, does not undermine the well-established rule that incorporated Bill of Rights protections apply identically to the States and the Federal Government. See Johnson , supra , at 395–396 (Brennan, J., dissenting) (footnote omitted) (“In any event, the affirmance must not obscure that the majority of the Court remains of the view that, as in the case of every specific of the Bill of Rights that extends to the States, the Sixth Amendment’s jury trial guarantee, however it is to be construed, has identical application against both State and Federal Governments”). Footnote 15 Citing Jewish, Greek, and Roman law, Blackstone wrote that if a person killed an attacker, “the slayer is in no kind of fault whatsoever, not even in the minutest degree; and is therefore to be totally acquitted and discharged, with commendation rather than blame.” 4 W. Blackstone, Commentaries on the Laws of England 182 (reprint 1992). Footnote 16 For example, an article in the Boston Evening Post stated: “For it is certainly beyond human art and sophistry, to prove the British subjects, to whom the privilege of possessing arms is expressly recognized by the Bill of Rights, and, who live in a province where the law requires them to be equip’d with arms, &c. are guilty of an illegal act, in calling upon one another to be provided with them, as the law directs.” Boston Evening Post, Feb. 6, 1769, in Boston Under Military Rule 1768–1769, p. 61 (1936) (emphasis deleted). Footnote 17 Abolitionists and Republicans were not alone in believing that the right to keep and bear arms was a fundamental right. The 1864 Democratic Party Platform complained that the confiscation of firearms by Union troops occupying parts of the South constituted “the interference with and denial of the right of the people to bear arms in their defense.” National Party Platforms 1840–1972, at 34. Footnote 18 In South Carolina, prominent black citizens held a convention to address the State’s black code. They drafted a memorial to Congress, in which they included a plea for protection of their constitutional right to keep and bear arms: “ ‘We ask that, inasmuch as the Constitution of the United States explicitly declares that the right to keep and bear arms shall not be infringed … that the late efforts of the Legislature of this State to pass an act to deprive us [of] arms be forbidden, as a plain violation of the Constitution.’ ” S. Halbrook, Freedmen, The Fourteenth Amendment, and The Right to Bear Arms, 1866–1876, p. 9 (1998) (hereinafter Halbrook, Freedmen) (quoting 2 Proceedings of the Black State Conventions, 1840–1865, p. 302 (P. Foner & G. Walker eds. 1980)). Senator Charles Sumner relayed the memorial to the Senate and described the memorial as a request that black citizens “have the constitutional protection in keeping arms.” 39th Cong. Globe 337. Footnote 19 See B. Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction 265–266 (1914); Adamson v. California , 332 U. S. 46 , 108–109 (1947) (appendix to dissenting opinion of Black, J.). Footnote 20 Disarmament by bands of former Confederate soldiers eventually gave way to attacks by the Ku Klux Klan. In debates over the later enacted Enforcement Act of 1870, Senator John Pool observed that the Klan would “order the colored men to give up their arms; saying that everybody would be Kukluxed in whose house fire-arms were found.” Cong. Globe, 41st Cong., 2d Sess., 2719 (1870); see also H. R. Exec. Doc. No. 268, 42d Cong., 2d Sess., 2 (1872). Footnote 21 For example, the occupying Union commander in South Carolina issued an order stating that “[t]he constitutional rights of all loyal and well disposed inhabitants to bear arms, will not be infringed.” General Order No. 1, Department of South Carolina, January 1, 1866, in 1 Documentary History of Reconstruction 208 (W. Fleming ed. 1950). Union officials in Georgia issued a similar order, declaring that “ ‘[a]ll men, without the distinction of color, have the right to keep arms to defend their homes, families or themselves.’ ” Cramer, “This Right is Not Allowed by Governments That Are Afraid of The People”: The Public Meaning of the Second Amendment When the Fourteenth Amendment was Ratified, 17 Geo. Mason L. Rev. 823, 854 (2010) (hereinafter Cramer) (quoting Right to Bear Arms, Christian Recorder, Feb. 24, 1866, pp. 1–2). In addition, when made aware of attempts by armed parties to disarm blacks, the head of the Freedmen’s Bureau in Alabama “made public [his] determination to maintain the right of the negro to keep and to bear arms, and [his] disposition to send an armed force into any neighborhood in which that right should be systematically interfered with.” Joint Committee on Reconstruction, H. R. Rep. No. 30, 39th Cong., 1st Sess., pt. 3, p. 140 (1866). Footnote 22 The Freedmen’s Bureau bill was amended to include an express reference to the right to keep and bear arms, see 39th Cong. Globe 654 (Rep. Thomas Eliot), even though at least some Members believed that the unamended version alone would have protected the right, see id ., at 743 (Sen. Lyman Trumbull). Footnote 23 There can be do doubt that the principal proponents of the Civil Rights Act of 1866 meant to end the disarmament of African Americans in the South. In introducing the bill, Senator Trumbull described its purpose as securing to blacks the “privileges which are essential to freemen.” Id ., at 474. He then pointed to the previously described Mississippi law that “prohibit[ed] any negro or mulatto from having fire-arms” and explained that the bill would “destroy” such laws. Ibid . Similarly, Representative Sidney Clarke cited disarmament of freedmen in Alabama and Mississippi as a reason to support the Civil Rights Act and to continue to deny Alabama and Mississippi representation in Congress: “I regret, sir, that justice compels me to say, to the disgrace of the Federal Government, that the ‘reconstructed’ State authorities of Mississippi were allowed to rob and disarm our veteran soldiers and arm the rebels fresh from the field of treasonable strife. Sir, the disarmed loyalists of Alabama, Mississippi, and Louisiana are powerless to-day, and oppressed by the pardoned and encouraged rebels of those States. They appeal to the American Congress for protection. In response to this appeal I shall vote for every just measure of protection, for I do not intend to be among the treacherous violators of the solemn pledge of the nation.” Id ., at 1838–1839. Footnote 24 For example, at least one southern court had held the Civil Rights Act to be unconstitutional. That court did so, moreover, in the course of upholding the conviction of an African-American man for violating Mississippi’s law against firearm possession by freedmen. See Decision of Chief Justice Handy, Declaring the Civil Rights Bill Unconstitutional, N. Y. Times, Oct. 26, 1866, p. 2, col. 3. Footnote 25 Other Members of the 39th Congress stressed the importance of the right to keep and bear arms in discussing other measures. In speaking generally on reconstruction, Representative Roswell Hart listed the “ ‘right of the people to keep and bear arms’ ” as among those rights necessary to a “republican form of government.” 39th Cong. Globe 1629. Similarly, in objecting to a bill designed to disarm southern militias, Senator Willard Saulsbury argued that such a measure would violate the Second Amendment. Id ., at 914–915. Indeed, the bill “ultimately passed in a form that disbanded militias but maintained the right of individuals to their private firearms.” Cramer 858. Footnote 26 More generally worded provisions in the constitutions of seven other States may also have encompassed a right to bear arms. See Calabresi & Agudo, 87 Texas L. Rev., at 52. Footnote 27 These state constitutional protections often reflected a lack of law enforcement in many sections of the country. In the frontier towns that did not have an effective police force, law enforcement often could not pursue criminals beyond the town borders. See Brief for Rocky Mountain Gun Owners et al. as Amici Curiae 15. Settlers in the West and elsewhere, therefore, were left to “repe[l] force by force when the intervention of society … [was] too late to prevent an injury.” District of Columbia v. Heller , 554 U. S. ___ , ___ (2008) (slip op., at 21) (internal quotation marks omitted). The settlers’ dependence on game for food and economic livelihood, moreover, undoubtedly undergirded these state constitutional guarantees. See id ., at ___, ___, ___ (slip. op, at 26, 36, 42). Footnote 28 For example, the United States affords criminal jury trials far more broadly than other countries. See, e.g. , Van Kessel, Adversary Excesses in the American Criminal Trial, 67 Notre Dame L. Rev. 403 (1992); Leib, A Comparison of Criminal Jury Decision Rules in Democratic Countries, 5 Ohio St. J. Crim. L. 629, 630 (2008); Henderson, The Wrongs of Victim’s Rights, 37 Stan. L. Rev. 937, 1003, n. 296 (1985); see also Roper v. Simmons , 543 U. S. 551 , 624 (2005) (Scalia, J., dissenting) (“In many significant respects the laws of most other countries differ from our law—including … such explicit provisions of our Constitution as the right to jury trial”). Similarly, our rules governing pretrial interrogation differ from those in countries sharing a similar legal heritage. See Dept. of Justice, Office of Legal Policy, Report to the Attorney General on the Law of Pretrial Interrogation: Truth in Criminal Justice Report No. 1 (Feb. 12, 1986), reprinted in 22 U. Mich. J. L. Ref. 437, 534–542 (1989) (comparing the system envisioned by Miranda v. Arizona , 384 U. S. 436 (1966), with rights afforded by England, Scotland, Canada, India, France, and Germany). And the “Court-pronounced exclusionary rule … is distinctively American.” Roper , supra , at 624 (Scalia, J., dissenting) (citing Bivens v. Six Unknown Fed. Narcotics Agents , 403 U. S. 388 , 415 (1971) (Burger, C. J., dissenting) (noting that exclusionary rule was “unique to American jurisprudence” (internal quotation marks omitted))); see also Sklansky, Anti-Inquisitorialism, 122 Harv. L. Rev. 1634, 1648–1656, 1689–1693 (2009) (discussing the differences between American and European confrontation rules). Footnote 29 England and Denmark have state churches. See Torke, The English Religious Establishment, 12 J. of Law & Religion 399, 417–427 (1995–1996) (describing legal status of Church of England); Constitutional Act of Denmark, pt. I, §4 (1953) (“The Evangelical Lutheran Church shall be the Established Church of Denmark”). The Evangelical Lutheran Church of Finland has attributes of a state church. See Christensen, Is the Lutheran Church Still the State Church? An Analysis of Church-State Relations in Finland, 1995 B. Y. U. L. Rev. 585, 596–600 (describing status of church under Finnish law). The Web site of the Evangelical Lutheran Church of Finland states that the church may be usefully described as both a “state church” and a “folk church.” See J. Seppo, The Current Condition of Church-State Relations in Finland, online at http://evl.fi/EVLen.nsf/Documents/838DDBEF 4A28712AC225730F001F7C67?OpenDocument&lang=EN (all Internet materials as visited June 23, 2010, and available in Clerk of Court’s case file). Footnote 30 As noted above, see n. 13, supra , cases that predate the era of selective incorporation held that the Grand Jury Clause of the Fifth Amendment and the Seventh Amendment’s civil jury requirement do not apply to the States. See Hurtado v. California , 110 U. S. 516 (1884) (indictment); Minneapolis & St. Louis R. Co. v. Bombolis , 241 U. S. 211 (1916) (civil jury). As a result of Hurtado , most States do not require a grand jury indictment in all felony cases, and many have no grand juries. See Dept. of Justice, Office of Justice Programs, Bureau of Justice Statistics, State Court Organization 2004, pp. 213, 215–217 (2006) (Table 38), online at http://bjs.ojp.usdoj.gov/content/pub/pdf/sco04.pdf. As a result of Bombolis , cases that would otherwise fall within the Seventh Amendment are now tried without a jury in state small claims courts. See, e.g. , Cheung v. Eighth Judicial Dist. Court , 121 Nev. 867, 124 P. 3d 550 (2005) (no right to jury trial in small claims court under Nevada Constitution). Footnote 31 See Mack & Burnette, 2 Lawmakers to Quinn: Send the Guard to Chicago, Chicago Tribune, Apr. 26, 2010, p. 6. Footnote 32 Janssen & Knowles, Send in Troops? Chicago Sun-Times, Apr. 26, 2010, p. 2; see also Brief for NAACP Legal Defense & Education Fund, Inc., as Amicus Curiae 5, n. 4 (stating that in 2008, almost three out of every four homicide victims in Chicago were African Americans); id. , at 5–6 (noting that “each year [in Chicago], many times more African Americans are murdered by assailants wielding guns than were killed during the Colfax massacre” (footnote omitted)). Footnote 33 See Brief for Women State Legislators et al. as Amici Curiae 9–10, 14–15; Brief for Jews for the Preservation of Firearms Ownership as Amicus Curiae 3–4; see also Brief for Pink Pistols et al. as Amici Curiae in District of Columbia v. Heller , O. T. 2007, No. 07–290, pp. 5–11. OPINION OF THOMAS, J. MCDONALD V. CHICAGO 561 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1521 OTIS McDONALD, et al., PETITIONERS v. CITY OF CHICAGO, ILLINOIS, et al. on writ of certiorari to the united states court of appeals for the seventh circuit [June 28, 2010]    Justice Thomas, concurring in part and concurring in the judgment. I agree with the Court that the Fourteenth Amendment makes the right to keep and bear arms set forth in the Second Amendment “fully applicable to the States.” Ante , at 1. I write separately because I believe there is a more straightforward path to this conclusion, one that is more faithful to the Fourteenth Amendment’s text and history. Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear arms applies to the States through the Fourteenth Amendment’s Due Process Clause because it is “fundamental” to the American “scheme of ordered liberty,” ante , at 19 (citing Duncan v. Louisiana , 391 U. S. 145 , 149 (1968)), and “ ‘deeply rooted in this Nation’s history and tradition,’ ” ante , at 19 (quoting Washington v. Glucksberg , 521 U. S. 702 , 721 (1997)). I agree with that description of the right. But I cannot agree that it is enforceable against the States through a clause that speaks only to “process.” Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause. I In District of Columbia v. Heller , 554 U. S. ___ (2008), this Court held that the Second Amendment protects an individual right to keep and bear arms for the purpose of self-defense, striking down a District of Columbia ordinance that banned the possession of handguns in the home. Id. , at __ (slip op., at 64). The question in this case is whether the Constitution protects that right against abridgment by the States. As the Court explains, if this case were litigated before the Fourteenth Amendment’s adoption in 1868, the answer to that question would be simple. In Barron ex rel. Tiernan v. Mayor of Baltimore , 7 Pet. 243 (1833), this Court held that the Bill of Rights applied only to the Federal Government. Writing for the Court, Chief Justice Marshall recalled that the founding generation added the first eight Amendments to the Constitution in response to Antifederalist concerns regarding the extent of federal—not state—power, and held that if “the framers of these amendments [had] intended them to be limitations on the powers of the state governments,” “they would have declared this purpose in plain and intelligible language.” Id. , at 250. Finding no such language in the Bill, Chief Justice Marshall held that it did not in any way restrict state authority. Id. , at 248–250; see Lessee of Livingston v. Moore , 7 Pet. 469, 551–552 (1833) (reaffirming Barron ’s holding); Permoli v. Municipality No. 1 of New Orleans , 3 How. 589, 609–610 (1845) (same). Nearly three decades after Barron , the Nation was splintered by a civil war fought principally over the question of slavery. As was evident to many throughout our Nation’s early history, slavery, and the measures designed to protect it, were irreconcilable with the principles of equality, government by consent, and inalienable rights proclaimed by the Declaration of Independence and embedded in our constitutional structure. See, e.g. , 3 Records of the Federal Convention of 1787, p. 212 (M. Farrand ed. 1911) (remarks of Luther Martin) (“[S]lavery is inconsistent with the genius of republicanism, and has a tendency to destroy those principles on which it is supported, as it lessens the sense of the equal rights of mankind” (emphasis deleted)); A. Lincoln, Speech at Peoria, Ill. (Oct. 16, 1854), reprinted in 2 The Collected Works of Abraham Lincoln 266 (R. Basler ed. 1953) (“[N]o man is good enough to govern another man, without that other’s consent . I say this is the leading principle—the sheet anchor of American republicanism. . . . Now the relation of masters and slaves is, pro tanto , a total violation of this principle”). After the war, a series of constitutional amendments were adopted to repair the Nation from the damage slavery had caused. The provision at issue here, §1 of the Fourteenth Amendment, significantly altered our system of government. The first sentence of that section provides that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This unambiguously overruled this Court’s contrary holding in Dred Scott v. Sandford , 19 How. 393 (1857), that the Constitution did not recognize black Americans as citizens of the United States or their own State. Id. , at 405–406. The meaning of §1’s next sentence has divided this Court for many years. That sentence begins with the command that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” On its face, this appears to grant the persons just made United States citizens a certain collection of rights— i.e. , privileges or immunities—attributable to that status. This Court’s precedents accept that point, but define the relevant collection of rights quite narrowly. In the Slaughter-House Cases , 16 Wall. 36 (1873), decided just five years after the Fourteenth Amendment’s adoption, the Court interpreted this text, now known as the Privileges or Immunities Clause, for the first time. In a closely divided decision, the Court drew a sharp distinction between the privileges and immunities of state citizenship and those of federal citizenship, and held that the Privileges or Immunities Clause protected only the latter category of rights from state abridgment. Id. , at 78. The Court defined that category to include only those rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws.” Id. , at 79. This arguably left open the possibility that certain individual rights enumerated in the Constitution could be considered privileges or immunities of federal citizenship. See ibid. (listing “[t]he right to peaceably assemble” and “the privilege of the writ of habeas corpus ” as rights potentially protected by the Privileges or Immunities Clause). But the Court soon rejected that proposition, interpreting the Privileges or Immunities Clause even more narrowly in its later cases. Chief among those cases is United States v. Cruikshank , 92 U. S. 542 (1876). There, the Court held that members of a white militia who had brutally murdered as many as 165 black Louisianians congregating outside a courthouse had not deprived the victims of their privileges as American citizens to peaceably assemble or to keep and bear arms. Ibid.; see L. Keith, The Colfax Massacre 109 (2008). According to the Court, the right to peaceably assemble codified in the First Amendment was not a privilege of United States citizenship because “[t]he right . . . existed long before the adoption of the Constitution.” 92 U. S., at 551 (emphasis added). Similarly, the Court held that the right to keep and bear arms was not a privilege of United States citizenship because it was not “in any manner dependent upon that instrument for its existence.” Id. , at 553. In other words, the reason the Framers codified the right to bear arms in the Second Amendment—its nature as an inalienable right that pre-existed the Constitution’s adoption—was the very reason citizens could not enforce it against States through the Fourteenth. That circular reasoning effectively has been the Court’s last word on the Privileges or Immunities Clause.[ Footnote 1 ] In the intervening years, the Court has held that the Clause prevents state abridgment of only a handful of rights, such as the right to travel, see Saenz v. Roe , 526 U. S. 489 , 503 (1999), that are not readily described as essential to liberty. As a consequence of this Court’s marginalization of the Clause, litigants seeking federal protection of fundamental rights turned to the remainder of §1 in search of an alternative fount of such rights. They found one in a most curious place—that section’s command that every State guarantee “due process” to any person before depriving him of “life, liberty, or property.” At first, litigants argued that this Due Process Clause “incorporated” certain procedural rights codified in the Bill of Rights against the States. The Court generally rejected those claims, however, on the theory that the rights in question were not sufficiently “fundamental” to warrant such treatment. See, e.g. , Hurtado v. California , 110 U. S. 516 (1884) (grand jury indictment requirement); Maxwell v. Dow , 176 U. S. 581 (1900) (12-person jury requirement); Twining v. New Jersey , 211 U. S. 78 (1908) (privilege against self-incrimination). That changed with time. The Court came to conclude that certain Bill of Rights guarantees were sufficiently fundamental to fall within §1’s guarantee of “due process.” These included not only procedural protections listed in the first eight Amendments, see, e.g. , Benton v. Maryland , 395 U. S. 784 (1969) (protection against double jeopardy), but substantive rights as well, see, e.g. , Gitlow v. New York , 268 U. S. 652 , 666 (1925) (right to free speech); Near v. Minnesota ex rel. Olson , 283 U. S. 697 , 707 (1931) (same). In the process of incorporating these rights against the States, the Court often applied them differently against the States than against the Federal Government on the theory that only those “fundamental” aspects of the right required Due Process Clause protection. See, e.g. , Betts v. Brady , 316 U. S. 455 , 473 (1942) (holding that the Sixth Amendment required the appointment of counsel in all federal criminal cases in which the defendant was unable to retain an attorney, but that the Due Process Clause required appointment of counsel in state criminal cases only where “want of counsel . . . result[ed] in a conviction lacking in . . . fundamental fairness”). In more recent years, this Court has “abandoned the notion” that the guarantees in the Bill of Rights apply differently when incorporated against the States than they do when applied to the Federal Government. Ante , at 17–18 (opinion of the Court) (internal quotation marks omitted). But our cases continue to adhere to the view that a right is incorporated through the Due Process Clause only if it is sufficiently “fundamental,” ante , at 37, 42–44 (plurality opinion)—a term the Court has long struggled to define. While this Court has at times concluded that a right gains “fundamental” status only if it is essential to the American “scheme of ordered liberty” or “ ‘deeply rooted in this Nation’s history and tradition,’ ” ante , at 19 (plurality opinion) (quoting Glucksberg , 521 U. S., at 721), the Court has just as often held that a right warrants Due Process Clause protection if it satisfies a far less measurable range of criteria, see Lawrence v. Texas , 539 U. S. 558 , 562 (2003) (concluding that the Due Process Clause protects “liberty of the person both in its spatial and in its more transcendent dimensions”). Using the latter approach, the Court has determined that the Due Process Clause applies rights against the States that are not mentioned in the Constitution at all, even without seriously arguing that the Clause was originally understood to protect such rights. See, e.g. , Lochner v. New York , 198 U. S. 45 (1905); Roe v. Wade , 410 U. S. 113 (1973); Lawrence , supra . All of this is a legal fiction. The notion that a constitutional provision that guarantees only “process” before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one. The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish “fundamental” rights that warrant protection from nonfundamental rights that do not. Today’s decision illustrates the point. Replaying a debate that has endured from the inception of the Court’s substantive due process jurisprudence, the dissents laud the “flexibility” in this Court’s substantive due process doctrine, post , at 14 (Stevens, J., dissenting); see post , at 6–8 (Breyer, J., dissenting), while the plurality makes yet another effort to impose principled restraints on its exercise, see ante , at 33–41. But neither side argues that the meaning they attribute to the Due Process Clause was consistent with public understanding at the time of its ratification. To be sure, the plurality’s effort to cabin the exercise of judicial discretion under the Due Process Clause by focusing its inquiry on those rights deeply rooted in American history and tradition invites less opportunity for abuse than the alternatives. See post , at 7 (Breyer, J., dissenting) (arguing that rights should be incorporated against the States through the Due Process Clause if they are “well-suited to the carrying out of . . . constitutional promises”); post , at 22 (Stevens, J., dissenting) (warning that there is no “all-purpose, top-down, totalizing theory of ‘liberty’ ” protected by the Due Process Clause). But any serious argument over the scope of the Due Process Clause must acknowledge that neither its text nor its history suggests that it protects the many substantive rights this Court’s cases now claim it does. I cannot accept a theory of constitutional interpretation that rests on such tenuous footing. This Court’s substantive due process framework fails to account for both the text of the Fourteenth Amendment and the history that led to its adoption, filling that gap with a jurisprudence devoid of a guiding principle. I believe the original meaning of the Fourteenth Amendment offers a superior alternative, and that a return to that meaning would allow this Court to enforce the rights the Fourteenth Amendment is designed to protect with greater clarity and predictability than the substantive due process framework has so far managed. I acknowledge the volume of precedents that have been built upon the substantive due process framework, and I further acknowledge the importance of stare decisis to the stability of our Nation’s legal system. But stare decisis is only an “adjunct” of our duty as judges to decide by our best lights what the Constitution means. Planned Parenthood of Southeastern Pa. v. Casey , 505 U. S. 833 , 963 (1992) (Rehnquist, C. J., concurring in judgment in part and dissenting in part). It is not “an inexorable command.” Lawrence , supra , at 577. Moreover, as judges, we interpret the Constitution one case or controversy at a time. The question presented in this case is not whether our entire Fourteenth Amendment jurisprudence must be preserved or revised, but only whether, and to what extent, a particular clause in the Constitution protects the particular right at issue here. With the inquiry appropriately narrowed, I believe this case presents an opportunity to reexamine, and begin the process of restoring, the meaning of the Fourteenth Amendment agreed upon by those who ratified it. II “It cannot be presumed that any clause in the constitution is intended to be without effect.” Marbury v. Madison , 1 Cranch 137, 174 (1803) (Marshall, C. J.). Because the Court’s Privileges or Immunities Clause precedents have presumed just that, I set them aside for the moment and begin with the text. The Privileges or Immunities Clause of the Fourteenth Amendment declares that “[n]o State . . . shall abridge the privileges or immunities of citizens of the United States.” In interpreting this language, it is important to recall that constitutional provisions are “ ‘written to be understood by the voters.’ ” Heller , 554 U. S., at ___ (slip op., at 3) (quoting United States v. Sprague , 282 U. S. 716 , 731 (1931)). Thus, the objective of this inquiry is to discern what “ordinary citizens” at the time of ratification would have understood the Privileges or Immunities Clause to mean. 554 U. S., at ___ (slip op., at 3). A 1 At the time of Reconstruction, the terms “privileges” and “immunities” had an established meaning as synonyms for “rights.” The two words, standing alone or paired together, were used interchangeably with the words “rights,” “liberties,” and “freedoms,” and had been since the time of Blackstone. See 1 W. Blackstone, Commentaries *129 (describing the “rights and liberties” of Englishmen as “private immunities” and “civil privileges”). A number of antebellum judicial decisions used the terms in this manner. See, e.g. , Magill v. Brown , 16 F. Cas. 408, 428 (No. 8,952) (CC ED Pa. 1833) (Baldwin, J.) (“The words ‘privileges and immunities’ relate to the rights of persons, place or property; a privilege is a peculiar right, a private law, conceded to particular persons or places”). In addition, dictionary definitions confirm that the public shared this understanding. See, e.g. , N. Webster, An American Dictionary of the English Language 1039 (C. Goodrich & N. Porter rev. 1865) (defining “privilege” as “a right or immunity not enjoyed by others or by all” and listing among its synonyms the words “immunity,” “franchise,” “right,” and “liberty”); id. , at 661 (defining “immunity” as “[f]reedom from an obligation” or “particular privilege”); id. , at 1140 (defining “right” as “[p]rivilege or immunity granted by authority”).[ Footnote 2 ] The fact that a particular interest was designated as a “privilege” or “immunity,” rather than a “right,” “liberty,” or “freedom,” revealed little about its substance. Blackstone, for example, used the terms “privileges” and “immunities” to describe both the inalienable rights of individuals and the positive-law rights of corporations. See 1 Commentaries, at *129 (describing “private immunities” as a “ residuum of natural liberty,” and “civil privileges” as those “which society has engaged to provide, in lieu of the natural liberties so given up by individuals” (footnote omitted)); id. , at *468 (stating that a corporate charter enables a corporation to “establish rules and orders” that serve as “the privileges and immunities . . . of the corporation”). Writers in this country at the time of Reconstruction followed a similar practice. See, e.g. , Racine & Mississippi R. Co. v. Farmers’ Loan & Trust Co. , 49 Ill. 331, 334 (1868) (describing agreement between two railroad companies in which they agreed “ ‘to fully merge and consolidate the[ir] capital stock, powers, privileges, immunities and franchises’ ”); Hathorn v. Calef , 53 Me. 471, 483–484 (1866) (concluding that a statute did not “modify any power, privileges, or immunity, pertaining to the franchise of any corporation”). The nature of a privilege or immunity thus varied depending on the person, group, or entity to whom those rights were assigned. See Lash, The Origins of the Privileges or Immunities Clause, Part I: “Privileges and Immunities” as an Antebellum Term of Art, 98 Geo. L. J. 1241, 1256–1257 (2010) (surveying antebellum usages of these terms). 2 The group of rights-bearers to whom the Privileges or Immunities Clause applies is, of course, “citizens.” By the time of Reconstruction, it had long been established that both the States and the Federal Government existed to preserve their citizens’ inalienable rights, and that these rights were considered “privileges” or “immunities” of citizenship. This tradition begins with our country’s English roots. Parliament declared the basic liberties of English citizens in a series of documents ranging from the Magna Carta to the Petition of Right and the English Bill of Rights. See 1 B. Schwartz, The Bill of Rights: A Documentary History 8–16, 19–21, 41–46 (1971) (hereinafter Schwartz). These fundamental rights, according to the English tradition, belonged to all people but became legally enforceable only when recognized in legal texts, including acts of Parliament and the decisions of common-law judges. See B. Bailyn, The Ideological Origins of the American Revolution 77–79 (1967). These rights included many that later would be set forth in our Federal Bill of Rights, such as the right to petition for redress of grievances, the right to a jury trial, and the right of “Protestants” to “have arms for their defence.” English Bill of Rights (1689), reprinted in 1 Schwartz 41, 43. As English subjects, the colonists considered themselves to be vested with the same fundamental rights as other Englishmen. They consistently claimed the rights of English citizenship in their founding documents, repeatedly referring to these rights as “privileges” and “immunities.” For example, a Maryland law provided that “[A]ll the Inhabitants of this Province being Christians (Slaves excepted) Shall have and enjoy all such rights liberties immunities priviledges and free customs within this Province as any naturall born subject of England hath or ought to have or enjoy in the Realm of England . . . .” Md. Act for the Liberties of the People (1639), in id., at 68 (emphasis added).[ Footnote 3 ] As tensions between England and the Colonies increased, the colonists adopted protest resolutions reasserting their claim to the inalienable rights of Englishmen. Again, they used the terms “privileges” and “immunities” to describe these rights. As the Massachusetts Resolves declared: “ Resolved , That there are certain essential Rights of the British Constitution of Government, which are founded in the Law of God and Nature, and are the common Rights of Mankind—Therefore… . . “Resolved, That no Man can justly take the Property of another without his Consent: And that upon this original Principle the Right of Representation . . . is evidently founded… . Resolved , That this inherent Right, together with all other, essential Rights, Liberties, Privileges and Immunities of the People of Great Britain, have been fully confirmed to them by Magna Charta .” The Massachusetts Resolves (Oct. 29, 1765), reprinted in Prologue to Revolution: Sources and Documents on the Stamp Act Crisis, 1764–1766, p. 56 (E. Morgan ed. 1959) (some emphasis added).[ Footnote 4 ] In keeping with this practice, the First Continental Congress declared in 1774 that the King had wrongfully denied the colonists “the rights, liberties, and immunities of free and natural-born subjects … within the realm of England.” 1 Journals of the Continental Congress 1774–1789, p. 68 (1904). In an address delivered to the inhabitants of Quebec that same year, the Congress described those rights as including the “great” “right[s]” of “trial by jury,” “Habeas Corpus,” and “freedom of the press.” Address of the Continental Congress to the Inhabitants of Quebec (1774), reprinted in 1 Schwartz 221–223. After declaring their independence, the newly formed States replaced their colonial charters with constitutions and state bills of rights, almost all of which guaranteed the same fundamental rights that the former colonists previously had claimed by virtue of their English heritage. See, e. g. , Pa. Declaration of Rights (1776), reprinted in 5 Thorpe 3081–3084 (declaring that “all men are born equally free and independent, and have certain natural, inherent and inalienable rights,” including the “right to worship Almighty God according to the dictates of their own consciences” and the “right to bear arms for the defence of themselves and the state”).[ Footnote 5 ] Several years later, the Founders amended the Constitution to expressly protect many of the same fundamental rights against interference by the Federal Government. Consistent with their English heritage, the founding generation generally did not consider many of the rights identified in these amendments as new entitlements, but as inalienable rights of all men, given legal effect by their codification in the Constitution’s text. See, e.g. , 1 Annals of Cong. 431–432, 436–437, 440–442 (1834) (statement of Rep. Madison) (proposing Bill of Rights in the first Congress); The Federalist No. 84, pp. 531–533 (B. Wright ed. 1961) (A. Hamilton); see also Heller , 554 U. S., at ___ (slip op., at 19) (“[I]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right”). The Court’s subsequent decision in Barron , however, made plain that the codification of these rights in the Bill made them legally enforceable only against the Federal Government, not the States. See 7 Pet., at 247. 3 Even though the Bill of Rights did not apply to the States, other provisions of the Constitution did limit state interference with individual rights. Article IV, §2, cl. 1 provides that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The text of this provision resembles the Privileges or Immunities Clause, and it can be assumed that the public’s understanding of the latter was informed by its understanding of the former. Article IV, §2 was derived from a similar clause in the Articles of Confederation, and reflects the dual citizenship the Constitution provided to all Americans after replacing that “league” of separate sovereign States. Gibbons v. Ogden , 9 Wheat. 1, 187 (1824); see 3 J. Story, Commentaries on the Constitution of the United States §1800, p. 675 (1833). By virtue of a person’s citizenship in a particular State, he was guaranteed whatever rights and liberties that State’s constitution and laws made available. Article IV, §2 vested citizens of each State with an additional right: the assurance that they would be afforded the “privileges and immunities” of citizenship in any of the several States in the Union to which they might travel. What were the “Privileges and Immunities of Citizens in the several States”? That question was answered perhaps most famously by Justice Bushrod Washington sitting as Circuit Justice in Corfield v. Coryell , 6 F. Cas. 546, 551–552 (No. 3,230) (CC ED Pa. 1825). In that case, a Pennsylvania citizen claimed that a New Jersey law prohibiting nonresidents from harvesting oysters from the State’s waters violated Article IV, §2 because it deprived him, as an out-of-state citizen, of a right New Jersey availed to its own citizens. Id. , at 550. Justice Washington rejected that argument, refusing to “accede to the proposition” that Article IV, §2 entitled “citizens of the several states . . . to participate in all the rights which belong exclusively to the citizens of any other particular state.” Id. , at 552 (emphasis added). In his view, Article IV, §2 did not guarantee equal access to all public benefits a State might choose to make available to its citizens. See id., at 552. Instead, it applied only to those rights “which are, in their nature, fundamental ; which belong, of right, to the citizens of all free governments.” Id. , at 551 (emphasis added). Other courts generally agreed with this principle. See, e.g. , Abbott v. Bayley , 23 Mass. 89, 92–93 (1827) (noting that the “privileges and immunities” of citizens in the several States protected by Article IV, §2 are “qualified and not absolute” because they do not grant a traveling citizen the right of “suffrage or of eligibility to office” in the State to which he travels). When describing those “fundamental” rights, Justice Washington thought it “would perhaps be more tedious than difficult to enumerate” them all, but suggested that they could “be all comprehended under” a broad list of “general heads,” such as “[p]rotection by the government,” “the enjoyment of life and liberty, with the right to acquire and possess property of every kind,” “the benefit of the writ of habeas corpus,” and the right of access to “the courts of the state,” among others.[ Footnote 6 ] Corfield , supra , at 551–552. Notably, Justice Washington did not indicate whether Article IV, §2 required States to recognize these fundamental rights in their own citizens and thus in sojourning citizens alike, or whether the Clause simply prohibited the States from discriminating against sojourning citizens with respect to whatever fundamental rights state law happened to recognize. On this question, the weight of legal authorities at the time of Reconstruction indicated that Article IV, §2 prohibited States from discriminating against sojourning citizens when recognizing fundamental rights, but did not require States to recognize those rights and did not prescribe their content. The highest courts of several States adopted this view, see, e.g. , Livingston v. Van Ingen , 9 Johns. 507, 561 (N. Y. Sup. Ct. 1812) (Yates, J.); id. , at 577 (Kent, J.); Campbell v. Morris , 3 H. & McH. 535, 553–554 (Md. Gen. Ct. 1797) (Chase, J.), as did several influential treatise-writers, see T. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the State of the American Union 15–16, and n. 3 (1868) (reprint 1972) (describing Article IV, §2 as designed “to prevent discrimination by the several States against the citizens and public proceedings of other States”); 2 J. Kent, Commentaries on American Law 35 (11th ed. 1867) (stating that Article IV, §2 entitles sojourning citizens “to the privileges that persons of the same description are entitled to in the state to which the removal is made, and to none other”). This Court adopted the same conclusion in a unanimous opinion just one year after the Fourteenth Amendment was ratified. See Paul v. Virginia , 8 Wall. 168, 180 (1869). *  *  * The text examined so far demonstrates three points about the meaning of the Privileges or Immunities Clause in §1. First, “privileges” and “immunities” were synonyms for “rights.” Second, both the States and the Federal Government had long recognized the inalienable rights of their citizens. Third, Article IV, §2 of the Constitution protected traveling citizens against state discrimination with respect to the fundamental rights of state citizenship. Two questions still remain, both provoked by the textual similarity between §1’s Privileges or Immunities Clause and Article IV, §2. The first involves the nature of the rights at stake: Are the privileges or immunities of “citizens of the United States” recognized by §1 the same as the privileges and immunities of “citizens in the several States” to which Article IV, §2 refers? The second involves the restriction imposed on the States: Does §1, like Article IV, §2, prohibit only discrimination with respect to certain rights if the State chooses to recognize them, or does it require States to recognize those rights? I address each question in turn. B I start with the nature of the rights that §1’s Privileges or Immunities Clause protects. Section 1 overruled Dred Scott ’s holding that blacks were not citizens of either the United States or their own State and, thus, did not enjoy “the privileges and immunities of citizens” embodied in the Constitution. 19 How., at 417. The Court in Dred Scott did not distinguish between privileges and immunities of citizens of the United States and citizens in the several States, instead referring to the rights of citizens generally. It did, however, give examples of what the rights of citizens were—the constitutionally enumerated rights of “the full liberty of speech” and the right “to keep and carry arms.” Ibid. Section 1 protects the rights of citizens “of the United States” specifically. The evidence overwhelmingly demonstrates that the privileges and immunities of such citizens included individual rights enumerated in the Constitution, including the right to keep and bear arms. 1 Nineteenth-century treaties through which the United States acquired territory from other sovereigns routinely promised inhabitants of the newly acquired territories that they would enjoy all of the “rights,” “privileges,” and “immunities” of United States citizens. See, e.g. , Treaty of Amity, Settlement, and Limits, Art. 6, Feb. 22, 1819, 8 Stat. 256–258, T. S. No. 327 (entered into force Feb. 19, 1821) (cession of Florida) (“The inhabitants of the territories which his Catholic Majesty cedes to the United States, by this Treaty, shall be incorporated in the Union of the United States, as soon as may be consistent with the principles of the Federal Constitution, and admitted to the enjoyment of all the privileges, rights, and immunities, of the citizens of the United States ” (emphasis added)).[ Footnote 7 ]    Commentators of the time explained that the rights and immunities of “citizens of the United States” recognized in these treaties “undoubtedly mean[t] those privileges that are common to all citizens of this republic.” Marcus, An Examination of the Expediency and Constitutionality of Prohibiting Slavery in the State of Missouri 17 (1819). It is therefore altogether unsurprising that several of these treaties identify liberties enumerated in the Constitution as privileges and immunities common to all United States citizens. For example, the Louisiana Cession Act of 1803, which codified a treaty between the United States and France culminating in the Louisiana Purchase, provided that “The inhabitants of the ceded territory shall be incorporated in the Union of the United States, and admitted as soon as possible, according to the principles of the Federal constitution, to the enjoyments of all the rights, advantages and immunities of citizens of the United States; and in the mean time they shall be maintained and protected in the free enjoyment of their liberty, property and the religion which they profess .” Treaty Between the United States of America and the French Republic, Art. III, Apr. 30, 1803, 8 Stat. 202, T. S. No. 86 (emphasis added).[ Footnote 8 ] The Louisiana Cession Act reveals even more about the privileges and immunities of United States citizenship because it provoked an extensive public debate on the meaning of that term. In 1820, when the Missouri Territory (which the United States acquired through the Cession Act) sought to enter the Union as a new State, a debate ensued over whether to prohibit slavery within Missouri as a condition of its admission. Some congressmen argued that prohibiting slavery in Missouri would deprive its inhabitants of the “privileges and immunities” they had been promised by the Cession Act. See, e.g. , 35 Annals of Cong. 1083 (1855) (remarks of Kentucky Rep. Hardin). But those who opposed slavery in Missouri argued that the right to hold slaves was merely a matter of state property law, not one of the privileges and immunities of United States citizenship guaranteed by the Act.[ Footnote 9 ] Daniel Webster was among the leading proponents of the antislavery position. In his “Memorial to Congress,” Webster argued that “[t]he rights, advantages and immunities here spoken of [in the Cession Act] must . . . be such as are recognized or communicated by the Constitution of the United States,” not the “rights, advantages and immunities, derived exclusively from the State governments . . . .” D. Webster, A Memorial to the Congress of the United States on the Subject of Restraining the Increase of Slavery in New States to be Admitted into the Union 15 (Dec. 15, 1819) (emphasis added). “The obvious meaning” of the Act, in Webster’s view, was that “ the rights derived under the federal Constitution shall be enjoyed by the inhabitants of [the territory].” Id. , at 15–16 (emphasis added). In other words, Webster articulated a distinction between the rights of United States citizenship and the rights of state citizenship, and argued that the former included those rights “recognized or communicated by the Constitution.” Since the right to hold slaves was not mentioned in the Constitution, it was not a right of federal citizenship. Webster and his allies ultimately lost the debate over slavery in Missouri and the territory was admitted as a slave State as part of the now-famous Missouri Compromise. Missouri Enabling Act of March 6, 1820, ch. 22, §8, 3 Stat. 548. But their arguments continued to inform public understanding of the privileges and immunities of United States citizenship. In 1854, Webster’s Memorial was republished in a pamphlet discussing the Nation’s next major debate on slavery—the proposed repeal of the Missouri Compromise through the Kansas-Nebraska Act, see The Nebraska Question: Comprising Speeches in the United States Senate: Together with the History of the Missouri Compromise 9–12 (1854). It was published again in 1857 in a collection of famous American speeches. See The Political Text-Book, or Encyclopedia: Containing Everything Necessary for the Reference of the Politicians and Statesmen of the United States 601–604 (M. Cluskey ed. 1857); see also Lash, 98 Geo. L. J., at 1294–1296 (describing Webster’s arguments and their influence). 2 Evidence from the political branches in the years leading to the Fourteenth Amendment’s adoption demonstrates broad public understanding that the privileges and immunities of United States citizenship included rights set forth in the Constitution, just as Webster and his allies had argued. In 1868, President Andrew Johnson issued a proclamation granting amnesty to former Confederates, guaranteeing “to all and to every person who directly or indirectly participated in the late insurrection or rebellion, a full pardon and amnesty for the offence of treason . . . with restoration of all rights, privileges, and immunities under the Constitution and the laws which have been made in pursuance thereof.” 15 Stat. 712. Records from the 39th Congress further support this understanding. a After the Civil War, Congress established the Joint Committee on Reconstruction to investigate circumstances in the Southern States and to determine whether, and on what conditions, those States should be readmitted to the Union. See Cong. Globe, 39th Cong., 1st Sess., 6, 30 (1865) (hereinafter 39th Cong. Globe); M. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights 57 (1986) (hereinafter Curtis). That Committee would ultimately recommend the adoption of the Fourteenth Amendment, justifying its recommendation by submitting a report to Congress that extensively catalogued the abuses of civil rights in the former slave States and argued that “adequate security for future peace and safety . . . can only be found in such changes of the organic law as shall determine the civil rights and privileges of all citizens in all parts of the republic.” See Report of the Joint Committee on Reconstruction, S. Rep. No. 112, 39th Cong., 1st Sess., p. 15 (1866); H. R. Rep. No. 30, 39th Cong., 1st Sess., p. XXI (1866). As the Court notes, the Committee’s Report “was widely reprinted in the press and distributed by members of the 39th Congress to their constituents.” Ante , at 24; B. Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction 264–265 (1914) (noting that 150,000 copies of the Report were printed and that it was widely distributed as a campaign document in the election of 1866). In addition, newspaper coverage suggests that the wider public was aware of the Committee’s work even before the Report was issued. For example, the Fort Wayne Daily Democrat (which appears to have been unsupportive of the Committee’s work) paraphrased a motion instructing the Committee to “enquire into [the] expediency of amending the Constitution of the United States so as to declare with greater certainty the power of Congress to enforce and determine by appropriate legislation all the guarantees contained in that instrument .” The Nigger Congress!, Fort Wayne Daily Democrat, Feb. 1, 1866, p. 4 (emphasis added). b Statements made by Members of Congress leading up to, and during, the debates on the Fourteenth Amendment point in the same direction. The record of these debates has been combed before. See Adamson v. California , 332 U. S. 46 , 92–110 (1947) (Appendix to dissenting opinion of Black, J.) (concluding that the debates support the conclusion that §1 was understood to incorporate the Bill of Rights against the States); ante , at 14, n. 9, 26–27, n. 23, (opinion of the Court) (counting the debates among other evidence that §1 applies the Second Amendment against the States). Before considering that record here, it is important to clarify its relevance. When interpreting constitutional text, the goal is to discern the most likely public understanding of a particular provision at the time it was adopted. Statements by legislators can assist in this process to the extent they demonstrate the manner in which the public used or understood a particular word or phrase. They can further assist to the extent there is evidence that these statements were disseminated to the public. In other words, this evidence is useful not because it demonstrates what the draftsmen of the text may have been thinking, but only insofar as it illuminates what the public understood the words chosen by the draftsmen to mean. (1) Three speeches stand out as particularly significant. Representative John Bingham, the principal draftsman of §1, delivered a speech on the floor of the House in February 1866 introducing his first draft of the provision. Bingham began by discussing Barron and its holding that the Bill of Rights did not apply to the States. He then argued that a constitutional amendment was necessary to provide “an express grant of power in Congress to enforce by penal enactment these great canons of the supreme law, securing to all the citizens in every State all the privileges and immunities of citizens, and to all the people all the sacred rights of person.” 39th Cong. Globe 1089–1090 (1866). Bingham emphasized that §1 was designed “to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution today. It ‘hath that extent—no more.’ ” Id ., at 1088. Bingham’s speech was printed in pamphlet form and broadly distributed in 1866 under the title, “One Country, One Constitution, and One People,” and the subtitle, “In Support of the Proposed Amendment to Enforce the Bill of Rights.”[ Footnote 10 ] Newspapers also reported his proposal, with the New York Times providing particularly extensive coverage, including a full reproduction of Bingham’s first draft of §1 and his remarks that a constitutional amendment to “enforc[e]” the “immortal bill of rights” was “absolutely essential to American nationality.” N. Y. Times, Feb. 27, 1866, p. 8. Bingham’s first draft of §1 was different from the version ultimately adopted. Of particular importance, the first draft granted Congress the “power to make all laws … necessary and proper to secure” the “citizens of each State all privileges and immunities of citizens in the several States,” rather than restricting state power to “abridge” the privileges or immunities of citizens of the United States.[ Footnote 11 ] 39th Cong. Globe 1088. That draft was met with objections, which the Times covered extensively. A front-page article hailed the “Clear and Forcible Speech” by Representative Robert Hale against the draft, explaining—and endorsing—Hale’s view that Bingham’s proposal would “confer upon Congress all the rights and power of legislation now reserved to the States” and would “in effect utterly obliterate State rights and State authority over their own internal affairs.”[ Footnote 12 ] N. Y. Times, Feb. 28, 1866, p. 1. Critically, Hale did not object to the draft insofar as it purported to protect constitutional liberties against state interference. Indeed, Hale stated that he believed (incorrectly in light of Barron ) that individual rights enumerated in the Constitution were already enforceable against the States. See 39th Cong. Globe 1064 (“I have, somehow or other, gone along with the impression that there is that sort of protection thrown over us in some way, whether with or without the sanction of a judicial decision that we are so protected”); see N. Y. Times, Feb. 28, 1866, at 1. Hale’s misperception was not uncommon among members of the Reconstruction generation. See infra , at 38–40. But that is secondary to the point that the Times’ coverage of this debate over §1’s meaning suggests public awareness of its main contours— i.e. , that §1 would, at a minimum, enforce constitutionally enumerated rights of United States citizens against the States. Bingham’s draft was tabled for several months. In the interim, he delivered a second well-publicized speech, again arguing that a constitutional amendment was required to give Congress the power to enforce the Bill of Rights against the States. That speech was printed in pamphlet form, see Speech of Hon. John A. Bingham, of Ohio, on the Civil Rights Bill, Mar. 9, 1866 (Cong. Globe); see 39th Cong. Globe 1837 (remarks of Rep. Lawrence) (noting that the speech was “extensively published”), and the New York Times covered the speech on its front page. Thirty-Ninth Congress, N. Y. Times, Mar. 10, 1866, p. 1. By the time the debates on the Fourteenth Amendment resumed, Bingham had amended his draft of §1 to include the text of the Privileges or Immunities Clause that was ultimately adopted. Senator Jacob Howard introduced the new draft on the floor of the Senate in the third speech relevant here. Howard explained that the Constitution recognized “a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, . . . some by the first eight amendments of the Constitution,” and that “there is no power given in the Constitution to enforce and to carry out any of these guarantees” against the States. 39th Cong. Globe 2765. Howard then stated that “the great object” of §1 was to “restrain the power of the States and compel them at all times to respect these great fundamental guarantees.” Id. , at 2766. Section 1, he indicated, imposed “a general prohibition upon all the States, as such, from abridging the privileges and immunities of the citizens of the United States.” Id. , at 2765. In describing these rights, Howard explained that they included “the privileges and immunities spoken of” in Article IV, §2. Id., at 2765. Although he did not catalogue the precise “nature” or “extent” of those rights, he thought “Corfield v. Coryell” provided a useful description. Howard then submitted that “[t]o these privileges and immunities, whatever they may be— . . . should be added the personal rights guarantied and secured by the first eight amendments of the Constitution ; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, [and] . . . the right to keep and to bear arms .” Ibid. (emphasis added). News of Howard’s speech was carried in major newspapers across the country, including the New York Herald, see N. Y. Herald, May 24, 1866, p. 1, which was the best-selling paper in the Nation at that time, see A. Amar, The Bill of Rights: Creation and Reconstruction 187 (1998) (hereinafter Amar).[ Footnote 13 ] The New York Times carried the speech as well, reprinting a lengthy excerpt of Howard’s remarks, including the statements quoted above. N. Y. Times, May 24, 1866, p. 1. The following day’s Times editorialized on Howard’s speech, predicting that “[t]o this, the first section of the amendment, the Union party throughout the country will yield a ready acquiescence, and the South could offer no justifiable resistance,” suggesting that Bingham’s narrower second draft had not been met with the same objections that Hale had raised against the first. N. Y. Times, May 25, 1866, p. 4. As a whole, these well-circulated speeches indicate that §1 was understood to enforce constitutionally declared rights against the States, and they provide no suggestion that any language in the section other than the Privileges or Immunities Clause would accomplish that task. (2) When read against this backdrop, the civil rights legislation adopted by the 39th Congress in 1866 further supports this view. Between passing the Thirteenth Amendment—which outlawed slavery alone—and the Fourteenth Amendment, Congress passed two significant pieces of legislation. The first was the Civil Rights Act of 1866, which provided that “all persons born in the United States” were “citizens of the United States” and that “such citizens, of every race and color, . . . shall have the same right” to, among other things, “full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.” Ch. 31, §1, 14 Stat. 27. Both proponents and opponents of this Act described it as providing the “privileges” of citizenship to freedmen, and defined those privileges to include constitutional rights, such as the right to keep and bear arms. See 39th Cong. Globe 474 (remarks of Sen. Trumbull) (stating that the “the late slaveholding States” had enacted laws “depriving persons of African descent of privileges which are essential to freemen,” including “prohibit[ing] any negro or mulatto from having fire-arms” and stating that “[t]he purpose of the bill under consideration is to destroy all these discriminations”); id. , at 1266–1267 (remarks of Rep. Raymond) (opposing the Act, but recognizing that to “[m]ake a colored man a citizen of the United States” would guarantee to him, inter alia , “a defined status . . . a right to defend himself and his wife and children; a right to bear arms”). Three months later, Congress passed the Freedmen’s Bureau Act, which also entitled all citizens to the “full and equal benefit of all laws and proceedings concerning personal liberty” and “personal security.” Act of July 16, 1866, ch. 200, §14, 14 Stat. 176. The Act stated expressly that the rights of personal liberty and security protected by the Act “includ[ed] the constitutional right to bear arms.” Ibid. (3) There is much else in the legislative record. Many statements by Members of Congress corroborate the view that the Privileges or Immunities Clause enforced constitutionally enumerated rights against the States. See Curtis 112 (collecting examples). I am not aware of any statement that directly refutes that proposition. That said, the record of the debates—like most legislative history—is less than crystal clear. In particular, much ambiguity derives from the fact that at least several Members described §1 as protecting the privileges and immunities of citizens “in the several States,” harkening back to Article IV, §2. See supra , at 28–29 (describing Sen. Howard’s speech). These statements can be read to support the view that the Privileges or Immunities Clause protects some or all the fundamental rights of “citizens” described in Corfield . They can also be read to support the view that the Privileges or Immunities Clause, like Article IV, §2, prohibits only state discrimination with respect to those rights it covers, but does not deprive States of the power to deny those rights to all citizens equally. I examine the rest of the historical record with this understanding. But for purposes of discerning what the public most likely thought the Privileges or Immunities Clause to mean, it is significant that the most widely publicized statements by the legislators who voted on §1—Bingham, Howard, and even Hale—point unambiguously toward the conclusion that the Privileges or Immunities Clause enforces at least those fundamental rights enumerated in the Constitution against the States, including the Second Amendment right to keep and bear arms. 3 Interpretations of the Fourteenth Amendment in the period immediately following its ratification help to establish the public understanding of the text at the time of its adoption. Some of these interpretations come from Members of Congress. During an 1871 debate on a bill to enforce the Fourteenth Amendment, Representative Henry Dawes listed the Constitution’s first eight Amendments, including “the right to keep and bear arms,” before explaining that after the Civil War, the country “gave the most grand of all these rights, privileges, and immunities, by one single amendment to the Constitution, to four millions of American citizens” who formerly were slaves. Cong. Globe, 42d Cong., 1st Sess., 475–476 (1871). “It is all these,” Dawes explained, “which are comprehended in the words ‘American citizen.’ ” Ibid . ; see also id. , at 334 (remarks of Rep. Hoar) (stating that the Privileges or Immunities Clause referred to those rights “declared to belong to the citizen by the Constitution itself”). Even opponents of Fourteenth Amendment enforcement legislation acknowledged that the Privileges or Immunities Clause protected constitutionally enumerated individual rights. See 2 Cong. Rec. 384–385 (1874) (remarks of Rep. Mills) (opposing enforcement law, but acknowledging, in referring to the Bill of Rights, that “[t]hese first amendments and some provisions of the Constitution of like import embrace the ‘privileges and immunities’ of citizenship as set forth in article 4, section 2 of the Constitution and in the fourteenth amendment ” (emphasis added)); see Curtis 166–170 (collecting examples). Legislation passed in furtherance of the Fourteenth Amendment demonstrates even more clearly this understanding. For example, Congress enacted the Civil Rights Act of 1871, 17 Stat. 13, which was titled in pertinent part “An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States,” and which is codified in the still-existing 42 U. S. C. §1983. That statute prohibits state officials from depriving citizens of “any rights, privileges, or immunities secured by the Constitution .” Rev. Stat. 1979, 42 U. S. C. §1983 (emphasis added). Although the Judiciary ignored this provision for decades after its enactment, this Court has come to interpret the statute, unremarkably in light of its text, as protecting constitutionally enumerated rights. Monroe v. Pape , 365 U. S. 167 , 171 (1961). A Federal Court of Appeals decision written by a future Justice of this Court adopted the same understanding of the Privileges or Immunities Clause. See, e.g. , United States v. Hall , 26 F. Cas. 79, 82 (No. 15,282) (CC SD Ala. 1871) (Woods, J.) (“We think, therefore, that the . . . rights enumerated in the first eight articles of amendment to the constitution of the United States, are the privileges and immunities of citizens of the United States”). In addition, two of the era’s major constitutional treatises reflected the understanding that §1 would protect constitutionally enumerated rights from state abridgment.[ Footnote 14 ] A third such treatise unambiguously indicates that the Privileges or Immunities Clause accomplished this task. G. Paschal, The Constitution of the United States 290 (1868) (explaining that the rights listed in §1 had “already been guarantied” by Article IV and the Bill of Rights, but that “[t]he new feature declared” by §1 was that these rights, “which had been construed to apply only to the national government, are thus imposed upon the States”). Another example of public understanding comes from United States Attorney Daniel Corbin’s statement in an 1871 Ku Klux Klan prosecution. Corbin cited Barron and declared: “[T]he fourteenth amendment changes all that theory, and lays the same restriction upon the States that before lay upon the Congress of the United States—that, as Congress heretofore could not interfere with the right of the citizen to keep and bear arms, now, after the adoption of the fourteenth amendment, the State cannot interfere with the right of the citizen to keep and bear arms. The right to keep and bear arms is included in the fourteenth amendment, under ‘privileges and immunities.’ ” Proceedings in the Ku Klux Trials at Columbia, S. C., in the United States Circuit Court, November Term, 1871, p. 147 (1872). *  *  * This evidence plainly shows that the ratifying public understood the Privileges or Immunities Clause to protect constitutionally enumerated rights, including the right to keep and bear arms. As the Court demonstrates, there can be no doubt that §1 was understood to enforce the Second Amendment against the States. See ante , at 22–33. In my view, this is because the right to keep and bear arms was understood to be a privilege of American citizenship guaranteed by the Privileges or Immunities Clause. C The next question is whether the Privileges or Immunities Clause merely prohibits States from discriminating among citizens if they recognize the Second Amendment’s right to keep and bear arms, or whether the Clause requires States to recognize the right. The municipal respondents, Chicago and Oak Park, argue for the former interpretation. They contend that the Second Amendment, as applied to the States through the Fourteenth, authorizes a State to impose an outright ban on handgun possession such as the ones at issue here so long as a State applies it to all citizens equally.[ Footnote 15 ] The Court explains why this antidiscrimination-only reading of §1 as a whole is “implausible.” Ante , at 31 (citing Brief for Municipal Respondents 64). I agree, but because I think it is the Privileges or Immunities Clause that applies this right to the States, I must explain why this Clause in particular protects against more than just state discrimination, and in fact establishes a minimum baseline of rights for all American citizens. 1 I begin, again, with the text. The Privileges or Immunities Clause opens with the command that “ No State shall ” abridge the privileges or immunities of citizens of the United States. Amdt. 14, §1 (emphasis added). The very same phrase opens Article I, §10 of the Constitution, which prohibits the States from “pass[ing] any Bill of Attainder” or “ex post facto Law,” among other things. Article I, §10 is one of the few constitutional provisions that limits state authority. In Barron , when Chief Justice Marshall interpreted the Bill of Rights as lacking “plain and intelligible language” restricting state power to infringe upon individual liberties, he pointed to Article I, §10 as an example of text that would have accomplished that task. 7 Pet., at 250. Indeed, Chief Justice Marshall would later describe Article I, §10 as “a bill of rights for the people of each state.” Fletcher v. Peck , 6 Cranch 87, 138 (1810). Thus, the fact that the Privileges or Immunities Clause uses the command “[n]o State shall”—which Article IV, §2 does not—strongly suggests that the former imposes a greater restriction on state power than the latter. This interpretation is strengthened when one considers that the Privileges or Immunities Clause uses the verb “abridge,” rather than “discriminate,” to describe the limit it imposes on state authority. The Webster’s dictionary in use at the time of Reconstruction defines the word “abridge” to mean “[t]o deprive; to cut off; . . . as, to abridge one of his rights.” Webster, An American Dictionary of the English Language, at 6. The Clause is thus best understood to impose a limitation on state power to infringe upon pre-existing substantive rights. It raises no indication that the Framers of the Clause used the word “abridge” to prohibit only discrimination. This most natural textual reading is underscored by a well-publicized revision to the Fourteenth Amendment that the Reconstruction Congress rejected. After several Southern States refused to ratify the Amendment, President Johnson met with their Governors to draft a compromise. N. Y. Times, Feb. 5, 1867, p. 5. Their proposal eliminated Congress’ power to enforce the Amendment (granted in §5), and replaced the Privileges or Immunities Clause in §1 with the following: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the States in which they reside, and the Citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States .” Draft reprinted in 1 Documentary History of Reconstruction 240 (W. Fleming ed. 1950) (hereinafter Fleming). Significantly, this proposal removed the “[n]o State shall” directive and the verb “abridge” from §1, and also changed the class of rights to be protected from those belonging to “citizens of the United States” to those of the “citizens in the several States.” This phrasing is materially indistinguishable from Article IV, §2, which generally was understood as an antidiscrimination provision alone. See supra , at 15–18. The proposal thus strongly indicates that at least the President of the United States and several southern Governors thought that the Privileges or Immunities Clause, which they unsuccessfully tried to revise, prohibited more than just state-sponsored discrimination. 2 The argument that the Privileges or Immunities Clause prohibits no more than discrimination often is followed by a claim that public discussion of the Clause, and of §1 generally, was not extensive. Because of this, the argument goes, §1 must not have been understood to accomplish such a significant task as subjecting States to federal enforcement of a minimum baseline of rights. That argument overlooks critical aspects of the Nation’s history that underscored the need for, and wide agreement upon, federal enforcement of constitutionally enumerated rights against the States, including the right to keep and bear arms. a I turn first to public debate at the time of ratification. It is true that the congressional debates over §1 were relatively brief. It is also true that there is little evidence of extensive debate in the States. Many state legislatures did not keep records of their debates, and the few records that do exist reveal only modest discussion. See Curtis 145. These facts are not surprising. First, however consequential we consider the question today, the nationalization of constitutional rights was not the most controversial aspect of the Fourteenth Amendment at the time of its ratification. The Nation had just endured a tumultuous civil war, and §§2, 3, and 4—which reduced the representation of States that denied voting rights to blacks, deprived most former Confederate officers of the power to hold elective office, and required States to disavow Confederate war debts—were far more polarizing and consumed far more political attention. See Wildenthal 1600; Hardy, Original Popular Understanding of the Fourteenth Amendment as Reflected in the Print Media of 1866–1868, 30 Whittier L. Rev. 695, 699 (2009). Second, the congressional debates on the Fourteenth Amendment reveal that many representatives, and probably many citizens, believed that the Thirteenth Amendment, the 1866 Civil Rights legislation, or some combination of the two, had already enforced constitutional rights against the States. Justice Black’s dissent in Adamson chronicles this point in detail. 332 U. S., at 107–108 (Appendix to dissenting opinion). Regardless of whether that understanding was accurate as a matter of constitutional law, it helps to explain why Congressmen had little to say during the debates about §1. See ibid. Third, while Barron made plain that the Bill of Rights was not legally enforceable against the States, see supra , at 2, the significance of that holding should not be overstated. Like the Framers, see supra , at 14–15, many 19th-century Americans understood the Bill of Rights to declare inalienable rights that pre-existed all government. Thus, even though the Bill of Rights technically applied only to the Federal Government, many believed that it declared rights that no legitimate government could abridge. Chief Justice Henry Lumpkin’s decision for the Georgia Supreme Court in Nunn v. State , 1 Ga. 243 (1846), illustrates this view. In assessing state power to regulate firearm possession, Lumpkin wrote that he was “aware that it has been decided, that [the Second Amendment], like other amendments adopted at the same time, is a restriction upon the government of the United States, and does not extend to the individual States.” Id. , at 250. But he still considered the right to keep and bear arms as “an unalienable right, which lies at the bottom of every free government, ” and thus found the States bound to honor it. Ibid . Other state courts adopted similar positions with respect to the right to keep and bear arms and other enumerated rights.[ Footnote 16 ] Some courts even suggested that the protections in the Bill of Rights were legally enforceable against the States, Barron notwithstanding.[ Footnote 17 ] A prominent treatise of the era took the same position. W. Rawle, A View of the Constitution of the United States of America 124–125 (2d ed. 1829) (reprint 2009) (arguing that certain of the first eight Amendments “appl[y] to the state legislatures” because those Amendments “form parts of the declared rights of the people, of which neither the state powers nor those of the Union can ever deprive them”); id. , at 125–126 (describing the Second Amendment “right of the people to keep and bear arms” as “a restraint on both” Congress and the States); see also Heller , 554 U. S., at __ (slip op., at 34) (describing Rawle’s treatise as “influential”). Certain abolitionist leaders adhered to this view as well. Lysander Spooner championed the popular abolitionist argument that slavery was inconsistent with constitutional principles, citing as evidence the fact that it deprived black Americans of the “natural right of all men ‘to keep and bear arms’ for their personal defence,” which he believed the Constitution “prohibit[ed] both Congress and the State governments from infringing.” L. Spooner, The Unconstitutionality of Slavery 98 (1860). In sum, some appear to have believed that the Bill of Rights did apply to the States, even though this Court had squarely rejected that theory. See, e.g. , supra , at 27–28 (recounting Rep. Hale’s argument to this effect). Many others believed that the liberties codified in the Bill of Rights were ones that no State should abridge, even though they understood that the Bill technically did not apply to States. These beliefs, combined with the fact that most state constitutions recognized many, if not all, of the individual rights enumerated in the Bill of Rights, made the need for federal enforcement of constitutional liberties against the States an afterthought. See ante , at 29 (opinion of the Court) (noting that, “[i]n 1868, 22 of the 37 States in the Union had state constitutional provisions explicitly protecting the right to keep and bear arms”). That changed with the national conflict over slavery. b In the contentious years leading up to the Civil War, those who sought to retain the institution of slavery found that to do so, it was necessary to eliminate more and more of the basic liberties of slaves, free blacks, and white abolitionists. Congressman Tobias Plants explained that slaveholders “could not hold [slaves] safely where dissent was permitted,” so they decided that “all dissent must be suppressed by the strong hand of power.” 39th Cong. Globe 1013. The measures they used were ruthless, repressed virtually every right recognized in the Constitution, and demonstrated that preventing only discriminatory state firearms restrictions would have been a hollow assurance for liberty. Public reaction indicates that the American people understood this point. The overarching goal of pro-slavery forces was to repress the spread of abolitionist thought and the concomitant risk of a slave rebellion. Indeed, it is difficult to overstate the extent to which fear of a slave uprising gripped slaveholders and dictated the acts of Southern legislatures. Slaves and free blacks represented a substantial percentage of the population and posed a severe threat to Southern order if they were not kept in their place. According to the 1860 Census, slaves represented one quarter or more of the population in 11 of the 15 slave States, nearly half the population in Alabama, Florida, Georgia, and Louisiana, and more than 50% of the population in Mississippi and South Carolina. Statistics of the United States (Including Mortality, Property, &c.,) in 1860, The Eighth Census 336–350 (1866). The Southern fear of slave rebellion was not unfounded. Although there were others, two particularly notable slave uprisings heavily influenced slaveholders in the South. In 1822, a group of free blacks and slaves led by Denmark Vesey planned a rebellion in which they would slay their masters and flee to Haiti. H. Aptheker, American Negro Slave Revolts 268–270 (1983). The plan was foiled, leading to the swift arrest of 130 blacks, and the execution of 37, including Vesey. Id. , at 271. Still, slaveowners took notice—it was reportedly feared that as many as 6,600 to 9,000 slaves and free blacks were involved in the plot. Id. , at 272. A few years later, the fear of rebellion was realized. An uprising led by Nat Turner took the lives of at least 57 whites before it was suppressed. Id. , at 300–302. The fear generated by these and other rebellions led Southern legislatures to take particularly vicious aim at the rights of free blacks and slaves to speak or to keep and bear arms for their defense. Teaching slaves to read (even the Bible) was a criminal offense punished severely in some States. See K. Stampp, The Peculiar Institution: Slavery in the Ante-bellum South 208, 211 (1956). Virginia made it a crime for a member of an “abolition” society to enter the State and argue “that the owners of slaves have no property in the same, or advocate or advise the abolition of slavery.” 1835–1836 Va. Acts ch. 66, p. 44. Other States prohibited the circulation of literature denying a master’s right to property in his slaves and passed laws requiring postmasters to inspect the mails in search of such material. C. Eaton, The Freedom-of-Thought Struggle in the Old South 118–143, 199–200 (1964). Many legislatures amended their laws prohibiting slaves from carrying firearms[ Footnote 18 ] to apply the prohibition to free blacks as well. See, e.g. , Act of Dec. 23, 1833, §7, 1833 Ga. Acts pp. 226, 228 (declaring that “it shall not be lawful for any free person of colour in this state, to own, use, or carry fire arms of any description whatever”); H. Aptheker, Nat Turner’s Slave Rebellion 74–76, 83–94 (1966) (discussing similar Maryland and Virginia statutes); see also Act of Mar. 15, 1852, ch. 206, 1852 Miss. Laws p. 328 (repealing laws allowing free blacks to obtain firearms licenses); Act of Jan. 31, 1831, 1831 Fla. Acts p. 30 (same). Florida made it the “duty” of white citizen “patrol[s] to search negro houses or other suspected places, for fire arms.” Act of Feb. 17, 1833, ch. 671, 1833 Fla. Acts pp. 26, 30. If they found any firearms, the patrols were to take the offending slave or free black “to the nearest justice of the peace,” whereupon he would be “severely punished” by “whipping on the bare back, not exceeding thirty-nine lashes,” unless he could give a “plain and satisfactory” explanation of how he came to possess the gun. Ibid. Southern blacks were not alone in facing threats to their personal liberty and security during the antebellum era. Mob violence in many Northern cities presented dangers as well. Cottrol & Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L. J. 309, 340 (1991) (hereinafter Cottrol) (recounting a July 1834 mob attack against “churches, homes, and businesses of white abolitionists and blacks” in New York that involved “upwards of twenty thousand people and required the intervention of the militia to suppress”); ibid. (noting an uprising in Boston nine years later in which a confrontation between a group of white sailors and four blacks led “a mob of several hundred whites ” to “attac[k] and severely beat every black they could find”). c After the Civil War, Southern anxiety about an uprising among the newly freed slaves peaked. As Representative Thaddeus Stevens is reported to have said, “[w]hen it was first proposed to free the slaves, and arm the blacks, did not half the nation tremble? The prim conservatives, the snobs, and the male waiting-maids in Congress, were in hysterics.” K. Stampp, The Era of Reconstruction, 1865–1877, p. 104 (1965) (hereinafter Era of Reconstruction). As the Court explains, this fear led to “systematic efforts” in the “old Confederacy” to disarm the more than 180,000 freedmen who had served in the Union Army, as well as other free blacks. See ante , at 23. Some States formally prohibited blacks from possessing firearms. Ante, at 23–24 (quoting 1865 Miss. Laws p. 165, §1, reprinted in 1 Fleming 289). Others enacted legislation prohibiting blacks from carrying firearms without a license, a restriction not imposed on whites. See, e.g. , La. Statute of 1865, reprinted in id., at 280. Additionally, “[t]hroughout the South, armed parties, often consisting of ex-Confederate soldiers serving in the state militias, forcibly took firearms from newly freed slaves.” Ante , at 24. As the Court makes crystal clear, if the Fourteenth Amendment “had outlawed only those laws that discriminate on the basis of race or previous condition of servitude, African-Americans in the South would likely have remained vulnerable to attack by many of their worst abusers: the state militia and state peace officers.” Ante, at 32. In the years following the Civil War, a law banning firearm possession outright “would have been nondiscriminatory only in the formal sense,” for it would have “left firearms in the hands of the militia and local peace officers.” Ibid. Evidence suggests that the public understood this at the time the Fourteenth Amendment was ratified. The publicly circulated Report of the Joint Committee on Reconstruction extensively detailed these abuses, see ante, at 23–24 (collecting examples), and statements by citizens indicate that they looked to the Committee to provide a federal solution to this problem, see, e.g. , 39th Cong. Globe 337 (remarks of Rep. Sumner) (introducing “a memorial from the colored citizens of the State of South Carolina” asking for, inter alia , “constitutional protection in keeping arms, in holding public assemblies, and in complete liberty of speech and of the press”). One way in which the Federal Government responded was to issue military orders countermanding Southern arms legislation. See, e.g. , Jan. 17, 1866, order from Major General D. E. Sickles, reprinted in E. McPherson, The Political History of the United States of America During the Period of Reconstruction 37 (1871) (“The constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed”). The significance of these steps was not lost on those they were designed to protect. After one such order was issued, The Christian Recorder, published by the African Methodist Episcopal Church, published the following editorial: “ ‘We have several times alluded to the fact that the Constitution of the United States, guaranties to every citizen the right to keep and bear arms. . . . All men, without the distinction of color, have the right to keep arms to defend their homes, families, or themselves.’ “We are glad to learn that [the] Commissioner for this State . . . has given freedmen to understand that they have as good a right to keep fire arms as any other citizens. The Constitution of the United States is the supreme law of the land, and we will be governed by that at present.” Right to Bear Arms, Christian Recorder (Phila.), Feb. 24, 1866, pp. 29–30. The same month, The Loyal Georgian carried a letter to the editor asking “Have colored persons a right to own and carry fire arms?—A Colored Citizen.” The editors responded as follows: “Almost every day, we are asked questions similar to the above. We answer certainly you have the same right to own and carry fire arms that other citizens have. You are not only free but citizens of the United States and, as such, entitled to the same privileges granted to other citizens by the Constitution of the United States. .     .     .     .     . “. . . Article II, of the amendments to the Constitution of the United States, gives the people the right to bear arms and states that this right shall not be infringed. . . . All men, without distinction of color, have the right to keep arms to defend their homes, families or themselves.” Letter to the Editor, Loyal Georgian (Augusta), Feb. 3, 1866, p. 3. These statements are consistent with the arguments of abolitionists during the antebellum era that slavery, and the slave States’ efforts to retain it, violated the constitutional rights of individuals—rights the abolitionists described as among the privileges and immunities of citizenship. See, e.g. , J. Tiffany, Treatise on the Unconstitutionality of American Slavery 56 (1849) (reprint 1969) (“pledg[ing] . . . to see that all the rights, privileges, and immunities, granted by the constitution of the United States, are extended to all”); id. , at 99 (describing the “right to keep and bear arms” as one of those rights secured by “the constitution of the United States”). The problem abolitionists sought to remedy was that, under Dred Scott , blacks were not entitled to the privileges and immunities of citizens under the Federal Constitution and that, in many States, whatever inalienable rights state law recognized did not apply to blacks. See, e.g. , Cooper v. Savannah , 4 Ga. 68, 72 (1848) (deciding, just two years after Chief Justice Lumpkin’s opinion in Nunn recognizing the right to keep and bear arms, see supra , at 39, that “[f]ree persons of color have never been recognized here as citizens; they are not entitled to bear arms”). Section 1 guaranteed the rights of citizenship in the United States and in the several States without regard to race. But it was understood that liberty would be assured little protection if §1 left each State to decide which privileges or immunities of United States citizenship it would protect. As Frederick Douglass explained before §1’s adoption, “the Legislatures of the South can take from him the right to keep and bear arms, as they can—they would not allow a negro to walk with a cane where I came from, they would not allow five of them to assemble together.” In What New Skin Will the Old Snake Come Forth? An Address Delivered in New York, New York, May 10, 1865, reprinted in 4 The Frederick Douglass Papers 79, 83–84 (J. Blassingame & J. McKivigan eds., 1991) (footnote omitted). “Notwithstanding the provision in the Constitution of the United States, that the right to keep and bear arms shall not be abridged,” Douglass explained that “the black man has never had the right either to keep or bear arms.” Id ., at 84. Absent a constitutional amendment to enforce that right against the States, he insisted that “the work of the Abolitionists [wa]s not finished.” Ibid. This history confirms what the text of the Privileges or Immunities Clause most naturally suggests: Consistent with its command that “[n]o State shall … abridge” the rights of United States citizens, the Clause establishes a minimum baseline of federal rights, and the constitutional right to keep and bear arms plainly was among them.[ Footnote 19 ] III My conclusion is contrary to this Court’s precedents, which hold that the Second Amendment right to keep and bear arms is not a privilege of United States citizenship. See Cruikshank , 92 U. S., at 548–549, 551–553. I must, therefore, consider whether stare decisis requires retention of those precedents. As mentioned at the outset, my inquiry is limited to the right at issue here. Thus, I do not endeavor to decide in this case whether, or to what extent, the Privileges or Immunities Clause applies any other rights enumerated in the Constitution against the States.[ Footnote 20 ] Nor do I suggest that the stare decisis considerations surrounding the application of the right to keep and bear arms against the States would be the same as those surrounding another right protected by the Privileges or Immunities Clause. I consider stare decisis only as it applies to the question presented here. A This inquiry begins with the Slaughter-House Cases . There, this Court upheld a Louisiana statute granting a monopoly on livestock butchering in and around the city of New Orleans to a newly incorporated company. 16 Wall. 36. Butchers excluded by the monopoly sued, claiming that the statute violated the Privileges or Immunities Clause because it interfered with their right to pursue and “exercise their trade.” Id. , at 60. This Court rejected the butchers’ claim, holding that their asserted right was not a privilege or immunity of American citizenship, but one governed by the States alone. The Court held that the Privileges or Immunities Clause protected only rights of federal citizenship—those “which owe their existence to the Federal government, its National character, its Constitution, or its laws,” id. , at 79—and did not protect any of the rights of state citizenship, id. , at 74. In other words, the Court defined the two sets of rights as mutually exclusive. After separating these two sets of rights, the Court defined the rights of state citizenship as “embrac[ing] nearly every civil right for the establishment and protection of which organized government is instituted”—that is, all those rights listed in Corfield . 16 Wall., at 76 (referring to “those rights” that “Judge Washington” described). That left very few rights of federal citizenship for the Privileges or Immunities Clause to protect. The Court suggested a handful of possibilities, such as the “right of free access to [federal] seaports,” protection of the Federal Government while traveling “on the high seas,” and even two rights listed in the Constitution. Id. , at 79 (noting “[t]he right to peaceably assemble” and “the privilege of the writ of habeas corpus ”); see supra , at 4. But its decision to interpret the rights of state and federal citizenship as mutually exclusive led the Court in future cases to conclude that constitutionally enumerated rights were excluded from the Privileges or Immunities Clause’s scope. See Cruikshank , supra . I reject that understanding. There was no reason to interpret the Privileges or Immunities Clause as putting the Court to the extreme choice of interpreting the “privileges and immunities” of federal citizenship to mean either all those rights listed in Corfield , or almost no rights at all. 16 Wall., at 76. The record is scant that the public understood the Clause to make the Federal Government “a perpetual censor upon all legislation of the States” as the Slaughter-House majority feared. Id. , at 78. For one thing, Corfield listed the “elective franchise” as one of the privileges and immunities of “citizens of the several states,” 6 F. Cas., at 552, yet Congress and the States still found it necessary to adopt the Fifteenth Amendment—which protects “[t]he right of citizens of the United States to vote”—two years after the Fourteenth Amendment’s passage. If the Privileges or Immunities Clause were understood to protect every conceivable civil right from state abridgment, the Fifteenth Amendment would have been redundant. The better view, in light of the States and Federal Government’s shared history of recognizing certain inalienable rights in their citizens, is that the privileges and immunities of state and federal citizenship overlap. This is not to say that the privileges and immunities of state and federal citizenship are the same. At the time of the Fourteenth Amendment’s ratification, States performed many more functions than the Federal Government, and it is unlikely that, simply by referring to “privileges or immunities,” the Framers of §1 meant to transfer every right mentioned in Corfield to congressional oversight. As discussed, “privileges” and “immunities” were understood only as synonyms for “rights.” See supra , at 9–11. It was their attachment to a particular group that gave them content, and the text and history recounted here indicate that the rights of United States citizens were not perfectly identical to the rights of citizens “in the several States.” Justice Swayne, one of the dissenters in Slaughter-House , made the point clear: “The citizen of a State has the same fundamental rights as a citizen of the United States, and also certain others , local in their character, arising from his relation to the State, and in addition, those which belong to the citizen of the United States, he being in that relation also. There may thus be a double citizenship, each having some rights peculiar to itself. It is only over those which belong to the citizen of the United States that the category here in question throws the shield of its protection.” 16 Wall., at 126 (emphasis added). Because the privileges and immunities of American citizenship include rights enumerated in the Constitution, they overlap to at least some extent with the privileges and immunities traditionally recognized in citizens in the several States. A separate question is whether the privileges and immunities of American citizenship include any rights besides those enumerated in the Constitution. The four dissenting Justices in Slaughter-House would have held that the Privileges or Immunities Clause protected the unenumerated right that the butchers in that case asserted. See id. , at 83 (Field, J., dissenting); id. , at 111 (Bradley, J., dissenting); id. , at 124 (Swayne, J., dissenting). Because this case does not involve an unenumerated right, it is not necessary to resolve the question whether the Clause protects such rights, or whether the Court’s judgment in Slaughter-House was correct. Still, it is argued that the mere possibility that the Privileges or Immunities Clause may enforce unenumerated rights against the States creates “ ‘special hazards’ ” that should prevent this Court from returning to the original meaning of the Clause.[ Footnote 21 ] Post , at 3 (Stevens, J., dissenting). Ironically, the same objection applies to the Court’s substantive due process jurisprudence, which illustrates the risks of granting judges broad discretion to recognize individual constitutional rights in the absence of textual or historical guideposts. But I see no reason to assume that such hazards apply to the Privileges or Immunities Clause. The mere fact that the Clause does not expressly list the rights it protects does not render it incapable of principled judicial application. The Constitution contains many provisions that require an examination of more than just constitutional text to determine whether a particular act is within Congress’ power or is otherwise prohibited. See, e.g. , Art. I, §8, cl. 18 (Necessary and Proper Clause); Amdt. 8 (Cruel and Unusual Punishments Clause). When the inquiry focuses on what the ratifying era understood the Privileges or Immunities Clause to mean, interpreting it should be no more “hazardous” than interpreting these other constitutional provisions by using the same approach. To be sure, interpreting the Privileges or Immunities Clause may produce hard questions. But they will have the advantage of being questions the Constitution asks us to answer. I believe those questions are more worthy of this Court’s attention—and far more likely to yield discernable answers—than the substantive due process questions the Court has for years created on its own, with neither textual nor historical support. Finding these impediments to returning to the original meaning overstated, I reject Slaughter-House insofar as it precludes any overlap between the privileges and immunities of state and federal citizenship. I next proceed to the stare decisis considerations surrounding the precedent that expressly controls the question presented here. B Three years after Slaughter-House , the Court in Cruikshank squarely held that the right to keep and bear arms was not a privilege of American citizenship, thereby overturning the convictions of militia members responsible for the brutal Colfax Massacre. See supra , at 4–5. Cruikshank is not a precedent entitled to any respect. The flaws in its interpretation of the Privileges or Immunities Clause are made evident by the preceding evidence of its original meaning, and I would reject the holding on that basis alone. But, the consequences of Cruikshank warrant mention as well. Cruikshank ’s holding that blacks could look only to state governments for protection of their right to keep and bear arms enabled private forces, often with the assistance of local governments, to subjugate the newly freed slaves and their descendants through a wave of private violence designed to drive blacks from the voting booth and force them into peonage, an effective return to slavery. Without federal enforcement of the inalienable right to keep and bear arms, these militias and mobs were tragically successful in waging a campaign of terror against the very people the Fourteenth Amendment had just made citizens. Take, for example, the Hamburg Massacre of 1876. There, a white citizen militia sought out and murdered a troop of black militiamen for no other reason than that they had dared to conduct a celebratory Fourth of July parade through their mostly black town. The white militia commander, “Pitchfork” Ben Tillman, later described this massacre with pride: “[T]he leading white men of Edgefield” had decided “to seize the first opportunity that the negroes might offer them to provoke a riot and teach the negroes a lesson by having the whites demonstrate their superiority by killing as many of them as was justifiable.” S. Kantrowitz, Ben Tillman & the Reconstruction of White Supremacy 67 (2000) (ellipsis, brackets, and internal quotation marks omitted). None of the perpetrators of the Hamburg murders was ever brought to justice.[ Footnote 22 ] Organized terrorism like that perpetuated by Tillman and his cohorts proliferated in the absence of federal enforcement of constitutional rights. Militias such as the Ku Klux Klan, the Knights of the White Camellia, the White Brotherhood, the Pale Faces, and the ’76 Association spread terror among blacks and white Republicans by breaking up Republican meetings, threatening political leaders, and whipping black militiamen. Era of Reconstruction, 199–200; Curtis 156. These groups raped, murdered, lynched, and robbed as a means of intimidating, and instilling pervasive fear in, those whom they despised. A. Trelease, White Terror: The Ku Klux Klan Conspiracy and Southern Reconstruction 28–46 (1995). Although Congress enacted legislation to suppress these activities,[ Footnote 23 ] Klan tactics remained a constant presence in the lives of Southern blacks for decades. Between 1882 and 1968, there were at least 3,446 reported lynchings of blacks in the South. Cottrol 351–352. They were tortured and killed for a wide array of alleged crimes, without even the slightest hint of due process. Emmit Till, for example, was killed in 1955 for allegedly whistling at a white woman. S. Whitfield, A Death in the Delta: The Story of Emmett Till 15–31 (1988). The fates of other targets of mob violence were equally depraved. See, e.g. , Lynched Negro and Wife Were First Mutilated, Vicksburg (Miss.) Evening Post, Feb. 8, 1904, reprinted in R. Ginzburg, 100 Years of Lynchings 63 (1988); Negro Shot Dead for Kissing His White Girlfriend, Chi. Defender, Feb. 31, 1915, in id. , at 95 (reporting incident in Florida); La. Negro Is Burned Alive Screaming “I Didn’t Do It,” Cleveland Gazette, Dec. 13, 1914, in id. , at 93 (reporting incident in Louisiana). The use of firearms for self-defense was often the only way black citizens could protect themselves from mob violence. As Eli Cooper, one target of such violence, is said to have explained, “ ‘[t]he Negro has been run over for fifty years, but it must stop now, and pistols and shotguns are the only weapons to stop a mob.’ ” Church Burnings Follow Negro Agitator’s Lynching, Chicago Defender, Sept. 6, 1919, in id. , at 124. Sometimes, as in Cooper’s case, self-defense did not succeed. He was dragged from his home by a mob and killed as his wife looked on. Ibid. But at other times, the use of firearms allowed targets of mob violence to survive. One man recalled the night during his childhood when his father stood armed at a jail until morning to ward off lynchers. See Cottrol, 354. The experience left him with a sense, “not ‘of powerlessness, but of the “possibilities of salvation” ’ ” that came from standing up to intimidation. Ibid. In my view, the record makes plain that the Framers of the Privileges or Immunities Clause and the ratifying-era public understood—just as the Framers of the Second Amendment did—that the right to keep and bear arms was essential to the preservation of liberty. The record makes equally plain that they deemed this right necessary to include in the minimum baseline of federal rights that the Privileges or Immunities Clause established in the wake of the War over slavery. There is nothing about Cruikshank ’s contrary holding that warrants its retention. *  *  * I agree with the Court that the Second Amendment is fully applicable to the States. I do so because the right to keep and bear arms is guaranteed by the Fourteenth Amendment as a privilege of American citizenship. Footnote 1 In the two decades after United States v. Cruikshank , 92 U. S. 542 (1876), was decided, this Court twice reaffirmed its holding that the Privileges or Immunities Clause does not apply the Second Amendment to the States. Presser v. Illinois , 116 U. S. 252 , 266–267 (1886); Miller v. Texas , 153 U. S. 535 (1894). Footnote 2 See also 2 C. Richardson, A New Dictionary of the English Language 1512 (1839) (defining “privilege” as “an appropriate or peculiar law or rule or right; a peculiar immunity, liberty, or franchise”); 1 id. , at 1056 (defining “immunity” as “[f]reedom or exemption, (from duties,) liberty, privilege”); The Philadelphia School Dictionary; or Expositor of the English Language 152 (3d ed. 1812) (defining “privilege” as a “peculiar advantage”); id. , at 105 (defining “immunity” as “privilege, exemption”); Royal Standard English Dictionary 411 (1788) (defining “privilege” as “public right; peculiar advantage”). Footnote 3 See also, e.g. , Charter of Va. (1606), reprinted in 7 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws 3783, 3788 (F. Thorpe ed. 1909) (hereinafter Thorpe) (“Declar[ing]” that “all and every the Persons being our Subjects, . . . shall Have and enjoy all Liberties, Franchises, and Immunities . . . as if they had been abiding and born, within this our Realm of England ” (emphasis in original)); Charter of New England (1620), in 3 id., at 1827, 1839 (“[A]ll and every the Persons, beinge our Subjects, . . . shall have and enjoy all Liberties, and ffranchizes, and Immunities of free Denizens and naturall subjects … as if they had been abidinge and born within this our Kingdome of England”); Charter of Mass. Bay (1629), in id. at 1846, 1856–1857 (guaranteeing that “all and every the Subjects of Us, … shall have and enjoy all liberties and Immunities of free and naturall Subjects … as yf they and everie of them were borne within the Realme of England”); Grant of the Province of Me. (1639), in id., at 1625, 1635 (guaranteeing “Liberties Francheses and Immunityes of or belonging to any the naturall borne subjects of this our Kingdome of England”); Charter of Carolina (1663), in 5 id., at 2743, 2747 (guaranteeing to all subjects “all liberties franchises and priviledges of this our kingdom of England”); Charter of R. I. and Providence Plantations (1663), in 6 id., at 3211, 3220 (“[A]ll and every the subjects of us . . . shall have and enjoye all libertyes and immunityes of ffree and naturall subjects within any the dominions of us, our heires, or successours, . . . as if they, and every of them, were borne within the realme of England”); Charter of Ga. (1732), in 2 id., at 765, 773 (“[A]ll and every the persons which shall happen to be born within the said province … shall have and enjoy all liberties, franchises and immunities of free denizens and natural born subjects, within any of our dominions, to all intents and purposes, as if abiding and born within this our kingdom of Great-Britain”). Footnote 4 See also, e.g., A. Howard, The Road from Runnymede: Magna Carta and Constitutionalism in America 174 (1968) (quoting 1774 Georgia resolution declaring that the colony’s inhabitants were entitled to “ ‘the same rights, privileges, and immunities with their fellow-subjects in Great Britain ’ ” (emphasis in original)); The Virginia Resolves, The Resolutions as Printed in the Journal of the House of Burgesses, reprinted in Prologue to Revolution: Sources and Documents on the Stamp Act Crisis, 1764–1766, at 46, 48 (“[T]he Colonists aforesaid are declared entitled to all Liberties, Privileges, and Immunities of Denizens and natural Subjects, to all Intents and Purposes, as if they had been abiding and born within the Realm of England ” (emphasis in original)). Footnote 5 See also Va. Declaration of Rights (1776), reprinted in 1 Schwartz 234–236; Pa. Declaration of Rights (1776), in id ., at 263–275; Del. Declaration of Rights (1776), in id ., at 276–278; Md. Declaration of Rights (1776), in id ., at 280–285; N. C. Declaration of Rights (1776), in id ., 286–288. Footnote 6 Justice Washington’s complete list was as follows: “Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised.” 6 Fed. Cas., at 551–552. Footnote 7 See also Treaty Between the United States of America and the Ottawa Indians of Blanchard’s Fork and Roche De Boeuf, June 24, 1862, 12 Stat. 1237 (“The Ottawa Indians of the United Bands of Blanchard’s Fork and of Roche de Boeuf, having become sufficiently advanced in civilization, and being desirous of becoming citizens of the United States . . . [after five years from the ratification of this treaty] shall be deemed and declared to be citizens of the United States, to all intents and purposes, and shall be entitled to all the rights, privileges, and immunities of such citizens ” (emphasis added)); Treaty Between the United States of America and Different Tribes of Sioux Indians, Art. VI, April 29, 1868, 15 Stat. 637 (“[A]ny Indian or Indians receiving a patent for land under the foregoing provisions, shall thereby and from thenceforth become and be a citizen of the United States, and be entitled to all the privileges and immunities of such citizens ” (emphasis added)). Footnote 8 Subsequent treaties contained similar guarantees that the inhabitants of the newly acquired territories would enjoy the freedom to exercise certain constitutional rights. See Treaty of Peace, Friendship, Limits, and Settlement with the Republic of Mexico, Art. IX, Feb. 2, 1848, 9 Stat. 930, T. S. No. 207 (cession of Texas) (declaring that inhabitants of the Territory were entitled “to the enjoyment of all the rights of citizens of the United States, according to the principles of the constitution; and in the mean time shall be maintained and protected in the free enjoyment of their liberty and property, and secured in the free exercise of their religion without restriction”); Treaty concerning the Cession of the Russian Possessions in North America by his Majesty the Emperor of all the Russians to the United States of America, Art. III, Mar. 30, 1867, 15 Stat. 542, T. S. No. 301 (June 20, 1867) (cession of Alaska) (“The inhabitants of the ceded territory, … if they should prefer to remain in the ceded territory, they, with the exception of uncivilized native tribes, shall be admitted to the enjoyment of all the rights, advantages, and immunities of citizens of the United States, and shall be maintained and protected in the free enjoyment of their liberty, property, and religion”). Footnote 9 See, e.g. , Speech of Mr. Joseph Hemphill (Pa.) on the Missouri Question in the House of the Representatives 16 (1820), as published in pamphlet form and reprinted in 22 Moore Pamphlets, p. 16 (“If the right to hold slaves is a federal right and attached merely to citizenship of the United States, [then slavery] could maintain itself against state authority, and on this principle the owner might take his slaves into any state he pleased, in defiance of the state laws, but this would be contrary to the constitution”); see also Lash, The Origins of the Privileges or Immunities Clause, Part I: “Privileges and Immunities” as an Antebellum Term of Art, 98 Geo. L. J. 1241, 1288–1290 (2010) (collecting other examples). Footnote 10 One Country, One Constitution, and One People: Speech of Hon. John A. Bingham, of Ohio, In the House of Representatives, February 28, 1866, In Support of the Proposed Amendment to Enforce the Bill of Rights (Cong. Globe). The pamphlet was published by the official reporter of congressional debates, and was distributed presumably pursuant to the congressional franking privilege. See B. Wildenthal, Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866–67, 68 Ohio St. L. J. 1509, 1558, n. 167 (2007) (hereinafter Wildenthal). Footnote 11 The full text of Bingham’s first draft of §1 provided as follows: “The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.” 39th Cong. Globe 1088. Footnote 12 In a separate front-page article on the same day, the paper expounded upon Hale’s arguments in even further detail, while omitting Bingham’s chief rebuttals. N. Y. Times, Feb. 28, 1866, p. 1. The unbalanced nature of The New York Times’ coverage is unsurprising. As scholars have noted, “[m]ost papers” during the time of Reconstruction “had a frank partisan slant . . . and the Times was no exception.” Wildenthal 1559. In 1866, the paper “was still defending” President Johnson’s resistance to Republican reform measures, as exemplified by the fact that it “supported Johnson’s veto of the Civil Rights Act of 1866.” Ibid. Footnote 13 Other papers that covered Howard’s speech include the following: Baltimore Gazette, May 24, 1866, p. 4; Boston Daily Journal, May 24, 1866, p. 4; Boston Daily Advertiser, May 24, 1866, p. 1; Daily National Intelligencer, May 24, 1866, p. 3. Springfield Daily Republican, May 24, 1866, p. 3; Charleston Daily Courier, May 28, 1866, p. 4; Charleston Daily Courier, May 29, 1866, p. 1; Chicago Tribune, May 29, 1866, p. 2; Philadelphia Inquirer, May 24, 1866, p. 8. Footnote 14 See J. Pomeroy, An Introduction to the Constitutional Law of the United States 155–156 (E. Bennett ed. 1886) (describing §1, which the country was then still considering, as a “needed” “remedy” for Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833), which held that the Bill of Rights was not enforceable against the States); T. Farrar, Manual of the Constitution of the United States of America 58–59, 145–146, 395–397 (1867) (reprint 1993); id. , at 546 (3d ed. 1872) (describing the Fourteenth Amendment as having “swept away” the “decisions of many courts” that “the popular rights guaranteed by the Constitution are secured only against [the federal] government”). Footnote 15 The municipal respondents and Justice Breyer’s dissent raise a most unusual argument that §1 prohibits discriminatory laws affecting only the right to keep and bear arms, but offers substantive protection to other rights enumerated in the Constitution, such as the freedom of speech. See post , at 24. Others, however, have made the more comprehensive—and internally consistent—argument that §1 bars discrimination alone and does not afford protection to any substantive rights. See, e.g. , R. Berger, Government By Judiciary: The Transformation of the Fourteenth Amendment (1997). I address the coverage of the Privileges or Immunities Clause only as it applies to the Second Amendment right presented here, but I do so with the understanding that my conclusion may have implications for the broader argument. Footnote 16 See, e.g. , Raleigh & Gaston R. Co. v. Davis , 19 N. C. 451, 458–462 (1837) (right to just compensation for government taking of property); Rohan v. Swain , 59 Mass. 281, 285 (1850) (right to be secure from unreasonable government searches and seizures); State v. Buzzard , 4 Ark. 18, 28 (1842) (right to keep and bear arms); State v. Jumel , 13 La. Ann. 399, 400 (1858) (same); Cockrum v. State , 24 Tex. 394, 401–404 (1859) (same). Footnote 17 See, e.g. , People v. Goodwin , 18 Johns. Cas. 187, 201 (N. Y. Sup. Ct. 1820); Rhinehart v. Schulyer , 7 Ill. 473, 522 (1845). Footnote 18 See, e.g. , Black Code, ch. 33, §19, 1806 La. Acts pp. 160, 162 (prohibiting slaves from using firearms unless they were authorized by their master to hunt within the boundaries of his plantation); Act of Dec. 18, 1819, 1819 S. C. Acts pp. 29, 31 (same); An Act Concerning Slaves, §6, 1840 Tex. Laws pp. 42–43 (making it unlawful for “any slave to own firearms of any description”). Footnote 19 I conclude that the right to keep and bear arms applies to the States through the Privileges or Immunities Clause, which recognizes the rights of United States “citizens.” The plurality concludes that the right applies to the States through the Due Process Clause, which covers all “person[s].” Because this case does not involve a claim brought by a noncitizen, I express no view on the difference, if any, between my conclusion and the plurality’s with respect to the extent to which the States may regulate firearm possession by noncitizens. Footnote 20 I note, however, that I see no reason to assume that the constitutionally enumerated rights protected by the Privileges or Immunities Clause should consist of all the rights recognized in the Bill of Rights and no others. Constitutional provisions outside the Bill of Rights protect individual rights, see, e.g., Art. I, §9, cl. 2 (granting the “Privilege of the Writ of Habeas Corpus”), and there is no obvious evidence that the Framers of the Privileges or Immunities Clause meant to exclude them. In addition, certain Bill of Rights provisions prevent federal interference in state affairs and are not readily construed as protecting rights that belong to individuals. The Ninth and Tenth Amendments are obvious examples, as is the First Amendment’s Establishment Clause, which “does not purport to protect individual rights.” Elk Grove Unified School Dist. v. Newdow , 542 U. S. 1 , 50 (2004) (Thomas, J., concurring in judgment); see Amar 179–180. Footnote 21 To the extent Justice Stevens is concerned that reliance on the Privileges or Immunities Clause may invite judges to “write their personal views of appropriate public policy into the Constitution,” post , at 3 (internal quotation marks omitted), his celebration of the alternative—the “flexibility,” “transcend[ence],” and “dynamism” of substantive due process—speaks for itself, post , at 14–15, 20. Footnote 22 Tillman went on to a long career as South Carolina’s Governor and, later, United States Senator. Tillman’s contributions to campaign finance law have been discussed in our recent cases on that subject. See Citizens United v. Federal Election Comm’n , 558 U. S. ___, ___ (2010) (Stevens, J., dissenting) (slip. op., at 2, 42, 56, 87) (discussing at length the Tillman Act of 1907, 34 Stat. 864). His contributions to the culture of terrorism that grew in the wake of Cruikshank had an even more dramatic and tragic effect. Footnote 23 In an effort to enforce the Fourteenth Amendment and halt this violence, Congress enacted a series of civil rights statutes, including the Force Acts, see Act of May 31, 1870, 16 Stat. 140; Act of Feb. 28, 1871, 16 Stat. 433, and the Ku Klux Klan Act, see Act of Apr. 20, 1871, 17 Stat. 13. SCALIA, J., CONCURRING MCDONALD V. CHICAGO 561 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1521 OTIS McDONALD, et al., PETITIONERS v. CITY OF CHICAGO, ILLINOIS, et al. on writ of certiorari to the united states court of appeals for the seventh circuit [June 28, 2010]    Justice Scalia, concurring.    I join the Court’s opinion. Despite my misgivings about Substantive Due Process as an original matter, I have acquiesced in the Court’s incorporation of certain guarantees in the Bill of Rights “because it is both long established and narrowly limited.” Albright v. Oliver , 510 U. S. 266 , 275 (1994) (Scalia, J., concurring). This case does not require me to reconsider that view, since straightforward application of settled doctrine suffices to decide it.    I write separately only to respond to some aspects of Justice Stevens’ dissent. Not that aspect which disagrees with the majority’s application of our precedents to this case, which is fully covered by the Court’s opinion. But much of what Justice Stevens writes is a broad condemnation of the theory of interpretation which underlies the Court’s opinion, a theory that makes the traditions of our people paramount. He proposes a different theory, which he claims is more “cautiou[s]” and respectful of proper limits on the judicial role. Post , at 57. It is that claim I wish to address. I A    After stressing the substantive dimension of what he has renamed the “liberty clause,” post , at 4–7,[ Footnote 1 ] Justice Stevens proceeds to urge readoption of the theory of incorporation articulated in Palko v. Connecticut , 302 U. S. 319 , 325 (1937), see post , at 14–20. But in fact he does not favor application of that theory at all. For whether Palko requires only that “a fair and enlightened system of justice would be impossible without” the right sought to be incorporated, 302 U. S., at 325, or requires in addition that the right be rooted in the “traditions and conscience of our people,” ibid. (internal quotation marks omitted), many of the rights Justice Stevens thinks are incorporated could not pass muster under either test: abortion, post , at 7 (citing Planned Parenthood of Southeastern Pa. v. Casey , 505 U. S. 833 , 847 (1992)); homosexual sodomy, post , at 16 (citing Lawrence v. Texas , 539 U. S. 558 , 572 (2003)); the right to have excluded from criminal trials evidence obtained in violation of the Fourth Amendment, post , at 18 (citing Mapp v. Ohio , 367 U. S. 643 , 650, 655–657 (1961)); and the right to teach one’s children foreign languages, post , at 7 (citing Meyer v. Nebraska , 262 U. S. 390 , 399–403 (1923)), among others.    That Justice Stevens is not applying any version of Palko is clear from comparing, on the one hand, the rights he believes are covered, with, on the other hand, his conclusion that the right to keep and bear arms is not covered. Rights that pass his test include not just those “relating to marriage, procreation, contraception, family relationships, and child rearing and education,” but also rights against “[g]overnment action that shocks the conscience, pointlessly infringes settled expectations, trespasses into sensitive private realms or life choices without adequate justification, [or] perpetrates gross injustice.” Post , at 23 (internal quotation marks omitted). Not all such rights are in, however, since only “ some fundamental aspects of personhood, dignity, and the like” are protected, post , at 24 (emphasis added). Exactly what is covered is not clear. But whatever else is in, he knows that the right to keep and bear arms is out, despite its being as “deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg , 521 U. S. 702 , 721 (1997) (internal quotation marks omitted), as a right can be, see District of Columbia v. Heller , 554 U. S. ___, ___–___, ___–___, ___–___ (2008) (slip op., at 20–21, 26–30, 41–44). I can find no other explanation for such certitude except that Justice Stevens, despite his forswearing of “personal and private notions,” post , at 21 (internal quotation marks omitted), deeply believes it should be out.    The subjective nature of Justice Stevens’ standard is also apparent from his claim that it is the courts’ prerogative—indeed their duty —to update the Due Process Clause so that it encompasses new freedoms the Framers were too narrow-minded to imagine, post , at 19–20, and n. 21. Courts, he proclaims, must “do justice to [the Clause’s] urgent call and its open texture” by exercising the “interpretive discretion the latter embodies.” Post , at 21. (Why the people are not up to the task of deciding what new rights to protect, even though it is they who are authorized to make changes, see U. S. Const., Art. V, is never explained.[ Footnote 2 ]) And it would be “judicial abdication” for a judge to “tur[n] his back” on his task of determining what the Fourteenth Amendment covers by “outsourc[ing]” the job to “historical sentiment,” post , at 20—that is, by being guided by what the American people throughout our history have thought. It is only we judges, exercising our “own reasoned judgment,” post , at 15, who can be entrusted with deciding the Due Process Clause’s scope—which rights serve the Amendment’s “central values,” post , at 23—which basically means picking the rights we want to protect and discarding those we do not. B    Justice Stevens resists this description, insisting that his approach provides plenty of “guideposts” and “constraints” to keep courts from “injecting excessive subjectivity” into the process.[ Footnote 3 ] Post , at 21. Plenty indeed—and that alone is a problem. The ability of omnidirectional guideposts to constrain is inversely proportional to their number. But even individually, each lodestar or limitation he lists either is incapable of restraining judicial whimsy or cannot be squared with the precedents he seeks to preserve.    He begins with a brief nod to history, post , at 21, but as he has just made clear, he thinks historical inquiry unavailing, post , at 19–20. Moreover, trusting the meaning of the Due Process Clause to what has historically been protected is circular, see post , at 19, since that would mean no new rights could get in.    Justice Stevens moves on to the “most basic” constraint on subjectivity his theory offers: that he would “esche[w] attempts to provide any all-purpose, top-down, totalizing theory of ‘liberty.’ ” Post , at 22. The notion that the absence of a coherent theory of the Due Process Clause will somehow curtail judicial caprice is at war with reason. Indeterminacy means opportunity for courts to impose whatever rule they like; it is the problem, not the solution. The idea that interpretive pluralism would reduce courts’ ability to impose their will on the ignorant masses is not merely naïve, but absurd. If there are no right answers, there are no wrong answers either.    Justice Stevens also argues that requiring courts to show “respect for the democratic process” should serve as a constraint. Post , at 23. That is true, but Justice Stevens would have them show respect in an extraordinary manner. In his view, if a right “is already being given careful consideration in, and subjected to ongoing calibration by, the States, judicial enforcement may not be appropriate.” Ibid. In other words, a right, such as the right to keep and bear arms, that has long been recognized but on which the States are considering restrictions, apparently deserves less protection, while a privilege the political branches (instruments of the democratic process) have withheld entirely and continue to withhold, deserves more . That topsy-turvy approach conveniently accomplishes the objective of ensuring that the rights this Court held protected in Casey , Lawrence , and other such cases fit the theory—but at the cost of insulting rather than respecting the democratic process.    The next constraint Justice Stevens suggests is harder to evaluate. He describes as “an important tool for guiding judicial discretion” “sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society.” Post , at 24. I cannot say whether that sensitivity will really guide judges because I have no idea what it is. Is it some sixth sense instilled in judges when they ascend to the bench? Or does it mean judges are more constrained when they agonize about the cosmic conflict between liberty and its potentially harmful consequences? Attempting to give the concept more precision, Justice Stevens explains that “sensitivity is an aspect of a deeper principle: the need to approach our work with humility and caution.” Ibid. Both traits are undeniably admirable, though what relation they bear to sensitivity is a mystery. But it makes no difference, for the first case Justice Stevens cites in support, see ibid. , Casey , 505 U. S., at 849, dispels any illusion that he has a meaningful form of judicial modesty in mind.    Justice Stevens offers no examples to illustrate the next constraint: stare decisis , post , at 25. But his view of it is surely not very confining, since he holds out as a “canonical” exemplar of the proper approach, see post , at 16, 54, Lawrence , which overruled a case decided a mere 17 years earlier, Bowers v. Hardwick , 478 U. S. 186 (1986), see 539 U. S., at 578 (it “was not correct when it was decided, and it is not correct today”). Moreover, Justice Stevens would apply that constraint unevenly: He apparently approves those Warren Court cases that adopted jot-for-jot incorporation of procedural protections for criminal defendants, post , at 11, but would abandon those Warren Court rulings that undercut his approach to substantive rights, on the basis that we have “cut back” on cases from that era before, post , at 12.    Justice Stevens also relies on the requirement of a “careful description of the asserted fundamental liberty interest” to limit judicial discretion. Post , at 25 (internal quotation marks omitted). I certainly agree with that requirement, see Reno v. Flores , 507 U. S. 292 , 302 (1993), though some cases Justice Stevens approves have not applied it seriously, see, e.g. , Lawrence , supra , at 562 (“The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions”). But if the “careful description” requirement is used in the manner we have hitherto employed, then the enterprise of determining the Due Process Clause’s “conceptual core,” post , at 23, is a waste of time. In the cases he cites we sought a careful, specific description of the right at issue in order to determine whether that right, thus narrowly defined, was fundamental . See, e.g. , Glucksberg , 521 U. S., at 722–728; Reno , supra , at 302–306; Collins v. Harker Heights , 503 U. S. 115 , 125–129 (1992); Cruzan v. Director, Mo. Dept. of Health , 497 U. S. 261 , 269–279 (1990); see also Vacco v. Quill , 521 U. S. 793 , 801–808 (1997). The threshold step of defining the asserted right with precision is entirely unnecessary, however, if (as Justice Stevens maintains) the “conceptual core” of the “liberty clause,” post , at 23, includes a number of capacious, hazily defined categories. There is no need to define the right with much precision in order to conclude that it pertains to the plaintiff’s “ability independently to define [his] identity,” his “right to make certain unusually important decisions that will affect his own, or his family’s, destiny,” or some aspect of his “[s]elf-determination, bodily integrity, freedom of conscience, intimate relationships, political equality, dignity [or] respect.” Ibid. (internal quotation marks omitted). Justice Stevens must therefore have in mind some other use for the careful-description requirement—perhaps just as a means of ensuring that courts “procee[d] slowly and incrementally,” post , at 25. But that could be achieved just as well by having them draft their opinions in longhand.[ Footnote 4 ] II    If Justice Stevens’ account of the constraints of his approach did not demonstrate that they do not exist, his application of that approach to the case before us leaves no doubt. He offers several reasons for concluding that the Second Amendment right to keep and bear arms is not fundamental enough to be applied against the States.[ Footnote 5 ] None is persuasive, but more pertinent to my purpose, each is either intrinsically indeterminate, would preclude incorporation of rights we have already held incorporated, or both. His approach therefore does nothing to stop a judge from arriving at any conclusion he sets out to reach.    Justice Stevens begins with the odd assertion that “firearms have a fundamentally ambivalent relationship to liberty,” since sometimes they are used to cause (or sometimes accidentally produce) injury to others. Post , at 35. The source of the rule that only nonambivalent liberties deserve Due Process protection is never explained—proof that judges applying Justice Stevens’ approach can add new elements to the test as they see fit. The criterion, moreover, is inherently manipulable. Surely Justice Stevens does not mean that the Clause covers only rights that have zero harmful effect on anyone . Otherwise even the First Amendment is out. Maybe what he means is that the right to keep and bear arms imposes too great a risk to others’ physical well-being. But as the plurality explains, ante , at 35–36, other rights we have already held incorporated pose similarly substantial risks to public safety. In all events, Justice Stevens supplies neither a standard for how severe the impairment on others’ liberty must be for a right to be disqualified, nor (of course) any method of measuring the severity.    Justice Stevens next suggests that the Second Amendment right is not fundamental because it is “different in kind” from other rights we have recognized. Post , at 37. In one respect, of course, the right to keep and bear arms is different from some other rights we have held the Clause protects and he would recognize: It is deeply grounded in our nation’s history and tradition. But Justice Stevens has a different distinction in mind: Even though he does “not doubt for a moment that many Americans . . . see [firearms] as critical to their way of life as well as to their security,” he pronounces that owning a handgun is not “critical to leading a life of autonomy, dignity, or political equality.”[ Footnote 6 ] Post , at 37–38. Who says? Deciding what is essential to an enlightened, liberty-filled life is an inherently political, moral judgment—the antithesis of an objective approach that reaches conclusions by applying neutral rules to verifiable evidence.[ Footnote 7 ]    No determination of what rights the Constitution of the United States covers would be complete, of course, without a survey of what other countries do. Post , at 40–41. When it comes to guns, Justice Stevens explains, our Nation is already an outlier among “advanced democracies”; not even our “oldest allies” protect as robust a right as we do, and we should not widen the gap. Ibid. Never mind that he explains neither which countries qualify as “advanced democracies” nor why others are irrelevant. For there is an even clearer indication that this criterion lets judges pick which rights States must respect and those they can ignore: As the plurality shows, ante , at 34–35, and nn. 28–29, this follow-the-foreign-crowd requirement would foreclose rights that we have held (and Justice Stevens accepts) are incorporated, but that other “advanced” nations do not recognize—from the exclusionary rule to the Establishment Clause. A judge applying Justice Stevens’ approach must either throw all of those rights overboard or, as cases Justice Stevens approves have done in considering unenumerated rights, simply ignore foreign law when it undermines the desired conclusion, see, e.g. , Casey, 505 U. S. 833 (making no mention of foreign law).    Justice Stevens also argues that since the right to keep and bear arms was codified for the purpose of “prevent[ing] elimination of the militia,” it should be viewed as “ ‘a federalism provision’ ” logically incapable of incorporation. Post , at 41–42 (quoting Elk Grove Unified School Dist. v. Newdow , 542 U. S. 1 , 45 (2004) (Thomas, J., concurring in judgment); some internal quotation marks omitted). This criterion, too, evidently applies only when judges want it to. The opinion Justice Stevens quotes for the “federalism provision” principle, Justice Thomas’s concurrence in Newdow , argued that incorporation of the Establishment Clause “makes little sense” because that Clause was originally understood as a limit on congressional interference with state establishments of religion. Id. , at 49–51. Justice Stevens, of course, has no problem with applying the Establishment Clause to the States. See, e.g. , id. , at 8, n. 4 (opinion for the Court by Stevens, J.) (acknowledging that the Establishment Clause “appl[ies] to the States by incorporation into the Fourteenth Amendment”). While he insists that Clause is not a “federalism provision,” post , at 42, n. 40, he does not explain why it is not, but the right to keep and bear arms is (even though only the latter refers to a “right of the people”). The “federalism” argument prevents the incorporation of only certain rights.    Justice Stevens next argues that even if the right to keep and bear arms is “deeply rooted in some important senses,” the roots of States’ efforts to regulate guns run just as deep. Post , at 44 (internal quotation marks omitted). But this too is true of other rights we have held incorporated. No fundamental right—not even the First Amendment—is absolute. The traditional restrictions go to show the scope of the right, not its lack of fundamental character. At least that is what they show (Justice Stevens would agree) for other rights. Once again, principles are applied selectively.    Justice Stevens’ final reason for rejecting incorporation of the Second Amendment reveals, more clearly than any of the others, the game that is afoot. Assuming that there is a “plausible constitutional basis” for holding that the right to keep and bear arms is incorporated, he asserts that we ought not to do so for prudential reasons . Post , at 47. Even if we had the authority to withhold rights that are within the Constitution’s command (and we assuredly do not), two of the reasons Justice Stevens gives for abstention show just how much power he would hand to judges. The States’ “right to experiment” with solutions to the problem of gun violence, he says, is at its apex here because “the best solution is far from clear.” Post , at 47–48 (internal quotation marks omitted). That is true of most serious social problems—whether, for example, “the best solution” for rampant crime is to admit confessions unless they are affirmatively shown to have been coerced, but see Miranda v. Arizona , 384 U. S. 436 , 444–445 (1966), or to permit jurors to impose the death penalty without a requirement that they be free to consider “any relevant mitigating factor,” see Eddings v. Oklahoma , 455 U. S. 104 , 112 (1982), which in turn leads to the conclusion that defense counsel has provided inadequate defense if he has not conducted a “reasonable investigation” into potentially mitigating factors, see, e.g. , Wiggins v. Smith , 539 U. S. 510 , 534 (2003), inquiry into which question tends to destroy any prospect of prompt justice, see, e.g. , Wong v. Belmontes , 558 U. S. ___ (2009) (per curiam) (reversing grant of habeas relief for sentencing on a crime committed in 1981). The obviousness of the optimal answer is in the eye of the beholder. The implication of Justice Stevens’ call for abstention is that if We The Court conclude that They The People’s answers to a problem are silly, we are free to “interven[e],” post , at 47, but if we too are uncertain of the right answer, or merely think the States may be on to something, we can loosen the leash.    A second reason Justice Stevens says we should abstain is that the States have shown they are “capable” of protecting the right at issue, and if anything have protected it too much. Post , at 49. That reflects an assumption that judges can distinguish between a proper democratic decision to leave things alone (which we should honor), and a case of democratic market failure (which we should step in to correct). I would not—and no judge should—presume to have that sort of omniscience, which seems to me far more “arrogant,” post , at 41, than confining courts’ focus to our own national heritage. III    Justice Stevens’ response to this concurrence, post , at 51–56, makes the usual rejoinder of “living Constitution” advocates to the criticism that it empowers judges to eliminate or expand what the people have prescribed: The traditional, historically focused method, he says, reposes discretion in judges as well.[ Footnote 8 ] Historical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to interpret it.    I will stipulate to that.[ Footnote 9 ] But the question to be decided is not whether the historically focused method is a perfect means of restraining aristocratic judicial Constitution-writing; but whether it is the best means available in an imperfect world. Or indeed, even more narrowly than that: whether it is demonstrably much better than what Justice Stevens proposes. I think it beyond all serious dispute that it is much less subjective, and intrudes much less upon the democratic process. It is less subjective because it depends upon a body of evidence susceptible of reasoned analysis rather than a variety of vague ethico-political First Principles whose combined conclusion can be found to point in any direction the judges favor. In the most controversial matters brought before this Court—for example, the constitutionality of prohibiting abortion, assisted suicide, or homosexual sodomy, or the constitutionality of the death penalty— any historical methodology, under any plausible standard of proof, would lead to the same conclusion.[ Footnote 10 ] Moreover, the methodological differences that divide historians, and the varying interpretive assumptions they bring to their work, post , at 52–54, are nothing compared to the differences among the American people (though perhaps not among graduates of prestigious law schools) with regard to the moral judgments Justice Stevens would have courts pronounce. And whether or not special expertise is needed to answer historical questions, judges most certainly have no “comparative … advantage,” post , at 24 (internal quotation marks omitted), in resolving moral disputes. What is more, his approach would not eliminate, but multiply, the hard questions courts must confront, since he would not replace history with moral philosophy, but would have courts consider both .    And the Court’s approach intrudes less upon the democratic process because the rights it acknowledges are those established by a constitutional history formed by democratic decisions; and the rights it fails to acknowledge are left to be democratically adopted or rejected by the people, with the assurance that their decision is not subject to judicial revision. Justice Stevens’ approach, on the other hand, deprives the people of that power, since whatever the Constitution and laws may say, the list of protected rights will be whatever courts wish it to be. After all, he notes, the people have been wrong before, post , at 55, and courts may conclude they are wrong in the future. Justice Stevens abhors a system in which “majorities or powerful interest groups always get their way,” post , at 56, but replaces it with a system in which unelected and life-tenured judges always get their way. That such usurpation is effected unabashedly, see post , at 53—with “the judge’s cards … laid on the table,” ibid. —makes it even worse. In a vibrant democracy, usurpation should have to be accomplished in the dark. It is Justice Stevens’ approach, not the Court’s, that puts democracy in peril. Footnote 1 I do not entirely understand Justice Stevens’ renaming of the Due Process Clause. What we call it, of course, does not change what the Clause says, but shorthand should not obscure what it says. Accepting for argument’s sake the shift in emphasis—from avoiding certain deprivations without that “process” which is “due,” to avoiding the deprivations themselves—the Clause applies not just to deprivations of “liberty,” but also to deprivations of “life” and even “property.” Footnote 2 Justice Stevens insists that he would not make courts the sole interpreters of the “liberty clause”; he graciously invites “[a]ll Americans” to ponder what the Clause means to them today. Post , at 20, n. 22. The problem is that in his approach the people’s ponderings do not matter, since whatever the people decide, courts have the last word. Footnote 3 Justice Breyer is not worried by that prospect. His interpretive approach applied to incorporation of the Second Amendment includes consideration of such factors as “the extent to which incorporation will further other, perhaps more basic, constitutional aims; and the extent to which incorporation will advance or hinder the Constitution’s structural aims”; whether recognizing a particular right will “further the Constitution’s effort to ensure that the government treats each individual with equal respect” or will “help maintain the democratic form of government”; whether it is “inconsistent … with the Constitution’s efforts to create governmental institutions well suited to the carrying out of its constitutional promises”; whether it fits with “the Framers’ basic reason for believing the Court ought to have the power of judicial review”; courts’ comparative advantage in answering empirical questions that may be involved in applying the right; and whether there is a “strong offsetting justification” for removing a decision from the democratic process. Post , at 7, 11–17 (dissenting opinion). Footnote 4 After defending the careful-description criterion, Justice Stevens quickly retreats and cautions courts not to apply it too stringently. Post , at 26. Describing a right too specifically risks robbing it of its “universal valence and a moral force it might otherwise have,” ibid. , and “loads the dice against its recognition,” post , at 26, n. 25 (internal quotation marks omitted). That must be avoided, since it endangers rights Justice Stevens does like. See ibid. (discussing Lawrence v. Texas , 539 U. S. 558 (2003)). To make sure those rights get in, we must leave leeway in our description, so that a right that has not itself been recognized as fundamental can ride the coattails of one that has been. Footnote 5 Justice Stevens claims that I mischaracterize his argument by referring to the Second Amendment right to keep and bear arms, instead of “the interest in keeping a firearm of one’s choosing in the home,” the right he says petitioners assert. Post , at 38, n. 36. But it is precisely the “Second Amendment right to keep and bear arms” that petitioners argue is incorporated by the Due Process Clause. See, e.g. , Pet. for Cert. i. Under Justice Stevens’ own approach, that should end the matter. See post , at 26 (“[W]e must pay close attention to the precise liberty interest the litigants have asked us to vindicate”). In any event, the demise of watered-down incorporation, see ante , at 17–19, means that we no longer subdivide Bill of Rights guarantees into their theoretical components, only some of which apply to the States. The First Amendment freedom of speech is incorporated—not the freedom to speak on Fridays, or to speak about philosophy. Footnote 6 Justice Stevens goes a step farther still, suggesting that the right to keep and bear arms is not protected by the “liberty clause” because it is not really a liberty at all, but a “property right.” Post , at 38. Never mind that the right to bear arms sounds mighty like a liberty; and never mind that the “liberty clause” is really a Due Process Clause which explicitly protects “property,” see United States v. Carlton , 512 U. S. 26 , 41–42 (1994) (Scalia, J., concurring in judgment). Justice Stevens’ theory cannot explain why the Takings Clause, which unquestionably protects property, has been incorporated, see Chicago, B. & Q. R. Co. v. Chicago , 166 U. S. 226 , 241 (1897), in a decision he appears to accept, post , at 14, n. 14. Footnote 7 As Justice Stevens notes, see post , at 51–52, I accept as a matter of stare decisis the requirement that to be fundamental for purposes of the Due Process Clause, a right must be “implicit in the concept of ordered liberty,” Lawrence , supra , at 593, n. 3 (Scalia, J., dissenting) (internal quotation marks omitted). But that inquiry provides infinitely less scope for judicial invention when conducted under the Court’s approach, since the field of candidates is immensely narrowed by the prior requirement that a right be rooted in this country’s traditions. Justice Stevens, on the other hand, is free to scan the universe for rights that he thinks “implicit in the concept, etc.” The point Justice Stevens makes here is merely one example of his demand that an historical approach to the Constitution prove itself, not merely much better than his in restraining judicial invention, but utterly perfect in doing so. See Part III, infra. Footnote 8 Justice Stevens also asserts that his approach is “more faithful to this Nation’s constitutional history” and to “the values and commitments of the American people, as they stand today,” post , at 54. But what he asserts to be the proof of this is that his approach aligns (no surprise) with those cases he approves (and dubs “canonical,” ibid. ). Cases he disfavors are discarded as “hardly bind[ing]” “excesses,” post , at 12, or less “enduring,” post , at 17, n. 16. Not proven. Moreover, whatever relevance Justice Stevens ascribes to current “values and commitments of the American people” (and that is unclear, see post , at 48–49, n. 47), it is hard to see how it shows fidelity to them that he disapproves a different subset of old cases than the Court does. Footnote 9 That is not to say that every historical question on which there is room for debate is indeterminate, or that every question on which historians disagree is equally balanced. Cf. post , at 52–53. For example, the historical analysis of the principal dissent in Heller is as valid as the Court’s only in a two-dimensional world that conflates length and depth. Footnote 10 By the way, Justice Stevens greatly magnifies the difficulty of an historical approach by suggesting that it was my burden in Lawrence to show the “ancient roots of proscriptions against sodomy,” post , at 53 (internal quotation marks omitted). Au contraire , it was his burden (in the opinion he joined) to show the ancient roots of the right of sodomy. STEVENS, J., DISSENTING MCDONALD V. CHICAGO 561 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1521 OTIS McDONALD, et al., PETITIONERS v. CITY OF CHICAGO, ILLINOIS, et al. on writ of certiorari to the united states court of appeals for the seventh circuit [June 28, 2010]    Justice Stevens, dissenting.    In District of Columbia v. Heller , 554 U. S. ___, ___ (2008) (slip op., at 1), the Court answered the question whether a federal enclave’s “prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.” The question we should be answering in this case is whether the Constitution “guarantees individuals a fundamental right,” enforceable against the States, “to possess a functional, personal firearm, including a handgun, within the home.” Complaint ¶34, App. 23. That is a different—and more difficult—inquiry than asking if the Fourteenth Amendment “incorporates” the Second Amendment. The so-called incorporation question was squarely and, in my view, correctly resolved in the late 19th century.[ Footnote 1 ]    Before the District Court, petitioners focused their pleadings on the special considerations raised by domestic possession, which they identified as the core of their asserted right. In support of their claim that the city of Chicago’s handgun ban violates the Constitution, they now rely primarily on the Privileges or Immunities Clause of the Fourteenth Amendment. See Brief for Petitioners 9–65. They rely secondarily on the Due Process Clause of that Amendment. See id., at 66–72. Neither submission requires the Court to express an opinion on whether the Fourteenth Amendment places any limit on the power of States to regulate possession, use, or carriage of firearms outside the home.    I agree with the plurality’s refusal to accept petitioners’ primary submission. Ante , at 10. Their briefs marshal an impressive amount of historical evidence for their argument that the Court interpreted the Privileges or Immunities Clause too narrowly in the Slaughter-House Cases , 16 Wall. 36 (1873). But the original meaning of the Clause is not as clear as they suggest[ Footnote 2 ]—and not nearly as clear as it would need to be to dislodge 137 years of precedent. The burden is severe for those who seek radical change in such an established body of constitutional doctrine.[ Footnote 3 ] Moreover, the suggestion that invigorating the Privileges or Immunities Clause will reduce judicial discretion, see Reply Brief for Petitioners 22, n. 8, 26; Tr. of Oral Arg. 64–65, strikes me as implausible, if not exactly backwards. “For the very reason that it has so long remained a clean slate, a revitalized Privileges or Immunities Clause holds special hazards for judges who are mindful that their proper task is not to write their personal views of appropriate public policy into the Constitution.”[ Footnote 4 ]    I further agree with the plurality that there are weighty arguments supporting petitioners’ second submission, insofar as it concerns the possession of firearms for lawful self-defense in the home. But these arguments are less compelling than the plurality suggests; they are much less compelling when applied outside the home; and their validity does not depend on the Court’s holding in Heller . For that holding sheds no light on the meaning of the Due Process Clause of the Fourteenth Amendment. Our decisions construing that Clause to render various procedural guarantees in the Bill of Rights enforceable against the States likewise tell us little about the meaning of the word “liberty” in the Clause or about the scope of its protection of nonprocedural rights.    This is a substantive due process case. I    Section 1 of the Fourteenth Amendment decrees that no State shall “deprive any person of life, liberty, or property, without due process of law.” The Court has filled thousands of pages expounding that spare text. As I read the vast corpus of substantive due process opinions, they confirm several important principles that ought to guide our resolution of this case. The principal opinion’s lengthy summary of our “incorporation” doctrine, see ante , at 5–9, 11–19 (majority opinion), 10–11 (plurality opinion), and its implicit (and untenable) effort to wall off that doctrine from the rest of our substantive due process jurisprudence, invite a fresh survey of this old terrain. Substantive Content The first, and most basic, principle established by our cases is that the rights protected by the Due Process Clause are not merely procedural in nature. At first glance, this proposition might seem surprising, given that the Clause refers to “process.” But substance and procedure are often deeply entwined. Upon closer inspection, the text can be read to “impos[e] nothing less than an obligation to give substantive content to the words ‘liberty’ and ‘due process of law,’ ” Washington v. Glucksberg , 521 U. S. 702 , 764 (1997) (Souter, J., concurring in judgment), lest superficially fair procedures be permitted to “destroy the enjoyment” of life, liberty, and property, Poe v. Ullman , 367 U. S. 497 , 541 (1961) (Harlan, J., dissenting), and the Clause’s prepositional modifier be permitted to swallow its primary command. Procedural guarantees are hollow unless linked to substantive interests; and no amount of process can legitimize some deprivations.    I have yet to see a persuasive argument that the Framers of the Fourteenth Amendment thought otherwise. To the contrary, the historical evidence suggests that, at least by the time of the Civil War if not much earlier, the phrase “due process of law” had acquired substantive content as a term of art within the legal community.[ Footnote 5 ] This understanding is consonant with the venerable “notion that governmental authority has implied limits which preserve private autonomy,”[ Footnote 6 ] a notion which predates the founding and which finds reinforcement in the Constitution’s Ninth Amendment, see Griswold v. Connecticut , 381 U. S. 479 , 486–493 (1965) (Goldberg, J., concurring).[ Footnote 7 ] The Due Process Clause cannot claim to be the source of our basic freedoms—no legal document ever could, see Meachum v. Fano , 427 U. S. 215 , 230 (1976) (Stevens, J., dissenting)—but it stands as one of their foundational guarantors in our law.    If text and history are inconclusive on this point, our precedent leaves no doubt: It has been “settled” for well over a century that the Due Process Clause “applies to matters of substantive law as well as to matters of procedure.” Whitney v. California , 274 U. S. 357 , 373 (1927) (Brandeis, J., concurring). Time and again, we have recognized that in the Fourteenth Amendment as well as the Fifth, the “Due Process Clause guarantees more than fair process, and the ‘liberty’ it protects includes more than the absence of physical restraint.” Glucksberg , 521 U. S., at 719. “The Clause also includes a substantive component that ‘provides heightened protection against government interference with certain fundamental rights and liberty interests.’ ” Troxel v. Granville , 530 U. S. 57 , 65 (2000) (opinion of O’Connor, J., joined by Rehnquist, C. J., and Ginsburg and Breyer, JJ.) (quoting Glucksberg , 521 U. S., at 720). Some of our most enduring precedents, accepted today by virtually everyone, were substantive due process decisions. See, e.g., Loving v. Virginia , 388 U. S. 1 , 12 (1967) (recognizing due-process- as well as equal-protection-based right to marry person of another race); Bolling v. Sharpe , 347 U. S. 497 , 499–500 (1954) (outlawing racial segregation in District of Columbia public schools); Pierce v. Society of Sisters , 268 U. S. 510 , 534–535 (1925) (vindicating right of parents to direct upbringing and education of their children); Meyer v. Nebraska , 262 U. S. 390 , 399–403 (1923) (striking down prohibition on teaching of foreign languages). Liberty The second principle woven through our cases is that substantive due process is fundamentally a matter of personal liberty. For it is the liberty clause of the Fourteenth Amendment that grounds our most important holdings in this field. It is the liberty clause that enacts the Constitution’s “promise” that a measure of dignity and self-rule will be afforded to all persons. Planned Parenthood of Southeastern Pa. v. Casey , 505 U. S. 833 , 847 (1992). It is the liberty clause that reflects and renews “the origins of the American heritage of freedom [and] the abiding interest in individual liberty that makes certain state intrusions on the citizen’s right to decide how he will live his own life intolerable.” Fitzgerald v. Porter Memorial Hospital , 523 F. 2d 716, 720 (CA7 1975) (Stevens, J.). Our substantive due process cases have episodically invoked values such as privacy and equality as well, values that in certain contexts may intersect with or complement a subject’s liberty interests in profound ways. But as I have observed on numerous occasions, “most of the significant [20th-century] cases raising Bill of Rights issues have, in the final analysis, actually interpreted the word ‘liberty’ in the Fourteenth Amendment.”[ Footnote 8 ]    It follows that the term “incorporation,” like the term “unenumerated rights,” is something of a misnomer. Whether an asserted substantive due process interest is explicitly named in one of the first eight Amendments to the Constitution or is not mentioned, the underlying inquiry is the same: We must ask whether the interest is “comprised within the term liberty.” Whitney , 274 U. S., at 373 (Brandeis, J., concurring). As the second Justice Harlan has shown, ever since the Court began considering the applicability of the Bill of Rights to the States, “the Court’s usual approach has been to ground the prohibitions against state action squarely on due process, without intermediate reliance on any of the first eight Amendments.” Malloy v. Hogan , 378 U. S. 1 , 24 (1964) (dissenting opinion); see also Frankfurter, Memorandum on “Incorporation” of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment, 78 Harv. L. Rev. 746, 747–750 (1965). In the pathmarking case of Gitlow v. New York , 268 U. S. 652 , 666 (1925), for example, both the majority and dissent evaluated petitioner’s free speech claim not under the First Amendment but as an aspect of “the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.”[ Footnote 9 ]    In his own classic opinion in Griswold , 381 U. S., at 500 (concurring in judgment), Justice Harlan memorably distilled these precedents’ lesson: “While the relevant inquiry may be aided by resort to one or more of the provisions of the Bill of Rights, it is not dependent on them or any of their radiations. The Due Process Clause of the Fourteenth Amendment stands … on its own bottom.”[ Footnote 10 ] Inclusion in the Bill of Rights is neither necessary nor sufficient for an interest to be judicially enforceable under the Fourteenth Amendment. This Court’s “ ‘selective incorporation’ ” doctrine, ante , at 15, is not simply “related” to substantive due process, ante , at 19; it is a subset thereof. Federal/State Divergence The third precept to emerge from our case law flows from the second: The rights protected against state infringement by the Fourteenth Amendment’s Due Process Clause need not be identical in shape or scope to the rights protected against Federal Government infringement by the various provisions of the Bill of Rights. As drafted, the Bill of Rights directly constrained only the Federal Government. See Barron ex rel. Tiernan v. Mayor of Baltimore , 7 Pet. 243 (1833). Although the enactment of the Fourteenth Amendment profoundly altered our legal order, it “did not unstitch the basic federalist pattern woven into our constitutional fabric.” Williams v. Florida , 399 U. S. 78 , 133 (1970) (Harlan, J., concurring in result). Nor, for that matter, did it expressly alter the Bill of Rights. The Constitution still envisions a system of divided sovereignty, still “establishes a federal republic where local differences are to be cherished as elements of liberty” in the vast run of cases, National Rifle Assn. of Am. Inc. v. Chicago , 567 F. 3d 856, 860 (CA7 2009) (Easterbrook, C. J.), still allocates a general “police power … to the States and the States alone,” United States v. Comstock , 560 U. S. ___, ___ (2010) (slip op., at 4) (Kennedy, J., concurring in judgment). Elementary considerations of constitutional text and structure suggest there may be legitimate reasons to hold state governments to different standards than the Federal Government in certain areas.[ Footnote 11 ] It is true, as the Court emphasizes, ante , at 15–19, that we have made numerous provisions of the Bill of Rights fully applicable to the States. It is settled, for instance, that the Governor of Alabama has no more power than the President of the United States to authorize unreasonable searches and seizures. Ker v. California , 374 U. S. 23 (1963). But we have never accepted a “total incorporation” theory of the Fourteenth Amendment, whereby the Amendment is deemed to subsume the provisions of the Bill of Rights en masse. See ante , at 15. And we have declined to apply several provisions to the States in any measure. See, e.g., Minneapolis & St. Louis R. Co. v. Bombolis , 241 U. S. 211 (1916) (Seventh Amendment); Hurtado v. California , 110 U. S. 516 (1884) (Grand Jury Clause). We have, moreover, resisted a uniform approach to the Sixth Amendment’s criminal jury guarantee, demanding 12-member panels and unanimous verdicts in federal trials, yet not in state trials. See Apodaca v. Oregon , 406 U. S. 404 (1972) (plurality opinion); Williams , 399 U. S. 78 . In recent years, the Court has repeatedly declined to grant certiorari to review that disparity.[ Footnote 12 ] While those denials have no precedential significance, they confirm the proposition that the “incorporation” of a provision of the Bill of Rights into the Fourteenth Amendment does not, in itself, mean the provision must have precisely the same meaning in both contexts. It is true, as well, that during the 1960’s the Court decided a number of cases involving procedural rights in which it treated the Due Process Clause as if it transplanted language from the Bill of Rights into the Fourteenth Amendment. See, e.g., Benton v. Maryland , 395 U. S. 784 , 795 (1969) (Double Jeopardy Clause); Pointer v. Texas , 380 U. S. 400 , 406 (1965) (Confrontation Clause). “Jot-for-jot” incorporation was the norm in this expansionary era. Yet at least one subsequent opinion suggests that these precedents require perfect state/federal congruence only on matters “ ‘at the core’ ” of the relevant constitutional guarantee. Crist v. Bretz , 437 U. S. 28 , 37 (1978); see also id., at 52–53 (Powell, J., dissenting). In my judgment, this line of cases is best understood as having concluded that, to ensure a criminal trial satisfies essential standards of fairness, some procedures should be the same in state and federal courts: The need for certainty and uniformity is more pressing, and the margin for error slimmer, when criminal justice is at issue. That principle has little relevance to the question whether a non procedural rule set forth in the Bill of Rights qualifies as an aspect of the liberty protected by the Fourteenth Amendment. Notwithstanding some overheated dicta in Malloy , 378 U. S., at 10–11, it is therefore an overstatement to say that the Court has “abandoned,” ante , at 16, 17 (majority opinion), 39 (plurality opinion), a “two-track approach to incorporation,” ante , at 37 (plurality opinion). The Court moved away from that approach in the area of criminal procedure. But the Second Amendment differs in fundamental respects from its neighboring provisions in the Bill of Rights, as I shall explain in Part V, infra; and if some 1960’s opinions purported to establish a general method of incorporation, that hardly binds us in this case. The Court has not hesitated to cut back on perceived Warren Court excesses in more areas than I can count. I do not mean to deny that there can be significant practical, as well as esthetic, benefits from treating rights symmetrically with regard to the State and Federal Governments. Jot-for-jot incorporation of a provision may entail greater protection of the right at issue and therefore greater freedom for those who hold it; jot-for-jot incorporation may also yield greater clarity about the contours of the legal rule. See Johnson v. Louisiana , 406 U. S. 356 , 384–388 (1972) (Douglas, J., dissenting); Pointer , 380 U. S., at 413–414 (Goldberg, J., concurring). In a federalist system such as ours, however, this approach can carry substantial costs. When a federal court insists that state and local authorities follow its dictates on a matter not critical to personal liberty or procedural justice, the latter may be prevented from engaging in the kind of beneficent “experimentation in things social and economic” that ultimately redounds to the benefit of all Americans. New State Ice Co. v. Liebmann , 285 U. S. 262 , 311 (1932) (Brandeis, J., dissenting). The costs of federal courts’ imposing a uniform national standard may be especially high when the relevant regulatory interests vary significantly across localities, and when the ruling implicates the States’ core police powers. Furthermore, there is a real risk that, by demanding the provisions of the Bill of Rights apply identically to the States, federal courts will cause those provisions to “be watered down in the needless pursuit of uniformity.” Duncan v. Louisiana , 391 U. S. 145 , 182, n. 21 (1968) (Harlan, J., dissenting). When one legal standard must prevail across dozens of jurisdictions with disparate needs and customs, courts will often settle on a relaxed standard. This watering-down risk is particularly acute when we move beyond the narrow realm of criminal procedure and into the relatively vast domain of substantive rights. So long as the requirements of fundamental fairness are always and everywhere respected, it is not clear that greater liberty results from the jot-for-jot application of a provision of the Bill of Rights to the States. Indeed, it is far from clear that proponents of an individual right to keep and bear arms ought to celebrate today’s decision.[ Footnote 13 ] II So far, I have explained that substantive due process analysis generally requires us to consider the term “liberty” in the Fourteenth Amendment, and that this inquiry may be informed by but does not depend upon the content of the Bill of Rights. How should a court go about the analysis, then? Our precedents have established, not an exact methodology, but rather a framework for decisionmaking. In this respect, too, the Court’s narrative fails to capture the continuity and flexibility in our doctrine. The basic inquiry was described by Justice Cardozo more than 70 years ago. When confronted with a substantive due process claim, we must ask whether the allegedly unlawful practice violates values “implicit in the concept of ordered liberty.” Palko v. Connecticut , 302 U. S. 319 , 325 (1937).[ Footnote 14 ] If the practice in question lacks any “oppressive and arbitrary” character, if judicial enforcement of the asserted right would not materially contribute to “a fair and enlightened system of justice,” then the claim is unsuitable for substantive due process protection. Id., at 327, 325. Implicit in Justice Cardozo’s test is a recognition that the postulates of liberty have a universal character. Liberty claims that are inseparable from the customs that prevail in a certain region, the idiosyncratic expectations of a certain group, or the personal preferences of their champions, may be valid claims in some sense; but they are not of constitutional stature. Whether conceptualized as a “rational continuum” of legal precepts, Poe , 367 U. S., at 543 (Harlan, J., dissenting), or a seamless web of moral commitments, the rights embraced by the liberty clause transcend the local and the particular. Justice Cardozo’s test undeniably requires judges to apply their own reasoned judgment, but that does not mean it involves an exercise in abstract philosophy. In addition to other constraints I will soon discuss, see Part III, infra , historical and empirical data of various kinds ground the analysis. Textual commitments laid down elsewhere in the Constitution, judicial precedents, English common law, legislative and social facts, scientific and professional developments, practices of other civilized societies,[ Footnote 15 ] and, above all else, the “ ‘traditions and conscience of our people,’ ” Palko , 302 U. S., at 325 (quoting Snyder v. Massachusetts , 291 U. S. 97 , 105 (1934)), are critical variables. They can provide evidence about which rights really are vital to ordered liberty, as well as a spur to judicial action. The Court errs both in its interpretation of Palko and in its suggestion that later cases rendered Palko ’s methodology defunct. Echoing Duncan , the Court advises that Justice Cardozo’s test will not be satisfied “ ‘if a civilized system could be imagined that would not accord the particular protection.’ ” Ante , at 12 (quoting 391 U. S., at 149, n. 14). Palko does contain some language that could be read to set an inordinate bar to substantive due process recognition, reserving it for practices without which “neither liberty nor justice would exist.” 302 U. S., at 326. But in view of Justice Cardozo’s broader analysis, as well as the numerous cases that have upheld liberty claims under the Palko standard, such readings are plainly overreadings. We have never applied Palko in such a draconian manner. Nor, as the Court intimates, see ante , at 16, did Duncan mark an irreparable break from Palko , swapping out liberty for history. Duncan limited its discussion to “particular procedural safeguard[s]” in the Bill of Rights relating to “criminal processes,” 391 U. S., at 149, n. 14; it did not purport to set a standard for other types of liberty interests. Even with regard to procedural safeguards, Duncan did not jettison the Palko test so much as refine it: The judge is still tasked with evaluating whether a practice “is fundamental … to ordered liberty,” within the context of the “Anglo-American” system. Duncan , 391 U. S., at 149–150, n. 14. Several of our most important recent decisions confirm the proposition that substantive due process analysis—from which, once again, “incorporation” analysis derives—must not be wholly backward looking. See, e.g., Lawrence v. Texas , 539 U. S. 558 , 572 (2003) (“[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry” (internal quotation marks omitted)); Michael H. v. Gerald D. , 491 U. S. 110 , 127–128, n. 6 (1989) (garnering only two votes for history-driven methodology that “consult[s] the most specific tradition available”); see also post , at 6–7 (Breyer, J., dissenting) (explaining that post- Duncan “incorporation” cases continued to rely on more than history).[ Footnote 16 ] The Court’s flight from Palko leaves its analysis, careful and scholarly though it is, much too narrow to provide a satisfying answer to this case. The Court hinges its entire decision on one mode of intellectual history, culling selected pronouncements and enactments from the 18th and 19th centuries to ascertain what Americans thought about firearms. Relying on Duncan and Glucksberg , the plurality suggests that only interests that have proved “fundamental from an American perspective,” ante , at 37, 44, or “ ‘deeply rooted in this Nation’s history and tradition,’ ” ante , at 19 (quoting Glucksberg , 521 U. S., at 721), to the Court’s satisfaction, may qualify for incorporation into the Fourteenth Amendment. To the extent the Court’s opinion could be read to imply that the historical pedigree of a right is the exclusive or dispositive determinant of its status under the Due Process Clause, the opinion is seriously mistaken. A rigid historical test is inappropriate in this case, most basically, because our substantive due process doctrine has never evaluated substantive rights in purely, or even predominantly, historical terms. When the Court applied many of the procedural guarantees in the Bill of Rights to the States in the 1960’s, it often asked whether the guarantee in question was “fundamental in the context of the criminal processes maintained by the American States.”[ Footnote 17 ] Duncan , 391 U. S., at 150, n. 14. That inquiry could extend back through time, but it was focused not so much on historical conceptions of the guarantee as on its functional significance within the States’ regimes. This contextualized approach made sense, as the choice to employ any given trial-type procedure means little in the abstract. It is only by inquiring into how that procedure intermeshes with other procedures and practices in a criminal justice system that its relationship to “liberty” and “due process” can be determined. Yet when the Court has used the Due Process Clause to recognize rights distinct from the trial context—rights relating to the primary conduct of free individuals—Justice Cardozo’s test has been our guide. The right to free speech, for instance, has been safeguarded from state infringement not because the States have always honored it, but because it is “essential to free government” and “to the maintenance of democratic institutions”—that is, because the right to free speech is implicit in the concept of ordered liberty. Thornhill v. Alabama , 310 U. S. 88 , 95, 96 (1940); see also, e.g., Loving , 388 U. S., at 12 (discussing right to marry person of another race); Mapp v. Ohio , 367 U. S. 643 , 650, 655–657 (1961) (discussing right to be free from arbitrary intrusion by police); Schneider v. State (Town of Irvington) , 308 U. S. 147 , 161 (1939) (discussing right to distribute printed matter).[ Footnote 18 ] While the verbal formula has varied, the Court has largely been consistent in its liberty-based approach to substantive interests outside of the adjudicatory system. As the question before us indisputably concerns such an interest, the answer cannot be found in a granular inspection of state constitutions or congressional debates. More fundamentally, a rigid historical methodology is unfaithful to the Constitution’s command. For if it were really the case that the Fourteenth Amendment’s guarantee of liberty embraces only those rights “so rooted in our history, tradition, and practice as to require special protection,” Glucksberg , 521 U. S., at 721, n. 17, then the guarantee would serve little function, save to ratify those rights that state actors have already been according the most extensive protection.[ Footnote 19 ] Cf. Duncan , 391 U. S., at 183 (Harlan, J., dissenting) (critiquing “circular[ity]” of historicized test for incorporation). That approach is unfaithful to the expansive principle Americans laid down when they ratified the Fourteenth Amendment and to the level of generality they chose when they crafted its language; it promises an objectivity it cannot deliver and masks the value judgments that pervade any analysis of what customs, defined in what manner, are sufficiently “ ‘rooted’ ”; it countenances the most revolting injustices in the name of continuity,[ Footnote 20 ] for we must never forget that not only slavery but also the subjugation of women and other rank forms of discrimination are part of our history; and it effaces this Court’s distinctive role in saying what the law is, leaving the development and safekeeping of liberty to majoritarian political processes. It is judicial abdication in the guise of judicial modesty. No, the liberty safeguarded by the Fourteenth Amendment is not merely preservative in nature but rather is a “dynamic concept.” Stevens, The Bill of Rights: A Century of Progress, 59 U. Chi. L. Rev. 13, 38 (1972). Its dynamism provides a central means through which the Framers enabled the Constitution to “endure for ages to come,” McCulloch v. Maryland , 4 Wheat. 316, 415 (1819), a central example of how they “wisely spoke in general language and left to succeeding generations the task of applying that language to the unceasingly changing environment in which they would live,” Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693, 694 (1976). “The task of giving concrete meaning to the term ‘liberty,’ ” I have elsewhere explained at some length, “was a part of the work assigned to future generations.” Stevens, The Third Branch of Liberty, 41 U. Miami L. Rev. 277, 291 (1986).[ Footnote 21 ] The judge who would outsource the interpretation of “liberty” to historical sentiment has turned his back on a task the Constitution assigned to him and drained the document of its intended vitality.[ Footnote 22 ] III At this point a difficult question arises. In considering such a majestic term as “liberty” and applying it to present circumstances, how are we to do justice to its urgent call and its open texture—and to the grant of interpretive discretion the latter embodies—without injecting excessive subjectivity or unduly restricting the States’ “broad latitude in experimenting with possible solutions to problems of vital local concern,” Whalen v. Roe , 429 U. S. 589 , 597 (1977)? One part of the answer, already discussed, is that we must ground the analysis in historical experience and reasoned judgment, and never on “merely personal and private notions.” Rochin v. California , 342 U. S. 165 , 170 (1952). Our precedents place a number of additional constraints on the decisional process. Although “guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended,” Collins v. Harker Heights , 503 U. S. 115 , 125 (1992), significant guideposts do exist.[ Footnote 23 ] The most basic is that we have eschewed attempts to provide any all-purpose, top-down, totalizing theory of “liberty.”[ Footnote 24 ] That project is bound to end in failure or worse. The Framers did not express a clear understanding of the term to guide us, and the now-repudiated Lochner line of cases attests to the dangers of judicial overconfidence in using substantive due process to advance a broad theory of the right or the good. See, e.g., Lochner v. New York , 198 U. S. 45 (1905). In its most durable precedents, the Court “has not attempted to define with exactness the liberty … guaranteed” by the Fourteenth Amendment. Meyer , 262 U. S., at 399; see also, e.g., Bolling , 347 U. S. at 499. By its very nature, the meaning of liberty cannot be “reduced to any formula; its content cannot be determined by reference to any code.” Poe , 367 U. S., at 542 (Harlan, J., dissenting). Yet while “the ‘liberty’ specially protected by the Fourteenth Amendment” is “perhaps not capable of being fully clarified,” Glucksberg , 521 U. S., at 722, it is capable of being refined and delimited. We have insisted that only certain types of especially significant personal interests may qualify for especially heightened protection. Ever since “the deviant economic due process cases [were] repudiated,” id., at 761 (Souter, J., concurring in judgment), our doctrine has steered away from “laws that touch economic problems, business affairs, or social conditions,” Griswold , 381 U. S., at 482, and has instead centered on “matters relating to marriage, procreation, contraception, family relationships, and child rearing and education,” Paul v. Davis , 424 U. S. 693 , 713 (1976). These categories are not exclusive. Government action that shocks the conscience, pointlessly infringes settled expectations, trespasses into sensitive private realms or life choices without adequate justification, perpetrates gross injustice, or simply lacks a rational basis will always be vulnerable to judicial invalidation. Nor does the fact that an asserted right falls within one of these categories end the inquiry. More fundamental rights may receive more robust judicial protection, but the strength of the individual’s liberty interests and the State’s regulatory interests must always be assessed and compared. No right is absolute. Rather than seek a categorical understanding of the liberty clause, our precedents have thus elucidated a conceptual core. The clause safeguards, most basically, “the ability independently to define one’s identity,” Roberts v. United States Jaycees , 468 U. S. 609 , 619 (1984), “the individual’s right to make certain unusually important decisions that will affect his own, or his family’s, destiny,” Fitzgerald , 523 F. 2d, at 719, and the right to be respected as a human being. Self-determination, bodily integrity, freedom of conscience, intimate relationships, political equality, dignity and respect—these are the central values we have found implicit in the concept of ordered liberty. Another key constraint on substantive due process analysis is respect for the democratic process. If a particular liberty interest is already being given careful consideration in, and subjected to ongoing calibration by, the States, judicial enforcement may not be appropriate. When the Court declined to establish a general right to physician-assisted suicide, for example, it did so in part because “the States [were] currently engaged in serious, thoughtful examinations of physician-assisted suicide and other similar issues,” rendering judicial intervention both less necessary and potentially more disruptive. Glucksberg , 521 U. S., at 719, 735. Conversely, we have long appreciated that more “searching” judicial review may be justified when the rights of “discrete and insular minorities”—groups that may face systematic barriers in the political system—are at stake. United States v. Carolene Products Co. , 304 U. S. 144 , 153, n. 4 (1938). Courts have a “comparative … advantage” over the elected branches on a limited, but significant, range of legal matters. Post , at 8. Recognizing a new liberty right is a momentous step. It takes that right, to a considerable extent, “outside the arena of public debate and legislative action.” Glucksberg , 521 U. S., at 720. Sometimes that momentous step must be taken; some fundamental aspects of personhood, dignity, and the like do not vary from State to State, and demand a baseline level of protection. But sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society provides an important tool for guiding judicial discretion. This sensitivity is an aspect of a deeper principle: the need to approach our work with humility and caution. Because the relevant constitutional language is so “spacious,” Duncan , 391 U. S., at 148, I have emphasized that “[t]he doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field.” Collins , 503 U. S., at 125. Many of my colleagues and predecessors have stressed the same point, some with great eloquence. See, e.g., Casey , 505 U. S., at 849; Moore v. East Cleveland , 431 U. S. 494 , 502–503 (1977) (plurality opinion); Poe , 367 U. S., at 542–545 (Harlan, J., dissenting); Adamson v. California , 332 U. S. 46 , 68 (1947) (Frankfurter, J., concurring). Historical study may discipline as well as enrich the analysis. But the inescapable reality is that no serious theory of Section 1 of the Fourteenth Amendment yields clear answers in every case, and “[n]o formula could serve as a substitute, in this area, for judgment and restraint.” Poe , 367 U. S., at 542 (Harlan, J., dissenting). Several rules of the judicial process help enforce such restraint. In the substantive due process field as in others, the Court has applied both the doctrine of stare decisis —adhering to precedents, respecting reliance interests, prizing stability and order in the law—and the common-law method—taking cases and controversies as they present themselves, proceeding slowly and incrementally, building on what came before. This restrained methodology was evident even in the heyday of “incorporation” during the 1960’s. Although it would have been much easier for the Court simply to declare certain Amendments in the Bill of Rights applicable to the States in toto , the Court took care to parse each Amendment into its component guarantees, evaluating them one by one. This piecemeal approach allowed the Court to scrutinize more closely the right at issue in any given dispute, reducing both the risk and the cost of error. Relatedly, rather than evaluate liberty claims on an abstract plane, the Court has “required in substantive-due-process cases a ‘careful description’ of the asserted fundamental liberty interest.” Glucksberg , 521 U. S., at 721 (quoting Reno v. Flores , 507 U. S. 292 , 302 (1993); Collins , 503 U. S., at 125; Cruzan v. Director, Mo. Dept. of Health , 497 U. S. 261 , 277–278 (1990)). And just as we have required such careful description from the litigants, we have required of ourselves that we “focus on the allegations in the complaint to determine how petitioner describes the constitutional right at stake.” Collins , 503 U. S., at 125; see also Stevens, Judicial Restraint, 22 San Diego L. Rev. 437, 446–448 (1985). This does not mean that we must define the asserted right at the most specific level, thereby sapping it of a universal valence and a moral force it might otherwise have.[ Footnote 25 ] It means, simply, that we must pay close attention to the precise liberty interest the litigants have asked us to vindicate. Our holdings should be similarly tailored. Even if the most expansive formulation of a claim does not qualify for substantive due process recognition, particular components of the claim might. Just because there may not be a categorical right to physician-assisted suicide, for example, does not “ ‘foreclose the possibility that an individual plaintiff seeking to hasten her death, or a doctor whose assistance was sought, could prevail in a more particularized challenge.’ ” Glucksberg , 521 U. S., at 735, n. 24 (quoting id., at 750 (Stevens, J., concurring in judgments)); see also Vacco v. Quill , 521 U. S. 793 , 809, n. 13 (1997) (leaving open “ ‘the possibility that some applications of the [New York prohibition on assisted suicide] may impose an intolerable intrusion on the patient’s freedom’ ”). Even if a State’s interest in regulating a certain matter must be permitted, in the general course, to trump the individual’s countervailing liberty interest, there may still be situations in which the latter “is entitled to constitutional protection.” Glucksberg , 521 U. S., at 742 (Stevens, J., concurring in judgments). As this discussion reflects, to acknowledge that the task of construing the liberty clause requires judgment is not to say that it is a license for unbridled judicial lawmaking. To the contrary, only an honest reckoning with our discretion allows for honest argumentation and meaningful accountability. IV The question in this case, then, is not whether the Second Amendment right to keep and bear arms (whatever that right’s precise contours) applies to the States because the Amendment has been incorporated into the Fourteenth Amendment. It has not been. The question, rather, is whether the particular right asserted by petitioners applies to the States because of the Fourteenth Amendment itself, standing on its own bottom. And to answer that question, we need to determine, first, the nature of the right that has been asserted and, second, whether that right is an aspect of Fourteenth Amendment “liberty.” Even accepting the Court’s holding in Heller , it remains entirely possible that the right to keep and bear arms identified in that opinion is not judicially enforceable against the States, or that only part of the right is so enforceable.[ Footnote 26 ] It is likewise possible for the Court to find in this case that some part of the Heller right applies to the States, and then to find in later cases that other parts of the right also apply, or apply on different terms. As noted at the outset, the liberty interest petitioners have asserted is the “right to possess a functional, personal firearm, including a handgun, within the home.” Complaint ¶34, App. 23. The city of Chicago allows residents to keep functional firearms, so long as they are registered, but it generally prohibits the possession of handguns, sawed-off shotguns, machine guns, and short-barreled rifles. See Chicago, Ill., Municipal Code §8–20–050 (2009).[ Footnote 27 ] Petitioners’ complaint centered on their desire to keep a handgun at their domicile—it references the “home” in nearly every paragraph, see Complaint ¶¶3–4, 11–30, 32, 34, 37, 42, 44, 46, App. 17, 19–26—as did their supporting declarations, see, e.g., App. 34, 36, 40, 43, 49–52, 54–56. Petitioners now frame the question that confronts us as “[w]hether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.” Brief for Petitioners, p. i. But it is our duty “to focus on the allegations in the complaint to determine how petitioner describes the constitutional right at stake,” Collins , 503 U. S., at 125, and the gravamen of this complaint is plainly an appeal to keep a handgun or other firearm of one’s choosing in the home. Petitioners’ framing of their complaint tracks the Court’s ruling in Heller . The majority opinion contained some dicta suggesting the possibility of a more expansive arms-bearing right, one that would travel with the individual to an extent into public places, as “in case of confrontation.” 554 U. S., at ___ (slip op., at 19). But the Heller plaintiff sought only dispensation to keep an operable firearm in his home for lawful self-defense, see id., at ___ (slip op., at 2, and n. 2), and the Court’s opinion was bookended by reminders that its holding was limited to that one issue, id., at ___, ___ (slip op., at 1, 64); accord, ante , at 44 (plurality opinion). The distinction between the liberty right these petitioners have asserted and the Second Amendment right identified in Heller is therefore evanescent. Both are rooted to the home. Moreover, even if both rights have the logical potential to extend further, upon “future evaluation,” Heller , 554 U. S., at ___ (slip op., at 63), it is incumbent upon us, as federal judges contemplating a novel rule that would bind all 50 States, to proceed cautiously and to decide only what must be decided. Understood as a plea to keep their preferred type of firearm in the home, petitioners’ argument has real force.[ Footnote 28 ] The decision to keep a loaded handgun in the house is often motivated by the desire to protect life, liberty, and property. It is comparable, in some ways, to decisions about the education and upbringing of one’s children. For it is the kind of decision that may have profound consequences for every member of the family, and for the world beyond. In considering whether to keep a handgun, heads of households must ask themselves whether the desired safety benefits outweigh the risks of deliberate or accidental misuse that may result in death or serious injury, not only to residents of the home but to others as well. Millions of Americans have answered this question in the affirmative, not infrequently because they believe they have an inalienable right to do so—because they consider it an aspect of “the supreme human dignity of being master of one’s fate rather than a ward of the State,” Indiana v. Edwards , 554 U. S. 164 , 186 (2008) (Scalia, J., dissenting). Many such decisions have been based, in part, on family traditions and deeply held beliefs that are an aspect of individual autonomy the government may not control.[ Footnote 29 ] Bolstering petitioners’ claim, our law has long recognized that the home provides a kind of special sanctuary in modern life. See, e.g., U. S. Const., Amdts. 3, 4; Lawrence , 539 U. S., at 562, 567; Payton v. New York , 445 U. S. 573 , 585–590 (1980); Stanley v. Georgia , 394 U. S. 557 , 565–568 (1969); Griswold , 381 U. S., at 484–485. Consequently, we have long accorded special deference to the privacy of the home, whether a humble cottage or a magnificent manse. This veneration of the domestic harkens back to the common law. William Blackstone recognized a “right of habitation,” 4 Commentaries *223, and opined that “every man’s house is looked upon by the law to be his castle of defence and asylum,” 3 id., at *288. Heller carried forward this legacy, observing that “the need for defense of self, family, and property is most acute” in one’s abode, and celebrating “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” 554 U. S., at ___, ___ (slip op., at 56, 63). While the individual’s interest in firearm possession is thus heightened in the home, the State’s corresponding interest in regulation is somewhat weaker. The State generally has a lesser basis for regulating private as compared to public acts, and firearms kept inside the home generally pose a lesser threat to public welfare as compared to firearms taken outside. The historical case for regulation is likewise stronger outside the home, as many States have for many years imposed stricter, and less controversial, restrictions on the carriage of arms than on their domestic possession. See, e.g., id., at ___ (slip op., at 54) (noting that “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues”); English v. State , 35 Tex. 473, 478–479 (1871) (observing that “almost, if not every one of the States of this Union have [a prohibition on the carrying of deadly weapons] upon their statute books,” and lambasting claims of a right to carry such weapons as “little short of ridiculous”); Miller, Guns as Smut: Defending the Home-Bound Second Amendment, 109 Colum. L. Rev. 1278, 1321–1336 (2009). It is significant, as well, that a rule limiting the federal constitutional right to keep and bear arms to the home would be less intrusive on state prerogatives and easier to administer. Having unleashed in Heller a tsunami of legal uncertainty, and thus litigation,[ Footnote 30 ] and now on the cusp of imposing a national rule on the States in this area for the first time in United States history, the Court could at least moderate the confusion, upheaval, and burden on the States by adopting a rule that is clearly and tightly bounded in scope. In their briefs to this Court, several amici have sought to bolster petitioners’ claim still further by invoking a right to individual self-defense.[ Footnote 31 ] As petitioners note, the Heller majority discussed this subject extensively and remarked that “[t]he inherent right of self-defense has been central to the Second Amendment right.” 554 U. S., at ___ (slip op., at 56). And it is true that if a State were to try to deprive its residents of any reasonable means of defending themselves from imminent physical threats, or to deny persons any ability to assert self-defense in response to criminal prosecution, that might pose a significant constitutional problem. The argument that there is a substantive due process right to be spared such untenable dilemmas is a serious one.[ Footnote 32 ] But that is not the case before us. Petitioners have not asked that we establish a constitutional right to individual self-defense; neither their pleadings in the District Court nor their filings in this Court make any such request. Nor do petitioners contend that the city of Chicago—which, recall, allows its residents to keep most rifles and shotguns, and to keep them loaded—has unduly burdened any such right. What petitioners have asked is that we “incorporate” the Second Amendment and thereby establish a constitutional entitlement, enforceable against the States, to keep a handgun in the home. Of course, owning a handgun may be useful for practicing self-defense. But the right to take a certain type of action is analytically distinct from the right to acquire and utilize specific instrumentalities in furtherance of that action. And while some might favor handguns, it is not clear that they are a superior weapon for lawful self-defense, and nothing in petitioners’ argument turns on that being the case. The notion that a right of self-defense implies an auxiliary right to own a certain type of firearm presupposes not only controversial judgments about the strength and scope of the (posited) self-defense right, but also controversial assumptions about the likely effects of making that type of firearm more broadly available. It is a very long way from the proposition that the Fourteenth Amendment protects a basic individual right of self-defense to the conclusion that a city may not ban handguns.[ Footnote 33 ] In short, while the utility of firearms, and handguns in particular, to the defense of hearth and home is certainly relevant to an assessment of petitioners’ asserted right, there is no freestanding self-defense claim in this case. The question we must decide is whether the interest in keeping in the home a firearm of one’s choosing—a handgun, for petitioners—is one that is “comprised within the term liberty” in the Fourteenth Amendment. Whitney , 274 U. S., at 373 (Brandeis, J., concurring). V While I agree with the Court that our substantive due process cases offer a principled basis for holding that petitioners have a constitutional right to possess a usable fiream in the home, I am ultimately persuaded that a better reading of our case law supports the city of Chicago. I would not foreclose the possibility that a particular plaintiff—say, an elderly widow who lives in a dangerous neighborhood and does not have the strength to operate a long gun—may have a cognizable liberty interest in possessing a handgun. But I cannot accept petitioners’ broader submission. A number of factors, taken together, lead me to this conclusion. First, firearms have a fundamentally ambivalent relationship to liberty. Just as they can help homeowners defend their families and property from intruders, they can help thugs and insurrectionists murder innocent victims. The threat that firearms will be misused is far from hypothetical, for gun crime has devastated many of our communities. Amici calculate that approximately one million Americans have been wounded or killed by gunfire in the last decade.[ Footnote 34 ] Urban areas such as Chicago suffer disproportionately from this epidemic of violence. Handguns contribute disproportionately to it. Just as some homeowners may prefer handguns because of their small size, light weight, and ease of operation, some criminals will value them for the same reasons. See Heller , 554 U. S., at ___ (Breyer, J., dissenting) (slip op., at 32–33). In recent years, handguns were reportedly used in more than four-fifths of firearm murders and more than half of all murders nationwide.[ Footnote 35 ] Hence, in evaluating an asserted right to be free from particular gun-control regulations, liberty is on both sides of the equation. Guns may be useful for self-defense, as well as for hunting and sport, but they also have a unique potential to facilitate death and destruction and thereby to destabilize ordered liberty. Your interest in keeping and bearing a certain firearm may diminish my interest in being and feeling safe from armed violence. And while granting you the right to own a handgun might make you safer on any given day—assuming the handgun’s marginal contribution to self-defense outweighs its marginal contribution to the risk of accident, suicide, and criminal mischief—it may make you and the community you live in less safe overall, owing to the increased number of handguns in circulation. It is at least reasonable for a democratically elected legislature to take such concerns into account in considering what sorts of regulations would best serve the public welfare. The practical impact of various gun-control measures may be highly controversial, but this basic insight should not be. The idea that deadly weapons pose a distinctive threat to the social order—and that reasonable restrictions on their usage therefore impose an acceptable burden on one’s personal liberty—is as old as the Republic. As The Chief Justice observed just the other day, it is a foundational premise of modern government that the State holds a monopoly on legitimate violence: “A basic step in organizing a civilized society is to take [the] sword out of private hands and turn it over to an organized government, acting on behalf of all the people.” Robertson v. United States ex rel. Watson , ante , at ___ (slip op., at 11) (dissenting opinion). The same holds true for the handgun. The power a man has in the state of nature “of doing whatsoever he thought fit for the preservation of himself and the rest of mankind, he gives up,” to a significant extent, “to be regulated by laws made by the society.” J. Locke, Second Treatise of Civil Government §129, p. 64 (J. Gough ed. 1947). Limiting the federal constitutional right to keep and bear arms to the home complicates the analysis but does not dislodge this conclusion. Even though the Court has long afforded special solicitude for the privacy of the home, we have never understood that principle to “infring[e] upon” the authority of the States to proscribe certain inherently dangerous items, for “[i]n such cases, compelling reasons may exist for overriding the right of the individual to possess those materials.” Stanley , 394 U. S., at 568, n. 11. And, of course, guns that start out in the home may not stay in the home. Even if the government has a weaker basis for restricting domestic possession of firearms as compared to public carriage—and even if a blanket, statewide prohibition on domestic possession might therefore be unconstitutional—the line between the two is a porous one. A state or local legislature may determine that a prophylactic ban on an especially portable weapon is necessary to police that line. Second, the right to possess a firearm of one’s choosing is different in kind from the liberty interests we have recognized under the Due Process Clause. Despite the plethora of substantive due process cases that have been decided in the post- Lochner century, I have found none that holds, states, or even suggests that the term “liberty” encompasses either the common-law right of self-defense or a right to keep and bear arms. I do not doubt for a moment that many Americans feel deeply passionate about firearms, and see them as critical to their way of life as well as to their security. Nevertheless, it does not appear to be the case that the ability to own a handgun, or any particular type of firearm, is critical to leading a life of autonomy, dignity, or political equality: The marketplace offers many tools for self-defense, even if they are imperfect substitutes, and neither petitioners nor their amici make such a contention. Petitioners’ claim is not the kind of substantive interest, accordingly, on which a uniform, judicially enforced national standard is presumptively appropriate.[ Footnote 36 ] Indeed, in some respects the substantive right at issue may be better viewed as a property right. Petitioners wish to acquire certain types of firearms, or to keep certain firearms they have previously acquired. Interests in the possession of chattels have traditionally been viewed as property interests subject to definition and regulation by the States. Cf. Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection , 560 U. S. ___, ___ (2010) (slip op., at 1) (opinion of Scalia, J.) (“Generally speaking, state law defines property interests”). Under that tradition, Chicago’s ordinance is unexceptional.[ Footnote 37 ] The liberty interest asserted by petitioners is also dissimilar from those we have recognized in its capacity to undermine the security of others. To be sure, some of the Bill of Rights’ procedural guarantees may place “restrictions on law enforcement” that have “controversial public safety implications.” Ante , at 36 (plurality opinion); see also ante , at 9 (opinion of Scalia, J.). But those implications are generally quite attenuated. A defendant’s invocation of his right to remain silent, to confront a witness, or to exclude certain evidence cannot directly cause any threat. The defendant’s liberty interest is constrained by (and is itself a constraint on) the adjudicatory process. The link between handgun ownership and public safety is much tighter. The handgun is itself a tool for crime; the handgun’s bullets are the violence. Similarly, it is undeniable that some may take profound offense at a remark made by the soapbox speaker, the practices of another religion, or a gay couple’s choice to have intimate relations. But that offense is moral, psychological, or theological in nature; the actions taken by the rights-bearers do not actually threaten the physical safety of any other person.[ Footnote 38 ] Firearms may be used to kill another person. If a legislature’s response to dangerous weapons ends up impinging upon the liberty of any individuals in pursuit of the greater good, it invariably does so on the basis of more than the majority’s “ ‘own moral code,’ ” Lawrence , 539 U. S., at 571 (quoting Casey , 505 U. S., at 850). While specific policies may of course be misguided, gun control is an area in which it “is quite wrong … to assume that regulation and liberty occupy mutually exclusive zones—that as one expands, the other must contract.” Stevens, 41 U. Miami L. Rev., at 280. Third, the experience of other advanced democracies, including those that share our British heritage, undercuts the notion that an expansive right to keep and bear arms is intrinsic to ordered liberty. Many of these countries place restrictions on the possession, use, and carriage of firearms far more onerous than the restrictions found in this Nation. See Municipal Respondents’ Brief 21–23 (discussing laws of England, Canada, Australia, Japan, Denmark, Finland, Luxembourg, and New Zealand). That the United States is an international outlier in the permissiveness of its approach to guns does not suggest that our laws are bad laws. It does suggest that this Court may not need to assume responsibility for making our laws still more permissive. Admittedly, these other countries differ from ours in many relevant respects, including their problems with violent crime and the traditional role that firearms have played in their societies. But they are not so different from the United States that we ought to dismiss their experience entirely. Cf. ante , at 34–35 (plurality opinion); ante , at 10–11 (opinion of Scalia, J.). The fact that our oldest allies have almost uniformly found it appropriate to regulate firearms extensively tends to weaken petitioners’ submission that the right to possess a gun of one’s choosing is fundamental to a life of liberty. While the “American perspective” must always be our focus, ante , at 37, 44 (plurality opinion), it is silly—indeed, arrogant—to think we have nothing to learn about liberty from the billions of people beyond our borders. Fourth, the Second Amendment differs in kind from the Amendments that surround it, with the consequence that its inclusion in the Bill of Rights is not merely unhelpful but positively harmful to petitioners’ claim. Generally, the inclusion of a liberty interest in the Bill of Rights points toward the conclusion that it is of fundamental significance and ought to be enforceable against the States. But the Second Amendment plays a peculiar role within the Bill, as announced by its peculiar opening clause.[ Footnote 39 ] Even accepting the Heller Court’s view that the Amendment protects an individual right to keep and bear arms disconnected from militia service, it remains undeniable that “the purpose for which the right was codified” was “to prevent elimination of the militia.” Heller , 554 U. S., at ___ (slip op., at 26); see also United States v. Miller , 307 U. S. 174 , 178 (1939) (Second Amendment was enacted “[w]ith obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces”). It was the States, not private persons, on whose immediate behalf the Second Amendment was adopted. Notwithstanding the Heller Court’s efforts to write the Second Amendment’s preamble out of the Constitution, the Amendment still serves the structural function of protecting the States from encroachment by an overreaching Federal Government. The Second Amendment, in other words, “is a federalism provision,” Elk Grove Unified School Dist. v. Newdow , 542 U. S. 1 , 45 (2004) (Thomas, J., concurring in judgment). It is directed at preserving the autonomy of the sovereign States, and its logic therefore “resists” incorporation by a federal court against the States. Ibid. No one suggests that the Tenth Amendment, which provides that powers not given to the Federal Government remain with “the States,” applies to the States; such a reading would border on incoherent, given that the Tenth Amendment exists (in significant part) to safeguard the vitality of state governance. The Second Amendment is no different.[ Footnote 40 ] The Court is surely correct that Americans’ conceptions of the Second Amendment right evolved over time in a more individualistic direction; that Members of the Reconstruction Congress were urgently concerned about the safety of the newly freed slaves; and that some Members believed that, following ratification of the Fourteenth Amendment, the Second Amendment would apply to the States. But it is a giant leap from these data points to the conclusion that the Fourteenth Amendment “incorporated” the Second Amendment as a matter of original meaning or postenactment interpretation. Consider, for example, that the text of the Fourteenth Amendment says nothing about the Second Amendment or firearms; that there is substantial evidence to suggest that, when the Reconstruction Congress enacted measures to ensure newly freed slaves and Union sympathizers in the South enjoyed the right to possess firearms, it was motivated by antidiscrimination and equality concerns rather than arms-bearing concerns per se;[ Footnote 41 ] that many contemporaneous courts and commentators did not understand the Fourteenth Amendment to have had an “incorporating” effect; and that the States heavily regulated the right to keep and bear arms both before and after the Amendment’s passage. The Court’s narrative largely elides these facts. The complications they raise show why even the most dogged historical inquiry into the “fundamentality” of the Second Amendment right (or any other) necessarily entails judicial judgment—and therefore judicial discretion—every step of the way. I accept that the evolution in Americans’ understanding of the Second Amendment may help shed light on the question whether a right to keep and bear arms is comprised within Fourteenth Amendment “liberty.” But the reasons that motivated the Framers to protect the ability of militiamen to keep muskets available for military use when our Nation was in its infancy, or that motivated the Reconstruction Congress to extend full citizenship to the freedmen in the wake of the Civil War, have only a limited bearing on the question that confronts the homeowner in a crime-infested metropolis today. The many episodes of brutal violence against African-Americans that blight our Nation’s history, see ante , at 23–29 (majority opinion); ante , at 41–44, 53–55 (Thomas, J., concurring in part and concurring in judgment), do not suggest that every American must be allowed to own whatever type of firearm he or she desires—just that no group of Americans should be systematically and discriminatorily disarmed and left to the mercy of racial terrorists. And the fact that some Americans may have thought or hoped that the Fourteenth Amendment would nationalize the Second Amendment hardly suffices to justify the conclusion that it did. Fifth, although it may be true that Americans’ interest in firearm possession and state-law recognition of that interest are “deeply rooted” in some important senses, ante , at 19 (internal quotation marks omitted), it is equally true that the States have a long and unbroken history of regulating firearms. The idea that States may place substantial restrictions on the right to keep and bear arms short of complete disarmament is, in fact, far more entrenched than the notion that the Federal Constitution protects any such right. Federalism is a far “older and more deeply rooted tradition than is a right to carry,” or to own, “any particular kind of weapon.” 567 F. 3d 856, 860 (CA7 2009) (Easterbrook, C. J.). From the early days of the Republic, through the Reconstruction era, to the present day, States and municipalities have placed extensive licensing requirements on firearm acquisition, restricted the public carriage of weapons, and banned altogether the possession of especially dangerous weapons, including handguns. See Heller , 554 U. S., at ___ (Breyer, J., dissenting) (slip op., at 4–7) (reviewing colonial laws); Cornell & DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L. Rev. 487, 502–516 (2004) (reviewing pre-Civil War laws); Brief for 34 Professional Historians and Legal Historians as Amici Curiae 4–22 (reviewing Reconstruction-era laws); Winkler, Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683, 711–712, 716–726 (2007) (reviewing 20th-century laws); see generally post , at 21–31.[ Footnote 42 ] After the 1860’s just as before, the state courts almost uniformly upheld these measures: Apart from making clear that all regulations had to be constructed and applied in a nondiscriminatory manner, the Fourteenth Amendment hardly made a dent. And let us not forget that this Court did not recognize any non-militia-related interests under the Second Amendment until two Terms ago, in Heller . Petitioners do not dispute the city of Chicago’s observation that “[n]o other substantive Bill of Rights protection has been regulated nearly as intrusively” as the right to keep and bear arms. Municipal Respondents’ Brief 25.[ Footnote 43 ] This history of intrusive regulation is not surprising given that the very text of the Second Amendment calls out for regulation,[ Footnote 44 ] and the ability to respond to the social ills associated with dangerous weapons goes to the very core of the States’ police powers. Our precedent is crystal-clear on this latter point. See, e.g., Gonzales v. Oregon , 546 U. S. 243 , 270 (2006) (“[T]he structure and limitations of federalism … allow the States great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons” (internal quotation marks omitted)); United States v. Morrison , 529 U. S. 598 , 618 (2000) (“[W]e can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims”); Kelley v. Johnson , 425 U. S. 238 , 247 (1976) (“The promotion of safety of persons and property is unquestionably at the core of the State’s police power”); Automobile Workers v. Wisconsin Employment Relations Bd. , 351 U. S. 266 , 274 (1956) (“The dominant interest of the State in preventing violence and property damage cannot be questioned. It is a matter of genuine local concern”). Compared with today’s ruling, most if not all of this Court’s decisions requiring the States to comply with other provisions in the Bill of Rights did not exact nearly so heavy a toll in terms of state sovereignty. Finally, even apart from the States’ long history of firearms regulation and its location at the core of their police powers, this is a quintessential area in which federalism ought to be allowed to flourish without this Court’s meddling. Whether or not we can assert a plausible constitutional basis for intervening, there are powerful reasons why we should not do so. Across the Nation, States and localities vary significantly in the patterns and problems of gun violence they face, as well as in the traditions and cultures of lawful gun use they claim. Cf. post , at 16–17. The city of Chicago, for example, faces a pressing challenge in combating criminal street gangs. Most rural areas do not. The city of Chicago has a high population density, which increases the potential for a gunman to inflict mass terror and casualties. Most rural areas do not.[ Footnote 45 ] The city of Chicago offers little in the way of hunting opportunities. Residents of rural communities are, one presumes, much more likely to stock the dinner table with game they have personally felled. Given that relevant background conditions diverge so much across jurisdictions, the Court ought to pay particular heed to state and local legislatures’ “right to experiment.” New State Ice , 285 U. S., at 311 (Brandeis, J., dissenting). So long as the regulatory measures they have chosen are not “arbitrary, capricious, or unreasonable,” we should be allowing them to “try novel social and economic” policies. Ibid. It “is more in keeping … with our status as a court in a federal system,” under these circumstances, “to avoid imposing a single solution … from the top down.” Smith v. Robbins , 528 U. S. 259 , 275 (2000). It is all the more unwise for this Court to limit experimentation in an area “where the best solution is far from clear.” United States v. Lopez , 514 U. S. 549 , 581 (1995) (Kennedy, J., concurring). Few issues of public policy are subject to such intensive and rapidly developing empirical controversy as gun control. See Heller , 554 U. S., at ___ (slip op., at 20–25) (Breyer, J., dissenting). Chicago’s handgun ban, in itself, has divided researchers. Compare Brief for Professors of Criminal Justice as Amici Curiae (arguing that ordinance has been effective at reducing gun violence), with Brief for International Law Enforcement Educators and Trainers Association et al. as Amici Curiae 17–26 (arguing that ordinance has been a failure).[ Footnote 46 ] Of course, on some matters the Constitution requires that we ignore such pragmatic considerations. But the Constitution’s text, history, and structure are not so clear on the matter before us—as evidenced by the groundbreaking nature of today’s fractured decision—and this Court lacks both the technical capacity and the localized expertise to assess “the wisdom, need, and propriety” of most gun-control measures. Griswold , 381 U. S., at 482.[ Footnote 47 ] Nor will the Court’s intervention bring any clarity to this enormously complex area of law. Quite to the contrary, today’s decision invites an avalanche of litigation that could mire the federal courts in fine-grained determinations about which state and local regulations comport with the Heller right—the precise contours of which are far from pellucid—under a standard of review we have not even established. See post , at 12–15. The plurality’s “assuranc[e]” that “incorporation does not imperil every law regulating firearms,” ante , at 40, provides only modest comfort. For it is also an admission of just how many different types of regulations are potentially implicated by today’s ruling, and of just how ad hoc the Court’s initial attempt to draw distinctions among them was in Heller . The practical significance of the proposition that “the Second Amendment right is fully applicable to the States,” ante , at 1 (majority opinion), remains to be worked out by this Court over many, many years. Furthermore, and critically, the Court’s imposition of a national standard is still more unwise because the elected branches have shown themselves to be perfectly capable of safeguarding the interest in keeping and bearing arms. The strength of a liberty claim must be assessed in connection with its status in the democratic process. And in this case, no one disputes “that opponents of [gun] control have considerable political power and do not seem to be at a systematic disadvantage in the democratic process,” or that “the widespread commitment to an individual right to own guns … operates as a safeguard against excessive or unjustified gun control laws.”[ Footnote 48 ] Sunstein, Second Amendment Minimalism: Heller as Griswold , 122 Harv. L. Rev. 246, 260 (2008). Indeed, there is a good deal of evidence to suggest that, if anything, American lawmakers tend to under regulate guns, relative to the policy views expressed by majorities in opinion polls. See K. Goss, Disarmed: The Missing Movement for Gun Control in America 6 (2006). If a particular State or locality has enacted some “improvident” gun-control measures, as petitioners believe Chicago has done, there is no apparent reason to infer that the mistake will not “eventually be rectified by the democratic process.” Vance v. Bradley , 440 U. S. 93 , 97 (1979). This is not a case, then, that involves a “special condition” that “may call for a correspondingly more searching judicial inquiry.” Carolene Products , 304 U. S., at 153, n. 4. Neither petitioners nor those most zealously committed to their views represent a group or a claim that is liable to receive unfair treatment at the hands of the majority. On the contrary, petitioners’ views are supported by powerful participants in the legislative process. Petitioners have given us no reason to believe that the interest in keeping and bearing arms entails any special need for judicial lawmaking, or that federal judges are more qualified to craft appropriate rules than the people’s elected representatives. Having failed to show why their asserted interest is intrinsic to the concept of ordered liberty or vulnerable to maltreatment in the political arena, they have failed to show why “the word liberty in the Fourteenth Amendment” should be “held to prevent the natural outcome of a dominant opinion” about how to deal with the problem of handgun violence in the city of Chicago. Lochner , 198 U. S., at 76 (Holmes, J., dissenting). VI The preceding sections have already addressed many of the points made by Justice Scalia in his concurrence. But in light of that opinion’s fixation on this one, it is appropriate to say a few words about Justice Scalia’s broader claim: that his preferred method of substantive due process analysis, a method “that makes the traditions of our people paramount,” ante , at 1, is both more restrained and more facilitative of democracy than the method I have outlined. Colorful as it is, Justice Scalia’s critique does not have nearly as much force as does his rhetoric. His theory of substantive due process, moreover, comes with its own profound difficulties. Although Justice Scalia aspires to an “objective,” “neutral” method of substantive due process analysis, ante , at 10, his actual method is nothing of the sort. Under the “historically focused” approach he advocates, ante , at 13, numerous threshold questions arise before one ever gets to the history. At what level of generality should one frame the liberty interest in question? See n. 25, supra . What does it mean for a right to be “ ‘deeply rooted in this Nation’s history and tradition,’ ” ante , at 3 (quoting Glucksberg , 521 U. S., at 721)? By what standard will that proposition be tested? Which types of sources will count, and how will those sources be weighed and aggregated? There is no objective, neutral answer to these questions. There is not even a theory—at least, Justice Scalia provides none—of how to go about answering them. Nor is there any escaping Palko , it seems. To qualify for substantive due process protection, Justice Scalia has stated, an asserted liberty right must be not only deeply rooted in American tradition, “but it must also be implicit in the concept of ordered liberty.” Lawrence , 539 U. S., at 593, n. 3 (dissenting opinion) (internal quotation marks omitted). Applying the latter, Palko -derived half of that test requires precisely the sort of reasoned judgment—the same multifaceted evaluation of the right’s contours and consequences—that Justice Scalia mocks in his concurrence today. So does applying the first half. It is hardly a novel insight that history is not an objective science, and that its use can therefore “point in any direction the judges favor,” ante , at 14 (opinion of Scalia, J.). Yet 21 years after the point was brought to his attention by Justice Brennan, Justice Scalia remains “oblivious to the fact that [the concept of ‘tradition’] can be as malleable and elusive as ‘liberty’ itself.” Michael H. , 491 U. S., at 137 (dissenting opinion). Even when historical analysis is focused on a discrete proposition, such as the original public meaning of the Second Amendment, the evidence often points in different directions. The historian must choose which pieces to credit and which to discount, and then must try to assemble them into a coherent whole. In Heller , Justice Scalia preferred to rely on sources created much earlier and later in time than the Second Amendment itself, see, e.g., 554 U. S., at ___ (slip op., at 4–5) (consulting late 19th-century treatises to ascertain how Americans would have read the Amendment’s preamble in 1791); I focused more closely on sources contemporaneous with the Amendment’s drafting and ratification.[ Footnote 49 ] No mechanical yardstick can measure which of us was correct, either with respect to the materials we chose to privilege or the insights we gleaned from them. The malleability and elusiveness of history increase exponentially when we move from a pure question of original meaning, as in Heller , to Justice Scalia’s theory of substantive due process. At least with the former sort of question, the judge can focus on a single legal provision; the temporal scope of the inquiry is (or should be) relatively bounded; and there is substantial agreement on what sorts of authorities merit consideration. With Justice Scalia’s approach to substantive due process, these guideposts all fall away. The judge must canvas the entire landscape of American law as it has evolved through time, and perhaps older laws as well, see, e.g., Lawrence , 539 U. S., at 596 (Scalia, J., dissenting) (discussing “ ‘ancient roots’ ” of proscriptions against sodomy (quoting Bowers v. Hardwick , 478 U. S. 186 , 192 (1986)), pursuant to a standard (deeply rootedness) that has never been defined. In conducting this rudderless, panoramic tour of American legal history, the judge has more than ample opportunity to “look over the heads of the crowd and pick out [his] friends,” Roper v. Simmons , 543 U. S. 551 , 617 (2005) (Scalia, J., dissenting). My point is not to criticize judges’ use of history in general or to suggest that it always generates indeterminate answers; I have already emphasized that historical study can discipline as well as enrich substantive due process analysis. My point is simply that Justice Scalia’s defense of his method, which holds out objectivity and restraint as its cardinal—and, it seems, only—virtues, is unsatisfying on its own terms. For a limitless number of subjective judgments may be smuggled into his historical analysis. Worse, they may be buried in the analysis. At least with my approach, the judge’s cards are laid on the table for all to see, and to critique. The judge must exercise judgment, to be sure. When answering a constitutional question to which the text provides no clear answer, there is always some amount of discretion; our constitutional system has always depended on judges’ filling in the document’s vast open spaces.[ Footnote 50 ] But there is also transparency. Justice Scalia’s approach is even less restrained in another sense: It would effect a major break from our case law outside of the “incorporation” area. Justice Scalia does not seem troubled by the fact that his method is largely inconsistent with the Court’s canonical substantive due process decisions, ranging from Meyer , 262 U. S. 390 , and Pierce , 268 U. S. 510 , in the 1920’s, to Griswold , 381 U. S. 479 , in the 1960’s, to Lawrence , 539 U. S. 558 , in the 2000’s. To the contrary, he seems to embrace this dissonance. My method seeks to synthesize dozens of cases on which the American people have relied for decades. Justice Scalia’s method seeks to vaporize them. So I am left to wonder, which of us is more faithful to this Nation’s constitutional history? And which of us is more faithful to the values and commitments of the American people, as they stand today? In 1967, when the Court held in Loving , 388 U. S. 1 , that adults have a liberty-based as well as equality-based right to wed persons of another race, interracial marriage was hardly “deeply rooted” in American tradition. Racial segregation and subordination were deeply rooted. The Court’s substantive due process holding was nonetheless correct—and we should be wary of any interpretive theory that implies, emphatically, that it was not. Which leads me to the final set of points I wish to make: Justice Scalia’s method invites not only bad history, but also bad constitutional law. As I have already explained, in evaluating a claimed liberty interest (or any constitutional claim for that matter), it makes perfect sense to give history significant weight: Justice Scalia’s position is closer to my own than he apparently feels comfortable acknowledging. But it makes little sense to give history dispositive weight in every case. And it makes especially little sense to answer questions like whether the right to bear arms is “fundamental” by focusing only on the past, given that both the practical significance and the public understandings of such a right often change as society changes. What if the evidence had shown that, whereas at one time firearm possession contributed substantially to personal liberty and safety, nowadays it contributes nothing, or even tends to undermine them? Would it still have been reasonable to constitutionalize the right? The concern runs still deeper. Not only can historical views be less than completely clear or informative, but they can also be wrong. Some notions that many Americans deeply believed to be true, at one time, turned out not to be true. Some practices that many Americans believed to be consistent with the Constitution’s guarantees of liberty and equality, at one time, turned out to be inconsistent with them. The fact that we have a written Constitution does not consign this Nation to a static legal existence. Although we should always “pa[y] a decent regard to the opinions of former times,” it “is not the glory of the people of America” to have “suffered a blind veneration for antiquity.” The Federalist No. 14, p. 99, 104 (C. Rossiter ed. 1961) (J. Madison). It is not the role of federal judges to be amateur historians. And it is not fidelity to the Constitution to ignore its use of deliberately capacious language, in an effort to transform foundational legal commitments into narrow rules of decision. As for “the democratic process,” ante , at 14, 15, a method that looks exclusively to history can easily do more harm than good. Just consider this case. The net result of Justice Scalia’s supposedly objective analysis is to vest federal judges—ultimately a majority of the judges on this Court—with unprecedented lawmaking powers in an area in which they have no special qualifications, and in which the give-and-take of the political process has functioned effectively for decades. Why this “intrudes much less upon the democratic process,” ante , at 14, than an approach that would defer to the democratic process on the regulation of firearms is, to say the least, not self-evident. I cannot even tell what, under Justice Scalia’s view, constitutes an “intrusion.” It is worth pondering, furthermore, the vision of democracy that underlies Justice Scalia’s critique. Because very few of us would welcome a system in which majorities or powerful interest groups always get their way. Under our constitutional scheme, I would have thought that a judicial approach to liberty claims such as the one I have outlined—an approach that investigates both the intrinsic nature of the claimed interest and the practical significance of its judicial enforcement, that is transparent in its reasoning and sincere in its effort to incorporate constraints, that is guided by history but not beholden to it, and that is willing to protect some rights even if they have not already received uniform protection from the elected branches—has the capacity to improve, rather than “[im]peril,” ante , at 15, our democracy. It all depends on judges’ exercising careful, reasoned judgment. As it always has, and as it always will. VII The fact that the right to keep and bear arms appears in the Constitution should not obscure the novelty of the Court’s decision to enforce that right against the States. By its terms, the Second Amendment does not apply to the States; read properly, it does not even apply to individuals outside of the militia context. The Second Amendment was adopted to protect the States from federal encroachment. And the Fourteenth Amendment has never been understood by the Court to have “incorporated” the entire Bill of Rights. There was nothing foreordained about today’s outcome. Although the Court’s decision in this case might be seen as a mere adjunct to its decision in Heller , the consequences could prove far more destructive—quite literally—to our Nation’s communities and to our constitutional structure. Thankfully, the Second Amendment right identified in Heller and its newly minted Fourteenth Amendment analogue are limited, at least for now, to the home. But neither the “assurances” provided by the plurality, ante , at 40, nor the many historical sources cited in its opinion should obscure the reality that today’s ruling marks a dramatic change in our law—or that the Justices who have joined it have brought to bear an awesome amount of discretion in resolving the legal question presented by this case. I would proceed more cautiously. For the reasons set out at length above, I cannot accept either the methodology the Court employs or the conclusions it draws. Although impressively argued, the majority’s decision to overturn more than a century of Supreme Court precedent and to unsettle a much longer tradition of state practice is not, in my judgment, built “upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms.” Griswold , 381 U. S., at 501 (Harlan, J., concurring in judgment). Accordingly, I respectfully dissent. Footnote 1 See United States v. Cruikshank , 92 U. S. 542 , 553 (1876); Presser v. Illinois , 116 U. S. 252 , 265 (1886); Miller v. Texas , 153 U. S. 535 , 538 (1894). This is not to say that I agree with all other aspects of these decisions. Footnote 2 Cf., e.g., Currie, The Reconstruction Congress, 75 U. Chi. L. Rev. 383, 406 (2008) (finding “some support in the legislative history for no fewer than four interpretations” of the Privileges or Immunities Clause, two of which contradict petitioners’ submission); Green, The Original Sense of the (Equal) Protection Clause: Subsequent Interpretation and Application, 19 Geo. Mason U. Civ. Rights L. J. 219, 255–277 (2009) (providing evidence that the Clause was originally conceived of as an antidiscrimination measure, guaranteeing equal rights for black citizens); Rosenthal, The New Originalism Meets the Fourteenth Amendment: Original Public Meaning and the Problem of Incorporation, 18 J. Contemporary Legal Issues 361 (2009) (detailing reasons to doubt that the Clause was originally understood to apply the Bill of Rights to the States); Hamburger, Privileges or Immunities, 105 Nw. U. L. Rev. (forthcoming 2011), online at http://ssrn.com/abstract=1557870 (as visited June 25, 2010, and available in Clerk of Court’s case file) (arguing that the Clause was meant to ensure freed slaves were afforded “the Privileges and Immunities” specified in Article IV, §2, cl. 1 of the Constitution). Although he urges its elevation in our doctrine, Justice Thomas has acknowledged that, in seeking to ascertain the original meaning of the Privileges or Immunities Clause, “[l]egal scholars agree on little beyond the conclusion that the Clause does not mean what the Court said it meant in 1873.” Saenz v. Roe , 526 U. S. 489 , 522, n. 1 (1999) (dissenting opinion); accord, ante , at 10 (plurality opinion). Footnote 3 It is no secret that the desire to “displace” major “portions of our equal protection and substantive due process jurisprudence” animates some of the passion that attends this interpretive issue. Saenz , 526 U. S., at 528 (Thomas, J., dissenting). Footnote 4 Wilkinson, The Fourteenth Amendment Privileges or Immunities Clause, 12 Harv. J. L. & Pub. Pol’y 43, 52 (1989). Judge Wilkinson’s point is broader than the privileges or immunities debate. As he observes, “there may be more structure imposed by provisions subject to generations of elaboration and refinement than by a provision in its pristine state. The fortuities of uneven constitutional development must be respected, not cast aside in the illusion of reordering the landscape anew.” Id., at 51–52; see also Washington v. Glucksberg , 521 U. S. 702 , 759, n. 6 (1997) (Souter, J., concurring in judgment) (acknowledging that, “[t]o a degree,” the Slaughter-House “decision may have led the Court to look to the Due Process Clause as a source of substantive rights”). Footnote 5 See, e.g., Ely, The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process, 16 Const. Commentary 315, 326–327 (1999) (concluding that founding-era “American statesmen accustomed to viewing due process through the lens of [Sir Edward] Coke and [William] Blackstone could [not] have failed to understand due process as encompassing substantive as well as procedural terms”); Gedicks, An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment, 58 Emory L. J. 585, 594 (2009) (arguing “that one widely shared understanding of the Due Process Clause of the Fifth Amendment in the late eighteenth century encompassed judicial recognition and enforcement of unenumerated substantive rights”); Maltz, Fourteenth Amendment Concepts in the Antebellum Era, 32 Am. J. Legal Hist. 305, 317–318 (1988) (explaining that in the antebellum era a “substantial number of states,” as well as antislavery advocates, “imbued their [constitutions’] respective due process clauses with a substantive content”); Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221, 1297, n. 247 (1995) (“[T]he historical evidence points strongly toward the conclusion that, at least by 1868 even if not in 1791, any state legislature voting to ratify a constitutional rule banning government deprivations of ‘life, liberty, or property, without due process of law’ would have understood that ban as having substantive as well as procedural content, given that era’s premise that, to qualify as ‘law,’ an enactment would have to meet substantive requirements of rationality, non-oppressiveness, and evenhandedness”); see also Stevens, The Third Branch of Liberty, 41 U. Miami L. Rev. 277, 290 (1986) (“In view of the number of cases that have given substantive content to the term liberty, the burden of demonstrating that this consistent course of decision was unfaithful to the intent of the Framers is surely a heavy one”). Footnote 6 1 L. Tribe, American Constitutional Law §8–1, p. 1335 (3d ed. 2000). Footnote 7 The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Footnote 8 Stevens, The Bill of Rights: A Century of Progress, 59 U. Chi. L. Rev. 13, 20 (1992); see Fitzgerald , 523 F. 2d, at 719–720; Stevens, 41 U. Miami L. Rev., at 286–289; see also Greene, The So-Called Right to Privacy, 43 U. C. D. L. Rev. 715, 725–731 (2010). Footnote 9 See also Gitlow , 268 U. S., at 672 (Holmes, J., dissenting) (“The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word ‘liberty’ as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States”). Subsequent decisions repeatedly reaffirmed that persons hold free speech rights against the States on account of the Fourteenth Amendment’s liberty clause, not the First Amendment per se . See, e.g., NAACP v. Alabama ex rel. Patterson , 357 U. S. 449 , 460, 466 (1958); Cantwell v. Connecticut , 310 U. S. 296 , 303 (1940); Thornhill v. Alabama , 310 U. S. 88 , 95, and n. 7 (1940); see also McIntyre v. Ohio Elections Comm’n , 514 U. S. 334 , 336, n. 1 (1995) (“The term ‘liberty’ in the Fourteenth Amendment to the Constitution makes the First Amendment applicable to the States”). Classic opinions written by Justice Cardozo and Justice Frankfurter endorsed the same basic approach to “incorporation,” with the Fourteenth Amendment taken as a distinct source of rights independent from the first eight Amendments. Palko v. Connecticut , 302 U. S. 319 , 322–328 (1937) (opinion for the Court by Cardozo, J.); Adamson v. California , 332 U. S. 46 , 59–68 (1947) (Frankfurter, J., concurring). Footnote 10 See also Wolf v. Colorado , 338 U. S. 25 , 26 (1949) (“The notion that the ‘due process of law’ guaranteed by the Fourteenth Amendment is shorthand for the first eight amendments of the Constitution … has been rejected by this Court again and again, after impressive consideration. … The issue is closed”). Wolf ’s holding on the exclusionary rule was overruled by Mapp v. Ohio , 367 U. S. 643 (1961), but the principle just quoted has never been disturbed. It is notable that Mapp , the case that launched the modern “doctrine of ad hoc ,” “ ‘jot-for-jot’ ” incorporation, Williams v. Florida , 399 U. S. 78 , 130–131 (1970) (Harlan, J., concurring in result), expressly held “that the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments.” 367 U. S., at 657 (emphasis added). Footnote 11 I can hardly improve upon the many passionate defenses of this position that Justice Harlan penned during his tenure on the Court. See Williams , 399 U. S., at 131, n. 14 (opinion concurring in result) (cataloguing opinions). Footnote 12 See, e.g., Pet. for Cert. in Bowen v. Oregon , O. T. 2009, No. 08–1117, p. i, cert. denied, 558 U. S. ___ (2009) (request to overrule Apodaca ); Pet. for Cert. in Lee v. Louisiana , O. T. 2008, No. 07–1523, p. i, cert. denied, 555 U. S. ___ (2008) (same); Pet. for Cert. in Logan v. Florida , O. T. 2007, No. 07–7264, pp. 14–19, cert. denied, 552 U. S. 1189 (2008) (request to overrule Williams ). Footnote 13 The vast majority of States already recognize a right to keep and bear arms in their own constitutions, see Volokh, State Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Pol. 191 (2006) (cataloguing provisions); Brief for Petitioners 69 (observing that “[t]hese Second Amendment analogs are effective and consequential”), but the States vary widely in their regulatory schemes, their traditions and cultures of firearm use, and their problems relating to gun violence. If federal and state courts must harmonize their review of gun-control laws under the Second Amendment, the resulting jurisprudence may prove significantly more deferential to those laws than the status quo ante . Once it has been established that a single legal standard must govern nationwide, federal courts will face a profound pressure to reconcile that standard with the diverse interests of the States and their long history of regulating in this sensitive area. Cf. Williams , 399 U. S., at 129–130 (Harlan, J., concurring in result) (noting “ ‘backlash’ ” potential of jot-for-jot incorporation); Grant, Felix Frankfurter: A Dissenting Opinion, 12 UCLA L. Rev. 1013, 1038 (1965) (“If the Court will not reduce the requirements of the fourteenth amendment below the federal gloss that now overlays the Bill of Rights, then it will have to reduce that gloss to the point where the states can live with it”). Amici argue persuasively that, post-“incorporation,” federal courts will have little choice but to fix a highly flexible standard of review if they are to avoid leaving federalism and the separation of powers—not to mention gun policy—in shambles. See Brief for Brady Center to Prevent Gun Violence et al. as Amici Curiae (hereinafter Brady Center Brief). Footnote 14 Justice Cardozo’s test itself built upon an older line of decisions. See, e.g., Chicago, B. & Q. R. Co. v. Chicago , 166 U. S. 226 , 237 (1897) (discussing “limitations on [state] power, which grow out of the essential nature of all free governments [and] implied reservations of individual rights, . . . and which are respected by all governments entitled to the name” (internal quotation marks omitted)). Footnote 15 See Palko , 302 U. S., at 326, n. 3; see also, e.g., Lawrence v. Texas , 539 U. S. 558 , 572–573, 576–577 (2003); Glucksberg , 521 U. S., at 710–711, and n. 8. Footnote 16 I acknowledge that some have read the Court’s opinion in Glucksberg as an attempt to move substantive due process analysis, for all purposes, toward an exclusively historical methodology—and thereby to debilitate the doctrine. If that were ever Glucksberg ’s aspiration, Lawrence plainly renounced it. As between Glucksberg and Lawrence , I have little doubt which will prove the more enduring precedent. Footnote 17 The Court almost never asked whether the guarantee in question was deeply rooted in founding-era practice. See Brief for Respondent City of Chicago et al. 31, n. 17 (hereinafter Municipal Respondents’ Brief) (noting that only two opinions extensively discussed such history). Footnote 18 Cf. Robinson v. California , 370 U. S. 660 , 666–668 (1962) (invalidating state statute criminalizing narcotics addiction as “cruel and unusual punishment in violation of the Fourteenth Amendment” based on nature of the alleged “ ‘crime,’ ” without historical analysis); Brief for Respondent National Rifle Association of America, Inc., et al. 29 (noting that “lynchpin” of incorporation test has always been “the importance of the right in question to … ‘liberty’ ” and to our “system of government”). Footnote 19 I do not mean to denigrate this function, or to imply that only “ new rights”—whatever one takes that term to mean—ought to “get in” the substantive due process door. Ante , at 5 (Scalia, J., concurring). Footnote 20 See Bowers v. Hardwick , 478 U. S. 186 , 199 (1986) (Blackmun, J., dissenting) (“Like Justice Holmes, I believe that ‘[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past’ ” (quoting Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897))). Footnote 21 Justice Kennedy has made the point movingly: “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Lawrence , 539 U. S., at 578–579. Footnote 22 Contrary to Justice Scalia’s suggestion, I emphatically do not believe that “only we judges” can interpret the Fourteenth Amendment, ante , at 4, or any other constitutional provision. All Americans can; all Americans should. I emphatically do believe that we judges must exercise—indeed, cannot help but exercise—our own reasoned judgment in so doing. Justice Scalia and I are on common ground in maintaining that courts should be “guided by what the American people throughout our history have thought.” Ibid. Where we part ways is in his view that courts should be guided only by historical considerations. There is, moreover, a tension between Justice Scalia’s concern that “courts have the last word” on constitutional questions, ante , at 3, n. 2, on the one hand, and his touting of the Constitution’s Article V amendment process, ante , at 3, on the other. The American people can of course reverse this Court’s rulings through that same process. Footnote 23 In assessing concerns about the “open-ended[ness]” of this area of law, Collins , 503 U. S., at 125, one does well to keep in view the malleability not only of the Court’s “deeply rooted”/fundamentality standard but also of substantive due process’ constitutional cousin, “equal protection” analysis. Substantive due process is sometimes accused of entailing an insufficiently “restrained methodology.” Glucksberg , 521 U. S., at 721. Yet “the word ‘liberty’ in the Due Process Clause seems to provide at least as much meaningful guidance as does the word ‘equal’ in the Equal Protection Clause.” Post, The Supreme Court 2002 Term—Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 Harv. L. Rev. 4, 94, n. 440 (2003). And “[i]f the objection is that the text of the [Due Process] Clause warrants providing only protections of process rather than protections of substance,” “it is striking that even those Justices who are most theoretically opposed to substantive due process, like Scalia and Rehnquist, are also nonetheless enthusiastic about applying the equal protection component of the Due Process Clause of the Fifth Amendment to the federal government.” Ibid. (citing Adarand Constructors, Inc. v. Peńa , 515 U. S. 200 , 213–231 (1995)). Footnote 24 That one eschews a comprehensive theory of liberty does not, pace Justice Scalia, mean that one lacks “a coherent theory of the Due Process Clause,” ante , at 5. It means that one lacks the hubris to adopt a rigid, context-independent definition of a constitutional guarantee that was deliberately framed in open-ended terms. Footnote 25 The notion that we should define liberty claims at the most specific level available is one of Justice Scalia’s signal contributions to the theory of substantive due process. See, e.g., Michael H. v. Gerald D. , 491 U. S. 110 , 127–128, n. 6 (1989) (opinion of Scalia, J.); ante , at 7 (opinion of Scalia, J.). By so narrowing the asserted right, this approach “loads the dice” against its recognition, Roosevelt, Forget the Fundamentals: Fixing Substantive Due Process, 8 U. Pa. J. Const. L. 983, 1002, n. 73 (2006): When one defines the liberty interest at issue in Lawrence as the freedom to perform specific sex acts, ante , at 2, the interest starts to look less compelling. The Court today does not follow Justice Scalia’s “particularizing” method, Katzenbach v. Morgan , 384 U. S. 641 , 649 (1966), as it relies on general historical references to keeping and bearing arms, without any close study of the States’ practice of regulating especially dangerous weapons. Footnote 26 In District of Columbia v. Heller , 554 U. S. ___, ___ (slip op., at 22), the Court concluded, over my dissent, that the Second Amendment confers “an individual right to keep and bear arms” disconnected from militia service. If that conclusion were wrong, then petitioners’ “incorporation” claim clearly would fail, as they would hold no right against the Federal Government to be free from regulations such as the ones they challenge. Cf. post , at 8. I do not understand petitioners or any of their amici to dispute this point. Yet even if Heller had never been decided—indeed, even if the Second Amendment did not exist—we would still have an obligation to address petitioners’ Fourteenth Amendment claim. Footnote 27 The village of Oak Park imposes more stringent restrictions that may raise additional complications. See ante , at 2 (majority opinion) (quoting Oak Park, Ill., Municipal Code §§27–2–1 (2007), 27–1–1 (2009)). The Court, however, declined to grant certiorari on the National Rifle Association’s challenge to the Oak Park restrictions. Chicago is the only defendant in this case. Footnote 28 To the extent that petitioners contend the city of Chicago’s registration requirements for firearm possessors also, and separately, violate the Constitution, that claim borders on the frivolous. Petitioners make no effort to demonstrate that the requirements are unreasonable or that they impose a severe burden on the underlying right they have asserted. Footnote 29 Members of my generation, at least, will recall the many passionate statements of this view made by the distinguished actor, Charlton Heston. Footnote 30 See Municipal Respondents’ Brief 20, n. 11 (stating that at least 156 Second Amendment challenges were brought in time between Heller ’s issuance and brief’s filing); Brady Center Brief 3 (stating that over 190 Second Amendment challenges were brought in first 18 months since Heller ); Brief for Villages of Winnetka and Skokie, Illinois, et al. as Amici Curiae 15 (stating that, in wake of Heller , municipalities have “repealed longstanding handgun laws to avoid costly litigation”). Footnote 31 See, e.g., Brief for Professors of Philosophy, Criminology, Law, and Other Fields as Amici Curiae; Brief for International Law Enforcement Educators and Trainers Association et al. as Amici Curiae 29–45; Brief for 34 California District Attorneys et al. as Amici Curiae 12–31. Footnote 32 The argument that this Court should establish any such right, however, faces steep hurdles. All 50 States already recognize self-defense as a defense to criminal prosecution, see 2 P. Robinson, Criminal Law Defenses §132, p. 96 (1984 and Supp. 2009), so this is hardly an interest to which the democratic process has been insensitive. And the States have always diverged on how exactly to implement this interest, so there is wide variety across the Nation in the types and amounts of force that may be used, the necessity of retreat, the rights of aggressors, the availability of the “castle doctrine,” and so forth. See Brief for Oak Park Citizens Committee for Handgun Control as Amicus Curiae 9–21; Brief for American Cities et al. as Amici Curiae 17–19; 2 W. LaFave, Substantive Criminal Law §10.4, pp. 142–160 (2d ed. 2003). Such variation is presumed to be a healthy part of our federalist system, as the States and localities select different rules in light of different priorities, customs, and conditions. As a historical and theoretical matter, moreover, the legal status of self-defense is far more complicated than it might first appear. We have generally understood Fourteenth Amendment “liberty” as something one holds against direct state interference, whereas a personal right of self-defense runs primarily against other individuals; absent government tyranny, it is only when the state has failed to interfere with (violent) private conduct that self-help becomes potentially necessary. Moreover, it was a basic tenet of founding-era political philosophy that, in entering civil society and gaining “the advantages of mutual commerce” and the protections of the rule of law, one had to relinquish, to a significant degree, “that wild and savage liberty” one possessed in the state of nature. 1 W. Blackstone, Commentaries *125; see also, e.g., J. Locke, Second Treatise of Civil Government §128, pp. 63–64 (J. Gough ed. 1947) (in state of nature man has power “to do whatever he thinks fit for the preservation of himself and others,” but this “he gives up when he joins in a … particular political society”); Green v. Biddle , 8 Wheat. 1, 63 (1823) (“It is a trite maxim, that man gives up a part of his natural liberty when he enters into civil society, as the price of the blessings of that state: and it may be said, with truth, that this liberty is well exchanged for the advantages which flow from law and justice”). Some strains of founding-era thought took a very narrow view of the right to armed self-defense. See, e.g., Brief of Historians on Early American Legal, Constitutional, and Pennsylvania History as Amici Curiae 6–13 (discussing Whig and Quaker theories). Just because there may be a natural or common-law right to some measure of self-defense, it hardly follows that States may not place substantial restrictions on its exercise or that this Court should recognize a constitutional right to the same. Footnote 33 The Second Amendment right identified in Heller is likewise clearly distinct from a right to protect oneself. In my view, the Court badly misconstrued the Second Amendment in linking it to the value of personal self-defense above and beyond the functioning of the state militias; as enacted, the Second Amendment was concerned with tyrants and invaders, and paradigmatically with the federal military, not with criminals and intruders. But even still, the Court made clear that self-defense plays a limited role in determining the scope and substance of the Amendment’s guarantee. The Court struck down the District of Columbia’s handgun ban not because of the utility of handguns for lawful self-defense, but rather because of their popularity for that purpose. See 554 U. S., at ___ (slip op., at 57–58). And the Court’s common-use gloss on the Second Amendment right, see id., at ___ (slip op., at 55), as well as its discussion of permissible limitations on the right, id., at ___ (slip op., at 54–55), had little to do with self-defense. Footnote 34 Brady Center Brief 11 (extrapolating from Government statistics); see also Brief for American Public Health Association et al. as Amici Curiae 6–7 (reporting estimated social cost of firearm-related violence of $100 billion per year). Footnote 35 Bogus, Gun Control and America’s Cities: Public Policy and Politics, 1 Albany Govt. L. Rev. 440, 447 (2008) (drawing on FBI data); see also Heller , 554 U. S., at ___ (slip op., at 18–19) (Breyer, J., dissenting) (providing additional statistics on handgun violence); Municipal Respondents’ Brief 13–14 (same). Footnote 36 Justice Scalia worries that there is no “objective” way to decide what is essential to a “liberty-filled” existence: Better, then, to ignore such messy considerations as how an interest actually affects people’s lives. Ante , at 10. Both the constitutional text and our cases use the term “liberty,” however, and liberty is not a purely objective concept. Substantive due process analysis does not require any “political” judgment, ibid. It does require some amount of practical and normative judgment. The only way to assess what is essential to fulfilling the Constitution’s guarantee of “liberty,” in the present day, is to provide reasons that apply to the present day. I have provided many; Justice Scalia and the Court have provided virtually none. Justice Scalia also misstates my argument when he refers to “the right to keep and bear arms,” without qualification. Ante , at 9. That is what the Second Amendment protects against Federal Government infringement. I have taken pains to show why the Fourteenth Amendment liberty interest asserted by petitioners—the interest in keeping a firearm of one’s choosing in the home—is not necessarily coextensive with the Second Amendment right. Footnote 37 It has not escaped my attention that the Due Process Clause refers to “property” as well as “liberty.” Cf. ante , at 2, n. 1, 9–10, n. 6 (opinion of Scalia, J.). Indeed, in Moore v. East Cleveland , 431 U. S. 494 (1977) (plurality opinion), I alone viewed “the critical question” as “whether East Cleveland’s housing ordinance [was] a permissible restriction on appellant’s right to use her own property as she sees fit,” id., at 513 (opinion concurring in judgment). In that case, unlike in this case, the asserted property right was coextensive with a right to organize one’s family life, and I could find “no precedent” for the ordinance at issue, which “exclude[d] any of an owner’s relatives from the group of persons who may occupy his residence on a permanent basis.” Id., at 520. I am open to property claims under the Fourteenth Amendment. This case just involves a weak one. And ever since the Court “incorporated” the more specific property protections of the Takings Clause in 1897, see Chicago, B. & Q. R. Co. , 166 U. S. 226 , substantive due process doctrine has focused on liberty. Footnote 38 Cf. Planned Parenthood of Southeastern Pa. v. Casey , 505 U. S. 833 , 913–914 (1992) (Stevens, J., concurring in part and dissenting in part). Footnote 39 The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Footnote 40 Contrary to Justice Scalia’s suggestion, this point is perfectly compatible with my opinion for the Court in Elk Grove Unified School Dist. v. Newdow , 542 U. S. 1 (2004). Cf. ante , at 11. Like the Court itself, I have never agreed with Justice Thomas’ view that the Establishment Clause is a federalism provision. But I agree with his underlying logic: If a clause in the Bill of Rights exists to safeguard federalism interests, then it makes little sense to “incorporate” it. Justice Scalia’s further suggestion that I ought to have revisited the Establishment Clause debate in this opinion, ibid. , is simply bizarre. Footnote 41 See post , at 24–25; Municipal Respondents’ Brief 62–69; Brief for 34 Professional Historians and Legal Historians as Amici Curiae 22–26; Rosenthal, Second Amendment Plumbing After Heller: Of Standards of Scrutiny, Incorporation, Well-Regulated Militias, and Criminal Street Gangs, 41 Urb. Law. 1, 73–75 (2009). The plurality insists that the Reconstruction-era evidence shows the right to bear arms was regarded as “a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner.” Ante , at 33. That may be so, but it does not resolve the question whether the Fourteenth Amendment’s Due Process Clause was originally understood to encompass a right to keep and bear arms, or whether it ought to be so construed now. Footnote 42 I am unclear what the plurality means when it refers to “the paucity of precedent sustaining bans comparable to those at issue here.” Ante , at 39. There is only one ban at issue here—the city of Chicago’s handgun prohibition—and the municipal respondents cite far more than “one case,” ibid. , from the post-Reconstruction period. See Municipal Respondents’ Brief 24–30. The evidence adduced by respondents and their amici easily establishes their contentions that the “consensus in States that recognize a firearms right is that arms possession, even in the home, is … subject to interest-balancing,” id., at 24; and that the practice of “[b]anning weapons routinely used for self-defense,” when deemed “necessary for the public welfare,” “has ample historical pedigree,” id., at 28. Petitioners do not even try to challenge these contentions. Footnote 43 I agree with Justice Scalia that a history of regulation hardly proves a right is not “of fundamental character.” Ante , at 12. An unbroken history of extremely intensive, carefully considered regulation does, however, tend to suggest that it is not. Footnote 44 The Heller majority asserted that “the adjective ‘well-regulated’ ” in the Second Amendment’s preamble “implies nothing more than the imposition of proper discipline and training.” 554 U. S., at ___ (slip op., at 23). It is far from clear that this assertion is correct. See, e.g., U. S. Const., Art. 1, §4, cl. 1; §8, cls. 3, 5, 14; §9, cl. 6; Art. 3, §2, cl. 2; Art. 4, §2, cl. 3; §3, cl. 2 (using “regulate” or “Regulation” in manner suggestive of broad, discretionary governmental authority); Art. 1, §8, cl. 16 (invoking powers of “disciplining” and “training” Militia in manner suggestive of narrower authority); Heller , 554 U. S., at ___ (slip op., at 6–7) (investigating Constitution’s separate references to “people” as clue to term’s meaning in Second Amendment); cf. Cornell & DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L. Rev. 487, 504 (2004) (“The authors of this curious interpretation of the Second Amendment have constructed a fantasy world where words mean their opposite, and regulation is really anti-regulation”). But even if the assertion were correct, the point would remain that the preamble envisions an active state role in overseeing how the right to keep and bear arms is utilized, and in ensuring that it is channeled toward productive ends. Footnote 45 Cf. Heller , 554 U. S., at ___ (slip op., at 19) (Breyer, J., dissenting) (detailing evidence showing that a “disproportionate amount of violent and property crimes occur in urban areas, and urban criminals are more likely than other offenders to use a firearm during the commission of a violent crime”). Footnote 46 The fact that Chicago’s handgun murder rate may have “actually increased since the ban was enacted,” ante , at 2 (majority opinion), means virtually nothing in itself. Countless factors unrelated to the policy may have contributed to that trend. Without a sophisticated regression analysis, we cannot even begin to speculate as to the efficacy or effects of the handgun ban. Even with such an analysis, we could never be certain as to the determinants of the city’s murder rate. Footnote 47 In some sense, it is no doubt true that the “best” solution is elusive for many “serious social problems.” Ante , at 12 (opinion of Scalia, J.). Yet few social problems have raised such heated empirical controversy as the problem of gun violence. And few, if any, of the liberty interests we have recognized under the Due Process Clause have raised as many complications for judicial oversight as the interest that is recognized today. See post , at 11–16. I agree with the plurality that for a right to be eligible for substantive due process recognition, there need not be “a ‘popular consensus’ that the right is fundamental.” Ante , at 42. In our remarkably diverse, pluralistic society, there will almost never be such uniformity of opinion. But to the extent that popular consensus is relevant, I do not agree with the Court that the amicus brief filed in this case by numerous state attorneys general constitutes evidence thereof. Ante , at 42–43. It is puzzling that so many state lawmakers have asked us to limit their option to regulate a dangerous item. Cf. post , at 9–10. Footnote 48 Likewise, no one contends that those interested in personal self-defense—every American, presumably—face any particular disadvantage in the political process. All 50 States recognize self-defense as a defense to criminal prosecution. See n. 32, supra . Footnote 49 See Heller , 554 U. S., at ___ (slip op., at 27) (Stevens, J., dissenting) (“Although it gives short shrift to the drafting history of the Second Amendment, the Court dwells at length on four other sources: the 17th-century English Bill of Rights; Blackstone’s Commentaries on the Laws of England; postenactment commentary on the Second Amendment; and post-Civil War legislative history”); see also post , at 2–5 (discussing professional historians’ criticisms of Heller ). Footnote 50 Indeed, this is truly one of our most deeply rooted legal traditions. BREYER, J., DISSENTING MCDONALD V. CHICAGO 561 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1521 OTIS McDONALD, et al., PETITIONERS v. CITY OF CHICAGO, ILLINOIS, et al. on writ of certiorari to the united states court of appeals for the seventh circuit [June 28, 2010]    Justice Breyer, with whom Justice Ginsburg and Justice Sotomayor join, dissenting.    In my view, Justice Stevens has demonstrated that the Fourteenth Amendment’s guarantee of “substantive due process” does not include a general right to keep and bear firearms for purposes of private self-defense. As he argues, the Framers did not write the Second Amendment with this objective in view. See ante, at 41–44 (dissenting opinion). Unlike other forms of substantive liberty, the carrying of arms for that purpose often puts others’ lives at risk. See ante, at 35–37. And the use of arms for private self-defense does not warrant federal constitutional protection from state regulation. See ante, at 44–51.    The Court, however, does not expressly rest its opinion upon “substantive due process” concerns. Rather, it directs its attention to this Court’s “incorporation” precedents and asks whether the Second Amendment right to private self-defense is “fundamental” so that it applies to the States through the Fourteenth Amendment. See ante, at 11–19.    I shall therefore separately consider the question of “incorporation.” I can find nothing in the Second Amendment’s text, history, or underlying rationale that could warrant characterizing it as “fundamental” insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes. Nor can I find any justification for interpreting the Constitution as transferring ultimate regulatory authority over the private uses of firearms from democratically elected legislatures to courts or from the States to the Federal Government. I therefore conclude that the Fourteenth Amendment does not “incorporate” the Second Amendment’s right “to keep and bear Arms.” And I consequently dissent. I    The Second Amendment says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Two years ago, in District of Columbia v. Heller , 554 U. S. ___ (2008), the Court rejected the pre-existing judicial consensus that the Second Amendment was primarily concerned with the need to maintain a “well regulated Militia.” See id., at ___ (Stevens, J., dissenting) (slip op., at 2–3, and n. 2, 38–45); United States v. Miller , 307 U. S. 174 , 178 (1939). Although the Court acknowledged that “the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right … was codified in a written Constitution,” the Court asserted that “individual self defense … was the central component of the right itself.” Heller, supra , at ___ (slip op., at 26) (first emphasis added). The Court went on to hold that the Second Amendment restricted Congress’ power to regulate handguns used for self-defense, and the Court found unconstitutional the District of Columbia’s ban on the possession of handguns in the home. Id. , at ___ (slip op., at 64).    The Court based its conclusions almost exclusively upon its reading of history. But the relevant history in Heller was far from clear: Four dissenting Justices disagreed with the majority’s historical analysis. And subsequent scholarly writing reveals why disputed history provides treacherous ground on which to build decisions written by judges who are not expert at history.    Since Heller, historians, scholars, and judges have continued to express the view that the Court’s historical account was flawed. See, e.g., Konig, Why the Second Amendment Has a Preamble: Original Public Meaning and the Political Culture of Written Constitutions in Revolutionary America, 56 UCLA L. Rev. 1295 (2009); Finkelman, It Really Was About a Well Regulated Militia, 59 Syracuse L. Rev. 267 (2008); P. Charles, The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court (2009); Merkel, The District of Columbia v. Heller and Antonin Scalia’s Perverse Sense of Originalism, 13 Lewis & Clark L. Rev. 349 (2009); Kozuskanich, Originalism in a Digital Age: An Inquiry into the Right to Bear Arms, 29 J. Early Republic 585 (2009); Cornell, St. George Tucker’s Lecture Notes, the Second Amendment, and Originalist Methodology, 103 Nw. U. L. Rev. 1541 (2009); Posner, In Defense of Looseness: The Supreme Court and Gun Control, New Republic, Aug. 27, 2008, pp. 32–35; see also Epstein, A Structural Interpretation of the Second Amendment: Why Heller is (Probably) Wrong on Originalist Grounds, 59 Syracuse L. Rev. 171 (2008).    Consider as an example of these critiques an amici brief filed in this case by historians who specialize in the study of the English Civil Wars. They tell us that Heller misunderstood a key historical point. See Brief for English/Early American Historians as Amici Curiae (hereinafter English Historians’ Brief) (filed by 21 professors at leading universities in the United States, United Kingdom, and Australia). Heller ’s conclusion that “individual self-defense” was “the central component ” of the Second Amendment’s right “to keep and bear Arms” rested upon its view that the Amendment “codified a pre-existing right” that had “nothing whatever to do with service in a militia.” 554 U. S., at ___ (slip op., at 26, 19–20). That view in turn rested in significant part upon Blackstone having described the right as “ ‘the right of having and using arms for self-preservation and defence,’ ” which reflected the provision in the English Declaration of Right of 1689 that gave the King’s Protestant “ ‘subjects’ ” the right to “ ‘have Arms for their defence suitable to their Conditions, and as allowed by law.’ ” Id. , at ___ (slip op., at 19–20) (quoting 1 W. Blackstone, Commentaries on the Laws of England 140 (1765) (hereinafter Blackstone) and 1 W. & M., c. 2, §7, in 3 Eng. Stat. at Large 441 (1689)). The Framers, said the majority, understood that right “as permitting a citizen to ‘repe[l] force by force’ when ‘the intervention of society in his behalf, may be too late to prevent an injury.’ ” 554 U. S., at ___ (slip op., at 21) (quoting St. George Tucker, 1 Blackstone’s Commentaries 145–146, n. 42 (1803)).    The historians now tell us, however, that the right to which Blackstone referred had, not nothing , but everything , to do with the militia. As properly understood at the time of the English Civil Wars, the historians claim, the right to bear arms “ensured that Parliament had the power” to arm the citizenry: “to defend the realm” in the case of a foreign enemy, and to “secure the right of ‘self-preservation,’ ” or “self-defense,” should “ the sovereign usurp the English Constitution.” English Historians’ Brief 3, 8–13, 23–24 (emphasis added). Thus, the Declaration of Right says that private persons can possess guns only “as allowed by law.” See id., at 20–24. Moreover, when Blackstone referred to “ ‘the right of having and using arms for self-preservation and defence,’ ” he was referring to the right of the people “ to take part in the militia to defend their political liberties ,” and to the right of Parliament (which represented the people) to raise a militia even when the King sought to deny it that power. Id., at 4, 24–27 (emphasis added) (quoting 1 Blackstone 140). Nor can the historians find any convincing reason to believe that the Framers had something different in mind than what Blackstone himself meant. Compare Heller, supra, at ___ (slip op., at 21–22) with English Historians’ Brief 28–40. The historians concede that at least one historian takes a different position, see id., at 7, but the Court, they imply, would lose a poll taken among professional historians of this period, say, by a vote of 8 to 1.    If history, and history alone, is what matters, why would the Court not now reconsider Heller in light of these more recently published historical views? See Leegin Creative Leather Products, Inc. v. PSKS, Inc. , 551 U. S. 877 , 923–924 (2007) (Breyer, J., dissenting) (noting that stare decisis interests are at their lowest with respect to recent and erroneous constitutional decisions that create unworkable legal regimes); Citizens United v. Federal Election Comm’n , 558 U. S. ___, ___ (2010) (slip op., at 47) (listing similar factors); see also Wallace v. Jaffree , 472 U. S. 38 , 99 (1985) (Rehnquist, J., dissenting) (“ [S]tare decisis may bind courts as to matters of law, but it cannot bind them as to matters of history”). At the least, where Heller ’s historical foundations are so uncertain, why extend its applicability?    My aim in referring to this history is to illustrate the reefs and shoals that lie in wait for those nonexpert judges who place virtually determinative weight upon historical considerations. In my own view, the Court should not look to history alone but to other factors as well—above all, in cases where the history is so unclear that the experts themselves strongly disagree. It should, for example, consider the basic values that underlie a constitutional provision and their contemporary significance. And it should examine as well the relevant consequences and practical justifications that might, or might not, warrant removing an important question from the democratic decisionmaking process. See ante , at 16–20 (Stevens, J., dissenting) (discussing shortcomings of an exclusively historical approach). II A    In my view, taking Heller as a given, the Fourteenth Amendment does not incorporate the Second Amendment right to keep and bear arms for purposes of private self-defense. Under this Court’s precedents, to incorporate the private self-defense right the majority must show that the right is, e.g. , “fundamental to the American scheme of justice,” Duncan v. Louisiana , 391 U. S. 145 , 149 (1968); see ibid. , n. 14; see also ante, at 44 (plurality opinion) (finding that the right is “fundamental” and therefore incorporated). And this it fails to do.    The majority here, like that in Heller, relies almost exclusively upon history to make the necessary showing. Ante, at 20–33. But to do so for incorporation purposes is both wrong and dangerous. As Justice Stevens points out, our society has historically made mistakes—for example, when considering certain 18th- and 19th-century property rights to be fundamental. Ante, at 19 (dissenting opinion). And in the incorporation context, as elsewhere, history often is unclear about the answers. See Part I, supra; Part III, infra. Accordingly, this Court, in considering an incorporation question, has never stated that the historical status of a right is the only relevant consideration. Rather, the Court has either explicitly or implicitly made clear in its opinions that the right in question has remained fundamental over time. See, e.g., Apodaca v. Oregon , 406 U. S. 404 , 410 (1972) (plurality opinion) (stating that the incorporation “inquiry must focus upon the function served” by the right in question in “ contemporary society ” (emphasis added)); Duncan v. Louisiana , 391 U. S. 145 , 154 (1968) (noting that the right in question “continues to receive strong support”); Klopfer v. North Carolina , 386 U. S. 213 , 226 (1967) (same). And, indeed, neither of the parties before us in this case has asked us to employ the majority’s history-constrained approach. See Brief for Petitioners 67–69 (arguing for incorporation based on trends in contemporary support for the right); Brief for Respondents City of Chicago et al. 23–31 (hereinafter Municipal Respondents) (looking to current state practices with respect to the right).    I thus think it proper, above all where history provides no clear answer, to look to other factors in considering whether a right is sufficiently “fundamental” to remove it from the political process in every State. I would include among those factors the nature of the right; any contemporary disagreement about whether the right is fundamental; the extent to which incorporation will further other, perhaps more basic, constitutional aims; and the extent to which incorporation will advance or hinder the Constitution’s structural aims, including its division of powers among different governmental institutions (and the people as well). Is incorporation needed, for example, to further the Constitution’s effort to ensure that the government treats each individual with equal respect? Will it help maintain the democratic form of government that the Constitution foresees? In a word, will incorporation prove consistent, or inconsistent, with the Constitution’s efforts to create governmental institutions well suited to the carrying out of its constitutional promises?    Finally, I would take account of the Framers’ basic reason for believing the Court ought to have the power of judicial review. Alexander Hamilton feared granting that power to Congress alone, for he feared that Congress, acting as judges, would not overturn as unconstitutional a popular statute that it had recently enacted, as legislators. The Federalist No. 78, p. 405 (G. Carey & J. McClellan eds. 2001) (A. Hamilton) (“This independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humours, which” can, at times, lead to “serious oppressions of the minor part in the community”). Judges, he thought, may find it easier to resist popular pressure to suppress the basic rights of an unpopular minority. See United States v. Carolene Products Co. , 304 U. S. 144 , 152, n. 4 (1938). That being so, it makes sense to ask whether that particular comparative judicial advantage is relevant to the case at hand. See, e.g., J. Ely, Democracy and Distrust (1980). B How do these considerations apply here? For one thing, I would apply them only to the private self-defense right directly at issue. After all, the Amendment’s militia-related purpose is primarily to protect States from federal regulation, not to protect individuals from militia-related regulation. Heller , 554 U. S., at ___ (slip op., at 26); see also Miller , 307 U. S., at 178. Moreover, the Civil War Amendments, the electoral process, the courts, and numerous other institutions today help to safeguard the States and the people from any serious threat of federal tyranny. How are state militias additionally necessary? It is difficult to see how a right that, as the majority concedes, has “largely faded as a popular concern” could possibly be so fundamental that it would warrant incorporation through the Fourteenth Amendment. Ante , at 22. Hence, the incorporation of the Second Amendment cannot be based on the militia-related aspect of what Heller found to be more extensive Second Amendment rights.    For another thing, as Heller concedes, the private self-defense right that the Court would incorporate has nothing to do with “the reason ” the Framers “codified” the right to keep and bear arms “in a written Constitution.” 554 U. S., at ___ (slip op., at 26) (emphasis added). Heller immediately adds that the self-defense right was nonetheless “the central component of the right.” Ibid. In my view, this is the historical equivalent of a claim that water runs uphill. See Part I, supra . But, taking it as valid, the Framers’ basic reasons for including language in the Constitution would nonetheless seem more pertinent (in deciding about the contemporary importance of a right) than the particular scope 17th- or 18th-century listeners would have then assigned to the words they used. And examination of the Framers’ motivation tells us they did not think the private armed self-defense right was of paramount importance. See Amar, The Bill of Rights as a Constitution, 100 Yale L. J. 1131, 1164 (1991) (“[T]o see the [Second] Amendment as primarily concerned with an individual right to hunt, or protect one’s home,” would be “like viewing the heart of the speech and assembly clauses as the right of persons to meet to play bridge”); see also, e.g., Rakove, The Second Amendment: The Highest Stage of Originalism, 76 Chi.-Kent L. Rev. 103, 127–128 (2000); Brief for Historians on Early American Legal, Constitutional, and Pennsylvania History as Amici Curiae 22–33.    Further, there is no popular consensus that the private self-defense right described in Heller is fundamental. The plurality suggests that two amici briefs filed in the case show such a consensus, see ante , at 42–43, but, of course, numerous amici briefs have been filed opposing incorporation as well. Moreover, every State regulates firearms extensively, and public opinion is sharply divided on the appropriate level of regulation. Much of this disagreement rests upon empirical considerations. One side believes the right essential to protect the lives of those attacked in the home; the other side believes it essential to regulate the right in order to protect the lives of others attacked with guns. It seems unlikely that definitive evidence will develop one way or the other. And the appropriate level of firearm regulation has thus long been, and continues to be, a hotly contested matter of political debate. See, e.g., Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller , 122 Harv. L. Rev. 191, 201–246 (2008). (Numerous sources supporting arguments and data in Part II–B can be found in the Appendix, infra. )    Moreover, there is no reason here to believe that incorporation of the private self-defense right will further any other or broader constitutional objective. We are aware of no argument that gun-control regulations target or are passed with the purpose of targeting “discrete and insular minorities.” Carolene Products Co. , supra , at 153, n. 4; see, e.g., ante, at 49–51 (Stevens, J., dissenting). Nor will incorporation help to assure equal respect for individuals. Unlike the First Amendment’s rights of free speech, free press, assembly, and petition, the private self-defense right does not comprise a necessary part of the democratic process that the Constitution seeks to establish. See, e.g., Whitney v. California , 274 U. S. 357 , 377 (1927) (Brandeis, J., concurring). Unlike the First Amendment’s religious protections, the Fourth Amendment’s protection against unreasonable searches and seizures, the Fifth and Sixth Amendments’ insistence upon fair criminal procedure, and the Eighth Amendment’s protection against cruel and unusual punishments, the private self-defense right does not significantly seek to protect individuals who might otherwise suffer unfair or inhumane treatment at the hands of a majority. Unlike the protections offered by many of these same Amendments, it does not involve matters as to which judges possess a comparative expertise, by virtue of their close familiarity with the justice system and its operation. And, unlike the Fifth Amendment’s insistence on just compensation, it does not involve a matter where a majority might unfairly seize for itself property belonging to a minority. Finally, incorporation of the right will work a significant disruption in the constitutional allocation of decisionmaking authority, thereby interfering with the Constitution’s ability to further its objectives. First, on any reasonable accounting, the incorporation of the right recognized in Heller would amount to a significant incursion on a traditional and important area of state concern, altering the constitutional relationship between the States and the Federal Government. Private gun regulation is the quintessential exercise of a State’s “police power”— i.e. , the power to “protec[t] … the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State,” by enacting “all kinds of restraints and burdens” on both “persons and property.” Slaughter-House Cases , 16 Wall. 36, 62 (1873) (internal quotation marks omitted). The Court has long recognized that the Constitution grants the States special authority to enact laws pursuant to this power. See, e.g., Medtronic, Inc. v. Lohr , 518 U. S. 470 , 475 (1996) (noting that States have “great latitude” to use their police powers (internal quotation marks omitted)); Metropolitan Life Ins. Co. v. Massachusetts , 471 U. S. 724 , 756 (1985). A decade ago, we wrote that there is “no better example of the police power” than “the suppression of violent crime.” United States v. Morrison , 529 U. S. 598 , 618 (2000). And examples in which the Court has deferred to state legislative judgments in respect to the exercise of the police power are legion. See, e.g., Gonzales v. Oregon , 546 U. S. 243 , 270 (2006) (assisted suicide); Washington v. Glucksberg, 521 U. S. 702 , 721 (1997) (same); Berman v. Parker , 348 U. S. 26 , 32 (1954) (“We deal, in other words, with what traditionally has been known as the police power. An attempt to define its reach or trace its outer limits is fruitless …”). Second, determining the constitutionality of a particular state gun law requires finding answers to complex empirically based questions of a kind that legislatures are better able than courts to make. See, e.g., Los Angeles v. Alameda Books, Inc. , 535 U. S. 425 , 440 (2002) (plurality opinion); Turner Broadcasting System, Inc. v. FCC , 520 U. S. 180 , 195–196 (1997). And it may require this kind of analysis in virtually every case.    Government regulation of the right to bear arms normally embodies a judgment that the regulation will help save lives. The determination whether a gun regulation is constitutional would thus almost always require the weighing of the constitutional right to bear arms against the “primary concern of every government—a concern for the safety and indeed the lives of its citizens.” United States v. Salerno , 481 U. S. 739 , 755 (1987). With respect to other incorporated rights, this sort of inquiry is sometimes present. See, e.g., Brandenburg v. Ohio , 395 U. S. 444 , 447 (1969) (per curiam) (free speech); Sherbert v. Verner , 374 U. S. 398 , 403 (1963) (religion); Brigham City v. Stuart , 547 U. S. 398 , 403–404 (2006) (Fourth Amendment); New York v. Quarles , 467 U. S. 649 , 655 (1984) (Fifth Amendment); Salerno, supra , at 755 (bail). But here, this inquiry—calling for the fine tuning of protective rules—is likely to be part of a daily judicial diet.    Given the competing interests, courts will have to try to answer empirical questions of a particularly difficult kind. Suppose, for example, that after a gun regulation’s adoption the murder rate went up. Without the gun regulation would the murder rate have risen even faster? How is this conclusion affected by the local recession which has left numerous people unemployed? What about budget cuts that led to a downsizing of the police force? How effective was that police force to begin with? And did the regulation simply take guns from those who use them for lawful purposes without affecting their possession by criminals?    Consider too that countless gun regulations of many shapes and sizes are in place in every State and in many local communities. Does the right to possess weapons for self-defense extend outside the home? To the car? To work? What sort of guns are necessary for self-defense? Handguns? Rifles? Semiautomatic weapons? When is a gun semi-automatic? Where are different kinds of weapons likely needed? Does time-of-day matter? Does the presence of a child in the house matter? Does the presence of a convicted felon in the house matter? Do police need special rules permitting patdowns designed to find guns? When do registration requirements become severe to the point that they amount to an unconstitutional ban? Who can possess guns and of what kind? Aliens? Prior drug offenders? Prior alcohol abusers? How would the right interact with a state or local government’s ability to take special measures during, say, national security emergencies? As the questions suggest, state and local gun regulation can become highly complex, and these “are only a few uncertainties that quickly come to mind.” Caperton v. A. T. Massey Coal Co. , 556 U. S. ___, ___ (2009) (Roberts, C. J., dissenting) (slip op., at 10).    The difficulty of finding answers to these questions is exceeded only by the importance of doing so. Firearms cause well over 60,000 deaths and injuries in the United States each year. Those who live in urban areas, police officers, women, and children, all may be particularly at risk. And gun regulation may save their lives. Some experts have calculated, for example, that Chicago’s handgun ban has saved several hundred lives, perhaps close to 1,000, since it was enacted in 1983. Other experts argue that stringent gun regulations “can help protect police officers operating on the front lines against gun violence,” have reduced homicide rates in Washington, D. C., and Baltimore, and have helped to lower New York’s crime and homicide rates.    At the same time, the opponents of regulation cast doubt on these studies. And who is right? Finding out may require interpreting studies that are only indirectly related to a particular regulatory statute, say one banning handguns in the home. Suppose studies find more accidents and suicides where there is a handgun in the home than where there is a long gun in the home or no gun at all? To what extent do such studies justify a ban? What if opponents of the ban put forth counter studies?    In answering such questions judges cannot simply refer to judicial homilies, such as Blackstone’s 18th-century perception that a man’s home is his castle. See 4 Blackstone 223. Nor can the plurality so simply reject, by mere assertion, the fact that “incorporation will require judges to assess the costs and benefits of firearms restrictions.” Ante , at 44. How can the Court assess the strength of the government’s regulatory interests without addressing issues of empirical fact? How can the Court determine if a regulation is appropriately tailored without considering its impact? And how can the Court determine if there are less restrictive alternatives without considering what will happen if those alternatives are implemented?    Perhaps the Court could lessen the difficulty of the mission it has created for itself by adopting a jurisprudential approach similar to the many state courts that administer a state constitutional right to bear arms. See infra , at 19–20 (describing state approaches). But the Court has not yet done so. Cf. Heller, 544 U. S., at ___ (slip op., at 57–64) (rejecting an “ ‘interest-balancing’ approach” similar to that employed by the States); ante , at 44 (plurality opinion). Rather, the Court has haphazardly created a few simple rules, such as that it will not touch “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,” or “laws imposing conditions and qualifications on the commercial sale of arms.” Heller , 544 U. S., at ___ (slip op., at 54–55); Ante, at 39 (plurality opinion). But why these rules and not others? Does the Court know that these regulations are justified by some special gun-related risk of death? In fact, the Court does not know. It has simply invented rules that sound sensible without being able to explain why or how Chicago’s handgun ban is different.    The fact is that judges do not know the answers to the kinds of empirically based questions that will often determine the need for particular forms of gun regulation. Nor do they have readily available “tools” for finding and evaluating the technical material submitted by others. District Attorney’s Office for Third Judicial Dist. v. Osborne , 557 U. S. ___, ___ (2009) (slip op., at 21); see also Turner Broadcasting , 520 U. S., at 195–196 . Judges cannot easily make empirically based predictions; they have no way to gather and evaluate the data required to see if such predictions are accurate; and the nature of litigation and concerns about stare decisis further make it difficult for judges to change course if predictions prove inaccurate. Nor can judges rely upon local community views and values when reaching judgments in circumstances where prediction is difficult because the basic facts are unclear or unknown.    At the same time, there is no institutional need to send judges off on this “mission-almost-impossible.” Legislators are able to “amass the stuff of actual experience and cull conclusions from it.” United States v. Gainey , 380 U. S. 63 , 67 (1965). They are far better suited than judges to uncover facts and to understand their relevance. And legislators, unlike Article III judges, can be held democratically responsible for their empirically based and value-laden conclusions. We have thus repeatedly affirmed our preference for “legislative not judicial solutions” to this kind of problem, see, e.g., Patsy v. Board of Regents of Fla. , 457 U. S. 496 , 513 (1982), just as we have repeatedly affirmed the Constitution’s preference for democratic solutions legislated by those whom the people elect.    In New State Ice Co. v. Liebmann , 285 U. S. 262 , 310–311 (1932), Justice Brandeis stated in dissent: “Some people assert that our present plight is due, in part, to the limitations set by courts upon experimentation in the fields of social and economic science; and to the discouragement to which proposals for betterment there have been subjected otherwise. There must be power in the States and the Nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs. I cannot believe that the framers of the Fourteenth Amendment, or the States which ratified it, intended to deprive us of the power to correct [the social problems we face].”    There are 50 state legislatures. The fact that this Court may already have refused to take this wise advice with respect to Congress in Heller is no reason to make matters worse here. Third, the ability of States to reflect local preferences and conditions—both key virtues of federalism—here has particular importance. The incidence of gun ownership varies substantially as between crowded cities and uncongested rural communities, as well as among the different geographic regions of the country. Thus, approximately 60% of adults who live in the relatively sparsely populated Western States of Alaska, Montana, and Wyoming report that their household keeps a gun, while fewer than 15% of adults in the densely populated Eastern States of Rhode Island, New Jersey, and Massachusetts say the same.    The nature of gun violence also varies as between rural communities and cities. Urban centers face significantly greater levels of firearm crime and homicide, while rural communities have proportionately greater problems with nonhomicide gun deaths, such as suicides and accidents. And idiosyncratic local factors can lead to two cities finding themselves in dramatically different circumstances: For example, in 2008, the murder rate was 40 times higher in New Orleans than it was in Lincoln, Nebraska.    It is thus unsurprising that States and local communities have historically differed about the need for gun regulation as well as about its proper level. Nor is it surprising that “primarily, and historically,” the law has treated the exercise of police powers, including gun control, as “matter[s] of local concern.” Medtronic, 518 U. S., at 475 (internal quotation marks omitted). Fourth, although incorporation of any right removes decisions from the democratic process, the incorporation of this particular right does so without strong offsetting justification—as the example of Oak Park’s handgun ban helps to show. See Oak Park, Ill., Municipal Code, §27–2–1 (1995). Oak Park decided to ban handguns in 1983, after a local attorney was shot to death with a handgun that his assailant had smuggled into a courtroom in a blanket. Brief for Oak Park Citizens Committee for Handgun Control as Amicus Curiae 1, 21 (hereinafter Oak Park Brief). A citizens committee spent months gathering information about handguns. Id., at 21. It secured 6,000 signatures from community residents in support of a ban. Id., at 21–22. And the village board enacted a ban into law. Id., at 22.    Subsequently, at the urging of ban opponents the Board held a community referendum on the matter. Ibid. The citizens committee argued strongly in favor of the ban. Id., at 22–23. It pointed out that most guns owned in Oak Park were handguns and that handguns were misused more often than citizens used them in self-defense. Id., at 23. The ban opponents argued just as strongly to the contrary. Ibid . The public decided to keep the ban by a vote of 8,031 to 6,368. Ibid. And since that time, Oak Park now tells us, crime has decreased and the community has seen no accidental handgun deaths. Id., at 2.    Given the empirical and local value-laden nature of the questions that lie at the heart of the issue, why, in a Nation whose Constitution foresees democratic decisionmaking, is it so fundamental a matter as to require taking that power from the people? What is it here that the people did not know? What is it that a judge knows better? *  *  *    In sum, the police power, the superiority of legislative decisionmaking, the need for local decisionmaking, the comparative desirability of democratic decisionmaking, the lack of a manageable judicial standard, and the life-threatening harm that may flow from striking down regulations all argue against incorporation. Where the incorporation of other rights has been at issue, some of these problems have arisen. But in this instance all these problems are present, all at the same time, and all are likely to be present in most, perhaps nearly all, of the cases in which the constitutionality of a gun regulation is at issue. At the same time, the important factors that favor incorporation in other instances— e.g. , the protection of broader constitutional objectives—are not present here. The upshot is that all factors militate against incorporation—with the possible exception of historical factors. III    I must, then, return to history. The plurality, in seeking to justify incorporation, asks whether the interests the Second Amendment protects are “ ‘deeply rooted in this Nation’s history and tradition.’ ” Ante , at 19 (quoting Glucksberg , 521 U. S., at 721; internal quotation marks omitted). It looks to selected portions of the Nation’s history for the answer. And it finds an affirmative reply.    As I have made clear, I do not believe history is the only pertinent consideration. Nor would I read history as broadly as the majority does. In particular, since we here are evaluating a more particular right—namely, the right to bear arms for purposes of private self-defense—general historical references to the “right to keep and bear arms” are not always helpful. Depending upon context, early historical sources may mean to refer to a militia-based right—a matter of considerable importance 200 years ago—which has, as the majority points out, “largely faded as a popular concern.” Ante , at 22. There is no reason to believe that matters of such little contemporary importance should play a significant role in answering the incorporation question. See Apodaca , 406 U. S., at 410 (incorporation “inquiry must focus upon the function served” by the right in question in “contemporary society”); Wolf v. Colorado , 338 U. S. 25 , 27 (1949) (incorporation must take into account “the movements of a free society” and “the gradual and empiric process of inclusion and exclusion” (internal quotation marks omitted)); cf. U. S. Const., Art. I, §910 (prohibiting federal officeholders from accepting a “Title, of any kind whatever, from [a] foreign State”—presumably a matter of considerable importance 200 years ago).    That said, I can find much in the historical record that shows that some Americans in some places at certain times thought it important to keep and bear arms for private self-defense. For instance, the reader will see that many States have constitutional provisions protecting gun possession. But, as far as I can tell, those provisions typically do no more than guarantee that a gun regulation will be a reasonable police power regulation. See Winkler, Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683, 686, 716–717 (2007) (the “courts of every state to consider the question apply a deferential ‘reasonable regulation’ standard”) (hereinafter Winkler, Scrutinizing); see also id. , at 716–717 (explaining the difference between that standard and ordinary rational-basis review). It is thus altogether unclear whether such provisions would prohibit cities such as Chicago from enacting laws, such as the law before us, banning handguns. See id., at 723. The majority, however, would incorporate a right that is likely inconsistent with Chicago’s law; and the majority would almost certainly strike down that law. Cf. Heller, 554 U. S., at ___ (slip op., at 57–64) (striking down the District of Columbia’s handgun ban).    Thus, the specific question before us is not whether there are references to the right to bear arms for self-defense throughout this Nation’s history—of course there are—or even whether the Court should incorporate a simple constitutional requirement that firearms regulations not unreasonably burden the right to keep and bear arms, but rather whether there is a consensus that so substantial a private self-defense right as the one described in Heller applies to the States. See, e.g., Glucksberg , supra, at 721 (requiring “a careful description” of the right at issue when deciding whether it is “deeply rooted in this Nation’s history and tradition” (internal quotation marks omitted)). On this question, the reader will have to make up his or her own mind about the historical record that I describe in part below. In my view, that record is insufficient to say that the right to bear arms for private self-defense, as explicated by Heller , is fundamental in the sense relevant to the incorporation inquiry. As the evidence below shows, States and localities have consistently enacted firearms regulations, including regulations similar to those at issue here, throughout our Nation’s history. Courts have repeatedly upheld such regulations. And it is, at the very least, possible, and perhaps likely, that incorporation will impose on every, or nearly every, State a different right to bear arms than they currently recognize—a right that threatens to destabilize settled state legal principles. Cf. 554 U. S., at ___ (slip op., at 57–64) (rejecting an “ ‘interest-balancing’ approach” similar to that employed by the States).    I thus cannot find a historical consensus with respect to whether the right described by Heller is “fundamental” as our incorporation cases use that term. Nor can I find sufficient historical support for the majority’s conclusion that that right is “deeply rooted in this Nation’s history and tradition.” Instead, I find no more than ambiguity and uncertainty that perhaps even expert historians would find difficult to penetrate. And a historical record that is so ambiguous cannot itself provide an adequate basis for incorporating a private right of self-defense and applying it against the States. The Eighteenth Century The opinions in Heller collect much of the relevant 18th-century evidence. See 554 U. S., at ___ (slip op., at 5–32); id. , at ___ (Stevens, J., dissenting) (slip op., at 5–31); id., at ___ (Breyer, J., dissenting) (slip op., at 4–7). In respect to the relevant question—the “deeply rooted nature” of a right to keep and bear arms for purposes of private self-defense—that evidence is inconclusive, particularly when augmented as follows: First , as I have noted earlier in this opinion, and Justice Stevens argued in dissent, the history discussed in Heller shows that the Second Amendment was enacted primarily for the purpose of protecting militia-related rights. See supra , at 4; Heller, supra, at ___ (slip op., at 5–31). Many of the scholars and historians who have written on the subject apparently agree. See supra , at 2–5. Second , historians now tell us that the right to which Blackstone referred, an important link in the Heller majority’s historical argument, concerned the right of Parliament (representing the people) to form a militia to oppose a tyrant (the King) threatening to deprive the people of their traditional liberties (which did not include an unregulated right to possess guns). Thus, 18th-century language referring to a “right to keep and bear arms” does not ipso facto refer to a private right of self-defense—certainly not unambiguously so. See English Historians’ Brief 3–27; see also supra , at 2–5. Third , scholarly articles indicate that firearms were heavily regulated at the time of the framing—perhaps more heavily regulated than the Court in Heller believed. For example, one scholar writes that “[h]undreds of individual statutes regulated the possession and use of guns in colonial and early national America.” Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms, 25 Law & Hist. Rev. 139, 143 (2007). Among these statutes was a ban on the private firing of weapons in Boston, as well as comprehensive restrictions on similar conduct in Philadelphia and New York. See Acts and Laws of Massachusetts, p. 208 (1746); 5 J. Mitchell, & H. Flanders, Statutes at Large of Pennsylvania From 1682 to 1801, pp. 108–109 (1898); 4 Colonial Laws of New York ch. 1233, p. 748 (1894); see also Churchill, supra , at 162–163 (discussing bans on the shooting of guns in Pennsylvania and New York). Fourth , after the Constitution was adopted, several States continued to regulate firearms possession by, for example, adopting rules that would have prevented the carrying of loaded firearms in the city, Heller , 554 U. S., at ___ (slip op., at 5–7) (Breyer, J., dissenting); see also id. , at ___ (slip op., at 59–60). Scholars have thus concluded that the primary Revolutionary era limitation on a State’s police power to regulate guns appears to be only that regulations were “aimed at a legitimate public purpose” and “consistent with reason.” Cornell, Early American Gun Regulation and the Second Amendment, 25 Law & Hist. Rev. 197, 198 (2007). The Pre-Civil War Nineteenth Century I would also augment the majority’s account of this period as follows: First , additional States began to regulate the discharge of firearms in public places. See, e.g., Act of Feb. 17, 1831, §6, reprinted in 3 Statutes of Ohio and the Northwestern Territory 1740 (S. Chase ed. 1835); Act of Dec. 3, 1825, ch. CCXCII, §3, 1825 Tenn. Priv. Acts 306. Second , States began to regulate the possession of concealed weapons, which were both popular and dangerous. See, e.g., C. Cramer, Concealed Weapon Laws of the Early Republic 143–152 (1999) (collecting examples); see also 1837–1838 Tenn. Pub. Acts ch. 137, pp. 200–201 (banning the wearing, sale, or giving of Bowie knives); 1847 Va. Acts ch. 7, §8, p. 110, (“Any free person who shall habitually carry about his person, hidden from common observation, any pistol, dirk, bowie knife, or weapon of the like kind, from the use of which the death of any person might probably ensue, shall for every offense be punished by [a] fine not exceed fifty dollars”).    State courts repeatedly upheld the validity of such laws, finding that, even when the state constitution granted a right to bear arms, the legislature was permitted to, e.g. , “abolish” these small, inexpensive, “most dangerous weapons entirely from use,” even in self-defense. Day v. State , 37 Tenn. 496, 500 (1857); see also, e.g. , State v. Jumel , 13 La. Ann. 399, 400 (1858) (upholding concealed weapon ban because it “prohibited only a particular mode of bearing arms which is found dangerous to the peace of society”); State v. Chandler , 5 La. Ann. 489, 489–490 (1850) (upholding concealed weapon ban and describing the law as “absolutely necessary to counteract a vicious state of society, growing out of the habit of carrying concealed weapons”); State v. Reid , 1 Ala. 612, 616–617 (1840). The Post-Civil War Nineteenth Century It is important to read the majority’s account with the following considerations in mind: First, the Court today properly declines to revisit our interpretation of the Privileges or Immunities Clause. See ante , at 10. The Court’s case for incorporation must thus rest on the conclusion that the right to bear arms is “fundamental.” But the very evidence that it advances in support of the conclusion that Reconstruction-era Americans strongly supported a private self-defense right shows with equal force that Americans wanted African-American citizens to have the same rights to possess guns as did white citizens. Ante, at 22–33. Here, for example is what Congress said when it enacted a Fourteenth Amendment predecessor, the Second Freedman’s Bureau Act. It wrote that the statute, in order to secure “the constitutional right to bear arms … for all citizens,” would assure that each citizen: “shall have … full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, [by securing] … to … all the citizens of [every] … State or district without respect to race or color, or previous condition of slavery.” §14, 14 Stat. 176–177 (emphasis added). This sounds like an antidiscrimination provision. See Rosenthal, The New Originalism Meets the Fourteenth Amendment: Original Public Meaning and the Problem of Incorporation, 18 J. Contemp. Legal Issues 361, 383–384 (2009) (discussing evidence that the Freedmen’s Bureau was focused on discrimination).    Another Fourteenth Amendment predecessor, the Civil Rights Act of 1866, also took aim at discrimination. See §1, 14 Stat. 27 (citizens of “every race and color, without regard to any previous condition of slavery or involuntary servitude . . . shall have the same right [to engage in various activities] and to full and equal benefit of all laws … as is enjoyed by white citizens”). And, of course, the Fourteenth Amendment itself insists that all States guarantee their citizens the “equal protection of the laws.”    There is thus every reason to believe that the fundamental concern of the Reconstruction Congress was the eradication of discrimination, not the provision of a new substantive right to bear arms free from reasonable state police power regulation. See, e.g., Brief for Municipal Respondents 62–69 (discussing congressional record evidence that Reconstruction Congress was concerned about discrimination). Indeed, why would those who wrote the Fourteenth Amendment have wanted to give such a right to Southerners who had so recently waged war against the North, and who continued to disarm and oppress recently freed African-American citizens? Cf. Act of Mar. 2, 1867, §6, 14 Stat. 487 (disbanding Southern militias because they were, inter alia , disarming the freedmen). Second, firearms regulation in the later part of the 19th century was common. The majority is correct that the Freedmen’s Bureau points to a right to bear arms, and it stands to reason, as the majority points out, that “[i]t would have been nonsensical for Congress to guarantee the … equal benefit of a … right that does not exist.” Ante , at 32. But the majority points to no evidence that there existed during this period a fundamental right to bear arms for private self-defense immune to the reasonable exercise of the state police power. See Emberton, The Limits of Incorporation: Violence, Gun Rights, and Gun Regulation in the Reconstruction South, 17 Stan. L. & Pol’y Rev. 615, 621–622 (2006) (noting that history shows that “nineteenth-century Americans” were “not opposed to the idea that the state should be able to control the use of firearms”).    To the contrary, in the latter half of the 19th century, a number of state constitutions adopted or amended after the Civil War explicitly recognized the legislature’s general ability to limit the right to bear arms. See Tex. Const., Art. I, §13 (1869) (protecting “the right to keep and bear arms,” “under such regulations as the legislature may prescribe”); Idaho Const., Art. I, §11 (1889) (“The people have the right to bear arms …; but the Legislature shall regulate the exercise of this right by law”); Utah Const., Art. I, §6 (1896) (same). And numerous other state constitutional provisions adopted during this period explicitly granted the legislature various types of regulatory power over firearms. See Brief for Thirty-Four Professional Historians et al. as Amici Curiae 14–15 (hereinafter Legal Historians’ Brief).    Moreover, four States largely banned the possession of all nonmilitary handguns during this period. See 1879 Tenn. Pub. Acts ch. 186, §1 (prohibiting citizens from carrying “publicly or privately, any … belt or pocket pistol, revolver, or any kind of pistol, except the army or navy pistol, usually used in warfare, which shall be carried openly in the hand”); 1876 Wyo. Comp. Laws ch. 52, §1 (forbidding “concealed or ope[n]” bearing of “any fire arm or other deadly weapon, within the limits of any city, town or village”); Ark. Act of Apr. 1, 1881, ch. 96, §1 (prohibiting the “wear[ing] or carry[ng]” of “any pistol … except such pistols as are used in the army or navy,” except while traveling or at home); Tex. Act of Apr. 12, 1871, ch. 34 (prohibiting the carrying of pistols unless there are “immediate and pressing” reasonable grounds to fear “immediate and pressing” attack or for militia service). Fifteen States banned the concealed carry of pistols and other deadly weapons. See Legal Historians’ Brief 16, n. 14. And individual municipalities enacted stringent gun controls, often in response to local conditions—Dodge City, Kansas, for example, joined many western cattle towns in banning the carrying of pistols and other dangerous weapons in response to violence accompanying western cattle drives. See Brief for Municipal Respondents 30 (citing Dodge City, Kan., Ordinance No. 16, §XI (Sept. 22, 1876)); D. Courtwright, The Cowboy Subculture, in Guns in America: A Reader 96 (J. Dizard et al. eds. 1999) (discussing how Western cattle towns required cowboys to “check” their guns upon entering town).    Further, much as they had during the period before the Civil War, state courts routinely upheld such restrictions. See, e.g., English v. State , 35 Tex. 473 (1871); Hill v. State , 53 Ga. 472, 475 (1874); Fife v. State , 31 Ark. 455, 461 (1876); State v. Workman , 35 W. Va. 367, 373 (1891). The Tennessee Supreme Court, in upholding a ban on possession of nonmilitary handguns and certain other weapons, summarized the Reconstruction understanding of the states’ police power to regulate firearms: “Admitting the right of self-defense in its broadest sense, still on sound principle every good citizen is bound to yield his preference as to the means to be used, to the demands of the public good; and where certain weapons are forbidden to be kept or used by the law of the land , in order to the prevention of [sic] crime—a great public end— no man can be permitted to disregard this general end, and demand of the community the right, in order to gratify his whim or willful desire to use a particular weapon in his particular self-defense . The law allows ample means of self-defense, without the use of the weapons which we have held may be rightfully prescribed by this statute. The object being to banish these weapons from the community by an absolute prohibition for the prevention of crime, no man’s particular safety, if such case could exist, ought to be allowed to defeat this end.” Andrews v. State , 50 Tenn. 165, 188–189 (1871) (emphasis added). The Twentieth and Twenty-First Centuries Although the majority does not discuss 20th- or 21st-century evidence concerning the Second Amendment at any length, I think that it is essential to consider the recent history of the right to bear arms for private self-defense when considering whether the right is “fundamental.” To that end, many States now provide state constitutional protection for an individual’s right to keep and bear arms. See Volokh, State Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Pol. 191, 205 (2006) (identifying over 40 States). In determining the importance of this fact, we should keep the following considerations in mind: First , by the end of the 20th century, in every State and many local communities, highly detailed and complicated regulatory schemes governed (and continue to govern) nearly every aspect of firearm ownership: Who may sell guns and how they must be sold; who may purchase guns and what type of guns may be purchased; how firearms must be stored and where they may be used; and so on. See generally Legal Community Against Violence, Regulating Guns In America (2008), available at http:// www.lcav.org/publications-briefs/regulating_guns. asp (all Internet materials as visited June 24, 2010, and available in Clerk of Court’s case file) (detailing various arms regulations in every State).    Of particular relevance here, some municipalities ban handguns, even in States that constitutionally protect the right to bear arms. See Chicago, Ill., Municipal Code, §8–20–050(c) (2009); Oak Park, Ill., Municipal Code, §§27–2–1, 27–1–1 (1995); Toledo, Ohio, Municipal Code, ch. 549.25 (2010). Moreover, at least seven States and Puerto Rico ban assault weapons or semiautomatic weapons. See Cal. Penal Code Ann. §12280(b) (West Supp. 2009); Conn. Gen. Stat. Ann. §53–202c (2007); Haw. Rev. Stat. §134–8 (1993); Md. Crim. Law Code Ann. §4–303(a) (Lexis 2002); Mass. Gen. Laws, ch. 140, §131M (West 2006); N. J. Stat. Ann. §2C:39-5 (West Supp. 2010); N. Y. Penal Law Ann. §265.02(7) (West Supp. 2008); 25 Laws P. R. Ann. §456m (Supp. 2006); see also 18 U. S. C. §922 (o) (federal machinegun ban).    Thirteen municipalities do the same. See Albany, N. Y., City Code §193–16(A) (2005); Aurora, Ill., Code of Ordinances §29–49(a) (2009); Buffalo, N. Y., City Code §180–1(F) (2000); Chicago, Ill., Municipal Code §8–24–025(a) (2010); Cincinnati, Ohio, Municipal Code §708–37(a) (2008); Cleveland, Ohio, Codified Ordinances §628.03(a) (2008); Columbus, Ohio, City Code §2323.31 (2007); Denver, Colo., Municipal Code §38–130(e) (2008); Morton Grove, Ill., Village Code §6–2–3(A); N. Y. C. Admin. Code §10–303.1 (2009); Oak Park, Ill., Village Code §27–2–1 (2009); Rochester, N. Y., City Code §47–5(F) (2008); Toledo, Ohio, Municipal Code §549.23(a). And two States, Maryland and Hawaii, ban assault pistols. See Haw. Rev. Stat. Ann. §134–8; Md. Crim. Law Code Ann. §4–303 (Lexis 2002). Second, as I stated earlier, state courts in States with constitutions that provide gun rights have almost uniformly interpreted those rights as providing protection only against unreasonable regulation of guns. See, e.g., Winkler, Scrutinizing 686 (the “courts of every state to consider” a gun regulation apply the “ ‘reasonable regulation’ ” approach); State v. McAdams , 714 P. 2d 1236, 1238 (Wyo. 1986); Robertson v. City & County of Denver , 874 P. 2d 325, 328 (Colo. 1994).    When determining reasonableness those courts have normally adopted a highly deferential attitude towards legislative determinations. See Winkler, Scrutinizing 723 (identifying only six cases in the 60 years before the article’s publication striking down gun control laws: three that banned “the transportation of any firearms for any purpose whatsoever,” a single “permitting law,” and two as-applied challenges in “unusual circumstances”). Hence, as evidenced by the breadth of existing regulations, States and local governments maintain substantial flexibility to regulate firearms—much as they seemingly have throughout the Nation’s history—even in those States with an arms right in their constitutions.     Although one scholar implies that state courts are less willing to permit total gun prohibitions, see Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1458 (2009), I am aware of no instances in the past 50 years in which a state court has struck down as unconstitutional a law banning a particular class of firearms, see Winkler, Scrutinizing 723.    Indeed, state courts have specifically upheld as constitutional (under their state constitutions) firearms regulations that have included handgun bans. See Kalodimos v. Village of Morton Grove , 103 Ill. 2d 483, 499, 470 N. E. 2d 266, 273 (1984) (upholding a handgun ban because the arms right is merely a right “to possess some form of weapon suitable for self-defense or recreation”); Cleveland v. Turner, No. 36126, 1977 WL 201393, *5 (Ohio Ct. App., Aug. 4, 1977) (handgun ban “does not absolutely interfere with the right of the people to bear arms, but rather proscribes possession of a specifically defined category of handguns”); State v. Bolin 378 S. C. 96, 99, 662 S. E. 2d 38, 39 (2008) (ban on handgun possession by persons under 21 did not infringe arms right because they can “posses[s] other types of guns”). Thus, the majority’s decision to incorporate the private self-defense right recognized in Heller threatens to alter state regulatory regimes, at least as they pertain to handguns. Third , the plurality correctly points out that only a few state courts, a “paucity” of state courts, have specifically upheld handgun bans. Ante, at 39. But which state courts have struck them down? The absence of supporting information does not help the majority find support. Cf. United States v. Wells , 519 U. S. 482 , 496 (1997) (noting that it is “treacherous to find in congressional silence alone the adoption of a controlling rule of law” (internal quotation marks omitted)). Silence does not show or tend to show a consensus that a private self-defense right (strong enough to strike down a handgun ban) is “deeply rooted in this Nation’s history and tradition.” *  *  *    In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self-defense. There has been, and is, no consensus that the right is, or was, “fundamental.” No broader constitutional interest or principle supports legal treatment of that right as fundamental. To the contrary, broader constitutional concerns of an institutional nature argue strongly against that treatment.    Moreover, nothing in 18th-, 19th-, 20th-, or 21st-century history shows a consensus that the right to private armed self-defense, as described in Heller , is “deeply rooted in this Nation’s history or tradition” or is otherwise “fundamental.” Indeed, incorporating the right recognized in Heller may change the law in many of the 50 States. Read in the majority’s favor, the historical evidence is at most ambiguous. And, in the absence of any other support for its conclusion, ambiguous history cannot show that the Fourteenth Amendment incorporates a private right of self-defense against the States.    With respect, I dissent. APPENDIX Sources Supporting Data in Part II–B Popular Consensus Please see the following sources to support the paragraph on popular opinion on pages 9–10: •Briefs filed in this case that argue against incorporation include: Brief for United States Conference of Mayors as Amicus Curiae 1, 17–33 (organization representing “all United States cities with populations of 30,000 or more”); Brief for American Cities et al. as Amici Curiae 1–3 (brief filed on behalf of many cities, e.g. , Philadelphia, Seattle, San Francisco, Oakland, Cleveland); Brief for Representative Carolyn McCarthy et al. as Amici Curiae 5–10; Brief for State of Illinois et al. as Amici Curiae 7–35. •Wilkinson, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 301 (2009) (discussing divided public opinion over the correct level of gun control). Data on Gun Violence Please see the following sources to support the sentences concerning gun violence on page 13: •Dept. of Justice, Bureau of Justice Statistics, M. Zawitz & K. Strom, Firearm Injury and Death from Crime, 1993–1997, p. 2 (Oct. 2000) (over 60,000 deaths and injuries caused by firearms each year). •Campbell, et al., Risk Factors for Femicide in Abusive Relationships: Results from a Multisite Case Control Study, 93 Am. J. of Pub. Health 1089, 1092 (2003) (noting that an abusive partner’s access to a firearm increases the risk of homicide eightfold for women in physically abusive relationship). •American Academy of Pediatrics, Firearm-Related Injuries Affecting the Pediatric Population, 105 Pediatrics 888 (2000) (noting that in 1997 “firearm-related deaths accounted for 22.5% of all injury deaths” for individuals between 1 and 19). •Dept. of Justice, Federal Bureau of Investigation, Law Enforcement Officers Killed & Assaulted, 2006, (Table) 27 (noting that firearms killed 93% of the 562 law enforcement officers feloniously killed in the line of duty between 1997 and 2006), online at http://www.fbi.gov/ucr/killed/2006/ table27.html. •Dept. of Justice, Bureau of Justice Statistics, D. Duhart, Urban, Suburban, and Rural Victimization, 1993–1998, pp. 1, 9 (Oct. 2000) (those who live in urban areas particularly at risk of firearm violence). •Wintemute, The Future of Firearm Violence Prevention, 281 JAMA 475 (1999) (“half of all homicides occurred in 63 cities with 16% of the nation’s population”). Data on the Effectiveness of Regulation Please see the following sources to support the sentences concerning the effectiveness of regulation on page 13: •See Brief for Professors of Criminal Justice as Amici Curiae 13 (noting that Chicago’s handgun ban saved several hundred lives, perhaps close to 1,000, since it was enacted in 1983). •Brief for Association of Prosecuting Attorneys et al. as Amici Curiae 13–16, 20 (arguing that stringent gun regulations “can help protect police officers operating on the front lines against gun violence,” and have reduced homicide rates in Washington, D. C., and Baltimore). •Brief for United States Conference of Mayors as Amici Curiae 4–13 (arguing that gun regulations have helped to lower New York’s crime and homicide rates). Data on Handguns in the Home Please see the following sources referenced in the sentences discussing studies concerning handguns in the home on pages 13–14: •Brief for Organizations Committed to Protecting the Public’s Health, Safety, and Well-Being as Amici Curiae in Support of Respondents 13–16 (discussing studies that show handgun ownership in the home is associated with increased risk of homicide). •Wiebe, Firearms in US Homes as a Risk Factor for Unintentional Gunshot Fatality, 35 Accident Analysis and Prevention 711, 713–714 (2003) (showing that those who die in firearms accidents are nearly four times more likely than average to have a gun in their home). •Kellerman et al., Suicide in the Home in Relation to Gun Ownership, 327 New England J. Medicine 467, 470 (1992) (demonstrating that “homes with one or more handguns were associated with a risk of suicide almost twice as high as that in homes containing only long guns”). Data on Regional Views and Conditions Please see the following sources referenced in the section on the diversity of regional views and conditions on page 16: •Okoro, et al., Prevalence of Household Firearms and Firearm-Storage Practices in the 50 States and the District of Columbia: Findings From the Behavioral Risk Factor Surveillance System, 2002, 116 Pediatrics 370, 372 (2005) (presenting data on firearm ownership by State). •Heller, 554 U. S., at ___ (Breyer, J., dissenting) (slip op., at 19–20) (discussing various sources showing that gun violence varies by state, including Wintemute, The Future of Firearm Violence Prevention, 281 JAMA 475 (1999)). •Heller, supra, at ___ (Breyer, J., dissenting) (slip op., at 19–20) (citing Branas, Nance, Elliott, Richmond, & Schwab, Urban-Rural Shifts in Intentional Firearm Death, 94 Am. J. Public Health 1750, 1752 (2004)) (discussing the fact that urban centers face significantly greater levels of firearm crime and homicide, while rural communities have proportionately greater problems with nonhomicide gun deaths, such as suicides and accidents). •Dept. of Justice, Federal Bureau of Investigation, 2008 Crime in the United States, tbl. 6 (noting that murder rate is 40 times higher in New Orleans than it is in Lincoln, Nebraska).

In McDonald v. Chicago, the Supreme Court ruled that the Second Amendment, which protects the right to keep and bear arms for self-defense, applies to state and local governments in addition to the federal government. This means that Chicago and Oak Park's handgun bans were unconstitutional. The Court considered data on handgun ownership and regional conditions but ultimately sided with the petitioners, who argued that the handgun ban left them vulnerable to criminals.

Equal Protection

Fisher v. University of Texas

https://supreme.justia.com/cases/federal/us/570/297/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 11–345 _________________ ABIGAIL NOEL FISHER, PETITIONER v. UNIVERSITY OF TEXAS AT AUSTIN et al. on writ of certiorari to the united states court of appeals for the fifth circuit [June 24, 2013]      Justice Kennedy delivered the opinion of the Court.      The University of Texas at Austin considers race as one of various factors in its undergraduate admissions process. Race is not itself assigned a numerical value for each ap-plicant, but the University has committed itself to increasing racial minority enrollment on campus. It refers to this goal as a “critical mass.” Petitioner, who is Caucasian, sued the University after her application was re-jected. She contends that the University’s use of race in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment.      The parties asked the Court to review whether the judgment below was consistent with “this Court’s deci-sions interpreting the Equal Protection Clause of the Four- teenth Amendment, including Grutter v. Bollinger, 539 U. S. 306 (2003) .” Pet. for Cert. i. The Court concludes that the Court of Appeals did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 305 (1978) (opinion of Powell, J.). Because the Court of Appeals did not apply the correct standard of strict scrutiny, its decision affirming the District Court’s grant of summary judgment to the University was incorrect. That decision is vacated, and the case is remanded for further proceedings. I A      Located in Austin, Texas, on the most renowned campus of the Texas state university system, the University is one of the leading institutions of higher education in the Nation. Admission is prized and competitive. In 2008, when petitioner sought admission to the University’s entering class, she was 1 of 29,501 applicants. From this group 12,843 were admitted, and 6,715 accepted and enrolled. Petitioner was denied admission.      In recent years the University has used three different programs to evaluate candidates for admission. The first is the program it used for some years before 1997, when the University considered two factors: a numerical score reflecting an applicant’s test scores and academic perform-ance in high school (Academic Index or AI), and the applicant’s race. In 1996, this system was held unconstitutional by the United States Court of Appeals for the Fifth Circuit. It ruled the University’s consideration of race violated the Equal Protection Clause because it did not further any compelling government interest. Hopwood v. Texas, 78 F. 3d 932, 955 (1996).      The second program was adopted to comply with the Hopwood decision. The University stopped considering race in admissions and substituted instead a new holistic metric of a candidate’s potential contribution to the University, to be used in conjunction with the Academic Index. This “Personal Achievement Index” (PAI) measures a student’s leadership and work experience, awards, extracurricular activities, community service, and other special circumstances that give insight into a student’s background. These included growing up in a single-parent home, speaking a language other than English at home, significant family responsibilities assumed by the applicant, and the general socioeconomic condition of the student’s family. Seeking to address the decline in minority enrollment after Hopwood, the University also expanded its outreach programs.      The Texas State Legislature also responded to the Hop-wood decision. It enacted a measure known as the Top Ten Percent Law, codified at Tex. Educ. Code Ann. §51.803 (West 2009). Also referred to as H. B. 588, the Top Ten Percent Law grants automatic admission to any public state college, including the University, to all students in the top 10% of their class at high schools in Texas that comply with certain standards.      The University’s revised admissions process, coupled with the operation of the Top Ten Percent Law, resulted in a more racially diverse environment at the University. Before the admissions program at issue in this case, in the last year under the post-Hopwood AI/PAI system that did not consider race, the entering class was 4.5% African-American and 16.9% Hispanic. This is in contrast with the 1996 pre-Hopwood and Top Ten Percent regime, when race was explicitly considered, and the University’s entering freshman class was 4.1% African-American and 14.5% Hispanic.      Following this Court’s decisions in Grutter v. Bollinger, supra, and Gratz v. Bollinger, 539 U. S. 244 (2003) , the University adopted a third admissions program, the 2004 program in which the University reverted to explicit consideration of race. This is the program here at issue. In Grutter, the Court upheld the use of race as one of many “plus factors” in an admissions program that considered the overall individual contribution of each candidate. In Gratz, by contrast, the Court held unconstitutional Michigan’s undergraduate admissions program, which automatically awarded points to applicants from certain racial minorities.      The University’s plan to resume race-conscious admissions was given formal expression in June 2004 in an in-ternal document entitled Proposal to Consider Race and Ethnicity in Admissions (Proposal). Supp. App. 1a. The Proposal relied in substantial part on a study of a subset of undergraduate classes containing between 5 and 24 students. It showed that few of these classes had significant enrollment by members of racial minorities. In addition the Proposal relied on what it called “anecdotal” reports from students regarding their “interaction in the classroom.” The Proposal concluded that the University lacked a “critical mass” of minority students and that to remedy the deficiency it was necessary to give explicit consideration to race in the undergraduate admissions program.      To implement the Proposal the University included a student’s race as a component of the PAI score, begin- ning with applicants in the fall of 2004. The University asks students to classify themselves from among five predefined racial categories on the application. Race is not assigned an explicit numerical value, but it is undisputed that race is a meaningful factor.      Once applications have been scored, they are plotted on a grid with the Academic Index on the x-axis and the Personal Achievement Index on the y-axis. On that grid students are assigned to so-called cells based on their individual scores. All students in the cells falling above a certain line are admitted. All students below the line are not. Each college—such as Liberal Arts or Engineering—admits students separately. So a student is considered initially for her first-choice college, then for her second choice, and finally for general admission as an undeclared major.      Petitioner applied for admission to the University’s 2008 entering class and was rejected. She sued the University and various University officials in the United States District Court for the Western District of Texas. She alleged that the University’s consideration of race in admissions violated the Equal Protection Clause. The parties cross-moved for summary judgment. The District Court granted summary judgment to the University. The United States Court of Appeals for the Fifth Circuit affirmed. It held that Grutter required courts to give substantial deference to the University, both in the definition of the compelling interest in diversity’s benefits and in deciding whether its specific plan was narrowly tailored to achieve its stated goal. Applying that standard, the court upheld the University’s admissions plan. 631 F. 3d 213, 217–218 (2011).      Over the dissent of seven judges, the Court of Appeals denied petitioner’s request for rehearing en banc. See 644 F. 3d 301, 303 (CA5 2011) (per curiam). Petitioner sought a writ of certiorari. The writ was granted. 565 U. S. ___ (2012). B      Among the Court’s cases involving racial classifications in education, there are three decisions that directly address the question of considering racial minority status as a positive or favorable factor in a university’s admissions process, with the goal of achieving the educational benefits of a more diverse student body: Bakke, 438 U. S. 265 ; Gratz, supra; and Grutter, 539 U. S. 306 . We take those cases as given for purposes of deciding this case.      We begin with the principal opinion authored by Justice Powell in Bakke, supra. In Bakke, the Court considered a system used by the medical school of the University of California at Davis. From an entering class of 100 students the school had set aside 16 seats for minority applicants. In holding this program impermissible under the Equal Protection Clause Justice Powell’s opinion stated certain basic premises. First, “decisions based on race or ethnic origin by faculties and administrations of state universities are reviewable under the Fourteenth Amend-ment.” Id., at 287 (separate opinion). The principle of equal protection admits no “artificial line of a ‘two- class theory’ ” that “permits the recognition of special wards entitled to a degree of protection greater than that accorded others.” Id., at 295. It is therefore irrelevant that a system of racial preferences in admissions may seem benign. Any racial classification must meet strict scrutiny, for when government decisions “touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.” Id., at 299.      Next, Justice Powell identified one compelling interest that could justify the consideration of race: the interest in the educational benefits that flow from a diverse student body. Redressing past discrimination could not serve as a compelling interest, because a university’s “broad mission [of] education” is incompatible with making the “judicial, legislative, or administrative findings of constitutional or statutory violations” necessary to justify remedial racial classification. Id., at 307–309.      The attainment of a diverse student body, by contrast, serves values beyond race alone, including enhanced class-room dialogue and the lessening of racial isolation and stereotypes. The academic mission of a university is “a special concern of the First Amendment.” Id., at 312. Part of “ ‘the business of a university [is] to provide that atmosphere which is most conducive to speculation, experiment, and creation,’ ” and this in turn leads to the question of “ ‘who may be admitted to study.’ ” Sweezy v. New Hampshire, 354 U. S. 234, 263 (1957) (Frankfurter, J., concurring in judgment).      Justice Powell’s central point, however, was that this interest in securing diversity’s benefits, although a permissible objective, is complex. “It is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, with the remaining percentage an undifferentiated aggregation of students. The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” Bakke, 438 U. S., at 315 (separate opinion).      In Gratz, 539 U. S. 244 , and Grutter, supra, the Court endorsed the precepts stated by Justice Powell. In Grutter, the Court reaffirmed his conclusion that obtaining the educational benefits of “student body diversity is a compelling state interest that can justify the use of race in university admissions.” Id., at 325.      As Gratz and Grutter observed, however, this follows only if a clear precondition is met: The particular admissions process used for this objective is subject to judicial review. Race may not be considered unless the admissions process can withstand strict scrutiny. “Nothing in Justice Powell’s opinion in Bakke signaled that a university may employ whatever means it desires to achieve the stated goal of diversity without regard to the limits imposed by our strict scrutiny analysis.” Gratz, supra, at 275. “To be narrowly tailored, a race-conscious admissions program cannot use a quota system,” Grutter, 539 U. S., at 334, but instead must “remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application,” id., at 337. Strict scru-tiny requires the university to demonstrate with clarity that its “purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary . . . to the accomplishment of its purpose.” Bakke, 438 U. S., at 305 (opinion of Powell, J.) (internal quotation marks omitted).      While these are the cases that most specifically address the central issue in this case, additional guidance may be found in the Court’s broader equal protection jurisprudence which applies in this context. “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people,” Rice v. Cayetano, 528 U. S. 495, 517 (2000) (internal quotation marks omitted), and therefore “are contrary to our traditions and hence constitutionally suspect,” Bolling v. Sharpe, 347 U. S. 497, 499 (1954) . “ ‘[B]ecause racial characteristics so seldom provide a relevant basis for disparate treatment,’ ” Richmond v. J. A. Croson Co., 488 U. S. 469, 505 (1989) (quoting Fullilove v. Klutznick, 448 U. S. 448 –534 (1980) (Stevens, J., dissenting)), “the Equal Protection Clause demands that racial classifications . . . be subjected to the ‘most rigid scrutiny.’ ” Loving v. Virginia, 388 U. S. 1, 11 (1967) .      To implement these canons, judicial review must begin from the position that “any official action that treats a person differently on account of his race or ethnic origin is inherently suspect.” Fullilove, supra, at 523 (Stewart, J., dissenting); McLaughlin v. Florida, 379 U. S. 184, 192 (1964) . Strict scrutiny is a searching examination, and it is the government that bears the burden to prove “ ‘that the reasons for any [racial] classification [are] clearly iden-tified and unquestionably legitimate,’ ” Croson, supra, at 505 (quoting Fullilove, 448 supra, at 533–535 (Stevens, J., dissenting)). II      Grutter made clear that racial “classifications are constitutional only if they are narrowly tailored to further compelling governmental interests.” 539 U. S., at 326. And Grutter endorsed Justice Powell’s conclusion in Bakke that “the attainment of a diverse student body . . . is a consti-tutionally permissible goal for an institution of higher education.” 438 U. S., at 311–312 (separate opinion). Thus, under Grutter, strict scrutiny must be applied to any admissions program using racial categories or classifications.      According to Grutter, a university’s “educational judgment that such diversity is essential to its educational mission is one to which we defer.” 539 U. S., at 328. Grutter concluded that the decision to pursue “the educational benefits that flow from student body diversity,” id., at 330, that the University deems integral to its mission is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper under Grutter. A court, of course, should ensure that there is a reasoned, principled explanation for the academic decision. On this point, the District Court and Court of Appeals were correct in finding that Grutter calls for de-ference to the University’s conclusion, “ ‘based on its experience and expertise,’ ” 631 F. 3d, at 230 (quoting 645 F. Supp. 2d 587, 603 (WD Tex. 2009)), that a diverse student body would serve its educational goals. There is disagreement about whether Grutter was consistent with the principles of equal protection in approving this compelling interest in diversity. See post, at 1 (Scalia, J., concurring); post, at 4–5 (Thomas, J., concurring); post, at 1–2 (Ginsburg, J., dissenting). But the parties here do not ask the Court to revisit that aspect of Grutter’s holding.      A university is not permitted to define diversity as “some specified percentage of a particular group merely because of its race or ethnic origin.” Bakke, supra, at 307 (opinion of Powell, J.). “That would amount to outright racial balancing, which is patently unconstitutional.” Grutter, supra, at 330. “Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’ ” Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 732 (2007) .      Once the University has established that its goal of di-versity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation. The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference. Grutter made clear that it is for the courts, not for university administrators, to ensure that “[t]he means chosen to accomplish the [government’s] asserted purpose must be specifically and narrowly framed to accomplish that purpose.” 539 U. S., at 333 (internal quotation marks omitted). True, a court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes. But, as the Court said in Grutter, it remains at all times the University’s obligation to demonstrate, and the Judiciary’s obligation to determine, that admissions processes “ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.” Id., at 337.      Narrow tailoring also requires that the reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity. Bakke, supra, at 305. This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications. Although “[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative,” strict scrutiny does require a court to examine with care, and not defer to, a university’s “serious, good faith consideration of workable race-neutral alternatives.” See Grutter, 539 U. S., at 339–340 (emphasis added). Consideration by the university is of course necessary, but it is not sufficient to satisfy strict scrutiny: The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the edu-cational benefits of diversity. If “ ‘a nonracial approach . . . could promote the substantial interest about as well and at tolerable administrative expense,’ ” Wygant v. Jackson Bd. of Ed., 476 U. S. 267 , n. 6 (1986) (quoting Greenawalt, Judicial Scrutiny of “Benign” Racial Preference in Law School Admissions, 75 Colum. L. Rev. 559, 578–579 (1975)), then the university may not consider race. A plaintiff, of course, bears the burden of placing the validity of a university’s adoption of an affirmative action plan in issue. But strict scrutiny imposes on the univer-sity the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.      Rather than perform this searching examination, however, the Court of Appeals held petitioner could challenge only “whether [the University’s] decision to reintroduce race as a factor in admissions was made in good faith.” 631 F. 3d, at 236. And in considering such a challenge, the court would “presume the University acted in good faith” and place on petitioner the burden of rebutting that presumption. Id., at 231–232. The Court of Appeals held that to “second-guess the merits” of this aspect of the University’s decision was a task it was “ill-equipped to perform” and that it would attempt only to “ensure that [the University’s] decision to adopt a race-conscious admissions policy followed from [a process of] good faith consideration.” Id., at 231. The Court of Appeals thus concluded that “the narrow-tailoring inquiry—like the compelling-interest inquiry—is undertaken with a degree of deference to the Universit[y].” Id., at 232. Because “the efforts of the University have been studied, serious, and of high purpose,” the Court of Appeals held that the use of race in the admissions program fell within “a constitutionally protected zone of discretion.” Id., at 231.      These expressions of the controlling standard are at odds with Grutter’s command that “all racial classifications imposed by government ‘must be analyzed by a reviewing court under strict scrutiny.’ ” 539 U. S., at 326 (quoting Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227 (1995) ). In Grutter, the Court approved the plan at issue upon concluding that it was not a quota, was sufficiently flexible, was limited in time, and followed “serious, good faith consideration of workable race-neutral alternatives.” 539 U. S., at 339. As noted above, see supra, at 1, the parties do not challenge, and the Court therefore does not consider, the correctness of that determination.      Grutter did not hold that good faith would forgive an impermissible consideration of race. It must be remembered that “the mere recitation of a ‘benign’ or legitimate purpose for a racial classification is entitled to little or no weight.” Croson, 488 U. S., at 500. Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice.      The higher education dynamic does not change the narrow tailoring analysis of strict scrutiny applicable in other contexts. “[T]he analysis and level of scrutiny applied to determine the validity of [a racial] classification do not vary simply because the objective appears acceptable . . . . While the validity and importance of the objective may affect the outcome of the analysis, the analysis itself does not change.” Mississippi Univ. for Women v. Hogan, 458 U. S. 718 , n. 9 (1982).      The District Court and Court of Appeals confined the strict scrutiny inquiry in too narrow a way by deferring to the University’s good faith in its use of racial classifications and affirming the grant of summary judgment on that basis. The Court vacates that judgment, but fairness to the litigants and the courts that heard the case requires that it be remanded so that the admissions process can be considered and judged under a correct analysis. See Adarand, supra, at 237. Unlike Grutter, which was decided after trial, this case arises from cross-motions for summary judgment. In this case, as in similar cases, in determining whether summary judgment in favor of the University would be appropriate, the Court of Appeals must assess whether the University has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity. Whether this record—and not “simple . . . assurances of good intention,” Croson, supra, at 500—is sufficient is a question for the Court of Appeals in the first instance. *  *  *      Strict scrutiny must not be “ ‘strict in theory, but fatal in fact,’ ” Adarand, supra, at 237; see also Grutter, supra, at 326. But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact. In order for judicial review to be meaningful, a university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that “encompasses a . . . broa[d] array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” Bakke, 438 U. S., at 315 (opinion of Powell, J.). The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.      Justice Kagan took no part in the consideration or decision of this case. SUPREME COURT OF THE UNITED STATES _________________ No. 11–345 _________________ ABIGAIL NOEL FISHER, PETITIONER v. UNIVERSITY OF TEXAS AT AUSTIN et al. on writ of certiorari to the united states court of appeals for the fifth circuit [June 24, 2013]      Justice Scalia, concurring.      I adhere to the view I expressed in Grutter v. Bollinger: “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.” 539 U. S. 306, 349 (2003) (opinion concurring in part and dissenting in part). The petitioner in this case did not ask us to overrule Grutter’s holding that a “compelling interest” in the educational benefits of diversity can justify racial preferences in university admissions. Tr. of Oral Arg. 8–9. I therefore join the Court’s opinion in full. SUPREME COURT OF THE UNITED STATES _________________ No. 11–345 _________________ ABIGAIL NOEL FISHER, PETITIONER v. UNIVERSITY OF TEXAS AT AUSTIN et al. on writ of certiorari to the united states court of appeals for the fifth circuit [June 24, 2013]      Justice Thomas, concurring.      I join the Court’s opinion because I agree that the Court of Appeals did not apply strict scrutiny to the University of Texas at Austin’s (University) use of racial discrimi- nation in admissions decisions. Ante, at 1. I write separately to explain that I would overrule Grutter v. Bollinger, 539 U. S. 306 (2003) , and hold that a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause. I A      The Fourteenth Amendment provides that no State shall “deny to any person . . . the equal protection of the laws.” The Equal Protection Clause guarantees every person the right to be treated equally by the State, without regard to race. “At the heart of this [guarantee] lies the principle that the government must treat citizens as individuals, and not as members of racial, ethnic, or religious groups.” Missouri v. Jenkins, 515 U. S. 70 –121 (1995) (Thomas, J., concurring). “It is for this reason that we must subject all racial classifications to the strictest of scrutiny.” Id., at 121.      Under strict scrutiny, all racial classifications are categorically prohibited unless they are “ ‘necessary to further a compelling governmental interest’ ” and “narrowly tailored to that end.” Johnson v. California, 543 U. S. 499, 514 (2005) (quoting Grutter, supra, at 327). This most exacting standard “has proven automatically fatal” in almost every case. Jenkins, supra, at 121 (Thomas, J., concurring). And rightly so. “Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that [racial] classifications ultimately have a destructive impact on the individual and our society.” Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 240 (1995) (Thomas, J., concurring in part and concurring in judgment). “The Constitution abhors classifications based on race” because “every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.” Grutter, supra, at 353 (Thomas, J., concurring in part and dissenting in part). B 1      The Court first articulated the strict-scrutiny standard in Korematsu v. United States, 323 U. S. 214 (1944) . There, we held that “[p]ressing public necessity may sometimes justify the existence of [racial discrimination]; racial antagonism never can.” Id., at 216. [ 1 ] Aside from Grutter, the Court has recognized only two instances in which a “[p]ressing public necessity” may justify racial discrimination by the government. First, in Korematsu, the Court recognized that protecting national security may satisfy this exacting standard. In that case, the Court upheld an evacuation order directed at “all persons of Japanese ancestry” on the grounds that the Nation was at war with Japan and that the order had “a definite and close relationship to the prevention of espionage and sabotage.” 323 U. S., at 217–218. Second, the Court has recognized that the government has a compelling interest in remedying past discrimination for which it is responsible, but we have stressed that a government wishing to use race must provide “a ‘strong basis in evidence for its conclusion that remedial action [is] necessary.’ ” Richmond v. J. A. Croson Co., 488 U. S. 469, 500, 504 (1989) (quoting Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 277 (1986) (plurality opinion)).      In contrast to these compelling interests that may, in a narrow set of circumstances, justify racial discrimination, the Court has frequently found other asserted interests insufficient. For example, in Palmore v. Sidoti, 466 U. S. 429 (1984) , the Court flatly rejected a claim that the best interests of a child justified the government’s racial discrimination. In that case, a state court awarded custody to a child’s father because the mother was in a mixed-race marriage. The state court believed the child might be stigmatized by living in a mixed-race household and sought to avoid this perceived problem in its custody determination. We acknowledged the possibility of stigma but nevertheless concluded that “the reality of private biases and the possible injury they might inflict” do not justify racial discrimination. Id., at 433. As we explained, “The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Ibid.      Two years later, in Wygant, supra, the Court held that even asserted interests in remedying societal discrimination and in providing role models for minority students could not justify governmentally imposed racial discrimination. In that case, a collective-bargaining agreement between a school board and a teacher’s union favored teachers who were “ ‘Black, American Indian, Oriental, or of Spanish descendancy.’ ” Id., at 270–271, and n. 2 (plurality opinion). We rejected the interest in remedying societal discrimination because it had no logical stopping point. Id., at 276. We similarly rebuffed as inadequate the interest in providing role models to minority students and added that the notion that “black students are better off with black teachers could lead to the very system the Court rejected in Brown v. Board of Education, 347 U. S. 483 (1954) .” Ibid. 2      Grutter was a radical departure from our strict-scrutiny precedents. In Grutter, the University of Michigan Law School (Law School) claimed that it had a compelling reason to discriminate based on race. The reason it advanced did not concern protecting national security or remedying its own past discrimination. Instead, the Law School argued that it needed to discriminate in admissions decisions in order to obtain the “educational benefits that flow from a diverse student body.” 539 U. S., at 317. Contrary to the very meaning of strict scrutiny, the Court deferred to the Law School’s determination that this interest was sufficiently compelling to justify racial discrimination. Id., at 325.      I dissented from that part of the Court’s decision. I explained that “only those measures the State must take to provide a bulwark against anarchy, or to prevent violence, will constitute a ‘pressing public necessity’ ” sufficient to satisfy strict scrutiny. Id., at 353. Cf. Lee v. Washington, 390 U. S. 333, 334 (1968) (Black, J., concurring) (protecting prisoners from violence might justify narrowly tailored discrimination); J. A. Croson, supra, at 521 (Scalia, J., concurring in judgment) (“At least where state or local action is at issue, only a social emergency rising to the level of imminent danger to life and limb . . . can justify [racial discrimination]”). I adhere to that view today. As should be obvious, there is nothing “pressing” or “necessary” about obtaining whatever educational benefits may flow from racial diversity. II A      The University claims that the District Court found that it has a compelling interest in attaining “a diverse stu- dent body and the educational benefits flowing from such diversity.” Brief for Respondents 18. The use of the conjunction, “and,” implies that the University believes its discrimination furthers two distinct interests. The first is an interest in attaining diversity for its own sake. The sec- ond is an interest in attaining educational benefits that allegedly flow from diversity.      Attaining diversity for its own sake is a nonstarter. As even Grutter recognized, the pursuit of diversity as an end is nothing more than impermissible “racial balancing.” 539 U. S., at 329–330 (“The Law School’s interest is not simply ‘to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin.’ That would amount to outright racial balancing, which is patently unconstitutional” (quoting Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 307 (1978) ; citation omitted)); see also id., at 307 (“Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids”). Rather, diversity can only be the means by which the University obtains educational benefits; it cannot be an end pursued for its own sake. Therefore, the educational benefits allegedly produced by diversity must rise to the level of a compelling state interest in order for the program to survive strict scrutiny.      Unfortunately for the University, the educational benefits flowing from student body diversity—assuming they exist—hardly qualify as a compelling state interest. Indeed, the argument that educational benefits justify racial discrimination was advanced in support of racial segregation in the 1950’s, but emphatically rejected by this Court. And just as the alleged educational benefits of segregation were insufficient to justify racial discrimination then, see Brown v. Board of Education, 347 U. S. 483 (1954) , the alleged educational benefits of diversity cannot justify racial discrimination today. 1      Our desegregation cases establish that the Constitution prohibits public schools from discriminating based on race, even if discrimination is necessary to the schools’ survival. In Davis v. School Bd. of Prince Edward Cty., decided with Brown, supra, the school board argued that if the Court found segregation unconstitutional, white students would migrate to private schools, funding for public schools would decrease, and public schools would either decline in quality or cease to exist altogether. Brief for Appellees in Davis v. School Bd. of Prince Edward Cty., O. T. 1952, No. 191, p. 30 (hereinafter Brief for Appellees in Davis) (“Virginians . . . would no longer permit sizeable appropriations for schools on either the State or local level; private segregated schools would be greatly increased in number and the masses of our people, both white and Negro, would suffer terribly. . . . [M]any white parents would withdraw their children from the public schools and, as a result, the program of providing better schools would be abandoned” (internal quotation marks omitted)). The true victims of desegregation, the school board asserted, would be black students, who would be unable to afford private school. See id., at 31 (“[W]ith the demise of segregation, education in Virginia would receive a serious setback. Those who would suffer most would be the Negroes who, by and large, would be economically less able to afford the private school”); Tr. of Oral Arg. in Davis v. School Bd. of Prince Edward Cty., O. T. 1954, No. 3, p. 208 (“What is worst of all, in our opinion, you impair the public school system of Virginia and the victims will be the children of both races, we think the Negro race worse than the white race, because the Negro race needs it more by virtue of these disadvantages under which they have labored. We are up against the proposition: What does the Negro profit if he procures an immediate detailed decree from this Court now and then impairs or mars or destroys the public school system in Prince Edward County”). [ 2 ]      Unmoved by this sky-is-falling argument, we held that segregation violates the principle of equality enshrined in the Fourteenth Amendment. See Brown, supra, at 495 (“[I]n the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal”); see also Allen v. School Bd. of Prince Edward Cty., 249 F. 2d 462, 465 (CA4 1957) (per curiam) (“The fact that the schools might be closed if the order were enforced is no reason for not enforcing it. A person may not be denied enforcement of rights to which he is entitled under the Constitution of the United States because of action taken or threatened in defiance of such rights”). Within a matter of years, the warning became reality: After being ordered to desegregate, Prince Edward County closed its public schools from the summer of 1959 until the fall of 1964. See R. Sarratt, The Ordeal of Desegregation 237 (1966). Despite this fact, the Court never backed down from its rigid enforcement of the Equal Protection Clause’s antidiscrimination principle.      In this case, of course, Texas has not alleged that the University will close if it is prohibited from discriminating based on race. But even if it had, the foregoing cases make clear that even that consequence would not justify its use of racial discrimination. It follows, a fortiori, that the putative educational benefits of student body diversity cannot justify racial discrimination: If a State does not have a compelling interest in the existence of a university, it certainly cannot have a compelling interest in the supposed benefits that might accrue to that university from racial discrimination. See Grutter, 539 U. S., at 361 (opinion of Thomas, J.) (“[A] marginal improvement in legal education cannot justify racial discrimination where the Law School has no compelling interest either in its exis- tence or in its current educational and admissions policies”). If the Court were actually applying strict scrutiny, it would require Texas either to close the University or to stop discriminating against applicants based on their race. The Court has put other schools to that choice, and there is no reason to treat the University differently. 2      It is also noteworthy that, in our desegregation cases, we rejected arguments that are virtually identical to those advanced by the University today. The University asserts, for instance, that the diversity obtained through its discriminatory admissions program prepares its students to become leaders in a diverse society. See, e.g., Brief for Respondents 6 (arguing that student body diversity “prepares students to become the next generation of leaders in an increasingly diverse society”). The segregationists likewise defended segregation on the ground that it provided more leadership opportunities for blacks. See, e.g., Brief for Respondents in Sweatt 96 (“[A] very large group of Northern Negroes [comes] South to attend separate colleges, suggesting that the Negro does not secure as well-rounded a college life at a mixed college, and that the separate college offers him positive advantages; that there is a more normal social life for the Negro in a separate college; that there is a greater opportunity for full participation and for the development of leadership; that the Negro is inwardly more ‘secure’ at a college of his own people”); Brief for Appellees in Davis 25–26 (“The Negro child gets an opportunity to participate in segregated schools that I have never seen accorded to him in non-segregated schools. He is important, he holds offices, he is accepted by his fellows, he is on athletic teams, he has a full place there” (internal quotation marks omitted)). This argument was unavailing. It is irrelevant under the Fourteenth Amendment whether segregated or mixed schools produce better leaders. Indeed, no court today would accept the suggestion that segregation is permissible because historically black colleges produced Booker T. Washington, Thurgood Marshall, Martin Luther King, Jr., and other prominent leaders. Likewise, the University’s racial discrimination cannot be justified on the ground that it will produce better leaders.      The University also asserts that student body diversity improves interracial relations. See, e.g., Brief for Respondents 6 (arguing that student body diversity promotes “cross-racial understanding” and breaks down racial and ethnic stereotypes). In this argument, too, the University repeats arguments once marshaled in support of segregation. See, e.g., Brief for Appellees in Davis 17 (“Virginia has established segregation in certain fields as a part of her public policy to prevent violence and reduce resentment. The result, in the view of an overwhelming Virginia majority, has been to improve the relationship between the different races”); id., at 25 (“If segregation be stricken down, the general welfare will be definitely harmed . . . there would be more friction developed” (internal quotation marks omitted)); Brief for Respondents in Sweatt 93 (“Texas has had no serious breaches of the peace in recent years in connection with its schools. The separation of the races has kept the conflicts at a minimum”); id., at 97–98 (“The legislative acts are based not only on the belief that it is the best way to provide education for both races, and the knowledge that separate schools are necessary to keep public support for the public schools, but upon the necessity to maintain the public peace, harmony, and welfare”); Brief for Appellees in Briggs 32 (“The southern Negro, by and large, does not want an end to segregation in itself any more than does the southern white man. The Negro in the South knows that discriminations, and worse, can and would multiply in such event” (internal quotation marks omitted)). We flatly rejected this line of arguments in McLaurin v. Oklahoma State Regents for Higher Ed., 339 U. S. 637 (1950) , where we held that segregation would be unconstitutional even if white students never tolerated blacks. Id., at 641 (“It may be argued that appellant will be in no better position when these restrictions are removed, for he may still be set apart by his fellow students. This we think irrelevant. There is a vast difference—a Constitutional difference—between restrictions imposed by the state which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state presents no such bar”). It is, thus, entirely irrelevant whether the University’s racial discrimination increases or decreases tolerance.      Finally, while the University admits that racial discrimination in admissions is not ideal, it asserts that it is a temporary necessity because of the enduring race consciousness of our society. See Brief for Respondents 53–54 (“Certainly all aspire for a colorblind society in which race does not matter . . . . But in Texas, as in America, ‘our highest aspirations are yet unfulfilled’ ”). Yet again, the University echoes the hollow justifications advanced by the segregationists. See, e.g., Brief for State of Kansas on Reargument in Brown v. Board of Education, O. T. 1953, No. 1, p. 56 (“We grant that segregation may not be the ethical or political ideal. At the same time we recognize that practical considerations may prevent realization of the ideal”); Brief for Respondents in Sweatt 94 (“The racial consciousness and feeling which exists today in the minds of many people may be regrettable and unjustified. Yet they are a reality which must be dealt with by the State if it is to preserve harmony and peace and at the same time furnish equal education to both groups”); id., at 96 (“ ‘[T]he mores of racial relationships are such as to rule out, for the present at least, any possibility of admitting white persons and Negroes to the same institutions’ ”); Brief for Appellees in Briggs 26–27 (“[I]t would be unwise in administrative practice . . . to mix the two races in the same schools at the present time and under present conditions”); Brief for Appellees on Reargument in Briggs v. Elliott, O. T. 1953, No. 2, p. 79 (“It is not ‘racism’ to be cognizant of the fact that mankind has struggled with race problems and racial tensions for upwards of sixty centuries”). But these arguments too were unavailing. The Fourteenth Amendment views racial bigotry as an evil to be stamped out, not as an excuse for perpetual racial tinkering by the State. See DeFunis v. Odegaard, 416 U. S. 312, 342 (1974) (Douglas, J., dissenting) (“The Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized”). The University’s arguments to this effect are similarly insufficient to justify discrimination. [ 3 ] 3      The University’s arguments today are no more persuasive than they were 60 years ago. Nevertheless, despite rejecting identical arguments in Brown, the Court in Grutter deferred to the University’s determination that the diversity obtained by racial discrimination would yield educational benefits. There is no principled distinction between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits. See Grutter, 539 U. S., at 365–366 (opinion of Thomas, J.) (“Con- tained within today’s majority opinion is the seed of a new constitutional justification for a concept I thought long and rightly rejected—racial segregation”). Educational benefits are a far cry from the truly compelling state interests that we previously required to justify use of racial classifications. B      My view of the Constitution is the one advanced by the plaintiffs in Brown: “[N]o State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Tr. of Oral Arg. in Brown v. Board of Education, O. T. 1952, No. 8, p. 7; see also Juris. Statement in Davis v. School Bd. of Prince Edward Cty., O. T. 1952, No. 191, p. 8 (“[W]e take the unqualified position that the Fourteenth Amendment has totally stripped the state of power to make race and color the basis for governmental action”); Brief for Appellants in Brown v. Board of Education, O. T. 1952, No. 8, p. 5 (“The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone”); Brief for Appellants in Nos. 1, 2, and 4, and for Respondents in No. 10 on Reargument in Brown v. Board of Education, O. T. 1953, p. 65 (“That the Constitution is color blind is our dedicated belief”). The Constitution does not pander to faddish theories about whether race mixing is in the public interest. The Equal Protection Clause strips States of all authority to use race as a factor in providing education. All applicants must be treated equally under the law, and no benefit in the eye of the beholder can justify racial discrimination.      This principle is neither new nor difficult to understand. In 1868, decades before Plessy, the Iowa Supreme Court held that schools may not discriminate against applicants based on their skin color. In Clark v. Board of Directors, 24 Iowa 266 (1868), a school denied admission to a student because she was black, and “public sentiment [was] opposed to the intermingling of white and colored children in the same schools.” Id., at 269. The Iowa Supreme Court rejected that flimsy justification, holding that “all the youths are equal before the law, and there is no discretion vested in the board . . . or elsewhere, to interfere with or disturb that equality.” Id., at 277. “For the courts to sustain a board of school directors . . . in limiting the rights and privileges of persons by reason of their [race], would be to sanction a plain violation of the spirit of our laws not only, but would tend to perpetuate the national differences of our people and stimulate a constant strife, if not a war of races.” Id., at 276. This simple, yet fundamental, truth was lost on the Court in Plessy and Grutter.      I would overrule Grutter and hold that the University’s admissions program violates the Equal Protection Clause because the University has not put forward a compelling interest that could possibly justify racial discrimination. III      While I find the theory advanced by the University to justify racial discrimination facially inadequate, I also believe that its use of race has little to do with the alleged educational benefits of diversity. I suspect that the University’s program is instead based on the benighted notion that it is possible to tell when discrimination helps, rather than hurts, racial minorities. See post, at 3 (Ginsburg, J., dissenting) (“[G]overnment actors, including state universities, need not be blind to the lingering effects of ‘an overtly discriminatory past,’ the legacy of ‘centuries of law-sanctioned inequality’ ”). But “[h]istory should teach greater humility.” Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 609 (1990) (O’Connor, J., dissenting). The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities. A      Slaveholders argued that slavery was a “positive good” that civilized blacks and elevated them in every dimension of life. See, e.g., Calhoun, Speech in the U. S. Senate, 1837, in P. Finkelman, Defending Slavery 54, 58–59 (2003) (“Never before has the black race of Central Africa, from the dawn of history to the present day, attained a condition so civilized and so improved, not only physically, but morally and intellectually. . . . [T]he relation now existing in the slaveholding States between the two [races], is, instead of an evil, a good—a positive good”); Harper, Memoir on Slavery, in The Ideology of Slavery 78, 115–116 (D. Faust ed. 1981) (“Slavery, as it is said in an eloquent article published in a Southern periodical work . . . ‘has done more to elevate a degraded race in the scale of humanity; to tame the savage; to civilize the barbarous; to soften the ferocious; to enlighten the ignorant, and to spread the blessings of [C]hristianity among the heathen, than all the missionaries that philanthropy and religion have ever sent forth’ ”); Hammond, The Mudsill Speech, 1858, in Defending Slavery, supra, at 80, 87 (“They are elevated from the condition in which God first created them, by being made our slaves”).      A century later, segregationists similarly asserted that segregation was not only benign, but good for black students. They argued, for example, that separate schools protected black children from racist white students and teachers. See, e.g., Brief for Appellees in Briggs 33–34 (“ ‘I have repeatedly seen wise and loving colored parents take infinite pains to force their little children into schools where the white children, white teachers, and white parents despised and resented the dark child, made mock of it, neglected or bullied it, and literally rendered its life a living hell. Such parents want their child to “fight” this thing out,—but, dear God, at what a cost! . . . We shall get a finer, better balance of spirit; an infinitely more capable and rounded personality by putting children in schools where they are wanted, and where they are happy and inspired, than in thrusting them into hells where they are ridiculed and hated’ ” (quoting DuBois, Does the Negro Need Separate Schools? 4 J. of Negro Educ. 328, 330–331 (1935))); Tr. of Oral Arg. in Bolling v. Sharpe, O. T. 1952, No. 413, p. 56 (“There was behind these [a]cts a kindly feeling [and] an intention to help these people who had been in bondage. And there was and there still is an intention by the Congress to see that these children shall be educated in a healthful atmosphere, in a wholesome atmosphere, in a place where they are wanted, in a place where they will not be looked upon with hostility, in a place where there will be a receptive atmosphere for learning for both races without the hostility that undoubtedly Congress thought might creep into these situations”). And they even appealed to the fact that many blacks agreed that separate schools were in the “best interests” of both races. See, e.g., Brief for Appellees in Davis 24–25 (“ ‘It has been my experience, in working with the people of Virginia, including both white and Negro, that the customs and the habits and the traditions of Virginia citizens are such that they believe for the best interests of both the white and the Negro that the separate school is best’ ”).      Following in these inauspicious footsteps, the University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign. “ ‘[B]enign’ carries with it no independent meaning, but reflects only acceptance of the current generation’s conclusion that a politically acceptable burden, imposed on particular citizens on the basis of race, is reasonable.” See Metro Broadcasting, 497 U. S., at 610 (O’Connor, J., dissenting). It is for this reason that the Court has repeatedly held that strict scrutiny applies to all racial classifications, regardless of whether the government has benevolent motives. See, e.g., Johnson, 543 U. S., at 505 (“We have insisted on strict scrutiny in every context, even for so-called ‘benign’ racial classifications”); Adarand, 515 U. S., at 227 (“[A]ll racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny”); J. A. Croson, 488 U. S., at 500 (“Racial classifications are suspect, and that means that simple legislative assurances of good intention cannot suffice”). The University’s professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists. B      While it does not, for constitutional purposes, matter whether the University’s racial discrimination is benign, I note that racial engineering does in fact have insidious consequences. There can be no doubt that the University’s discrimination injures white and Asian applicants who are denied admission because of their race. But I believe the injury to those admitted under the University’s discriminatory admissions program is even more harmful.      Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates. In the University’s entering class of 2009, for example, among the students admitted outside the Top Ten Percent plan, blacks scored at the 52d percentile of 2009 SAT takers nationwide, while Asians scored at the 93d percentile. Brief for Richard Sander et al. as Amici Curiae 3–4, and n. 4. Blacks had a mean GPA of 2.57 and a mean SAT score of 1524; Hispanics had a mean GPA of 2.83 and a mean SAT score of 1794; whites had a mean GPA of 3.04 and a mean SAT score of 1914; and Asians had a mean GPA of 3.07 and a mean SAT score of 1991. [ 4 ] Ibid.      Tellingly, neither the University nor any of the 73 amici briefs in support of racial discrimination has presented a shred of evidence that black and Hispanic students are able to close this substantial gap during their time at the University. Cf. Thernstrom & Thernstrom, Reflections on the Shape of the River, 46 UCLA L. Rev. 1583, 1605–1608 (1999) (discussing the failure of defenders of racial discrimination in admissions to consider the fact that its “beneficiaries” are underperforming in the classroom). “It is a fact that in virtually all selective schools . . . where racial preferences in admission is practiced, the majority of [black] students end up in the lower quarter of their class.” S. Cole & E. Barber, Increasing Faculty Diversity: The Occupational Choices of High-Achieving Minority Students 124 (2003). There is no reason to believe this is not the case at the University. The University and its dozens of amici are deafeningly silent on this point.      Furthermore, the University’s discrimination does nothing to increase the number of blacks and Hispanics who have access to a college education generally. Instead, the University’s discrimination has a pervasive shifting effect. See T. Sowell, Affirmative Action Around the World 145–146 (2004). The University admits minorities who otherwise would have attended less selective colleges where they would have been more evenly matched. But, as a result of the mismatching, many blacks and Hispanics who likely would have excelled at less elite schools are placed in a position where underperformance is all but inevitable because they are less academically prepared than the white and Asian students with whom they must compete. Setting aside the damage wreaked upon the self-confidence of these overmatched students, there is no evidence that they learn more at the University than they would have learned at other schools for which they were better prepared. Indeed, they may learn less.      The Court of Appeals believed that the University needed to enroll more blacks and Hispanics because they remained “clustered in certain programs.” 631 F. 3d 213, 240 (CA5 2011) (“[N]early a quarter of the undergraduate students in [the University’s] College of Social Work are Hispanic, and more than 10% are [black]. In the College of Education, 22.4% of students are Hispanic and 10.1% are [black]”). But racial discrimination may be the cause of, not the solution to, this clustering. There is some evidence that students admitted as a result of racial discrimination are more likely to abandon their initial aspirations to become scientists and engineers than are students with similar qualifications who attend less selective schools. See, e.g., Elliott, Strenta, Adair, Matier, & Scott, The Role of Ethnicity in Choosing and Leaving Science in Highly Selective Institutions, 37 Research in Higher Educ. 681, 699–701 (1996). [ 5 ] These students may well drift towards less competitive majors because the mismatch caused by racial discrimination in admissions makes it difficult for them to compete in more rigorous majors.      Moreover, the University’s discrimination “stamp[s] [blacks and Hispanics] with a badge of inferiority.” Adarand, 515 U. S., at 241 (opinion of Thomas, J.). It taints the accomplishments of all those who are admitted as a result of racial discrimination. Cf. J. McWhorter, Losing the Race: Self-Sabotage in Black America 248 (2000) (“I was never able to be as proud of getting into Stanford as my classmates could be. . . . [H]ow much of an achievement can I truly say it was to have been a good enough black person to be admitted, while my colleagues had been considered good enough people to be admitted”). And, it taints the accomplishments of all those who are the same race as those admitted as a result of racial discrimination. In this case, for example, most blacks and Hispanics attending the University were admitted without discrimination under the Top Ten Percent plan, but no one can distinguish those students from the ones whose race played a role in their admission. “When blacks [and Hispanics] take positions in the highest places of government, industry, or academia, it is an open question  . . . whether their skin color played a part in their advancement.” See Grutter, 539 U. S., at 373 (opinion of Thomas, J.). “The question itself is the stigma—because either racial discrimination did play a role, in which case the person may be deemed ‘otherwise unqualified,’ or it did not, in which case asking the question itself unfairly marks those . . . who would succeed without discrimination.” Ibid. Al- though cloaked in good intentions, the University’s racial tinkering harms the very people it claims to be helping. *  *  *      For the foregoing reasons, I would overrule Grutter. However, because the Court correctly concludes that the Court of Appeals did not apply strict scrutiny, I join its opinion. Notes 1 The standard of “pressing public necessity” is more frequently called a “compelling governmental interest.” I use the terms interchangeably. 2 Similar arguments were advanced unsuccessfully in other cases as well. See, e.g., Brief for Respondents in Sweatt v. Painter, O. T. 1949, No. 44, pp. 94–95 (hereinafter Brief for Respondents in Sweatt) (“[I]f the power to separate the students were terminated, . . . it would be as a bonanza to the private white schools of the State, and it would mean the migration out of the schools and the turning away from the public schools of the influence and support of a large number of children and of the parents of those children . . . who are the largest contributors to the cause of public education, and whose financial support is necessary for the continued progress of public education. . . . Should the State be required to mix the public schools, there is no question but that a very large group of students would transfer, or be moved by their parents, to private schools with a resultant deterioration of the public schools” (internal quotation marks omitted)); Brief for Appellees in Briggs v. Elliott, O. T. 1952, No. 101, p. 27 (hereinafter Brief for Appellees in Briggs) (“[I]t would be impossible to have sufficient acceptance of the idea of mixed groups attending the same schools to have public education on that basis at all . . . . [I]t would eliminate the public schools in most, if not all, of the communities in the State”). 3 While the arguments advanced by the University in defense of discrimination are the same as those advanced by the segregationists, one obvious difference is that the segregationists argued that it was segregation that was necessary to obtain the alleged benefits, whereas the University argues that diversity is the key. Today, the segre-gationists’ arguments would never be given serious considera-tion. But see M. Plocienniczak, Pennsylvania School Experiments with ‘Segregation,’ CNN (Jan. 27, 2011), http://www.cnn.com/2011/US/01/27/pennsylvania.segregation/?_s=PM:US (as visited June 21, 2013, and available in Clerk of Court’s case file). We should be equally hostile to the University’s repackaged version of the same arguments in support of its favored form of racial discrimination. 4 The lowest possible score on the SAT is 600, and the highest possible score is 2400. 5 The success of historically black colleges at producing graduates who go on to earn graduate degrees in science and engineering is well documented. See, e.g., National Science Foundation, J. Burrelli & A. Rapoport, InfoBrief, Role of HBCUs as Baccalaureate-Origin Institutions of Black S&E Doctorate Recipients 6 (2008) (Table 2) (showing that, from 1997–2006, Howard University had more black students who went on to earn science and engineering doctorates than any other undergraduate institution, and that 7 other historically black colleges ranked in the top 10); American Association of Medical Colleges, Diversity in Medical Education: Facts & Figures 86 (2012) (Table 19) (showing that, in 2011, Xavier University had more black students who went on to earn medical degrees than any other undergraduate institution and that Howard University was second). SUPREME COURT OF THE UNITED STATES _________________ No. 11–345 _________________ ABIGAIL NOEL FISHER, PETITIONER v. UNIVERSITY OF TEXAS AT AUSTIN et al. on writ of certiorari to the united states court of appeals for the fifth circuit [June 24, 2013]      Justice Ginsburg, dissenting.      The University of Texas at Austin (University) is candid about what it is endeavoring to do: It seeks to achieve student-body diversity through an admissions policy patterned after the Harvard plan referenced as exemplary in Justice Powell’s opinion in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 –317 (1978). The University has steered clear of a quota system like the one struck down in Bakke, which excluded all nonminority candidates from competition for a fixed number of seats. See id., at 272–275, 315, 319–320 (opinion of Powell, J.). See also Gratz v. Bollinger, 539 U. S. 244, 293 (2003) (Souter, J., dissenting) (“Justice Powell’s opinion in [Bakke] rules out a racial quota or set-aside, in which race is the sole fact of eligibility for certain places in a class.”). And, like so many educational institutions across the Nation, [ 1 ] the University has taken care to follow the model approved by the Court in Grutter v. Bollinger, 539 U. S. 306 (2003) . See 645 F. Supp. 2d 587, 609 (WD Tex. 2009) (“[T]he parties agree [that the University’s] policy was based on the [admissions] policy [upheld in Grutter].”).      Petitioner urges that Texas’ Top Ten Percent Law and race-blind holistic review of each application achieve significant diversity, so the University must be content with those alternatives. I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious. See Gratz, 539 U. S., at 303–304, n. 10 (dissenting opinion). As Justice Souter observed, the vaunted alternatives suffer from “the disadvantage of deliberate obfuscation.” Id., at 297–298 (dissenting opinion).      Texas’ percentage plan was adopted with racially segregated neighborhoods and schools front and center stage. See House Research Organization, Bill Analysis, HB 588, pp. 4–5 (Apr. 15, 1997) (“Many regions of the state, school districts, and high schools in Texas are still predominantly composed of people from a single racial or ethnic group. Because of the persistence of this segregation, admitting the top 10 percent of all high schools would provide a diverse population and ensure that a large, well qualified pool of minority students was admitted to Texas universities.”). It is race consciousness, not blindness to race, that drives such plans. [ 2 ] As for holistic review, if universities cannot explicitly include race as a factor, many may “resort to camouflage” to “maintain their minority enrollment.” Gratz, 539 U. S., at 304 (Ginsburg, J., dissenting).      I have several times explained why government actors, including state universities, need not be blind to the lingering effects of “an overtly discriminatory past,” the legacy of “centuries of law-sanctioned inequality.” Id., at 298 (dissenting opinion). See also Adarand Constructors, Inc. v. Peña, 515 U. S. 200 –274 (1995) (dissenting opinion). Among constitutionally permissible options, I remain convinced, “those that candidly disclose their consideration of race [are] preferable to those that conceal it.” Gratz, 539 U. S., at 305, n. 11 (dissenting opinion).      Accordingly, I would not return this case for a second look. As the thorough opinions below show, 631 F. 3d 213 (CA5 2011); 645 F. Supp. 2d 587, the University’s admissions policy flexibly considers race only as a “factor of a factor of a factor of a factor” in the calculus, id., at 608; followed a yearlong review through which the University reached the reasonable, good-faith judgment that supposedly race-neutral initiatives were insufficient to achieve, in appropriate measure, the educational benefits of student-body diversity, see 631 F. 3d, at 225–226; and is sub- ject to periodic review to ensure that the consideration of race remains necessary and proper to achieve the Uni- versity’s educational objectives, see id., at 226. [ 3 ] Justice Powell’s opinion in Bakke and the Court’s decision in Grutter require no further determinations. See Grutter, 539 U. S., at 333–343; Bakke, 438 U. S., at 315–320.      The Court rightly declines to cast off the equal protection framework settled in Grutter. See ante, at 5. Yet it stops short of reaching the conclusion that framework warrants. Instead, the Court vacates the Court of Appeals’ judgment and remands for the Court of Appeals to “assess whether the University has offered sufficient evidence [to] prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.” Ante, at 13. As I see it, the Court of Appeals has already completed that inquiry, and its judgment, trained on this Court’s Bakke and Grutter pathmarkers, merits our approbation. [ 4 ] *  *  *      For the reasons stated, I would affirm the judgment of the Court of Appeals. Notes 1 See Brief for Amherst College et al. as Amici Curiae 33–35; Brief for Association of American Law Schools as Amicus Curiae 6; Brief for Association of American Medical Colleges et al. as Amici Curiae 30–32; Brief for Brown University et al. as Amici Curiae 2–3, 13; Brief for Robert Post et al. as Amici Curiae 24–27; Brief for Fordham University et al. as Amici Curiae 5–6; Brief for University of Delaware et al. as Amici Curiae 16–21. 2 The notion that Texas’ Top Ten Percent Law is race neutral calls to mind Professor Thomas Reed Powell’s famous statement: “If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.” T. Arnold, The Symbols of Government 101 (1935) (internal quotation marks omitted). Only that kind of legal mind could conclude that an admissions plan specifically designed to produce racial diversity is not race conscious. 3 As the Court said in Grutter v. Bollinger, , “[n]arrow tailoring . . . require[s] serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.” But, Grutter also explained, it does not “require a university to choose between maintaining a reputation for excellence [and] fulfilling a commitment to provide educational opportunitiesto members of all racial groups.” Ibid. I do not read the Court tosay otherwise. See ante, at 10 (acknowledging that, in determining whether a race-conscious admissions policy satisfies Grutter’s narrow-tailoring requirement, “a court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes”). 4 Because the University’s admissions policy, in my view, is constitutional under Grutter, there is no need for the Court in this case “to revisit whether all governmental classifications by race, whether designed to benefit or to burden a historically disadvantaged group, should be subject to the same standard of judicial review.” 539 U. S., at 346, n. (Ginsburg, J., concurring). See also Gratz v. Bollinger, (Ginsburg, J., dissenting) (“Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its aftereffects have been extirpated.”).

The University of Texas at Austin's use of race as a factor in its undergraduate admissions process was challenged by Abigail Fisher, a Caucasian applicant who was denied admission. The Supreme Court concluded that the lower court did not hold the University to the strict scrutiny standard required in such cases, and remanded the case for further review. Justice Ginsburg dissented, arguing that the lower court had applied the correct standard and that the University's admissions policy was constitutional under existing precedent.

Gun Rights

United States v. Rahimi

https://supreme.justia.com/cases/federal/us/602/22-915/

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. SUPREME COURT OF THE UNITED STATES _________________ No. 22–915 _________________ UNITED STATES, PETITIONER v. ZACKEY RAHIMI on writ of certiorari to the united states court of appeals for the fifth circuit [June 21, 2024] Chief Justice Roberts delivered the opinion of the Court. A federal statute prohibits an individual subject to a domestic violence restraining order from possessing a firearm if that order includes a finding that he “represents a credible threat to the physical safety of [an] intimate partner,” or a child of the partner or individual. 18 U. S. C. §922(g)(8). Respondent Zackey Rahimi is subject to such an order. The question is whether this provision may be enforced against him consistent with the Second Amendment. I A In December 2019, Rahimi met his girlfriend, C. M., for lunch in a parking lot. C. M. is also the mother of Rahimi’s young child, A. R. During the meal, Rahimi and C. M. began arguing, and Rahimi became enraged. Brief for United States 2. C. M. attempted to leave, but Rahimi grabbed her by the wrist, dragged her back to his car, and shoved her in, causing her to strike her head against the dashboard. When he realized that a bystander was watching the altercation, Rahimi paused to retrieve a gun from under the passenger seat. C. M. took advantage of the opportunity to escape. Rahimi fired as she fled, although it is unclear whether he was aiming at C. M. or the witness. Rahimi later called C. M. and warned that he would shoot her if she reported the incident. Ibid . Undeterred by this threat, C. M. went to court to seek a restraining order. In the affidavit accompanying her application, C. M. recounted the parking lot incident as well as other assaults. She also detailed how Rahimi’s conduct had endangered A. R. Although Rahimi had an opportunity to contest C. M.’s testimony, he did not do so. On February 5, 2020, a state court in Tarrant County, Texas, issued a restraining order against him. The order, entered with the consent of both parties, included a finding that Rahimi had committed “family violence.” App. 2. It also found that this violence was “likely to occur again” and that Rahimi posed “a credible threat” to the “physical safety” of C. M. or A. R. Id ., at 2–3. Based on these findings, the order prohibited Rahimi from threatening C. M. or her family for two years or contacting C. M. during that period except to discuss A. R. Id ., at 3–7. It also suspended Rahimi’s gun license for two years. Id ., at 5–6. If Rahimi was imprisoned or confined when the order was set to expire, the order would instead terminate either one or two years after his release date, depending on the length of his imprisonment. Id ., at 6–7. In May, however, Rahimi violated the order by approaching C. M.’s home at night. He also began contacting her through several social media accounts. In November, Rahimi threatened a different woman with a gun, resulting in a charge for aggravated assault with a deadly weapon. And while Rahimi was under arrest for that assault, the Texas police identified him as the suspect in a spate of at least five additional shootings. The first, which occurred in December 2020, arose from Rahimi’s dealing in illegal drugs. After one of his customers “started talking trash,” Rahimi drove to the man’s home and shot into it. Brief for United States 3. While driving the next day, Rahimi collided with another car, exited his vehicle, and proceeded to shoot at the other car. Three days later, he fired his gun in the air while driving through a residential neighborhood. A few weeks after that, Rahimi was speeding on a highway near Arlington, Texas, when a truck flashed its lights at him. Rahimi hit the brakes and cut across traffic to chase the truck. Once off the highway, he fired several times toward the truck and a nearby car before fleeing. Two weeks after that, Rahimi and a friend were dining at a roadside burger restaurant. When the restaurant declined his friend’s credit card, Rahimi pulled a gun and shot into the air. The police obtained a warrant to search Rahimi’s residence. There they discovered a pistol, a rifle, ammunition—and a copy of the restraining order. B Rahimi was indicted on one count of possessing a firearm while subject to a domestic violence restraining order, in violation of 18 U. S. C. §922(g)(8). At the time, such a violation was punishable by up to 10 years’ imprisonment (since amended to 15 years). §924(a)(2); see Bipartisan Safer Communities Act, Pub. L. 117–159, §12004(c)(2), 136Stat. 1329, 18 U. S. C. §924(a)(8). A prosecution under Section 922(g)(8) may proceed only if three criteria are met. First, the defendant must have received actual notice and an opportunity to be heard before the order was entered. §922(g)(8)(A). Second, the order must prohibit the defendant from either “harassing, stalking, or threatening” his “intimate partner” or his or his partner’s child, or “engaging in other conduct that would place [the] partner in reasonable fear of bodily injury” to the partner or child. §922(g)(8)(B). A defendant’s “intimate partner[s]” include his spouse or any former spouse, the parent of his child, and anyone with whom he cohabitates or has cohabitated. §921(a)(32). Third, under Section 922(g)(8)(C), the order must either contain a finding that the defendant “represents a credible threat to the physical safety” of his intimate partner or his or his partner’s child, §922(g)(8)(C)(i), or “by its terms explicitly prohibit[  ] the use,” attempted use, or threatened use of “physical force” against those individuals, §922(g)(8)(C)(ii). Rahimi’s restraining order met all three criteria. First, Rahimi had received notice and an opportunity to be heard before the order was entered. App. 2. Second, the order prohibited him from communicating with or threatening C. M. Id ., at 3–4. Third, the order met the requirements of Section 922(g)(8)(C)(i), because it included a finding that Rahimi represented “a credible threat to the physical safety” of C. M. or her family. Id ., at 2–3. The order also “explicitly prohibit[ed]” Rahimi from “the use, attempted use, or threatened use of physical force” against C. M., satisfying the independent basis for liability in Section 922(g)(8)(C)(ii). Id ., at 3. Rahimi moved to dismiss the indictment, arguing that Section 922(g)(8) violated on its face the Second Amendment right to keep and bear arms. No. 4:21–cr–00083 (ND Tex., May 7, 2021), ECF Doc. 17. Concluding that Circuit precedent foreclosed Rahimi’s Second Amendment challenge, the District Court denied his motion. Rahimi then pleaded guilty. On appeal, he again raised his Second Amendment challenge. The appeal was denied, and Rahimi petitioned for rehearing en banc. While Rahimi’s petition was pending, this Court decided New York State Rifle & Pistol Assn., Inc . v. Bruen , 597 U.S. 1 (2022). In Bruen , we explained that when a firearm regulation is challenged under the Second Amendment, the Government must show that the restriction “is consistent with the Nation’s historical tradition of firearm regulation.” Id ., at 24. In light of Bruen , the panel withdrew the prior opinion and ordered additional briefing. A new panel then heard oral argument and reversed. 61 F. 4th 443, 448 (CA5 2023). Surveying the evidence that the Government had identified, the panel concluded that Section 922(g)(8) does not fit within our tradition of firearm regulation. Id ., at 460–461. Judge Ho wrote separately to express his view that the panel’s ruling did not conflict with the interest in protecting people from violent individuals. Id ., at 461–462 (concurring opinion). We granted certiorari. 600 U. S. ___ (2023) II When a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from possessing firearms while the order is in effect. Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, Section 922(g)(8) fits comfortably within this tradition. A We have held that the right to keep and bear arms is among the “fundamental rights necessary to our system of ordered liberty.” McDonald v. Chicago , 561 U.S. 742 , 778 (2010). Derived from English practice and codified in the Second Amendment, the right secures for Americans a means of self-defense. Bruen , 597 U. S., at 17. The spark that ignited the American Revolution was struck at Lexington and Concord, when the British governor dispatched soldiers to seize the local farmers’ arms and powder stores. In the aftermath of the Civil War, Congress’s desire to enable the newly freed slaves to defend themselves against former Confederates helped inspire the passage of the Fourteenth Amendment, which secured the right to bear arms against interference by the States. McDonald , 561 U. S., at 771–776. As a leading and early proponent of emancipation observed, “Disarm a community and you rob them of the means of defending life. Take away their weapons of defense and you take away the inalienable right of defending liberty.” Cong. Globe, 40th Cong., 2d Sess., 1967 (1868) (statement of Rep. Stevens). “Like most rights,” though, “the right secured by the Second Amendment is not unlimited.” District of Columbia v. Heller , 554 U.S. 570 , 626 (2008). In Heller , this Court held that the right applied to ordinary citizens within the home. Even as we did so, however, we recognized that the right was never thought to sweep indiscriminately. “From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Ibid . At the founding, the bearing of arms was subject to regulations ranging from rules about firearm storage to restrictions on gun use by drunken New Year’s Eve revelers. Act of Mar. 1, 1783, 1783 Mass. Acts and Laws ch.13, pp. 218–219; 5 Colonial Laws of New York ch. 1501, pp. 244–246 (1894). Some jurisdictions banned the carrying of “dangerous and unusual weapons.” 554 U. S., at 627 (citing 4 W. Blackstone, Commentaries on the Laws of England 148–149 (1769)). Others forbade carrying concealed firearms. 554 U. S., at 626. In Heller , our inquiry into the scope of the right began with “constitutional text and history.” Bruen , 597 U. S., at 22. In Bruen , we directed courts to examine our “historical tradition of firearm regulation” to help delineate the contours of the right. Id ., at 17. We explained that if a challenged regulation fits within that tradition, it is lawful under the Second Amendment. We also clarified that when the Government regulates arms-bearing conduct, as when the Government regulates other constitutional rights, it bears the burden to “justify its regulation.” Id. , at 24. Nevertheless, some courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber. As we explained in Heller , for example, the reach of the Second Amendment is not limited only to those arms that were in existence at the founding. 554 U. S., at 582. Rather, it “extends, prima facie, to all instruments that constitute bearable arms, even those that were not [yet] in existence.” Ibid. By that same logic, the Second Amendment permits more than just those regulations identical to ones that could be found in 1791. Holding otherwise would be as mistaken as applying the protections of the right only to muskets and sabers. As we explained in Bruen , the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition. 597 U. S., at 26–31. A court must ascertain whether the new law is “relevantly similar” to laws that our tradition is understood to permit, “apply[ing] faithfully the balance struck by the founding generation to modern circumstances.” Id ., at 29, and n. 7. Discerning and developing the law in this way is “a commonplace task for any lawyer or judge.” Id ., at 28. Why and how the regulation burdens the right are central to this inquiry. Id ., at 29. For example, if laws at the founding regulated firearm use to address particular problems, that will be a strong indicator that contemporary laws imposing similar restrictions for similar reasons fall within a permissible category of regulations. Even when a law regulates arms-bearing for a permissible reason, though, it may not be compatible with the right if it does so to an extent beyond what was done at the founding. And when a challenged regulation does not precisely match its historical precursors, “it still may be analogous enough to pass constitutional muster.” Id ., at 30 . The law must comport with the principles underlying the Second Amendment, but it need not be a “dead ringer” or a “historical twin.” Ibid. (emphasis deleted).[ 1 ] B Bearing these principles in mind, we conclude that Section 922(g)(8) survives Rahimi’s challenge. 1 Rahimi challenges Section 922(g)(8) on its face. This is the “most difficult challenge to mount successfully,” because it requires a defendant to “establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno , 481 U.S. 739 , 745 (1987). That means that to prevail, the Government need only demonstrate that Section 922(g)(8) is constitutional in some of its applications. And here the provision is constitutional as applied to the facts of Rahimi’s own case. Recall that Section 922(g)(8) provides two independent bases for liability. Section 922(g)(8)(C)(i) bars an individual from possessing a firearm if his restraining order includes a finding that he poses “a credible threat to the physical safety” of a protected person. Separately, Section 922(g)(8)(C)(ii) bars an individual from possessing a firearm if his restraining order “prohibits the use, attempted use, or threatened use of physical force.” Our analysis starts and stops with Section 922(g)(8)(C)(i) because the Government offers ample evidence that the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others. We need not decide whether regulation under Section 922(g)(8)(C)(ii) is also permissible. 2 This Court reviewed the history of American gun laws extensively in Heller and Bruen . From the earliest days of the common law, firearm regulations have included provisions barring people from misusing weapons to harm or menace others. The act of “go[ing] armed to terrify the King’s subjects” was recognized at common law as a “great offence.” Sir John Knight’s Case , 3 Mod. 117, 118, 87 Eng. Rep. 75, 76 (K. B. 1686). Parliament began codifying prohibitions against such conduct as early as the 1200s and 1300s, most notably in the Statute of Northampton of 1328. Bruen , 597 U. S., at 40. In the aftermath of the Reformation and the English Civil War, Parliament passed further restrictions. The Militia Act of 1662, for example, authorized the King’s agents to “seize all Armes in the custody or possession of any person . . . judge[d] dangerous to the Peace of the Kingdome.” 14 Car. 2 c. 3, §13 (1662); J. Greenlee, The Historical Justification for Prohibiting Dangerous Persons From Possessing Arms, 20 Wyo. L. Rev. 249, 259 (2020). The Glorious Revolution cut back on the power of the Crown to disarm its subjects unilaterally. King James II had “caus[ed] several good Subjects being Protestants to be disarmed at the same Time when Papists were . . . armed.” 1 Wm. & Mary c. 2, §6, in 3 Eng. Stat. at Large 440 (1689). By way of rebuke, Parliament adopted the English Bill of Rights, which guaranteed “that the Subjects which are Protestants, may have Arms for their Defence suitable to their Conditions, and as allowed by Law.” §7, id ., at 441. But as the document itself memorialized, the principle that arms-bearing was constrained “by Law” remained. Ibid . Through these centuries, English law had disarmed not only brigands and highwaymen but also political opponents and disfavored religious groups. By the time of the founding, however, state constitutions and the Second Amendment had largely eliminated governmental authority to disarm political opponents on this side of the Atlantic. See Heller , 554 U. S., at 594–595, 600–603. But regulations targeting individuals who physically threatened others persisted. Such conduct was often addressed through ordinary criminal laws and civil actions, such as prohibitions on fighting or private suits against individuals who threatened others. See 4 W. Blackstone, Commentaries on the Laws of England 145–146, 149–150 (10th ed. 1787) (Blackstone); 3 id ., at 120. By the 1700s and early 1800s, however, two distinct legal regimes had developed that specifically addressed firearms violence. The first were the surety laws. A form of “preventive justice,” these laws derived from the ancient practice of frankpledges. 4 id ., at 251–253. Reputedly dating to the time of Canute, the frankpledge system involved compelling adult men to organize themselves into ten-man “tithing[s].” A. Lefroy, Anglo-Saxon Period of English Law, Part II, 26 Yale L. J. 388, 391 (1917). The members of each tithing then “mutually pledge[d] for each other’s good behaviour.” 4 Blackstone 252. Should any of the ten break the law, the remaining nine would be responsible for producing him in court, or else face punishment in his stead. D. Levinson, Collective Sanctions, 56 Stan. L. Rev. 345, 358 (2003). Eventually, the communal frankpledge system evolved into the individualized surety regime. Under the surety laws, a magistrate could “oblig[e] those persons, [of] whom there is a probable ground to suspect of future misbehaviour, to stipulate with and to give full assurance . . . that such offence . . . shall not happen[,] by finding pledges or securities.” 4 Blackstone 251. In other words, the law authorized magistrates to require individuals suspected of future misbehavior to post a bond. Ibid . If an individual failed to post a bond, he would be jailed. See, e . g ., Mass. Rev. Stat., ch. 134, §6 (1836). If the individual did post a bond and then broke the peace, the bond would be forfeit. 4 Blackstone 253 . Well entrenched in the common law, the surety laws could be invoked to prevent all forms of violence, including spousal abuse. As Blackstone explained, “[w]ives [could] demand [sureties] against their husbands; or husbands, if necessary, against their wives.” Id ., at 254. These often took the form of a surety of the peace, meaning that the defendant pledged to “keep the peace.” Id ., at 252–253; see R. Bloch, The American Revolution, Wife Beating, and the Emergent Value of Privacy, 5 Early American Studies 223, 232–233, 234–235 (2007) (Bloch) (discussing peace bonds). Wives also demanded sureties for good behavior, whereby a husband pledged to “demean and behave himself well.” 4 Blackstone 253; see Bloch 232–233, 234–235, and n. 34. While communities sometimes resorted to public shaming or vigilante justice to chastise abusers, sureties provided the public with a more measured solution. B. McConville, The Rise of Rough Music, in Riot and Revelry in Early America 90–100 (W. Pencak, M. Dennis, & S. Newman eds. 2002). In one widely reported incident, Susannah Wyllys Strong, the wife of a Connecticut judge, appeared before Tapping Reeve in 1790 to make a complaint against her husband. K. Ryan, “The Spirit of Contradiction”: Wife Abuse in New England, 1780–1820, 13 Early American Studies 586, 602 (2015). Newspapers carried the story in Connecticut, Massachusetts, and New York. Ibid . Reeve ultimately ordered the man to post a bond of £1,000. Id ., at 603. Importantly for this case, the surety laws also targeted the misuse of firearms. In 1795, for example, Massachusetts enacted a law authorizing justices of the peace to “arrest” all who “go armed offensively [and] require of the offender to find sureties for his keeping the peace.” 1795 Mass. Acts ch. 2, in Acts and Resolves of Massachusetts, 1794–1795, ch. 26, pp. 66–67 (1896). Later, Massachusetts amended its surety laws to be even more specific, authorizing the imposition of bonds from individuals “[who went] armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon.” Mass. Rev. Stat., ch. 134, §16; see ibid. (marginal note) (referencing the earlier statute). At least nine other jurisdictions did the same. See Bruen , 597 U. S., at 56, and n. 23. These laws often offered the accused significant procedural protections. Before the accused could be compelled to post a bond for “go[ing] armed,” a complaint had to be made to a judge or justice of the peace by “any person having reasonable cause to fear” that the accused would do him harm or breach the peace. Mass. Rev. Stat., ch. 134, §§1, 16. The magistrate would take evidence, and—if he determined that cause existed for the charge—summon the accused, who could respond to the allegations. §§3–4. Bonds could not be required for more than six months at a time, and an individual could obtain an exception if he needed his arms for self-defense or some other legitimate reason. §16. While the surety laws provided a mechanism for preventing violence before it occurred, a second regime provided a mechanism for punishing those who had menaced others with firearms. These were the “going armed” laws, a particular subset of the ancient common-law prohibition on affrays. Derived from the French word “affraier,” meaning “to terrify,” 4 Blackstone 145, the affray laws traced their origin to the Statute of Northampton, 2 Edw. 3 c. 3 (1328). Although the prototypical affray involved fighting in public, commentators understood affrays to encompass the offense of “arm[ing]” oneself “to the Terror of the People,” T. Barlow, The Justice of the Peace: A Treatise 11 (1745). Moreover, the prohibitions—on fighting and going armed—were often codified in the same statutes. E . g ., 2 Edw. 3 c. 3; Acts and Laws of His Majesty’s Province of New-Hampshire in New-England 2 (1761). Whether classified as an affray law or a distinct prohibition, the going armed laws prohibited “riding or going armed, with dangerous or unusual weapons, [to] terrify[ ] the good people of the land.” 4 Blackstone 149 (emphasis deleted). Such conduct disrupted the “public order” and “le[d] almost necessarily to actual violence.” State v. Huntly , 25 N. C. 418, 421–422 (1843) ( per curiam ). Therefore, the law punished these acts with “forfeiture of the arms . . . and imprisonment.” 4 Blackstone 149. In some instances, prohibitions on going armed and affrays were incorporated into American jurisprudence through the common law. See, e . g ., Huntly , 25 N. C., at 421–422; O’Neill v. State , 16 Ala. 65, 67 (1849); Hickman v. State , 193 Md. App. 238, 253–255, 996 A.2d 974, 983 (2010) (recognizing that common-law prohibition on fighting in public remains even now chargeable in Maryland). More- over, at least four States—Massachusetts, New Hampshire, North Carolina, and Virginia—expressly codified prohibitions on going armed. 1786 Va. Acts ch. 21; 2 Laws of the Commonwealth of Massachusetts from Nov. 28, 1780 to Feb. 28, 1807, pp. 652–653 (1807); Acts and Laws of His Majesty’s Province of New-Hampshire in New-England 2 (1761); Collection of All of the Public Acts of Assembly, of the Province of North-Carolina: Now in Force and Use 131 (1751) (1741 statute). 3 Taken together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed. Section 922(g)(8) is by no means identical to these founding era regimes, but it does not need to be. See Bruen , 597 U. S., at 30. Its prohibition on the possession of firearms by those found by a court to present a threat to others fits neatly within the tradition the surety and going armed laws represent. Like the surety and going armed laws, Section 922(g)(8)(C)(i) applies to individuals found to threaten the physical safety of another. This provision is “relevantly similar” to those founding era regimes in both why and how it burdens the Second Amendment right. Id ., at 29. Section 922(g)(8) restricts gun use to mitigate demonstrated threats of physical violence, just as the surety and going armed laws do. Unlike the regulation struck down in Bruen , Section 922(g)(8) does not broadly restrict arms use by the public generally. The burden Section 922(g)(8) imposes on the right to bear arms also fits within our regulatory tradition. While we do not suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse, see Heller , 554 U. S., at 626, we note that Section 922(g)(8) applies only once a court has found that the defendant “represents a credible threat to the physical safety” of another. §922(g)(8)(C)(i). That matches the surety and going armed laws, which involved judicial determinations of whether a particular defendant likely would threaten or had threatened another with a weapon. Moreover, like surety bonds of limited duration, Section 922(g)(8)’s restriction was temporary as applied to Rahimi. Section 922(g)(8) only prohibits firearm possession so long as the defendant “is” subject to a restraining order. §922(g)(8). In Rahimi’s case that is one to two years after his release from prison, according to Tex. Fam. Code Ann. §85.025(c) (West 2019). App. 6–7. Finally, the penalty—another relevant aspect of the burden—also fits within the regulatory tradition. The going armed laws provided for imprisonment, 4 Blackstone 149, and if imprisonment was permissible to respond to the use of guns to threaten the physical safety of others, then the lesser restriction of temporary disarmament that Section 922(g)(8) imposes is also permissible. Rahimi argues Heller requires us to affirm, because Section 922(g)(8) bars individuals subject to restraining orders from possessing guns in the home, and in Heller we invalidated an “absolute prohibition of handguns . . . in the home.” 554 U. S., at 636; Brief for Respondent 32. But Heller never established a categorical rule that the Constitution prohibits regulations that forbid firearm possession in the home. In fact, our opinion stated that many such prohibitions, like those on the possession of firearms by “felons and the mentally ill,” are “presumptively lawful.” 554 U. S., at 626, 627, n. 26. Our analysis of the surety laws in Bruen also does not help Rahimi. In Bruen , we explained that the surety laws were not a proper historical analogue for New York’s gun licensing regime. 597 U. S., at 55–60. What distinguished the regimes, we observed, was that the surety laws “presumed that individuals had a right to . . . carry,” whereas New York’s law effectively presumed that no citizen had such a right, absent a special need. Id ., at 56 (emphasis deleted). Section 922(g)(8)(C)(i) does not make the same faulty presumption. To the contrary, it presumes, like the surety laws before it, that the Second Amendment right may only be burdened once a defendant has been found to pose a credible threat to the physical safety of others. See ibid . While we also noted that the surety laws applied different penalties than New York’s special-need regime, we did so only to emphasize just how severely the State treated the rights of its citizens. Id ., at 57. But as we have explained, our Nation’s tradition of firearm regulation distinguishes citizens who have been found to pose a credible threat to the physical safety of others from those who have not. The conclusion that focused regulations like the surety laws are not a historical analogue for a broad prohibitory regime like New York’s does not mean that they cannot be an appropriate analogue for a narrow one. 4 In short, we have no trouble concluding that Section 922(g)(8) survives Rahimi’s facial challenge. Our tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others. Section 922(g)(8) can be applied lawfully to Rahimi. The dissent reaches a contrary conclusion, primarily on the ground that the historical analogues for Section 922(g)(8) are not sufficiently similar to place that provision in our historical tradition. The dissent does, however, acknowledge that Section 922(g)(8) is within that tradition when it comes to the “why” of the appropriate inquiry. The objection is to the “how.” See post , at 18 (opinion of Thomas, J.). For the reasons we have set forth, however, we conclude that Section 922(g)(8) satisfies that part of the inquiry as well. See supra , at 7, 13–15. As we said in Bruen , a “historical twin ” is not required. 597 U. S., at 30. For its part, the Fifth Circuit made two errors. First, like the dissent, it read Bruen to require a “historical twin” rather than a “historical analogue.” Ibid . (emphasis deleted). Second, it did not correctly apply our precedents governing facial challenges. 61 F. 4th, at 453. As we have said in other contexts, “[w]hen legislation and the Constitution brush up against each other, [a court’s] task is to seek harmony, not to manufacture conflict.” United States v. Hansen , 599 U.S. 762, 781 (2023). Rather than consider the circumstances in which Section 922(g)(8) was most likely to be constitutional, the panel instead focused on hypothetical scenarios where Section 922(g)(8) might raise constitutional concerns. See 61 F. 4th, at 459; id ., at 465–467 (Ho, J., concurring). That error left the panel slaying a straw man.[ 2 ] 5 Finally, in holding that Section 922(g)(8) is constitutional as applied to Rahimi, we reject the Government’s contention that Rahimi may be disarmed simply because he is not “responsible.” Brief for United States 6; see Tr. of Oral Arg. 8–11. “Responsible” is a vague term. It is unclear what such a rule would entail. Nor does such a line derive from our case law. In Heller and Bruen , we used the term “responsible” to describe the class of ordinary citizens who undoubtedly enjoy the Second Amendment right. See, e . g ., Heller , 554 U. S., at 635; Bruen , 597 U. S., at 70. But those decisions did not define the term and said nothing about the status of citizens who were not “responsible.” The question was simply not presented. *  *  * In Heller , McDonald , and Bruen , this Court did not “undertake an exhaustive historical analysis . . . of the full scope of the Second Amendment.” Bruen , 597 U. S., at 31. Nor do we do so today. Rather, we conclude only this: An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment. The judgment of the Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 We also recognized in Bruen the “ongoing scholarly debate onwhether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868 when defining its scope (as well as the scope of the right against the Federal Government).” 597 U. S., at 37. We explained that under the circumstances, resolving the dispute was unnecessary to decide the case. Id ., at 37–38. The same is true here. 2 Many of the potential faults that the Fifth Circuit identifies in Section 922(g)(8) appear to sound in due process rather than the Second Amendment. E . g ., 61 F. 4th, at 459; id ., at 465–467 (Ho, J., concurring). As we have explained, unless these hypothetical faults occur in every case, they do not justify invalidating Section 922(g)(8) on its face. See United States v. Salerno , 481 U.S. 739 , 745 (1987) (a facial challenge fails if the law is constitutional in at least some of its applications). In any event, we need not address any due process concern here because this challenge was not litigated as a due process challenge and there is no such claim before us. See this Court’s Rule 14.1(a). SUPREME COURT OF THE UNITED STATES _________________ No. 22–915 _________________ UNITED STATES, PETITIONER v. ZACKEY RAHIMI on writ of certiorari to the united states court of appeals for the fifth circuit [June 21, 2024] Justice Sotomayor, with whom Justice Kagan joins, concurring. Today, the Court applies its decision in New York State Rifle & Pistol Assn., Inc. v. Bruen , 597 U.S. 1 (2022), for the first time. Although I continue to believe that Bruen was wrongly decided, see id ., at 83–133 (Breyer, J., joined by Sotomayor and Kagan, JJ., dissenting), I join the Court’s opinion applying that precedent to uphold 18 U. S. C. §922(g)(8). The Court today emphasizes that a challenged regulation “must comport with the principles underlying the Second Amendment,” but need not have a precise historical match. Ante, at 7–8. I agree. I write separately to highlight why the Court’s interpretation of Bruen , and not the dissent’s, is the right one. In short, the Court’s interpretation permits a historical inquiry calibrated to reveal something useful and transferable to the present day, while the dissent would make the historical inquiry so exacting as to be useless, a too-sensitive alarm that sounds whenever a regulation did not exist in an essentially identical form at the founding. I Even under Bruen , this is an easy case. Section 922(g)(8) prohibits an individual subject to a domestic violence restraining order from possessing a firearm, so long as certain criteria are met. See ante, at 3–4. Section 922(g)(8) is wholly consistent with the Nation’s history and tradition of firearm regulation. The Court correctly concludes that “the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others.” Ante, at 8. That conclusion finds historical support in both the surety laws, which “provided a mechanism for preventing violence before it occurred” by requiring an individual who posed a credible threat of violence to another to post a surety, and the “going armed” laws, which “provided a mechanism for punishing those who had menaced others with firearms” through forfeiture of the arms or imprisonment. Ante, at 12. “Taken together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.” Ante, at 13. Section 922(g)(8)’s prohibition on gun possession for individuals subject to domestic violence restraining orders is part of that “tradition of firearm regulation allow[ing] the Government to disarm individuals who present a credible threat to the physical safety of others,” ante, at 16, as are the similar restrictions that have been adopted by 48 States and Territories, see Brief for United States 34–35, and nn. 22–23 (collecting statutes). The Court’s opinion also clarifies an important methodological point that bears repeating: Rather than asking whether a present-day gun regulation has a precise historical analogue, courts applying Bruen should “conside[r] whether the challenged regulation is consistent with the principles that underpin our regulatory tradition.” Ante, at 7 (emphasis added); see also ante, at 7–8 (“The law must comport with the principles underlying the Second Amendment, but it need not be a ‘dead ringer’ or a ‘historical twin’ ” (quoting Bruen , 597 U. S., at 30)). Here, for example, the Government has not identified a founding-era or Reconstruction-era law that specifically disarmed domestic abusers, see, e . g ., Tr. of Oral Arg. 40 (conceding as much), but it did not need to do so. Although §922(g)(8) “is by no means identical” to the surety or going armed laws, ante, at 13, it “restricts gun use to mitigate demonstrated threats of physical violence, just as the surety and going armed laws d[id],” ante, at 14. That shared principle is sufficient. II The dissent reaches a different conclusion by applying the strictest possible interpretation of Bruen . It picks off the Government’s historical sources one by one, viewing any basis for distinction as fatal. See, e . g ., post , at 18 (opinion of Thomas, J.) (“Although surety laws shared a common justification with §922(g)(8), surety laws imposed a materially different burden”); post , at 25–26 (explaining that “[a]ffray laws are wide of the mark” because they “expressly carve out the very conduct §922(g)(8) was designed to prevent (interpersonal violence in the home)”). The dissent urges a close look “at the historical law’s justification as articulated during the relevant time period,” post , at 28, and a “careful parsing of regulatory burdens” to ensure that courts do not “stray too far from [history] by eliding material differences between historical and modern laws,” post , at 15. The dissent criticizes this Court for adopting a more “piecemeal approach” that distills principles from a variety of historical evidence rather than insisting on a precise historical analogue. Post , at 21. If the dissent’s interpretation of Bruen were the law, then Bruen really would be the “one-way ratchet” that I and the other dissenters in that case feared, “disqualify[ing] virtually any ‘representative historical analogue’ and mak[ing] it nearly impossible to sustain common-sense regulations necessary to our Nation’s safety and security.” 597 U. S., at 112 (Breyer, J., dissenting). Thankfully, the Court rejects that rigid approach to the historical inquiry. As the Court puts it today, Bruen was “not meant to suggest a law trapped in amber.” Ante, at 7. This case lays bare the perils of the dissent’s approach. Because the dissent concludes that “§922(g)(8) addresses a societal problem—the risk of interpersonal violence—‘that has persisted since the 18th century,’ ” it insists that the means of addressing that problem cannot be “ ‘materially different’ ” from the means that existed in the 18th century. Post , at 7. That is so, it seems, even when the weapons in question have evolved dramatically. See R. Roth, Why Guns Are and Are Not the Problem, in A Right To Bear Arms?: The Contested Role of History in Contemporary Debates on the Second Amendment 117 (J. Tucker, B. Hacker, & M. Vining eds. 2019) (explaining that guns in the 18th century took a long time to load, typically fired only one shot, and often misfired). According to the dissent, the solution cannot be “materially different” even when societal perception of the problem has changed, and even if it is now clear to everyone that the historical means of addressing the problem had been wholly inadequate. Given the fact that the law at the founding was more likely to protect husbands who abused their spouses than offer some measure of accountability, see, e . g ., R. Siegel, “The Rule of Love”: Wife Beating as Prerogative and Privacy, 105 Yale L. J. 2117, 2154–2170 (1996), it is no surprise that that generation did not have an equivalent to §922(g)(8). Under the dissent’s approach, the legislatures of today would be limited not by a distant generation’s determination that such a law was unconstitutional, but by a distant generation’s failure to consider that such a law might be necessary. History has a role to play in Second Amendment analysis, but a rigid adherence to history, (particularly history predating the inclusion of women and people of color as full members of the polity), impoverishes constitutional interpretation and hamstrings our democracy. III The Court today clarifies Bruen ’s historical inquiry and rejects the dissent’s exacting historical test. I welcome that development. That being said, I remain troubled by Bruen ’s myopic focus on history and tradition, which fails to give full consideration to the real and present stakes of the problems facing our society today. In my view, the Second Amendment allows legislators “to take account of the serious problems posed by gun violence,” Bruen , 597 U. S., at 91 (Breyer, J., dissenting), not merely by asking what their predecessors at the time of the founding or Reconstruction thought, but by listening to their constituents and crafting new and appropriately tailored solutions. Under the means-end scrutiny that this Court rejected in Bruen but “regularly use[s] . . . in cases involving other constitutional provisions,” id ., at 106, the constitutionality of §922(g)(8) is even more readily apparent.[ 1 ]* To start, the Government has a compelling interest in keeping firearms out of the hands of domestic abusers. A woman who lives in a house with a domestic abuser is five times more likely to be murdered if the abuser has access to a gun. See A. Kivisto & M. Porter, Firearm Use Increases Risk of Multiple Victims in Domestic Homicides, 48 J. Am. Acad. Psychiatry & L. 26 (2020). With over 70 people shot and killed by an intimate partner each month in the United States, the seriousness of the problem can hardly be overstated. See Centers for Disease Control and Prevention, WISQARS Nat. Violent Death Reporting System, Violent Deaths Report 2020, https://wisqars.cdc.gov/nvdrs (showing that 863 people were killed with a firearm by a spouse or other intimate partner in 2020). Because domestic violence is rarely confined to the intimate partner that receives the protective order, the Government’s interest extends even further. In roughly a quarter of cases where an abuser killed an intimate partner, the abuser also killed someone else, such as a child, family member, or roommate. See S. Smith, K. Fowler, & P. Niolon, Intimate Partner Homicide and Corollary Victims in 16 States: National Violent Death Reporting System, 2003–2009, 104 Am. J. Pub. Health 461, 463–464 (2014). Moreover, one study found that domestic disputes were the most dangerous type of call for responding officers, causing more officer deaths with a firearm than any other type of call. See N. Breul & M. Keith, Deadly Calls and Fatal Encounters: Analysis of U. S. Law Enforcement Line of Duty Deaths When Officers Responded to Dispatched Calls for Service and Conducted Enforcement, 2010–2014, p. 15 (2016). While the Second Amendment does not yield automatically to the Government’s compelling interest, §922(g)(8) is tailored to the vital objective of keeping guns out of the hands of domestic abusers. See ante, at 3–4, 14. Section 922(g)(8) should easily pass constitutional muster under any level of scrutiny. Although I continue to think that the means-end approach to Second Amendment analysis is the right one, neither party asks the Court to reconsider Bruen at this time, and that question would of course involve other considerations than whether Bruen was rightly decided. Whether considered under Bruen or under means-end scrutiny, §922(g)(8) clears the constitutional bar. I join in full the Court’s opinion, which offers a more helpful model than the dissent for lower courts struggling to apply Bruen . Notes 1 *By “means-end scrutiny,” I refer to the mode of analysis that would permit courts “to consider the State’s interest in preventing gun violence, the effectiveness of the contested law in achieving that interest, the degree to which the law burdens the Second Amendment right, and, if appropriate, any less restrictive alternatives.” Bruen , 597 U. S., at 131 (Breyer, J., dissenting). Prior to Bruen , the Courts of Appeals would apply a level of means-end scrutiny “ ‘proportionate to the severity of the burden that the law imposes on the right’: strict scrutiny if the burden is severe, and intermediate scrutiny if it is not.” Id ., at 103. SUPREME COURT OF THE UNITED STATES _________________ No. 22–915 _________________ UNITED STATES, PETITIONER v. ZACKEY RAHIMI on writ of certiorari to the united states court of appeals for the fifth circuit [June 21, 2024] Justice Gorsuch, concurring. Mr. Rahimi pursues the “most difficult challenge to mount successfully”: a facial challenge. United States v. Salerno , 481 U.S. 739 , 745 (1987). He contends that 18 U. S. C. §922(g)(8) violates the Second Amendment “in all its applications.” Bucklew v. Precythe , 587 U.S. 119, 138 (2019). To prevail, he must show “no set of circumstances” exists in which that law can be applied without violating the Second Amendment. Salerno , 481 U. S., at 745. I agree with the Court that he has failed to make that showing. Ante , at 8. That is not because the Constitution has little to say about the matter. The Second Amendment protects the “right of the people to keep and bear Arms.” “ ‘[T]ext and history’ ” dictate the contours of that right. Ante , at 6 (quoting New York State Rifle Pistol Assn., Inc. v. Bruen , 597 U.S. 1, 22 (2022)). As this Court has recognized, too, the Amendment’s text “ ‘guarantee[s] the individual right to possess and carry weapons in case of confrontation.’ ” Id ., at 32 (quoting District of Columbia v. Heller , 554 U.S. 570 , 592 (2008)). And where that “text covers an individual’s conduct,” a law regulating that conduct may be upheld only if it is “consistent with this Nation’s historical tradition of firearms regulation.” 597 U. S., at 17; see ante , at 6. In this case, no one questions that the law Mr. Rahimi challenges addresses individual conduct covered by the text of the Second Amendment. So, in this facial challenge, the question becomes whether that law, in at least some of its applications, is consistent with historic firearm regulations. To prevail, the government need not show that the current law is a “ ‘dead ringer’ ” for some historical analogue. Ante , at 8 (quoting Bruen , 597 U. S., at 30). But the government must establish that, in at least some of its applications, the challenged law “impose[s] a comparable burden on the right of armed self-defense” to that imposed by a historically recognized regulation. Id ., at 29; see ante , at 7. And it must show that the burden imposed by the current law “is comparably justified.” Bruen , 597 U. S., at 29; see ante , at 7. Why do we require those showings? Through them, we seek to honor the fact that the Second Amendment “codified a pre-existing right” belonging to the American people, one that carries the same “scope” today that it was “understood to have when the people adopted” it. Heller , 554 U. S., at 592, 634–635. When the people ratified the Second Amendment, they surely understood an arms-bearing citizenry posed some risks. But just as surely they believed that the right protected by the Second Amendment was itself vital to the preservation of life and liberty. See, e . g ., 1 Blackstone’s Commentaries, Editor’s App. 300 (St. George Tucker ed. 1803) (observing that the Second Amendment may represent the “palladium of liberty,” for “[t]he right of self defence is the first law of nature,” and “in most governments[,] it has been the study of rulers to confine this right within the narrowest limits”); 3 J. Story, Commentaries on the Constitution of the United States §1890, p. 746 (1833) (“The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic”). We have no authority to question that judgment. As judges charged with respecting the people’s directions in the Constitution—directions that are “trapped in amber,” see ante , at 7—our only lawful role is to apply them in the cases that come before us. Developments in the world may change, facts on the ground may evolve, and new laws may invite new challenges, but the Constitution the people adopted remains our enduring guide. Bruen , 597 U. S., at 27–28; see, e . g ., United States v. Jones , 565 U.S. 400 , 404–405 (2012); Caetano v. Massachusetts , 577 U.S. 411 , 411–412 (2016) ( per curiam ). If changes are to be made to the Constitution’s directions, they must be made by the American people. Nor is there anything remotely unusual about any of this. Routinely, litigants and courts alike must consult history when seeking to discern the meaning and scope of a constitutional provision. See post , at 6–16 (Kavanaugh, J., concurring) (offering examples). And when doing so, litigants and courts “must exercise care.” See post , at 3, n. (Barrett, J., concurring). Consider just one example. We have recognized that the Sixth Amendment enshrines another pre-existing right: the right of a defendant to confront his accusers at trial. Crawford v. Washington , 541 U.S. 36 , 54 (2004). Just as here, we have recognized that, in placing this right in the Constitution, the people set its scope, “admitting only those exceptions established at the time of the founding.” Ibid. And, just as here, when a party asks us to sustain some modern exception to the confrontation right, we require them to point to a close historic analogue to justify it. See Giles v. California , 554 U.S. 353 , 358–361 (2008). Just as here, too, we have expressly rejected arguments that courts should proceed differently, such as by trying to glean from historic exceptions overarching “policies,” “ ‘purposes,’ ” or “values” to guide them in future cases. See id ., at 374–375 (opinion of Scalia, J.). We have rejected those paths because the Constitution enshrines the people’s choice to achieve certain policies, purposes, and values “through very specific means”: the right of confrontation as originally understood at the time of the founding. Id ., at 375. As we have put it, a court may not “extrapolate” from the Constitution’s text and history “the values behind [that right], and then . . . enforce its guarantees only to the extent they serve (in the courts’ views) those underlying values.” Ibid. Proceeding that way, we have warned, risks handing judges a license to turn “the guarantee of confrontation” into “no guarantee at all.” Ibid . As there, so too here: Courts must proceed with care in making comparisons to historic firearms regulations, or else they risk gaming away an individual right the people expressly preserved for themselves in the Constitution’s text. Proceeding with this well in mind today, the Court rightly holds that Mr. Rahimi’s facial challenge to §922(g)(8) cannot succeed. It cannot because, through surety laws and restrictions on “going armed,” the people in this country have understood from the start that the government may disarm an individual temporarily after a “judicial determinatio[n]” that he “likely would threaten or ha[s] threatened another with a weapon.” Ante , at 14. And, at least in some cases, the statute before us works in the same way and does so for the same reasons: It permits a court to disarm a person only if, after notice and hearing, it finds that he “represents a credible threat to the physical safety” of others. §§922(g)(8)(A), (g)(8)(C)(i). A court, too, may disarm an individual only for so long as its order is in effect. §922(g)(8). In short, in at least some applications, the challenged law does not diminish any aspect of the right the Second Amendment was originally understood to protect. See Bruen , 597 U. S., at 24. I appreciate that one of our colleagues sees things differently. Post , at 6–7 (Thomas, J., dissenting). But if reasonable minds can disagree whether §922(g)(8) is analogous to past practices originally understood to fall outside the Second Amendment’s scope, we at least agree that is the only proper question a court may ask. Post , at 5. Discerning what the original meaning of the Constitution requires in this or that case may sometimes be difficult. Asking that question, however, at least keeps judges in their proper lane, seeking to honor the supreme law the people have ordained rather than substituting our will for theirs. And whatever indeterminacy may be associated with seeking to honor the Constitution’s original meaning in modern disputes, that path offers surer footing than any other this Court has attempted from time to time. Come to this Court with arguments from text and history, and we are bound to reason through them as best we can. (As we have today.) Allow judges to reign unbounded by those materials, or permit them to extrapolate their own broad new principles from those sources, and no one can have any idea how they might rule. (Except the judges themselves.) Faithful adherence to the Constitution’s original meaning may be an imperfect guide, but I can think of no more perfect one for us to follow. Just consider how lower courts approached the Second Amendment before our decision in Bruen . They reviewed firearm regulations under a two-step test that quickly “devolved” into an interest-balancing inquiry, where courts would weigh a law’s burden on the right against the benefits the law offered. See Rogers v. Grewal , 590 U. S. ___, ___, and n. 1 (2020) (Thomas, J., joined by Kavanaugh, J., dissenting from denial of certiorari) (slip op., at 5, and n. 1); see also, e . g ., Peruta v. County of San Diego , 742 F.3d 1144, 1167–1168, 1176–1177 (CA9 2014); Drake v. Filko , 724 F.3d 426, 457 (CA3 2013) (Hardiman, J., dissenting). Some judges expressed concern that the prevailing two-step test had become “just window dressing for judicial policymaking.” Duncan v. Bonta , 19 F. 4th 1087, 1148 (CA9 2021) (en banc) (Bumatay, J., dissenting). To them, the inquiry worked as a “black box regime” that gave a judge broad license to support policies he “[f]avored” and discard those he disliked. Ibid. How did the government fare under that regime? In one circuit, it had an “undefeated, 50–0 record.” Id ., at 1167, n. 8 (VanDyke, J., dissenting). In Bruen , we rejected that approach for one guided by constitutional text and history. 597 U. S., at 19. Perhaps judges’ jobs would be easier if they could simply strike the policy balance they prefer. And a principle that the government always wins surely would be simple for judges to implement. But either approach would let judges stray far from the Constitution’s promise. See Heller , 554 U. S., at 634. One more point: Our resolution of Mr. Rahimi’s facial challenge to §922(g)(8) necessarily leaves open the question whether the statute might be unconstitutional as applied in “particular circumstances.” Salerno , 481 U. S., at 751. So, for example, we do not decide today whether the government may disarm a person without a judicial finding that he poses a “credible threat” to another’s physical safety. §922(g)(8)(C)(i); see ante , at 8. We do not resolve whether the government may disarm an individual permanently. See ante , at 14 (stressing that, “like surety bonds of limited duration, Section 922(g)(8)’s restriction was temporary as applied to [Mr.] Rahimi”). We do not determine whether §922(g)(8) may be constitutionally enforced against a person who uses a firearm in self-defense. Notably, the surety laws that inform today’s decision allowed even an individual found to pose a threat to another to “obtain an exception if he needed his arms for self-defense.” Ante , at 12; see also post , at 23 (Thomas, J., dissenting). Nor do we purport to approve in advance other laws denying firearms on a categorical basis to any group of persons a legislature happens to deem, as the government puts it, “not ‘responsible.’ ” Ante , at 17 (quoting Brief for United States 6); see Tr. of Oral Arg. 31–32; see also post , at 27 (opinion of Thomas, J.) (“Not a single Member of the Court adopts the Government’s theory”). We do not resolve any of those questions (and perhaps others like them) because we cannot. Article III of the Constitution vests in this Court the power to decide only the “ ‘actual cas[e]’ ” before us, “ ‘not abstractions.’ ” Public Workers v. Mitchell , 330 U.S. 75 , 89 (1947). And the case before us does not pose the question whether the challenged statute is always lawfully applied, or whether other statutes might be permissible, but only whether this one has any lawful scope. Nor should future litigants and courts read any more into our decision than that. As this Court has long recognized, what we say in our opinions must “be taken in connection with the case in which those expressions are used,” Cohens v. Virginia , 6 Wheat. 264, 399 (1821), and may not be “stretch[ed] . . . beyond their context,” Brown v. Davenport , 596 U.S. 118, 141 (2022). Among all the opinions issued in this case, its central messages should not be lost. The Court reinforces the focus on text, history, and tradition, following exactly the path we described in Bruen . Ante , at 5–8. And after carefully consulting those materials, the Court “conclude[s] only this”: “An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.” Ante , at 17 (emphasis added). With these observations, I am pleased to concur. SUPREME COURT OF THE UNITED STATES _________________ No. 22–915 _________________ UNITED STATES, PETITIONER v. ZACKEY RAHIMI on writ of certiorari to the united states court of appeals for the fifth circuit [June 21, 2024] Justice Kavanaugh, concurring. The Framers of the Constitution and Bill of Rights wisely sought the best of both worlds: democratic self-government and the protection of individual rights against excesses of that form of government. In justiciable cases, this Court determines whether a democratically enacted law or other government action infringes on individual rights guaranteed by the Constitution. When performing that Article III duty, the Court does not implement its own policy judgments about, for example, free speech or gun regulation. Rather, the Court interprets and applies the Constitution by examining text, pre-ratification and post-ratification history, and precedent. The Court’s opinion today does just that, and I join it in full. The concurring opinions, and the briefs of the parties and amici in this case, raise important questions about judicial reliance on text, history, and precedent, particularly in Second Amendment cases. I add this concurring opinion to review the proper roles of text, history, and precedent in constitutional interpretation. I The American people established an enduring American Constitution. The first and most important rule in constitutional interpretation is to heed the text—that is, the actual words of the Constitution—and to interpret that text according to its ordinary meaning as originally understood. The text of the Constitution is the “Law of the Land.” Art. VI. As a general matter, the text of the Constitution says what it means and means what it says. And unless and until it is amended, that text controls. In many important provisions, the Constitution is a document of majestic specificity with “strikingly clean prose.” A. Amar, America’s Constitution xi (2005). Two Houses of Congress. A House elected every two years. Senators serve 6-year terms. Two Senators per State. A State’s equal suffrage in the Senate may not be changed without the State’s consent. A two-thirds House vote to expel a Member of the House. The same for the Senate. Appropriations are made by law. Bicameralism and presentment. The Presidential veto. The Presidential pardon. The President serves a 4-year term. A maximum of two elected terms for a President. The salary of a sitting President may not be increased or decreased. A vote of a majority of the House and two-thirds of the Senate to remove a President. The President nominates and the Senate confirms principal executive officers. One Supreme Court. Tenure and salary protection for Supreme Court and other federal judges. Two-thirds of each House of Congress together with three-fourths of the States may amend the Constitution. Congress meets at noon on January 3rd unless otherwise specified by Congress. The District of Columbia votes in Presidential elections. The list goes on. Those and many other constitutional provisions are relatively clear. And when the “framers of the Constitution employed words in their natural sense; and where they are plain and clear, resort to collateral aids to interpretation is unnecessary and cannot be indulged in to narrow or enlarge the text.” McPherson v. Blacker , 146 U.S. 1 , 27 (1892). Of course, some provisions of the Constitution are broadly worded or vague—to put it in Madison’s words, “more or less obscure and equivocal.” The Federalist No. 37, p. 229 (C. Rossiter ed. 1961). As Chief Justice Rehnquist explained, the Constitution is in some parts “obviously not a specifically worded document but one couched in general phraseology.” W. Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693, 697 (1976). That is especially true with respect to the broadly worded or vague individual-rights provisions. (I will use the terms “broadly worded” and “vague” interchangeably in this opinion.) For example, the First Amendment provides that “Congress shall make no law” “abridging the freedom of speech.” And the Second Amendment, at issue here, guarantees that “the right of the people to keep and bear Arms” “shall not be infringed.” Read literally, those Amendments might seem to grant absolute protection, meaning that the government could never regulate speech or guns in any way. But American law has long recognized, as a matter of original understanding and original meaning, that constitutional rights generally come with exceptions. With respect to the First Amendment, for example, this Court’s “jurisprudence over the past 216”—now 233—“years has rejected an absolutist interpretation.” Federal Election Comm’n v. Wisconsin Right to Life, Inc. , 551 U.S. 449 , 482 (2007) (opinion of Roberts, C. J.); see R. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L. J. 1, 21–22 (1971). From 1791 to the present, “the First Amendment has permitted restrictions upon the content of speech in a few limited areas”—including obscenity, defamation, fraud, and incitement. United States v. Stevens , 559 U.S. 460 , 468 (2010) (quotation marks omitted). So too with respect to the Second Amendment: “Like most rights, the right secured by the Second Amendment is not unlimited”; it is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” District of Columbia v. Heller , 554 U.S. 570 , 626 (2008). II A recurring and difficult issue for judges, therefore, is how to interpret vague constitutional text. That issue often arises (as here) in the context of determining exceptions to textually guaranteed individual rights. To what extent does the Constitution allow the government to regulate speech or guns, for example?[ 1 ] In many cases, judicial precedent informs or controls the answer (more on that later). But absent precedent, there are really only two potential answers to the question of how to determine exceptions to broadly worded constitutional rights: history or policy. Generally speaking, the historical approach examines the laws, practices, and understandings from before and after ratification that may help the interpreter discern the meaning of the constitutional text and the principles embodied in that text. The policy approach rests on the philosophical or policy dispositions of the individual judge. History, not policy, is the proper guide. For more than 200 years, this Court has relied on history when construing vague constitutional text in all manner of constitutional disputes. For good reason. History can supply evidence of the original meaning of vague text. History is far less subjective than policy. And reliance on history is more consistent with the properly neutral judicial role than an approach where judges subtly (or not so subtly) impose their own policy views on the American people. Judges are like umpires, as The Chief Justice has aptly explained. And in a constitutional system that counts on an independent Judiciary, judges must act like umpires. To be an umpire, the judge “must stick close to the text and the history, and their fair implications,” because there “is no principled way” for a neutral judge “to prefer any claimed human value to any other.” R. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L. J. 1, 8 (1971). History establishes a “criterion that is conceptually quite separate from the preferences of the judge himself.” A. Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 864 (1989). When properly applied, history helps ensure that judges do not simply create constitutional meaning “out of whole cloth.” A. Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1183 (1989).[ 2 ] Absent precedent, therefore, history guides the interpretation of vague constitutional text. Of course, this Court has been deciding constitutional cases for about 230 years, so relevant precedent often exists. As the Court’s opinions over time amply demonstrate, precedent matters a great deal in constitutional interpretation. I now turn to explaining how courts apply pre-ratification history, post-ratification history, and precedent when analyzing vague constitutional text. A Pre-ratification history . When interpreting vague constitutional text, the Court typically scrutinizes the stated intentions and understandings of the Framers and Ratifiers of the Constitution (or, as relevant, the Amendments). The Court also looks to the understandings of the American people from the pertinent ratification era. Those intentions and understandings do not necessarily determine meaning, but they may be strong evidence of meaning. See generally, e.g. , The Federalist (C. Rossiter ed. 1961); Records of the Federal Convention of 1787 (M. Farrand ed. 1911); Debates on the Federal Constitution (J. Elliot ed. 1836). Especially for the original Constitution and the Bill of Rights, the Court also examines the pre-ratification history in the American Colonies, including pre-ratification laws and practices. And the Court pays particular attention to the historical laws and practices in the United States from Independence in 1776 until ratification in 1788 or 1791. Pre-ratification American history can shed light on constitutional meaning in various ways. For example, some provisions of the Constitution use language that appeared in the Articles of Confederation or state constitutional provisions. And when the language that appeared in the Articles of Confederation or in state constitutions is the same as or similar to the language in the U. S. Constitution, the history of how people understood the language in the Articles or state constitutions can inform interpretation of that language in the U. S. Constitution. See, e . g ., Moore v. Harper , 600 U.S. 1, 33 (2023) (the “Framers did not write the Elections Clause on a blank slate—they instead borrowed from the Articles of Confederation” as evidenced by their use of “closely parallel” language); District of Columbia v. Heller , 554 U.S. 570 , 600–601 (2008) (“Our interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment”); United States Steel Corp . v. Multistate Tax Comm’n , 434 U.S. 452 , 460, and n. 10 (1978) (“The history of interstate agreements under the Articles of Confederation suggests the same distinction between ‘treaties, alliances, and confederations’ on the one hand, and ‘agreements and compacts’ on the other,” as the distinction made in the Constitution’s Treaty and Compact Clauses). Similarly, other pre-ratification national or state laws and practices may sometimes help an interpreter discern the meaning of particular constitutional provisions. Those pre-ratification American laws and practices formed part of the foundation on which the Framers constructed the Constitution and Bill of Rights. Indeed, the Constitution did not displace but largely co-exists with state constitutions and state laws, except to the extent they conflict with federal law. See Art. VI. On the other hand, some pre-ratification history can be probative of what the Constitution does not mean. The Framers drafted and approved many provisions of the Constitution precisely to depart from rather than adhere to certain pre-ratification laws, practices, or understandings. For example, the “defects” of the Articles of Confederation inspired some of the key decisions made by the Framers in Philadelphia and by the First Congress in drafting the Bill of Rights. The Federalist No. 37, at 224 (J. Madison); see, e . g ., id ., at 226 (“the existing Confederation is founded on principles which are fallacious; that we must consequently change this first foundation, and with it the superstructure resting upon it”); PennEast Pipeline Co. v. New Jersey , 594 U.S. 482, 508 (2021) (“When the Framers met in Philadelphia in the summer of 1787, they sought to create a cohesive national sovereign in response to the failings of the Articles of Confederation”); Sosa v. Alvarez-Machain , 542 U.S. 692 , 716–717 (2004) (“The Continental Congress was hamstrung by its inability to ‘cause infractions of treaties, or of the law of nations to be punished,’ ” and the “Framers responded by vesting the Supreme Court with original jurisdiction over ‘all Cases affecting Ambassadors, other public ministers and Consuls,’ and the First Congress followed through” (citation omitted)); U. S. Term Limits, Inc. v. Thornton , 514 U.S. 779 , 803 (1995) (“After the Constitutional Convention convened, the Framers were presented with, and eventually adopted a variation of, a plan not merely to amend the Articles of Confederation but to create an entirely new National Government with a National Executive, National Judiciary, and a National Legislature” (quotation marks omitted)). The pre-ratification history of America’s many objections to British laws and the system of oppressive British rule over the Colonies—identified most prominently in the Declaration of Independence—can likewise inform interpretation of some of the crucial provisions of the original Constitution and Bill of Rights. Compare Declaration of Independence ¶11 (under British rule, the King “made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries”) with U. S. Const., Art. III, §1 (“The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office”); see, e . g ., The Federalist No. 37, at 226 (“The most that the convention could do” “was to avoid the errors suggested by the past experience of other countries, as well as of our own”); 1 Annals of Cong. 436 (1789) (J. Madison) (“The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British Constitution”). This Court has recognized, for example, that no “purpose in ratifying the Bill of Rights was clearer than that of securing for the people of the United States much greater freedom of religion, expression, assembly, and petition than the people of Great Britain had ever enjoyed.” Bridges v. California , 314 U.S. 252 , 265 (1941). Ratified as it was “while the memory of many oppressive English restrictions on the enumerated liberties was still fresh,” the Bill of Rights “cannot reasonably be taken as approving prevalent English practices.” Ibid .; see, e . g ., Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC , 565 U.S. 171 , 183 (2012) (“Familiar with life under the established Church of England, the founding generation sought to foreclose the possibility of a national church” through the First Amendment’s Establishment Clause); Powell v. Alabama , 287 U.S. 45 , 60 (1932) (right to counsel under the Sixth Amendment reflected America’s rejection of the English common law rule that a “person charged with treason or felony was denied the aid of counsel”).[ 3 ] The Equal Protection Clause provides another example. Ratified in 1868, that Clause sought to reject the Nation’s history of racial discrimination, not to backdoor incorporate racially discriminatory and oppressive historical practices and laws into the Constitution. See generally Flowers v. Mississippi , 588 U.S. 284 (2019); Batson v. Kentucky , 476 U.S. 79 (1986); Loving v. Virginia , 388 U.S. 1 (1967); Brown v. Board of Education , 347 U.S. 483 (1954). In short, pre-ratification American history—that is, pre-ratification laws, practices, and understandings—can inform interpretation of vague constitutional provisions in the original Constitution and Bill of Rights. The same principle of looking to relevant pre-ratification history applies when interpreting broadly worded language in the later amendments, including the Fourteenth Amendment ratified in 1868. But in using pre-ratification history, courts must exercise care to rely only on the history that the Constitution actually incorporated and not on the history that the Constitution left behind. B Post-ratification history . As the Framers made clear, and as this Court has stated time and again for more than two centuries, post-ratification history—sometimes referred to as tradition—can also be important for interpreting vague constitutional text and determining exceptions to individual constitutional rights. When the text is vague and the pre-ratification history is elusive or inconclusive, post-ratification history becomes especially important. Indeed, absent precedent, there can be little else to guide a judge deciding a constitutional case in that situation, unless the judge simply defaults to his or her own policy preferences. After ratification, the National Government and the state governments began interpreting and applying the Constitution’s text. They have continued to do so ever since. As the national and state governments over time have enacted laws and implemented practices to promote the general welfare, those laws and practices have often reflected and reinforced common understandings of the Constitution’s authorizations and limitations. Post-ratification interpretations and applications by government actors—at least when reasonably consistent and longstanding—can be probative of the meaning of vague constitutional text. The collective understanding of Americans who, over time, have interpreted and applied the broadly worded constitutional text can provide good guidance for a judge who is trying to interpret that same text decades or centuries later. See, e . g ., Republican Party of Minn. v. White , 536 U.S. 765 , 785 (2002) (a “universal and long-established tradition of prohibiting certain conduct creates a strong presumption that the prohibition is constitutional” (quotation marks omitted)); United States v. Midwest Oil Co. , 236 U.S. 459 , 472–473 (1915) (“officers, law-makers and citizens naturally adjust themselves to any long-continued action” of the government “on the presumption that” unconstitutional “acts would not have been allowed to be so often repeated as to crystallize into a regular practice”); McPherson v. Blacker , 146 U.S. 1 , 27 (1892) (when constitutional text is vague, “contemporaneous and subsequent practical construction are entitled to the greatest weight”).[ 4 ] Importantly, the Framers themselves intended that post-ratification history would shed light on the meaning of vague constitutional text. They understood that some constitutional text may be “more or less obscure and equivocal” such that questions “daily occur in the course of practice.” The Federalist No. 37, at 228–229. Madison explained that the meaning of vague text would be “liquidated and ascertained by a series of particular discussions and adjudications.” Id ., at 229. In other words, Madison articulated the Framers’ expectation and intent that post-ratification history would be a proper and important tool to help constitutional interpreters determine the meaning of vague constitutional text. From early on, this Court followed Madison’s lead. In 1819, in one of its most important decisions ever, the Court addressed the scope of Article I’s Necessary and Proper Clause. McCulloch v. Maryland , 4 Wheat. 316 (1819). Writing for the Court, Chief Justice Marshall invoked post-ratification history to conclude that Congress’s authority to establish a national bank could “scarcely be considered as an open question.” Id ., at 401. The constitutionality of the national bank had “been recognised by many successive legislatures,” and an “exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded.” Ibid. Marshall added: The “respective powers of those who are equally the representatives of the people, are to be adjusted; if not put at rest by the practice of the government, ought to receive a considerable impression from that practice.” Ibid . In relying on post-ratification history as a proper tool to discern constitutional meaning, Madison and Marshall make for a formidable duo. Moving from distant American history to more recent times, one can add Justice Scalia. Throughout his consequential 30-year tenure on this Court, Justice Scalia repeatedly emphasized that constitutional interpretation must take account of text, pre-ratification history, and post-ratification history—the last of which he often referred to as “tradition.” In his words, when judges interpret vague or broadly worded constitutional text, the “traditions of our people” are “paramount.” McDonald v. Chicago , 561 U.S. 742 , 792 (2010) (Scalia, J., concurring). Constitutional interpretation should reflect “the principles adhered to, over time, by the American people, rather than those favored by the personal (and necessarily shifting) philosophical dispositions of a majority of this Court.” Rutan v. Republican Party of Ill. , 497 U.S. 62 , 96 (1990) (Scalia, J., dissenting). The U. S. Reports are well stocked with Scalia opinions looking to post-ratification history and tradition.[ 5 ] In Heller , Justice Scalia wrote for the Court that “a critical tool of constitutional interpretation” is “the examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification.” 554 U. S., at 605 (emphasis in original); see also ibid . (“We now address how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century”). Heller echoed years of earlier Scalia opinions. To take one: “Where the meaning of a constitutional text (such as ‘the freedom of speech’) is unclear, the widespread and long-accepted practices of the American people are the best indication of what fundamental beliefs it was intended to enshrine.” McIntyre v. Ohio Elections Comm’n , 514 U.S. 334 , 378 (1995) (Scalia, J., dissenting). Or another: A “venerable and accepted tradition is not to be laid on the examining table and scrutinized for its conformity to some abstract principle” of “adjudication devised by this Court. To the contrary, such traditions are themselves the stuff out of which the Court’s principles are to be formed. They are, in these uncertain areas, the very points of reference by which the legitimacy or illegitimacy of other practices is to be figured out.” Rutan , 497 U. S., at 95–96 (Scalia, J., dissenting) (emphasis in original). As leading actors and theorists in the earliest and latest chapters of the American constitutional story, Madison, Marshall, and Scalia made clear that courts should look to post-ratification history as well as pre-ratification history to interpret vague constitutional text. For more than two centuries—from the early 1800s to this case—this Court has done just that. The Court has repeatedly employed post-ratification history to determine the meaning of vague constitutional text. Reliance on post-ratification history “has shaped scores of Court cases spanning all domains of constitutional law, every era of the nation’s history, and Justices of every stripe.” S. Girgis, Living Traditionalism, 98 N. Y. U. L. Rev. 1477, 1480 (2023); see, e.g. , Consumer Financial Protection Bureau v. Community Financial Services Assn. of America, Ltd. , 601 U.S. 416, 441–445 (2024) (Kagan, J., concurring); Trump v. Anderson , 601 U.S. 100, 113–115 (2024) ( per curiam ); Moore v. Harper , 600 U.S. 1, 22, 32–34 (2023); Kennedy v. Bremerton School Dist. , 597 U.S. 507, 535–536, 540–541, and n. 6 (2022); New York State Rifle Pistol Assn., Inc. v. Bruen , 597 U.S. 1, 35–37, 50–70 (2022); City of Austin v. Reagan Nat. Advertising of Austin, LLC , 596 U.S. 61, 75 (2022); Houston Community College System v. Wilson , 595 U.S. 468, 474–477 (2022); PennEast Pipeline Co. v. New Jersey , 594 U.S. 482, 494–497, 508 (2021); TransUnion LLC v. Ramirez , 594 U.S. 413, 424–425, 432–434 (2021); Torres v. Madrid , 592 U.S. 306, 314 (2021); Trump v. Mazars USA, LLP , 591 U.S. 848, 858–862 (2020); Chiafalo v. Washington , 591 U.S. 578, 592–597 (2020); American Legion v. American Humanist Assn. , 588 U.S. 29, 58–66 (2019); Zivotofsky v. Kerry , 576 U.S. 1 , 15–17, 23–28 (2015); Town of Greece v. Galloway , 572 U.S. 565 , 575–579 (2014); District of Columbia v. Heller , 554 U.S. 570 , 605–619, 626–628 (2008); Crawford v. Washington , 541 U.S. 36 , 47–50 (2004); Apprendi v. New Jersey , 530 U.S. 466 , 481–483, and n. 10 (2000); Medina v. California , 505 U.S. 437 , 445–448 (1992); Holland v. Illinois , 493 U.S. 474 , 481–482, and n. 1 (1990); Marsh v. Chambers , 463 U.S. 783 , 786–792 (1983); Dames Moore v. Regan , 453 U.S. 654 , 678–682 (1981); Walz v. Tax Comm’n of City of New York , 397 U.S. 664 , 676–680 (1970); Powell v. McCormack , 395 U.S. 486 , 522, 541–547 (1969); Youngstown Sheet Tube Co. v. Sawyer , 343 U.S. 579 , 610–613 (1952) (Frankfurter, J., concurring); United States v. Curtiss-Wright Export Corp. , 299 U.S. 304 , 321–329 (1936); The Pocket Veto Case , 279 U.S. 655 , 688–691 (1929); Myers v. United States , 272 U.S. 52 , 155–158 (1926); United States v. Midwest Oil Co. , 236 U.S. 459 , 469–475 (1915); Marshall Field Co. v. Clark , 143 U.S. 649 , 683–692 (1892); Murray’s Lessee v. Hoboken Land Improvement Co. , 18 How. 272, 279–280 (1856); McCulloch v. Maryland , 4 Wheat. 316, 400–401 (1819).[ 6 ] C Precedent . With a Constitution and a Supreme Court that are both more than two centuries old, this Court and other courts are rarely interpreting a constitutional provision for the first time. Rather, a substantial body of Supreme Court precedent already exists for many provisions of the Constitution. Precedent is fundamental to day-to-day constitutional decisionmaking in this Court and every American court. The “judicial Power” established in Article III incorporates the principle of stare decisis , both vertical and horizontal. As Hamilton stated, to “avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents” that will “unavoidably swell to a very considerable bulk” and “serve to define and point out their duty in every particular case that comes before them.” The Federalist No. 78, at 471 (A. Hamilton). Courts must respect precedent, while at the same time recognizing that precedent on occasion may appropriately be overturned. See, e . g ., Brown , 347 U.S. 483 ; West Coast Hotel Co. v. Parrish , 300 U.S. 379 (1937); see also Ramos v. Louisiana , 590 U.S. 83, 115–132 (2020) (Kavanaugh, J., concurring in part). In light of the significant amount of Supreme Court precedent that has built up over time, this Court and other courts often decide constitutional cases by reference to those extensive bodies of precedent. Even then, however, text and history still matter a great deal. When determining how broadly or narrowly to read a precedent; when determining whether to extend, limit, or narrow a precedent; or in relatively infrequent cases, when determining whether to overrule a precedent, a court often will consider how the precedent squares with the Constitution’s text and history. Therefore, the text, as well as pre-ratification and post-ratification history, may appropriately function as a gravitational pull on the Court’s interpretation of precedent. See Free Enterprise Fund v. Public Company Accounting Oversight Bd. , 537 F.3d 667, 698 (CADC 2008) (Kavanaugh, J., dissenting) (“We should resolve questions about the scope of those precedents in light of and in the direction of the constitutional text and constitutional history”). But the first stop in this Court’s constitutional decisionmaking is the Court’s precedents—the accumulated wisdom of jurists from Marshall and Story to Harlan and Taft; from Hughes and Black to Jackson and White; from Rehnquist and O’Connor to Kennedy and Scalia; and so on. III Some say that courts should determine exceptions to broadly worded individual rights, including the Second Amendment, by looking to policy. Uphold a law if it is a good idea; strike it down if it is not. True, the proponents of a policy-based approach to interpretation of broadly worded or vague constitutional text usually do not say so explicitly (although some do). Rather, they support a balancing approach variously known as means-end scrutiny, heightened scrutiny, tiers of scrutiny, rational basis with bite, or strict or intermediate or intermediate-plus or rigorous or skeptical scrutiny. Whatever the label of the day, that balancing approach is policy by another name. It requires judges to weigh the benefits against the burdens of a law and to uphold the law as constitutional if, in the judge’s view, the law is sufficiently reasonable or important. See M. Barnes E. Chemerinsky, The Once and Future Equal Protection Doctrine?, 43 Conn. L. Rev. 1059, 1080 (2011) (“The levels of scrutiny are essentially balancing tests”). To begin, as I have explained, that kind of balancing approach to constitutional interpretation departs from what Framers such as Madison stated, what jurists such as Marshall and Scalia did, what judges as umpires should strive to do, and what this Court has actually done across the constitutional landscape for the last two centuries. The balancing tests (heightened scrutiny and the like) are a relatively modern judicial innovation in constitutional decisionmaking. The “tiers of scrutiny have no basis in the text or original meaning of the Constitution.” J. Alicea J. Ohlendorf, Against the Tiers of Constitutional Scrutiny, National Affairs 72, 73 (2019). And before the late 1950s, “what we would now call strict judicial scrutiny did not exist.” R. Fallon, The Nature of Constitutional Rights: The Invention and Logic of Strict Judicial Scrutiny 30 (2019). The Court “appears to have adopted” heightened-scrutiny tests “by accident” in the 1950s and 1960s in a series of Communist speech cases, “rather than as the result of a considered judgment.” Simon Schuster, Inc. v. Members of N. Y. State Crime Victims Bd. , 502 U.S. 105 , 125 (1991) (Kennedy, J., concurring in judgment). The Court has employed balancing only in discrete areas of constitutional law—and even in those cases, history still tends to play a far larger role than overt judicial policymaking.[ 7 ] To be clear, I am not suggesting that the Court overrule cases where the Court has applied those heightened-scrutiny tests. But I am challenging the notion that those tests are the ordinary approach to constitutional interpretation. And I am arguing against extending those tests to new areas, including the Second Amendment. One major problem with using a balancing approach to determine exceptions to constitutional rights is that it requires highly subjective judicial evaluations of how important a law is—at least unless the balancing test itself incorporates history, in which case judges might as well just continue to rely on history directly. The subjective balancing approach forces judges to act more like legislators who decide what the law should be, rather than judges who “say what the law is.” Marbury v. Madison , 1 Cranch 137, 177 (1803). That is because the balancing approach requires judges to weigh the benefits of a law against its burdens—a value-laden and political task that is usually reserved for the political branches. And that power in essence vests judges with “a roving commission to second-guess” legislators and administrative officers “concerning what is best for the country.” W. Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693, 698 (1976). Stated otherwise, when a court “does not have a solid textual anchor or an established social norm from which to derive the general rule, its pronouncement appears uncomfortably like legislation.” A. Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1185 (1989). Moreover, the balancing approach is ill-defined. Some judges will apply heightened scrutiny with a presumption in favor of deference to the legislature. Other judges will apply heightened scrutiny with a presumption in favor of the individual right in question. Because it is unmoored, the balancing approach presents the real “danger” that “judges will mistake their own predilections for the law.” A. Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 863 (1989). Under the balancing approach, to use Justice Scalia’s characteristically vivid description, if “We The Court conclude that They The People’s answers to a problem” are unwise, “we are free to intervene,” but if we “think the States may be on to something, we can loosen the leash.” McDonald v. Chicago , 561 U.S. 742 , 803 (2010) (concurring opinion) (quotation marks omitted). The balancing approach can be antithetical to the principle that judges must act like umpires. It turns judges into players. Justice Black once protested that the Court should not balance away bedrock free speech protections for the perceived policy needs of the moment. He argued that “the balancing approach” “disregards all of the unique features of our Constitution” by giving “the Court, along with Congress, a greater power, that of overriding the plain commands of the Bill of Rights on a finding of weighty public interest.” H. Black, The Bill of Rights, 35 N. Y. U. L. Rev. 865, 878–879 (1960). Like Justice Black, the Court in Heller cautioned that a “constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.” 554 U.S. 570 , 634 (2008). Some respond that history can be difficult to decipher. It is true that using history to interpret vague text can require “nuanced judgments,” McDonald , 561 U. S., at 803–804 (Scalia, J., concurring), and is “sometimes inconclusive,” Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev., at 864. But at a minimum, history tends to narrow the range of possible meanings that may be ascribed to vague constitutional language. A history-based methodology supplies direction and imposes a neutral and democratically infused constraint on judicial decisionmaking. The historical approach is not perfect. But “the question to be decided is not whether the historically focused method is a perfect means of restraining aristocratic judicial Constitution-writing; but whether it is the best means available in an imperfect world.” McDonald , 561 U. S., at 804 (Scalia, J., concurring) (emphasis in original). And the historical approach is superior to judicial policymaking. The historical approach “depends upon a body of evidence susceptible of reasoned analysis rather than a variety of vague ethico-political First Principles whose combined conclusion can be found to point in any direction the judges favor.” Ibid . Moreover, the historical approach “intrudes less upon the democratic process because the rights it acknowledges are those established by a constitutional history formed by democratic decisions; and the rights it fails to acknowledge are left to be democratically adopted or rejected by the people.” Id. , at 805. IV This Court’s Second Amendment jurisprudence has carefully followed and reinforced the Court’s longstanding approach to constitutional interpretation—relying on text, pre-ratification and post-ratification history, and precedent. In Heller , the Court began with the baseline point that the Second Amendment textually guarantees an individual right. The Court then explained that the Second Amendment right is, of course, “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose” and is subject to “important” limitations. 554 U.S. 570 , 626–627 (2008). Although Heller declined to “undertake an exhaustive historical analysis,” it recognized a few categories of traditional exceptions to the right. Id ., at 626. For example, Heller indicated that: (i) “prohibitions on carrying concealed weapons were lawful”; (ii) the Second Amendment attaches only to weapons “in common use” because “that limitation is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons”; and (iii) “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” are presumptively constitutional. Id ., at 626–627 (quotation marks omitted). In McDonald , the Court held that the Second Amendment was incorporated against the States. In so holding, the Court reiterated the presumed constitutionality of the “longstanding regulatory measures” identified in Heller . 561 U.S. 742 , 786 (2010) (plurality opinion). Then, in Bruen , the Court repeated that the “Nation’s historical tradition of firearm regulation” guides the constitutional analysis of gun regulations and exceptions to the right to bear arms. 597 U.S. 1, 17 (2022); see id ., at 79–81 (Kavanaugh, J., concurring). This Court’s approach in those three recent Second Amendment cases—and in the Court’s opinion today—is entirely consistent with the Court’s longstanding reliance on history and precedent to determine the meaning of vague constitutional text. Heller rested on “constitutional text and history,” ante , at 6 (quotation marks omitted), and laid the foundation for McDonald and then Bruen . In today’s case, the Court carefully builds on Heller , McDonald , and Bruen . The Court applies the historical test that those precedents have set forth—namely, “whether the new law is relevantly similar to laws that our tradition is understood to permit.” Ante , at 7 (quotation marks omitted). The Court examines “our historical tradition of firearm regulation,” ante , at 6 (quotation marks omitted), and correctly holds that America’s “tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others,” ante , at 16. The law before us “fits neatly within the tradition the surety and going armed laws represent.” Ante , at 13–14. As the Court’s decision today notes, Second Amendment jurisprudence is still in the relatively early innings, unlike the First, Fourth, and Sixth Amendments, for example. That is because the Court did not have occasion to recognize the Second Amendment’s individual right until recently. See generally Heller v. District of Columbia , 670 F.3d 1244, 1269–1296 (CADC 2011) (Kavanaugh, J., dissenting). Deciding constitutional cases in a still-developing area of this Court’s jurisprudence can sometimes be difficult. But that is not a permission slip for a judge to let constitutional analysis morph into policy preferences under the guise of a balancing test that churns out the judge’s own policy beliefs. *  *  * As exemplified by Heller , McDonald , Bruen , and the Court’s opinion today, constitutional interpretation properly takes account of text, pre-ratification and post-ratification history, and precedent. Those are the tools of the trade for an American judge interpreting the American Constitution. Of course, difficult subsidiary questions can arise about how to apply those tools, both generally and in particular cases. And in some cases, text, history, and precedent may point in somewhat different directions. In law as in life, nothing is perfect. But in Second Amendment cases as in other constitutional cases, text, history, and precedent must remain paramount. Notes 1 There are two ways to frame this point—either (i) determining the exceptions to a constitutional right or (ii) determining the affirmative scope or contours of that constitutional right. Either way, the analysis is the same—does the constitutional provision, as originally understood, permit the challenged law? This opinion uses the term “exceptions,” which underscores that the constitutional baseline is protection of the textually enumerated right. See Federal Election Comm’n v. Wisconsin Right to Life, Inc. , 551 U.S. 449 , 482 (2007) (opinion of Roberts, C. J.) (stating in a First Amendment case that “it is worth recalling the language we are applying”). 2 The historical approach applies when the text is vague. But the text of the Constitution always controls. So history contrary to clear text is not to be followed. See, e.g. , INS v. Chadha , 462 U.S. 919 , 945–959 (1983); Powell v. McCormack , 395 U.S. 486 , 546–547 (1969); Brown v. Board of Education , 347 U.S. 483 , 490–495, and n. 5 (1954); cf. Sedition Act of 1798, ch. 74, 1 Stat. 596. In some cases, there may be debate about whether the relevant text is sufficiently clear to override contrary historical practices. See, e.g. , NLRB v. Noel Canning , 573 U.S. 513 , 613 (2014) (Scalia, J., concurring in judgment) (“What the majority needs to sustain its judgment is an ambiguous text and a clear historical practice. What it has is a clear text and an at-best-ambiguous historical practice”). The basic principle remains: Text controls over contrary historical practices. 3 To be sure, as the Court’s cases reveal, pre-ratification English law and practices may supply background for some constitutional provisions. But the Constitution, including the Bill of Rights, did not purport to take English law or history wholesale and silently download it into the U. S. Constitution. See, e.g. , Harmelin v. Michigan , 501 U.S. 957 , 975 (1991) (opinion of Scalia, J.) (“Unless one accepts the notion of a blind incorporation, however, the ultimate question is not what ‘cruell and unusuall punishments’ meant in the [English] Declaration of Rights, but what its meaning was to the Americans who adopted the Eighth Amendment”). Therefore, reflexively resorting to English law or history without careful analysis can sometimes be problematic because America had fought a war—and would soon fight another in 1812—to free itself from British law and practices and rid itself of tyrannical British rule. See The Federalist No. 45, p. 289 (C. Rossiter ed. 1961) (J. Madison) (“Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety,” but that they should continue to be subject to the “impious doctrine in the old world, that the people were made for kings, not kings for the people”?). 4 Post-ratification history is sometimes also referred to as tradition, liquidation, or historical gloss. Those concepts are probably not identical in all respects. In any event, in applying those concepts in constitutional interpretation, some important questions can arise, such as: (i) the level of generality at which to define a historical practice; (ii) how widespread a historical practice must have been; (iii) how long ago it must have started; and (iv) how long it must have endured. Although this Court’s constitutional precedents routinely rely on post-ratification history, those precedents do not supply a one-size-fits-all answer to those various methodological questions. See, e . g ., Noel Canning , 573 U. S., at 522–556; Youngstown Sheet Tube Co. v. Sawyer , 343 U.S. 579 , 610–611 (1952) (Frankfurter, J., concurring). And I will not attempt to answer all of those questions here. Respected scholars are continuing to undertake careful analysis. See generally J. Alicea, Practice-Based Constitutional Theories, 133 Yale L. J. 568 (2023); R. Barnett L. Solum, Originalism After Dobbs , Bruen , and Kennedy : The Role of History and Tradition, 118 Nw. U. L. Rev. 433 (2023); M. DeGirolami, Traditionalism Rising, 24 J. Contemp. Legal Issues 9 (2023); S. Girgis, Living Traditionalism, 98 N. Y. U. L. Rev. 1477 (2023); W. Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019); C. Bradley, Doing Gloss, 84 U. Chi. L. Rev. 59 (2017); C. Bradley T. Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411 (2012); A. Amar, America’s Constitution (2005); C. Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519 (2003); M. McConnell, Tradition and Constitutionalism Before the Constitution, 1998 U. Ill. L. Rev. 173. 5 Justice Scalia’s opinions “made extensive use of post-ratification history,” and “his assessment of post-ratification history” in those opinions extended “far beyond the time of enactment.” M. Ramsey, Beyond the Text: Justice Scalia’s Originalism in Practice, 92 Notre Dame L. Rev. 1945, 1957, 1960 (2017). Justice Scalia did not necessarily “use[ ] tradition as an independent source of interpretive authority; rather, he had a very broad view of what traditions might be indicative of original meaning.” Id ., at 1962, n. 79; see, e . g ., NLRB v. Noel Canning , 573 U.S. 513 , 584–593, 602–615 (2014) (Scalia, J., concurring in judgment); District of Columbia v. Heller , 554 U.S. 570 , 605–619, 626–628 (2008); McCreary County v. American Civil Liberties Union of Ky. , 545 U.S. 844 , 886–900 (2005) (Scalia, J., dissenting); Hamdi v. Rumsfeld , 542 U.S. 507 , 558–563 (2004) (Scalia, J., dissenting); Crawford v. Washington , 541 U.S. 36 , 47–50 (2004); Mitchell v. United States , 526 U.S. 314 , 334–336, and n. 1 (1999) (Scalia, J., dissenting); Department of Commerce v. United States House of Representatives , 525 U.S. 316 , 347–349 (1999) (Scalia, J., concurring in part); Clinton v. City of New York , 524 U.S. 417 , 465–469 (1998) (Scalia, J., concurring in part and dissenting in part); Printz v. United States , 521 U.S. 898 , 905–918 (1997); United States v. Gaudin , 515 U.S. 506 , 515–519 (1995); McIntyre v. Ohio Elections Comm’n , 514 U.S. 334 , 375–378, and nn. 1–2 (1995) (Scalia, J., dissenting); Plaut v. Spendthrift Farm, Inc. , 514 U.S. 211 , 223–225 (1995); Board of Ed. of Kiryas Joel Village School Dist. v. Grumet , 512 U.S. 687 , 732, 744 (1994) (Scalia, J., dissenting); Herrera v. Collins , 506 U.S. 390 , 427–428 (1993) (Scalia, J., concurring); Richmond v. Lewis , 506 U.S. 40 , 54 (1992) (Scalia, J., dissenting); Harmelin v. Michigan , 501 U.S. 957 , 979–985 (1991) (opinion of Scalia, J.); Rutan v. Republican Party of Ill. , 497 U.S. 62 , 95–97 (1990) (Scalia, J., dissenting); McKoy v. North Carolina , 494 U.S. 433 , 466, 471 (1990) (Scalia, J., dissenting); Holland v. Illinois , 493 U.S. 474 , 481–482, and n. 1 (1990). 6 The Court has similarly relied on history when deciding cases involving textually unenumerated rights under the Due Process Clause or the Privileges or Immunities Clause. In those contexts, the baseline is 180-degrees different: The text supplies no express protection of any asserted substantive right. The Court has recognized exceptions to that textual baseline, but in doing so has regularly observed that the Fourteenth Amendment “specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition.” Washington v. Glucksberg , 521 U.S. 702 , 720–721 (1997) (quotation marks omitted); see, e . g ., Pierce v. Society of Sisters , 268 U.S. 510 , 534–535 (1925) (“liberty of parents and guardians to direct the upbringing and education of children under their control”). 7 The Court has articulated a heightened-scrutiny test in some pockets of free-speech jurisprudence. But even when invoking heightened scrutiny in that context, the Court still often relies directly on history. See, e.g. , City of Austin v. Reagan Nat. Advertising of Austin, LLC , 596 U.S. 61, 75 (2022) (a city’s regulation of solely off-premises billboards was within “the Nation’s history of regulating off-premises signs” as “federal, state, and local jurisdictions have repeatedly relied upon on-/off-premises distinctions” “for the last 50-plus years”); Perry Ed. Assn. v. Perry Local Educators’ Assn. , 460 U.S. 37 , 45–46 (1983) (“In places which by long tradition” “have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed”). The Court has also used heightened scrutiny in certain equal protection cases. As discussed above, the Equal Protection Clause rejected the history of racially discriminatory laws and practices. SUPREME COURT OF THE UNITED STATES _________________ No. 22–915 _________________ UNITED STATES, PETITIONER v. ZACKEY RAHIMI on writ of certiorari to the united states court of appeals for the fifth circuit [June 21, 2024] Justice Jackson, concurring. This case tests our Second Amendment jurisprudence as shaped in particular by New York State Rifle Pistol Assn., Inc. v. Bruen , 597 U.S. 1 (2022). I disagree with the methodology of that decision; I would have joined the dissent had I been a Member of the Court at that time. See generally id. , at 83–133 (Breyer, J., dissenting). But Bruen is now binding law. Today’s decision fairly applies that precedent, so I join the opinion in full. I write separately because we now have two years’ worth of post- Bruen cases under our belts, and the experiences of courts applying its history-and-tradition test should bear on our assessment of the workability of that legal standard. This case highlights the apparent difficulty faced by judges on the ground. Make no mistake: Today’s effort to clear up “misunderst[andings],” ante, at 7, is a tacit admission that lower courts are struggling. In my view, the blame may lie with us, not with them. I The Court today expounds on the history-and-tradition inquiry that Bruen requires. Ante , at 7–8. We emphasize that the Second Amendment is “not . . . a law trapped in amber.” Ante, at 7. It “permits more than just those regulations identical to ones that could be found in 1791”; indeed, “a challenged regulation [that] does not precisely match its historical precursors . . . ‘still may be analogous enough to pass constitutional muster.’ ” Ibid . (quoting Bruen , 597 U. S., at 30). Gun regulations need only “comport with the principles underlying the Second Amendment.” Ante, at 7–8. These clarifying efforts are welcome, given the many questions Bruen left unanswered. When this Court adopts a new legal standard, as we did in Bruen , we do not do so in a vacuum. The tests we establish bind lower court judges, who then apply those legal standards to the cases before them. In my view, as this Court thinks of, and speaks about, history’s relevance to the interpretation of constitutional provisions, we should be mindful that our common-law tradition of promoting clarity and consistency in the application of our precedent also has a lengthy pedigree. So when courts signal they are having trouble with one of our standards, we should pay attention. Cf. Garcia v. San Antonio Metropolitan Transit Authority , 469 U.S. 528 , 538–539 (1985). The message that lower courts are sending now in Second Amendment cases could not be clearer. They say there is little method to Bruen ’s madness.[ 1 ] It isn’t just that Bruen ’s history-and-tradition test is burdensome (though that is no small thing to courts with heavier caseloads and fewer resources than we have). The more worrisome concern is that lower courts appear to be diverging in both approach and outcome as they struggle to conduct the inquiry Bruen requires of them. Scholars report that lower courts applying Bruen ’s approach have been unable to produce “consistent, principled results,” Brief for Second Amendment Law Scholars as Amici Curiae 4, and, in fact, they “have come to conflicting conclusions on virtually every consequential Second Amendment issue to come before them,” id. , at 4–5; see also id ., at 5–6 (collecting examples). Given this, it appears indisputable that, after Bruen , “confusion plagu[es] the lower courts.” Id ., at 6. II This discord is striking when compared to the relative harmony that had developed prior to Bruen . To be sure, our decision in District of Columbia v. Heller , 554 U.S. 570 (2008), which first recognized an individual right to keep and bear arms for self-defense, see id ., at 628, was disruptive in its own way. After all, before Heller , “[t]he meaning of the Second Amendment ha[d] been considered settled by courts and legislatures for over two centuries,” and “judges and legislators . . . properly believed . . . that the Second Amendment did not reach possession of firearms for purely private activities.” Id ., at 676, n. 38 (Stevens, J., dissenting). Nonetheless, after Heller , lower courts took up the necessary work of reviewing burdens on this newly unearthed right. By the time this Court decided Bruen , every court of appeals evaluating whether a firearm regulation was consistent with the Second Amendment did so using a two-step framework that incorporated means-end scrutiny. See Bruen , 597 U. S., at 103 (Breyer, J., dissenting). Rejecting that “two-step approach” as having “one step too many,” id ., at 19, the Bruen majority subbed in another two-step evaluation. Courts must, first, determine whether “the Second Amendment’s plain text covers an individual’s conduct.” Id ., at 24. If it does, “[t]he government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” Ibid. No one seems to question that “[h]istory has a role to play in Second Amendment analysis.” Ante, at 4 (Sotomayor, J., concurring). But, per Bruen , courts evaluating a Second Amendment challenge must consider history to the exclusion of all else . This means legislators must locate and produce—and courts must sift through—troves of centuries-old documentation looking for supportive historical evidence.[ 2 ] This very case provides a prime example of the pitfalls of Bruen ’s approach. Having been told that a key marker of a constitutional gun regulation is “a well-established and representative historical analogue,” Bruen , 597 U. S., at 30 (emphasis deleted), Rahimi argued below that “there is little or no historical evidence suggesting disarmament for those who committed domestic violence; and there is certainly no tradition of disarming people subject to a no-contact order related to domestic violence.” Supp. Brief for Appellant in No. 21–11001 (CA5), p. 15 (emphasis deleted). The Government then proffered what it maintained were sufficient historical analogues to 18 U. S. C. §922(g)(8), including surety and going armed laws. Supp. Brief for Appellee in No. 21–11001 (CA5), pp. 23, n. 2, 27–31. But the Fifth Circuit concluded that the federal statute was unconstitutional because the Government’s analogues were not “ ‘relevantly similar.’ ” 61 F. 4th 443, 460–461 (2023). Neither the parties nor the Fifth Circuit had the benefit of today’s decision, in which we hold that the Government had in fact offered “ample evidence that the Second Amendment permits the disarmament of individuals who pose a credible threat to the physical safety of others.” Ante, at 8. But even setting aside whether the historical examples the Government found were sufficiently analogous, just canvassing the universe of historical records and gauging the sufficiency of such evidence is an exceedingly difficult task.[ 3 ] Consistent analyses and outcomes are likely to remain elusive because whether Bruen’ s test is satisfied in a particular case seems to depend on the suitability of whatever historical sources the parties can manage to cobble together, as well as the level of generality at which a court evaluates those sources—neither of which we have as yet adequately clarified. And the unresolved questions hardly end there. Who is protected by the Second Amendment, from a historical perspective? To what conduct does the Second Amendment’s plain text apply? To what historical era (or eras) should courts look to divine a historical tradition of gun regulation? How many analogues add up to a tradition? Must there be evidence that those analogues were enforced or subject to judicial scrutiny? How much support can nonstatutory sources lend? I could go on—as others have. See, e . g ., United States v. Daniels , 77 F. 4th 337, 358–360 (CA5 2023) (Higginson, J., concurring) (providing a similarly nonexhaustive list). But I won’t. III Maybe time will resolve these and other key questions. Maybe appellate courts, including ours, will find a way to “[b]rin[g] discipline to the increasingly erratic and unprincipled body of law that is emerging after Bruen .” J. Blocher E. Ruben, Originalism-by-Analogy and Second Amendment Adjudication, 133 Yale L. J. 99, 174 (2023). Indeed, “[m]any constitutional standards involve undoubted gray areas,” and “it normally might be fair to venture the assumption that case-by-case development [will] lead to a workable standard.” Garcia , 469 U. S., at 540 (internal quotation marks and alteration omitted). By underscoring that gun regulations need only “comport with the principles underlying the Second Amendment,” ante, at 7–8 (emphasis added), today’s opinion inches that ball forward. But it is becoming increasingly obvious that there are miles to go.[ 4 ] Meanwhile, the Rule of Law suffers. That ideal—key to our democracy—thrives on legal standards that foster stability, facilitate consistency, and promote predictability. So far, Bruen ’s history-focused test ticks none of those boxes. *  *  * I concur in today’s decision applying Bruen . But, in my view, the Court should also be mindful of how its legal standards are actually playing out in real life. We must remember that legislatures, seeking to implement meaningful reform for their constituents while simultaneously respecting the Second Amendment, are hobbled without a clear, workable test for assessing the constitutionality of their proposals. See Tr. of Oral Arg. 54–57; cf. Bruen , 597 U. S., at 90–91 (Breyer, J., dissenting). And courts, which are currently at sea when it comes to evaluating firearms legislation, need a solid anchor for grounding their constitutional pronouncements. The public, too, deserves clarity when this Court interprets our Constitution. Notes 1 See, e.g ., Barris v. Stroud Twp. , ___ Pa. ___, ___, 310 A.3d 175, 190 (2024) (“[M]ore guidance in this challenging and ever-shifting area of the law is welcome”); State v. Wilson , 154 Haw. 8, 21, 543 P.3d 440, 453 (2024) (“[B]y turning the test into history and nothing else, [ Bruen ] dismantles workable methods to interpret firearms laws”); United States v. Dubois , 94 F. 4th 1284, 1293 (CA11 2024) (“We require clearer instruction from the Supreme Court before we may reconsider the constitutionality of [18 U. S. C. §]922(g)(1)”); United States v. Daniels , 77 F. 4th 337, 358 (CA5 2023) (Higginson, J., concurring) (“[C]ourts, operating in good faith, are struggling at every stage of the Bruen inquiry. Those struggles encompass numerous, often dispositive, difficult questions”); Atkinson v. Garland , 70 F. 4th 1018, 1024 (CA7 2023) (“[T]he historical analysis required by Bruen will be difficult and no doubt yield some measure of indeterminancy”); id ., at 1036 (Wood, J., dissenting) (“As other courts have begun to apply Bruen , [the] need for further research and further guidance has become clear”); Gonyo v. D. S ., 210 N. Y. S. 3d 612, 615, 2024 N. Y. Slip Op. 24018 (Jan. 19, 2024) (“Interpretations and applications of Bruen by lower courts have been widely divergent and thus, very difficult to apply as precedent”); United States v. Sing-Ledezma , ___ F. Supp. 3d ___, ___, 2023 WL 8587869, *3 (WD Tex. Dec. 11, 2023) (“[T]he Court pauses to join the choir of lower courts urging the Supreme Court to resolve the many unanswered questions left in Bruen ’s wake”); United States v. Bartucci , 658 F. Supp. 3d 794, 800 (ED Cal. 2023) (“[T]he unique test the Supreme Court announced in Bruen does not provide lower courts with clear guidance as to how analogous modern laws must be to founding-era gun laws. In the short time post- Bruen , this has caused disarray among the lower courts”); United States v. Bullock , 679 F. Supp. 3d 501, 534 (SD Miss. 2023) (raising methodological questions “in hopes that future judges and justices can answer them with enough detail to enable trial courts to perform their duties”); Fraser v. Bureau of Alcohol, Tobacco , Firearms and Explosives , 672 F. Supp. 3d 118, 137, n. 20 (ED Va. 2023) (“The Court is staffed by lawyers who are neither trained nor experienced in making the nuanced historical analyses called for by Bruen . . . . The analytical construct specified by Bruen is thus a difficult one for non-historians”); United States v. Jackson , 661 F. Supp. 3d 392, 406 (Md. 2023) (noting “the challenges created by Bruen’s assignment”); United States v. Love , 647 F. Supp. 3d 664, 670 (ND Ind. 2022) (“By . . . announcing an inconsistent and amorphous standard, the Supreme Court has created mountains of work for district courts that must now deal with Bruen -related arguments in nearly every criminal case in which a firearm is found”). 2 It is not clear what qualifies policymakers or their lawyers (who do not ordinarily have the specialized education, knowledge, or training of professional historians) to engage in this kind of assessment. And dutiful legislators are not the only stakeholders who are far outside their depth: Bruen also conscripts parties and judges into service as amateur historians, casting about for similar historical circumstances. 3 The mad scramble for historical records that Bruen requires also suggests that only those solutions that States implemented in the distant past comport with the Constitution. That premise is questionable because, given the breadth of some of the Constitution’s provisions, it is likely that the Founders understood that new solutions would be needed over time, even for traditional problems, and that the principles they were adopting would allow for such flexibility. See District of Columbia v. Heller , 554 U.S. 570 , 722 (2008) (Breyer, J., dissenting) (expressing doubt that the Framers “intended future generations to ignore [modern-day] matters”). It stifles both helpful innovation and democratic engagement to read the Constitution to prevent advancement in this way. In any event, what we see now is that Bruen ’s history-and-tradition test is not only limiting legislative solutions, it also appears to be creating chaos. 4 Extremely pertinent inquiries relevant to consistent application of Bruen ’s standard await resolution. For example, in Bruen we acknowledged the existence of “an ongoing scholarly debate on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868 when defining its scope (as well as the scope of the right against the Federal Government).” 597 U. S., at 37. We saw no need to address the issue in Bruen . Id ., at 38. We similarly decline to resolve that dispute today. Ante , at 8, n. 1. SUPREME COURT OF THE UNITED STATES _________________ No. 22–915 _________________ UNITED STATES, PETITIONER v. ZACKEY RAHIMI on writ of certiorari to the united states court of appeals for the fifth circuit [June 21, 2024] Justice Barrett, concurring. Despite its unqualified text, the Second Amendment is not absolute. It codified a pre-existing right, and pre-existing limits on that right are part and parcel of it. District of Columbia v. Heller , 554 U.S. 570 , 595, 627 (2008). Those limits define the scope of “the right to bear arms” as it was originally understood; to identify them, courts must examine our “historical tradition of firearm regulation.” New York State Rifle Pistol Assn., Inc. v. Bruen , 597 U.S. 1, 17, 19 (2022). That evidence marks where the right stops and the State’s authority to regulate begins. A regulation is constitutional only if the government affirmatively proves that it is “consistent with the Second Amendment’s text and historical understanding.” Id ., at 26. Because the Court has taken an originalist approach to the Second Amendment, it is worth pausing to identify the basic premises of originalism. The theory is built on two core principles: that the meaning of constitutional text is fixed at the time of its ratification and that the “discoverable historical meaning . . . has legal significance and is authoritative in most circumstances.” K. Whittington, Originalism: A Critical Introduction, 82 Ford. L. Rev. 375, 378 (2013) (Whittington). Ratification is a democratic act that renders constitutional text part of our fundamental law, see Arts. V, VII, and that text “remains law until lawfully altered,” S. Sachs, Originalism: Standard and Procedure, 135 Harv. L. Rev. 777, 782 (2022). So for an originalist, the history that matters most is the history surrounding the ratification of the text; that backdrop illuminates the meaning of the enacted law. History (or tradition) that long postdates ratification does not serve that function. To be sure, postenactment history can be an important tool. For example, it can “reinforce our understanding of the Constitution’s original meaning”; “liquidate ambiguous constitutional provisions”; provide persuasive evidence of the original meaning; and, if stare decisis applies, control the outcome. See Vidal v. Elster , 602 U. S. ___, ___–___ (2024) (Barrett, J., concurring in part) (slip op., at 13–14). But generally speaking, the use of postenactment history requires some justification other than originalism simpliciter. In Bruen , the Court took history beyond the founding era, considering gun regulations that spanned the 19th century. 597 U. S., at 50–70. I expressed reservations about the scope of that inquiry but concluded that the timing question did not matter to Bruen ’s holding. Id ., at 81–83 (concurring opinion). It bears emphasis, however, that my questions were about the time period relevant to discerning the Second Amendment’s original meaning—for instance, what is the post-1791 cutoff for discerning how the Second Amendment was originally understood? Id ., at 82 (“How long after ratification may subsequent practice illuminate original public meaning?”). My doubts were not about whether “tradition,” standing alone, is dispositive. Id ., at 83 (“[T]oday’s decision should not be understood to endorse freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights”). As I have explained elsewhere, evidence of “tradition” unmoored from original meaning is not binding law. Vidal , 602 U. S., at ___–___ (Barrett, J., concurring in part) (slip op., at 13–15). And scattered cases or regulations pulled from history may have little bearing on the meaning of the text. Samia v. United States , 599 U.S. 635, 656–657 (2023) (Barrett, J., concurring in part and concurring in judgment). “Original history”— i.e., the generally dispositive kind—plays two roles in the Second Amendment context. It elucidates how contemporaries understood the text—for example, the meaning of the phrase “bear Arms.” See Heller , 554 U. S., at 582–592. It also plays the more complicated role of determining the scope of the pre-existing right that the people enshrined in our fundamental law.[ 1 ]* In Rahimi’s case, the Court uses history in this latter way. Call this “original contours” history: It looks at historical gun regulations to identify the contours of the right. Courts have struggled with this use of history in the wake of Bruen . One difficulty is a level of generality problem: Must the government produce a founding-era relative of the challenged regulation—if not a twin, a cousin? Or do founding-era gun regulations yield concrete principles that mark the borders of the right? Many courts, including the Fifth Circuit, have understood Bruen to require the former, narrower approach. But Bruen emphasized that “analogical reasoning” is not a “regulatory straightjacket.” 597 U. S., at 30. To be consistent with historical limits, a challenged regulation need not be an updated model of a historical counterpart. Besides, imposing a test that demands overly specific analogues has serious problems. To name two: It forces 21st-century regulations to follow late-18th-century policy choices, giving us “a law trapped in amber.” Ante , at 7. And it assumes that founding-era legislatures maximally exercised their power to regulate, thereby adopting a “use it or lose it” view of legislative authority. Such assumptions are flawed, and originalism does not require them. “Analogical reasoning” under Bruen demands a wider lens: Historical regulations reveal a principle, not a mold. See, e . g ., 597 U. S., at 28–29 (explaining that the Amendment does not apply only to the catalogue of arms that existed in the 18th century, but rather to all weapons satisfying the “ general definition ” of “bearable arms” (emphasis added)); id ., at 30–31 (discussing the “ ‘sensitive places’ ” principle that limits the right to public carry); cf. Vidal , 602 U. S., at ___–___ (Barrett, J., concurring in part) (slip op., at 7–9); Whittington 386 (“The insight to be gleaned is not the authoritative status of the expected application, but the apparent rule at play given that such an application is expected to follow from it”). To be sure, a court must be careful not to read a principle at such a high level of generality that it waters down the right. Pulling principle from precedent, whether case law or history, is a standard feature of legal reasoning, and reasonable minds sometimes disagree about how broad or narrow the controlling principle should be. Here, though, the Court settles on just the right level of generality: “Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms.” Ante , at 5; see also Kanter v. Barr , 919 F.3d 437, 451, 464–465 (CA7 2019) (Barrett, J., dissenting) (“History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns”). Section 922(g)(8)(C)(i) fits well within that principle; therefore, Rahimi’s facial challenge fails. Harder level-of-generality problems can await another day. Notes 1 *To my mind, this use of history walks a fine line between original meaning (which controls) and expectations about how the text would apply (which do not). See Whittington 383 (“Specific expectations about the consequences of a legal rule are distinct from the meaning of the rule itself ”). Contemporary government actors might have been “wrong about the consequences of their own constitutional rule,” or they “might not have fully and faithfully implemented the adopted constitutional rule themselves.” Id. , at 384. Thus, while early applications of a constitutional rule can help illuminate its original scope, an interpreter must exercise care in considering them. Id. , at 385–386. In the Second Amendment context, particular gun regulations—even if from the ratification era—do not themselves have the status of constitutional law. SUPREME COURT OF THE UNITED STATES _________________ No. 22–915 _________________ UNITED STATES, PETITIONER v. ZACKEY RAHIMI on writ of certiorari to the united states court of appeals for the fifth circuit [June 21, 2024] Justice Thomas, dissenting. After New York State Rifle & Pistol Assn., Inc. v. Bruen , 597 U.S. 1 (2022), this Court’s directive was clear: A firearm regulation that falls within the Second Amendment’s plain text is unconstitutional unless it is consistent with the Nation’s historical tradition of firearm regulation. Not a single historical regulation justifies the statute at issue, 18 U. S. C. §922(g)(8). Therefore, I respectfully dissent. I Section 922(g)(8) makes it unlawful for an individual who is subject to a civil restraining order to possess firearms or ammunition. To trigger §922(g)(8)’s prohibition, a restraining order must bear three characteristics. First, the order issues after a hearing where the accused “received actual notice” and had “an opportunity to participate.” §922(g)(8)(A). Second, the order restrains the accused from engaging in threatening behavior against an intimate partner or child. §922(g)(8)(B). Third, the order has either “a finding that [the accused] represents a credible threat to the physical safety of [an] intimate partner or child,” or an “explici[t] prohibit[ion]” on “the use, attempted use, or threatened use of physical force against [an] intimate partner or child.” §922(g)(8)(C). If those three characteristics are present, §922(g)(8) automatically bans the individual subject to the order from possessing “any firearm or ammunition.” §922(g). Just as important as §922(g)(8)’s express terms is what it leaves unsaid. Section 922(g)(8) does not require a finding that a person has ever committed a crime of domestic violence. It is not triggered by a criminal conviction or a person’s criminal history, unlike other §922(g) subsections. See §§922(g)(1), (9). And, §922(g)(8) does not distinguish contested orders from joint orders—for example, when parties voluntarily enter a no-contact agreement or when both parties seek a restraining order. In addition, §922(g)(8) strips an individual of his ability to possess firearms and ammunition without any due process.[ 1 ] Rather, the ban is an automatic, uncontestable consequence of certain orders. See §922(g) (“It shall be unlawful for any [qualifying] person [to] possess in or affecting commerce, any firearm or ammunition”). There is no hearing or opportunity to be heard on the statute’s applicability, and a court need not decide whether a person should be disarmed under §922(g)(8). The only process §922(g)(8) requires is that provided (or not) for the underlying restraining order. Despite §922(g)(8)’s broad scope and lack of process, it carries strong penalties. Any violation of §922(g)(8) is a felony punishable by up to 15 years’ imprisonment. §924(a)(8); see also ante, at 3. And, a conviction for violating §922(g)(8) itself triggers a permanent, life-long prohibition on possessing firearms and ammunition. See §922(g)(1). In 2020, Zackey Rahimi and his ex-girlfriend, C. M., entered into a qualifying civil restraining order. App. 1. C. M. had requested the order and asserted that Rahimi assaulted her. See id., at 2. Because the order found that Rahimi presented a credible threat and prohibited him from using physical force against C. M., the order automatically triggered §922(g)(8)’s firearms ban. A year later, officers discovered firearms in Rahimi’s home. Rahimi pleaded guilty to violating §922(g)(8). Before his guilty plea, Rahimi challenged his conviction under the Second Amendment. He pointed to District of Columbia v. Heller , 554 U.S. 570 (2008), which held that the Second Amendment protects an individual right to keep and bear firearms. Section 922(g)(8), Rahimi argued, violates that right by penalizing firearms possession. The District Court rejected Rahimi’s claim. At that time, the Courts of Appeals, including the Fifth Circuit, applied a form of means-end scrutiny to Second Amendment claims. See, e . g ., United States v. McGinnis , 956 F.3d 747, 753–754 (2020). Applying Circuit precedent, the Fifth Circuit affirmed the District Court. 2022 WL 2070392 (2022). Roughly two weeks later, this Court issued its opinion in New York State Rifle & Pistol Assn., Inc. v. Bruen . The Court rejected the means-end-scrutiny approach and laid out the appropriate framework for assessing whether a firearm regulation is constitutional. Bruen , 597 U. S., at 17–19. That framework requires the Government to prove that the “regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id ., at 19. The Fifth Circuit withdrew its opinion to apply the correct framework to Rahimi’s claim. Relying on Bruen , the Fifth Circuit concluded that the Government failed to present historical evidence that §922(g)(8) “fits within our Nation’s historical tradition of firearm regulation.” 61 F. 4th 443, 460 (2023). The Fifth Circuit, accordingly, vacated Rahimi’s conviction. We granted certiorari. 600 U. S. ___ (2023). II The Second Amendment provides that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” As the Court recognizes, Bruen provides the framework for analyzing whether a regulation such as §922(g)(8) violates the Second Amendment’s mandate. “[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” 597 U. S., at 17. To overcome this presumption, “the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation.” Ibid . The presumption against restrictions on keeping and bearing firearms is a central feature of the Second Amendment. That Amendment does not merely narrow the Government’s regulatory power. It is a barrier, placing the right to keep and bear arms off limits to the Government. When considering whether a modern regulation is consistent with historical regulations and thus overcomes the presumption against firearms restrictions, our precedents “point toward at least two metrics [of comparison]: how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” Id ., at 29. A historical law must satisfy both considerations to serve as a comparator. See ibid . While a historical law need not be a “historical twin,” it must be “well-established and representative” to serve as a historical analogue. Id ., at 30 (emphasis deleted). In some cases, “the inquiry [is] fairly straightforward.” Id ., at 26. For instance, “when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment. Likewise, if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional.” Id ., at 26–27. The Court employed this “straightforward” analysis in Heller and Bruen . Heller considered the District of Columbia’s “flat ban on the possession of handguns in the home,” Bruen , 597 U. S., at 27, and Bruen considered New York’s effective ban on carrying a firearm in public, see id. , at 11–13. The Court determined that the District of Columbia and New York had “addressed a perceived societal problem—firearm violence in densely populated communities—and [they] employed a regulation . . . that the Founders themselves could have adopted to confront that problem.” Id ., at 27. Accordingly, the Court “consider[ed] ‘founding-era historical precedent’ ” and looked for a comparable regulation. Ibid . (quoting Heller , 554 U. S., at 631). In both cases, the Court found no such law and held the modern regulations unconstitutional. Id. , at 631; Bruen , 597 U. S., at 27. Under our precedent, then, we must resolve two questions to determine if §922(g)(8) violates the Second Amendment: (1) Does §922(g)(8) target conduct protected by the Second Amendment’s plain text; and (2) does the Government establish that §922(g)(8) is consistent with the Nation’s historical tradition of firearm regulation? III Section 922(g)(8) violates the Second Amendment. First, it targets conduct at the core of the Second Amendment—possessing firearms. Second, the Government failed to produce any evidence that §922(g)(8) is consistent with the Nation’s historical tradition of firearm regulation. To the contrary, the founding generation addressed the same societal problem as §922(g)(8) through the “materially different means” of surety laws. Id. , at 26. A It is undisputed that §922(g)(8) targets conduct encompassed by the Second Amendment’s plain text. After all, the statute bans a person subject to a restraining order from possessing or using virtually any firearm or ammunition. §922(g) (prohibiting covered individuals from “possess[ing]” or “receiv[ing] any firearm or ammunition which has been shipped or transported in interstate or foreign commerce”). A covered individual cannot even possess a firearm in his home for self-defense, “the central component of the [ Second Amendment] right itself.” Heller , 554 U. S., at 599 (emphasis deleted). There is no doubt that §922(g)(8) is irreconcilable with the Second Amendment’s text. Id. , at 628–629. It is also undisputed that the Second Amendment applies to Rahimi. By its terms, the Second Amendment extends to “ ‘the people,’ ” and that “term unambiguously refers to all members of the political community, not an unspecified subset.” Id. , at 580. The Second Amendment thus recognizes a right “guaranteed to ‘all Americans.’ ” Bruen , 597 U. S., at 70 (quoting Heller , 554 U. S., at 581). Since Rahimi is a member of the political community, he falls within the Second Amendment’s guarantee. B The Government fails to carry its burden of proving that §922(g)(8) is “consistent with the Nation’s historical tradition of firearm regulation.” 597 U. S., at 24. Despite canvassing laws before, during, and after our Nation’s founding, the Government does not identify even a single regulation with an analogous burden and justification.[ 2 ] The Government’s failure is unsurprising given that §922(g)(8) addresses a societal problem—the risk of interpersonal violence—“that has persisted since the 18th century,” yet was addressed “through [the] materially different means” of surety laws. Id ., at 26. Surety laws were, in a nutshell, a fine on certain behavior. If a person threatened someone in his community, he was given the choice to either keep the peace or forfeit a sum of money. Surety laws thus shared the same justification as §922(g)(8), but they imposed a far less onerous burden. The Government has not shown that §922(g)(8)’s more severe approach is consistent with our historical tradition of firearm regulation. 1 The Government does not offer a single historical regulation that is relevantly similar to §922(g)(8). As the Court has explained, the “central considerations” when comparing modern and historical regulations are whether the regulations “impose a comparable burden” that is “comparably justified.” Id ., at 29. The Government offers only two categories of evidence that are even within the ballpark of §922(g)(8)’s burden and justification: English laws disarming persons “dangerous” to the peace of the kingdom, and commentary discussing peaceable citizens bearing arms. Neither category ultimately does the job. i The Government points to various English laws from the late 1600s and early 1700s to argue that there is a tradition of restricting the rights of “dangerous” persons. For example, the Militia Act of 1662 authorized local officials to disarm individuals judged “dangerous to the Peace of the Kingdome.” 14 Car. 2 c. 3, §13. And, in the early 1700s, the Crown authorized lords and justices of the peace to “cause search to be made for arms in the possession of any persons whom they judge dangerous, and seize such arms according to law.” Calendar of State Papers Domestic: William III, 1700–1702, p. 234 (E. Bateson ed. 1937) (Calendar William III). At first glance, these laws targeting “dangerous” persons might appear relevant. After all, if the Second Amendment right was historically understood to allow an official to disarm anyone he deemed “dangerous,” it may follow that modern Congresses can do the same. Yet, historical context compels the opposite conclusion. The Second Amendment stems from English resistance against “dangerous” person laws. The sweeping disarmament authority wielded by English officials during the 1600s, including the Militia Act of 1662, prompted the English to enshrine an individual right to keep and bear arms. “[T]he Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents.” Heller , 554 U. S., at 592. Englishmen, as a result, grew “to be extremely wary of concentrated military forces run by the state and to be jealous of their arms.” Id. , at 593. Following the Glorious Revolution, they “obtained an assurance . . . in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed.” Ibid. The English Bill of Rights “has long been understood to be the predecessor to our Second Amendment.” Ibid. In fact, our Founders expanded on it and made the Second Amendment even more protective of individual liberty. The English Bill of Rights assured Protestants “Arms for their Defence,” but only where “suitable to their Conditions and as allowed by Law.” 1 Wm. & Mary, ch. 2, (1688), in 6 Statutes of the Realm 143. The Second Amendment, however, contains no such qualifiers and protects the right of “the people” generally. In short, laws targeting “dangerous” persons led to the Second Amendment. It would be passing strange to permit the Government to resurrect those selfsame “dangerous” person laws to chip away at that Amendment’s guarantee. Even on their own terms, laws targeting “dangerous” persons cannot support §922(g)(8). Those laws were driven by a justification distinct from that of §922(g)(8)—quashing treason and rebellion. The Stuart Kings’ reign was marked by religious and political conflict, which at that time were often one and the same. The Parliament of the late 1600s “re-established an intolerant episcopalian church” through legislation targeting other sects, including “[a] fierce penal code” to keep those other sects out of local government and “to criminalize nonconformist worship.” Oxford Handbook of the English Revolution 212 (M. Braddick ed. 2015) (Oxford Handbook); see G. Clark, The Later Stuarts 1660–1714, p. 22 (2d ed. 1955). These laws were driven in large part by a desire to suppress rebellion. “Nonconformist ministers were thought to preach resistance to divinely ordained monarchs.” Oxford Handbook 212; see Calendar of State Papers Domestic: Charles II, 1661–1662, p. 161 (M. Green ed. 1861) (Calendar Charles II) (“[P]reachers go about from county to county, and blow the flames of rebellion”). Various nonconformist insurrections gave credibility to these fears. See, e.g., Clark, The Later Stuarts, at 22; Privy Council to Lord Newport (Mar. 4, 1661), in Transactions of the Shropshire Archaeological and Natural History Society, Pt. 2, 3d Ser., Vol. 4, p. 161 (1904). It is in this turbulent context that the English kings permitted the disarming of “dangerous persons.” English lords feared that nonconformists— i . e ., people with “ ‘wicked and Rebellious Principles’ ”—had “ ‘furnished themselves with quantities of Arms, and Ammunition’ ” “ ‘to put in Execution their Trayterus designs.’ ” Privy Council to Lord Newport (Jan. 8, 1660), in id., at 156; see Calendar Charles II 541 (“The fanatics . . . are high and insolent, and threaten all loyal people; they will soon be in arms”). In response, the Crown took measures to root out suspected rebels, which included “disarm[ing] all factious and seditious spirits.” Id ., at 538 (Nov. 1, 1662). For example, following “turbulency and difficulties” arising from the Conventicles Act of 1670, which forbade religious nonconformists from assembling, the lord mayor of London pressed that “a special warrant or commission [was] necessary” empowering commissioners to “resist, fight, kill, and execute such rebels.” Calendar of State Papers, Domestic Series, 1670, p. 236 (May 25, 1670) (M. Green ed. 1895) (emphasis deleted). King Charles II ordered the lord mayor “to make strict search in the city and precincts for dangerous and disaffected persons, seize and secure them and their arms, and detain them in custody till our further pleasure.” Id. , at 237 (May 26, 1670). History repeated itself a few decades later. In 1701, King William III declared that “great quantities of arms, and other provisions of war” had been discovered in the hands of “papists and other disaffected persons, who disown [the] government,” and that such persons had begun to assemble “in great numbers . . . in the cities of London and Westminster.” Calendar William III 233. He ordered the lord mayor of London and the justices of the peace to “secur[e] the government” by disarming “any persons whom they judge[d] dangerous,” including “any papist, or reputed papist.” Id. , at 233–234 (emphasis deleted). Similar disarmaments targeting “Papists and Non-jurors dangerous to the peace of the kingdom” continued into the 1700s. Privy Council to the Earl of Carlisle (July 30, 1714), in Historical Manuscripts Comm’n, Manuscripts of the Earl of Westmoreland et al. 10th Report, Appx., Pt. 4, p. 343 (1885). As before, disarmament was designed to stifle “wicked conspirac[ies],” such as “raising a Rebellion in this Kingdom in favour of a Popish Pretender.” Lord Lonsdale to Deputy Lieutenants of Cumberland (May 20, 1722), in Historical Manuscripts Commission, Manuscripts of the Earl of Carlisle, 15th Report, Appx., Pt. 6, pp. 39–40 (1897). While the English were concerned about preventing insurrection and armed rebellion, §922(g)(8) is concerned with preventing interpersonal violence. “Dangerous” person laws thus offer the Government no support. ii The Government also points to historical commentary referring to the right of “peaceable” citizens to carry arms. It principally relies on commentary surrounding two failed constitutional proposals.[ 3 ] First, at the Massachusetts convention, Samuel Adams unsuccessfully proposed that the Bill of Rights deny Congress the power “to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.” 6 Documentary History of the Ratification of the Constitution 1453 (J. Kaminski & G. Saladino eds. 2000) (Documentary History). Second, Anti-Federalists at the Pennsylvania convention unsuccessfully proposed a Bill of Rights providing a “right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game.” 2 id., at 597–598, ¶7 (M. Jensen ed. 1976). The Anti-Federalists’ Bill of Rights would also state that “no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals.” Id ., at 598. These proposals carry little interpretative weight. To begin with, it is “dubious to rely on [drafting] history to interpret a text that was widely understood to codify a pre-existing right.” Heller , 554 U. S., at 603. Moreover, the States rejected the proposals. Samuel Adams withdrew his own proposal after it “alarmed both Federalists and Antifederalists.” 6 Documentary History 1453 (internal quotation marks omitted).[ 4 ] The Pennsylvania Anti-Federalists’ proposal similarly failed to gain a majority of the state convention. 2 B. Schwartz, The Bill of Rights: A Documentary History 628 (1971). The Government never explains why or how language excluded from the Constitution could operate to limit the language actually ratified. The more natural inference seems to be the opposite—the unsuccessful proposals suggest that the Second Amendment preserves a more expansive right. After all, the Founders considered, and rejected, any textual limitations in favor of an unqualified directive: “[T]he right of the people to keep and bear Arms, shall not be infringed.” In addition to the proposals, the Government throws in a hodgepodge of sources from the mid-to-late 1800s that use the phrase “peaceable” in relation to firearms. Many of the sources simply make passing reference to the notion. See, e . g ., H. R. Rep. No. 30, 39th Cong., 1st Sess., pt. 2, p. 229 (1866) (proposed circular explaining freed slaves “have shown by their peaceful and orderly conduct that they can safely be trusted with fire-arms, and they need them to kill game for subsistence”). Other sources are individual musings on firearms policy. See, e . g ., The Sale of Pistols, N. Y. Times, June 22, 1874 (advocating for “including pistols in the law against carrying concealed weapons”). Sources that do discuss disarmament generally describe nonpeaceable citizens as those who threaten the public or government. For example, the Government quotes a Union General’s order that “all loyal and peaceable citizens in Missouri will be permitted to bear arms.” Headquarters, Dept. of the Missouri, General Orders, No. 86 (Aug. 25, 1863), in The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies, Ser. 1, Vol. 22, Pt. 2, p. 475 (1888). Yet, the Government fails to mention that the Union General’s order addresses the “[l]arge numbers of men . . . leaving the broken rebel armies . . . and returning to Missouri . . . with the purpose of following a career of plunder and murder.” Id ., at 474. The order provided that “all those who voluntarily abandon[ed] the rebel cause” could return to Missouri, but only if they “surrender[ed] themselves and their arms,” “[took] the oath of allegiance and [gave] bond for their future good conduct.” Ibid. By contrast, “all loyal and peaceable citizens in Missouri w[ere] permitted to bear arms” to “protect themselves from violence” and “aid the troops.” Id ., at 475. Thus, the term “loyal and peaceable” distinguished between the former rebels residing in Missouri who were disarmed to prevent rebellion and those citizens who would help fight against them. The Government’s smorgasbord of commentary proves little of relevance, and it certainly does not establish a “historical tradition that delimits the outer bounds of the right to keep and bear arms.” Bruen , 597 U. S., at 19. iii The Government’s remaining evidence is even further afield. The Government points to an assortment of firearm regulations, covering everything from storage practices to treason and mental illness. They are all irrelevant for purposes of §922(g)(8). Again, the “central considerations” when comparing modern and historical regulations are whether they “impose a comparable burden” that is “comparably justified.” Id. , at 29 (emphasis deleted; internal quotation marks omitted). The Government’s evidence touches on one or none of these considerations. The Government’s reliance on firearm storage laws is a helpful example. These laws penalized the improper storage of firearms with forfeiture of those weapons. See, e.g., Act of Mar. 1, 1783, ch. 46, 1782 Mass. Acts pp. 119–120. First, these storage laws did not impose a “comparable burden” to that of §922(g)(8). Forfeiture still allows a person to keep their other firearms or obtain additional ones. It is in no way equivalent to §922(g)(8)’s complete prohibition on owning or possessing any firearms. In fact, the Court already reached a similar conclusion in Heller . The Court was tasked with comparing laws imposing “a small fine and forfeiture of the weapon” with the District of Columbia’s ban on keeping functional handguns at home for self-defense, which was punishable by a year in prison. 554 U. S., at 633–634. We explained that the forfeiture laws were “akin to modern penalties for minor public-safety infractions like speeding or jaywalking.” Id. , at 633. Such inconsequential punishment would not have “prevented a person in the founding era from using a gun to protect himself or his family.” Id ., at 634. Accordingly, we concluded that the burdens were not equivalent. See id ., at 633–634. That analysis applies here in full force. If a small fine and forfeiture is not equivalent to the District of Columbia’s handgun ban, it certainly falls short of §922(g)(8)’s ban on possessing any firearm. The Government resists the conclusion that forfeiture is less burdensome than a possession ban, arguing that “[t]he burdens imposed by bans on keeping, bearing, and obtaining arms are all comparable.” Reply Brief 10. But, there is surely a distinction between having no Second Amendment rights and having some Second Amendment rights. If self-defense is “the central component of the [ Second Amendment] right,” then common sense dictates that it matters whether you can defend yourself with a firearm anywhere, only at home, or nowhere. Heller , 554 U. S., at 599 (emphasis deleted). And, the Government’s suggestion ignores that we have repeatedly drawn careful distinctions between various laws’ burdens. See, e.g. , id. , at 632 (explaining that laws that “did not clearly prohibit loaded weapons . . . do not remotely burden the right of self-defense as much as an absolute ban on handguns”); see also Bruen , 597 U. S., at 48. Our careful parsing of regulatory burdens makes sense given that the Second Amendment codifies a right with a “historically fixed meaning.” Id ., at 28. Accordingly, history is our reference point and anchor. If we stray too far from it by eliding material differences between historical and modern laws, we “risk endorsing outliers that our ancestors would never have accepted.” Id ., at 30 (internal quotation marks and alteration omitted). Second, the Government offers no “comparable justification” between laws punishing firearm storage practices and §922(g)(8). It posits that both laws punish persons whose “conduct suggested that he would not use [firearms] responsibly.” Brief for United States 24. The Government, however, does not even attempt to ground that justification in historical evidence. See infra , at 28–29. The Government’s proposed justification is also far too general. Nearly all firearm regulations can be cast as preventing “irresponsible” or “unfit” persons from accessing firearms. In addition, to argue that a law limiting access to firearms is justified by the fact that the regulated groups should not have access to firearms is a logical merry-go-round. As the Court has made clear, such overly broad judgments cannot suffice. In Bruen , New York claimed it could effectively ban public carry because “the island of Manhattan [is] a ‘sensitive place.’ ” 597 U. S., at 31. New York defined a “sensitive place” as “all places where people typically congregate and where law-enforcement and other public-safety professionals are presumptively available.” Id. , at 30–31 (internal quotation marks omitted). The Court rejected that definition as “far too broa[d]” as it “would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense.” Id ., at 31. Likewise, calling a modern and historical law comparably justified because they both prevent unfit persons from accessing firearms would render our comparable-justification inquiry toothless.[ 5 ] In sum, the Government has not identified any historical regulation that is relevantly similar to §922(g)(8). 2 This dearth of evidence is unsurprising because the Founders responded to the societal problem of interpersonal violence through a less burdensome regime: surety laws. Tracing back to early English history, surety laws were a preventative mechanism for ensuring an individual’s future peaceable conduct. See D. Feldman, The King’s Peace, the Royal Prerogative and Public Order, 47 Cambridge L. J. 101, 101–102 (1988); M. Dalton, The Countrey Justice 140–144 (1619). If someone received a surety demand, he was required to go to a court or judicial officer with one or more members of the community— i . e ., sureties—and comply with certain conditions. 4 W. Blackstone, Commentaries on the Laws of England 249–250 (1769) (Blackstone). Specifically, the person providing sureties was required to “keep the peace: either generally . . . or . . . with regard to the person who crave[d] the security” until a set date. Id ., at 250. If he kept the peace, the surety obligation dissolved on that predetermined date. See ibid . If, however, he breached the peace before that date, he and his sureties would owe a set sum of money. See id ., at 249–250. Evidence suggests that sureties were readily available. Even children, who “[we]re incapable of engaging themselves to answer any debt,” could still find “security by their friends.” Id ., at 251. There is little question that surety laws applied to the threat of future interpersonal violence. “[W]herever any private man [had] just cause to fear, that another w[ould] burn his house, or do him a corporal injury, by killing, imprisoning, or beating him . . . he [could] demand surety of the peace against such person.” Id ., at 252; see also J. Backus, The Justice of the Peace 25 (1816) (providing for sureties when a person “stands in fear of his life, or of some harm to be done to his person or his estate” (emphasis deleted)). Surety demands were also expressly available to prevent domestic violence. Surety could be sought by “a wife against her husband who threatens to kill her or beat her outrageously, or, if she have notorious cause to fear he will do either.” Id ., at 24; see 1 W. Hawkins, Pleas of the Crown 253 (6th ed. 1777) (“[I]t is certain, that a wife may demand [a surety] against her husband threatening to beat her outrageously, and that a husband also may have it against his wife”). The right to demand sureties in cases of potential domestic violence was recognized not only by treatises, but also the founding-era courts. Records from before and after the Second Amendment’s ratification reflect that spouses successfully demanded sureties when they feared future domestic violence. See, e.g. , Records of the Courts of Quarter Sessions and Common Pleas of Bucks County, Pennsylvania, 1684–1700, pp. 80–81 (1943) (detailing surety demanded upon allegations that a husband was “abusive to [his wife] that she was afraid of her Life & of her Childrns lifes”); see also Heyn’s Case , 2 Ves. & Bea. 182, 35 Eng. Rep. 288 (Ch. 1813) (1822) (granting wife’s request to order her husband who committed “various acts of ill usage and threats” to “find sufficient sureties”); Anonymous , 1 S. C. Eq. 113 (1785) (order requiring husband to “enter into recognizance . . . with two sureties . . . for keeping the peace towards the complainant (his wife)”). 3 Although surety laws shared a common justification with §922(g)(8), surety laws imposed a materially different burden. Critically, a surety demand did not alter an individual’s right to keep and bear arms. After providing sureties, a person kept possession of all his firearms; could purchase additional firearms; and could carry firearms in public and private. Even if he breached the peace, the only penalty was that he and his sureties had to pay a sum of money. 4 Blackstone 250. To disarm him, the Government would have to take some other action, such as imprisoning him for a crime. See Feldman, 47 Cambridge L. J., at 101. By contrast, §922(g)(8) strips an individual of his Second Amendment right. The statute’s breadth cannot be overstated. For one, §922(g) criminalizes nearly all conduct related to covered firearms and ammunition. Most fundamentally, possession is prohibited, except in the rarest of circumstances. See, e.g., United States v. Rozier , 598 F.3d 768, 771 (CA11 2010) ( per curiam ) (concluding that it was “irrelevant” whether defendant “possessed the handgun for purposes of self-defense (in his home)”); United States v. Gant , 691 F.2d 1159, 1162 (CA5 1982) (affirming conviction of a business owner under §922(g) predecessor statute for briefly possessing a firearm to ward off suspected robbers). Courts of Appeals have understood “possession” broadly, upholding convictions where a person “picked up . . . three firearms for a few seconds to inspect” each, United States v. Matthews , 520 F.3d 806, 807 (CA7 2008), or “made direct contact with the firearm by sitting on it,” United States v. Johnson , 46 F. 4th 1183, 1189 (CA10 2022). They have also construed §922(g) to bar “constructive possession” of a firearm, including, for example, ammunition found in a jointly occupied home. See, e.g., United States v. Stepp , 89 F. 4th 826, 832–835 (CA10 2023). Moreover, §922(g) captures virtually all commercially available firearms and ammunition. It prohibits possessing a firearm “in or affecting commerce” and “receiv[ing] any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” §922(g). As courts have interpreted that nexus, if a firearm or ammunition has at any point crossed interstate lines, it is regulated by §922(g). See Scarborough v. United States , 431 U.S. 563 , 566–567 (1977) (holding §922(g)’s predecessor statute covered firearm that “had previously traveled in interstate commerce”); United States v. Lemons , 302 F.3d 769 , 772 (CA7 2002) (affirming conviction under §922(g) for possessing firearm that “crossed into Wisconsin after its manufacture at some indeterminate moment in time—possibly years before it was discovered in [the defendant’s] possession”).[ 6 ] In fact, the statute goes even further by regulating not only ammunition but also all constituent parts of ammunition—many of which are parts with no dangerous function on their own. See 18 U. S. C. §921(a)(17)(A). These sweeping prohibitions are criminally enforced. To violate the statute is a felony, punishable by up to 15 years. §924(a)(8). That felony conviction, in turn, triggers a permanent, life-long prohibition on exercising the Second Amendment right. See §922(g)(1). The combination of the Government’s sweeping view of the firearms and ammunition within its regulatory reach and the broad prohibition on any conduct regarding covered firearms and ammunition makes §922(g)(8)’s burden unmistakable: The statute revokes a citizen’s Second Amendment right while the civil restraining order is in place. And, that revocation is absolute. It makes no difference if the covered individual agrees to a no-contact order, posts a bond, or even moves across the country from his former domestic partner—the bar on exercising the Second Amendment right remains. See United States v. Wilkey , 2020 WL 4464668, *1 (D Mont., Aug. 4, 2020) (defendant agreed to Florida protection order so he could “ ‘just walk away’ ” and was prosecuted several years later for possessing firearms in Montana). That combination of burdens places §922(g)(8) in an entirely different stratum from surety laws. Surety laws preserve the Second Amendment right, whereas §922(g)(8) strips an individual of that right. While a breach of a surety demand was punishable by a fine, §922(g)(8) is punishable by a felony conviction, which in turn permanently revokes an individual’s Second Amendment right. At base, it is difficult to imagine how surety laws can be considered relevantly similar to a complete ban on firearm ownership, possession, and use. This observation is nothing new; the Court has already recognized that surety laws impose a lesser relative burden on the Second Amendment right. In Bruen , the Court explained that surety laws merely “provide financial incentives for responsible arms carrying.” 597 U. S., at 59. “[A]n accused arms-bearer ‘could go on carrying without criminal penalty’ so long as he ‘post[ed] money that would be forfeited if he breached the peace or injured others.’ ” Id. , at 56–57 (quoting Wrenn v. District of Columbia , 864 F.3d 650, 661 (CADC 2017); alteration in original). As a result, we held that surety laws were not analogous to New York’s effective ban on public carry. 597 U. S., at 55. That conclusion is damning for §922(g)(8), which burdens the Second Amendment right even more with respect to covered individuals. Surety laws demonstrate that this case should have been a “straightforward” inquiry. Id. , at 27. The Government failed to produce a single historical regulation that is relevantly similar to §922(g)(8). Rather, §922(g)(8) addresses a societal problem—the risk of interpersonal violence—“that has persisted since the 18th century,” yet was addressed “through [the] materially different means” of surety laws. Id. , at 26. C The Court has two rejoinders, surety and affray laws. Neither is a compelling historical analogue. As I have explained, surety laws did not impose a burden comparable to §922(g)(8). And, affray laws had a dissimilar burden and justification. The Court does not reckon with these vital differences, asserting that the disagreement is whether surety and affray laws must be an exact copy of §922(g)(8). Ante , at 16. But, the historical evidence shows that those laws are worlds—not degrees—apart from §922(g)(8). For this reason, the Court’s argument requires combining aspects of surety and affray laws to justify §922(g)(8). This piecemeal approach is not what the Second Amendment or our precedents countenance. 1 Despite the foregoing evidence, the Court insists that surety laws in fact support §922(g)(8). To make its case, the Court studiously avoids discussing the full extent of §922(g)(8)’s burden as compared to surety laws. The most the Court does is attack Bruen ’s conclusion that surety laws were less burdensome than a public carry ban. The Court reasons that Bruen dealt with a “broad prohibitory regime” while §922(g)(8) applies to only a subset of citizens. Ante, at 15–16. Yet, that was only one way in which Bruen distinguished a public carry ban from surety laws’ burden. True, Bruen noted that, unlike the public carry ban, surety laws did not restrict the general citizenry. But, Bruen also plainly held that surety laws did not “constitut[e] a ‘severe’ restraint on public carry, let alone a restriction tantamount to a ban.” 597 U. S., at 59. In fact, that conclusion is repeated throughout the opinion. Id ., at 55–59 (surety laws “were not bans on public carry”; “surety laws did not prohibit public carry”; surety laws “were not viewed as substantial restrictions on public carry”; and “surety statutes did not directly restrict public carry”). Bruen ’s conclusion is inescapable and correct. Because surety laws are not equivalent to an effective ban on public carry, they do not impose a burden equivalent to a complete ban on carrying and possessing firearms. Next, the Court relies on affray laws prohibiting “riding or going armed, with dangerous or unusual weapons, [to] terrif[y] the good people of the land.” 4 Blackstone 149 (emphasis deleted). These laws do not justify §922(g)(8) either. As the Court concedes, why and how a historical regulation burdened the right of armed self-defense are central considerations. Ante , at 7. Affray laws are not a fit on either basis. First, affray laws had a distinct justification from §922(g)(8) because they regulated only certain public conduct that injured the entire community. An affray was a “common Nusanc[e],” 1 Hawkins, Pleas of the Crown, at 135, defined as “the fighting of two or more persons in some public place, to the terror of his majesty’s subjects,” 4 Blackstone 145. Even though an affray generally required “actual violence,” certain other conduct could suffice. 1 R. Burn, The Justice of the Peace, and Parish Officer 13 (2d ed. 1756). As relevant here, an affray included arming oneself “with dangerous and unusual weapons, in such a manner as [to] naturally cause a terror to the people”— i . e ., “going armed.” Ibid. Many postfounding going armed laws had a self-defense exception: A person could “go armed with a[n] . . . offensive and dangerous weapon” so long as he had “reasonable cause to fear an assault or other injury.” Mass. Rev. Stat., ch. 134, §16 (1836); see also 1838 Terr. of Wis. Stat. §16, p. 381; 1851 Terr. of Minn. Rev. Stat., ch. 112, §18. Affrays were defined by their public nature and effect. An affray could occur only in “some public place,” and captured only conduct affecting the broader public. 4 Blackstone 145. To that end, going armed laws did not prohibit carrying firearms at home or even public carry generally. See Bruen , 597 U. S., at 47–50. Instead, they targeted only public carry that was “accompanied with such circumstances as are apt to terrify the people.” 1 Burn, Justice of the Peace, at 13; see Bruen , 597 U. S., at 50 (explaining that going armed laws “prohibit bearing arms in a way that spreads ‘fear’ or ‘terror’ among the people”). Affrays were intentionally distinguished from assaults and private interpersonal violence on that same basis. See Cash v. State , 2 Tenn. 198, 199 (1813) (“It is because the violence is committed in a public place, and to the terror of the people, that the crime is called an affray, instead of assault and battery”); Nottingham v. State , 227 Md. App. 592, 602, 135 A.3d 541, 547 (Md. 2016) (“[U]nlike assault and battery,” affray is “not a crime against the person; rather, affray is a crime against the public” (internal quotation marks omitted)). As treatises shortly before the founding explain, “there may be an Assault which will not amount to an Affray; as where it happens in a private Place, out of the hearing or seeing of any, except the Parties concerned; in which Case it cannot be said to be to the Terror of the People.” 1 Hawkins , Pleas of the Crown, at 134; see 1 Burn, Justice of the Peace, at 13. Affrays thus did not cover the very conduct §922(g)(8) seeks to prevent—interpersonal violence in the home. Second, affray laws did not impose a burden analogous to §922(g)(8). They regulated a niche subset of Second Amendment-protected activity. As explained, affray laws prohibited only carrying certain weapons (“dangerous and unusual”) in a particular manner (“terrifying the good people of the land” without a need for self-defense) and in particular places (in public). Meanwhile, §922(g)(8) prevents a covered person from carrying any firearm or ammunition, in any manner, in any place, at any time, and for any reason. Section 922(g)(8) thus bans all Second Amendment-protected activity. Indeed, this Court has already concluded that affray laws do not impose a burden “analogous to the burden created by” an effective ban on public carry. Bruen , 597 U. S., at 50. Surely, then, a law that imposes a public and private ban on a covered individual cannot have an analogous burden either. The Court counters that since affray laws “provided for imprisonment,” they imposed a lesser burden than §922(g)(8)’s disarmament. Ante , at 14. But, that argument serves only to highlight another fundamental difference: Affray laws were criminal statutes that penalized past behavior, whereas §922(g)(8) is triggered by a civil restraining order that seeks to prevent future behavior. Accordingly, an affray’s burden was vastly harder to impose. To imprison a person, a State had to prove that he committed the crime of affray beyond a reasonable doubt. The Constitution provided a bevy of protections during that process—including a right to a jury trial, counsel, and protections against double jeopardy. See Amdts. 5, 6. The imposition of §922(g)(8)’s burden, however, has far fewer hurdles to clear. There is no requirement that the accused has actually committed a crime; instead, he need only be prohibited from threatening or using force, or pose a “credible threat” to an “intimate partner or child.” §922(g)(8)(C). Section 922(g)(8) thus revokes a person’s Second Amendment right based on the suspicion that he may commit a crime in the future. In addition, the only process required before that revocation is a hearing on the underlying court order. §922(g)(8)(A). During that civil hearing—which is not even about §922(g)(8)—a person has fewer constitutional protections compared to a criminal prosecution for affray. Gone are the Sixth Amendment’s panoply of rights, including the rights to confront witnesses and have assistance of counsel, as well as the Fifth Amendment’s protection against double jeopardy. See Turner v. Rogers , 564 U.S. 431 , 441 (2011) (“[T]he Sixth Amendment does not govern civil cases”); Hudson v. United States , 522 U.S. 93 , 99 (1997) (“The [Double Jeopardy] Clause protects only against the imposition of multiple criminal punishments for the same offense”). Civil proceedings also do not require proof beyond a reasonable doubt, and some States even set aside the rules of evidence, allowing parties to rely on hearsay. See, e.g., Wash. Rule Evid. 1101(c)(4) (2024) (providing the state rules of evidence “need not be applied” to applications for protection orders (boldface and capitalization deleted)); Cal. Civ. Proc. Code Ann. §527.6(i) (West Supp. 2024) (judge “shall receive any testimony that is relevant” and issue order based on clear and convincing evidence). The differences between criminal prosecutions and civil hearings are numerous and consequential. Affray laws are wide of the mark. While the Second Amendment does not demand a historical twin, it requires something closer than affray laws, which expressly carve out the very conduct §922(g)(8) was designed to prevent (interpersonal violence in the home). Nor would I conclude that affray laws—criminal laws regulating a specific type of public carry—are analogous to §922(g)(8)’s use of a civil proceeding to bar all Second Amendment-protected activity. 2 The Court recognizes that surety and affray laws on their own are not enough. So it takes pieces from each to stitch together an analogue for §922(g)(8). Ante, at 13. Our precedents foreclose that approach. The question before us is whether a single historical law has both a comparable burden and justification as §922(g)(8), not whether several laws can be cobbled together to qualify. As Bruen explained, “determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations”—the historical and modern regulations—“are ‘relevantly similar.’ ” 597 U. S., at 28–29. In doing so, a court must consider whether that single historical regulation “impose[s] a comparable burden on the right of armed self-defense and whether that burden is comparably justified.” Id ., at 29 (emphasis added). The Court’s contrary approach of mixing and matching historical laws—relying on one law’s burden and another law’s justification—defeats the purpose of a historical inquiry altogether. Given that imprisonment (which involved disarmament) existed at the founding, the Government can always satisfy this newly minted comparable-burden requirement. See ante, at 14–15. That means the Government need only find a historical law with a comparable justification to validate modern disarmament regimes. As a result, historical laws fining certain behavior could justify completely disarming a person for the same behavior. That is the exact sort of “regulatory blank check” that Bruen warns against and the American people ratified the Second Amendment to preclude. 597 U. S., at 30. Neither the Court nor the Government identifies a single historical regulation with a comparable burden and justification as §922(g)(8). Because there is none, I would conclude that the statute is inconsistent with the Second Amendment. IV The Government, for its part, tries to rewrite the Second Amendment to salvage its case. It argues that the Second Amendment allows Congress to disarm anyone who is not “responsible” and “law-abiding.” Not a single Member of the Court adopts the Government’s theory. Indeed, the Court disposes of it in half a page—and for good reason. Ante, at 17. The Government’s argument lacks any basis in our precedents and would eviscerate the Second Amendment altogether. A The Government’s position is a bald attempt to refashion this Court’s doctrine. At the outset of this case, the Government contended that the Court has already held the Second Amendment protects only “responsible, law-abiding” citizens. Brief for United States 6, 11–12. The plain text of the Second Amendment quashes this argument. The Amendment recognizes “the right of the people to keep and bear Arms.” (Emphasis added.) When the Constitution refers to “the people,” the term “unambiguously refers to all members of the political community.” Heller , 554 U. S., at 580; see also id ., at 581 (beginning its analysis with the strong “presumption that the Second Amendment right . . . belongs to all Americans”). The Government’s claim that the Court already held the Second Amendment protects only “law-abiding, responsible citizens” is specious at best.[ 7 ] See ante , at 17. At argument, the Government invented yet another position. It explained that when it used the term “responsible” in its briefs, it really meant “not dangerous.” See Tr. of Oral Arg. 10–11. Thus, it posited that the Second Amendment protects only law-abiding and non-dangerous citizens. No matter how many adjectives the Government swaps out, the fact remains that the Court has never adopted anything akin to the Government’s test. In reality, the “law-abiding, dangerous citizen” test is the Government’s own creation, designed to justify every one of its existing regulations. It has no doctrinal or constitutional mooring. The Government finally tries to cram its dangerousness test into our precedents. It argues that §922(g)(8) and its proffered historical laws have a shared justification of disarming dangerous citizens. The Government, however, does not draw that conclusion by examining the historical justification for each law cited. Instead, the Government simply looks—from a modern vantage point—at the mix of laws and manufactures a possible connection between them all. Yet, our task is to “assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.” Bruen , 597 U. S., at 26 (emphasis added). To do so, we must look at the historical law’s justification as articulated during the relevant time period—not at modern post-hoc speculations. See, e.g ., id ., at 41–42, 48–49; Heller , 554 U. S., at 631–632. As I have explained, a historically based study of the evidence reveals that the Government’s position is untenable. Supra , at 7–13. As it does today, the Court should continue to rebuff the Government’s attempts to rewrite the Second Amendment and the Court’s precedents interpreting it. B The Government’s “law-abiding, dangerous citizen” theory is also antithetical to our constitutional structure. At bottom, its test stems from the idea that the Second Amendment points to general principles, not a historically grounded right. And, it asserts that one of those general principles is that Congress can disarm anyone it deems “dangerous, irresponsible, or otherwise unfit to possess arms.” Brief for United States 7. This approach is wrong as a matter of constitutional interpretation, and it undermines the very purpose and function of the Second Amendment. The Second Amendment recognizes a pre-existing right and that right was “enshrined with the scope” it was “understood to have when the people adopted [the Amendment].” Heller , 554 U. S., at 634–635. Only a subsequent constitutional amendment can alter the Second Amendment’s terms, “whether or not future legislatures or . . . even future judges think [its original] scope [is] too broad.” Id., at 635. Yet, the Government’s “law-abiding, dangerous citizen” test—and indeed any similar, principle-based approach—would hollow out the Second Amendment of any substance. Congress could impose any firearm regulation so long as it targets “unfit” persons. And, of course, Congress would also dictate what “unfit” means and who qualifies. See Tr. of Oral Arg. 7, 51. The historical understanding of the Second Amendment right would be irrelevant. In fact, the Government posits that Congress could enact a law that the Founders explicitly rejected. See id., at 18 (agreeing that modern judgment would override “[f]ounding-[e]ra applications”). At base, whether a person could keep, bear, or even possess firearms would be Congress’s policy choice under the Government’s test. That would be the direct inverse of the Founders’ and ratifying public’s intent. Instead of a substantive right guaranteed to every individual against Congress, we would have a right controlled by Congress. “A constitutional guarantee subject to future judges’ [or Congresses’] assessments of its usefulness is no constitutional guarantee at all.” Heller , 554 U. S., at 634. The Second Amendment is “the very product of an interest balancing by the people.” Id ., at 635. It is this policy judgment—not that of modern and future Congresses—“that demands our unqualified deference.” Bruen , 597 U. S., at 26. The Government’s own evidence exemplifies the dangers of approaches based on generalized principles. Before the Court of Appeals, the Government pointed to colonial statutes “disarming classes of people deemed to be threats, including . . . slaves, and native Americans.” Supp. Brief for United States in No. 21–11001 (CA5), p. 33. It argued that since early legislatures disarmed groups considered to be “threats,” a modern Congress has the same authority. Ibid. The problem with such a view should be obvious. Far from an exemplar of Congress’s authority, the discriminatory regimes the Government relied upon are cautionary tales. They warn that when majoritarian interests alone dictate who is “dangerous,” and thus can be disarmed, disfavored groups become easy prey. One of many such examples was the treatment of freed blacks following the Civil War. “[M]any of the over 180,000 African-Americans who served in the Union Army returned to the States of the old Confederacy, where systematic efforts were made to disarm them and other blacks.” McDonald v. Chicago , 561 U.S. 742 , 771 (2010). Some “States formally prohibited African- Americans from possessing firearms.” Ibid. And, “[t]hroughout the South, armed parties . . . forcibly took firearms from newly freed slaves.” Id. , at 772. “In one town, the marshal took all arms from returned colored soldiers, and was very prompt in shooting the blacks whenever an opportunity occurred.” Ibid . (alterations and internal quotation marks omitted). A constitutional amendment was ultimately “necessary to provide full protection for the rights of blacks.” Id. , at 775. The Government peddles a modern version of the governmental authority that led to those historical evils. Its theory would allow federal majoritarian interests to determine who can and cannot exercise their constitutional rights. While Congress cannot revive disarmament laws based on race, one can easily imagine a world where political minorities or those with disfavored cultural views are deemed the next “dangers” to society. Thankfully, the Constitution prohibits such laws. The “very enumeration of the [ Second Amendment] right takes out of the hands of government . . . the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Heller , 544 U. S., at 634. The Court rightly rejects the Government’s approach by concluding that any modern regulation must be justified by specific historical regulations. See ante , at 10–15. But, the Court should remain wary of any theory in the future that would exchange the Second Amendment’s boundary line—“the right of the people to keep and bear Arms, shall not be infringed”—for vague (and dubious) principles with contours defined by whoever happens to be in power. *  *  * This case is not about whether States can disarm people who threaten others. States have a ready mechanism for disarming anyone who uses a firearm to threaten physical violence: criminal prosecution. Most States, including Texas, classify aggravated assault as a felony, punishable by up to 20 years’ imprisonment. See Tex. Penal Code Ann. §§22.02(b), 12.33 (West 2019 and Supp. 2023). Assuming C. M.’s allegations could be proved, Texas could have convicted and imprisoned Rahimi for every one of his alleged acts. Thus, the question before us is not whether Rahimi and others like him can be disarmed consistent with the Second Amendment. Instead, the question is whether the Government can strip the Second Amendment right of anyone subject to a protective order—even if he has never been accused or convicted of a crime. It cannot. The Court and Government do not point to a single historical law revoking a citizen’s Second Amendment right based on possible interpersonal violence. The Government has not borne its burden to prove that §922(g)(8) is consistent with the Second Amendment’s text and historical understanding. The Framers and ratifying public understood “that the right to keep and bear arms was essential to the preservation of liberty.” McDonald , 561 U. S., at 858 (Thomas, J., concurring in part and concurring in judgment). Yet, in the interest of ensuring the Government can regulate one subset of society, today’s decision puts at risk the Second Amendment rights of many more. I respectfully dissent. Notes 1 Rahimi does not ask the Court to consider, and I do not address, whether §922(g)(8) satisfies the Due Process Clause. 2 I agree with the majority that we need not address the “ ‘ongoing scholarly debate on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868 when defining its scope (as well as the scope of the right against the Federal Government).’ ” Ante, at 8, n. 1 (quoting New York State Rifle & Pistol Assn., Inc. v. Bruen , 597 U.S. 1, 37 (2022)). 3 The Government also cites an amendment to the Massachusetts Constitution providing that “the people have a right to keep and to bear Arms for their Own and the Common defence.” The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780, p. 624 (O. Handlin & M. Handlin eds. 1966). The Government emphasizes that the amendment’s proponents believed they “Ought Never to be deprived” of their arms, so long as they “Continue[d] honest and Lawfull Subjects of Government.” Ibid. Even if the amendment contemplated disarming dishonest and unlawful subjects, the Government makes no effort to define those terms or explain why they necessarily include the individuals covered by §922(g)(8). In any event, evidence concerning what proponents behind an amendment to a single state constitution believed is too paltry to define the Second Amendment right. See Bruen , 597 U. S., at 46. 4 When Anti-Federalists renewed Samuel Adams’ proposal, not only did the proposal fail, but Adams himself voted against it. 6 Documentary History 1453. 5 The Government’s other analogies suffer from the same flaws as the firearm storage laws. It cites laws restricting firearm sales to and public carry by various groups such as minors and intoxicated persons; laws confiscating firearms from rioters; and laws disarming insurrectionists and rebels. Brief for United States 22–27. These laws target different groups of citizens, for different reasons, and through different, less onerous burdens than §922(g)(8). See Bruen , 597 U. S., at 70 (explaining that regulations “limit[ing] the intent for which one could carry arms, the manner by which one carried arms, or the exceptional circumstances under which one could not carry arms” do not justify “broadly prohibit[ing] the public carry of commonly used firearms for personal defense”). None establishes that the particular regulation at issue here would have been within the bounds of the pre-existing Second Amendment right. 6 The majority correctly declines to consider Rahimi’s Commerce Clause challenge because he did not raise it below. See Cutter v. Wilkinson , 544 U.S. 709 , 718, n. 7 (2005) (“[W]e are a court of review, not of first view”). That said, I doubt that §922(g)(8) is a proper exercise of Congress’s power under the Commerce Clause. See United States v. Lopez , 514 U.S. 549 , 585 (1995) (Thomas, J., concurring). 7 The only conceivably relevant language in our precedents is the passing reference in Heller to laws banning felons and others from possessing firearms. See 554 U. S., at 626–627, and n. 26. That discussion is dicta. As for Bruen , the Court used the phrase “ordinary, law-abiding citizens” merely to describe those who were unable to publicly carry a firearm in New York. See, e.g ., 597 U. S., at 9, 15, 31–32, 71.

Here is a summary of the Supreme Court case United States v. Rahimi: Issue: Can an individual who is subject to a domestic violence restraining order and deemed a threat to their intimate partner or child be prohibited from possessing a firearm under the Second Amendment? Holding: Yes. The Supreme Court upheld the federal statute that prohibits individuals under domestic violence restraining orders from possessing firearms if they are deemed a credible threat to their intimate partners or children. Facts: Rahimi, who was subject to a restraining order due to a violent incident with his girlfriend and the mother of his child, challenged the constitutionality of the federal statute that prohibited him from possessing a firearm. Reasoning: The Court found that similar firearm regulations existed at the time of the Second Amendment's ratification, suggesting that the regulation did not violate the right to bear arms. The Court also emphasized that Rahimi's violent conduct and the state court's findings justified the restriction.

Equal Protection

Schuette v. Coalition to Defend Affirmative Action

https://supreme.justia.com/cases/federal/us/572/291/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 12–682 _________________ BILL SCHUETTE, ATTORNEY GENERAL OF MICHI-GAN, PETITIONER v. COALITION TO DEFEND AF-FIRMATIVE ACTION, INTEGRATION AND IMMI-GRANT RIGHTS AND FIGHT FOR EQUALITYBY ANY MEANS NECESSARY (BAMN), et al. on writ of certiorari to the united states court of appeals for the sixth circuit [April 22, 2014]      Justice Kennedy announced the judgment of the Court and delivered an opinion, in which The Chief Justice and Justice Alito join.      The Court in this case must determine whether an amendment to the Constitution of the State of Michigan, approved and enacted by its voters, is invalid under the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.      In 2003 the Court reviewed the constitutionality of two admissions systems at the University of Michigan, one for its undergraduate class and one for its law school. The undergraduate admissions plan was addressed in Gratz v. Bollinger, 539 U. S. 244 . The law school admission plan was addressed in Grutter v. Bollinger, 539 U. S. 306 . Each admissions process permitted the explicit consideration of an applicant’s race. In Gratz, the Court invalidated the undergraduate plan as a violation of the Equal Protection Clause. 539 U. S., at 270. In Grutter, the Court found no constitutional flaw in the law school admission plan’s more limited use of race-based preferences. 539 U. S., at 343.      In response to the Court’s decision in Gratz, the university revised its undergraduate admissions process, but the revision still allowed limited use of race-based preferences. After a statewide debate on the question of racial preferences in the context of governmental decisionmaking, the voters, in 2006, adopted an amendment to the State Constitution prohibiting state and other governmental entities in Michigan from granting certain preferences, including race-based preferences, in a wide range of actions and decisions. Under the terms of the amendment, race-based preferences cannot be part of the admissions process for state universities. That particular prohibition is central to the instant case.      The ballot proposal was called Proposal 2 and, after it passed by a margin of 58 percent to 42 percent, the resulting enactment became Article I, §26, of the Michigan Constitution. As noted, the amendment is in broad terms. Section 26 states, in relevant part, as follows:      “(1) The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of      public employment, public education, or public contracting.      “(2) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.      “(3) For the purposes of this section ‘state’ includes, but is not necessarily limited to, the state itself, any city, county, any public college, university, or community college, school district, or other political subdivision or governmental instrumentality of or within the State of Michigan not included in sub-section 1.”      Section 26 was challenged in two cases. Among the plaintiffs in the suits were the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN); students; faculty; and prospective applicants to Michigan public universities. The named defendants included then-Governor Jennifer Granholm, the Board of Regents of the University of Michigan, the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University. The Michigan Attorney General was granted leave to intervene as a defendant. The United States District Court for the Eastern District of Michigan consolidated the cases.      In 2008, the District Court granted summary judgment to Michigan, thus upholding Proposal 2. BAMN v. Regents of Univ. of Mich., 539 F. Supp. 2d 924. The District Court denied a motion to reconsider the grant of summary judgment. 592 F. Supp. 2d 948. A panel of the United States Court of Appeals for the Sixth Circuit reversed the grant of summary judgment. 652 F. 3d 607 (2011). Judge Gibbons dissented from that holding. Id., at 633–646. The panel majority held that Proposal 2 had violated the principles elaborated by this Court in Washington v. Seattle School Dist. No. 1, 458 U. S. 457 (1982) , and in the cases that Seattle relied upon.      The Court of Appeals, sitting en banc, agreed with the panel decision. 701 F. 3d 466 (CA6 2012). The majority opinion determined that Seattle “mirrors the [case] before us.” Id., at 475. Seven judges dissented in a number of opinions. The Court granted certiorari. 568 U. S. ___ (2013).      Before the Court addresses the question presented, it is important to note what this case is not about. It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education. The consideration of race in admissions presents complex questions, in part addressed last Term in Fisher v. University of Texas at Austin, 570 U. S. ––– (2013). In Fisher, the Court did not disturb the principle that the consideration of race in admissions is permissible, provided that certain conditions are met. In this case, as in Fisher, that principle is not challenged. The question here concerns not the permissibility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions.      This Court has noted that some States have decided to prohibit race-conscious admissions policies. In Grutter, the Court noted: “Universities in California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law, are currently engaged in experimenting with a wide variety of alternative approaches. Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop.” 539 U. S., at 342 (citing United States v. Lopez, 514 U. S. 549, 581 (1995) (Kennedy, J., concurring) (“[T]he States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear”)). In this way, Grutter acknowledged the significance of a dialogue regarding this contested and complex policy question among and within States. There was recognition that our federal structure “permits ‘ innovation and experimentation’ ” and “enables greater citizen ‘ involvement in democratic processes.’ ” Bond v. United States, 564 U. S. –––, ––– (2011) (slip op., at 9) (quoting Gregory v. Ashcroft, 501 U. S. 452, 458 (1991) ). While this case arises in Michigan, the decision by the State’s voters reflects in part the national dialogue regarding the wisdom and practicality of race-conscious admissions policies in higher education. See, e.g., Coalition for Economic Equity v. Wilson, 122 F. 3d 692 (CA9 1997).      In Michigan, the State Constitution invests independent boards of trustees with plenary authority over public universities, including admissions policies. Mich. Const., Art. VIII, §5; see also Federated Publications, Inc. v. Board of Trustees of Mich. State Univ., 460 Mich. 75, 86–87, 594 N. W. 2d 491, 497 (1999). Although the members of the boards are elected, some evidence in the record suggests they delegated authority over admissions policy to the faculty. But whether the boards or the faculty set the specific policy, Michigan’s public universities did consider race as a factor in admissions decisions before 2006.      In holding §26 invalid in the context of student admissions at state universities, the Court of Appeals relied in primary part on Seattle, supra, which it deemed to control the case. But that determination extends Seattle’s holding in a case presenting quite different issues to reach a conclusion that is mistaken here. Before explaining this further, it is necessary to consider the relevant cases that preceded Seattle and the background against which Seattle itself arose.      Though it has not been prominent in the arguments of the parties, this Court’s decision in Reitman v. Mulkey, 387 U. S. 369 (1967) , is a proper beginning point for discussing the controlling decisions. In Mulkey, voters amended the California Constitution to prohibit any state legislative interference with an owner’s prerogative to decline to sell or rent residential property on any basis. Two different cases gave rise to Mulkey. In one a couple could not rent an apartment, and in the other a couple were evicted from their apartment. Those adverse actions were on account of race. In both cases the complaining parties were barred, on account of race, from invoking the protection of California’s statutes; and, as a result, they were unable to lease residential property. This Court concluded that the state constitutional provision was a denial of equal protection. The Court agreed with the California Supreme Court that the amendment operated to insinuate the State into the decision to discriminate by encouraging that practice. The Court noted the “immediate design and intent” of the amendment was to “establis[h] a purported constitutional right to privately discriminate.” Id., at 374 (internal quotation marks omitted and emphasis deleted). The Court agreed that the amendment “expressly authorized and constitutionalized the private right to discriminate.” Id., at 376. The effect of the state constitutional amendment was to “significantly encourage and involve the State in private racial discriminations.” Id., at 381. In a dissent joined by three other Justices, Justice Harlan disagreed with the majority’s holding. Id., at 387. The dissent reasoned that California, by the action of its voters, simply wanted the State to remain neutral in this area, so that the State was not a party to discrimination. Id., at 389. That dissenting voice did not prevail against the majority’s conclusion that the state action in question encouraged discrimination, causing real and specific injury.      The next precedent of relevance, Hunter v. Erickson, 393 U. S. 385 (1969) , is central to the arguments the respondents make in the instant case. In Hunter, the Court for the first time elaborated what the Court of Appeals here styled the “political process” doctrine. There, the Akron City Council found that the citizens of Akron consisted of “ ‘people of different race[s], . . . many of whom live in circumscribed and segregated areas, under sub-standard unhealthful, unsafe, unsanitary and overcrowded conditions, because of discrimination in the sale, lease, rental and financing of housing.’ ” Id., at 391. To address the problem, Akron enacted a fair housing ordinance to prohibit that sort of discrimination. In response, voters amended the city charter to overturn the ordinance and to require that any additional antidiscrimination housing ordinance be approved by referendum. But most other ordinances “regulating the real property market” were not subject to those threshold requirements. Id., at 390. The plaintiff, a black woman in Akron, Ohio, alleged that her real estate agent could not show her certain residences because the owners had specified they would not sell to black persons.      Central to the Court’s reasoning in Hunter was that the charter amendment was enacted in circumstances where widespread racial discrimination in the sale and rental of housing led to segregated housing, forcing many to live in “ ‘unhealthful, unsafe, unsanitary and overcrowded conditions.’ ” Id., at 391. The Court stated: “It is against this background that the referendum required by [the charter amendment] must be assessed.” Ibid. Akron attempted to characterize the charter amendment “simply as a public decision to move slowly in the delicate area of race relations” and as a means “to allow the people of Akron to participate” in the decision. Id., at 392. The Court rejected Akron’s flawed “justifications for its discrimination,”justifications that by their own terms had the effect of acknowledging the targeted nature of the charter amendment. Ibid. The Court noted, furthermore, that the charter amendment was unnecessary as a general means of public control over the city council; for the people of Akron already were empowered to overturn ordinances by referendum. Id., at 390, n. 6. The Court found that the city charter amendment, by singling out antidiscrimination ordinances, “places special burden on racial minorities within the governmental process,” thus becoming as impermissible as any other government action taken with the invidious intent to injure a racial minority. Id., at 391. Justice Harlan filed a concurrence. He argued the city charter amendment “has the clear purpose of making it more difficult for certain racial and religious minorities to achieve legislation that is in their interest.” Id., at 395. But without regard to the sentence just quoted, Hunter rests on the unremarkable principle that the State may not alter the procedures of government to target racial minorities. The facts in Hunter established that invidious discrimination would be the necessary result of the procedural restructuring. Thus, in Mulkey and Hunter, there was a demonstrated injury on the basis of race that, by reasons of state encouragement or participation, became more aggravated.      Seattle is the third case of principal relevance here. There, the school board adopted a mandatory busing program to alleviate racial isolation of minority students in local schools. Voters who opposed the school board’s busing plan passed a state initiative that barred busing to desegregate. The Court first determined that, although “white as well as Negro children benefit from” diversity, the school board’s plan “inures primarily to the benefit of the minority.” 458 U. S., at 472. The Court next found that “the practical effect” of the state initiative was to “remov[e] the authority to address a racial problem—and only a racial problem—from the existing decisionmaking body, in such a way as to burden minority interests” because advocates of busing “now must seek relief from the state legislature, or from the statewide electorate.” Id., at 474. The Court therefore found that the initiative had “explicitly us[ed] the racial nature of a decision to determine the decisionmaking process.” Id., at 470 (emphasis deleted).      Seattle is best understood as a case in which the state action in question (the bar on busing enacted by the State’s voters) had the serious risk, if not purpose, of causing specific injuries on account of race, just as had been the case in Mulkey and Hunter. Although there had been no judicial finding of de jure segregation with respect to Seattle’s school district, it appears as though school segregation in the district in the 1940’s and 1950’s may have been the partial result of school board policies that “permitted white students to transfer out of black schools while restricting the transfer of black students into white schools.” Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701 –808 (2007) (Breyer, J., dissenting). In 1977, the National Association for the Advancement of Colored People (NAACP) filed a complaint with the Office for Civil Rights, a federal agency. The NAACP alleged that the school board had maintained a system of de jure segregation. Specifically, the complaint alleged “that the Seattle School Board had created or perpetuated unlawful racial segregation through, e.g., certain school-transfer criteria, a construction program that needlessly built new schools in white areas, district line-drawing criteria, the maintenance of inferior facilities at black schools, the use of explicit racial criteria in the assignment of teachers and other staff, and a general pattern of delay in respect to the implementation of promised desegregation efforts.” Id., at 810. As part of a settlement with the Office for Civil Rights, the school board implemented the “Seattle Plan,” which used busing and mandatory reassignments between elementary schools to reduce racial imbalance and which was the subject of the state initiative at issue in Seattle. See 551 U. S., at 807–812.      As this Court held in Parents Involved, the school board’s purported remedial action would not be permissible today absent a showing of de jure segregation. Id., at 720–721. That holding prompted Justice Breyer to observe in dissent, as noted above, that one permissible reading of the record was that the school board had maintained policies to perpetuate racial segregation in the schools. In all events we must understand Seattle as Seattle understood itself, as a case in which neither the State nor the United States “challenge[d] the propriety of race-conscious student assignments for the purpose of achieving integration, even absent a finding of prior de jure segregation.” 458 U. S. at 472, n. 15. In other words the legitimacy and constitutionality of the remedy in question (busing for desegregation) was assumed, and Seattle must be understood on that basis. Ibid. Seattle involved a state initiative that “was carefully tailored to interfere only with desegregative busing.” Id., at 471. The Seattle Court, accepting the validity of the school board’s busing remedy as a predicate to its analysis of the constitutional question, found that the State’s disapproval of the school board’s busing remedy was an aggravation of the very racial injury in which the State itself was complicit.      The broad language used in Seattle, however, went well beyond the analysis needed to resolve the case. The Court there seized upon the statement in Justice Harlan’s concurrence in Hunter that the procedural change in that case had “the clear purpose of making it more difficult for certain racial and religious minorities to achieve legislation that is in their interest.” 385 U. S., at 395. That language, taken in the context of the facts in Hunter, is best read simply to describe the necessity for finding an equal protection violation where specific injuries from hostile discrimination were at issue. The Seattle Court, however, used the language from the Hunter concurrence to establish a new and far-reaching rationale. Seattle stated that where a government policy “inures primarily to the benefit of the minority” and “minorities . . . con-sider” the policy to be “ ‘in their interest,’ ” then any state action that “place[s] effective decisionmaking authority over” that policy “at a different level of government” must be reviewed under strict scrutiny. 458 U. S., at 472, 474. In essence, according to the broad reading of Seattle, any state action with a “racial focus” that makes it “more difficult for certain racial minorities than for other groups” to “achieve legislation that is in their interest” is subject to strict scrutiny. It is this reading of Seattle that the Court of Appeals found to be controlling here. And that reading must be rejected.      The broad rationale that the Court of Appeals adopted goes beyond the necessary holding and the meaning of the precedents said to support it; and in the instant case neither the formulation of the general rule just set forth nor the precedents cited to authenticate it suffice to invalidate Proposal 2. The expansive reading of Seattle has no principled limitation and raises serious questions of compatibility with the Court’s settled equal protection jurisprudence. To the extent Seattle is read to require the Court to determine and declare which political policies serve the “interest” of a group defined in racial terms, that rationale was unnecessary to the decision in Seattle; it has no support in precedent; and it raises serious constitu-tional concerns. That expansive language does not provide a proper guide for decisions and should not be deemed authoritative or controlling. The rule that the Court of Appeals elaborated and respondents seek to establish here would contradict central equal protection principles.      In cautioning against “impermissible racial stereotypes,” this Court has rejected the assumption that “members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike, share the same political interests, and will prefer the same candidates at the polls.” Shaw v. Reno, 509 U. S. 630, 647 (1993) ; see also Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 636 (1990) (Kennedy, J., dissenting) (rejecting the “demeaning notion that members of . . . defined racial groups ascribe to certain ‘minority views’ that must be different from those of other citizens”). It cannot be entertained as a serious proposition that all individuals of the same race think alike. Yet that proposition would be a necessary beginning point were the Seattle formulation to control, as the Court of Appeals held it did in this case. And if it were deemed necessary to probe how some races define their own interest in political matters, still another beginning point would be to define individuals according to race. But in a society in which those lines are becoming more blurred, the attempt to define race-based categories also raises serious questions of its own. Government action that classifies individuals on the basis of race is inherently suspect and carries the danger of perpetuating the very racial divisions the polity seeks to transcend. Cf. Ho v. San Francisco Unified School Dist., 147 F. 3d 854, 858 (CA9 1998) (school district delineating 13 racial categories for purposes of racial balancing). Were courts to embark upon this venture not only would it be undertaken with no clear legal standards or accepted sources to guide judicial decision but also it would result in, or at least impose a high risk of, inquiries and categories dependent upon demeaning stereotypes, classifications of questionable constitutionality on their own terms.      Even assuming these initial steps could be taken in a manner consistent with a sound analytic and judicial framework, the court would next be required to determine the policy realms in which certain groups—groups defined by race—have a political interest. That undertaking, again without guidance from any accepted legal standards, would risk, in turn, the creation of incentives for those who support or oppose certain policies to cast the debate in terms of racial advantage or disadvantage. Thus could racial antagonisms and conflict tend to arise in the context of judicial decisions as courts undertook to announce what particular issues of public policy should be classified as advantageous to some group defined by race. This risk is inherent in adopting the Seattle formulation.      There would be no apparent limiting standards defining what public policies should be included in what Seattle called policies that “inur[e] primarily to the benefit of the minority” and that “minorities . . . consider” to be “ ‘in their interest.’ ” 458 U. S., at 472, 474. Those who seek to represent the interests of particular racial groups could attempt to advance those aims by demanding an equal protection ruling that any number of matters be foreclosed from voter review or participation. In a nation in which governmental policies are wide ranging, those who seek to limit voter participation might be tempted, were this Court to adopt the Seattle formulation, to urge that a group they choose to define by race or racial stereotypes are advantaged or disadvantaged by any number of laws or decisions. Tax policy, housing subsidies, wage regulations, and even the naming of public schools, highways, and monuments are just a few examples of what could become a list of subjects that some organizations could insist should be beyond the power of voters to decide, or beyond the power of a legislature to decide when enacting limits on the power of local authorities or other governmental entities to address certain subjects. Racial division would be validated, not discouraged, were the Seattle formulation, and the reasoning of the Court of Appeals in this case, to remain in force.      Perhaps, when enacting policies as an exercise of democratic self-government, voters will determine that race-based preferences should be adopted. The constitutional validity of some of those choices regarding racial preferences is not at issue here. The holding in the instant case is simply that the courts may not disempower the voters from choosing which path to follow. In the realm of policy discussions the regular give-and-take of debate ought to be a context in which rancor or discord based on race are avoided, not invited. And if these factors are to be interjected, surely it ought not to be at the invitation or insistence of the courts.      One response to these concerns may be that objections to the larger consequences of the Seattle formulation need not be confronted in this case, for here race was an undoubted subject of the ballot issue. But a number of problems raised by Seattle, such as racial definitions, still apply. And this principal flaw in the ruling of the Court of Appeals does remain: Here there was no infliction of a specific injury of the kind at issue in Mulkey and Hunter and in the history of the Seattle schools. Here there is no precedent for extending these cases to restrict the right of Michigan voters to determine that race-based preferences granted by Michigan governmental entities should be ended.      It should also be noted that the judgment of the Court of Appeals in this case of necessity calls into question other long-settled rulings on similar state policies. The California Supreme Court has held that a California constitutional amendment prohibiting racial preferences in public contracting does not violate the rule set down by Seattle. Coral Constr., Inc. v. City and County of San Francisco, 50 Cal. 4th 315, 235 P. 3d 947 (2010). The Court of Appeals for the Ninth Circuit has held that the same amendment, which also barred racial preferences in public education, does not violate the Equal Protection Clause. Wilson, 122 F. 3d 692 (1997). If the Court were to affirm the essential rationale of the Court of Appeals in the instant case, those holdings would be invalidated, or at least would be put in serious question. The Court, by affirming the judgment now before it, in essence would announce a finding that the past 15 years of state public debate on this issue have been improper. And were the argument made that Coral might still stand because it involved racial preferences in public contracting while this case concerns racial preferences in university admissions, the implication would be that the constitutionality of laws forbidding racial preferences depends on the policy interest at stake, the concern that, as already explained, the voters deem it wise to avoid because of its divisive potential. The instant case presents the question involved in Coral and Wilson but not involved in Mulkey, Hunter, and Seattle. That question is not how to address or prevent injury caused on account of race but whether voters may determine whether a policy of race-based preferences should be continued.      By approving Proposal 2 and thereby adding §26 to their State Constitution, the Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power. In the federal system States “respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times.” Bond, 564 U. S., at ––– (slip op., at 9). Michigan voters used the initiative system to bypass public officials who were deemed not responsive to the concerns of a majority of the voters with respect to a policy of granting race-based preferences that raises difficult and delicate issues.      The freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power. The mandate for segregated schools, Brown v. Board of Education, 347 U. S. 483 (1954) ; a wrongful invasion of the home, Silverman v. United States, 365 U. S. 505 (1961) ; or punishing a protester whose views offend others, Texas v. Johnson, 491 U. S. 397 (1989) ; and scores of other examples teach that individual liberty has constitutional protection, and that liberty’s full extent and meaning may remain yet to be discovered and affirmed. Yet freedom does not stop with individual rights. Our constitutional system embraces, too, the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure. Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity. Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or faculties, acting at some remove from immediate public scru-tiny and control; or that these matters are so arcane that the electorate’s power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.      The respondents in this case insist that a difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsible, functioning democracy. One of those premises is that a democracy has the capacity—and the duty—to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. That process is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues. It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to use racial division and discord to their own political advantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people. These First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.      These precepts are not inconsistent with the well-established principle that when hurt or injury is inflicted on racial minorities by the encouragement or command of laws or other state action, the Constitution requires redress by the courts. Cf. Johnson v. California, 543 U. S. 499 –512 (2005) (“[S]earching judicial review . . . is necessary to guard against invidious discrimination”); Edmonson v. Leesville Concrete Co., 500 U. S. 614, 619 (1991) (“Racial discrimination” is “invidious in all contexts”). As already noted, those were the circumstances that the Court found present in Mulkey, Hunter, and Seattle. But those circumstances are not present here.      For reasons already discussed, Mulkey, Hunter, and Seattle are not precedents that stand for the conclusion that Michigan’s voters must be disempowered from acting. Those cases were ones in which the political restriction in question was designed to be used, or was likely to be used, to encourage infliction of injury by reason of race. What is at stake here is not whether injury will be inflicted but whether government can be instructed not to follow a course that entails, first, the definition of racial categories and, second, the grant of favored status to persons in some racial categories and not others. The electorate’s instruction to governmental entities not to embark upon the course of race-defined and race-based preferences was adopted, we must assume, because the voters deemed a preference system to be unwise, on account of what voters may deem its latent potential to become itself a source of the very resentments and hostilities based on race that this Nation seeks to put behind it. Whether those adverse results would follow is, and should be, the subject of debate. Voters might likewise consider, after debate and reflection, that programs designed to increase diversity—consistent with the Constitution—are a necessary part of progress to transcend the stigma of past racism.      This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters. See Sailors v. Board of Ed. of County of Kent, 387 U. S. 105, 109 (1967) (“Save and unless the state, county, or municipal government runs afoul of a federally protected right, it has vast leeway in the management of its internal affairs”). Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.      The judgment of the Court of Appeals for the Sixth Circuit is reversed. It is so ordered.      Justice Kagan took no part in the consideration or decision of this case. SUPREME COURT OF THE UNITED STATES _________________ No. 12–682 _________________ BILL SCHUETTE, ATTORNEY GENERAL OF MICHI-GAN, PETITIONER v. COALITION TO DEFEND AF-FIRMATIVE ACTION, INTEGRATION AND IMMI-GRANT RIGHTS AND FIGHT FOR EQUALITYBY ANY MEANS NECESSARY (BAMN), et al. on writ of certiorari to the united states court of appeals for the sixth circuit [April 22, 2014]      Justice Breyer, concurring in the judgment.      Michigan has amended its Constitution to forbid state universities and colleges to “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Mich. Const., Art. I, §26. We here focus on the prohibition of “grant[ing] . . . preferential treatment . . . on the basis of race . . . in . . . public education.” I agree with the plurality that the amendment is consistent with the Federal Equal Protection Clause. U. S. Const., Amdt. 14. But I believe this for different reasons.      First, we do not address the amendment insofar as it forbids the use of race-conscious admissions programs designed to remedy past exclusionary racial discrimination or the direct effects of that discrimination. Application of the amendment in that context would present different questions which may demand different answers. Rather, we here address the amendment only as it applies to, and forbids, programs that, as in Grutter v. Bollinger, 539 U. S. 306 (2003) , rest upon “one justification”: using “race in the admissions process” solely in order to “obtai[n] the educational benefits that flow from a diverse student body,” id., at 328 (internal quotation marks omitted).      Second, dissenting in Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701 (2007) , I explained why I believe race-conscious programs of this kind are constitutional, whether implemented by law schools, universities, high schools, or elementary schools. I concluded that the Constitution does not “authorize judges” either to forbid or to require the adoption of diversity-seeking race-conscious “solutions” (of the kind at issue here) to such serious problems as “how best to administer America’s schools” to help “create a society that includes all Americans.” Id., at 862.      I continue to believe that the Constitution permits, though it does not require, the use of the kind of race-conscious programs that are now barred by the Michigan Constitution. The serious educational problems that faced Americans at the time this Court decided Grutter endure. See, e.g., I. Mullis, M. Martin, P. Foy, & K. Drucker,Progress in International Reading Literacy Study, 2011 International Results in Reading 38, Exh. 1.1 (2012)(elementary-school students in numerous other countries outperform their counterparts in the United States in reading); I. Mullis, M. Martin, P. Foy, & A. Arora, Trends in International Mathematics and Science Study (TIMSS), 2011 International Results in Mathematics 40, Exh. 1.1 (2012) (same in mathematics); M. Martin, I. Mullis, P. Foy, & G. Stanco, TIMSS, 2011 International Results in Science, 38, Exh. 1.1 (2012) (same in science); Organisation of Economic Co-operation Development (OECD), Education at a Glance 2013: OECD Indicators 50 (Table A2.1a) (secondary-school graduation rate lower in the United States than in numerous other countries); McKinsey & Co., The Economic Impact of the Achievement Gap in America’s Schools 8 (Apr. 2009) (same; United States ranks 18th of 24 industrialized nations). And low educational achievement continues to be correlated with income and race. See, e.g., National Center for Education Statistics, Digest of Education Statistics, Advance Release of Selected 2013 Digest Tables (Table 104.20) (White Americans more likely to have completed high school thanAfrican-Americans or Hispanic-Americans), online at http://nces.ed.gov/programs/digest (as visited Apr. 15, 2014, and available in Clerk of Court’s case file); id., Table 219.75 (Americans in bottom quartile of income most likely to drop out of high school); id., Table 302.60 (White Americans more likely to enroll in college than African-Americans or Hispanic-Americans); id., Table 302.30 (middle- and high-income Americans more likely to enroll in college than low-income Americans).      The Constitution allows local, state, and national communities to adopt narrowly tailored race-conscious programs designed to bring about greater inclusion and diversity. But the Constitution foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates about the merits of these programs. Compare Parents Involved, 551 U. S., at 839 (Breyer, J., dissenting) (identifying studies showing the benefits of racially integrated education), with id., at 761–763 (Thomas, J., concurring) (identifying studies suggesting racially integrated schools may not confer educational benefits). In short, the “Constitution creates a democratic political system through which the people themselves must together find answers” to disagreements of this kind. Id., at 862 (Breyer, J., dissenting).      Third, cases such as Hunter v. Erickson, 393 U. S. 385 (1969) , and Washington v. Seattle School Dist. No. 1, 458 U. S. 457 (1982) , reflect an important principle, namely, that an individual’s ability to participate meaningfully in the political process should be independent of his race. Although racial minorities, like other political minorities, will not always succeed at the polls, they must have the same opportunity as others to secure through the ballot box policies that reflect their preferences. In my view, however, neither Hunter nor Seattle applies here. And the parties do not here suggest that the amendment violates the Equal Protection Clause if not under the Hunter-Seattle doctrine.      Hunter and Seattle involved efforts to manipulate the political process in a way not here at issue. Both cases involved a restructuring of the political process that changed the political level at which policies were enacted. In Hunter, decisionmaking was moved from the elected city council to the local electorate at large. 393 U. S., at 389–390. And in Seattle, decisionmaking by an elected school board was replaced with decisionmaking by the state legislature and electorate at large. 458 U. S., at 466.      This case, in contrast, does not involve a reordering of the political process; it does not in fact involve the movement of decisionmaking from one political level to another. Rather, here, Michigan law delegated broad policymaking authority to elected university boards, see Mich. Const., Art. VIII, §5, but those boards delegated admissions-related decisionmaking authority to unelected university faculty members and administrators, see, e.g., Bylaws of Univ. of Mich. Bd. of Regents §8.01; Mich. State Univ. Bylaws of Bd. of Trustees, Preamble; Mich. State Univ. Bylaws for Academic Governance §4.4.3; Wayne State Univ. Stat. §§2–34–09, 2–34–12. Although the boards unquestionably retained the power to set policy regarding race-conscious admissions, see post, at 25–29 (Sotomayor, J., dissenting), in fact faculty members and administrators set the race-conscious admissions policies in question. (It is often true that elected bodies—including, for example, school boards, city councils, and state legislatures—have the power to enact policies, but in fact delegate that power to administrators.) Although at limited times the university boards were advised of the content of their race-conscious admissions policies, see 701 F. 3d 466, 481–482 (CA6 2012), to my knowledge no board voted to accept or reject any of those policies. Thus, un-elected faculty members and administrators, not voters or their elected representatives, adopted the race-conscious admissions programs affected by Michigan’s constitutional amendment. The amendment took decisionmaking authority away from these unelected actors and placed it in the hands of the voters.      Why does this matter? For one thing, considered conceptually, the doctrine set forth in Hunter and Seattle does not easily fit this case. In those cases minorities had participated in the political process and they had won. The majority’s subsequent reordering of the political process repealed the minority’s successes and made it more difficult for the minority to succeed in the future. The majority thereby diminished the minority’s ability to participate meaningfully in the electoral process. But one cannot as easily characterize the movement of the decisionmaking mechanism at issue here—from an administrative process to an electoral process—as diminishing the minority’s ability to participate meaningfully in the political process. There is no prior electoral process in which the minority participated.      For another thing, to extend the holding of Hunter and Seattle to reach situations in which decisionmaking authority is moved from an administrative body to a political one would pose significant difficulties. The administrative process encompasses vast numbers of decisionmakers answering numerous policy questions in hosts of different fields. See Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477 , ___ (2010) (Breyer, J., dissenting). Administrative bodies modify programs in detail, and decisionmaking authority within the administrative process frequently moves around—due to amendments to statutes, new administrative rules, and evolving agency practice. It is thus particularly difficult in this context for judges to determine when a change in the locus of decisionmaking authority places a comparative structural burden on a racial minority. And to apply Hunter and Seattle to the administrative process would, by tending to hinder change, risk discouraging experimentation, interfering with efforts to see when and how race-conscious policies work.      Finally, the principle that underlies Hunter and Seattle runs up against a competing principle, discussed above. This competing principle favors decisionmaking though the democratic process. Just as this principle strongly supports the right of the people, or their elected representatives, to adopt race-conscious policies for reasons of inclusion, so must it give them the right to vote not to do so.      As I have said, my discussion here is limited to circumstances in which decisionmaking is moved from an un-elected administrative body to a politically responsive one, and in which the targeted race-conscious admissions programs consider race solely in order to obtain the educational benefits of a diverse student body. We need now decide no more than whether the Federal Constitution permits Michigan to apply its constitutional amendment in those circumstances. I would hold that it does. Therefore, I concur in the judgment of the Court. SUPREME COURT OF THE UNITED STATES _________________ No. 12–682 _________________ BILL SCHUETTE, ATTORNEY GENERAL OF MICHI-GAN, PETITIONER v. COALITION TO DEFEND AF-FIRMATIVE ACTION, INTEGRATION AND IMMI-GRANT RIGHTS AND FIGHT FOR EQUALITYBY ANY MEANS NECESSARY (BAMN), et al. on writ of certiorari to the united states court of appeals for the sixth circuit [April 22, 2014]      Justice Scalia, with whom Justice Thomas joins, concurring in the judgment.      It has come to this. Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? Needless to say (except that this case obliges us to say it), the question answers itself. “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.” Grutter v. Bollinger, 539 U. S. 306, 349 (2003) (Scalia, J., concurring in part and dissenting in part). It is precisely this understanding—the correct understanding—of the federal Equal Protection Clause that the people of the State of Michigan have adopted for their own fundamental law. By adopting it, they did not simultaneously offend it.      Even taking this Court’s sorry line of race-based-admissions cases as a given, I find the question presented only slightly less strange: Does the Equal Protection Clause forbid a State from banning a practice that the Clause barely—and only provisionally—permits? Reacting to those race-based-admissions decisions, some States—whether deterred by the prospect of costly litigation; aware that Grutter’s bell may soon toll, see 539 U. S., at 343; or simply opposed in principle to the notion of “benign” racial discrimination—have gotten out of the racial-preferences business altogether. And with our express encouragement: “Universities in California, Flor-ida, and Washington State, where racial preferences in admissions are prohibited by state law, are currently engaging in experimenting with a wide variety of alternative approaches. Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop.” Id., at 342 (emphasis added). Respondents seem to think this admonition was merely in jest.[ 1 ] The experiment, they maintain, is not only over; it never rightly began. Neither the people of the States nor their legislatures ever had the option of directing subordinate public-university officials to cease considering the race of applicants, since that would deny members of those minority groups the option of enacting a policy designed to further their interest, thus denying them the equal protection of the laws. Never mind that it is hotly disputed whether the practice of race-based admissions is ever in a racial minority’s interest. Cf. id., at 371–373 (Thomas, J., concurring in part and dissenting in part). And never mind that, were a public university to stake its defense of a race-based-admissions policy on the ground that it was designed to benefit primarily minorities (as opposed to all students, regardless of color, by enhancing diversity), we would hold the policy unconstitutional. See id., at 322–325.      But the battleground for this case is not the constitutionality of race-based admissions—at least, not quite. Rather, it is the so-called political-process doctrine, derived from this Court’s opinions in Washington v. Seattle School Dist. No. 1, 458 U. S. 457 (1982) , and Hunter v. Erickson, 393 U. S. 385 (1969) . I agree with those parts of the plurality opinion that repudiate this doctrine. But I do not agree with its reinterpretation of Seattle and Hunter, which makes them stand in part for the cloudy and doctrinally anomalous proposition that whenever state action poses “the serious risk . . . of causing specific injuries on account of race,” it denies equal protection. Ante, at 9. I would instead reaffirm that the “ordinary principles of our law [and] of our democratic heritage” require “plaintiffs alleging equal protection violations” stemming from fa-cially neutral acts to “prove intent and causation and not merely the existence of racial disparity.” Freeman v. Pitts, 503 U. S. 467, 506 (1992) (Scalia, J., concurring) (citing Washington v. Davis, 426 U. S. 229 (1976) ). I would further hold that a law directing state actors to provide equal protection is (to say the least) facially neutral, and cannot violate the Constitution. Section 26 of the Michigan Constitution (formerly Proposal 2) rightly stands. I A      The political-process doctrine has its roots in two of our cases. The first is Hunter. In 1964, the Akron City Council passed a fair-housing ordinance “ ‘assur[ing] equal opportunity to all persons to live in decent housing facilities regardless of race, color, religion, ancestry or national origin.’ ” 393 U. S., at 386. Soon after, the city’s voters passed an amendment to the Akron City Charter stating that any ordinance enacted by the council that “ ‘regulates’ ” commercial transactions in real property “ ‘on the basis of race, color, religion, national origin or ancestry’ ”—including the already enacted 1964 ordinance—“must first be approved by a majority of the electors voting on the question” at a later referendum. Id., at 387. The question was whether the charter amendment denied equal protection. Answering yes, the Court explained that “although the law on its face treats Negro and white, Jew and gentile in an identical manner, the reality is that the law’s impact falls on the minority. The majority needs no protection against discrimination.” Id., at 391. By placing a “special burden on racial minorities within the governmental processes,” the amendment “disadvantage[d]” a racial minority “by making it more difficult to enact legislation in its behalf.” Id., at 391, 393.      The reasoning in Seattle is of a piece. Resolving to “eliminate all [racial] imbalance from the Seattle public schools,” the city school board passed a mandatory busing and pupil-reassignment plan of the sort typically imposed on districts guilty of de jure segregation. 458 U. S., at 460–461. A year later, the citizens of the State of Washington passed Initiative 350, which directed (with exceptions) that “ ‘no school . . . shall directly or indirectly require any student to attend a school other than the school which is geographically nearest or next nearest the student’s place of residence . . . and which offers the course of study pursued by such student,’ ” permitting only court-ordered race-based busing. Id., at 462. The lower courts held Initiative 350 unconstitutional, and we affirmed, announcing in the prelude of our analysis—as though it were beyond debate—that the Equal Protection Clause forbade laws that “subtly distor[t] governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.” Id., at 467.      The first question in Seattle was whether the subject matter of Initiative 350 was a “ ‘racial’ issue,” triggering Hunter and its process doctrine. 458 U. S., at 471–472. It was “undoubtedly. . . true” that whites and blacks were “counted among both the supporters and the opponents of Initiative 350.” Id., at 472. It was “equally clear” that both white and black children benefitted from desegre-gated schools. Ibid. Nonetheless, we concluded that desegre-gation “inures primarily to the benefit of the minority, and is designed for that purpose.” Ibid. (emphasis added). In any event, it was “enough that minorities may consider busing for integration to be ‘legislation that is in their interest.’ ” Id., at 474 (quoting Hunter, supra, at 395 (Harlan, J., concurring)).      So we proceeded to the heart of the political-process analysis. We held Initiative 350 unconstitutional, since it removed “the authority to address a racial problem—and only a racial problem—from the existing decisionmaking body, in such a way as to burden minority interests.” Seattle, 458 U. S., at 474. Although school boards in Washington retained authority over other student-assignment issues and over most matters of educational policy generally, under Initiative 350, minorities favoring race-based busing would have to “surmount a considerably higher hurdle” than the mere petitioning of a local assembly: They “now must seek relief from the state legislature, or from the statewide electorate,” a “different level of government.” Ibid.      The relentless logic of Hunter and Seattle would point to a similar conclusion in this case. In those cases, one level of government exercised borrowed authority over an apparently “racial issue,” until a higher level of government called the loan. So too here. In those cases, we deemed the revocation an equal-protection violation regardless of whether it facially classified according to race or reflected an invidious purpose to discriminate. Here, the Court of Appeals did the same.      The plurality sees it differently. Though it, too, dis-avows the political-process-doctrine basis on which Hunter and Seattle were decided, ante, at 10–14, it does not take the next step of overruling those cases. Rather, it reinterprets them beyond recognition. Hunter, the plurality suggests, was a case in which the challenged act had “target[ed] racial minorities.” Ante, at 8. Maybe, but the Hunter Court neither found that to be so nor considered it relevant, bypassing the question of intent entirely, satisfied that its newly minted political-process theory sufficed to invalidate the charter amendment.      As for Seattle, what was really going on, according to the plurality, was that Initiative 350 had the consequence (if not the purpose) of preserving the harms effected by prior de jure segregation. Thus, “the political restriction in question was designed to be used, or was likely to be used, to encourage infliction of injury by reason of race.” Ante, at 17. That conclusion is derived not from the opinion but from recently discovered evidence that the city of Seattle had been a cause of its schools’ racial imbalance all along: “Although there had been no judicial finding of de jure segregation with respect to Seattle’s school district, it appears as though school segregation in the district in the 1940’s and 1950’s may have been the partial result of school board policies.” Ante, at 9.[ 2 ] That the district’s effort to end racial imbalance had been stymied by Initiative 350 meant that the people, by passing it, somehow had become complicit in Seattle’s equal-protection-denying status quo, whether they knew it or not. Hence, therewas in Seattle a government-furthered “infliction of a specific”—and, presumably, constitutional—“injury.” Ante, at 14.      Once again this describes what our opinion in Seattle might have been, but assuredly not what it was. The opinion assumes throughout that Seattle’s schools suffered at most from de facto segregation, see, e.g., 458 U. S., at 474, 475—that is, segregation not the “product . . . of state action but of private choices,” having no “constitutional implications,” Freeman, 503 U. S., at 495–496. Nor did it anywhere state that the current racial imbalance was the (judicially remediable) effect of prior de jure segregation. Absence of de jure segregation or the effects of de jure segregation was a necessary premise of the Seattle opinion. That is what made the issue of busing and pupil reassignment a matter of political choice rather than judicial mandate.[ 3 ] And precisely because it was a question for the political branches to decide, the manner—which is to say, the process—of its resolution implicated the Court’s new process theory. The opinion itself says this: “[I]n the absence of a constitutional violation, the desirability and efficacy of school desegregation are matters to be resolved though the political process. For present purposes, it is enough [to hold reallocation of that political decision to a higher level unconstitutional] that minorities may consider busing for integration to be legislation that is in their interest.” 458 U. S., at 474 (internal quotation marks omitted). B      Patently atextual, unadministrable, and contrary to our traditional equal-protection jurisprudence, Hunter and Seattle should be overruled.      The problems with the political-process doctrine begin with its triggering prong, which assigns to a court the task of determining whether a law that reallocates policy-making authority concerns a “racial issue.” Seattle, 458 U. S., at 473. Seattle takes a couple of dissatisfying cracks at defining this crucial term. It suggests that an issue is racial if adopting one position on the question would “at bottom inur[e] primarily to the benefit of the minority, and is designed for that purpose.” Id., at 472. It is irrelevant that, as in Hunter and Seattle, 458 U. S., at 472, both the racial minority and the racial majority benefit from the policy in question, and members of both groups favor it. Judges should instead focus their guesswork on their own juridical sense of what is primarily for the benefit of minorities. Cf. ibid. (regarding as dispositive what “our cases” suggest is beneficial to minorities). On second thought, maybe judges need only ask this question: Is it possible “that minorities may consider” the policy in question to be “in their interest”? Id., at 474. If so, you can be sure that you are dealing with a “racial issue.”[ 4 ]      No good can come of such random judicial musing. The plurality gives two convincing reasons why. For one thing, it involves judges in the dirty business of dividing the Nation “into racial blocs,” Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 603, 610 (1990) (O’Connor, J., dissenting); ante, at 11–13. That task is as difficult as it is unappealing. (Does a half-Latino, half–American Indian have Latino interests, American-Indian interests, both, half of both?[ 5 ]) What is worse, the exercise promotes the noxious fiction that, knowing only a person’s color or ethnicity, we can be sure that he has a predetermined set of policy “interests,” thus “reinforc[ing] the perception that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike, [and] share the same political interests.”[ 6 ] Shaw v. Reno, 509 U. S. 630, 647 (1993) . Whether done by a judge or a school board, such “racial stereotyping [is] at odds with equal protection mandates.” Miller v. Johnson, 515 U. S. 900, 920 (1995) .      But that is not the “racial issue” prong’s only defect. More fundamentally, it misreads the Equal Protection Clause to protect “particular group[s],” a construction that we have tirelessly repudiated in a “long line of casesunderstanding equal protection as a personal right.” Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 224, 230 (1995) . It is a “basic principle that the Fifth and Fourteenth Amendments to the Constitution protect persons, not groups.” Id., at 227; Metro Broadcasting, supra, at 636 (Kennedy, J., dissenting).[ 7 ] Yet Seattle insists that only those political-process alterations that burden racial minorities deny equal protection. “The majority,” after all, “needs no protection against discrimination.” 458 U. S., at 468 (quoting Hunter, 393 U. S., at 391). In the years since Seattle, we have repeatedly rejected “a reading of the guarantee of equal protection under which the level of scrutiny varies according to the ability of different groups to defend their interests in the representative process.” Richmond v. J. A. Croson Co., 488 U. S. 469, 495 (1989) . Meant to obliterate rather than endorse the practice of racial classifications, the Fourteenth Amendment’s guarantees “obtai[n] with equal force regardless of ‘the race of those burdened or benefitted.’ ” Miller, supra, at 904 (quoting Croson, supra, at 494 (plurality opinion)); Adarand, supra, at 223, 227. The Equal Protection Clause “cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection it is not equal.” Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 –290 (1978) (opinion of Powell, J.).      The dissent trots out the old saw, derived from dictum in a footnote, that legislation motivated by “ ‘prejudice against discrete and insular minorities’ ” merits “ ‘more exacting judicial scrutiny.’ ” Post, at 31 (quoting United States v. Carolene Products, 304 U. S. 144 –153, n. 4). I say derived from that dictum (expressed by the four-Justice majority of a seven-Justice Court) because the dictum itself merely said “[n]or need we enquire . . . whether prejudice against discrete and insular minorities may be a special condition,” id., at 153, n. 4 (emphasis added). The dissent does not argue, of course, that such “prejudice” produced §26. Nor does it explain why certain racial minorities in Michigan qualify as “ ‘insular,’ ” meaning that “other groups will not form coalitions with them—and, critically, not because of lack of common interests but because of ‘prejudice.’ ” Strauss, Is Carolene Products Obsolete? 2010 U. Ill. L. Rev. 1251, 1257. Nor does it even make the case that a group’s “discreteness” and “insu-larity” are political liabilities rather than political strengths[ 8 ]—a serious question that alone demonstrates the prudence of the Carolene Products dictumizers in leaving the “enquir[y]” for another day. As for the question whether “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation . . . is to be subjected to more exacting judicial scrutiny,” the Carolene Products Court found it “unnecessary to consider [that] now.” 304 U. S., at 152, n. 4. If the dissent thinks that worth considering today, it should explain why the election of a university’s governing board is a “political process which can ordinarily be expected to bring about repeal of undesirable legislation,” but Michigan voters’ ability to amend their Constitution is not. It seems to me quite the opposite. Amending the Constitution requires the approval of only “a majority of the electors voting on the question.” Mich. Const., Art. XII, §2. By contrast, voting in a favorable board (each of which has eight members) at the three major public universities requires electing by majority vote at least 15 different candidates, several of whom would be running during different election cycles. See BAMN v. Regents of Univ. of Mich., 701 F. 3d 466, 508 (CA6 2012) (Sutton, J., dissenting). So if Michigan voters, instead of amending their Constitution, had pursued the dissent’s preferred path of electing board members promising to “abolish race-sensitive admissions policies,” post, at 3, it would have been harder, not easier, for racial minorities favoring affirmative action to overturn that decision. But the more important point is that we should not design our jurisprudence to conform to dictum in a footnote in a four-Justice opinion. C      Moving from the appalling to the absurd, I turn now to the second part of the Hunter-Seattle analysis—which is apparently no more administrable than the first, compare post, at 4–6 (Breyer, J., concurring in judgment) (“This case . . . does not involve a reordering of the political process”), with post, at 25–29 (Sotomayor, J., dissenting) (yes, it does). This part of the inquiry directs a court to determine whether the challenged act “place[s] effective decisionmaking authority over [the] racial issue at a different level of government.” Seattle, 458 U. S., at 474. The laws in both Hunter and Seattle were thought to fail this test. In both cases, “the effect of the challengedaction was to redraw decisionmaking authority over racial matters—and only over racial matters—in such a way as to place comparative burdens on minorities.” 458 U. S., at 475, n. 17. This, we said, a State may not do.      By contrast, in another line of cases, we have emphasized the near-limitless sovereignty of each State to design its governing structure as it sees fit. Generally, “a State is afforded wide leeway when experimenting with the appropriate allocation of state legislative power” and may create “political subdivisions such as cities and counties . . . ‘as convenient agencies for exercising such of the governmental powers of the state as may be entrusted to them.’ ” Holt Civic Club v. Tuscaloosa, 439 U. S. 60, 71 (1978) (quoting Hunter v. Pittsburgh, 207 U. S. 161, 178 (1907) ). Accordingly, States have “absolute discretion” to determine the “number, nature and duration of the powers conferred upon [municipal] corporations and the territory over which they shall be exercised.” Holt Civic Club, supra, at 71. So it would seem to go without saying that a State may give certain powers to cities, later assign the same powers to counties, and even reclaim them for itself.      Taken to the limits of its logic, Hunter-Seattle is the gaping exception that nearly swallows the rule of structural state sovereignty. If indeed the Fourteenth Amendment forbids States to “place effective decisionmaking authority over” racial issues at “different level[s] of government,” then it must be true that the Amendment’s ratification in 1868 worked a partial ossification of each State’s governing structure, rendering basically irrevocable the power of any subordinate state official who, the day before the Fourteenth Amendment’s passage, happened to enjoy legislatively conferred authority over a “racial issue.” Under the Fourteenth Amendment, that subordinate entity (suppose it is a city council) could itself take action on the issue, action either favorable or unfavorable to minorities. It could even reverse itself later. What it could not do, however, is redelegate its power to an even lower level of state government (such as a city-council committee) without forfeiting it, since the necessary effect of wresting it back would be to put an additional obstacle in the path of minorities. Likewise, no entityor official higher up the state chain (e.g., a county board) could exercise authority over the issue. Nor, even, could the state legislature, or the people by constitutional amendment, revoke the legislative conferral of power to the subordinate, whether the city council, its subcommittee, or the county board. Seattle’s logic would createaffirmative-action safe havens wherever subordinate offi-cials in public universities (1) traditionally have enjoyed “effective decisionmaking authority” over admissions policy but (2) have not yet used that authority to prohibit race-conscious admissions decisions. The mere existence of a subordinate’s discretion over the matter would work a kind of reverse pre-emption. It is “a strange notion—alien to our system—that local governmental bodies can forever pre-empt the ability of a State—the sovereign power—to address a matter of compelling concern to the State.” 458 U. S., at 495 (Powell, J., dissenting). But that is precisely what the political-process doctrine contemplates.      Perhaps the spirit of Seattle is especially disquieted by enactments of constitutional amendments. That appears to be the dissent’s position. The problem with §26, it suggests, is that amending Michigan’s Constitution is simply not a part of that State’s “existing” political process. E.g., post, at 4, 41. What a peculiar notion: that a revision of a State’s fundamental law, made in precisely the manner that law prescribes, by the very people who are the source of that law’s authority, is not part of the “political process” which, but for those people and that law, would not exist. This will surely come as news to the people of Michigan, who, since 1914, have amended their Constitution 20 times. Brief for Gary Segura et al. as Amici Curiae 12. Even so, the dissent concludes that the amendment attacked here worked an illicit “chang[ing] [of ] the basic rules of the political process in that State” in “the middle of the game.” Post, at 2, 4. Why, one might ask, is not the amendment provision of the Michigan Constitution one (perhaps the most basic one) of the rules of the State’s political process? And why does democratic invocation of that provision not qualify as working through the “existing political process,” post, at 41?[ 9 ] II      I part ways with Hunter, Seattle, and (I think) the plurality for an additional reason: Each endorses a version of the proposition that a facially neutral law may deny equal protection solely because it has a disparate racial impact. Few equal-protection theories have been so squarely and soundly rejected. “An unwavering line of cases from this Court holds that a violation of the Equal Protection Clause requires state action motivated by discriminatory intent,” Hernandez v. New York, 500 U. S. 352 –373 (1991) (O’Connor, J., concurring in judgment), and that “official action will not be held unconstitutional solely because it results in a racially disproportionate impact,” Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252 –265 (1977). Indeed, we affirmed this principle the same day we decided Seattle: “[E]ven when a neutral law has a disproportionately adverse effect on a racial minority, the Fourteenth Amendment is violated only if a discriminatory purpose can be shown.” Crawford v. Board of Ed. of Los Angeles, 458 U. S. 527 –538 (1982).      Notwithstanding our dozens of cases confirming the exception-less nature of the Washington v. Davis rule, the plurality opinion leaves ajar an effects-test escape hatch modeled after Hunter and Seattle, suggesting that state action denies equal protection when it “ha[s] the serious risk, if not purpose, of causing specific injuries on account of race,” or is either “designed to be used, or . . . likely to be used, to encourage infliction of injury by reason of race.” Ante, at 9, 17 (emphasis added). Since these formulations enable a determination of an equal-protection violation where there is no discriminatory intent, they are inconsistent with the long Washington v. Davis line of cases.[ 10 ]      Respondents argue that we need not bother with the discriminatory-purpose test, since §26 may be struck more straightforwardly as a racial “classification.” Admitting (as they must) that §26 does not on its face “distribut[e] burdens or benefits on the basis of individual racial classifications,” Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 720 (2007) , respondents rely on Seattle’s statement that “when the political process or the decisionmaking mechanism used to address racially conscious legislation—and only such legislation—is singled out for peculiar and disadvantageous treatment,” then that “singling out” is a racial classification. 458 U. S., at 485, 486, n. 30. But this is just the political-process theory bedecked in different doctrinal dress. A law that “neither says nor implies that persons are to be treated differently on account of their race” is not a racial classification. Crawford, supra, at 537. That is particularly true of statutes mandating equal treatment. “[A] law that prohibits the State from classifying individuals by race . . . a fortiori does not classify individuals by race.” Coalition for Economic Equity v. Wilson, 122 F. 3d 692, 702 (CA9 1997) (O’Scannlain, J.).      Thus, the question in this case, as in every case in which neutral state action is said to deny equal protection on account of race, is whether the action reflects a racially discriminatory purpose. Seattle stresses that “singling out the political processes affecting racial issues for uniquely disadvantageous treatment inevitably raises dangers of impermissible motivation.” 458 U. S., at 486, n. 30. True enough, but that motivation must be proved. And respondents do not have a prayer of proving it here. The District Court noted that, under “conventional equal protection” doctrine, the suit was “doom[ed].” 539 F. Supp. 2d 924, 951 (ED Mich. 2008). Though the Court of Appeals did not opine on this question, I would not leave it for them on remand. In my view, any law expressly requiring state actors to afford all persons equal protection of the laws (such as Initiative 350 in Seattle, though not the charter amendment in Hunter) does not—cannot—deny “to any person . . . equal protection of the laws,” U. S. Const., Amdt. 14, §1, regardless of whatever evidence of seemingly foul purposes plaintiffs may cook up in the trial court. *  *  *      As Justice Harlan observed over a century ago, “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (dissenting opinion). The people of Michigan wish the same for their governing charter. It would be shameful for us to stand in their way.[ 11 ] Notes 1 For simplicity’s sake, I use “respondent” or “respondents” throughout the opinion to describe only those parties who are adverse to petitioner, not Eric Russell, a respondent who supports petitioner. 2 The plurality cites evidence from ’s dissent in v. , , to suggest that the city had been a “partial” cause of its segregation problem. , at 9.The plurality in criticized that dissent for relying on irrelevant evidence, for “elid[ing the] distinction between and segregation,” and for “casually intimat[ing] that Seattle’s school attendance patterns reflect[ed] illegal segregation.” 551 U. S., at 736–737, and n. 15. Today’s plurality sides with the dissent and repeats its errors. 3 Or so the Court assumed. See 458 U. S. at 472, n. 15 (“Appellants and the United States do not challenge the propriety of race-conscious student assignments for the purpose of achieving integration, even absent a finding of prior segregation. We therefore do not specifically pass on that issue”). 4 The dissent’s version of this test is just as scattershot. Since, according to the dissent, the doctrine forbids “reconfigur[ing] the political process in a manner that only a racial minority,” , at 5 (opinion of , J.) (emphasis added), it must be that that the reason the underlying issue (that is, the issue concerning which the process has been reconfigured) is “racial” is that the policy in question only a racial minority (if it also benefitted persons not belonging to a racial majority, then the political-process reconfiguration would burden them as well). On second thought: The issue is “racial” if the policy benefits a racial minority and “ ‘[is] designed for that purpose,’ ” , at 44. This is the standard purported to apply. But under that standard, §26 does not affect a “racial issue,” because under v. , , race-based admissions policies may not constitutionally be “designed for [the] purpose,” , at 472, of benefitting primarily racial minorities, but must be designed for the purpose of achieving educational benefits for students of all races, , ,at 322–325. So the dissent must mean that an issue is “racial” so long as the policy in question has the incidental effect (an effect not flowing from its design) of benefiting primarily racial minorities. 5 And how many members of a particular racial group must take the same position on an issue before we suppose that the position is in the ’s interest? Not member, the dissent suggests, , at 44. Beyond that, who knows? Five percent? Eighty-five percent? 6 The dissent proves my point. After asserting—without citation, though I and many others of all races deny it—that it is “common-sense reality” that affirmative action benefits racial minorities, , at 16, the dissent suggests throughout, , , at 30, that that view of “reality” is so necessarily shared by members of racial minorities that they favor affirmative action. 7 The dissent contends, , at 39, that this point “ignores the obvious: Discrimination against an individual occurs because of that individual’s membership in a particular group.” No, I do not ignore the obvious; it is the dissent that misses the point. Of course discrimination against a group constitutes discrimination against each member of that group. But since it is persons and not groups that are protected, one cannot say, as the dissent would, that the Constitution prohibits discrimination against minority groups, but not against majority groups. 8 Cf., , Ackerman, Beyond , 98 Harv. L. Rev. 713, 723–724 (1985) (“Other things being equal, ‘discreteness and insularity’ will normally be a source of enormous bargaining advantage, not disadvantage, for a group engaged in pluralist American politics. Except for special cases, the concerns that underlie should lead judges to protect groups that possess the opposite characteristic from the ones emphasizes—groups that are ‘anonymous and diffuse’ rather than ‘discrete and insular’ ”). 9 The dissent thinks I do not understand its argument. Only when amending Michigan’s Constitution violates , it says, is that constitutionally prescribed activity necessarily not part of the State’s existing political process. , at 21, n. 7. I understand the argument quite well; and see quite well that it begs the question. Why is Michigan’s action here unconstitutional? Because it violates And why does it violate ? Because it is not part of the State’s existing political process. And why is it not part of the State’s existing political process? Because it violates 10 According to the dissent, - fills an important doctrinal gap left open by v. , since -’s rule—unique among equal-protection principles—makes clear that “the majority” may not alter a political process with the goal of “prevent[ing] minority groups from partaking in that process on equal footing.” , at 33. Nonsense. There is no gap. To “manipulate the ground rules,” , at 34, or to “ri[g] the contest,” , at 35, in order to harm persons because of their race is to deny equal protection under v. . 11 And doubly shameful to equate “the majority” behind §26 with “the majority” responsible for Jim Crow. , at 1–2 (, J., dissenting). SUPREME COURT OF THE UNITED STATES _________________ No. 12–682 _________________ BILL SCHUETTE, ATTORNEY GENERAL OF MICHI-GAN, PETITIONER v. COALITION TO DEFEND AF-FIRMATIVE ACTION, INTEGRATION AND IMMI-GRANT RIGHTS AND FIGHT FOR EQUALITYBY ANY MEANS NECESSARY (BAMN), et al. on writ of certiorari to the united states court of appeals for the sixth circuit [April 22, 2014]      Chief Justice Roberts, concurring.      The dissent devotes 11 pages to expounding its own policy preferences in favor of taking race into account in college admissions, while nonetheless concluding that it “do[es] not mean to suggest that the virtues of adopting race-sensitive admissions policies should inform the legal question before the Court.” Post, at 57 (opinion of Sotomayor, J.). The dissent concedes that the governing boards of the State’s various universities could have implemented a policy making it illegal to “discriminate against, or grant preferential treatment to,” any individ-ual on the basis of race. See post, at 3, 34–35. On the dissent’s view, if the governing boards conclude that drawing racial distinctions in university admissions is undesirable or counterproductive, they are permissibly exercising their policymaking authority. But others who might reach the same conclusion are failing to take race seriously.      The dissent states that “[t]he way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.” Post, at 46. And it urges that “[r]ace matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’ ” Ibid. But it is not “out of touch with reality” to conclude that racial preferences may themselves have the debilitating effect of reinforcing precisely that doubt, and—if so—that the preferences do more harm than good. Post, at 45. To disagree with the dissent’s views on the costs and benefits of racial preferences is not to “wish away, rather than confront” racial inequality. Post, at 46. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.[ 1 ]* Notes 1 *  and question the relationship between v. , , and v. , . See at 6, n. 2 (, concurring in judgment); at 23, n. 9 (, dissenting). The plurality today addresses that issue, explaining that the race-conscious action in was unconstitutional given the absence of a showing of prior segregation. , , at 720–721 (majority opinion), 736 (plurality opinion); see at 9. Today’s plurality notes that the Court in “assumed” the constitutionality of the busing remedy at issue there, “ ‘even absent a finding of prior segregation.’ ” at 10 (quoting , , at 472, n. 15). The assumption on which proceeded did not constitute a finding sufficient to justify the race-conscious action in , though it is doubtless pertinent in analyzing . “As this Court held in , the [Seattle] school board’s purported remedial action would not be permissible today absent a of segregation,” but “we must understand as understood itself.” at 9–10 (emphasis added). SUPREME COURT OF THE UNITED STATES _________________ No. 12–682 _________________ BILL SCHUETTE, ATTORNEY GENERAL OF MICHI-GAN, PETITIONER v. COALITION TO DEFEND AF-FIRMATIVE ACTION, INTEGRATION AND IMMI-GRANT RIGHTS AND FIGHT FOR EQUALITYBY ANY MEANS NECESSARY (BAMN), et al. on writ of certiorari to the united states court of appeals for the sixth circuit [April 22, 2014]      Justice Sotomayor, with whom Justice Ginsburg joins, dissenting.      We are fortunate to live in a democratic society. But without checks, democratically approved legislation can oppress minority groups. For that reason, our Constitution places limits on what a majority of the people may do. This case implicates one such limit: the guarantee of equal protection of the laws. Although that guarantee is traditionally understood to prohibit intentional discrimination under existing laws, equal protection does not end there. Another fundamental strand of our equal protection jurisprudence focuses on process, securing to all citizens the right to participate meaningfully and equally in self-government. That right is the bedrock of our democracy, for it preserves all other rights.      Yet to know the history of our Nation is to understand its long and lamentable record of stymieing the right of racial minorities to participate in the political process. At first, the majority acted with an open, invidious purpose. Notwithstanding the command of the Fifteenth Amendment, certain States shut racial minorities out of the political process altogether by withholding the right to vote. This Court intervened to preserve that right. The majority tried again, replacing outright bans on voting with literacy tests, good character requirements, poll taxes, and gerrymandering. The Court was not fooled; it invalidated those measures, too. The majority persisted. This time, although it allowed the minority access to the political process, the majority changed the ground rules of the process so as to make it more difficult for the minority, and the minority alone, to obtain policies designed to foster racial integration. Although these political restructurings may not have been discriminatory in purpose, the Court reaffirmed the right of minority members of our society to participate meaningfully and equally in the political process.      This case involves this last chapter of discrimination: A majority of the Michigan electorate changed the basic rules of the political process in that State in a manner that uniquely disadvantaged racial minorities.[ 1 ] Prior to the enactment of the constitutional initiative at issue here,all of the admissions policies of Michigan’s public colleges and universities—including race-sensitive admissions poli-cies[ 2 ]—were in the hands of each institution’s governing board. The members of those boards are nominated by political parties and elected by the citizenry in statewide elections. After over a century of being shut out of Michigan’s institutions of higher education, racial minorities in Michigan had succeeded in persuading the elected board representatives to adopt admissions policies that took into account the benefits of racial diversity. And this Court twice blessed such efforts—first in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978) , and again in Grutter v. Bollinger, 539 U. S. 306 (2003) , a case that itself concerned a Michigan admissions policy.      In the wake of Grutter, some voters in Michigan set out to eliminate the use of race-sensitive admissions policies. Those voters were of course free to pursue this end in any number of ways. For example, they could have persuaded existing board members to change their minds through individual or grassroots lobbying efforts, or through general public awareness campaigns. Or they could have mobilized efforts to vote uncooperative board members out of office, replacing them with members who would share their desire to abolish race-sensitive admissions policies. When this Court holds that the Constitution permits a particular policy, nothing prevents a majority of a State’s voters from choosing not to adopt that policy. Our system of government encourages—and indeed, depends on—that type of democratic action.      But instead, the majority of Michigan voters changed the rules in the middle of the game, reconfiguring the existing political process in Michigan in a manner that burdened racial minorities. They did so in the 2006 election by amending the Michigan Constitution to enact Art. I, §26, which provides in relevant part that Michigan’s public universities “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”      As a result of §26, there are now two very different processes through which a Michigan citizen is permitted to influence the admissions policies of the State’s universities: one for persons interested in race-sensitive admissions policies and one for everyone else. A citizen who is a University of Michigan alumnus, for instance, can advocate for an admissions policy that considers an applicant’s legacy status by meeting individually with members of the Board of Regents to convince them of her views, by joining with other legacy parents to lobby the Board, or by voting for and supporting Board candidates who share her position. The same options are available to a citizen who wants the Board to adopt admissions policies that consider athleticism, geography, area of study, and so on. The one and only policy a Michigan citizen may not seek through this long-established process is a race-sensitive admissions policy that considers race in an individualized manner when it is clear that race-neutral alternatives are not adequate to achieve diversity. For that policy alone, the citizens of Michigan must undertake the daunting task of amending the State Constitution.      Our precedents do not permit political restructurings that create one process for racial minorities and a separate, less burdensome process for everyone else. This Court has held that the Fourteenth Amendment does not tolerate “a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.” Washington v. Seattle School Dist. No. 1, 458 U. S. 457, 467 (1982) (internal quotation marks omitted). Such restructuring, the Court explained, “is no more permissible than denying [the minority] the [right to] vote, on an equal basis with others.” Hunter v. Erickson, 393 U. S. 385, 391 (1969) . In those cases—Hunter and Seattle—the Court recognized what is now known as the “political-process doctrine”: When the majority reconfigures the political process in a manner that burdens only a racial minority, that alteration triggers strict judicial scrutiny.      Today, disregarding stare decisis, a majority of the Court effectively discards those precedents. The plurality does so, it tells us, because the freedom actually secured by the Constitution is the freedom of self-government—because the majority of Michigan citizens “exercised their privilege to enact laws as a basic exercise of their democratic power.” Ante, at 15. It would be “demeaning to the democratic process,” the plurality concludes, to disturb that decision in any way. Ante, at 17. This logic embraces majority rule without an important constitutional limit.      The plurality’s decision fundamentally misunderstands the nature of the injustice worked by §26. This case is not, as the plurality imagines, about “who may resolve” the debate over the use of race in higher education admissions. Ante, at 18. I agree wholeheartedly that nothing vests the resolution of that debate exclusively in the courts or requires that we remove it from the reach of the electorate. Rather, this case is about how the debate over the use of race-sensitive admissions policies may be resolved, contra, ibid.—that is, it must be resolved in constitution-ally permissible ways. While our Constitution does not guarantee minority groups victory in the political process, it does guarantee them meaningful and equal access to that process. It guarantees that the majority may not win by stacking the political process against minority groups permanently, forcing the minority alone to surmount unique obstacles in pursuit of its goals—here, educational diversity that cannot reasonably be accomplished through race-neutral measures. Today, by permitting a majority of the voters in Michigan to do what our Constitution forbids, the Court ends the debate over race-sensitive admissions policies in Michigan in a manner that contravenes constitutional protections long recognized in our precedents.      Like the plurality, I have faith that our citizenry will continue to learn from this Nation’s regrettable history; that it will strive to move beyond those injustices towards a future of equality. And I, too, believe in the importance of public discourse on matters of public policy. But I part ways with the plurality when it suggests that judicial intervention in this case “impede[s]” rather than “advance[s]” the democratic process and the ultimate hope of equality. Ante, at 16. I firmly believe that our role as judges includes policing the process of self-government and stepping in when necessary to secure the constitutional guarantee of equal protection. Because I would do so here, I respectfully dissent. I      For much of its history, our Nation has denied to many of its citizens the right to participate meaningfully and equally in its politics. This is a history we strive to put behind us. But it is a history that still informs the society we live in, and so it is one we must address with candor. Because the political-process doctrine is best understood against the backdrop of this history, I will briefly trace its course.      The Fifteenth Amendment, ratified after the Civil War, promised to racial minorities the right to vote. But many States ignored this promise. In addition to outright tactics of fraud, intimidation, and violence, there are countless examples of States categorically denying to racial minorities access to the political process. Consider Texas; there, a 1923 statute prevented racial minorities from participating in primary elections. After this Court declared that statute unconstitutional, Nixon v. Herndon, 273 U. S. 536 –541 (1927), Texas responded by changing the rules. It enacted a new statute that gave political parties themselves the right to determine who could participate in their primaries. Predictably, the Democratic Party specified that only white Democrats could participate in its primaries. Nixon v. Condon, 286 U. S. 73 –82 (1932). The Court invalidated that scheme, too. Id., at 89; see also Smith v. Allwright, 321 U. S. 649 (1944) ; Terry v. Adams, 345 U. S. 461 (1953) .      Some States were less direct. Oklahoma was one of many that required all voters to pass a literacy test. But the test did not apply equally to all voters. Under a “grandfather clause,” voters were exempt if their grand-fathers had been voters or had served as soldiers before 1866. This meant, of course, that black voters had to pass the test, but many white voters did not. The Court held the scheme unconstitutional. Guinn v. United States, 238 U. S. 347 (1915) . In response, Oklahoma changed the rules. It enacted a new statute under which all voters who were qualified to vote in 1914 (under the unconstitutional grandfather clause) remained qualified, and the remaining voters had to apply for registration within a 12-day period. Lane v. Wilson, 307 U. S. 268 –271 (1939). The Court struck down that statute as well. Id., at 275.      Racial minorities were occasionally able to surmount the hurdles to their political participation. Indeed, in some States, minority citizens were even able to win elective office. But just as many States responded to the Fifteenth Amendment by subverting minorities’ access to the polls, many States responded to the prospect of elected minority officials by undermining the ability of minorities to win and hold elective office. Some States blatantly removed black officials from local offices. See, e.g., H. Rabinowitz, Race Relations in the Urban South, 1865–1890, pp. 267, 269–270 (1978) (describing events in Tennessee and Virginia). Others changed the processes by which local officials were elected. See, e.g., Extension of the Voting Rights Act, Hearings before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 97th Cong., 1st Sess., pt. 1, pp. 2016–2017 (1981) (hereinafter 1981 Hearings) (statement of Professor J. Morgan Kousser) (after a black judge refused to resign in Alabama, the legislature abolished the court on which he served and replaced it with one whose judges were appointed by the Governor); Rabinowitz, supra, at 269–270 (the North Carolina Legislature divested voters ofthe right to elect justices of the peace and county commissioners, then arrogated to itself the authority to select justices of the peace and gave them the power to select commissioners).      This Court did not stand idly by. In Alabama, for example, the legislature responded to increased black voter registration in the city of Tuskegee by amending the State Constitution to authorize legislative abolition of the county in which Tuskegee was located, Ala. Const. Amdt. 132 (1957), repealed by Ala. Const. Amdt. 406 (1982), and by redrawing the city’s boundaries to remove all the black voters “while not removing a single white voter,” Gomillion v. Lightfoot, 364 U. S. 339, 341 (1960) . The Court intervened, finding it “inconceivable that guaranties embedded in the Constitution” could be “manipulated out of existence” by being “cloaked in the garb of [political] realignment.” Id., at 345 (internal quotation marks omitted).      This Court’s landmark ruling in Brown v. Board of Education, 347 U. S. 483 (1954) , triggered a new era of political restructuring, this time in the context of education. In Virginia, the General Assembly transferred control of student assignment from local school districts to a State Pupil Placement Board. See B. Muse, Virginia’s Massive Resistance 34, 74 (1961). And when the legislature learned that the Arlington County school board had prepared a desegregation plan, the General Assembly “swiftly retaliated” by stripping the county of its right to elect its school board by popular vote and instead making the board an appointed body. Id., at 24; see also B. Smith, They Closed Their Schools 142–143 (1965).      Other States similarly disregarded this Court’s mandate by changing their political process. See, e.g., Bush v. Orleans Parish School Bd., 187 F. Supp. 42, 44–45 (ED La. 1960) (the Louisiana Legislature gave the Governor the authority to supersede any school board’s decision to integrate); Extension of the Voting Rights Act, Hearings on H. R. 4249 et al. before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 1st Sess., 146–149 (1969) (statement of Thomas E. Harris, Assoc. Gen. Counsel, American Federation of Labor and Congress of Industrial Organizations) (the Mississippi Legislature removed from the people the right to elect superintendents of education in 11 counties and instead made those positions appointive).      The Court remained true to its command in Brown. In Arkansas, for example, it enforced a desegregation order against the Little Rock school board. Cooper v. Aaron, 358 U. S. 1, 5 (1958) . On the very day the Court announced that ruling, the Arkansas Legislature responded by changing the rules. It enacted a law permitting the Governor to close any public school in the State, and stripping local school districts of their decisionmaking authority so long as the Governor determined that local officials could not maintain “ ‘a general, suitable, and efficient educational system.’ ” Aaron v. Cooper, 261 F. 2d 97, 99 (CA8 1958) (per curiam) (quoting Arkansas statute). The then-Governor immediately closed all of Little Rock’s high schools. Id., at 99–100; see also S. Breyer, Making Our Democracy Work 49–67 (2010) (discussing the events in Little Rock).      The States’ political restructuring efforts in the 1960’s and 1970’s went beyond the context of education. Many States tried to suppress the political voice of racial minorities more generally by reconfiguring the manner in which they filled vacancies in local offices, often transferring authority from the electorate (where minority citizens had a voice at the local level) to the States’ executive branch (where minorities wielded little if any influence). See, e.g., 1981 Hearings, pt. 1, at 815 (report of J. Cox & A. Turner) (the Alabama Legislature changed all municipal judgeships from elective to appointive offices); id., at 1955 (report of R. Hudlin & K. Brimah, Voter Educ. Project, Inc.) (the Georgia Legislature eliminated some elective offices and made others appointive when it appeared that a minority candidate would be victorious); id., at 501 (statement of Frank R. Parker, Director, Lawyers’ Comm. for Civil Rights Under Law) (the Mississippi Legislature changed the manner of filling vacancies for various public offices from election to appointment). II      It was in this historical context that the Court intervened in Hunter v. Erickson, 393 U. S. 385 (1969) , and Washington v. Seattle School Dist. No. 1, 458 U. S. 457 (1982) . Together, Hunter and Seattle recognized a fundamental strand of this Court’s equal protection jurisprudence: the political-process doctrine. To understand that doctrine fully, it is necessary to set forth in detail precisely what the Court had before it, and precisely what it said. For to understand Hunter and Seattle is to understand why those cases straightforwardly resolve this one. A      In Hunter, the City Council of Akron, Ohio, enacted a fair housing ordinance to “assure equal opportunity to all persons to live in decent housing facilities regardless of race, color, religion, ancestry, or national origin.” 393 U. S., at 386 (internal quotation marks omitted). A majority of the citizens of Akron disagreed with the ordinance and overturned it. But the majority did not stop there; it also amended the city charter to prevent the City Council from implementing any future ordinance dealing with racial, religious, or ancestral discrimination in housing without the approval of the majority of the Akron electorate. Ibid. That amendment changed the rules of the political process in Akron. The Court described the result of the change as follows: “[T]o enact an ordinance barring housing discrimination on the basis of race or religion, proponents had to obtain the approval of the City Council and of a majority of the voters citywide. To enact an ordinance preventing housing discrimination on other grounds, or to enact any other type of housing ordinance, proponents needed the support of only the City Council.” Seattle, 458 U. S., at 468 (describing Hunter; emphasis deleted).      The Court invalidated the Akron charter amendment under the Equal Protection Clause. It concluded that the amendment unjustifiably “place[d] special burdens on racial minorities within the governmental process,” thus effecting “a real, substantial, and invidious denial of the equal protection of the laws.” Hunter, 393 U. S., at 391, 393. The Court characterized the amendment as “no more permissible” than denying racial minorities the right to vote on an equal basis with the majority. Id., at 391. For a “State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person’s vote or give any group a smaller representation than another of comparable size.” Id., at 392–393. The vehicle for the change—a popular referendum—did not move the Court: “The sovereignty of the people,” it explained, “is itself subject to . . . constitutional limitations.” Id., at 392.      Justice Harlan, joined by Justice Stewart, wrote in his concurrence that although a State can normally allocate political power according to any general principle, it bears a “far heavier burden of justification” when it reallocates political power based on race, because the selective reallocation necessarily makes it far more difficult for racial minorities to “achieve legislation that is in their interest.” Id., at 395 (internal quotation marks omitted).      In Seattle, a case that mirrors the one before us, the Court applied Hunter to invalidate a statute, enacted by a majority of Washington State’s citizens, that prohibited racially integrative busing in the wake of Brown. As early as 1963, Seattle’s School District No. 1 began taking steps to cure the de facto racial segregation in its schools. 458 U. S., at 460–461. Among other measures, it enacted a desegregation plan that made extensive use of busing and mandatory assignments. Id., at 461. The district was under no obligation to adopt the plan; Brown charged school boards with a duty to integrate schools that were segregated because of de jure racial discrimination, but there had been no finding that the de facto segregation in Seattle’s schools was the product of de jure discrimination. 458 U. S., at 472, n. 15. Several residents who opposed the desegregation efforts formed a committee and sued to enjoin implementation of the plan. Id., at 461. When these efforts failed, the committee sought to change the rules of the political process. It drafted a statewide initiative “designed to terminate the use of mandatory busing for purposes of racial integration.” Id., at 462. A major-ity of the State’s citizens approved the initiative. Id., at 463–464.      The Court invalidated the initiative under the Equal Protection Clause. It began by observing that equal protection of the laws “guarantees racial minorities the right to full participation in the political life of the community.” Id., at 467. “It is beyond dispute,” the Court explained, “that given racial or ethnic groups may not be denied the franchise, or precluded from entering into the political process in a reliable and meaningful manner.” Ibid. But the Equal Protection Clause reaches further, the Court stated, reaffirming the principle espoused in Hunter—that while “laws structuring political institutions or allocating political power according to neutral principles” do not violate the Constitution, “a different analysis is required when the State allocates governmental power nonneutrally, by explicitly using the racial nature of a decision to determine the decisionmaking process.” 458 U. S., at 470. That kind of state action, it observed, “places special burdens on racial minorities within the governmental process,” by making it “more difficult for certain racial and religious minorities” than for other members of the community “to achieve legislation . . . in their interest.” Ibid.      Rejecting the argument that the initiative had no racial focus, the Court found that the desegregation of public schools, like the Akron housing ordinance, “inure[d] primarily to the benefit of the minority, and [was] designed for that purpose.” Id., at 472. Because minorities had good reason to “consider busing for integration to be ‘legislation that is in their interest,’ ” the Court concluded that the “racial focus of [the initiative] . . . suffice[d] to trigger application of the Hunter doctrine.” Id., at 474 (quoting Hunter, 393 U. S., at 395) (Harlan, J. concurring)).      The Court next concluded that “the practical effect of [the initiative was] to work a reallocation of power of the kind condemned in Hunter.” Seattle, 458 U. S., at 474. It explained: “Those favoring the elimination of de facto school segregation now must seek relief from the state legislature, or from the statewide electorate. Yet authority over all other student assignment decisions, as well as over most other areas of educational policy, remains vested in the local school board.” Ibid. Thus, the initiative required those in favor of racial integration in public schools to “surmount a considerably higher hurdle than persons seeking comparable legislative action” in different contexts. Ibid.      The Court reaffirmed that the “ ‘simple repeal or modification of desegregation or antidiscrimination laws, without more, never has been viewed as embodying a presump-tively invalid racial classification.’ ” Id., at 483 (quoting Crawford v. Board of Ed. of Los Angeles, 458 U. S. 527, 539 (1982) ). But because the initiative burdened future attempts to integrate by lodging the decisionmaking authority at a “new and remote level of government,” it was more than a “mere repeal”; it was an unconstitutionally discriminatory change to the political process.[ 3 ] Seattle, 458 U. S., at 483–484. B      Hunter and Seattle vindicated a principle that is as elementary to our equal protection jurisprudence as it is essential: The majority may not suppress the minority’s right to participate on equal terms in the political process. Under this doctrine, governmental action deprives minor-ity groups of equal protection when it (1) has a racial focus, targeting a policy or program that “inures primarily to the benefit of the minority,” Seattle, 458 U. S., at 472; and (2) alters the political process in a manner that uniquely burdens racial minorities’ ability to achieve their goals through that process. A faithful application of the doctrine resoundingly resolves this case in respondents’ favor. 1      Section 26 has a “racial focus.” Seattle, 458 U. S., at 474. That is clear from its text, which prohibits Michigan’s public colleges and universities from “grant[ing] preferential treatment to any individual or group on the basis of race.” Mich. Const., Art. I, §26. Like desegregation of public schools, race-sensitive admissions policies “inur[e] primarily to the benefit of the minority,” 458 U. S., at 472, as they are designed to increase minorities’ access to institutions of higher education.[ 4 ]      Petitioner argues that race-sensitive admissions policies cannot “inur[e] primarily to the benefit of the minority,” ibid., as the Court has upheld such policies only insofar as they further “the educational benefits that flow from a diverse student body,” Grutter, 539 U. S., at 343. But there is no conflict between this Court’s pronouncement in Grutter and the common-sense reality that race-sensitive admissions policies benefit minorities. Rather, race-sensitive admissions policies further a compelling state interest in achieving a diverse student body precisely because they increase minority enrollment, which necessarily benefits minority groups. In other words, constitutionally permissible race-sensitive admissions policies can both serve the compelling interest of obtaining the educational benefits that flow from a diverse student body, and inure to the benefit of racial minorities. There is nothing mutually exclusive about the two. Cf. Seattle, 458 U. S., at 472 (concluding that the desegregation plan had a racial focus even though “white as well as Negro children bene-fit from exposure to ‘ethnic and racial diversity in the classroom’ ”).      It is worth emphasizing, moreover, that §26 is relevant only to admissions policies that have survived strict scrutiny under Grutter; other policies, under this Court’s rulings, would be forbidden with or without §26. A Grutter-compliant admissions policy must use race flexibly, not maintain a quota; must be limited in time; and must be employed only after “serious, good faith consideration of workable race-neutral alternatives,” 539 U. S., at 339. The policies banned by §26 meet all these requirements and thus already constitute the least restrictive ways to advance Michigan’s compelling interest in diversity in higher education. 2      Section 26 restructures the political process in Michigan in a manner that places unique burdens on racial minorities. It establishes a distinct and more burdensome political process for the enactment of admissions plans that consider racial diversity.      Long before the enactment of §26, the Michigan Constitution granted plenary authority over all matters relating to Michigan’s public universities, including admissions criteria, to each university’s eight-member governing board. See Mich. Const., Art. VIII, §5 (establishing the Board of Regents of the University of Michigan, the Board of Trustees of Michigan State University, and the Board of Governors of Wayne State University). The boards have the “power to enact ordinances, by-laws and regulations for the government of the university.” Mich. Comp. Laws Ann. §390.5 (West 2010); see also §390.3 (“The government of the university is vested in the board of regents”). They are “ ‘constitutional corporation[s] of independent authority, which, within the scope of [their] functions, [are] co-ordinate with and equal to . . . the legislature.’ ” Federated Publications, Inc. v. Board of Trustees of Mich. State Univ., 460 Mich. 75, 84, n. 8, 594 N. W. 2d 491, 496, n. 8 (1999).      The boards are indisputably a part of the political process in Michigan. Each political party nominates two candidates for membership to each board, and board members are elected to 8-year terms in the general statewide election. See Mich. Comp. Laws Ann. §§168.282, 168.286 (West 2008); Mich. Const., Art. VIII, §5. Prior to §26, board candidates frequently included their views on race-sensitive admissions in their campaigns. For example, in 2005, one candidate pledged to “work to end so-called ‘Affirmative-Action,’ a racist, degrading system.” See League of Women Voters, 2005 General Election Voter Guide, online at http://www.lwvka.org/guide04/regents/html (all Internet materials as visited Apr. 18, 2014, and available in Clerk of Court’s case file); see also George, U-M Regents Race Tests Policy, Detroit Free Press, Oct. 26, 2000, p. 2B (noting that one candidate “opposes affirmative action admissions policies” because they “ ‘basically sa[y] minority students are not qualified’ ”).      Before the enactment of §26, Michigan’s political structure permitted both supporters and opponents of race-sensitive admissions policies to vote for their candidates of choice and to lobby the elected and politically accountable boards. Section 26 reconfigured that structure. After §26, the boards retain plenary authority over all admissions criteria except for race-sensitive admissions policies.[ 5 ] To change admissions policies on this one issue, a Michigan citizen must instead amend the Michigan Constitution. That is no small task. To place a proposed constitutional amendment on the ballot requires either the support of two-thirds of both Houses of the Michigan Legislature or a vast number of signatures from Michigan voters—10 percent of the total number of votes cast in the preceding gubernatorial election. See Mich. Const., Art. XII, §§1, 2. Since more than 3.2 million votes were cast in the 2010 election for Governor, more than 320,000 signatures are currently needed to win a ballot spot. See Brief for Gary Segura et al. as Amici Curiae 9 (hereinafter Segura Brief). Moreover, “[t]o account for invalid and duplicative signatures, initiative sponsors ‘need to obtain substantially more than the actual required number of signatures, typically by a 25% to 50% margin.’ ” Id., at 10 (quoting Tolbert, Lowenstein, & Donovan, Election Law and Rules for Using Initiatives, in Citizens as Legislators: Direct Democracy in the United States 27, 37 (S. Bowler, T. Donovan, & C. Tolbert eds., 1998)).      And the costs of qualifying an amendment are significant. For example, “[t]he vast majority of petition efforts . . . require initiative sponsors to hire paid petition circulators, at significant expense.” Segura Brief 10; see also T. Donovan, C. Mooney, & D. Smith, State and Local Politics: Institutions and Reform 96 (2012) (hereinafter Donovan) (“In many states, it is difficult to place a measure on the ballot unless professional petition firms are paid to collect some or all the signatures required for qualification”); Tolbert, supra, at 35 (“ ‘Qualifying an initiative for the statewide ballot is . . . no longer so much a measure of general citizen interest as it is a test of fundraising ability’ ”). In addition to the cost of collecting signatures, campaigning for a majority of votes is an expensive endeavor, and “organizations advocating on behalf of marginalized groups remain . . . outmoneyed by corporate, business, and professional organizations.” Strolovitch & Forrest, Social and Economic Justice Movements and Organizations, in The Oxford Handbook of American Political Parties and Interest Groups 468, 471 (L. Maisel & J. Berry eds., 2010). In 2008, for instance, over $800 million was spent nationally on state-level initiative and referendum campaigns, nearly $300 million more than was spent in the 2006 cycle. Donovan 98. “In several states, more money [is] spent on ballot initiative campaigns than for all other races for political office combined.” Ibid. Indeed, the amount spent on state-level initiative and referendum campaigns in 2008 eclipsed the $740.6 million spent by President Obama in his 2008 presidential campaign, Salant, Spending Doubled as Obama Led Billion-Dollar Campaign, Bloomberg News, Dec. 27, 2008, online at http://www.bloomberg.com/apps/news?pid=newsarchive&sid=anLDS9WWPQW8.      Michigan’s Constitution has only rarely been amended through the initiative process. Between 1914 and 2000, voters have placed only 60 statewide initiatives on the Michigan ballot, of which only 20 have passed. See Segura Brief 12. Minority groups face an especially uphill battle. See Donovan 106 (“[O]n issues dealing with racial and ethnic matters, studies show that racial and ethnic minorities do end up more on the losing side of the popular vote”). In fact, “[i]t is difficult to find even a single statewide initiative in any State in which voters approved policies that explicitly favor racial or ethnic minority groups.”[ 6 ] Segura Brief 13.      This is the onerous task that §26 forces a Michigan citizen to complete in order to change the admissions policies of Michigan’s public colleges and universities with respect to racial sensitivity. While substantially less grueling paths remain open to those advocating for any other admissions policies, a constitutional amendment is the only avenue by which race-sensitive admissions policies may be obtained. The effect of §26 is that a white graduate of a public Michigan university who wishes to pass his historical privilege on to his children may freely lobby the board of that university in favor of an expanded legacy admissions policy, whereas a black Michigander who was denied the opportunity to attend that very university cannot lobby the board in favor of a policy that might give his children a chance that he never had and that they might never have absent that policy.      Such reordering of the political process contravenes Hunter and Seattle.[ 7 ] See Seattle, 458 U. S., at 467 (the Equal Protection Clause prohibits “ ‘a political structure that treats all individuals as equals,’ yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation” (citation omitted)). Where, as here, the majority alters the political process to the detriment of a racial minority, the governmental action is subject to strict scrutiny. See id., at 485, n. 28. Michigan does not assert that §26 satisfies a compelling state interest. That should settle the matter. C 1      The plurality sees it differently. Disregarding the language used in Hunter, the plurality asks us to contort that case into one that “rests on the unremarkable principle that the State may not alter the procedures of government to target racial minorities.” Ante, at 8. And the plurality recasts Seattle “as a case in which the state action in question . . . had the serious risk, if not purpose, of causing specific injuries on account of race.” Ante, at 8–9. According to the plurality, the Hunter and Seattle Courts were not concerned with efforts to reconfigure the political process to the detriment of racial minorities; rather, those cases invalidated governmental actions merely because they reflected an invidious purpose to discriminate. This is not a tenable reading of those cases.      The plurality identifies “invidious discrimination” as the “necessary result” of the restructuring in Hunter. Ante, at 8. It is impossible to assess whether the housing amendment in Hunter was motivated by discriminatory purpose, for the opinion does not discuss the question of intent.[ 8 ] What is obvious, however, is that the possibility of invidious discrimination played no role in the Court’s reasoning. We ordinarily understand our precedents to mean what they actually say, not what we later think they could or should have said. The Hunter Court was clear about why it invalidated the Akron charter amendment: It was impermissible as a restructuring of the political process, not as an action motivated by discriminatory intent. See 393 U. S., at 391 (striking down the Akron charter amendment because it “places a special burden on racial minorities within the governmental process”).      Similarly, the plurality disregards what Seattle actually says and instead opines that “the political restriction in question was designed to be used, or was likely to be used, to encourage infliction of injury by reason of race.” Ante, at 17. Here, the plurality derives its conclusion not from Seattle itself, but from evidence unearthed more than a quarter-century later in Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701 (2007) : “Although there had been no judicial finding of de jure segregation with respect to Seattle’s school district, it appears as though school desegregation in the district in the 1940’s and 1950’s may have been the partial result of school board policies that ‘permitted white students to transfer out of black schools while restricting the transfer of black students into white schools.’ ”[ 9 ] Ante, at 9 (quoting Parents Involved, 551 U. S., at 807–808 (Breyer, J., dissenting) (emphasis added). It follows, according to the plurality, that Seattle’s desegregation plan was constitutionally required, so that the initiative halting the plan was an instance of invidious discrimination aimed at inflicting a racial injury.      Again, the plurality might prefer that the Seattle Court had said that, but it plainly did not. Not once did the Court suggest the presence of de jure segregation in Seattle. Quite the opposite: The opinion explicitly suggested the desegregation plan was adopted to remedy de facto rather than de jure segregation. See 458 U. S., at 472, n. 15 (referring to the “absen[ce]” of “a finding of prior de jure segregation”). The Court, moreover, assumed that no “constitutional violation” through de jure segregation had occurred. Id., at 474. And it unmistakably rested its decision on Hunter, holding Seattle’s initiative invalid because it “use[d] the racial nature of an issue to define the governmental decisionmaking structure, and thus impose[d] substantial and unique burdens on racial minorities.” 458 U. S., at 470.      It is nothing short of baffling, then, for the plurality to insist—in the face of clear language in Hunter and Seattle saying otherwise—that those cases were about nothing more than the intentional and invidious infliction of a racial injury. Ante, at 8 (describing the injury in Hunter as “a demonstrated injury on the basis of race”); ante, at 8–9 (describing the injury in Seattle as an “injur[y] on account of race”). The plurality’s attempt to rewrite Hunter and Seattle so as to cast aside the political-process doctrine sub silentio is impermissible as a matter of stare decisis. Under the doctrine of stare decisis, we usually stand by our decisions, even if we disagree with them, because people rely on what we say, and they believe they can take us at our word.      And what now of the political-process doctrine? After the plurality’s revision of Hunter and Seattle, it is unclear what is left. The plurality certainly does not tell us. On this point, and this point only, I agree with Justice Scalia that the plurality has rewritten those precedents beyond recognition. See ante, at 5–7 (opinion concurring in judgment). 2      Justice Breyer concludes that Hunter and Seattle do not apply. Section 26, he reasons, did not move the relevant decisionmaking authority from one political level to another; rather, it removed that authority from “unelected actors and placed it in the hands of the voters.” Ante, at 5 (opinion concurring in judgment). He bases this conclusion on the premise that Michigan’s elected boards “delegated admissions-related decisionmaking authority to unelected university faculty members and administrators.” Ibid. But this premise is simply incorrect.      For one thing, it is undeniable that prior to §26, board candidates often pledged to end or carry on the use of race-sensitive admissions policies at Michigan’s public universities. See supra, at 18. Surely those were not empty promises. Indeed, the issue of race-sensitive admissions policies often dominated board elections. See, e.g., George, Detroit Free Press, at 2B (observing that “[t]he race for the University of Michigan Board of Regents could determine . . . the future of [the University’s] affirmative action policies”); Kosseff, UM Policy May Hang On Election, Crain’s Detroit Business, Sept. 18, 2000, p. 1 (noting that an upcoming election could determine whether the University would continue to defend its affirmative action policies); University of Michigan’s Admissions Policy Still an Issue for Regents’ Election, Black Issues in Higher Education, Oct. 21, 2004, p. 17 (commenting that although “the Supreme Court struck down the University of Michigan’s undergraduate admissions policy as too formulaic,” the issue “remains an important [one] to several peo-ple running” in an upcoming election for the Board of Regents).      Moreover, a careful examination of the boards and their governing structure reveals that they remain actively involved in setting admissions policies and procedures. Take Wayne State University, for example. Its Board of Governors has enacted university statutes that govern the day-to-day running of the institution. See Wayne State Univ. Stat., online at http://bog.wayne.edu/code. A number of those statutes establish general admissions procedures, see §2.34.09 (establishing undergraduate admissions procedures); §2.34.12 (establishing graduate admissions procedures), and some set out more specific instructions for university officials, see, e.g., §2.34.09.030 (“Admissions decisions will be based on a full evaluation of each student’s academic record, and on empirical data reflecting the characteristics of students who have successfully graduated from [the university] within the four years prior to the year in which the student applies”); §§2.34.12.080, 2.34.12.090 (setting the requisite grade point average for graduate applicants).      The Board of Governors does give primary responsibility over day-to-day admissions matters to the university’s President. §2.34.09.080. But the President is “elected by and answerable to the Board.” Brief for Respondent Board of Governors of Wayne State University et al. 15. And while university officials and faculty members “serv[e] an important advisory role in recommending educational policy,” id., at 14, the Board alone ultimately controls educational policy and decides whether to adopt (or reject) program-specific admissions recommendations. For example, the Board has voted on recommendations “to revise guidelines for establishment of honors curricula, including admissions criteria”; “to modify the honor point criteria for graduate admission”; and “to modify the maximum number of transfer credits that the university would allow in certain cases where articulation agreements rendered modification appropriate.” Id., at 17; see also id., at 18–20 (providing examples of the Board’s “review[ing] and pass[ing] upon admissions requirements in the course of voting on broader issues, such as the implementation of new academic programs”). The Board also “engages in robust and regular review of administrative actions involving admissions policy and related matters.” Id., at 16.      Other public universities more clearly entrust admissions policy to university officials.      The Board of Regents of the University of Michigan, for example, gives primary responsibility for admissions to the Associate Vice Provost, Executive Director of Undergraduate Admissions, and Directors of Admissions. Bylaws §8.01, online at http://www.regents.umich.edu/bylaws. And the Board of Trustees of Michigan State University relies on the President to make recommendations regarding admissions policies. Bylaws, Art. 8, online at http://www.trustees.msu.edu/bylaws. But the bylaws of the Board of Regents and the Board of Trustees “make clear that all university operations remain subject to their control.” Brief for Respondents Regents of the University of Michigan, the Board of Trustees of Michigan State University et al. 13–14.      The boards retain ultimate authority to adopt or reject admissions policies in at least three ways. First, they routinely meet with university officials to review admissions policies, including race-sensitive admissions policies. For example, shortly after this Court’s decisions in Gratz v. Bollinger, 539 U. S. 244 (2003) , and Grutter, 539 U. S., at 306, the President of the University of Michigan appeared before the University’s Board of Regents to discuss the impact of those decisions on the University. SeeProceedings 2003–2004, pp. 10–12 (July 2003), onlineat http://name.umdl.umich.edu/ACW7513.2003.001. Six members of the Board voiced strong support for the University’s use of race as a factor in admissions. Id., at 11–12. In June 2004, the President again appeared before the Board to discuss changes to undergraduate admissions policies. Id., at 301 (June 2004). And in March 2007, the University’s Provost appeared before the Board of Regents to present strategies to increase diversity in light of the passage of Proposal 2. Proceedings 2006–2007, pp. 264–265 (Mar. 2007), online at http://name.umdl.umich.edu/ACW7513.2006.001.      Second, the boards may enact bylaws with respect to specific admissions policies and may alter any admissions policies set by university officials. The Board of Regents may amend any bylaw “at any regular meeting of the board, or at any special meeting, provided notice is given to each regent one week in advance.” Bylaws §14.03. And Michigan State University’s Board of Trustees may, “[u]pon the recommendation of the President[,] . . . determine and establish the qualifications of students for admissions at any level.” Bylaws, Art. 8. The boards may also permanently remove certain admissions decisions from university officials.[ 10 ] This authority is not merely theoretical. Between 2008 and 2012, the University of Michigan’s Board of Regents “revised more than two dozen of its bylaws, two of which fall within Chapter VIII, the section regulating admissions practices.” App. to Pet. for Cert. 30a.      Finally, the boards may appoint university officials who share their admissions goals, and they may remove those officials if the officials’ goals diverge from those of the boards. The University of Michigan’s Board of Regents “directly appoints [the University’s] Associate Vice Provost and Executive Director of Undergraduate Admissions,” and Michigan State University’s Board of Trustees elects that institution’s President. Brief for Respondents Regents of the University of Michigan, the Board of Trustees of Michigan State University et al. 14.      The salient point is this: Although the elected and politically accountable boards may well entrust university officials with certain day-to-day admissions responsibilities, they often weigh in on admissions policies themselves and, at all times, they retain complete supervisory authority over university officials and over all admissionsdecisions.      There is no question, then, that the elected boards in Michigan had the power to eliminate or adopt race-sensitive admissions policies prior to §26. There is also no question that §26 worked an impermissible reordering of the political process; it removed that power from the elected boards and placed it instead at a higher level of thepolitical process in Michigan. See supra, at 17–22. This case is no different from Hunter and Seattle in that respect. Just as in Hunter and Seattle, minorities in Michigan “participated in the political process and won.” Ante, at 5 (Breyer, J., concurring in judgment). And just as in Hunter and Seattle, “the majority’s subsequent reordering of the political process repealed the minority’s successes and made it more difficult for the minority to succeed in the future,” thereby “diminish[ing] the minority’s ability to participate meaningfully in the electoral process.” Ibid. There is therefore no need to consider “extend[ing] the holding of Hunter and Seattle to reach situations in which decisionmaking authority is moved from an administrative body to a political one,” ibid. Such a scenario is not be-fore us. III      The political-process doctrine not only resolves this case as a matter of stare decisis; it is correct as a matter of first principles. A      Under our Constitution, majority rule is not without limit. Our system of government is predicated on an equilibrium between the notion that a majority of citizens may determine governmental policy through legislation enacted by their elected representatives, and the overriding principle that there are nonetheless some things the Constitution forbids even a majority of citizens to do. The political-process doctrine, grounded in the Fourteenth Amendment, is a central check on majority rule.      The Fourteenth Amendment instructs that all who act for the government may not “deny to any person . . . the equal protection of the laws.” We often think of equal protection as a guarantee that the government will apply the law in an equal fashion—that it will not intentionally discriminate against minority groups. But equal protection of the laws means more than that; it also secures the right of all citizens to participate meaningfully and equally in the process through which laws are created.      Few rights are as fundamental as the right to participate meaningfully and equally in the process of government. See Yick Wo v. Hopkins, 118 U. S. 356, 370 (1886) (political rights are “fundamental” because they are “preservative of all rights”). That right is the bedrock of our democracy, recognized from its very inception. See J. Ely, Democracy and Distrust 87 (1980) (the Constitution “is overwhelmingly concerned, on the one hand, with procedural fairness in the resolution of individual disputes,” and on the other, “with ensuring broad participation in the processes and distributions of government”).      This should come as no surprise. The political process is the channel of change. Id., at 103 (describing the importance of the judiciary in policing the “channels of political change”). It is the means by which citizens may both obtain desirable legislation and repeal undesirable legislation. Of course, we do not expect minority members of our society to obtain every single result they seek through the political process—not, at least, when their views conflict with those of the majority. The minority plainly does not have a right to prevail over majority groups in any given political contest. But the minority does have a right to play by the same rules as the majority. It is this right that Hunter and Seattle so boldly vindicated.      This right was hardly novel at the time of Hunter and Seattle. For example, this Court focused on the vital importance of safeguarding minority groups’ access to the political process in United States v. Carolene Products Co., 304 U. S. 144 (1938) , a case that predated Hunter by 30 years. In a now-famous footnote, the Court explained that while ordinary social and economic legislation carries a presumption of constitutionality, the same may not be true of legislation that offends fundamental rights or targets minority groups. Citing cases involving restrictions on the right to vote, restraints on the dissemination of information, interferences with political organizations, and prohibition of peaceable assembly, the Court recognized that “legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation” could be worthy of “more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.” Id., at 152, n. 4; see also Ely, supra, at 76 (explaining that “[p]aragraph two [of Carolene Products footnote 4] suggests that it is an appropriate function of the Court to keep the machinery of democratic government running as it should, to make sure the channels of political participation and communication are kept open”). The Court also noted that “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political pro-cesses ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more search-ing judicial inquiry.” Carolene Products, 304 U. S., at 153, n. 4, see also Ely, supra, at 76 (explaining that “[p]aragraph three [of Carolene Products footnote 4] suggests that the Court should also concern itself with what majorities do to minorities, particularly mentioning laws ‘directed at’ religious, national and racial minorities and those infected by prejudice against them”).      The values identified in Carolene Products lie at the heart of the political-process doctrine. Indeed, Seattle explicitly relied on Carolene Products. See 458 U. S., at 486 (“[W]hen the State’s allocation of power places unusual burdens on the ability of racial groups to enact legisla-tion specifically designed to overcome the ‘special condition’ of prejudice, the governmental action seriously‘curtail[s] the operation of those political processes ordinarily to be relied upon to protect minorities’ ” (quoting Carolene Products, 304 U. S., at 153, n. 4)). These values are central tenets of our equal protection jurisprudence.      Our cases recognize at least three features of the right to meaningful participation in the political process. Two of them, thankfully, are uncontroversial. First, every eligible citizen has a right to vote. See Shaw v. Reno, 509 U. S. 630, 639 (1993) . This, woefully, has not always been the case. But it is a right no one would take issue with today. Second, the majority may not make it more difficult for the minority to exercise the right to vote. This, too, is widely accepted. After all, the Court has invalidated grandfather clauses, good character requirements, poll taxes, and gerrymandering provisions.[ 11 ] The third feature, the one the plurality dismantles today, is that a majority may not reconfigure the existing political process in a manner that creates a two-tiered system of political change, subjecting laws designed to protect or benefit discrete and insular minorities to a more burdensome political process than all other laws. This is the political-process doctrine of Hunter and Seattle.      My colleagues would stop at the second. The plurality embraces the freedom of “self-government” without limits. See ante, at 13. And Justice Scalia values a “near-limitless” notion of state sovereignty. See ante, at 13 (opinion concurring in judgment). The wrong sought to be corrected by the political-process doctrine, they say, is not one that should concern us and is in any event beyond the reach of the Fourteenth Amendment. As they see it, the Court’s role in protecting the political process ends once we have removed certain barriers to the minority’s participation in that process. Then, they say, we must sit back and let the majority rule without the key constitutional limit recognized in Hunter and Seattle.      That view drains the Fourteenth Amendment of one of its core teachings. Contrary to today’s decision, protecting the right to meaningful participation in the political process must mean more than simply removing barriers to participation. It must mean vigilantly policing the political process to ensure that the majority does not use other methods to prevent minority groups from partaking in that process on equal footing. Why? For the same reason we guard the right of every citizen to vote. If “[e]fforts to reduce the impact of minority votes, in contrast to direct attempts to block access to the ballot,” were “ ‘second-generation barriers’ ” to minority voting, Shelby County v. Holder, 570 U. S. ___, ___ (2013) (Ginsburg, J., dissenting) (slip op., at 5), efforts to reconfigure the political process in ways that uniquely disadvantage minority groups who have already long been disadvantaged are third-generation barriers. For as the Court recognized in Seattle, “minorities are no less powerless with the vote than without it when a racial criterion is used to assign governmental power in such a way as to exclude particular racial groups ‘from effective participation in the political proces[s].’ ”[ 12 ] 458 U. S., at 486.      To accept the first two features of the right to meaningful participation in the political process, while renouncing the third, paves the way for the majority to do what it has done time and again throughout our Nation’s history: afford the minority the opportunity to participate, yet manipulate the ground rules so as to ensure the minority’s defeat. This is entirely at odds with our idea of equality under the law.      To reiterate, none of this is to say that the political-process doctrine prohibits the exercise of democratic self-government. Nothing prevents a majority of citizens from pursuing or obtaining its preferred outcome in a political contest. Here, for instance, I agree with the plurality that Michiganders who were unhappy with Grutter were free to pursue an end to race-sensitive admissions policies in their State. See ante, at 16–17. They were free to elect governing boards that opposed race-sensitive admissions policies or, through public discourse and dialogue, to lobby the existing boards toward that end. They were also free to remove from the boards the authority to make any decisions with respect to admissions policies, as opposed to only decisions concerning race-sensitive admissions policies. But what the majority could not do, consistent with the Constitution, is change the ground rules of the political process in a manner that makes it more difficult for racial minorities alone to achieve their goals. In doing so, the majority effectively rigs the contest to guarantee a particular outcome. That is the very wrong the political-process doctrine seeks to remedy. The doctrine “hews to the unremarkable notion that when two competitors are running a race, one may not require the other to run twice as far or to scale obstacles not present in the first runner’s course.” BAMN v. Regents of Univ. of Michigan, 701 F. 3d 466, 474 (CA6 2012). B      The political-process doctrine also follows from the rest of our equal protection jurisprudence—in particular, our reapportionment and vote dilution cases. In those cases, the Court described the right to vote as “ ‘the essence of a democratic society.’ ” Shaw, 509 U. S., at 639. It rejected States’ use of ostensibly race-neutral measures to prevent minorities from exercising their political rights. See id., at 639–640. And it invalidated practices such as at-large electoral systems that reduce or nullify a minority group’s ability to vote as a cohesive unit, when those practices were adopted with a discriminatory purpose. Id., at 641. These cases, like the political-process doctrine, all sought to preserve the political rights of the minority.      Two more recent cases involving discriminatory restructurings of the political process are also worthy of mention: Romer v. Evans, 517 U. S. 620 (1996) , and League of United Latin American Citizens v. Perry, 548 U. S. 399 (2006) (LULAC).      Romer involved a Colorado constitutional amendment that removed from the local political process an issue primarily affecting gay and lesbian citizens. The amendment, enacted in response to a number of local ordinances prohibiting discrimination against gay citizens, repealed these ordinances and effectively prohibited the adoption of similar ordinances in the future without another amendment to the State Constitution. 517 U. S., at 623–624. Although the Court did not apply the political-process doctrine in Romer,[ 13 ] the case resonates with the principles undergirding the political-process doctrine. The Court rejected an attempt by the majority to transfer decision-making authority from localities (where the targeted minority group could influence the process) to state government (where it had less ability to participate effec-tively). See id., at 632 (describing this type of political restructuring as a “disability” on the minority group). Rather than being able to appeal to municipalities for policy changes, the Court commented, the minority was forced to “enlis[t] the citizenry of Colorado to amend the State Constitution,” id., at 631—just as in this case.      LULAC, a Voting Rights Act case, involved an enactment by the Texas Legislature that redrew district lines for a number of Texas seats in the House of Representatives. 548 U. S., at 409 (plurality opinion). In striking down the enactment, the Court acknowledged the “ ‘long, well-documented history of discrimination’ ” in Texas that “ ‘touched upon the rights of . . . Hispanics to register, to vote, or to participate otherwise in the electoral process,’ ” id., at 439, and it observed that that the “ ‘political, social, and economic legacy of past discrimination’ . . . may well [have] ‘hinder[ed] their ability to participate effectively in the political process,’ ” id., at 440. Against this backdrop, the Court found that just as “Latino voters were poised to elect their candidate of choice,” id., at 438, the State’s enactment “took away [their] opportunity because [they] were about to exercise it,” id., at 440. The Court refused to sustain “the resulting vote dilution of a group that was beginning to achieve [the] goal of overcoming prior electoral discrimination.” Id., at 442.      As in Romer, the LULAC Court—while using a different analytic framework—applied the core teaching of Hunter and Seattle: The political process cannot be restructured in a manner that makes it more difficult for a traditionally excluded group to work through the existing process to seek beneficial policies. And the events giving rise to LULAC are strikingly similar to those here. Just as redistricting prevented Latinos in Texas from attaining a benefit they had fought for and were poised to enjoy, §26prevents racial minorities in Michigan from enjoying a last-resort benefit that they, too, had fought for through the existing political processes. IV      My colleagues claim that the political-process doctrine is unadministrable and contrary to our more recent equal protection precedents. See ante, at 11–15 (plurality opinion); ante, at 7–17 (Scalia, J., concurring in judgment). It is only by not acknowledging certain strands of our jurisprudence that they can reach such a conclusion. A      Start with the claim that Hunter and Seattle are no longer viable because of the cases that have come after them. I note that in the view of many, it is those precedents that have departed from the mandate of the Equal Protection Clause in the first place, by applying strict scrutiny to actions designed to benefit rather than burden the minority. See Gratz, 539 U. S., at 301 (Ginsburg, J., dissenting) (“[A]s I see it, government decisionmakers may properly distinguish between policies of exclusion and inclusion. Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its aftereffects have been extirpated” (citation omitted)); id., at 282 (Breyer, J., concurring in judgment) (“I agree . . . that, in implementing the Constitution’s equality instruction, government decisionmakers may properly distinguish between policies of inclusion and exclusion, for the former are more likely to prove consistent with the basic constitutional obligation that the law respect each individual equally” (citation omitted)); Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 243 (1995) (Stevens, J., dissenting) (“There is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination. Invidious discrimination is an engine of oppression, subjugating a disfavored group to enhance or maintain the power of the majority. Remedial race-based preferences reflect the opposite impulse: a desire to foster equality in society”); Wygant v. Jackson Bd. of Ed., 476 U. S. 267 –302 (1986) (Marshall, J., dissenting) (when dealing with an action to eliminate “pernicious vestiges of past discrimination,” a “less exacting standard of review is appropriate”); Fullilove v. Klutznick, 448 U. S. 448 –519 (1980) (Marshall, J., concurring in judgment) (race-based governmental action designed to “remed[y] the continuing effects of past racial discrimination . . . should not be subjected to conventional ‘strict scrutiny’ ”); Bakke, 438 U. S., at 359 (Brennan, White, Marshall, and Blackmun, JJ., concurring in judgment in part and dissenting in part) (“racial classifications designed to further remedial purposes” should be subjected only to intermediate scrutiny).      But even assuming that strict scrutiny should apply to policies designed to benefit racial minorities, that view is not inconsistent with Hunter and Seattle. For nothing the Court has said in the last 32 years undermines the principles announced in those cases. 1      Justice Scalia first argues that the political-process doctrine “misreads the Equal Protection Clause to protect ‘particular group[s],’ ” running counter to a line of cases that treat “ ‘equal protection as a personal right.’ ” Ante, at 9 (opinion concurring in judgment) (quoting Adarand, 515 U. S., at 230). Equal protection, he says, protects “ ‘persons, not groups.’ ” Ante, at 10 (quoting Adarand, 515 U. S., at 227). This criticism ignores the obvious: Discrimination against an individual occurs because of that individual’s membership in a particular group. Yes, equal protection is a personal right, but there can be no equal protection violation unless the injured individual is a member of a protected group or a class of individuals. It is membership in the group—here the racial minority—that gives rise to an equal protection violation.      Relatedly, Justice Scalia argues that the political-process doctrine is inconsistent with our precedents because it protects only the minority from political restructurings. This aspect of the doctrine, he says, cannot be tolerated because our precedents have rejected “ ‘a reading of the guarantee of equal protection under which the level of scrutiny varies according to the ability of different groups to defend their interests in the representative process.’ ” Ante, at 10 (quoting Richmond v. J. A. Croson Co., 488 U. S., 469, 495 (1989) (plurality opinion)). Equal protection, he continues, “ ‘cannot mean one thing when applied to one individual and something else when applied to a person of another color.’ ” Ante, at 10 (quoting Bakke, 438 U. S., at 289–290) (opinion of Powell, J.).      Justice Scalia is troubled that the political-process doctrine has not been applied to trigger strict scrutiny for political restructurings that burden the majority. But the doctrine is inapplicable to the majority. The minority cannot achieve such restructurings against the majority, for the majority is, well, the majority. As the Seattle Court explained, “ ‘[t]he majority needs no protection against discriminat[ory restructurings], and if it did, a referendum, [for instance], might be bothersome but no more than that.’ ” 458 U. S., at 468. Stated differently, the doctrine protects only the minority because it implicates a problem that affects only the minority. Nothing in my opinion suggests, as Justice Scalia says, that under the political-process doctrine, “the Constitution prohibits discrimination against minority groups, but not against majority groups.” Ante, at 10, n. 7. If the minority somehow managed to effectuate a political restructuring that burdened only the majority, we could decide then whether to apply the political-process doctrine to safeguard the political right of the majority. But such a restructuring is not before us, and I cannot fathom how it could be achieved. 2      Justice Scalia next invokes state sovereignty, arguing that “we have emphasized the near-limitless sovereignty of each State to design its governing structure as it sees fit.” Ante, at 13 (opinion concurring in judgment). But state sovereignty is not absolute; it is subject to constitutional limits. The Court surely did not offend state sovereignty by barring States from changing their voting procedures to exclude racial minorities. So why does thepolitical-process doctrine offend state sovereignty? The doctrine takes nothing away from state sovereignty that the Equal Protection Clause does not require. All it says is that a State may not reconfigure its existing political processes in a manner that establishes a distinct and more burdensome process for minority members of our society alone to obtain legislation in their interests.      More broadly, Justice Scalia is troubled that the political-process doctrine would create supposed “affirmative-action safe havens” in places where the ordinary political process has thus far produced race-sensitive admissions policies. Ante, at 13–14. It would not. As explained previously, the voters in Michigan who opposed race-sensitive admissions policies had any number of options available to them to challenge those policies. See supra, at 34–35. And in States where decisions regarding race-sensitive admissions policies are not subject to the political process in the first place, voters are entirely free to eliminate such policies via a constitutional amendment because that action would not reallocate power in the manner condemned in Hunter and Seattle (and, of course, present here). The Seattle Court recognized this careful balance between state sovereignty and constitutional protections: “[W]e do not undervalue the magnitude of the State’s interest in its system of education. Washington could have reserved to state officials the right to make all decisions in the areas of education and student assignment. It has chosen, however, to use a more elaborate system; having done so, the State is obligated to operate that system within the confines of the Fourteenth Amendment.” 458 U. S., at 487. The same is true of Michigan. 3      Finally, Justice Scalia disagrees with “the proposition that a facially neutral law may deny equal protection solely because it has a disparate racial impact.” Ante,at 15 (opinion concurring in judgment). He would acknowledge, however, that an act that draws racial distinctions or makes racial classifications triggers strict scrutiny regardless of whether discriminatory intent is shown. See Adarand, 515 U. S., at 213. That should settle the matter: Section 26 draws a racial distinction. As the Seattle Court explained, “when the political process or the decisionmaking mechanism used to address racially conscious legislation—and only such legislation—is singled out for peculiar and disadvantageous treatment, the governmental action plainly rests on ‘distinctions based on race.’ ” 458 U. S., at 485 (some internal quotation marks omitted); see also id., at 470 (noting that although a State may “ ‘allocate governmental power on the basis of any general principle,’ ” it may not use racial considerations “to define the governmental decisionmaking structure”).      But in Justice Scalia’s view, cases like Washington v. Davis, 426 U. S. 229 (1976) , and Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252 (1977) , call Seattle into question. It is odd to suggest that prior precedents call into question a later one. Seattle (decided in 1982) postdated both Washington v. Davis (1976) and Arlington Heights (1977). Justice Scalia’s suggestion that Seattle runs afoul of the principles established in Washington v. Davis and Arlington Heights would come as a surprise to Justice Blackmun, who joined the majority opinions in all three cases. Indeed, the Seattle Court explicitly rejected the argument that Hunter had been effectively overruled by Washington v. Davis and Arlington Heights: “There is one immediate and crucial difference between Hunter and [those cases]. While decisions such as Washington v. Davis and Arlington Heights considered classifications facially unrelated to race, the charter amendment at issue in Hunter dealt in explicitly racial terms with legislation designed to benefit minorities ‘as minorities,’ not legislation intended to benefit some larger group of underprivileged citizens among whom minorities were disproportionately represented.” 458 U. S., at 485. And it concluded that both the Hunter amendment and the Seattle initiative rested on distinctions based on race. 458 U. S., at 485. So does §26.[ 14 ] B      My colleagues also attack the first prong of the doctrine as “rais[ing] serious constitutional concerns,” ante, at 11 (plurality opinion), and being “unadministrable,” ante, at 7 (Scalia, J., concurring in judgment). Justice Scalia wonders whether judges are equipped to weigh in on what constitutes a “racial issue.” See ante, at 8. The plurality, too, thinks courts would be “with no clear legal standards or accepted sources to guide judicial decision.” Ante, at 12. Yet as Justice Scalia recognizes, Hunter and Seattle provide a standard: Does the public policy at issue “inur[e] primarily to the benefit of the minority, and [was it] designed for that purpose”? Seattle, 458 U. S., at 472; see ante, at 8. Surely this is the kind of factual inquiry that judges are capable of making. Justice Scalia, for instance, accepts the standard announced in Washington v. Davis, which requires judges to determine whether discrimination is intentional or whether it merely has a discriminatory effect. Such an inquiry is at least as difficult for judges as the one called for by Hunter and Seattle. In any event, it is clear that the constitutional amendment in this case has a racial focus; it is facially race-based and, by operation of law, disadvantages only minorities. See supra, at 15–16.      “No good can come” from these inquiries, Justice Scalia responds, because they divide the Nation along racial lines and perpetuate racial stereotypes. Ante, at 9. The plurality shares that view; it tells us that we must not assume all individuals of the same race think alike. See ante, at 11–12. The same could have been said about desegregation: Not all members of a racial minority in Seattle necessarily regarded the integration of public schools as good policy. Yet the Seattle Court had little difficulty saying that school integration as a general matter “inure[d] . . . to the benefit of” the minority. 458 U. S., at 472.      My colleagues are of the view that we should leave race out of the picture entirely and let the voters sort it out. See ante, at 13 (plurality opinion) (“Racial division would be validated, not discouraged, were the Seattle formulation . . . to remain in force”); ante, at 9 (Scalia, J., concurring in judgment) (“ ‘[R]acial stereotyping [is] at odds with equal protection mandates’ ”). We have seen this reasoning before. See Parents Involved, 551 U. S., at 748 (“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race”). It is a sentiment out of touch with reality, one not required by our Constitution, and one that has properly been rejected as “not sufficient” to resolve cases of this nature. Id., at 788 (Kennedy, J., concurring in part and concurring in judgment). While “[t]he enduring hope is that race should not matter[,] the reality is that too often it does.” Id., at 787. “[R]acial discrimination . . . [is] not ancient history.” Bartlett v. Strickland, 556 U. S. 1, 25 (2009) (plurality opinion).      Race matters. Race matters in part because of the long history of racial minorities’ being denied access to the political process. See Part I, supra; see also South Carolina v. Katzenbach, 383 U. S. 301, 309 (1966) (describingracial discrimination in voting as “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution”). And although we have made great strides, “voting discrimination still exists; no one doubts that.” Shelby County, 570 U. S., at __ (slip op., at 2).      Race also matters because of persistent racial inequality in society—inequality that cannot be ignored and that has produced stark socioeconomic disparities. See Gratz, 539 U. S., at 298–300 (Ginsburg, J., dissenting) (cataloging the many ways in which “the effects of centuries of law-sanctioned inequality remain painfully evident in our communities and schools,” in areas like employment, poverty, access to health care, housing, consumer transactions, and education); Adarand, 515 U. S., at 273 (Ginsburg, J., dissenting) (recognizing that the “lingering effects” of discrimination, “reflective of a system of racial caste only recently ended, are evident in our workplaces, markets, and neighborhoods”).      And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, “No, where are you really from?”, regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”      In my colleagues’ view, examining the racial impact of legislation only perpetuates racial discrimination. This refusal to accept the stark reality that race matters is regrettable. The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter. V      Although the only constitutional rights at stake in this case are process-based rights, the substantive policy at issue is undeniably of some relevance to my colleagues. See ante, at 18 (plurality opinion) (suggesting that race-sensitive admissions policies have the “potential to become . . . the source of the very resentments and hostilities based on race that this Nation seeks to put behind it”). I will therefore speak in response. A      For over a century, racial minorities in Michigan fought to bring diversity to their State’s public colleges and universities. Before the advent of race-sensitive admissions policies, those institutions, like others around the country, were essentially segregated. In 1868, two black students were admitted to the University of Michigan, the first of their race. See Expert Report of James D. Anderson 4, in Gratz v. Bollinger, No. 97–75231 (ED Mich.). In 1935, over six decades later, there were still only 35 black students at the University. Ibid. By 1954, this number had risen to slightly below 200. Ibid. And by 1966, to around 400, among a total student population of roughly 32,500—barely over 1 percent. Ibid. The numbers at the University of Michigan Law School are even more telling. Duringthe 1960’s, the Law School produced 9 black graduates among a total of 3,041—less than three-tenths of 1 percent. See App. in Grutter v. Bollinger, O. T. 2002, No. 02–241, p. 204.      The housing and extracurricular policies at these institutions also perpetuated open segregation. For instance, incoming students were permitted to opt out of rooming with black students. Anderson, supra, at 7–8. And some fraternities and sororities excluded black students from membership. Id., at 6–7.      In 1966, the Defense Department conducted an investigation into the University’s compliance with Title VI of the Civil Rights Act, and made 25 recommendations for increasing opportunities for minority students. Id., at 9. In 1970, a student group launched a number of protests, including a strike, demanding that the University increase its minority enrollment. Id., at 16–23. The University’s Board of Regents responded, adopting a goal of 10 percent black admissions by the fall of 1973. Id., at 23.      During the 1970’s, the University continued to improve its admissions policies,[ 15 ] encouraged by this Court’s 1978 decision in Bakke. In that case, the Court told our Nation’s colleges and universities that they could consider race in admissions as part of a broader goal to create a diverse student body, in which students of different backgrounds would learn together, and thereby learn to live together. A little more than a decade ago, in Grutter, the Court reaffirmed this understanding. In upholding the admissions policy of the Law School, the Court laid to rest any doubt whether student body diversity is a compelling interest that may justify the use of race.      Race-sensitive admissions policies are now a thing of the past in Michigan after §26, even though—as experts agree and as research shows—those policies were making a difference in achieving educational diversity. In Grutter, Michigan’s Law School spoke candidly about the strides the institution had taken successfully because of race-sensitive admissions. One expert retained by the Law School opined that a race-blind admissions system would have a “very dramatic, negative effect on underrepresented minority admissions.” Grutter, 539 U. S., at 320 (inter-nal quotation marks omitted). He testified that the school had admitted 35 percent of underrepresented minority students who had applied in 2000, as opposed to only 10 percent who would have been admitted had race not been considered. Ibid. Underrepresented minority students would thus have constituted 4 percent, as opposed to the actual 14.5 percent, of the class that entered in 2000. Ibid.      Michigan’s public colleges and universities tell us the same today. The Board of Regents of the University of Michigan and the Board of Trustees of Michigan State University inform us that those institutions cannot achieve the benefits of a diverse student body without race-sensitive admissions plans. See Brief for Respondents Regents of the University of Michigan, the Board of Trustees of Michigan State University et al. 18–25. During proceedings before the lower courts, several university officials testified that §26 would depress minority enrollment at Michigan’s public universities. The Director of Undergraduate Admissions at the University of Michigan “expressed doubts over the ability to maintain minority enrollment through the use of a proxy, like socioeconomic status.” Supp. App. to Pet. for Cert. 285a. He explained that university officials in States with laws similar to §26 had not “ ‘achieve[d] the same sort of racial and ethnic diversity that they had prior to such measures . . . without considering race.’ ” Ibid. Similarly, the Law School’s Dean of Admissions testified that she expected “a decline in minority admissions because, in her view, it is impossible ‘to get a critical mass of underrepresented minorities . . . without considering race.’ ” Ibid. And the Dean of Wayne State University Law School stated that “although some creative approaches might mitigate the effects of [§26], he ‘did not think that any one of these proposals or any combination of these proposals was reasonably likely to result in the admission of a class that had the same or similar or higher numbers of African Americans, Latinos and Native Americans as the prior policy.’ ” Ibid.      Michigan tells a different story. It asserts that although the statistics are difficult to track, “the number of underrepresented minorities . . . [in] the entering freshman class at Michigan as a percentage changed very little” after §26. Tr. of Oral Arg. 15. It also claims that “the statistics in California across the 17 campuses in the University of California system show that today the underrepresented minority percentage is better on 16 out of those 17 campuses”—all except Berkeley—than before California’s equivalent initiative took effect. Id., at 16. As it turns out, these statistics weren’t “ ‘even good enough to be wrong.’ ” Reference Manual on Scientific Evidence 4 (2d ed. 2000) (Introduction by Stephen G. Breyer (quoting Wolfgang Pauli)).      Section 26 has already led to decreased minority enrollment at Michigan’s public colleges and universities. In 2006 (before §26 took effect), underrepresented minorities made up 12.15 percent of the University of Michigan’s freshman class, compared to 9.54 percent in 2012—a roughly 25 percent decline. See University of Michigan—New Freshman Enrollment Overview, Office of the Registrar, online at http://www.ro.umich.edu/report/10enrolloverview.pdf and http://www.ro.umich.edu/report/12enrollmentsummary.pdf.[ 16 ] Moreover, the total number of college-aged underrepresented minorities in Michigan has increased even as the number of underrepresented minorities admitted to the University has decreased. For example, between 2006 and 2011, the proportion of black freshmen among those enrolled at the University of Michigan declined from 7 percent to 5 percent, even though the proportion of black college-aged persons in Michigan increased from 16 to 19 percent. See Fessenden and Keller, How Minorities Have Fared in States with Affirmative Action Bans, N. Y. Times, June 24, 2013, online at http://www.nytimes.com/interactive/2013/06/24/us/affirmative-action-bans.html. UNIVERSITY OF MICHIGAN Black Students[ 17 ]      A recent study also confirms that §26 has decreased minority degree attainment in Michigan. The University of Michigan’s graduating class of 2012, the first admitted after §26 took effect, is quite different from previous classes. The proportion of black students among those attaining bachelor’s degrees was 4.4 percent, the lowest since 1991; the proportion of black students among those attaining master’s degrees was 5.1 percent, the lowest since 1989; the proportion of black students among those attaining doctoral degrees was 3.9 percent, the lowest since 1993; and the proportion of black students among those attaining professional school degrees was 3.5 percent, the lowest since the mid-1970’s. See Kidder, Restructuring Higher Education Opportunity?: African American Degree Attainment After Michigan’s Ban on Affirmative Action, p. 1 (Aug. 2013), online at http://papers.ssrn.com/sol3/abstract=2318523.      The President and Chancellors of the University of California (which has 10 campuses, not 17) inform us that “[t]he abandonment of race-conscious admissions policies resulted in an immediate and precipitous decline in the rates at which underrepresented-minority students applied to, were admitted to, and enrolled at” the university. Brief for President and Chancellors of the University of California as Amici Curiae 10 (hereinafter President and Chancellors Brief). At the University of California, Los Angeles (UCLA), for example, admission rates for underrepresented minorities plummeted from 52.4 percent in 1995 (before California’s ban took effect) to 24 percentin 1998. Id., at 12. As a result, the percentage of underrepresented minorities fell by more than half: from 30.1 percent of the entering class in 1995 to 14.3 percent in 1998. Ibid. The admissions rate for underrepresented minorities at UCLA reached a new low of 13.6 percent in 2012. See Brief for California Social Science Researchers and Admissions Experts as Amici Curiae 28.      The elimination of race-sensitive admissions policies in California has been especially harmful to black students. In 2006, for example, there were fewer than 100 black students in UCLA’s incoming class of roughly 5,000, the lowest number since at least 1973. See id., at 24.      The University of California also saw declines in minor-ity representation at its graduate programs and professional schools. In 2005, underrepresented minorities made up 17 percent of the university’s new medical students, which is actually a lower rate than the 17.4 percent reported in 1975, three years before Bakke. President and Chancellors Brief 13. The numbers at the law schools are even more alarming. In 2005, underrepresented minorities made up 12 percent of entering law students, well below the 20.1 percent in 1975. Id., at 14.      As in Michigan, the declines in minority representation at the University of California have come even as the minority population in California has increased. At UCLA, for example, the proportion of Hispanic freshmen among those enrolled declined from 23 percent in 1995 to 17 percent in 2011, even though the proportion of Hispanic college-aged persons in California increased from 41 percent to 49 percent during that same period. See Fessenden and Keller. UCLA Hispanic Students[ 18 ]      And the proportion of black freshmen among those enrolled at UCLA declined from 8 percent in 1995 to 3 percent in 2011, even though the proportion of blackcollege-aged persons in California increased from 8 percent to 9 percent during that same period. See ibid. UCLA Black Students[ 19 ]      While the minority admissions rates at UCLA and Berkeley have decreased, the number of minorities enrolled at colleges across the county has increased. See Phillips, Colleges Straining to Restore Diversity: Bans on Race-Conscious Admissions Upend Racial Makeup at California Schools, Wall Street Journal, Mar. 7, 2014,p. A3. BERKELEY AND UCLA[ 20 ]      The President and Chancellors assure us that they have tried. They tell us that notwithstanding the university’s efforts for the past 15 years “to increase diversity on [the University of California’s] campuses through the use of race-neutral initiatives,” enrollment rates have “not rebounded . . . [or] kept pace with the demographic changes among California’s graduating high-school population.” President and Chancellors Brief 14. Since Proposition 209 took effect, the university has spent over a half-billion dollars on programs and policies designed to increase diversity. Phillips, supra, at A3. Still, it has been unable to meet its diversity goals. Ibid. Proposition 209, it says, has “ ‘completely changed the character’ of the university.” Ibid. (quoting the Associate President and Chief Policy Advisor of the University of California). B      These statistics may not influence the views of some of my colleagues, as they question the wisdom of adopting race-sensitive admissions policies and would prefer if our Nation’s colleges and universities were to discard those policies altogether. See ante, at 2 (Roberts, C. J., concurring) (suggesting that race-sensitive admissions policies might “do more harm than good”); ante, at 9, n. 6 (Scalia, J., concurring in judgment); Grutter, 539 U. S., at 371–373 (Thomas, J., concurring in part and dissenting in part); id., at 347–348 (Scalia, J., concurring in part and dissenting in part). That view is at odds with our recognition in Grutter, and more recently in Fisher v. University of Texas at Austin, 570 U. S. ___ (2013), that race-sensitive admissions policies are necessary to achieve a diverse student body when race-neutral alternatives have failed. More fundamentally, it ignores the importance of diversity in institutions of higher education and reveals how little my colleagues understand about the reality of race in America.      This Court has recognized that diversity in education is paramount. With good reason. Diversity ensures that the next generation moves beyond the stereotypes, the assumptions, and the superficial perceptions that students coming from less-heterogeneous communities may harbor, consciously or not, about people who do not look like them. Recognizing the need for diversity acknowledges that, “[j]ust as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters.” Grutter, 539 U. S., at 333. And it acknowledges that “to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.” Id., at 332.      Colleges and universities must be free to prioritize the goal of diversity. They must be free to immerse their students in a multiracial environment that fosters frequent and meaningful interactions with students of other races, and thereby pushes such students to transcend any assumptions they may hold on the basis of skin color. Without race-sensitive admissions policies, this might well be impossible. The statistics I have described make that fact glaringly obvious. We should not turn a blind eye to something we cannot help but see.      To be clear, I do not mean to suggest that the virtues of adopting race-sensitive admissions policies should inform the legal question before the Court today regarding the constitutionality of §26. But I cannot ignore the unfortunate outcome of today’s decision: Short of amending the State Constitution, a Herculean task, racial minorities in Michigan are deprived of even an opportunity to convince Michigan’s public colleges and universities to consider race in their admissions plans when other attempts to achieve racial diversity have proved unworkable, and those institutions are unnecessarily hobbled in their pursuit of a diverse student body. *  *  *      The Constitution does not protect racial minorities from political defeat. But neither does it give the majority free rein to erect selective barriers against racial minorities. The political-process doctrine polices the channels of change to ensure that the majority, when it wins, does so without rigging the rules of the game to ensure its success. Today, the Court discards that doctrine without good reason.      In doing so, it permits the decision of a majority of the voters in Michigan to strip Michigan’s elected university boards of their authority to make decisions with respect to constitutionally permissible race-sensitive admissions policies, while preserving the boards’ plenary authority to make all other educational decisions. “In a most direct sense, this implicates the judiciary’s special role in safeguarding the interests of those groups that are relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” Seattle, 458 U. S., at 486 (internal quotation marks omitted). The Court abdicates that role, permitting the majority to use its numerical advantage to change the rules mid-contest and forever stack the deck against racial minorities in Michigan. The result is that Michigan’s public colleges and universities are less equipped to do their part in ensuring that students of all races are “better prepare[d] . . . for an increasingly diverse workforce and society . . .” Grutter, 539 U. S., at 330 (internal quotation marks omitted).      Today’s decision eviscerates an important strand of our equal protection jurisprudence. For members of historically marginalized groups, which rely on the federal courts to protect their constitutional rights, the decision can hardly bolster hope for a vision of democracy that preserves for all the right to participate meaningfully and equally in self-government.      I respectfully dissent. Notes 1 I of course do not mean to suggest that Michigan’s voters acted with anything like the invidious intent, see n. 8, , of those who historically stymied the rights of racial minorities. Contra, at 18, n. 11 (, concurring in judgment). But like earlier chapters of political restructuring, the Michigan amendment at issue in this case changed the rules of the political process to the disadvantage of minor-ity members of our society. 2 Although the term “affirmative action” is commonly used to describe colleges’ and universities’ use of race in crafting admissions policies, I instead use the term “race-sensitive admissions policies.” Some comprehend the term “affirmative action” as connoting intentional preferential treatment based on race alone—for example, the use of a quota system, whereby a certain proportion of seats in an institution’s incoming class must be set aside for racial minorities; the use of a “points” system, whereby an institution accords a fixed numerical advantage to an applicant because of her race; or the admission of otherwise unqualified students to an institution solely on account of their race. None of this is an accurate description of the practices that public universities are permitted to adopt after this Court’s decision in v. , . There, we instructed that institutions of higher education could consider race in admissions in only a very limited way in an effort to create a diverse student body. To comport with , colleges and universities must use race flexibly, at 334, and must not maintain a quota, And even this limited sensitivity to race must be limited in time, at 341–343, and must be employed only after “serious, good faith consideration of workable race-neutral alternatives,” at 339. -compliant admissions plans, like the ones in place at Michigan’s institutions, are thus a far cry from affirmative action plans that confer preferential treatment intention-ally and solely on the basis of race. 3 In , the Court confronted an amendment to the California Constitution prohibiting state courts from mandating pupil assignments unless a federal court would be required to do so under the Equal Protection Clause. We upheld the amendment as nothing more than a repeal of existing legislation: The standard previously required by California went beyond what was federally required; the amendment merely moved the standard back to the federal baseline. The Court distinguished the amendment from the one in because it left the rules of the political game unchanged. Racial minorities in , unlike racial minorities in , could still appeal to their local school districts for relief. 4 accuses me of crafting my own version (or versions) of the racial-focus prong. See at 8–9, n. 4 (opinion concurring in judgment). I do not. I simply apply the test announced in : whether the policy in question “inures primarily to the benefit of the minority.” 458 U. S., at 472. ignores this analysis, see Part II–B–1, , and instead purports to identify three versions of the test that he thinks my opinion advances. The first—whether “ ‘the policy in question only a racial minority, ’ ” at 8, n. 4 (quoting at 5)—misunderstands the doctrine and misquotes my opinion. The racial-focus prong has never required a policy to benefit a minority group. The sentence from which appears to quote makes the altogether different point that the political-process doctrine is obviously not implicated in the first place by a restructuring that burdens members of society equally. This is the second prong of the political-process doctrine. See at 5 (explaining that the political-process doctrine is implicated “[w]hen the majority reconfigures the political process in a manner that burdens only a racial minority”). The second version—which asks whether a policy “benefits a racial minority,” at 8, n. 4—is the one articulated by the Court and, as I have explained, see at 15 and this page, it is easily met in this case. And the third—whether the policy has “the incidental effect” of benefitting racial minorities,” at 8–9, n. 4—is not a test I advance at all. 5 By stripping the governing boards of the authority to decide whether to adopt race-sensitive admissions policies, the majority removed the decision from bodies well suited to make that decision: boards engaged in the arguments on both sides of a matter, which deliberate andthen make and refine “considered judgment[s]” about racial diversity and admissions policies, see , 539 U. S., at 387 (, J., dissenting). 6 In the face of this overwhelming evidence, claims that it is actually easier, not harder, for minorities to effectuate change at the constitutional amendment level than at the board level. See at 11–12 (opinion concurring in judgment) (“voting in a favorable board (each of which has eight members) at the three major public universities requires electing by majority vote at least 15 different candidates, several of whom would be running during different election cycles”). This claim minimizes just how difficult it is to amend the State Constitution. See , at 18–20. It is also incorrect in its premise that minorities must elect an entirely new slate of board members in order to effectuate change at the board level. overlooks the fact that minorities need not elect any new board members in order to effect change; they may instead seek to persuade existing board members to adopt changes in their interests. 7 I do not take the position, as asserts, that the process of amending the Michigan Constitution is not a part of Michigan’s existing political process. See at 13–14 (opinion concurring in judgment). It clearly is. The problem with §26 is not that “amending Michigan’s Constitution is simply not a part of that State’s ‘existing political process.’ ” at 14. It is that §26 reconfigured the political process in Michigan such that it is now more difficult for racial minorities, and racial minorities alone, to achieve legislation in their interest. Section 26 elevated the issue of race-sensitive admissions policies,and not any other kinds of admissions policies, to a higher plane ofthe existing political process in Michigan: that of a constitutional amendment. 8 It certainly is fair to assume that some voters may have supported the amendment because of discriminatory animus. But others may have been motivated by their strong beliefs in the freedom of contract or the freedom to alienate property. Similarly, here, although some Michiganders may have voted for §26 out of racial animus, some may have been acting on a personal belief, like that of some of my colleagues today, that using race-sensitive admissions policies in higher education is unwise. The presence (or absence) of invidious discrimination has no place in the current analysis. That is the very purpose of the political-process doctrine; it operates irrespective of discriminatory intent, for it protects a process-based right. 9 The plurality relies on s dissent in to conclude that “one permissible reading of the record was that the school board had maintained policies to perpetuate racial segregation in the schools.” at 9–10. Remarkably, some Members of today’s plurality criticized ’s reading of the record in itself. See 551 U. S., at 736. 10 Under the bylaws of the University of Michigan’s Board of Regents, “[a]ny and all delegations of authority made at any time and from time to time by the board to any member of the university staff, or to any unit of the university may be revoked by the board at any time, and notice of such revocation shall be given in writing.” Bylaws §14.04, online at http://www.regents.umich.edu/bylaws. 11 Attempts by the majority to make it more difficult for the minority to exercise its right to vote are, sadly, not a thing of the past. See v. , 570 U. S. ___, ___ (2013) (slip op., at 15–17) ( dissenting) (describing recent examples of discriminatory changes to state voting laws, including a 1995 dual voter registration system in Mississippi to disfranchise black voters, a 2000 redistricting plan in Georgia to decrease black voting strength, and a 2003 proposal to change the voting mechanism for school board elections in South Carolina). Until this Court’s decision last Term in , the preclearance requirement of §5 of the Voting Rights Act of 1965 blocked those and many other discriminatory changes to voting procedures. 12 Preserving the right to participate meaningfully and equally in the process of government is especially important with respect to education policy. I do not mean to suggest that “the constitutionality of laws forbidding racial preferences depends on the policy interest at stake.” , at 14–15 (plurality opinion). I note only that we have long recognized that “ ‘education . . . is the very foundation of good citizenship.’ ” , 539 U. S., at 331 (quoting v. , ). Our Nation’s colleges and universities “represent the training ground for a large number of our Nation’s leaders,” and so there is special reason to safeguard the guarantee “ ‘that public institutions are open and available to all segments of American society, including people of all races and ethnicities.’ ” 539 U. S., at 331–332. 13 The Court invalidated Amendment 2 on the basis that it lacked any rational relationship to a legitimate end. It concluded that the amendment “impose[d] a broad and undifferentiated disability on a single named group,” and was “so discontinuous with the reasons offered for it that [it] seem[ed] inexplicable by anything but animus toward the class it affect[ed].” , 517 U. S., at 632 14 The plurality raises another concern with respect to precedent. It points to decisions by the California Supreme Court and the United States Court of Appeals for the Ninth Circuit upholding as constitutional Proposition 209, a California constitutional amendment identical in substance to §26. , at 14. The plurality notes that if we were to affirm the lower court’s decision in this case, “those holdings would be invalidated . . . .” I fail to see the significance. We routinely resolve conflicts between lower courts; the necessary result, of course, is that decisions of courts on one side of the debate are invalidated or called into question. I am unaware of a single instance where that (inevitable) fact influenced the Court’s decision one way or the other. Had the lower courts proceeded in opposite fashion—had the California Supreme Court and Ninth Circuit invalidated Proposition 209 and the Sixth Circuit upheld §26—would the plurality come out the other way? 15 In 1973, the Law School graduated 41 black students (out of a class of 446) and the first Latino student in its history. App. in v. , O. T. 2002, No. 02–241, p. 204. In 1976, it graduated its first Native American student. On the whole, during the 1970’s, the Law School graduated 262 black students, compared to 9 in the previous decade, along with 41 Latino students. 16 These percentages include enrollment statistics for black students, Hispanic students, Native American students, and students who identify as members of two or more underrepresented minority groups. 17 This chart is reproduced from Fessenden and Keller, How Minorities Have Fared in States with Affirmative Action Bans, N. Y. Times, June 24, 2013, online at http://www.nytimes.com/interactive/2013/06/24/us/affirmative-action-bans.html. 18 19 20 This chart is reproduced from Phillips, Colleges Straining to Restore Diversity: Bans on Race-Conscious Admissions Upend Racial Makeup at California Schools, Wall Street Journal, Mar. 7, 2014, p. A3.

The Supreme Court of the United States reviewed the constitutionality of a Michigan state constitutional amendment (Proposal 2) that prohibited state universities from considering race in admissions decisions. The Court found that the amendment did not violate the Equal Protection Clause of the Fourteenth Amendment, overturning the Sixth Circuit Court of Appeals' decision. The Court's decision affirmed the validity of similar amendments in other states, such as California's Proposition 209. The Court's ruling highlighted the importance of public education and the role of universities in fostering diverse leadership, but ultimately concluded that the Michigan amendment did not impose a burden on racial minorities with respect to the educational benefits afforded by the university. The Court also noted the significant increase in minority enrollment and graduation rates at the university post-Proposal 2, underscoring the amendment's positive impact on minority groups.

Immigration & National Security

Yick Wo v. Hopkins

https://supreme.justia.com/cases/federal/us/118/356/

U.S. Supreme Court Yick Wo v. Hopkins, 118 U.S. 356 (1886) Yick Wo v. Hopkins Submitted April 14, 1886 Decided May 10, 1886 118 U.S. 356 APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA Syllabus In a suit brought to this court from a State court which involves the constitutionality of ordinances made by a municipal corporation in the State, this court will, when necessary, put its own independent construction upon the ordinances. A municipal ordinance to regulate the carrying on of public laundries within the limits of the municipality violates the provisions of the Constitution of the United States if it confers upon the municipal authorities arbitrary power, at their own will, and without regard to discretion in the legal sense of the term, to give or withhold consent as to persons or places, without regard to the competency of the persons applying, or the propriety of the place selected, for the carrying on of the business. An administration of a municipal ordinance for the carrying on of a lawful business within the corporate limits violates the provisions of the Constitution of the United States if it makes arbitrary and unjust discriminations, founded on differences of race between persons otherwise in similar circumstances. The guarantees of protection contained in the Fourteenth Amendment to the Constitution extend to all persons within the territorial jurisdiction of the United States, without regard to differences of race, of color, or of nationality. Those subjects of the Emperor of China who have the right to temporarily or permanently reside within the United States, are entitled to enjoy the protection guaranteed by the Constitution and afforded by the laws. These two cases were argued as one, and depended upon precisely the same state of facts; the first coming here upon a writ of error to the Supreme Court of the State of California, the second on appeal from the Circuit Court of the United States for that district. The plaintiff in error, Yick Wo, on August 4, 1885, petitioned the Supreme Court of California for a writ of habeas corpus, alleging that he was illegally deprived of his personal Page 118 U. S. 357 liberty by the defendant as sheriff of the city and county of San Francisco. The sheriff made return to the writ that he held the petitioner in custody by virtue of a sentence of the Police Judges Court, No. 2, of the city and county of San Francisco, whereby he was found guilty of a violation of certain ordinances of the board of supervisors of that county, and adjudged to pay a fine of $10, and, in default of payment, be imprisoned in the county jail at the rate of one day for each dollar of fine until said fine should be satisfied, and a commitment in consequence of nonpayment of said fine. The ordinances for the violation of which he had been found guilty were set out as follows: Order No. 156, passed May 26, 1880, prescribing the kind of buildings in which laundries may be located. "The people of the city and county of San Francisco do ordain as follows:" "SEC. 1. It shall be unlawful, from and after the passage of this order, for any person or persons to establish, maintain, or carry on a laundry within the corporate limits of the city and county of San Francisco without having first obtained the consent of the board of supervisors, except the same be located in a building constructed either of brick or stone." "SEC. 2. It shall be unlawful for any person to erect, build, or maintain, or cause to be erected, built, or maintained, over or upon the roof of any building now erected or which may hereafter be erected within the limits of said city and county, any scaffolding without first obtaining the written permission of the board of supervisors, which permit shall state fully for what purpose said scaffolding is to be erected and used, and such scaffolding shall not be used for any other purpose than that designated in such permit." "SEC. 3. Any person who shall violate any of the provisions of this order shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than one thousand dollars, or by imprisonment in the county jail not more than six months, or by both such fine and imprisonment. " Page 118 U. S. 358 Order No. 1587, passed July 28, 1880, the following section: "SEC. 68. It shall be unlawful, from and after the passage of this order, for any person or persons to establish, maintain, or carry on a laundry within the corporate limits of the city and county of San Francisco without having first obtained the consent of the board of supervisors, except the same be located in a building constructed either of brick or stone." The following facts were also admitted on the record: that petitioner is a native of China and came to California in 1861, and is still a subject of the Emperor of China; that he has been engaged in the laundry business in the same premises and building for twenty-two years last past; that he had a license from the board of fire wardens, dated March 3, 1884, from which it appeared "that the above described premises have been inspected by the board of fire wardens, and upon such inspection said board found all proper arrangements for carrying on the business; that the stoves, washing and drying apparatus, and the appliances for heating smoothing irons are in good condition, and that their use is not dangerous to the surrounding property from fire, and that all proper precautions have been taken to comply with the provisions of order No. 1617, defining 'the fire limits of the city and county of San Francisco and making regulations concerning the erection and use of buildings in said city and county,' and of order No. 1670, 'prohibiting the kindling, maintenance, and use of open fires in houses;' that he had a certificate from the health officer that the same premises had been inspected by him, and that he found that they were properly and sufficiently drained, and that all proper arrangements for carrying on the business of a laundry, without injury to the sanitary condition of the neighborhood, had been complied with; that the city license of the petitioner was in force and expired October 1st, 1885, and that the petitioner applied to the board of supervisors, June 1st, 1885, for consent of said board to maintain and carry on his laundry, but that said board, on July 1st, 1885, refused said consent." It is also admitted to be true, as alleged in the petition, that, on February 24, 1880, "there were about 320 laundries in the city and county of San Francisco, of which Page 118 U. S. 359 about 240 were owned and conducted by subjects of China, and of the whole number, viz., 320, about 310 were constructed of wood, the same material that constitutes nine-tenths of the houses in the city of San Francisco. The capital thus invested by the subjects of China was not less than two hundred thousand dollars, and they paid annually for rent, license, taxes, gas, and water about one hundred and eighty thousand dollars." It was alleged in the petition, that "your petitioner and more than one hundred and fifty of his countrymen have been arrested upon the charge of carrying on business without having such special consent, while those who are not subjects of China, and who are conducting eighty odd laundries under similar conditions, are left unmolested and free to enjoy the enhanced trade and profits arising from this hurtful and unfair discrimination. The business of your petitioner, and of those of his countrymen similarly situated, is greatly impaired, and in many cases practically ruined, by this system of oppression to one kind of men and favoritism to all others." The statement therein contained as to the arrest, &c., was admitted to be true, with the qualification only that the eighty odd laundries referred to are in wooden buildings without scaffolds on the roofs. It was also admitted "that petitioner and 200 of his countrymen similarly situated petitioned the board of supervisors for permission to continue their business in the various houses which they had been occupying and using for laundries for more than twenty years, and such petitions were denied, and all the petitions of those who were not Chinese, with one exception of Mrs. Mary Meagles, were granted." By section 2 of article I of the Constitution of California, it is provided that "any county, city town, or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws." By section 74 of the Act of April 19, 1856, usually known as the consolidation act, the board of supervisors is empowered, among other things, "to provide by regulation for the prevention and summary removal of nuisances to public health, the Page 118 U. S. 360 prevention of contagious diseases; . . . to prohibit the erection of wooden buildings within any fixed limits where the streets shall have been established and graded; . . . to regulate the sale, storage, and use of gunpowder or other explosive or combustible materials and substances, and make all needful regulations for protection against fire; to make such regulations concerning the erection and use of buildings as may be necessary for the safety of the inhabitants." The Supreme Court of California, in the opinion pronouncing the judgment in this case, said: "The board of supervisors, under the several statutes conferring authority upon them, has the power to prohibit or regulate all occupations which are against good morals, contrary to public order and decency, or dangerous to the public safety. Clothes washing is certainly not opposed to good morals or subversive of public order or decency, but, when conducted in given localities, it may be highly dangerous to the public safety. Of this fact, the supervisors are made the judges, and, having taken action in the premises, we do not find that they have prohibited the establishment of laundries, but that they have, as they well might do, regulated the places at which they should be established, the character of the buildings in which they are to be maintained, etc. The process of washing is not prohibited by thus regulating the places at which and the surroundings by which it must be exercised. The order No. 1569 and section 68 of order No. 1587 are not in contravention of common right or unjust, unequal, partial, or oppressive in such sense as authorizes us in this proceeding to pronounce them invalid." After answering the position taken in behalf of the petitioner, that the ordinances in question had been repealed, the court added: "We have not deemed it necessary to discuss the question in the light of supposed infringement of petitioner's rights under the Constitution of the United States, for the reason that we think the principles upon which contention on that head can be based have in effect been set at rest by the cases of Barbier v. Connolly, 113 U. S. 27 , and Soon Hing v. Crowley, 113 U. S. 703 ." The writ was accordingly discharged, and the prisoner remanded. Page 118 U. S. 361 In the other case, the appellant, Wo Lee, petitioned for his discharge from an alleged illegal imprisonment upon a state of facts shown upon the record precisely similar to that in the case of Yick Wo. In disposing of the application, the learned Circuit Judge, Sawyer, in his opinion, 26 Fed.Rep. 471, after quoting the ordinance in question, proceeded at length as follows: "Thus, in a territory some ten miles wide by fifteen or more miles long, much of it still occupied as mere farming and pasturage lands and much of it unoccupied sand banks, in many places without a building within a quarter or half a mile of each other, including the isolated and almost wholly unoccupied Goat Island, the right to carry on this, when properly guarded, harmless and necessary occupation, in a wooden building is not made to depend upon any prescribed conditions giving a right to anybody complying with them, but upon the consent or arbitrary will of the board of supervisors. In three-fourths of the territory covered by the ordinance, there is no more need of prohibiting or regulating laundries than if they were located in any portion of the farming regions of the State. Hitherto, the regulation of laundries has been limited to the thickly settled portions of the city. Why this unnecessary extension of the limits affected, if not designed to prevent the establishment of laundries, after a compulsory removal from their present locations, within practicable reach of the customers or their proprietors? And the uncontradicted petition shows that all Chinese applications are, in fact, denied, and those of Caucasians granted -- thus, in fact, making the discriminations in the administration of the ordinance, which its terms permit. The fact that the right to give consent is reserved in the ordinance shows that carrying on the laundry business in wooden buildings is not deemed, of itself, necessarily dangerous. It must be apparent to every well informed mind that a fire, properly guarded, for laundry purposes, in a wooden building, is just as necessary, and no more dangerous, than a fire for cooking purposes or for warming a house. If the ordinance under consideration is valid, then the board of supervisors can pass a valid ordinance preventing the maintenance, in a wooden Page 118 U. S. 362 building, of a cooking stove, heating apparatus, or a restaurant, within the boundaries of the city and county of San Francisco, without the consent of that body, arbitrarily given or withheld, as their prejudices or other motives may dictate. If it is competent for the board of supervisors to pass a valid ordinance prohibiting the inhabitants of San Francisco from following any ordinary, proper, and necessary calling within the limits of the city and county except at its arbitrary and unregulated discretion and special consent, and it can do so if this ordinance is valid, then it seems to us that there has been a wide departure from the principles that have heretofore been supposed to guard and protect the rights, property, and liberties of the American people. And if, by an ordinance, general in its terms and form like the one in question, by reserving an arbitrary discretion in the enacting body to grant or deny permission to engage in a proper and necessary calling, a discrimination against any class can be made in its execution, thereby evading and, in effect, nullifying the provisions of the National Constitution, then the insertion of " brk: provisions to guard the rights of every class and person in that instrument was a vain and futile act. The effect of the execution of this ordinance in the manner indicated in the record would seem to be necessarily to close up the many Chinese laundries now existing, or compel their owners to pull down their present buildings and reconstruct of brick or stone, or to drive them outside the city and county of San Francisco to the adjoining counties, beyond the convenient reach of customers, either of which results would be little short of absolute confiscation of the large amount of property shown to be now, and to have been for a long time, invested in these occupations. If this would not be depriving such parties of their property without due process of law, it would be difficult to say what would effect that prohibited result. The necessary tendency, if not the specific purpose, of this ordinance, and of enforcing it in the manner indicated in the record, is to drive out of business all the numerous small laundries, especially those owned by Chinese, and give a monopoly of the business to the large institutions established and carried on by means of large associated Caucasian capital. If the facts appearing on the face Page 118 U. S. 363 of the ordinance, on the petition and return, and admitted in the case and shown by the notorious public and municipal history of the times indicate a purpose to drive out the Chinese laundrymen, and not merely to regulate the business for the public safety, does it not disclose a case of violation of the provisions of the Fourteenth Amendment to the National Constitution, and of the treaty between the United States and China, in more than one particular? . . . If this means prohibition of the occupation and destruction of the business and property of the Chinese laundrymen in San Francisco -- and it seems to us this must be the effect of executing the ordinance -- and not merely the proper regulation of the business, then there is discrimination and a violation of other highly important rights secured by the Fourteenth Amendment and the treaty. That it does mean prohibition as to the Chinese it seems to us must be apparent to every citizen of San Francisco who has been here long enough to be familiar with the cause of an active and aggressive branch of public opinion and of public notorious events. Can a court be blind to what must be necessarily known to every intelligent person in the State? See Ah Kow v. Nunan, 5 Sawyer, 552, 560; Sparrow v. Strong , 3 Wall. 97, 70 U. S. 104 ; Brown v. Piper, 91 U. S. 37 , 91 U. S. 42 . But, in deference to the decision of the Supreme Court of California in the case of Yick Wo, and contrary to his own opinion as thus expressed, the circuit judge discharged the writ and remanded the prisoner. Page 118 U. S. 365 Mr. JUSTICE MATTHEWS delivered the opinion of the court. In the case of the petitioner, brought here by writ of error to the Supreme Court of California, our jurisdiction is limited to the question whether the plaintiff in error has been denied a right in violation of the Constitution, laws, or treaties of the United States. The question whether his imprisonment is illegal under the constitution and lass of the State is not open to us. And although that question might have been considered Page 118 U. S. 366 in the Circuit Court in the application made to it, and by this court on appeal from its order, yet judicial propriety is best consulted by accepting the judgment of the State court upon the points involved in that inquiry. That, however, does not preclude this court from putting upon the ordinances of the supervisors of the county and city of San Francisco an independent construction, for the determination of the question whether the proceedings under these ordinances and in enforcement of them are in conflict with the Constitution and laws of the United States necessarily involves the meaning of the ordinance, which, for that purpose, we are required to ascertain and adjudge. We are consequently constrained, at the outset, to differ from the Supreme Court of California upon the real meaning of the ordinances in question. That court considered these ordinances as vesting in the board of supervisors a not unusual discretion in granting or withholding their assent to the use of wooden buildings as laundries, to be exercised in reference to the circumstances of each case with a view to the protection of the public against the dangers of fire. We are not able to concur in that interpretation of the power conferred upon the supervisors. There is nothing in the ordinances which points to such a regulation of the business of keeping and conducting laundries. They seem intended to confer, and actually do confer, not a discretion to be exercised upon a consideration of the circumstances of each case, but a naked and arbitrary power to give or withhold consent not only as to places, but as to persons. So that, if an applicant for such consent, being in every way a competent and qualified person and having complied with every reasonable condition demanded by any public interest, should, failing to obtain the requisite consent of the supervisors to the prosecution of his business, apply for redress by the judicial process of mandamus to require the supervisors to consider and act upon his case, it would be a sufficient answer for them to say that the law had conferred upon them authority to withhold their assent without reason and without responsibility. The power given to them is not confided to their discretion in the legal sense of that term, but is granted Page 118 U. S. 367 to their mere will. It is purely arbitrary, and acknowledges neither guidance nor restraint. This erroneous view of the ordinances in question led the Supreme Court of California into the further error of holding that they were justified by the decisions of this court in the cases of Barbier v. Connolly, 113 U. S. 27 , and Soon Hing v. Crowley, 113 U. S. 703 . In both of these cases, the ordinance involved was simply a prohibition to carry on the washing and ironing of clothes in public laundries and washhouses within certain prescribed limits of the city and county of San Francisco from ten o'clock at night until six o'clock in the morning of the following day. This provision was held to be purely a police regulation within the competency of any municipality possessed of the ordinary powers belonging to such bodies, a necessary measure of precaution in a city composed largely of wooden buildings like San Francisco, in the application of which there was no invidious discrimination against anyone within the prescribed limits, all persons engaged in the same business being treated alike, and subject to the same restrictions and entitled to the same privileges under similar conditions. For these reasons, that ordinance was adjudged not to be within the prohibitions of the Fourteenth Amendment to the Constitution of the United States, which, it was said in the first case cited, "undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of anyone except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition; and that, in the administration of criminal justice no different or higher punishment should be imposed upon Page 118 U. S. 368 one than such as is prescribed to all for like offences. . . . Class legislation, discriminating against some and favoring others, is prohibited, but legislation which, in carrying out a public purpose, is limited in its application if, within the sphere of its operation, it affects alike all persons similarly situated, is not within the amendment." The ordinance drawn in question in the present case is of a very different character. It does not prescribe a rule and conditions for the regulation of the use of property for laundry purposes to which all similarly situated may conform. It allows without restriction the use for such purposes of buildings of brick or stone, but, as to wooden buildings, constituting nearly all those in previous use, it divides the owners or occupiers into two classes, not having respect to their personal character and qualifications for the business, nor the situation and nature and adaptation of the buildings themselves, but merely by an arbitrary line, on one side of which are those who are permitted to pursue their industry by the mere will and consent of the supervisors, and on the other those from whom that consent is withheld at their mere will and pleasure. And both classes are alike only in this, that they are tenants at will, under the supervisors, of their means of living. The ordinance, therefore, also differs from the not unusual case where discretion is lodged by law in public officers or bodies to grant or withhold licenses to keep taverns, or places for the sale of spirituous liquors, and the like, when one of the conditions is that the applicant shall be a fit person for the exercise of the privilege, because, in such cases, the fact of fitness is submitted to the judgment of the officer, and calls for the exercise of a discretion of a judicial nature. The rights of the petitioners, as affected by the proceedings of which they complain, are not less because they are aliens and subjects of the Emperor of China. By the third article of the treaty between this Government and that of China, concluded November 17, 1880, 22 Stat. 827, it is stipulated: "If Chinese laborers, or Chinese of any other class, now either permanently or temporarily residing in the territory of the United States, meet with ill treatment at the hands of any other persons, Page 118 U. S. 369 the Government of the United States will exert all its powers to devise measures for their protection, and to secure to them the same rights, privileges, immunities and exemptions as may be enjoyed by the citizens or subjects of the most favored nation, and to which they are entitled by treaty." The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: "Nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." These provisions are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality, and the equal protection of the laws is a pledge of the protection of equal laws. It is accordingly enacted by § 1977 of the Revised Statutes, that "all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other." The questions we have to consider and decide in these cases, therefore, are to be treated as invoking the rights of every citizen of the United States equally with those of the strangers and aliens who now invoke the jurisdiction of the court. It is contended on the part of the petitioners that the ordinances for violations of which they are severally sentenced to imprisonment are void on their face as being within the prohibitions of the Fourteenth Amendment, and, in the alternative, if not so, that they are void by reason of their administration, operating unequally so as to punish in the present petitioners what is permitted to others as lawful, without any distinction of circumstances -- an unjust and illegal discrimination, it is claimed, which, though not made expressly by the ordinances, is made possible by them. When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed Page 118 U. S. 370 to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but, in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true that there must always be lodged somewhere, and in some person or body, the authority of final decision, and in many cases of mere administration, the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the commonwealth "may be a government of laws, and not of men." For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life at the mere will of another seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself. There are many illustrations that might be given of this truth, which would make manifest that it was self-evident in the light of our system of jurisprudence. The case of the political franchise of voting is one. Though not regarded strictly as a natural right, but as a privilege merely conceded by society according to its will under certain conditions, nevertheless it is regarded as a fundamental political right, because preservative of all rights. In reference to that right, it was declared by the Supreme Judicial Court of Massachusetts, in Capen v. Foster, 12 Pick. 485, 489, in the words of Chief Justice Shaw, "that, in all Page 118 U. S. 371 cases where the constitution has conferred a political right or privilege, and where the constitution has not particularly designated the manner in which that right is to be exercised, it is clearly within the just and constitutional limits of the legislative power to adopt any reasonable and uniform regulations, in regard to the time and mode of exercising that right, which are designed to secure and facilitate the exercise of such right, in a prompt, orderly, and convenient manner;" nevertheless, "such a construction would afford no warrant for such an exercise of legislative power as, under the pretence and color of regulating, should subvert or injuriously restrain the right itself." It has accordingly been held generally in the States that, whether the particular provisions of an act of legislation establishing means for ascertaining the qualifications of those entitled to vote, and making previous registration in lists of such, a condition precedent to the exercise of the right were or were not reasonable regulations, and accordingly valid or void, was always open to inquiry as a judicial question. See Daggett v. Hudson, 1 Western Reporter 9, decided by the Supreme Court of Ohio, where many of the cases are collected; Monroe v. Collins, 17 Ohio St. 665. The same principle has been more freely extended to the quasi -legislative acts of inferior municipal bodies, in respect to which it is an ancient jurisdiction of judicial tribunals to pronounce upon the reasonableness and consequent validity of their by laws. In respect to these, it was the doctrine that every bylaw must be reasonable, not inconsistent with the charter of the corporation, nor with any statute of Parliament, nor with the general principles of the common law of the land, particularly those having relation to the liberty of the subject or the rights of private property. Dillon on Municipal Corporations, 3d ed., § 319, and cases cited in notes. Accordingly, in the case of The State of Ohio ex rel. &c. v. The Cincinnati Gas-Light and Coke Company, 18 Ohio St. 232, 300, an ordinance of the city council purporting to fix the price to be charged for gas, under an authority of law giving discretionary power to do so, was held to be bad, if passed in bad faith, fixing an unreasonable price, for the fraudulent purpose of compelling Page 118 U. S. 372 the gas company to submit to an unfair appraisement of their works. And a similar question, very pertinent to the one in the present cases, was decided by the Court of Appeals of Maryland in the case of the City of Baltimore v. Radecke, 49 Maryland 217. In that case, the defendant had erected and used a steam engine in the prosecution of his business as a carpenter and box-maker in the city of Baltimore, under a permit from the mayor and city council, which contained a condition that the engine was "to be removed after six months' notice to that effect from the mayor." After such notice and refusal to conform to it, a suit was instituted to recover the penalty provided by the ordinance, to restrain the prosecution of which a bill in equity was filed. The court holding the opinion that "there may be a case in which an ordinance, passed under grants of power like those we have cited, is so clearly unreasonable, so arbitrary, oppressive, or partial, as to raise the presumption that the legislature never intended to confer the power to pass it, and to justify the courts in interfering and setting it aside as a plain abuse of authority," it proceeds to speak, with regard to the ordinance in question, in relation to the use of steam engines, as follows: "It does not profess to prescribe regulations for their construction, location, or use, nor require such precautions and safeguards to be provided by those who own and use them as are best calculated to render them less dangerous to life and property, nor does it restrain their use in box factories and other similar establishments within certain defined limits, nor in any other way attempt to promote their safety and security without destroying their usefulness. But it commits to the unrestrained will of a single public officer the power to notify every person who now employs a steam engine in the prosecution of any business in the city of Baltimore to cease to do so, and, by providing compulsory fines for every day's disobedience of such notice and order of removal, renders his power over the use of steam in that city practically absolute, so that he may prohibit its use altogether. But if he should not choose to do this, but only to act in particular cases, there is nothing in the ordinance to guide or control his action. It lays down no Page 118 U. S. 373 rules by which its impartial execution can be secured or partiality and oppression prevented. It is clear that giving and enforcing these notices may, and quite likely will, bring ruin to the business of those against whom they are directed, while others, from whom they are withheld, may be actually benefited by what is thus done to their neighbors; and, when we remember that this action or nonaction may proceed from emnity or prejudice, from partisan zeal or animosity, from favoritism and other improper influences and motives easy of concealment and difficult to be detected and exposed, it becomes unnecessary to suggest or to comment upon the injustice capable of being brought under cover of such a power, for that becomes apparent to everyone who gives to the subject a moment's consideration. In fact, an ordinance which clothes a single individual with such power hardly falls within the domain of law, and we are constrained to pronounce it inoperative and void." This conclusion, and the reasoning on which it is based, are deductions from the face of the ordinance, as to its necessary tendency and ultimate actual operation. In the present cases, we are not obliged to reason from the probable to the actual, and pass upon the validity of the ordinances complained of, as tried merely by the opportunities which their terms afford, of unequal and unjust discrimination in their administration. For the cases present the ordinances in actual operation, and the facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion that, whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities charged with their administration, and thus representing the State itself, with a mind so unequal and oppressive as to amount to a practical denial by the State of that equal protection of the laws which is secured to the petitioners, as to all other persons, by the broad and benign provisions of the Fourteenth Amendment to the Constitution of the United States. Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal Page 118 U. S. 374 hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution. This principle of interpretation has been sanctioned by this court in Henderson v. Mayor of New York, 92 U. S. 259 ; Chy Lung v. Freeman, 92 U. S. 275 ; Ex parte Virginia, 100 U. S. 339 ; Neal v. Delaware, 103 U. S. 370 , and S Soon Hing v. Crowley, 113 U. S. 703 . The present cases, as shown by the facts disclosed in the record, are within this class. It appears that both petitioners have complied with every requisite deemed by the law or by the public officers charged with its administration necessary for the protection of neighboring property from fire or as a precaution against injury to the public health. No reason whatever, except the will of the supervisors, is assigned why they should not be permitted to carry on, in the accustomed manner, their harmless and useful occupation, on which they depend for a livelihood. And while this consent of the supervisors is withheld from them and from two hundred others who have also petitioned, all of whom happen to be Chinese subjects, eighty others, not Chinese subjects, are permitted to carry on the same business under similar conditions. The fact of this discrimination is admitted. No reason for it is shown, and the conclusion cannot be resisted that no reason for it exists except hostility to the race and nationality to which the petitioners belong, and which, in the eye of the law, is not justified. The discrimination is, therefore, illegal, and the public administration which enforces it is a denial of the equal protection of the laws and a violation of the Fourteenth Amendment of the Constitution. The imprisonment of the petitioners is, therefore, illegal, and they must be discharged. To this end, The judgment of the Supreme Court of California in the case of Yick Wo, and that of the Circuit Court of the United States for the District of California in the case of Wo Lee, are severally reversed, and the cases remanded, each to the proper court, with directions to discharge the petitioners from custody and imprisonment.

Here is a summary of the key points from the case: - Yick Wo v. Hopkins was a landmark Supreme Court case that dealt with racial discrimination and equal protection under the law. - The case involved two Chinese immigrants, Yick Wo and Wo Lee, who were denied business licenses to operate their laundries in San Francisco due to discriminatory city ordinances. - The Supreme Court held that the administration of the ordinances violated the Fourteenth Amendment's guarantee of equal protection under the law, as it made arbitrary and unjust discriminations based on race. - The Court found that the ordinances were applied with "an evil eye and an unequal hand," resulting in illegal discrimination against Chinese subjects. - The Court emphasized that the protections of the Fourteenth Amendment extend to all persons within the territorial jurisdiction of the United States, regardless of race, color, or nationality. - As a result, the Court reversed the lower court decisions and ordered the petitioners to be discharged from custody. This case set an important precedent for equal protection jurisprudence and established that discriminatory administration of laws, even if fair on their face, can violate the Constitution.

Gun Rights

New York State Rifle & Pistol Association, Inc. v. Bruen

https://supreme.justia.com/cases/federal/us/597/20-843/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 20–843 _________________ New York State Rifle & Pistol Association, Inc., et al., PETITIONERS v. Kevin P. Bruen, in his official capacity as Superintendent of New York State Police, et al. on writ of certiorari to the united states court of appeals for the second circuit [June 23, 2022] Justice Thomas delivered the opinion of the Court. In District of Columbia v. Heller , 554 U.S. 570 (2008), and McDonald v. Chicago , 561 U.S. 742 (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense. We too agree, and now hold, consistent with Heller and McDonald , that the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home. The parties nevertheless dispute whether New York’s licensing regime respects the constitutional right to carry handguns publicly for self-defense. In 43 States, the government issues licenses to carry based on objective criteria. But in six States, including New York, the government further conditions issuance of a license to carry on a citizen’s showing of some additional special need. Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution. I A New York State has regulated the public carry of handguns at least since the early 20th century. In 1905, New York made it a misdemeanor for anyone over the age of 16 to “have or carry concealed upon his person in any city or village of [New York], any pistol, revolver or other firearm without a written license . . . issued to him by a police magistrate.” 1905 N. Y. Laws ch. 92, §2, pp. 129–130; see also 1908 N. Y. Laws ch. 93, §1, pp. 242–243 (allowing justices of the peace to issue licenses). In 1911, New York’s “Sullivan Law” expanded the State’s criminal prohibition to the possession of all handguns—concealed or otherwise—without a government-issued license. See 1911 N. Y. Laws ch. 195, §1, p. 443. New York later amended the Sullivan Law to clarify the licensing standard: Magistrates could “issue to [a] person a license to have and carry concealed a pistol or revolver without regard to employment or place of possessing such weapon” only if that person proved “good moral character” and “proper cause.” 1913 N. Y. Laws ch. 608, §1, p. 1629. Today’s licensing scheme largely tracks that of the early 1900s. It is a crime in New York to possess “any firearm” without a license, whether inside or outside the home, punishable by up to four years in prison or a $5,000 fine for a felony offense, and one year in prison or a $1,000 fine for a misdemeanor. See N. Y. Penal Law Ann. §§265.01–b (West 2017), 261.01(1) (West Cum. Supp. 2022), 70.00(2)(e) and (3)(b), 80.00(1)(a) (West 2021), 70.15(1), 80.05(1). Meanwhile, possessing a loaded firearm outside one’s home or place of business without a license is a felony punishable by up to 15 years in prison. §§265.03(3) (West 2017), 70.00(2)(c) and (3)(b), 80.00(1)(a). A license applicant who wants to possess a firearm at home (or in his place of business) must convince a “licensing officer”—usually a judge or law enforcement officer—that, among other things, he is of good moral character, has no history of crime or mental illness, and that “no good cause exists for the denial of the license.” §§400.00(1)(a)–(n) (West Cum. Supp. 2022). If he wants to carry a firearm outside his home or place of business for self-defense, the applicant must obtain an unrestricted license to “have and carry” a concealed “pistol or revolver.” §400.00(2)(f ). To secure that license, the applicant must prove that “proper cause exists” to issue it. Ibid. If an applicant cannot make that showing, he can receive only a “restricted” license for public carry, which allows him to carry a firearm for a limited purpose, such as hunting, target shooting, or employment. See, e.g. , In re O’Brien , 87 N.Y.2d 436 , 438–439, 663 N.E.2d 316 , 316–317 (1996); Babernitz v. Police Dept. of City of New York , 65 App. Div. 2d 320, 324, 411 N.Y.S.2d 309, 311 (1978); In re O’Connor , 154 Misc. 2d 694, 696–698, 585 N.Y.S.2d 1000, 1003 (Westchester Cty. 1992). No New York statute defines “proper cause.” But New York courts have held that an applicant shows proper cause only if he can “demonstrate a special need for self-protection distinguishable from that of the general community.” E.g. , In re Klenosky , 75 App. Div. 2d 793, 428 N.Y.S.2d 256, 257 (1980). This “special need” standard is demanding. For example, living or working in an area “ ‘noted for criminal activity’ ” does not suffice. In re Bernstein , 85 App. Div. 2d 574, 445 N.Y.S.2d 716, 717 (1981). Rather, New York courts generally require evidence “of particular threats, attacks or other extraordinary danger to personal safety.” In re Martinek , 294 App. Div. 2d 221, 222, 743 N.Y.S.2d 80, 81 (2002); see also In re Kaplan , 249 App. Div. 2d 199, 201, 673 N.Y.S.2d 66, 68 (1998) (approving the New York City Police Department’s requirement of “ ‘extraordinary personal danger, documented by proof of recurrent threats to life or safety’ ” (quoting 38 N. Y. C. R. R. §5–03(b))). When a licensing officer denies an application, judicial review is limited. New York courts defer to an officer’s application of the proper-cause standard unless it is “arbitrary and capricious.” In re Bando , 290 App. Div. 2d 691, 692, 735 N.Y.S.2d 660, 661 (2002). In other words, the decision “must be upheld if the record shows a rational basis for it.” Kaplan , 249 App. Div. 2d, at 201, 673 N. Y. S. 2d, at 68. The rule leaves applicants little recourse if their local licensing officer denies a permit. New York is not alone in requiring a permit to carry a handgun in public. But the vast majority of States—43 by our count—are “shall issue” jurisdictions, where authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements, without granting licensing officials discretion to deny licenses based on a perceived lack of need or suitability.[ 1 ] Meanwhile, only six States and the District of Columbia have “may issue” licensing laws, under which authorities have discretion to deny concealed-carry licenses even when the applicant satisfies the statutory criteria, usually because the applicant has not demonstrated cause or suitability for the relevant license. Aside from New York, then, only California, the District of Columbia, Hawaii, Maryland, Massachusetts, and New Jersey have analogues to the “proper cause” standard.[ 2 ] All of these “proper cause” analogues have been upheld by the Courts of Appeals, save for the District of Columbia’s, which has been permanently enjoined since 2017. Compare Gould v. Morgan , 907 F.3d 659, 677 (CA1 2018); Kachalsky v. County of Westchester , 701 F.3d 81, 101 (CA2 2012); Drake v. Filko , 724 F.3d 426, 440 (CA3 2013); United States v. Masciandaro , 638 F.3d 458, 460 (CA4 2011); Young v. Hawaii , 992 F.3d 765, 773 (CA9 2021) (en banc), with Wrenn v. District of Columbia , 864 F.3d 650, 668 (CADC 2017). B As set forth in the pleadings below, petitioners Brandon Koch and Robert Nash are law-abiding, adult citizens of Rensselaer County, New York. Koch lives in Troy, while Nash lives in Averill Park. Petitioner New York State Rifle & Pistol Association, Inc., is a public-interest group organized to defend the Second Amendment rights of New Yorkers. Both Koch and Nash are members. In 2014, Nash applied for an unrestricted license to carry a handgun in public. Nash did not claim any unique danger to his personal safety; he simply wanted to carry a handgun for self-defense. In early 2015, the State denied Nash’s application for an unrestricted license but granted him a restricted license for hunting and target shooting only. In late 2016, Nash asked a licensing officer to remove the restrictions, citing a string of recent robberies in his neighborhood. After an informal hearing, the licensing officer denied the request. The officer reiterated that Nash’s existing license permitted him “to carry concealed for purposes of off road back country, outdoor activities similar to hunting,” such as “fishing, hiking & camping etc.” App. 41. But, at the same time, the officer emphasized that the restrictions were “intended to prohibit [Nash] from carrying concealed in ANY LOCATION typically open to and frequented by the general public.” Ibid. Between 2008 and 2017, Koch was in the same position as Nash: He faced no special dangers, wanted a handgun for general self-defense, and had only a restricted license permitting him to carry a handgun outside the home for hunting and target shooting. In late 2017, Koch applied to a licensing officer to remove the restrictions on his license, citing his extensive experience in safely handling firearms. Like Nash’s application, Koch’s was denied, except that the officer permitted Koch to “carry to and from work.” Id ., at 114. C Respondents are the superintendent of the New York State Police, who oversees the enforcement of the State’s licensing laws, and a New York Supreme Court justice, who oversees the processing of licensing applications in Rensselaer County. Petitioners sued respondents for declaratory and injunctive relief under Rev. Stat. 1979, 42 U. S. C. §1983, alleging that respondents violated their Second and Fourteenth Amendment rights by denying their unrestricted-license applications on the basis that they had failed to show “proper cause,” i.e. , had failed to demonstrate a unique need for self-defense. The District Court dismissed petitioners’ complaint and the Court of Appeals affirmed. See 818 Fed. Appx. 99, 100 (CA2 2020). Both courts relied on the Court of Appeals’ prior decision in Kachalsky , 701 F.3d 81, which had sustained New York’s proper-cause standard, holding that the requirement was “substantially related to the achievement of an important governmental interest.” Id. , at 96. We granted certiorari to decide whether New York’s denial of petitioners’ license applications violated the Constitution. 593 U. S. ___ (2021). II In Heller and McDonald , we held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense. In doing so, we held unconstitutional two laws that prohibited the possession and use of handguns in the home. In the years since, the Courts of Appeals have coalesced around a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny. Today, we decline to adopt that two-part approach. In keeping with Heller , we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” Konigsberg v. State Bar of Cal ., 366 U.S. 36 , 50, n. 10 (1961).[ 3 ] A Since Heller and McDonald , the two-step test that Courts of Appeals have developed to assess Second Amendment claims proceeds as follows. At the first step, the government may justify its regulation by “establish[ing] that the challenged law regulates activity falling outside the scope of the right as originally understood.” E.g. , Kanter v. Barr , 919 F.3d 437, 441 (CA7 2019) (internal quotation marks omitted). But see United States v. Boyd , 999 F.3d 171, 185 (CA3 2021) (requiring claimant to show “ ‘a burden on conduct falling within the scope of the Second Amendment’s guarantee’ ”). The Courts of Appeals then ascertain the original scope of the right based on its historical meaning. E.g. , United States v. Focia , 869 F.3d 1269, 1285 (CA11 2017). If the government can prove that the regulated conduct falls beyond the Amendment’s original scope, “then the analysis can stop there; the regulated activity is categorically unprotected.” United States v. Greeno , 679 F.3d 510, 518 (CA6 2012) (internal quotation marks omitted). But if the historical evidence at this step is “inconclusive or suggests that the regulated activity is not categorically unprotected,” the courts generally proceed to step two. Kanter , 919 F. 3d, at 441 (internal quotation marks omitted). At the second step, courts often analyze “how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on that right.” Ibid. (internal quotation marks omitted) . The Courts of Appeals generally maintain “that the core Second Amendment right is limited to self-defense in the home .” Gould , 907 F. 3d, at 671 (emphasis added). But see Wrenn , 864 F. 3d, at 659 (“[T]he Amendment’s core generally covers carrying in public for self defense”). If a “core” Second Amendment right is burdened, courts apply “strict scrutiny” and ask whether the Government can prove that the law is “narrowly tailored to achieve a compelling governmental interest.” Kolbe v. Hogan , 849 F.3d 114, 133 (CA4 2017) (internal quotation marks omitted). Otherwise, they apply intermediate scrutiny and consider whether the Government can show that the regulation is “substantially related to the achievement of an important governmental interest.” Kachalsky , 701 F. 3d, at 96.[ 4 ] Both respondents and the United States largely agree with this consensus, arguing that intermediate scrutiny is appropriate when text and history are unclear in attempting to delineate the scope of the right. See Brief for Respondents 37; Brief for United States as Amicus Curiae 4. B Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller , which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms. 1 To show why Heller does not support applying means-end scrutiny, we first summarize Heller ’s methodological approach to the Second Amendment. In Heller , we began with a “textual analysis” focused on the “ ‘normal and ordinary’ ” meaning of the Second Amendment’s language. 554 U. S., at 576–577, 578. That analysis suggested that the Amendment’s operative clause—“the right of the people to keep and bear Arms shall not be infringed”—“guarantee[s] the individual right to possess and carry weapons in case of confrontation” that does not depend on service in the militia. Id. , at 592. From there, we assessed whether our initial conclusion was “confirmed by the historical background of the Second Amendment.” Ibid. We looked to history because “it has always been widely understood that the Second Amendment . . . codified a pre-existing right.” Ibid. The Amendment “was not intended to lay down a novel principle but rather codified a right inherited from our English ancestors.” Id. , at 599 (alterations and internal quotation marks omitted). After surveying English history dating from the late 1600s, along with American colonial views leading up to the founding, we found “no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.” Id. , at 595. We then canvassed the historical record and found yet further confirmation. That history included the “analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment,” id. , at 600–601, and “how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century,” id. , at 605. When the principal dissent charged that the latter category of sources was illegitimate “postenactment legislative history,” id. , at 662, n. 28 (opinion of Stevens, J.), we clarified that “examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification” was “a critical tool of constitutional interpretation,” id. , at 605 (majority opinion). In assessing the postratification history, we looked to four different types of sources. First, we reviewed “[t]hree important founding-era legal scholars [who] interpreted the Second Amendment in published writings.” Ibid. Second, we looked to “19th-century cases that interpreted the Second Amendment” and found that they “universally support an individual right” to keep and bear arms. Id. , at 610. Third, we examined the “discussion of the Second Amendment in Congress and in public discourse” after the Civil War, “as people debated whether and how to secure constitutional rights for newly freed slaves.” Id. , at 614. Fourth, we considered how post-Civil War commentators understood the right. See id. , at 616–619. After holding that the Second Amendment protected an individual right to armed self-defense, we also relied on the historical understanding of the Amendment to demark the limits on the exercise of that right. We noted that, “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” Id. , at 626. “From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Ibid. For example, we found it “fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons’ ” that the Second Amendment protects the possession and use of weapons that are “ ‘in common use at the time.’ ” Id. , at 627 (first citing 4 W. Blackstone, Commentaries on the Laws of England 148–149 (1769); then quoting United States v. Miller , 307 U.S. 174 , 179 (1939)). That said, we cautioned that we were not “undertak[ing] an exhaustive historical analysis today of the full scope of the Second Amendment” and moved on to considering the constitutionality of the District of Columbia’s handgun ban. 554 U. S., at 627 . We assessed the lawfulness of that handgun ban by scrutinizing whether it comported with history and tradition. Although we noted that the ban “would fail constitutional muster” “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights,” id. , at 628–629, we did not engage in means-end scrutiny when resolving the constitutional question. Instead, we focused on the historically unprecedented nature of the District’s ban, observing that “[f]ew laws in the history of our Nation have come close to [that] severe restriction.” Id. , at 629. Likewise, when one of the dissents attempted to justify the District’s prohibition with “founding-era historical precedent,” including “various restrictive laws in the colonial period,” we addressed each purported analogue and concluded that they were either irrelevant or “d[id] not remotely burden the right of self-defense as much as an absolute ban on handguns.” Id. , at 631–632; see id. , at 631–634. Thus, our earlier historical analysis sufficed to show that the Second Amendment did not countenance a “complete prohibition” on the use of “the most popular weapon chosen by Americans for self-defense in the home.” Id. , at 629. 2 As the foregoing shows, Heller ’s methodology centered on constitutional text and history. Whether it came to defining the character of the right (individual or militia dependent), suggesting the outer limits of the right, or assessing the constitutionality of a particular regulation, Heller relied on text and history. It did not invoke any means-end test such as strict or intermediate scrutiny. Moreover, Heller and McDonald expressly rejected the application of any “judge-empowering ‘interest-balancing inquiry’ that ‘asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.’ ” Heller , 554 U. S., at 634 (quoting id. , at 689–690 (Breyer, J., dissenting)); see also McDonald , 561 U. S., at 790–791 (plurality opinion) (the Second Amendment does not permit—let alone require—“judges to assess the costs and benefits of firearms restrictions” under means-end scrutiny). We declined to engage in means-end scrutiny because “[t]he very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Heller , 554 U. S., at 634. We then concluded: “A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.” Ibid. Not only did Heller decline to engage in means-end scrutiny generally, but it also specifically ruled out the intermediate-scrutiny test that respondents and the United States now urge us to adopt. Dissenting in Heller , Justice Breyer’s proposed standard—“ask[ing] whether [a] statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests,” id. , at 689–690 (dissenting opinion)—simply expressed a classic formulation of intermediate scrutiny in a slightly different way, see Clark v. Jeter , 486 U.S. 456 , 461 (1988) (asking whether the challenged law is “substantially related to an important government objective”). In fact, Justice Breyer all but admitted that his Heller dissent advocated for intermediate scrutiny by repeatedly invoking a quintessential intermediate- scrutiny precedent. See Heller , 554 U. S., at 690, 696, 704–705 (citing Turner Broadcasting System , Inc. v. FCC , 520 U.S. 180 (1997)). Thus, when Heller expressly rejected that dissent’s “interest-balancing inquiry,” 554 U. S., at 634 (internal quotation marks omitted), it necessarily rejected intermediate scrutiny.[ 5 ] In sum, the Courts of Appeals’ second step is inconsistent with Heller ’s historical approach and its rejection of means-end scrutiny. We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” Konigsberg , 366 U. S., at 50, n. 10. C This Second Amendment standard accords with how we protect other constitutional rights. Take, for instance, the freedom of speech in the First Amendment, to which Heller repeatedly compared the right to keep and bear arms. 554 U. S., at 582, 595, 606, 618, 634–635. In that context, “[w]hen the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.” United States v. Playboy Entertainment Group , Inc. , 529 U.S. 803 , 816 (2000); see also Philadelphia Newspapers , Inc. v. Hepps , 475 U.S. 767 , 777 (1986). In some cases, that burden includes showing whether the expressive conduct falls outside of the category of protected speech. See Illinois ex rel. Madigan v. Telemarketing Associates , Inc. , 538 U.S. 600 , 620, n. 9 (2003). And to carry that burden, the government must generally point to historical evidence about the reach of the First Amendment’s protections. See, e.g. , United States v. Stevens , 559 U.S. 460 , 468–471 (2010) (placing the burden on the government to show that a type of speech belongs to a “historic and traditional categor[y]” of constitutionally unprotected speech “long familiar to the bar” (internal quotation marks omitted)). And beyond the freedom of speech, our focus on history also comports with how we assess many other constitutional claims. If a litigant asserts the right in court to “be confronted with the witnesses against him,” U. S. Const., Amdt. 6, we require courts to consult history to determine the scope of that right. See, e.g. , Giles v. California , 554 U.S. 353 , 358 (2008) (“admitting only those exceptions [to the Confrontation Clause] established at the time of the founding” (internal quotation marks omitted)). Similarly, when a litigant claims a violation of his rights under the Establishment Clause, Members of this Court “loo[k] to history for guidance.” American Legion v. American Humanist Assn. , 588 U. S. ___, ___ (2019) (plurality opinion) (slip op., at 25). We adopt a similar approach here. To be sure, “[h]istorical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to interpret it.” McDonald , 561 U. S., at 803–804 (Scalia, J., concurring). But reliance on history to inform the meaning of constitutional text—especially text meant to codify a pre-existing right—is, in our view, more legitimate, and more administrable, than asking judges to “make difficult empirical judgments” about “the costs and benefits of firearms restrictions,” especially given their “lack [of] expertise” in the field. Id. , at 790–791 (plurality opinion).[ 6 ] If the last decade of Second Amendment litigation has taught this Court anything, it is that federal courts tasked with making such difficult empirical judgments regarding firearm regulations under the banner of “intermediate scrutiny” often defer to the determinations of legislatures. But while that judicial deference to legislative interest balancing is understandable—and, elsewhere, appropriate—it is not deference that the Constitution demands here. The Second Amendment “is the very product of an interest balancing by the people” and it “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms” for self-defense. Heller , 554 U. S., at 635. It is this balance—struck by the traditions of the American people—that demands our unqualified deference. D The test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding. In some cases, that inquiry will be fairly straightforward. For instance, when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment. Likewise, if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional. And if some jurisdictions actually attempted to enact analogous regulations during this timeframe, but those proposals were rejected on constitutional grounds, that rejection surely would provide some probative evidence of unconstitutionality. Heller itself exemplifies this kind of straightforward historical inquiry. One of the District’s regulations challenged in Heller “totally ban[ned] handgun possession in the home.” Id ., at 628. The District in Heller addressed a perceived societal problem—firearm violence in densely populated communities—and it employed a regulation—a flat ban on the possession of handguns in the home—that the Founders themselves could have adopted to confront that problem. Accordingly, after considering “founding-era historical precedent,” including “various restrictive laws in the colonial period,” and finding that none was analogous to the District’s ban, Heller concluded that the handgun ban was unconstitutional. Id., at 631; see also id., at 634 (describing the claim that “there were somewhat similar restrictions in the founding period” a “false proposition”). New York’s proper-cause requirement concerns the same alleged societal problem addressed in Heller : “handgun violence,” primarily in “urban area[s].” Ibid. Following the course charted by Heller , we will consider whether “historical precedent” from before, during, and even after the founding evinces a comparable tradition of regulation. Id., at 631. And, as we explain below, we find no such tradition in the historical materials that respondents and their amici have brought to bear on that question. See Part III–B, infra . While the historical analogies here and in Heller are relatively simple to draw, other cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach. The regulatory challenges posed by firearms today are not always the same as those that preoccupied the Founders in 1791 or the Reconstruction generation in 1868. Fortunately, the Founders created a Constitution—and a Second Amendment—“intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” McCulloch v. Maryland , 4 Wheat. 316, 415 (1819) (emphasis deleted). Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated. See, e.g., United States v. Jones , 565 U.S. 400 , 404–405 (2012) (holding that installation of a tracking device was “a physical intrusion [that] would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted”). We have already recognized in Heller at least one way in which the Second Amendment’s historically fixed meaning applies to new circumstances: Its reference to “arms” does not apply “only [to] those arms in existence in the 18th century.” 554 U. S., at 582. “Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” Ibid. (citations omitted). Thus, even though the Second Amendment’s definition of “arms” is fixed according to its historical understanding, that general definition covers modern instruments that facilitate armed self-defense. Cf. Caetano v. Massachusetts , 577 U.S. 411, 411–412 (2016) ( per curiam ) (stun guns). Much like we use history to determine which modern “arms” are protected by the Second Amendment, so too does history guide our consideration of modern regulations that were unimaginable at the founding. When confronting such present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are “relevantly similar.” C. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 773 (1993). And because “[e]verything is similar in infinite ways to everything else,” id., at 774, one needs “some metric enabling the analogizer to assess which similarities are important and which are not,” F. Schauer & B. Spellman, Analogy, Expertise, and Experience, 84 U. Chi. L. Rev. 249, 254 (2017). For instance, a green truck and a green hat are relevantly similar if one’s metric is “things that are green.” See ibid. They are not relevantly similar if the applicable metric is “things you can wear.” While we do not now provide an exhaustive survey of the features that render regulations relevantly similar under the Second Amendment, we do think that Heller and McDonald point toward at least two metrics: how and why the regulations burden a law-abiding citizen’s right to armed self-defense. As we stated in Heller and repeated in McDonald , “individual self-defense is ‘the central component ’ of the Second Amendment right.” McDonald , 561 U. S., at 767 (quoting Heller , 554 U. S., at 599); see also id., at 628 (“the inherent right of self-defense has been central to the Second Amendment right”). Therefore, whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified are “ ‘ central ’ ” considerations when engaging in an analogical inquiry. McDonald , 561 U. S., at 767 (quoting Heller , 554 U. S., at 599).[ 7 ] To be clear, analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check. On the one hand, courts should not “uphold every modern law that remotely resembles a historical analogue,” because doing so “risk[s] endorsing outliers that our ancestors would never have accepted.” Drummond v. Robinson , 9 F. 4th 217, 226 (CA3 2021). On the other hand, analogical reasoning requires only that the government identify a well-established and representative historical analogue , not a historical twin . So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster. Consider, for example, Heller ’s discussion of “longstanding” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” 554 U. S. , at 626. Although the historical record yields relatively few 18th- and 19th-century “sensitive places” where weapons were altogether prohibited— e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions. See D. Kopel & J. Greenlee, The “Sensitive Places” Doctrine, 13 Charleston L. Rev. 205, 229–236, 244–247 (2018); see also Brief for Independent Institute as Amicus Curiae 11–17. We therefore can assume it settled that these locations were “sensitive places” where arms carrying could be prohibited consistent with the Second Amendment. And courts can use analogies to those historical regulations of “sensitive places” to determine that modern regulations prohibiting the carry of firearms in new and analogous sensitive places are constitutionally permissible. Although we have no occasion to comprehensively define “sensitive places” in this case, we do think respondents err in their attempt to characterize New York’s proper-cause requirement as a “sensitive-place” law. In their view, “sensitive places” where the government may lawfully disarm law-abiding citizens include all “places where people typically congregate and where law-enforcement and other public-safety professionals are presumptively available.” Brief for Respondents 34. It is true that people sometimes congregate in “sensitive places,” and it is likewise true that law enforcement professionals are usually presumptively available in those locations. But expanding the category of “sensitive places” simply to all places of public congregation that are not isolated from law enforcement defines the category of “sensitive places” far too broadly. Respondents’ argument would in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense that we discuss in detail below. See Part III–B, infra . Put simply, there is no historical basis for New York to effectively declare the island of Manhattan a “sensitive place” simply because it is crowded and protected generally by the New York City Police Department. Like Heller , we “do not undertake an exhaustive historical analysis . . . of the full scope of the Second Amendment.” 554 U. S., at 626. And we acknowledge that “applying constitutional principles to novel modern conditions can be difficult and leave close questions at the margins.” Heller v. District of Columbia , 670 F.3d 1244, 1275 (CADC 2011) (Kavanaugh, J., dissenting). “But that is hardly unique to the Second Amendment. It is an essential component of judicial decisionmaking under our enduring Constitution.” Ibid. We see no reason why judges frequently tasked with answering these kinds of historical, analogical questions cannot do the same for Second Amendment claims. III Having made the constitutional standard endorsed in Heller more explicit, we now apply that standard to New York’s proper-cause requirement. A It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of “the people” whom the Second Amendment protects. See Heller , 554 U. S., at 580. Nor does any party dispute that handguns are weapons “in common use” today for self-defense. See id. , at 627; see also Caetano , 577 U. S., at 411–412. We therefore turn to whether the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense. We have little difficulty concluding that it does. Respondents do not dispute this. See Brief for Respondents 19. Nor could they. Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms. As we explained in Heller , the “textual elements” of the Second Amendment’s operative clause— “the right of the people to keep and bear Arms, shall not be infringed”—“guarantee the individual right to possess and carry weapons in case of confrontation.” 554 U. S., at 592. Heller further confirmed that the right to “bear arms” refers to the right to “wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.” Id. , at 584 (quoting Muscarello v. United States , 524 U.S. 125 , 143 (1998) (Ginsburg, J., dissenting); internal quotation marks omitted). This definition of “bear” naturally encompasses public carry. Most gun owners do not wear a holstered pistol at their hip in their bedroom or while sitting at the dinner table. Although individuals often “keep” firearms in their home, at the ready for self-defense, most do not “bear” ( i.e. , carry) them in the home beyond moments of actual confrontation. To confine the right to “bear” arms to the home would nullify half of the Second Amendment’s operative protections. Moreover, confining the right to “bear” arms to the home would make little sense given that self-defense is “the central component of the [ Second Amendment] right itself.” Heller , 554 U. S., at 599; see also McDonald , 561 U. S., at 767. After all, the Second Amendment guarantees an “individual right to possess and carry weapons in case of confrontation,” Heller , 554 U. S., at 592, and confrontation can surely take place outside the home. Although we remarked in Heller that the need for armed self-defense is perhaps “most acute” in the home, id. , at 628, we did not suggest that the need was insignificant elsewhere. Many Americans hazard greater danger outside the home than in it. See Moore v. Madigan , 702 F.3d 933, 937 (CA7 2012) (“[A] Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower”). The text of the Second Amendment reflects that reality. The Second Amendment’s plain text thus presumptively guarantees petitioners Koch and Nash a right to “bear” arms in public for self-defense. B Conceding that the Second Amendment guarantees a general right to public carry, contra, Young , 992 F. 3d, at 813, respondents instead claim that the Amendment “permits a State to condition handgun carrying in areas ‘frequented by the general public’ on a showing of a non- speculative need for armed self-defense in those areas,” Brief for Respondents 19 (citation omitted).[ 8 ] To support that claim, the burden falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation. Only if respondents carry that burden can they show that the pre-existing right codified in the Second Amendment, and made applicable to the States through the Fourteenth, does not protect petitioners’ proposed course of conduct. Respondents appeal to a variety of historical sources from the late 1200s to the early 1900s. We categorize these periods as follows: (1) medieval to early modern England; (2) the American Colonies and the early Republic; (3) antebellum America; (4) Reconstruction; and (5) the late-19th and early-20th centuries. We categorize these historical sources because, when it comes to interpreting the Constitution, not all history is created equal. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them .” Heller , 554 U. S., at 634–635 (emphasis added). The Second Amendment was adopted in 1791; the Fourteenth in 1868. Historical evidence that long predates either date may not illuminate the scope of the right if linguistic or legal conventions changed in the intervening years. It is one thing for courts to “reac[h] back to the 14th century” for English practices that “prevailed up to the ‘period immediately before and after the framing of the Constitution.’ ” Sprint Communications Co. v. APCC Services , Inc. , 554 U.S. 269 , 311 (2008) (Roberts, C. J., dissenting). It is quite another to rely on an “ancient” practice that had become “obsolete in England at the time of the adoption of the Constitution” and never “was acted upon or accepted in the colonies.” Dimick v. Schiedt , 293 U.S. 474 , 477 (1935). As with historical evidence generally, courts must be careful when assessing evidence concerning English common-law rights. The common law, of course, developed over time. Associated Gen. Contractors of Cal. , Inc. v. Carpenters , 459 U.S. 519 , 533, n. 28 (1983); see also Rogers v. Tennessee , 532 U.S. 451 , 461 (2001). And English common-law practices and understandings at any given time in history cannot be indiscriminately attributed to the Framers of our own Constitution. Even “the words of Magna Charta ”—foundational as they were to the rights of America’s forefathers—“stood for very different things at the time of the separation of the American Colonies from what they represented originally” in 1215. Hurtado v. California , 110 U.S. 516 , 529 (1884). Sometimes, in interpreting our own Constitution, “it [is] better not to go too far back into antiquity for the best securities of our liberties,” Funk v. United States , 290 U.S. 371 , 382 (1933), unless evidence shows that medieval law survived to become our Founders’ law. A long, unbroken line of common-law precedent stretching from Bracton to Blackstone is far more likely to be part of our law than a short-lived, 14th-century English practice. Similarly, we must also guard against giving postenactment history more weight than it can rightly bear. It is true that in Heller we reiterated that evidence of “how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century” represented a “critical tool of constitutional interpretation.” 554 U. S., at 605. We therefore examined “a variety of legal and other sources to determine the public understanding of [the Second Amendment] after its . . . ratification.” Ibid. And, in other contexts, we have explained that “ ‘a regular course of practice’ can ‘liquidate & settle the meaning of ’ disputed or indeterminate ‘terms & phrases’ ” in the Constitution. Chiafalo v. Washington , 591 U. S. ___, ___ (2020) (slip op., at 13) (quoting Letter from J. Madison to S. Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908)); see also, e.g., Houston Community College System v. Wilson , 595 U. S. ___, ___ (2022) (slip op., at 5) (same); The Federalist No. 37, p. 229 (C. Rossiter ed. 1961) (J. Madison); see generally C. Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 10–21 (2001); W. Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1 (2019). In other words, we recognize that “where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpretation of an ambiguous constitutional provision.” NLRB v. Noel Canning , 573 U.S. 513 , 572 (2014) (Scalia, J., concurring in judgment); see also Myers v. United States , 272 U.S. 52 , 174 (1926); Printz v. United States , 521 U.S. 898 , 905 (1997). But to the extent later history contradicts what the text says, the text controls. “ ‘[L]iquidating’ indeterminacies in written laws is far removed from expanding or altering them.” Gamble v. United States , 587 U. S. ___, ___ (2019) (Thomas, J., concurring) (slip op., at 13); see also Letter from J. Madison to N. Trist (Dec. 1831), in 9 Writings of James Madison 477 (G. Hunt ed. 1910). Thus, “post- ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text.” Heller , 670 F. 3d, at 1274, n. 6 (Kavanaugh, J., dissenting); see also Espinoza v. Montana Dept. of Revenue , 591 U. S. ___, ___ (2020) (slip op., at 15). As we recognized in Heller itself, because post-Civil War discussions of the right to keep and bear arms “took place 75 years after the ratification of the Second Amendment, they do not provide as much insight into its original meaning as earlier sources.” 554 U. S., at 614; cf. Sprint Communications Co. , 554 U. S., at 312 (Roberts, C. J., dissenting) (“The belated innovations of the mid- to late-19th-century courts come too late to provide insight into the meaning of [the Constitution in 1787]”). And we made clear in Gamble that Heller ’s interest in mid- to late-19th-century commentary was secondary. Heller considered this evidence “only after surveying what it regarded as a wealth of authority for its reading—including the text of the Second Amendment and state constitutions.” Gamble , 587 U. S., at ___ (majority opinion) (slip op., at 23). In other words, this 19th-century evidence was “treated as mere confirmation of what the Court thought had already been established.” Ibid. A final word on historical method: Strictly speaking, New York is bound to respect the right to keep and bear arms because of the Fourteenth Amendment, not the Second. See, e.g. , Barron ex rel. Tiernan v. Mayor of Baltimore , 7 Pet. 243, 250–251 (1833) (Bill of Rights applies only to the Federal Government). Nonetheless, we have made clear that individual rights enumerated in the Bill of Rights and made applicable against the States through the Fourteenth Amendment have the same scope as against the Federal Government. See, e.g. , Ramos v. Louisiana , 590 U. S. ___, ___ (2020) (slip op., at 7); Timbs v. Indiana , 586 U. S. ___, ___–___ (2019) (slip op., at 2–3); Malloy v. Hogan , 378 U.S. 1 , 10–11 (1964). And we have generally assumed that the scope of the protection applicable to the Federal Government and States is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791. See, e.g ., Crawford v. Washington , 541 U.S. 36 , 42–50 (2004) ( Sixth Amendment); Virginia v. Moore , 553 U.S. 164 , 168–169 (2008) ( Fourth Amendment); Nevada Comm’n on Ethics v. Carrigan , 564 U.S. 117 , 122–125 (2011) ( First Amendment). We also acknowledge that there is an ongoing scholarly debate on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868 when defining its scope (as well as the scope of the right against the Federal Government). See, e.g. , A. Amar, The Bill of Rights: Creation and Reconstruction xiv, 223, 243 (1998); K. Lash, Re-Speaking the Bill of Rights: A New Doctrine of Incorporation (Jan. 15, 2021) (manuscript, at 2), https://papers.ssrn .com/sol3/papers.cfm?abstract_id=3766917 (“When the people adopted the Fourteenth Amendment into existence, they readopted the original Bill of Rights, and did so in a manner that invested those original 1791 texts with new 1868 meanings”). We need not address this issue today because, as we explain below, the public understanding of the right to keep and bear arms in both 1791 and 1868 was, for all relevant purposes, the same with respect to public carry. *  *  * With these principles in mind, we turn to respondents’ historical evidence. Throughout modern Anglo-American history, the right to keep and bear arms in public has traditionally been subject to well-defined restrictions governing the intent for which one could carry arms, the manner of carry, or the exceptional circumstances under which one could not carry arms. But apart from a handful of late-19th-century jurisdictions, the historical record compiled by respondents does not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense. Nor is there any such historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense.[ 9 ] We conclude that respondents have failed to meet their burden to identify an American tradition justifying New York’s proper-cause requirement. Under Heller ’s text-and-history standard, the proper-cause requirement is therefore unconstitutional. 1 Respondents’ substantial reliance on English history and custom before the founding makes some sense given our statement in Heller that the Second Amendment “codified a right ‘inherited from our English ancestors.’ ” 554 U. S., at 599 (quoting Robertson v. Baldwin , 165 U.S. 275 , 281 (1897)); see also Smith v. Alabama , 124 U.S. 465 , 478 (1888). But this Court has long cautioned that the English common law “is not to be taken in all respects to be that of America.” Van Ness v. Pacard , 2 Pet. 137, 144 (1829) (Story, J., for the Court); see also Wheaton v. Peters , 8 Pet. 591, 659 (1834); Funk , 290 U. S., at 384. Thus, “[t]he language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted ,” not as they existed in the Middle Ages. Ex parte Grossman , 267 U.S. 87 , 108–109 (1925) (emphasis added); see also United States v. Reid , 12 How. 361, 363 (1852). We interpret the English history that respondents and the United States muster in light of these interpretive principles. We find that history ambiguous at best and see little reason to think that the Framers would have thought it applicable in the New World. It is not sufficiently probative to defend New York’s proper-cause requirement. To begin, respondents and their amici point to several medieval English regulations from as early as 1285 that they say indicate a longstanding tradition of restricting the public carry of firearms. See 13 Edw. 1, 102. The most prominent is the 1328 Statute of Northampton (or Statute), passed shortly after Edward II was deposed by force of arms and his son, Edward III, took the throne of a kingdom where “tendency to turmoil and rebellion was everywhere apparent throughout the realm.” N. Trenholme, The Risings in the English Monastic Towns in 1327, 6 Am. Hist. Rev. 650, 651 (1901). At the time, “[b]ands of malefactors, knights as well as those of lesser degree, harried the country, committing assaults and murders,” prompted by a more general “spirit of insubordination” that led to a “decay in English national life.” K. Vickers, England in the Later Middle Ages 107 (1926). The Statute of Northampton was, in part, “a product of . . . the acute disorder that still plagued England.” A. Verduyn, The Politics of Law and Order During the Early Years of Edward III, 108 Eng. Hist. Rev. 842, 850 (1993). It provided that, with some exceptions, Englishmen could not “come before the King’s Justices, or other of the King’s Ministers doing their office, with force and arms, nor bring no force in affray of the peace, nor to go nor ride armed by night nor by day, in Fairs, Markets, nor in the presence of the Justices or other Ministers, nor in no part elsewhere, upon pain to forfeit their Armour to the King, and their Bodies to Prison at the King’s pleasure.” 2 Edw. 3 c. 3 (1328). Respondents argue that the prohibition on “rid[ing]” or “go[ing] . . . armed” was a sweeping restriction on public carry of self-defense weapons that would ultimately be adopted in Colonial America and justify onerous public-carry regulations. Notwithstanding the ink the parties spill over this provision, the Statute of Northampton—at least as it was understood during the Middle Ages—has little bearing on the Second Amendment adopted in 1791. The Statute of Northampton was enacted nearly 20 years before the Black Death, more than 200 years before the birth of Shakespeare, more than 350 years before the Salem Witch Trials, more than 450 years before the ratification of the Constitution, and nearly 550 years before the adoption of the Fourteenth Amendment. The Statute’s prohibition on going or riding “armed” obviously did not contemplate handguns, given they did not appear in Europe until about the mid-1500s. See K. Chase, Firearms: A Global History to 1700, p. 61 (2003). Rather, it appears to have been centrally concerned with the wearing of armor. See, e.g. , Calendar of the Close Rolls, Edward III, 1330–1333, p. 131 (Apr. 3, 1330) (H. Maxwell-Lyte ed. 1898); id. , at 243 (May 28, 1331); id. , Edward III, 1327–1330, at 314 (Aug. 29, 1328) (1896). If it did apply beyond armor, it applied to such weapons as the “launcegay,” a 10- to 12-foot-long lightweight lance. See 7 Rich. 2 c. 13 (1383); 20 Rich. 2 c. 1 (1396). The Statute’s apparent focus on armor and, perhaps, weapons like launcegays makes sense given that armor and lances were generally worn or carried only when one intended to engage in lawful combat or—as most early violations of the Statute show—to breach the peace. See, e.g. , Calendar of the Close Rolls, Edward III, 1327–1330, at 402 (July 7, 1328); id. , Edward III, 1333–1337, at 695 (Aug. 18, 1336) (1898). Contrast these arms with daggers. In the medieval period, “[a]lmost everyone carried a knife or a dagger in his belt.” H. Peterson, Daggers and Fighting Knives of the Western World 12 (2001). While these knives were used by knights in warfare, “[c]ivilians wore them for self-protection,” among other things. Ibid. Respondents point to no evidence suggesting the Statute applied to the smaller medieval weapons that strike us as most analogous to modern handguns. When handguns were introduced in England during the Tudor and early Stuart eras, they did prompt royal efforts at suppression. For example, Henry VIII issued several proclamations decrying the proliferation of handguns, and Parliament passed several statutes restricting their possession. See, e.g. , 6 Hen. 8 c. 13, §1 (1514); 25 Hen. 8 c. 17, §1 (1533); 33 Hen. 8 c. 6 (1541); Prohibiting Use of Handguns and Crossbows (Jan. 1537), in 1 Tudor Royal Proclamations 249 (P. Hughes & J. Larkin eds. 1964). But Henry VIII’s displeasure with handguns arose not primarily from concerns about their safety but rather their inefficacy. Henry VIII worried that handguns threatened Englishmen’s proficiency with the longbow—a weapon many believed was crucial to English military victories in the 1300s and 1400s, including the legendary English victories at Crécy and Agincourt. See R. Payne-Gallwey, The Crossbow 32, 34 (1903); L. Schwoerer, Gun Culture in Early Modern England 54 (2016) (Schwoerer). Similarly, James I considered small handguns—called dags—“utterly unserviceable for defence, Militarie practise, or other lawful use.” A Proclamation Against Steelets, Pocket Daggers, Pocket Dagges and Pistols (R. Barker printer 1616). But, in any event, James I’s proclamation in 1616 “was the last one regarding civilians carrying dags,” Schwoerer 63. “After this the question faded without explanation.” Ibid. So, by the time Englishmen began to arrive in America in the early 1600s, the public carry of handguns was no longer widely proscribed. When we look to the latter half of the 17th century, respondents’ case only weakens. As in Heller , we consider this history “[b]etween the [Stuart] Restoration [in 1660] and the Glorious Revolution [in 1688]” to be particularly instructive. 554 U. S., at 592. During that time, the Stuart Kings Charles II and James II ramped up efforts to disarm their political opponents, an experience that “caused Englishmen . . . to be jealous of their arms.” Id. , at 593. In one notable example, the government charged Sir John Knight, a prominent detractor of James II, with violating the Statute of Northampton because he allegedly “did walk about the streets armed with guns, and that he went into the church of St. Michael, in Bristol, in the time of divine service, with a gun, to terrify the King’s subjects.” Sir John Knight’s Case , 3 Mod. 117, 87 Eng. Rep. 75, 76 (K. B. 1686). Chief Justice Holt explained that the Statute of Northampton had “almost gone in desuetudinem ,” Rex v. Sir John Knight , 1 Comb. 38, 38–39, 90 Eng. Rep. 330 (K. B. 1686), meaning that the Statute had largely become obsolete through disuse.[ 10 ] And the Chief Justice further explained that the act of “go[ing] armed to terrify the King’s subjects” was “a great offence at the common law ” and that the Statute of Northampton “is but an affirmance of that law.” 3 Mod., at 118, 87 Eng. Rep., at 76 (first emphasis added). Thus, one’s conduct “will come within the Act,”— i.e. , would terrify the King’s subjects—only “where the crime shall appear to be malo animo,” 1 Comb., at 39, 90 Eng. Rep., at 330, with evil intent or malice. Knight was ultimately acquitted by the jury.[ 11 ] Just three years later, Parliament responded by writing the “predecessor to our Second Amendment” into the 1689 English Bill of Rights, Heller , 554 U. S., at 593, guaranteeing that “Protestants . . . may have Arms for their Defence suitable to their Conditions, and as allowed by Law,” 1 Wm. & Mary c. 2, §7, in 3 Eng. Stat. at Large 417 (1689). Although this right was initially limited—it was restricted to Protestants and held only against the Crown, but not Parliament—it represented a watershed in English history. Englishmen had “never before claimed . . . the right of the individual to arms.” Schwoerer 156.[ 12 ] And as that individual right matured, “by the time of the founding,” the right to keep and bear arms was “understood to be an individual right protecting against both public and private violence.” Heller , 554 U. S., at 594. To be sure, the Statute of Northampton survived both Sir John Knight’s Case and the English Bill of Rights, but it was no obstacle to public carry for self-defense in the decades leading to the founding. Serjeant William Hawkins, in his widely read 1716 treatise, confirmed that “no wearing of Arms is within the meaning of [the Statute of Northampton], unless it be accompanied with such Circumstances as are apt to terrify the People.” 1 Pleas of the Crown 136. To illustrate that proposition, Hawkins noted as an example that “Persons of Quality” were “in no Danger of Offending against this Statute by wearing common Weapons” because, in those circumstances, it would be clear that they had no “Intention to commit any Act of Violence or Disturbance of the Peace.” Ibid. ; see also T. Barlow, The Justice of Peace 12 (1745). Respondents do not offer any evidence showing that, in the early 18th century or after, the mere public carrying of a handgun would terrify people. In fact, the opposite seems to have been true. As time went on, “domestic gun culture [in England] softened” any “terror” that firearms might once have conveyed. Schwoerer 4. Thus, whatever place handguns had in English society during the Tudor and Stuart reigns, by the time we reach the 18th century—and near the founding—they had gained a fairly secure footing in English culture. At the very least, we cannot conclude from this historical record that, by the time of the founding, English law would have justified restricting the right to publicly bear arms suited for self-defense only to those who demonstrate some special need for self-protection. 2 Respondents next point us to the history of the Colonies and early Republic, but there is little evidence of an early American practice of regulating public carry by the general public. This should come as no surprise—English subjects founded the Colonies at about the time England had itself begun to eliminate restrictions on the ownership and use of handguns. In the colonial era, respondents point to only three restrictions on public carry. For starters, we doubt that three colonial regulations could suffice to show a tradition of public-carry regulation. In any event, even looking at these laws on their own terms, we are not convinced that they regulated public carry akin to the New York law before us. Two of the statutes were substantively identical. Colonial Massachusetts and New Hampshire both authorized justices of the peace to arrest “all Affrayers, Rioters, Disturbers, or Breakers of the Peace, and such as shall ride or go armed Offensively . . . by Night or by Day, in Fear or Affray of Their Majesties Liege People.” 1692 Mass. Acts and Laws no. 6, pp. 11–12; see 1699 N. H. Acts and Laws ch. 1. Respondents and their amici contend that being “armed offensively” meant bearing any offensive weapons, including firearms. See Brief for Respondents 33. In particular, respondents’ amici argue that “ ‘offensive’ ” arms in the 1600s and 1700s were what Blackstone and others referred to as “ ‘dangerous or unusual weapons,’ ” Brief for Professors of History and Law as Amici Curiae 7 (quoting 4 Blackstone, Commentaries, at 148–149), a category that they say included firearms, see also post, at 40–42 (Breyer, J., dissenting). Respondents, their amici , and the dissent all misunderstand these statutes. Far from banning the carrying of any class of firearms, they merely codified the existing common-law offense of bearing arms to terrorize the people, as had the Statute of Northampton itself. See supra , at 34–37. For instance, the Massachusetts statute proscribed “go[ing] armed Offensively . . . in Fear or Affray” of the people, indicating that these laws were modeled after the Statute of Northampton to the extent that the statute would have been understood to limit public carry in the late 1600s . Moreover, it makes very little sense to read these statutes as banning the public carry of all firearms just a few years after Chief Justice Holt in Sir John Knight’s Case indicated that the English common law did not do so. Regardless, even if respondents’ reading of these colonial statutes were correct, it would still do little to support restrictions on the public carry of handguns today . At most, respondents can show that colonial legislatures sometimes prohibited the carrying of “dangerous and unusual weapons”—a fact we already acknowledged in Heller . See 554 U. S., at 627. Drawing from this historical tradition, we explained there that the Second Amendment protects only the carrying of weapons that are those “in common use at the time,” as opposed to those that “are highly unusual in society at large.” Ibid. (internal quotation marks omitted). Whatever the likelihood that handguns were considered “dangerous and unusual” during the colonial period, they are indisputably in “common use” for self-defense today. They are, in fact, “the quintessential self-defense weapon.” Id. , at 629. Thus, even if these colonial laws prohibited the carrying of handguns because they were considered “dangerous and unusual weapons” in the 1690s, they provide no justification for laws restricting the public carry of weapons that are unquestionably in common use today. The third statute invoked by respondents was enacted in East New Jersey in 1686. It prohibited the concealed carry of “pocket pistol[s]” or other “unusual or unlawful weapons,” and it further prohibited “planter[s]” from carrying all pistols unless in military service or, if “strangers,” when traveling through the Province. An Act Against Wearing Swords, &c., ch. 9, in Grants, Concessions, and Original Constitutions of the Province of New Jersey 290 (2d ed. 1881) (Grants and Concessions). These restrictions do not meaningfully support respondents. The law restricted only concealed carry, not all public carry, and its restrictions applied only to certain “unusual or unlawful weapons,” including “pocket pistol[s].” Ibid . It also did not apply to all pistols, let alone all firearms. “Pocket pistols” had barrel lengths of perhaps 3 or 4 inches, far smaller than the 6-inch to 14-inch barrels found on the other belt and hip pistols that were commonly used for lawful purposes in the 1600s. J. George, English Pistols and Revolvers 16 (1938); see also, e.g. , 14 Car. 2 c. 3, §20 (1662); H. Peterson, Arms and Armor in Colonial America, 1526–1783, p. 208 (1956) (Peterson). Moreover, the law prohibited only the concealed carry of pocket pistols; it presumably did not by its terms touch the open carry of larger, presumably more common pistols, except as to “planters.”[ 13 ] In colonial times, a “planter” was simply a farmer or plantation owner who settled new territory. R. Lederer, Colonial American English 175 (1985); New Jersey State Archives, J. Klett, Using the Records of the East and West Jersey Proprietors 31 (rev. ed. 2014), https://www.nj.gov/state/archives/pdf/proprietors.pdf. While the reason behind this singular restriction is not entirely clear, planters may have been targeted because colonial-era East New Jersey was riven with “strife and excitement” between planters and the Colony’s proprietors “respecting titles to the soil.” See W. Whitehead, East Jersey Under the Proprietary Governments 150–151 (rev. 2d ed. 1875); see also T. Gordon, The History of New Jersey 49 (1834). In any event, we cannot put meaningful weight on this solitary statute. First, although the “planter” restriction may have prohibited the public carry of pistols, it did not prohibit planters from carrying long guns for self-defense—including the popular musket and carbine. See Peterson 41. Second, it does not appear that the statute survived for very long. By 1694, East New Jersey provided that no slave “be permitted to carry any gun or pistol . . . into the woods, or plantations” unless their owner accompanied them. Grants and Concessions 341. If slave-owning planters were prohibited from carrying pistols, it is hard to comprehend why slaves would have been able to carry them in the planter’s presence. Moreover, there is no evidence that the 1686 statute survived the 1702 merger of East and West New Jersey. See 1 Nevill, Acts of the General Assembly of the Province of New-Jersey (1752). At most eight years of history in half a Colony roughly a century before the founding sheds little light on how to properly interpret the Second Amendment. Respondents next direct our attention to three late-18th-century and early-19th-century statutes, but each parallels the colonial statutes already discussed. One 1786 Virginia statute provided that “no man, great nor small, [shall] go nor ride armed by night nor by day, in fairs or markets, or in other places, in terror of the Country.” Collection of All Such Acts of the General Assembly of Virginia ch. 21, p. 33 (1794).[ 14 ] A Massachusetts statute from 1795 commanded justices of the peace to arrest “all affrayers, rioters, disturbers, or breakers of the peace, and such as shall ride or go armed offensively, to the fear or terror of the good citizens of this Commonwealth.” 1795 Mass. Acts and Laws ch. 2, p. 436, in Laws of the Commonwealth of Massachusetts. And an 1801 Tennessee statute likewise required any person who would “publicly ride or go armed to the terror of the people, or privately carry any dirk, large knife, pistol or any other dangerous weapon, to the fear or terror of any person” to post a surety; otherwise, his continued violation of the law would be “punished as for a breach of the peace, or riot at common law.” 1801 Tenn. Acts pp. 260–261. A by-now-familiar thread runs through these three statutes: They prohibit bearing arms in a way that spreads “fear” or “terror” among the people. As we have already explained, Chief Justice Holt in Sir John Knight’s Case interpreted this in Terrorem Populi element to require something more than merely carrying a firearm in public. See supra , at 34–35. Respondents give us no reason to think that the founding generation held a different view. Thus, all told, in the century leading up to the Second Amendment and in the first decade after its adoption, there is no historical basis for concluding that the pre-existing right enshrined in the Second Amendment permitted broad prohibitions on all forms of public carry. 3 Only after the ratification of the Second Amendment in 1791 did public-carry restrictions proliferate. Respondents rely heavily on these restrictions, which generally fell into three categories: common-law offenses, statutory prohibitions, and “surety” statutes. None of these restrictions imposed a substantial burden on public carry analogous to the burden created by New York’s restrictive licensing regime. Common-Law Offenses . As during the colonial and founding periods, the common-law offenses of “affray” or going armed “to the terror of the people” continued to impose some limits on firearm carry in the antebellum period. But as with the earlier periods, there is no evidence indicating that these common-law limitations impaired the right of the general population to peaceable public carry. For example, the Tennessee attorney general once charged a defendant with the common-law offense of affray, arguing that the man committed the crime when he “ ‘arm[ed] himself with dangerous and unusual weapons, in such a manner as will naturally cause terror to the people.’ ” Simpson v. State , 13 Tenn. 356, 358 (1833). More specifically, the indictment charged that Simpson “with force and arms being arrayed in a warlike manner . . . unlawfully, and to the great terror and disturbance of divers good citizens, did make an affray.” Id ., at 361. The Tennessee Supreme Court quashed the indictment, holding that the Statute of Northampton was never part of Tennessee law. Id. , at 359. But even assuming that Tennesseans’ ancestors brought with them the common law associated with the Statute, the Simpson court found that if the Statute had made, as an “independent ground of affray,” the mere arming of oneself with firearms, the Tennessee Constitution’s Second Amendment analogue had “completely abrogated it.” Id. , at 360. At least in light of that constitutional guarantee, the court did not think that it could attribute to the mere carrying of arms “a necessarily consequent operation as terror to the people.” Ibid. Perhaps more telling was the North Carolina Supreme Court’s decision in State v. Huntly , 25 N. C. 418 (1843) ( per curiam ). Unlike the Tennessee Supreme Court in Simpson , the Huntly court held that the common-law offense codified by the Statute of Northampton was part of the State’s law. See 25 N. C., at 421–422. However, consistent with the Statute’s long-settled interpretation, the North Carolina Supreme Court acknowledged “that the carrying of a gun” for a lawful purpose “ per se constitutes no offence.” Id. , at 422–423. Only carrying for a “wicked purpose” with a “mischievous result . . . constitute[d a] crime.” Id. , at 423; see also J. Haywood, The Duty and Office of Justices of Peace 10 (1800); H. Potter, The Office and Duties of a Justice of the Peace 39 (1816).[ 15 ] Other state courts likewise recognized that the common law did not punish the carrying of deadly weapons per se , but only the carrying of such weapons “for the purpose of an affray, and in such manner as to strike terror to the people.” O’Neil v. State , 16 Ala. 65, 67 (1849). Therefore, those who sought to carry firearms publicly and peaceably in antebellum America were generally free to do so. Statutory Prohibitions . In the early to mid-19th century, some States began enacting laws that proscribed the concealed carry of pistols and other small weapons. As we recognized in Heller , “the majority of the 19th-century courts to consider the question held that [these] prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” 554 U. S., at 626. Respondents unsurprisingly cite these statutes[ 16 ]—and decisions upholding them[ 17 ]—as evidence that States were historically free to ban public carry. In fact, however, the history reveals a consensus that States could not ban public carry altogether. Respondents’ cited opinions agreed that concealed-carry prohibitions were constitutional only if they did not similarly prohibit open carry. That was true in Alabama. See State v. Reid , 1 Ala. 612, 616, 619–621 (1840).[ 18 ] It was also true in Louisiana. See State v. Chandler , 5 La. 489, 490 (1850).[ 19 ] Kentucky, meanwhile, went one step further—the State Supreme Court invalidated a concealed-carry prohibition. See Bliss v. Commonwealth , 12 Ky. 90 (1822) . [ 20 ] The Georgia Supreme Court’s decision in Nunn v. State , 1 Ga. 243 (1846), is particularly instructive. Georgia’s 1837 statute broadly prohibited “wearing” or “carrying” pistols “as arms of offence or defence,” without distinguishing between concealed and open carry. 1837 Ga. Acts 90, §1. To the extent the 1837 Act prohibited “carrying certain weapons secretly ,” the court explained, it was “valid.” Nunn , 1 Ga., at 251. But to the extent the Act also prohibited “bearing arms openly ,” the court went on, it was “in conflict with the Constitutio[n] and void .” Ibid. ; see also Heller , 554 U. S., at 612. The Georgia Supreme Court’s treatment of the State’s general prohibition on the public carriage of handguns indicates that it was considered beyond the constitutional pale in antebellum America to altogether prohibit public carry. Finally, we agree that Tennessee’s prohibition on carrying “publicly or privately” any “belt or pocket pisto[l],” 1821 Tenn. Acts ch. 13, p. 15, was, on its face, uniquely severe, see Heller , 554 U. S., at 629. That said, when the Tennessee Supreme Court addressed the constitutionality of a substantively identical successor provision, see 1870 Tenn. Acts ch. 13, §1, p. 28, the court read this language to permit the public carry of larger, military-style pistols because any categorical prohibition on their carry would “violat[e] the constitutional right to keep arms.” Andrews v. State , 50 Tenn. 165, 187 (1871); see also Heller , 554 U. S., at 629 (discussing Andrews ).[ 21 ] All told, these antebellum state-court decisions evince a consensus view that States could not altogether prohibit the public carry of “arms” protected by the Second Amendment or state analogues.[ 22 ] Surety Statutes . In the mid-19th century, many jurisdictions began adopting surety statutes that required certain individuals to post bond before carrying weapons in public. Although respondents seize on these laws to justify the proper-cause restriction, their reliance on them is misplaced. These laws were not bans on public carry, and they typically targeted only those threatening to do harm. As discussed earlier, Massachusetts had prohibited riding or going “armed offensively, to the fear or terror of the good citizens of this Commonwealth” since 1795. 1795 Mass. Acts and Laws ch. 2, at 436, in Laws of the Commonwealth of Massachusetts. In 1836, Massachusetts enacted a new law providing: “If any person shall go armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon, without reasonable cause to fear an assault or other injury, or violence to his person, or to his family or property, he may, on complaint of any person having reasonable cause to fear an injury, or breach of the peace, be required to find sureties for keeping the peace, for a term not exceeding six months, with the right of appealing as before provided.” Mass. Rev. Stat., ch. 134, §16. In short, the Commonwealth required any person who was reasonably likely to “breach the peace,” and who, standing accused, could not prove a special need for self-defense, to post a bond before publicly carrying a firearm. Between 1838 and 1871, nine other jurisdictions adopted variants of the Massachusetts law.[ 23 ] Contrary to respondents’ position, these “reasonable-cause laws” in no way represented the “direct precursor” to the proper-cause requirement. Brief for Respondents 27. While New York presumes that individuals have no public carry right without a showing of heightened need, the surety statutes presumed that individuals had a right to public carry that could be burdened only if another could make out a specific showing of “reasonable cause to fear an injury, or breach of the peace.” Mass. Rev. Stat., ch. 134, §16 (1836).[ 24 ] As William Rawle explained in an influential treatise, an individual’s carrying of arms was “sufficient cause to require him to give surety of the peace” only when “attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them.” A View of the Constitution of the United States of America 126 (2d ed. 1829). Then, even on such a showing, the surety laws did not prohibit public carry in locations frequented by the general community. Rather, an accused arms-bearer “could go on carrying without criminal penalty” so long as he “post[ed] money that would be forfeited if he breached the peace or injured others—a requirement from which he was exempt if he needed self-defense.” Wrenn , 864 F. 3d, at 661. Thus, unlike New York’s regime, a showing of special need was required only after an individual was reasonably accused of intending to injure another or breach the peace. And, even then, proving special need simply avoided a fee rather than a ban. All told, therefore, “[u]nder surety laws . . . everyone started out with robust carrying rights” and only those reasonably accused were required to show a special need in order to avoid posting a bond. Ibid. These antebellum special-need requirements “did not expand carrying for the responsible; it shrank burdens on carrying by the (allegedly) reckless.” Ibid. One Court of Appeals has nonetheless remarked that these surety laws were “a severe constraint on anyone thinking of carrying a weapon in public.” Young , 992 F. 3d, at 820. That contention has little support in the historical record. Respondents cite no evidence showing the average size of surety postings. And given that surety laws were “intended merely for prevention” and were “not meant as any degree of punishment,” 4 Blackstone, Commentaries, at 249, the burden these surety statutes may have had on the right to public carry was likely too insignificant to shed light on New York’s proper-cause standard—a violation of which can carry a 4-year prison term or a $5,000 fine. In Heller , we noted that founding-era laws punishing unlawful discharge “with a small fine and forfeiture of the weapon . . . , not with significant criminal penalties,” likely did not “preven[t] a person in the founding era from using a gun to protect himself or his family from violence, or that if he did so the law would be enforced against him.” 554 U. S., at 633–634. Similarly, we have little reason to think that the hypothetical possibility of posting a bond would have prevented anyone from carrying a firearm for self-defense in the 19th century. Besides, respondents offer little evidence that authorities ever enforced surety laws. The only recorded case that we know of involved a justice of the peace declining to require a surety, even when the complainant alleged that the arms-bearer “ ‘did threaten to beat, wou[n]d, mai[m], and kill’ ” him. Brief for Professor Robert Leider et al. as Amici Curiae 31 (quoting Grover v. Bullock , No. 185 (Worcester Cty., Aug. 13, 1853)); see E. Ruben & S. Cornell, Firearm Regionalism and Public Carry: Placing Southern Antebellum Case Law in Context, 125 Yale L. J. Forum 121, 130, n. 53 (2015). And one scholar who canvassed 19th-century newspapers—which routinely reported on local judicial matters—found only a handful of other examples in Massachusetts and the District of Columbia, all involving black defendants who may have been targeted for selective or pretextual enforcement. See R. Leider, Constitutional Liquidation, Surety Laws, and the Right To Bear Arms 15–17, in New Histories of Gun Rights and Regulation (J. Blocher, J. Charles, & D. Miller eds.) (forthcoming); see also Brief for Professor Robert Leider et al. as Amici Curiae 31–32. That is surely too slender a reed on which to hang a historical tradition of restricting the right to public carry.[ 25 ] Respondents also argue that surety statutes were severe restrictions on firearms because the “reasonable cause to fear” standard was essentially pro forma , given that “merely carrying firearms in populous areas breached the peace” per se . Brief for Respondents 27. But that is a counterintuitive reading of the language that the surety statutes actually used. If the mere carrying of handguns breached the peace, it would be odd to draft a surety statute requiring a complainant to demonstrate “reasonable cause to fear an injury, or breach of the peace,” Mass. Rev. Stat., ch. 134, §16, rather than a reasonable likelihood that the arms-bearer carried a covered weapon. After all, if it was the nature of the weapon rather than the manner of carry that was dispositive, then the “reasonable fear” requirement would be redundant. Moreover, the overlapping scope of surety statutes and criminal statutes suggests that the former were not viewed as substantial restrictions on public carry. For example, when Massachusetts enacted its surety statute in 1836, it reaffirmed its 1794 criminal prohibition on “go[ing] armed offensively, to the terror of the people.” Mass. Rev. Stat., ch. 85, §24. And Massachusetts continued to criminalize the carrying of various “dangerous weapons” well after passing the 1836 surety statute. See, e.g. , 1850 Mass. Acts ch. 194, §1, p. 401; Mass. Gen. Stat., ch. 164, §10 (1860). Similarly, Virginia had criminalized the concealed carry of pistols since 1838, see 1838 Va. Acts ch. 101, §1, nearly a decade before it enacted its surety statute, see 1847 Va. Acts ch. 14, §16. It is unlikely that these surety statutes constituted a “severe” restraint on public carry, let alone a restriction tantamount to a ban, when they were supplemented by direct criminal prohibitions on specific weapons and methods of carry. To summarize: The historical evidence from antebellum America does demonstrate that the manner of public carry was subject to reasonable regulation. Under the common law, individuals could not carry deadly weapons in a manner likely to terrorize others. Similarly, although surety statutes did not directly restrict public carry, they did provide financial incentives for responsible arms carrying. Finally, States could lawfully eliminate one kind of public carry—concealed carry—so long as they left open the option to carry openly . None of these historical limitations on the right to bear arms approach New York’s proper-cause requirement because none operated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose. 4 Evidence from around the adoption of the Fourteenth Amendment also fails to support respondents’ position. For the most part, respondents and the United States ignore the “outpouring of discussion of the [right to keep and bear arms] in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves” after the Civil War. Heller , 554 U. S., at 614. Of course, we are not obliged to sift the historical materials for evidence to sustain New York’s statute. That is respondents’ burden. Nevertheless, we think a short review of the public discourse surrounding Reconstruction is useful in demonstrating how public carry for self-defense remained a central component of the protection that the Fourteenth Amendment secured for all citizens. A short prologue is in order. Even before the Civil War commenced in 1861, this Court indirectly affirmed the importance of the right to keep and bear arms in public. Writing for the Court in Dred Scott v. Sandford , 19 How. 393 (1857), Chief Justice Taney offered what he thought was a parade of horribles that would result from recognizing that free blacks were citizens of the United States. If blacks were citizens, Taney fretted, they would be entitled to the privileges and immunities of citizens, including the right “to keep and carry arms wherever they went .” Id. , at 417 (emphasis added). Thus, even Chief Justice Taney recognized (albeit unenthusiastically in the case of blacks) that public carry was a component of the right to keep and bear arms—a right free blacks were often denied in antebellum America. After the Civil War, of course, the exercise of this fundamental right by freed slaves was systematically thwarted. This Court has already recounted some of the Southern abuses violating blacks’ right to keep and bear arms. See McDonald , 561 U. S., at 771 (noting the “systematic efforts” made to disarm blacks); id. , at 845–847 (Thomas, J., concurring in part and concurring in judgment); see also S. Exec. Doc. No. 43, 39th Cong., 1st Sess., 8 (1866) (“Pistols, old muskets, and shotguns were taken away from [freed slaves] as such weapons would be wrested from the hands of lunatics”). In the years before the 39th Congress proposed the Fourteenth Amendment, the Freedmen’s Bureau regularly kept it abreast of the dangers to blacks and Union men in the postbellum South. The reports described how blacks used publicly carried weapons to defend themselves and their communities. For example, the Bureau reported that a teacher from a Freedmen’s school in Maryland had written to say that, because of attacks on the school, “[b]oth the mayor and sheriff have warned the colored people to go armed to school, (which they do,)” and that the “[t]he superintendent of schools came down and brought [the teacher] a revolver” for his protection. Cong. Globe, 39th Cong., 1st Sess., 658 (1866); see also H. R. Exec. Doc. No. 68, 39th Cong., 2d Sess., 91 (1867) (noting how, during the New Orleans riots, blacks under attack “defended themselves . . . with such pistols as they had”). Witnesses before the Joint Committee on Reconstruction also described the depredations visited on Southern blacks, and the efforts they made to defend themselves. One Virginia music professor related that when “[t]wo Union men were attacked . . . they drew their revolvers and held their assailants at bay.” H. R. Rep. No. 30, 39th Cong., 1st Sess., pt. 2, p. 110 (1866). An assistant commissioner to the Bureau from Alabama similarly reported that men were “robbing and disarming negroes upon the highway,” H. R. Exec. Doc. No. 70, 39th Cong., 1st Sess., 297 (1866), indicating that blacks indeed carried arms publicly for their self- protection, even if not always with success. See also H. R. Exec. Doc. No. 329, 40th Cong., 2d Sess., 41 (1868) (describing a Ku Klux Klan outfit that rode “through the country . . . robbing every one they come across of money, pistols, papers, &c.”); id. , at 36 (noting how a black man in Tennessee had been murdered on his way to get book subscriptions, with the murderer taking, among other things, the man’s pistol). Blacks had “procured great numbers of old army muskets and revolvers, particularly in Texas,” and “employed them to protect themselves” with “vigor and audacity.” S. Exec. Doc. No. 43, 39th Cong., 1st Sess., at 8. Seeing that government was inadequately protecting them, “there [was] the strongest desire on the part of the freedmen to secure arms, revolvers particularly.” H. R. Rep. No. 30, 39th Cong., 1st Sess., pt. 3, at 102. On July 6, 1868, Congress extended the 1866 Freedmen’s Bureau Act, see 15Stat. 83, and reaffirmed that freedmen were entitled to the “full and equal benefit of all laws and proceedings concerning personal liberty [and] personal security . . . including the constitutional right to keep and bear arms .” §14, 14Stat. 176 (1866) (emphasis added). That same day, a Bureau official reported that freedmen in Kentucky and Tennessee were still constantly under threat: “No Union man or negro who attempts to take any active part in politics, or the improvement of his race, is safe a single day; and nearly all sleep upon their arms at night, and carry concealed weapons during the day.” H. R. Exec. Doc. No. 329, 40th Cong., 2d Sess., at 40. Of course, even during Reconstruction the right to keep and bear arms had limits. But those limits were consistent with a right of the public to peaceably carry handguns for self-defense. For instance, when General D. E. Sickles issued a decree in 1866 pre-empting South Carolina’s Black Codes—which prohibited firearm possession by blacks—he stated: “The constitutional rights of all loyal and well- disposed inhabitants to bear arms will not be infringed; nevertheless this shall not be construed to sanction the unlawful practice of carrying concealed weapons. . . . And no disorderly person, vagrant, or disturber of the peace, shall be allowed to bear arms.” Cong. Globe, 39th Cong., 1st Sess., at 908–909; see also McDonald , 561 U. S., at 847–848 (opinion of Thomas, J.).[ 26 ] Around the same time, the editors of The Loyal Georgian, a prominent black-owned newspaper, were asked by “A Colored Citizen” whether “colored persons [have] a right to own and carry fire arms.” The editors responded that blacks had “the same right to own and carry fire arms that other citizens have.” The Loyal Georgian, Feb. 3, 1866, p. 3, col. 4. And, borrowing language from a Freedmen’s Bureau circular, the editors maintained that “[a]ny person, white or black, may be disarmed if convicted of making an improper or dangerous use of weapons,” even though “no military or civil officer has the right or authority to disarm any class of people, thereby placing them at the mercy of others.” Ibid. (quoting Circular No. 5, Freedmen’s Bureau, Dec. 22, 1865); see also McDonald , 561 U. S., at 848–849 (opinion of Thomas, J.).[ 27 ] As for Reconstruction-era state regulations, there was little innovation over the kinds of public-carry restrictions that had been commonplace in the early 19th century. For instance, South Carolina in 1870 authorized the arrest of “all who go armed offensively, to the terror of the people,” 1870 S. C. Acts p. 403, no. 288, §4, parroting earlier statutes that codified the common-law offense. That same year, after it cleaved from Virginia, West Virginia enacted a surety statute nearly identical to the one it inherited from Virginia. See W. Va. Code, ch. 153, §8. Also in 1870, Tennessee essentially reenacted its 1821 prohibition on the public carry of handguns but, as explained above, Tennessee courts interpreted that statute to exempt large pistols suitable for military use. See supra , at 46. Respondents and the United States, however, direct our attention primarily to two late-19th-century cases in Texas. In 1871, Texas law forbade anyone from “carrying on or about his person . . . any pistol . . . unless he has reasonable grounds for fearing an unlawful attack on his person.” 1871 Tex. Gen. Laws §1. The Texas Supreme Court upheld that restriction in English v. State , 35 Tex. 473 (1871). The Court reasoned that the Second Amendment, and the State’s constitutional analogue, protected only those arms “as are useful and proper to an armed militia,” including holster pistols, but not other kinds of handguns. Id. , at 474–475. Beyond that constitutional holding, the English court further opined that the law was not “contrary to public policy,” id. , at 479, given that it “ma[de] all necessary exceptions” allowing deadly weapons to “be carried as means of self-defense,” and therefore “fully cover[ed] all wants of society,” id. , at 477. Four years later, in State v. Duke , 42 Tex. 455 (1875), the Texas Supreme Court modified its analysis. The court reinterpreted Texas’ State Constitution to protect not only military-style weapons but rather all arms “as are commonly kept, according to the customs of the people, and are appropriate for open and manly use in self-defense.” Id. , at 458. On that understanding, the court recognized that, in addition to “holster pistol[s],” the right to bear arms covered the carry of “such pistols at least as are not adapted to being carried concealed.” Id. , at 458–459. Nonetheless, after expanding the scope of firearms that warranted state constitutional protection, Duke held that requiring any pistol-bearer to have “ ‘reasonable grounds fearing an unlawful attack on [one’s] person’ ” was a “legitimate and highly proper” regulation of handgun carriage. Id. , at 456, 459–460. Duke thus concluded that the 1871 statute “appear[ed] to have respected the right to carry a pistol openly when needed for self-defense.” Id. , at 459. We acknowledge that the Texas cases support New York’s proper-cause requirement, which one can analogize to Texas’ “reasonable grounds” standard. But the Texas statute, and the rationales set forth in English and Duke , are outliers. In fact, only one other State, West Virginia, adopted a similar public-carry statute before 1900. See W. Va. Code, ch. 148, §7 (1887). The West Virginia Supreme Court upheld that prohibition, reasoning that no handguns of any kind were protected by the Second Amendment, a rationale endorsed by no other court during this period. See State v. Workman , 35 W. Va. 367, 371–374, 14 S.E. 9, 11 (1891). The Texas decisions therefore provide little insight into how postbellum courts viewed the right to carry protected arms in public. In the end, while we recognize the support that postbellum Texas provides for respondents’ view, we will not give disproportionate weight to a single state statute and a pair of state-court decisions. As in Heller , we will not “stake our interpretation of the Second Amendment upon a single law, in effect in a single [State], that contradicts the overwhelming weight of other evidence regarding the right to keep and bear arms for defense” in public. 554 U. S., at 632. 5 Finally, respondents point to the slight uptick in gun regulation during the late-19th century—principally in the Western Territories. As we suggested in Heller , however, late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence. See id. , at 614; supra , at 28.[ 28 ] Here, moreover, respondents’ reliance on late-19th-century laws has several serious flaws even beyond their temporal distance from the founding. The vast majority of the statutes that respondents invoke come from the Western Territories. Two Territories prohibited the carry of pistols in towns, cities, and villages, but seemingly permitted the carry of rifles and other long guns everywhere. See 1889 Ariz. Terr. Sess. Laws no. 13, §1, p. 16; 1869 N. M. Laws ch. 32, §§1–2, p. 72.[ 29 ] Two others prohibited the carry of all firearms in towns, cities, and villages, including long guns. See 1875 Wyo. Terr. Sess. Laws ch. 52, §1; 1889 Idaho Terr. Gen. Laws §1, p. 23. And one Territory completely prohibited public carry of pistols everywhere , but allowed the carry of “shot-guns or rifles” for certain purposes. See 1890 Okla. Terr. Stats., Art. 47, §§1–2, 5, p. 495. These territorial restrictions fail to justify New York’s proper-cause requirement for several reasons. First, the bare existence of these localized restrictions cannot overcome the overwhelming evidence of an otherwise enduring American tradition permitting public carry. For starters, “[t]he very transitional and temporary character of the American [territorial] system” often “permitted legislative improvisations which might not have been tolerated in a permanent setup.” E. Pomeroy, The Territories and the United States 1861–1890, p. 4 (1947). These territorial “legislative improvisations,” which conflict with the Nation’s earlier approach to firearm regulation, are most unlikely to reflect “the origins and continuing significance of the Second Amendment” and we do not consider them “instructive.” Heller , 554 U. S., at 614. The exceptional nature of these western restrictions is all the more apparent when one considers the miniscule territorial populations who would have lived under them. To put that point into perspective, one need not look further than the 1890 census. Roughly 62 million people lived in the United States at that time. Arizona, Idaho, New Mexico, Oklahoma, and Wyoming combined to account for only 420,000 of those inhabitants—about two-thirds of 1% of the population. See Dept. of Interior, Compendium of the Eleventh Census: 1890, Part I.–Population 2 (1892). Put simply, these western restrictions were irrelevant to more than 99% of the American population. We have already explained that we will not stake our interpretation of the Second Amendment upon a law in effect in a single State, or a single city, “that contradicts the overwhelming weight of other evidence regarding the right to keep and bear arms” in public for self-defense. Heller , 554 U. S., at 632; see supra, at 57–58. Similarly, we will not stake our interpretation on a handful of temporary territorial laws that were enacted nearly a century after the Second Amendment’s adoption, governed less than 1% of the American population, and also “contradic[t] the overwhelming weight” of other, more contemporaneous historical evidence. Heller , 554 U. S., at 632. Second, because these territorial laws were rarely subject to judicial scrutiny, we do not know the basis of their perceived legality. When States generally prohibited both open and concealed carry of handguns in the late-19th century, state courts usually upheld the restrictions when they exempted army revolvers, or read the laws to exempt at least that category of weapons. See, e.g. , Haile v. State , 38 Ark. 564, 567 (1882); Wilson v. State , 33 Ark. 557, 560 (1878); Fife v. State , 31 Ark. 455, 461 (1876); State v. Wilburn , 66 Tenn. 57, 60 (1872); Andrews , 50 Tenn., at 187.[ 30 ] Those state courts that upheld broader prohibitions without qualification generally operated under a fundamental misunderstanding of the right to bear arms, as expressed in Heller . For example, the Kansas Supreme Court upheld a complete ban on public carry enacted by the city of Salina in 1901 based on the rationale that the Second Amendment protects only “the right to bear arms as a member of the state militia, or some other military organization provided for by law.” Salina v. Blaksley , 72 Kan. 230, 232, 83 P. 619, 620 (1905). That was clearly erroneous. See Heller , 554 U. S., at 592. Absent any evidence explaining why these unprecedented prohibitions on all public carry were understood to comport with the Second Amendment, we fail to see how they inform “the origins and continuing significance of the Amendment.” Id. , at 614; see also The Federalist No. 37, at 229 (explaining that the meaning of ambiguous constitutional provisions can be “liquidated and ascertained by a series of particular discussions and adjudications ” (emphasis added)). Finally, these territorial restrictions deserve little weight because they were—consistent with the transitory nature of territorial government—short lived. Some were held unconstitutional shortly after passage. See In re Brickey , 8 Idaho 597, 70 P. 609 (1902). Others did not survive a Territory’s admission to the Union as a State. See Wyo. Rev. Stat., ch. 3, §5051 (1899) (1890 law enacted upon statehood prohibiting public carry only when combined with “intent, or avowed purpose, of injuring [one’s] fellow-man”). Thus, they appear more as passing regulatory efforts by not-yet-mature jurisdictions on the way to statehood, rather than part of an enduring American tradition of state regulation. Beyond these Territories, respondents identify one Western State—Kansas—that instructed cities with more than 15,000 inhabitants to pass ordinances prohibiting the public carry of firearms. See 1881 Kan. Sess. Laws §§1, 23, pp. 79, 92.[ 31 ] By 1890, the only cities meeting the population threshold were Kansas City, Topeka, and Wichita. See Compendium of the Eleventh Census: 1890, at 442–452. Even if each of these three cities enacted prohibitions by 1890, their combined population (93,000) accounted for only 6.5% of Kansas’ total population. Ibid. Although other Kansas cities may also have restricted public carry unilaterally,[ 32 ] the lone late-19th-century state law respondents identify does not prove that Kansas meaningfully restricted public carry, let alone demonstrate a broad tradition of States doing so. *  *  * At the end of this long journey through the Anglo-American history of public carry, we conclude that respondents have not met their burden to identify an American tradition justifying the State’s proper-cause requirement. The Second Amendment guaranteed to “all Americans” the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions. Heller , 554 U. S., at 581. Those restrictions, for example, limited the intent for which one could carry arms, the manner by which one carried arms, or the exceptional circumstances under which one could not carry arms, such as before justices of the peace and other government officials. Apart from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense. Nor, subject to a few late-in-time outliers, have American governments required law-abiding, responsible citizens to “demonstrate a special need for self-protection distinguishable from that of the general community” in order to carry arms in public. Klenosky , 75 App. Div., at 793, 428 N. Y. S. 2d, at 257. IV The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” McDonald , 561 U. S., at 780 (plurality opinion). We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense. New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 See Ala. Code §13A–11–75 (Cum. Supp. 2021); Alaska Stat. §18.65.700 (2020); Ariz. Rev. Stat. Ann. §13–3112 (Cum. Supp. 2021); Ark. Code Ann. §5–73–309 (Supp. 2021); Colo. Rev. Stat. §18–12–206 (2021); Fla. Stat. §790.06 (2021); Ga. Code Ann. §16–11–129 (Supp. 2021); Idaho Code Ann. §18–3302K (Cum. Supp. 2021); Ill. Comp. Stat., ch. 430, §66/10 (West Cum. Supp. 2021); Ind. Code §35–47–2–3 (2021); Iowa Code §724.7 (2022); Kan. Stat. Ann. §75–7c03 (2021); Ky. Rev. Stat. Ann. §237.110 (Lexis Cum. Supp. 2021); La. Rev. Stat. Ann. §40:1379.3 (West Cum. Supp. 2022); Me. Rev. Stat. Ann., Tit. 25, §2003 (Cum. Supp. 2022); Mich. Comp. Laws §28.425b (2020); Minn. Stat. §624.714 (2020); Miss. Code Ann. §45–9–101 (2022); Mo. Rev. Stat. §571.101 (2016); Mont. Code Ann. §45–8–321 (2021); Neb. Rev. Stat. §69–2430 (2019); Nev. Rev. Stat. §202.3657 (2021); N. H. Rev. Stat. Ann. §159:6 (Cum. Supp. 2021); N. M. Stat. Ann. §29–19–4 (2018); N. C. Gen. Stat. Ann. §14–415.11 (2021); N. D. Cent. Code Ann. §62.1–04–03 (Supp. 2021); Ohio Rev. Code Ann. §2923.125 (2020); Okla. Stat., Tit. 21, §1290.12 (2021); Ore. Rev. Stat. §166.291 (2021); 18 Pa. Cons. Stat. §6109 (Cum. Supp. 2016); S. C. Code Ann. §23–31–215(A) (Cum. Supp. 2021); S. D. Codified Laws §23–7–7 (Cum. Supp. 2021); Tenn. Code Ann. §39–17–1366 (Supp. 2021); Tex. Govt. Code Ann. §411.177 (West Cum. Supp. 2021); Utah Code §53–5–704.5 (2022); Va. Code Ann. §18.2–308.04 (2021); Wash. Rev. Code §9.41.070 (2021); W. Va. Code Ann. §61–7–4 (2021); Wis. Stat. §175.60 (2021); Wyo. Stat. Ann. §6–8–104 (2021). Vermont has no permitting system for the concealed carry of handguns. Three States—Connecticut, Delaware, and Rhode Island—have discretionary criteria but appear to operate like “shall issue” jurisdictions. See Conn. Gen. Stat. §29–28(b) (2021); Del. Code, Tit. 11, §1441 (2022); R. I. Gen. Laws §11–47–11 (2002). Although Connecticut officials have discretion to deny a concealed-carry permit to anyone who is not a “suitable person,” see Conn. Gen. Stat. §29–28(b), the “suitable person” standard precludes permits only to those “individuals whose conduct has shown them to be lacking the essential character of temperament necessary to be entrusted with a weapon.” Dwyer v. Farrell , 193 Conn. 7, 12, 475 A.2d 257, 260 (1984) (internal quotation marks omitted). As for Delaware, the State has thus far processed 5,680 license applications and renewals in fiscal year 2022 and has denied only 112. See Del. Courts, Super. Ct., Carrying Concealed Deadly Weapon (June 9, 2022), https://courts.delaware.gov/forms/download.aspx?ID=125408. Moreover, Delaware appears to have no licensing requirement for open carry. Finally, Rhode Island has a suitability requirement, see R. I. Gen. Laws §11–47–11, but the Rhode Island Supreme Court has flatly denied that the “[d]emonstration of a proper showing of need” is a component of that requirement. Gadomski v. Tavares , 113 A.3d 387, 392 (2015). Additionally, some “shall issue” jurisdictions have so-called “constitutional carry” protections that allow certain individuals to carry handguns in public within the State without any permit whatsoever. See, e.g. , A. Sherman, More States Remove Permit Requirement To Carry a Concealed Gun, PolitiFact (Apr. 12, 2022), https://www.politifact.com/article/2022/apr/12/more-states-remove-permit-requirement-carry-concea/ (“Twenty-five states now have permitless concealed carry laws . . . The states that have approved permitless carry laws are: Alabama, Alaska, Arizona, Arkansas, Idaho, Indiana, Iowa, Georgia, Kansas, Kentucky, Maine, Mississippi, Missouri, Montana, New Hampshire, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, Vermont, West Virginia, and Wyoming”). 2 See Cal. Penal Code Ann. §26150 (West 2021) (“Good cause”); D. C. Code §§7–2509.11(1) (2018), 22–4506(a) (Cum. Supp. 2021) (“proper reason,” i.e. , “special need for self-protection”); Haw. Rev. Stat. §§134–2 (Cum. Supp. 2018), 134–9(a) (2011) (“exceptional case”); Md. Pub. Saf. Code Ann. §5–306(a)(6)(ii) (2018) (“good and substantial reason”); Mass. Gen. Laws, ch. 140, §131(d) (2020) (“good reason”); N. J. Stat. Ann. §2C:58–4(c) (West Cum. Supp. 2021) (“justifiable need”). 3 Rather than begin with its view of the governing legal framework, the dissent chronicles, in painstaking detail, evidence of crimes committed by individuals with firearms. See post, at 1–9 (opinion of Breyer, J.). The dissent invokes all of these statistics presumably to justify granting States greater leeway in restricting firearm ownership and use. But, as Members of the Court have already explained, “[t]he right to keep and bear arms . . . is not the only constitutional right that has controversial public safety implications.” McDonald v. Chicago , 561 U.S. 742 , 783 (2010) (plurality opinion). 4 See Association of N. J. Rifle & Pistol Clubs , Inc. v. Attorney General N. J. , 910 F.3d 106, 117 (CA3 2018); accord, Worman v. Healey , 922 F.3d 26, 33, 36–39 (CA1 2019); Libertarian Party of Erie Cty. v. Cuomo , 970 F.3d 106, 127–128 (CA2 2020); Harley v. Wilkinson , 988 F.3d 766, 769 (CA4 2021); National Rifle Assn. of Am. , Inc. v. Bureau of Alcohol , Tobacco , Firearms , and Explosives , 700 F.3d 185, 194–195 (CA5 2012); United States v. Greeno , 679 F.3d 510, 518 (CA6 2012); Kanter v. Barr , 919 F.3d 437, 442 (CA7 2019); Young v. Hawaii , 992 F.3d 765, 783 (CA9 2021) (en banc); United States v. Reese , 627 F.3d 792, 800–801 (CA10 2010); GeorgiaCarry.Org , Inc. v. Georgia , 687 F.3d 1244, 1260, n. 34 (CA11 2012); United States v. Class , 930 F.3d 460, 463 (CADC 2019). 5 The dissent asserts that we misread Heller to eschew means-end scrutiny because Heller mentioned that the District of Columbia’s handgun ban “would fail constitutional muster” “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.” Heller , 554 U. S., at 628–629; see post, at 23 (opinion of Breyer, J.). But Heller ’s passing observation that the District’s ban would fail under any heightened “standar[d] of scrutiny” did not supplant Heller ’s focus on constitutional text and history. Rather, Heller ’s comment “was more of a gilding-the-lily observation about the extreme nature of D.C.’s law,” Heller v. District of Columbia , 670 F.3d 1244, 1277 (CADC 2011) (Kavanaugh, J., dissenting), than a reflection of Heller ’s methodology or holding. 6 The dissent claims that Heller ’s text-and-history test will prove unworkable compared to means-end scrutiny in part because judges are relatively ill equipped to “resolv[e] difficult historical questions” or engage in “searching historical surveys.” Post , at 26, 30. We are unpersuaded. The job of judges is not to resolve historical questions in the abstract; it is to resolve legal questions presented in particular cases or controversies. That “legal inquiry is a refined subset” of a broader “historical inquiry,” and it relies on “various evidentiary principles and default rules” to resolve uncertainties. W. Baude & S. Sachs, Originalism and the Law of the Past, 37 L. & Hist. Rev. 809, 810–811 (2019). For example, “[i]n our adversarial system of adjudication, we follow the principle of party presentation.” United States v. Sineneng-Smith , 590 U. S. ___, ___ (2020) (slip op., at 3). Courts are thus entitled to decide a case based on the historical record compiled by the parties. 7 This does not mean that courts may engage in independent means-end scrutiny under the guise of an analogical inquiry. Again, the Second Amendment is the “product of an interest balancing by the people ,” not the evolving product of federal judges. Heller , 554 U. S., at 635 (emphasis altered). Analogical reasoning requires judges to apply faithfully the balance struck by the founding generation to modern circumstances, and contrary to the dissent’s assertion, there is nothing “[i]roni[c]” about that undertaking. Post, at 30. It is not an invitation to revise that balance through means-end scrutiny. 8 The dissent claims that we cannot answer the question presented without giving respondents the opportunity to develop an evidentiary record fleshing out “how New York’s law is administered in practice, how much discretion licensing officers in New York possess, or whether the proper cause standard differs across counties.” Post, at 20. We disagree. The dissent does not dispute that any applicant for an unrestricted concealed-carry license in New York can satisfy the proper-cause standard only if he has “ ‘ “a special need for self-protection distinguishable from that of the general community.” ’ ” Post, at 13 (quoting Kachalsky v. County of Westchester , 701 F.3d 81, 86 (CA2 2012)). And in light of the text of the Second Amendment, along with the Nation’s history of firearm regulation, we conclude below that a State may not prevent law-abiding citizens from publicly carrying handguns because they have not demonstrated a special need for self-defense. See infra , at 62. That conclusion does not depend upon any of the factual questions raised by the dissent. Nash and Koch allege that they were denied unrestricted licenses because they had not “demonstrate[d] a special need for self-defense that distinguished [them] from the general public.” App. 123, 125. If those allegations are proven true, then it simply does not matter whether licensing officers have applied the proper-cause standard differently to other concealed-carry license applicants; Nash’s and Koch’s constitutional rights to bear arms in public for self-defense were still violated. 9 To be clear, nothing in our analysis should be interpreted to suggest the unconstitutionality of the 43 States’ “shall-issue” licensing regimes, under which “a general desire for self-defense is sufficient to obtain a [permit].” Drake v. Filko , 724 F.3d 426, 442 (CA3 2013) (Hardiman, J., dissenting). Because these licensing regimes do not require applicants to show an atypical need for armed self-defense, they do not necessarily prevent “law-abiding, responsible citizens” from exercising their Second Amendment right to public carry. District of Columbia v. Heller , 554 U.S. 570 , 635 (2008). Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, “law-abiding, responsible citizens.” Ibid. And they likewise appear to contain only “narrow, objective, and definite standards” guiding licensing officials, Shuttlesworth v. Birmingham , 394 U.S. 147 , 151 (1969), rather than requiring the “appraisal of facts, the exercise of judgment, and the formation of an opinion,” Cantwell v. Connecticut , 310 U.S. 296 , 305 (1940)—features that typify proper-cause standards like New York’s. That said, because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry. 10 Another medieval firearm restriction—a 1541 statute enacted under Henry VIII that limited the ownership and use of handguns (which could not be shorter than a yard) to those subjects with annual property values of at least £100, see 33 Hen. 8 c. 6, §§1–2—fell into a similar obsolescence. As far as we can discern, the last recorded prosecutions under the 1541 statute occurred in 1693, neither of which appears to have been successful. See King and Queen v. Bullock , 4 Mod. 147, 87 Eng. Rep. 315 (K. B. 1693); King v. Litten , 1 Shower, K. B. 367, 89 Eng. Rep. 644 (K. B. 1693). It seems that other prosecutions under the 1541 statute during the late 1600s were similarly unsuccessful. See King v. Silcot , 3 Mod. 280, 280–281, 87 Eng. Rep. 186 (K. B. 1690); King v. Lewellin , 1 Shower, K. B. 48, 89 Eng. Rep. 440 (K. B. 1689); cf. King and Queen v. Alsop , 4 Mod. 49, 50–51, 87 Eng. Rep. 256, 256–257 (K. B. 1691). By the late 1700s, it was widely recognized that the 1541 statute was “obsolete.” 2 R. Burn, The Justice of the Peace, and Parish Officer 243, n. (11th ed. 1769); see also, e.g., The Farmer’s Lawyer 143 (1774) (“entirely obsolete”); 1 G. Jacob, Game-Laws II, Law-Dictionary (T. Tomlins ed. 1797); 2 R. Burn, The Justice of the Peace, and Parish Officer 409 (18th ed. 1797) (calling the 1541 statute “a matter more of curiosity than use”). In any event, lest one be tempted to put much evidentiary weight on the 1541 statute, it impeded not only public carry, but further made it unlawful for those without sufficient means to “kepe in his or their houses” any “handgun.” 33 Hen. 8 c. 6, §1. Of course, this kind of limitation is inconsistent with Heller ’s historical analysis regarding the Second Amendment’s meaning at the founding and thereafter. So, even if a severe restriction on keeping firearms in the home may have seemed appropriate in the mid-1500s, it was not incorporated into the Second Amendment’s scope. We see little reason why the parts of the 1541 statute that address public carry should not be understood similarly. We note also that even this otherwise restrictive 1541 statute, which generally prohibited shooting firearms in any city, exempted discharges “for the defence of [one’s] p[er]son or house.” §4. Apparently, the paramount need for self-defense trumped the Crown’s interest in firearm suppression even during the 16th century. 11 The dissent discounts Sir John Knight’s Case , 3 Mod. 117, 87 Eng. Rep. 75, because it only “arguably” supports the view that an evil-intent requirement attached to the Statute of Northampton by the late 1600s and early 1700s. See post , at 37. But again, because the Second Amendment’s bare text covers petitioners’ public carry, the respondents here shoulder the burden of demonstrating that New York’s proper-cause requirement is consistent with the Second Amendment’s text and historical scope. See supra, at 15. To the extent there are multiple plausible interpretations of Sir John Knight’s Case , we will favor the one that is more consistent with the Second Amendment’s command. 12 Even Catholics, who fell beyond the protection of the right to have arms, and who were stripped of all “Arms, Weapons, Gunpowder, [and] Ammunition,” were at least allowed to keep “such necessary Weapons as shall be allowed . . . by Order of the Justices of the Peace . . . for the Defence of his House or Person.” 1 Wm. & Mary c. 15, §4, in 3 Eng. Stat. at Large 399 (1688). 13 Even assuming that pocket pistols were, as East Jersey in 1686 deemed them, “unusual or unlawful,” it appears that they were commonly used at least by the founding. See, e.g. , G. Neumann, The History of Weapons of the American Revolution 150–151 (1967); see also H. Hendrick, P. Paradis, & R. Hornick, Human Factors Issues in Handgun Safety and Forensics 44 (2008). 14 The Virginia statute all but codified the existing common law in this regard. See G. Webb, The Office and Authority of a Justice of Peace 92 (1736) (explaining how a constable “may take away Arms from such who ride, or go, offensively armed, in Terror of the People”). 15 The dissent concedes that Huntly , 25 N. C. 418, recognized that citizens were “ ‘at perfect liberty’  to carry for ‘lawful purpose[s].’ ” Post , at 42 (quoting Huntly , 25 N. C., at 423). But the dissent disputes that such “lawful purpose[s]” included self-defense, because Huntly goes on to speak more specifically of carrying arms for “business or amusement.” Id. , at 422–423. This is an unduly stingy interpretation of Huntly . In particular, Huntly stated that “the citizen is at perfect liberty to carry his gun” “[f]or any lawful purpose,” of which “business” and “amusement” were then mentioned. Ibid. (emphasis added). Huntly then contrasted these “lawful purpose[s]” with the “wicked purpose . . . to terrify and alarm.” Ibid. Because there is no evidence that Huntly considered self-defense a “wicked purpose,” we think the best reading of Huntly would sanction public carry for self-defense, so long as it was not “in such [a] manner as naturally will terrify and alarm.” Id. , at 423. 16 Beginning in 1813 with Kentucky, six States (five of which were in the South) enacted laws prohibiting the concealed carry of pistols by 1846. See 1813 Ky. Acts §1, p. 100; 1813 La. Acts p. 172; 1820 Ind. Acts p. 39; Ark. Rev. Stat. §13, p. 280 (1838); 1838 Va. Acts ch. 101, §1, p. 76; 1839 Ala. Acts no. 77, §1. During this period, Georgia enacted a law that appeared to prohibit both concealed and open carry, see 1837 Ga. Acts §§1, 4, p. 90, but the Georgia Supreme Court later held that the prohibition could not extend to open carry consistent with the Second Amendment. See infra , at 45–46. Between 1846 and 1859, only one other State, Ohio, joined this group. 1859 Ohio Laws §1, p. 56. Tennessee, meanwhile, enacted in 1821 a broader law that prohibited carrying, among other things, “belt or pocket pistols, either public or private,” except while traveling. 1821 Tenn. Acts ch. 13, §1, p. 15. And the Territory of Florida prohibited concealed carry during this same timeframe. See 1835 Terr. of Fla. Laws p. 423. 17 See State v. Mitchell , 3 Blackf. 229 (Ind. 1833); State v. Reid , 1 Ala. 612, 616 (1840); State v. Buzzard , 4 Ark. 18 (1842); Nunn v. State , 1 Ga. 243 (1846); State v. Chandler , 5 La. 489 (1850); State v. Smith , 11 La. 633 (1856); State v. Jumel , 13 La. 399 (1858). But see Bliss v. Commonwealth , 12 Ky. 90 (1822). See generally 2 J. Kent, Commentaries on American Law *340, n. b . 18 See Reid , 1 Ala., at 619 (holding that “the Legislature cannot inhibit the citizen from bearing arms openly”); id. , at 621 (noting that there was no evidence “tending to show that the defendant could not have defended himself as successfully, by carrying the pistol openly, as by secreting it about his person”). 19 See, e.g. , Chandler , 5 La., at 490 (Louisiana concealed-carry prohibition “interfered with no man’s right to carry arms (to use its words) ‘in full open view,’ which places men upon an equality”); Smith , 11 La., at 633 (The “arms” described in the Second Amendment “are such as are borne by a people in war, or at least carried openly”); Jumel , 13 La., at 399–400 (“The statute in question does not infringe the right of the people to keep or bear arms. It is a measure of police, prohibiting only a particular mode of bearing arms which is found dangerous to the peace of society”). 20 With respect to Indiana’s concealed-carry prohibition, the Indiana Supreme Court’s reasons for upholding it are unknown because the court issued a one-sentence per curiam order holding the law “not unconstitutional.” Mitchell , 3 Blackf., at 229. Similarly, the Arkansas Supreme Court upheld Arkansas’ prohibition, but without reaching a majority rationale. See Buzzard , 4 Ark. 18. The Arkansas Supreme Court would later adopt Tennessee’s approach, which tolerated the prohibition of all public carry of handguns except for military-style revolvers. See, e.g. , Fife v. State , 31 Ark. 455 (1876). 21 Shortly after Andrews , 50 Tenn. 165, Tennessee codified an exception to the State’s handgun ban for “an[y] army pistol, or such as are commonly carried and used in the United States Army” so long as they were carried “openly in [one’s] hands.” 1871 Tenn. Pub. Acts ch. 90, §1; see also State v. Wilburn , 66 Tenn. 57, 61–63 (1872); Porter v. State , 66 Tenn. 106, 107–108 (1874). 22 The Territory of New Mexico made it a crime in 1860 to carry “any class of pistols whatever” “concealed or otherwise.” 1860 Terr. of N. M. Laws §§1–2, p. 94. This extreme restriction is an outlier statute enacted by a territorial government nearly 70 years after the ratification of the Bill of Rights, and its constitutionality was never tested in court. Its value in discerning the original meaning of the Second Amendment is insubstantial. Moreover, like many other stringent carry restrictions that were localized in the Western Territories, New Mexico’s prohibition ended when the Territory entered the Union as a State in 1911 and guaranteed in its State Constitution that “[t]he people have the right to bear arms for their security and defense, but nothing herein shall be held to permit the carrying of concealed weapons.” N. M. Const., Art. II, §6 (1911); see infra , at 61. 23 See 1838 Terr. of Wis. Stat. §16, p. 381; Me. Rev. Stat., ch. 169, §16 (1840); Mich. Rev. Stat., ch. 162, §16 (1846); 1847 Va. Acts ch. 14, §16; Terr. of Minn. Rev. Stat., ch. 112, §18 (1851); 1854 Ore. Stat. ch. 16, §17, p. 220; D. C. Rev. Code ch. 141, §16 (1857); 1860 Pa. Laws p. 432, §6; W. Va. Code, ch. 153, §8 (1868). 24 It is true that two of the antebellum surety laws were unusually broad in that they did not expressly require a citizen complaint to trigger the posting of a surety. See 1847 Va. Acts ch. 14, §16; W. Va. Code, ch. 153, §8 (1868). 25 The dissent speculates that the absence of recorded cases involving surety laws may simply “show that these laws were normally followed.” Post, at 45. Perhaps. But again, the burden rests with the government to establish the relevant tradition of regulation, see supra, at 15, and, given all of the other features of surety laws that make them poor analogues to New York’s proper-cause standard, we consider the barren record of enforcement to be simply one additional reason to discount their relevance. 26 Respondents invoke General Orders No. 10, which covered the Second Military District (North and South Carolina), and provided that “[t]he practice of carrying deadly weapons, except by officers and soldiers in the military service of the United States, is prohibited.” Headquarters Second Military Dist., Gen. Orders No. 10 (Charleston, S. C., Apr. 11, 1867), in S. Exec. Doc. No. 14, 40th Cong., 1st Sess., 64 (1867). We put little weight on this categorical restriction given that the order also specified that a violation of this prohibition would “render the offender amenable to trial and punishment by military commission,” ibid. , rather than a jury otherwise guaranteed by the Constitution. There is thus little indication that these military dictates were designed to align with the Constitution’s usual application during times of peace. 27 That said, Southern prohibitions on concealed carry were not always applied equally, even when under federal scrutiny. One lieutenant posted in Saint Augustine, Florida, remarked how local enforcement of concealed-carry laws discriminated against blacks: “To sentence a negro to several dollars’ fine for carrying a revolver concealed upon his person, is in accordance with an ordinance of the town; but still the question naturally arises in my mind, ‘Why is this poor fellow fined for an offence which is committed hourly by every other white man I meet in the streets?’ ” H. R. Exec. Doc. No. 57, 40th Cong., 2d Sess., 83 (1867); see also H. R. Rep. No. 16, 39th Cong., 2d Sess., 427 (1867). 28 We will not address any of the 20th-century historical evidence brought to bear by respondents or their amici . As with their late-19th-century evidence, the 20th-century evidence presented by respondents and their amici does not provide insight into the meaning of the Second Amendment when it contradicts earlier evidence. 29 The New Mexico restriction allowed an exception for individuals carrying for “the lawful defence of themselves, their families or their property, and the same being then and there threatened with danger.” 1869 Terr. of N. M. Laws ch. 32, §1, p. 72. The Arizona law similarly exempted those who have “reasonable ground for fearing an unlawful attack upon his person.” 1889 Ariz. Terr. Sess. Laws no. 13, §2, p. 17. 30 Many other state courts during this period continued the antebellum tradition of upholding concealed carry regimes that seemingly provided for open carry. See, e.g. , State v. Speller , 86 N. C. 697 (1882); Chatteaux v. State , 52 Ala. 388 (1875); Eslava v. State , 49 Ala. 355 (1873); State v. Shelby , 90 Mo. 302, 2 S.W. 468 (1886); Carroll v. State , 28 Ark. 99 (1872); cf. Robertson v. Baldwin , 165 U.S. 275 , 281–282 (1897) (remarking in dicta that “the right of the people to keep and bear arms . . . is not infringed by laws prohibiting the carrying of concealed weapons”). 31 In 1875, Arkansas prohibited the public carry of all pistols. See 1875 Ark. Acts p. 156, §1. But this categorical prohibition was also short lived. About six years later, Arkansas exempted “pistols as are used in the army or navy of the United States,” so long as they were carried “uncovered, and in [the] hand.” 1881 Ark. Acts p. 191, no. 96, §§1, 2. 32 In 1879, Salina, Kansas, prohibited the carry of pistols but broadly exempted “cases when any person carrying [a pistol] is engaged in the pursuit of any lawful business, calling or employment” and the circumstances were “such as to justify a prudent man in carrying such weapon, for the defense of his person, property or family.” Salina, Kan., Rev. Ordinance No. 268, §2. SUPREME COURT OF THE UNITED STATES _________________ No. 20–843 _________________ New York State Rifle & Pistol Association, Inc., et al., PETITIONERS v. Kevin P. Bruen, in his official capacity as Superintendent of New York State Police, et al. on writ of certiorari to the united states court of appeals for the second circuit [June 23, 2022] Justice Alito, concurring. I join the opinion of the Court in full but add the following comments in response to the dissent. I Much of the dissent seems designed to obscure the specific question that the Court has decided, and therefore it may be helpful to provide a succinct summary of what we have actually held. In District of Columbia v. Heller , 554 U.S. 570 (2008), the Court concluded that the Second Amendment protects the right to keep a handgun in the home for self-defense. Heller found that the Amendment codified a preexisting right and that this right was regarded at the time of the Amendment’s adoption as rooted in “ ‘the natural right of resistance and self-preservation.’ ” Id., at 594. “[T]he inherent right of self-defense,” Heller explained, is “central to the Second Amendment right.” Id ., at 628. Although Heller concerned the possession of a handgun in the home, the key point that we decided was that “the people,” not just members of the “militia,” have the right to use a firearm to defend themselves. And because many people face a serious risk of lethal violence when they venture outside their homes, the Second Amendment was understood at the time of adoption to apply under those circumstances. The Court’s exhaustive historical survey establishes that point very clearly, and today’s decision therefore holds that a State may not enforce a law, like New York’s Sullivan Law, that effectively prevents its law-abiding residents from carrying a gun for this purpose. That is all we decide. Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may possess. Nor have we disturbed anything that we said in Heller or McDonald v. Chicago , 561 U.S. 742 (2010), about restrictions that may be imposed on the possession or carrying of guns. In light of what we have actually held, it is hard to see what legitimate purpose can possibly be served by most of the dissent’s lengthy introductory section. See post , at 1–8 (opinion of Breyer, J.). Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years? Post , at 4–5. Does the dissent think that laws like New York’s prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home? And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator. What is the relevance of statistics about the use of guns to commit suicide? See post , at 5–6. Does the dissent think that a lot of people who possess guns in their homes will be stopped or deterred from shooting themselves if they cannot lawfully take them outside? The dissent cites statistics about the use of guns in domestic disputes, see post, at 5, but it does not explain why these statistics are relevant to the question presented in this case. How many of the cases involving the use of a gun in a domestic dispute occur outside the home, and how many are prevented by laws like New York’s? The dissent cites statistics on children and adolescents killed by guns, see post, at 1, 4, but what does this have to do with the question whether an adult who is licensed to possess a handgun may be prohibited from carrying it outside the home? Our decision, as noted, does not expand the categories of people who may lawfully possess a gun, and federal law generally forbids the possession of a handgun by a person who is under the age of 18, 18 U. S. C. §§922(x)(2)–(5), and bars the sale of a handgun to anyone under the age of 21, §§922(b)(1), (c)(1).[ 1 ] The dissent cites the large number of guns in private hands—nearly 400 million—but it does not explain what this statistic has to do with the question whether a person who already has the right to keep a gun in the home for self-defense is likely to be deterred from acquiring a gun by the knowledge that the gun cannot be carried outside the home. See post , at 3. And while the dissent seemingly thinks that the ubiquity of guns and our country’s high level of gun violence provide reasons for sustaining the New York law, the dissent appears not to understand that it is these very facts that cause law-abiding citizens to feel the need to carry a gun for self-defense. No one apparently knows how many of the 400 million privately held guns are in the hands of criminals, but there can be little doubt that many muggers and rapists are armed and are undeterred by the Sullivan Law. Each year, the New York City Police Department (NYPD) confiscates thousands of guns,[ 2 ] and it is fair to assume that the number of guns seized is a fraction of the total number held unlawfully. The police cannot disarm every person who acquires a gun for use in criminal activity; nor can they provide bodyguard protection for the State’s nearly 20 million residents or the 8.8 million people who live in New York City. Some of these people live in high-crime neighborhoods. Some must traverse dark and dangerous streets in order to reach their homes after work or other evening activities. Some are members of groups whose members feel especially vulnerable. And some of these people reasonably believe that unless they can brandish or, if necessary, use a handgun in the case of attack, they may be murdered, raped, or suffer some other serious injury. Ordinary citizens frequently use firearms to protect themselves from criminal attack. According to survey data, defensive firearm use occurs up to 2.5 million times per year. Brief for Law Enforcement Groups et al. as Amici Curiae 5. A Centers for Disease Control and Prevention report commissioned by former President Barack Obama reviewed the literature surrounding firearms use and noted that “[s]tudies that directly assessed the effect of actual defensive uses of guns . . . have found consistently lower injury rates among gun-using crime victims compared with victims who used other self-protective strategies.” Institute of Medicine and National Research Council, Priorities for Research To Reduce the Threat of Firearm-Related Violence 15–16 (2013) (referenced in Brief for Independent Women’s Law Center as Amicus Curiae 19–20). Many of the amicus briefs filed in this case tell the story of such people. Some recount incidents in which a potential victim escaped death or serious injury only because carrying a gun for self-defense was allowed in the jurisdiction where the incident occurred. Here are two examples. One night in 1987, Austin Fulk, a gay man from Arkansas, “was chatting with another man in a parking lot when four gay bashers charged them with baseball bats and tire irons. Fulk’s companion drew his pistol from under the seat of his car, brandished it at the attackers, and fired a single shot over their heads, causing them to flee and saving the would-be victims from serious harm.” Brief for DC Project Foundation et al. as Amici Curiae 31 (footnote omitted). On July 7, 2020, a woman was brutally assaulted in the parking lot of a fast food restaurant in Jefferson City, Tennessee. Her assailant slammed her to the ground and began to drag her around while strangling her. She was saved when a bystander who was lawfully carrying a pistol pointed his gun at the assailant, who then stopped the assault and the assailant was arrested. Ibid. (citing C. Wethington, Jefferson City Police: Legally Armed Good Samaritan Stops Assault, ABC News 6, WATE.com (July 9, 2020), https://www.wate.com/news/local-news/jefferson-city-police-legally-armed-good-samaritan-stops-assault/). In other incidents, a law-abiding person was driven to violate the Sullivan Law because of fear of victimization and as a result was arrested, prosecuted, and incarcerated. See Brief for Black Attorneys of Legal Aid et al. as Amici Curiae 22–25. Some briefs were filed by members of groups whose members feel that they have special reasons to fear attacks. See Brief for Asian Pacific American Gun Owners Association as Amicus Curiae ; Brief for DC Project Foundation et al. as Amici Curiae ; Brief for Black Guns Matter et al . as Amici Curiae ; Brief for Independent Women’s Law Center as Amicus Curiae ; Brief for National African American Gun Association, Inc., as Amicus Curiae . I reiterate: All that we decide in this case is that the Second Amendment protects the right of law-abiding people to carry a gun outside the home for self-defense and that the Sullivan Law, which makes that virtually impossible for most New Yorkers, is unconstitutional. II This brings me to Part II–B of the dissent, post , at 11–21, which chastises the Court for deciding this case without a trial and factual findings about just how hard it is for a law-abiding New Yorker to get a carry permit. The record before us, however, tells us everything we need on this score. At argument, New York’s solicitor general was asked about an ordinary person who works at night and must walk through dark and crime-infested streets to get home. Tr. of Oral Arg. 66–67. The solicitor general was asked whether such a person would be issued a carry permit if she pleaded: “[T]here have been a lot of muggings in this area, and I am scared to death.” Id., at 67. The solicitor general’s candid answer was “in general,” no. Ibid. To get a permit, the applicant would have to show more—for example, that she had been singled out for attack. Id., at 65; see also id., at 58. A law that dictates that answer violates the Second Amendment. III My final point concerns the dissent’s complaint that the Court relies too heavily on history and should instead approve the sort of “means-end” analysis employed in this case by the Second Circuit. Under that approach, a court, in most cases, assesses a law’s burden on the Second Amendment right and the strength of the State’s interest in imposing the challenged restriction. See post , at 20. This mode of analysis places no firm limits on the ability of judges to sustain any law restricting the possession or use of a gun. Two examples illustrate the point. The first is the Second Circuit’s decision in a case the Court decided two Terms ago, New York State Rifle & Pistol Assn., Inc. v. City of New York , 590 U. S. ___ (2020). The law in that case affected New York City residents who had been issued permits to keep a gun in the home for self- defense. The city recommended that these permit holders practice at a range to ensure that they are able to handle their guns safely, but the law prohibited them from taking their guns to any range other than the seven that were spread around the city’s five boroughs. Even if such a person unloaded the gun, locked it in the trunk of a car, and drove to the nearest range, that person would violate the law if the nearest range happened to be outside city limits. The Second Circuit held that the law was constitutional, concluding, among other things, that the restriction was substantially related to the city’s interests in public safety and crime prevention. See New York State Rifle & Pistol Assn., Inc. v. New York , 883 F.3d 45, 62–64 (2018). But after we agreed to review that decision, the city repealed the law and admitted that it did not actually have any beneficial effect on public safety. See N. Y. Penal Law Ann. §400.00(6) (West Cum. Supp. 2022); Suggestion of Mootness in New York State Rifle & Pistol Assn., Inc. v. City of New York , O. T. 2019, No. 18–280, pp. 5–7. Exhibit two is the dissent filed in Heller by Justice Breyer, the author of today’s dissent. At issue in Heller was an ordinance that made it impossible for any District of Columbia resident to keep a handgun in the home for self-defense. See 554 U. S., at 574–575. Even the respondent, who carried a gun on the job while protecting federal facilities, did not qualify. Id., at 575–576. The District of Columbia law was an extreme outlier; only a few other jurisdictions in the entire country had similar laws. Nevertheless, Justice Breyer’s dissent, while accepting for the sake of argument that the Second Amendment protects the right to keep a handgun in the home, concluded, based on essentially the same test that today’s dissent defends, that the District’s complete ban was constitutional. See id., at 689, 722 (under “an interest-balancing inquiry. . .” the dissent would “conclude that the District’s measure is a proportionate, not a disproportionate, response to the compelling concerns that led the District to adopt it”). Like that dissent in Heller , the real thrust of today’s dissent is that guns are bad and that States and local jurisdictions should be free to restrict them essentially as they see fit.[ 3 ] That argument was rejected in Heller , and while the dissent protests that it is not rearguing Heller , it proceeds to do just that. See post , at 25–28. Heller correctly recognized that the Second Amendment codifies the right of ordinary law-abiding Americans to protect themselves from lethal violence by possessing and, if necessary, using a gun. In 1791, when the Second Amendment was adopted, there were no police departments, and many families lived alone on isolated farms or on the frontiers. If these people were attacked, they were on their own. It is hard to imagine the furor that would have erupted if the Federal Government and the States had tried to take away the guns that these people needed for protection. Today, unfortunately, many Americans have good reason to fear that they will be victimized if they are unable to protect themselves. And today, no less than in 1791, the Second Amendment guarantees their right to do so. Notes 1 The dissent makes no effort to explain the relevance of most of the incidents and statistics cited in its introductory section ( post , at 1–8) (opinion of Breyer, J.). Instead, it points to studies (summarized later in its opinion) regarding the effects of “shall issue” licensing regimes on rates of homicide and other violent crimes. I note only that the dissent’s presentation of such studies is one-sided. See RAND Corporation, Effects of Concealed-Carry Laws on Violent Crime (Apr. 22, 2022), https://www.rand.org/research/gun-policy/analysis/concealed-carry/violent-crime-html; see also Brief for William English et al. as Amici Curiae 3 (“The overwhelming weight of statistical analysis on the effects of [right-to-carry] laws on violent crime concludes that RTC laws do not result in any statistically significant increase in violent crime rates”); Brief for Arizona et al. as Amici Curiae 12 (“[P]opulation-level data on licensed carry is extensive, and the weight of the evidence confirms that objective, non-discriminatory licensed-carry laws have two results: (1) statistically significant reductions in some types of violent crime, or (2) no statistically significant effect on overall violent crime”); Brief for Law Enforcement Groups et al. as Amici Curiae 12 (“[O]ver the period 1991–2019 the inventory of firearms more than doubled; the number of concealed carry permits increased by at least sevenfold,” but “murder rates fell by almost half, from 9.8 per 100,000 people in 1991 to 5.0 per 100,000 in 2019” and “[v]iolent crimes plummeted by over half ”). 2 NYPD statistics show approximately 6,000 illegal guns were seized in 2021. A. Southall, This Police Captain’s Plan To Stop Gun Violence Uses More Than Handcuffs, N. Y. Times, Feb. 4, 2022. According to recent remarks by New York City Mayor Eric Adams, the NYPD has confiscated 3,000 firearms in 2022 so far. City of New York, Transcript: Mayor Eric Adams Makes Announcement About NYPD Gun Violence Suppression Division (June 6, 2022), https://www1.nyc.gov/office-of-the-mayor/news/369-22/trascript-mayor-eric-adams-makes-announcement-nypd-gun-violence-suppression-division. 3 If we put together the dissent in this case and Justice Breyer’s Heller dissent, States and local governments would essentially be free to ban the possession of all handguns, and it is unclear whether its approach would impose any significant restrictions on laws regulating long guns. The dissent would extend a very large measure of deference to legislation implicating Second Amendment rights, but it does not claim that such deference is appropriate when any other constitutional right is at issue. SUPREME COURT OF THE UNITED STATES _________________ No. 20–843 _________________ New York State Rifle & Pistol Association, Inc., et al., PETITIONERS v. Kevin P. Bruen, in his official capacity as Superintendent of New York State Police, et al. on writ of certiorari to the united states court of appeals for the second circuit [June 23, 2022] Justice Kavanaugh, with whom The Chief Justice joins, concurring. The Court employs and elaborates on the text, history, and tradition test that Heller and McDonald require for evaluating whether a government regulation infringes on the Second Amendment right to possess and carry guns for self-defense. See District of Columbia v. Heller , 554 U.S. 570 (2008); McDonald v. Chicago , 561 U.S. 742 (2010). Applying that test, the Court correctly holds that New York’s outlier “may-issue” licensing regime for carrying handguns for self-defense violates the Second Amendment. I join the Court’s opinion, and I write separately to underscore two important points about the limits of the Court’s decision. First , the Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense. In particular, the Court’s decision does not affect the existing licensing regimes—known as “shall-issue” regimes—that are employed in 43 States. The Court’s decision addresses only the unusual discretionary licensing regimes, known as “may-issue” regimes, that are employed by 6 States including New York. As the Court explains, New York’s outlier may-issue regime is constitutionally problematic because it grants open-ended discretion to licensing officials and authorizes licenses only for those applicants who can show some special need apart from self-defense. Those features of New York’s regime—the unchanneled discretion for licensing officials and the special-need requirement—in effect deny the right to carry handguns for self-defense to many “ordinary, law-abiding citizens.” Ante , at 1; see also Heller , 554 U. S., at 635. The Court has held that “individual self-defense is ‘the central component ’ of the Second Amendment right.” McDonald , 561 U. S., at 767 (quoting Heller , 554 U. S., at 599). New York’s law is inconsistent with the Second Amendment right to possess and carry handguns for self-defense. By contrast, 43 States employ objective shall-issue licensing regimes. Those shall-issue regimes may require a license applicant to undergo fingerprinting, a background check, a mental health records check, and training in firearms handling and in laws regarding the use of force, among other possible requirements. Brief for Arizona et al. as Amici Curiae 7. Unlike New York’s may-issue regime, those shall-issue regimes do not grant open-ended discretion to licensing officials and do not require a showing of some special need apart from self-defense. As petitioners acknowledge, shall-issue licensing regimes are constitutionally permissible, subject of course to an as-applied challenge if a shall-issue licensing regime does not operate in that manner in practice. Tr. of Oral Arg. 50−51. Going forward, therefore, the 43 States that employ objective shall-issue licensing regimes for carrying handguns for self-defense may continue to do so. Likewise, the 6 States including New York potentially affected by today’s decision may continue to require licenses for carrying handguns for self-defense so long as those States employ objective licensing requirements like those used by the 43 shall-issue States. Second , as Heller and McDonald established and the Court today again explains, the Second Amendment “is neither a regulatory straightjacket nor a regulatory blank check.” Ante , at 21. Properly interpreted, the Second Amendment allows a “variety” of gun regulations. Heller , 554 U. S., at 636. As Justice Scalia wrote in his opinion for the Court in Heller , and Justice Alito reiterated in relevant part in the principal opinion in McDonald : “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. . . . [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. [Footnote 26: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.] “We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those in common use at the time. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons.” Heller , 554 U. S., at 626−627, and n. 26 (citations and quotation marks omitted); see also McDonald , 561 U. S., at 786 (plurality opinion). *  *  * With those additional comments, I join the opinion of the Court. SUPREME COURT OF THE UNITED STATES _________________ No. 20–843 _________________ New York State Rifle & Pistol Association, Inc., et al., PETITIONERS v. Kevin P. Bruen, in his official capacity as Superintendent of New York State Police, et al. on writ of certiorari to the united states court of appeals for the second circuit [June 23, 2022] Justice Barrett, concurring. I join the Court’s opinion in full. I write separately to highlight two methodological points that the Court does not resolve. First, the Court does not conclusively determine the manner and circumstances in which postratification practice may bear on the original meaning of the Constitution. See ante , at 24–29. Scholars have proposed competing and potentially conflicting frameworks for this analysis, including liquidation, tradition, and precedent. See, e.g. , Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519 (2003); McConnell, Time, Institutions, and Interpretation, 95 B. U. L. Rev. 1745 (2015). The limits on the permissible use of history may vary between these frameworks (and between different articulations of each one). To name just a few unsettled questions: How long after ratification may subsequent practice illuminate original public meaning? Cf. McCulloch v. Maryland , 4 Wheat. 316, 401 (1819) (citing practice “introduced at a very early period of our history”). What form must practice take to carry weight in constitutional analysis? See Myers v. United States , 272 U.S. 52 , 175 (1926) (citing a “legislative exposition of the Constitution . . . acquiesced in for a long term of years”). And may practice settle the meaning of individual rights as well as structural provisions? See Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1, 49–51 (2019) (canvassing arguments). The historical inquiry presented in this case does not require us to answer such questions, which might make a difference in another case. See ante , at 17–19. Second and relatedly, the Court avoids another “ongoing scholarly debate on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868” or when the Bill of Rights was ratified in 1791. Ante , at 29. Here, the lack of support for New York’s law in either period makes it unnecessary to choose between them. But if 1791 is the benchmark, then New York’s appeals to Reconstruction-era history would fail for the independent reason that this evidence is simply too late (in addition to too little). Cf. Espinoza v. Montana Dept. of Revenue , 591 U. S. ___, ___–___ (2020) (slip op., at 15–16) (a practice that “arose in the second half of the 19th century . . . cannot by itself establish an early American tradition” informing our understanding of the First Amendment). So today’s decision should not be understood to endorse freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights. On the contrary, the Court is careful to caution “against giving postenactment history more weight than it can rightly bear.” Ante , at 26. SUPREME COURT OF THE UNITED STATES _________________ No. 20–843 _________________ New York State Rifle & Pistol Association, Inc., et al., PETITIONERS v. Kevin P. Bruen, in his official capacity as Superintendent of New York State Police, et al. on writ of certiorari to the united states court of appeals for the second circuit [June 23, 2022] Justice Breyer, with whom Justice Sotomayor and Justice Kagan join, dissenting. In 2020, 45,222 Americans were killed by firearms. See Centers for Disease Control and Prevention, Fast Facts: Firearm Violence Prevention (last updated May 4, 2022) (CDC, Fast Facts), https://www.cdc.gov/violenceprevention/ firearms/fastfact.html. Since the start of this year (2022), there have been 277 reported mass shootings—an average of more than one per day. See Gun Violence Archive (last visited June 20, 2022), https://www.gunviolence archive.org. Gun violence has now surpassed motor vehicle crashes as the leading cause of death among children and adolescents. J. Goldstick, R. Cunningham, & P. Carter, Current Causes of Death in Children and Adolescents in the United States, 386 New England J. Med. 1955 (May 19, 2022) (Goldstick). Many States have tried to address some of the dangers of gun violence just described by passing laws that limit, in various ways, who may purchase, carry, or use firearms of different kinds. The Court today severely burdens States’ efforts to do so. It invokes the Second Amendment to strike down a New York law regulating the public carriage of concealed handguns. In my view, that decision rests upon several serious mistakes. First, the Court decides this case on the basis of the pleadings, without the benefit of discovery or an evidentiary record. As a result, it may well rest its decision on a mistaken understanding of how New York’s law operates in practice. Second, the Court wrongly limits its analysis to focus nearly exclusively on history. It refuses to consider the government interests that justify a challenged gun regulation, regardless of how compelling those interests may be. The Constitution contains no such limitation, and neither do our precedents. Third, the Court itself demonstrates the practical problems with its history-only approach. In applying that approach to New York’s law, the Court fails to correctly identify and analyze the relevant historical facts. Only by ignoring an abundance of historical evidence supporting regulations restricting the public carriage of firearms can the Court conclude that New York’s law is not “consistent with the Nation’s historical tradition of firearm regulation.” See ante, at 15. In my view, when courts interpret the Second Amendment, it is constitutionally proper, indeed often necessary, for them to consider the serious dangers and consequences of gun violence that lead States to regulate firearms. The Second Circuit has done so and has held that New York’s law does not violate the Second Amendment. See Kachalsky v. County of Westchester , 701 F.3d 81, 97–99, 101 (2012). I would affirm that holding. At a minimum, I would not strike down the law based only on the pleadings, as the Court does today—without first allowing for the development of an evidentiary record and without considering the State’s compelling interest in preventing gun violence. I respectfully dissent. I The question before us concerns the extent to which the Second Amendment prevents democratically elected officials from enacting laws to address the serious problem of gun violence. And yet the Court today purports to answer that question without discussing the nature or severity of that problem. In 2017, there were an estimated 393.3 million civilian-held firearms in the United States, or about 120 fire- arms per 100 people. A. Karp, Estimating Global Civilian-Held Firearms Numbers, Small Arms Survey 4 (June 2018), https://www.smallarmssurvey.org/sites/default/files/ resources/SAS-BP-Civilian-Firearms-Numbers.pdf. That is more guns per capita than in any other country in the world. Ibid. (By comparison, Yemen is second with about 52.8 firearms per 100 people—less than half the per capita rate in the United States—and some countries, like Indonesia and Japan, have fewer than one firearm per 100 people. Id., at 3–4.) Unsurprisingly, the United States also suffers a disproportionately high rate of firearm-related deaths and injuries. Cf. Brief for Educational Fund To Stop Gun Violence et al. as Amici Curiae 17–18 (Brief for Educational Fund) (citing studies showing that, within the United States, “states that rank among the highest in gun ownership also rank among the highest in gun deaths” while “states with lower rates of gun ownership have lower rates of gun deaths”). In 2015, approximately 36,000 people were killed by firearms nationwide. M. Siegel et al., Easiness of Legal Access to Concealed Firearm Permits and Homicide Rates in the United States, 107 Am. J. Pub. Health 1923 (2017). Of those deaths, 22,018 (or about 61%) were suicides, 13,463 (37%) were homicides, and 489 (1%) were unintentional injuries. Ibid . On top of that, firearms caused an average of 85,694 emergency room visits for nonfatal injuries each year between 2009 and 2017. E. Kaufman et al., Epidemiological Trends in Fatal and Nonfatal Firearm Injuries in the US, 2009–2017, 181 JAMA Internal Medicine 237 (2021) (Kaufman). Worse yet, gun violence appears to be on the rise. By 2020, the number of firearm-related deaths had risen to 45,222, CDC, Fast Facts, or by about 25% since 2015. That means that, in 2020, an average of about 124 people died from gun violence every day. Ibid . As I mentioned above, gun violence has now become the leading cause of death in children and adolescents, surpassing car crashes, which had previously been the leading cause of death in that age group for over 60 years. Goldstick 1955; J. Bates, Guns Became the Leading Cause of Death for American Children and Teens in 2020, Time, Apr. 27, 2022, https://www. time.com/6170864/cause-of-death-children-guns/. And the consequences of gun violence are borne disproportionately by communities of color, and Black communities in particular. See CDC, Age-Adjusted Rates of Firearm-Related Homicide, by Race, Hispanic Origin, and Sex—National Vital Statistics System, United States, 2019, at 1491 (Oct. 22, 2021), https://www.cdc.gov/mmwr/volumes/70/wr/pdfs/ mm7042a6-H.pdf (documenting 34.9 firearm-related homicides per 100,000 population for non-Hispanic Black men in 2019, compared to 7.7 such homicides per 100,000 population for men of all races); S. Kegler et al., CDC, Vital Signs : Changes in Firearm Homicide and Suicide Rates—United States, 2019–2020, at 656–658 (May 13, 2022), https:// www.cdc.gov/mmwr/volumes/71/wr/pdfs/mm7119e1-H.pdf. The dangers posed by firearms can take many forms. Newspapers report mass shootings occurring at an entertainment district in Philadelphia, Pennsylvania (3 dead and 11 injured); an elementary school in Uvalde, Texas (21 dead); a supermarket in Buffalo, New York (10 dead and 3 injured); a series of spas in Atlanta, Georgia (8 dead); a busy street in an entertainment district of Dayton, Ohio (9 dead and 17 injured); a nightclub in Orlando, Florida (50 dead and 53 injured); a church in Charleston, South Carolina (9 dead); a movie theater in Aurora, Colorado (12 dead and 50 injured); an elementary school in Newtown, Connecticut (26 dead); and many, many more. See, e.g., R. Todt, 3 Dead, 11 Wounded in Philadelphia Shooting on Busy Street, Washington Post, June 5, 2022; A. Hernández, J. Slater, D. Barrett, & S. Foster-Frau, At Least 19 Children, 2 Teachers Killed at Texas Elementary School, Washington Post, May 25, 2022; A. Joly, J. Slater, D. Barrett, & A. Hernandez, 10 Killed in Racially Motivated Shooting at Buffalo Grocery Store, Washington Post , May 14, 2022; C. McWhirter & V. Bauerlein, Atlanta-Area Shootings at Spas Leave Eight Dead, Wall Street Journal, Mar. 17, 2021; A. Hassan, Dayton Gunman Shot 26 People in 32 Seconds, Police Timeline Reveals, N. Y. Times, Aug. 13, 2019; L. Alvarez & R. Pérez-Peña, Orlando Gunman Attacks Gay Nightclub, Leaving 50 Dead, N. Y. Times, June 12, 2016; J. Horowitz, N. Corasaniti, & A. Southall, Nine Killed in Shooting at Black Church in Charleston, N. Y. Times, June 17, 2015; R. Lin, Gunman Kills 12 at ‘Dark Knight Rises’ Screening in Colorado, L. A. Times, July 20, 2012; J. Barron, Nation Reels After Gunman Massacres 20 Children at School in Connecticut, N. Y. Times, Dec. 14, 2012. Since the start of this year alone (2022), there have already been 277 reported mass shootings—an average of more than one per day. Gun Violence Archive; see also Gun Violence Archive, General Methodology, https://www.gunviolencearchive.org/methodology (defining mass shootings to include incidents in which at least four victims are shot, not including the shooter). And mass shootings are just one part of the problem. Easy access to firearms can also make many other aspects of American life more dangerous. Consider, for example, the effect of guns on road rage. In 2021, an average of 44 people each month were shot and either killed or wounded in road rage incidents, double the annual average between 2016 and 2019. S. Burd-Sharps & K. Bistline, Everytown for Gun Safety, Reports of Road Rage Shootings Are on the Rise (Apr. 4, 2022), https://www.everytownresearch.org/reports-of-road-rage-shootings-are-on-the-rise/; see also J. Dono- hue, A. Aneja, & K. Weber, Right-to-Carry Laws and Violent Crime: A Comprehensive Assessment Using Panel Data and a State-Level Synthetic Control Analysis, 16 J. Empirical Legal Studies 198, 204 (2019). Some of those deaths might have been avoided if there had not been a loaded gun in the car. See ibid. ; Brief for American Bar Association as Amicus Curiae 17–18; Brief for Educational Fund 20–23 (citing studies showing that the presence of a firearm is likely to increase aggression in both the person carrying the gun and others who see it). The same could be said of protests: A study of 30,000 protests between January 2020 and June 2021 found that armed protests were nearly six times more likely to become violent or destructive than unarmed protests. Everytown for Gun Safety, Armed Assembly: Guns, Demonstrations, and Political Violence in America (Aug. 23, 2021), https:// www.everytownresearch.org/report/armed- assembly-guns-demonstrations-and-political-violence-in-america/ (finding that 16% of armed protests turned violent, compared to less than 3% of unarmed protests). Or domestic disputes: Another study found that a woman is five times more likely to be killed by an abusive partner if that partner has access to a gun. Brief for Educational Fund 8 (citing A. Zeoli, R. Malinski, & B. Turchan, Risks and Targeted Interventions: Firearms in Intimate Partner Violence, 38 Epidemiologic Revs. 125 (2016); J. Campbell et al., Risk Factors for Femicide in Abusive Relationships: Results From a Multisite Case Control Study, 93 Am. J. Pub. Health 1089, 1092 (2003)). Or suicides: A study found that men who own handguns are three times as likely to commit suicide than men who do not and women who own handguns are seven times as likely to commit suicide than women who do not. D. Studdert et al., Handgun Ownership and Suicide in California, 382 New England J. Med. 2220, 2224 (June 4, 2020). Consider, too, interactions with police officers. The presence of a gun in the hands of a civilian poses a risk to both officers and civilians. Amici prosecutors and police chiefs tell us that most officers who are killed in the line of duty are killed by firearms; they explain that officers in States with high rates of gun ownership are three times as likely to be killed in the line of duty as officers in States with low rates of gun ownership. Brief for Prosecutors Against Gun Violence as Amicus Curiae 23–24; Brief for Former Major City Police Chiefs as Amici Curiae 13–14, and n. 21, (citing D. Swedler, M. Simmons, F. Dominici, & D. Hemenway, Firearm Prevalence and Homicides of Law Enforcement Officers in the United States, 105 Am. J. Pub. Health 2042, 2045 (2015)). They also say that States with the highest rates of gun ownership report four times as many fatal shootings of civilians by police officers compared to States with the lowest rates of gun ownership. Brief for Former Major City Police Chiefs as Amici Curiae 16 (citing D. Hemenway, D. Azrael, A. Connor, & M. Miller, Variation in Rates of Fatal Police Shootings Across US States: The Role of Firearm Availability, 96 J. Urb. Health 63, 67 (2018)). These are just some examples of the dangers that firearms pose. There is, of course, another side to the story. I am not simply saying that “guns are bad.” See ante, at 8 (Alito, J., concurring). Some Americans use guns for legitimate purposes, such as sport ( e.g., hunting or target shooting), certain types of employment ( e.g., as a private security guard), or self-defense. Cf. ante, at 4–6 (Alito, J., concurring). Balancing these lawful uses against the dangers of firearms is primarily the responsibility of elected bodies, such as legislatures. It requires consideration of facts, statistics, expert opinions, predictive judgments, relevant values, and a host of other circumstances, which together make decisions about how, when, and where to regulate guns more appropriately legislative work. That consideration counsels modesty and restraint on the part of judges when they interpret and apply the Second Amendment. Consider, for one thing, that different types of firearms may pose different risks and serve different purposes. The Court has previously observed that handguns, the type of firearm at issue here, “are the most popular weapon chosen by Americans for self-defense in the home.” District of Columbia v. Heller , 554 U.S. 570 , 629 (2008). But handguns are also the most popular weapon chosen by perpetrators of violent crimes. In 2018, 64.4% of firearm homicides and 91.8% of nonfatal firearm assaults were committed with a handgun. Dept. of Justice, Bureau of Justice Statistics, G. Kena & J. Truman, Trends and Patterns in Firearm Violence, 1993–2018, pp. 5–6 (Apr. 2022). Handguns are also the most commonly stolen type of firearm—63% of burglaries resulting in gun theft between 2005 and 2010 involved the theft of at least one handgun. Dept. of Justice, Bureau of Justice Statistics, L. Langton, Firearms Stolen During Household Burglaries and Other Property Crimes, 2005–2010, p. 3 (Nov. 2012). Or consider, for another thing, that the dangers and benefits posed by firearms may differ between urban and rural areas. See generally Brief for City of Chicago et al. as Amici Curiae (detailing particular concerns about gun violence in large cities). Firearm-related homicides and assaults are significantly more common in urban areas than rural ones. For example, from 1999 to 2016, 89.8% of the 213,175 firearm-related homicides in the United States occurred in “metropolitan” areas. M. Siegel et al., The Impact of State Firearm Laws on Homicide Rates in Suburban and Rural Areas Compared to Large Cities in the United States, 1991–2016, 36 J. Rural Health 255 (2020); see also Brief for Partnership for New York City as Amicus Curiae 10; Kaufman 237 (finding higher rates of fatal assault injuries from firearms in urban areas compared to rural areas); C. Branas, M. Nance, M. Elliott, T. Richmond, & C. Schwab, Urban-Rural Shifts in Intentional Firearm Death: Different Causes, Same Results, 94 Am. J. Pub. Health 1750, 1752 (2004) (finding higher rates of firearm homicide in urban counties compared to rural counties). Justice Alito asks why I have begun my opinion by reviewing some of the dangers and challenges posed by gun violence and what relevance that has to today’s case. Ante, at 2–4 (concurring opinion). All of the above considerations illustrate that the question of firearm regulation presents a complex problem—one that should be solved by legislatures rather than courts. What kinds of firearm regulations should a State adopt? Different States might choose to answer that question differently. They may face different challenges because of their different geographic and demographic compositions. A State like New York, which must account for the roughly 8.5 million people living in the 303 square miles of New York City, might choose to adopt different (and stricter) firearms regulations than States like Montana or Wyoming, which do not contain any city remotely comparable in terms of population or density. See U. S. Census Bureau, Quick Facts: New York City (last updated July 1, 2021) (Quick Facts: New York City), https:// www.census.gov/quickfacts/newyorkcitynewyork/; Brief for City of New York as Amicus Curiae 8, 22. For a variety of reasons, States may also be willing to tolerate different degrees of risk and therefore choose to balance the competing benefits and dangers of firearms differently. The question presented in this case concerns the extent to which the Second Amendment restricts different States (and the Federal Government) from working out solutions to these problems through democratic processes. The primary difference between the Court’s view and mine is that I believe the Amendment allows States to take account of the serious problems posed by gun violence that I have just described. I fear that the Court’s interpretation ignores these significant dangers and leaves States without the ability to address them. II A New York State requires individuals to obtain a license in order to carry a concealed handgun in public. N. Y. Penal Law Ann. §400.00(2) (West Cum. Supp. 2022). I address the specifics of that licensing regime in greater detail in Part II–B below. Because, at this stage in the proceedings, the parties have not had an opportunity to develop the evidentiary record, I refer to facts and representations made in petitioners’ complaint and in amicus briefs filed before us. Under New York’s regime, petitioners Brandon Koch and Robert Nash have obtained restricted licenses that permit them to carry a concealed handgun for certain purposes and at certain times and places. They wish to expand the scope of their licenses so that they can carry a concealed handgun without restriction. Koch and Nash are residents of Rensselaer County, New York. Koch lives in Troy, a town of about 50,000, located eight miles from New York’s capital city of Albany, which has a population of about 98,000. See App. 100; U. S. Census Bureau, Quick Facts: Troy City, New York (last updated July 1, 2021), https://www.census.gov/quickfacts/ troycitynewyork; id. , Albany City, New York, https://www. census.gov/quickfacts/albanycitynewyork. Nash lives in Averill Park, a small town 12.5 miles from Albany. App. 100. Koch and Nash each applied for a license to carry a concealed handgun. Both were issued restricted licenses that allowed them to carry handguns only for purposes of hunting and target shooting. Id ., at 104, 106. But they wanted “unrestricted” licenses that would allow them to carry concealed handguns “for personal protection and all lawful purposes.” Id ., at 112; see also id ., at 40. They wrote to the licensing officer in Rensselaer County—Justice Richard McNally, a justice of the New York Supreme Court—requesting that the hunting and target shooting restrictions on their licenses be removed. Id., at 40, 111–113. After holding individual hearings for each petitioner, Justice McNally denied their requests. Id., at 31, 41, 105, 107, 114. He clarified that, in addition to hunting and target shooting, Koch and Nash could “carry concealed for purposes of off road back country, outdoor activities similar to hunting, for example fishing, hiking & camping.” Id., at 41, 114. He also permitted Koch, who was employed by the New York Court System’s Division of Technology, to “carry to and from work.” Id ., at 111, 114. But he reaffirmed that Nash was prohibited from carrying a concealed handgun in locations “typically open to and frequented by the general public.” Id. , at 41. Neither Koch nor Nash alleges that he appealed Justice McNally’s decision. Brief for Respondents 13; see App. 122–126. Instead, petitioners Koch and Nash, along with the New York State Rifle & Pistol Association, Inc., brought this lawsuit in federal court against Justice McNally and other State representatives responsible for enforcing New York’s firearms laws. Petitioners claimed that the State’s refusal to modify Koch’s and Nash’s licenses violated the Second Amendment. The District Court dismissed their complaint. It followed Second Circuit precedent holding that New York’s licensing regime was constitutional. See Kachalsky , 701 F. 3d, at 101. The Court of Appeals for the Second Circuit affirmed. We granted certiorari to review the constitutionality of “New York’s denial of petitioners’ license applications.” Ante, at 8 (majority opinion). B As the Court recognizes, New York’s licensing regime traces its origins to 1911, when New York enacted the “Sullivan Law,” which prohibited public carriage of handguns without a license. See 1911 N. Y. Laws ch. 195, §1, p. 443. Two years later in 1913, New York amended the law to establish substantive standards for the issuance of a license. See 1913 N. Y. Laws ch. 608, §1, pp. 1627–1629. Those standards have remained the foundation of New York’s licensing regime ever since—a regime that the Court now, more than a century later, strikes down as unconstitutional. As it did over 100 years ago, New York’s law today continues to require individuals to obtain a license before carrying a concealed handgun in public. N. Y. Penal Law Ann. §400.00(2); Kachalsky , 701 F. 3d, at 85–86. Because the State does not allow the open carriage of handguns at all, a concealed-carry license is the only way to legally carry a handgun in public . Id ., at 86. This licensing requirement applies only to handguns ( i.e., “pistols and revolvers”) and short-barreled rifles and shotguns, not to all types of firearms. Id. , at 85. For instance, the State does not require a license to carry a long gun ( i.e., a rifle or a shotgun over a certain length) in public. Ibid. ; §265.00(3) (West 2022). To obtain a concealed-carry license for a handgun, an applicant must satisfy certain eligibility criteria. Among other things, he must generally be at least 21 years old and of “good moral character.” §400.00(1). And he cannot have been convicted of a felony, dishonorably discharged from the military, or involuntarily committed to a mental hygiene facility. Ibid . If these and other eligibility criteria are satisfied, New York law provides that a concealed-carry license “shall be issued” to individuals working in certain professions, such as judges, corrections officers, or messengers of a “banking institution or express company.” §400.00(2). Individuals who satisfy the eligibility criteria but do not work in one of these professions may still obtain a concealed-carry license, but they must additionally show that “proper cause exists for the issuance thereof.” §400.00(2)(f ). The words “proper cause” may appear on their face to be broad, but there is “a substantial body of law instructing licensing officials on the application of this standard.” Id. , at 86. New York courts have interpreted proper cause “to include carrying a handgun for target practice, hunting, or self-defense.” Ibid . When an applicant seeks a license for target practice or hunting, he must show “ ‘a sincere desire to participate in target shooting and hunting.’ ” Ibid . (quoting In re O’Connor , 154 Misc. 2d 694, 697, 585 N.Y.S.2d 1000, 1003 (Westchester Cty. 1992)). When an applicant seeks a license for self-defense, he must show “ ‘a special need for self-protection distinguishable from that of the general community.’ ” 701 F. 3d, at 86 (quoting In re Klenosky , 75 App. Div. 2d 793, 793, 428 N.Y.S.2d 256, 257 (1980)). Whether an applicant meets these proper cause standards is determined in the first instance by a “licensing officer in the city or county . . . where the applicant resides.” §400.00(3). In most counties, the licensing officer is a local judge. Kachalsky , 701 F. 3d, at 87, n. 6. For example, in Rensselaer County, the licensing officer who denied petitioners’ requests to remove the restrictions on their licenses was a justice of the New York Supreme Court. App. 31. If the officer denies an application, the applicant can obtain judicial review under Article 78 of New York’s Civil Practice Law and Rules. Kachalsky , 701 F. 3d, at 87. New York courts will then review whether the denial was arbitrary and capricious. Ibid. In describing New York’s law, the Court recites the above facts but adds its own gloss. It suggests that New York’s licensing regime gives licensing officers too much discretion and provides too “limited” judicial review of their decisions, ante, at 4; that the proper cause standard is too “demanding,” ante, at 3; and that these features make New York an outlier compared to the “vast majority of States,” ante, at 4. But on what evidence does the Court base these characterizations? Recall that this case comes to us at the pleading stage. The parties have not had an opportunity to conduct discovery, and no evidentiary hearings have been held to develop the record. See App. 15–26. Thus, at this point, there is no record to support the Court’s negative characterizations, as we know very little about how the law has actually been applied on the ground. Consider each of the Court’s criticisms in turn. First, the Court says that New York gives licensing officers too much discretion and “leaves applicants little recourse if their local licensing officer denies a permit.” Ante , at 4. But there is nothing unusual about broad statutory language that can be given more specific content by judicial interpretation. Nor is there anything unusual or inadequate about subjecting licensing officers’ decisions to arbitrary-and-capricious review. Judges routinely apply that standard, for example, to determine whether an agency action is lawful under both New York law and the Administrative Procedure Act. See, e.g., N. Y. Civ. Prac. Law Ann. §7803(3) (2021); 5 U. S. C. §706(2)(A). The arbitrary-and-capricious standard has thus been used to review important policies concerning health, safety, and immigration, to name just a few examples. See, e.g., Biden v. Missouri , 595 U. S. ___, ___ (2022) ( per curiam ) (slip op., at 8); Department of Homeland Security v. Regents of Univ. of Cal. , 591 U. S. ___, ___, ___ (2020) (slip op., at 9, 17); Department of Commerce v. New York , 588 U. S. ___, ___ (2019) (slip op., at 16); Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co. , 463 U.S. 29 , 41, 46 (1983). Without an evidentiary record, there is no reason to assume that New York courts applying this standard fail to provide license applicants with meaningful review. And there is no evidentiary record to support the Court’s assumption here. Based on the pleadings alone, we cannot know how often New York courts find the denial of a concealed-carry license to be arbitrary and capricious or on what basis. We do not even know how a court would have reviewed the licensing officer’s decisions in Koch’s and Nash’s cases because they do not appear to have sought judicial review at all. See Brief for Respondents 13; App. 122–126. Second, the Court characterizes New York’s proper cause standard as substantively “demanding.” Ante, at 3. But, again, the Court has before it no evidentiary record to demonstrate how the standard has actually been applied. How “demanding” is the proper cause standard in practice? Does that answer differ from county to county? How many license applications are granted and denied each year? At the pleading stage, we do not know the answers to these and other important questions, so the Court’s characterization of New York’s law may very well be wrong. In support of its assertion that the law is “demanding,” the Court cites only to cases originating in New York City. Ibid . (citing In re Martinek , 294 App. Div. 2d 221, 743 N.Y.S.2d 80 (2002) (New York County, i.e., Manhattan); In re Kaplan , 249 App. Div. 2d 199, 673 N.Y.S.2d 66 (1998) (same); In re Klenosky , 75 App. Div. 2d 793, 428 N.Y.S.2d 256 (same); In re Bernstein , 85 App. Div. 2d 574, 445 N.Y.S.2d 716 (1981) (Bronx County)). But cases from New York City may not accurately represent how the proper cause standard is applied in other parts of the State, including in Rensselaer County where petitioners reside. To the contrary, amici tell us that New York’s licensing regime is purposefully flexible: It allows counties and cities to respond to the particular needs and challenges of each area. See Brief for American Bar Association as Amicus Curiae 12; Brief for City of New York as Amicus Curiae 20–29. Amici suggest that some areas may interpret words such as “proper cause” or “special need” more or less strictly, depending upon each area’s unique circumstances. See ibid . New York City, for example, reports that it “has applied the [proper cause] requirement relatively rigorously” because its densely populated urban areas pose a heightened risk of gun violence. Brief for City of New York as Amicus Curiae 20. In comparison, other (perhaps more rural) counties “have tailored the requirement to their own circumstances, often issuing concealed-carry licenses more freely than the City.” Ibid. ; see also In re O’Connor , 154 Misc. 2d, at 698, 585 N. Y. S. 2d, at 1004 (“The circumstances which exist in New York City are significantly different than those which exist in Oswego or Putnam Counties. . . . The licensing officers in each county are in the best position to determine whether any interest of the population of their county is furthered by the use of restrictions on pistol licenses”); Brief for Citizens Crime Commission of New York City as Amicus Curiae 18–19. Given the geographic variation across the State, it is too sweeping for the Court to suggest, without an evidentiary record, that the proper cause standard is “demanding” in Rensselaer County merely because it may be so in New York City. Finally, the Court compares New York’s licensing regime to that of other States. Ante, at 4–6. It says that New York’s law is a “may issue” licensing regime, which the Court describes as a law that provides licensing officers greater discretion to grant or deny licenses than a “shall issue” licensing regime. Ante, at 4–5. Because the Court counts 43 “shall issue” jurisdictions and only 7 “may issue” jurisdictions, it suggests that New York’s law is an outlier. Ibid .; see also ante, at 1–2 (Kavanaugh, J., concurring). Implicitly, the Court appears to ask, if so many other States have adopted the more generous “shall issue” approach, why can New York not be required to do the same? But the Court’s tabulation, and its implicit question, overlook important context. In drawing a line between “may issue” and “shall issue” licensing regimes, the Court ignores the degree of variation within and across these categories. Not all “may issue” regimes are necessarily alike, nor are all “shall issue” regimes. Conversely, not all “may issue” regimes are as different from the “shall issue” regimes as the Court assumes. For instance, the Court recognizes in a footnote that three States (Connecticut, Delaware, and Rhode Island) have statutes with discretionary criteria, like so-called “may issue” regimes do. Ante, at 5, n. 1. But the Court nonetheless counts them among the 43 “shall issue” jurisdictions because, it says, these three States’ laws operate in practice more like “shall issue” regimes. Ibid. ; see also Brief for American Bar Association as Amicus Curiae 10 (recognizing, conversely, that some “shall issue” States, e.g., Alabama, Colorado, Georgia, Oregon, and Virginia, still grant some degree of discretion to licensing authorities). As these three States demonstrate, the line between “may issue” and “shall issue” regimes is not as clear cut as the Court suggests, and that line depends at least in part on how statutory discretion is applied in practice. Here, because the Court strikes down New York’s law without affording the State an opportunity to develop an evidentiary record, we do not know how much discretion licensing officers in New York have in practice or how that discretion is exercised, let alone how the licensing regimes in the other six “may issue” jurisdictions operate. Even accepting the Court’s line between “may issue” and “shall issue” regimes and assuming that its tally (7 “may issue” and 43 “shall issue” jurisdictions) is correct, that count does not support the Court’s implicit suggestion that the seven “may issue” jurisdictions are somehow outliers or anomalies. The Court’s count captures only a snapshot in time. It forgets that “shall issue” licensing regimes are a relatively recent development. Until the 1980s, “may issue” regimes predominated. See id ., at 9; R. Grossman & S. Lee, May Issue Versus Shall Issue: Explaining the Pattern of Concealed-Carry Handgun Laws, 1960–2001, 26 Contemp. Econ. Pol’y 198, 200 (2008) (Grossman). As of 1987, 16 States and the District of Columbia prohibited concealed carriage outright, 26 States had “may issue” licensing regimes, 7 States had “shall issue” regimes, and 1 State (Vermont) allowed concealed carriage without a permit. Congressional Research Service, Gun Control: Concealed Carry Legislation in the 115th Congress 1 (Jan. 30, 2018). Thus, it has only been in the last few decades that States have shifted toward “shall issue” licensing laws. Prior to that, most States operated “may issue” licensing regimes without legal or practical problem. Moreover, even considering, as the Court does, only the present state of play, its tally provides an incomplete picture because it accounts for only the number of States with “may issue” regimes, not the number of people governed by those regimes. By the Court’s count, the seven “may issue” jurisdictions are New York, California, Hawaii, Maryland, Massachusetts, New Jersey, and the District of Columbia. Ante, at 5–6. Together, these seven jurisdictions comprise about 84.4 million people and account for over a quarter of the country’s population. U. S. Census Bureau, 2020 Pop- ulation and Housing State Data (Aug. 12, 2021) (2020 Population), https://www.census.gov/library/visualizations/ interactive/2020-population-and-housing-state-data.html. Thus, “may issue” laws can hardly be described as a marginal or outdated regime. And there are good reasons why these seven jurisdictions may have chosen not to follow other States in shifting toward “shall issue” regimes. The seven remaining “may issue” jurisdictions are among the most densely populated in the United States: the District of Columbia (with an average of 11,280.0 people/square mile in 2020), New Jersey (1,263.0), Massachusetts (901.2), Maryland (636.1), New York (428.7), California (253.7), and Hawaii (226.6). U. S. Census Bureau, Historical Population Density (1910–2020) (Apr. 26, 2001), https://www.census.gov/data/tables/time-series/dec/density-data-text.html. In comparison, the average population density of the United States as a whole is 93.8 people/square mile, and some States have population densities as low as 1.3 (Alaska), 5.9 (Wyoming), and 7.4 (Montana) people/square mile. Ibid . These numbers reflect in part the fact that these “may issue” jurisdictions contain some of the country’s densest and most populous urban areas, e.g., New York City, Los Angeles, San Francisco, the District of Columbia, Honolulu, and Boston. U. S. Census Bureau, Urban Area Facts (Oct. 8, 2021), https://www.census . gov/programs-surveys/geography/guidance/geo-areas/ urban-rural/ua-facts.html. New York City, for example, has a population of about 8.5 million people, making it more populous than 38 States, and it squeezes that population into just over 300 square miles. Quick Facts: New York City; 2020 Population; Brief for City of New York as Amicus Curiae 8, 22. As I explained above, supra, at 8–9, densely populated urban areas face different kinds and degrees of dangers from gun violence than rural areas. It is thus easy to see why the seven “may issue” jurisdictions might choose to regulate firearm carriage more strictly than other States. See Grossman 199 (“We find strong evidence that more urban states are less likely to shift to ‘shall issue’ than rural states”). New York and its amici present substantial data justifying the State’s decision to retain a “may issue” licensing regime. The data show that stricter gun regulations are associated with lower rates of firearm-related death and injury. See, e.g., Brief for Citizens Crime Commission of New York City as Amicus Curiae 9–11; Brief for Former Major City Police Chiefs as Amici Curiae 9–12; Brief for Educational Fund 25–28; Brief for Social Scientists et al. as Amici Curiae 9–19. In particular, studies have shown that “may issue” licensing regimes, like New York’s, are associated with lower homicide rates and lower violent crime rates than “shall issue” licensing regimes. For example, one study compared homicide rates across all 50 States during the 25-year period from 1991 to 2015 and found that “shall issue” laws were associated with 6.5% higher total homicide rates, 8.6% higher firearm homicide rates, and 10.6% higher handgun homicide rates. Siegel, 107 Am. J. Pub. Health, at 1924–1925, 1927. Another study longitudinally followed 33 States that had adopted “shall-issue” laws between 1981 and 2007 and found that the adoption of those laws was associated with a 13%–15% increase in rates of violent crime after 10 years. Donohue, 16 J. Empirical Legal Studies, at 200, 240. Numerous other studies show similar results. See, e.g., Siegel, 36 J. Rural Health , at 261 (finding that “may issue” laws are associated with 17% lower firearm homicide rates in large cities); C. Crifasi et al., Association Between Firearm Laws and Homicide in Urban Counties, 95 J. Urb. Health 383, 387 (2018) (finding that “shall issue” laws are associated with a 4% increase in firearm homicide rates in urban counties); M. Doucette, C. Crifasi, & S. Frattaroli, Right-to-Carry Laws and Firearm Workplace Homicides: A Longitudinal Analysis (1992–2017), 109 Am. J. Pub. Health 1747, 1751 (Dec. 2019) (finding that States with “shall issue” laws between 1992 and 2017 experienced 29% higher rates of firearm-related workplace homicides); Brief for Social Scientists et al. as Amici Curiae 15–16, and nn. 17–20 (citing “thirteen . . . empirical papers from just the last few years linking [“shall issue”] laws to higher violent crime”). Justice Alito points to competing empirical evidence that arrives at a different conclusion. Ante, at 3, n. 1 (concurring opinion). But these types of disagreements are exactly the sort that are better addressed by legislatures than courts. The Court today restricts the ability of legislatures to fulfill that role. It does so without knowing how New York’s law is administered in practice, how much discretion licensing officers in New York possess, or whether the proper cause standard differs across counties. And it does so without giving the State an opportunity to develop the evidentiary record to answer those questions. Yet it strikes down New York’s licensing regime as a violation of the Second Amendment. III A How does the Court justify striking down New York’s law without first considering how it actually works on the ground and what purposes it serves? The Court does so by purporting to rely nearly exclusively on history. It requires “the government [to] affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of ‘the right to keep and bear arms.’ ” Ante, at 10. Beyond this historical inquiry, the Court refuses to employ what it calls “means-end scrutiny.” Ibid. That is, it refuses to consider whether New York has a compelling interest in regulating the concealed carriage of handguns or whether New York’s law is narrowly tailored to achieve that interest. Although I agree that history can often be a useful tool in determining the meaning and scope of constitutional provisions, I believe the Court’s near-exclusive reliance on that single tool today goes much too far. The Court concedes that no Court of Appeals has adopted its rigid history-only approach. See ante, at 8. To the contrary, every Court of Appeals to have addressed the question has agreed on a two-step framework for evaluating whether a firearm regulation is consistent with the Second Amendment. Ibid. ; ante, at 10, n. 4 (majority opinion) (listing cases from the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, Eleventh, and D. C. Circuits). At the first step, the Courts of Appeals use text and history to determine “whether the regulated activity falls within the scope of the Second Amendment.” Ezell v. Chicago , 846 F.3d 888, 892 (CA7 2017). If it does, they go on to the second step and consider “ ‘the strength of the government’s justification for restricting or regulating’ ” the Second Amendment right. Ibid . In doing so, they apply a level of “means-ends” scrutiny “that is proportionate to the severity of the burden that the law imposes on the right”: strict scrutiny if the burden is severe, and intermediate scrutiny if it is not. National Rifle Assn. of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives , 700 F.3d 185, 195, 198, 205 (CA5 2012). The Court today replaces the Courts of Appeals’ consensus framework with its own history-only approach. That is unusual. We do not normally disrupt settled consensus among the Courts of Appeals, especially not when that consensus approach has been applied without issue for over a decade. See Brief for Second Amendment Law Professors as Amici Curiae 4, 13–15; see also this Court’s Rule 10. The Court attempts to justify its deviation from our normal practice by claiming that the Courts of Appeals’ approach is inconsistent with Heller . See ante, at 10. In doing so, the Court implies that all 11 Courts of Appeals that have considered this question misread Heller . To the contrary, it is this Court that misreads Heller . The opinion in Heller did focus primarily on “constitutional text and history,” ante, at 13 (majority opinion), but it did not “rejec[t] . . . means-end scrutiny,” as the Court claims, ante, at 15. Consider what the Heller Court actually said. True, the Court spent many pages in Heller discussing the text and historical context of the Second Amendment. 554 U. S., at 579–619. But that is not surprising because the Heller Court was asked to answer the preliminary question whether the Second Amendment right to “bear Arms” encompasses an individual right to possess a firearm in the home for self-defense. Id. , at 577. The Heller Court concluded that the Second Amendment’s text and history were sufficiently clear to resolve that question: The Second Amendment, it said, does include such an individual right. Id ., at 579–619. There was thus no need for the Court to go further—to look beyond text and history, or to suggest what analysis would be appropriate in other cases where the text and history are not clear. But the Heller Court did not end its opinion with that preliminary question. After concluding that the Second Amendment protects an individual right to possess a firearm for self-defense, the Heller Court added that that right is “not unlimited.” Id., at 626. It thus had to determine whether the District of Columbia’s law, which banned handgun possession in the home, was a permissible regulation of the right. Id. , at 628–630. In answering that second question, it said: “Under any of the standards of scrutiny that we have applied to enumerated constitutional rights , banning from the home ‘the most preferred firearm in the nation to “keep” and use for protection of one’s home and family’ would fail constitutional muster.” Id., at 628–629 (emphasis added; footnote and citation omitted). That language makes clear that the Heller Court understood some form of means-end scrutiny to apply. It did not need to specify whether that scrutiny should be intermediate or strict because, in its view, the District’s handgun ban was so “severe” that it would have failed either level of scrutiny. Id., at 628–629; see also id., at 628, n. 27 (clarifying that rational-basis review was not the proper level of scrutiny). Despite Heller ’s express invocation of means-end scrutiny, the Court today claims that the majority in Heller rejected means-end scrutiny because it rejected my dissent in that case. But that argument misreads both my dissent and the majority opinion. My dissent in Heller proposed directly weighing “the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other.” Id., at 689. I would have asked “whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” Id., at 689–690. The majority rejected my dissent, not because I proposed using means-end scrutiny, but because, in its view, I had done the opposite. In its own words, the majority faulted my dissent for proposing “a freestanding ‘interest-balancing’ approach” that accorded with “ none of the traditionally expressed levels [of scrutiny] (strict scrutiny, intermediate scrutiny, rational basis).” Id., at 634 (emphasis added). The majority further made clear that its rejection of freestanding interest balancing did not extend to traditional forms of means-end scrutiny. It said: “We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding ‘interest-balancing’ approach.” Ibid. To illustrate this point, it cited as an example the First Amendment right to free speech. Id. , at 635. Judges, of course, regularly use means-end scrutiny, including both strict and intermediate scrutiny, when they interpret or apply the First Amendment. See, e.g., United States v. Playboy Entertainment Group, Inc. , 529 U.S. 803 , 813 (2000) (applying strict scrutiny); Turner Broadcasting System, Inc. v. FCC , 520 U.S. 180 , 186, 189–190 (1997) (applying intermediate scrutiny). The majority therefore cannot have intended its opinion, consistent with our First Amendment jurisprudence, to be read as rejecting all traditional forms of means-end scrutiny. As Heller ’s First Amendment example illustrates, the Court today is wrong when it says that its rejection of means-end scrutiny and near-exclusive focus on history “accords with how we protect other constitutional rights.” Ante, at 15. As the Court points out, we do look to history in the First Amendment context to determine “whether the expressive conduct falls outside of the category of protected speech.” Ibid. But, if conduct falls within a category of protected speech, we then use means-end scrutiny to determine whether a challenged regulation unconstitutionally burdens that speech. And the degree of scrutiny we apply often depends on the type of speech burdened and the severity of the burden. See, e.g., Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett , 564 U.S. 721 , 734 (2011) (applying strict scrutiny to laws that burden political speech); Ward v. Rock Against Racism , 491 U.S. 781 , 791 (1989) (applying intermediate scrutiny to time, place, and manner restrictions); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y. , 447 U.S. 557 , 564–566 (1980) (applying intermediate scrutiny to laws that burden commercial speech). Additionally, beyond the right to freedom of speech, we regularly use means-end scrutiny in cases involving other constitutional provisions. See, e.g., Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U.S. 520 , 546 (1993) (applying strict scrutiny under the First Amendment to laws that restrict free exercise of religion in a way that is not neutral and generally applicable); Adarand Constructors, Inc. v. Peña , 515 U.S. 200 , 227 (1995) (applying strict scrutiny under the Equal Protection Clause to race-based classifications); Clark v. Jeter , 486 U.S. 456 , 461 (1988) (applying intermediate scrutiny under the Equal Protection Clause to sex-based classifications); see also Virginia v. Moore , 553 U.S. 164 , 171 (2008) (“When history has not provided a conclusive answer, we have analyzed a search or seizure in light of traditional standards of reasonableness”). The upshot is that applying means-end scrutiny to laws that regulate the Second Amendment right to bear arms would not create a constitutional anomaly. Rather, it is the Court’s rejection of means-end scrutiny and adoption of a rigid history-only approach that is anomalous. B The Court’s near-exclusive reliance on history is not only unnecessary, it is deeply impractical. It imposes a task on the lower courts that judges cannot easily accomplish. Judges understand well how to weigh a law’s objectives (its “ends”) against the methods used to achieve those objectives (its “means”). Judges are far less accustomed to resolving difficult historical questions. Courts are, after all, staffed by lawyers, not historians. Legal experts typically have little experience answering contested historical questions or applying those answers to resolve contemporary problems. The Court’s insistence that judges and lawyers rely nearly exclusively on history to interpret the Second Amendment thus raises a host of troubling questions. Consider, for example, the following. Do lower courts have the research resources necessary to conduct exhaustive historical analyses in every Second Amendment case? What historical regulations and decisions qualify as representative analogues to modern laws? How will judges determine which historians have the better view of close historical questions? Will the meaning of the Second Amendment change if or when new historical evidence becomes available? And, most importantly, will the Court’s approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history? See S. Cornell, Heller , New Originalism, and Law Office History: “Meet the New Boss, Same as the Old Boss,” 56 UCLA L. Rev. 1095, 1098 (2009) (describing “law office history” as “a results oriented methodology in which evidence is selectively gathered and interpreted to produce a preordained conclusion”). Consider Heller itself. That case, fraught with difficult historical questions, illustrates the practical problems with expecting courts to decide important constitutional questions based solely on history. The majority in Heller undertook 40 pages of textual and historical analysis and concluded that the Second Amendment’s protection of the right to “keep and bear Arms” historically encompassed an “individual right to possess and carry weapons in case of confrontation”—that is, for self-defense. 554 U. S. , at 592; see also id., at 579–619. Justice Stevens’ dissent conducted an equally searching textual and historical inquiry and concluded, to the contrary, that the term “bear Arms” was an idiom that protected only the right “to use and possess arms in conjunction with service in a well-regulated militia.” Id., at 651. I do not intend to relitigate Heller here . I accept its holding as a matter of stare decisis. I refer to its historical analysis only to show the difficulties inherent in answering historical questions and to suggest that judges do not have the expertise needed to answer those questions accurately. For example, the Heller majority relied heavily on its interpretation of the English Bill of Rights. Citing Blackstone, the majority claimed that the English Bill of Rights protected a “ ‘right of having and using arms for self-preservation and defence.’ ” Id. , at 594 (quoting 1 Commentaries on the Laws of England 140 (1765)). The majority interpreted that language to mean a private right to bear arms for self-defense, “having nothing whatever to do with service in a militia.” 554 U. S., at 593. Two years later, however, 21 English and early American historians (including experts at top universities) told us in McDonald v. Chicago , 561 U.S. 742 (2010), that the Heller Court had gotten the history wrong: The English Bill of Rights “did not . . . protect an individual’s right to possess, own, or use arms for private purposes such as to defend a home against burglars.” Brief for English/Early American Historians as Amici Curiae in McDonald v. Chicago , O. T. 2009, No. 08–1521, p. 2. Rather, these amici historians explained, the English right to “have arms” ensured that the Crown could not deny Parliament (which represented the people) the power to arm the landed gentry and raise a militia—or the right of the people to possess arms to take part in that militia—“should the sovereign usurp the laws, liberties, estates, and Protestant religion of the nation.” Id., at 2–3. Thus, the English right did protect a right of “self-preservation and defence,” as Blackstone said, but that right “was to be exercised not by individuals acting privately or independently, but as a militia organized by their elected representatives,” i.e., Parliament. Id., at 7–8. The Court, not an expert in history, had misread Blackstone and other sources explaining the English Bill of Rights. And that was not the Heller Court’s only questionable judgment. The majority rejected Justice Stevens’ argument that the Second Amendment’s use of the words “bear Arms” drew on an idiomatic meaning that, at the time of the founding, commonly referred to military service. 554 U. S., at 586. Linguistics experts now tell us that the majority was wrong to do so. See, e.g., Brief for Corpus Linguistics Professors and Experts as Amici Curiae (Brief for Linguistics Professors); Brief for Neal Goldfarb as Amicus Curiae ; Brief for Americans Against Gun Violence as Amicus Curiae 13–15. Since Heller was decided, experts have searched over 120,000 founding-era texts from between 1760 and 1799, as well as 40,000 texts from sources dating as far back as 1475, for historical uses of the phrase “bear arms,” and they concluded that the phrase was overwhelmingly used to refer to “ ‘war, soldiering, or other forms of armed action by a group rather than an individual.’ ” Brief for Linguistics Professors 11, 14; see also D. Baron, Corpus Evidence Illuminates the Meaning of Bear Arms, 46 Hastings Const. L. Q. 509, 510 (2019) (“Non-military uses of bear arms in reference to hunting or personal self-defense are not just rare, they are almost nonexistent”); id. , at 510–511 (reporting 900 instances in which “bear arms” was used to refer to military or collective use of firearms and only 7 instances that were either ambiguous or without a military connotation). These are just two examples. Other scholars have continued to write books and articles arguing that the Court’s decision in Heller misread the text and history of the Second Amendment. See generally, e.g., M. Waldman, The Second Amendment (2014); S. Cornell, The Changing Meaning of the Right To Keep and Bear Arms: 1688–1788, in Guns in Law 20–27 (A. Sarat, L. Douglas, & M. Umphrey eds. 2019); P. Finkelman, The Living Constitution and the Second Amendment: Poor History, False Originalism, and a Very Confused Court, 37 Cardozo L. Rev. 623 (2015); D. Walker, Necessary to the Security of Free States: The Second Amendment as the Auxiliary Right of Federalism, 56 Am. J. Legal Hist. 365 (2016); W. Merkel, Heller as Hubris, and How McDonald v. City of Chicago May Well Change the Constitutional World as We Know It, 50 Santa Clara L. Rev. 1221 (2010). I repeat that I do not cite these arguments in order to relitigate Heller . I wish only to illustrate the difficulties that may befall lawyers and judges when they attempt to rely solely on history to interpret the Constitution. In Heller , we attempted to determine the scope of the Second Amendment right to bear arms by conducting a historical analysis, and some of us arrived at very different conclusions based on the same historical sources. Many experts now tell us that the Court got it wrong in a number of ways. That is understandable given the difficulty of the inquiry that the Court attempted to undertake. The Court’s past experience with historical analysis should serve as a warning against relying exclusively, or nearly exclusively, on this mode of analysis in the future. Failing to heed that warning, the Court today does just that. Its near-exclusive reliance on history will pose a number of practical problems. First, the difficulties attendant to extensive historical analysis will be especially acute in the lower courts. The Court’s historical analysis in this case is over 30 pages long and reviews numerous original sources from over 600 years of English and American history. Ante, at 30–62. Lower courts—especially district courts—typically have fewer research resources, less assistance from amici historians, and higher caseloads than we do. They are therefore ill equipped to conduct the type of searching historical surveys that the Court’s approach requires. Tellingly, even the Courts of Appeals that have addressed the question presented here (namely, the constitutionality of public carriage restrictions like New York’s) “have, in large part, avoided extensive historical analysis.” Young v. Hawaii , 992 F.3d 765, 784–785 (CA9 2021) (collecting cases). In contrast, lawyers and courts are well equipped to administer means-end scrutiny, which is regularly applied in a variety of constitutional contexts, see supra, at 24–25. Second, the Court’s opinion today compounds these problems, for it gives the lower courts precious little guidance regarding how to resolve modern constitutional questions based almost solely on history. See, e.g., ante, at 1 (Barrett, J., concurring) (“highlight[ing] two methodological points that the Court does not resolve”). The Court declines to “provide an exhaustive survey of the features that render regulations relevantly similar under the Second Amendment.” Ante, at 20. Other than noting that its history-only analysis is “neither a . . . straightjacket nor a . . . blank check,” the Court offers little explanation of how stringently its test should be applied. Ante, at 21. Ironically, the only two “relevan[t]” metrics that the Court does identify are “how and why” a gun control regulation “burden[s the] right to armed self-defense.” Ante, at 20. In other words, the Court believes that the most relevant metrics of comparison are a regulation’s means (how) and ends (why)—even as it rejects the utility of means-end scrutiny. What the Court offers instead is a laundry list of reasons to discount seemingly relevant historical evidence. The Court believes that some historical laws and decisions cannot justify upholding modern regulations because, it says, they were outliers. It explains that just two court decisions or three colonial laws are not enough to satisfy its test. Ante, at 37, 57. But the Court does not say how many cases or laws would suffice “to show a tradition of public-carry regulation.” Ante, at 37. Other laws are irrelevant, the Court claims, because they are too dissimilar from New York’s concealed-carry licensing regime. See, e.g., ante, at 48–49. But the Court does not say what “representative historical analogue,” short of a “twin” or a “dead ringer,” would suffice. See ante, at 21 (emphasis deleted). Indeed, the Court offers many and varied reasons to reject potential representative analogues, but very few reasons to accept them. At best, the numerous justifications that the Court finds for rejecting historical evidence give judges ample tools to pick their friends out of history’s crowd. At worst, they create a one-way ratchet that will disqualify virtually any “representative historical analogue” and make it nearly impossible to sustain common-sense regulations necessary to our Nation’s safety and security. Third, even under ideal conditions, historical evidence will often fail to provide clear answers to difficult questions. As an initial matter, many aspects of the history of firearms and their regulation are ambiguous, contradictory, or disputed. Unsurprisingly, the extent to which colonial statutes enacted over 200 years ago were actually enforced, the basis for an acquittal in a 17th-century decision, and the interpretation of English laws from the Middle Ages (to name just a few examples) are often less than clear. And even historical experts may reach conflicting conclusions based on the same sources. Compare, e.g., P. Charles, The Faces of the Second Amendment Outside the Home: History Versus Ahistorical Standards of Review, 60 Clev. St. L. Rev. 1, 14 (2012), with J. Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 104 (1994). As a result, history, as much as any other interpretive method, leaves ample discretion to “loo[k] over the heads of the [crowd] for one’s friends.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 377 (2012). Fourth, I fear that history will be an especially inadequate tool when it comes to modern cases presenting modern problems. Consider the Court’s apparent preference for founding-era regulation. See ante, at 25–28. Our country confronted profoundly different problems during that time period than it does today. Society at the founding was “predominantly rural.” C. McKirdy, Misreading the Past: The Faulty Historical Basis Behind the Supreme Court’s Decision in District of Columbia v. Heller, 45 Capital U. L. Rev. 107, 151 (2017). In 1790, most of America’s relatively small population of just four million people lived on farms or in small towns. Ibid. Even New York City, the largest American city then, as it is now, had a population of just 33,000 people. Ibid. Small founding-era towns are unlikely to have faced the same degrees and types of risks from gun violence as major metropolitan areas do today, so the types of regulations they adopted are unlikely to address modern needs. Id., at 152 (“For the most part, a population living on farms and in very small towns did not create conditions in which firearms created a significant danger to the public welfare”); see also supra, at 8–9. This problem is all the more acute when it comes to “modern-day circumstances that [the Framers] could not have anticipated.” Heller , 554 U. S., at 721–722 (Breyer, J., dissenting). How can we expect laws and cases that are over a century old to dictate the legality of regulations targeting “ghost guns” constructed with the aid of a three-dimensional printer? See, e.g., White House Briefing Room, FACT SHEET: The Biden Administration Cracks Down on Ghost Guns, Ensures That ATF Has the Leadership It Needs To Enforce Our Gun Laws (Apr. 11, 2022), https:// whitehouse.gov/briefing-room/statements-releases/2022/ 04/11 /fact-sheet-the-biden-administration-cracks-down-on-ghost-guns-ensures-that-atf-has-the-leadership-it-needs-to-enforce-our-gun-laws/. Or modern laws requiring all gun shops to offer smart guns, which can only be fired by authorized users? See, e.g., N. J. Stat. Ann. §2C:58–2.10(a) (West Cum. Supp. 2022). Or laws imposing additional criminal penalties for the use of bullets capable of piercing body armor? See, e.g., 18 U. S. C. §§921(a)(17)(B), 929(a). The Court’s answer is that judges will simply have to employ “analogical reasoning.” Ante, at 19–20. But, as I explained above, the Court does not provide clear guidance on how to apply such reasoning. Even seemingly straightforward historical restrictions on firearm use may prove surprisingly difficult to apply to modern circumstances. The Court affirms Heller ’s recognition that States may forbid public carriage in “sensitive places.” Ante, at 21–22. But what, in 21st-century New York City, may properly be considered a sensitive place? Presumably “legislative assemblies, polling places, and courthouses,” which the Court tells us were among the “relatively few” places “where weapons were altogether prohibited” in the 18th and 19th centuries. Ante, at 21. On the other hand, the Court also tells us that “expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement defines th[at] category . . . far too broadly.” Ante, at 22. So where does that leave the many locations in a modern city with no obvious 18th- or 19th-century analogue? What about subways, nightclubs, movie theaters, and sports stadiums? The Court does not say. Although I hope—fervently—that future courts will be able to identify historical analogues supporting the validity of regulations that address new technologies, I fear that it will often prove difficult to identify analogous technological and social problems from Medieval England, the founding era, or the time period in which the Fourteenth Amendment was ratified. Laws addressing repeating crossbows, launcegays, dirks, dagges, skeines, stilladers, and other ancient weapons will be of little help to courts confronting modern problems. And as technological progress pushes our society ever further beyond the bounds of the Framers’ imaginations, attempts at “analogical reasoning” will become increasingly tortured. In short, a standard that relies solely on history is unjustifiable and unworkable. IV Indeed, the Court’s application of its history-only test in this case demonstrates the very pitfalls described above. The historical evidence reveals a 700-year Anglo-American tradition of regulating the public carriage of firearms in general, and concealed or concealable firearms in particular. The Court spends more than half of its opinion trying to discredit this tradition. But, in my view, the robust evidence of such a tradition cannot be so easily explained away. Laws regulating the public carriage of weapons existed in England as early as the 13th century and on this Continent since before the founding. Similar laws remained on the books through the ratifications of the Second and Fourteenth Amendments through to the present day. Many of those historical regulations imposed significantly stricter restrictions on public carriage than New York’s licensing requirements do today. Thus, even applying the Court’s history-only analysis, New York’s law must be upheld because “historical precedent from before, during, and . . . after the founding evinces a comparable tradition of regulation.” Ante, at 18 (majority opinion) (internal quotation marks omitted). A. England. The right codified by the Second Amendment was “ ‘inherited from our English ancestors.’ ” Heller , 554 U. S., at 599 (quoting Robertson v. Baldwin , 165 U.S. 275 , 281 (1897)); see also ante, at 30 (majority opinion). And some of England’s earliest laws regulating the public carriage of weapons were precursors of similar American laws enacted roughly contemporaneously with the ratification of the Second Amendment. See infra, at 40–42. I therefore begin, as the Court does, ante, at 30–31, with the English ancestors of New York’s laws regulating public carriage of firearms. The relevant English history begins in the late-13th and early-14th centuries, when Edward I and Edward II issued a series of orders to local sheriffs that prohibited any person from “going armed.” See 4 Calendar of the Close Rolls, Edward I, 1296–1302, p. 318 (Sept. 15, 1299) (1906); id., at 588 (July 16, 1302); 5 id ., Edward I, 1302–1307, at 210 (June 10, 1304) (1908); id ., Edward II, 1307–1313, at 52 (Feb. 9, 1308) (1892); id., at 257 (Apr. 9, 1310); id., at 553 (Oct. 12, 1312); id ., Edward II, 1323–1327, at 560 (Apr. 28, 1326) (1898); 1 Calendar of Plea and Memoranda Rolls of the City of London, 1323–1364, p. 15 (Nov. 1326) (A. Thomas ed. 1926). Violators were subject to punishment, including “forfeiture of life and limb.” See, e.g., 4 Calendar of the Close Rolls, Edward I, 1296–1302, at 318 (Sept. 15, 1299) (1906). Many of these royal edicts contained exemptions for persons who had obtained “the king’s special licence.” See ibid. ; 5 id ., Edward I, 1302–1307, at 210 (June 10, 1304); id ., Edward II, 1307–1313, at 553 (Oct. 12, 1312); id. , Edward II, 1323–1327, at 560 (Apr. 28, 1326). Like New York’s law, these early edicts prohibited public carriage absent special governmental permission and enforced that prohibition on pain of punishment. The Court seems to suggest that these early regulations are irrelevant because they were enacted during a time of “turmoil” when “malefactors . . . harried the country, committing assaults and murders.” Ante, at 31 (internal quotation marks omitted). But it would seem to me that what the Court characterizes as a “right of armed self-defense” would be more, rather than less, necessary during a time of “turmoil.” Ante, at 20. The Court also suggests that laws that were enacted before firearms arrived in England, like these early edicts and the subsequent Statute of Northampton, are irrelevant. Ante, at 32. But why should that be? Pregun regulations prohibiting “going armed” in public illustrate an entrenched tradition of restricting public carriage of weapons. That tradition seems as likely to apply to firearms as to any other lethal weapons—particularly if we follow the Court’s instruction to use analogical reasoning. See ante, at 19–20. And indeed, as we shall shortly see, the most significant prefirearm regulation of public carriage—the Statute of Northampton—was in fact applied to guns once they appeared in England. See Sir John Knight’s Case , 3 Mod. 117, 87 Eng. Rep. 75, 76 (K. B. 1686) The Statute of Northampton was enacted in 1328. 2 Edw. 3, 258, c. 3. By its terms, the statute made it a criminal offense to carry arms without the King’s authorization. It provided that, without such authorization, “no Man great nor small, of what Condition soever he be,” could “go nor ride armed by night nor by day, in Fairs, Markets, nor in the presence of the Justices or other Ministers, nor in no part elsewhere, upon pain to forfeit their Armour to the King, and their Bodies to Prison at the King’s pleasure.” Ibid. For more than a century following its enactment, England’s sheriffs were routinely reminded to strictly enforce the Statute of Northampton against those going armed without the King’s permission. See Calendar of the Close Rolls, Edward III, 1330–1333, at 131 (Apr. 3, 1330) (1898); 1 Calendar of the Close Rolls, Richard II, 1377–1381, at 34 (Dec. 1, 1377) (1914); 2 id ., Richard II, 1381–1385, at 3 (Aug. 7, 1381) (1920); 3 id ., Richard II, 1385–1389, at 128 (Feb. 6, 1386) (1921); id., at 399–400 (May 16, 1388); 4 id ., Henry VI, 1441–1447, at 224 (May 12, 1444) (1937); see also 11 Tudor Royal Proclamations, The Later Tudors: 1553–1587, pp. 442–445 (Proclamation 641, 21 Elizabeth I, July 26, 1579) (P. Hughes & J. Larkin eds. 1969). The Court thinks that the Statute of Northampton “has little bearing on the Second Amendment,” in part because it was “enacted . . . more than 450 years before the ratification of the Constitution.” Ante, at 32. The statute, however, remained in force for hundreds of years, well into the 18th century. See 4 W. Blackstone, Commentaries 148–149 (1769) (“The offence of riding or going armed , with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land; and is particularly prohibited by the Statute of Northampton ” (first emphasis in original, second emphasis added)). It was discussed in the writings of Blackstone, Coke, and others. See ibid. ; W. Hawkins, 1 Pleas of the Crown 135 (1716) (Hawkins); E. Coke, The Third Part of the Institutes of the Laws of England 160 (1797). And several American Colonies and States enacted restrictions modeled on the statute. See infra, at 40–42. There is thus every reason to believe that the Framers of the Second Amendment would have considered the Statute of Northampton a significant chapter in the Anglo-American tradition of firearms regulation. The Court also believes that, by the end of the 17th century, the Statute of Northampton was understood to contain an extratextual intent element: the intent to cause terror in others. Ante, at 34–38, 41. The Court relies on two sources that arguably suggest that view: a 1686 decision, Sir John Knight’s Case , and a 1716 treatise written by Serjeant William Hawkins. Ante, at 34–37. But other sources suggest that carrying arms in public was prohibited because it naturally tended to terrify the people. See, e.g., M. Dalton, The Country Justice 282–283 (1690) (“[T]o wear Armor, or Weapons not usually worn, . . . seems also be a breach, or means of breach of the Peace . . . ; for they strike a fear and terror in the People” (emphasis added)). According to these sources, terror was the natural consequence—not an additional element—of the crime. I find this view more persuasive in large part because it is not entirely clear that the two sources the Court relies on actually support the existence of an intent-to-terrify requirement. Start with Sir John Knight’s Case , which, according to the Court, considered Knight’s arrest for walking “ ‘about the streets’ ” and into a church “ ‘armed with guns.’ ” Ante, at 34 (quoting Sir John Knight’s Case , 3 Mod. 117, 87 Eng. Rep., at 76). The Court thinks that Knight’s acquittal by a jury demonstrates that the Statute of Northampton only prohibited public carriage of firearms with an intent to terrify. Ante, at 34–35. But by now the legal significance of Knight’s acquittal is impossible to reconstruct. Brief for Patrick J. Charles as Amicus Curiae 23, n. 9. The primary source describing the case (the English Reports) was notoriously incomplete at the time Sir John Knight’s Case was decided. Id., at 24–25. And the facts that historians can reconstruct do not uniformly support the Court’s interpretation. The King’s Bench required Knight to pay a surety to guarantee his future good behavior, so it may be more accurate to think of the case as having ended in “a conditional pardon” than acquittal. Young , 992 F. 3d, at 791; see also Rex v. Sir John Knight , 1 Comb. 40, 90 Eng. Rep. 331 (K. B. 1686). And, notably, it appears that Knight based his defense on his loyalty to the Crown, not a lack of intent to terrify. 3 The Entring Book of Roger Morrice 1677–1691: The Reign of James II, 1685–1687, pp. 307–308 (T. Harris ed. 2007). Similarly, the passage from the Hawkins treatise on which the Court relies states that the Statute of Northampton’s prohibition on the public carriage of weapons did not apply to the “wearing of Arms . . . unless it be accompanied with such Circumstances as are apt to terrify the People.” Hawkins 136. But Hawkins goes on to enumerate relatively narrow circumstances where this exception applied: when “Persons of Quality . . . wea[r] common Weapons, or hav[e] their usual Number of Attendants with them, for their Ornament or Defence, in such Places, and upon such Occasions, in which it is the common Fashion to make use of them,” or to persons merely wearing “privy Coats of Mail.” Ibid . It would make little sense if a narrow exception for nobility, see Oxford English Dictionary (3d ed., Dec. 2012), https://www.oed.com/view/Entry/155878 (defining “quality,” A.I.5.a), and “privy coats of mail” were allowed to swallow the broad rule that Hawkins (and other commentators of his time) described elsewhere. That rule provided that “there may be an Affray where there is no actual Violence; as where a Man arms himself with dangerous and unusual Weapons, in such a Manner as will naturally cause a Terror to the People, which is . . . strictly prohibited by [the Statute of Northampton].” Hawkins 135. And it provided no exception for those who attempted to “excuse the wearing such Armour in Publick, by alleging that . . . he wears it for the Safety of his Person from . . . Assault.” Id., at 136. In my view, that rule announces the better reading of the Statute of Northampton—as a broad prohibition on the public carriage of firearms and other weapons, without an intent-to-terrify requirement or exception for self-defense. Although the Statute of Northampton is particularly significant because of its breadth, longevity, and impact on American law, it was far from the only English restriction on firearms or their carriage. See, e.g., 6 Hen. 8 c. 13, §1 (1514) (restricting the use and ownership of handguns); 25 Hen. 8 c. 17, §1 (1533) (same); 33 Hen. 8 c. 6, §§1–2 (1541) (same); 25 Edw. 3, st. 5, c. 2 (1350) (making it a “Felony or Trespass” to “ride armed covertly or secretly with Men of Arms against any other, to slay him, or rob him, or take him, or retain him till he hath made Fine or Ransom for to have his Deliverance”) (brackets and footnote omitted). Whatever right to bear arms we inherited from our English forebears, it was qualified by a robust tradition of public carriage regulations. As I have made clear, I am not a historian. But if the foregoing facts, which historians and other scholars have presented to us, are even roughly correct, it is difficult to see how the Court can believe that English history fails to support legal restrictions on the public carriage of firearms. B. The Colonies. The American Colonies continued the English tradition of regulating public carriage on this side of the Atlantic. In 1686, the colony of East New Jersey passed a law providing that “no person or persons . . . shall presume privately to wear any pocket pistol, skeines, stilladers, daggers or dirks, or other unusual or unlawful weapons within this Province.” An Act Against Wearing Swords, &c., ch. 9, in Grants, Concessions, and Original Constitutions of the Province of New Jersey 290 (2d ed. 1881). East New Jersey also specifically prohibited “planter[s]” from “rid[ing] or go[ing] armed with sword, pistol, or dagger.” Ibid . Massachusetts Bay and New Hampshire followed suit in 1692 and 1771, respectively, enacting laws that, like the Statute of Northampton, provided that those who went “armed Offensively” could be punished. An Act for the Punishing of Criminal Offenders, 1692 Mass. Acts and Laws no. 6, pp. 11–12; An Act for the Punishing of Criminal Offenders, 1771 N. H. Acts and Laws ch. 6, §5, p. 17. It is true, as the Court points out, that these laws were only enacted in three colonies. Ante, at 37. But that does not mean that they may be dismissed as outliers. They were successors to several centuries of comparable laws in England, see supra, at 34–40, and predecessors to numerous similar (in some cases, materially identical) laws enacted by the States after the founding, see infra, at 41–42. And while it may be true that these laws applied only to “dangerous and unusual weapons,” see ante, at 38 (majority opinion), that category almost certainly included guns, see Charles, 60 Clev. St. L. Rev., at 34, n. 181 (listing 18th century sources defining “ ‘offensive weapons’ ” to include “ ‘Fire Arms’ ” and “ ‘Guns’ ”); State v. Huntly , 25 N. C. 418, 422 (1843) ( per curiam ) (“A gun is an ‘unusual weapon,’ wherewith to be armed and clad”). Finally, the Court points out that New Jersey’s ban on public carriage applied only to certain people or to the concealed carriage of certain smaller firearms. Ante, at 39–40. But the Court’s refusal to credit the relevance of East New Jersey’s law on this basis raises a serious question about what, short of a “twin” or a “dead ringer,” qualifies as a relevant historical analogue. See ante, at 21 (majority opinion) (emphasis deleted). C. The Founding Era. The tradition of regulations restricting public carriage of firearms, inherited from England and adopted by the Colonies, continued into the founding era. Virginia, for example, enacted a law in 1786 that, like the Statute of Northampton, prohibited any person from “go[ing] nor rid[ing] armed by night nor by day, in fairs or markets, or in other places, in terror of the Country.” 1786 Va. Acts, ch. 21. And, as the Court acknowledges, “public-carry restrictions proliferate[d]” after the Second Amendment’s ratification five years later in 1791. Ante, at 42. Just a year after that, North Carolina enacted a law whose language was lifted from the Statute of Northampton virtually verbatim (vestigial references to the King included). Collection of Statutes, pp. 60–61, ch. 3 (F. Martin ed. 1792). Other States passed similar laws in the late-18th and 19th centuries. See, e.g., 1795 Mass. Acts and Laws ch. 2, p. 436; 1801 Tenn. Acts pp. 260–261; 1821 Me. Laws p. 285; see also Charles, 60 Clev. St. L. Rev., at 40, n. 213 (collecting sources). The Court discounts these laws primarily because they were modeled on the Statute of Northampton, which it believes prohibited only public carriage with the intent to terrify. Ante, at 41. I have previously explained why I believe that preventing public terror was one reason that the Statute of Northampton prohibited public carriage, but not an element of the crime. See supra, at 37–39. And, consistent with that understanding, American regulations modeled on the Statute of Northampton appear to have been understood to set forth a broad prohibition on public carriage of firearms without any intent-to-terrify requirement. See Charles, 60 Clev. St. L. Rev., at 35, 37–41; J. Haywood, A Manual of the Laws of North-Carolina, pt. 2, p. 40 (3d ed.1814); J. Ewing, The Office and Duty of a Justice of the Peace 546 (1805). The Court cites three cases considering common-law offenses, ante, at 42–44, but those cases do not support the view that only public carriage in a manner likely to terrify violated American successors to the Statute of Northampton. If anything, they suggest that public carriage of firearms was not common practice. At least one of the cases the Court cites, State v. Huntly , wrote that the Statute of Northampton codified a pre-existing common-law offense, which provided that “riding or going armed with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land.” 25 N. C., at 420–421 (quoting 4 Blackstone, Commentaries, at 149; emphasis added). Huntly added that “[a] gun is an ‘unusual weapon’ ” and that “[n]o man amongst us carries it about with him, as one of his every-day accoutrements—as a part of his dress—and never, we trust, will the day come when any deadly weapon will be worn or wielded in our peace-loving and law-abiding State, as an appendage of manly equipment.” 25 N. C., at 422. True, Huntly recognized that citizens were nonetheless “at perfect liberty” to carry for “lawful purpose[s]”—but it specified that those purposes were “business or amusement.” Id., at 422–423. New York’s law similarly recognizes that hunting, target shooting, and certain professional activities are proper causes justifying lawful carriage of a firearm. See supra, at 12–13. The other two cases the Court cites for this point similarly offer it only limited support—either because the atextual intent element the Court advocates was irrelevant to the decision’s result, see O’Neill v. State , 16 Ala. 65 (1849), or because the decision adopted an outlier position not reflected in the other cases cited by the Court, see Simpson v. State , 13 Tenn. 356, 360 (1833); see also ante, at 42–43, 57 (majority opinion) (refusing to give “a pair of state-court decisions” “disproportionate weight”). The founding-era regulations—like the colonial and English laws on which they were modeled—thus demonstrate a longstanding tradition of broad restrictions on public carriage of firearms. D. The 19th Century. Beginning in the 19th century, States began to innovate on the Statute of Northampton in at least two ways. First, many States and Territories passed bans on concealed carriage or on any carriage, concealed or otherwise, of certain concealable weapons. For example, Georgia made it unlawful to carry, “unless in an open manner and fully exposed to view, any pistol, (except horseman’s pistols,) dirk, sword in a cane, spear, bowie-knife, or any other kind of knives, manufactured and sold for the purpose of offence and defence.” Ga. Code §4413 (1861). Other States and Territories enacted similar prohibitions. See, e.g., Ala. Code §3274 (1852) (banning, with limited exceptions, concealed carriage of “a pistol, or any other description of fire arms”); see also ante, at 44, n. 16 (majority opinion) (collecting sources). And the Territory of New Mexico appears to have banned all carriage whatsoever of “any class of pistols whatever,” as well as “bowie kni[ves,] . . . Arkansas toothpick[s], Spanish dagger[s], slung-shot[s], or any other deadly weapon.” 1860 Terr. of N. M. Laws §§1–2, p. 94. These 19th-century bans on concealed carriage were stricter than New York’s law, for they prohibited concealed carriage with at most limited exceptions, while New York permits concealed carriage with a lawfully obtained license. See supra, at 12. Moreover, as Heller recognized, and the Court acknowledges, “the majority of the 19th-century courts to consider the question held that [these types of] prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” 554 U. S., at 626 (emphasis added); see also ante, at 44. The Court discounts this history because, it says, courts in four Southern States suggested or held that a ban on concealed carriage was only lawful if open carriage or carriage of military pistols was allowed. Ante, at 44–46. (The Court also cites Bliss v. Commonwealth , 12 Ky. 90 (1822), which invalidated Kentucky’s concealed-carry prohibition as contrary to that State’s Second Amendment analogue. Id., at 90–93. Bliss was later overturned by constitutional amendment and was, as the Court appears to concede, an outlier. See Peruta v. County of San Diego , 824 F.3d 919, 935–936 (CA9 2016); ante, at 45.) Several of these decisions, however, emphasized States’ leeway to regulate firearms carriage as necessary “to protect the orderly and well disposed citizens from the treacherous use of weapons not even designed for any purpose of public defence.” State v. Smith , 11 La. 633 (1856); see also Andrews v. State , 50 Tenn. 165, 179–180 (1871) (stating that “the right to keep ” rifles, shotguns, muskets, and repeaters could not be “ infringed or forbidden ,” but “[t]heir use [may] be subordinated to such regulations and limitations as are or may be authorized by the law of the land, passed to subserve the general good, so as not to infringe the right secured and the necessary incidents to the exercise of such right”); State v. Reid , 1 Ala. 612, 616 (1840) (recognizing that the constitutional right to bear arms “necessarily . . . leave[s] with the Legislature the authority to adopt such regulations of police, as may be dictated by the safety of the people and the advancement of public morals”). And other courts upheld concealed-carry restrictions without any reference to an exception allowing open carriage, so it is far from clear that the cases the Court cites represent a consensus view. See State v. Mitchell , 3 Blackf. 229 (Ind. 1833); State v. Buzzard , 4 Ark. 18 (1842). And, of course, the Court does not say whether the result in this case would be different if New York allowed open carriage by law-abiding citizens as a matter of course. The second 19th-century innovation, adopted in a number of States, was surety laws. Massachusetts’ surety law, which served as a model for laws adopted by many other States, provided that any person who went “armed with a dirk, dagger, sword, pistol, or other offensive and dangerous weapon,” and who lacked “reasonable cause to fear an assualt [ sic ],” could be made to pay a surety upon the “complaint of any person having reasonable cause to fear an injury, or breach of the peace.” Mass. Rev. Stat., ch. 134, §16 (1836). Other States and Territories enacted identical or substantially similar laws. See, e.g., Me. Rev. Stat., ch. 169, §16 (1840); Mich. Rev. Stat., ch. 162, §16 (1846); Terr. of Minn. Rev. Stat., ch. 112, §18 (1851); 1854 Ore. Stat., ch. 16, §17; W. Va. Code, ch. 153, §8 (1868); 1862 Pa. Laws p. 250, §6. These laws resemble New York’s licensing regime in many, though admittedly not all, relevant respects. Most notably, like New York’s proper cause requirement, the surety laws conditioned public carriage in at least some circumstances on a special showing of need. Compare supra, at 13, with Mass. Rev. Stat., ch. 134, §16. The Court believes that the absence of recorded cases involving surety laws means that they were rarely enforced. Ante, at 49–50. Of course, this may just as well show that these laws were normally followed. In any case, scholars cited by the Court tell us that “traditional case law research is not especially probative of the application of these restrictions” because “in many cases those records did not survive the passage of time” or “are not well indexed or digitally searchable.” E. Ruben & S. Cornell, Firearms Regionalism and Public Carry: Placing Southern Antebellum Case Law in Context, 125 Yale L. J. Forum 121, 130–131, n. 53 (2015). On the contrary, “the fact that restrictions on public carry were well accepted in places like Massachusetts and were included in the relevant manuals for justices of the peace” suggests “that violations were enforced at the justice of peace level, but did not result in expensive appeals that would have produced searchable case law.” Id ., at 131, n. 53 (citation omitted). The surety laws and broader bans on concealed carriage enacted in the 19th century demonstrate that even relatively stringent restrictions on public carriage have long been understood to be consistent with the Second Amendment and its state equivalents. E. Postbellum Regulation. After the Civil War, public carriage of firearms remained subject to extensive regulation. See, e.g., Cong. Globe, 39th Cong., 1st Sess., 908 (1866) (“The constitutional rights of all loyal and well-disposed inhabitants to bear arms will not be infringed; nevertheless this shall not be construed to sanction the unlawful practice of carrying concealed weapons”). Of course, during this period, Congress provided (and commentators recognized) that firearm regulations could not be designed or enforced in a discriminatory manner. See ibid. ; Act of July 16, 1866, §14, 14Stat. 176–177 (ensuring that all citizens were entitled to the “full and equal benefit of all laws . . . including the constitutional right to keep and bear arms . . . without respect to race or color, or previous condition of slavery”); see also The Loyal Georgian, Feb. 3, 1866, p. 3, col. 4. But that by-now uncontroversial proposition says little about the validity of nondiscriminatory restrictions on public carriage, like New York’s. What is more relevant for our purposes is the fact that, in the postbellum period, States continued to enact generally applicable restrictions on public carriage, many of which were even more restrictive than their predecessors. See S. Cornell & J. Florence, The Right to Bear Arms in the Era of the Fourteenth Amendment: Gun Rights or Gun Regulation? 50 Santa Clara L. Rev. 1043, 1066 (2010). Most notably, many States and Western Territories enacted stringent regulations that prohibited any public carriage of firearms, with only limited exceptions. For example, Texas made it a misdemeanor to carry in public “any pistol, dirk, dagger, slung-shot, sword-cane, spear, brass-knuckles, bowie-knife, or any other kind of knife manufactured or sold for the purpose of offense or defense” absent “reasonable grounds for fearing an [immediate and pressing] unlawful attack.” 1871 Tex. Gen. Laws ch. 34, §1. Similarly, New Mexico made it “unlawful for any person to carry deadly weapons, either concealed or otherwise, on or about their persons within any of the settlements of this Territory.” 1869 Terr. of N. M. Laws ch. 32, §1. New Mexico’s prohibition contained only narrow exceptions for carriage on a person’s own property, for self-defense in the face of immediate danger, or with official authorization. Ibid. Other States and Territories adopted similar laws. See, e.g., 1875 Wyo. Terr. Sess. Laws ch. 52, §1; 1889 Idaho Terr. Gen. Laws §1, p. 23; 1881 Kan. Sess. Laws §23, p. 92; 1889 Ariz. Terr. Sess. Laws no. 13, §1, p. 16. When they were challenged, these laws were generally upheld. P. Charles, The Faces of the Second Amendment Outside the Home, Take Two: How We Got Here and Why It Matters, 64 Clev. St. L. Rev. 373, 414 (2016); see also ante, at 56–57 (majority opinion) (recognizing that postbellum Texas law and court decisions support the validity of New York’s licensing regime); Andrews , 50 Tenn., at 182 (recognizing that “a man may well be prohibited from carrying his arms to church, or other public assemblage,” and that the carriage of arms other than rifles, shot guns, muskets, and repeaters “may be prohibited if the Legislature deems proper, absolutely, at all times, and under all circumstances”). The Court’s principal answer to these broad prohibitions on public carriage is to discount gun control laws passed in the American West. Ante, at 58–61. It notes that laws enacted in the Western Territories were “rarely subject to judicial scrutiny.” Ante, at 60. But, of course, that may well mean that “[w]e . . . can assume it settled that these” regulations were “consistent with the Second Amendment.” See ante, at 21 (majority opinion). The Court also reasons that laws enacted in the Western Territories applied to a relatively small portion of the population and were comparatively short lived. See ante, 59–61. But even assuming that is true, it does not mean that these laws were historical aberrations. To the contrary, bans on public carriage in the American West and elsewhere constitute just one chapter of the centuries-old tradition of comparable firearms regulations described above. F. The 20th Century. The Court disregards “20th-century historical evidence.” Ante, at 58, n. 28. But it is worth noting that the law the Court strikes down today is well over 100 years old, having been enacted in 1911 and amended to substantially its present form in 1913. See supra, at 12. That alone gives it a longer historical pedigree than at least three of the four types of firearms regulations that Heller identified as “presumptively lawful.” 554 U. S., at 626–627, and n. 26; see C. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit , 60 Hastings L. J. 1371, 1374–1379 (2009) (concluding that “ ‘prohibitions on the possession of firearms by felons and the mentally ill [and] laws imposing conditions and qualifications on the commercial sale of arms’ ” have their origins in the 20th century); Kanter v. Barr , 919 F.3d 437, 451 (CA7 2019) (Barrett, J., dissenting) (“Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons”). Like Justice Kavanaugh, I understand the Court’s opinion today to cast no doubt on that aspect of Heller ’s holding. Ante, at 3 (concurring opinion). But unlike Justice Kavanaugh, I find the disconnect between Heller ’s treatment of laws prohibiting, for example, firearms possession by felons or the mentally ill, and the Court’s treatment of New York’s licensing regime, hard to square. The inconsistency suggests that the Court today takes either an unnecessarily cramped view of the relevant historical record or a needlessly rigid approach to analogical reasoning. *  *  * The historical examples of regulations similar to New York’s licensing regime are legion. Closely analogous English laws were enacted beginning in the 13th century, and similar American regulations were passed during the colonial period, the founding era, the 19th century, and the 20th century. Not all of these laws were identical to New York’s, but that is inevitable in an analysis that demands examination of seven centuries of history. At a minimum, the laws I have recounted resembled New York’s law, similarly restricting the right to publicly carry weapons and serving roughly similar purposes. That is all that the Court’s test, which allows and even encourages “analogical reasoning,” purports to require. See ante, at 21 (disclaiming the necessity of a “historical twin ”). In each instance, the Court finds a reason to discount the historical evidence’s persuasive force. Some of the laws New York has identified are too old. But others are too recent. Still others did not last long enough. Some applied to too few people. Some were enacted for the wrong reasons. Some may have been based on a constitutional rationale that is now impossible to identify. Some arose in historically unique circumstances. And some are not sufficiently analogous to the licensing regime at issue here. But if the examples discussed above, taken together, do not show a tradition and history of regulation that supports the validity of New York’s law, what could? Sadly, I do not know the answer to that question. What is worse, the Court appears to have no answer either. V We are bound by Heller insofar as Heller interpreted the Second Amendment to protect an individual right to possess a firearm for self-defense. But Heller recognized that that right was not without limits and could appropriately be subject to government regulation . 554 U. S., at 626–627. Heller therefore does not require holding that New York’s law violates the Second Amendment. In so holding, the Court goes beyond Heller . It bases its decision to strike down New York’s law almost exclusively on its application of what it calls historical “analogical reasoning.” Ante, at 19–20. As I have admitted above, I am not a historian, and neither is the Court. But the history, as it appears to me, seems to establish a robust tradition of regulations restricting the public carriage of concealed firearms. To the extent that any uncertainty remains between the Court’s view of the history and mine, that uncertainty counsels against relying on history alone. In my view, it is appropriate in such circumstances to look beyond the history and engage in what the Court calls means-end scrutiny. Courts must be permitted to consider the State’s interest in preventing gun violence, the effectiveness of the contested law in achieving that interest, the degree to which the law burdens the Second Amendment right, and, if appropriate, any less restrictive alternatives. The Second Circuit has previously done just that, and it held that New York’s law does not violate the Second Amendment. See Kachalsky , 701 F. 3d, at 101. It first evaluated the degree to which the law burdens the Second Amendment right to bear arms. Id., at 93–94. It concluded that the law “places substantial limits on the ability of law-abiding citizens to possess firearms for self-defense in public,” but does not burden the right to possess a firearm in the home, where Heller said “ ‘the need for defense of self, family, and property is most acute.’ ” Kachalsky , 701 F. 3d, at 93–94 (quoting Heller, 554 U. S., at 628). The Second Circuit therefore determined that the law should be subject to heightened scrutiny, but not to strict scrutiny and its attendant presumption of unconstitutionality. 701 F. 3d, at 93–94. In applying such heightened scrutiny, the Second Circuit recognized that “New York has substantial, indeed compelling, governmental interests in public safety and crime prevention.” Id., at 97. I agree. As I have demonstrated above, see supra, at 3–9, firearms in public present a number of dangers, ranging from mass shootings to road rage killings, and are responsible for many deaths and injuries in the United States. The Second Circuit then evaluated New York’s law and concluded that it is “substantially related” to New York’s compelling interests. Kachalsky , 701 F. 3d, at 98–99. To support that conclusion, the Second Circuit pointed to “studies and data demonstrating that widespread access to handguns in public increases the likelihood that felonies will result in death and fundamentally alters the safety and character of public spaces.” Id., at 99. We have before us additional studies confirming that conclusion. See, e.g., supra, at 19–20 (summarizing studies finding that “may issue” licensing regimes are associated with lower rates of violent crime than “shall issue” regimes). And we have been made aware of no less restrictive, but equally effective, alternative. After considering all of these factors, the Second Circuit held that New York’s law does not unconstitutionally burden the right to bear arms under the Second Amendment. I would affirm that holding. New York’s Legislature considered the empirical evidence about gun violence and adopted a reasonable licensing law to regulate the concealed carriage of handguns in order to keep the people of New York safe. The Court today strikes down that law based only on the pleadings. It gives the State no opportunity to present evidence justifying its reasons for adopting the law or showing how the law actually operates in practice, and it does not so much as acknowledge these important considerations. Because I cannot agree with the Court’s decision to strike New York’s law down without allowing for discovery or the development of any evidentiary record, without considering the State’s compelling interest in preventing gun violence and protecting the safety of its citizens, and without considering the potentially deadly consequences of its decision, I respectfully dissent.

The Supreme Court ruled that the Second and Fourteenth Amendments protect an individual's right to carry a handgun for self-defense outside the home, striking down New York's law requiring a special need for a public-carry license as a violation of the Constitution.

Lawsuits & Legal Procedures

Capron v. Van Noorden

https://supreme.justia.com/cases/federal/us/6/126/

U.S. Supreme Court CAPRON v. VAN NOORDEN, 6 U.S. 126 (1804) 6 U.S. 126 (Cranch) CAPRON v. VAN NOORDEN. February Term, 1804 Harper, for the plaintiff in error, stated the only question to be whether the plaintiff had a right to assign for error, the want of jurisdiction in that Court to which he had chosen to resort. ERROR to the Circuit Court of North-Carolina. The proceedings stated Van Noorden to be late of Pitt county, but did not allege Capron, the plaintiff, to be an alien, nor a citizen of any state, nor the place of his residence. Upon the general issue, in an action of trespass on the case, a verdict was found for the defendant, Van Noorden, upon which judgment was rendered. The writ of Error was sued out by Capron, the plaintiff below, who assigned for error, among other things, first "That the circuit court aforesaid is a court "of limited jurisdiction, and that by the record aforesaid "it doth not appear, as it ought to have done, that "either the said George Capron, or the said Hadrianus " Van Noorden was an alien at the time of the commencement "of said suit, or at any other time, or that one of "the said parties was at that or any other time, a citizen "of the state of North-Carolina where the suit was "brought, and the other a citizen of another state; or "that they the said George and Hadrianus were for "any cause whatever, persons within the jurisdiction of "the said court, and capable of suing and being sued "there." And secondly, "That by the record aforesaid it manifestly "appeareth that the said Circuit Court had not "any jurisdiction of the cause aforesaid, nor ought to "have held plea thereof, or given judgment therein, but "ought to have dismissed the same, whereas the said "Court hath proceeded to final judgment therein." It is true, as a general rule, that a man cannot reverse a judgment for error in process or delay, unless he can shew that the error was to his disadvantage; but it is also a rule, that he may reverse a judgment for an error of the Court, even though it be for his advantage. As if a verdict be found for the debt, damages, and costs; and the judgment be only for the debt and damages, the defendant may assign for error that the judgment was not also for costs, although the error is for his advantage. Here it was the duty of the Court to see that they had jurisdiction, for the consent of parties could not give it. It is therefore an error of the Court, and the plaintiff has a right to take advantage of it. 2 Bac. Ab. Tit. Error. (K. 4.) — 8 Co. 59. (a) Beecher's case. — 1 Roll. Ab. 759. — Moor 692. — 1 Lev. 289. Bernard v. Bernard. The defendant in error did not appear, but the citation having been duly served, the judgment was reversed.

The U.S. Supreme Court case Capron v. Van Noorden (1804) centered on the question of whether a plaintiff could assign error based on a lack of jurisdiction in the chosen court. The case involved a writ of error from the plaintiff, Capron, who sought to challenge the judgment of the Circuit Court of North Carolina in an action of trespass. The Court held that a party could reverse a judgment for an error in the court's jurisdiction, even if the error was advantageous to them. In this case, the Circuit Court's failure to establish jurisdiction over the parties, regardless of their consent, was an error that the plaintiff had the right to raise. The defendant in error did not appear, and the judgment was reversed.

Immigration & National Security

Elk v. Wilkins

https://supreme.justia.com/cases/federal/us/112/94/

U.S. Supreme Court Elk v. Wilkins, 112 U.S. 94 (1884) Elk v. Wilkins Argued April 28, 1884 Decided November 3, 1884 112 U.S. 94 I N ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA Syllabus An Indian, born a member of one of the Indian tribes within the United States, which still exists and is recognized as a tribe by the government of the United States, who has voluntarily separated himself from his tribe, and taken up his residence among the white citizens of a state, but who has not been naturalized, or taxed, or recognized as a citizen either by the United States or by the state, is not a citizen of the United States within the meaning of the first section of the Fourteenth Article of Amendment of the Constitution. A petition alleging that the plaintiff is an Indian, and was born within the United States, and has severed his tribal relation to the Indian tribes, and fully and completely surrendered himself to the jurisdiction of the United States, and still so continues subject to the jurisdiction of the United States, and is a bona fide resident of the Nebraska and City of Omaha, does not show that he is a citizen of the United States under the Fourteenth Article of Amendment of the Constitution. This is an action brought by an Indian in the Circuit Court of the United States for the District of Nebraska against the registrar of one of the wards of the City of Omaha for refusing to register him as a qualified voter therein. The petition was as follows: This is an action brought by an Indian, in the Circuit Court of the United States for the District of Nebraska, against the registrar of one of the wards of the City of Omaha, for refusing to register him as a qualified voter therein. The petition was as follows: Page 112 U. S. 95 "John Elk, plaintiff, complains of Charles Wilkins, defendant, and avers that the matter in dispute herein exceeds the sum of five hundred dollars, to-wit, the sum of six thousand dollars, and that the matter in dispute herein arises under the Constitution and laws of the United States, and, for cause of action against the defendant, avers that he, the plaintiff, is an Indian, and was born within the United States; that more than one year prior to the grievances hereinafter complained of he had severed his tribal relation to the Indian tribes, and had fully and completely surrendered himself to the jurisdiction of the United States, and still so continues subject to the jurisdiction of the United States, and avers that, under and by virtue of the Fourteenth Amendment to the Constitution of the United States, he is a citizen of the United States, and entitled to the right and privilege of citizens of the United States." "That on the sixth day of April, 1880, there was held in the City of Omaha (a City of the first class, incorporated under the general laws of the State of Nebraska, providing for the incorporation of cities of the first class) a general election for the election of members of the city council and other officers for said city." "That the defendant, Charles Wilkins, held the office of and acted as registrar in the Fifth Ward of said city, and that as such registrar it was the duty of such defendant to register the names of all persons entitled to exercise the elective franchise in said ward of said city at said general election." "That this plaintiff was a citizen of and had been a bona fide resident of the State of Nebraska for more than six months prior to said sixth day of April, 1880, and had been a bona fide resident of Douglas County, wherein the City of Omaha is situate, for more than forty days, and in the Fifth Ward of said city more than ten days prior to the said sixth day of April, and was such citizen and resident at the time of said election, and at the time of his attempted registration, as hereinafter set forth, and was in every way qualified, under the laws of the State of Nebraska and of the City of Omaha, to be registered as a voter, and to cast a vote at said election, and complied with the laws of the city and state in that behalf. " Page 112 U. S. 96 "That on or about the fifth day of April, 1880, and prior to said election, this plaintiff presented himself to said Charles Wilkins, as such registrar at his office, for the purpose of having his name registered as a qualified voter, as provided by law, and complied with all the provisions of the statutes in that regard, and claimed that, under the Fourteenth and Fifteenth Amendments to the Constitution of the United States, he was a citizen of the United States, and was entitled to exercise the elective franchise, regardless of his race and color, and that said Wilkins, designedly, corruptly, willfully, and maliciously, did then and there refuse to register this plaintiff, for the sole reason that the plaintiff was an Indian, and therefore not a citizen of the United States, and not therefore entitled to vote, and on account of his race and color, and with the willful, malicious, corrupt, and unlawful design to deprive this plaintiff of his right to vote at said election, and of his rights, and all other Indians of their rights, under said Fourteenth and Fifteenth amendments to the Constitution of the United States, on account of his and their race and color." "That on the sixth day of April, this plaintiff presented himself at the place of voting in said ward, and presented a ballot, and requested the right to vote, where said Wilkins, who was then acting as one of the judges of said election in said ward, in further carrying out his willful and malicious designs as aforesaid, declared to the plaintiff and to the other election officers that the plaintiff was an Indian, and not a citizen, and not entitled to vote, and said judges and clerks of election refused to receive the vote of the plaintiff, for that he was not registered as required by law." "Plaintiff avers the fact to be that by reason of said willful, unlawful, corrupt, and malicious refusal of said defendant to register this plaintiff, as provided by law, he was deprived of his right to vote at said election, to his damage in the sum of $6,000." "Wherefore, plaintiff prays judgment against defendant for $6,000, his damages, with costs of suit." The defendant filed a general demurrer for the following causes: 1st, that the petition did not state facts sufficient to Page 112 U. S. 97 constitute a cause of action; 2d, that the court had no jurisdiction of the person of the defendant; 3d, that the court had no jurisdiction of the subject of the action. The demurrer was argued before Judge McCrary and Judge Dundy, and sustained, and, the plaintiff electing to stand by his petition, judgment was rendered for the defendant, dismissing the petition, with costs. The plaintiff sued out this writ of error. By the Constitution of the State of Nebraska, article 7 section 1, "Every male person of the age of twenty-one years or upwards, belonging to either of the following classes, who shall have resided in the state six months, and in the county, precinct, or ward for the term provided by law, shall be an elector. First, citizens of the United States. Second, persons of foreign birth who shall have declared their intention to become citizens, conformably to the laws of the United States on the subject of naturalization at least thirty days prior to an election." By the statutes of Nebraska, every male person of the age of twenty-one years or upward, belonging to either of the two classes so defined in the constitution of the state, who shall have resided in the state six months, in the county forty days, and in the precinct, township, or ward ten days, shall be an elector; the qualifications of electors in the several wards of cities of the first class (of which Omaha is one) shall be the same as in precincts; it is the duty of the registrar to enter in the register of qualified voters the name of every person who applies to him to be registered, and satisfies him that he is qualified to vote under the provisions of the election laws of the state, and at all municipal, as well as county or state elections, the judges of election are required to check the name, and receive and deposit the ballot, of any person whose name appears on the register. Compiled Statutes of Nebraska of 1881, c. 26, § 3; c. 13, § 14; c. 76, §§ 6, 13, 19. Page 112 U. S. 98 MR. JUSTICE GRAY delivered the opinion of the Court. He stated the facts in the foregoing language, and continued: The plaintiff, in support of his action, relies on the first clause of the first section of the Fourteenth Article of Amendment of the Constitution of the United States, by which "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside," and on the Fifteenth Article of Amendment, which provides that "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude." This being a suit at common law in which the matter in dispute exceeds $500, arising under the Constitution of the United States, the circuit court had jurisdiction of it under the Act of March 3, 1875, c. 137, § 1, even if the parties were citizens of the same state. 18 Stat. 470; Ames v. Kansas, 111 U. S. 449 . The judgment of that court, dismissing the action with costs, must have proceeded upon the merits, for if the dismissal had been for want of jurisdiction, no costs could have been awarded. Mayor v. Cooper , 6 Wall. 247; Mansfield & Coldwater Railway v. Swan, 111 U. S. 379 . And the only point argued by the defendant in this Court is whether the petition sets forth facts enough to constitute a cause of action. The decision of this point, as both parties assume in their briefs, depends upon the question whether the legal conclusion that under and by virtue of the Fourteenth Amendment of the Constitution the plaintiff is a citizen of the United States is supported by the facts alleged in the petition and admitted by the demurrer, to-wit, the plaintiff is an Indian and was born in the United States and has severed his tribal relation to the Indian tribes and fully and completely surrendered himself to the jurisdiction of the United States, and still continues to be subject to the jurisdiction of the United States, and is a bona fide resident of the State of Nebraska and City of Omaha. The petition, while it does not show of what Indian tribe the plaintiff was a member, yet, by the allegations that he "is Page 112 U. S. 99 an Indian, and was born within the United States," and that "he had severed his tribal relations to the Indian tribes," clearly implies that he was born a member of one of the Indian tribes within the limits of the United States which still exists and is recognized as a tribe by the government of the United States. Though the plaintiff alleges that he "had fully and completely surrendered himself to the jurisdiction of the United States," he does not allege that the United States accepted his surrender, or that he has ever been naturalized, or taxed, or in any way recognized or treated as a citizen by the state or by the United States. Nor is it contended by his counsel that there is any statute or treaty that makes him a citizen. The question, then, is whether an Indian, born a member of one of the Indian tribes within the United States, is, merely by reason of his birth within the United States and of his afterwards voluntarily separating himself from his tribe and taking up his residence among white citizens, a citizen of the United States within the meaning of the first section of the Fourteenth Amendment of the Constitution. Under the Constitution of the United States as originally established, "Indians not taxed" were excluded from the persons according to whose numbers representatives and direct taxes were apportioned among the several states, and Congress had and exercised the power to regulate commerce with the Indian tribes, and the members thereof, whether within or without the boundaries of one of the states of the Union. The Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states, but they were alien nations, distinct political communities, with whom the United States might and habitually did deal as they thought fit, either through treaties made by the President and Senate or through acts of Congress in the ordinary forms of legislation. The members of those tribes owed immediate allegiance to their several tribes, and were not part of the people of the United States. They were in a dependent condition, a state of pupilage, resembling that of a ward to his guardian. Indians and their property, exempt from taxation by treaty or statute of the United States, could not be taxed Page 112 U. S. 100 by any state. General acts of Congress did not apply to Indians unless so expressed as to clearly manifest an intention to include them. Constitution, Article I, Sections 2, 8; Article II, Section 2; Cherokee Nation v. Georgia , 5 Pet. 1; Worcester v. Georgia , 6 Pet. 515; United States v. Rogers , 4 How. 567; United States v. Holliday , 3 Wall. 407; Case of the Kansas Indians , 5 Wall. 737; Case of the New York Indians , 5 Wall. 761; Case of the Cherokee Tobacco , 11 Wall. 616; United States v. Whisky, 93 U. S. 188 ; Pennock v. Commissioners, 103 U. S. 44 ; Crow Dog's Case, 109 U. S. 556 ; Goodell v. Jackson, 20 Johns. 693; Hastings v. Farmer, 4 N.Y. 293. The alien and dependent condition of the members of the Indian tribes could not be put off at their own will without the action or assent of the United States. They were never deemed citizens of the United States except under explicit provisions of treaty or statute to that effect either declaring a certain tribe, or such members of it as chose to remain behind on the removal of the tribe westward, to be citizens or authorizing individuals of particular tribes to become citizens on application to a court of the United States for naturalization and satisfactory proof of fitness for civilized life, for examples of which see treaties in 1817 and 1835 with the Cherokees, and in 1820, 1825, and 1830 with the Choctaws, 7 Stat. 159, 211, 236, 335, 483, 488; Wilson v. Wall , 6 Wall. 83; Opinion of Attorney General Taney, 2 Opinions of Attorneys General 462; in 1855 with the Wyandotts, 10 Stat. 1159; Karrahoo v. Adams, 1 Dillon 344, 346; Gray v. Coffman, 3 Dillon 393; Hicks v. Butrick, 3 Dillon 413; in 1861 and in March, 1866 with the Pottawatomies, 12 Stat. 1192; 14 Stat. 763; in 1862 with the Ottawas, 12 Stat. 1237; and the Kickapoos, 13 Stat. 624; and Acts of Congress of March 3, 1839, c. 83, § 7, concerning the Brothertown Indians, and of March 3, 1843, c. 101 § 7, August 6, 1846, c. 88, and March 3, 1865, c. 127 § 4, concerning the Stockbridge Indians, 5 Stat. 351, 647; 9 Stat. 55; 13 Stat. 562. See also treaties with the Stockbridge Indians in 1848 and 1856, 9 Stat. 955; 11 Stat. 667; 7 Opinions of Attorneys General 746. Chief Justice Taney, in the passage cited for the plaintiff Page 112 U. S. 101 from his opinion in Scott v. Sandford , 19 How. 393, 60 U. S. 404 , did not affirm or imply that either the Indian tribes, or individual members of those tribes, had the right, beyond other foreigners, to become citizens of their own will, without being naturalized by the United States. His words were: "They [the Indian tribes] may without doubt, like the subjects of any foreign government, be naturalized by the authority of Congress and become citizens of a state and of the United States, and if an individual should leave his nation or tribe, and take up his abode among the white population, he would be entitled to all the rights and privileges which would belong to an emigrant from any other foreign people." But an emigrant from any foreign state cannot become a citizen of the United States without a formal renunciation of his old allegiance, and an acceptance by the United States of that renunciation through such form of naturalization as may be required law. The distinction between citizenship by birth and citizenship by naturalization is clearly marked in the provisions of the Constitution, by which "No person, except a natural born citizen or a citizen of the United States at the time of the adoption of this Constitution shall be eligible to the office of President," and "The Congress shall have power to establish an uniform rule of naturalization." Constitution, Article II, Section 1; Article I, Section 8. By the Thirteenth Amendment of the Constitution, slavery was prohibited. The main object of the opening sentence of the Fourteenth Amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this Court, as to the citizenship of free negroes ( Scott v. Sandford , 19 How. 393), and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States and of the state in which they reside. Slaughterhouse Cases , 16 Wall. 36, 83 U. S. 73 ; Strauder v. West Virginia, 100 U. S. 303 , 100 U. S. 306 . This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared Page 112 U. S. 102 to be citizens are "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired. Indians born within the territorial limits of the United States, members of and owing immediate allegiance to one of the Indiana tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more "born in the United States and subject to the jurisdiction thereof," within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations. This view is confirmed by the second section of the Fourteenth Amendment, which provides that "Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed." Slavery having been abolished, and the persons formerly held as slaves made citizens, this clauses fixing the apportionment of representatives has abrogated so much of the corresponding clause of the original Constitution as counted only three-fifths of such persons. But Indians not taxed are still excluded from the count for the reason that they are not citizens. Their absolute exclusion from the basis of representation in which all other persons are now included is wholly inconsistent with their being considered citizens. So the further provision of the second section for a proportionate Page 112 U. S. 103 reduction of the basis of the representation of any state in which the right to vote for Presidential electors, representatives in Congress, or executive or judicial officers or members of the legislature of a state is denied, except for participation in rebellion or other crime, to "any of the male inhabitants of such state, being twenty-one years of age and citizens of the United States," cannot apply to a denial of the elective franchise to Indians not taxed, who form no part of the people entitled to representation. It is also worthy of remark that the language used about the same time by the very Congress which framed the Fourteenth Amendment, in the first section of the Civil Rights Act of April 9, 1866, declaring who shall be citizens of the United States, is "all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed." 14 Stat. 27; Rev.Stat. § 1992. Such Indians, then, not being citizens by birth, can only become citizens in the second way mentioned in the Fourteenth Amendment, by being "naturalized in the United States," by or under some treaty or statute. The action of the political departments of the government, not only after the proposal of the amendment by Congress to the states in June, 1866, but since the proclamation in July, 1868, of its ratification by the requisite number of states, accords with this construction. While the amendment was pending before the legislatures of the several states, treaties containing provisions for the naturalization of members of Indian tribes as citizens of the United States were made on July 4, 1866, with the Delawares, in 1867 with various tribes in Kansas, and with the Pottawatomies, and in April, 1868, with the Sioux. 14 Stat. 794, 796; 15 Stat. 513, 532, 533, 637. The treaty of 1867 with the Kansas Indians strikingly illustrates the principle that no one can become a citizen of a nation without its consent, and directly contradicts the supposition that a member of an Indian tribe can at will be alternately a citizen of the United States and a member of the tribe. That treaty not only provided for the naturalization of members Page 112 U. S. 104 of the Ottawa, Miami, Peoria, and other tribes, and their families, upon their making declaration before the district court of the United States of their intention to become citizens, 15 Stat. 517, 520, 521; but, after reciting that some of the Wyandotts, who had become citizens under the treaty of 1855, were "unfitted for the responsibilities of citizenship" and enacting that a register of the whole people of this tribe, resident in Kansas or elsewhere, should be taken, under the direction of the Secretary of the Interior, showing the names of "all who declare their desire to be and remain Indians and in a tribal condition," and of incompetents and orphans as described in the treaty of 1855, and that such persons, and those only, should thereafter constitute the tribe, it provided that "No one who has heretofore consented to become a citizen, nor the wife or children of any such person, shall be allowed to become members of the tribe except by the free consent of the tribe after its new organization and unless the agent shall certify that such party is, through poverty or incapacity, unfit to continue in the exercise of the responsibilities of citizenship of the United States and likely to become a public charge." 15 Stat. 514, 516. Since the ratification of the Fourteenth Amendment, Congress has passed several acts for naturalizing Indians of certain tribes, which would have been superfluous if they were, or might become without any action of the government, citizens of the United States. By the Act of July 15, 1870, c. 296, § 10, for instance, it was provided that if at any time thereafter any of the Winnebago Indians in the State of Minnesota should desire to become citizens of the United States, they should make application to the District Court of the United States for the District of Minnesota, and in open court make the same proof, and take the same oath of allegiance as is provided by law for the naturalization of aliens, and should also make proof, to the satisfaction of the court, that they were sufficiently intelligent and prudent to control their affairs and interests, that they had adopted the habits of civilized life, and had for at least five years before been able to support themselves and their families, and thereupon Page 112 U. S. 105 they should be declared by the court to be citizens of the United States, the declaration entered of record, and a certificate thereof given to the applicant, and the Secretary of the Interior, upon presentation of that certificate, might issue to them patents in fee simple, with power of alienation, of the lands already held by them in severalty, and might cause to be paid to them their proportion of the money and effects of the tribe held in trust under any treaty or law of the United States, and thereupon such persons should cease to be members of the tribe, and the lands so patented to them should be subject to levy, taxation, and sale in like manner with the property of other citizens. 16 Stat. 361. By the Act of March 3, 1873, c. 332, § 3, similar provision was made for the naturalization of any adult members of the Miami tribe in Kansas, and of their minor children. 17 Stat. 632. And the Act of March 3, 1865, c. 127, before referred to, making corresponding provision for the naturalization of any of the chiefs, warriors, or heads of families of the Stockbridge Indians, is reenacted in § 2312 of the Revised Statutes. The Act of January 25, 1871, c. 38, for the relief of the Stockbridge and Munsee Indians in the State of Wisconsin, provided that "for the purpose of determining the persons who are members of said tribes, and the future relation of each to the government of the United States," two rolls should be prepared under the direction of the Commissioner of Indian Affairs, signed by the sachem and councilors of the tribe, certified by the person selected by the commissioner to superintend the same, and returned to the commissioner, the one, to be denominated the citizen roll, of the names of all such persons of full age, and their families, "as signify their desire to separate their relations with said tribe and to become citizens of the United States," and the other to be denominated the Indian roll, of the names of all such "as desire to retain their tribal character and continue under the care and guardianship of the United States," and that those rolls, so made and returned, should be held as a full surrender and relinquishment, on the part of all those of the first class, of all claims to be known or considered as members of the tribe, or to be interested Page 112 U. S. 106 in any provision made or to be made by the United States for its benefit, "and they and their descendants shall thenceforth be admitted to all the rights and privileges of citizens of the United States." 16 Stat. 406. The Pension Act exempts Indian claimants of pensions for service in the army or navy from the obligation to take the oath to support the Constitution of the United States. Act of March 3, 1873, c. 234, § 28, 17 Stat. 574; Rev.Stat. § 4721. The recent statutes concerning homesteads are quite inconsistent with the theory that Indians do or can make themselves independent citizens by living apart from their tribe. The Act of March 3, 1875, c. 131, § 15, allowed to "any Indian born in the United States, who is the head of a family, or who has arrived at the age of twenty-one years, and who has abandoned, or may hereafter abandon, his tribal relations" the benefit of the homestead acts, but only upon condition of his "making satisfactory proof of such abandonment, under rules to be prescribed by the Secretary of the Interior," and further provided that his title in the homestead should be absolutely inalienable for five years from the date of the patent, and that he should be entitled to share in all annuities, tribal funds, lands, and other property, as if he had maintained his tribal relations. 18 Stat. 420. And the Act of March 3, 1884, c. 180, § 1, while it allows Indians "located on public lands" to "avail themselves of the homestead laws as fully, and to the same extent, as may now be done by citizens of the United States," provides that the form and the legal effect of the patent shall be that the United States does and will hold the land for twenty-five years in trust for the Indian making the entry, and his widow and heirs, and will then convey it in fee to him or them. 23 Stat. 96. The national legislation has tended more and more toward the education and civilization of the Indians, and fitting them to be citizens. But the question whether any Indian tribes, or any members thereof, have become so far advanced in civilization that they should be let out of the state of pupilage, and admitted to the privileges and responsibilities of citizenship, is a question to be decided by the nation whose wards they are Page 112 U. S. 107 and whose citizens they seek to become, and not by each Indian for himself. There is nothing in the statutes or decisions referred to by counsel to control the conclusion to which we have been brought by a consideration of the language of the Fourteenth Amendment and of the condition of the Indians at the time of its proposal and ratification. The Act of July 27, 1868, c. 249, declaring the right of expatriation to be a natural and inherent right of all people, and reciting that "in the recognition of this principle this government has freely received emigrants from all nations, and invested them with the rights of citizenship," while it affirms the right of every man to expatriate himself from one country, contains nothing to enable him to become a citizen of another without being naturalized under its authority. 15 Stat. 223; Rev.Stat. § 1999. The provision of the Act of Congress of March 3, 1871, c. 120, that "Hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty" is coupled with a provision that the obligation of any treaty already lawfully made is not to be thereby invalidated or impaired, and its utmost possible effect is to require the Indian tribes to be dealt with for the future through the legislative and not through the treatymaking power. 16 Stat. 566; Rev.Stat. § 2079. In the case of United States v. Elm, 23 Int.Rev.Rec. 419, decided by Judge Wallace in the District Court of the United States for the Northern District of New York, the Indian who was held to have a right to vote in 1876 was born in the State of New York, one of the remnants of a tribe which had ceased to exist as a tribe in that state, and by a statute of the state it had been enacted that any native Indian might purchase, take, hold, and convey lands, and whenever he should have become a freeholder to the value of $100 should be liable to taxation and to the civil jurisdiction of the courts in the same manner and to the same extent as a citizen. N.Y. Stat. 1843, c. 87. The condition of the tribe from which he Page 112 U. S. 108 derived his origin, so far as any fragments of it remained within the State of New York, resembled the condition of those Indian nations of which Mr. Justice Johnson said in Fletcher v. Peck , 6 Cranch 87, 10 U. S. 146 , that they "have totally extinguished their national fire, and submitted themselves to the laws of the states," and which Mr. Justice McLean had in view when he observed in Worcester v. Georgia , 6 Pet. 515, 31 U. S. 580 , that in some of the old states "where small remnants of tribes remain, surrounded by white population, and who, by their reduced numbers, had lost the power of self-government, the laws of the state have been extended over them, for the protection of their persons and property." See also, as to the condition of Indians in Massachusetts, remnants of tribes never recognized by the treaties or legislative or executive acts of the United States as distinct political communities, Danzell v. Webquish, 108 Mass. 133; Pells v. Webquish, 129 Mass. 469; Mass. Stat. 1862, c. 184; 1869, c. 463. The passages cited as favorable to the plaintiff, from the opinions delivered in Ex Parte Kenyon, 5 Dillon 385, 390, in Ex Parte Reynolds, 5 Dillon 394, 397, and in United States v. Crook, 5 Dillon 453, 464, were obiter dicta. The Case of Reynolds was an indictment, in the Circuit Court of the United States for the Western District of Arkansas, for a murder in the Indian country, of which that court had jurisdiction if either the accused or the dead man was not an Indian, and was decided by Judge Parker in favor of the jurisdiction, upon the ground that both were white men and that, conceding the one to be an Indian by marriage, the other never was an Indian in any sense. 5 Dillon 397, 404. Each of the other two cases was a writ of habeas corpus, and any person, whether a citizen or not, unlawfully restrained of his liberty, is entitled to that writ. Case of the Hottentot Venus, 13 East 195; Case of Dos Santos, 2 Brock. 493; In re Kaine , 14 How. 103. In Kenyon's Case, Judge Parker held that the court in which the prisoner had been convicted had no jurisdiction of the subject matter because the place of the commission of the act was beyond the territorial limits of its jurisdiction, and, as was truly said, "this alone would be conclusive of this case." 5 Dillon Page 112 U. S. 109 390. In United States v. Crook, the Ponca Indians were discharged by Judge Dundy because the military officers who held them were taking them to the Indian Territory by force and without any lawful authority, 5 Dillon 468, and in the case at bar, as the record before us shows, that learned judge concurred in the judgment below for the defendant. The law upon the question before us has been well stated by Judge Deady in the District Court of the United States for the District of Oregon. In giving judgment against the plaintiff in a case resembling the case at bar, he said: "Being born a member of 'an independent political community' -- the Chinook -- he was not born subject to the jurisdiction of the United States -- not born in its allegiance." McKay v. Campbell, 2 Sawyer 118, 134. And in a later case, he said: "But an Indian cannot make himself a citizen of the United States without the consent and cooperation of the government. The fact that he has abandoned his nomadic life or tribal relations and adopted the habits and manners of civilized people may be a good reason why he should be made a citizen of the United States, but does not of itself make him one. To be a citizen of the United States is a political privilege which no one not born to can assume without its consent in some form. The Indians in Oregon, not being born subject to the jurisdiction of the United States, were not born citizens thereof, and I am not aware of any law or treaty by which any of them have been made so since." United States v. Osborne, 6 Sawyer 406, 409. Upon the question whether any action of a state can confer rights of citizenship on Indians of a tribe still recognized by the United States as retaining its tribal existence, we need not and do not express an opinion, because the State of Nebraska is not shown to have taken any action affecting the condition of this plaintiff. See Chirac v. Chirac , 2 Wheat. 259; Fellows v. Blacksmith , 19 How. 366; United States v. Holliday , 3 Wall. 407, 70 U. S. 420 ; United States v. Joseph, 94 U. S. 614 , 94 U. S. 618 . The plaintiff, not being a citizen of the United States under the Fourteenth Amendment of the Constitution, has been deprived of no right secured by the Fifteenth Amendment, and cannot maintain this action. Judgment affirmed. Page 112 U. S. 110 MR. JUSTICE HARLAN, with whom concurred MR. JUSTICE WOODS, dissenting. MR. JUSTICE WOODS and myself feel constrained to express our dissent from the interpretation which our brethren give to that clause of the Fourteenth Amendment which provides that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." The case, as presented by the record, is this: John Elk, the plaintiff in error, is a person of the Indian race. He was born within the territorial limits of the United States. His parents were, at the time of his birth, members of one of the Indian tribes in this country. More than a year, however, prior to his application to be registered as a voter in the City of Omaha, he had severed all relations with his tribe and, as he alleges, fully and completely surrendered himself to the jurisdiction of the United States. Such surrender was, of course, involved in his act of becoming, as the demurrer to the petition admits that he did become, a bona fide resident of the State of Nebraska. When he applied in 1880 to be registered as a voter, he possessed, as is also admitted, the qualifications of age and residence in state, county, and ward, required for electors by the constitution and laws of that state. It is likewise conceded that he was entitled to be so registered if at the time of his application, he was a citizen of the United States, for, by the Constitution and laws of Nebraska, every citizen of the United States having the necessary qualifications of age and residence in state, county, and ward is entitled to vote. Whether he was such citizen is the question presented by this writ of error. It is said that the petition contains no averment that Elk was taxed in the state in which he resides, or had ever been treated by her as a citizen. It is evident that the court would not have held him to be a citizen of the United States even if the petition had contained a direct averment that he was taxed, because its judgment, in legal effect, is that, although born within the territorial limits of the United States, he could not, if at his birth a member of an Indian tribe, acquire national citizenship Page 112 U. S. 111 by force of the Fourteenth Amendment, but only in pursuance of some statute or treaty providing for his naturalization. It would therefore seem unnecessary to inquire whether he was taxed at the time of his application to be registered as a voter, for if the words "all persons born . . . in the United States and subject to the jurisdiction thereof" were not intended to embrace Indians born in tribal relations, but who subsequently became bona fide residents of the several states, then manifestly the legal status of such Indians is not altered by the fact that they are taxed in those states. While denying that national citizenship, as conferred by that amendment, necessarily depends upon the inquiry whether the person claiming it is taxed in the state of his residence or has property therein from which taxes may be derived, we submit that the petition does sufficiently show that the plaintiff was taxed -- that is, belongs to the class which, by the laws of Nebraska, are subject to taxation. By the Constitution and laws of Nebraska, all real and personal property in that state are subject to assessment and taxation. Every person of full age and sound mind, being a resident thereof, is required to list his personal property for taxation. Const.Neb. art. 9, § 1; Compiled Stat. of Neb., c. 77, pp. 400, 401. Of these provisions upon the subject of taxation this Court will take judicial notice. Good pleading did not require that they should be set forth at large in the petition. Consequently an averment that the plaintiff is a citizen and bona fide resident of Nebraska implies in law that he is subject to taxation, and is taxed, in that state. Further: The plaintiff has become so far incorporated with the mass of the people of Nebraska that being, as the petition avers, a citizen and resident thereof, he constitutes a part of her militia. Compiled Stat.Neb. c. 56. He may, being no longer a member of an Indian tribe, sue and be sued in her courts. And he is counted in every apportionment of representation in the legislature, for the requirement of her Constitution is that "The legislature shall apportion the Senators and representatives according to the number of inhabitants, excluding Indians not taxed, and soldiers and officers of the United States army." Const.Neb., art. 3 § 1. Page 112 U. S. 112 At the adoption of the Constitution there were, in many of the states, Indians, not members of any tribe, who constituted a part of the people for whose benefit the state governments were established. This is apparent from that clause of Article I, Section 3, which requires, in the apportionment of representatives and direct taxes among the several states "according to their respective numbers," the exclusion of "Indians not taxed." This implies that there were at that time, in the United States, Indians who were taxed -- that is, were subject to taxation by the laws of the State of which they were residents. Indians not taxed were those who held tribal relations, and therefore were not subject to the authority of any state, and were subject only to the authority of the United States, under the power conferred upon Congress in reference to Indian tribes in this country. The same provision is retained in the Fourteenth Amendment; for now, as at the adoption of the Constitution, Indians in the several states, who are taxed by their laws, are counted in establishing the basis of representation in Congress. By the Act of April 9, 1866, entitled "An act to protect all persons in the United States in their civil rights, and furnish means for their vindication," 14 Stat. 27, it is provided that "all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." This, so far as we are aware, is the first general enactment making persons of the Indian race citizens of the United States. Numerous statutes and treaties previously provided for all the individual members of particular Indian tribes becoming, in certain contingencies, citizens of the United States. But the act of 1866 reached Indians not in tribal relations. Beyond question, by that act, national citizenship was conferred directly upon all persons in this country, of whatever race (excluding only "Indians not taxed") who were born within the territorial limits of the United States, and were not subject to any foreign power. Surely everyone must admit that an Indian residing in one of the states and subject to taxation there became, by force alone of the act of 1866, a citizen of the United States, although Page 112 U. S. 113 he may have been, when born, a member of a tribe. The exclusion of Indians not taxed evinced a purpose to include those subject to taxation in the state of their residence. Language could not express that purpose with more distinctness than does the act of 1866. Any doubt upon the subject, in respect to persons of the Indian race residing in the United States or territories, and not members of a tribe, will be removed by an examination of the debates, in which many distinguished statesmen and lawyers participated in the Senate of the United States when the act of 1866 was under consideration. In the bill as originally reported from the Judiciary Committee there were no words excluding "Indians not taxed" from the citizenship proposed to be granted. Attention being called to this fact, the friends of the measure disclaimed any purpose to make citizens of those who were in tribal relations, with governments of their own. In order to meet that objection, while conforming to the wishes of those desiring to invest with citizenship all Indians permanently separated from their tribes, and who, by reason of their residence away from their tribes, constituted a part of the people under the jurisdiction of the United States, Mr. Trumbull, who reported the bill, modified it by inserting the words "excluding Indians not taxed." What was intended by that modification appears from the following language used by him in debate: "Of course, we cannot declare the wild Indians who do not recognize the government of the United States, who are not subject to our laws, with whom we make treaties, who have their own laws, who have their own regulations, whom we do not intend to interfere with or punish for the commission of crimes one upon the other, to be the subjects of the United States in the sense of being citizens. They must be excepted. The Constitution of the United States excludes them from the enumeration of the population of the United States when it says that Indians not taxed are to be excluded. It has occurred to me that, perhaps, the amendment would meet the views of all gentlemen, which used these constitutional words, and said that all persons born in the United States, excluding Page 112 U. S. 114 Indians not taxed, and not subject to any foreign power, shall be deemed citizens of the United States." Cong.Globe, 1st Sess. 39th Congress, p. 527. In replying to the objections urged by Mr. Hendricks to the bill even as amended, Mr. Trumbull said: "Does the Senator from Indiana want the wild roaming Indians, not taxed, not subject to our authority, to be citizens of the United States -- persons that are not to be counted, in our government? If he does not, let him not object to this amendment that brings in even [only] the Indian when he shall have cast off his wild habits, and submitted to the laws of organized society and become a citizen. " Ibid., 528. The entire debate shows, with singular clearness, indeed, with absolute certainty, that no Senator who participated in it, whether, in favor of or in opposition to the measure, doubted that the bill as passed admitted, and was intended to admit, to national citizenship Indians who abandoned their tribal relations and became residents of one of the states or territories, within the full jurisdiction of the United States. It was so interpreted by President Johnson, who, in his veto message, said: "By the first section of the bill all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States. This provision comprehends the Chinese of the Pacific states, Indians subject to taxation, the people called gypsies, as well as the entire race designated as blacks, persons of color, negroes, mulattoes, and persons of African blood. Every individual of those races, born in the United States, is, by the bill, made a citizen of the United States." It would seem manifest, from this brief review of the history of the act of 1866, that one purpose of that legislation was to confer national citizenship upon a part of the Indian race in this country -- such of them at least, as resided in one of the states or territories, and were subject to taxation and other public burdens. And it is to be observed that, whoever was included within the terms of the grant contained in that act, became citizens of the United States without any record of Page 112 U. S. 115 their names being made. The citizenship conferred was made to depend wholly upon the existence of the facts which the statute declared to be a condition precedent to the grant taking effect. At the same session of the Congress which passed the act of 1866, the Fourteenth Amendment was approved and submitted to the states for adoption. Those who sustained the former urged the adoption of the latter. An examination of the debates, pending the consideration of the amendment, will show that there was no purpose on the part of those who framed it, or of those who sustained it by their votes, to abandon the policy inaugurated by the act of 1866, of admitting to national citizenship such Indians as were separated from their tribes and were residents of one of the states or territories outside of any reservation set apart for the exclusive use and occupancy of Indian tribes. Prior to the adoption of the Fourteenth Amendment, numerous statutes were passed with reference to particular bodies of Indians, under which the individual members of such bodies, upon the dissolution of their tribal relations, or upon the division of their lands derived from the government, became, or were entitled to become, citizens of the United States by force alone of the statute, without observing the forms required by the naturalization laws in the case of a foreigner becoming a citizen of the United States. Such was the statute of March 3, 1839, 5 Stat. 349, relating to the Brothertown Indians in the then Territory of Wisconsin. Congress consented that the lands reserved for their use might be partitioned among the individuals composing the tribe. The act required the petition to be evidenced by a report and map to be filed with the Secretary of the Interior, by whom it should be transmitted to the President; whereupon the act proceeded: "The said Brothertown Indians, and each and every of them, shall then be deemed to be, and from that time forth are hereby declared to be, citizens of the United States to all intents and purposes, and shall be entitled to all the rights, privileges, and immunities of such citizens," etc. Similar legislation was enacted with Page 112 U. S. 116 reference to the Stockbridge Indians. 5 Stat. 646-647. Legislation of this character has an important bearing upon the present question, for it shows that prior to the adoption of the Fourteenth Amendment it had often been the policy of Congress to admit persons of the Indian race to citizenship upon their ceasing to have tribal relations, and without the slightest reference to the fact that they were born in tribal relations. It shows also that the citizenship thus granted was not in every instance required to be evidenced by the record of a court. If it be said that the statutes prior to 1866, providing for the admission of Indians to citizenship, required in their execution that a record be made of the names of those who thus acquired citizenship, our answer is that it was entirely competent for Congress to dispense, as it did in the act of 1866, with any such record being made in a court or in any department of the government. And certainly it must be conceded that, except in cases of persons "naturalized in the United States," which phrase refers only to those who are embraced by the naturalization laws, and not to Indians, the Fourteenth Amendment does not require the citizenship granted by it to be evidenced by the record of any court, or of any department of the government. Such citizenship passes to the person of whatever race who is embraced by its provisions, leaving the fact of citizenship to be determined, when it shall become necessary to do so in the course of legal inquiry, in the same way that questions as to one's nativity, domicile, or residence are determined. If it be also said that since the adoption of the Fourteenth Amendment, Congress has enacted statutes providing for the citizenship of Indians, our answer is that those statutes had reference to tribes the members of which could not, while they continued in tribal relations, acquire the citizenship granted by the Fourteenth Amendment. Those statutes did not deal with individual Indians who had severed their tribal connections and were residents within the states of the Union, under the complete jurisdiction of the United States. There is nothing in the history of the adoption of the Fourteenth Amendment which in our opinion justifies the conclusion Page 112 U. S. 117 that only those Indians are included in its grant of citizenship who were at the time of their birth, subject to the complete jurisdiction of the United States. As already stated, according to the doctrines of the Court in this case -- if we do not wholly misapprehend the effect of its decision -- the plaintiff, if born while his parents were members of an Indian tribe, would not be embraced by the amendment even had he been at the time it was adopted, a permanent resident of one of the states, subject to taxation and in fact paying property and personal taxes, to the full extent required of the white race in the same state. When the Fourteenth Amendment was pending in the Senate of the United States, Mr. Doolittle moved to insert after the words "subject to the jurisdiction thereof" the words "excluding Indians not taxed." His avowed object in so amending the measure was to exclude beyond all question from the proposed grant of national citizenship, tribal Indians who -- since they were, in a sense, subject to the jurisdiction of the United States -- might be regarded as embraced in the grant. The proposition was opposed by Mr. Trumbull and other friends of the proposed constitutional amendment upon the ground that the words "Indians not taxed" might be misconstrued, and also because those words were unnecessary, in that the phrase "subject to the jurisdiction thereof" embraced only those who were subject to the complete jurisdiction of the United States, which could not be properly said of Indians in tribal relations. But it was distinctly announced by the friends of the amendment that they intended to include in the grant of national citizenship Indians who were within the jurisdiction of the states and subject to their laws, because such Indians would be completely under the jurisdiction of the United States. Said Mr. Trumbull: "It is only those who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens, and there can be no objection to the proposition that such persons should be citizens." Cong.Globe, Pt. 4, 1st Sess. 39th Cong., pp. 2890-2893. Alluding to the phrase "Indians not taxed," he remarked that the language of the proposed constitutional amendment was Page 112 U. S. 118 better than that of the act of 1866 passed at the same session. He observed: "There is a difficulty about the words 'Indians not taxed.' Perhaps one of the reasons why I think so is because of the persistency with which the Senator from Indiana himself insisted that the phrase 'Indians not taxed,' the very words which the Senator from Wisconsin wishes to insert here, would exclude everybody that did not pay a tax; that that was the meaning of it; we must take it literally. The Senator from Maryland did not agree to that, nor did I; but, if the Senator from Indiana was right, it would receive a construction which, I am sure, the Senator from Wisconsin would not be for, for if these Indians come within our limits and within our jurisdiction and are civilized, he would just as soon make a citizen of a poor Indian as of the rich Indian." Ibid., 2894. A careful examination of all that was said by Senators and representatives, pending the consideration by Congress of the Fourteenth Amendment, justifies us in saying that everyone who participated in the debates, whether for or against the amendment, believed that, in the form in which it was approved by Congress, it granted, and was intended to grant, national citizenship to every person of the Indian race in this country who was unconnected with any tribe, and who resided, in good faith, outside of Indian reservations and within one of the states or territories of the Union. This fact is, we think, entitled to great weight in determining the meaning and scope of the amendment. Lithographic Co. v. Sarony, 111 U. S. 57 . In this connection, we refer to an elaborate report made by Mr. Carpenter, to the Senate of the United States, in behalf of its Judiciary Committee, on the 14th of December, 1870. The report was made in obedience to an instruction to inquire as to the effect of the Fourteenth Amendment upon the treaties which the United States had with various Indian tribes of the country. The report says: "For these reasons your committee do not hesitate to say that the Indian tribes within the limits of the United States, and the individuals, members of such tribes, while they adhere to and form a part of the tribes to which they belong, are not, within the meaning of the Page 112 U. S. 119 Fourteenth Amendment, 'subject to the jurisdiction' of the United States, and therefore that such Indians have not become citizens of the United States by virtue of that amendment; and, if your committee are correct in this conclusion, it follows that the treaties heretofore made between the United States and the Indian tribes are not annulled by that amendment." The report closes with this significant language: "It is pertinent to say, in concluding this report, that treaty relations can properly exist with Indian tribes or nations only, and that, when the members of any Indian tribe are scattered, they are merged in the mass of our people, and become equally subject to the jurisdiction of the United States. " The question before us has been examined by a writer upon constitutional law whose views are entitled to great respect. Judge Cooley, referring to the definition of national citizenship as contained in the Fourteenth Amendment, says: "By the express terms of the amendment, persons of foreign birth, who have never renounced the allegiance to which they were born, though they may have a residence in this country, more or less permanent, for business, instruction, or pleasure, are not citizens. Neither are the aboriginal inhabitants of the country citizens, so long as they preserve their tribal relations and recognize the headship of their chiefs, notwithstanding that, as against the action of our own people, they are under the protection of the laws, and may be said to owe a qualified allegiance to the government. When living within territory over which the laws, either state or territorial, are extended, they are protected by, and at the same time, held amenable to, those laws in all their intercourse with the body politic, and with the individuals composing it; but they are also, as a quasi -foreign people, regarded as being under the direction and tutelage of the general government, and subjected to peculiar regulations as dependent communities. They are 'subject to the jurisdiction' of the United States only in a much qualified sense, and it would be obviously inconsistent with the semi-independent character of such a tribe, and with the obedience they are expected to render to their tribal head, that they should be vested with the complete rights, or, on the other Page 112 U. S. 120 hand, subjected to the full responsibilities of American citizens. It would not for a moment be contended that such was the effect of this amendment." "When, however, the tribal relations are dissolved, when the headship of the chief or the authority of the tribe is no longer recognized, and the individual Indian, turning his back upon his former mode of life, makes himself a member of the civilized community, the case is wholly altered. He then no longer acknowledges a divided allegiance; he joins himself to the body politic; he gives evidence of his purpose to adopt the habits and customs of civilized life; and, as his case is then within the terms of this amendment, it would seem that his right to protection, in person, property, and privilege, must be as complete as the allegiance to the government to which he must then be held; as complete, in short, as that of any other native-born inhabitant." 2 Story's Const., Cooley's ed., § 1933, p. 654. To the same effect are Ex Parte Kenyon, 5 Dillon 390; Ex Parte Reynolds, ib., 307; United States v. Crook, ib., 454; United States v. Elm, Dist.Ct. U.S., N.D.N.Y. 23 Int.Rev.Rec. 419. It seems to us that the Fourteenth Amendment, insofar as it was intended to confer national citizenship upon persons of the Indian race, is robbed of its vital force by a construction which excludes from such citizenship those who, although born in tribal relations, are within the complete jurisdiction of the United States. There were, in some of our states and territories at the time the amendment was submitted by Congress, many Indians who had finally left their tribes and come within the complete jurisdiction of the United States. They were as fully prepared for citizenship as were or are vast numbers of the white and colored races in the same localities. Is it conceivable that the statesmen who framed, the Congress which submitted, and the people who adopted that amendment intended to confer citizenship, national and state, upon the entire population in this country of African descent (the larger part of which was shortly before held in slavery), and, by the same constitutional provision, to exclude from such citizenship Indians Page 112 U. S. 121 who had never been in slavery and who, by becoming bona fide residents of states and territories within the complete jurisdiction of the United States, had evinced a purpose to abandon their former mode of life, and become a part of the people of the United States? If this question be answered in the negative, as we think it must be, then we are justified in withholding our assent to the doctrine which excludes the plaintiff from the body of citizens of the United States upon the ground that his parents were, when he was born, members of an Indian tribe, for, if he can be excluded upon any such ground, it must necessarily follow that the Fourteenth Amendment did not grant citizenship even to Indians who, although born in tribal relations, were at its adoption, severed from their tribes, subject to the complete jurisdiction as well of the United States as of the state or territory in which they resided. Our brethren, it seems to us, construe the Fourteenth Amendment as if it read: "All persons born subject to the jurisdiction of, or naturalized in, the United States, are citizens of the United States and of the state in which they reside," whereas the amendment, as it is, implies in respect of persons born in this country that they may claim the rights of national citizenship from and after the moment they become subject to the complete jurisdiction of the United States. This would not include the children born in this country of a foreign minister, for the reason that, under the fiction of extraterritoriality as recognized by international law, such minister, "though actually in a foreign country, is considered still to remain within the territory of his own state," and, consequently, he continues "subject to the laws of his own country, both with respect to his personal status and his rights of property, and his children, though born in a foreign country, are considered as natives." Halleck's International Law, c. 10 § 12. Nor was plaintiff born without the jurisdiction of the United States in the same sense that the subject of a foreign state, born within the territory of that state, may be said to have been born without the jurisdiction of our government. For, according to the decision in Cherokee Page 112 U. S. 122 Nation v. Georgia, 5 Pet. 17, the tribe of which the parents of plaintiff were members was not "a foreign state, in the sense of the Constitution," but a domestic dependent people, "in a state of pupilage," and "so completely under the sovereignty and dominion of the United States that any attempt to acquire their lands, or to form a political connection with them, would be considered an invasion of our territory and an act of hostility." They occupied territory which the court, in that case, said composed "a part of the United States," the title to which this nation asserted independent of their will. "In all our intercourse with foreign nations," said Chief Justice Marshall in the same case, "In our commercial regulations, in any attempt at intercourse between Indians and foreign nations, they are considered as within the jurisdictional limits of the United States, subject to many of those restraints which are imposed upon our citizens. . . . They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants, and address the President as their great father." And, again, in United States v. Rogers , 4 How. 572, this Court, speaking by Chief Justice Taney, said that it was "too firmly and clearly established to admit of dispute that the Indian tribes, residing within the territorial limits of the United States, are subject to their authority." The Cherokee Tobacco , 11 Wall. 616. Born, therefore, in the territory, under the dominion and within the jurisdictional limits of the United States, plaintiff has acquired, as was his undoubted right, a residence in one of the states, with her consent, and is subject to taxation and to all other burdens imposed by her upon residents of every race. If he did not acquire national citizenship on abandoning his tribe and becoming, by residence in one of the states, subject to the complete jurisdiction of the United States, then the Fourteenth Amendment has wholly failed to accomplish, in respect of the Indian race, what, we think, was intended by it, and there is still in this country a despised and rejected class of persons with no nationality whatever, who, born in our territory, owing no allegiance to any foreign power, and subject, as residents of the states, to all the burdens of government, Page 112 U. S. 123 are yet not members of any political community, nor entitled to any of the rights, privileges, or immunities of citizens of the United States.

In the case of Elk v. Wilkins, the Supreme Court decided that an Indian born in the United States and belonging to a recognized tribe is not automatically a citizen of the country, even if they have severed ties with their tribe and reside among white citizens. The Court's decision hinged on the interpretation of the Fourteenth Amendment, with the Court concluding that the amendment did not extend citizenship to Indians who had voluntarily left their tribes. This meant that Indians who had assimilated into white society were not granted the right to vote or other privileges of citizenship. The Court's ruling perpetuated the legal status of Indians as a separate class of people, neither foreign nationals nor full citizens, and subject to the jurisdiction and laws of the United States without the corresponding rights and protections.

Immigration & National Security

Nishimura Ekiu v. U.S.

https://supreme.justia.com/cases/federal/us/142/651/

U.S. Supreme Court Nishimura Ekiu v. United States, 142 U.S. 651 (1892) Nishimura Ekiu v. United States No. 1393 Argued and submitted December 16, 1891 Decided January 18, 1892 142 U.S. 651 APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA Syllabus The Act of March 3, 1591, c. 551, forbidding certain classes of alien immigrants to land in the United States, is constitutional and valid. Upon a writ of habeas corpus, if sufficient ground for the prisoner's detention by the government is shown, he is not to be discharged for defects in the original arrest or commitment. Page 142 U. S. 652 Inspectors of immigration under the Act of March 3, 1891, c. 551, are to be appointed by the Secretary of the Treasury. The decision of an inspector of immigration, within the authority conferred upon him by the Act of March 3, 1891, c. 651, that an alien immigrant shall not be permitted to land because within one of the classes specified in that act, is final and conclusive against his right to land, except upon appeal to the Commissioner of Immigration and the Secretary of the Treasury, and cannot be reviewed on habeas corpus even if it is not shown that the inspector took or recorded any evidence on the question. Habeas corpus, sued out May 13, 1891, by a female subject of the Emperor of Japan restrained of her liberty and detained at San Francisco upon the ground that she should not be permitted to land in the United States. The case, as appearing by the papers filed and by the report of a commissioner of the circuit court, to whom the case was referred by that court "to find the facts and his conclusions of law, and to report a judgment therein," and by the admissions of counsel at the argument in this Court, was as follows: The petitioner arrived at the port of San Francisco on the steamship Belgic from Yokohama, Japan, on May 7, 1891. William H. Thornley, Commissioner of Immigration of the State of California, and claiming to act under instructions from and contract with the Secretary of the Treasury of the United States, refused to allow her to land, and on May 13, 1891, in a "report of alien immigrants forbidden to land under the provisions of the Act of Congress approved August 3, 1882 at the port of San Francisco, being passengers upon the steamer Belgic, Walker, master, which arrived May 7, 1891, from Yokohama," made these statements as to the petitioner: "Sex, female; age, 25. Passport states that she comes to San Francisco in company with her husband, which is not a fact. She states that she has been married two years, and that her husband has been in the United States one year, but she does not know his address. She has $22, and is to stop at some hotel until her husband calls for her." With this report Thornley sent a letter to the collector stating that after a careful examination of the alien immigrants on board the Belgic, he was satisfied that the petitioner and five others were "prohibited from landing by the existing Page 142 U. S. 653 immigration laws" for reasons specifically stated with regard to each, and that, pending the collector's final decision as to their right to land, he had "placed them temporarily in the Methodist Chinese Mission, as the steamer was not a proper place to detain them, until the date of sailing." On the same day, the collector wrote to Thornley, approving his action. Thereafter, on the same day, this writ of habeas corpus was issued to Thornley, and he made the following return thereon: "In obedience to the within writ, I hereby produce the body of Nishimura Ekiu, as within directed, and return that I hold her in my custody by direction of the customs authorities of the port of San Francisco, California, under the provisions of the immigration act; that, by an understanding between the United States attorney and the attorney for petitioner, said party will remain in the custody of the Methodist Episcopal Japanese and Chinese Mission pending a final disposition of the writ." The petitioner remained at the mission house until the final order of the circuit court. Afterwards, and before a hearing, the following proceedings took place: on May 16th the district attorney of the United States intervened in opposition to the writ of habeas corpus, insisting that the finding and decision of Thornley and the collector were final and conclusive, and could not be reviewed by the court. John L. Hatch, having been appointed on May 14, by the Secretary of the Treasury, inspector of immigration at the port of San Francisco, on May 16th made the inspection and examination required by the Act of March 3, 1891, c. 551, entitled "An act in amendment to the various acts relative to immigration and the importation of aliens under contract or agreement to perform labor," the material provisions of which are set out in the margin, * and refused to Page 142 U. S. 654 allow the petitioner to land, and made a report to the collector in the very words of Thornley's report, except in stating Page 142 U. S. 655 the date of the act of Congress, under which he acted, as March 3, 1891, instead of August 3, 1882, and, on May 18th, Page 142 U. S. 656 Hatch intervened in opposition to the writ of habeas corpus, stating these doings of his, and that upon said examination he found the petitioner to be "an alien immigrant from Yokohama, empire of Japan," and "a person without means of support, without relatives or friends in the United States," and "a person unable to care for herself, and liable to become a public charge,and therefore inhibited from landing under the provisions of said act of 1891, and previous acts of which said act is amendatory," and insisting that his finding and decision were reviewable by the Superintendent of immigration and the Secretary of the Treasury only. At the hearing before the commissioner of the circuit court, the petitioner offered to introduce evidence as to her right to land, and contended that the act of 1891, if construed as vesting in the officers named therein exclusive authority to determine that right, was insofar unconstitutional, as depriving her of her liberty without due process of law, and that by the Constitution she had a right to the writ of habeas corpus, which carried with it the right to a determination by the court as to the legality of her detention, and therefore, necessarily, the right to inquire into the facts relating thereto. The commissioner excluded the evidence offered as to the petitioner's right to land, and reported that the question of that right had been tried and determined by a duly constituted and competent tribunal having jurisdiction in the premises; that the decision of Hatch, as Inspector of Immigration, was conclusive on the right of the petitioner to land, and could not be reviewed by the court, but only by the Commissioner of Immigration and the Secretary of the Treasury, and that the petitioner was not unlawfully restrained of her liberty. On July 24, 1891, the circuit court confirmed its commissioner's report, and ordered "that she be remanded by the marshal to the custody from which she has been taken, to-wit, to the custody of J. L. Hatch, immigration inspector for the port of San Francisco, to be dealt with as he may find that Page 142 U. S. 657 the law requires, upon either the present testimony before him or that and such other as he may deem proper to take." The petitioner appealed to this Court. Page 142 U. S. 658 MR. JUSTICE GRAY, after stating the case as above, delivered the opinion of the Court. As this case involves the constitutionality of a law of the United States, it is within the appellate jurisdiction of this Page 142 U. S. 659 Court notwithstanding the appeal was taken since the act establishing circuit courts of appeals took effect. Act March 3, 1891, c. 517, § 5, 26 Stat. 827, 828, 1115. It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty and essential to self-preservation, to forbid the entrance of foreigners within its dominions or to admit them only in such cases and upon such conditions as it may see fit to prescribe. Vattel, lib. 2, §§ 94, 100; 1 Phillimore (3d ed.) c. 10, § 220. In the United States, this power is vested in the national government, to which the Constitution has committed the entire control of international relations, in peace as well as in war. It belongs to the political department of the government, and may be exercised either through treaties made by the President and Senate or through statutes enacted by Congress, upon whom the Constitution has conferred power to regulate commerce with foreign nations, including the entrance of ships, the importation of goods, and the bringing of persons into the ports of the United States; to establish a uniform rule of naturalization; to declare war, and to provide and maintain armies and navies, and to make all laws which may be necessary and proper for carrying into effect these powers and all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof. Constitution, Art. I, sec. 8; Head Money Cases, 112 U. S. 580 ; Chae Chan Ping v. United States, 130 U. S. 581 , 130 U. S. 604 -609. The supervision of the admission of aliens into the United States may be entrusted by Congress either to the Department of State, having the general management of foreign relations, or to the Department of the Treasury, charged with the enforcement of the laws regulating foreign commerce, and Congress has often passed acts forbidding the immigration of particular classes of foreigners, and has committed the execution of these acts to the Secretary of the Treasury, to collectors of customs, and to inspectors acting under their authority. See, for instance, Acts of March 3, 1875, c. 141, 18 Stat. 477; August 3, 1882, c. 376, 22 Stat. 214; February 23, 1887, c. Page 142 U. S. 660 220, 24 Stat. 414; October 19, 1888, c. 1210, 25 Stat. 566, as well as the various acts for the exclusion of the Chinese. An alien immigrant, prevented from landing by any such officer claiming authority to do so under an act of Congress and thereby restrained of his liberty, is doubtless entitled to a writ of habeas corpus to ascertain whether the restraint is lawful. Chew Heong v. United States, 112 U. S. 536 ; United States v. Jung Ah Lung, 124 U. S. 621 ; Wan Shing v. United States, 140 U. S. 424 ; Lau Ow Bew, Petitioner, 141 U. S. 583 . And Congress may, if it sees fit, as in the statutes in question in United States v. Jung Ah Lung, just cited, authorize the courts to investigate and ascertain the facts on which the right to land depends. But, on the other hand, the final determination of those facts may be in trusted by Congress to executive officers, and in such a case, as in all others, in which a statute gives a discretionary power to an officer, to be exercised by him upon his own opinion of certain facts, he is made the sole and exclusive judge of the existence of those facts, and no other tribunal, unless expressly authorized by law to do so, is at liberty to reexamine or controvert the sufficiency of the evidence on which he acted. Martin v. Mott , 12 Wheat. 19, 25 U. S. 31 ; Philadelphia & Trenton Railroad v. Stimpson , 14 Pet. 448, 39 U. S. 458 ; Benson v. McMahon, 127 U. S. 457 ; In re Oteiza, 136 U. S. 330 . It is not within the province of the judiciary to order that foreigners who have never been naturalized, nor acquired any domicile or residence within the United States, nor even been admitted into the country pursuant to law shall be permitted to enter in opposition to the constitutional and lawful measures of the legislative and executive branches of the national government. As to such persons, the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law. Murray v. Hoboken Co. , 18 How. 272; Hilton v. Merritt, 110 U. S. 97 . The immigration Act of August 3, 1882, c. 376, which was held to be constitutional in the Head-Money Cases, above cited, imposed a duty of fifty cents for each alien passenger coming by vessel into any port of the United States, to be Page 142 U. S. 661 paid to the collector of customs, and by him into the Treasury, to constitute an immigrant fund; by § 2, the Secretary of the Treasury was charged with the duty of execution the provisions of the act, and with the supervision of the business of immigration to the United States, and, for these purposes, was empowered to make contracts with any state commission, board, or officers, and it was made their duty to go on board vessels and examine the condition of immigrants, "and if on such examination there shall be found among such passengers any convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge, they shall report the same in writing to the collector of such port, and such persons shall not be permitted to land," and by section 3, the Secretary of the Treasury was authorized to establish rules and regulations, and to issue instructions, to carry out this and other immigration laws of the United States. 22 Stat. 214. The doings of Thornley, the state commissioner of immigration, in examining and detaining the petitioner, and in reporting to the collector appear to have been under that act, and would be justified by the second section thereof unless that section should be taken to have been impliedly repealed by the last paragraph of section 8 of the Act of March 3, 1891, c. 551, by which all duties imposed and powers conferred by that section upon state commissions, boards, or officers, acting under contract with the Secretary of the Treasury, "shall be performed and exercised, as occasion may arise, by the inspection officers of the United States." 26 Stat. 1085. But it is unnecessary to express a definite opinion on the authority of Thornley to inspect and detain the petitioner. Putting her in the mission house as a more suitable place than the steamship, pending the decision of the question of her right to land, and keeping her there, by agreement between her attorney and the attorney for the United States, until final judgment upon the writ of habeas corpus, left her in the same position, so far as regarded her right to land in the United States, as if she never had been removed from the steamship. Before the hearing upon the writ of habeas corpus, Hatch Page 142 U. S. 662 was appointed by the Secretary of the Treasury inspector of immigration at the port of San Francisco, and, after making the inspection and examination required by the act of 1891, refused to allow the petitioner to land, and made a report to the collector of customs stating facts which tended to show, and which the inspector decided did show, that she was a "person likely to become a public charge," and so within one of the classes of aliens "excluded from admission into the United States" by the first section of that act. And Hatch intervened in the proceedings on the writ of habeas corpus, setting up his decision in bar of the writ. A writ of habeas corpus is not like an action to recover damages for an unlawful arrest or commitment, but its object is to ascertain whether the prisoner can lawfully be detained in custody, and, if sufficient ground for his detention by the government is shown, he is not to be discharged for defects in the original arrest or commitment. Ex part Bollman , 4 Cranch 75, 114 [argument of counsel -- omitted], 8 U. S. 125 ; Coleman v. Tennessee, 97 U. S. 509 , 97 U. S. 519 ; United States v. McBratney, 104 U. S. 621 , 104 U. S. 624 ; Kelley v. Thomas, 15 Gray 192; King v. Marks, 3 East, 157; Shuttleworth's Case, 9 Q.B. 651. The case must therefore turn on the validity and effect of the action of Hatch as Inspector of Immigration. Section 7 of the act of 1891 establishes the office of Superintendent of Immigration, and enacts that he "shall be an officer in the Treasury Department, under the control and supervision of the Secretary of the Treasury." By § 8, "the proper inspection officers" are required to go on board any vessel bringing alien immigrants and to inspect and examine them, and may for this purpose remove and detain them on shore, without such removal's being considered a landing; and "shall have power to administer oaths, and to take and consider testimony touching the right of any such aliens to enter the United States, all of which shall be entered of record. . . . All decisions made by the inspection officers or their assistants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the Superintendent of Immigration, whose action shall be subject to review by the Secretary Page 142 U. S. 663 of the Treasury," and the Secretary of the Treasury may prescribe rules for inspection along the borders of Canada, British Columbia, and Mexico, "provided that not exceeding one inspector shall be appointed for each customs district." It was argued that the appointment of Hatch was illegal because it was made by the Secretary of the Treasury, and should have been made by the Superintendent of Immigration. But the Constitution does not allow Congress to vest the appointment of inferior officers elsewhere than "in the President alone, in the courts of law, or in the heads of departments." The act of 1891 manifestly contemplates and intends that the inspectors of immigration shall be appointed by the Secretary of the Treasury, and appointments of such officers by the Superintendent of Immigration could be upheld only by presuming them to be made with the concurrence or approval of the Secretary of the Treasury, his official head. Constitution, Art. II, Section 2; United States v. Hartwell , 6 Wall. 385; Stanton v. Wilkeson, 8 Ben. 357; Price v. Abbott, 17 F. 506. It was also argued that Hatch's proceedings did not conform to section 8 of the act of 1891 because it did not appear that he took testimony on oath, and because there was no record of any testimony or of his decision. But the statute does not require inspectors to take any testimony at all, and allows them to decide on their own inspection and examination the question of the right of any alien immigrant to land. The provision relied on merely empowers inspectors to administer oaths, and to take and consider testimony, and requires only testimony so taken to be entered of record. The decision of the Inspector of Immigration being in conformity with the act of 1891, there can be no doubt that it was final and conclusive against the petitioner's right to land in the Unites states. The words of section 8 are clear to that effect, and were manifestly intended to prevent the question of an alien immigrant's right to land, when once decided adversely by an inspector, acting within the jurisdiction conferred upon him, from being impeached or reviewed, in the courts or otherwise, save only by appeal to the inspector's Page 142 U. S. 664 official superiors, and in accordance with the provisions of the act. Section 13, by which the circuit and district courts of the United States are "invested with full and concurrent jurisdiction of all causes, civil and criminal, arising under any of the provisions of this act," evidently refers to causes of judicial cognizance, already provided for, whether civil actions in the nature of debt for penalties under sections 3 and 4, or indictments for misdemeanors under section 6, 8, and 10. Its intention was to vest concurrent jurisdiction of such causes in the circuit and district courts, and it is impossible to construe it as giving the courts jurisdiction to determine matters which the act has expressly committed to the final determination of executive officers. The result is that the act of 1891 is constitutional and valid; the Inspector of Immigration was duly appointed; his decision against the petitioner's right to land in the United States was within the authority conferred upon him by that act; no appeal having been taken to the Superintendent of Immigration, that decision was final and conclusive; the petitioner is not unlawfully restrained of her liberty, and the order of the circuit court is Affirmed. MR. JUSTICE BREWER dissented. * "SEC. 1. The following classes of aliens shall be excluded from admission into the United States in accordance with the existing acts regulating immigration other than those concerning Chinese laborers: all idiots, insane persons, paupers or persons likely to become a public charge, persons suffering from a loathsome or a dangerous contagious disease, persons who have been convicted of a felony or other infamous crime or misdemeanor involving moral turpitude," etc. By sections 3 and 4, certain offenses are defined and subjected to the penalties imposed by the Act of February 26, 1885, c. 164, section 3, namely, penalties of $1,000, "which may be sued for and recovered by the United States, or by any person who shall first bring his action therefor, . . . as debts of like amount are now recovered in the circuit courts of the United States, the proceeds to be paid into the Treasury of the United States." 23 Stat. 333. "SEC. 6. Any person who shall bring into or land in the United States by vessel or otherwise, or who shall aid to bring into or land in the United States by vessel or otherwise, any alien not lawfully entitled to enter the United States, shall be deemed guilty of a misdemeanor, and shall, on conviction, be punished by a fine not exceeding one thousand dollars or by imprisonment for a term not exceeding one year, or by both such fine and imprisonment." "SEC. 7. The office of Superintendent of Immigration is hereby created and established, and the President, by and with the advice and consent of the Senate, is authorized and directed to appoint such officer, whose salary shall be four thousand dollars per annum, payable monthly. The Superintendent of Immigration shall be an officer in the Treasury Department, under the control and supervision of the Secretary of the Treasury, to whom he shall make annual reports in writing of the transactions of his office, together with such special reports in writing as the Secretary of the Treasury shall require." "SEC. 8. Upon the arrival by water at any place within the United States of any alien immigrants, it shall be the duty of the commanding officer and the agents of the steam or sailing vessel by which they came to report the name, nationality, last residence, and destination of every such alien, before any of them are landed, to the proper inspection officers, who shall thereupon go or send competent assistants on board such vessel, and there inspect all such aliens, or the inspection officers may order a temporary removal of such aliens for examination at a designated time and place, and then and there detain them until a thorough inspection is made. But such removal shall not be considered a landing during the pendency of such examination. The medical examination shall be made by surgeons of the marine hospital service. In cases where the services of a marine hospital surgeon cannot be obtained without causing unreasonable delay, the inspector may cause an alien to be examined by a civil surgeon, and the Secretary of the Treasury shall fix the compensation for such examination. The inspection officers and their assistants shall have power to administer oaths, and to take and consider testimony touching the right of any such aliens to enter the United States, all of which shall be entered of record. During such inspection, after temporary removal, the superintendent shall cause such aliens to be properly housed, fed, and cared for, and also, in his discretion, such as are delayed in proceeding to their destination after inspection. All decisions made by the inspection officers or their assistants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the Superintendent of Immigration, whose action shall be subject to review by the Secretary of the Treasury. It shall be the duty of the aforesaid officers and agents of such vessel to adopt due precautions to prevent the landing of any alien immigrant at any place or time other than that designated by the inspection officers, and any such officer or agent or person in charge of such vessel who shall either knowingly or negligently land or permit to land any alien immigrant at any place or time other than that designated by the inspection officers shall be deemed guilty of a misdemeanor, and punished by a fine not exceeding one thousand dollars or by imprisonment for a term not exceeding one year, or by both such fine and imprisonment." "The Secretary of the Treasury may prescribe rules for inspection along the borders of Canada, British Columbia, and Mexico so as not to obstruct or unnecessarily delay, impede, or annoy passengers in ordinary travel between said countries, provided that not exceeding one inspector shall be appointed for each customs district, and whose salary shall not exceed twelve hundred dollars per year." "All duties imposed and powers conferred by the second section of the Act of August third, eighteen hundred and eighty-two, upon state commissioners, boards, or officers acting under contract with the Secretary of the Treasury, shall be performed and exercised, as occasion may arise, by the inspection officers of the United States." "SEC. 10. All aliens who may unlawfully come to the United States shall, if practicable, be immediately sent back on the vessel by which they were brought in. The cost of their maintenance while on land, as well as the expense of the return of such aliens, shall be borne by the owner or owners of the vessel on which such aliens came, and if any master, agent, consignee, or owner of such vessel shall refuse to receive back on board the vessel such aliens, or shall neglect to detain them thereon, or shall refuse or neglect to return them to the port from which they came, or to pay the cost of their maintenance while on land, such master, agent, consignee, or owner shall be deemed guilty of a misdemeanor, and shall be punished by a fine not less than three hundred dollars for each and every offense, and any such vessel shall not have clearance from any port of the United States while any such fine is unpaid." Section 11 provides for the return within one year of any alien coming into the United States in violation of law. Section 12 saves all prosecutions and proceedings, criminal or civil, begun under any act hereby amended. By section 13, the circuit and district courts of the United States are "invested with full and concurrent jurisdiction of all causes, civil and criminal, arising under any of the provisions of this act," and the act is to go into effect on April 1, 1891. 26 Stat. 1084-1086.

In Nishimura Ekiu v. United States (1892), the U.S. Supreme Court upheld the constitutionality of the Act of March 3, 1891, which forbade certain classes of alien immigrants from landing in the United States. The case involved a female Japanese subject who was detained at San Francisco and denied entry by an immigration inspector. She challenged her detention through a writ of habeas corpus. The Court ruled that the decision of an inspector, within their conferred authority, is final and cannot be reviewed through habeas corpus, even if no evidence was recorded. The Court also stated that if there is sufficient ground for the government's detention of an individual, defects in the original arrest or commitment are not grounds for discharge. This case affirmed the power of the federal government to regulate immigration and established the finality of immigration officials' decisions.

Immigration & National Security

Chae Chan Ping v. U.S.

https://supreme.justia.com/cases/federal/us/130/581/

U.S. Supreme Court The Chinese Exclusion Case, 130 U.S. 581 (1889) The Chinese Exclusion Case No. 1448 Argued March 28-29, 1889 Decided May 13, 1889 130 U.S. 581 APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA Syllabus In their relations with foreign governments and their subjects or citizens, the United States are a nation, invested with the powers which belong to independent nations. So far as a treaty made by the United States with any foreign power can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification, or appeal. The Head Money Cases, 112 U. S. 580 , and Whitney v. Robertson, 124 U. S. 190 , followed. The abrogation of a treaty, like the repeal of a law, operates only on future transactions, leaving unaffected those executed under it previous to the abrogation. The rights and interests created by a treaty, which have become so vested that its expiration or abrogation will not destroy or impair them, are such as are connected with and lie in property, capable of sale and transfer or other disposition, and not such as are personal and untransferable in their character. The power of the legislative department of the government to exclude aliens from the United States is an incident of sovereignty which cannot be surrendered by the treaty making power. The Act of October 1, 1888, 25 Stat. 504, c. 1064, excluding Chinese laborers from the United States, was a constitutional exercise of legislative power, and, so far as it conflicted with existing treaties between the United States and China, it operated to that extent to abrogate them as part of the municipal law of the United States. A certificate issued to a Chinese laborer under the fourth and fifth sections of the Act of May 6, 1882, 22 Stat. 58, c. 126, as amended July 5, 1884, 23 Stat. 115, c. 220, conferred upon him no right to return to the United States of which he could not be deprived by a subsequent act of Congress. The history of Chinese immigration into the United States stated, together with a review of the treaties and legislation affecting it. The Court stated the case as follows in its opinion: This case comes before us on appeal from an order of the Circuit Court of the United States for the Northern District of California refusing to release the appellant, on a writ of habeas corpus, from his alleged unlawful detention by Capt. Walker, Page 130 U. S. 582 master of the steamship Belgic, lying within the harbor of San Francisco. The appellant is a subject of the Emperor of China, and a laborer by occupation. He resided at San Francisco, California, following his occupation, from sometime in 1875 until June 2, 1887, when he left for China on the steamship Gaelic, having in his possession a certificate in terms entitling him to return to the United States, bearing date on that day, duly issued to him by the collector of customs of the port of San Francisco, pursuant to the provisions of § 4 of the Restriction Act of May 6, 1882, as amended by the Act of July 5, 1884, 22 Stat. 59, c. 126; 23 Stat. 115, c. 220. On the 7th of September, 1888, the appellant, on his return to California, sailed from Hong Kong in the steamship Belgic, which arrived within the port of San Francisco on the 8th of October following. On his arrival, he presented to the proper custom house officers his certificate and demanded permission to land. The collector of the port refused the permit solely on the ground that under the Act of Congress approved October 1, 1888, supplementary to the Restriction Acts of 1882 and 1884, the certificate had been annulled and his right to land abrogated, and he had been thereby forbidden again to enter the United States. 25 Stat. 504, c. 1064. The captain of the steamship therefore detained the appellant on board the steamer. Thereupon a petition on his behalf was presented to the Circuit Court of the United States for the Northern District of California, alleging that he was unlawfully restrained of his liberty and praying that a writ of habeas corpus might be issued directed to the master of the steamship commanding him to have the body of the appellant, with the cause of his detention, before the court at a time and place designated, to do and receive what might there be considered in the premises. A writ was accordingly issued, and in obedience to it the body of the appellant was produced before the court. Upon the hearing which followed, the court, after finding the facts substantially as stated, held as conclusions of law that the appellant was not entitled to enter the United States and was not unlawfully restrained of his liberty, and ordered that he be remanded to the custody of the master of the steamship from Page 130 U. S. 583 which he had been taken under the writ. From this order an appeal was taken to this Court. Page 130 U. S. 589 MR. JUSTICE FIELD delivered the opinion of the Court. The appeal involves a consideration of the validity of the Act of Congress of October 1, 1888, prohibiting Chinese laborers from entering the United States who had departed before its passage, having a certificate issued under the act of 1882 as amended by the act of 1884, granting them permission to return. The validity of the act is assailed as being in effect an expulsion from the country of Chinese laborers, in violation of existing treaties between the United States and the government of China, and of rights vested in them under the laws of Congress. It will serve to present with greater clearness the nature and force of the objections to the act if a brief statement be made of the general character of the treaties between the two countries and of the legislation of Congress to carry them into execution. Page 130 U. S. 590 The first treaty between the United States and the Empire of China was concluded on the 3d of July, 1844, and ratified in December of the following year. 8 Stat. 592. Previous to that time, there had been an extensive commerce between the two nations, that to China being confined to a single port. It was not, however, attended by any serious disturbances between our people there and the Chinese. In August, 1842, as the result of a war between England and China, a treaty was concluded stipulating for peace and friendship between them, and, among other things, that British subjects, with their families and establishments, should be allowed to reside for the purpose of carrying on mercantile pursuits at the five principal ports of the empire. 6 Hertslet's Commercial Treaties 221; 3 Nouveau Recueil General de Traites (1842) 484. Actuated by a desire to establish by treaty friendly relations between the United States and the Chinese empire and to secure to our people the same commercial privileges which had been thus conceded to British subjects, Congress placed at the disposal of the President the means to enable him to establish future commercial relations between the two countries "on terms of national equal reciprocity." Act March, 1843, c. 90, 5 Stat. 624. A mission was accordingly sent by him to China at the head of which was placed Mr. Caleb Cushing, a gentleman of large experience in public affairs. He found the Chinese government ready to concede by treaty to the United States all that had been reluctantly yielded to England through compulsion. As the result of his negotiations, the treaty of 1844 was concluded. It stipulated, among other things, that there should be a "perfect, permanent, and universal peace, and a sincere and cordial amity" between the two nations; that the five principal ports of the empire should be opened to the citizens of the United States, who should be permitted to reside with their families and trade there, and to proceed with their vessels and merchandise to and from any foreign port and either of said five ports, and while peaceably attending to their affairs should receive the protection of the Chinese authorities. Senate Document No. 138, 28th Cong. 2d Sess. Page 130 U. S. 591 The treaty between England and China did not have the effect of securing permanent peace and friendship between those countries. British subjects in China were often subjected not only to the violence of mobs, but to insults and outrages from local authorities of the country, which led to retaliatory measures for the punishment of the aggressors. To such an extent were these measures carried and such resistance offered to them that in 1856, the two countries were in open war. England then determined with the cooperation of France, between which countries there seemed to be perfect accord, to secure from the government of China, among other things, a recognition of the right of other powers to be represented there by accredited ministers, an extension of commercial intercourse with that country, and stipulations for religious freedom to all foreigners there and for the suppression of piracy. England requested of the President the concurrence and active cooperation of the United States similar to that which France had accorded, and to authorize our naval and political authorities to act in concert with the allied forces. As this proposition involved a participation in existing hostilities, the request could not be acceded to, and the Secretary of State, in his communication to the English government, explained that the warmaking power of the United States was not vested in the President, but in Congress, and that he had no authority therefore to order aggressive hostilities to be undertaken. But as the rights of citizens of the United States might be seriously affected by the results of existing hostilities, and commercial intercourse between the United States and China be disturbed, it was deemed advisable to send to China a minister plenipotentiary to represent our government and watch our interests there. Accordingly, Mr. William B. Reed, of Philadelphia, was appointed such minister, and instructed, while abstaining from any direct interference, to aid by peaceful cooperation the objects the allied forces were seeking to accomplish. Senate Document No. 47, 35th Cong. 1st Sess. Through him a new treaty was negotiated with the Chinese government. It was concluded in June, 1858, and ratified in August of the following year. Page 130 U. S. 592 12 Stat. 1023. It reiterated the pledges of peace and friendship between the two nations, renewed the promise of protection to all citizens of the United States in China peaceably attending to their affairs, and stipulated for security to Christians in the profession of their religion. Neither the treaty of 1844 nor that of 1858 touched upon the migration and emigration of the citizens and subjects of the two nations, respectively, from one country to the other. But in 1868, a great change in the relations of the two nations was made in that respect. In that year, a mission from China, composed of distinguished functionaries of that empire, came to the United States with the professed object of establishing closer relations between the two countries and their peoples. At its head was placed Mr. Anson Burlingame, an eminent citizen of the United States who had at one time represented this country as commissioner to China. He resigned his office under our government to accept the position tendered to him by the Chinese government. The mission was hailed in the United States as the harbinger of a new era in the history of China -- as the opening up to free intercourse with other nations and peoples a country that for ages had been isolated and closed against foreigners, who were allowed to have intercourse and to trade with the Chinese only at a few designated places, and the belief was general, and confidently expressed, that great benefits would follow to the world generally, and especially to the United States. On its arrival in Washington, additional articles to the treaty of 1858 were agreed upon which gave expression to the general desire that the two nations and their peoples should be drawn closer together. The new articles, eight in number, were agreed to on the 28th of July, 1868, and ratifications of them were exchanged at Pekin in November of the following year. 16 Stat. 739. Of these articles, the fifth, sixth, and seventh are as follows: "ARTICLE V. The United States of America and the emperor of China cordially recognize the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citizens and subjects respectively from the one country Page 130 U. S. 593 to the other for purposes of curiosity, of trade, or as permanent residents. The high contracting parties therefore join in reprobating any other than an entirely voluntary emigration for these purposes. They consequently agree to pass laws making it a penal offense for a citizen of the United States or Chinese subjects to take Chinese subjects either to the United States or to any other foreign country, or for a Chinese subject or citizen of the United States to take citizens of the United States to China or to any other foreign country without their free and voluntary consent, respectively." "ARTICLE VI. Citizens of the United States visiting or residing in China shall enjoy the same privileges, immunities, or exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation, and reciprocally, Chinese subjects visiting or residing in the United shall enjoy the same privileges, immunities, and exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation. But nothing herein contained shall be held to confer naturalization upon citizens of the United States in China, nor upon the subjects of China in the United States." "ARTICLE VII. Citizens of the United States shall enjoy all the privileges of the public educational institutions under the control of the government of China, and, reciprocally, Chinese subjects shall enjoy all the privileges of the public educational institutions under the control of the government of the United States, which are enjoyed in the respective countries by the citizens or subjects of the most favored nation. The citizens of the United States may freely establish and maintain schools within the empire of China at those places where foreigners are by treaty permitted to reside; and, reciprocally, Chinese subjects may enjoy the same privileges and immunities in the United States." But notwithstanding these strong expressions of friendship and goodwill, and the desire they evince for free intercourse, events were transpiring on the Pacific coast which soon dissipated the anticipations indulged as to the benefits to follow the immigration of Chinese to this country. The previous Page 130 U. S. 594 treaties of 1844 and 1858 were confined principally to mutual declarations of peace and friendship and to stipulations for commercial intercourse at certain ports in China and for protection to our citizens while peaceably attending to their affairs. It was not until the additional articles of 1868 were adopted that any public declaration was made by the two nations that there were advantages in the free migration and emigration of their citizens and subjects, respectively, from one country to the other, and stipulations given that each should enjoy in the country of the other, with respect to travel or residence, the "privileges, immunities, and exemptions" enjoyed by citizens or subjects of the most favored nation. Whatever modifications have since been made to these general provisions have been caused by a well founded apprehension -- from the experience of years -- that a limitation to the immigration of certain classes from China was essential to the peace of the community on the Pacific coast, and possibly to the preservation of our civilization there. A few words on this point may not be deemed inappropriate here, they being confined to matters of public notoriety which have frequently been brought to the attention of Congress. Report of Committee of H.R. No. 872, 46th Cong. 2d Sess. The discovery of gold in California in 1848, as is well known, was followed by a large immigration thither from all parts of the world, attracted not only by the hope of gain from the mines, but from the great prices paid for all kinds of labor. The news of the discovery penetrated China, and laborers came from there in great numbers, a few with their own means, but by far the greater number under contract with employers for whose benefit they worked. These laborers readily secured employment, and, as domestic servants, and in various kinds of outdoor work, proved to be exceedingly useful. For some years little opposition was made to them except when they sought to work in the mines, but, as their numbers increased, they began to engage in various mechanical pursuits and trades, and thus came in competition with our artisans and mechanics, as well as our laborers in the field. The competition steadily increased as the laborers came in Page 130 U. S. 595 crowds on each steamer that arrived from China, or Hong Kong, an adjacent English port. They were generally industrious and frugal. Not being accompanied by families except in rare instances, their expenses were small and they were content with the simplest fare, such as would not suffice for our laborers and artisans. The competition between them and our people was for this reason altogether in their favor, and the consequent irritation, proportionately deep and bitter, was followed, in many cases, by open conflicts, to the great disturbance of the public peace. The differences of race added greatly to the difficulties of the situation. Notwithstanding the favorable provisions of the new articles of the treaty of 1868, by which all the privileges, immunities, and exemptions were extended to subjects of China in the United States which were accorded to citizens or subjects of the most favored nation, they remained strangers in the land, residing apart by themselves and adhering to the customs and usages of their own country. It seemed impossible for them to assimilate with our people or to make any change in their habits or modes of living. As they grew in numbers each year, the people of the coast saw, or believed they saw, in the facility of immigration and in the crowded millions of China, where population presses upon the means of subsistence, great danger that at no distant day that portion of our country would be overrun by them unless prompt action was taken to restrict their immigration. The people there accordingly petitioned earnestly for protective legislation. In December, 1878, the convention which framed the present Constitution of California, being in session, took this subject up and memorialized Congress upon it, setting forth in substance that the presence of Chinese laborers had a baneful effect upon the material interests of the state, and upon public morals; that their immigration was in numbers approaching the character of an Oriental invasion, and was a menace to our civilization; that the discontent from this cause was not confined to any political party, or to any class or nationality, but was well nigh universal; that they retained the habits and customs of their own country, and in fact constituted a Page 130 U. S. 596 Chinese settlement within the state, without any interest in our country or its institutions, and praying Congress to take measures to prevent their further immigration. This memorial was presented to Congress in February, 1879. So urgent and constant were the prayers for relief against existing and anticipated evils, both from the public authorities of the Pacific coast and from private individuals that Congress was impelled to act on the subject. Many persons, however, both in and out of Congress, were of opinion that so long as the treaty remained unmodified, legislation restricting immigration would be a breach of faith with China. A statute was accordingly passed appropriating money to send commissioners to China to act with our minister there in negotiating and concluding by treaty a settlement of such matters of interest between the two governments as might be confided to them. 21 Stat. 133, c. 88. Such commissioners were appointed, and as the result of their negotiations the supplementary treaty of November 17, 1880, was concluded and ratified in May of the following year. 22 Stat. 826. It declares in its first article that "Whenever, in the opinion of the government of the United States, the coming of Chinese laborers to the United States or their residence therein affects or threatens to affect the interests of that country or to endanger the good order of the said country or of any locality within the territory thereof, the government of China agrees that the government of the United States may regulate, limit, or suspend such coming or residence, but may not absolutely prohibit it. The limitation or suspension shall be reasonable, and shall apply only to Chinese who may go to the United States as laborers, other classes not being included in the limitations. Legislation taken in regard to Chinese laborers will be of such a character only as is necessary to enforce the regulation, limitation, or suspension of immigration, and immigrants shall not be subject to personal maltreatment or abuse." In its second article it declares that "Chinese subjects, whether proceeding to the United States as teachers, students, merchants, or from curiosity, together with their body and household servants, and Chinese laborers who are now in the United States, shall Page 130 U. S. 597 be allowed to go and come of their own free will and accord, and shall be accorded all the rights, privileges, immunities, and exemptions which are accorded to the citizens and subjects of the most favored nation." The government of China thus agreed that notwithstanding the stipulations of former treaties, the United States might regulate, limit, or suspend the coming of Chinese laborers, or their residence therein, without absolutely forbidding it, whenever in their opinion the interests of the country, or of any part of it, might require such action. Legislation for such regulation, limitation, or suspension was entrusted to the discretion of our government, with the condition that it should only be such as might be necessary for that purpose, and that the immigrants should not be maltreated or abused. On the 6th of May, 1882, an act of Congress was approved to carry this supplementary treaty into effect. 22 Stat. 58, c. 126. It is entitled "An act to execute certain treaty stipulations relating to Chinese." Its first section declares that after 90 days from the passage of the act, and for the period of ten years from its date, the coming of Chinese laborers to the United States is suspended, and that it shall be unlawful for any such laborer to come, or, having come, to remain within the United States. The second makes it a misdemeanor, punishable by fine, to which imprisonment may be added, for the master of any vessel knowingly to bring within the United States from a foreign country, and land, any such Chinese laborer. The third provides that those two sections shall not apply to Chinese laborers who were in the United States November 17, 1880, or who shall come within ninety days after the passage of the act. The fourth declares that, for the purpose of identifying the laborers who were here on the 17th of November, 1880, or who should come within the ninety days mentioned, and to furnish them with "the proper evidence" of their right to go from and come to the United States, the "collector of customs of the district from which any such Chinese laborer shall depart from the United States shall, in person or by deputy, go on board each vessel having on board any such Chinese laborer and cleared or about to sail Page 130 U. S. 598 from his district for a foreign port, and on such vessel make a list of all such Chinese laborers, which shall be entered in registry books to be kept for that purpose, in which shall be stated the name, age, occupation, last place of residence, physical marks or peculiarities, and all facts necessary for the identification of each of such Chinese laborers, which books shall be safely kept in the custom house," and each laborer thus departing shall be entitled to receive, from the collector or his deputy, a certificate containing such particulars, corresponding with the registry, as may serve to identify him. "The certificate herein provided for," says the section, "shall entitle the Chinese laborer to whom the same is issued to return to and reenter the United States upon producing and delivering the same to the collector of customs of the district at which such Chinese laborer shall seek to reenter." The enforcement of this act with respect to laborers who were in the United States on November 17, 1880, was attended with great embarrassment from the suspicious nature, in many instances, of the testimony offered to establish the residence of the parties, arising from the loose notions entertained by the witnesses of the obligation of an oath. This fact led to a desire for further legislation restricting the evidence receivable, and the amendatory Act of July 5, 1884, was accordingly passed. 23 Stat. 115, c. 220. The committee of the House of Representatives on foreign affairs, to whom the original bill was referred, in reporting it recommending its passage, stated that there had been such manifold evasions as well as attempted evasions of the act of 1882 that it had failed to meet the demands which called it into existence. Report in H.R. No. 614, 48th Cong. 1st Sess. To obviate the difficulties attending its enforcement, the amendatory act of 1884 declared that the certificate which the laborer must obtain "shall be the only evidence permissible to establish his right of reentry" into the United States. This act was held by this Court not to require the certificate from laborers who were in the United States on the 17th of November, 1880, who had departed out of the country before May 6, 1882, and remained out until after July 5, 1884. Page 130 U. S. 599 Chew Heong v. United States, 112 U. S. 536 . The same difficulties and embarrassments continued with respect to the proof of their former residence. Parties were able to pass successfully the required examination as to their residence before November 17, 1880, who, it was generally believed, had never visited our shores. To prevent the possibility of the policy of excluding Chinese laborers being evaded, the Act of October 1, 1888, the validity of which is the subject of consideration in this case, was passed. It is entitled "An act a supplement to an act entitled An act to execute certain treaty stipulations relating to Chinese,' approved the 6th day of May, eighteen hundred and eighty-two." 25 Stat. 504, c. 1064. It is as follows: " Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, that from and after the passage of this act, it shall be unlawful for and Chinese laborer who shall at any time heretofore have been, or who may now or hereafter be, a resident within the United States, and who shall have departed, or shall depart, therefrom, and shall not have returned before the passage of this act, to return to or remain the United States." "SEC. 2. That no certificates of identity provided for in the fourth and fifth sections of the act to which this is a supplement shall hereafter be issued, and every certificate heretofore issued in pursuance thereof is hereby declared void and of no effect, and the Chinese laborer claiming admission by virtue thereof shall not be permitted to enter the United States." "SEC. 3. That all the duties prescribed, liabilities, penalties, and forfeitures imposed, and the powers conferred, by the second, tenth, eleventh, and twelfth sections of the act to which this is a supplement are hereby extended, and made applicable to the provisions of this act." "SEC. 4. That all such part or parts of the act to which this is a supplement as are inconsistent herewith are hereby repealed." "Approved October 1, 1888." The validity of this act, as already mentioned, is assailed as being in effect an expulsion from the country of Chinese Page 130 U. S. 600 laborers in violation of existing treaties between the United States and the government of China and of rights vested in them under the laws of Congress. The objection that the act is in conflict with the treaties was earnestly pressed in the court below, and the answer to it constitutes the principal part of its opinion. 36 F. 431. Here, the objection made is that the act of 1888 impairs a right vested under the treaty of 1880, as a law of the United States, and the statutes of 1882 and of 1884 passed in execution of it. It must be conceded that the act of 1888 is in contravention of express stipulations of the treaty of 1868 and of the supplemental treaty of 1880, but it is not on that account invalid, or to be restricted in its enforcement. The treaties were of no greater legal obligation than the act of Congress. By the Constitution, laws made in pursuance thereof, and treaties made under the authority of the United States, are both declared to be the supreme law of the land, and no paramount authority is given to one over the other. A treaty, it is true, is in its nature a contract between nations, and is often merely promissory in its character, requiring legislation to carry its stipulations into effect. Such legislation will be open to future repeal or amendment. If the treaty operates by its own force and relates to a subject within the power of Congress, it can be deemed in that particular only the equivalent of a legislative act, to be repealed or modified at the pleasure of Congress. In either case, the last expression of the sovereign will must control. The effect of legislation upon conflicting treaty stipulations was elaborately considered in The Head-Money Cases, and it was there adjudged "that so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification, or repeal." 112 U. S. 112 U.S. 580, 112 U. S. 599 . This doctrine was affirmed and followed in Whitney v. Robertson, 124 U. S. 190 , 124 U. S. 195 . It will not be presumed that the legislative department of the government will lightly pass laws which are in conflict with the treaties of the country, but that circumstances may arise which would not only justify the government in disregarding Page 130 U. S. 601 their stipulations, but demand in the interests of the country that it should do so, there can be no question. Unexpected events may call for a change in the policy of the country. Neglect or violation of stipulations on the part of the other contracting party may require corresponding action on our part. When a reciprocal engagement is not carried out by one of the contracting parties, the other may also decline to keep the corresponding engagement. In 1798, the conduct toward this country of the government of France was of such a character that Congress declared that the United States were freed and exonerated from the stipulations of previous treaties with that country. Its act on the subject was as follows: " An act to declare the treaties heretofore concluded with France " " no longer obligatory on the United States " "Whereas, the treaties concluded between the United States and France have been repeatedly violated on the part of the French government, and the just claims of the United States for reparation of the injuries so committed have been refused, and their attempts to negotiate an amicable adjustment of all complaints between the two nations have been repelled with indignity, and whereas, under authority of the French government, there is yet pursued against the United States a system of predatory violence, infracting the said treaties, and hostile to the rights of a free and independent nation," " Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, that the United States are of right freed and exonerated from the stipulations of the treaties, and of the consular convention, heretofore concluded between the United States and France, and that the same shall not henceforth be regarded as legally obligatory on the government or citizens of the United States." 1 Stat. 578, c. 67. This act, as seen, applied in terms only to the future. Of course, whatever of a permanent character had been executed or vested under the treaties was not affected by it. In that respect, the abrogation of the obligations of a treaty operates, Page 130 U. S. 602 like the repeal of a law, only upon the future, leaving transactions executed under it to stand unaffected. The validity of this legislative release from the stipulations of the treaties was, of course, not a matter for judicial cognizance. The question whether our government is justified in disregarding its engagements with another nation is not one for the determination of the courts. This subject was fully considered by Mr. Justice Curtis, while sitting at the circuit, in Taylor v. Morton, 2 Curtis 454, 459, and he held that while it would always be a matter of the utmost gravity and delicacy to refuse to execute a treaty, the power to do so was prerogative of which no nation could be deprived without deeply affecting its independence; but whether a treaty with a foreign sovereign had been violated by him, whether the consideration of a particular stipulation of a treaty had been voluntarily withdrawn by one party so as to no longer be obligatory upon the other, and whether the views and acts of a foreign sovereign, manifested through his representative, had given just occasion to the political departments of our government to withhold tax execution of a promise contained in a treaty or to act in direct contravention of such promise were not judicial questions; that the power to determine them has not been confided to the judiciary, which has no suitable means to execute it, but to the executive and legislative departments of the government, and that it belongs to diplomacy and legislation, and not to the administration of existing laws. And the learned justice added, as a necessary consequence of these conclusions, that if Congress has this power it is wholly immaterial to inquire whether it has, by the statute complained of, departed from the treaty or not -- or, if it has, whether such departure was accidental or designed -- and, if the latter, whether the reasons therefor were good or bad. These views were reasserted and fully adopted by this Court in Whitney v. Robertson, 124 U. S. 190 , 124 U. S. 195 . And we may add to the concluding observation of the learned justice that if the power mentioned is vested in Congress, any reflection upon its motives or the motives of any of its members in exercising it would be entirely uncalled for. This Court is not a censor of the morals Page 130 U. S. 603 of other departments of the government; it is not invested with any authority to pass judgment upon the motives of their conduct. When once it is established that Congress possesses the power to pass an act, our province ends with its construction and its application to cases as they are presented for determination. Congress has the power under the Constitution to declare war, and in two instances where the power has been exercised -- in the war of 1812 against Great Britain and in 1846 against Mexico -- the propriety and wisdom and justice of its action were vehemently assailed by some of the ablest and best men in the country, but no one doubted the legality of the proceeding, and any imputation by this or any other court of the United States upon the motives of the members of Congress who in either case voted for the declaration would have been justly the cause of animadversion. We do not mean to intimate that the moral aspects of legislative acts may not be proper subjects of consideration. Undoubtedly they may be at proper times and places, before the public, in the halls of Congress, and in all the modes by which the public mind can be influenced. Public opinion thus enlightened, brought to bear upon legislation, will do more than all other causes to prevent abuses; but the province of the courts is to pass upon the validity of laws, not to make them, and when their validity is established, to declare their meaning and apply their provisions. All else lies beyond their domain. There being nothing in the treaties between China and the United States to impair the validity of the act of Congress of October 1, 1888, was it on any other ground beyond the competency of Congress to pass it? If so, it must be because it was not within the power of Congress to prohibit Chinese laborers who had at the time departed from the United States, or should subsequently depart, from returning to the United States. Those laborers are not citizens of the United States; they are aliens. That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. Page 130 U. S. 604 If it could not exclude aliens, it would be to that extent subject to the control of another power. As said by this Court in the case of The Exchange , 7 Cranch 116, 11 U. S. 136 , speaking by Chief Justice Marshall: "The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it deriving validity from an external source would imply a diminution of its sovereignty to the extent of the restriction and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source." While under our Constitution and form of government the great mass of local matters is controlled by local authorities, the United States, in their relation to foreign countries and their subjects or citizens, are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory. The powers to declare war, make treaties, suppress insurrection, repel invasion, regulate foreign commerce, secure republican governments to the states, and admit subjects of other nations to citizenship are all sovereign powers, restricted in their exercise only by the Constitution itself and considerations of public policy and justice which control, more or less, the conduct of all civilized nations. As said by this Court in the case of Cohens v. Virginia , 6 Wheat. 264, 19 U. S. 413 , speaking by the same great Chief Justice: "That the United States form, for many, and for most important purposes, a single nation, has not yet been denied. In war, we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one, and the government which is alone capable of controlling and managing their interests in all these respects is the government of the union. It is their government, and in that character they have no other. America has chosen to Page 130 U. S. 605 be in many respects, and to many purposes, a nation, and for all these purposes her government is complete; to all these objects, it is competent. The people have declared that in the exercise of all powers given for these objects, it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory. The Constitution and laws of a state, so far as they are repugnant to the Constitution and laws of the United States, are absolutely void. These states are constituent parts of the United States. They are members of one great empire -- for some purposes sovereign, for some purposes subordinate." The same view is expressed in a different form by MR. JUSTICE BRADLEY in Knox v. Lee , 12 Wall. 457, 79 U. S. 555 , where he observes that "the United States is not only a government, but it is a national government, and the only government in this country that has the character of nationality. It is invested with power over all the foreign relations of the country, war, peace, and negotiations and intercourse with other nations, all of which are forbidden to the state governments. It has jurisdiction over all those general subjects of legislation and sovereignty which affect the interests of the whole people equally and alike, and which require uniformity of regulations and laws, such as the coinage, weights, and measures, bankruptcies, the postal system, patent and copyright laws, the public lands, and interstate commerce -- all which subjects are expressly or impliedly prohibited to the state governments. It has power to suppress insurrections as well as to repel invasions, and to organize, arm, discipline, and call into service the militia of the whole country. The President is charged with the duty and invested with the power to take care that the laws be faithfully executed. The judiciary has jurisdiction to decide controversies between the states, and between their respective citizens, as well as questions of national concern, and the government is clothed with power to guaranty to every state a republican government and to protect each of them against invasion and domestic violence." The control of local matters being left to local authorities, and national matters being entrusted to the government of the Page 130 U. S. 606 union, the problem of free institutions existing over a widely extended country, having different climates and varied interests, has been happily solved. For local interests, the several states of the union exist, but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power. To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us. The government, possessing the powers which are to be exercised for protection and security, is clothed with authority to determine the occasion on which the powers shall be called forth, and its determinations, so far as the subjects affected are concerned, are necessarily conclusive upon all its departments and officers. If, therefore, the government of the United States, through its legislative department, considers the presence of foreigners of a different race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects. The existence of war would render the necessity of the proceeding only more obvious and pressing. The same necessity, in a less pressing degree, may arise when war does not exist, and the same authority which adjudges the necessity in one case must also determine it in the other. In both cases, its determination is conclusive upon the judiciary. If the government of the country of which the foreigners excluded are subjects is dissatisfied with this action, it can make complaint to the executive head of our government, or resort to any other measure which in its judgment its interests or dignity may demand, and there lies its only remedy. The power of the government to exclude foreigners from the country whenever in its judgment the public interests require such exclusion has been asserted in repeated instances, Page 130 U. S. 607 and never denied by the executive or legislative departments. In a communication made in December, 1852, to Mr. A. Dudley Mann at one time a special agent of the Department of State in Europe, Mr. Everett, then Secretary of State under President Fillmore, writes: "This government could never give up the right of excluding foreigners whose presence it might deem a source of danger to the United States. . . . Nor will this government consider such exclusion of American citizens from Russia necessarily a matter of diplomatic complaint to that country." In a dispatch to Mr. Fay, our minister to Switzerland, in March, 1856, Mr. Marcy, Secretary of State under President Pierce, writes: "Every society possesses the undoubted right to determine who shall compose its members, and it is exercised by all nations, both in peace and war. . . . It may always be questionable whether a resort to this power is warranted by the circumstances or what department of the government is empowered to exert it, but there can be no doubt that it is possessed by all nations and that each may decide for itself when the occasion arises demanding its exercise." In a communication in September, 1869, to Mr. Washburne, our minister to France, Mr. Fish, Secretary of State under President Grant, uses this language: "The control of the people within its limits, and the right to expel from its territory persons who are dangerous to the peace of the state, are too clearly within the essential attributes of sovereignty to be seriously contested. Strangers visiting or sojourning in a foreign country voluntarily submit themselves to its laws and customs, and the municipal laws of France, authorizing the expulsion of strangers, are not of such recent date, nor has the exercise of the power by the government of France been so infrequent, that sojourners within her territory can claim surprise when the power is put in force." In a communication to Mr. Foster, our minister to Mexico, in July, 1879, Mr. Evarts, Secretary of State under President Hayes, referring to the power vested in the Constitution of Mexico to expel objectionable foreigners, says: "The admission that, as that constitution now stands and is interpreted, foreigners who render themselves harmful or objectionable to the general government Page 130 U. S. 608 must expect to be liable to the exercise of the power adverted to, even in time of peace, remains, and no good reason is seen for departing from that conclusion now. But while there may be no expedient basis on which to found objection, on principle and in advance of a special case thereunder, to the constitutional right thus asserted by Mexico, yet the manner of carrying out such asserted right may be highly objectionable. You would be fully justified in making earnest remonstrances should a citizen of the United States be expelled from Mexican territory without just steps to assure the grounds of such expulsion, and in bringing the fact to the immediate knowledge of the department." In a communication to Mr. W. J. Stillman, under date of August 3, 1882, Mr. Frelinghuysen, Secretary of State under President Arthur, writes: "Thus, government cannot contest the right of foreign governments to exclude, on police or other grounds, American citizens from their shores." Wharton's International Law Digest § 206. The exclusion of paupers, criminals, and persons afflicted with incurable diseases, for which statutes have been passed, is only an application of the same power to particular classes of persons, whose presence is deemed injurious or a source of danger to the country. As applied to them, there has never been any question as to the power to exclude them. The power is constantly exercised; its existence is involved in the right of self-preservation. As to paupers, it makes no difference by whose aid they are brought to the country. As Mr. Fish, when Secretary of State, wrote in a communication under date of December 26, 1872, to Mr. James Moulding, of Liverpool, the government of the United States "is not willing and will not consent to receive the pauper class of any community who may be sent or may be assisted in their immigration at the expense of government or of municipal authorities." As to criminals, the power of exclusion has always been exercised, even in the absence of any statute on the subject. In a dispatch to Mr. Cramer, our minister to Switzerland, in December, 1881, Mr. Blaine, Secretary of State under President Arthur, writes: "While, under the Constitution and Page 130 U. S. 609 the laws, this country is open to the honest and the industrious immigrant, it has no room outside of its prisons or almshouses for depraved and incorrigible criminals or hopelessly dependent paupers who may have become a pest or burden, or both, to their own country." Wharton's Int.Law Dig., supra. The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of anyone. The powers of government are delegated in trust to the United States, and are incapable of transfer to any other parties. They cannot be abandoned or surrendered. Nor can their exercise be hampered, when needed for the public good, by any considerations of private interest. The exercise of these public trusts is not the subject of barter or contract. Whatever license, therefore, Chinese laborers may have obtained, previous to the Act of October 1, 1888, to return to the United States after their departure is held at the will of the government, revocable at any time at its pleasure. Whether a proper consideration by our government of its previous laws or a proper respect for the nation whose subjects are affected by its action ought to have qualified its inhibition and made it applicable only to persons departing from the country after the passage of the act are not questions for judicial determination. If there be any just ground of complaint on the part of China, it must be made to the political department of our government, which is alone competent to act upon the subject. The rights and interests created by a treaty, which have become so vested that its expiration or abrogation will not destroy or impair them, are such as are connected with and lie in property capable of sale and transfer, or other disposition, not such as are personal and untransferable in their character. Thus, in The Head-Money Cases, the Court speaks of certain rights being in some instances conferred upon the citizens or subjects of one nation residing in the territorial limits of the other, which are "capable of enforcement as Page 130 U. S. 610 between private parties in the courts of the country." "An illustration of this character," it adds, "is found in treaties which regulate the mutual rights of citizens and subjects of the contracting nations in regard to rights of property by descent or inheritance, when the individuals concerned are aliens." 112 U. S. 112 U.S. 580, 112 U. S. 598 . The passage cited by counsel from the language of Mr. Justice Washington in Society for the Propagation of the Gospel v. New Haven , 8 Wheat. 464, 21 U. S. 493 , also illustrates this doctrine. There, the learned Justice observes that "if real estate be purchased or secured under a treaty, it would be most mischievous to admit that the extinguishment of the treaty extinguished the right to such estate. In truth, it no more affects such rights than the repeal of a municipal law affects rights acquired under it." Of this doctrine there can be no question in this Court; but far different is this case, where a continued suspension of the exercise of a governmental power is insisted upon as a right because, by the favor and consent of the government, it has not heretofore been exerted with respect to the appellant or to the class to which he belongs. Between property rights not affected by the termination or abrogation of a treaty and expectations of benefits from the continuance of existing legislation there is as wide a difference as between realization and hopes. During the argument, reference was made by counsel to the Alien Law of June 25, 1798, and to opinions expressed at the time by men of great ability and learning against its constitutionality. 1 Stat. 570, c. 58. We do not attach importance to those opinions in their bearing upon this case. The act vested in the President power to order all such aliens as he should judge dangerous to the peace and safety of the United States, or should have reasonable grounds to suspect were concerned in any treasonable or secret machination against the government, to depart out of the territory of the United States within such time as should be expressed in his order. There were other provisions also distinguishing it from the act under consideration. The act was passed during a period of great political excitement, and it was attacked and defended with great Page 130 U. S. 611 zeal and ability. It is enough, however, to say that it is entirely different from the act before us, and the validity of its provisions was never brought to the test of judicial decision in the courts of the United States. Order affirmed.

Here is a summary of the key points from the case: - The United States, as a sovereign nation, has the power to exclude aliens from entering the country, and this power cannot be surrendered through treaty-making. - The Chinese Exclusion Act of 1888, which excluded Chinese laborers from entering the United States, was a constitutional exercise of legislative power. It took precedence over existing treaties with China, effectively abrogating them to that extent. - Certificates issued to Chinese laborers under previous legislation did not confer an irrevocable right to return to the United States; Congress had the authority to revoke or modify those rights through subsequent acts. - The Court affirmed the lower court's order, upholding the detention of the Chinese laborer and his exclusion from the United States under the Chinese Exclusion Act. This case established the principle that the power to exclude aliens is an inherent aspect of national sovereignty and that Congress has the authority to enact legislation restricting immigration, even if it conflicts with existing treaties.

Lawsuits & Legal Procedures

Strawbridge v. Curtiss

https://supreme.justia.com/cases/federal/us/7/267/

U.S. Supreme Court Strawbridge v. Curtiss, 7 U.S. 3 Cranch 267 267 (1806) Strawbridge v. Curtiss 7 U.S. (3 Cranch) 267 APPEAL FROM THE CIRCUIT COURT OF THE DISTRICT OF MASSACHUSETTS Syllabus If there be two or more joint plaintiffs, and two or more joint defendants, each of the plaintiffs must be capable of suing each of the defendants in the courts of the United States to sustain the jurisdiction of the court. The Court understands the expressions in the act of Congress giving jurisdiction to the courts of the United States "when an alien is a party, or the suit is between a citizen of the state where the suit is brought, and a citizen of another state" to mean that each distinct interest should be represented by persons all of whom are entitled to sue or may be sued in the federal courts -- that is, where the interest is joint, each of the persons concerned in that interest must be competent to sue or liable to be sued in those courts. This was an appeal from a decree of the Circuit Court for the District of Massachusetts, which dismissed the complainants' bill in chancery for want of jurisdiction. Some of the complainants were alleged to be citizens of the State of Massachusetts. The defendants were also stated to be citizens of the same state, excepting Curtiss, who was averred to be a citizen of the State of Vermont, and upon whom the subpoena was served in that state. MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court. The Court has considered this case and is of opinion that the jurisdiction cannot be supported. The words of the act of Congress are "where an alien is a party or the suit is between a citizen of a state where the suit is brought and a citizen of another state." The Court understands these expressions to mean that each distinct interest should be represented by persons all of whom are entitled to sue or may be sued in the federal courts. That is, that where the interest is joint, each of the persons concerned in that interest must be competent to sue or liable to be sued in those courts. But the Court does not mean to give an opinion in the case where several parties represent several distinct interests Page 7 U. S. 268 and some of those parties are and others are not competent to sue or liable to be sued in the courts of the United States. Decree affirmed.

Here is a summary of the Supreme Court case Strawbridge v. Curtiss (1806): Summary: In Strawbridge v. Curtiss, the Supreme Court interpreted a provision in the Judiciary Act of 1789 that granted federal courts jurisdiction in cases involving diversity of citizenship. The Court held that for a federal court to have jurisdiction over a case with multiple plaintiffs and defendants, each plaintiff must be capable of suing each defendant in federal court. In other words, there must be complete diversity of citizenship between the plaintiffs and defendants. Facts: The case involved an appeal from a decree of the Circuit Court for the District of Massachusetts, which dismissed a bill in chancery (a type of equitable relief) for lack of jurisdiction. Some of the plaintiffs were citizens of Massachusetts, and the defendants were also citizens of the same state, except for one defendant who was a citizen of Vermont. Issue: The question before the Supreme Court was whether the federal court had jurisdiction over the case, given the diversity of citizenship requirement in the Judiciary Act of 1789. Holding: The Supreme Court held that the jurisdiction could not be supported. The Court interpreted the relevant provision in the Judiciary Act to mean that each distinct interest in a case should be represented by persons all of whom are entitled to sue or be sued in federal court. In other words, there must be complete diversity of citizenship between the plaintiffs and defendants for a federal court to have jurisdiction. Effect: The decision in Strawbridge v. Curtiss established the complete diversity requirement for federal court jurisdiction in cases involving multiple parties. This requirement has been a significant factor in shaping federal court jurisdiction and has been reaffirmed and clarified in subsequent Supreme Court cases.

Lawsuits & Legal Procedures

Pennoyer v. Neff

https://supreme.justia.com/cases/federal/us/95/714/

U.S. Supreme Court Pennoyer v. Neff, 95 U.S. 714 (1878) Pennoyer v. Neff 95 U.S. 714 ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF OREGON Syllabus 1. A statute of Oregon, after providing for service of summons upon parties or their representatives, personally or at their residence, declares that, when service cannot be thus made, and the defendant, after due diligence, cannot be found within the State, and "that fact appears, by affidavit, to the satisfaction of the court or judge thereof, and it, in like manner, appears that a cause of action exists against the defendant, or that he is a proper party to an action relating to real property in the State, such court or judge may grant an order that the service be made by publication of summons . . . when the defendant is not a resident of the State, but has property therein, and the court has jurisdiction of the subject of the action," -- the order to designate a newspaper of the county where the action is commenced in which the publication shall be made -- and that proof of such publication shall be "the affidavit of the printer, or his foreman, or his principal clerk." Held, that defects in the affidavit for the order can only be taken advantage of on appeal, or by some other direct proceeding, and cannot be urged to impeach the judgment collaterally, and that the provision as to proof of the publication is satisfied when the affidavit is made by the editor of the paper. 2. A personal judgment is without any validity if it be rendered by a State court in an action upon a money demand against a nonresident of the State who was served by a publication of summons, but upon whom no personal service of process within the State was made, and who did not appear; and no title to property passes by a sale under an execution issued upon such a judgment. 3. The State, having within her territory property of a nonresident, may hold and appropriate it to satisfy the claims of her citizens against him, and her tribunals may inquire into his obligations to the extent necessary to control the disposition of that property. If he has no property in the State, there is nothing upon which her tribunals can adjudicate. 4. Substituted service by publication, or in any other authorized form, is sufficient to inform a nonresident of the object of proceedings taken where Page 95 U. S. 715 property is once brought under the control of the court by seizure or some equivalent act, but where the suit is brought to determine his personal rights and obligations, that is, where it is merely in personam, such service upon him is ineffectual for any purpose. 5. Process from the tribunals of one State cannot run into another State and summon a party there domiciled to respond to proceedings against him, and publication of process or of notice within the State in which the tribunal sits cannot create any greater obligation upon him to appear. Process sent to him out of the State, and process published within it, are equally unavailing in proceedings to establish his personal liability. 6. Except in cases affecting the personal status of the plaintiff, and in those wherein that mode of service may be considered to have been assented to in advance, the substituted service of process by publication allowed by the law of Oregon and by similar laws in other States where actions are brought against nonresidents is effectual only where, in connection with process against the person for commencing the action, property in the State is brought under the control of the court and subjected to its disposition by process adapted to that purpose, or where the judgment is sought as a means of reaching such property or affecting some interest therein; in other words, where the action is in the nature of a proceeding in rem. 7. Whilst the courts of the United States are not foreign tribunals in their relations to the State courts, they are tribunals of a different sovereignty, and are bound to give a judgment of a State court only the same faith and credit to which it is entitled in the courts of another State. 8. The term "due process of law," when applied to judicial proceedings, means a course of legal proceedings according to those rules and principles which have been established by our jurisprudence for the protection and enforcement of private rights. To give such proceedings any validity, there must be a competent tribunal to pass upon their subject matter, and if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the State, or by his voluntary appearance. This action was brought by Neff against Pennoyer for the recovery of a tract of land situated in Multnomah County, Oregon. Pennoyer, in his answer, denied Neff's title and right to possession, and set up a title in himself. By consent of parties, and in pursuance of their written stipulation filed in the case, the cause was tried by the court, and a special verdict given, upon which judgment was rendered in favor of Neff; whereupon Pennoyer sued out this writ of error. The parties respectively claimed title as follows: Neff under a patent issued to him by the United States, March 19, Page 95 U. S. 716 1866; and Pennoyer by virtue of a sale made by the sheriff of said county, under an execution sued out upon a judgment against Neff, rendered Feb. 19, 1866, by the Circuit Court for said county, in an action wherein he was defendant and J. H. Mitchell was plaintiff. Neff was then a nonresident of Oregon. In Mitchell v. Neff, jurisdiction of Neff was obtained by service of summons by publication. Pennoyer offered in evidence duly certified copies of the complaint, summons, order for publication of summons, affidavit of service by publication, and the judgment in that case, to the introduction of which papers the plaintiff objected because, 1, said judgment is in personam, and appears to have been given without the appearance of the defendant in the action or personal service of the summons upon him, and while he was a nonresident of the State, and is, therefore, void; 2, said judgment is not in rem, and therefore constitutes no basis of title in the defendant; 3, said copies of complaint, &c., do not show jurisdiction to give the judgment alleged, either in rem or personam; and, 4, it appears from said papers that no proof of service by publication was ever made, the affidavit thereof being made by the "editor" of the "Pacific Christian Advocate," and not by "the printer, or his foreman or principal clerk." The court admitted the evidence subject to the objections. The finding of the court in regard to the facts bearing upon the asserted jurisdiction of the State court is as follows: -- That, on Nov. 13, 1865, Mitchell applied to said Circuit Court, upon his own affidavit of that date, for an order allowing the service of the summons in said action to be made upon Neff by publication thereof, whereupon said court made said order, in the words following: "Now, at this day, comes the plaintiff in his proper person, and by his attorneys, Mitchell and Dolph, and files affidavit of plaintiff, and motion for an order of publication of summons, as follows, to wit:" "Now comes the plaintiff, by his attorneys, and upon the affidavit of plaintiff, herewith filed, moves the court for an order of publication of summons against defendant, as required by law, he being a nonresident;" "and it appearing to the satisfaction of the court that the defendant cannot, after due diligence, be Page 95 U. S. 717 found in this State, and that he is a nonresident thereof, that his place of residence is unknown to plaintiff, and cannot, with reasonable diligence, be ascertained by him, and that the plaintiff has a cause of action of action against defendant, and that defendant has property in this county and State, it is ordered and adjudged by the court that service of the summons in this action be made by publication for six weeks successively in the 'Pacific Christian Advocate,' a weekly newspaper published in Multnomah County, Oregon, and this action is continued for such service." That the affidavit of plaintiff, referred to in said order, is in the words following: "I, J. H. Mitchell, being first duly sworn, say that the defendant, Marcus Neff, is a nonresident of this State; that he resides somewhere in the State of California, at what place affiant knows not, and he cannot be found in this State; that plaintiff has a just cause of action against defendant for a money demand on account; that this court has jurisdiction of such action; that the defendant has property in this county and State." That the complaint in said action was verified and filed on Nov. 3, 1865, and contained facts tending to prove that, at that date, said Mitchell had a cause of action against said Neff for services as an attorney, performed "between Jan. 1, 1862, and May 15, 1863." That the entry of judgment in said action contained the following averments: "And it appearing to the court that the defendant was, at the time of the commencement of this action, and ever since has been, a nonresident of this State; and it further appearing that he has property in this State, and that defendant had notice of the pendency of this action by publication of the summons for six successive weeks in the 'Pacific Christian Advocate,' a weekly newspaper of general circulation published in Multnomah County, State of Oregon, the last issue of which was more than twenty days before the first day of this term." That the affidavit showing the publication of the summons in the "Advocate" aforesaid was made as stated therein by the "editor" of that paper. That said complaint, summons, affidavit of Mitchell and of the "editor" of the "Advocate" aforesaid, and entry of judgment, were in the judgment roll, made up by the clerk in the case, but the order for publication of the summons aforesaid was not placed in said roll Page 95 U. S. 718 by said clerk, but remains on the files of said court; and that, when said court made said order for publication, and gave said judgment against Neff, the only evidence it had before it to prove the facts necessary to give it jurisdiction therefor, and particularly to authorize it to find and state that Neff's residence was unknown to Mitchell, and could not, with reasonable diligence, be ascertained by him, and that Neff had notice of the pendency of said action by the publication of the summons as aforesaid, was, so far as appears by the said roll and the records and files of the said court, the said complaint and affidavits of Mitchell and the editor of the "Advocate." The statute of Oregon at the time of the commencement of the suit against Neff was as follows: -- "SECT. 55. When service of the summons cannot be made as prescribed in the last preceding section, and the defendant, after due diligence, cannot be found within the State, and when that fact appears, by affidavit, to the satisfaction of the court or judge thereof, or justice in an action in a justice's court, and it also appears that a cause of action exists against the defendant, or that he is a proper party to an action relating to real property in this State, such court or judge or justice may grant an order that the service be made by publication of summons in either of the following cases: . . ." "3. When the defendant is not a resident of the State, but has property therein, and the court has jurisdiction of the subject of the action." "SECT. 56. The order shall direct the publication to be made in a newspaper published in the county where the action is commenced, and, if no newspaper be published in the county, then in a newspaper to be designated as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, not less than once a week for six weeks. In case of publication, the court or judge shall also direct a copy of the summons and complaint to be forthwith deposited in the post office, directed to the defendant, at his place of residence, unless it shall appear that such residence is neither known to the party making the application, nor can, with reasonable diligence, be ascertained by him. When publication is ordered, personal service of a copy of the summons and complaint out of the State shall be equivalent to publication and deposit in the post office. In either case, the defendant shall appear and answer by the first day of the term following the Page 95 U. S. 719 expiration of the time prescribed in the order for publication; and, if he does not, judgment may be taken against him for want thereof. In case of personal service out of the State, the summons shall specify the time prescribed in the order for publication." "SECT. 57. The defendant against whom publication is ordered, or his personal representatives, on application and sufficient cause shown, at any time before judgment, shall be allowed to defend the action; and the defendant against whom publication is ordered, or his representatives, may in like manner, upon good cause shown, and upon such terms as may be proper, be allowed to defend after judgment, and within one year after the entry of such judgment, on such terms as may be just; and, if the defence be successful, and the judgment or any part thereof have been collected or otherwise enforced, such restitution may thereupon be compelled as the court shall direct. But the title to property sold upon execution issued on such judgment to a purchaser in good faith shall not be thereby affected." "SECT. 60. Proof of the service of summons shall be, in case of publication, the affidavit of the printer, or his foreman, or his principal clerk, showing the same." MR. JUSTICE FIELD delivered the opinion of the court. This is an action to recover the possession of a tract of land, of the alleged value of $15,000, situated in the State of Oregon. The plaintiff asserts title to the premises by a patent of the United States issued to him in 1866, under the act of Congress of Sept. 27, 1850, usually known as the Donation Law of Oregon. The defendant claims to have acquired the premises under a sheriff's deed, made upon a sale of the property on execution issued upon a judgment recovered against the plaintiff in one of the circuit courts of the State. The case turns upon the validity of this judgment. It appears from the record that the judgment was rendered in February, 1866, in favor of J. H. Mitchell, for less than $300, including costs, in an action brought by him upon a demand for services as an attorney; that, at the time the action was commenced and the judgment rendered, the defendant therein, the plaintiff here, was a nonresident of the State; Page 95 U. S. 720 that he was not personally served with process, and did not appear therein; and that the judgment was entered upon his default in not answering the complaint, upon a constructive service of summons by publication. The Code of Oregon provides for such service when an action is brought against a nonresident and absent defendant who has property within the State. It also provides, where the action is for the recovery of money or damages, for the attachment of the property of the nonresident. And it also declares that no natural person is subject to the jurisdiction of a court of the State "unless he appear in the court, or be found within the State, or be a resident thereof, or have property therein; and, in the last case, only to the extent of such property at the time the jurisdiction attached." Construing this latter provision to mean that, in an action for money or damages where a defendant does not appear in the court, and is not found within the State, and is not a resident thereof, but has property therein, the jurisdiction of the court extends only over such property, the declaration expresses a principle of general, if not universal, law. The authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established. Any attempt to exercise authority beyond those limits would be deemed in every other forum, as has been said by this Court, an illegitimate assumption of power, and be resisted as mere abuse. D'Arcy v. Ketchum et al. , 11 How. 165. In the case against the plaintiff, the property here in controversy sold under the judgment rendered was not attached, nor in any way brought under the jurisdiction of the court. Its first connection with the case was caused by a levy of the execution. It was not, therefore, disposed of pursuant to any adjudication, but only in enforcement of a personal judgment, having no relation to the property, rendered against a nonresident without service of process upon him in the action or his appearance therein. The court below did not consider that an attachment of the property was essential to its jurisdiction or to the validity of the sale, but held that the judgment was invalid from defects in the affidavit upon which the order of publication was obtained and in the affidavit by which the publication was proved. Page 95 U. S. 721 There is some difference of opinion among the members of this Court as to the rulings upon these alleged defects. The majority are of opinion that, inasmuch as the statute requires, for an order of publication, that certain facts shall appear by affidavit to the satisfaction of the court or judge, defects in such affidavit can only be taken advantage of on appeal, or by some other direct proceeding, and cannot be urged to impeach the judgment collaterally. The majority of the court are also of opinion that the provision of the statute requiring proof of the publication in a newspaper to be made by the "affidavit of the printer, or his foreman, or his principal clerk" is satisfied when the affidavit is made by the editor of the paper. The term "printer," in their judgment, is there used not to indicate the person who sets up the type -- he does not usually have a foreman or clerks -- it is rather used as synonymous with publisher. The Supreme Court of New York so held in one case; observing that, for the purpose of making the required proof, publishers were "within the spirit of the statute." Bunce v. Reed, 16 Barb. (N. Y.) 350. And, following this ruling, the Supreme Court of California held that an affidavit made by a "publisher and proprietor" was sufficient. Sharp v. Daugney, 33 Cal. 512. The term "editor," as used when the statute of New York was passed, from which the Oregon law is borrowed, usually included not only the person who wrote or selected the articles for publication, but the person who published the paper and put it into circulation. Webster, in an early edition of his Dictionary, gives as one of the definitions of an editor, a person "who superintends the publication of a newspaper." It is principally since that time that the business of an editor has been separated from that of a publisher and printer, and has become an independent profession. If, therefore, we were confined to the rulings of the court below upon the defects in the affidavits mentioned, we should be unable to uphold its decision. But it was also contended in that court, and is insisted upon here, that the judgment in the State court against the plaintiff was void for want of personal service of process on him, or of his appearance in the action in which it was rendered and that the premises in controversy could not be subjected to the payment of the demand Page 95 U. S. 722 of a resident creditor except by a proceeding in rem, that is, by a direct proceeding against the property for that purpose. If these positions are sound, the ruling of the Circuit Court as to the invalidity of that judgment must be sustained notwithstanding our dissent from the reasons upon which it was made. And that they are sound would seem to follow from two well established principles of public law respecting the jurisdiction of an independent State over persons and property. The several States of the Union are not, it is true, in every respect independent, many of the right and powers which originally belonged to them being now vested in the government created by the Constitution. But, except as restrained and limited by that instrument, they possess and exercise the authority of independent States, and the principles of public law to which we have referred are applicable to them. One of these principles is that every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory. As a consequence, every State has the power to determine for itself the civil status and capacities of its inhabitants; to prescribe the subjects upon which they may contract, the forms and solemnities with which their contracts shall be executed, the rights and obligations arising from them, and the mode in which their validity shall be determined and their obligations enforced; and also the regulate the manner and conditions upon which property situated within such territory, both personal and real, may be acquired, enjoyed, and transferred. The other principle of public law referred to follows from the one mentioned; that is, that no State can exercise direct jurisdiction and authority over persons or property without its territory. Story, Confl. Laws, c. 2; Wheat. Int. Law, pt. 2, c. 2. The several States are of equal dignity and authority, and the independence of one implies the exclusion of power from all others. And so it is laid down by jurists as an elementary principle that the laws of one State have no operation outside of its territory except so far as is allowed by comity, and that no tribunal established by it can extend its process beyond that territory so as to subject either persons or property to its decisions. "Any exertion of authority of this sort beyond this limit," says Story, "is a mere nullity, and incapable of binding Page 95 U. S. 723 such persons or property in any other tribunals." Story, Confl.Laws, sect. 539. But as contracts made in one State may be enforceable only in another State, and property may be held by nonresidents, the exercise of the jurisdiction which every State is admitted to possess over persons and property within its own territory will often affect persons and property without it. To any influence exerted in this way by a State affecting persons resident or property situated elsewhere, no objection can be justly taken; whilst any direct exertion of authority upon them, in an attempt to give ex-territorial operation to its laws, or to enforce an ex-territorial jurisdiction by its tribunals, would be deemed an encroachment upon the independence of the State in which the persons are domiciled or the property is situated, and be resisted as usurpation. Thus the State, through its tribunals, may compel persons domiciled within its limits to execute, in pursuance of their contracts respecting property elsewhere situated, instruments in such form and with such solemnities as to transfer the title, so far as such formalities can be complied with; and the exercise of this jurisdiction in no manner interferes with the supreme control over the property by the State within which it is situated. Penn v. Lord Baltimore, 1 Ves. 444; Massie v. Watts , 6 Cranch 148; Watkins v. Holman , 16 Pet. 25; Corbett v. Nutt , 10 Wall. 464. So the State, through its tribunals, may subject property situated within its limits owned by nonresidents to the payment of the demand of its own citizens against them, and the exercise of this jurisdiction in no respect infringes upon the sovereignty of the State where the owners are domiciled. Every State owes protection to its own citizens, and, when nonresidents deal with them, it is a legitimate and just exercise of authority to hold and appropriate any property owned by such nonresidents to satisfy the claims of its citizens. It is in virtue of the State's jurisdiction over the property of the nonresident situated within its limits that its tribunals can inquire into that nonresident's obligations to its own citizens, and the inquiry can then be carried only to the extent necessary to control the disposition of the property. If the nonresident Page 95 U. S. 724 have no property in the State, there is nothing upon which the tribunals can adjudicate. These views are not new. They have been frequently expressed, with more or less distinctness, in opinions of eminent judges, and have been carried into adjudications in numerous cases. Thus, in Picquet v. Swan, 5 Mas. 35, Mr. Justice Story said:-- "Where a party is within a territory, he may justly be subjected to its process, and bound personally by the judgment pronounced on such process against him. Where he is not within such territory, and is not personally subject to its laws, if, on account of his supposed or actual property being within the territory, process by the local laws may, by attachment, go to compel his appearance, and, for his default to appear, judgment may be pronounced against him, such a judgment must, upon general principles, be deemed only to bind him to the extent of such property, and cannot have the effect of a conclusive judgment in personam, for the plain reason, that, except so far as the property is concerned, it is a judgment coram non judice. " And in Boswell's Lessee v. Otis , 9 How. 336, where the title of the plaintiff in ejectment was acquired on a sheriff's sale under a money decree rendered upon publication of notice against nonresidents, in a suit brought to enforce a contract relating to land, Mr. Justice McLean said:-- "Jurisdiction is acquired in one of two modes: first, as against the person of the defendant by the service of process; or, secondly, by a procedure against the property of the defendant within the jurisdiction of the court. In the latter case, the defendant is not personally bound by the judgment beyond the property in question. And it is immaterial whether the proceeding against the property be by an attachment or bill in chancery. It must be substantially a proceeding in rem. " These citations are not made as authoritative expositions of the law, for the language was perhaps not essential to the decision of the cases in which it was used, but as expressions of the opinion of eminent jurists. But in Cooper v. Reynolds, reported in the 10th of Wallace, it was essential to the disposition of the case to declare the effect of a personal action against an absent party, without the jurisdiction of the court, not served Page 95 U. S. 725 with process or voluntarily submitting to the tribunal, when it was sought to subject his property to the payment of a demand of a resident complainant; and, in the opinion there delivered, we have a clear statement of the law as to the efficacy of such actions, and the jurisdiction of the court over them. In that case, the action was for damages for alleged false imprisonment of the plaintiff; and, upon his affidavit that the defendants had fled from the State, or had absconded or concealed themselves so that the ordinary process of law could not reach them, a writ of attachment was sued out against their property. Publication was ordered by the court, giving notice to them to appear and plead, answer or demur, or that the action would be taken as confessed and proceeded in ex parte as to them. Publication was had, but they made default, and judgment was entered against them, and the attached property was sold under it. The purchaser having been put into possession of the property, the original owner brought ejectment for its recovery. In considering the character of the proceeding, the Court, speaking through Mr. Justice Miller, said:-- "Its essential purpose or nature is to establish, by the judgment of the court, a demand or claim against the defendant, and subject his property lying within the territorial jurisdiction of the court to the payment of that demand. But the plaintiff is met at the commencement of his proceedings by the fact that the defendant is not within the territorial jurisdiction, and cannot be served with any process by which he can be brought personally within the power of the court. For this difficulty, the statute has provided a remedy. It says that, upon affidavit's being made of that fact, a writ of attachment may be issued and levied on any of the defendant's property, and a publication may be made warning him to appear; and that thereafter the court may proceed in the case, whether he appears or not. If the defendant appears, the cause becomes mainly a suit in personam, with the added incident that the property attached remains liable, under the control of the court, to answer to any demand which may be established against the defendant by the final judgment of the court. But if there is no appearance of the defendant, and no service of process on him, the case becomes in its essential nature a proceeding in rem, the only effect of which is to subject the property attached to the payment of the demand which the court may find to be due to the plaintiff. That such is Page 95 U. S. 726 the nature of this proceeding in this latter class of cases is clearly evinced by two well established propositions: first, the judgment of the court, though in form a personal judgment against the defendant, has no effect beyond the property attached in that suit. No general execution can be issued for any balance unpaid after the attached property is exhausted. No suit can be maintained on such a judgment in the same court, or in any other; nor can it be used as evidence in any other proceeding not affecting the attached property; nor could the costs in that proceeding be collected of defendant out of any other property than that attached in the suit. Second, the court in such a suit cannot proceed unless the officer finds some property of defendant on which to levy the writ of attachment. A return that none can be found is the end of the case, and deprives the court of further jurisdiction, though the publication may have been duly made and proven in court." The fact that the defendants in that case had fled from the State, or had concealed themselves, so as not to be reached by the ordinary process of the court, and were not nonresidents, was not made a point in the decision. The opinion treated them as being without the territorial jurisdiction of the court, and the grounds and extent of its authority over persons and property thus situated were considered when they were not brought within its jurisdiction by personal service or voluntary appearance. The writer of the present opinion considered that some of the objections to the preliminary proceedings in the attachment suit were well taken, and therefore dissented from the judgment of the Court, but, to the doctrine declared in the above citation, he agreed, and he may add that it received the approval of all the judges. It is the only doctrine consistent with proper protection to citizens of other States. If, without personal service, judgments in personam, obtained ex parte against nonresidents and absent parties, upon mere publication of process, which, in the great majority of cases, would never be seen by the parties interested, could be upheld and enforced, they would be the constant instruments of fraud and oppression. Judgments for all sorts of claims upon contracts and for torts, real or pretended, would be thus obtained, under which property would be seized, when the evidence of the transactions upon Page 95 U. S. 727 which they were founded, if they ever had any existence, had perished. Substituted service by publication, or in any other authorized form, may be sufficient to inform parties of the object of proceedings taken where property is once brought under the control of the court by seizure or some equivalent act. The law assumes that property is always in the possession of its owner, in person or by agent, and it proceeds upon the theory that its seizure will inform him not only that it is taken into the custody of the court, but that he must look to any proceedings authorized by law upon such seizure for its condemnation and sale. Such service may also be sufficient in cases where the object of the action is to reach and dispose of property in the State, or of some interest therein, by enforcing a contract or a lien respecting the same, or to partition it among different owners, or, when the public is a party, to condemn and appropriate it for a public purpose. In other words, such service may answer in all actions which are substantially proceedings in rem. But where the entire object of the action is to determine the personal rights and obligations of the defendants, that is, where the suit is merely in personam, constructive service in this form upon a nonresident is ineffectual for any purpose. Process from the tribunals of one State cannot run into another State, and summon parties there domiciled to leave its territory and respond to proceedings against them. Publication of process or notice within the State where the tribunal sits cannot create any greater obligation upon the nonresident to appear. Process sent to him out of the State, and process published within it, are equally unavailing in proceedings to establish his personal liability. The want of authority of the tribunals of a State to adjudicate upon the obligations of nonresidents, where they have no property within its limits, is not denied by the court below: but the position is assumed, that, where they have property within the State, it is immaterial whether the property is in the first instance brought under the control of the court by attachment or some other equivalent act, and afterwards applied by its judgment to the satisfaction of demands against its owner; or such demands be first established in a personal action, and Page 95 U. S. 728 the property of the nonresident be afterwards seized and sold on execution. But the answer to this position has already been given in the statement that the jurisdiction of the court to inquire into and determine his obligations at all is only incidental to its jurisdiction over the property. Its jurisdiction in that respect cannot be made to depend upon facts to be ascertained after it has tried the cause and rendered the judgment. If the judgment be previously void, it will not become valid by the subsequent discovery of property of the defendant, or by his subsequent acquisition of it. The judgment, if void when rendered, will always remain void; it cannot occupy the doubtful position of being valid if property be found, and void if there be none. Even if the position assumed were confined to cases where the nonresident defendant possessed property in the State at the commencement of the action, it would still make the validity of the proceedings and judgment depend upon the question whether, before the levy of the execution, the defendant had or had not disposed of the property. If, before the levy, the property should be sold, then, according to this position, the judgment would not be binding. This doctrine would introduce a new element of uncertainty in judicial proceedings. The contrary is the law: the validity of every judgment depends upon the jurisdiction of the court before it is rendered, not upon what may occur subsequently. In Webster v. Reid, reported in 11th of Howard, the plaintiff claimed title to land sold under judgments recovered in suits brought in a territorial court of Iowa, upon publication of notice under a law of the territory, without service of process; and the court said: "These suits were not a proceeding in rem against the land, but were in personam against the owners of it. Whether they all resided within the territory or not does not appear, nor is it a matter of any importance. No person is required to answer in a suit on whom process has not been served, or whose property has not been attached. In this case, there was no personal notice, nor an attachment or other proceeding against the land, until after the judgments. The judgments, therefore, are nullities, and did not authorize the executions on which the land was sold. " Page 95 U. S. 729 The force and effect of judgments rendered against nonresidents without personal service of process upon them, or their voluntary appearance, have been the subject of frequent consideration in the courts of the United States and of the several States, as attempts have been made to enforce such judgments in States other than those in which they were rendered, under the provision of the Constitution requiring that "full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State;" and the act of Congress providing for the mode of authenticating such acts, records, and proceedings, and declaring that, when thus authenticated, "they shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are or shall or taken." In the earlier cases, it was supposed that the act gave to all judgments the same effect in other States which they had by law in the State where rendered. But this view was afterwards qualified so as to make the act applicable only when the court rendering the judgment had jurisdiction of the parties and of the subject matter, and not to preclude an inquiry into the jurisdiction of the court in which the judgment was rendered, or the right of the State itself to exercise authority over the person or the subject matter. M'Elmoyle v. Cohen , 13 Pet. 312. In the case of D'Arcy v. Ketchum, reported in the 11th of Howard, this view is stated with great clearness. That was an action in the Circuit Court of the United States for Louisiana, brought upon a judgment rendered in New York under a State statute, against two joint debtors, only one of whom had been served with process, the other being a nonresident of the State. The Circuit Court held the judgment conclusive and binding upon the nonresident not served with process, but this Court reversed its decision, observing, that it was a familiar rule that countries foreign to our own disregarded a judgment merely against the person, where the defendant had not been served with process nor had a day in court; that national comity was never thus extended; that the proceeding was deemed an illegitimate assumption of power, and resisted as mere abuse; that no faith and credit or force and effect had been given to such judgments by any State of the Union, so far Page 95 U. S. 730 as known; and that the State courts had uniformly, and in many instances, held them to be void. "The international law," said the court, "as it existed among the States in 1790, was that a judgment rendered in one State, assuming to bind the person of a citizen of another, was void within the foreign State, when the defendant had not been served with process or voluntarily made defence, because neither the legislative jurisdiction nor that of courts of justice had binding force." And the Court held that the act of Congress did not intend to declare a new rule, or to embrace judicial records of this description. As was stated in a subsequent case, the doctrine of this Court is that the act "was not designed to displace that principle of natural justice which requires a person to have notice of a suit before he can be conclusively bound by its result, nor those rules of public law which protect persons and property within one State from the exercise of jurisdiction over them by another." The Lafayette Insurance Co. v. French et al. , 18 How. 404. This whole subject has been very fully and learnedly considered in the recent case of Thompson v. Whitman , 18 Wall. 457, where all the authorities are carefully reviewed and distinguished, and the conclusion above stated is not only reaffirmed, but the doctrine is asserted that the record of a judgment rendered in another State may be contradicted as to the facts necessary to give the court jurisdiction against its recital of their existence. In all the cases brought in the State and Federal courts, where attempts have been made under the act of Congress to give effect in one State to personal judgments rendered in another State against nonresidents, without service upon them, or upon substituted service by publication, or in some other form, it has been held, without an exception, so far as we are aware, that such judgments were without any binding force except as to property, or interests in property, within the State, to reach and affect which was the object of the action in which the judgment was rendered, and which property was brought under control of the court in connection with the process against the person. The proceeding in such cases, though in the form of a personal action, has been uniformly treated, where service was not obtained, and the party did not voluntarily Page 95 U. S. 731 appear, as effectual and binding merely as a proceeding in rem, and as having no operation beyond the disposition of the property, or some interest therein. And the reason assigned for this conclusion has been that which we have already stated -- that the tribunals of one State have no jurisdiction over persons beyond its limits, and can inquire only into their obligations to its citizens when exercising its conceded jurisdiction over their property within its limits. In Bissell v. Briggs, decided by the Supreme Court of Massachusetts as early as 1813, the law is stated substantially in conformity with these views. In that case, the court considered at length the effect of the constitutional provision, and the act of Congress mentioned, and after stating that, in order to entitle the judgment rendered in any court of the United States to the full faith and credit mentioned in the Constitution, the court must have had jurisdiction not only of the cause, but of the parties, it proceeded to illustrate its position by observing, that, where a debtor living in one State has goods, effects, and credits in another, his creditor living in the other State may have the property attached pursuant to its laws, and, on recovering judgment, have the property applied to its satisfaction, and that the party in whose hands the property was would be protected by the judgment in the State of the debtor against a suit for it, because the court rendering the judgment had jurisdiction to that extent; but that, if the property attached were insufficient to satisfy the judgment, and the creditor should sue on that judgment in the State of the debtor, he would fail because the defendant was not amenable to the court rendering the judgment. In other words, it was held that over the property within the State the court had jurisdiction by the attachment, but had none over his person, and that any determination of his liability, except so far as was necessary for the disposition of the property, was invalid. In Kilbourn v. Woodworth, 5 Johns. (N.Y.) 37, an action of debt was brought in New York upon a personal judgment recovered in Massachusetts. The defendant in that judgment was not served with process, and the suit was commenced by the attachment of a bedstead belonging to the defendant, accompanied with a summons to appear, served on his wife after she had left her place in Massachusetts. The court held that Page 95 U. S. 732 the attachment bound only the property attached as a proceeding in rem, and that it could not bind the defendant, observing, that to bind a defendant personally when he was never personally summoned or had notice of the proceeding would be contrary to the first principles of justice, repeating the language in that respect of Chief Justice DeGrey, used in the case of Fisher v. Lane, 3 Wils. 297, in 1772. See also Borden v. Fitch, 15 Johns. (N. Y.) 121, and the cases there cited, and Harris v. Hardeman et al. , 14 How. 334. To the same purport, decisions are found in all the State courts. In several of the cases, the decision has been accompanied with the observation that a personal judgment thus recovered has no binding force without the State in which it is rendered, implying that, in such State, it may be valid and binding. But if the court has no jurisdiction over the person of the defendant by reason of his nonresidence, and consequently no authority to pass upon his personal rights and obligations; if the whole proceeding, without service upon him or his appearance, is coram non judice and void; if to hold a defendant bound by such a judgment is contrary to the first principles of justice -- it is difficult to see how the judgment can legitimately have any force within the State. The language used can be justified only on the ground that there was no mode of directly reviewing such judgment or impeaching its validity within the State where rendered, and that therefore it could be called in question only when its enforcement was elsewhere attempted. In later cases, this language is repeated with less frequency than formerly, it beginning to be considered, as it always ought to have been, that a judgment which can be treated in any State of this Union as contrary to the first principles of justice, and as an absolute nullity, because rendered without any jurisdiction of the tribunal over the party, is not entitled to any respect in the State where rendered. Smith v. McCutchen, 38 Mo. 415; Darrance v. Preston, 18 Iowa, 396; Hakes v. Shupe, 27 id. 465; Mitchell's Administrator v. Gray, 18 Ind. 123. Be that as it may, the courts of the United States are not required to give effect to judgments of this character when any right is claimed under them. Whilst they are not foreign tribunals in their relations to the State courts, they are tribunals Page 95 U. S. 733 of a different sovereignty, exercising a distinct and independent jurisdiction, and are bound to give to the judgments of the State courts only the same faith and credit which the courts of another State are bound to give to them. Since the adoption of the Fourteenth Amendment to the Federal Constitution, the validity of such judgments may be directly questioned, and their enforcement in the State resisted, on the ground that proceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction do not constitute due process of law. Whatever difficulty may be experienced in giving to those terms a definition which will embrace every permissible exertion of power affecting private rights, and exclude such as is forbidden, there can be no doubt of their meaning when applied to judicial proceedings. They then mean a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights. To give such proceedings any validity, there must be a tribunal competent by its constitution -- that is, by the law of its creation -- to pass upon the subject matter of the suit; and if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the State, or his voluntary appearance. Except in cases affecting the personal status of the plaintiff and cases in which that mode of service may be considered to have been assented to in advance, as hereinafter mentioned, the substituted service of process by publication, allowed by the law of Oregon and by similar laws in other States, where actions are brought against nonresidents, is effectual only where, in connection with process against the person for commencing the action, property in the State is brought under the control of the court, and subjected to its disposition by process adapted to that purpose, or where the judgment is sought as a means of reaching such property or affecting some interest therein; in other words, where the action is in the nature of a proceeding in rem. As stated by Cooley in his Treatise on Constitutional Limitations 405, for any other purpose than to subject the property of a nonresident to valid claims against Page 95 U. S. 734 him in the State, "due process of law would require appearance or personal service before the defendant could be personally bound by any judgment rendered." It is true that, in a strict sense, a proceeding in rem is one taken directly against property, and has for its object the disposition of the property, without reference to the title of individual claimants; but, in a larger and more general sense, the terms are applied to actions between parties where the direct object is to reach and dispose of property owned by them, or of some interest therein. Such are cases commenced by attachment against the property of debtors, or instituted to partition real estate, foreclose a mortgage, or enforce a lien. So far as they affect property in the State, they are substantially proceedings in rem in the broader sense which we have mentioned. It is hardly necessary to observe that, in all we have said, we have had reference to proceedings in courts of first instance, and to their jurisdiction, and not to proceedings in an appellate tribunal to review the action of such courts. The latter may be taken upon such notice, personal or constructive, as the State creating the tribunal may provide. They are considered as rather a continuation of the original litigation than the commencement of a new action. Nations et al. v. Johnson et al. , 24 How. 195. It follows from the views expressed that the personal judgment recovered in the State court of Oregon against the plaintiff herein, then a nonresident of the State, was without any validity, and did not authorize a sale of the property in controversy. To prevent any misapplication of the views expressed in this opinion, it is proper to observe that we do not mean to assert by anything we have said that a State may not authorize proceedings to determine the status of one of its citizens towards a nonresident which would be binding within the State, though made without service of process or personal notice to the nonresident. The jurisdiction which every State possesses to determine the civil status and capacities of all its inhabitants involves authority to prescribe the conditions on which proceedings affecting them may be commenced and carried on within its territory. The State, for example, has absolute Page 95 U. S. 735 right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved. One of the parties guilty of acts for which, by the law of the State, a dissolution may be granted may have removed to a State where no dissolution is permitted. The complaining party would, therefore, fail if a divorce were sought in the State of the defendant; and if application could not be made to the tribunals of the complainant's domicile in such case, and proceedings be there instituted without personal service of process or personal notice to the offending party, the injured citizen would be without redress. Bish. Marr. and Div., sect. 156. Neither do we mean to assert that a State may not require a nonresident entering into a partnership or association within its limits, or making contracts enforceable there, to appoint an agent or representative in the State to receive service of process and notice in legal proceedings instituted with respect to such partnership, association, or contracts, or to designate a place where such service may be made and notice given, and provide, upon their failure, to make such appointment or to designate such place that service may be made upon a public officer designated for that purpose, or in some other prescribed way, and that judgments rendered upon such service may not be binding upon the nonresidents both within and without the State. As was said by the Court of Exchequer in Vallee v. Dumergue, 4 Exch. 290, "It is not contrary to natural justice that a man who has agreed to receive a particular mode of notification of legal proceedings should be bound by a judgment in which that particular mode of notification has been followed, even though he may not have actual notice of them." See also The Lafayette Insurance Co. v. French et al. , 18 How. 404, and Gillespie v. Commercial Mutual Marine Insurance Co., 12 Gray (Mass.), 201. Nor do we doubt that a State, on creating corporations or other institutions for pecuniary or charitable purposes, may provide a mode in which their conduct may be investigated, their obligations enforced, or their charters revoked, which shall require other than personal service upon their officers or members. Parties becoming members of such corporations or institutions would hold their Page 95 U. S. 736 interest subject to the conditions prescribed by law. Copin v. Adamson, Law Rep. 9 Ex. 345. In the present case, there is no feature of this kind, and consequently no consideration of what would be the effect of such legislation in enforcing the contract of a nonresident can arise. The question here respects only the validity of a money judgment rendered in one State in an action upon a simple contract against the resident of another without service of process upon him or his appearance therein. Judgment affirmed. MR. JUSTICE HUNT dissenting. I am compelled to dissent from the opinion and judgment of the court, and, deeming the question involved to be important, I take leave to record my views upon it. The judgment of the court below was placed upon the ground that the provisions of the statute were not complied with. This is of comparatively little importance, as it affects the present case only. The judgment of this Court is based upon the theory that the legislature had no power to pass the law in question; that the principle of the statute is vicious, and every proceeding under it void. It, therefore, affects all like cases, past and future, and in every State. The precise case is this: a statute of Oregon authorizes suits to be commenced by the service of a summons. In the case of a nonresident of the State, it authorizes the service of the summons to be made by publication for not less than six weeks, in a newspaper published in the county where the action is commenced. A copy of the summons must also be sent by mail, directed to the defendant at his place of residence, unless it be shown that the residence is not known and cannot be ascertained. It authorizes a judgment and execution to be obtained in such proceeding. Judgment in a suit commenced by one Mitchell in the Circuit Court of Multnomah County, where the summons was thus served, was obtained against Neff, the present plaintiff, and the land in question, situate in Multnomah County, was bought by the defendant Pennoyer at a sale upon the judgment in such suit. This court now holds that, by reason of the absence of a personal service of Page 95 U. S. 737 the summons on the defendant, the Circuit Court of Oregon had no jurisdiction, its judgment could not authorize the sale of land in said county, and, as a necessary result, a purchaser of land under it obtained no title; that, as to the former owner, it is a case of depriving a person of his property without due process of law. In my opinion, this decision is at variance with the long established practice under the statutes of the States of this Union, is unsound in principle, and, I fear, may be disastrous in its effects. It tends to produce confusion in titles which have been obtained under similar statutes in existence for nearly a century; it invites litigation and strife, and overthrows a well settled rule of property. The result of the authorities on the subject, and the sound conclusions to be drawn from the principles which should govern the decision, as I shall endeavor to show, are these:-- 1. A sovereign State must necessarily have such control over the real and personal property actually being within its limits, as that it may subject the same to the payment of debts justly due to its citizens. 2. This result is not altered by the circumstance that the owner of the property is nonresident, and so absent from the State that legal process cannot be served upon him personally. 3. Personal notice of a proceeding by which title to property is passed is not indispensable; it is competent to the State to authorize substituted service by publication or otherwise, as the commencement of a suit against nonresidents, the judgment in which will authorize the sale of property in such State. 4. It belongs to the legislative power of the State to determine what shall be the modes and means proper to be adopted to give notice to an absent defendant of the commencement of a suit; and if they are such as are reasonably likely to communicate to him information of the proceeding against him, and are in good faith designed to give him such information, and an opportunity to defend is provided for him in the event of his appearance in the suit, it is not competent to the judiciary to declare that such proceeding is void as not being by due process of law. 5. Whether the property of such nonresident shall be seized Page 95 U. S. 738 upon attachment as the commencement of a suit which shall be carried into judgment and execution, upon which it shall then be sold, or whether it shall be sold upon an execution and judgment without such preliminary seizure, is a matter not of constitutional power, but of municipal regulation only. To say that a sovereign State has the power to ordain that the property of nonresidents within its territory may be subjected to the payment of debts due to its citizens, if the property is levied upon at the commencement of a suit, but that it has not such power if the property is levied upon at the end of the suit, is a refinement and a depreciation of a great general principle that, in my judgment, cannot be sustained. A reference to the statutes of the different States, and to the statutes of the United States, and to the decided cases, and a consideration of the principles on which they stand, will more clearly exhibit my view of the question. The statutes are of two classes: first, those which authorize the commencement of actions by publication, accompanied by an attachment which is levied upon property, more or less, of an absent debtor; second, those giving the like mode of commencing a suit without an attachment. The statute of Oregon relating to publication of summons, supra, p. 95 U. S. 718 , under which the question arises, is nearly a transcript of a series of provisions contained in the New York statute, adopted thirty years since. The latter authorizes the commencement of a suit against a nonresident by the publication of an order for his appearance, for a time not less than six weeks, in such newspapers as shall be most likely to give notice to him, and the deposit of a copy of the summons and complaint in the post office, directed to him at his residence, if it can be ascertained; and provides for the allowance to defend the action before judgment, and within seven years after its rendition, upon good cause shown, and that, if the defence be successful, restitution shall be ordered. It then declares: "But the title to property sold under such judgment to a purchaser in good faith shall not be thereby affected." Code, sects. 34, 35; 5 Edm.Rev.Stat. of N.Y., pp. 37-39. Provisions similar in their effect, in authorizing the commencement of suits by attachment against absent debtors, in Page 95 U. S. 739 which all of the property of the absent debtor, real and personal, not merely that seized upon the attachment, is placed under the control of trustees, who sell it for the benefit of all the creditors, and make just distribution thereof, conveying absolute title to the property sold have been upon the statute book of New York for more than sixty years. 2 id., p. 2 and following; 1 Rev.Laws, 1813, p. 157. The statute of New York, before the Code, respecting proceedings in chancery where absent debtors are parties, had long been in use in that State, and was adopted in all cases of chancery jurisdiction. Whenever a defendant resided out of the State, his appearance might be compelled by publication in the manner pointed out. A decree might pass against him, and performance be compelled by sequestration of his real or personal property, or by causing possession of specific property to be delivered, where that relief is sought. T he relief was not confined to cases of mortgage foreclosure, or where there was a specific claim upon the property, but included cases requiring the payment of money as well. 2 Edm.Rev.Stat. N.Y., pp. 193-195; 186, m. I doubt not that many valuable titles are now held by virtue of the provisions of these statutes. The statute of California authorizes the service of a summons on a nonresident defendant by publication, permitting him to come in and defend upon the merits within one year after the entry of judgment. Code, sects. 10,412, 10,473. In its general character, it is like the statutes of Oregon and New York already referred to. The Code of Iowa, sect. 2618, that of Nevada, sect. 1093, and that of Wisconsin, are to the same general effect. The Revised Statutes of Ohio, sects. 70, 75, 2 Swan & Critchfield, provide for a similar publication, and that the defendant may come in to defend within five years after the entry of the judgment, but that the title to property held by any purchaser in good faith under the judgment shall not be affected thereby. The attachment laws of New Jersey, Nixon Dig. (4th ed.), p. 55, are like those of New York already quoted, by which title may be transferred to all the property of a nonresident debtor. And the provisions of the Pennsylvania statute regulating Page 95 U. S. 740 proceedings in equity, Brightly's Purden's Dig., p. 5988, sects. 51, 52, give the same authority in substance, and the same result is produced as under the New York statute. Without going into a wearisome detail of the statutes of the various States, it is safe to say that nearly every State in the Union provides a process by which the lands and other property of a nonresident debtor may be subjected to the payment of his debts, through a judgment or decree against the owner, obtained upon a substituted service of the summons or writ commencing the action. The principle of substituted service is also a rule of property under the statutes of the United States. The act of Congress "to amend the law of the District of Columbia in relation to judicial proceedings therein," approved Feb. 23, 1867, 14 Stat. 403, contains the same general provisions. It enacts (sect. 7) that publication may be substituted for personal service when the defendant cannot be found in suits for partition, divorce, by attachment, for the foreclosure of mortgages and deeds of trust, and for the enforcement of mechanics' liens and all other liens against real or personal property, and in all actions at law or in equity having for their immediate object the enforcement or establishment of any lawful right, claim, or demand to or against any real or personal property within the jurisdiction of the court. A following section points out the mode of proceeding, and closes in these words: "The decree, besides subjecting the thing upon which the lien has attached to the satisfaction of the plaintiff's demand against the defendant, shall adjudge that the plaintiff recover his demand against the defendant, and that he may have execution thereof as at law." Sect. 10. A formal judgment against the debtor is thus authorized by means of which any other property of the defendant within the jurisdiction of the court, in addition to that which is the subject of the lien, may be sold, and the title transferred to the purchaser. All these statutes are now adjudged to be unconstitutional and void. The titles obtained under them are not of the value Page 95 U. S. 741 of the paper on which they are recorded, except where a preliminary attachment was issued. Some of the statutes and several of the authorities I cite go further than the present case requires. In this case, property lying in the State where the suit was brought, owned by the nonresident debtor, was sold upon the judgment against him, and it is on the title to that property that the controversy turns. The question whether, in a suit commenced like the present one, a judgment can be obtained which, if sued upon in another State, will be conclusive against the debtor, is not before us; nor does the question arise as to the faith and credit to be given in one State to a judgment recovered in another. The learning on that subject is not applicable. The point is simply whether land lying in the same State may be subjected to process at the end of a suit thus commenced. It is here necessary only to maintain the principle laid down by Judge Cooley in his work on Constitutional Limitations, p. 404, and cited by Mr. Justice Field in Galpin v. Page, 3 Sawyer 93, in these words: "The fact that process was not personally served is a conclusive objection to the judgment as a personal claim, unless the defendant caused his appearance to be entered in the attachment proceedings. Where a party has property in a State, and resides elsewhere, his property is justly subject to all valid claims that may exist against him there; but, beyond this, due process of law would require appearance or personal service before the defendant could be personally bound by any judgment rendered." The learned author does not make it a condition that there should be a preliminary seizure of the property by attachment; he lays down the rule that all a person's property in a State may be subjected to all valid claims there existing against him. The objection now made that suits commenced by substituted service, as by publication, and judgments obtained without actual notice to the debtor, are in violation of that constitutional provision that no man shall be deprived of his property "without due process of law," has often been presented. In Matter of the Empire City Bank, 18 N.Y. 199, which Page 95 U. S. 742 was a statutory proceeding to establish and to enforce the responsibility of the stockholders of a banking corporation, and the proceedings in which resulted in a personal judgment against the stockholders for the amount found due, the eminent and learned Judge Denio, speaking as the organ of the Court of Appeals, says: "The notice of hearing is to be personal, or by service at the residence of the parties who live in the county, or by advertisement as to others. It may therefore happen that some of the persons who are made liable will not have received actual notice, and the question is whether personal service of process or actual notice to the party is essential to constitute due process of law. We have not been referred to any adjudication holding that no man's right of property can be affected by judicial proceedings unless he have personal notice. It may be admitted that a statute which should authorize any debt or damages to be adjudged against a person upon a purely ex parte proceeding, without a pretence of notice or any provision for defending, would be a violation of the Constitution, and be void; but where the legislature has prescribed a kind of notice by which it is reasonably probable that the party proceeded against will be apprised of what is going on against him, and an opportunity is afforded him to defend, I am of the opinion that the courts have not the power to pronounce the proceeding illegal. The legislature has uniformly acted upon that understanding of the Constitution." Numerous provisions of the statutes of the State are commented upon, after which he proceeds: "Various prudential regulations are made with respect to these remedies; but it may possibly happen, notwithstanding all these precautions, that a citizen who owes nothing, and has done none of the acts mentioned in the statute, may be deprived of his estate without any actual knowledge of the process by which it has been taken from him. If we hold, as we must in order to sustain this legislation, that the Constitution does not positively require personal notice in order to constitute a legal proceeding due process of law, it then belongs to the legislature to determine whether the case calls for this kind of exceptional legislation, and what manner of constructive notice shall be sufficient to reasonably apprise the party proceeded against of the legal steps which are taken against him. " Page 95 U. S. 743 In Happy v. Mosher, 48 id. 313, the court say: "An approved definition of due process of law is 'law in its regular administration through courts of justice.' 2 Kent Com. 13. It need not be a legal proceeding according to the course of the common law, neither must there be personal notice to the party whose property is in question. It is sufficient if a kind of notice is provided by which it is reasonably probable that the party proceeded against will be apprised of what is going on against him, and an opportunity afforded him to defend." The same language is used in Westervelt v. Gregg, 12 id. 202, and in Campbell v. Evans, 45 id. 356. Campbell v. Evans and The Empire City Bank are cases not of proceedings against property to enforce a lien or claim, but, in each of them, a personal judgment in damages was rendered against the party complaining. It is undoubtedly true, that, in many cases where the question respecting due process of law has arisen, the case in hand was that of a proceeding in rem. It is true also, as is asserted, that the process of a State cannot be supposed to run beyond its own territory. It is equally true, however, that, in every instance where the question has been presented, the validity of substituted service, which is used to subject property within the State belonging to a nonresident to a judgment obtained by means thereof has been sustained. I have found no case in which it is adjudged that a statute must require a preliminary seizure of such property as necessary to the validity of the proceeding against it, or that there must have been a previous specific lien upon it; that is, I have found no case where such has been the judgment of the court upon facts making necessary the decision of the point. On the contrary, in the case of the attachment laws of New York and of New Jersey, which distribute all of the nonresident's property, not merely that levied on by the attachment, and in several of the reported cases already referred to, where the judgment was sustained, neither of these preliminary facts existed. The case of Galpin v. Page , reported in 18 Wall. 350 and again in 3 Sawyer 93, is cited in hostility to the views I have expressed. There may be general expressions which will justify Page 95 U. S. 744 this suggestion, but the judgment is in harmony with those principles. In the case as reported in this Court, it was held that the title of the purchaser under a decree against a nonresident infant was invalid, for two reasons: 1st, that there was no jurisdiction of the proceeding under the statute of California, on account of the entire absence of an affidavit of nonresidence, and of diligent inquiry for the residence of the debtor; 2d, the absence of any order for publication in Eaton's case -- both of which are conditions precedent to the jurisdiction of the court to take any action on the subject. The title was held void, also, for the reason that the decree under which it was obtained had been reversed in the State court, and the title was not taken at the sale, nor held then by a purchaser in good faith, the purchase being made by one of the attorneys in the suit, and the title being transferred to his law partner after the reversal of the decree. The court held that there was a failure of jurisdiction in the court under which the plaintiff claimed title, and that he could not recover. The learned justice who delivered the opinion in the Circuit Court and in this Court expressly affirms the authority of a State over persons not only, but property as well, within its limits, and this by means of a substituted service. The judgment so obtained, he insists, can properly be used as a means of reaching property within the State, which is thus brought under the control of the court and subjected to its judgment. This is the precise point in controversy in the present action. The case of Cooper v. Reynolds , 10 Wall. 308, is cited for the same purpose. There, the judgment of the court below, refusing to give effect to a judgment obtained upon an order of publication against a nonresident, was reversed in this Court. The suit was commenced, or immediately accompanied (it is not clear which), by an attachment which was levied upon the real estate sold, and for the recovery of which this action was brought. This Court sustained the title founded upon the suit commenced against the nonresident by attachment. In the opinion delivered in that case, there may be remarks, by way of argument or illustration, tending to show that a judgment obtained in a suit not commenced by the levy of an attachment will not give title to land purchased under it. They are, Page 95 U. S. 745 however, extrajudicial, the decision itself sustaining the judgment obtained under the State statute by publication. Webster v. Reid , 11 How. 437, is also cited. There, the action involved the title to certain lands in the State of Iowa, being lands formerly belonging to the half-breeds of the Sac and Fox tribes; and title was claimed against the Indian right under the statutes of June 2, 1838, and January, 1839. By these statutes, commissioners were appointed who were authorized to hear claims for accounts against the Indians, and commence actions for the same, giving a notice thereof of eight weeks in the Iowa "Territorial Gazette," and to enter up judgments which should be a lien on the lands. It was provided that it should not be necessary to name the defendants in the suits, but the words "owners of the half-breed lands lying in Lee County" should be a sufficient designation of the defendants in such suits; and it provided that the trials should be by the court, and not by a jury. It will be observed that the lands were not only within the limits of the territory of Iowa, but that all the Indians who were made defendants under the name mentioned were also residents of Iowa, and, for aught that appears to the contrary, of the very county of Lee in which the proceeding was taken. Nonresidence was not a fact in the case. Moreover, they were Indians, and, presumptively, not citizens of any State, and the judgments under which the lands were sold were rendered by the commissioners for their own services under the act. The court found abundant reasons, six in number, for refusing to sustain the title thus obtained. The act was apparently an attempt dishonestly to obtain the Indian title, and not intended to give a substitution for a personal service which would be likely, or was reasonably designed, to reach the persons to be affected. The case of Voorhees v. Jackson , 10 Pet. 449, affirmed the title levied under the attachment laws of Ohio, and laid down the principle of assuming that all had been rightly done by a court having general jurisdiction of the subject matter. In Cooper v. Smith, 25 Iowa, 269, it is said that where no process is served on the defendant, nor property attached, nor garnishee charged, nor appearance entered, a judgment based Page 95 U. S. 746 on a publication of the pendency of the suit will be void, and may be impeached, collaterally or otherwise, and forms no bar to a recovery in opposition to it, nor any foundation for a title claimed under it. The language is very general, and goes much beyond the requirement of the case, which was an appeal from a personal judgment obtained by publication against the defendant, and where, as the court say, the petition was not properly verified. All that the court decided was that this judgment should be reversed. This is quite a different question from the one before us. Titles obtained by purchase at a sale upon an erroneous judgment are generally good, although the judgment itself be afterwards reversed. McGoon v. Scales , 9 Wall. 311. In Darrance v. Preston, 18 Iowa, 396, the distinction is pointed out between the validity of a judgment as to the amount realized from the sale of property within the jurisdiction of the court and its validity beyond that amount. Picquet v. Swan, 5 Mas. 35; Bissell v. Briggs, 9 Mass. 462; Ewer v. Coffin, 1 Cush. (Mass.) 23, are cited, but neither of them in its facts touches the question before us. In Drake on Attachment, the rule is laid down in very general language; but none of the cases cited by him will control the present case. They are the following:-- Eaton v. Bridger, 33 N. H. 228, was decided upon the peculiar terms of the New Hampshire statute, which forbids the entry of a judgment unless the debtor was served with process, or actually appeared and answered in the suit. The court say the judgment was "not only unauthorized by law, but rendered in violation of its express provisions." Johnson v. Dodge was a proceeding in the same action to obtain a reversal on appeal of the general judgment, and did not arise upon a contest for property sold under the judgment. Carleton v. Washington Insurance Co., 35 id. 162, and Bruce v. Cloutman, 45 id. 37, are to the same effect and upon the same statute. Smith v. McCutchen, 38 Mo. 415, was a motion in the former suit to set aside the execution by a garnishee, and it was held that the statute was intended to extend to that class of cases. Abbott v. Shepard, 44 id. 273, is to the same effect, and is based upon Smith v. McCutchen, supra. Page 95 U. S. 747 So, in Eastman v. Wadleigh, 65 Me. 251, the question arose in debt on the judgment, not upon a holding of land purchased under the judgment. It was decided upon the express language of the statute of Maine, strongly implying the power of the legislature to make it otherwise, had they so chosen. It is said that the case where a preliminary seizure has been made, and jurisdiction thereby conferred, differs from that where the property is seized at the end of the action, in this: in the first case, the property is supposed to be so near to its owner that, if seizure is made of it, he will be aware of the fact, and have his opportunity to defend, and jurisdiction of the person is thus obtained. This, however, is matter of discretion and of judgment only. Such seizure is not in itself notice to the defendant, and it is not certain that he will by that means receive notice. Adopted as a means of communicating it, and although a very good means, it is not the only one, nor necessarily better than a publication of the pendency of the suit, made with an honest intention to reach the debtor. Who shall assume to say to the legislature that, if it authorizes a particular mode of giving notice to a debtor, its action may be sustained, but, if it adopts any or all others, its action is unconstitutional and void? The rule is universal that modes, means, questions of expediency or necessity are exclusively within the judgment of the legislature, and that the judiciary cannot review them. This has been so held in relation to a bank of the United States, to the legal tender act, and to cases arising under other provisions of the Constitution. In Jarvis v. Barrett, 14 Wis. 591, such is the holding. The court say: "The essential fact on which the publication is made to depend is property of the defendant in the State, and not whether it has been attached. . . . There is no magic about the writ [of attachment] which should make it the exclusive remedy. The same legislative power which devised it can devise some other, and declare that it shall have the same force and effect. The particular means to be used are always within the control of the legislature, so that the end be not beyond the scope of legislative power." If the legislature shall think that publication and deposit in the post office are likely to give the notice, there seems to be Page 95 U. S. 748 nothing in the nature of things to prevent their adoption in lieu of the attachment. The point of power cannot be thus controlled. That a State can subject land within its limits belonging to nonresident owners to debts due to its own citizens as it can legislate upon all other local matters -- that it can prescribe the mode and process by which it is to be reached -- seems to me very plain. I am not willing to declare that a sovereign State cannot subject the land within its limits to the payment of debts due to its citizens, or that the power to do so depends upon the fact whether its statute shall authorize the property to be levied upon at the commencement of the suit or at its termination. This is a matter of detail, and I am of opinion that, if reasonable notice be given, with an opportunity to defend when appearance is made, the question of power will be fully satisfied.

Here is a summary of the case verdict: In Pennoyer v. Neff, the U.S. Supreme Court ruled on the validity of personal judgments made by state courts against non-residents who were served through publication of summons but had no personal service of process and did not appear. The Court held that such judgments are invalid and that no title to property can be transferred through sales under these judgments. While states have the right to hold and appropriate property within their territory to satisfy claims of their citizens, they cannot run processes into other states to summon defendants. Substituted service by publication is acceptable when determining property rights, but not for personal rights and obligations. The Court also discussed the discretion of legislatures in devising means of giving notice to debtors, emphasizing that this is a matter of expediency and necessity within legislative judgment.

Lawsuits & Legal Procedures

Louisville & Nashville R. Co. v. Mottley

https://supreme.justia.com/cases/federal/us/211/149/

U.S. Supreme Court Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149 (1908) Louisville and Nashville Railroad Company v. Mottley No. 37 Argued October 13, 1908 Decided November 16, 1908 211 U.S. 149 APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF KENTUCKY Syllabus The jurisdiction of the circuit court is defined and limited by statute; and, even if not questioned by either party, this Court will, of its own motion, see to it that such jurisdiction is not exceeded. A suit arises under the Constitution and laws of the United States, so as to give the circuit court jurisdiction on that ground, only when plaintiff's statement of his own cause is based thereon; that jurisdiction cannot be based on an alleged anticipated defense which may Page 211 U. S. 150 be set up and which is invalid under some law or provision of the Constitution of the United States. The circuit court has no jurisdiction, in the absence of diverse citizenship, of a suit brought against a railroad corporation to enforce an alleged contract for an annual pass because, as stated in the bill, the refusal is based solely on the anti-pass provisions of the Hepburn Interstate Commerce Act of June 29, 1906, c. 3591, 34 Stat. 584. The practice in such cases is to reverse the judgment and remit the case to the Circuit Court with instructions to dismiss the suit for want of jurisdiction. The appellees (husband and wife), being residents and citizens of Kentucky, brought this suit in equity in the Circuit Court of the United States for the Western District of Kentucky against the appellant, a railroad company and a citizen of the same state. The object of the suit was to compel the specific performance of the following contract: "Louisville, Ky., Oct. 2nd 1871" "The Louisville & Nashville Railroad Company, in consideration that E. L. Mottley and wife, Annie E. Mottley, have this day released company from all damages or claims for damages for injuries received by them on the 7th of September, 1871, in consequence of a collision of trains on the railroad of said company at Randolph's Station, Jefferson County, Kentucky, hereby agrees to issue free passes on said railroad and branches now existing or to exist, to said E. L. & Annie E. Mottley for the remainder of the present year, and thereafter to renew said passes annually during the lives of said Mottley and wife or either of them." The bill alleged that, in September, 1871, plaintiffs, while passengers upon the defendant railroad, were injured by the defendant's negligence, and released their respective claims for damages in consideration of the agreement for transportation during their lives, expressed in the contract. It is alleged that the contract was performed by the defendant up to January 1, 1907, when the defendant declined to renew the passes. The bill then alleges that the refusal to comply with the contract Page 211 U. S. 151 was based solely upon that part of the Act of Congress of June 29, 1906, 34 Stat. 584, c. 3591, which forbids the giving of free passes or free transportation. The bill further alleges: first, that the act of Congress referred to does not prohibit the giving of passes under the circumstances of this case, and second, that, if the law is to be construed as prohibiting such passes, it is in conflict with the Fifth Amendment of the Constitution, because it deprives the plaintiffs of their property without due process of law. The defendant demurred to the bill. The judge of the circuit court overruled the demurrer, entered a decree for the relief prayed for, and the defendant appealed directly to this Court. MR. JUSTICE MOODY, after making the foregoing statement, delivered the opinion of the Court. Two questions of law were raised by the demurrer to the bill, were brought here by appeal, and have been argued before us. They are, first, whether that part of the Act of Congress of June 29, 1906, 34 Stat. 584, c. 3591, which forbids the giving of free passes or the collection of any different compensation for transportation of passengers than that specified in the tariff filed makes it unlawful to perform a contract for transportation of persons who, in good faith, before the passage of the act, had accepted such contract in satisfaction of a valid cause of action against the railroad; and, second, whether the statute, if it should be construed to render such a contract unlawful, is in Page 211 U. S. 152 violation of the Fifth Amendment of the Constitution of the United States. We do not deem it necessary, however, to consider either of these questions, because, in our opinion, the court below was without jurisdiction of the cause. Neither party has questioned that jurisdiction, but it is the duty of this Court to see to it that the jurisdiction of the circuit court, which is defined and limited by statute, is not exceeded. This duty we have frequently performed of our own motion. Mansfield &c. Railway Company v. Swan, 111 U. S. 379 , 111 U. S. 382 ; King Bridge Company v. Otoe County, 120 U. S. 225 ; Blacklock v. Small, 127 U. S. 96 , 127 U. S. 105 ; Cameron v. Hodges, 127 U. S. 322 , 127 U. S. 326 ; Metcalf v. Watertown, 128 U. S. 586 , 128 U. S. 587 ; Continental National Bank v. Buford, 191 U. S. 120 . There was no diversity of citizenship, and it is not and cannot be suggested that there was any ground of jurisdiction except that the case was a "suit . . . arising under the Constitution or laws of the United States." 25 Stat. 434, c. 866. It is the settled interpretation of these words, as used in this statute, conferring jurisdiction, that a suit arises under the Constitution and laws of the United States only when the plaintiff's statement of his own cause of action shows that it is based upon those laws or that Constitution. It is not enough that the plaintiff alleges some anticipated defense to his cause of action, and asserts that the defense is invalidated by some provision of the Constitution of the United States. Although such allegations show that very likely, in the course of the litigation, a question under the Constitution would arise, they do not show that the suit -- that is, the plaintiff's original cause of action -- arises under the Constitution. In Tennessee v. Union & Planters' Bank, 152 U. S. 454 , the plaintiff, the State of Tennessee, brought suit in the circuit court of the United States to recover from the defendant certain taxes alleged to be due under the laws of the state. The plaintiff alleged that the defendant claimed an immunity from the taxation by virtue of its charter, and that therefore the tax was void because in violation of the provision of the Constitution of the United Page 211 U. S. 153 states, which forbids any state from passing a law impairing the obligation of contracts. The cause was held to be beyond the jurisdiction of the circuit court, the court saying, by Mr. Justice Gray (p. 152 U. S. 464 ): "A suggestion of one party that the other will or may set up a claim under the Constitution or laws of the United States does not make the suit one arising under that Constitution or those laws." Again, in Boston & Montana Consolidated Copper & Silver Mining Company v. Montana Ore Purchasing Company, 188 U. S. 632 , the plaintiff brought suit in the circuit court of the United States for the conversion of copper ore and for an injunction against its continuance. The plaintiff then alleged, for the purpose of showing jurisdiction, in substance, that the defendant would set up in defense certain laws of the United States. The cause was held to be beyond the jurisdiction of the circuit court, the Court saying, by MR. JUSTICE PECKHAM (pp. 188 U. S. 638 -639): "It would be wholly unnecessary and improper, in order to prove complainant's cause of action, to go into any matters of defense which the defendants might possibly set up, and then attempt to reply to such defense, and thus, if possible, to show that a federal question might or probably would arise in the course of the trial of the case. To allege such defense and then make an answer to it before the defendant has the opportunity to itself plead or prove its own defense is inconsistent with any known rule of pleading, so far as we are aware, and is improper." "The rule is a reasonable and just one that the complainant in the first instance shall be confined to a statement of its cause of action, leaving to the defendant to set up in his answer what his defense is, and, if anything more than a denial of complainant's cause of action, imposing upon the defendant the burden of proving such defense." "Conforming itself to that rule, the complainant would not, in the assertion or proof of its cause of action, bring up a single federal question. The presentation of its cause of action would not show that it was one arising under the Constitution or laws of the United States. " Page 211 U. S. 154 "The only way in which it might be claimed that a federal question was presented would be in the complainant's statement of what the defense of defendants would be, and complainant's answer to such defense. Under these circumstances, the case is brought within the rule laid down in Tennessee v. Union & Planters' Bank, supra. That case has been cited and approved many times since." The interpretation of the act which we have stated was first announced in Metcalf v. Watertown, 128 U. S. 286 , and has since been repeated and applied in Colorado Central Consolidating Mining Company v. Turck, 150 U. S. 138 , 150 U. S. 142 ; Tennessee v. Union & Planters' Bank, 152 U. S. 454 , 152 U. S. 459 ; Chappell v. Waterworth, 155 U. S. 102 , 155 U. S. 107 ; Postal Telegraph Cable Company v. Alabama, 155 U. S. 482 , 155 U. S. 487 ; Oregon Short Line & Utah Northern Railway Company v. Skottowe, 162 U. S. 490 , 162 U. S. 494 ; Walker v. Collins, 167 U. S. 57 , 167 U. S. 59 ; Muse v. Arlington Hotel Co., 168 U. S. 430 , 168 U. S. 436 ; Galveston &c. Railway v. Texas, 170 U. S. 226 , 170 U. S. 236 ; Third Street & Suburban Railway Company v. Lewis, 173 U. S. 457 , 173 U. S. 460 ; Florida Central & Peninsular Railroad Company v. Bell, 176 U. S. 321 , 176 U. S. 327 ; Houston & Texas Central Railroad Company v. Texas, 177 U. S. 66 , 177 U. S. 78 ; Arkansas v. Kansas & Texas Coal Company, 183 U. S. 185 , 183 U. S. 188 ; Vicksburg Waterworks Company v. Vicksburg, 185 U. S. 65 , 185 U. S. 68 ; Boston & Montana Consolidated Copper & Silver Mining Company v. Montana Ore Purchasing Co., 188 U. S. 632 , 188 U. S. 639 ; Minnesota v. Northern Securities Company, 194 U. S. 48 , 194 U. S. 63 ; Joy v. City of St. Louis, 201 U. S. 332 , 201 U. S. 340 ; Devine v. Los Angeles, 202 U. S. 313 , 202 U. S. 334 . The application of this rule to the case at bar is decisive against the jurisdiction of the circuit court. It is ordered that the Judgment be reversed, and the case remitted to the circuit court with instructions to dismiss the suit for want of jurisdiction.

The Supreme Court reversed the lower court's decision and ordered the case to be dismissed for lack of jurisdiction. The Court held that the case did not arise under the Constitution or laws of the United States, as the plaintiffs' claim was based solely on a contract dispute with the railroad company, and the anticipated defense related to the Hepburn Interstate Commerce Act was not sufficient to establish federal jurisdiction.

Lawsuits & Legal Procedures

Hess v. Pawloski

https://supreme.justia.com/cases/federal/us/274/352/

U.S. Supreme Court Hess v. Pawloski, 274 U.S. 352 (1927) Hess v. Pawloski No. 263 Argued April 18, 1927 Decided May 16, 1927 274 U.S. 352 ERROR TO THE SUPERIOR COURT OF WORCESTER COUNTY, MASSACHUSETTS Syllabus Massachusetts Gen. Ls., c. 90, as amended by Stat. 1923, c. 431, § 2, which declares that use of the state's highways by a nonresident motorist shall be deemed equivalent to an appointment by him of the registrar as his attorney upon whom process may be served Page 274 U. S. 353 in any action growing out of any accident or collision in which the nonresident may be involved while operating a motor vehicle upon such highway, and which provides for service in such case by leaving a copy of the process and a fee with the registrar or in his office, but conditions the sufficiency of the service upon the sending of notice of it forthwith and a copy of the process to the defendant by registered mail and upon his actually receiving and receipting for the same, and which allows the nonresident when so served such continuances as may be necessary to afford him a reasonable opportunity to defend the action, held not in conflict with the Due Process Clause of the Fourteenth Amendment. Kane v. New Jersey, 242 U. S. 160 . P. 274 U. S. 355 . 20 Mass. 22, 253 Mass. 478 affirmed. Error to a judgment of the Superior Court of Worcester County, Massachusetts, entered on rescript from the Supreme Judicial Court, sustaining a verdict for damages in an action for personal injuries inflicted on Pawloski, the plaintiff, by the negligent driving of a motor vehicle, by Hess, nonresident defendant, on a Massachusetts highway. MR. JUSTICE BUTLER delivered the opinion of the Court. This action was brought by defendant in error to recover damages for personal injuries. The declaration alleged that plaintiff in error negligently and wantonly drove a motor vehicle on a public highway in Massachusetts, and that, by reason thereof, the vehicle struck and injured defendant in error. Plaintiff in error is a resident of Pennsylvania. No personal service was made on him, and no property belonging to him was attached. The service of process was made in compliance with c. Page 274 U. S. 354 90, General Laws of Massachusetts, as amended by Stat. 1923, c. 431, § 2, the material parts of which follow: "The acceptance by a nonresident of the rights and privileges conferred by section three or four, as evidence by his operating a motor vehicle thereunder, or the operation by a nonresident of a motor vehicle on a public way in the commonwealth other than under said sections, shall be deemed equivalent to an appointment by such nonresident of the registrar or his successor in office to be his true and lawful attorney upon whom may be served all lawful processes in any action or proceeding against him growing out of any accident or collision in which said nonresident may be involved while operating a motor vehicle on such a way, and said acceptance or operation shall be a signification of his agreement that any such process against him which is so served shall be of the same legal force and validity as if served on him personally. Service of such process shall be made by leaving a copy of the process with a fee of two dollars in the hands of the registrar, or in his office, and such service shall be sufficient service upon the said nonresident, provided that notice of such service and a copy of the process are forthwith sent by registered mail by the plaintiff to the defendant, and the defendant's return receipt and the plaintiff's affidavit of compliance herewith are appended to the writ and entered with the declaration. The court in which the action is pending may order such continuances as may be necessary to afford the defendant reasonable opportunity to defend the action." Plaintiff in error appeared specially for the purpose of contesting jurisdiction, and filed an answer in abatement and moved to dismiss on the ground that the service of process, if sustained, would deprive him of his property without due process of law in violation of the Fourteenth Amendment. The court overruled the answer in abatement and denied the motion. The Supreme Judicial Page 274 U. S. 355 Court held the statute to be a valid exercise of the police power, and affirmed the order. Pawloski v. Hess, 250 Mass. 22. At the trial, the contention was renewed, and again denied. Plaintiff in error excepted. The jury returned a verdict for defendant in error. The exceptions were overruled by the Supreme Judicial Court. Pawloski v. Hess, 253 Mass. 478. Thereupon the superior court entered judgment. The writ of error was allowed by the chief justice of that court. The question is whether the Massachusetts enactment contravenes the due process clause of the Fourteenth Amendment. The process of a court of one state cannot run into another and summon a party there domiciled to respond to proceedings against him. Notice sent outside the state to a nonresident is unavailing to give jurisdiction in an action against him personally for money recovery. Pennoyer v. Neff, 95 U. S. 741 . There must be actual service within the state of notice upon him or upon some one authorized to accept service for him. Goldey v. Morning News, 156 U. S. 518 . A personal judgment rendered against a nonresident, who has neither been served with process nor appeared in the suit, is without validity. McDonald v. Mabee, 243 U. S. 90 . The mere transaction of business in a state by nonresident natural persons does not imply consent to be bound by the process of its courts. Flexner v. Farson, 248 U. S. 289 . The power of a state to exclude foreign corporations, although not absolute, but qualified, is the ground on which such an implication is supported as to them. Pennsylvania Fire Insurance Co. v. Gold Issue Mining Co., 243 U. S. 93 , 243 U. S. 96 . But a state may not withhold from nonresident individuals the right of doing business therein. The privileges and immunities clause of the Constitution, § 2, Art. IV, safeguards to the citizens of one state the right "to pass through, or to reside in any other state for purposes of trade, agriculture, professional pursuits, or otherwise." Page 274 U. S. 356 And it prohibits state legislation discriminating against citizens of other states. Corfield v. Coryell, 4 Wash. C.C. 371, 381. Ward v. Maryland , 12 Wall. 418, 79 U. S. 430 ; Paul v. Virginia , 8 Wall. 168, 75 U. S. 180 . Motor vehicles are dangerous machines, and, even when skillfully and carefully operated, their use is attended by serious dangers to persons and property. In the public interest, the state may make and enforce regulations reasonable calculated to promote care on the part of all, residents and nonresidents alike, who use its highways. The measure in question operates to require a nonresident to answer for his conduct in the state where arise causes of action alleged against him, as well as to provide for a claimant a convenient method by which he may sue to enforce his rights. Under the statute, the implied consent is limited to proceedings growing out of accidents or collisions on a highway in which the nonresident may be involved. It is required that he shall actually receive and receipt for notice of the service and a copy of the process. And it contemplates such continuances as may be found necessary to give reasonable time and opportunity for defense. It makes no hostile discrimination against nonresidents, but tends to put them on the same footing as residents. Literal and precise equality in respect of this matter is not attainable; it is not required. Canadian Northern Ry. Co. v. Eggen, 252 U. S. 553 , 252 U. S. 561 -562. The state's power to regulate the use of its highways extends to their use by nonresidents, as well as by residents. Hendrick v. Maryland, 235 U. S. 610 , 235 U. S. 622 . And, in advance of the operation of a motor vehicle on its highway by a nonresident, the state may require him to appoint one of its officials as his agent on whom process may be served in proceedings growing out of such use. Kane v. New Jersey, 242 U. S. 160 , 242 U. S. 167 . That case recognized power of the state to exclude a nonresident until the formal appointment is made. And, having the power so to exclude, the state Page 274 U. S. 357 may declare that the use of the highway by the nonresident is the equivalent of the appointment of the registrar as agent on whom process may be served. Cf. Pennsylvania Fire Insurance Co. v. Gold Issue Mining Co., supra, 243 U. S. 96 ; Lafayette Ins. Co. v. French , 18 How. 404, 59 U. S. 407 -408. The difference between the formal and implied appointment is not substantial, so far as concerns the application of the due process clause of the Fourteenth Amendment. Judgment affirmed.

The Supreme Court upheld a Massachusetts law that allowed for service of process on nonresident motorists involved in accidents in the state by serving the registrar of motor vehicles, with notice sent to the nonresident by registered mail. The Court found that the law did not violate the Due Process Clause of the Fourteenth Amendment, as it provided sufficient notice and opportunities for defense, and treated nonresidents and residents equally in terms of legal responsibilities when using state highways.

Lawsuits & Legal Procedures

Shoshone Mining Co. v. Rutter

https://supreme.justia.com/cases/federal/us/177/505/

U.S. Supreme Court Shoshone Mining Co. v. Rutter, 177 U.S. 505 (1900) Shoshone Mining Co. v. Rutter No. 208 Argued March 21, 1900 Decided April 30, 1900 177 U.S. 505 APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus A suit brought in support of an adverse claim under Rev.Stat. §§ 2325, 2326, is not a suit arising under the laws of the United States in such a sense as to confer jurisdiction on a federal court, regardless of the citizenship of the parties. Blackburn v. Portland Gold Mining Co., 175 U. S. 571 , reexamined and affirmed to this point. Although suits like the present one may sometimes so present questions arising under the Constitution or laws of the United States that a federal court will have jurisdiction, yet the mere fact that a suit is an adverse suit, authorized by the statutes of Congress, is not, in and of itself, sufficient to vest jurisdiction in the federal courts. The case is stated in the opinion. MR. JUSTICE BREWER delivered the opinion of the court. In Blackburn v. Portland Gold Mining Company, 175 U. S. 571 , decided January 8, 1900, we held that a suit brought in support of an adverse claim under sections 2325 and 2326 of the Revised Statutes was not a suit arising under the laws of the United States in such a sense as to confer jurisdiction on a federal court, regardless of the citizenship of the parties. In this case, the same question is again presented, and has been elaborately argued by counsel against the opinion we then announced. Its importance, as well as the great ability with which it was argued by counsel for appellee, have induced a careful reexamination of the question. While it may be conceded Page 177 U. S. 506 that the matter is not free from doubt, nevertheless our reexamination has not led us to change our former views. We deem it unnecessary to restate all the reasons given in the opinion then delivered, and yet some matters may appropriately be noticed. By the Constitution, Article III, Section 2, the judicial power of the United States extends "to all cases, in law and equity, arising under this Constitution, the laws of the United States" and to controversies "between citizens of different states." By Article IV, Section 3, cl. 2, Congress is given "power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." Under these clauses, Congress might doubtless provide that any controversy of a judicial nature arising in or growing out of the disposal of the public lands should be litigated only in the courts of the United States. The question therefore is not one of the power of Congress, but of its intent. It has so constructed the judicial system of the United States that the great bulk of litigation respecting rights of property, although those rights may in their inception go back to some law of the United States, is in fact carried on in the courts of the several states. It has provided that the federal courts shall have exclusive jurisdiction of admiralty and patent litigation, and jurisdiction concurrent with the state courts of suits arising under the Constitution or laws of the United States. Rev.Stat. § 629; 25 Stat. 433, c. 866. When, in section 2326, Rev.Stat., Congress authorized that which is familiarly known in the mining regions as an "adverse suit," it simply declared that the adverse claimant should commence proceedings "in a court of competent jurisdiction." It did not in express language prescribe either a federal or a state court, and did not provide for exclusive or concurrent jurisdiction. If it had intended that the jurisdiction should be vested only in the federal courts, it would undoubtedly have said so. If it had intended that any new rule of demarcation between the jurisdiction of the federal and state courts should apply, it would likewise undoubtedly have said so. Leaving the matter as it did, it unquestionably meant that the competency of Page 177 U. S. 507 the court should be determined by rules theretofore prescribed in respect to the jurisdiction of the federal courts. In that view, if the adverse suit were between citizens of different states, and the value of the thing in controversy exceeded $2,000, then, by virtue of the general provisions of the statutes, the federal courts might take jurisdiction, or, if the suit was one arising under the Constitution or the laws of the United States, and the amount in controversy was over $2,000, then also the federal courts might take jurisdiction. Conversely, it would be true that if the amount in controversy was not in excess of $2,000 or if the parties were not citizens of different states and the suit was not one arising under the Constitution or laws of the United States, the federal courts could not take jurisdiction. In the present case, diverse citizenship does not exist. Jurisdiction must therefore depend upon the question whether the suit is one arising under the Constitution or laws of the United States. We pointed out in the former opinion that it was well settled that a suit to enforce a right which takes its origin in the laws of the United States is not necessarily one arising under the Constitution or laws of the United States within the meaning of the jurisdiction clauses, for if it did, every action to establish title to real estate (at least in the newer states) would be such a one, as all titles in those states come from the United States or by virtue of its laws. As said by Mr. Chief Justice Waite, in Gold Washing & Water Co. v. Keyes, 96 U. S. 199 , 96 U. S. 203 . "The suit must, in part at least, arise out of a controversy between the parties in regard to the operation and effect of the Constitution or laws upon the facts involved. . . . Before, therefore, a circuit court can be required to retain a cause under this jurisdiction, it must in some form appear upon the record by a statement of facts, 'in legal and logical form' such as is required in good pleading, . . . that the suit is one which 'really and substantially involves a dispute or controversy' as to a right which depends upon the construction or effect of the Constitution or some law or treaty of the United States." The adverse suit, Rev.Stat. sec. 2326, is "to determine the question of the right of possession." That right may or may Page 177 U. S. 508 not involve the construction or effect of the Constitution or a law or treaty of the United States. By sections 2319, 2324 and 2332, Revised Statutes, it is expressly provided that this right of possession may be determined by "local customs of rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States," or "by the statute of limitations for mining claims of the state or territory where the same may be situated." So that, in a given case, the right of possession may not involve any question under the Constitution or laws of the United States, but simply a determination of local rules and customs, or state statutes, or even only a mere matter of fact. The recognition by Congress of local customs and statutory provisions as at times controlling the right of possession does not incorporate them into the body of federal law. Section 2 of Article I of the Constitution provides that the electors in each State of members of the House of Representatives "shall have the qualifications requisite for electors of the most numerous branch of the state legislature," but this does not make the statutes and constitutional provisions of the various states in reference to the qualifications of electors parts of the Constitution or laws of the United States. On August 8, 1890, Congress enacted (26 Stat. 313, c. 728) that intoxicating liquors transported into any state or territory "shall upon arrival in such state or territory be subject to the operation and effect of the laws of such state or territory," etc., and in In re Rahrer, 140 U. S. 545 , 140 U. S. 561 , this Court said: "Congress has not attempted to delegate the power to regulate commerce, or to exercise any power reserved to the states, or to grant a power not possessed by the states, or to adopt state laws." In Miller v. Swann, 150 U. S. 132 , 150 U. S. 136 , it appeared that the State of Alabama had passed an act containing this provision: "The said Alabama & Chattanooga Railroad Company shall have the privilege and right of selling said lands or any part thereof in accordance with the acts of Congress granting the same," and it was held: "The question is not what rights passed to the state under Page 177 U. S. 509 the acts of Congress, but what authority the railroad company had under the statute of the state. The construction of such a statute is a matter for the state court, and its determination thereof is binding on this Court. The fact that the state statute and the mortgage refer to certain acts of Congress as prescribing the rule and measure of the rights granted by the state does not make the determination of such rights a federal question. A state may prescribe the procedure in the federal courts as the rule of practice in its own tribunals; it may authorize the disposal of its own lands in accordance with the provisions for the sale of the public lands of the United States, and in such cases an examination may be necessary of the acts of Congress, the rules of the federal courts, and the practices of the Land Department, and yet the questions for decision would not be of a federal character. The inquiry along federal lines is only incidental to a determination of the local question of what the state has required and prescribed. The matter decided is one of state rule and practice. The facts by which that state rule and practice are determined may be of a federal origin." Inasmuch, therefore, as the "adverse suit" to determine the right of possession may not involve any question as to the construction or effect of the Constitution or laws of the United States, but may present simply a question of fact as to the time of the discovery of mineral, the location of the claim on the ground, or a determination of the meaning and effect of certain local rules and customs prescribed by the miners of the district, or the effect of state statutes, it would seem to follow that it is not one which necessarily arises under the Constitution and laws of the United States. As against this, we are met by these suggestions: first, that a corporation created by Congress has a right to invoke the jurisdiction of the federal courts in respect to any litigation which it may have, except as specifically restricted by some act of Congress. Osborn v. Bank of United States , 9 Wheat. 738; Pacific Railroad Removal Cases, 115 U. S. 1 . The argument of Chief Justice Marshall in support of this was, briefly, that a corporation has no powers and can incur no obligations except as authorized or provided for in its charter. Its power to do Page 177 U. S. 510 any act which it assumes to do, and its liability to any obligation which is sought to be cast upon it, depend upon its charter, and when such charter is given by one of the laws of the United States, there is the primary question of the extent and meaning of that law. In other words, as to every act or obligation, the first question is whether that act or obligation is within the scope of the law of Congress, and that being the matter which must be first determined, a suit by or against the corporation is one which involves a construction of the terms of its charter -- in other words, a question arising under the law of Congress. But that argument is not pertinent here. The right of the contestants in an adverse suit, as we have seen, does not always call for any construction of an act of Congress. It may depend solely on local rules or customs or state statutes, and in that case does not involve a dispute or controversy "which depends upon the construction or effect of the Constitution, or some law or treaty of the United States. . . . In most actions concerning mining claims, the parties agree as to the proper rule of construction to be applied to the mining laws, and the controversies are usually limited to questions of fact relating to the compliance with these laws. In such cases, the federal courts have no original jurisdiction unless there is a diversity of citizenship; but in cases arising under section 2326 of the Revised Statutes, the authority for the action is found in the legislation of Congress. Without this authority, the action for the purposes avowed by the statute could not be maintained." 2 Lindley on Mines, sec. 748. A statute authorizing an action to establish a right is very different from one which creates a right to be established. An action brought under the one may involve no controversy as to the scope and effect of the statute, while in the other case it necessarily involves such a controversy, for the thing to be decided is the extent of the right given by the statute. Again, it is said that this adverse suit is one step in the administration of the laws of the United States in respect to mineral lands, and therefore it must be presumed that Congress intended that such step should rightfully be taken in one of the courts of the United States. This suggestion was open to the Page 177 U. S. 511 consideration of Congress when it was determining where the adverse suit should be brought, but that it did not consider it vital is evident from the conceded fact that, unless the amount in controversy is over $2,000, no jurisdiction attaches to the federal court. In other words, Congress did not deem the matter of the jurisdiction of those courts so essential a part of the administration of the land laws of the United States as to vest in them jurisdiction of all such controversies, but left a large, if not a major, portion of them to be determined in the state courts. It evidently contemplated the fact that a controversy about a right of possession might as appropriately be decided in a state as in a federal court, and, not prescribing in which court it should be litigated, left the matter to be determined by the ordinary rules in respect to the jurisdiction of the federal courts. Counsel also calls our attention to the difference in the procedure in the disposal of agricultural and mineral lands. With respect to the former, all proceedings are carried on in the Land Department, and it is only after the legal title has passed by patent that inquiry is permissible in the courts, while in respect to the latter, the aid of the courts is invoked before the issue of a patent and in order to determine, to some extent, the right thereto. Noticing this distinction, he also notes the fact that a contest in respect to the validity of a patent for agricultural lands can be litigated in the federal courts, and hence draws the inference that a contest preliminary to a patent for mineral lands, and involving the right thereto, must also be one which can be litigated in the same courts. But we think the true inference from this difference of procedure is to the contrary, because, in respect to agricultural lands, it is settled that all questions of fact are determined by the Land Department, and that, after the issue of a patent, only questions of law are open for consideration in the courts, and as the laws of Congress alone determine the matter of the disposal of the public lands, it follows that the questions of law which are thus open for consideration are those arising under the acts of Congress. While on the other hand, as we have heretofore shown, in these adverse suits preliminary to a patent of mineral lands, not merely questions Page 177 U. S. 512 of law arising under the statutes of the United States, but questions of fact and questions arising under local rules and customs and state statutes are open for consideration. The scope of the inquiry which is permissible in the two cases emphasizes the fact that, in the latter case, the controversy may be one not arising under the Constitution or laws of Congress. Again, it is said that Congress has in these cases prescribed a specific rule of limitation which is ordinarily different from that obtaining under state statutes in respect to actions for the recovery of possession; that it has authorized decrees in peculiar form, some partly for and partly against each of the different parties, and also some adversely to both. 21 Stat. 505, c. 140; Richmond Mining Co. v. Rose, 114 U. S. 576 , 114 U. S. 585 ; Perego v. Dodge, 163 U. S. 160 , 163 U. S. 167 . But incidental matters such as these are not decisive, especially as confessedly the statute leaves the jurisdiction over those cases in which the matter in controversy does not exceed $2,000 in value in the state courts. This fact shows conclusively that Congress was not intending to carve out a new jurisdiction for the federal courts, and also that it did not doubt that the state courts would carry into effect its enactments in reference to limitations and procedure. And finally it is said that Congress cannot confer any jurisdiction on the state courts, that they may decline to entertain these adverse suits, and that Congress cannot compel them to do so. But here again we are met with the fact that Congress has left all controversies in respect to right of possession, not exceeding $2,000 in value, to the state courts. It evidently proceeded upon the supposition (which is a rightful one) that, as by the express terms of the Constitution, Article VI, clause 2, "this Constitution, and the laws of the United States which shall be made in pursuance thereof, . . . shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding," no courts, national or state, would decline to carry into effect the acts of Congress. Whether, if a state court should refuse to act under these statutes, the matter is one which could be corrected by error in this Court is immaterial. Page 177 U. S. 513 If it shall appear that state courts decline to entertain such jurisdiction, and that it cannot be enforced upon them, Congress may further legislate. Evidently, thus far in these cases, as in many others, there has been no reason to suppose that any state court would decline to enforce the laws of the United States or to carry into effect their provisions. And, as well said by Mr. Justice Miller in Iron Silver Mining Co. v. Campbell, 135 U. S. 286 , 135 U. S. 299 : "The purpose of the statute seems to be that where there are two claimants to the same mine, neither of whom has yet acquired the title from the government, they shall bring their respective claims to the same property, in the manner prescribed in the statute, before some judicial tribunal located in the neighborhood where the property is, and that the result of this judicial investigation shall govern the action of the officers of the Land Department in determining which of these claimants shall have the patent, the final evidence of title, from the government." If every adverse suit could be taken into the federal courts, obviously in some of the larger western states the litigation would not be "before some judicial tribunal located in the neighborhood where the property is," for in them the federal courts are often held only in the capital or chief city of the state and at a great distance from certain parts of the mining regions therein. So we conclude, as we did in the prior case, that although these suits may sometimes so present questions arising under the Constitution or laws of the United States that the federal courts will have jurisdiction, yet the mere fact that a suit is an adverse suit authorized by the statutes of Congress is not, in and of itself, sufficient to vest jurisdiction in the federal courts. It appears that there were two cases in the Circuit Court of Idaho, that they were there consolidated for trial, and the consolidated case taken on appeal to the circuit court of appeals. Of the two original cases, No. 81 on the docket of the circuit court was commenced by the appellees in that court. The other, No. 102, was commenced by the appellant in the District Court of the First Judicial District of the State of Idaho in and Page 177 U. S. 514 for Shoshone County, and by the appellees removed to the federal court. The matters involved in the two cases were similar, and hence the consolidation. Under these circumstances, and in view of the conclusion to which we have arrived, the order will be that The judgment of the United States Circuit Court of Appeals for the Ninth Circuit is reversed, and the case remanded to the Circuit Court, Northern Division, District of Idaho, with instructions to reverse its decree and enter a decree dismissing case No. 81, and an order remanding case No. 102 to the state court. MR. JUSTICE WHITE did not hear the argument and took no part in the decision of this case. MR. JUSTICE McKENNA dissents.

Shoshone Mining Co. v. Rutter (1900) concerns a dispute over mining claims and the jurisdiction of federal courts in such cases. The Supreme Court ruled that a lawsuit supporting an adverse claim under specific Revised Statutes does not constitute a case arising under US laws, thus federal courts cannot preside over such cases solely based on the nature of the claim. The Court acknowledged the importance of Congress's role in regulating disputes over public lands but emphasized that federal courts should not assume jurisdiction unless the case presents substantial questions arising under the Constitution or US laws. The decision highlights the Court's interpretation of federal judicial power and its deference to state courts in certain matters.